OKAFOR & ORS v. IGP, POLICE FORCE HEADQUARTERS, ABUJA & ORS
(2021)LCN/15498(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Tuesday, March 16, 2021
CA/AW/483/2013
RATIO
ARREST: BURDEN TO PROVE LAWFULNESS OF ARREST
The law is very clear that, where as in this case, a party challenges the lawfulness of his arrest, the burden of proving that he acted within the law and the Constitution in effecting the arrest and detaining the party is on the party who effected the arrest. The party, the 1st – 5th Respondents in this instance have to satisfy the Court by adducing evidence that the arrest was based on reasonable suspicion of the party having committed a criminal offence or that the arrest was reasonably necessary to prevent his committing an offence. As rightly held by this Court in the case of COP, ONDO STATE V OBOLO (SUPRA), the test as to what is a reasonable belief that an offence has been committed is an objective one. PER PATRICIA AJUMA MAHMOUD, J.C.A.
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. IKECHUKWU OKAFOR 2. BARTHOLOMEW OKAFOR 3. EMEKA OKAFOR APPELANT(S)
And
- INSPECTOR GENERAL OF POLICE, POLICE FORCE HEADQUARTERS, ABUJA 2. THE ASSISTANT INSPECTOR GENERAL OF POLICE, ZONE 9, UMUAHIA 3. THE COMMISSIONER OF POLICE ANAMBRA STATE 4. THE AREA COMMANDER, AREA COMMAND ONITSHA 5. SUPOL OKWOR (IPO) 6. J. I. EJISON (NIG) LTD 7. JOSEPH UKEJI 8. OKECHUKWU UKEJI 9. UCHENNA UKEJI 10. MR. DAVID RESPONDENT(S)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The Appellants, applicants in the Court below, by an application dated and filed on the 11th February, 2013 for the enforcement of their fundamental rights sought the order of Court as follows:
a. A declaration that the Applicants are entitled to their rights to personal dignity, personal liberty, and freedom of movement as enshrined in Sections 34, 35, and 41 of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 without any let, interference, hindrance or infringement of the aforesaid fundamental rights of the applicants by the respondents.
b. A declaration that it is a gross violation of the fundamental rights of the 1st applicants as enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 for the respondents particularly the 6th, 7th 8th and 10 respondents to use the 4th respondent or police officers from Area Command Onitsha to arrest the 1st and 2nd applicant and to further use the 4th respondent to intimidate and threaten the applicants with arrest over a complaint for defamation character.
c. An order of injunction restraining the respondents by themselves, agents or privies from further harassing intimidating dehumanizing, arresting or threatening to arrest the applicants or in any manner whatsoever infringe upon the fundamental rights of the applicants over complaint for defamation character.
d. N2,000,000.00 (Two Million Naira) as general damages.
The application was supported by a statement setting out the reliefs sought and the grounds upon which the reliefs are sought as well as an affidavit setting out the facts upon which the application was brought, pursuant to ORDER II Rules 1, 2 and 3 of the Fundamental Rights Enforcement procedure Rules, 2009. The application was also accompanied by a written address.
The complaint of the applicants/appellants, all brothers, was that their family and the family of the 8th Respondent had not been in good terms for over ten years. They alleged that on the 17th January, 2013 while the 1st applicant was driving to his house at the Federal Housing Estate Onitsha, he saw the 8th Respondent in the company of four men, pointing to his house. That when he and his brother, the 2nd Applicant tried to inquire from the 8th Respondent about his presence in the house with four hefty men, they only met with veiled threats. They alleged that the 8th Respondent reported them to their village ‘Umunna’ at Oraukwu in Anambra state on the allegation that they were defaming his character. The applicants stated that on the 20th January, 2013, the ‘Umunna’ summoned all three of them on a reconciliatory meeting with the 7th – 9th Respondents. They alleged that even at the meeting, the 7th, 9th Respondents beat him and his brothers up, being saved only by the timely intervention of the ‘Umunna’. The applicants further alleged that as a result of the dangerous threats from the Respondents, the 1st applicant suggested that all the parties took an oath to curb the incessant tension and anxiety between them. At the said suggestion, the 7th – 9th Respondents were said to have stormed out of the meeting raining all manner of threats against the applicants. The applicants alleged that the 7th Respondent has a very close relationship with the 1st – 5th Respondents. The 7th – 9th Respondents were alleged to have used this connection to instigate the 1st– 5th Respondent to arrest and detain the applicants on the 1st February, 2013 for three days without any allegation of crime against them. The Applicants secured their release only after the continuous intervention of their counsel and at a huge cost. The harassment, threats and intimidation of the Applicants by the 7th – 10th Respondents continue unabated necessitating the action in the lower Court.
