➥ CASE SUMMARY OF:
C.O.P Benue State Command & Ors. v. Donald Iorsue Doolor (2020) – CA
by PipAr Chima
Court of Appeal – CA/MK/182/2017
➥ JUDGEMENT DELIVERED ON:
Monday, July 13, 2020
➥ AREA(S) OF LAW
Contradiction in affidavit;
Computer generated evidence;
➥ NOTABLE DICTA
⦿ COUNSEL MUST SEEK TO ARGUE PRELIMINARY OBJECTION FIRST
It was after appellants’ counsel had argued his appeal that respondent’s counsel argued his preliminary objection. Where respondent gives notice of preliminary objection to an appeal and incorporates argument thereon in his brief of argument, he is required to seek leave of Court to argue the objection before appellant’s counsel adopts his brief of argument. Where he fails to do so and allows appellant’s counsel to adopt his brief of argument first, it will be taken as an abandonment of the preliminary objection. – Ekanem JCA.
⦿ FIAT NOT NEEDED FROM ATTORNEY GENERAL TO REPRESENT THE POLICE
Agada Elachi, Esq., a private legal practitioner, does not require the fiat of the Attorney – General of the Federation to represent the appellants since the Nigerian Police Force is a corporate entity which can sue and be sued either directly or its officers can be sued for their conduct in the course of the discharge of their official functions. Thus the Force can retain the services of a private counsel to represent it in Court. Once Agada Elachi, Esq., signed the notice of appeal and other processes as counsel for the appellants and announced his appearance as such, the Court must assume that he has the authority of his client for the conduct of the case. – Ekanem JCA.
⦿ COURT CANNOT QUESTION COUNSEL ON INSTRUCTION TO ACT FOR CLIENT
Again, a Court lacks jurisdiction to look into whether or not a counsel has instruction or briefing of his client to appear in Court. See State V Mathew (2018) 9 NWLR (Pt. 1625) 399, 412. It is only the party that is being represented by counsel that can question the representation. – Ekanem JCA.
⦿ GROUND AGAINST WRONGFUL ADMISSION OF EVIDENCE NEED NO LEAVE
A ground of appeal against wrongful admission of evidence or wrongful reliance on it in a final appeal is proper and arises from the judgment. It requires no leave of Court to raise it. – Ekanem JCA.
⦿ GROUND OF APPEAL CANNOT ATTACK OBITER DICTUM
A ground of appeal must arise from the judgment appealed against and must be an attack on a ratio decidendi of the judgment and not an obiter dictum. – Ekanem JCA.
⦿ TO TENDER COMPUTER GENERATED EVIDENCE, SUCH MUST COMPLY WITH SECTION 84(2)
It has been established firmly that a computer – generated document can only be admitted in evidence upon compliance with the requirements of Section 84 of the Evidence Act, 2011. Thus a party that seeks to tender in evidence such a document must lead evidence to satisfy the requirements of Section 84 (2). See Kubor V Dickson (2013) 4 NWLR (Pt. 1345) 534 and Omisore V Aregbesola (2015) NWLR (Pt. 1482). – Ekanem JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Joseph Eyo Ekanem, J.C.A.
⦿ FOR THE APPELLANT
Dr Agada Elachi
⦿ FOR THE RESPONDENT
S.M. Anongo, Esq.
T. Menger, Esq.
➥ CASE HISTORY
The respondent, a student of the Benue State University, Makurdi, was an ad-hoc staff of the Independent National Electoral Commission for the May 2015 general elections. After the elections, he was paid his allowance for his work. On his way back from the office of INEC after payment of the allowance, he was severely assaulted by the 3rd and 4th respondents who manned a police check point between Buruku and Yandev junction in Gboko Local Government (Benue State).
The 3rd and 4th respondents slapped him, kicked him on his sheens, (sic: shins) flogged him with a whip and used the butt of an AK47 rifle to hit him on the head. Respondent, as a result, sustained injuries on his body and head which required stitching. He was arrested and taken to the police station in Buruku but was later on taken to two hospitals where he was treated. The case presented by the respondent stood uncontroverted as the learned Judge of the lower Court struck out all the paragraphs of the counter – affidavit of the 1st appellant for infraction of Section 115 of the Evidence Act, 2011.
This appeal is against the judgment of the Federal High Court sitting in Makurdi (the lower Court) delivered on 7/2/2017 in suit No. FHC/MKD/CS/94/2015. In the judgment, the lower Court (coram: Hassan Dikko, J) granted the application of the respondent (as applicant) for the enforcement of his fundamental rights against the appellants (as respondents). The lower Court awarded the sum of N500,000:00 in favour of the respondent against the appellants for the breach of the respondent’s fundamental rights.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, with N100,000 cost against the Appellant]
I. Whether [or not] the learned trial Judge could rely on computer – generated evidence which did not comply with Section 84 of the Evidence Act 2011?
