EJOH v. UMOLO & ORS
(2022)LCN/16451(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/518/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
MRS. LOVELYN EJOH APPELANT(S)
And
1. MR. KENNEDY UMOLO 2. INSPECTOR GENERAL OF POLICE 3. COMMISSIONER OF POLICE, DELTA STATE 4. DSP OKOLI IWALA 5. ASP SHABA SULEIMON RESPONDENT(S)
RATIO:
DUTY OF POLICE WHEN AN ALLEGATION OF CRIME IS MADE AGAINST A SUSPECT
It is trite that when an allegation of crime is made to the police, it is the constitutional and statutory duty of the police to investigate the allegation. In the discharge of their duties, the police have the statutory and constitutional power to invite, arrest and detain anyone they suspect of having committed the offence. See Cosmos Onah vs. Desmond Okenwa (2010) LPELR 4781. HASSAN & ORS V. EFCC & ORS (2013) LPELR-22595(CA) AT 39-40(E-E). At page 309 ……. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
DUTY OF A COMPANY IN SHOWING ITS INCORPORATION AS A LIMITED LIABILITY ENTITY
The law is settled that under the Nigerian Law the conclusive way to show the incorporation of a company as a limited liability entity is the production of the Certificate of Incorporation. See NNPC V. LUTIN INV. LTD & ANOR (2006) LPELR-2024(SC) At 9 (F), 22 (E-F), EKWEOZOR & ORS V. REG. TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIG (2020) LPELR-49568(SC) AT 37 (E-G). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
WHETHER A PERSON REPORTING AN ALLEGED CRIME TO THE POLICE CAN BE HELD LIABLE
The law is that a person cannot be held liable for reporting an alleged crime to the Police where the Police, acting on its own, arrests and detains the suspect. He can only be held liable where it is shown that he acted mala fide or was actively instrumental in setting the law in motion leading to the arrest of the suspect. See Fajemirokun v. Commercial Bank (Nig.) Ltd (2009) LPELR – 1231 (SC) and Oguebie v. First Bank of Nigeria Ltd (2020) 4 NWLR (Pt. 1715) 531, 553. JOSEPH EYO EKANEM, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against judgment of the Federal High Court of Nigeria, Warri Judicial Division delivered in Suit No. FHC/WR/CS/68/2015 on 3/7/2018. The case of the 1st respondent who was the applicant at the lower Court is that he is a business man carrying on his business under the name and style of Ken-Ogha Engineering limited. Two bulldozers were hired from his company, by George Timinimi and Welfare Timinimi who used the bulldozers to demolish the appellant’s property which was under construction. He was arrested and detained by the police at Orerokpe police station at the instance of the appellant (7th respondent at the lower Court) along with one of the bulldozers. He was granted administrative bail by the Orerokpe Divisional Police Officer and told to report back on 4/5/2015. When he went back on 4/5/2015, he was re-arrested and detained at the 3rd respondent’s office at Asaba for nine (9) days. He was informed by the police that investigation into the matter had been concluded and their decision was that he should be charged to Court for riotous damage. His counsel then wrote a petition to the Assistant Inspector General (AIG) Zone 5, Benin. He was already in the police vehicle being taken to Court when the police received a signal from the AIG) that the case file should be brought to Benin along with him. He was later released on bail in Benin. The appellant then petitioned the 2nd respondent. He alleged that the appellant set in motion the machineries to re-arrest him. He instituted Fundamental Right (Enforcement) Proceedings at the lower Court and sought the following reliefs:
1. A declaration that the arrest and detention of the applicant by the Orerokpe Police Station on the 22nd day of April, 2015 and re-arrest by the Delta State Police Command, Asaba on the 4th day of May, 2015 on the false complaint and under the close watch of the 7th respondent violated the applicant’s fundamental right to freedom of movement and personal liberty as contained in Sections 35 (1) and 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore unconstitutional, unlawful and illegal.
2. A declaration that the use and the continued use of the State Police CID at Asaba and the office of the Inspector General of Police by the 7th respondent to harass, intimidate and finally detained the applicant without any known offence was unconstitutional, illegal, and unlawful.
