CORAM

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KABIRI-WHYTE JUSTICE, SUPREME COURT

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PARTIES

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OLUSOLA OLORUNTOBA

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GUARANTY TRUST BANK PLC.

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

At the Federal High Court of Lagos State, the Applicant/Appellant filed an application under the Fundamental Right Enforcement Procedure against the Respondent and two others who were members of the Nigerian Police Force (though he later discontinued the action against them), for the breach of his fundamental rights as guaranteed under the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Respondent’s case in the Federal High Court was that it did not violate or breach the Fundamental right of the Appellant as the freezing of his account and his arrest was based on the order from a competent Court and the order from the 2nd Respondent. It was the Respondent’s further case that it was unlawful to hold it responsible for the obedience of the Court order. The Federal High Court after hearing the application and the arguments of both parties granted the Appellant’s application but did not award damages. Dissatisfied, the Appellant appealed to this Court. The Respondent also filed a cross-appeal being dissatisfied with the judgment.

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HELD

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Appeal Dismissed, Cross Appeal Allowed

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ISSUES

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Whether the lower Court ruled on the legality of the Respondent’s act complained against by the Appellant in the application in the lower Court? Whether the lower Court was right in the circumstance of the evidence before it to grant reliefs 1,2, 3 and 4 in one breath and in the other refusing to grant the relief for damages? Whether the lower Court appropriately considered the admissibility and the validity of the evidence before it particularly Exhibits G1 and G2?

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RATIONES DECIDENDI

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ISSUES FOR DETERMINATION- BASIS FOR THE FORMULATION OF ISSUES OF DETERMINATION AND ARGUMENTS IN AN APPEAL

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“The issues for determination should not be based on the judgment but rather on the grounds of appeal and the argument thereafter will be based on the issues and not the ground of appeal. See Ezemba vs. Ibeneme & Anor(2004) 14 NWLR (Pt. 894) 617; Agbai & Ors vs. Okogbue (1991) 7 NWLR (Pt. 204) 391; Adebayo & Ors vs. Shogo (2005) 3 FWLR (Pt. 276) 94.”

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REPLY BRIEF- ESSENCE OF A REPLY BRIEF

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“I am compelled to make this observation since the Appellant in the reply brief of 17/2/2020 formulated 5 issues for determination. This is a strange procedure where issues for determination are formulated in a reply brief. This is not the essence of a reply brief. The reply brief is supposed to address issues raised within the issues for determination in the Respondents brief. It is to reply to matter in the Respondents brief and it is not supposed to raise new issues or an opportunity to reopen or reinforce earlier submission on issues it had the opportunity to address when the Appellant brief was filed. In Onwubuya & Ors vs. Ikegbunam (2019) LPELR-49373(SC) the Apex Court per Abba Aji, JSC at pages 7-8 held thus:
There is also the 9-page Reply brief of the Appellants filed on 30/1/2018 dedicated to responding and re-arguing all the issues argued and canvassed by the Respondent in his brief. This is obviously and definitely not the purpose for a reply brief. The Appellants cannot be allowed to have a second bite at the cherry. A reply brief is filed when an issue of law or argument raised in the Respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the Respondent’s brief. It is not proper to use a reply brief to extend the scope of the Appellant’s brief or raise issues not dealt with in the Respondent’s brief. See Cameroon Airlines v. Mike Otutuizu (2011) LPELR-827 (SC), Ogboru v. Ibori (2005) 13 NWLR (PT 942) page 380.”

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FORMULATION OF ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT CAN REFORMULATE ISSUES FOR DETERMINATION

