IFEMEJE v. UMUCHU COMMUNITY BANK (NIG) LTD & ORS (2020)

IFEMEJE v. UMUCHU COMMUNITY BANK (NIG) LTD & ORS

(2020)LCN/14451(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, July 09, 2020

CA/AW/163/2008

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

VALENTINE IFEMEJE APPELANT(S)

And

UMUCHU COMMUNITY BANK NIG LTD 2. SIR CYRIL UZOR 3. MR. BRIGHT 4. MR. NICODEMUS 5. THE COMMISSIONER OF POLICE, ANAMBRA STATE 6. THE CHAIRMAN, ECONOMIC & FINANCIAL CRIME COMMISSION (EFCC) RESPONDENT(S)

RATIO

WHETHER OR NOT A PERSON CAN BE LAWFULLY ARRESTED AND DETAINED WHEN HE HAS COMMITTED NO OFFENCE

It is trite that no person can be unlawfully arrested and detained when he has committed no offence. A person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of Law. Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a Criminal offence. See Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria.
An arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided under Section 35 (1) (a) (b) (d) (e) and (f) of the said Constitution. Any restraint therefore of the said rights under any other circumstance would be unlawful and unconstitutional and amounts to a violation of the citizen’s right. PER NWOSU-IHEME, J.C.A.

WHETHER OR NOT CRIMINAL LIABILITY IS TRANSFERABLE

The law is clear that Criminal liability is not transferable, therefore the Respondents have no reason or justification to arrest the Appellant in place of his brother’s wife. See MCLAREN V. JENNINGS (2003) 3 NWLR (PT. 808) 483 at 484. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant was the Applicant in the Court below in a Suit he filed to enforce his Fundamental Right at the Aguata Division of the Anambra State High Court.

In a considered Judgment delivered on the 23rd of November, 2007 by E.U. Uzodike, J., the Appellant’s application was dismissed on the basis that his Application did not disclose proper facts.

SUMMARY OF FACTS:
Sequel to a motion ex-parte for the enforcement of his fundamental right which was granted by the lower Court, the Appellant then filed a substantive Application dated 29th October, 2007 and filed on 30th October, 2007 in accordance with the fundamental rights (Enforcement Procedure) Rules and under the Constitution of the Federal Republic of Nigeria seeking the following Reliefs:
a. “A Declaration that the arrest, detention and torture of the Applicant by the Respondents, their officers, servants, agents or privies on the 28th day of September, 2007 in place of his brother’s wife (Mrs. Azuka Ifemeje) constitute a violation of the Applicant’s Fundamental Rights guaranteed under

Section 34 and 35 of the 1999 Constitution of the Federal Republic of Nigeria and therefore unlawful.
b. An order of injunction restraining the Respondents whether by themselves, their officers, servants, agents or privies from further arresting, detaining, torturing or in any other manner whatsoever disturbing the liberty and normal life of the Applicant in any manner not permitted by Law.
c. One Million Naira (N1,000,000.00) only being general and exemplary damages against the Respondents jointly and severally for their unlawful and illegal violation of Applicant’s fundamental rights.”

Learned Counsel for the Appellant E. I. Okoye Esq., distilled two issues for determination thus:
1. “Whether the learned trial Judge was right when she entered judgment in favour of the Respondents and dismissed Appellant’s Suit for nondisclosure of proper facts.
2. Whether the learned trial Judge properly evaluated, assessed and weighed the affidavit evidence of parties and did not misplace the burden of proving the alleged infringement of fundamental rights in this case.”

The Respondents did not file any brief.

Consequently, on the 1st of February, 2016, this Court granted the Appellant leave to argue this appeal based on the Appellant’s brief alone.

In his brief of argument learned Counsel for the Appellant C. I. Okoye Esq., submitted in summary, that the learned trial Judge did not resolve the material conflicts in the parties affidavit evidence before holding that the Appellant did not disclose proper facts.

Counsel argued that the Appellant disclosed all material facts necessary for the application for the enforcement of his fundamental rights to succeed. He argued that despite the fact that the Respondents had no Claim at the lower Court, that the learned trial Judge did not properly evaluate the affidavit evidence in the application.

That the arrest, detention and torture of the Appellant in lieu of his brother’s wife offend the law and therefore the Appellant is entitled to award of damages as compensation and an apology. He cited OKAFOR V. ADMINISTRATOR GENERAL ANAMBRA STATE (2006) 12 NWLR (PT. 993) P. 134, EKPO V. STATE (2003) 17 NWLR (PT. 849), MADIEBO V. NWANKWO (2002) 1 NWLR (PT. 748) P. 428 amongst others and urged this

Court to allow the appeal. I will make use of the two issues distilled by the Appellant in the determination of this appeal.

Appellant has established and proved that his fundamental rights have been breached or violated by the report of the 1st Respondent to the Police and the Economic and Financial Crime Commission (EFCC).
Even though the Respondents did not file any brief in this appeal, records show that the 1st and 2nd Respondents in paragraphs 12, 14, 15, and 16 of their counter affidavit at the trial Court admitted that the Appellant was detained. Their defence was that they used the 3rd – 6th Respondents to search for one Azuka Ifemeje who according to them stole their money.

