GEORGEWILL v. LAMBERT ELECTROMEC LTD & ANOR (2021)

GEORGEWILL v. LAMBERT ELECTROMEC LTD & ANOR

(2021)LCN/15171(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, June 10, 2021

CA/PH/FHR/88/2018

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

SANITARIAN CHIEMEZIE C. GEORGEWILL APPELANT(S)

And

1. LAMBERT ELECTROMEC LTD 2. MR. FRANCIS DEMEKAA RESPONDENT(S)

RATIO

WHETHER OR NOT A DECISION ON ANY POINT OF LAW OR FACT NOT PLEADED AGAINST IS DEEMED TO BE CONCEDED BY THE ADVERSE PARTY

It is rudimentary law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties. There is a surfeit of authorities on this settled principle of law. I will mention a few. See OGUNYADE vs. OSHUNKEYE (2007) ALL FWLR (PT 389) 1175 at 1206-1207, UNITY BANK vs. BOUARI (2008) 7 NWLR (PT 1086) 372 at 400, ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47, FIRST BANK vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 7-8. The legal implication therefore is that the finding of the lower Court that the events that transpired on the fateful day were not a violation of the Appellant’s fundamental rights remains inviolate and inviolable. PER OGAKWU, J.C.A.

WHETHER OR NOT A CAUSE OR MATTER SHALL BE DEFEATED BY REASON OF MIS-JOINDER OR NON-JOINDER OF PARTIES

Howbeit, the legal position is well settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the parties actually before it. See PEENOK INVESTMENT LTD vs. HOTEL PRESIDENTIAL (1982) 12 SC 1, BELLO vs. INEC (2010) LPELR (767) 1 at 35, IFEANYICHUKWU (OSONDU) COMPANY LTD vs. SOLEH BONEH (NIGERIA) LTD (2000) LPELR (1432) 1 at 32 and INEC vs. DPP (2015) LPELR (24900) 1 at 12-17. The lower Court was therefore wrong to hold that the failure to join the police officers as parties to the suit was fatal. PER OGAKWU, J.C.A.

WHETHER OR NOT THE APPEAL COURT IS CONCERNED WITH WHETHER A DECISION APPEALED AGAINST IS CORRECT AND NOT WHETHER THE REASONS GIVEN ARE CORRECT

Fascinatedly, the un-appealed finding and decision of the lower Court that the affidavit evidence did not prove that the Appellant’s fundamental rights were breached is the correct decision. An appellate Court is concerned with whether the decision appealed against is the correct decision and not whether the reasons given are correct: NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161, POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36 and REGD TRUSTEES OF AUTO SPARE PARTS AND MACHINERY DEALERS ASSOCIATION vs. JOHN (2020) LPELR (49541) 1 at 23-24. PER OGAKWU, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE BEFORE IT AND ASCRIBE VALUE TO IT

The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. An appellate Court will not interfere unless there is compelling reason so to do. Where however, as in the circumstances of this case, the evidence is affidavit evidence and documentary in nature, an appellate Court is in as good a position as the trial Court to evaluate the evidence. See IWUOHA vs. NIPOST (2003) LPELR (1569) 1 at 29, OKORO vs. OKORO (2018) 16 NWLR (PT 1646) 566, HWANDE vs. BIEM (2019) LPELR (46868) 1 at 31 and UMUAHIA CAPITAL DEVT. AUTHORITY vs. ANIKE (2015) LPELR (24910) 1 at 40-41. PER OGAKWU, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF A PERSON WHO LAYS A COMPLAINT TO THE LAW ENFORCEMENT AGENCIES TO DECIDE WHAT ACTION THEY SHOULD TAKE ON THE COMPLAINT

I stated the legal position in the following words:
“It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 536 and Section 4 of the Police Act. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal was spawned by the events that transpired when the Appellant went to serve an Inspection Notice at the premises of the 1st Respondent. The Appellant, contending that his fundamental rights were infringed on account of the said events instituted proceedings at the High Court of Rivers State for the enforcement of his fundamental rights to life, dignity of human person, personal liberty and freedom of movement in SUIT NO. PHC/590/2016: SANITARIAN CHIEMEZIE C. GEORGEWILL vs. LAMBERT ELECTROMEC LIMITED & ANOR. The grounds for the Appellant’s application are as follows:
“a. The Applicant as the Head of Team A of the Industrial Hygiene, Pest Control and Water Sanitation Unit of the Environmental Health and Safety Department of the Rivers State Ministry of Environment on his routine quarterly health inspections visited the premises of the Respondents on the 28th day of April, 2014 to serve an inspection notice, but for allegedly misspelling of name of the 1st Respondent, Lambert Electromec Limited as Lambert Electronics Limited, and he was subjected to false

