MIRCHANDI v. IGP & ORS
(2021)LCN/15076(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, March 01, 2021
CA/L/926/2014
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
ARIAN K. MIRCHANDI APPELANT(S)
And
1. INSPECTOR GENERAL OF POLICE 2. COMMISSIONER OF POLICE, AKWA IBOM STATE 3. ASSISTANT COMMISSIONER OF POLICE STATED C.I.D. UYO, AKWA IBOM STATE 4. HONOURABLE ATTORNEY GENERAL OF AKWA IBOM STATE RESPONDENT(S)
RATIO
INTERPRETATION OF SECTION 46(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) AND ORDER II RULE 2 (1) OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009 REGARDING BASIS FOR COMMENCING A FUNDAMENTAL RIGHT ACTION
Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides- “Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” The provision is made up of three parts: the first part covers situations where the right of the Applicant has been infringed; the second is the situation where the person’s right is being infringed; and the third is where the person’s fundamental right is likely to be infringed, that is, where it is probable or expected that it would be infringed. Order II Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (herein after referred to as FREP Rules) has the same three component parts. It similarly provides – “Any person who alleged that any of the Fundamental rights provided for Constitution or African Charter on Human and Peoples rights (Ratification and Enforcement) Act to which he is entitled has been, is being or is likely to be infringed, may apply to the High Court in the State where the infringement occurs or is likely to occur for redress.” In the case now under consideration, the Appellant built his case on the third component part of the constitutional provision and the FREP Rules. By his affidavit, he contended that there is likely to be an infringement of his fundamental right. This is one of the situations for the grant of an application of this nature in order to protect the fundamental rights of a person. See Igwe V Ezeanochie (2010) 7 NWLR (Pt. 1192) 61; Ifegwu V FRN (supra). However, the conditions for the applicability of this third limb was well explained in the case of Uzoukwu V Ezeonu (1991) 6 NWLR (Pt. 200) 708, 784. Therein, the Court held that – “Before a plaintiff or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the respondent without more, cannot ground an action under the third limb.” What this means is that the fundamental right(s) of a person must be in imminent peril or risk of being violated before an action may be founded on the third limb. Thus, a mere perceived/sensed future threat or a simple verbal or oral threat not backed with some overt act of an attempt to infringe the fundamental right of an applicant by a respondent, is not enough to sustain an action for a threatened breach of a fundamental right. In other words, a respondent must be shown to have been determined or been unequivocally poised and/or had reached a point of no return to have the Appellant’s personal liberty curtailed; and the action is unwarranted and unjustifiable, before a suit under the third segment/limb of Section 46(1) of the Constitution (supra) and Order II Rule 2(1) of the FREP Rules can hold. PER JUMMAI HANNATU SANKEY, J.C.A.
WHETHER THE MERE INVITATION OF A PERSON BY THE POLICE CAN AMOUNT TO THE BREACH OF THE FUNDAMENTAL RIGHTS OF SUCH PERSONS
It has been serially and consistently held that the mere invitation of a person by the Police, without more, is within the powers of the Police. And except it can be shown that the Police misused their powers, no Court will interfere with Police action in the performance of their constitutional duties and responsibilities to investigate crime. Thus, the power of the Police to investigate crime and to invite persons to be interviewed/questioned simpliciter, cannot amount to the breach of the fundamental rights of such persons – Kalio V Dawari (2018) LPELR-44628; Akanbi V COP Kwara State (2018) LPELR-44049; Tsanyawa V EFCC (2018) LPELR-45099; Fawehinmi V IGP (2002) 7 NWLR (Pt. 767) 606. This is because the duties of the Police are both constitutional and statutory. By seeking protective reliefs from the Court, the Appellant is by implication trying to stop the Police from performing their lawful and constitutional duties. It cannot be right or even healthy for the Court to shield persons under investigation for crimes by the Police. Where such requests to interfere with the duties of the Police are acceded to without restraint, investigating crimes would be an impossibility as every suspect would rush to Court to seek for protective orders, and this would only lead to anarchy, lawlessness and disorder in the society. Thus, Courts are quite hesitant in preventing the Police from performing their lawful and constitutional roles in this regard, unless for good and exceptional reason. The powers of the Police with respect to the investigation of criminal allegations are provided for in Section 214 Constitution as well as Section 4 of the Police Act; and these powers have been interpreted and pronounced upon in the following decisions of Courts, Ihua-Maduenyi V HM Eze Robinson (2019) LPELR-47252(CA) 20, per Lamido, JCA; AG Federation FRN V Kashamu (2018) LPELR-46594(CA) 66; Ezea V State (2014) LPELR-23565(CA) 16-20 Bolaji-Yussuf, JCA; Oguejiofor V Ibeabuchi (2017) LPELR-43590; AG Anambra State V Uba (2005) 33 WRN 191. PER JUMMAI HANNATU SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court, Lagos Judicial Division in Suit No. FHC/L/CS/206/2013 delivered on May 2, 2014 by M.N. Yunusa, J.
