Mr. Niyi Aluko & Anor V. Commissioner of Police & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an appeal against the judgment of the Ondo State High Court of Justice, Akure Division, presided over by Hon. Justice A. O. Odusola, delivered on 4th day of March, 2013.
The Applicants/Appellants claims were for the following:
(a) A declaration that invasion of the 1st Applicant’s residence and the forceful removal of his wife’s Toyota Camry Car with Reg. No. AT 889 AKR on the 11th day of October, 2011 is unlawful, inoperative, illegal, unconstitutional, and constitutes violation of his right to private and family life.
(b) A declaration that the threat to arrest and detain the Applicants on a civil action which does not constitute offence is unlawful, illegal and unconstitutional and a violation of fundamental right to liberty and freedom of movement.
(c) A declaration that the equitable mortgage transactions between the Applicants and the 3rd Respondent does not constitute a criminal offence under the Criminal Code Law of Ondo State or any other law to warrant the violation of the Fundamental Rights of the Applicants to personal liberty and
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freedom of movement by Section 35 of the 1999 Constitution (as amended) and Article 6 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act CAP A9 Laws of Federation of Nigeria 2004.
(d) An order directing the Respondents to release the 1st Applicant’s wife’s Toyota Camry Car with Registration No. AT 889 AKR seized at the residential premises of the Applicant.
(e) A perpetual injunction restraining the 1st, 2nd and 3rd Respondents, including their servants, agents, privies and officers from further infringement of the Applicants Fundamental Rights to private and family life, personal liberty and freedom of movement.
(f) An order for the payment of Twenty Million Naira (N20,000,000) to the Applicants for the atonement of violation of his Fundamental Rights to private and family life.
RELEVANT FACTS
The 1st Appellant obtained a loan facility from and entered into a mortgage transaction with the 3rd Respondent and deposited his title deeds. He was paid the sum of Four Hundred Thousand Naira (N400,000) out of Eight Hundred Thousand Naira loan.
?The Appellants alleged that on 11/01/2011, the 3rd
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Respondent in company of some hoodlums invaded the residence of the Appellants and drove away the 1st Appellant wife’s Toyota Camry Car with Reg. No. AT 889 AKR to the 3rd Respondent’s premises at Alagbaka, Akure. And that the impounded car belong to 1st Applicant’s wife, who has not entered into any transaction with the 3rd Respondent. Appellants stated further, that the 3rd Respondent instigated the 2nd Respondent to invite the 1st Appellant for questioning at the Police Headquarters, Akure and thereby violated his fundamental human right.
The Respondents however denied impounding the 1st Appellant wife’s car. They stated that it was the 1st Appellant that drove the car to the premises of the 3rd Respondent and after meeting with some staffers of the 3rd Respondent, parked the car at the 3rd Respondent premises to show his willingness to repay the loan facility within 2 weeks. And that since then neither the 1st Appellant nor anybody else has come for the car and was prevented from taking same. The 3rd Respondent denied instigating the 2nd Respondent to invite and question the 1st Appellant. The Appellants brought the action that culminated
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into this appeal to enforce their fundamental human right under Order 11 Rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The application was dismissed on 4/3/2009. Dissatisfied, the Applicants/Appellants filed a Notice of Appeal on 23/4/2013, containing four Grounds of Appeal.
In compliance with the rules of this Court, parties filed their respective briefs. The Appellants’ brief was settled by T. A. Oladimeji, Esq., dated 14/5/20145 but filed on 23/4/2014. T. A. Oladimeji Esq. formulated three issues for the determination of this appeal, thus:
1. Having regard to the findings of the trial Judge that the 1st Appellant wife’s Fundamental Rights were breached, whether or not the trial Court was right to deny the Applicants judgment.
2. Having regard to conflicting depositions in the affidavit evidence of both parties in respect of how the vehicle got to the Respondents’ office, (sic) whether or not the trial Court is wrong in not calling oral evidence to resolve the conflicts in the affidavit evidence of both the Appellants and 3rd Respondent – (Ground Two).
3. Whether or not the trial Court is (sic) right in
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dismissing the Applicants’ claim (Grounds 3 and 4).
The 1st Respondent’s Brief was dated 21/4/2015 and filed 22/4/2015, settled by Aderemi Ajibola Esq., who adopted the three issues raised by the Appellants. 2nd Respondent did not file any process. 3rd Respondent’s Brief was settled by Ekerete Udofot Esq. dated 3/7/2014 but filed 8/7/2014 and he also adopted the three issues as formulated by the Appellants’ counsel. At the hearing of the appeal on 3/5/2016, counsel adopted their respective briefs, after the Appellants discontinued this action against 1st and 2nd Respondents.
