SAMSON v. IGP & ORS
(2020)LCN/15276(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, June 24, 2020
CA/LAG/CV/464/2019
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
AKINRINDE ABIODUN SAMSON APPELANT(S)
And
1. INSPECTOR GENERAL OF POLICE 2. ASSISTANT INSPECTOR GENERAL OF POLICE (ZONE 2) LAGOS 3. SUPERINTENDENT OF POLICE FALUYI 4. MR. OLUWAFEMI AYODELE 5. MR. ADETOKUNBO ADESOTE SMITH RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSON HAS TO WAIT FOR AN ALLEGED THREAT TO BE CARRIED OUT BEFORE APPROACHING THE COURT FOR REDRESS AND PROTECTION
A person therefore does not have to wait for an alleged threat to be carried out by the actual contravention, breach or violation of the right in question before he can properly and validly approach the Court for redress and protection as long as the right falls within the provisions of Chapter IV of the Constitution on Fundamental Rights. See Machika vs. Katsina H.A. (2011) 3 NWLR (Pt. 233) 15, generally, Candide-Johnson vs. Edigin (1990) 1 NWLR (Pt. 129) 659, Uzoukwu vs. Ezeonu II (1991) 6 NWLR (Pt. 200) 708, Osuagwu vs. Attorney General, Anambra State (1993) 4 NWLR 13, Saude vs. Abdullahi (1989) 4 NWLR (Pt. 116) 387, Tukur vs. Governor, Gongola State (1997) 16 NWLR (Pt. 510) 549, Sea Trucks Nigeria Limited vs. Anigboro (2001) 2 NWLR (Pt. 696 159, University of Ilorin vs. Oluwadare (2006) 6-7 SC, 156, Amale vs. Sokoto Local Government Area (2012) 5 NWLR (Pt. 1292) 181, W.A.E.C. vs. Akinkunmi (2008) 4 SC, 1 Igwe vs. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61, Surveyor-General, Cross River vs. Jonathan (2014) LPELR-23380 (CA). PER GARBA, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF IS PLACED IN THE PERSON WHO APPROACHED THE COURT FOR REDRESS OF HIS CONSTITUTIONAL RIGHTS
The law is also settled that whether a person approaches a Court of law by way of an application for redress of a threat or actual breach or contravention of any of his guaranteed right under Chapter IV of the Constitution, as the person or party making the assertion or allegation against another person or party, the legal burden of initial proof of the assertion is placed on him by the law, unless or except the assertion was expressly or by necessary legal implication or presumption, admitted by the other person or party. See Sections 131, 132, 133(1) and 123 of the Evidence Act, 2011, respectively, Onah vs. Okenwa (2010) 7 NWLR (Pt. 1194) 512, Okuruket vs. Nicodemus (2001) 4 NWLR (Pt. 654) 663, Gusau vs. Unezurike (2012) ALLFWLR (Pt. 655)291, NACHPN vs. MHWUN (2010) 2 NSCR, 101, Adesanya vs. President, Federal Republic of Nigeria (1981) 5 SC, 69, (1981) ALLNLR, 1 Oha Kasim vs. C.O.P. Imo State (2009) 15 NWLR (Pt. 464) 229, Nwangwu vs. Duru (2002) 2 NWLR (Pt. 751) 265, Fajemirokun vs. Commercial Bank (2009) 2 MJSC (Pt. II) 114, Amale vs. Sokoto Local Government (supra) also reported in (2012) 1-2 MJSC, 1, Dagaci of Bere vs. Dagaci of Ebwa (2006) ALL FWLR (Pt. 306) 786, Dosunmu vs. Dada (2006) ALL FWLR (Pt. 348) 1605, Onyenge vs. Ebere(2004) 6-7 SC, 52, Buhari vs. Obasanjo (2005) 7 SC, (Pt. 1) 1. So it is not enough for a party or person to approach a Court of law with an application calling or praying for protection of his fundamental rights by way of declarations, injunction and/or other forms of reliefs on the basis of alleged threat or breach or contravention of such right. For him to be entitled to such redress or reliefs of protection, he must first produce reasonably sufficient and credible evidence before the Court to show and satisfactorily establish a real and factual threat or breach or contravention of the right alleged. Until a person produces evidence which prima facie shows or established a real threat to or factual breach or contravention of this fundamental right guaranteed under Chapter IV of the Constitution, his application before a Court for the enforcement of such right will fail and be dismissed outrightly. See Jim-Jaja v. COP, Rivers State (2013) 8 NWLR (Pt. 1350) 225; Udo v. Essien (2014) LPELR-22684 (CA); Gusau v. Umezurike (2012) ALLFWLR (Pt. 655) 219 @ 318; Okuruket v. Nicodemus (supra). PER GARBA, J.C.A.
THE DUTY AND DISCRETION OF THE POLICE
It is duty and discretion of the Police to determine whether or not to investigate a report, information or petition received from citizens on suspicion of the commission of a crime or criminal offence for the purpose of getting, collating, procuring or obtaining the material evidence that would assist them in the prevention and detection of the crime or criminal offences. See Milad, Lagos State vs. Ojukwu (supra); Fajemirokun vs. CBN Limited (supra); Adefunmilayo vs. Odintan (1958) NNLR, 31, Gbajor vs. Ogunburegui (1961) ALL NLR, 822, Fabiyi vs. State (supra), Obiegue vs. Attorney General, Federation (2014) 5 NWLR (Pt. 1319) 171.
Perhaps, I should also restate the principle of law that is now common knowledge in the Courts and to the Police, that the Constitutional and statutory powers and authority granted to them in the primary duty of detection, prevention of crimes and apprehension of offenders for maintenance of law and order, does not extend to or include dabbling into what, even on its face, a civil and contractual or commercial fiduciary relationships between citizens which have no connection with the commission of a crime or criminal offence, whatsoever. Specifically, the Courts have stated, restated and been consistent in maintaining that the Police should not allow or permit themselves to be turned into debt collectors or coercive settlers of purely civil contractual and commercial disputes. They should strive to resist any attempts made to lure them into being willing tools in the settlement of such personal civil disputes and employ their overstretched resources; human and material, towards the discharge of the primary duties and functions under the Constitution and the Police Act. See Agbai v. Okogbue (1991) 7 NWLR (Pt. 391) 1; Nkpa v. Nkume (2001) 6 NWLR (Pt. 701) 543; Igwe v. Ezeanochie (2009) LPELR-11885(CA); Gusau v. Umezurike (2012) ALL FWLR (P. 655) 89; Ibiyeye v. Gold (2013) ALL FWLR (Pt. 659) 1074; Osil v. Balogun (2012) 7 WRN, 143. PER GARBA, J.C.A.
