IBRAHIM v. COP, KWARA STATE (2021)

IBRAHIM v. COP, KWARA STATE

(2021)LCN/15106(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/IL/24/2019

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

ABDULLAHI IBRAHIM APPELANT(S)

And

COMMISSIONER OF POLICE, KWARA STATE RESPONDENT(S)

RATIO

WHEN IS AN ACTION STATUTE BARRED; EFFECT OF AN ACTION THAT IS STATUTE BARRED

The law is trite that where a law or statute prescribes the period within the action shall commence, an action commenced after the expiration of the period prescribed by the law or statute is statue barred. Where an action is statute barred, the Court has no jurisdiction to entertain such action as a plaintiff who has a cause of action or grievance loses the right to approach the Court to seek redress or enforce his right by judicial process. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER A COMMISSIONER OF POLICE IS A PUBLIC OFFICER

By virtue of Section 318(1) (h) of the 1999 Constitution (as amended) and Section 18(1) of the Interpretation Act, the respondent being a police officer is a public officer. See ONWUZURUIKE V. EDOZIEM & ORS. (2016) LPELR-26056 (SC) AT 10-11 (F-B). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

INTERPRETATION OF SECTION 2 (A) OF THE PUBLIC OFFICERS PROTECTION ACT REGARDING THE WHEN AN ACTION AGAINST A PUBLIC OFFICER FOR ANY ACT, NEGLECT OR DEFAULT IN THE EXECUTION OR INTENDED EXECUTION OF ANY LAW, PUBLIC DUTY OR AUTHORITY MUST BE COMMENCED AND EFFECT OF SUCH FAILURE

Section 2 (a) of the Public Officers Protection Act has been interpreted in a plethora of cases. See LAFIA L.G. V. EXECUTIVE GOV. OF NASARAWA STATE & ORS. (2012) LPELR-20602 (SC) AT 35-38 (F-B). HASSAN V. ALIYU & ORS. (2010) LPELR-1357 (SC) AT 27 (A-D) A.G. ADAMAWA STATE & ORS. V. A.G. FEDERATION (2014) LPELR-23221 (SC) AT 32-33 (C-A). The firm position of the Court is that any action against a public officer for any act, neglect or default in the execution or intended execution of any law, public duty or authority must be commenced within 3 months of the accrual of the cause of action as stipulated by Section 2(a) of the Public Officers Protection Act. Any action commenced after the expiration of the 3 months period stipulated by the Act would be stature barred. Where the injury complained of is continuous, the limitation period shall not start to run until the ceasure of the act complained of. See CBN & ORS V. OKOJIE (2015) LPELR-24740 (SC) AT 53 (G). HASSAN V. ALIYU (SUPRA). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

DUTY OF THE POLICE TO INVESTIGATE COMPLAINT

The Nigeria Police Force is a creation of the statute and the Constitution. Section 214 (2) (b) of the Constitution provides that members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law. Section 4 of the Police Act states that 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. It is the position of the Court that once a complaint of commission of crime is properly laid before the police, it is the constitutional and statutory duty of the police to investigate it as investigation of crime, prevention and detection of crime and preservation of life and property are the primary duties of the police. It is the right of the appellant to make a complaint to the police after he was attacked and his properties snatched from him. The police have a duty to investigate the complaint. See FABIYI V. STATE (2013) LPELR-21180 (CA) AT 45-46 (D-G). ISIYAKU & ANOR. V. C.O.P YOBE STATE & ORS. (2017) LPELR-43439 (CA) AT 26-27 (D-C). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHEN WILL AN APPELLATE COURT INTERFERE WITH THE FINDING OF A TRIAL COURT

The law is trite that evaluation of evidence and ascription of probative value thereto are primary duties of the trial Court that saw, heard and observed the demeanour of a witness while testifying. Where the trial Court duly and correctly discharged its duty and made correct findings based on the evaluated evidence, the appellate Court has no power to embark on re-evaluation of the evidence to substitute its own views. See OLONADE & ANOR. V. SOWEMIMO (2014) LPELR-22914 (SC) AT 26-27 (E-A). AKINBADE & ANOR. V. BABATUNDE & ORS. (2017) LPELR-43463 (SC) AT 19 (C-F). USMAN V. STATE (2014) LPELR-22879 (SC) AT 23 (D-E). The appellate Court will only interfere with the finding of a trial Court if the trial Court fails to perform its duty and the findings are perverse. See ALIYU V. STATE (2013) LPELR-20748 (SC) AT 32-33 (E-A). ENUKORA V. FRN (2018) LPELR-43822(SC) AT 14 (C-F). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MEANING OF A “PERVERSE DECISION”

In ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D), the Supreme Court per Oputa J.S.C. explained the meaning of a “Perverse decision as follows: “Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER A PARTY MUST BE CONSISTENT IN THE PRESENTATION OF HIS CASE

The law is settled that a party should be consistent in the presentation of his case both in his pleadings and in his evidence before the Court. See COKER V. SABA & ORS. (2018) LPELR-46573 (CA) AT 36 (C-F). NWABUDE & ANOR. V. UGODU & ORS. (2011) LPELR-9173 (CA) AT 31 (A-B); OBINWUNNE & ANOR. V. OBINWUNNE & ANOR. (2018) LPELR-46062 (CA) AT 11-12 (B-C). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER A LETTER WRITTEN BY A PRIVATE CITIZEN TO A PUBLIC OFFICER, THE POLICE, IS A PUBLIC DOCUMENT