The facts leading to the Appeal are briefly as follows: The Appellant, by a motion on notice filed before the Federal High Court Lagos Division dated February 19, 2013, applied for the enforcement of his fundamental human right and claimed the following reliefs:
I. “A declaration that the invitation, continued invitation, threat of arrest and detention of the Applicant by the 2nd and 3rd Respondents at the instance of the 4th Respondent is a gross violation of the fundamental rights to personal liberty guaranteed under Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, Article 4, 5, 6 and 12 of the Africa Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004.
II. An injunction restraining all the Respondents whether by themselves or their officers, servants, agents, privies or otherwise from further inviting, detaining, arresting,
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harassing, molesting or in any manner infringing on the fundamental rights of the Applicant.
III. The sum of N10, 000, 000 as damages for the breach of the Applicant’s fundamental human rights by the Respondents.
IV. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.”
The motion was supported by an affidavit and an Order of the lower Court which were served on the 2nd to 4th Respondents. The 2nd to 4th Respondents denied the allegations and in response, filed a 39 paragraph counter-affidavit annexed to which were 14 exhibits. The application was duly argued. In its Judgment, the lower Court found that the Appellant failed to establish by evidence the alleged infraction of his fundamental rights, and so it dismissed the application. Dissatisfied with the decision, the Appellant filed an Appeal to this Court vide a Notice of Appeal on 02-03-17, which Notice was deemed properly filed on 08-12-20. Therein, he complained on one ground.
At the hearing of the Appeal on 08-12-2020, learned Counsel for the Appellant, S.C. Ezenibe Esq., adopted the Appellant’s Brief of argument dated and filed
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on 21-11-14 and settled by E.A. Oyebanji, Esq., as well as the Appellant’s Reply Brief of argument filed on 07-08-17 and settled by M.A. Olarewaju Esq., in urging the Court to allow the Appeal. In like manner, learned Counsel for the 2nd to 4th Respondents, Hanacho Alozie Esq., adopted the 2nd to 4th Respondents’ Brief of argument filed on 14-08-15 but deemed duly filed and served on 08-12-20, and settled by Usen O. Usen, Esq., in urging the Court to dismiss the Appeal and uphold the Judgment of the lower Court. Even though the 1st Respondent was duly notified of the hearing of the suit, he was neither in Court nor represented by Counsel nor did he file a Brief of argument.
In his Brief of argument, the Appellant distilled one issue from the sole ground of appeal thus:
“Whether or not the learned trial Judge was right when he held that the Appellant’s application for the enforcement of his fundamental human rights failed having failed to establish in evidence the alleged infraction of the Appellant’s fundamental rights. (Ground 1)”
The Respondent in turn also formulated one issue for determination as follows:
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“Whether the learned trial Judge was right in dismissing the Appellant’s application for the enforcement of his fundamental right.”
The issues framed by both parties are virtually identical in content. The Appellant being the author of the Appeal, his issue is adopted in determining same.