THE POWERS OF THE POLICE IN THE COURSE OF INVESTIGATION
In the course of the investigations, the police has the legitimate power to invite any person(s) that may have further or other information or in any manner assist them in verification of the facts of a report or petition written by a citizens and can, if it becomes necessary, arrest and detain such person(s) for the purpose of the investigation, for period limited and prescribed by the constitution. The invitation and/or arrest and detention in such situation will not and cannot be said to be a violation, contravention or breach of the person(s) fundamental right to liberty and freedom of movement. Obiegue vs. A.G.F. (supra), Fawehinmi vs. I.G.P (supra), I.G.P. vs. Ubah (2015) 11 NWLR (Pt. 1471) 405. In that regard, such a person cannot approach a Court of law for the purpose of stopping or preventing the police from discharging its primary statutory duty and exercising the power to conduct investigations into the information on the commission of a crime or criminal offence. On its part, a Court would lack the requisite power and authority to stop investigations of allegations of the commission of a crime or criminal offence by the Police, so long as it is carried out in strict compliance with the relevant Constitutional and statutory provisions. Fawehinmi vs. IGP (supra), Agbi vs. Ogbeh (2005) 8 NWLR (Pt. 767) 606, Christlieb Plc, vs. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324, Onah vs. Okenwa (supra), Hassan vs. EFCC (2013) LPELR-22595 (CA), IGP vs. Ubah (supra).PER GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By a letter dated 19th of May, 2016 from the 4th Respondent’s solicitors to the 2nd Respondent, he was called upon to investigate the claim by the 4th Respondent against the Appellant and cause him to account for all funds paid so far for a building project which was agreed by the parties (4th Respondent and Appellant). The Letter was headed “RE: FRAUDULENT AND OTHER CRIMINAL ACTIVITIES OF MR. BIODUN SAMSON AKINRINDE”. The resort to the 2nd Respondent was said to be because of “the selfishly orchestrated and dishonest techniques of Mr. Akinrinde” and “his unrepentant posture” and on the basis of the letter, the 3rd Respondent invited the Appellant for investigation at the end of which, the Appellant was charged before the Federal High Court, Lagos (Lower Court) in charge No. FHC/L/512C/2016 for offences of obtaining money by false pretence contrary to Sections 1(1) (a), 3 and 10 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 (Fraud Act), Sections 14(1) (a) and 8(b) of the Architect Registration Act, Cap A19 of Laws of the Federation, (LFN) 2004, and Section 19(1)(a) of the Builders (Registration Act, Cap B13 of Laws of the Federation, 2004. In the course of the investigation by the 3rd Respondent, the Appellant said he was threatened with arrest and detention by the 3rd Respondent over the complaint of the 4th Respondent as a result of which he filed originating summons dated 4th July, 2016 before the Lower Court in Suit No. FHC/L/CS/920/2016 against the Respondents and sought for: –
“a. An Order for the enforcement of the Applicants’ right to freedom of movement, personal liberty and dignity of persons as enshrined in SS. 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
b. A Declaration that the threat of arrest and detention of the Applicant by the Respondents without reasonable cause or genuine allegation of having or being about to commit any crime by the Respondents amounts to the infringement and breach of the Applicants’ Fundamental Human Rights.
c. A Declaration that the powers and duties of the 1st, 2nd and 3rd Respondents to detect, investigate crime does not extend to recovery of debt and enforcement of commercial transaction between parties to a contract.
d. A Declaration that the invitation, and threat of arrest and detention of the Applicant in respect of the disputed claims of the 4th & 5th Respondents relating to the building construction agreement between the Applicant and the 4th Respondent amount to the infringement and breach of the Applicant’s Fundamental Human Rights and therefore null and void.
e. An Order of Perpetual Injunction restraining the Respondents jointly and/or severally from inviting, arresting, detaining or in any other manner whatsoever and howsoever curtailing the Applicant’s guaranteed Fundamental Rights to personal liberty and/or movement directly and/or indirectly on account of disputed claims of the 4th & 5th Respondents relating to the building construction agreement between the Applicant and the 4th Respondent.
f. An Order compelling the Respondents jointly and/or severally to pay to the Applicant the sum of N10 Million as exemplary, special and general damages for the infringement of his Fundamental Human Rights.
And for such further orders as this Honourable Court may deem fit to make in the circumstances of this suit.”
In brief, the facts deposed to in the Affidavit in support of the summons are to the effect that the relationship between the Appellant and the 4th Respondent was purely contractual, civil and has no element of crime or criminal offences to warrant the report or petition to the 2nd Respondent and for the police to investigate, invite and threaten the Appellant with arrest and detention.
The Respondents filed Counter Affidavits in opposition to the Appellant’s summons and after a consideration of the cases presented by the parties, the Lower Court, in a judgement delivered on the 19th of November, 2018 dismissed the summons for lacking in merit.
Aggrieved by that decision, the Appellant brought this appeal against same vide the Notice and Grounds of Appeal dated and filed on the 31st of January, 2019, on two (2) grounds from which three (3) issues are raised for determination by the Court in the Appellant’s brief filed on 2nd of May, 2019. They are as follows: –
“1. Whether the disputes between Appellant and the 4th Respondent was a civil one, consequent upon which the learned judge of the lower Court neglected to make a finding of fact or a decision on the said issue.
2. Whether the learned judge of the lower Court was in error when it held that the 4th & 5th Respondents had the right of complaint against the Appellant to the 1st-3rd Respondents which the 1st-3rd Respondents had the right to investigate.
Issues 1 & 2 are distilled from ground one in the Appellants Notice of Appeal.
3. Assuming the learned judge of the lower Court was justified in not rendering a decision on the nature of the dispute between parties (which Appellant contests), whether the learned judge ought to have granted the injunctive relief sought by the Appellant in Appellant’s petition, considering the totality of the case and counter position of parties before his lordship of the lower Court.
This issue is distilled from ground 2 in the Notice of Appeal.”
In the 4th and 5th Respondents’ brief filed on the 5th of November, 2019, deemed on 23rd of January, 2020, the following issues are submitted for decision by the Court in the appeal.
“1. Whether in view of the circumstance and injunctive nature of the reliefs sought by the Appellant on the face its Originating Summons and the 1st-3rd Respondents having commenced criminal prosecution of the Appellant since 2016 in Charge No. FHC/L/512C/2016 pending before the Federal High Court, Lagos Division (Coram: The Hon. Justice M. S. Hassan) this appeal has become lifeless and academic. (Preliminary points/issues)
2. Whether the civic duty of the 4th and 5th Respondents to report crime to relevant law enforcement agency was rightly exercised. (Distilled from ground 1).
3. Whether the Appellant’s Fundamental Human Rights was breached in any manner whatsoever by the invitation of the Appellant by the Nigerian Police for the purpose of aiding police investigation and/or whether the 1st-3rd Respondents have the right, legal obligation and powers to investigate the case against the Appellant based on the complaint made by the 4th and 5th Respondents. (Distilled from ground 2).”