Once a private letter addressed to a public officer is received by the addressee and same is kept as part of the public record in the officer’s office, the private letter transits to a public document. In such a situation once the letter is produced from the custody of the authorised public officer, by virtue of Sections 102-105 of the Evidence Act, only a properly certified true copy by the appropriate officer who has custody of the original is admissible in evidence to prove the content of the original. See OMALE V. FED. MIN. OF LANDS, HOUSING AND URBAN DEV. (2015) LPELR-25906 (CA) AT 19-25. PDP V. INEC (2014) LPELR-23808 (SC) AT 42-43 (A-G). IN ONWUZURUIKE V. EDOZIEM & ORS. (SUPRA) AT 10-11 (F-B) the Supreme Court considered the issue of whether a letter written by a private citizen to the police is a public document. The Court per ONNOGHEN, J.S.C. held as follows: “In the case of Tabik Investment Ltd v. G.T.B (2011) All FWLR (pt. 602) 1592 at 1607 this Court held that a private petition sent to the police, as in the instant case, formed part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as follows:- “By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court are public documents.” And NGWUTA, J.S.C. AT 16 (A-E) stated thus “The document need not be the product of the authority as long as it forms part of its records. In my humble view, the origin or authorship of a document is not determinative of its status as a public document; and this is where the trial Court erred for failure to distinguish the source or authorship of a document from what it eventually becomes. The Police, to whom the petition was addressed and who held same as part of their records are public officers within the meaning and intendment of S.109 of the Evidence Act. In the hands of the appellant who wrote it, the document was a private document, but the moment it was received by the Police to whom it was addressed it became part of the record of public officers and thus a public document. It is then a primary evidence in terms of S.94 (1) of the Act and a copy made of it as Exhibit C is secondary evidence which must be certified before it can be received in evidence.” The respondent having denied the receipt of the letter, the implication of the denial is that the original is not in the custody of the police. Thus there was no transition of exhibit A from a private document to a public document. Exhibit A remains a private letter in the hands of the appellant. He is entitled to produce and tender his own copy in evidence. The Court below was right to admit the letter in evidence. The respondent having denied the receipt of the letter cannot be heard to argue that the letter is a public document. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

ON WHOM RESTS THE BURDEN OF PROVING NEGLIGENCE IN AN ACTION FOR NEGLIGENCE; WHAT ARE THE ELEMENTS OF NEGLIGENCE; ESSENCE OF PROVING BREACH OF THE DUTY OF CARE IN AN ACTION FOR NEGLIGENCE

The well-established legal position is that the onus of proving negligence is on the claimant who alleges it. See U.T.B. V. OZOEMENA (2007) LPELR-3414 (SC) AT 14 (G-C). ABUBAKAR & ANOR. V. JOSEPH & ANOR. (2008) LPELR-48 (SC) AT 44-45 (E-A). The claimant in an action for negligence must prove the following elements of negligence: (a) That the defendant owed him a duty of care; (b) the duty of care was breached; (c) the defendant suffered damages arising from the breach. See IYERE V. BENDEL AND FLOUR MILL LTD (2008) LPELR-1578 (SC) AT 40 (E-F). In G.K.F. INVESTMENT (NIG.) LTD. V. NITEL PLC (2009) LPELR-1294 (SC) AT 20 (A-B), the Supreme Court held that the most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. Where a plaintiff fails to prove by evidence the actual breach of duty of care against the defendant, the action must fail. A duty of care can be imposed or can be created by contract. See I.M.N.L. V. NWACHUKWU (2004) LPELR-1526 (SC) AT 14 (A). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein, a lawyer instituted suit no. KWS/112/2012 at the High Court of Kwara State, Ilorin Judicial Division and claimed the following reliefs against the respondent:
(a) “Award of general and exemplary damages of N1 Million against the defendant for the breach of duty to care for the claimant or for the negligence of the police officers of the Idiape police post, Ilorin Kwara State, Nigeria to attend to the claimant on 21/11/2011.
(b) Award of general and exemplary damages of N1 Million against the defendant for the breach of duty to care for the claimant or for the negligence of the police officers of the police ’C’ Division, Oja-Oba, Ilorin Kwara State, Nigeria to attend to the claimant on 21/11/2011.
(c) Award of general and exemplary damages of N1 Million against the defendant for the breach of duty to care for the claimant or for the negligence of the police officers of the Police Public Relation Officer’s office Kwara State command, the Police Headquarters, Ilorin Kwara State, Nigeria between 22/11/2011 and 7/12/2011.

(d) Award of general and exemplary damages of N2Million against the defendant of his negligence to attend to the claimant’s letter of 6/1/12.
(e) Refund of N5 Thousand by the defendant being the total sum of the food items and cash lost to the Idiape boys on 21/11/2011 by the claimant.”

The case of the appellant at the Court below was that on 21/11/2011 at about 20:15-20:30 he was attacked by some persons who beat him up and snatched his properties. He managed to escape from his attackers and rushed first to Idi-Ape Police Post and later to “C” Division, Oja Oba to lodge a complaint. He could not lodge his report at Idi-Ape police post because the place was in total darkness. The police at “C” Division refused to attend to him. They told him that the police at Idi-Ape police post used to hide in the darkness. When he got back to Idi-Ape police post, the policemen on duty refused to attend to him. Between 22/11/2011 and 7/12/11, he was visiting the office of the Police Public Relation Officer (PPRO) but nothing was done about his complaint-apart from an entry made into the police diary by one Stanley Onyekwele. When the

police refused to act, he wrote a letter dated 6/1/2012 to the Commissioner of Police. He alleged that the refusal of the police to act on his complaint caused him to suffer damages.

The respondent denied the allegations of the appellant and averred that the appellant did not lodge any complaint at any police station and no complaint was recorded by Mr. Stanley Onyekwele or any other officer.

The appellant testified in supported his case. The defendant called one witness in defence of the claim. In its judgment delivered by S.T. Abdulkadir J, on 23/5/2018, the Court below entered judgment in favour of the appellant as follows:
“I award relief 17 (e) in favour of the claimant against the defendant which is refund of N5,000.00 (Five thousand naira) being the total sum of food items and cash lost to the Idiape boys on 21/11/2011 by claimant.
I also award exemplary damages of N5,000.00 against the defendant, the totality of the evidence established has shown an unconstitutional action by the defendant, the conduct of the defendant in the circumstance of this case shows contempt of the claimant’s right and disregard, the defendant

has committed a wrongful act.”

The appellant was dissatisfied with the amount of damages awarded in his favour. He filed a notice of appeal dated 23/8/2018. The two grounds of appeal therein without their particulars are as follows:
GROUND 1
“The trial Court erred in law by awarding too ridiculously low amount of N5,000:00 against the respondent as the exemplary damages for his conduct in the circumstance in the case on appeal.
GROUND 2
The trial Court erred in law by evading and ignoring 3 other exemplary damages and reliefs sought by appellant against the respondent before the said Court.

Pursuant to a grant of extension of time in favour of the respondent on 23/9/2019, the respondent filed a notice of cross-appeal containing eight (8) grounds of appeal against the judgment on 30/9/2019.