imprisonment, detained and locked on the orders of the 2nd Respondent from 15.35pm – 16.05 within the 1st Respondent premises and detained from 16.05 to 17.20 at the Police post at the Elf Road/Chief Nwuke Street junction until ASP Adeleke as the Police Officer in charge of the station reviewed his case and found him innocent and released him without any just cause, that it violates the fundamental rights of the Applicant.
b. That the Applicant was without any justification and provocation on the orders of the 2nd Respondent as the company’s accountant assaulted, molested and violently mistreated, manhandled, tossed about and shoved around while on an official duty after the Applicant was being detained and the Applicant to assert his right to freedom of movement and right to liberty and human dignity tried to stop the security guards at the gate of the 1st Respondent from locking him inside the 1st Respondent’s premises.
c. The Applicant was without cause subjected to so much stress, psychological and emotional trauma by the assault, molestation, mistreatment and manhandling by the Respondents while on an official duty in the

premises of the Respondents.
d. That the said assault and unprovoked violence on the Applicant affected the health of the Applicant adversely.
e. That the acts of false imprisonment and detention coupled with assault, molestation, mistreatment and manhandling of the Applicant by the 1st and 2nd Respondent violated the Applicant’s fundamental right to life, dignity of the human person, liberty and freedom of movement.”
Premised on these grounds, the Appellant claimed the following reliefs:
“1. A DECLARATION that the acts of the 1st and 2nd Respondents and by his agents and security guards working for the 1st Respondents and others locking the Applicant inside the premises of the 1st Respondent and thereby falsely imprisoning, detaining and holding the Applicant hostage from 15.28pm to 16.05pm at the 1st Respondent’s premises and from 16.05 to about 17.20 at the Police Post at Elf Road/Chief Nwuke Street junction at the instigation of the Respondents against the will and without the consent of the Applicant and without any just cause violates the right of the Applicant to the dignity of human person, right to

liberty and freedom of movement.
2. A DECLARATION that the assault, molestation, manhandling and mistreatment meted to the Applicant by the 1st and 2nd Respondents as ordered by the 2nd Respondents and by the security guards without any justification and provocation was degrading, humiliating and a form of inhuman torture which violates the Applicant’s right to liberty, life and human dignity as enshrined in the Nigerian Constitution and the African Charter on Human and Peoples Rights.
3. AN ORDER that the 1st and 2nd Respondents pay to the Applicant the sum of one hundred million naira (N100,000,000.00) as general, exemplary and aggravated damages for the violation of the rights of the Applicant to life, liberty, dignity of the human person and freedom of movement and for psychological trauma, embarrassment, social, physical and emotional stress caused to the Applicant and for the unjustified and unprovoked assault, molestation, mistreatment and manhandling of the Applicant and for false imprisonment and holding the Applicant who is a very senior civil servant as a hostage within the 1st Respondent’s premises for over thirty minutes on the 28th day of April, 2014.”

Briefly, the case of the Appellant is that having served the Inspection Notice at the premises of the 1st Respondent, he was detained on the orders of the 2nd Respondent on the ground that the Inspection Notice was wrongly addressed to a different company. He said that he tried to correct the mistake by issuing another Notice in the correct name but that the 2nd Respondent asked the security guards to manhandle him and that the 2nd Respondent further invited Police Officers from a nearby Police Post who further detained him at their Police Post until their Officer-in-Charge came and ordered his release.

The Respondents denied infringing the Appellant’s fundamental rights, stating that the period the Appellant spent in the 1st Respondent’s premises was on account of the refusal by the Appellant to issue a new Notice after the mistake in name was pointed out to him and that it was the scene created by the Appellant at the 1st Respondent’s gate that attracted the Police and that upon the intervention by the Police, the Appellant withdrew the earlier Notice and issued another Notice in the correct name

of the 1st Respondent. The Respondents maintained that the Police neither arrested nor detained the Appellant.

The case was heard on the affidavits filed and exchanged by the parties and the written addresses of their counsel. In its Ruling, which was delivered on 16th October 2017, the lower Court dismissed the Appellant’s case. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 15th January, 2018. The scarified ruling of the lower Court is at pages 84-93 of the records, while the Notice of Appeal is at pages 94-96 of the Records.