The 1st – 5th Respondents in reaction to the application filed their counter affidavit on the 27th February, 2013 which was accompanied by a written address. The 6th – 10th Respondents in opposing the application also filed a written address.
After hearing all the parties, Hon. Justice B. A. Ogbuli of the Anambra State High Court sitting at Ihiala, in a considered judgment delivered on the 28th March, 2013 dismissed the applicants’ application and awarded N35,000 costs against them and in favour of each set of Respondents respectively.
By a Notice of Appeal filed on 6th June, 2013, the aggrieved applicants challenged this decision on six grounds without their particulars thus:
GROUND ONE
The learned trial Judge erred in law when he held as follows:
“From the view point of the law, only legal persons can sue and be sued. The 2nd respondent, Assistant Inspector General of police, Zone 9, Umuahia and the 4th respondent, the Area Commander, Area Command, Onitsha are non-Juristic persons as they are not creatures of known law. The offices are merely created by Nigeria Police for administrative convenience simplicita”.
1. GROUND TWO
The learned trial Judge erred in law when he held as follows:
“In criminal defamation, publication of the defamatory words may be made to the complainant
This being the case I hold that the arrest and detention of the 1st and 2nd applicants on the basis of the materials furnished to the police by the 8th respondent were reasonably justified in the circumstances”.
GROUND THREE
The learned trial Judge erred in law when he held as follows:
”I have also carefully studied exhibit POL 7 and I note that the 1st applicant is denying signing the said document and even contend that the document was made together with POL 5 and POL 6 for the purpose of this case. I do not agree with that because there are signatures of those suspects and that of the surety who is the 3rd applicant in this case in that exhibit POL 7. The applicants did not produce the signature of both the 2nd and 3rd applicants in these proceedings so that the Court can make a good comparison of the signatures in the consideration of the allegations of the applicants as permitted by Section 101 of the Evidence Act. As far as exhibit POL 7 is concerned, the 1st and 2nd applicants were released on bail to the 3rd applicant on 02/02/13 and not on 03/02/13”.
GROUND FOUR
The learned trial Judge erred in law when he held as follows:
“In view of the foregoing, I hold that the detention of the 1st and 2nd applicants for just a night by the 1st, 3rd and 5th respondents does not exceed the reasonably time permitted by Section 35 (5) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999”
GROUND FIVE
The learned trial Judge erred in law when he held as follows
“In the final analysis. I hold that the application of the applicants lacks merit and accordingly, I dismiss same with cost”.
GROUND SIX
The learned trial Judge erred in law when he awarded cost N35,000.00 (Thirty Five Thousand Naira) to each set of respondents.
In furtherance of prosecuting this appeal, and in compliance with the Rules of Court, the Appellants filed their brief of argument, on the 1st November, 2013. The brief dated 31st October, 2013 was settled by MR. H. N. C. Moghalu. In it the Appellants distilled six issues for determination by the Court as follows:
“ISSUE ONE ARISING FROM GROUND ONE
Whether the learned trial Judge was right when he struck out the names of the 2nd and 4th respondents namely, Assistant Inspector General of Police and the Area Commander, for not being juristic persons?
ISSUE TWO ARISING FROM GROUND TWO
Whether criminal defamation can be said to have been disclosed by the material furnished to the police by the 8th respondent to justify their arrest and detention of the 1st and 2nd appellants?
ISSUE THREE ARISING FROM GROUND THREE
Whether by the denial of the appellants in signing exhibit POL 7, the learned trial Judge was right in relying on the said exhibit POL 7 in holding that the 1st and 2nd appellants were released on bail on 2/2/2013 and not 3/2/2013?
ISSUE FOUR ARISING FROM GROUND FOUR
Whether the learned trial Judge was right in holding that the arrest and detention of the 1st and 2nd appellants for a night was justified?
ISSUE FIVE ARISING FROM GROUND FIVE
Whether the learned trial Judge was right in dismissing the appellant’s application for the enforcement of their fundamental rights?
ISSUE SIX ARISING FROM GROUND SIX
Whether the learned trial Judge’s award of the cost of N35,000 to each set of the respondents was justified?