In respect of the main appeal, the appellant’s brief of argument was filed on 13/5/2019. The respondent’s brief was filed on 23/10/2020. It was deemed as properly filed and served on 26/10/2020. Appellant’s reply brief was filed on 9/11/20.

The appellant formulated the following issues for

determination:
1. “Whether the lower Court’s award of N5,000 against the respondent for negligence or breach of duty of care for the appellant serves the purpose of exemplary damages. (Ground of Appeal No.1).
2. Whether the failure of the lower Court to award or determine reliefs 17(a) (c) & (d) duly established before it by the appellant renders the whole judgment a perverse decision. (Ground of Appeal No.2).”

The respondent formulated the following issue for determination:
“Whether the exemplary damages awarded in favour of the appellant by the trial Court was not justifiable in the circumstances of the case of the appellant. (Ground 1 & 2).”

In respect of the cross-appeal, the cross-appellant filed cross-appellant’s brief of argument on 23/10/2020. It was deemed as properly filed and served on 26/10/2020. The cross-respondent’s brief was filed on 24/11/2020. Cross-appellant’s reply brief was filed on 17/12/2020.

The cross-appellant formulated the following issues for determination:
1. “Whether the appellant/cross respondent’s action is maintainable against

the respondent/cross appellant in view of provisions of Section 2(a) of the Public Officer Protection Act CAP 41 LFN, 2004. (Grounds 2).
2. Whether the trial Court was not wrong to have admitted and placed reliance on Exhibit A when it was obvious that the document did not fulfil the requirement for its admissibility as a public document. (Grounds 3 & 6).
3. Whether the trial Court was not wrong to have based her judgment on another document rather than the Exhibit tendered and admitted as Exhibit B in the case. (Grounds 1 & 4).
4. Whether the appellant/cross respondent was able to prove and establish the tort of negligence against the respondent/cross appellant to have entitled him to the award of damages. (Grounds 5, 7 & 8).”

The cross-respondent adopted all the issues formulated by the cross-appellant. The main appeal and cross-appeal are interwoven. For avoidance of confusion and repetition, the two appeals shall be considered together. Issue 1 of the cross-appeal being an issue of jurisdiction shall be considered first.

Issue 1 of the cross-appellant is whether the appellant/cross respondent’s action is

maintainable against the respondent/cross appellant in view of provisions of Section 2(a) of the Public Officer Protection Act CAP 41 LFN, 2004. On this issue, the respondent/cross appellant submitted that the respondent being a public officer, the suit instituted on 4/5/2012 more than three (3) months after the accrual of the cause of action on 21/11/2011 is statue barred by virtue of Section 2(a) of the Public Officers (Protection) Act Cap.41, Laws of the Federation of Nigeria, 2004. He referred to AREMO V. ADEKANYE (2004) 13 NWLR (PT.91) 572. EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1 AT 3. CBN V. UKPONG (2006) 13 NWLR (PT.998) 555. FAROLY ESTABLISHMENT V. NNPC (2011) 5 NWLR (PT.1241) 457 AT 472. A.G. (RIVERS STATE) V. A.G. BAYELSA STATE & 1 OR. (2013) ALL FWLR (PT.699) 1089 AT 1102-1103.

In his response, the appellant submitted that the writ of summons by which the action was initiated was filed on 5/3/2012 and not 4/5/2012 which is the date the appellant made his statement on oath. He argued that the last cause of action accrued on 6/1/2012 when the respondent refused to take action on the respondent’s letter and a distinct and separate

relief was sought for the respondent’s failure to take action on the letter. He argued that the injury or damage suffered by him as a result of respondent’s negligence and breach of duty of care owed him continued from 21/11/2011 to 6/1/2012. He further argued that the negligence of duty and breach of duty of care to detect the crime committed against him and apprehend the offenders is continuous in nature and kept accumulating day by day from 21/11/2011 to 6/1/2012.

In his reply, the respondent/cross-appellant submitted that there is nothing on record to show that the suit was filed on 5/3/2012 as the only date on record is 4/5/2012 being the date the appellant’s statement on oath was sworn to before the Commissioner for Oaths. He further submitted that the letter dated 6/1/2012 (exhibit A) merely reported the purported act of negligence of the respondent’s men and not a fresh complaint.

RESOLUTION:
The additional record of appeal before this Court shows that the cross-appellant by a notice of preliminary objection filed on 13/11/13 raised objection to the suit on the ground that it has become statute barred by virtue

of Section 2 (a) of the Public Officer Protection Act, Cap 41, LFN, 2004. The Court below in its ruling delivered on 19/3/2014 dismissed the objection. In paragraph 1 of the notice of appeal, it is stated that the decision being appealed against is the decision of the Court delivered on 23/5/18. No indication of an appeal against the ruling delivered on 19/3/2014. However, ground 2 of the appeal is in respect of the ruling. Order 7 Rule 2-(1) provides that “All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties. Thus ground 2 of the appeal has no connection with and does not relate to the decision appealed against. However, since the ground of appeal raises an

issue of jurisdiction which can be raised at any stage of the proceedings and by any means even orally, failure to indicate the ruling being appealed against shall be treated as an irregularity which shall not render ground 2 of the cross-appeal incompetent.

writ of summons and the statement of claim. It is the claim of the plaintiff as endorsed on the originating process that determines the date of accrual of cause of action and the jurisdiction of the Court. Reliefs (a), (b) and (e) are claims for damages allegedly suffered by the appellant as a result of the alleged breach of duty of care and negligence of police officers at Idi-Ape police post and ‘C’ Division, Oja-Oba, Ilorin on 21/11/2011. The writ of summons was filed on 5/3/2012. The respondent’s counsel argued that there is nothing on record to show that the suit was filed on 5/3/2012 and that the only date that should be reckoned with is 4/5/2012 which is the date the oath on the appellant’s statement on oath was administered by the Commissioner for Oaths. That submission is seriously flawed because the statement on oath is not an originating process by which any action is commenced in the High Court of Kwara State. By Order 2 Rule 1 of the High Court of Kwara State (Civil Procedure) Rules, 2005 civil proceedings may be begun by a writ of summons, originating motion or petition. Order 2 Rule 2 (2) (c) provides that the writ of

summons shall be accompanied by written statement on oath of the witnesses among other processes and documents listed there under.
The Court below in its judgment stated that the action was commenced by a writ of summons filed on 5/3/2012. That statement of fact has not been challenged in any way. The submission of the respondent’s counsel that the appellant allegedly paid filling fee, took away the processes and took it back to the Court for assessment and filing six months thereafter is self-contradictory. It is also tantamount to adducing evidence in a brief. No counsel is allowed to adduce, concoct or fabricate evidence under the guise of writing a brief. In any case, the action having been commenced on 5/3/2012, reliefs (a) (b) and (e) which are in respect of an action which occurred on 21/11/2011 are caught by the provision of Section 2(a) of the Public Officers Protection Act having been commenced after the expiration of the three months stipulated by the Act. Reliefs (a) (b) and (e) are hereby dismissed.