The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument, which learned counsel adopted and relied upon at the hearing of the appeal. The Appellant filed the Appellant’s Brief on 25th April, 2018 and a Reply Brief on 13th March, 2020. The Reply Brief was deemed as properly filed on 22nd March, 2021. The Respondents’ Brief of Argument was filed on 16th October, 2019 but deemed as properly filed on 22nd March, 2021.

The Appellant formulated three issues for determination in

the appeal, videlicet:
“1. Whether the non-joinder by the Applicant of the police officers that arrested and detained him at the instance of the Respondent for his application to enforce his Fundamental Human Right to succeed in this case. Ground 1.
2. Whether it was mandatory under the Fundamental Human Right Enforcement Procedure Rules 2009, for an applicant to call the police officer, that arrested or other visitors as witness for his application to succeed against the Respondents in this case.
3. Whether the act of the lower Court of delivering its judgment outside the 90 days constituently [sic] provide [sic] by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended does not amount to judicial misconduct that renders the judgment of 16/10/2017 a nullity.”

On their part, the Respondents distilled two issues for determination, scilicet:
“1. Whether in the circumstances of this case, there was a breach of the Appellant/Applicant’s fundamental human right by the Respondents?
2. Whether the act of the lower Court by delivering its judgment outside the ninety (90) days as

constitutionally stated by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended renders the judgment of 16/10/2019 [sic] a nullity?”

I find the issues distilled by the Respondents idoneous. The Respondents’ issue number one encompasses the Appellant’s issue numbers one and two, while the Respondents’ issue number two is akin to the Appellant’s issue number three. Accordingly, it is on the basis of the issues as crafted by the Respondents that I would presently consider the submissions of learned counsel and resolve this appeal. I would however start with issue number two which interrogates the question of whether the decision of the lower Court is a nullity.

ISSUE NUMBER TWO
Whether the act of the lower Court by delivering its judgment outside the ninety (90) days as constitutionally stated by Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended renders the judgment of 16/10/2017 a nullity?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the judgment of the lower Court was delivered about one hundred and

twenty (120) days after final address, which is in contravention of the provisions of Section 294 (1) of 1999 Constitution. It was stated that the Appellant had suggested that parties re-adopt their addresses but that the lower Court did not do so.

Referring to Section 294 (5) of the Constitution, it was asserted that the lower Court deliberately delivered its judgment after the constitutionally stipulated ninety (90) days, without recourse to the need for speedy dispensation of justice in fundamental rights applications and thereby occasioned a miscarriage of justice. The cases of SODIPO vs. LEMMINKAINEN OY (1985) 2 NWLR (PT. 8) 547 at 557, OGUNDELE vs. FASU (1999) 12 NWLR (632) 662, OKON vs. ITA (2010) LPELR (9010) 1 at 15-16, ATUNGWU vs OCHEKWU (2004) 17 NWLR (PT 401) [sic] 18 and IGWE vs. KALU (2002) 5 NWLR (PT 761) 678 were relied upon.

The Court was urged to set aside the decision of lower Court for the gross misconduct by the lower Court in failing to deliver its judgment within ninety (90) days of final addresses, which occasioned a miscarriage of justice.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that a

judgment given outside the ninety (90) days stipulated in Section 294 (1) of the Constitution can only be set aside on a complaint that a miscarriage of justice was occasioned. The cases of ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT 1401) [sic] 18, IGWE vs. KALU (supra), ALIMI vs. KOSEBINU (2016) 17 NWLR (PT 1542) 337 at 357, BEKS KIMSE (NIG) LTD vs. AFRICA (2016) 1 NWLR (PT 1494) 456 at 473 and TOTAL NIG PLC vs. NEW CARGO HOLDING CO. (2015) 17 NWLR (PT. 1489) 558 at 594-595 were cited in support. It was contended that the Appellant has not shown a miscarriage of justice that was occasioned by the delay in delivering the ruling.