3. A declaration that the renewed and continued harassment and or fresh threat to re-arrest and detain the applicant by the respondents after granting bail, is a serious threat to his fundamental right to personal liberty, freedom of movement guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore unconstitutional, unlawful, illegal, null and void.
4. An order restraining all the respondents by themselves, agents, servants and or privies from further harassing, intimidating, arresting or re-arresting and or detaining the applicant in respect of this matter.
5. An Order of Court for the unconditional release of the applicant’s equipment to wit: the pale (sic) loader wrongly impounded and now being detained or kept at the 6th respondent Orerokpe Police Station aimed at frustrating the economy of the applicant.
6. An Order for the payment of the sum of N10,000,000.00 (Ten Million Naira) only against the respondents jointly and severally being reasonable compensation for the harassment, unlawful arrest and detention of the applicant by the respondents on the 22nd April, 2015 and for the arrest of the applicant by the Delta State Police Command and detaining him from the 4th day of May, to 13th day of May, 2015 on the sponsorship and standing instruction of the 7th respondent.
The grounds upon which the reliefs were sought are as follows:
1. “The applicant is not in any way connected to the demolition complained of by the 7th respondent which she reported to the police, leading to the arrest and detention of the applicant.
2. The report or complaint at the Orerokpe Police Station regarding the said demolition was never against the applicant but against Hon. George Timinimi, Mr. Welfare Timinimi who (sis) the demolition while the 7th respondent was also present and could not say anything, or do anything or even protest, yet the 7th respondent made sure that the applicant was arrested and detained.
3. The Report and or complaint to the Commissioner of Police, Delta State according to the Asaba Police, regarding the said demolition was not also against the applicant but Mr. Welfare Timinimi and Hon. George Timinimi who demolished the property. He hired the equipment of the applicant while the applicant was away.
4. The applicant was totally a strange person to the transaction and existing land dispute between Mr. Welfare Timinimi, Hon. George Timinimi and the 7th respondent. The applicant never knew anything about the land dispute. The 7th respondent was afraid to arrest Welfare and George Timinimi who she said are too powerful for the arrest.
5. The personal liberty of the applicant is now in serious threat because the respondents had threaten to arrest him if he does not show up in Asaba or Abuja despite the fact that the file has been transferred to Benin City, Zone 5 before the office of the Assistant Inspector General of Police who saved the applicant from being taken to prison unlawfully when the main actors were not arrested. The AIG office is included for formality.
6. The applicant’s right of freedom of movement and personal liberty are rights duly protected under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and are in a serious threat to be infringed upon by the respondents.
7. The imminent plan and arrangement by the respondents to arrest and detain the applicant or take him to Abuja for further detention is a likelihood of infringement of the applicant’s fundamental human right to liberty and freedom of movement.
8. The applicant is presently living under a mental state of fear and have abandoned his home and place of work because of the fear of being swoop upon any time by the respondents and their sponsor in the person of the 7th respondent who have failed to arrest the proper person but only the innocent, weak and unconnected person to the act complained of or reported to the respondents.
9. The Pale(sic) loader equipment is the only viable equipment of (sic) the premises of the applicant in this season. The other equipment are lying fallow unused because this is not the season for their hire and any further retention of the said pale(sic) loader will work economic injustices and hardship against the applicant. The applicant’s equipment was only hired to do a job. The business of the applicant is now crippled.
10. The Applicant’s source of income and survival of his family or payment of staff salaries is now endangered as a result of the present state of the only viable equipment been detained by the respondents and kept in the premises of the 6th Respondent.”
The lower Court after hearing all the parties and considering all the processes filed and exchanged by the parties delivered its judgment, Coram E. A. OBILE, J and granted all the reliefs sought by the 1st respondent. The appellant is dissatisfied with the judgment. She filed a notice of appeal against the judgment on 4/7/18. An amended notice of appeal filed on 30/6/21 was deemed as properly filed on 7/2/22. The five grounds of appeal contained therein are as follows:
“Ground ONE (1)
The learned trial Judge erred in law when he held the appellant liable for breach of fundamental rights of the 1st respondent inspite of the lack of evidence linking the appellant to alleged breach of his rights.