As regards relief (C), the appellant averred in paragraph 13 of the Amended Statement of Claim that:

“Between 22nd November, 2011 and 7th December, 2011, the claimant paraded the office of the Police Public Relation Officer (PPRO) of the Kwara State command, Police Headquarters, Ilorin and apart from the summarization of his complaint in a diary of the police by one Stanley Onyekwele, the Acting Police Public Relation Officer (Ag. PPRO), Kwara State, nothing else was done by the police regarding the complaint lodged by the complaint.”Thus, the cause of action accrued on 7/12/2012 when it became clear that the Police Public Relations Office (PPRO) did not intend to act on the appellant’s complaint.That relief was sought within the 3 months stipulated by the Act. I am of the view that it is not statute barred. Relief (d) was predicated upon a letter dated 6/1/2012 which is at page 7 of the record and listed as the document to be tendered at the trial. Relief (d) was also sought within the 3 months stipulated by the Act. Therefore, the Court below had the jurisdiction to entertain reliefs (c) and (d) in the appellant’s Amended Statement of Claim, same having been sought within the period stipulated by the Act. Issue 1 is partly resolved in favour

of the appellant and partly in favour of the respondent /cross-appellant.

On issues 1 and 2 of the appellant and issues 2, 3 and 4 of the cross- appeal, the appellant submitted that the award of N5,000.00 as exemplary damages against the appellant is ridiculously low and cannot serve as deterrence for the respondent. He urged the Court to interfere with the award of damages made by the Court below and award the full amount of 4 million naira claimed by him. He further submitted that the Court below was totally silent on reliefs (a) (c) and (d) and totally evaded its duty to determine those reliefs one way or the order which renders the decision of the Court a perverse decision. He referred to OLUROTIMI V. IGE (1993) 8 NWLR (PT.311) 257 AT 271 (G).

In his response, the respondent/cross-appellant submitted that the appellant woefully failed to establish the existence of the conditions that may warrant interference in the award of damages, he referred to CBN V. OKOJIE (2015) ALL FWLR (PT.807) 478 AT 507. He submitted that in awarding exemplary damages, the injured party cannot get more than what he claim to have suffered which in this case is 5,000:00

(Five thousand naira). He referred to AHANONU V. CHUKWUEMEZIE (2016) ALL FWLR (PT.829) 1008 AT 1036.

In respect of the cross-appeal, he submitted that the letter written to the respondent is a public document of which only a certified true copy is admissible in evidence to prove its content. He referred to Sections 89 (A) (ii), 90(1) (c) and 91 of the Evidence Act. TABIK INV. LTD V. GTB (2011) ALL FWLR (PT.602) 1592 AT 1607. GOODWILL TRUST AND INVESTMENT V. UMEH (2011) 8 NWLR (PT.1250) 500 AT 541. OKEREAFIA V. AGWU (2012) 1 NWLR (PT.1282) 425. He further submitted that the decision of the Court below to admit exhibit A in evidence and rely on same to arrive at a decision that the respondent committed tort of negligence and breach of duty of care amounts to a miscarriage of justice.

He contended that if the Court below had considered and relied on the actual exhibit B which is the extract of police diary with serial numbers 650-673 of 21/11/2011 tendered by DW1 rather than wrong document, the Court would not have arrived at a decision that the oral evidence of the appellant debunked exhibit B. He submitted that in order to establish the tort of

negligence, the person alleging negligence has a duty to give the particulars of negligence and lead evidence in support. He referred to MAERSK V. WINLINE NIG. LTD (2015) ALL NWLR (PT.808) 672 AT 689. IGHRERINIOVO V. S.C.C. (NIG.) LTD. (2013) ALL FWLR (PT.700) 1240 AT 1248-1249. He further submitted that the alleged duty of care remains a mirage because the respondent or any of his men were not at the scene of the crime or promptly invited to rescue the appellant and no duty of care can arise from exhibit A which bears no evidence of receipt by the officer of the respondent. He finally submitted that the decision of the Court below to award exemplary damage of N5,000:00 and order for the refund of N5,000:00 cost of the items purchased by the appellant is perverse.

In his reply to the respondent submissions on award of damages, the appellant submitted that the failure of the Court below to apply the reasonable man’s test in arriving at the amount of exemplary damages of N5,000:00 is a wrong exercise of discretion which is not in line with the law. He referred to CBN V. OKOJIE (SUPRA).

In response to the cross-appeal, the appellant submitted that

the respondent/cross-appellant having denied the receipt of exhibit A, it is impossible to certify exhibit A as a true copy of the document and the only alternative means of proving the service of the document is to tender the endorsed copy. On exhibit B, he referred to paragraph 6 of the statement of defence and statement on oath of DW1 at page 42 of the additional record of appeal where the police extract dated 25/5/2012 was pleaded and the evidence of DW1 on page 100 of the additional record of appeal, he submitted that the oral evidence of DW1 cannot contradict exhibit B. On the issue of duty of care, the appellant submitted that by Section 4 of the Police Act, the duty of the police is not only to prevent crime but also to detect crime whether committed in their presence or not and to apprehend the offender. He further submitted that the negligence in the case on appeal is the refusal of the police to take action to detect the crime committed by the Idi-Ape boys and refusal to follow him to the scene of the crime to apprehend the offenders.

In his reply to the appellant’s submission in respect of the cross-appeal, the respondent/cross-appellant

submitted that Exhibit A is a photocopy and since no foundation was laid for its admission, it is inadmissible in evidence and liable to be expunged from the record.