RESOLUTION OF ISSUE NUMBER TWO
Section 294 (1) of the 1999 Constitution as amended stipulates as follows:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
The main thrust of Section 294 (1) of the 1999 Constitution is for a Court to deliver its

decision in writing not later than ninety days after the conclusion of evidence and final addresses. From the cold printed records, the parties addressed the lower Court on 16th June, 2017. (See pages 81-82 of the Records). Thereafter the lower Court fixed 26th July, 2017 for judgment. Judgment was however not delivered until 16th October, 2017. It is effulgent from the foregoing that the period for the lower Court to deliver judgment in this matter started running from 16th June, 2017 when the final addresses of counsel was taken. The judgment of the lower Court delivered on 16th October, 2017 was delivered outside the period stipulated in Section 294 (1) of the Constitution. I would return shortly to consider the legal effect of this, but let me brevi manu, address the Appellant’s suggestion that a re-adoption of the final addresses would have re-opened the running of the constitutional period within which the lower Court was to deliver its decision.
I was privileged to expound the law in this regard in the leading judgment in OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 9-11. This is what I said:
“Without attempting to lay down any

general rules in this regard, while it may be desirable for a Court to entertain further address on an issue not covered in the original final address, in such a situation time would then run from the date of such further address, it does not seem to me permissible for a Court to simply invite counsel to re-adopt their address. Such an exercise does not add any new points to the initial final address and ought to be recognised for the ploy it is, id est, avoidance of the stipulations of Section 294 (1) of the 1999 Constitution.
There is a further aspect which agitates my mind in this regard, and it is on whether a Court has the vires, after the constitutional period of ninety days has elapsed, to invite parties to re-adopt their final address. While it may be permissible within the ninety-day period for a Court to invite counsel for further address, not a mere re-adoption which does not add any value to the initial final address, I am hesitant to accept that it would be justifiable if done after the ninety-day period set out in the Constitution. After the ninety-day period, the Court can only proceed to deliver its judgment when it is eventually

ready, duly complying with the provisions of Section 294 (6) of the Constitution. The effect of such a judgment will of course depend on how Section 294 (5) of the Constitution affects it. Any invitation for the parties to re-adopt their final address, without more, after the ninety-day period would not in my deferential view obviate the consequences of the non-compliance with Section 294 (1) of the 1999 Constitution as the computation of the ninety-day period will still be reckoned from the date of the initial final address. See OKON vs. ITA (2010) LPELR (9010) 1 at 15-16.”
In his concurring contribution to the leading judgment at pages 46-47, Garba, J.C.A. (now J.S.C.) stated:
“I want to emphasize that Courts in the country, especially Courts of record established by the Constitution as custodians of the Constitution, have the primary judicial obligation and duty to comply and ensure compliance with clear and plain provision of Constitution in the discharge of their functions of adjudication in case/matter brought before them: DINGYADI v. INEC (2011) 10 NWLR (1255) 347. It is undesirable that a Court would spuriously attempt to subvert

or frustrate the clear provisions of the Constitution which it has the duty to uphold and comply with. My learned brother has shown the futility of the unwitting attempt by the High Court to avoid the requirement of Section 294 (1) of the Constitution by calling the parties to ‘re-adopt’ their final addresses after more than one (1) year of the final addresses…”
Therefore, on the settled state of the law, it seems to me that the Appellant’s unsolicited suggestion for re-adoption of address, which happily the lower Court did not accede to, would have been inutile in computing the time to deliver the decision by the lower Court, which time, started running from 16th June 2017, when it took the final addresses of learned counsel in the matter.

I return to the legal effect of the decision of the lower Court having been handed down after the ninety (90) day period stipulated in Section 294 (1) of the Constitution. Now, even though the said ruling was delivered outside the ninety (90) day period stipulated by the Constitution, it does not ipso facto render the judgment a nullity. For the said decision to be rendered a

nullity, the Appellant has to establish that the said decision occasioned a miscarriage of justice. See SOETAN vs. STELIZ LTD (2010) LPELR (9051) 1 at 24-26, AKOMA vs. OSENWOKWU (2014) LPELR (22885) 1 at 41 and OFULUE vs. OKOH (2014) LPELR (23218) 1 at 22-23. Section 294 (5) of 1999 Constitution provides as follows: –
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The action at the lower Court was heard on affidavit evidence. There was no testimonial evidence that would have required the Judge to observe the demeanour of the witnesses in order to assess their credibility. The entire hearing was documentary. Though the Appellant contended that there was a miscarriage of justice, I have insightfully considered the Ruling of the lower Court and I am satisfied that the decision of the lower Court turned on the processes filed, such that the passage of

time, an extra thirty (30) days beyond the constitutional period, could not have affected the interpretation placed by the lower Court on the affidavit evidence and the documents relied upon by the parties. Accordingly, I am unable to agree with the Appellant that the decision of the lower Court occasioned a miscarriage of justice. The concomitance is that even though the judgment was delivered outside the stipulated ninety (90) day period, the judgment will still not be liable to be set aside since I am not satisfied that a miscarriage of justice had been occasioned. See OLOKOTINTIN vs. SARUNMI (1997) 1 NWLR (PT 480) 222, ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT 901) 18, IGWE vs. KALU (supra), ACB vs. AJUGWO (2011) LPELR (3637) 1 at 34-35, MOLEGBEMI vs. AJAYI (2011) LPELR (4501) 1 at 30-32, OLUSANYA vs. UBA PLC (supra) and RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 16-21.