ARGUMENT OF ISSUE 1
Addressing this issue, learned counsel for the Appellants submitted that cases commenced vide Enforcement of Fundamental Rights Procedure Rules, 2009 such as the instant is sui generis. He reproduced the provision of Paragraph 3(e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009 to argue that the learned trial Judge failed to advert his mind to it having found that the 1st Applicant/Appellant wife’s fundamental right was breached by the 3rd Respondent because, the Applicants/Appellants brought this action for
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themselves and on behalf of the 1st Appellant’s wife whose fundamental right was breached by the 3rd Respondent. He referred to paragraph 20 and 21 at page 54 of the Record of Appeal. Counsel submitted that by virtue of Paragraph 55(e) of the Preamble to the Fundamental Rights (Enforcement Procedures) Rules, 2009, the 1st Appellant can maintain an action on behalf of himself and his wife. Counsel submitted that assuming without conceding that the Fundamental Rules does not empower the 1st Appellant to maintain an action on behalf of his wife, that the trial Court had the power to join the necessary parties suo motu or invite the parties to address the Court on it as contained in Order 13 Rules 16 of the Ondo State High Court Civil Procedure Rules (sic) and that Order XV Rule IV of Fundamental Right Civil Procedure Rules, empowers such recourse. Learned counsel relied on Inyang vs. Ebong (2002) FWLR (pt. 125)703 @ 719 ratio 27 to submit that when a suit is filed, the trial judge becomes dominus litis and then assumes under the relevant rules the duty and responsibility to ensure that the proceedings accord with the justice of the case by joining as Plaintiffs
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or Defendants all the persons who may be entitled to or who claims some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, if these (sic) had not already been made parties. Counsel reproduced Preambles 1 and 3(d) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, to submit that the trial Court having found that the Fundamental Rights of the 1st Appellant’s wife was breach ought to have ignored the provisions of the above preambles and other relevant provisions of the 1999 Constitution (as amended). Counsel relied on the case of Ransom Kuti vs. A-G Federation (2001) FWLR (pt. 180) 1637 @ 1678 to submit that on the basis of the principle of ubi jus ibi remedium, that where a breach of Fundamental Right has been discovered and determined as in this case, the Court ought to make consequential orders to remedy the breach.
Reacting, learned counsel for the 3rd Respondent submitted that the Appellants seem not to have a grasp of the case they presented at the trial Court as they have grossly misconceived and misinterpreted the judgment of the learned trial Judge. He submitted that Paragraph 3(e)
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(i) (ii) and (iv) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009 relied on by the Appellants in their brief, provided that an applicant in human right litigation may include anyone acting in his own interest, anyone acting on behalf of another person and anyone acting in the public interest. Counsel submit that the Appellants did not aver in any of the affidavit in support of the application that they were acting on behalf of 1st Appellant’s wife in this case and a reference to the 1st Appellant’s wife vide their application cannot suffice. In any case, said counsel, the 3rd Respondent as an artificial person cannot invade the premises of the 1st Appellant and the people the Appellants alleged to have accompanied the 3rd Respondent were vaguely described as hoodlums and not staffers of the 3rd Respondent. He referred to the finding of fact by the learned trial Judge to the effect that the Appellants presented no evidence that the 3rd Respondent or any of its agents did invade the premises of the 1st Appellant and drove away the car of his wife. Counsel submitted that the Appellants were lying as they failed to depose in their
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affidavit who drove away the car and how that person got the car keys and the Courts are not allowed by law to speculate. He called in aid the case of Okoye vs. Centre Point Merchant Bank Ltd. (2008) ALL FWLR (pt.441) 834 paras B – C and Bob vs. Akpan (2010) ALL FWLR (pt. 501) 953 paras C ? D to the effect that affidavit evidence is not sacrosanct, but still subject to evaluation as much as oral evidence by the Court. Counsel argued that the learned trial Judge evaluated the affidavit evidence of respective parties and came to a conclusion that that of the 1st Respondent is more probable and credible. Learned counsel submitted that the trial Court did not hold that anybody’s fundamental right was breached as misconceived by the Appellants’ counsel vide paragraph 3.2 of their brief but rather, a passing remark at page 75 of the Record of Appeal, as follows:
“Besides if there was any breach of fundamental right, it is the right of the 1st Appellant?s wife that has been breached and not that of the Appellants. Incidentally the 1st Appellant?s wife is not before me to warrant any judgment in her favour.?