RULING: IN RESPONDENT’S FAVOUR.
A. The contention of appellants’ counsel under this issue is predicated on the assumption, inter alia, that the documents the subject of his query were tendered and admitted in evidence without compliance with Section 84(2) of the Evidence Act, 2011. This, in my view, is fallacious. The documents were attached to the respondent’s affidavit in support of his application for the enforcement of his fundamental rights. They were part of the affidavit and the idea of tendering them in evidence and their admission did not arise.
B. In any event the decision of the learned trial Judge was not fundamentally based on the documents. His lordship found as follows at page 53 of the record of appeal: “I scrutinized the averments in support and found paragraphs 8, 9, 10, 11, 12, and 13 as evidence of torture meted on the Applicant by the 3rd and 4th Respondents, by slapping him on face, kicking with service boots and rifle butt, resulting to injuries, the evidence is further substantiated by Applicant’s photographs in exhibits “1A”, “1B” “1C” and “1D” depicting injuries sustained, there is also evidence of medical treatment in exhibits “2” and “3”.
It is clear from the foregoing that the trial Court found that the respondent was assaulted based on the deposition in paragraphs 8, 9, 10, 11, 12 and 13 of the affidavit of the respondent. The photographs the subject of the complaint by appellants served only to “further substantiate” the finding of the trial Court. Therefore without the photographs, the trial Court would still have arrived at the same finding.
II. Whether [or not] in the light of the radical conflicts of the parties’ affidavits, the learned trial Court could proceed to resolve the case without calling oral evidence?
RULING: IN RESPONDENT’S FAVOUR.
A. It is necessary to state that what the law says is that where affidavit evidence filed by opposite parties is in conflict in terms of crucial or material facts, oral evidence is to be called to resolve the conflict except there is documentary evidence that can be used to resolve the conflict. This position of the law does not apply where the conflict arises from the affidavit or affidavits filed by one party only. In such a case the need to call oral evidence to resolve the conflict does not arise. Rather the Court is enjoined, where there is no explanation, to reject the entire evidence of the party as it cannot pick and choose which of the conflicting versions to follow. The rider is that the conflict must be crucial or material and not inconsequential. See Arjay Limited V Airline Management Support Limited (2003) 108 LRCN 1173, 1197, 1216, and Zakirai V Muhammad (2017) 17 NWLR (Pt. 1594) 181, 243.
B. Since the alleged conflict, on one hand, arose from the affidavits filed by the respondent, the need to call oral evidence did not arise. The question then is, should the lower Court have rejected the evidence of the respondent on account of the said internal conflict? My answer is “No”. It is my view that the acclaimed conflict is not material. For conflict of affidavit evidence to receive the Court’s attention, the conflict must affect the live issues, it must be tangible, material and fundamental and not merely cosmetic or peripheral.
C. The effect of the foregoing is that there was no deposition in the counter – affidavit of the 1st appellant to controvert the facts deposed to in the affidavits in support of the respondent’s application to enforce his fundamental right. The law is that facts in the affidavit of a party which are not controverted by his adversary are deemed admitted and the lower Court rightly acted on them to give judgment in respondent’s favour.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 116 Evidence Act 2011;
➥ REFERENCED (CASE)
⦿ EXHIBITS ATTACHED TO AFFIDAVIT ARE NOT TENDERED PER SE BUT ARE PART OF AFFIDAVIT
✓ Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713 per Ige JCA at 722. “It is my view that the learned trial Judge was wrong in holding that all the attached exhibits were inadmissible without making reference to each exhibit specifically. This being a case decided on affidavit evidence the attached exhibits are not formally tendered as such in evidence and the contents therein are not disputed hence they cannot be dismissed by a wave of the hand on mere technicality”.
✓ In Bature v. Savannah Bank (Nig) Ltd (1998) 4 NWLR (Pt. 16 546) 438, 444, Ogebe, JCA, as he then was, dealt with the same question in the following manner: “For the appellant’s counsel to argue that certain documents were admissible or inadmissible is completely irrelevant. I therefore find it unnecessary to go into the issue of admissibility of the documents being questioned. The documents were exhibited in the affidavit for judgment and the trial Court merely looked at them … They were not admitted in evidence formally”.
✓ Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, 562, Peter–Odili, JSC, held thus: “However, it is also trite law that all documents attached to an affidavit …form part of the affidavit in question and it is not possible to raise objection to its admissibility in the affidavit of the respondent without running counter to Section 87 of the Evidence Act 1990”.
➥ REFERENCED (OTHERS)