The 1st – 3rd Respondents did not file a brief in the appeal even though the record of the Court shows that they were duly served with the Appellant’ Brief, Hearing Notice as well as other material processes of the appeal. They, along with the 4th and 5th Respondents, were also not represented at the hearing of the appeal on the 27th of May, 2020 but because the latter filed the brief aforementioned, the appeal was treated as having been duly argued by them on the said brief.
As can easily be noticed in the formulation of issues for determination in the Appellant’s brief, Issues 1 and 2 are indicated to have been distilled from ground 1; a lone and single ground of appeal, a practice and attitude which has consistently been deprecated by the appellate Courts for many years now. Whereas the principle of practice and procedure in the appellate Courts for brief writing permits and allows a single issue to be distilled and formulated from one or/and more grounds of an appeal; i.e, more grounds than one (1) of an appeal can be used to frame a single or one issue for determination, formulation of more than one (1) issue from a lone or single ground of appeal is not permitted on the ground that the practice constitutes proliferation of issues that tends to obfuscate the real complaint embedded in a ground of appeal. See Ibrahim v. Ojomo (2004) 1 SC (Pt. II) 136; Omega Bank Nig. Plc. V. O. B. C. Ltd (2005) 1 SC (Pt. 1) 49; Jawando v. Bakare (2006) ALL FWLR (Pt. 322) 1590; Atiku v. State (2010) 9 NWLR (Pt. 1199) 241; Amodu v. Police College, Maiduguri (2009) 7 MJSC (Pt. II) 30. It is the duty of counsel to keep abreast of, be diligent and abide by established principles of practice and procedure applicable in all Courts for the purpose of presenting their cases.
The real complaint and question raised in Ground 1 of the Notice of Appeal which calls for decision by the Court is in issue 2 of the Appellant which also encompassed the Issue 3. In essence, the sole and crucial issue in the appeal, from the substance of the two (2) grounds contained on the Notice of Appeal, is the Appellant’s Issue 2 which I intend to consider in line with the arguments by the parties, on the authority of among other cases; Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Opara v. D. S. Nig. Ltd (1995) 4 NWLR (Pt. 390) 440; Uko v. Mbaba (2001) 4 NWLR (Pt. 704) 460; Sha v. Kwan (2000) 8 NWLR (pt. 670) 685; Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463; Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Abiola & Sons Ltd v. Seven-up Bottling Co. Nig. (2012) 5-7 MJSC (Pt. II) 194.
Before a review and consideration of the arguments canvassed by the parties on the issue, since the 4th and 5th Respondents have raised a preliminary point or issue, which in effect challenges the life and viability of the appeal, I would consider and determine it first.
Again, the preliminary point/issue is: –
“Whether in view of the circumstance and injunctive nature of the reliefs sought by the Appellant on the face its Originating Summons and the 1st-3rd Respondents having commenced criminal prosecution of the Appellant since 2016 in Charge No. FHC/L/512c/2016 pending before the Federal High Court, Lagos Division (Coram: The Hon. Justice M. S. Hassan) this appeal has become lifeless and academic. (Preliminary points/issues)
4th and 5th Respondents’ Submissions:
The arguments are to the effect that because the nature of the reliefs sought by the Appellants on the summons is injunctive and the fact that the 1st – 3rd Respondents have completed their investigations of the matter reported to them by the 4th Respondent and arraigned the Appellant before the Lower Court for criminal offences, the appeal has become lifeless and academic. According to learned Counsel, since the reliefs sought against the 1st and 3rd Respondents are aimed at stopping or preventing them from investigating the report by the 4th Respondent against the Appellant which investigations were completed or concluded and there was no longer any investigations to be prevented or stopped by the injunctive reliefs sought by the Appellant. He said the alleged threat of arrest and detention by the Appellant had become spent since the 1st – 3rd Respondents have completed their investigations and charged the Appellant before the Court which is to determine his fate.
Relying on Otu v. Ani (2013) LPELR-21405(CA); Suru Worldivide Ventures Nig. Ltd. V. A. M. C. O. N. & Ors. (2018) LPELR-44758(CA); Nwaeseh v. Nwaeseh (2000) 3 NWLR (Pt. 649) 391 @ 402 and Okulate v. Awosanya (2000) 1 SC, 107 @ 123 on the principle of law that an injunctive order cannot be made or granted to stop or restraint already completed act, learned Counsel maintains that the appeal, for all intents and purposes, has become academic and liable to be dismissed forthwith even without recourse to its substance and merit.
Appellant’s Submissions:
It is submitted that the 4th and 5th Respondents have by their arguments of the point/issue missed the Appellant’s case as presented in the summons, which is that the report by the 4th Respondent, against him was purely civil and that the 1st – 3rd Respondents have no power to investigate it and in the process threaten the Appellant with arrest and detention, thereby infringing on his fundamental right. According to Counsel for the Appellant, the charges preferred against the Appellant before the Lower Court relate to allegations of impersonating a builder and an architect and so the Appellant was never charged in relation to the civil cause which arose out of the agreement between him and the 4th Respondent. It is his argument that since the Appellant’s case is that the 4th Respondent, using the 1st-3rd Respondents, is still harassing him over their agreement, the reliefs sought in the summons are alive and potent even if the 1st-3rd Respondents have completed investigations on the report by the 4th Respondent which led to the charge against the Appellant. He maintains that the injunctive reliefs sought based on the agreement between the Appellant and the 4th Respondent is not a completed act and the Court is urged to reject the Respondents’ submissions under the issue.
Resolution:
The facts of the relationship between the Appellant and the 4th Respondent which led to the resort by the latter to the 2nd Respondent for investigation were fully set out in the 30 paragraphs Statement of Facts and repeated in the 33 (and not 32 as indicated thereon) paragraphs Affidavit in Support of the Summons both of which were deposed to on the 4th July, 2016 by Counsel and Appellant, respectively. Paragraphs 28-32 of the Appellant’s Affidavit are relevant for the point/issue and should be set out to speak for themselves.
This is what the Appellant deposed to in the paragraphs:
“28. On the 14th June, 2016 I went to see 3rd Respondent at his office at Onikan, Lagos. At the 3rd Respondent’s office I was given a petition allegedly written by the 4th Respondent but submitted by the 5th and I was asked to write a statement. In the petition, the allegation against me was that I abandoned work on site and that I was not responding to calls made to my telephone. I wrote a statement denying the allegations by the 3rd Respondent began to call me a thief and threatened to lock me up except I call the 4th Respondent. I refused to call the 4th Respondent because the last time I called the 4th respondent he did not pick my call. However on the intervention of one of the superior officers in the 3rd respondent’s office, the 3rd Respondent allowed me to go that day and come to agreement to resolve the issue with the 4th and 5th Respondents amicably with instruction to report back at the 3rd Respondent’s office on the 16th June, 2016 to sign the agreement reached.