GROUND TWO (2)
The Federal High Court has no jurisdiction to grant the relief sought as relief 5 of the 1st respondent’s originating motion. The grant of the afore said relief was an error of law and occasioned a miscarriage of justice.
GROUND THREE (3)
The learned trial Judge erred in law and occasioned a miscarriage of justice when he found that the 1st respondent has proved his case for declaration that his arrest and detention was unlawful, in view of irreconcilable contradictions in the 1st respondent’s case.
GROUND FOUR (4)
The learned trial Judge erred in law and occasioned a miscarriage of justice when he held that “the 7th respondent (appellant) is self-contradictory … and that is fatal to the case of the respondents.”
GROUND FIVE (5)
The decision of the lower Court is against the weight of the evidence.”
The amended appellant’s brief of argument was settled by E.O. JAKPA, Esq. It was filed on 30/6/21. The 1st respondent’s brief of argument was settled by Ugochukwu G. Ehirim Esq. It was filed on 16/7/21. The briefs were deemed as properly filed and served on 7/2/22. The 2nd -5th respondents did not file any brief of argument.
The appellant formulated the following issues for determination:
1. Whether the 1st respondent proved a case of infringement of his fundamental rights.
2. Whether the appellant is in any way liable for the alleged infringement of the 1st respondent’s fundamental rights.
3. Whether a Federal High Court had jurisdiction to make the order sought in respect of relief no. 5 in the 1st respondent’s application.
The 1st respondent adopted the three issues formulated by the appellant and formulated four additional issues for determination. The law is firmly established that it is wrong to formulate issues for determination in excess of grounds of appeal. The 1st respondent who did not file either a cross-appeal or a respondent’s notice is not allowed to formulate more issues than the grounds of appeal. See SPDC LTD V. MEBURU (2013) LPELR-21889(CA) AT 14-15 (C), ODOGWU V. STATE (2013) LPELR-42802(SC) AT 14-16 (B-B), ANYANWU V. EZE & ORS (2019) LPELR-48740(SC) AT 6-7 (E-B). The additional four issues formulated by the 1st respondent is hereby discountenanced. The three issues formulated by the appellant and adopted by the 1st respondent are hereby adopted for the determination of this appeal. The issues shall be considered together.
The appellant’s counsel submitted that the 1st respondent failed to prove his alleged arrest on 22nd April, 2015 as he did not state anywhere in his affidavit that he was arrested on 22nd April, 2015. In respect of the alleged arrest and detention from 4th – 13th May, 2015, counsel referred to paragraphs 30 and 31 of the 1st respondent’s affidavit. He submitted that it was the 1st respondent that elongated his stay in detention by writing a petition to the Assistant Inspector General of Police, Zone 5 to truncate his arraignment in Court. He posited that the rights guaranteed by the Constitution are not absolute. He referred to Section 35 (1) (c) of the Constitution. He submitted further that there is no shred of evidence linking the appellant to the alleged incarceration of the 1st respondent. He referred to FAJEMIROKUN V. COMMERCIAL BANK (NIG) LTD & ANOR. (2009) LPELR-1231 (SC) AT 2-3.
In response, the 1st respondent’s counsel submitted that the arrest and detention of the 1st respondent by the 2nd -5th respondents in particular the 3rd respondent from 4th May, 2015 – 13th May, 2015 without any Court order and without charging him to Court constitute an infringement of his fundamental rights as guaranteed under the Constitution. He referred to Section 35 of the Constitution and urged the Court to take judicial notice of the fact that all Courts in Nigeria safe the Sharia Court are present in Asaba. He contends that the lower Court exercised its discretion under Section 35 (1) of the Constitution and rightly held that the period of nine days detention of the 1st respondent is unreasonable and the appellate Court will not disturb the exercise of discretion by the lower Court. He referred to INTEGRATION (NIG.) LTD. V. ZUMAFON (NIG.) LTD. (2014) 2CLRN 29.