ARGUMENTS
Learned Counsel for the Appellant submits that in proof of his application, the Appellant adduced evidence to show that the 2nd and 3rd Respondents made attempts to arrest and detain him at the instance of the 4th Respondent over a purely civil matter. He contends that the Appellant placed before the lower Court via his affidavit, particularly paragraphs 29 and 36 thereof, evidence that he was issued an invitation letter by the 2nd and 3rd Respondents at the instance of the 4th Respondent over issues bordering on the management of a company. He contends that the subject matter of the invitation letter is also the subject of Suit No, FHC/L/CS/357/12 pending before the Federal High Court Lagos.
Counsel submits that the Appellant established that the 4th Respondent had also caused two different petitions to be written to the Nigerian Stock Exchange over the same subject
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matter before resorting to the use of officers and men of the 1st and 2nd Respondents to harass and intimidate him.
Counsel contends that based on an investigation conducted by the 4th Respondent, he (the latter) made certain allegations bordering on fraud against the Managing Director and Chairman of Montgomery Venture Incorporation (MVI), which led to their detention for three days by the Police at the State Police Headquarters at Ikon Akpan Abia, Uyo. That thereafter, some officers and men from the 2nd and 3rd Respondents invaded the Appellant’s office at Plot 4 Block 88, Tony Oghenejode Close, Lekki Phase 1 Lagos on 15th February also with the aim of arresting and detaining him. However, when they did not find him in the office, they promised to return.
Counsel submits that this evidence was not specifically denied by the Respondents. Therefore, relying on the decisions in FCMB Plc V Akanimo (2007) LPELR-9027(CA) and Adusei V Adebayo (2012) 3 NWLR (Pt. 1288) 543, 552, he submits that facts which are not controverted are deemed admitted.
It is Counsel’s submission that the Appellant’s fundamental right is likely to be violated by the
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Respondents in circumstances set out under the third limb of Section 46(1) of the 1999 Constitution (as amended). Therefore, the Appellant need not wait until when he is arrested and detained by the 2nd and 3rd Respondents at the instance of the 4th Respondent, before taking steps to protect his right by approaching the Court to enforce his fundamental right. He argues that the Respondents, by issuing to the Appellant an invitation letter over a purely civil matter, gives an indication that his right was likely to be contravened. Therefore, the Appellant is entitled under law to take steps to forestall the violation of his right which was being threatened by the 2nd and 3rd Respondents.
Counsel argues that the application for the enforcement of his fundamental rights fell under the 3rd limb of Section 46(1) of the Constitution (supra) with the issuance of an invitation letter by the 2nd and 3rd Respondents over a purely civil matter. Reliance is placed on FRN V Ifegwu (2003) 5 SC 253, 303-404, per Tobi, JSC; Uzoukwu V Ezeonu II (1991) 6 NWLR (Pt. 200) 708, 784. Counsel therefore prayed the Court to allow the Appeal, set aside the judgment of the lower
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Court and grant the Appellant’s application.
In response to these submissions, learned Counsel for the 2nd to 4th Respondents submits that the trial Judge rightly dismissed the Appellant’s application for the enforcement of his fundamental right. Referring to the deposition in paragraph 29 of the Appellant’s affidavit and Exhibit F thereof, being a copy of the letter of invitation from the 2nd and 3rd Respondents, Counsel submits that the focal point of the application before the Court is the invitation for an interview (Exhibit F) served on the Appellant. He submits that the Appellant, who was a Director of Champion Breweries Plc, Uyo where a fraud was allegedly committed, was merely served with an invitation by the Police over a reported case of forgery and stealing. Counsel states that the 2nd to 4th Respondents are not parties to the suit in Exhibit 7 and the subject matter/issues in that case are not the same as those in this case.