The 1st – 5th Respondents did not respond to this brief. The brief of the 6th – 10th Respondents was settled by MR. Chimezie Agbanu on the 22nd September, 2014 and deemed on 13th October, 2020. In it, the 6th – 10th Respondents raised the following two issues for determination by the Court:
a. Whether the learned trial Judge was right in striking out the names of the 2nd Respondent – Assistant Inspector General of Police Zone 9 Umuahia and the 4th Respondent – the Area Commander, Area Command, Onitsha, for being non-juristic persons. (Ground 1 of the Notice of Appeal)
b. Whether in view of the circumstances of this case, the learned trial Judge was not right in refusing to grant the reliefs as sought by the Applicants/Appellants (Ground 2, 3, 4 and 5 of the Notice of Appeal)
In arguing the appeal, MR H. N. C. Moghalu, of counsel for the Appellants adopted the brief as their legal arguments in support of the appeal. In arguing on issue (1), counsel referred to SECTIONS 5 and 8 of the Police Act, CAP P19, LAWS of the Federation, 2004 and SECTION 216 of the 1999 Constitution and Paragraph M of the 3rd Schedule thereto to contend that the two offices being creations of law are juristic persons. Counsel urged the Court to resolve this issue in favour of the Appellants.
On issue (2), counsel submitted that the materials the 1st – 5th Respondents relied on to arrest the appellants were the alleged defamatory words uttered by the 1st and 2nd Appellants by phone to the 8th Respondent. Counsel referred to the cases of COMMISSIONER OF POLICE ONDO STATE V OBOLO (1989) 5 NWLR, PT 120 AT 121 AND 137 – 139 and FAWEHINMI V ISPECTOR GENERAL OF POLICE (2002) 7 NWLR, PT 767, 651 to further submit that the 1st – 5th Respondents did not furnish any evidence to show to the Court that they effected the arrest of the Appellants on a reasonable suspicion of their having committed a criminal offence. That there must be sufficient evidence upon which to charge and caution a suspect before such arrest is made. Counsel referred to paragraph 26 of the 1st – 5th Respondents to show that, it was after the arrest of the Appellants that they began to look for the evidence with which to charge the Appellants. Counsel contended that the affidavit evidence of the 1st – 5th Respondents show without a doubt that at the time they effected the arrest of the Appellants, they had no facts within their knowledge that disclosed that the 1st and 2nd Appellants committed the offence. Counsel further submitted that Exhibits POL – 3 and POL – 4, the alleged defamatory statements of the 1st and 2nd Appellants do not disclose any element of the offence of criminal defamation contrary to SECTION 323 of the CRIMINAL CODE, CAP 36 LAWS OF ANAMBRA STATE, 1991. Counsel submitted that, assuming without conceding that Exhibits POL- 3 and POL -4 constitute the offence of criminal defamation, the 1st – 5th Respondents were wrong to have arrested the 1st and 2nd Appellants without confirming whether the duo indeed made the calls in which the alleged defamatory words were uttered. Counsel urged the Court to hold that the trial Judge was in error when he held that the arrest of the 1st and 2nd Appellants on the basis of the materials furnished to them by the 8th Respondent was justified in the circumstances. He urged the Court to also resolve this issue in favour of the Appellants.
In answering issue (3) in the negative, counsel submitted that since parties had joined issues as to who signed Exhibits POL-5, POL– 6 and POL-7 the trial Judge should have invoked the provision of SECTION 101 (1) of the EVIDENCE Act, 2011 to compare the signature of the 1st Appellant with the signatures admitted/acknowledged by him and not the ones disputed. Counsel referred to the case of DAGGASH V BULAMA & ORS (2004) 14 NWLR, PT 892, 144 to contend that the holding of the trial Judge not having been based on the affidavits that he signed but on a contested signature of the 1st Appellant that he signed Exhibit POL– 7 is perverse. That in respect of the 2nd – 3rd Appellants his lordship having failed to invoke the provision of SECTION 101 (2) of the EVIDENCE ACT in comparing the signature before concluding that the signatures in Exhibits POL – 7 were those of the Appellants erred in law and the Court should so hold. Counsel again urged the Court to resolve this issue in favour of the Appellants.
On issue (4), counsel adopted his arguments under issue (3). Counsel however submitted that, assuming without conceding that the 1st and 2nd Appellants were detained for a just a night, the 1st – 5th Respondents were not justified in arresting and detaining them on the authority of FAWEHINMI V INSPECTOR GENERAL OF POLICE (SUPRA). Counsel urged the Court to resolve the issue in favour of the Appellants.