RESOLUTION
The facts and circumstances upon which the 1st respondent predicated his application are not in dispute. I have stated the facts as garnered from the 1st respondent’s affidavit in support of the application earlier in this judgment. By the 1st respondent’s own showing, a complaint of destruction of property was made to the police by the appellant. It is trite that when an allegation of crime is made to the police, it is the constitutional and statutory duty of the police to investigate the allegation. In the discharge of their duties, the police have the statutory and constitutional power to invite, arrest and detain anyone they suspect of having committed the offence. See Cosmos Onah vs. Desmond Okenwa (2010) LPELR 4781. HASSAN & ORS V. EFCC & ORS (2013) LPELR-22595(CA) AT 39-40(E-E). At page 309 of the record of appeal, the lower Court held as follows:
“Let me from the onset state that it is beyond any argument that the applicant is a businessman who is carrying on business under the name and style of Ken-Ogha Engineering Ltd as deposed to by the applicant. Applicant’s company I think and believe is an artificial and not natural person. In other words, it is juristic entity or person.
Similarly, the applicant was not the operator of the pale(sic) loader or bulldozer as referred to by the 7th respondent. Furthermore, it is also settled that the applicant was not at the scene of crime when the alleged crime was committed.”
The above finding of the lower Court is pure speculation. The 1st respondent in paragraphs 2 and 3 of his affidavit in support of the application stated thus:
“2. That I am a businessman carrying on business under the name and style of Ken-Ogha Engineering Limited.
3. That the nature of my business is the hiring of equipment to wit: bulldozers, swamp buggies, caterpillars, payloaders and other movable equipment.”
The above depositions were denied by the 2nd – 5th respondents. The law is settled that under the Nigerian Law the conclusive way to show the incorporation of a company as a limited liability entity is the production of the Certificate of Incorporation. See NNPC V. LUTIN INV. LTD & ANOR (2006) LPELR-2024(SC) At 9 (F), 22 (E-F), EKWEOZOR & ORS V. REG. TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIG (2020) LPELR-49568(SC) AT 37 (E-G). The use of the word “limited” does not create a presumption that the company is a limited liability company. The mere use of “NIGERIA LIMITED” in the name of Ken Ogha Nigeria Limited is not enough to “think and believe” that it “is an artificial and not a natural person” or that “it is a juristic entity or person” as erroneously held by the lower Court thereby insinuating that it is a different and distinct from the 1st respondent. See BANK OF BARODA V. IYALABANI CO. LTD (2002) LPELR-743(SC) AT 19-20 (G-G) where the Supreme Court Per EJIWUNMI, J.S.C held as follows:
“In A.C.B. Plc. v. Emostrade Ltd. (supra) Kalgo, J.S.C. at page 520 had the following to say: “It is also not enough to assume that because company uses the name ‘limited’ on the writ of summons as plaintiff, that company must be a limited liability company entitled to sue. The company’s status must be proved especially in this case where it was denied to be a limited liability company at the time of the transaction. This was not proved in this case and cannot be presumed either. The respondent as plaintiff, is therefore not a legal entity or juristic person entitled to sue and be sued in law. See Carlen (Nig.) v. University of Jos (1994) 1 NWLR (Pt. 323) 631, Shitta v. Ligali (1941) 16 NLR 23, Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558. The respondent is also not one of the bodies or associations which even though not incorporated, have been expressly or impliedly conferred with a right to sue or be sued by statutes.” “The several dicta from the decisions of this Court that have been set down above are to show that it is not sufficient for a plaintiff being a corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of “Ltd. or “Plc”.
That status which it is claiming for itself has to be proved except it is admitted by the opposing party by tendering its certificate of incorporation or such other evidence as would prove its juristic personality.”