He argued quite
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strongly that the above remark by the learned trial Judge cannot be construed rightly as a holding that the fundamental right of the wife of the 1st Appellant has been breached by the 3rd Respondent. Furthering, he submitted that the case of Inyang v. Ebong (supra) relied on by the Appellants’ counsel relates to power of Court to join proper and necessary parties in an action for transfer of shares in a company and therefore is inapplicable to the instant case. He submitted that the learned trial Judge did not make any specific finding whatsoever that the fundamental human right of the 1st Appellant’s wife was breached as the above remark is not the ratio decidendi but obita dictum. That being the case, said counsel, Ground One of the Appellants’ Grounds of Appeal is bad in law and incompetent since it was based on obita dictum and not ratio decidendi of the case. In other words, said counsel a Ground of Appeal must necessarily challenge the main substance of the judgment and not what the Judge said in passing. He relied on Federal Medical Centre, Ido Ekiti vs. Olajide and other cases to the effect that where a Ground of Appeal is not a true picture of what the
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Court has decided, the ground is misleading and therefore incompetent. He relied further onC.P.C. vs. INEC (2012) ALL FWLR (pt. 617) 629; African Petroleum Plc vs. Adeniyi (2012) ALL FWLR (pt. 624) 136 and Salami vs. Wema Bank Nigeria Plc (2010) ALL FWLR (pt. 552) 1721.
He submitted that had the 1st Appellant’s wife feel strongly that her fundamental human right has been breached by the 3rd Respondent, she ought to have availed herself of the provisions of Order XIII Rule I of the Fundamental Rights (Enforcement Procedure) Rule 2009. He argued that this failure by the 1st Appellant wife resulted in the inability of the learned trial Judge to consider whether or not her fundamental right has been breached. He submitted that the remark under consideration cannot amount to specific finding of fact by the learned trial Judge as that will amount to an aberration in law given the fact that it was not based on the issues presented before it. He referred to Anionwu vs. Anionwu (2009) ALL FWLR (pt. 497) 116 @ 150 to the effect that a trial Court is under a duty to make findings on evidence before it and to give full consideration of all the issues raised. Counsel
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submitted that evaluation of evidence and ascription of probative value is sine qua non to the finding of fact by a Court. He argued that since the learned trial Judge had evaluated the pieces of evidence led by respective parties and preferred that of the 3rd Respondent to that of the Appellants, it would be incongruous and strange to now say that the learned trial Judge found that the 1st Appellant wife’s fundamental human right has been breached. Learned counsel submitted that the Appellants misconstrued the finding of fact by the learned trial Judge at page 75 of the Record of Proceeding when he held: “Incidentally the 1st Applicant’s wife is not before me to warrant any judgment in her favour.” Counsel conceded that in enforcement of fundamental right, public interest litigations are entertained, but that an applicant must disclose to the Court in clear terms if he is acting in his own interest, public interest or acting on behalf of another person. He submitted that it was not disclosed by the Appellants that they were acting for the 1st Appellant’s wife. He equally submitted that the reliefs show that the Appellant were not acting specifically for the
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1st Appellant’s wife or any other person. He relied on Oladele vs. Akintaro (2011) ALL FWLR (pt.590) 1346 @ 1361 and Kaliel vs. Aliero (1999) 4 NWLR (pt.597) 142 to the effect that a Court will not make an order that will affect the interest or right of a person or body that is not a party to a case and who was never heard or sought to be joined in the matter. He equally relied on Onyeama vs. Obodoh (2010) ALL FWLR (pt.515) 235 @ 249 and Ige vs. Olunloyo (1984) 1 SC 258 – all to the effect that no Court has power to grant reliefs or remedies not claimed.
ARGUMENT ON ISSUE 2
Addressing this issue, learned counsel for the Appellants submitted that paragraphs 20, 21, 22, 23 and 24 of the Appellants’ affidavit in support of the application at the trial Court conflicts with paragraphs 12, 13, 14,15, 16 and 17 of the 3rd Respondent’s counter affidavit. He then submitted that there are conflicts in the affidavit evidence of the Appellants and the 3rd Respondent on how the Camry Car of 1st Appellant’s wife found its way to the premises of the 3rd Respondent which the trial Court ought to call oral evidence to resolve, but was not done, which led to the trial
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Judge’s erroneous preference for the evidence of the 3rd Respondent. He relied on Fawehnmi vs. Akinlala (2011) ALL FWLR (pt. 560) 1396 @ 1399 and Ikedigwe vs. Fai (2011) ALL FWLR (Pt.598) 845 @ 848.