Counsel submits that the Respondents only acted on the petition received from the Akwa Ibom Investment and Industrial Promotion Council (now the Akwa Ibom State Investment Commission) to the Stock Exchange which
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contained substantial allegations. The Commission also sent a Petition to the Commissioner of Police alleging fraud and forgery. In the course of its investigation, the Police discovered that certain documents, such as two Memoranda of Understanding (MOU) between Champion Breweries Plc and Montgomery Ventures Incorporated (MVI), and between the Government or Akwa Ibom State and Montgomery Ventures Incorporated (MVI), were forged. The author of the two MOUs, Barrister Ndaeyo Ndaeyo, upon being invited for clarification, volunteered statements to the Police and also wrote a letter to the 4th Respondent.
Counsel submits that by virtue of the powers conferred on the Police Force under Sections 4 and 23 of the Police Act, Cap P19, LFN 2004 and Section 214(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Police are lawfully entitled to investigate any allegation of crime. Reliance is also placed on Fawehinmi V IGP (2002) 7 NWLR (Pt. 767) 670 and Uzoukwu V Ezeonu II (1991) 6 NWLR (Pt. 708) 784 to submit that under the anticipatory breach of fundamental rights, an Appellant must be sure that there are enough acts on the part of
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the Respondents aimed essentially and unequivocally towards the contravention of his rights. This is because a speculative conduct on the part of the Respondents does not suffice.
Counsel submits that there was no attempt at infringing the rights of the Appellant. The letter in Exhibit F is a mere letter of invitation to the Appellant by the Police and is not sufficient to meet the requirements laid down in the case of Uzoukwu V Ezeonu II (supra). He contends that the Appellant did not honour the invitation of the Police, yet he was not arrested on the allegation. Counsel therefore urged the Court to hold that a mere invitation to the Appellant by the Police for an interview in respect of an alleged crime reported to the Police, does not constitute an infringement of the Appellant’s fundamental right. Instead, Counsel submits that the Appellant is in Court seeking judicial assistance to frustrate the Police from exercising their lawful and constitutional duties, and also to shield him from being answerable to Nigerian Laws.
Counsel further submits that contrary to the contention of the Appellant, even though the 2nd to 4th Respondents admitted
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paragraph 29 of the Appellant’s affidavit, they controverted paragraph 37 thereof in paragraph 7.23 of the 2nd to 4th to Respondents’ counter-affidavit. In addition, paragraph 31 contravenes Section 115(3) & (4) of the Evidence Act, 2011 in that the source of information and circumstances in which the information was received, were not disclosed. The lower Court could therefore not rely on the facts contained therein, and so the Respondents cannot be said to have admitted it.
Also, while submitting that Counsel for the Appellant quoted Tobi, JSC out of context, Counsel distinguished the case of FRN V Ifegwu (supra) from that of this case on the ground that the facts are not similar and therefore, it is not applicable to the facts of the Appeal. Counsel finally urged the Court to dismiss the Appeal for lacking in merit and to uphold the judgment of the lower Court, with substantial costs.
In a brief Reply on point of Law, Counsel for the Appellant still dwelt on his contention that paragraphs 36 and 37 of the Appellant’s affidavit were not controverted and so are deemed admitted. In respect of the submission that paragraph 37 (supra)
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contravened Section 115 of the Evidence Act (supra), counsel submits that this is a fresh issue which has been raised in this Court without leave and so should be discountenanced. Notwithstanding that, he submits that the source of information and circumstances wherein the information was received were duly stated therein.
RESOLUTION OF THE SOLE ISSUE
Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides-
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.”
The provision is made up of three parts: the first part covers situations where the right of the Applicant has been infringed; the second is the situation where the person’s right is being infringed; and the third is where the person’s fundamental right is likely to be infringed, that is, where it is probable or expected that it would be infringed.
Order II Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (herein after referred to as FREP Rules) has the same three
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component parts. It similarly provides –
“Any person who alleged that any of the Fundamental rights provided for Constitution or African Charter on Human and Peoples rights (Ratification and Enforcement) Act to which he is entitled has been, is being or is likely to be infringed, may apply to the High Court in the State where the infringement occurs or is likely to occur for redress.”
