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Uncontradicted or uncontroverted affidavit evidence is deemed admitted (3)

By Editor
27 July 2015   |   11:00 pm
PARAGRAPHS 26 to 30 of the affidavit contains details of how 3rd Respondent subsequently handed him over to his subordinate officers to be thoroughly humiliated and detained. He was also assaulted and thoroughly subjected to pejorative verbiage.
The Chief Justice of Nigeria, Justice Mahmud Muhammed

The Chief Justice of Nigeria, Justice Mahmud Muhammed

IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON THURSDAY THE 14th DAY OF MAY, 2015 BEFORE THEIR LORDSHIPS: SIDI DAUDA BAGE JUSTICE, COURT OF APPEAL SAMUEL CHUKWUDUMEBI OSEJI JUSTICE, COURT OF APPEAL JAMILU YAMMAMA TUKUR JUSTICE, COURT OF APPEAL APPEALNO: CA/L/843/2005 BETWEEN MAC O. EZE, ESQ AND THE INSPECTOR GENERAL OF POLICE LAGOS STATE COMMISSIONER OF POLICE MR. SHODIPO, CHIEF SUPT. OF POLICE MR. LINUS IKE RESPONDENTS (Trading Under the Name & Style Lincoln Star Pharmacy and Supermarket) THE ATTONEY GENERAL OF THE FEDERATION

PARAGRAPHS 26 to 30 of the affidavit contains details of how 3rd Respondent subsequently handed him over to his subordinate officers to be thoroughly humiliated and detained. He was also assaulted and thoroughly subjected to pejorative verbiage.

It must be noted that at this point in time no investigation have been shown to been conducted on the petition written by the 4th Respondent alleging attempted murder against the Appellant with whom he was having a running battle over a premises.

The Respondents did not file any counter affidavit to challenge or controvert the allegations of the fact depositions in an affidavit in the absence of any counter affidavit challenging same are deemed to be admitted as true and established. See FALANA vs. BELLO (1995) 9 NWLR (PT. 418) 182; PHLILPS vs. OWOLABI (2003) FWLR (PT. 148) 1364 AT 1377; AGBAJE vs. IBRU SEAFOOD LTD (1972) 5 SC 50. BUHARI vs. OBANJO (2004) 144 LRCN 2723. FBN PLC vs. TSOKWA (2000) 13 NWLR (PT 685) 521.

I am also not unaware of the law that if an affidavit is self contradictory or if the facts contained therein are not sufficient to sustain the prayers of the Applicant, it would be needless for the Respondent to file a counter affidavit to refute them. See RE AN & AWANI TEXTILE MILLS LTD (1992) 3 NWLR (PT.221) Page 1 and also the case of EJIOFOR vs. OKEKE (Supra) referred to by the lower court.

I am however minded to hold the view that the Appellant’s affidavit is neither self contradictory nor lacked sufficient facts to justify its being ignored or undermined by the Respondents.

There are serious allegations of wrongful arrest, assault harassment and intimidation by the 3rd Respondent and his subordinates which acts are totally outside the purview or protection of Section 4 of the Police Act which gives the Police power to apprehend and investigate but not power to assault and harass or intimidated any citizen of this country talk more of a legal practitioner.

The Appellants depositions in his affidavit show that the 1st to 3rd Respondents acted in excess of their statutory mandate and it behoves them to challenge or controvert that fact in their counter affidavit but in this case no such thing was done. The end result therefore is to conclude that the facts contained in the affidavit are true, correct and deemed admitted.

What is more, facts are deposed to in the affidavit that sequel to the arrest on 19th July, 2004 based on the petition the Appellant was arrested but admitted to bail on self recognizance that same 19th July 2004, he was then asked to report to the police on the 21st , 23rd and 26th July 2004 and this he kept to religiously only to be confronted with a warrant of arrest at the same Panti Police Headquarters by the 3rd Respondent when he went to report on the 26th July 2004 and the reason for the arrest warrant was that the jumped the bail earlier granted on the 19th July 2004.