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“As part of the argument in the reply brief, counsel submitted that it was not proper for the lower Court to make a finding on the 2nd & 3rd Respondents when the Appellant had withdrawn against them in the lower Court. In my opinion, all the issues and arguments in that respect, whether in the appeal or the cross-appeal is unnecessary as that is not an issue from any ground of appeal in both the notice of appeal and the cross-appeal. In order to properly streamline the issues for determination in a proper, concise and compact manner so as to ensure adherence to justice, a Court can reformulate issues for determination provided the issues are based on the grounds of appeal. See Sha & Anor vs. Kwan &Ors (2000) 5 SC 178; Poroye & Ors vs. Makarfi & Ors (2018) 1 NWLR (Pt. 1599) 91: State vs. Sani (2018) 1 SC (Pt. II) 35. In Reptico S.A. Geneva vs. Afribank (Nig) Plc (2013) 14 NWLR (Pt. 1373), the Apex Court held thus:
However, there is no doubt that an appellate Court has the power to reformulate the issues for determination of a matter, as long as the reformulated issues are within the grounds of appeal filed by the appellant but not outside. This is usually done by the Court mostly for the purpose of clarity and precision when it is noticed by the Court that the issues are distilled are clumsy, not precise and sometimes are proliferated. See; Unity Bank Plc v. Bouari (2008) 2 SCM 193; (2008) All FWLR (Pt. 416) 1825; (2008) 7 NWLR (Pt. 1086) 372;Emeka Nwana v. FCDA &Ors. (2004) 7 SCM 25, Agbakoba v. INEC (2008) 12 SCM (Pt. 2) 159; (2008) All FWLR (Pt. 410) 799; (2008) 18 NWLR (Pt. 1119) 489.”

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WITHDRAWAL OF SUIT- POSITION OF THE LAW ON THE WITHDRAWAL OF SUIT AGAINST A PARTY IN AN ACTION

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“In the course of the proceeding in the lower Court, the Appellant withdrew the suit against the 2nd & 3rd Respondents. The position of the law in a situation such as this is that having withdrawn the case against the 2nd & 3rd Respondent, the name of the 2nd & 3rd Respondents are struck out of the suit and therefore they are no more parties to the action and no order can be made against them. See Oyelese & Ors vs. INEC &Ors (2011) LPELR-11963 (CA); Imperial Homes Mortgage Bank Ltd vs. Mount Gilgal Investment Ltd & Ors (2017) LPELR-42711; The Vessel Saint Roland & Anor vs. Osinloye (1997) 4 NWLR (Pt. 500) 387.”

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BREACH OF FUNDAMENTAL RIGHTS – WHETHER FUNDAMENTAL RIGHTS ARE ABSOLUTR RIGHTS

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“The direct issue to be addressed in issue 1 demand that we look at the judgment to see whether the lower Court had made a specific finding on whether the Respondent breached the fundamental right of the Appellant. From the evidence before the lower Court as shown in paragraphs 4(ii)(iii)(iv)(v)(vi)(vii) & (viii) of the counter affidavit, it is clear that the Respondent froze the account of the Appellant and prevented him from leaving their premises. The reason given for the action is that the Respondent was acting on the letter from the Assistant Inspector General of Police (Exhibit GTB 1) and the bank order secured from the Magistrate Court (Exhibit GTB 2). Though the Respondent denied harassing the Appellant, it admitted the fact that it denied the Appellant his right of leaving the premises until staff from the Assistant Inspector General’s office arrived to take the Appellant into custody. From the law, that act amounts to a violation of the freedom of movement of the Appellant except there is a legally justifiable reason for doing that. See Director of DSS & Anor vs. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Azuh vs. Union Bank (2014) 11 NWLR (Pt. 1419) 580. This however, is subject to any good reason advanced by the Respondent for that act or those acts that amount to the violation of the right of the Appellant. Once there exist a good reason recognized under the law for the violation of the fundamental right of the Appellant, the Respondent will not be held liable or responsible. This is based on the principle that fundamental right is not absolute as it can be restricted as the right of one stop where that of another begins. See Dokubo- Asari vs. FRN NSCQR Vol (2009) 1146; Osawe & Ors vs. Registrar of Trade Union (1985) 5 SC 343; Ransome-Kuti & Ors vs. A.G. Federation & Ors (1985) 2 NWLR (Pt. 6) 211.”