In the case now under consideration, the Appellant built his case on the third component part of the constitutional provision and the FREP Rules. By his affidavit, he contended that there is likely to be an infringement of his fundamental right. This is one of the situations for the grant of an application of this nature in order to protect the fundamental rights of a person. See Igwe V Ezeanochie (2010) 7 NWLR (Pt. 1192) 61; Ifegwu V FRN (supra). However, the conditions for the applicability of this third limb was well explained in the case of Uzoukwu V Ezeonu (1991) 6 NWLR (Pt. 200) 708, 784. Therein, the Court held that –
“Before a plaintiff or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed
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essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the respondent without more, cannot ground an action under the third limb.”
What this means is that the fundamental right(s) of a person must be in imminent peril or risk of being violated before an action may be founded on the third limb. Thus, a mere perceived/sensed future threat or a simple verbal or oral threat not backed with some overt act of an attempt to infringe the fundamental right of an applicant by a respondent, is not enough to sustain an action for a threatened breach of a fundamental right. In other words, a respondent must be shown to have been determined or been unequivocally poised and/or had reached a point of no return to have the Appellant’s personal liberty curtailed; and the action is unwarranted and unjustifiable, before a suit under the third segment/limb of Section 46(1) of the Constitution (supra) and Order II Rule 2(1) of the FREP Rules can hold.
The crux of the Appellant’s application as stated in paragraphs 29, 36 and 37 of his affidavit, is Exhibit F, the letter dropped off at the Appellant’s Lagos office
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by the 2nd and 3rd Respondents. In these paragraphs of his affidavit, the Appellant states:
“29. That the 2nd and 3rd Respondent also served me with an invitation in my Lagos office dated 12th November, 2012 with the same aim of unlawfully interrogating, detaining and unnecessarily subjecting me to degradation and violating my right over investigating a company matter which they have no power to do under the Law. A copy of the invitation is attached as Exhibit “F”.
36. That some officers and men from the 2nd and 3rd Respondents invaded my office at plot 4, Block 88, Tony Oghenejode Close, Lekki Phase 1, Lagos on the 15th day of February at around 2pm with the aim of arresting and detaining me at the instance of the 4th Respondent but they did not meet me in the office.
37. That the said officers and men from the 2nd and 3rd Respondents informed my staff in the office that they will come back any time from now to effect my arrest and detain me over a purely civil transaction.”
Exhibit F referred to in paragraph 29 above is contained at page 106 of the Record and states as follows:
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“OFFICE OF THE ASST. COMM. OF POLICE
THE NIGERIA POLICE
STATE C.I.D.
UYO,
AKWA IBOM STATE
12TH NOVEMBER, 2012
The Managing Director,
Champion Breweries Plc,
Oyo.
INVESTIGATION ACTIVITIES
LETTER OF INVITATION
You are requested to release Mr. A. K. Mirchandani and Mr. R. K. Mirchandani serving in your company to interview the Assistant Commissioner of Police, State CID, Oyo on Friday 16th November, 2012, 10 am prompt through the O/C Legal section in connection with a case of forgery and stealing at Champion Breweries Plc Uyo.
2. It is a fact finding invitation and your co-operation is highly solicited please.
Signed.
A.C.P. Don N. Awunah,
Assistant Commissioner of Police,
State C.I.D.,
Oyo.” (Emphasis supplied)
The 2nd to 4th Respondents countered these allegations of fact in their counter affidavit as follows
“7.16. That pursuant to this discovery, AKIIPOC made a written complaint to the police (attached herein
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and marked Exhibit MOJ7) to investigate the purported MOU said to have been made between MVI and Champion Breweries Plc on 8th November, 1999 the same date that AKSG and MVI entered into Exhibit MOJI for the reactivation of Champion Breweries.
7.21. That arising from the facts stated in paragraph 7.16 above, it became expedient for explanations to be made by the signatories to Exhibit B of the applicant. The applicant and one R. K. Mirchandani were requested by the Police to make representations to assist it unravel the actual origin of Exhibit B.
7.22. That rather than honour the request to make representations regarding how Exhibit B was procured, the Appellant rushed to this Honourable Court to prevent the Police from the allegation of forgery leveled against him and others.