RESOLUTION:
The Nigeria Police Force is a creation of the statute and the Constitution. Section 214 (2) (b) of the Constitution provides that members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law. Section 4 of the Police Act states that 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.

It is the position of the Court that once a complaint of commission of crime is properly laid before the police, it is the constitutional and statutory duty of the police to investigate it as investigation of crime, prevention and detection of crime and preservation of life and property

are the primary duties of the police. It is the right of the appellant to make a complaint to the police after he was attacked and his properties snatched from him. The police have a duty to investigate the complaint. See FABIYI V. STATE (2013) LPELR-21180 (CA) AT 45-46 (D-G). ISIYAKU & ANOR. V. C.O.P YOBE STATE & ORS. (2017) LPELR-43439 (CA) AT 26-27 (D-C). The case of the appellant is that the police neglected or failed to perform their constitutional duty by their refusal to investigate his complaint and apprehending the offenders. The respondent denied that such complaint was made to the police. Therefore, the first controversy or issue which called for consideration and resolution by the Court below was whether the appellant made a complaint about the alleged attack on him to the police. The Court below analysed and evaluated the evidence led by both parties including exhibits A and B and came to the conclusion that the case of claimant that the police refused to act on his complaint was established.

The law is trite that evaluation of evidence and ascription of probative value thereto are primary duties of the trial Court that saw, heard and

observed the demeanour of a witness while testifying. Where the trial Court duly and correctly discharged its duty and made correct findings based on the evaluated evidence, the appellate Court has no power to embark on re-evaluation of the evidence to substitute its own views. See OLONADE & ANOR. V. SOWEMIMO (2014) LPELR-22914 (SC) AT 26-27 (E-A). AKINBADE & ANOR. V. BABATUNDE & ORS. (2017) LPELR-43463 (SC) AT 19 (C-F). USMAN V. STATE (2014) LPELR-22879 (SC) AT 23 (D-E). The appellate Court will only interfere with the finding of a trial Court if the trial Court fails to perform its duty and the findings are perverse. See ALIYU V. STATE (2013) LPELR-20748 (SC) AT 32-33 (E-A). ENUKORA V. FRN (2018) LPELR-43822(SC) AT 14 (C-F).

In ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D), the Supreme Court per Oputa J.S.C. explained the meaning of a “Perverse decision as follows:
“Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts

his eyes to the obvious.”

In paragraph 6 of the Amended Statement of Defence filed on 26/10/2017, the respondent/cross-appellant pleaded the extract from the police diary of ‘C’ Division, Oja-Oba made on 21/11/2011. However, the copy of the extract attached to the Amended Statement of Defence is that of 25/5/2012. In paragraph 6 of DW1’s statement on oath sworn to on 13/12/2012 and adopted by DW1 at page 99 of the additional record of appeal, the same extract of 25/5/2012 was mentioned. Under cross-examination, DW1 confirmed at page 100 of the record that the extract tendered through her and admitted as exhibit B is the police extract recorded on 21/11/2011. She confirmed that the writer is a woman constable Margret Adebayo attached to the counter as station writer. The extract marked exhibit B and transmitted to his Court as such is the extract recorded on 21/11/20. There is nothing about the appellant’s complaint in exhibit B. The evidence of the appellant in paragraphs 16 and 17 of his statement on oath sworn to on 4/5/2012 is that on 21/11/2011, the police at Idi-Ape police post and “C” department refused to take

down his complaint. Exhibit B confirmed the fact that the police at “C” Division did not take down the appellant’s complaint. The evidence of the appellant is that he met a woman police at the counter at ‘C’ department on 21/11/2011. Exhibit B and DW1’s evidence confirmed the fact that the person on duty at the counter till 2156 hours on 21/11/2011 was a woman constable Margret Adebayo. Thus the evidence of DW1 and exhibit B tendered through her confirmed the evidence of the appellant that he was at “C” department and laid his complaint to the police but the police on duty refused to take down his complaint rather they sent him back to Idi-Ape police post where the two policemen on duty also refused to take down his complaint and act on same. He stated in paragraph 19 of his statement on oath that he went back to “C” division on 22/11/2011. On that day, his complaint was entered in the police diary but he was asked to come back in 3 days. The respondent/cross-appellant tendered the extract of diary for 21/11/2011 but failed to tender that of 22/11/2011. Section 167(d) of the Evidence Act provides that

evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. Therefore it is presumed that the respondent/cross-appellant did not produce the diary of 22/11/2011 because it is unfavourable to the police. The evaluation of the evidence and the finding made by the Court below cannot be disturbed.

The respondent/cross-appellant attacked the decision of the Court below for relying on exhibit A on the ground that it is a public document which is not certified as a true copy as required by law. Exhibit A is the letter written to the respondent by the appellant. The appellant in paragraph 14 of Amended Statement of Claim on pages 12-14 of the record of appeal pleaded the letter as follows:
“14. On the 6th January, 2012 the claimant submitted his letter dated 6th January, 2012 to the Commissioner of Police, Kwara State through his secretary, whose name is unknown to the claimant and the said secretary instructed one Fatigun Samuel of the X-squad’s office of the Police Headquarters, Ilorin, Kwara State to endorse the receipt of the letter and he did so. (The claimant hereby pleads the letter

dated 6/1/12, entitled Notification of Omission of Duty to arrest, and to protect life, welfare and food items and shall rely on it at the trial of this case).”

By paragraph 2 of the Amended Statement of Defence on pages 15-16 of the record of appeal, the respondent admitted paragraph 14 of the statement of claim. However, the respondent averred in paragraph 11 of the Amended Statement of Defence that no complaint was brought to the notice of the respondent. DW1 also stated so in paragraphs 2 and 15 of her statement on oath. When exhibit A was shown to her, she said exhibit A was not received by the respondent because the stamp, the rank and signature of the receiver is not on the document. The Court below in attaching probative value to exhibit A held as follows at page 28 of the record of appeal:
“That the claimant submitted exhibit ‘A’ titled “notification of omission of duty to arrest and to protect life, welfare and food items”, to the Commissioner of Police Kwara State through his secretary on 6/1/2012, is not in dispute, this fact is settled by the pleadings.
The defendants paragraph 1 in the statement

of defence thereat was a general traverse of claim while paragraph 4 denied some listed paragraphs 3, 11, 12, 13 and 15 (a-c) and put the claimant to the strictest proof thereof. It suffices to state that paragraph 4 has not frontally denied the said averments of the claimant.”