In dealing with issue (5), counsel submitted that the decision of the trial Judge to dismiss the application of the appellants was not supported by the evidence and materials before the Court. Counsel also submitted that, if the trial Judge had taken time to study the materials and properly evaluated the evidence, he would have come to a different conclusion. Counsel submitted that the sufficiency or otherwise of the materials in justifying the police to arrest and detain the 1st and 2nd Appellants only on Exhibits POL -3 and POL – 4 has been fully argued under issue (2). Counsel however pointed to the material contradiction in the affidavit evidence of the 1st – 5th vis-a-vis the documents exhibited. He contended that the discrepancies in the dates of Exhibits POL 3 and POL 4 raise the issue whether or not the exhibits were the petitions upon which the Appellants were arrested in view of the discrepancies in the dates ascribed to them by the 1st – 5th Respondents in their affidavit evidence. That, these contradictions rendered these exhibits unreliable and the trial Court should not have relied on them to dismiss the Appellants’ prayer. That this issue too should be resolved in favour of the Appellants
The sixth and last issue deals with the issue of costs awarded by Court against the Appellants. The grouse of the Appellants here is that, the Court did not exercise its discretion judicially and judiciously in awarding the cost of N35,000 to each set of Respondents. That the cost was arbitrarily awarded, was punitive and never intended to offset out of pocket expenses. Counsel urged the Court to resolve this issue in favour of the Appellants.
MS. Ndubisi Nwokporo, of counsel for the 6th – 10th Respondents, in opposition to the appeal adopted their brief of argument in which they had raised and argued a notice of preliminary objection. Counsel did not seek leave of Court to argue his preliminary objection before the appeal was argued by the Appellant’s counsel. On the authority of NDP V INEC (2012) 12 SC, PT IV, 24 AT 45, a preliminary objection raised by the respondent in his brief cannot be deemed argued along with the brief. This is because, the Respondent is required to seek and obtain the leave of Court and move his objection before the appeal is argued by the Appellant. Where this does not happen, the preliminary objection will be deemed abandoned. See also, ONOCHIE & ORS V ODOGWU & ORS (2006) 2 SC, PT II, 153; THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V NIGERIA AIRSPACE MANAGEMENT AGENCY (2014) 8 NWLR, PT 1408, 1 and OGBEBOR V. ONOJAKPOR & ORS (2019) LPELR – 47176 (CA). The Respondent’s notice of preliminary objection together with the arguments in support contained at pages 3 – 6 of the brief, not having been argued before the appeal was heard is deemed abandoned and is hereby accordingly struck out.
Counsel opposed the appeal on the two issues they distilled for resolution by the Court. On the first issue as raised, counsel submitted, referring to the case of AGBOMAGBE BANK LTD V G. B. OLLIVANT LTD & ORS (1961) ALL NLR, 116 that only legal persons can sue and be sued. Counsel contended that the offices of the 2nd and 4th Respondents were created for administrative’s convenience only. Counsel referred to the case of COMMISIONER OF POLICE ONDO STATE V OBOLO (1989) 5 NWLR, PT 120, 130 AT 141 to contend that the 2nd & 4th respondents as sued are non-juristic persons and were properly struck out by the learned trial Judge. He urged the Court to resolve this issue against the Appellants.
On issue (2), counsel submitted that the 6th, 7th, 9th and 10th respondents did not make any report to the Police which led to the arrest of the Appellants to warrant this instant suit against them. That since the actions of the 1st and 2nd Appellants amount to a crime as rightly held by the trial Judge, the 8th Respondent was entitled to lodge a complaint with the police in respect of the said crime. Counsel referred to the cases of FCMB V ETTE (2008) 22 WRN 63 AT 67; OBIEGUE V AGF (2014) 5 NWLR, PT 1399, 183 and GBAJOR V OGUNBUREGU (1961) 1 ALL NLR 852 AT 853.