The lower Court considered the facts in the affidavits of both parties. At pages 310-312 of the record of appeal and held as follows:
“As rightly pointed out by the 7th respondent, she never mentioned the name of the applicant in either of the petitions her counsel wrote to the police. The 1st to 6th respondents as earlier stated are investigating a case of malicious damage reported against the applicant by the 7th respondent who denied the police assertion. What then is the basis of the police claim that a prima facie case of malicious damage has been made against the applicant to warrant his prosecution. In my view, applicant’s statements to the Police should act as guide to ascertain the claim of the 1st to 6th respondents. The Police (1st to 6th respondents) attached applicant’s statements to them to their counter-affidavit as Exhibit F.B. 03. I have carefully gone through Exhibit F.B. 03 and discovered that there is nothing that has incriminated the applicant in his statements to the Police on 21/4/2015 and 12/5/2015. In both statements, applicant maintained that on 10/4/2015, one Welfare Timinimi went to his office to make inquiry about some of their equipments and hired pale(sic) loader to grade a road and no more. Flowing from Exhibit F.B. 03, I fail to see any substance in the claim by the Police that the applicant has committed the offence of malicious damage or any other offence at all. It follows also that the contention by the 7th respondent that the applicant is a prime suspect is baseless, unfounded and holds no water. I think the 7th respondent must know that the Police have no power or authority to arrest and detain the applicant simply because he failed to show up in Court to testify in Charge No.: MOR/85C/2015 Between: Commissioner of Police V. Hon. Timinimi George. The action or step taken by the Police here is unlawful, illegal and unconstitutional. Again, the 7th respondent is self-contradictory, in that at one breath she said she never mentioned the name of the applicant to the 1st to 6th respondents and at another breath, she maintained that the applicant is a prime suspect in the case. This of course is fatal to the case of the respondents.
It is my conclusion that the applicant has not committed any offence to have warranted police invitation, investigation, detention and intended prosecution of the applicant. The Police ought to have set the applicant free after obtaining statements from him which statements revealed that he committed no crime.”
First, the lower Court failed to realize that the police had a duty to investigate the allegation of destruction of property made to the police whether or not the appellant mentioned the 1st respondent’s name. When allegation of crime is made to the police, it is the duty of the police to carry out a thorough investigation to identify and fish out the offender. Failure of a complainant to mention anyone as a suspect is not an excuse or a bar to the performance of the police duties of preventing, detecting and investigating a crime within the ambit of the law and the constitution. See ONYEKWERE V. THE STATE (1973) 8 NSCC Page 250 at 255 where the Supreme Court held that:
“If a complaint is made to the police that an offence has been committed, it is their duty to investigate the case not only against the person about whom the complaint has been made, but also against any other person who may have taken part in the commission of the offence.”
See also OZAH V. EFCC & ORS (2017) LPELR-43386(CA) AT 27-28 (A-G).
Secondly, it is not the duty of the Court to tell the police that a suspect must be released once his statement does not implicate him. Even if a suspect is not implicated by his statement to the police, it is the sole discretion of the police to decide on how to proceed with the investigation. Obtaining statements from a suspect and potential witnesses is just an aspect of police investigation. They may take any action they deem fit upon investigation once they act within the law. They may arrest, detain, and prosecute an alleged offender. See Sections 4, 31-33 of the Police Act, 2020 and Section 35 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that:
“35.- (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: (c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his committed a criminal offence.” The 1st respondent in paragraphs 30 & 31 of his affidavit stated thus: “30. That all efforts to release me even though I have substantial surety and my impounded equipment is still with the police at Orerokpe failed. I was told by the police at Asaba that they had concluded with the investigation of the matter and that the conclusion reached is for me to be charged to Court for the offence of riotous damage, an offence that will send me to the Federal Prisons Sapele for remand as the charge were drafted at Asaba in a way that the magistrate Court will not have jurisdiction to entertain my case and consequently my case file would have to be referred for(sic) the DPP advice while I remain(sic) in custody. But for the swift and intelligent move of my lawyer Alfred Ukaneh, Esq., who quickly forwarded a petition to the AIG office Zone 5 Benin City over the grave injustice and unlawful arrest and detention by the Orerokpe and Asaba Police Command and a concluded plan to take me to prison, my case file was immediately transferred to Zone 5 Benin City.