I cannot find any legally acceptable reason to interfere with the finding of the Court below. Both in his pleadings and evidence, the respondent/cross-appellant presented a very inconsistent defence. The law is settled that a party should be consistent in the presentation of his case both in his pleadings and in his evidence before the Court. See COKER V. SABA & ORS. (2018) LPELR-46573 (CA) AT 36 (C-F). NWABUDE & ANOR. V. UGODU & ORS. (2011) LPELR-9173 (CA) AT 31 (A-B); OBINWUNNE & ANOR. V. OBINWUNNE & ANOR. (2018) LPELR-46062 (CA) AT 11-12 (B-C). The respondent cannot in one paragraph of his pleading admit the receipt of exhibit A and in another paragraph of the same pleading deny the receipt of the same document. No Court would accord any credibility to a witness who gives contradictory evidence on one issue. Not only is the averment of the respondent

contradictory, the evidence of DW1 contained in her statement is a carbon copy of Amended Statement of Defence. Apart from the contradictions in the pleadings and the evidence of the respondent’s witness, DW1 was not in a position to say whether or not exhibit A was received in the office of the respondent. It is clear from her evidence that she was serving at “C” division at the time exhibit A was delivered to the respondent’s office. The Court below was right not to attach any probative value to the evidence of the respondent’s witness that exhibit A was not received by the respondent as it is worthless.

The argument of the respondent that exhibit A is a public document is a further contradiction in the case of the respondent. There is no doubt that exhibit A is a letter written by a private citizen to a public officer, the Commissioner of Police. Once a private letter addressed to a public officer is received by the addressee and same is kept as part of the public record in the officer’s office, the private letter transits to a public document. In such a situation once the letter is produced from the custody of the

authorised public officer, by virtue of Sections 102-105 of the Evidence Act, only a properly certified true copy by the appropriate officer who has custody of the original is admissible in evidence to prove the content of the original. See OMALE V. FED. MIN. OF LANDS, HOUSING AND URBAN DEV. (2015) LPELR-25906 (CA) AT 19-25. PDP V. INEC (2014) LPELR-23808 (SC) AT 42-43 (A-G). IN ONWUZURUIKE V. EDOZIEM & ORS. (SUPRA) AT 10-11 (F-B) the Supreme Court considered the issue of whether a letter written by a private citizen to the police is a public document. The Court per ONNOGHEN, J.S.C. held as follows:
“In the case of Tabik Investment Ltd v. G.T.B (2011) All FWLR (pt. 602) 1592 at 1607 this Court held that a private petition sent to the police, as in the instant case, formed part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as follows:- “By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the interpretation Act, a police officer is a public officer and so all documents from the custody of the police,

especially documents to be used in Court are public documents.”
And NGWUTA, J.S.C. AT 16 (A-E) stated thus
“The document need not be the product of the authority as long as it forms part of its records. In my humble view, the origin or authorship of a document is not determinative of its status as a public document; and this is where the trial Court erred for failure to distinguish the source or authorship of a document from what it eventually becomes. The Police, to whom the petition was addressed and who held same as part of their records are public officers within the meaning and intendment of S.109 of the Evidence Act. In the hands of the appellant who wrote it, the document was a private document, but the moment it was received by the Police to whom it was addressed it became part of the record of public officers and thus a public document. It is then a primary evidence in terms of S.94 (1) of the Act and a copy made of it as Exhibit C is secondary evidence which must be certified before it can be received in evidence.”
The respondent having denied the receipt of the letter, the implication of the denial is that the original is not in

the custody of the police. Thus there was no transition of exhibit A from a private document to a public document. Exhibit A remains a private letter in the hands of the appellant. He is entitled to produce and tender his own copy in evidence. The Court below was right to admit the letter in evidence. The respondent having denied the receipt of the letter cannot be heard to argue that the letter is a public document.

The Court was also right to hold that the evidence of the appellant remains unchallenged as he was not cross- examined at all on his several visits to the police stations particularly the “C” department to ensure that his complaint is attended to. Thus, even without the letter, the unchallenged evidence of the appellant was sufficient to establish his assertion that he made his complaint to the police and they failed to take action. The Court below was right to rely on the appellant’s evidence to conclude that the police refused to act on the appellant’s complaint

In arriving at the decision to grant the appellant’s claim, the Court below at pages 30-31 of the record held as follows:

“It is evident from the fact as revealed that the claimant tried all in his power for the station writers at the two police divisions to take down his complaint but it was refused. The claimant has led evidence in support of his pleading that his property which would have been recovered by the police on the spot remained uncovered till date. The claimant was not even cross-examined on the piece of evidence.
There is no contrary evidence in this regard.
In the light of the facts pleaded and proved, it is evident from the facts that the defendant owed a duty of care to the claimant, by refusing to attend to him and further refused to take any further action regarding the complaint lodged by the claimant via Exhibit A, I have no doubt that the defendant cannot therefore escape liability in negligence in this case. The defendant has failed to lead credible evidence to prove that it was not negligent for breach of duty. I believe the evidence of the claimant which is credible and probable and I hereby find in his favour; the consequence that should follow from the finding of absence of sufficient care in tort is to put the claimant in the position he would

have been in, if the tort had not been committed. This is the seized down (sic) of his food stuffs together with some money. “

The policemen at Idi-Ape, the police at “C” Division and the respondent are part of one Police Force. See OHANEDUM & ANOR. V. C.O.P (IMO STATE) & ORS (2015) LPELR-24318 (CA) AT 24-25 (C). NUFORO V. STATE (2015) LPELR-25994 (CA) AT 52-54 (F-A).

The appellant’s action is for damages for negligence. Proceeding from the position that the police refused and failed to take action on the complaint of the appellant, the question is whether the police owe a duty of care to individual citizens and liable to pay damages under the general principle of negligence for failure to act or investigate a complaint of commission of crime.