Counsel further submitted that, the act of reporting cases of commission or suspected commission of crime to the police is a civic duty for which the citizen cannot be held culpable unless it is shown that he has acted mala fide. That the onus is squarely on the respondent to show same. Counsel referred to the case of FAJEMIROKUN V CB (CL) NIG. LTD. (2009) 5 NWLR, PT 1135, 588 AT 600, PARAS B – C and 606, PARAS D- E. Counsel also contended that the 8th Respondent showed that he did nothing more than lodge a complaint to the police in respect of the crime committed against him by the 1st and 2nd Appellants. That after the report, the police used their discretion in the way they carried out the investigation. Counsel referred to the cases of FCMB V ETTE (SUPRA); OKONKWO V OGBOGU (1996) 5 NWLR, PT 449, 420; MONDAY NWADINOBI V MRS MARY BOTU (2000) 15 NWLR, 32 and GBAJOR V OGUNBUREGU (SUPRA). Counsel referred to the cases of AJAYI V STATE (2013) 9 NWLR, PT 1360, 594 and FAWEHINMI V IGP (SUPRA) AT 698, PARAS D – G to submit that the order in which the police carries out its investigation is completely at their discretion. In respect of the signatures on Exhibits POL 5 and POL 6, counsel submitted that the 1st and 2nd Appellants may have chosen to alter their signatures to achieve their purpose in this suit. That the Court was right when it held that the applicants did not produce their signatures to enable the Court make a good comparison. That this being a finding of fact, this Court cannot on the authority of ALIBE V YARO (2002) 1 NWLR, PT 747, 238 AT 245 interfere. Counsel finally argued that, the Fundamental Rights provision cannot be used as a shield or a judicial fiat in preventing a law officer in the exercise of his constitutional duty and cannot be a refuge for a citizen to shield himself from investigation or prosecution. Counsel referred to the case of A.G ANAMBRA STATE V CHRIS UBA (2005) 15 NWLR PT 947.
There is the temptation to adopt the two issues raised by the 6th – 10th Respondents because they are concise. However, I will adopt the six issues as raised by the Appellants not just because they are the owners of the appeal, in a manner of speaking, but because their issues cover the field as it were. I have however observed that, some of these issues overlap. Where this happens, the two issues will be considered together.
In answering the question, whether or not the 2nd and 4th Respondents are juristic persons, it is important to look at the Police Act, particularly the Sections creating the two offices. SECTION 5 of the Police Act, CAP P19 LFN, 2004 provides:
“There shall be an Inspector General of the Nigeria Police, such number of Deputy Inspector General as the Nigeria Police Council considers appropriate, a Commissioner for each State and SUCH RANKS AS MAY FROM TIME TO TIME BE APPIONTED BY THE NIGERIA POLICE COUNCIL”. (Emphasis provided)
I have considered the submission of both counsel on the question of the juristic personality of the 2nd and 4th Respondents. It is necessary to pause and consider the vital question of who is a juristic person. The answer to this question has been variously judicially determined in a plethora of cases. I choose however, to adopt the definition given by this Court in the case of AKAS V MANAGER (2001) 8 NWLR, PT 715, 436 AT 444 thus:
“A juristic person is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity to sue and be sued”
See also OKAFOR V ASOH (1999) 3 NWLR, PT 593, 35; FUT MINNA & ORS V OKOLI (2011) LPELR – 9055 (CA) and the more recent decision of this Court; MR. GODWIN OBI V NONSO OBI & ORS (2020) LPELR – 50617 (CA).
The instant case appears to be on all fours with the recent decision of MR. GODWIN OBI V NONSO OBI (SUPRA). In the said case, the Appellant had challenged the juristic personality of the 2nd Respondent, “A. I G. Zone 9, UMUAHIA.” In resolving this issue against the Appellant, my learned brother, Mbaba, JCA succinctly found in part as follows:
“It has become normal and acceptable practice to join the A.I.G (Assistant Inspector General of Police (who heads the zonal command of the Police) in the matters relating to the acts of the zonal command, so that the zonal command can take responsibility; the same office of I.G) being a creation of statute (Police Act) just as office of the commissioner of Police (C. O. P). I do not, therefore, see any illegality or non juristic person in the 2nd Respondent, as that office/officer takes decisions and acts in the way that affects the fundamental rights of the party complaining. See OKAFOR & ANOR V THE ASSISTANT INSPECTOR GENRAL OF POLICE (A. I. G) ZONE II ONIKAN & ORS (2019) LPELR – 46505 (CA) … It is therefore, clear, in my opinion, that by suing a Divisional Police (C.O.P) or Assistant Inspector General of Police (A. I. G) or Inspector General of Police (I. G. P), it is the Nigeria Police Force (N. P. F) that is sued by different names or appellations, and THOSE OFFICES ARE MENTIONED AND STATUTORILY RECOGNISED BY THE POLICE ACT.”