He saw this as a malicious and dubious conspiracy by the 4th Respondent and the 3rd Respondent to keep him out of circulation and deny him the chance to attend the rent tribunal where he had a matter coming up the next day on the 27th between him and the 4th Respondent. This fact was also not denied by the Respondents and is accordingly deemed to be true and correct.

Contrary to the submission of the learned counsel for the 1st and 5th as well as 4th Respondents the action of the 1st to 3rd Respondents did not fall within any of the exceptions listed in Section 35 (i)(a-f) given the unchallenged affidavit evidence of the Appellant which the Respondents have every opportunity to contest or contradict but failed to do so in the lower court.

I also believe that if the lower court had carefully adverted its mind to all the paragraphs of the Appellant’s affidavit particularly paragraphs 14 to 37 and 43 set out earlier in this judgment; it would have seen the issue in a different light.

The acts of the 1st -3rd Respondents went beyond the scope permitted by Section 4 of the Police Act and outside the expectation allowed by Section 35(i)(a-f) of the 1999 Constitution. Accordingly, I find that they acted in breached of the Appellant’s fundamental human right as guaranteed under Section 34(i) and 35(i) of the 1999 Constitution.

I however agree with the finding of the lower court that the Appellant cannot presently sustain the action for the breach of Fundamental Rights against the 4th Respondent.

However, not because there is a pending civil action between him and the Appellant as held by the lower court but because having laid a complaint to the Police by way of a petition regarding a threat to his life, he does not have control over how the police will perform their duty as prescribed by the laws and there is no evidence that he led or gave the police directions as to what they are supposed to do. That notwithstanding issue 1and 4 are hereby resolved in favour of the Appellant.

ISSUE TWO Herein, the Appellant was of the stance that he has the constitutional and legal right of action which can be exercised against any person, government or authority whom the Applicant/Appellant has complaints against and touching on his civil rights and obligations.

Regarding the 4th Respondent, he submitted that an action for infringement of Fundamental Rights is enforceable between two private citizens and also by an individual against a group, government, person or authority. He cited the case of CLETUS MADU VS NEBO (2001) FWLR (PT 52) 2247 and ONWU VS UKO (1996) 5 NWLR (PT 456) 584 at 603.

He added that, since the “fons et Origo” of the Appellant’s complaint against the 4th Respondent using the facilities of the Nigerian Police Force unlawfully against him, an action for the infringement of his fundamental rights can successfully be sustained against him.

It was further submitted that the manner by which the learned trial judge arrived at the conclusion that the uncontroverted and unchallenged affidavit and documentary evidence adduced by the Appellant cannot possibly sustain the action against the Respondents is shrouded in misery and based on mere speculations and conjuncture which cannot take the place of legal proof.

He added that the learned trial judge failed to state any reason for holding that the Appellant cannot sustain the action for the infringement of his Fundamental Rights and as such acted wrongly as held in AGBAELO VS UNION BANK OF NIGERIA PLC (2000) FWLR (PT 13) 2197 at 2210.

In the light above, the answer is in the affirmative to the effect that action for Enforcement of Fundamental Rights as guaranteed under chapter 4 of the constitution 1999 are sustainable and enforceable against the Government, Agencies and private individuals as the circumstances of each case demands.

In the final result I find that the 1st to 3rd Respondents violated the Rights of the Appellant and any violation of a citizen’s guaranteed Fundamental Right is bound to attract penalty under the law.

I therefore hold that this appeal succeeds in part as against the 1st to 3rd Respondents. The 1st to 3rd Respondents shall pay to the Appellant the sum of N1, 500,000 (one Million, five hundred thousand Naira) as the damages for infringement of the Appellant’s Fundamental Rights. Accordingly, except as pertaining the 1st to 3rd Respondents the Ruling of the lower court is hereby affirmed. Parties to bear the costs.

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