The claimant in an action for negligence must prove the following elements of negligence: (a) That the defendant owed him a

duty of care; (b) the duty of care was breached; (c) the defendant suffered damages arising from the breach. See IYERE V. BENDEL AND FLOUR MILL LTD (2008) LPELR-1578 (SC) AT 40 (E-F). In G.K.F. INVESTMENT (NIG.) LTD. V. NITEL PLC (2009) LPELR-1294 (SC) AT 20 (A-B), the Supreme Court held that the most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. Where a plaintiff fails to prove by evidence the actual breach of duty of care against the defendant, the action must fail.

A duty of care can be imposed or can be created by contract. See I.M.N.L. V. NWACHUKWU (2004) LPELR-1526 (SC) AT 14 (A). The duty of care under consideration in this appeal is one imposed by law.

Within the existing legal frame work including the Constitution and decided authorities, it is clear that the police owed a duty to protect the public in the performance of their statutory and constitutional duties. Apart from the duty of care owed generally to the public, the police is duty bound to exercise due diligence and reasonable care to avoid causing injury or harm to individual members of the

public in the cause of performing their duties and the police either as an institution or individual officers have always been held accountable for injuries caused to a citizen by a direct action or negligence of the police. The police have always been held liable for cases of breach of fundamental right guaranteed by the 1999 Constitutional (as amended), false imprisonment and even death caused by negligence act of the police. See ADESINA V. PEOPLE OF LAGOS (2019) LPELR-46403 (SC) AT 26 (C-E) where the Supreme Court Per KEKERE-EKUN, J.S.C held as follows:
“The appellant being a Police officer trained in the use of firearms, had a duty to handle his firearm with care and not recklessly as he did in this case. The police have a legal duty to protect the citizenry and to uphold law and order. Their training in the use of firearms is not for the purpose of recklessly intimidating members of the public at the slightest opportunity.”
In OLAIYA V. STATE (2017) LPELR-43714 (SC) AT 33-34 (E-B) the Supreme Court Per SANUSI, J.S.C held as follows:
“From the evidence adduced at the trial Court, there is adequate proof that the victim’s (Kehinde Ayo

Faluyi’s) death was caused as a result of the gun shots fired at him by the appellant. The appellant had admitted that he fired some gun shots on the day of the incident, albeit, without intent to kill the deceased, but to scare the crowd. The settled law is that, a man intends the natural consequences of his acts. In exercise of official duty a police officer is duty bound to take necessary precaution and also to exercise due care and caution in order to avoid causing injury, harm or death of other persons.”
See also I.G.P & ANOR. V. AGBINONE & ORS. (2019) LPELR-46431 (CA) AT 21-32 (F-B). OKAFOR & ANOR. V. AIG POLICE ZONE 11 ONIKAN & ORS (2019) LPELR-46505 (CA).
In HILL V. CHIEF CONSTABLE OF WEST YORKSHIRE (1989) 1 AC 53, 1988 2 All ER238 the claimant’s daughter was a victim of a serial murder. The claimant sued the police and claimed damages for negligence on grounds that if the police had diligently investigated the previous cases of murder in the area and apprehend the attacker, the murder of her daughter would have been prevented. The issue which came up for determination was whether the police owe a duty of care to

individual members of the public who suffer injuries as a result of the activity of a criminal. The Court held that the police do not owe a general duty of care to individual members of the public who suffer as a result of the criminal’s activity.
In MICHEAL & ORS. V. THE CHIEF CONSTABLE OF SOUTH WALES POLICE & ANOR. (2015) UK SC2, the claimants are the parents and children of the victim of the crime. The victim had made an emergency call to 999 to report that her ex-partner was in her house and had threatened to kill her. A botched dispatcher response resulted in delayed arrival of the police. When the police arrived at her house, they found her stabbed to death by her ex-partner. The claimants claimed damages for negligence at common law and damages under the Human Rights Act, 1998 for breach of the defendants’ duties as public authorities to protect the victim’s right to life under Article 2 of the European Convention on Human Rights. The Supreme Court by a majority of 5- 2 held that:
97. “…. English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or

property of a claimant (C) caused by the conduct of third party (T): Smith v. Littlewoods Organisation Ltd (1987) AC 241,270 (a Scottish appeal in which a large number of English and Scottish cases were revived. The fundamental reason, as Lord Goff explained, is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.”
The Court further held that:
102. It is true the categories of negligence are never closed (Heaven v Pender (1883) 11 QBD 503), and it would be open to the Court to create a new exception to the general rule about omissions. The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the Court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier

limitation is no longer logically or socially justifiable. In doing so it pays regards to the need for overall coherence. Often there will be a mixture of policy considerations to take into account.”
The Court dismissed the claim under negligence and sent the claim under the Human Rights Act, 1998 for breach of the defendants’ duties as public authorities to protect the victim’s right to life under Article 2 of the European Convention on Human Rights back to the High Court for hearing.
In ROBINSON V. CHIEF CONSTABLE OF WEST YORKSHIRE POLICE (2018) UK SC 4, police officers and the suspect the police were trying to arrest collided with and injured the claimant, a pedestrian. The United Kingdom Supreme Court held that the police owed a common law duty of care to avoid harming bystanders in the pursuit of criminals but the police are not normally under a duty of care to protect individuals from a danger or injury which they have not themselves created.
In the United States of America’s case of Riss v. City of New York 22 NY 2d 579, 240 Nen 2d 860 (1968), the Court held that the police do not owe a duty of care in negligence

for the protection of a member of the public unless they undertake a duty to protect a particular member of the public and expose them without adequate protection to risks which materialise.
The above cases and others established the principle that the police may be liable in tort of negligence to persons who are injured as a direct result of police actions. The police generally do not owe a duty of care to individual members of the public in the performance of their investigative duties to protect them from harm caused by criminals.
In FAWEHINMI V. I.G.P. & ORS (2002) LPELR-1258 (SC), the appellant filed an originating summons file at the Federal High Court, Lagos and sought inter alia an order of mandamus to compel the police to investigate the criminal allegations which he made against the Governor of Lagos State. On whether the police can exercise some measure of discretion in the exercise of its powers, the Court per UWAIFO, J.S.C AT 20-21 (D-B) held that:
“Black’s Law Dictionary (supra) at page 1041 says: “Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals and general

