Chief Ita Okon Aqua V. Etubom I. E. Archibong & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court sitting at Calabar, contained in the judgment delivered on the 28/4/09 in Suit No. FHC/CA/CS/1/2007. The Respondent herein, had commenced the suit against the Appellant and the 2nd & 3rd Respondents under the Fundamental Rights Enforcement Rules and claimed exemplary damages for their violation of his fundamental right to personal liberty.

The Federal High Court, after a consideration of the affidavit evidence placed before it by the parties to the action, entered judgment in favour of the 1st Respondent against all the Respondents therein and the Appellant being dissatisfied therewith, filed this appeal vide a notice of appeal on the 8/6/2009.

With the leave of the court granted on the 1/3/2010, the notice of appeal was amended in terms of the Amended Notice and Grounds of Appeal filed on the 17/2/2010. Consequently, the Appellants brief filed on the 15/9/2009 was amended vide the Amended Appellant’s Brief, filed on the 2/3/2010 which was adopted by the learned counsel for the Appellant at the oral hearing of the appeal on the 12/3/2012. We were urged to allow the appeal and set aside the decision of the Federal High Court for the reasons set out therein by the learned counsel.

The 1st Respondent’s brief filed on the 15/10/09 was adopted by Mr. Eno T. Offong, Esq., learned counsel who settled it at the hearing while the 2nd and 3rd Respondents brief filed on the 4/6/2010 but deemed on 2/2/2012, was adopted by the Director Civil Litigation, (DCL), Ministry of Justice, Cross River State; Mr. Ikoi E. Ikono, who appeared for the 2nd & 3rd Respondents at the hearing. The learned counsel for the 1st Respondent had urged the court to dismiss the appeal and affirm the decision by the Federal High court while the learned DCL – for the 2nd & 3rd Respondent said he had nothing to urge the court against allowing the appeal and setting aside the decision of the Federal High Court.

From the four (4) grounds contained on the Appellant’s notice of appeal, a single issue was raised by the learned counsel for the Appellant for determination in the appeal. It is at page 2 of the Appellant’s brief and as follows:-

Whether on the affidavit evidence adduced the lower court was right to hold the appellant liable for the alleged violation of the 1st respondent’s fundamental right to liberty.

The issue was adopted for the 2nd & 3rd Respondents while the learned counsel for the 1st Respondent had put it in a general form thus:-

“Whether in view of the evidence on record the learned Trial Judge was right to enter judgment in favour of the 1st Respondent.”

Bearing in mind that the appeal is by the Appellant alone and against the decision of the Federal High Court as it affect him specifically, the issue framed by the learned counsel for the Appellant, Mr. Essien Andrew, Esq., is more precise and apt for the determination of the appeal. I intend therefore, to use the Appellant’s issue in the determination of the appeal since it has been fully addressed by the learned counsel for the 1st Respondent in his brief.

The Appellant’s submission on the issue are that the allegation of the breach of his right by the 1st Respondent as it concerns him was based on the ground stated in paragraph 2 of the statement of the grounds for the reliefs sought. That the Appellant had specifically and directly denied the allegation in paragraphs 3 and 4 of his counter affidavit and had set up an alibi in further counter affidavit which was not controverted by the 1st Respondent. It was the further argument of the learned counsel for the Appellant that the burden was on the 1st Respondent to adduce evidence to prove assault against the Appellant but did not do so apart from his ipse dixit. The case of FAJEMIROKUN v. COMMERCIAL BANK (NIG) LTD. (2009) ALL FWLR (487) 1 at 18-19, was cited on the point and it was submitted that the Federal High Court had wrongly shifted the burden to the Appellant when the 1st Respondent did not prove the assault he alleged against him. For instance, it was contended that though the 1st Respondent had alleged that the assault was witnessed by several people, none of them was called to corroborate the affidavit evidence of the 1st Respondent which was contradicted by the Appellant’s evidence. In the circumstances, it was the submission of counsel that the Federal High Court was bound to give reasons why it preferred one version to the other, relying on AFRIBANK (NIG) PLC v. ADIGUN (2009) ALL FWLR (249) 2009 at 2026 – 7. According to him, the only documentary evidence produced by the 1st Respondent was a letter written by his Solicitor on the 25/2/2005 which gave a different version of the incident said to have happened on the 24/2/2005 and which alleged that the Appellant masterminded it. He said that in the grounds in support of reliefs, the 1st Respondent had alleged the Appellant had dragged him out of his car but in the letter by the Solicitor, the allegation was that the Appellant master minded the assault on the 1st Respondent. In further argument, learned counsel said the letter had discredited the 1st Respondent’s case that the Appellant physically assaulted him, on the authority of CONSOLIDATED BREWERIES v. AISOWIEREN (2002) FWLR (116) 959 at 987-8 and that the Appellant was bound by the grounds set out in the affidavit for the reliefs he sought outside which he could not go in arguing his application. The case of OYAWALE v. SHEHU (1995) 8 NWLR (414) 484 at 494 – 5 was relied on for the submission and it was submitted that it was not enough for the 1st Respondent to simply say that the Appellant master minded the assault without stating how he did so. It was pointed out that though 1st Respondent had stated in ground 5 of the grounds for the relief sought that his arrest was in connection with a case of trespass he did not say that it was the Appellant that lodged the complaint in the case so as to set the law in motion for the arrest. Also that even if the Appellant had made the complaint for trespass to the police, that fact alone was not enough to make him liable for the arrest and detention of the 1st respondent by the police, relying on the cases of IGALI v. LAWSON (2005) ALL FWLR (262) 565 at 580 and ISHENO v JULIUS BERGER (NIG) LTD. (2008) ALL FWLR (415) 1630 at 1643, among others. It was finally argued that the 1st Respondent had acknowledged in the grounds for the reliefs that his arrest was on the orders of the 2nd Respondent as opposed to being instigated by the Appellant who cannot therefore be liable for the arrest and detention. We were urged to allow the appeal and reverse the decision of the Federal High Court.