The concatenation of the foregoing, is that this issue number two is resolved against the Appellant. The judgment of the lower Court, even though delivered outside the constitutional period of ninety (90) days of final address is not to be set aside or treated as a nullity solely on

that ground of non-compliance, as no miscarriage of justice was occasioned to the Appellant. Having so resolved issue number two in favour of the Respondent, I will now proceed to consider the other issue for determination as distilled by the Respondent.

ISSUE NUMBER ONE
Whether in the circumstances of this case there was a breach of the Appellant’s fundamental right by the Respondents?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that by Section 46 (1) of the 1999 Constitution, any person who alleges contravention of his fundament rights may apply to Court for redress vide EMEKA vs. OKOROAFOR (2017) 11 NWLR (PT 1577) 410 at 478. It was stated that the lower Court was wrong to rely on FAJEMIROKUN vs. COMMERCIAL BANK (NIG) (2009) ALL FWLR (PT 4871) [sic] 1 at 25 in dismissing the Appellant’s case for not joining the police officers who arrested the Appellant as parties to the action. It was asserted that the non-joinder of the police officers was not fatal as there was abundant evidence of the arrest and detention.

It was posited that the police officers were the agents of the Respondents and so

the Respondents were liable for the actions of their agents. The case of UKPANA vs. AYAYA (2011) 1 NWLR (PT. 1227) 61 was referred to. It was opined that the attitude of the Courts in fundamental rights cases is to ensure justice and not allow the technicality of the non-joinder of parties to defeat the cause of justice. The cases of ANOZIE vs. IGP (2016) 11 NWLR (PT 1524) 387 at 405, SADIKU vs. A-G LAGOS STATE (1994) 7 NWLR (PT 355) 235 at 248 and FAJINMI vs. THE SPEAKER, WESTERN HOUSE OF ASSEMBLY (1962) 1 SCNLR 300 or (1962) 1 ALL NLR (PT I) 205 were relied upon.

Referring to Order IX of the Fundamental Rights (Enforcement Procedure) Rules, the Appellant submitted that non-compliance with manner or form, including joinder of parties, is an irregularity which is not fatal as fundamental rights cases are sui generis vide IGP vs. IKPILA (2016) 9 NWLR (PT 1517) 236 at 291. It was opined that once the infringement of fundamental rights is established as in this case, then compensation must be awarded in order to discourage similar actions in the society. The case of OKONKWO vs. OGBOGU (1996) 5 NWLR (PT. 449) 420 at 433 was cited in support. The Court was

consequently urged to use its inherent powers to award the damages which the lower Court failed to award. The case of B.B. APUGO & SONS LTD vs. O. H. M. B. (2016) 13 NWLR (PT 1529) 206 at 257 was called in aid.

The Appellant’s submission on the second issue he distilled is that Order II Rules 2-7 of the Fundamental Rights (Enforcement Procedure) Rules, provides for how proceedings in fundamental rights cases are to be conducted and that they are not governed by the usual civil procedure rules of the Court or other form vide ANOZIE vs. IGP (supra) at 404-405. It was stated that the lower Court reviewed the processes filed by the parties but that instead of resolving the case, it deviated and held that the Appellant’s case would fail because he did not call any independent evidence to substantiate his claims. It was asserted that oral evidence is not required to resolve every seeming conflict in the affidavits filed. The cases of IGP vs. IKPILA (supra) at 284 and 291 and EZECHUKWU vs. ONWUKA (2016) 5 NWLR (PT. 1506) 529 at 548 were referred to.

It was further submitted that the contradiction that would defeat a case was not minor

inconsistencies on irrelevant issues or facts, but contradictions on material facts. The cases of IGP vs. IKPILA (supra) at 284 and BASSEY vs. THE STATE (2012) 12 NWLR (PT 1314) 2009 [sic] were relied upon. It was conclusively submitted that the duration of the detention at the 1st Respondent’s premises for about thirty minutes, did not make it any less an unlawful detention that entitled the Appellant to the award of damages. The case of AFRICLEC LTD vs. LEE (2013) 6 NWLR (PT 1349) 108 was cited in support.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the Appellant served a wrong Inspection Notice on the 1st Respondent and that it was the period of protest/argument by the parties for the withdrawal of the wrong Notice and issuance of the correct Notice that constitutes the complaint of breach of fundamental rights. It was asserted that there is no evidence to support the claim of torture, assault etc and it was maintained that the Appellant’s fundamental rights were not breached in the circumstances of the case.

