Uncontradicted or uncontroverted affidavit evidence is deemed admitted

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

IT is trite law that depositions in an affidavit in the absence of any counter affidavit challenging same are deemed to be admitted as true and established. So held the Court of Appeal holding at Lagos.

In a unanimous lead judgment delivered by His Lordship, Samuel Chukwudumebi Oseji JCA with his learned brothers, Sidi Dauga Bage and Jamilu Yammama Tukur JJCA concurring while allowing the appeal in part.

The parties were represented by M.O. Eze appeared in person. M.C Umeh (Miss) for the 1st and 5th Respondent. The Facts are as contained in the body of the Judgment.

The Appellant herein had by a motion exparte applied for and was granted leave by the Federal High Court, Lagos Division (Lower Court) to apply for the enforcement of his Fundamental Right against the 1st to 5th Respondents.

The said leave was granted on 27th August 2004. Pursuant thereto, the Appellant filed a motion on Notice on 1st September 2004.

The said motion was supported by a 46 paragraph affidavit deposed to by the Appellant himself and accompanied by a Statement made pursuant to Order 2 Rule (3) of the Fundamental Rights enforcement Procedure Rule and a 3 paragraph verifying affidavit.

Briefly put, the Appellant’s story was that sometimes in July 2004, the 4th Respondent who purports to have purchased the premises situated at No, 29 Olubanmi Alonge Street, Pako- Aguda, Surulere, Lagos, came to inform all the tenants in the said premises that they should vacate within three months. The Appellant who operate his Law Chambers within the said premises felt otherwise and consequently filed an action at the Rent Tribunal against the 4th Respondent as a trespasser and sought some injunctive reliefs against him.

Despite the said suit, the 4th Respondent embarked on some self help measures to force the Appellant out including damage to roof and other parts of the building, harboring the Law Chamber.

The Appellant reported the matter to the Police at Ijesha- Tedo, Surulere where the 4th Respondent was admonished by the DPO not to take law into his hand given that there is a pending Suit at the Rent tribunal.

Surprisingly, on 19th July, 2004, the men of the Lagos State Police command came with the 4th Respondent to the Appellant’s Chambers and got him arrested on the allegation that he had, with the aid of the armed military group (OPC) attempted to assassinate the 4th Respondent on 14th July 2014 at his residence.

He was taken to the force, central intelligence Headquarters Panti, Street, Lagos where, instead of investigating the allegation of attempted assassination, harassed, intimidated and assaulted the Appellant and sought to force him to write undertaking that he will vacate the premises within one month but he refused to do so. He was later granted bail in the night of 19th July 2004 with an instruction to report to the police Headquarters on 21st July 2004.

On the said 21st July 2004 he was asked to come back on 23th July 2004 and then 26th July 2004. Subsequently, upon being served with a motion on notice by the Bailiff from the Rent Tribunal, the 4th Respondent in connivance with the men of the Nigeria Police, C.I.D, Headquarters’, Panti Street, Yaba, Lagos, led by the 3rd Respondent who is the Head of ‘D6’ went to the Chief Magistrate Court, Ebute- Metta and procured an arrest and detention warrant against the Appellant under false oath and misinformation that the Appellant who was arrested on 19th July 2004 on charges of Attempted murder of the 4th Respondent but was granted bail on self recognizance as a legal Practitioner jumped the said bail.

The said arrest warrant was issued and executed against the Appellant on 26 July 2004. He was then subjected to assaults, brutalization, pejorative verbiages and attacks by the 3rd Respondent’s subordinates and other Junior Police Officers on the instructions of the 3rd Respondent and in the presence of the 4th Respondent whom they told must pay them in full as agreed or also they will charge him for giving false information. All this happened at the ‘D6’ torture room, Lagos State C.I.D Headquarters. His friend and colleague

O. E NGWUTA ESQ. who was with him during the incident protested against the inhuman acts against the Appellant and he was chased out of the place.

The 4th Respondent who was also present told the Deputy Commissioner that he bought the premises where the Appellant and other were tenants and while other tenants have vacated same, the Appellant refuse to do but instead sued him at the Rent Tribunal.

Despite this revelation, the Deputy Commissioner, ordered the matter to be transferred to DII of the same C.I.D Headquarters, Lagos where the Appellant was subjected to further attacks and threats unless he vacates the premises and give up possession to the 4th Respondent.

It is the alleged persistent terrorizing of the Appellant by men of the Nigeria Police Force, C.I.D Headquarters Lagos State command on the prompting of the 4th Respondent that compelled the Appellants to bring the suit in the lower court for the enforcement of his Fundamental Right. None of the Respondents at the lower court filed any process to challenge the Appellant’s claim against them.

At the hearing of the Application on 27th October, 2004, upon proof that the Respondents have been served with the motion on notice and hearing notice for the day, the Appellant was allowed to argue the said motion on notice.

In a considered Ruling delivered on 29th November 2004 the lower dismissing the application held inter alia as follows:-
For this court to hold that the 1st, 2nd, 3rd Respondents infringed on Fundamental Right of the Applicant, it must be shown that, the action of the Police in arresting the Applicant lacks semblance of legal justification, or that the action is neither necessary nor incidental to the duty of the Police, or that the Police acted in bad faith.

It is my humble view that the 1st, 2nd and 3rd Respondents acted within the limits provided by law, I do not therefore find them liable in the circumstance. With regard to the 4th Respondent who has a pending court filed by the Applicant, and the fact that the Applicant and the 4th Respondent are glaringly cross firing allegations.

The applicant cannot sustain a case of infringement of Fundamental Rights against the 4th Respondent. It should be noted that on the authority of EJIOFOR VS. OKEKE (2000) Page 363 at 381, it was held that the statement of the law that there is presumption that unchallenged or uncontroverted averments in affidavit are deemed admitted does not hold in all situations where the averments in an affidavit in challenge in support of an application are contradictory or if taken together are not sufficient to sustain applicants prayer, a counter affidavit in challenge of such averments would manifestly become unnecessary.

Finally, I hold that, this application lacks merit and is accordingly dismissed.

The Appellant was aggrieved with the outcome of the Ruling consequently filed a Notice of Appeal on 18th February 2005. It has five grounds of Appeal.

Briefs of argument were subsequently filed and served. The 1st and 2nd Respondents did not filed any brief argument the 4th Respondent’s brief is dated 27th January 2011 and filed on 28th January 2011. At the hearing of Appeal on 27th April 2015 the parties duly adopted and relied on their respective briefs of argument.

In the Appellant’s brief of argument four issues were distilled for determination.

In the circumstance, I will adopted the four issues as raised in the Appellant’s brief as well as the 1st – 5th Respondent’s issues as 5 in the determination of this appeal. I will however treat issues one and four together.
ISSUES ONE

Here the Appellant submitted that by virtue of chapter 4 of the constitution of the Federal Republic of Nigeria 1999 the deprivation or interference with the liberty of a person to be lawful, it must be carried out in accordance with the procedures provided by law. Vide OBA ADENIRAN ADEWOGAN vs. JAMES HUNSA DENEGAN (2001) FWLR (PT.61) 1776.