I adopt the reasoning of my learned brother and hold that the 2nd and 4th Respondents having been mentioned in the police Act and therefore statutorily recognized by the Act are juristic persons. They can sue and be sued in those names. I am fully aware that the office of the 4th Respondent, unlike the 2nd Respondent is not specifically mentioned in Section 5 of the Act as aforesaid. Suffice it to state that it is covered in the phrase “… and such ranks as may from time to time be appointed by the Nigeria Police council and therefore an office statutorily recognized. I take judicial notice of the fact that the police council has appointed that rank within its powers under SECTION 5 of the Police Act. This presumption is however, a rebuttable one. It is not open to the Respondents to merely allude to the fact that the office(s) was/were created for administrative convenience. The ipixi dixi of counsel is insufficient to rebut this presumption. I therefore hold that, the 2nd and 4th Respondents were properly joined as parties. The trial Judge is misconceived in his findings that the two parties are non juristic persons and wrongly struck them out as parties. I resolve this issue in favour of the Appellants.
I will determine issues 2 – 5 together under the general poser of whether the trial Judge was right in dismissing the Appellants’ claims before the Court. There is no dispute as to the powers of the police to arrest and detain persons found committing crimes or reasonably suspected of doing so. What this means is that, there is a thin line between this power and the right of the citizen to enforce his fundamental rights. The Courts are therefore enjoined to maintain this delicate balance in order to protect the interests on both important divides.
The allegation against the Appellants for which they were arrested and detained was that of criminal defamation. This offence is defined by SECTION 323 OF THE CRIMINAL CODE CAP 36, LAWS OF ANAMBRA STATE, 1991 thus:
“Defamatory matter is a matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule or likely to damage any person in his profession or trade by an injury to his reputation. Such matter may be expressed in spoken words or in any audible sound or in words legibly marked on any substance whatsoever, or…”
The basis of the arrest of the Appellants was Exhibit POL 3, petition by the 8th Respondent complaining that the Appellants defamed him through phone calls. This petition is dated 18th January, 2013. From the affidavit evidence, the Appellants were arrested and detained on the 1st February, 2013. This is a period of two weeks. By paragraph 26 of the 1st – 5th Respondents’ counter affidavit, it was after the arrest of the Appellants that the police realized that they needed to gather the call logs and call transcripts including the time and location to get all the persons mentioned in the report to make statement to the police for the purpose of their investigation. There is nothing before the Court to show that there is any call log obtained from the service provider even at the time this application was filed on the 11th of February, 2013. There was no call log obtained and there was no basis to determine whether indeed the Appellants made the alleged call. In other words, there was no material before the 1st – 5th Respondents that the Appellants defamed the 8th Respondent. The law is very clear that, where as in this case, a party challenges the lawfulness of his arrest, the burden of proving that he acted within the law and the Constitution in effecting the arrest and detaining the party is on the party who effected the arrest. The party, the 1st – 5th Respondents in this instance have to satisfy the Court by adducing evidence that the arrest was based on reasonable suspicion of the party having committed a criminal offence or that the arrest was reasonably necessary to prevent his committing an offence. As rightly held by this Court in the case of COP, ONDO STATE V OBOLO (SUPRA), the test as to what is a reasonable belief that an offence has been committed is an objective one. This does not however mean that, it has to be left at the whims and caprices of the arresting authority, in this case, the police (1st – 5th Respondents). The Court has to satisfy itself that the facts within the knowledge of the arresting authority at the time of the arrest disclosed circumstances from which it could be easily inferred that the person arrested committed the offence. Sadly, this is not the situation here. The 1st – 5th Respondents have shown no evidence or material upon which they based their belief that the Appellants committed the offence of criminal defamation. Exhibit POL 3, the petition by the 8th Respondent, is not enough to empower the 1st – 5th to arrest and detain the Appellants. They needed to have evidence that implicated or connected the Appellants to the offence. It is not enough like the 1st – 5th Respondents averred to that their investigation is continuing. They must have and show the evidence from that investigation that implicates the party before they can legally justify his arrest. The apex Court confirmed this position when it held in the case of FAWEHINMI V IGP (SUPRA) as follows:
“It is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is therefore completely wanton to arrest, let alone caution a suspect before the police look for evidence to implicate him.”
