IPUOLE & ORS v. MASHU & ORS (2022)

IPUOLE & ORS v. MASHU & ORS

(2022)LCN/16876(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, September 02, 2022

CA/C/284/2013

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. H.H. OGAMODE EBIALE IPUOLE 2. CHIEF OKOCHE IPUOLE 3. MR. GABRIEL WONAH APPELANT(S)

And

1. MR. THOMAS MASHU 2. ALHAJI MUSA ABDULRAHMAN AREA COMMANDER, NIGERIA POLICE, OGOJA 3. THE COMMISSIONER OF POLICE CROSS RIVER STATE COMMAND RESPONDENT(S)

RATIO

DEFINITION OF THE TERM “ARREST”

The Black’s Law Dictionary, Ninth Edition in page 124 defined an ‘arrest’ as:
A seizure or forcible restraint. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law.
It is correct that an arrest can also mean a detention of the person arrested, but in this case, the Appellants were simply invited for the purpose of an investigation of a complaint made against them. As correctly submitted by the 1st Respondent, the Appellant did not establish that the complaint was unreasonable or maliciously. The fact that in exhibit ‘A’ it was stated that the complaint being investigated was in respect of disobedience of Court’s judgment does not make it an unlawful arrest. I therefore totally agree with the submissions of the Respondents in this regard and I uphold same. PER ALITYU, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES

The keywords in the main relief one sought by the Appellants are (1) threat of arrest; (2) further arrest and (3) detention. At a glance, it means the Appellants claimed that the Respondents arrested them, and then threaten to further arrest and detain them. These are all matters of facts and as always, the law demands that; “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist” vide Section 131(1) of the Evidence Act 2011. PER ALITYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, sitting at Ogoja Judicial division delivered on the 25th June 2013 in respect of suit No: HJ/16/2013 commenced by an originating motion by the Appellants seeking to enforce their fundamental rights which they alleged were infringed upon by the Respondents. The originating motion contained in pages 1-8 of the record of appeal was supported by affidavit, and a statement stating the facts that gave rise to the application. The 1st Respondent’s community, the Ntara Waterside of Ekejuk, Ogoja LGA filed a suit claiming declaration of title to land called ‘Ntara’ against the Appellants’ Yahe Community before the trial Court in suit NO: HJ/55/2011. Judgment was entered in favour of the Appellant and the 1st Respondent’s community’s claims were dismissed. The Appellants claimed that the 1st Respondent’s Ntara Waterside community who were in possession of the disputed land before the judgment refused to vacate the land in line with the judgment of the High Court; and neither did they file an appeal against the judgment of the High Court. Rather, they filed a complaint against the Appellants with the police, that is the 2nd and 3rd Respondents.

Upon receiving the complaint of the 1st Respondent’s community, the Police invited both the Appellants and the 1st Respondent’s communities and interviewed them. After the interview, the 2nd Respondent verbally issued a warning to the Appellants to desist from trespassing into the land, the subject matter of the judgment in Suit No. HJ/55/2011t is for this reason that the Appellants to approach the trial Court vide a motion on notice, applying to enforce their fundamental right against the 1st Respondent and the police. In its judgment, the trial Court held that there was nothing wrong for the police to invite the Appellants for the purpose of making inquiries with regards to the complaint of the 1st Respondent. The learned trial Judge therefore dismissed the suit of the Appellants.

Being unhappy with the dismissal of their suit, the Appellants filed notice of appeal against it relying on three grounds of appeal to pray that this Court allow this appeal and set aside the judgment of the trial Court.

The appeal having been duly entered, the Appellants filed their brief of argument settled by O. N. AGBOR ESQ. of counsel on the 29th October 2013 wherein they raised two issues for the determination of the appeal thus:
1. Whether the invitation and subsequent interview of the Appellants by the 2nd Respondent and the consequential orders of the 2nd Respondent restraining the Appellants from interfering with their ancestral land, the subject matter of a judgment in Suit No: HJ/55/2011 does not amount to an infringement of the fundamental rights of the Appellants? (Grounds one and three of the grounds of appeal.)
2. Whether the judgment of the High Court in Suit No: HJ/55/2011 is capable of being disobeyed in line with the provisions of Section 133(8) of the Criminal Code Laws of Cross River State 2004? (Ground two of the grounds of appeal.)