He argued that a Court is not competent to pick at will depositions in affidavit since depositions are as to facts which can only be proved by evidence and not probabilities. Counsel submitted that the trial Court failed to consider or evaluate the Further Affidavit of the Appellants as contained at pages 40 and 41 of the Record of Appeal in his judgment but pick at will and without due evaluation the depositions of the 3rd Respondent. Counsel submitted that had the learned trial Judge considered the said Appellants’ Further Affidavit, especially paragraphs 4, 5, 6, 7, 8, 9 and 10, justice would have been swayed to the side of the Appellants given the admission of the 3rd Respondent vide its paragraph 16 of its affidavit, that the 1st Appellant wife’s car is in their premises. Counsel submitted that since it is not in dispute between parties that the loan facility was secured with Appellants’ title documents deposited with the 3rd Respondent, that it is
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illogical, impossible and incorrect that the 1st Appellant would as well drive his wife’s car to the premises of 3rd Respondent to further secure the loan that have been half paid by the Appellants. He argued that the 3rd Respondent’s deposition in their affidavit that they do not know the residence of the Appellants is utter falsehood since the Appellants’ address were on the documents deposited with the bank, and its staffers inspected the fish pond that is situated at the premises of the Appellants before the loan was granted. He submitted that even though the 3rd Respondent did not mandate the 1st and 2nd Respondents to arrest and detain the Appellants, the Appellants still has the right to apply for enforcement of their fundamental human right against arrest and detention.
ARGUMENT OF ISSUE 3
Counsel for the Appellants submitted that since the 1st Appellant wife’s car was not used as security for the loan, that the seizure of the car by the 3rd Respondent constitute a gross infringement of the Appellants’ fundamental right as enshrined in Sections 43 and 44 of the 1999 Constitution. He referred to
Nawa vs. A-G- Cross Rivers State (2008) ALL
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FWLR (401) 807 @ 840. He submitted that the 3rd Respondent took laws into its hand by seizing the 1st Appellant wife’s car despite the fact that a substantial part of the loan has been paid which on its own demonstrated the Appellants’ willingness to pay all the loan. He furthered that the lower Court erred in law in not calling oral evidence to resolve the conflict in the affidavit evidence of parties and also in holding that the Appellants’ case failed simply because he did not join his wife in the suit.
Learned counsel argued that the Appellants’ immovable property that was used as security for the loan can only be sold to offset the balance of the loan through an order of a Court of competent jurisdiction. He called in aid Asafa Foods Factory Ltd. Vs. Alraine Nig. Ltd. (2002) FWLR (pt. 125) 756 @ 760 to submit that since the 1st and 2nd Respondents were served with originating process and they elected not to defend at the trial Court, all allegations against them should have been taken as admitted by the trial Court.
Reacting to Issues 2 and 3 together, the learned counsel for the 3rd Respondent submitted that it is settled law that for an
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allegation of an infringement of fundamental right to succeed, the Appellant must place before the Court all vital evidence regarding the infringement or threatened infringement of breach of such right. That where as in instant case, there is no evidence or there are scanty evidence, the trial Court can dismiss such application as devoid of merit. He referred to Fajemirokun vs. CBCGL (Nig.) Ltd. (2002) 10 NWLR (114) 95 @ 112 to 113. He submitted that the onus is on the Appellants to place credible and material evidence which they have failed to do resulting in the dismissal of their case. He relied on Okoye vs. Center Point Merchant Bank Ltd. (supra) and Bob vs. Akpan (supra) to the effect that affidavit evidence is not sacrosanct or above evaluation by Court and therefore no Court would allow itself to be blinded to lies even in uncontradicted affidavit evidence. He furthered that conflict in affidavit evidence must be resolved and not glossed over since no Court is imbued with divine or magical powers to resolve conflicts in factual matters which can only be done by dispassionate and painstaking evaluation of the facts placed before the Court. He referred to
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G.M.O. Nworah & Sons Co. Ltd. Vs. Akputa (2010) ALL FWLR (pt. 524) 114 paras D – E. Counsel submitted that this case falls under a circumstance where calling oral evidence in resolving conflicts in an affidavit can be dispensed with in view of the facts placed before the Court which the learned trial Judge had dispassionately and painstakingly evaluated, ascribed probative value and made a finding of fact upon which the Appellants case was dismissed.