The Respondents, while denying that the Appellant was detained by any police officers,

posit that if he was so detained by them, then he ought to have joined them as parties instead of holding the Respondents responsible for the actions of the police officers.

It was opined that the lower Court rightly held that the failure to join the police officers was fatal vide FAJEMIROKUN vs. COMMERCIAL BANK (NIG) LTD (2009) ALL FWLR (PT. 487) 1 at 25. It was contended that since the Respondents denied that the police officers arrested the Appellant at their behest, the Appellant ought to have furnished materials or evidence of the police officers to show that they arrested him at the instigation of the Respondents. It was asserted that failure to provide proof that the police arrested him at the instigation of the Respondents was fatal, since the law is settled that any person can report a wrong to the police, who have a duty to investigate the report. The case of ATAKPA vs. EBETOR (2015) 3 NWLR (PT. 1447) 549 at 572, OWOMERO vs. FLOUR MILLS (NIG) LTD (1995) 9 NWLR (PT. 421) 622 at 629 and EZEADUKWA vs. MADUKA (1997) 8 NWLR (PT. 518) 635 at 667 were relied upon.

The Respondents further submitted that the holding of the lower Court that the Appellant

did not call any other independent evidence to substantiate his allegation, did not imply calling oral evidence as contended by the Appellant since affidavit or material evidence would be such other independent evidence. The Respondents conclusively submit that the lower Court was right to hold that the application lacked merit as the Appellant failed to prove that his fundamental rights were breached.

APPELLANT’S REPLY ON LAW
The Appellant submits that the facts deposed to in the affidavits disclose that he was harassed, humiliated, arrested and detained as a way of revenge or punishment for the earlier actions of officials of Rivers State Government within the premises of the 1st Respondent. It was stated that the reliefs claimed by the Appellant were against the Respondents and not the police, for locking him inside the 1st Respondent’s premises in violation of his fundamental rights. It was opined that the Respondents having failed to controvert the argument or distinguish the authorities relied upon by the Appellant are deemed to have admitted them vide S.P.D.C.N. LTD vs. AJUWA (2015) 14 NWLR (PT 1480) 403 at 482. It was

maintained that the Appellant’s action ought to have succeeded on the detention at the 1st Respondent’s premises before he was taken to the police, as the Appellant reserves the right to proceed against whom he chooses. The case of IYERE vs. BENDEL FEED AND FLOUR MILL LTD (2009) ALL FWLR (PT 453) 1217 was relied upon.

The Appellant further contended that the cases of ATUKPA vs. EBETOR (supra), OWOMERO vs. FLOUR MILLS (NIG) LTD (supra) and EZEADUKWA vs. MADUKA (supra) relied upon by the Respondents were distinguishable as the Appellant’s Further and Better Affidavit is clear that the Appellant was arrested at the instigation of the Respondents. It was stated that there has to be a similarity in the facts in order for a Court to follow the principle decided in an earlier case. The case of O. & G. F. F. Z. A. vs. OSANAKPO (2019) 6 NWLR (PT. 1668) 224 at 241-242 was cited in support. It was conclusively contended that where the slightest breach of fundamental right is established as in the instant case, the Appellant is entitled to the reliefs claimed. The cases of JIM-JAJA vs. C.O.P. RIVERS STATE (2013) 6 NWLR (PT. 1350) 223-440 [sic] and

OKONKWO vs. OGBOGU (1996) 5 NWLR (PT 449) 420 at 433 were called in aid.

RESOLUTION OF ISSUE NUMBER ONE
The Appellant in his formulation of issues and submissions has proceeded on the basis that the lower Court dismissed his case merely because it held that it failed to join the police officers that allegedly detained him as parties to the action and also that he failed to call the police officers or other visitors present as witnesses. Indeed, the tenor of the Appellant’s contention takes it for granted that the affidavit evidence established the evisceration of his fundamental rights. Unfortunately, this does not seem to be so! The lower Court duly appreciated that the Appellant had the burden of establishing by the affidavit evidence that his fundamental rights were breached. Hear the lower Court at page 91 of the Records:
“Coming back to the crux of this case, that is, whether the applicant has shown by his affidavit evidence that his fundamental rights were breached by the respondents?”