welfare within constitutional limits and is an essential attribute of government.” Indeed, the police are the outward civil authority of the power and might of a civilised country. The generality of the public is potentially affected one way or another by their action or inaction. I think it will be a denigration of the aura of authority they represent and a disservice to society to suggest that they can exercise no discretion in their duty of the maintenance of law and order, or, to be specific, in their investigation of any particular allegation of crime even if it were to be an obvious wild goose chase. I am satisfied that in the performance of their duty to maintain law and order, to investigate allegations of crime and to arrest, the police have and can exercise some measure of discretion. It all depends on the circumstances of every occasion, the best of their capability, the image of the police force and the overall interest of the society.”
On purport and essence of an order of Mandamus, the Court held as follows:
“Mandamus is a high prerogative writ which lies to secure the performance of a public duty in the performance of which the

applicant has a sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand, be done. If there is discretion in the performance of the duty, the Court has the power to examine whether the discretion to refuse to act has been properly exercised. In the exercise of that power, the Court will not lightly overrule the discretion just because it considers it desirable that the duty be performed. Even if it is found that the discretion was not properly exercised or that there was in fact no discretion at all in the matter, the Court may still exercise its own discretion not to order mandamus on the general ground that the Court would make no order in vain which could no longer be carried out; or on the other ground of expediency that it would serve no useful purpose even if the order were implemented. In those instances, the exercise of the Court’s discretion will need also to pass the usual test: See de Smith’s Judicial Review of Administrative Action, 4th edition, pages 538-564. If it does not, an order made by the

Court is liable to be set aside. see Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at p.445; Okere v. Nlem (1992) 4 NWLR (Pt.234) 132 at p.149; Commissioner for Local Government v. Kaderbhai (supra) at pp.660-661.”
In METROPLIS V. DSD & ANOR. (2018) UKSC 11, the judges unanimously held that the police have a duty to investigate serious violent crimes which amount to arguably inhuman and degrading treatment (in breach of Article 3 of the E.C. HR) effectively, independently and promptly and the police can be sued if they failed to do so but not every claim will result in payment of damages.
The sum total of all that I have said is that generally the police have a statutory duty to prevent crime, investigate allegation of crime, apprehend offenders but the police owe no duty of care to individuals to prevent injury or harm caused by a criminal. Even where there is a very serious violent crime and bad systemic or operational failings as in this case, the claimant cannot sue the police under the common law of negligence and claim damages for failure to act on a complaint of crime or for injuries suffered as a result of the activity of a criminal.

The duties of the police under Section 4 of the Police Act is owed to the members of the public at large and does not involve the kind of a special relationship necessary for the imposition of a private duty of care to the individual members of the public the breach of which will entitle an individual to sue the police for damages under the general principle of negligence.

I am of the firm view that though the exercise of the discretion by the police to investigate or not to investigate allegation of crime will not lightly be interfered with, the discretion is not absolute. It is subject to a judicial review. Where it is shown that the discretion has not been properly exercised and not in the public interest, the police may be compelled by an order of mandamus to investigate an allegation of crime but such order will not be issued as a matter of course. See FAWEHINMI V. I.G.P & ORS. (SUPRA).

The Courts are wary of the consequence of imposition of liability on the police to compensate victims of violent acts of a third party or criminals on the basis that the police should have prevented the crime. The payment of compensation and the costs of dealing

with claims, whether successful or unsuccessful, would come from the police budget, when at this time the major complaint of the police like any other public institution in this country is inadequate funding.

I have no doubt in my mind that the appellant felt disappointed and let down by the institution whose primary duty is to protect him and rightly so. I stated at the beginning of this judgment that the appellant is a lawyer. However, anyone who has the opportunity of seeing him physically and assessing his mental state and physical fitness would without any iota of doubt come to the conclusion that he deserved the protection of the police in the circumstance he found himself that day. The failure of the police to attend to him is a confirmation of the systemic failure of our public institutions to treat the welfare of citizens seriously. I say no more than this.

For the above reasons, the order for the refund of the N5,000:00 being the value of the property taken from the appellant is not supported by law. The loss of the items is a direct result of the criminal activities of third parties for which the police is not liable. The award of

N5,000:00 for failure to investigate the allegation of crime is also not supported in law. Within the legal frame work presently in operation, no award of monetary compensation can be made against the police for failure to investigate a complaint of crime.

The law is settled that an award of damages can be upset or interfered with by an appellate Court if the trial Court acted or proceeded upon wrong principle of law or acted under a mistake of law. See F.B.N. & ORS. V. A.G. (FEDERATION) & ORS (2018) LPELR-46084 (SC) AT 45 (A-D). In UBN PLC V. CHIMAEZE (2014) LPELR-22699 (SC) AT 40 (D-F), the Supreme Court per ARIWOOLA, J.S.C. held as follows:
“The object of an award of damages is to give compensation to the plaintiff for the damages, loss or injury which he has suffered. However, before damages can be recovered by a claimant, there must be a wrong committed. In other words, recoverable damages by a plaintiff must be attributable to the breach of some duty by the defendant. See; Bourhil Vs Young (1943) AC 92; Adene Vs. Dantunbu (1994) 2 NACR 74.”

The Court below acted under a mistake of law in awarding damages for negligence against the

respondent on the ground that the respondent owed the appellant a duty of care and that the respondent breached that duty.

In conclusion, the appeal fails and it is hereby dismissed. The cross-appeal has merit and it is hereby allowed. The judgment of the High Court of Kwara State delivered in Suit no. KWS/112/2012 by S. T. Abdulkadir, J. on 23/5/2018 is hereby set aside. The cross-appeal having succeeded, the appellant’s claim fails and it is hereby dismissed. Each party shall bear his own cost.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUF, J.C.A.
He has painstakingly dealt with all the Issues presented by the parties for determination.
I have nothing more useful to add. The Appeal fails and it is dismissed.
The Cross-Appeal succeeds and it is allowed.

IBRAHIM SHATA BDLIYA, J.C.A.: The appeal has no merit. I read before now the leading judgment just delivered by my Noble Lord, MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. I am in total agreement with the reasoning and decision arrived at in dismissing the

appeal, and allowing the cross-appeal. All the issues raised for determination in the appeal and cross-appeal have been considered and dealt with admirably. I have nothing useful to contribute to the erudite judgment. I abide by the order made on costs.

Appearances:

Appellant appears in person. For Appellant(s)

O. Adesina (Mrs) Senior State Counsel, with him, A. O. Hameed, Senior State Counsel, Ministry of Justice, Kwara State. For Respondent(s)