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WRITING OF JUDGMENT- WHETHER A JUDGE MUST CONFORM TO A PARTICULAR STYLE OF JUDGMENT WRITING

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“While the style a Court or a judge uses in writing his judgment can be peculiar to him, the point, however, is that a judgment of Court must be clear and specific and not subject to double interpretation. The judgment of a Court must be clear on the facts, the evaluation of the evidence, the issues for determination, the finding of the Court on the evaluated evidence and resolution of the issues with a clear order so that the parties are not mistaken as to the decision of the Court. See Otti vs. Excel-C Medical Centre Ltd &Anor (2019) LPELR-47699 (CA); Nwabunike vs. State(2019) LPELR-47748 (CA); Uzuda & Ors vs. Ebigah & Ors (2009) 4 FWLR (pt 499) 9709. The Apex Court drove home this point in Ajiboye vs. FRN (2018) 13 NWLR (pt 1637) 430, per Sanusi, JSC in these words:
Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006) 11 NWLR (pt.991)800 . In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor(2005) 1 SC 60 the Court had this to say per Niki Tobi JSC (of blessed memory):
Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.
In this instant case I have stated supra, that the learned justice of the Court of Appeal who wrote the lead judgment had in the said judgment summarised the submissions of the learned counsel for the parties and also relied on or endorsed the findings of the trial Court and adopted or endorsed them before resolving the issues as highlighted above. That in my view, could be his own style, approach, or method of writing judgment. In any case, he had considered all the issues raised and resolved them and had drawn conclusions or general inference before resolving those issues in favour of the respondent. I am unable to say that by the approach adopted by the learned justice of the penultimate Court who wrote the judgment had by the said judgment caused miscarriage of justice on the appellant which could be said to have vitiated the judgment in question. See David Omotola & Ors v The State (2009) 2-3 SC 7 or (2009)7 NWLR [pt.1139)148.”

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ORDER OF COURT – WHETHER A COURT ORDER IS BINDING ON A PERSON WHO IS NOT A PARTY TO A PROCEEDINGS

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“From the reliefs stated above, it is clear that granting relief 3 is completely out of place. This is because the declaration sought is against the 2nd & 3rd Respondents and since the Appellant has withdrawn the action against the 2nd & 3rd Respondents, no useful purpose will be served by granting the order as a Court order is not binding on a party who is not part of the proceeding. See Aribisala vs. Bello (2016) LPELR-40145 (CA); Oyeyemi & Ors vs. Owoeye (2017) LPELR-41903 (SC). The lower Court was therefore wrong in granting relief 3.”

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BURDEN OF PROOF- ON WHOM LIES THE BURDEN OF PROVING AN INFRINGEMENT OF FUNDAMENTAL HUMAN RIGHT

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“The Appellant in the first relief is seeking a declaratory order that his harassment at the premises of the Respondent is illegal and unconstitutional. In fundamental right cases, the initial burden is on the Appellant to show that he was detained or harassed by the Respondent and when this is established, the burden moves to the Respondent to justify the arrest, detention or harassment. See EFCC vs. Oyubu & Ors (2019) LPELR-47555 (CA); Baro vs. C.O.P. Delta State (2019) LPELR-48611 (CA). The burden is on the Appellant to show that he was harassed and that his account with the Respondent was frozen. The burden of proof is on the Appellant because he is the person alleging that his fundamental right was infringed or violated. If no evidence is called, the party that will lose is the Appellant, therefore the Appellant has the initial duty to prove that he was harassed and his account frozen. See Matoh vs. Admiral Environmental Care Ltd (2015) LPELR-25905 (CA); Nwavu & Ors vs. Okoye & Ors (2008) LPELR-2116 (SC); Benedict Otanma vs. Kingdom Youdubagha (2006) LPELR-2821 (SC).”

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UNCHALLENGED EVIDENCE- STATUS OF UNCHALLENGED EVIDENCE IN A SUIT

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“The Appellant in the Court below from the affidavit evidence has shown that his account was frozen by the Respondent. This the Respondent did not deny. The law on unchallenged evidence is clear, trite and settled. Unchallenged evidence needs no further proof as it is deemed admitted and the Court will act on same. See Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415; Kopek Construction Ltd vs. Ekisola (2010) 1 FWLR (Pt. 513) 1709; Onyiorah vs. Onyiorah & Anor(2019) LPELR-49096 (SC).”