The lower Court thereafter reviewed the affidavit evidence and in evaluating the evidence, it found and held as follows at page 92 of the Records:

“I have given a calm and careful consideration to the facts of this case. As revealed from the affidavit evidence of both parties before this Court, there was a first Inspection Notice served on the 2nd respondent by the applicant on the said 28th day or April, 2014; upon discovering the error on the said notice after collecting and signing for same, the 2nd respondent protested to the applicant drawing his attention to the fact that the notice served on him was wrongly addressed. Applicant said he owned up to the error and offered to withdraw same and issue another one. Thereafter argument ensued between the applicant and the 2nd respondent. In my very humble view, all these events and the argument that ensued thereafter are enough to take up about 30 minutes or more, being the length of time the applicant is alleging to have been held hostage in the premises of the 1st respondent. It is also in evidence that the intervention of the police officers led to the resolution of the problem and applicant eventually issued another notice to the 1st respondent.”

The lower Court then conclusively held thus at page 93 of the Records:
“Having carefully considered the affidavits filed in this case and after reading through the submissions of counsel in their respective written addresses, I find that this application lacks merit as the applicant has failed to prove that there has been a breach of his fundamental rights, accordingly, this application fails and is hereby dismissed.”

In ascribing probative value to the affidavit evidence, the lower Court held that “…all these events and the argument that ensued thereafter are enough to take up about 30 minutes or more, being the length of time the applicant is alleging to have been held hostage in the premises of the 1st respondent.” It is my informed view that the above finding is clear that the lower Court held that the period when the Appellant contended that his fundaments rights were infringed was actually the duration it took to resolve the issues arising from the wrong Notice he served on the 1st Respondent, and not a period of infringement of the Appellant’s fundamental rights. I have insightfully considered the grounds of appeal at pages 94-95 of the records and it is

instructive that the Appellant did not appeal against this finding. It is rudimentary law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties. There is a surfeit of authorities on this settled principle of law. I will mention a few. See OGUNYADE vs. OSHUNKEYE (2007) ALL FWLR (PT 389) 1175 at 1206-1207, UNITY BANK vs. BOUARI (2008) 7 NWLR (PT 1086) 372 at 400, ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47, FIRST BANK vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 7-8. The legal implication therefore is that the finding of the lower Court that the events that transpired on the fateful day were not a violation of the Appellant’s fundamental rights remains inviolate and inviolable.

By all odds, the Appellant has correctly submitted that actions for the enforcement of fundamental rights are governed by the procedure under the Fundamental Rights (Enforcement Procedure) Rules, 2009. It requires the use of affidavits for the speedy dispensation of fundamental

rights actions. The actions are determined on the affidavit evidence of the parties. It is therefore the affidavit evidence before the trial Court that the trial Court relies upon for the determination of the matter. The affidavit evidence must be properly evaluated and it bears restating that the onus of proof is on the applicant to establish, on the facts, that his fundament rights were indeed eviscerated. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536, JACK vs. UNIV. OF AGRIC MAKURDI (2004) LPELR (1587) 1 at 13-14 and MBANG vs. JANET (2014) LPELR (22656) 1 at 27.

It further bears restating that the Fundamental Rights (Enforcement Procedure) Rules has not placed a limit on the number of affidavits an applicant can file in support of an application. See CHIMA vs. FBN (2017) LPELR (43652) 1 at 7. In the circumstances, the kerfuffle the Appellant is making of the lower Court requiring it to call oral evidence by its decision that there is no independent evidence to substantiate the Appellant’s allegation is of no moment. As rightly submitted by the Respondents, such independent evidence would also come by way of affidavit.

As already stated, in evaluating the affidavit evidence, the lower Court held that the affidavit evidence did not establish the violation of the Appellant’s fundamental rights. I iterate that the Appellant has not complained about this finding in any of the grounds of appeal so it remains subsisting and binding. Indeed, such is the effect of the un-appealed finding of the lower Court that, even if the Appellant succeeds in his grouch with the lower Court having held that the non-joinder of the police officers was fatal to the action, it would not afford any

paregoric for the Appellant since the liability of the parties would be dependent on the finding being made that the fundamental rights were in fact breached which was not made by the lower Court.