He reiterated that the affidavit evidence placed before the learned trial Judge was enough and the Court used same to find as a fact the circumstances of the said car coming to the premises of the 3rd Respondent. He relied on Afribank Nigeria Plc. Vs. Adigun (2009) ALL FWLR (pt. 476) 2009 @ 2026 to the effect that applications for enforcement of fundamental human rights are peculiar and special in nature such that it is usually decided on affidavit evidence and recourse are rarely had to oral evidence; and the burden is always on the applicant to establish his case by affidavit evidence and the annexed exhibits rather than calling oral evidence. Therefore, counsel submitted that the Appellant herein has
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failed to discharge this burden of proving how his wife’s car got to the premises of the 3rd Respondent and who drove the car since the 3rd Respondent is an artificial person. He relied on Ikedigwe vs. Fai (2011) ALL FWLR (pt.598) 845 @ 863 to submit that it is trite law that for oral evidence to avail a party, such party must not only establish an existence of such conflict in the affidavit evidence but must also show that the conflict is material and affects live issues in the case. He pointed out that the positive facts deposed to in the 3rd Respondent’s counter affidavit in paragraph 12, 13, 14, 15 and 16 were not denied by the Appellants even in the 1st Appellant’s Further Affidavit. He reproduced a portion of the judgment in the case of Ikpana vs. Regd. Trustees, P.C.N. (2006) ALL FWLR (pt. 310) 1703 @ 1725 to submit that failure of the Appellants to deny those averments vide their Further Affidavit preponderates the evidence of the 3rd Respondent over that of the Appellants. Furthering, the learned counsel submitted that the learned trial Judge found as a fact that between 11/10/2011 when the car was allegedly impounded, and up till 17/6/2012 when the
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application was filed, neither the 1st Appellant nor his wife nor the 2nd Appellant incidented the alleged unlawful seizure of the Toyota Camry car with any security agency.
Counsel argued that there was no evidence that same was reported to any law enforcement agency even though the trial Court did not unduly rely on that as posited by the Appellants. Counsel submitted that paragraph 13 of the 1st Appellant’s Further Affidavit cannot be true since neither the 1st Appellant’s wife, nor any of his children nor indeed any member of his family, deposed to an affidavit that he or she saw the 3rd Respondent or any of its staffers at the 1st Appellant’s premises taking away the 1st Appellant wife’s car. He called in aid Section 4 of the Police Act to submit that had the Appellants reported the alleged unlawful invasion of his premises and unlawful seizure of his wife’s car, the report would have been investigated by the police and would have assisted the Appellants’ case on the enforcement of their fundamental human right in no small measure. Counsel argued that to underscore the fact that the Appellants did not place vital evidence before the Court, it is
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noteworthy that the 1st Appellant never stated in their affidavit evidence the address or location of his premises which was allegedly invaded and his wife’s car taken away. The Appellant vaguely referred to his residence as a premises and the learned trial Judge found that as a fact. Counsel argued that the Appellants’ affidavit evidence in paragraphs 15 and 18 of their affidavit are inconsistent and contradictory as it is not probable that someone who had allegedly invaded the 1st Appellant’s premises and drove away his wife’s car, to also go ahead and report through the 3rd Respondent’s agent to the police that the 1st Appellant threatened the agents of the 3rd Respondent and locked the gate against them when they were on a mission to remove the car from the 1st Appellant’s premises. Counsel asked, if they were locked outside, how then were they able to invade the 1st Appellant’s premises and drive away his wife’s car as alleged. He submitted that the 3rd Respondent deposed in paragraph 7 of its counter affidavit that he neither knew the 2nd Respondent, nor was he a staffer of the 3rd Respondent; and vide paragraph 17, that it did not write any petition to
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the 2nd Respondent against the 1st Appellant, which accounts for why the 1st Appellant could not produce before the Court any petition.
He furthered that the 1st Appellant presented no evidence before the learned trial Judge to establish that the 2nd Respondent is a police officer, not even the force number was produced. Counsel argued that since the Appellants did not state the name of the agent of the 3rd Respondent that reported to the police, that that deposition is both vague and speculative. Counsel submitted that the Respondents are not after the 1st Appellant to arrest and detain him as rightly found as a fact by the learned trial Judge, otherwise, the 2nd Respondent would have arrested him when he reported to the 2nd Respondent as he deposed to in paragraph 18 and 19 of his affidavit. Finally, learned counsel submitted that he highlighted these facts to show that the affidavit evidence of the Appellants are mostly latent and replete with falsehood, incredible and improbable facts which no Court of justice can rely on in granting reliefs sought by the Appellants.
He urged us to hold that the learned trial Judge was right to have believed and
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relied on the credible and probable affidavit evidence of the 3rd Respondent and dismiss the Appellants application for failure to place material evidence before the Court.
The Appellant counsel vide their Reply Brief dated 7/11/2014 but filed 10/11/14 in reply submitted that Paragraph 3(e)(i) (ii) and (iv) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rule, 2009 has enabled the Appellants to institute the application for themselves and on behalf of the 1st Appellant’s wife as relief D on the Motion paper seeks an order directing the Respondents to release the car of the 1st Appellant seized by the 3rd Respondent.
