Law  

Uncontradicted or uncontroverted affidavit evidence is deemed admitted (2)

Mohammed

Mahmud Mohammed

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 ATTORNEY GENERAL OF THE FEDERATION

He added that any legislative enactment which seeks to deprive the citizen of his rights, be they personal or proprietary rights must be interpreted “fortissimo contra proferentes”, i.e. strict construction that leans in favour of the person whose rights are being deprived against the person relying on the power of deprivation and against that of the law maker. He cited the following ease; (BENDEX ENGINEERING CORPORATION vs. EFFICIENT PETROLEUM 9 NIG) LTD (2001) FWLR (PTM 470 1188;

It was also argued the if the Respondents were to rely on the provision of Section 4 of the Police Act as alleged in the Ruling of the Lower Court, then the protection accorded the Nigeria Police being a statutory defence, ought to be clearly pleaded by them or them lower court ought to have invited them to address it on the said Section 4 of the Police Act.

He added that since there is unchallenged and uncontroverted affidavit and documentary evidence adduced by the Appellant at the hearing of the officers oppressively, maliciously and unreasonably dealt with him, the application as regards how the Nigeria Police actions of the said Nigeria Police ought to have been held to be unlawful, unconstitutional, null and void and an infringement of the Appellant’s Fundamental Rights.

Responding on this issue, learned counsel for the 1st and 5th Respondents referred to Chapter 4 of the 1999 Constitution to argue that as sacrosanct as it appears, it is not without limitations or restrictions having provided for some derogations from those rights in certain instances such as found in section 35(i)(a) and (c) of the said Constitution which provision show that the right to personal liberty is not absolute and may be interfered with in pursuance of a court order or where it is necessary to prevent future commission of crime.

It was then submitted that from the facts of the instant case, it is clear that the Fundamental right of the Appellant was interfered with in accordance and strictly with the procedure as provided by law. Learned counsel also referred to Section 35(i) (c) of the 1999 Constitution and Section4 of the Police Act to submit that the words used in the provisions are clear and unambiguous and as such should be given their natural and ordinary meaning. Vide AMADI vs. NNPC (2000) 10 NWLR (PT. 674) 763; BAMAIYI vs. FEDERATION (2001) 38 WRN 1; OGBONNA vs. A.G IMO STATE (1992) 1 NWRL (PT. 220) 647.

He added that it is not in dispute that there was an allegation of attempted murder levied against the Appellant and it is therefore incumbent on the police to investigate such serious allegation and also prevent its commission. Thus the Appellant was therefore arrested and detained by the Police in the course of carrying out its duties as provided under Section 4 of the Police Act which is a substantive and existing Law in Nigeria and need not be pleaded as the courts are bound to take judicial notice of it.

The Appellant filed a reply brief which exhaustive submissions therein constitute virtual re argument of the Appeal. I will however for what it is worth refers to the relevant portions therein as the need arises.

He added that a court is bound to accept the uncontroverted and unchallenged evidence adduced by the Appellant in this suit in so far they were not notoriously false to the knowledge of the trial court and issues were properly canvassed by the Appellant. Vide OBULOR vs. OBOR (2001) FWLR (PT.47) 1004.

The Appellant further submitted that the lower court was in error holding that the uncontroverted and unchallenged affidavit and documentary evidence adduced by the Appellant herein was contradictory without any attempt as showing how they were conflicting and/or insufficient. Also that failed to adduce any evidence or challenge the evidence and issue canvassed by the Appellant, they are deemed to have admitted same and not having anything to canvass to the contrary.

For the 1st and 5th Respondent, it was submitted in their issue 3 that generally speaking where the contents of an affidavit remains unchallenging and uncontradicted by a counter affidavit, they are in most cases deemed on be admitted and accepted as true correct. On the other hand, the courts have held that where the content of an affidavit are glaringly false, inconsistent or insufficient, the court is not bound to accept the facts. He cited the case of EJIOFOR vs. OKEKE (2000) 7 WRN 365 and OKREOCHA vs. MINISTRY OF COMMERCE & TOURISM (2000) FWLR (PT. 25) 1729 at 1734.

It was therefore contended that the averment in the Appellant affidavit being porous and unreliable provides a fertile ground for the impeccable decision of the lower court.

The reply by the 4th Respondent is similar to that of the 1st and 5th Respondent. He added however that the depositions in the Appellant’s affidavit are unsubstantiated and no documentary evidence was attached to it to prove or buttress the facts, such as the warrant of arrest, the affidavit used in obtaining it and other documents to support the allegation.

Therefore, in the absence of such credible support, the depositions become suspicious, speculative and unreliable. Thus the learned trial judge was right to hold that even though there was no counter affidavit, the contents of the affidavit in support are not sufficient to sustain the prayers in the application for enforcement of the Appellant Fundamental Human Right.

I will consider the Appellant’s issue I and 4 together as they are interrelated. The affidavit in support of the application for the enforcement of his Fundamental Right as well as the statement in support constitutes the Appellant’s evidence at the lower court. The reliefs sought by the Appellant are also reflective of the above stated scenario.

The Respondent did not file any counter affidavit in response to the challenge or controvert the facts deposed to in the Appellant’s affidavit neither were they present at the hearing of the application to at least respond even on ground of law.

On the 27th October 2004 after confirming that the Respondents were served with the Motion on Notice and hearing Notice for that day, the Appellant proceeded to move and argue his application. In a Ruling delivered by the lower court on 29th November the Appellant’s application was dismissed.
What I can glean from the above Ruling is that the 1st, 2nd and 3rd Respondents were exonerated from any liability relating to the breach of the Appellants Fundamental Rights because their action was covered by Section 4 of the Police Act. Where the Police properly acts in the exercise of the power under Section 4 of the Police Act, an arrest made therein cannot constitute a reach of Fundamental Right.

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