given are correct: NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161, POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36 and REGD TRUSTEES OF AUTO SPARE PARTS AND MACHINERY DEALERS ASSOCIATION vs. JOHN (2020) LPELR (49541) 1 at 23-24. Accordingly, even where the lower Court is wrong in its reasoning that the police officers should have been made parties in the action and in its reasoning that the police officers and other visitors should have been called as witnesses, which later reasoning has not been impeached, the un-appealed finding that the affidavit evidence did not prove the infringement of the Appellant’s fundamental rights remains ensconced like the Rock of Gibraltar, making everything else cold comfort for the Appellant. Indubitably, this issue number one must be resolved in favour of the Respondents. In the circumstances of this case, the lower Court arrived at the correct decision when it held that it was not proved that there was a breach of the Appellant’s fundamental rights.

As I set about drawing the curtain on this judgment, let me state that from

the affidavits, the Respondents would not have been held liable for the alleged detention of the Appellant by the Police, if a breach of fundamental rights was proved, which I restate the lower Court rightly held that it was not proved. This is on account of the fact that the affidavit evidence does not establish that the Respondents instigated and were instrumental to the police detaining the Appellant. In RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 28-31, I stated the legal position in the following words:
“It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 536 and Section 4 of the Police Act. For the Appellant to be held to have

violated the Respondents fundamental rights, it has to be shown that he did more than lodge a formal report with the Police. It is rudimentary law that if a person orders a Policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the Policeman. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a Policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (2004) 2 NWLR (PT 858) 654. In order for a person to successfully maintain an action for violation of his fundamental rights, consequent upon an arrest and detention, it is not enough to merely establish that a report was made to the Police wherein he was named as the suspect. It needs to be established for example, that the Police did not

act on their own volition when they decided to arrest the person or that the report was totally false, malicious and without foundation. See NWADINOBI vs. BOTU (2000) 15 WRN 32 at 40.
In IGBOSONU vs. OHAYAGHA (2015) LPELR (41870) 1 at 54-55, this Court (per Mbaba, J.C.A.) stated:
‘By law, a person cannot be held liable for breach of fundamental rights simply because he made a complaint of commission of offence against another to the Police, and the Police used their discretion to arrest that other person for questioning. He can only be faulted if the complaint was ill-motivated and founded on dishonesty. See the case of Ejikeme Vs Nwosu (2002) 3 NWLR (pt. 754) 356; Balogun Vs Amubikahun (1989) 3 NWLR (Pt. 107) 18; Ejiofor vs Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba vs Director of SSS (1993) 7 NWLR (PT. 305) 353. In the case of Ogbonna vs Ogbonna (2014) 23 WRN 48, at 88, it was held that for liability to lie against a complaint to the Police, leading to the arrest, detention and prosecution of defendant, the complaint must have been made in bad faith, and the complainant did more than mere reporting the matter to the Police, and

spearheaded the arrest, detention and prosecution of the victim of his false report, even where there was no basis for it.’
The facts on which the Appellant could be liable for infringing the fundamental rights of the Respondents were not made out in the affidavit evidence before the lower Court.”
This remains the legal position as I know it. See also RITE FOODS LIMITED vs. ADEDEJI (2019) LPELR (47698) 1 at 42-45.

The concatenation and conflating of the foregoing is that this appeal is bereft of merit. It accordingly fails and it is hereby dismissed. The decision of the lower Court is hereby affirmed. The Respondents are entitled to the costs of this appeal which I assess and fix at N100,000.00.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have been privileged to have read now the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A. For the reasons which have been lucidly and elaborately stated in the judgment, I agree that the appeal should be dismissed. I too dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Ugochukwu A. Ogakwu, JCA just delivered.

I agree entirely with the reasoning and conclusions arrived in the lead judgment.

The main thrust of Section 294 (1) of the 1999 Constitution (as amended) is for a Court to deliver its decision not later than ninety days after conclusion of evidence and final addresses.
In the present case, the judgment was clearly delivered outside the period stipulated and therefore the decision fell short of the stipulation of the aforesaid Section 294 (1) of the Constitution. However, such decision does not ipso facto become a nullity unless a party has suffered a miscarriage of justice as a result of the delay. The appellant having failed to demonstrate that the delay has occasioned a miscarriage of justice, the decision of the lower Court cannot be set aside.

This appeal is therefore lacking in merit and same should be dismissed. I too dismiss the appeal and abide with the order as to costs.

Appearances:

Awari, Esq. For Appellant(s)

Uche Ewule, Esq. with him, Ms. S. A. Nwokom For Respondent(s)