29. On the 30th June, 2016 when we returned with an agreement and presented the agreement I reached with the 5th Respondent, the 3rd Respondent decided to edit the agreement and asterisked the paragraphs he did not like which he asked me to remove and that if they are not removed he was going to arrest and detain me. A copy of the draft agreement is herewith annexed and marked Exhibit B.
30. The 3rd Respondent is still threatening to infringe on my guaranteed rights by inviting me to report at his office on the 4th July, 2016, arresting and hounding me into detention on account of his order that parties must report to his office for the signing of the draft agreement as distorted by him.
31. I am now very apprehensive that the 3rd Respondent is capable of giving effect to his threat and will most likely to so unless restrained by the order of his honourable Court.
32. It is the interest of Justice that this application is made to this Honourable Court for my protection from the Respondents’ oppression and abuse of power.”
In brief, the facts stated by the Appellant in these averments are that on the basis of the report or petition by the 4th Respondent against him on the project he was doing for the 4th Respondent, he was invited on the 14th June, 2016 by the 3rd Respondent to his office where he made a statement thereon and was allowed to go and to come back on the 16th of June, 2016 to settle amicably with the 4th and 5th Respondents.
On the 30th of June, 2016 when an agreement between the Appellant and the 5th Respondent was shown to the 3rd Respondent, he directed that some paragraphs be removed by the Appellant and threatened to arrest and detain the Appellant if the paragraphs were not removed. That the 3rd Respondent was still threatening the Appellant’s right by inviting him to report at his office on 4th of July, 2016 to sign the agreement he wanted edited, at the risk of arrest and detention. The Appellant was apprehensive that 3rd Respondent is capable of carrying out his threat unless restrained by the Lower Court.
In reaction to the facts deposed to by the Appellant in the Affidavit in support of the summons, the 1st – 3rd Respondents filed a Counter Affidavit dated 2nd of August, 2016 and averred in paragraphs 7-15 and 18 as follows: –
7. That the 1st – 3rd Respondents denies paragraphs 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the Applicant Affidavit in support of originating summons and state;
8. That although a petition of allegation of fraudulent and other criminal activities and suspecting of impersonation was made against the Applicant and base on this, he was invited.
9. That we are not aware of an Agreement talkless of editing it, as it was part of criminal allegation before us.
10. That we did not threat to Arrest and detained the Applicant in course of our investigation.
11. That the true position of this matter as relate to 1st – 3rd Respondents in course of our investigation into allegation of conspiracy, impersonation, fraud and cheating are as follows: –
12. That on 23 of May, 2016, a petition of criminal allegation of fraudulent and other criminal activities was received from Peach and bonds a Legal Practitioner on behalf of 4th Respondent by 2nd Respondent which was referred to our Section for proper investigation. Copy of petition to 2nd Respondent is hereby attached and marked as Exhibit NPF “I”
13. That in course of our investigation, the Applicant was invited, he was cautioned in English Language and voluntary he made his statement, denied the allegation but went further to state that he is Project architect/contractor and not builder. Copy of statement of the Applicant to the Police is hereby attached and marked as Exhibit NPF “2”.
14. That the 4th Respondent informed us in course of our investigation which we verily believed him that the Applicant misrepresent to him or impersonate to him that he is a professional builder and that is why he give him the contract of building the house.
15. That immediately the Applicant made his statement, he was Admitted to Police Administrative bail. Copy of application for his bail and bail bond is hereby attached and marked as Exhibit NPF “3”.
18. That the 1st – 3rd Respondents did not in any way breach or is likely to breach the fundamental right of Applicant in course of our investigation.”
The summary of the facts in these paragraphs is that in the course of investigating the petition written against the Appellant to them, they invited him to their office where he made a statement thereon and was released on administrative bail on the same day. That they did not edit any agreement, which was part of their investigations, and did not threaten to arrest and detain the Appellant in the course of their investigations. The 1st – 3rd Respondent say in paragraph 18 that they did in any way breach or likely to breach the fundamental right of the Appellant in the course of their investigations.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The above depositions by the parties were repeated and refilled after amendment of the summons by the Appellant to reflect the name of the Appellant. The Amended Originating Summons, along with Statement of Facts and Affidavit in Support of the Summons, was filed on 15th of August, 2017. The 1st – 3rd Respondents’ Counter Affidavit to the Amended Summons was filed on the 31st of May, 2018. A forty-four (44) paragraphs Counter Affidavit was also filed for the 4th and 5th Respondents on the 7th of June, 2018 in opposition to the Appellant’s Summons, Paragraphs 33, 34, 35 and 41 relate to the Appellant’s facts upon which the summons was taken out and the injunctive reliefs sought by him. They are as follows: –
“33. Upon the failure of the Applicant to keep faith with his contractual obligations, and coupled with the criminal attitude and conduct of the Applicant, the 4th Respondent petitioned the Applicant to the Nigerian Police sometime in 2015.
34. That following the intervention of the officers of the Nigerian Police, it was resolved that the Applicant will return to site to complete the project or to do a proper hand over of the project to the 4th Respondent.
35. That the Applicant was not detained by the Anti-Robbery unit or any other place.
41. That further to the complaint made by the 4th Respondent, it became imperative to invite the Applicant for interrogation and which the Nigerian Police carried out in the course of their duties and in line with the law.”
The facts in these paragraphs are concise and require no summary.
As may be observed from the facts averred by the Appellant, the fulcrum of his complaint in the summons is the invitation of the Appellant by the 3rd Respondent to their office, for the purpose of investigating the petition written by the 4th Respondent against him over failure or refusal to complete a building project as agreed to by them. It was in the course of the investigations that the Appellant said he was threatened with arrest and detention by the 3rd Respondent, if he failed to sign an agreement to settle dispute between him and the 4th Respondent, amicably. The case of the 4th and 5th Respondents on the preliminary point/issue is that since the investigations have been completed and the Appellant charged before the Lower Court on the basis thereof, there is no investigation to be restrained by the injunctive reliefs sought by the Appellant in the summons. The threat the Appellant complained about was said to have been made by the 3rd Respondent on the 30th of June, 2016 when the parties went back to sign an agreement to settle their dispute amicably, as directed. Meanwhile, from the information at paragraph 4.05 on page 7 of the 4th and 5th Respondents’ brief, the charge No. FHC/L/572c/2016 against the Appellant before the Lower Court was filed on the 20th of December, 2016; after the completion of the investigations by the 1st – 3rd Respondents.