This admonition should have weighed on the trial Judge. If it did, he may not have hastily dismissed the claim of the Appellants. He needed to have interrogated whether there was any legal basis for the arrest and detention of the Appellants in the circumstances. This is especially so considering the offence the Appellants were alleged to have committed; criminal defamation. Defamation is an offence that attacks and injures the reputation of a person. Without any intent at being condescending, what public good will the reputation of the 8th Respondent do to our nation? In other words, what is the justification of spending public fund to prosecute a person for defamation when the victim has a right in tort to sue the alleged perpetrator for damages which may include a complete retraction of the offensive words, public apology and perhaps monetary compensation. The prosecutory option at best will result in a prison sentence for the perpetrator. A choice of the latter option is suggestive no doubt of the fact that the 1st – 5th Respondents were not involved in the matter for any altruistic reason of performing their constitutional role of prosecuting criminals. It would have been a different ball game if the 1st – 5th Respondents had invited the Appellants, taken their statements and released them on the 1st February, 2013. By detaining them until their lawyer secured their bail lends credence to the assertion of the Appellants that their arrest and detention was at the instance of the 8th Respondent and his brothers. There is no basis legal or factual in the record to persuade me otherwise.
The trial Court made heavy weather about the duration of the detention. His Lordship’s finding about the duration being one day and therefore reasonable was premised on the fact that the 2nd and 3rd Appellants signed Exhibit POL 7. As a general rule, the Court is permitted by virtue of SECTION 101 (1) of the EVIDENCE ACT, 2011 to compare signatures of a party in order to ascertain whether the party signed a particular document or not. However, it is not open to the trial Judge to compare a signature which was being contested without resolving who signed same. The Appellants had averred in paragraph 5 of their further affidavit in response to the counter affidavit of the 1st – 5th Respondents that he did not sign Exhibits POL 5, POL 6 and POL 7. The trial Judge has power to direct the Appellants, pursuant to SECTION 101 (2) of the EVIDENCE ACT, 2011 to write their signatures to enable him compare them with the disputed signatures but pushed the burden wrongly to the Appellants when he held that:
“The Applicants did not produce the signature of both the 2nd and 3rd applicants in these proceedings so that the Court can make a good comparison of the signatures in consideration of the allegations of the applications as permitted by SECTION 101 of the EVIDENCE ACT.”
There is nothing on record to show that the trial Judge directed the Appellants as provided by law and they refused or failed to do so. The conclusion reached by his Lordship that the Appellants signed Exhibits POL 5 and POL7 is therefore perverse and arbitrary not having been based on any legal principles. See DAGGASHI V BULAMA & ORS (2004) 14 NWLR, PT 892, 144.
Also, the findings of the trial Judge that the detention of the Applicants for just one night by the 1st, 3rd and 5th Respondents does not exceed the reasonable time permitted by Section 35 (5) (a) & (b) of the 1999 Constitution begs the question. Section 35 deals with the right of the individual to personal liberty. The detention referred to in Subsection (5) is a legal detention. The appellant in this appeal challenges the legality of his detention as being in breach of his fundamental right to personal liberty. In this regard, it is of no moment whether the breach was one day, one hour or one minute. In other words, the breach is not determined by the length of time involved but by the illegality of the action. Where an applicant as in this case alleges unlawful arrest, the Court must first consider the legality or constitutionality of the arrest and not the length of time the applicant was detained. That at best, is only relevant to the quantum of damages if any: SSS V ADAMU (2020) LPELR – 50365 (CA).
I find it apt to end this segment of this judgment with the holding of this Court in the case of EZEIGBO V IKECHUKWU & ORS (2019) LPELR – 48445 (CA):
“A criminal complaint is a legitimate criminal process, provided it is based upon a reasonable suspicion of commission of a crime. A criminal complaint against a person without any justification or reasonable basis for suspecting that person of committing a crime is a malicious criminal process… A criminal complaint to the police or other law enforcement agency that a person has committed a crime is usually intended to ignite the investigation of the allegation and often times results in the questioning of the suspect or his invitation to the police station or office of the law enforcement agency or his arrest and detention by the law enforcement agency. So when the respondent laid the criminal complaint against the 1st Respondent, he clearly intended to expose the 1st Respondent to the said criminal process.”
I resolve issues 2, 3, 4 and 5 against the 6th – 10th Respondents and in favour of the Appellants.