In opposing the appeal, the 1st Respondent’s brief of argument settled by his counsel G. U. UAGN ESQ. was filed on the 9th December 2016 and he too raised two issues for the determination of this appeal reproduced below:
1. Whether the trial Judge was right when he ruled that the invitation of the Applicants/Appellants to the police in respect of a complaint of Criminal trespass, forcible entry and threatening violence against them does not amount to a breach of their fundamental rights.
2. Whether by the circumstances as stated in the affidavit, counter affidavit of the 1st Respondent and the grounds upon which this application is brought, the Applicants/Appellants have a cause of action that entitled them to damages.

On their part, the 2nd and 3rd Respondents also opposed the appeal, vide their joint brief of argument settled by J. I. USHIE ESQ. and filed on the 24th March 2016 and deemed properly filed and served on the 10th March 2021. They adopted the two issues formulated by the Appellants for the determination of the appeal.

I also adopt the Appellants’ two issues to be my guide in the determination of this appeal. I will determine the two issues together.

SUBMISSIONS OF PARTIES
In arguing his issue one, the learned Appellant’s counsel referred us to the provisions of Order 42(1) of the Fundamental Rights Enforcement Procedure Rules, 1999 which were interpreted in the case of ONOKERHORAYE VS. IGBINOVIA (2001) FWLR (PT. 73) 155 to the effect that a person whose fundamental rights are about to be infringed upon may take pre-emptive actions to forestall such infringement. One is not compelled by the law to wait until after the infringement occurs before seeking redress. In this case, he submitted that invitation given to the Appellants by the police upon the complaint of the 1st Respondent was for the purpose of using the police to enforce a judgment of the Court and that the invitation served on them clearly gave reason for the arrest to be disobedience of a Court judgment. That indeed the 2nd and 3rd Respondents admitted that the arrest of the Appellants was for them to show cause why they should not be penalized for being in contempt of the judgment of the trial Court. It was argued that since the complaint of the 1st Respondent to the police was for disobedience of a Court order, the 2nd and 3rd Respondents ought to have perused the judgment in issue in order to decide whether to arrest the Appellants or to advise the 1st Respondent to go back to the Court for the enforcement of the judgment. He contended that it is only the sheriff of the High Court who could enforce judgment and if needs be, invite the police for necessary assistance.

Learned counsel further submitted that even if the complaint of the 1st Respondent to the police was for breach of public peace by the Appellants, the fact that the allegation touches and concerns the disobedience of a Court’s judgment, the allegations gave the police the discretion to decide whether or not to investigate the allegations. That even after investigating the Appellants and hearing from them, the 2nd Respondent had no business to further invite them even while this action was instituted at the lower Court.

Further that the fact that the Appellants were not detained by the 2nd and 3rd Respondents did not detract from the fact that there was an arrest and there was a deprivation of liberty of the Appellants for the time spent in the confines of the office of the 2nd Respondent. They argued that there was no lawful excuse for the deprivation of their liberty of by the conduct of the 2nd Respondent. He cited the case of ARAB CONTRACTORS NIG. LTD VS. UMANNAH (2012) 28 W.R.N. 85 where this Court defined ‘false imprisonment’ to include the restraint of a man’s liberty, whether or not it be in an open field, in the cage or in the street. The Appellants urged the Court to hold that the invitation of the Appellants by the 2nd Respondent was a guise by the Respondents to enforce the judgment of the lower Court in suit NO: HJ/55/2011, a process which infringed on the rights of their fundamental rights.

On their issue two, the Appellants referred to the provisions of Section 133(8) of the Criminal Code Law of Cross River State to submit that the Section envisaged disobedience of Court’s judgment or order. But the 1st Respondent did not display the judgment or order of Court that they alleged was disobeyed by the Appellant, rather, they displayed a judgment in Suit NO: HJ/55/2011 which dismissed the claims of the 1st Respondent’s community against the Appellants. Meanwhile, the undertaking to keep peace the 2nd Respondents made the Appellants to sign stated that the parties must maintain peace pending when the State Boundary Commission and State Surveyor General will come to demarcate the boundary between the two communities. They submitted that there is nowhere in the judgment of the trial Court in Suit NO: HJ/55/3011 that it was stated that the parties are to wait for these officers to demarcate the boundary for the Appellants and 1st Respondent’s communities. The Appellants relied on the case of CHRISTLIEB PLC VS. MAJEKODUNMI (2009) 2 W.R.N. 81 to urge this Court to hold that there is no enforceable order in the judgment of the lower in suit HJ/55/2011 and that even if there was any enforceable order, it is only that Court that may direct the enforcement of same. The Appellants urged this Court to so hold and allow this appeal and set aside the judgment of the trial Court.