There is no where on record where the said 1st and 2nd Respondents averred that the Appellant stole their money. There was no document signed by the Appellant as a surety or guarantor to the said Azuka Ifemeje. The Appellant was only arrested and detained because the said Azuka Ifemeje is his brother’s wife. The law is clear that Criminal liability is not transferable, therefore the Respondents have no reason or justification to arrest the Appellant in place of his brother’s wife. See MCLAREN V. JENNINGS (2003) 3 NWLR (PT. 808) 483 at 484.

It is obvious from the

counter affidavit of the 1st and 2nd Respondents that what was in issue was debt owed the 1st Respondent Umuchu Community Bank Nig. Ltd by the said Mrs. Azuka Ifemeje. It is therefore unlawful for the 1st and 2nd Respondents to use the E. F. C. C. to intimidate, threaten and arrest the Appellant for a Bank transaction concerning debt. On the side of the Police, it is clear that the statutory function of the Police does not include recovery of debt.

It is therefore erroneous for the learned trial Judge not to make a finding on the legality or otherwise of the arrest and detention of the Appellant and also whether or not the activity leading to the infringement of the rights of the Appellant had to do with fraud or ordinary debt recovering concerning Umuchu Community Bank (1st Respondent).
One wonders how the debt owed by Mrs. Azuka Ifemeje or even if it was “fraud” should lead to the arrest and detention of the Appellant.

From all that have been x-rayed in this Judgment, it is clear that the complaint made by the 1st–4th Respondents to the Police and EFCC was unlawful. The Appellant has shown that he was arrested and

detained unlawfully. There is no doubt that he suffered mental torture in addition to humiliation and embarrassment. He is no doubt entitled to compensatory damages. Where as in this case, the Respondents fail to show justification for breaching the fundamental rights of the Appellant, monetary compensation could be claimed.

It must be noted that even where there is no physical injury, substantial damages could be awarded for injury to the dignity of the person or for the discomfort or inconvenience done to the said Appellant. The arrest and detention of the Appellant on the 28th day of September, 2007, in place of his brother’s wife (Mrs. Azuka Ifemeje) constitutes a violation of due process of law and an infringement of the Appellant’s fundamental rights and he is therefore entitled to damages jointly and severally against the Respondents.

In dismissing the motion on notice which is consequent on the motion ex-parte granted on the 19/10/2007 for nondisclosure of proper facts, the learned trial Judge had this to say at pages 48 – 49 of the Records as follows:
“The Applicant in the case has nothing to do with the

alleged fugitive or the 1st Respondent. No new facts emerged as the Applicant disclosed all the facts available to him under the prevailing circumstance.
The Applicant categorically stated in paragraphs 14 and 15 that the said Azuka was not living with him. By Section 75 Evidence Act all facts not denied are deemed admitted except those not categorically denied. The Respondents refused to exhibit the search warrant; it is against them since they did not exhibit it.
The undertaking signed by Applicant was not disclosed by the Respondents.
Judgment is hereby entered in favour of the Respondents in this Suit. The motion on Notice which is consequent on the motion ex-parte granted on 19/10/2007 is hereby dismissed for nondisclosure of proper facts.”

It baffles me that the same trial Judge who stated categorically that:
1. The Applicant (Appellant herein) has nothing to do with the alleged fugitive or the 1st Respondent i.e. (Umuchu Community Bank Nig. Ltd).
2. That no new facts emerged as the Applicant disclosed all the facts available to him under the prevailing circumstance.
3. That the said Azuka was not living with him.

That the Respondents refused to exhibit the Search warrant because it was against them and
5. That the undertaking signed by the Applicant was not disclosed by the Respondents.

Could suddenly somersault, entered Judgment in favour of the Respondents and dismiss the motion of the Applicant for nondisclosure of proper facts.

The same trial Judge that said that the Appellant disclosed all the facts available to him under the prevailing circumstance.

I consider the Judgment of the trial Court a gross miscarriage of justice. The finding of the trial Court is a typical example of a finding that is perverse.
This Court should in this circumstance intervene, distort, reverse and interfere.

In the premise, the two issues are resolved against the Respondents and in favour of the Appellant. There is merit in this appeal and it is hereby allowed.

The Judgment of the Aguata Division of the Anambra State High Court in Suit No AG/MISC.78/2007 delivered on the 23rd day of November, 2007 by E. U. Uzodike, J, is hereby set aside. I award One Million Naira (N1,000,000.00) damages against the Respondents jointly and

severally and in favour of the Appellant.
I also award One Hundred Thousand Naira (N100,000.00) as costs against the Respondents.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME (Ph.D) J.C.A.
I agree with her reasoning and conclusions.
There is merit in this appeal and same is allowed by me.
I abide by the consequential order made as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

Parties are absent For Appellant(s)

Parties are absent For Respondent(s)