It may be recalled that the summons was taken out and initially filed by the Appellant on the 4th of July, 2016; before he was charged on 20th of December, 2016 and so presumably, before the completion and while the investigations were pending and on-going. It is clear therefore from the sequence of events, the summons were taken out and filed by the Appellant during the pendency and before the completion of the investigations by the 1st – 3rd Respondents of the petition against him. All the facts upon which the summons and the reliefs sought are predicated, are entirely based on the activities of the 1st – 3rd Respondents in the course of their investigations of the petition against the Appellant. Since there is no dispute on the fact that while the summons was pending before the Lower Court, the 1st – 3rd Respondents completed the investigations of the petition against the Appellant and on the basis thereof, arraigned him before the same Court for allegations of committing criminal offences, the facts of the threat of arrest and detention of the Appellant by the 3rd Respondent in the course of the completed investigation as well as the reliefs sought based on those facts, have effectively and manifestly been overtaken by the completion of the investigations and arraignment of the Appellant before the Lower Court, which from then, became seized of and took full control of the matter arising from the petition against the Appellant. From the 20th of December, 2016 when the Appellant was formally arraigned before the Lower Court, the 1st – 3rd Respondents, but the 3rd Respondent in particular, ceased to have the legitimate legal power and authority, at will, to arrest and detain the Appellant in respect of the offence(s) he was alleged to have committed in the charge preferred against him, since they had completed investigations into the petition and handed him over to the Lower Court for trial. The only power and duty the 1st – 3rd Respondents have after the arraignment of the Appellant before the Lower Court was to prosecute him for the offences he was alleged to have committed in the charge by presenting the material and relevant evidence they gathered during their investigations of the petition by the 4th Respondent against him.
The freedom of movement and liberty of the Appellant as a defendant charged before the Lower Court was completely, entirely and totally at the discretion of that Court to decide after the arraignment.
In the circumstances, any threat of arrest and detention of the Appellant by the 3rd Respondent made during, in the course of and before the conclusion of investigations of the petition against him and his arraignment before the Lower Court for trial for offences alleged to have been committed by him after the investigations, was undoubtedly overtaken by the completion of the investigations and his arraignment for trial before the Lower Court. Such a threat was spent, had expired and incapable of being carried out or effected by the 3rd Respondent or any of the 1st – 3rd Respondents in relation to the investigations leading to the arraignment of the Appellant for trial before the Lower Court since they no longer had the lawful and legal control on the personal freedom of movement and liberty of the Appellant after he was charged for trial.
In these premises, I agree with the learned Counsel for the 4th and 5th Respondents that the reliefs a, b, c, d and e sought by the Appellant on the summons were effectually and completely overtaken by the completion of investigations in the petition against him and his arraignment for trial of offences arising therefrom, by the 1st – 3rd Respondents. The reliefs no longer have any factual basis upon which they could reasonably be predicated since the wind has been effectively taken out their sail by the completion of investigations and arraignment of the Appellant for trial before the Lower Court. The legal consequence of the primary reliefs sought by the Appellant on the summons being overtaken by the completion of investigations and his arraignment, is that this appeal; an offshoot of the said reliefs, has been rendered lifeless and academic, as submitted in the 4th and 5th Respondents’ brief since it no longer relates to a live issue of fact to be decided or determined. In this regard, I should state that even though learned Counsel for the Appellant has said in the Appellant’s reply brief, that the reliefs border on the issue of memorandum of understanding (MOU) which is still live, the investigations conducted by the 1st – 3rd Respondents on the petition from the 4th Respondent was/were not based on any MOU but on allegations of the criminal offences made against the Appellant. The issue or question of whether or not the relationship between the Appellant and the 4th Respondent was civil/contractual and did not have any coloration of criminality, is different and not related to the alleged threat of arrest and detention made in the course of investigations of the petition which as, shown in the Counter Affidavit of the 1st – 3rd Respondents, was frontally and directly denied and controverted by them.
On the whole, I resolve the preliminary point/issue in favour of the 4th and 5th Respondents and find that the primary reliefs sought by the Appellant in the summons before the Lower Court were overtaken by the completion of investigations and his arraignment for trial before the Lower Court by the 1st – 3rd Respondents, thereby rendering this appeal spent, lifeless and liable to be dismissed in limine.
This position is sufficient to dispose of the appeal in this Court, but mindful of the fact that the Court is only an intermediate appellate Court and its decision is subject to a further appeal to the Apex Court; the final Court, I would take heed of the regular exhortation of the Apex Court that even in situations such as the present appeal, the Court shall consider the other issues placed before it on the merit and make pronouncement on them, for its benefit, in case of a further appeal. I now proceed to do so, dutifully.
Appellant’s Submissions On Identified Issue:
The submissions are that the Appellant’s case in the summons is that the dispute between him and the 4th Respondent was clearly a civil cause arising from a commercial transaction as shown in the MOU placed before the Lower Court. That there was no reasonable suspicion of the commission of any crime to warrant the petition by the 4th Respondent and involvement of the 1st – 3rd Respondents to investigate it and that it was on that basis that the Appellant sought reliefs on the summons. It is contended that the 1st -3rd Respondents’ duty and power to investigate alleged crimes or criminal offences do not extend to or include enforcement of commercial transactions between parties to a contract, such as the relationship between the Appellant and the 4th Respondent. Learned counsel for the Appellant argues that the Respondents did not effectively deny that the transaction between the Appellant and 4th Respondent as disclosed in the petition, was civil but that the Lower Court failed to make a finding on the point. Anambra State Environmental Sanitation Authority vs. Ekwenem (2001) FWLR (Pt. 57) 2054, Mclaren vs. Jennings (2003) FWLR (Pt. 154) 528) @ 637 and Ajao vs. Ashiru (1973) 8 NSCC, 525 @ 533 are cited on the law that the Police has no power under Section 4 of the Police Act to enforce contract or collect common debt and Federal Ministry of Health vs. C.S.A. Limited (2010) 13 WRN, 1, (2009) 9 NWLR (Pt. 145) 193 @ 220-1, NITEL Limited vs. Sani (2011) 14 WRN, 45 and Ifeanyi Chukwu vs. Soleh Boneh (2000) 5 NWLR (Pt. 565) 322, on the law that except in the Apex Court, all issues raised by parties before a Court should be pronounced upon. In further argument, learned counsel said under his issue 3, that the Appellant strongly maintains that even though the 1st–3rd Respondents have concluded their investigation, there is the undenied indication that “he might still, in all probability, be subjected to further baseless endless invitation, arrest and detention, among others by the 1st – 3rd Respondents.”