7.23. That the applicant has not been arrested at any time. After the meeting of 5/02/2013, the applicant was politely requested to make his statement to the police at his convenience through his Lawyer who attended the meeting on his behalf. No letter, threat or harassment was made to the applicant.” (Emphasis supplied)
In the instant case, the basis of the Appellant’s application as contained in his affidavit, in particular in paragraph 29 thereof, is that the 2nd & 3rd Respondents on the prompting of the 4th Respondent, went to his office
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in his absence and left a letter with his staff inviting him for an interview in their office based on certain allegations of fraud and forgery made against officers of the Company. It is apparent that the Appellant basically felt threatened because the MD and Chairman of the Company where he is a Director, had earlier on been arrested by the Police and ostensibly kept for three days before they were released on bail. However, while the 2nd to 4th Respondents in their counter-affidavit agreed that the said officers of the Company had in the course of their investigations, been similarly invited by the Police, they were interviewed for no longer than 24 hours before they were released on bail in line with the dictates of the Law. Therefore, the Applicant’s contention was unfounded as they were only acting in line with their duties and responsibilities delineated in Section 214 of the Constitution (supra) and Sections 4 and 23 of the Police Act (supra).
Section 214(2) (b) of the Constitution (supra) provides –
“Subject to the provisions of this Constitution –
(b) the members of the Nigeria Police Force shall have such powers and duties as may
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be conferred upon them by Law;
While Section 4 of the Police Act, enacted pursuant to the above constitutional provision, provides –
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of Law and order, the protection of life and property and the due enforcement of all Laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
From the affidavit evidence placed before the lower Court, it is evident that following certain happenings in respect to Champion Breweries Plc, Montgomery Ventures Incorporated (MVI) their shareholders and Management, a complaint/ report was made to the Police bordering on allegations of fraud, forgery and stealing against some of the officials of these Companies. Based on the complaints, the Police (sued here as 2nd and 3rd Respondents) commenced an investigation in the course of which invitations were sent out to certain key persons, including the MD, Chairman and Legal Adviser of the Company, Mr. Ndaeyo.
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These officials honoured the invitations and some of them are said to have spent some time (three days or 24 hours, as the case may be) with the Police. Thereafter, they were granted bail.
However, when a similar invitation was extended to the Appellant, a Director in the Company, vide Exhibit F above, he rushed to the lower Court to seek an intervention for fear that he would be “arrested, detained and suffer degradation”. Now, faced with these facts, the lower Court was of the view that the Appellant was unable to establish that the 2nd and 3rd Respondents, by simply inviting the Appellant for an interview as part of the conduct of their investigations into the allegations of crime, was likely to infringe upon the Appellant’s fundamental right under Section 46 of the Constitution (supra).
The question of an infringement of the fundamental rights of an individual is largely a question of fact. It therefore does not depend on the submission of Counsel on the Law, no matter how brilliant and impressive it is. It is the facts as disclosed by the affidavit evidence that is usually examined, analyzed and evaluated to determine whether indeed the
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fundamental right of a person has been, is being or is likely to be eviscerated/ breached as claimed, or otherwise dealt with in a manner that is contrary to the constitutional and other provisions of the Law -Okafor V Lagos State Govt (2016) LPELR-41066(CA). Upon a proper consideration, the averments in the Applicant’s affidavit taken holistically did not establish a case of a likely breach of the Appellant’s fundamental right to personal liberty and freedom of movement by the Respondents.
This is more so when the provisions of Sections 4 and 23 of the Police Act confer on the 2nd and 3rd Respondents extensive powers of maintaining law and order and prosecution. By Section 4 of the Act (supra), the Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of Law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. The exercise of these powers have been reinforced by the decisions of the apex Court and this Court in the following decisions: Fawehinmi V IGP (2002) 7 NWLR (Pt. 767) 606; Ozah V EFCC (2017)
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LPELR-43386; Azuka V IGP (2007) CHR 69.