The last issue, (6) deals with the award of costs by the trial Court. As admitted by both parties in this appeal, award of costs is at the discretion of the Court. But like the exercise of all discretions it has to be done judiciously and judicially: AKINBOBOLA V PLISSON FISKO NIGERIA LTD. & ORS (1991) 1 NWLR, PT 167, 270; NNPC V CLIFCO NIG. LTD. (2011) 10 NWLR, PT 1255, 209 and ONUORAH & ANOR V ONUORAH (2018) LPELR -46315 (CA).
The cost awarded against the Appellants is N70,000; N35,000 to 1st – 5th Respondents and N35,000 to 6th – 10th Respondents. The Appellants have not shown how the award of costs to the 6th – 10th Respondents is against settled principles of law. It is not enough to accuse the trial Judge of arbitrary exercise of discretion without showing how. The reason given by the counsel that the trial Judge did not state how he arrived at the amount awarded as costs is not tenable. It is trite that costs follow events. The 6th -10th Respondents asked for substantial cost in their written address in support of their counter affidavit. The award of N35,000 does not appear to be excessive for five Respondents. I find no reason to disturb the award of costs in favour of the 6th – 10th Respondents. I find that it is in order and it is not arbitrary as contended as a successful party is entitled to cost.
The 1st – 5th Respondents on the other hand, are government agencies/agent. They do not pay filing fees or legal fees. As a matter of practice too, order for cost is never made against them. They have their own in house counsel when they are not represented by the Ministry of Justice. This to my mind is a special reason why the order for costs should not have been made in favour of the 1st – 5th Respondents: AKINBOBOLA V PLISSON FISKO NIGERIA LTD & ORS (SUPRA). This issue is therefore resolved partly in favour and partly against the (Appellants).
Having resolved all but part of issue (6) in favour of the Appellants, it follows that this appeal has merit and it is hereby allowed. Consequently, the judgment of the lower Court dismissing the Appellants claim in suit NO. HIH/MISC. 40/2013 is hereby set aside. Accordingly the reliefs sought by the Appellants are granted as follows
a. A declaration that the Applicants are entitled to their rights to personal dignity, personal liberty, and freedom of movement as enshrined in Sections 34, 35, and 41 of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, without any let, interference, hindrance or infringement of the aforesaid fundamental rights of the applicants by the respondents.
b. A declaration that, it is a gross violation of the fundamental rights of the 1st applicants as enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, for the respondents, particularly the 6th, 7th 8th and 10 respondents to use the 5th respondent or police officers from Area Command Ihiala to arrest the 1st applicant and to further use the 4th respondent to intimidate and threaten the applicants with arrest over a claim for defamation character.
c. An order of injunction restraining the respondents by themselves, agents or privies from further harassing, intimidating, dehumanizing, arresting or threatening to arrest the applicants or in any manner, whatsoever infringe upon the fundamental rights of the applicants over claim for defamation character.
General damages is assessed at N500,000.
I assess costs at N100,000.
This case like many others of its kind across the country, calls for serious concern in the way and manner police officers and other security agencies allow themselves to be drawn into situations that make them partisan agents of all manner of people, including those with shady characters in the pursuit of personal vendetta. This unnecessary show of power and the uncanny use of the police force in actualizing it is troubling and unsettling. This is especially so in a period where the country is at the threshold of its existence and plagued with so much of violence and insecurity from kidnapping and armed robbery. All the wherewithal of the security agencies should be deployed towards ensuring maintenance of law and order to enable economic activity to thrive. But surely not stoking the egos of power mongers. The Courts have a special duty to ensure that if the police want to be used for such negative activities they cannot hide under the powers given to them to protect lives and property in the pursuit of such nefarious activities.
The police must not be given legal or judicial backing when they use their coercive powers wrongly to violate the fundamental rights of the citizens that they are established to protect.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother P. A. MAHMOUD, JCA, just delivered.
I agree with his reasoning and conclusion that there is merit in this Appeal and that it be allowed.
My learned brother has dealt exhaustively with the relevant issues raised in the Appeal leaving me with nothing relevant to add.
I therefore hold that there is merit in this Appeal and it is hereby allowed. I abide by the consequential orders made by MAHMOUD, JCA in the lead Judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the judgment of my learned brother, PATRICIA AJUMA MAHMOUD, JCA. I agree that the appeal has succeeded and I allow it. I abide by the consequential orders.
Appearances:
Ms. W. N. Okoli For Appellant(s)
Ms. Ndubisi Nwokporo, with him, Mr. Osita Obirija – for 6th -10th Respondents
1st -5th Respondents absent and unrepresented For Respondent(s)