The cases of Jukok International Limited vs. Diamond Bank Plc (2015) 7 WRN, 1 and Magnusson vs. Koiki (1993) 8 NWLR (Pt. 317) 287 are referred to on the effect of an undefined deposition in an affidavit and it is submitted that had the Lower Court considered that the 1st – 3rd Respondent should have confined their investigation of the 4th Respondent’s petition only to the allegation of criminal impersonation, which was concluded, it should have granted the Appellant’s reliefs of the summons. Citing Sections 35 and 46(1) of the 1999 Constitution, Order ll, Rule 1 of the Fundamental Rights Enforcement Procedure Rules (FREPR) 2009 as well asAnambra State Environmental Sanitation Authority vs. Ekwenem (supra) and Ajao vs. Ashiru (supra), learned counsel submits that the law is trite that when a citizen alleges that any of his fundamental right provided for in the Constitution is breached or likely to be infringed upon, he is entitled to approach the Court for redress.
In conclusion the Court is urged to allow the appeal and hold that the 4th Respondent had no right to write the petition in question which culminated into the violation of the Appellant’s right to his civil liberties by the Respondents and that the Lower Court ought to have granted reliefs of the summons.
4th and 5th Respondents’ Submissions:
The submissions are to the effect that the 4th Respondent had a dispute with the Appellant who presented himself as a qualified and registered Architect and Builder, over a construction project and due to the Appellant’s uncooperative altitude in attempts to resolve the dispute, the 4th Respondent filed a complaint with the Police for them to conduct proper investigation. That the investigations showed that the Appellant is neither a qualified and registered Architect nor Builder and so he was charged to Court for offences of impersonation and obtaining money by false pretence. During the investigations, the Appellant was merely invited by the 1st – 3rd Respondents to make a statement on the complaint and was allowed to go thereafter. It is the case of the 4th – 5th Respondents that the 4th Respondent like every responsible citizen, has the right to report matters bordering on crime to the police, who also have statutory duty and constitutional power to investigate such reports and take necessary action it deems fit, at their discretion. That the Police at their discretion, investigated the report made to them and thereafter decided to charge the Appellant to Court for criminal offences and not debt recovery as erroneously stated in the Appellant’s brief. Learned counsel submits that even though the dispute between the Appellant and the 4th Respondent arose from a construct transaction, there were clear criminal elements therein which the latter has the civic obligation to report to the Police who also have duty and power to investigate, relying on UT Financial Services Nigeria Limited vs. Hackit Movers Nigeria Limited & Anr. (2019) LPELR-47477(CA), Oando, Plc vs. Farmatic Biogas W.A Limited and Anr. (2018) LPELR-45564 (CA), Ezea vs. State (2014) LPELR-23565 (CA). It is further said that the Appellant has failed to show the Court how his rights are being threatened and violated and therefore not deserving of the protection sought since he has been charged to Court where his fate now entirely rests.
The Court is urged to resolve the issue against the Appellant and in conclusion, to dismiss the appeal.
In the Appellant’s Reply Brief, it is said, once more, that the Appellant’s position is not understood by the 4th and 5th Respondents which is that the 1st – 3rd Respondents admitted and the Lower Court found that the dispute between the Appellant and 4th Respondent was civil.
The Court is urged to resolve the 4th and 5th Respondent’s Issues 2 and 3 in favour of the Appellant.
Resolution:
As a foundation, by the provisions of Section 46(1) of the 1999 Constitution (as altered), any person who alleges that any of the provisions in Chapter IV of the Constitution dealing with and providing for the Fundamental Rights of the Nigerian Citizens, in particular, and all other persons, generally, has been, is being or is likely to be contravened in any state in relation to him, may apply to a High Court for redress. Section 46(3) of the Constitution empowers the Hon. the Chief Justice of Nigeria (Hon. CJN) to make rules with respect to the practice and procedure of a High Court for the purpose of any application that may be made or brought before it pursuant to the provisions of the section.
Order II, Rule (1), (2) and (3) of the extant rules made by the Hon. CJN pursuant to the provisions provide thus: –
“1. Any person who alleges that any of the Fundamental Rights provided for in Cause of the Constitution or African Charter or Human and People’s Right (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
3. An application shall be supported by a Statement setting out the name and description of the Applicant, the relief sought, the grounds upon which the relief are sought, and supported by an affidavit setting out the facts upon which the application is made.”
The provisions of Section 46(1) and the Rules made under subsection 3clearly guarantee the right of a person whose fundamental right under any of the provision of Sections 33-44 of the Constitution is threatened, likely to be, is being or has been contravened, breached or violated or even alleges such threat or contravention to approach a High Court; State or Federal, for redress and protection. A person therefore does not have to wait for an alleged threat to be carried out by the actual contravention, breach or violation of the right in question before he can properly and validly approach the Court for redress and protection as long as the right falls within the provisions of Chapter IV of the Constitution on Fundamental Rights. See Machika vs. Katsina H.A. (2011) 3 NWLR (Pt. 233) 15, generally, Candide-Johnson vs. Edigin (1990) 1 NWLR (Pt. 129) 659, Uzoukwu vs. Ezeonu II (1991) 6 NWLR (Pt. 200) 708, Osuagwu vs. Attorney General, Anambra State (1993) 4 NWLR 13, Saude vs. Abdullahi (1989) 4 NWLR (Pt. 116) 387, Tukur vs. Governor, Gongola State (1997) 16 NWLR (Pt. 510) 549, Sea Trucks Nigeria Limited vs. Anigboro (2001) 2 NWLR (Pt. 696 159, University of Ilorin vs. Oluwadare (2006) 6-7 SC, 156, Amale vs. Sokoto Local Government Area (2012) 5 NWLR (Pt. 1292) 181, W.A.E.C. vs. Akinkunmi (2008) 4 SC, 1 Igwe vs. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61, Surveyor-General, Cross River vs. Jonathan (2014) LPELR-23380 (CA).