“31. That I was already in the police vehicle being taken to Court in Orerokpe from Asaba to be charged to Court when the policemen taking me to Court were called back to return to Asaba and that there is a signal from AIG office in Benin City that the case file and me are now needed at Benin City…”
By the above depositions of the 1st respondent, the police were already taking him to Court for arraignment when the AIG gave instructions that he should be brought to Benin with the case file. The decision of the lower Court that the 1st respondent did not commit any offence to have warranted the invitation, investigation, detention and intended prosecution of the 1st respondent when it has not been shown that the police stepped outside their statutory and constitutional duties is against the spirit and the letters of the law. The 1st respondent’s equipment was hired to destroy the 2nd respondent’s property. The finding of the Court that the 1st respondent was not the operator of the bulldozer and was not at the scene when the alleged crime was committed does not support the conclusion that he committed no crime in the face of his own admission that he is the one that carries on the business of hiring equipment under the name and style of Ken – Ogha Nig, Ltd. The Court is in no position to come to a definite conclusion at this stage that a person who hired out his equipment and who provided the operator of the equipment to destroy another person’s property has not committed a crime merely because there is nothing incriminating in his statement. See UMOERA V. COP (1977) LPELR- 3371 (SC) AT 15 (B-C) where reference was made to OKUYEMI V. POLICE (1946) 12 W.A.C.A. PAGE 3, where Fatayi-Williams J.S.C stated that:
“Police investigations are not necessarily followed by judicial proceedings but they may be. Moreover, it is only after investigations have been completed that the Police decide whether to prosecute the suspect or not.”
See also MEZUE & ANOR V. OKOLO & ORS (2019) LPELR-47666(CA) AT 20-21 (B-C); DANFULANI V. EFCC & ORS (2015) LPELR-25899 (CA). AG. ANAMBRA STATE V. UBA (2005) 15 NWLR part 947 pg. 44 at 67.
The police at this stage have no duty to prove that the 1st respondent committed a crime. The decision of the lower Court that the 1st respondent is entitled to a judicial fiat to prevent the police from investigating a non-existent crime is erroneous especially when the statement relied on by the Court to come to that conclusion, Exhibit F.B.03 was held to be inadmissible and expunged from the record. The police were entitled to invite and arrest the 1st respondent upon investigation and suspicion of having committed a crime. The responsibility to investigate a matter and determine whether or not the matter should be prosecuted is that of the Police. On the affidavit of the 1st respondent, it cannot be said that the appellants’ invitation, investigation and arrest of the 1st respondent is unlawful. The Court should at all times be cautious and reluctant not to interfere unjustifiably and unnecessarily with the discharge of the police functions except in very clear cases of infringement of the fundamental rights of the citizen guaranteed by the Constitution. I do not see this case as one. See IGP & ORS V. IKPILA & ANOR (2015) LPELR-40630(CA) AT 52-54 G -D), OGAN V. C.O.P RIVERS STATE & ORS (2018) LPELR-44293(CA) AT 14-16 (E-D). The story of the 1st respondent that the police refused to arrest the persons who hired his equipment does not render his own arrest and detention for the purpose of taking him to Court unlawful. In any case, that story has been debunked by the fact that those persons the police were alleged to have refused to arrest have been charged to Court.
Even if the arrest and detention of the 1st respondent is unlawful, the appellant cannot in law be held liable for the arrest and detention of the 1st respondent. In FAJEMIROKUN V. COMMERCIAL BANK (NIG) LTD & ANOR (2009) LPELR-1231(SC) AT 4 (D-F), the Supreme Court held that:
“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police.
The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.” Per OGEBE, J.S.C (Pp. 4 paras. C)
See OANDO PLC V. FARMATIC BIOGAS WEST AFRICA LTD & ANOR (2018) LPELR-45564(CA) AT 25-27(A-E), RAMON V. ADELEKE & ORS. (2019) LPELR- 50175 (CA) AT 28- A-G). It is not in dispute that the appellant’s property was destroyed. It is also not in dispute that the appellant reported the destruction of her property to the police at Orerokpe police station. The 1st respondent by grounds 2 and 3 of his application confirmed the fact that the reports to the police at the Orerokpe police station and 3rd respondent at Asaba were not against him. The reports were against George Timinimi and Welfare Timinimi who hired his equipment for the destruction of the appellant’s property. The lower Court also made the following findings at pages 310 of the record of appeal: …
According to the 1st respondent, the police went to the scene and found the equipment used to destroy the property on the land. They took the equipment away and eventually arrested him as the owner of the equipment. It is clear that all that the appellant did was to report the destruction of her property to the police. It was in the course of investigation that the police visited the destroyed property and decided to take away the equipment used to carry out the destruction and then decided to arrest the owner of the equipment. The appellant was right to report the destruction of her property to the police. The report cannot in any way be said to be false or made mala fide or actuated by malice towards the appellant. A person who reported actual commission of crime against his person or his property which led the police to carry out their statutory duty of investigation and apprehension of suspected offenders cannot be held liable in damages for the actions of the police. The lower Court was wrong to have held the appellant liable in damages for the actions of the police after the report of the destruction of her property.