Against this background, the question which must be answered is: would the grant of a protective relief in anticipation of Police investigation into allegations of a crime be appropriate in the circumstances? It has been serially and consistently held that the mere invitation of a person by the Police, without more, is within the powers of the Police. And except it can be shown that the Police misused their powers, no Court will interfere with Police action in the performance of their constitutional duties and responsibilities to investigate crime. Thus, the power of the Police to investigate crime and to invite persons to be interviewed/questioned simpliciter, cannot amount to the breach of the fundamental rights of such persons – Kalio V Dawari (2018) LPELR-44628; Akanbi V COP Kwara State (2018) LPELR-44049; Tsanyawa V EFCC (2018) LPELR-45099; Fawehinmi V IGP (2002) 7 NWLR (Pt. 767) 606.
This is because the duties of the Police are both constitutional and statutory. By seeking protective reliefs from the Court, the Appellant is by implication trying to stop the Police from performing their lawful and
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constitutional duties. It cannot be right or even healthy for the Court to shield persons under investigation for crimes by the Police. Where such requests to interfere with the duties of the Police are acceded to without restraint, investigating crimes would be an impossibility as every suspect would rush to Court to seek for protective orders, and this would only lead to anarchy, lawlessness and disorder in the society. Thus, Courts are quite hesitant in preventing the Police from performing their lawful and constitutional roles in this regard, unless for good and exceptional reason.
The powers of the Police with respect to the investigation of criminal allegations are provided for in Section 214 Constitution as well as Section 4 of the Police Act; and these powers have been interpreted and pronounced upon in the following decisions of Courts, Ihua-Maduenyi V HM Eze Robinson (2019) LPELR-47252(CA) 20, per Lamido, JCA; AG Federation FRN V Kashamu (2018) LPELR-46594(CA) 66; Ezea V State (2014) LPELR-23565(CA) 16-20 Bolaji-Yussuf, JCA; Oguejiofor V Ibeabuchi (2017) LPELR-43590; AG Anambra State V Uba (2005) 33 WRN 191.
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Thus, in the light of this, the Appellant has failed to show how his fundamental rights to dignity and to personal liberty guaranteed under Sections 34 and 35(1) of the Constitution (supra) are likely to be breached by the mere invitation vide a letter to be interviewed by the Police who are on a fact-finding mission in the course of their investigations into the allegations of a crime. The trial Court was therefore right when it refused to grant the protective orders sought as they were unwarranted given the facts and circumstances of the case, The Court found inter alia as follows at pages 395-396 of the Record of Appeal:
“In the instant suit, there is nothing in the affidavit of the Applicant justifying the enforcement of his right to personal liberty. The alleged threat in paragraph 29 of the affidavit in support was a mere invitation for the purpose of conducting investigation and by the provisions of the Police Act they have a duty to investigate and where substantial facts are found, they can institute criminal prosecution against any person involved in the said fraud… The averment in paragraph 29 of the affidavit in support is just a mere speculative deposition which cannot
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found an action under the third limb, as the alleged threat was not backed up with any overt act of an attempt by the 2nd and 3rd Respondents to arrest and detain the Applicant.”
I decline to interfere with these sound findings.
It is therefore for these reasons that I resolve the sole issue for determination against the Appellant.
In the result, the Appeal is without merit. It fails and is dismissed.
Accordingly, I affirm the Judgment of the Federal High Court sitting in Lagos in Suit No. FHC/L/CS/206/2013, delivered on May 2, 2014 by M.N. Yunusa, J.
Parties are ordered to bear their own costs.
PETER OLABISI IGE, J.C.A.: I agree.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the privilege of a preview of the judgment of my learned brother, Jummai Hannatu Sankey, JCA. I agree entirely with the reasons, the same leading to the dismissal of the appeal.
I accordingly dismiss the appeal.
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Appearances:
C. Ezenibe Esq. For Appellant(s)
Hanacho Alozie Esq., holding the brief of Usen O. Usen Esq. – for 2nd to 4th Respondents
1st Respondent not represented. For Respondent(s)