The law is also settled that whether a person approaches a Court of law by way of an application for redress of a threat or actual breach or contravention of any of his guaranteed right under Chapter IV of the Constitution, as the person or party making the assertion or allegation against another person or party, the legal burden of initial proof of the assertion is placed on him by the law, unless or except the assertion was expressly or by necessary legal implication or presumption, admitted by the other person or party. See Sections 131, 132, 133(1) and 123 of the Evidence Act, 2011, respectively, Onah vs. Okenwa (2010) 7 NWLR (Pt. 1194) 512, Okuruket vs. Nicodemus (2001) 4 NWLR (Pt. 654) 663, Gusau vs. Unezurike (2012) ALLFWLR (Pt. 655)291, NACHPN vs. MHWUN (2010) 2 NSCR, 101, Adesanya vs. President, Federal Republic of Nigeria (1981) 5 SC, 69, (1981) ALLNLR, 1 Oha Kasim vs. C.O.P. Imo State (2009) 15 NWLR (Pt. 464) 229, Nwangwu vs. Duru (2002) 2 NWLR (Pt. 751) 265, Fajemirokun vs. Commercial Bank (2009) 2 MJSC (Pt. II) 114, Amale vs. Sokoto Local Government (supra) also reported in (2012) 1-2 MJSC, 1, Dagaci of Bere vs. Dagaci of Ebwa (2006) ALL FWLR (Pt. 306) 786, Dosunmu vs. Dada (2006) ALL FWLR (Pt. 348) 1605, Onyenge vs. Ebere(2004) 6-7 SC, 52, Buhari vs. Obasanjo (2005) 7 SC, (Pt. 1) 1. So it is not enough for a party or person to approach a Court of law with an application calling or praying for protection of his fundamental rights by way of declarations, injunction and/or other forms of reliefs on the basis of alleged threat or breach or contravention of such right. For him to be entitled to such redress or reliefs of protection, he must first produce reasonably sufficient and credible evidence before the Court to show and satisfactorily establish a real and factual threat or breach or contravention of the right alleged. Until a person produces evidence which prima facie shows or established a real threat to or factual breach or contravention of this fundamental right guaranteed under Chapter IV of the Constitution, his application before a Court for the enforcement of such right will fail and be dismissed outrightly. See Jim-Jaja v. COP, Rivers State (2013) 8 NWLR (Pt. 1350) 225; Udo v. Essien (2014) LPELR-22684 (CA); Gusau v. Umezurike (2012) ALLFWLR (Pt. 655) 219 @ 318; Okuruket v. Nicodemus (supra).
The Constitution in Section 24(e) provides that: –
“It shall be the duty of every citizen to –
(e) render assistance to appropriate and law agencies in the maintenance of law and order”
By these simple and clear provisions, a civil national duty, obligation or responsibility is mandatorily imposed, by the deliberate use of the word “shall”; see Katto vs. CBN (1991) 9 NWLR (Pt. 214) 126, Bakoshi vs. C.N. Staff (2004) 15 NWLR (Pt. 896) 268, Onochie vs. Odogwu (2006) 1 SCNJ, 96, Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518, on every citizen of Nigeria to give, provide or render assistance to appropriate and lawful agencies of the Nigerian state charged with the primary duties and function of maintenance of law and order in the country.
Accordingly, every and all citizens of Nigeria owe the Constitutional civic duty and responsibility as well as bear the burden to offer, provide and render every assistance to appropriate agencies set up by the Constitution or other statutes for the purposes of maintenance of law and order in the country. The maintenance of law and order in the country includes the detection, investigation and prevention of crimes or commission of criminal offences punishable under the laws enacted to safeguard the persons and property of the citizens. Among the appropriate and lawful agencies charged with the primary responsibility and duty of maintenance of law and order in Nigeria, is the Nigeria Police Force established under the provisions of Section 214(1) and (2) of the Constitution.
The provisions are as follows: –
“(1) There shall be a police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.
(2) Subject to the provisions of this Constitution –(a) the Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an act of the National Assembly;
(b) the members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law;
(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed force of the Federation or for the protection of harbours, waterways, railways and the fields.”
As provided for in paragraph (c) of subsection 2, the law enacted by the Legislature; i.e. the National Assembly, to provide for the powers and duties conferred on the Nigeria Force (the Police) is the Nigeria Police Act, which in Section 4 provides 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 without Nigeria as may be required by or under the authority of this or any other Act.”
Since the Police is one of the appropriate and lawful agencies of the Nigerian state charged with the primary duty and function of the maintenance of law and order in the country, every citizen; every Nigerian, bears the burden and owes the civic obligation and national responsibility to offer, provide and render assistance to the police in the discharge of the duty and performance of the primary function of maintaining law and order for the good of all. Because the Police is specifically charged under the Police Act, and vested the requisite power to detect and prevent crimes and apprehend offenders, the Nigerian Courts have over the years in line with provisions in Section 24(e) of the Constitution and similar provisions before it, recognized and affirmed that it is the civic duty and responsibility of every citizens in Nigeria to render assistance to the Police by providing it with material information by way of report whenever he/she reasonably suspects that a crime or criminal offence has been committed or about to be committed by any person/s in any part of the country. See Fawehinmi vs. Akilu (1987) 5 NWLR (pt. 67) 747, Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt. 518) 635, Attorney General, Anambra vs. Uba (2005) 33 WRN, 199, Milad, Lagos State vs. Ojukwu (1986) 1 NWLR (Pt. 18) 621, Fajemirokun vs. CBN (2009) 21 WRN, Fabiyi vs. State (2013) LPELR-21180 (CA), Gbayor vs. Ugunburegun (1961) ALLLR (Pt. IV) 853, IBWA Limited vs. Odiatu (1962) ALLNLR, 625.
On their part, the Police, when a report was made to them by a citizen in the discharge of his national civic responsibility or duty of assisting in the maintenance of law and order, are expected to discharge their duty and exercise of the power to investigate the facts of the report on the suspicion of the commission of an offence or offences, in compliance with and within the confines of Constitution and the law, after receipt or receiving information or report from citizens on the reasonable suspicion of the commission of a crime or criminal offence. It is their duty to professionally, thoroughly and dispassionately consider the entire facts and peculiar circumstances contained in the information, report or petition in order to determine whether there exist real, credible and cogent grounds to reasonably indicate that crime or criminal offence was committed or about to be committed in order to warrant and justify a full scale investigation. This step is necessary because until that is done, the information, report or petition received from the citizens would remain mere suspicion which may or may not call for or require the further action of full scale investigation for the purpose of obtaining evidence thereon.
It is duty and discretion of the Police to determine whether or not to investigate a report, information or petition received from citizens on suspicion of the commission of a crime or criminal offence for the purpose of getting, collating, procuring or obtaining the material evidence that would assist them in the prevention and detection of the crime or criminal offences. See Milad, Lagos State vs. Ojukwu (supra); Fajemirokun vs. CBN Limited (supra); Adefunmilayo vs. Odintan (1958) NNLR, 31, Gbajor vs. Ogunburegui (1961) ALL NLR, 822, Fabiyi vs. State (supra), Obiegue vs. Attorney General, Federation (2014) 5 NWLR (Pt. 1319) 171.
Perhaps, I should also restate the principle of law that is now common knowledge in the Courts and to the Police, that the Constitutional and statutory powers and authority granted to them in the primary duty of detection, prevention of crimes and apprehension of offenders for maintenance of law and order, does not extend to or include dabbling into what, even on its face, a civil and contractual or commercial fiduciary relationships between citizens which have no connection with the commission of a crime or criminal offence, whatsoever. Specifically, the Courts have stated, restated and been consistent in maintaining that the Police should not allow or permit themselves to be turned into debt collectors or coercive settlers of purely civil contractual and commercial disputes. They should strive to resist any attempts made to lure them into being willing tools in the settlement of such personal civil disputes and employ their overstretched resources; human and material, towards the discharge of the primary duties and functions under the Constitution and the Police Act. See Agbai v. Okogbue (1991) 7 NWLR (Pt. 391) 1; Nkpa v. Nkume (2001) 6 NWLR (Pt. 701) 543; Igwe v. Ezeanochie (2009) LPELR-11885(CA); Gusau v. Umezurike (2012) ALL FWLR (P. 655) 89; Ibiyeye v. Gold (2013) ALL FWLR (Pt. 659) 1074; Osil v. Balogun (2012) 7 WRN, 143.
