โThe third misconception of Law by the learned Counsel for the Appellants borders on misplacement of burden of proof.
Appellantsโ Counsel sought to rely on the cases of:
MADIEBO VS. NWANKWO (2002) 1 NWLR (PT. 748) 426 at 433 and
AGBAKOBA VS. THE DIRECTOR, SSS (1994) 6 NWLR (PT. 351) 475 at 495
as establishing the proposition that:
โWhere a party to a Suit Claims to have been unlawfully arrested and detained by another, the burden of proving the legality or Constitutionality of the arrest and detention is on the party that effected the arrest.โ
In the attempt by the learned Counsel for the Appellants to apply this principle to the instant case, Appellants Counsel became unmindful of the fact that the above proposition describes the shift of the evidential burden of proof after a Claimant as in the case of the Appellants must have provided prima facie evidence of unlawful arrest and detention.
In the instant case, the learned trial Judge was thus right in relying on the case of COSMOS DESMOND VS. OKENWA (2010) LPELR โ 4781 (CA) and to have held at page 300 on the Record of Appeal that
โIt is trite that he who asserts must prove see Section 135 โ 137 of the Evidence Act which laid down the fundamentals of such proof. The burden of proof lies on the Respondents to establish by credible Affidavit evidence that their fundamental right was breached.โ
And concluded that:
โThe Enforcement of Fundamental Human Right procedure cannot be used as a substitute for an enforcement of rights under the Law of Torts which is a more robust process or procedure for the enforcement and compensation of allege (Sic) breach of rights.โPer OWOADE, J.C.A. (Pp. 26-27, Paras. B-D); AKANBI & ORS v. C.O.P KWARA STATE & ORS (2018) LPELR-44049(CA)