In response to the argument of the Appellants supra, the 1st Respondent pointed out that there was indeed a complaint to the police lodged by the 1st Respondent against the Appellants and upon this complaint, the 2nd Respondent considered it necessary to invite the Appellants in writing. Learned counsel referred us to page 19 of the record of appeal where the said letter of invitation is copied. He argued that both Appellants and the 1st Respondent and the chiefs and elders of the two communities were all invited by the 2nd Respondent for the purpose of investigation of the complaint of the 1st Respondent. He also referred us to the document tagged “undertaking” which was signed by both the Appellants and 1st Respondent for good behavior. That after signing that undertaking, there was no arrest of the Appellants, which fact they also admitted. He submitted that in the light of the facts on record, mere invitation of the Appellants upon a complaint to the police without more cannot amount to the breach of the fundamental rights of the Appellants. That the Appellants did not deny the existence of acts capable of breach of public peace alleged by the 1st Respondent and the complaint thereto demanded investigation by the police. That the police are empowered to detect crimes, apprehend offenders and preserve law and order as their general duty provided by Part II(4) of the Police Act.

It was also submitted by the 1st Respondent that from the affidavit in support of the Appellants’ application and the grounds they relied upon to seek the reliefs, they have no reasonable cause of action. This is because they have a civic duty as citizens of Nigeria to attend to an invitation by any law enforcement agency in order to clear themselves of any criminal allegations levied against them. The 1st Respondent’s act of lodging complaint to the police in respect of a perceived breach of public peace was lawful and a reporter or informant who merely gives a report or information to the police after which the police use their discretion to invite another person, such a reporter cannot be held liable on that account for any purported unlawful detention or false imprisonment. That what the law prohibits is an intentional instigation of arrest and/or detention without reasonable or probable cause, which in this case, the Appellants failed to prove by their affidavit evidence. He relied on the cases of EZEADUKWA VS. MADUKA (1997) 8 NWLR (PT. 51) 635 at 647, IWUNZE VS. EDOKA (1995) 5 NWLR (PT. 394) 174 at 179 OKONKWO VS. OGBOGU (1996) 5 NWLR (PT. 449) 420 at 434 among others for support and to urge the Court to dismiss this appeal with “excruciating cost” and hold that the action of the 1st Respondent did not breach or infringe on the fundamental rights of the Appellants.

On their part, the 2nd and 3rd Respondents adopted the two issues formulated by the Appellant and submitted that the argument of the Appellants in which they contended that the 2nd Respondent’s invitation extended to them and the extraction of an undertaking from them to keep peace was without basis and therefore a transgression of their fundamental rights was not correct having regards to the circumstances of this case. Their learned counsel argued that though it is true that by the judgment of the trial Court in respect of Suit NO: HJ/55/2011, the 1st Respondent’s Ntara Waterside community’s claims against the Appellants for declaration of title to land was dismissed; but it is also true that the Appellants’ counter claim to the title to the same land was equally dismissed. The trial Court’s holding in the judgment was that the 1st Respondent’s Ntara community holds the land in issue in perpetuity as perpetual lessees, as such. the 1st Respondent’s community were not trespassers into the land they held as perpetual lessees.

That the complaint of the 1st Respondent was that the Appellants trespassed into the said land and planted economic trees and also on 7/2/2013 and 9/2/2013, the Appellants were found on the land clearing and measuring same into plots for allocation. There were also other allegations of trespass against the Appellants that were corroborated by photographs which were brought to the attention of the 2nd and 3rd Respondents, and that led to the invitation of the Appellants and the extraction of the undertaking to keep the peace. That it was obvious the sundry acts of the Appellants were provocative and capable of causing breakdown of law and order, and therefore the invitation of the Appellants and the extraction from them an undertaking to keep the peace was proper in the circumstance. That the actions of the Appellants came under the exception to the protection of the fundamental right to liberty guaranteed by Section 35 of the Constitution of Nigeria, 1999 as amended, as such did not violate their fundamental right.