Furthering, counsel argued that paragraph 20 of the affidavit in support of the application revealed the circumstances upon which the 1st Appellant wife’s car got to the premises of the 3rd Respondent which constitutes infringement of her fundamental human right. He submitted that the Appellants does not need to specifically state that they brought the application on behalf of the 1st Appellant’s wife. That it is enough once it is averred that facts showing that the wife’s fundamental right was breached. He relied on
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Ajilowura vs. Disu (2006) ALL FWLR (pt. 333) 1613 @ 1615 ratio 1 to submit that the circumstances of this case is akin to a representative suit that most times are deciphered from the pleaded facts. He relied on Ladejobi vs. Oguntayo (2004) 18 NWLR (pt.904) 149 @ 155 to submit that the Court ought not to shut out the 1st Appellant from prosecuting this action for his wife. He submitted that artificial persons act through human agents, servants and privies and that the 3rd Respondent was described as accompanied by hoodlums because the 1st Appellant did not know them. Furthering, he submitted that the Appellants right to report to law enforcement agents is discretionary and since the car is not missing, there was no need to report to any law enforcement agent. He replied that the address of the Appellants invaded by the 3rd Respondent is stated on the affidavit in support, statement setting out names and description of the Appellants, and Exhibit A1, A2, A3 and FBI. He argued that the cases of Okoye vs. Centre Point Merchant Bank Ltd. (supra) and Bob vs. Akpan (supra) were decided on grounds of service of Court processes and therefore inapplicable. He submitted
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that the argument of the 3rd Respondent to the effect that the 1st Appellant wife’s fundamental right was breached is an obiter dictum or a passing remark is grossly misconceived as the learned trial Judge made that finding on the evidence before him.
He furthered that the breach of the fundamental right of the 1st Appellant’s wife as found by the learned trial Judge cannot be an aberration in law since the action was brought in the interest of the Appellants and the 1st Appellant’s wife.
He submitted that the cases of C.P.V. vs. INEC (supra); AP vs. Adeniyi (supra) and Salami vs. Wema Bank Nig. Plc (supra) relied upon by the 3rd Respondent are not apposite and are cited in inadvertent misconception of law. He referred to paragraph 3, 4 and 5 of page 40 of the record to submit that the Appellants denied all the averments in the 3rd Respondent’s counter affidavit. He submitted that it is not in dispute that the 1st Appellant’s car is still in the premises of the 3rd Respondent who has the keys till date since it is not probable that the 1st Appellant would drive the car to the 3rd Respondent’s premises, hand over the keys to the staffers of the
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3rd Respondent to show his willingness to pay a loan that had already been secured with his title deeds. He urged us to resolve this appeal for the Appellants and set aside the judgment of the lower Court.
RESOLUTION OF ISSUE 1
There is no doubt that Fundamental Human Right enforcement procedure is sui generis and that informs why it is basically determined on affidavit evidence of parties. To that extent, paragraph 3 (e) (i) (ii) (iii) and (iv) provide that an applicant in human right litigation may include anyone acting in his own interest, anyone acting on behalf of another person, anyone acting as a member of or in the interest of a group or class of persons and anyone acting in public interest.
To be deciphered from these provisions is the fact that an applicant must disclose who he is and the capacity he is acting clearly to enable the Court know whether he is acting for himself or for another person.
Such disclosure will indeed help the Court to know how to couch the orders it may be disposed to make at the conclusion of hearing. See Order XI of the Fundamental Rights (Enforcement Procedure) Rules 2009. Further, Order 11 Rule 3 of
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the Fundamental Right (Enforcement Procedure) Rules 2009 provides as follows:
?An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made.?
The necessary implication of this provision is that an applicant who is acting for another person must include a description of the capacity he is acting which must necessarily include the fact that he is acting for the named person. The proper place to make such disclosure is in the statement. I have carefully considered the statement setting out names and description of the Applicant at page 3 of the Record of Appeal and it is clear that the Appellants did not disclose that they are also acting for the wife of the 1st Appellant. What can be garned from there is that the Appellants were acting for themselves. The only mention of the 1st Appellant’s wife is in paragraph 20 and 21 of the supporting affidavit and even at that her name was not disclosed therein. The 1st Appellant’s wife was in fact not
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before the lower Court.
On the other front, the power to raise issues suo motu by a Court is discretionary which must be exercised judiciously and judicially. See: Ofomata vs. Onwuzuligbo(2002) 8 NWLR (pt.769) 298 – 315; Solanke vs. Ajibola (1968) 1 ALL NLR and Anatogu vs. Anatogu (1998) 6 NWLR (pt. 552) 42 – 56.
However, the exercise of such discretion must not be done to the prejudice of an opposing party. In other words, a Court must not exercise its discretionary power to assist one party at the detriment of the other party. The Supreme Court had occasion to expatiate on this issue in the case of Victino Fixed Odds Limited vs. Joseph Ojo & Ors. (2010) 3 SCNJ 112 @ 122 paragraph 35, when it opined
thus:
?It is trite that a Court should not set up for the parties a case which is different from the one set up by the parties themselves in their pleadings and/or their evidence.?