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FINDINGS OF FACT- WHETHER AN APPELLATE COURT CAN MAKE SPECIFIC FINDINGS WHERE THE LOWER COURT FAILS TO SO DO

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“As earlier mentioned, the lower Court did not make any specific finding against the Respondent to the effect of the violation of the Appellants right. In such a situation, this Court can assume the position of the lower Court to make a specific finding by evaluating the evidence as the lower Court would have done. See Akaose & Ors vs. Okoye & Ors (2016) LPELR-40172; Akpan & Ors vs. Otong & Ors (1996) 10 NWLR (Pt 476) 108; Dakwang vs. NJC & Ors(2019) LPELR-48450 (CA). See also Section 16 of the Court of Appeal Act, Cap C37, LFN 2004.”

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BREACH OF FUNDAMENTAL RIGHT- WHETHER A PERSON WHOSE FUNDAMENTAL RIGHTS HAVE BEEN BREACHED IS ENTITLED TO DAMAGES

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“In the circumstance, I have evaluated the evidence before the lower Court as disclosed in the affidavit evidence and come to the conclusion that there is enough evidence that the Respondent detained the Appellant in its banking hall and also froze his account. This is the clear averments and deduction in paragraphs 4 subparagraphs (ii-vii) of the counter affidavit on pages 12-15 of the records. It is therefore very safe to hold that the Appellant has proved that the Respondent violated his fundamental right by detaining him in their banking hall and froze his account. If the Respondent cannot give any justifiable reason for those actions then I will uphold the decision of the lower Court. If I therefore do that, I will also agree with the Appellant that he is entitled to damages as the law is that once the Court holds that the right of a person has been breached or violated, he is entitled to general damage which is a damage that flows naturally from the wrong the Appellant suffered. See Iyere vs. Bendel Feed & Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300; Elf Petroleum vs. Umah & Ors (2018) 1 SC (Pt. 1) 173; Agu vs. General Oil (2015) 17 NWLR (Pt. 1488) 327.”

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EVALUATION OF EVIDENCE – WHETHER EVALUATION OF DOCUMENTARY EVIDENCE IS THE EXCLUSIVE PRESERVE OF A TRIAL COURT

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“I must mention in direct answer to issue 3 that the lower Court did not make any specific findings on the admissibility of Exhibits GTB 1 and GTB 2. In the circumstance, this Court can assume the position of the trial Court to make a decision on the admissibility of those Exhibits. This Court per Yakubu, JCA (of blessed memory) in Akaose & Ors vs. Okoye & Ors(supra) on page 27 held as follows:
Furthermore, the law is no longer recondite but very well settled to the effect that the appellate Court, just like the trial Court, possesses the power to evaluate the documentary exhibits tendered by the parties and admitted into evidence by the trial Court. Therefore, evaluation of documentary evidence is not the exclusive preserve of trial Courts. Dr. Soga Ogundalu v. Chief A. E. O. Macjob (2015) 3 SCNJ 90 at 107; Iwuoha v. NIPOST (2013) LRCN 1622; (2003) 8 NWLR (pt. 822) 308 (SC); Salisu v. Odumade (2010) 2 SCNJ 257.”

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PRESUMPTION OF REGULARITY- DUTY OF A PARTY WHO REBUTS THE PRESUMPTION OF REGULARITY OF A COURT ORDER