In response to the argument of the Appellants that there was no order in the judgment of the trial Court in respect of suit NO: HJ/55/2011 which is capable of being enforced, the learned counsel for the 2nd and 3rd Respondents submitted that since the findings of the High Court in that suit was that the claims of the 1st Respondent and the counter claim of the Appellants were all dismissed, anything done by any of the parties to undermine those findings amounted to a disobedience of Court order and an invitation to anarchy, which no responsible law enforcement agent will allow to thrive. This, he argued, is the purport of Section 133(8) of the Criminal Code. He further submitted that the dismissal of the counter claim of the Appellants to the title to the land in issue was an adverse decision against the interest of the Appellants, and they did not appeal against that adverse decision. He relied on the decisions in the cases of SPDC NIG. LTD VS. EJEBU & ANOR. (2010) LPELR-5025 (CA) and ABUBAKAR VS. BEBEJI OIL & ALLIED PROJECTS LTD. & ORS. (2007) 18 NWLR (PT. 1066) 319 at 381 for support, and in urging us to dismiss this appeal.

RESOLUTION
As indicated earlier, I adopt the Appellants’ two issues proposed for the determination of the appeal which I intend to resolve together. But before I delve into the resolution of the two issues, I consider it necessary, for guidance and clarity on my path (to the resolution) to state the exact reliefs/orders the Appellants sought by their originating motion before the trial Court and by extension before this Court in this appeal. The Appellants sought two orders in their motion as can be seen in page 1 of the record of appeal thus:
1. AN ORDER restraining the Respondents from threatening to arrest and/or from further arresting or detaining the Applicants in respect of the subject matter of the judgment in Suit No. HJ/55/2011.
2. AN ORDER for the payment of the sum of N5,000,000 (Five Million Naira) against the Respondents for the illegal arrest and intimidation of the Applicants.

The keywords in the main relief one sought by the Appellants are (1) threat of arrest; (2) further arrest and (3) detention. At a glance, it means the Appellants claimed that the Respondents arrested them, and then threaten to further arrest and detain them. These are all matters of facts and as always, the law demands that; “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist” vide Section 131(1) of the Evidence Act 2011.

In attempting to discharge this legal burden on them, the Appellants swore to affidavits, in support and reply/further and better affidavit. The 8-paragraphed affidavit in support is contained in pages 3 to 4 of the record of appeal. In paragraphs 3 and 4 of the affidavit, the Appellants averred that the 1st Respondent’s community filed suit No: HJ/55/2011 at the High Court of Cross River State, Ogoja division against their community for a declaration of title to their “ancestral land.” But the claims of the 1st Respondent’s community was dismissed, and they continued to occupy the said land “as we were in possession before the judgment”. In paragraphs 5 and 6, they averred that 1st Respondent lodged a petition with the 2nd Respondent (the Area Commander of the Nigeria Police Ogoja) upon which an invitation was issued the Appellants to appear before him at the police Area command office which they did. Upon their appearance, the 2nd Respondent interviewed them and then warned them not to trespass into the land of the 1st Respondent’s community and he also “issued a verbal order on the Appellants to keep off the land” they averred.

To support these facts, they attached exhibits ‘A’ and ‘B’ to the affidavit. Exhibit ‘A’ is the enrolled Judgment order of the High Court of Cross River State, sitting at Ogoja Judicial Division, i.e. the same trial Court in suit NO: HJ/55/2011 before which this application was filed, though delivered by a different Judge. That order shows that there was the main claim of the 1st Respondent’s Ntara Waterside Community as the Plaintiffs against the Appellants’ Yahe Community as the Defendants and counter claimants. The main claim for declaration of title to the disputed land was dismissed. But there was also a counter claim of the Appellants against the 1st Respondent’s community for the declaration of title to the same land. That counter claim was also dismissed, for the reasons the trial Court stated inter alia in paragraphs (c) and (d) of exhibit ‘A’; that the 1st Respondent’s
Ntara community cannot be restrained from a land they hold in perpetuity. This claim is dismissed. Yahe has not shown that Ntara did anything on Yahe land outside the area Ntara holds as perpetual lessees.