See: Onyiah vs. Onyiah (1989) 1 NWLR (pt. 99) 514 and Ojo-Osagie vs. Adonri (1994) 6 NWLR (pt. 349) 131.
In any case, where a Court did not exercise its discretionary power to raise an issue suo motu, that cannot vitiate the
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proceedings. It would have been different if the Court’s discretionary power is activated or invoked by a party and the Court refused to exercise such discretion one way or the other. It will be unconscionable and utter disrespect for a counsel who failed to present the case of his client properly before the Court to turn around and blame the Court for not reminding him that he was not diligent in presenting his case. That, I think will amount to asking the Court to descend to the arena of conflict.
Beyond that, I have painstakingly dissected the judgment of the learned trial Judge as contained in pages 64 – 76 and I am unable to find where the learned trial Judge made a finding of fact that the right of 1st Appellant’s wife was breached by the Respondent. Unfortunately, the learned counsel for the Appellants only made a blanket conclusion that the learned trial Judge found as a fact that the 1st Appellant wife’s right was breached, but failed to specify where exactly in the judgment the learned trial Judge concluded so. That not been the case, the learned trial Judge could not have made any judgment in favour of the Appellants. To this extent, this issue
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is resolved for the Respondent.
RESOLUTION OF ISSUES 2 AND 3.
Although the enforcement of fundamental right procedure is sui generis, it is trite in law that for an applicant to succeed, he must place before the Court all vital evidence to establish the infringement or threatened infringement of breach of such right. Where an applicant fails to do so, his application must by that same token fail. See: Fajemirokun vs. CBCCL (Nig.) Ltd. (2002) 10 NWLR (pt.114) 95. I have held earlier on in this judgment that application for enforcement of fundamental human right is usually determined on affidavit evidence and the annexed exhibits. To that extent, the trial Judge will have to make a finding of fact on the affidavit evidence of parties and thereafter form an opinion. It is facts that are deposed to in affidavit not law. Therefore affidavit evidence is not sacrosanct. It must be evaluated by the learned trial Judge; as much as facts presented through oral evidence of parties are evaluated. See: Olawuyi vs. Adeyemi (1990) 4 NWLR (pt. 147) 746 @ 775; Mbonu vs. Nwoti (1991) 7 NWLR (pt.200) 737 @ 745; Okolo vs. UBN Ltd. (1998) 2 NWLR (pt.539) 618 @ 657 and
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Ejibagbe vs. Ejibagbe (1996) 1 NWLR (pt. 425) 408 @ 418. In Okolo vs. U.B.N. Ltd. (supra), this Court put the issue, thus:
?It is certainty the law that the trial Judge is obliged to evaluate evidence tendered at the trial, such evaluation would involve both oral and documentary evidence tendered.?
Nevertheless, where there are irreconcilable conflicts in affidavit evidence, the Court is required to take oral evidence to resolve the conflict. In the case of Mark vs. Eke (1997) 1 NWLR (pt. 529) 501 @ 522, this Court opined thus:
?It is trite law that where facts deposed to in an affidavit and counter affidavit are irreconcilably in conflict, it is mandatory that to resolve the issue, the trial Judge must take oral evidence.?
See: Olu-Ibukun vs. Olu-Ibukun (1974) 2 SC 41; Joseph Falobi vs. Elizabeth Falobi (1976) 9 & 10 SC 1; Bob Manuel vs. Briggs (1995) 7 NWLR (pt.409) 537 and Re: Otuedon (1995) 4 NWLR (pt. 392) 655, S.C.
?It is pertinent to point out that the conflict must be irreconcilable in the affidavit and counter affidavit, from the standpoint of the learned trial Judge and not counsel, before recourse
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to oral evidence would be necessary. In other words, where the learned trial Judge can resolve the conflict in the affidavit evidence, there would be no need for oral evidence. It is worthy of note that there will always be conflict in affidavit and counter affidavit, otherwise the parties will not come to Court in the first place. Therefore, recourse to oral evidence must only be had when the trial Judge finds that he cannot resolve the conflict on the affidavit and counter affidavit.
In the instant case, the learned trial Judge had no issue in resolving the conflict in the affidavit and counter affidavit; hence he did not call for oral evidence. He competently resolved the conflict during evaluation of the affidavit evidence of parties. Since evaluation of evidence is primarily the duty of the trial Judge, this Court does not usually interfere with his findings unless where it is shown to be perverse.