The result is that issues 2 and 3 having been resolved in favour of the appellant, the appeal succeeds. The judgment of the Federal High Court of Nigeria delivered in suit no. FHC/WR/CS/68/2015 on 3rd July, 2018 is hereby set aside. The 1st respondent’s application is hereby dismissed. Parties shall bear their own costs in this appeal.
JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with the reasoning and conclusion therein and I hold that the appeal has merit.
The appellant reported an alleged demolition of her property to the Police which in the course of investigation arrested the 1st respondent. The law is that a person cannot be held liable for reporting an alleged crime to the Police where the Police, acting on its own, arrests and detains the suspect. He can only be held liable where it is shown that he acted mala fide or was actively instrumental in setting the law in motion leading to the arrest of the suspect. See Fajemirokun v. Commercial Bank (Nig.) Ltd (2009) LPELR – 1231 (SC) and Oguebie v. First Bank of Nigeria Ltd (2020) 4 NWLR (Pt. 1715) 531, 553.
The report of the appellant regarding the destruction of her property was not against the 1st respondent. It was the Police that arrested the 1st respondent in the course of their investigation of the matter. All the depositions by the 1st respondent about instigation of the Police by the appellant are bare assertions without proof, the same having been denied. They cannot support a finding of liability against the appellant.
The finding of liability by the lower Court against the appellant cannot stand. I hereby set it aside.
Consequently, the judgment of the lower Court against the appellant is hereby set aside and the application of the 1st respondent against the appellant is dismissed.
ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I have read before now the draft judgment of my Lord, MISTURA OMODERE BOLAJI – YUSUFF, JCA and the reasoning and conclusion therein, in apportioning blame in a claim for Fundamental Enforcement Human Right Procedure 2009, the person who actually makes the report to the police is merely carrying out a civic duty to the society. This is the situation here, such a person cannot be held liable for the damages incurred by the Police action in course of carrying out their statutorily duty.
In ALHAJI ABULRAZAK SALISU TSANYAWA v. ECONOMIC & FINANCIAL CRIME COMMISSION & ANOR (2018) LPELR – 45099 (CA), this Court held thus:
“A report made to EFCC does not without more, amount to the instigating the EFCC in any way. The 2nd Responsible was certainly acting within his rights in laying a complain before the EFCC, he cannot be faulted on this score. He cannot be held responsible for actions taken by the EFCC per OTISI JCA in IBE ORKATER V EKPO & ORS (2014) LPELR 23525. Fundamental rights are not breached because the 2nd defendant has made a legitimate complaint to the EFCC, or when the EFCC investigated and acts on complaints duly made to them.”
See OWOMERO v FLOUR MILLS NIG LTD (1995) 9 NWLR (PT 421) PG 622, EZEADUKWA v MADUKA (1997) 8 NWLR (PT. 518) 635, FAJEMIROKUN v COMMERCIAL BANK NIG LTD (2009) SC/336/2002.
Therefore, the lower Court was wrong to have held the Appellant liable in damages for the actions of the police after the report of the destruction.
For this reason and others in the lead judgment, I too hold that the appeal succeeds. The judgment of the Federal High Court delivered on 3rd July, 2018 is hereby set aside. I abide by the consequential orders in the lead judgment.
Appearances:
E.O. Jakpa with him G.S. Bebenimibo For Appellant(s)
O.W. Ewenode for the 2nd -5th respondents. For Respondent(s)