From the Appellants’ exhibit ‘A’, it is clear that the 1st Respondent’s Ntara land was in hold of the land in dispute, that is to say, they were in possession of it. The Court held that the 1st Respondent’s community holds the land as perpetual lessees. It is therefore incorrect the facts the Appellants stated in their affidavit in support of their application that they were in possession of the land as at the time of judgment. Similarly, they failed to disclose in their affidavit that fact that their own counter claim of title to the land was also dismissed as indicated in their own exhibit ‘A’, thus failure to disclose a very vital information/fact. They equally failed to mention in their affidavit the fact established by their own exhibit ‘A’ that the 1st Respondent’s Ntara community were declared as holders of the disputed land as “lessees in perpetuity” which indicated the 1st Respondent’s family were in possession of the land in dispute. Thus, the Appellants’ exhibit ‘A’ did not support the facts in the affidavit that it sought to establish at all.

The Appellants also relied on exhibit ‘B’, copied in page 8 of the record of appeal, which stated that the office of the police Area Commander was investigating a case of “disobedience and violation of judgment” and required the Appellants to report to the office on 14th March 2013 for that purpose. The Appellants stated that they honoured this invitation and were interviewed. See paragraphs 5 and 6 of the affidavit in support of their application at page 4 of the record. My lords this type of invitation to report to the police that actually gave reasons for the invitation to be for the purpose of investigation cannot be termed an ‘arrest.’ The Black’s Law Dictionary, Ninth Edition in page 124 defined an ‘arrest’ as:
A seizure or forcible restraint. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law.
It is correct that an arrest can also mean a detention of the person arrested, but in this case, the Appellants were simply invited for the purpose of an investigation of a complaint made against them. As correctly submitted by the 1st Respondent, the Appellant did not establish that the complaint was unreasonable or maliciously. The fact that in exhibit ‘A’ it was stated that the complaint being investigated was in respect of disobedience of Court’s judgment does not make it an unlawful arrest. I therefore totally agree with the submissions of the Respondents in this regard and I uphold same.

The Appellants’ argument that the 1st Respondent sought to use the police to enforce the judgment is a untenable because, it is within the law enforcement duty of the police to enforce Court’s judgment where called upon to do so. They cannot be said to be wrong in that regard. It is upon my examination of the evidence led on record by the Appellants for the reliefs they sought that I agree with the learned trial Judge’s holding in pages 53-54 of the record inter alia that:
All the parties agree that the 1st Respondent and his community made a complaint to the police Area Command Ogoja against the activities of the Applicants, upon which the Police invited the Applicants for an interview. I must say I do not see anything wrong with the Police inviting the Applicants for interviews or even a series of interviews based on the complaints of the 1st Respondent and his community. The Applicants had argued that the invitation was more than once. It does not matter. The Applicants further argued that the invitation concerned an allegation of DISOBEDIENCE to a judgment of Court and that the Police had no right to invite them over such allegation, I disagree with that argument. Section 133 of the Criminal Code Law, Volume 3 CAP. C16 LAWS OF THE CROSS RIVER STATE OF NIGERIA makes intentional disrespect to judicial proceedings a criminal offence. See especially paragraph (9) of the said Section 133….
I unhesitatingly affirm a stamp of approval to the above unassailable finding of the learned trial Judge which was amply supported by the evidence on record.

Consequently, I hold that the Appellants failed to establish the facts they asserted to support the reliefs they claimed before the trial Court and by extension in this appeal. I therefore enter a negative answer to issue one and resolve it against the Appellants. Issue two is answered in the affirmative, that is to say, the judgment of the trial Court evidenced in exhibit ‘A’ is capable of being enforced. This issue is resolved against the Appellants.

Consequently, this appeal fails and it is dismissed. The judgment of the trial Court delivered on the 25th June 2013 by Hon. Justice B. E. IKPEME in respect of suit NO: HJ/16/2013 is hereby affirmed. Parties shall bear their costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I read in advance, the lead judgment of my learned brother Aliyu, JCA and I agree that the appeal be dismissed. There is complete want of merit in the appeal. I abide by the consequential order contained in the lead judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the preview of the judgment just delivered by my learned brother, Balkisu B. Aliyu JCA. On agreeing with his lordship’s reasoning and conclusion in the said judgment, I hereby dismiss the unmeritorious appeal.

I particularly agree that it is within the law enforcement duty of the police to enforce Court’s judgment where called upon to do so. The appeal is also dismissed by me.