In the case of Mbonu vs. Nwoti (supra) it was held thus:
?It is within the province of a trial Court to evaluate and make findings of fact. Once this duty is properly performed, it take the burden off an Appellate Court to make its own
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evaluation and findings.”
In the same vein, in the case of Awoyoolu vs. Aro (2001) 21 WRN 41 @ 48, it was held, thus:
“The Defendants/Appellants have failed to show why this Court must interfere with the findings of fact and the conclusion reached on the evidence by the Court of trial. It is not for me to say in this Court that the Court of trial was wrong to have believed the evidence of the Plaintiffs while disbelieving that of the Defendants. That is entirely a matter within the competence of the Court of trial.?
In the course of evaluating the evidence of parties, the learned trial Judge ruminated from page 74 paragraph 4 of the Record of Appeal to page 9 of the supplementary record as follows:
?It is now settled law that for an allegation of an infringement of Fundamental Right to succeed, the applicant must place before the Court all vital evidence regarding the infringement or threatened infringement of breach of such right. Where that has not been done or where put in by the applicant as in the instant case, the trial Court can strike out such application for been devoid of merit See:
Fajemirokun vs. CB(CL) Nig. Ltd.
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(2M2) 10 NWLR (pt 774) P.95 @ 112-113. The onus is on the applicants in the instant case to show that it is the bank that set the law in motion against them. This, the applicant have failed to show. Let me say that when one looks at the affidavit in support of this application and the counter affidavit some fact are obvious. For example the Camry Car that was allegedly impounded by the 3rd Respondent belonged to the wife of the 1st Applicant Secondly, from the affidavit in support, there was no report of the alleged seizure of the Camry Car by the 1st Applicant?s wife to the law enforcement agent or the 3rd Respondent that the car impounded does not belong to the applicants. Furthermore, there was no arrest or threat of arrest or detention by the 1st and 2nd Respondents to warrant the fear being entertained by the Applicants. Thirdly the residential address of the 1st Applicant said to be invaded was not stated.
The 3rd Respondent denied knowing the 2nd Respondent and alleged that it never made any complaint against any of the Applicants to the 1st Respondent. Equally denied by the 3rd Respondent was the allegation of entering into the
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premises of the Applicants with hoodlums and driving away the Camry Car with Registration No. AT 889 AKR belonging to the 1st Applicant’s wife. The 2nd Respondent however explained the circumstances of the said Toyota Camry Car coming into its premises in paragraph 14, 15, 16 and 17 of the counter affidavit which paragraphs had earlier been produced in the course of this judgment. It was alleged by the 3rd Respondent that the 1st Applicant drove the said Toyota Camry car to its premises on 11/01/2011 to show the willingness of the Applicants to repay the credit facility within 2 weeks therefrom and carry the said Toyota Camry car from the premises of the bank. Between 11/01/201 when the car was allegedly impounded and up till 12/6/2012 when this application was filed, neither the 1st Applicant nor the wife of the 1st Applicant or 2nd Applicant made any report to the police for alleged unlawful seizure of the said Toyota car.
From the facts presented, I find that the attitude of the Applicants in consistent with the explanation of the 3rd Respondent as contained in paragraphs 14 and 15 of the counter affidavit as opposed to the case of invasion and
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impounding of the car put up by the Applicants. Besides, if there was any breach of any fundamental right it is the right of the 1st Applicant?s wife that has been breached and not that of the Applicants. Incidentally, the 1st Applicant?s wife is not before me to warrant any judgment in her favour.
In the light of the foregoing, this application is without merit and is accordingly dismissed.?
I took time to reproduce the above in extenso for ease of appreciation of the fact that the learned trial Judge did evaluate all the pieces of affidavit evidence of respective parties, made a finding of facts thereon and reached a conclusion. It is difficult to fault the above evaluation and the conclusion reached therein by the learned trial Judge. He made use of the evidence presented before him. In the case of Ibrahim vs. Shagari (1983) ALL NLR 507, the Supreme Court, per Nnamani, JSC put the issue poignantly, thus:
“Although it seems fairly obuious, it needs emphasis that Courts of law can only decide issues in controversy between parties on the basis of the evidence before them. It would be in invidious if it were
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otherwise.?
On the strength of the above authorities and the rationale behind them, I am constrained to and I so hold that these issues are also resolved against the Appellants.
Having resolved the three issues in this appeal against the Appellants, this appeal fails for lacking in merit and is hereby dismissed. Therefore, the judgment of Hon. Justice A. O. Odusola of Ondo State High Court, sitting at Akure Judicial Division in Suit No. AK/56M/2012, delivered on 4th day of March, 2013 is hereby affirmed. I make no order as to cost.
Other Citations: (2016)LCN/8840(CA)