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“The Appellant in the brief challenged Exhibits GTB 1 and GTB 2 on many fronts including the fact that the documents were not certified and therefore inadmissible and that the Court order is not worthy of being obeyed as it violates the Magistrate Court Law of Lagos State. In the further affidavit, the Appellant averred that Exhibit GTB 2 is fake. This is the allegation of the Appellant, in view of the presumption of regularity in favour of Exhibit GTB 2, the Appellant needed to do more than make a mere averment to rebut the presumption of regularity. See Rasheed vs. State (2014) LPELR-22456 (CA); Shitta-Bay vs. AG Federation(1998) 10 NWLR (Pt. 570)392; Torri vs. National Park Service of Nigeria (2011) 6-7SC (Pt. III) 1711. To convince the Court that the order is fake, the Appellant needed to produce documents to show the inquiry was made in the Magistrate Court and the response from the Court. Particularly, when the Respondent has no opportunity to file another affidavit, the Appellant needed to do much more than a mere averment to show that the order is not from the Magistrate Court. In the absence of that, the presumption of regularity will be applied in favour of the Respondent. See Simon Ezechukwu & Anor vs. I.O.C. Onwuka (2016) LPELR-26055 (SC). In J.O. Osidele & Ors vs. Moses O. Sokunbi (2012) LPELR-9278 (SC) , the Apex Court per Muhammad, JSC had this to say :
It is to be noted that Exh. P5 is a judicial act certifying a judgment and a sale ordered by the then Supreme Court of Nigeria. There is therefore a presumption that such judicial acts are regular and valid which can only be rebutted by establishing fraud or other vitiating circumstances ( Section 150 of the Evidence Act ).
The Appellant has alleged that the Court order is fake which connotes fraud but has not provided or placed anything before this Court for it to act or verify whether the allegation is true. From all indication, the Appellant agrees that the Respondent acted on the contents of the Exhibits but its grouse is that the Appellant acted on a fake document. In the circumstance, the onus is on the Appellant to show it is fake. The law is trite, that the Court does not act in speculation but on facts and evidence placed before it. See Ikenta Best (Nig) Ltd vs. A.G. Rivers State (2008) LPELR-1476 (SC) and Abubakar vs. Waziri & Ors (2008) LPELR-54 (SC).”
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ADMISSIBILITY OF DOCUMENTARY EVIDENCE- WHETHER NON-COMPLIANCE WITH THE REQUIREMENT OF CERTIFICATION OF A PUBLIC DOCUMENT AFFECTS ITS ADMISSIBILITY

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“One major reason the Appellant challenged Exhibits GTB 1 and 2 is that it is not certified. The certification on the document is from the Federal High Court and not from the person who made it. Therefore, the certification is wrong. As public documents, they ought to be certified. Clearly, Exhibits GTB 1 and 2 do not meet the requirements on certification. Does that affect the admissibility of Exhibits GTB 1 and 2? If the originals were tendered, no certification would be needed but if a photocopy, then the certification is needed. Does that mean that it is over for the relevance of the exhibits? I think not. This is because the law is clear that any evidence whether oral or documentary not challenged is admitted and should be acted upon. See Adelaja & Ors. vs. Alade & Anor (1999) LPELR-109 (SC). The Appellant did not deny that these exhibits exist and so it admitted that Exhibits GTB 1 & 2 exists. With that admission, is there a need to prove their existence? The Appellant did not challenge the facts in Exhibit GTB 1 and GTB 2 and as a result, the relevance of the documents takes the better part of this case. I will also add that the issue of the document not being certified also does not arise in documents attached to affidavit evidence as the Appellant in law is not entitled to object to the admissibility of such documents provided they are relevant to the issue in point. See Simon Ezechukwu & Anor vs. I.O.C. Onwuka (Supra). In view of my position, I admit both documents.”

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ORDER OF COURT- WHETHER IT IS MANDATORY FOR AN ORDER OF COURT TO BE OBEYED

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“All the argument advanced by the Appellant to the effect that the order is worthless and therefore should not be obeyed is of no moment as the law on obedience to Court order is settled and it is to the effect that for as long as the order is from a competent Court, the Respondent is under obligation to obey it even if the order is not right or correct. In Isa Kassim vs. The State (2017) LPELR-42586 (SC) the Apex Court held:
The duty of every appellant is to show and or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, judicial act, done in a manner substantially regular is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011 is all about this.
The order from the Magistrate Court signed by a magistrate is presumed regular and therefore the Respondent is under obligation to obey such order for as long as it exists and it is not set aside. See Labour Party vs. INEC (2009) LPELR-1732 (SC).”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Bankers Order Act|Constitution of the Federal Republic of Nigeria 1999 (as amended)|Court of Appeal Act, Cap C37, LFN 2004|Evidence Act 2011|Fundamental Rights Enforcement Procedure Rules 2009|Magistrates Courts (Civil Procedure) Rules 2009|

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