Once it is shown that citizens simply reported information to the Police which shows reasonable grounds for suspecting the commission of a crime or criminal offence and the police on their own initiative and at their discretion decided to investigate the information in order to get evidence to verify the suspicion, they would be acting in the discharge of their statutory duties and exercise of the power to detect and prevent the commission of the crime or criminal offence or apprehend the offender(s). In the course of the investigations, the police has the legitimate power to invite any person(s) that may have further or other information or in any manner assist them in verification of the facts of a report or petition written by a citizens and can, if it becomes necessary, arrest and detain such person(s) for the purpose of the investigation, for period limited and prescribed by the constitution. The invitation and/or arrest and detention in such situation will not and cannot be said to be a violation, contravention or breach of the person(s) fundamental right to liberty and freedom of movement. Obiegue vs. A.G.F. (supra), Fawehinmi vs. I.G.P (supra), I.G.P. vs. Ubah (2015) 11 NWLR (Pt. 1471) 405. In that regard, such a person cannot approach a Court of law for the purpose of stopping or preventing the police from discharging its primary statutory duty and exercising the power to conduct investigations into the information on the commission of a crime or criminal offence. On its part, a Court would lack the requisite power and authority to stop investigations of allegations of the commission of a crime or criminal offence by the Police, so long as it is carried out in strict compliance with the relevant Constitutional and statutory provisions. Fawehinmi vs. IGP (supra), Agbi vs. Ogbeh (2005) 8 NWLR (Pt. 767) 606, Christlieb Plc, vs. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324, Onah vs. Okenwa (supra), Hassan vs. EFCC (2013) LPELR-22595 (CA), IGP vs. Ubah (supra).
Applying the aforenamed principles to the facts of the Appellants case, there is no dispute that the 1st–3rd Respondents received a letter (petition) from the 4th Respondent containing information alleging the commission of “FRAUDULENT AND OTHER CRIMINAL ACTIVITIES” by the Appellant. After considering the petition, the 1st – 3rd Respondents, at their unfettered discretion, decided to take action of investigating the fact stated in the information in order to verify the basis of the allegations and to, if necessary get the vital and material evidence thereon, for any further action on the petition, that they may deem necessary. It was in the course of the investigation of the petition, that the Appellant, by his deposition in paragraphs 27 of the Affidavit in support of his summons, was invited by the 3rd Respondent through one Barrister Afolabi Dawodu to his office over the petition where he made a written statement and was allowed to go, on the 14th June, 2016. So by his own showing, the Appellant was invited by the 3rd Respondent in the course of investigating the petition written against him in order to give or afford him an opportunity to state his own side and give his own account of the facts contained in the petition to enable the police have the full facts from both sides for them to decide the next line of action to take in the matter. This was in line with the elementary requirement of natural justice of hearing the other side of an allegation and of the fundamental right to fair hearing guaranteed by the Constitution. There is no assertion in the Appellant’s Affidavit that his fundamental right to freedom of movement and personal liberty were contravened, derogated from or breached by the 3rd Respondent when he was invited for the investigation on the 14th June, 2016. It was in paragraphs 29 and 30 of his Affidavit, which I have set earlier, that he asserted that on 30th June, 2016, the 3rd Respondent edited an agreement he reached with the 5th Respondent and directed him to delete some paragraphs with the alleged threat of arrest and detention if he did not.
On their part, the 1st -3rd Respondents in their Counter Affidavit at paragraph 18 deposed that they did not and not likely to breach the fundamental right of the Appellant in the course of the investigation of the petition against him. As I have stated earlier, it was the Appellant who made the allegation of the threat of arrest and detention against the 3rd Respondent in the course of the investigation of the petition and the law places a burden on him to prove the assertion or allegation with credible and cogent evidence to satisfy the Court of the existence of the threat. This burden, the Appellant failed to discharge by the Affidavit evidence he placed before the Lower Court which unequivocally showed that the 1st – 3rd Respondents were, by the invitation of the Appellant, only discharging the statutory duty and exercising their power to investigate allegations of the commission of a crime or criminal offence(s). With the conclusion of the investigations of the petition against the Appellant and his arraignment by the 1st–3rd Respondent before the Lower Court for trial of alleged offences arising therefrom, the subsequent summons filed by the Appellant can really be said to be already dead on arrival since the allegations on which the reliefs sought thereon were predicated occurred at the stage of and in the course of the concluded investigations. As aptly stated by this Court, per Bulkachuwa, JCA in Attorney General, Anambra state vs. Ubah (supra) also cited by the Lower Court in the judgment appealed against: –
“For a person, therefore, to go to Court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The Plaintiff has no legally recognizable right to which the Court can come to his aid. His claim is not the one the Court can take cognizance of for it has disclosed no cause of action. The Plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his Constitutional power.”
Once more, the Appellant’s complaint and the reliefs sought on the summons were overtaken by the conclusion of the investigations of the petition against him and his arraignment for trial before the Lower Court for alleged offences arising therefrom. In particular, the relief of injunction against the 1st – 3rd Respondents cannot be granted in respect of the concluded investigations since with the arraignment of the Appellant before the Lower Court for trial, the 1st– 3rd Respondents had submitted the fate of the Appellant to the jurisdiction of the Lower Court including the issue of his freedom of movement and personal liberty, as a defendant in the criminal charge against him.
The fear that the 3rd Respondent was still capable of carrying out the alleged threat of arrest and detention if he refused to sign an edited agreement in the course of the concluded investigations and his arraignment for trial before the Lower Court, is only phantom, imagined, and not based on any live factual situation.
In the final result, I find no merit in this appeal and it is dismissed by me.
The judgment of the lower Court delivered on 19th November, 2018 in respect of the Appellant’s summons in Suit No: FHC/L/CS/920/2016 is hereby affirmed.
Parties shall their respective costs of prosecuting the appeal.
OBANDE FESTUS OGBUINYA, J.C.A.: I had singular privilege to read, in draft, the erudite leading judgment delivered by my learned brother: Mohammed Lawal Garba, JCA. I endorse, in toto, the reasoning and conclusion in it. I too, dismiss the appeal. I abide by the consequential order decreed in it.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading in draft before today the Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.
Appearances:
Okereke, Esq. For Appellant(s)
Respondents are not represented For Respondent(s)