For the 1st Respondent, after setting out paragraphs 3, 4 and 6 of the further affidavit of the 1st Respondent, it was submitted that the letter by the Solicitor attached thereto as Exhibit ‘A’, showed a complaint to the 2nd Respondent about the arrest, humiliation and bullying carried out by men of the 2nd Respondent which were master minded by the Appellant. It was the case of the 1st Respondent that the evidence linking the Appellant to the scene of the arrest of the 1st Respondent was very consistent and that the Appellant had filed “two affidavits which did not conform with each other as to content” and so remain in conflict. Relying on the case of PANACHE COMM. LTD. v IKOMU (1994) 2 NWLR (327) 420, learned counsel for the 1st Respondent had said both affidavits should be disregarded and ignored. Furthermore, he said Exhibit ‘A’ did not contradict the statement of the 1st Respondent but rather strengthened his position because it did not remove the Appellant from the scene of the 1st Respondent’s arrest and it constituted admissible evidence entitled to be given weight. According to counsel, the cases of ISHENO v. JULIUS BERGER (NIG) LTD. and EKANEM v EBONG (2008) ALL FWLR (425) 1176 cited by the learned counsel for the Appellant are different because, here the case involved the full personal participation of the Appellant in helping the 3rd Respondent drag the 1st Respondent out of his car, pushed down and slapping him on the orders of the 2nd. It was his submission that where a person maliciously makes a report against another and causes his arrest, he will be liable even though he may not technically have been the investigator or prosecutor in the strict sense, placing reliance on the case of BALOGUN v. AMUBIKAHUN (1989) 3 NWLR (107) 18. In addition, he said the standard of proof was on the balance of probabilities which the 1st Respondent had established by showing that Appellant in company of the 3rd Respondent had infracted his right to personal liberty and the Federal High Court was right to so find. We were urged by him to dismiss the appeal.

The submissions for the 2nd & 3rd Respondents on the issue are to the same effect as those made by the learned counsel for the Appellant i.e. that there were contradictions in the statement of the 1st Respondent on the grounds for the relief and the letter by his Solicitor which was marked Exhibit ‘A’ to his further affidavit. Also that the 1st Respondent did not prove the violation of his personal liberty by the Appellant and the 2nd and 3rd Respondents and so the Federal High Court was wrong to have granted the reliefs sought by the 1st Respondent. The case of MOMAH v. VAT. PET. INC. (1996) 7 NWLR (458) 100 at 108 on the effect of contradiction in affidavit evidence was cited and we were invited to invoke the provisions of Section 149 (d) of the Evidence Act against the 1st Respondent for failure to call any witness who was present when he was allegedly assaulted. It was submitted that even if the 1st Respondent was arrested, the arrest was justified by the provisions of Section 35 (1) (c) of the Constitution.

As a foundation, every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the constitution itself or a law made pursuant thereto. Section 35 (1) of the 1999 Constitution (as altered) has made the following provisions on the personal liberty of a Nigerian:-