MR. COSMOS ONAH V. MR. DESMOND OKENWA & ORS (2010)

MR. COSMOS ONAH V. MR. DESMOND OKENWA & ORS

(2010)LCN/3564(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of February, 2010

CA/L/646/06

RATIO

APPEAL: WHAT CONSTITUTES A GROUND OF APPEAL

A ground of appeal is the error of law or of fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set it aside. Simply put therefore, a ground of appeal can be described as the sum total of the reasons why the decision appealed against is considered wrong by the aggrieved party. The grounds of appeal can be equated to pleadings in trial courts. Their whole purpose is to give notice to the other side of the case they have to meet at the appellate court. See Metal Const (W.A)Ltd V. Migliore (1990)1 NWLR (pt.126)299,Saraki V. Kotoye(1992)11/12 SCNJ 26, Abdullahi V. Oba(1998) 6 NWLR (Pt. 554) 420. PER ADAMU JAURO, J.C.A.

COURT: WHETHER A COURT CAN RAISE ISSUES SUO MOTU

CRIMINAL LAW: DUTY OF THE POLICE TO THE POLICE TO INVESTIGATE CRIME

EVIDENCE: WHO HAS THE DUTY TO PROVE IN A MATTER

It is trite that he who asserts must prove. See sections 135-137 of the evidence Act which lay down the fundamentals of such proof. The burden of proof lies on the respondents to establish by credible affidavit evidence that their fundamental right was breached. PER ADZIRA GANA MSHELIA, JCA

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

MR. COSMOS ONAH
(Alias Confidence) Appellant(s)

AND

1. MR. DESMOND OKENWA
2. MR. OGHENEMAIRO
3. MR. JOSHUA OLOTU JIMOH Respondent(s)

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling (though reflected as judgment in the notice of appeal) of the Federal High Court Lagos, coram Tijjani Abubukar, J., delivered on the 19th January, 2006.
The facts giving rise to this appeal are as follows:- The 1st respondent is a musical producer and manager of an outfit known as Cornerstone Musical Productions. The 2nd and 3rd Respondents are musical artistes and composers of the musical album “Danfo Driver”. The appellant is a businessman engaged also in musical productions. In the court below the appellant was the 1st respondent, while the 2nd to 7th respondents are serving members of the Nigeria Police Force. The respondents applied for the enforcement of their fundamental human right in the lower court on the grounds that they were arrested and detained several times by the police, at the instance of the appellant. The appellant denied ever breaching the fundamental right of the respondents, contending in their counter affidavits that the respondents had a fight with the appellant and on a report being made, they were invited by the police on 30/5/04 and released on bail same day.
The respondents as applicants, pursuant to a motion ex parte were granted leave on 20/9/04 for the enforcement of their fundamental rights and the matter was adjourned to 14/1 0/04 for report of service. Consequent upon the aforementioned leave, the respondents filed their motion on notice for the enforcement of their fundamental rights on 21/9/04 seeking for the following reliefs:
“1. A declaration that the several arrest; interrogations and detentions of the Applicants DESMOND OKENWA, OGHENEMATRO and JOSHUA OLOTU JIMOH at the Ajeromi Divisional Police Station between the 30th of May, 2004, 23rd August, 2004 by the 6th and 7th Respondents who are agents of the 2nd, 3rd, 4th and 5th Respondents at the instigation of the 1st Respondent are without justification, unconstitutional, unlawful and illegal.
2. A declaration that all statements, undertakings, apology letters, etc., obtained from the Applicants during the said period were null and void and of no effect whatsoever, having been produced forcefully and under duress.
3. A declaration that the damaging, injurious and false information initiated and spread by the 1st Respondent to the effect that 2nd and 3rd Applicants were caught, one shot dead and the other injured and paraded on TV as armed robbers is without justification, unlawful, illegal and unconstitutional and infringes on their fundamental rights.
4. An order restraining the Respondents their agents, servants, or privies from re-arresting, intimidating or detaining The Applicants as 1st respondent has already threatened to use all the other Respondent; besides the 6th and 7th to subdue the Applicants and forcefully get what he wants from them.
5. An order directing the Respondents jointly and severally to pay to the Applicants, the sum of N10,000,000.00 (Ten Million Naira only) being damages for their unlawful detentions and humiliations at Ajeromi Police Station as well as injury to their name, reputation and business caused by the damning information, initiated and circulated by 1st Respondent.
AND for such Further or other orders as the Honourable Court may deem fit to make’ in the circumstances.”
The two sets of respondents in the lower court filed their respective counter affidavits. The application was argued and in a six paged ruling particularly the concluding part at pages 194 – 195 of the records, the learned trial judge held thus:
“The act of the Police in keeping the matter within their office without referring same to court is an act that is neither necessary nor incidental to the efficient discharge of their duty.
I read bad faith in the conduct of the respondents:
1. I declare that the several arrest, interrogations and detentions of the applicants DESMOND OKENWA OGHENEMAIRA and JOSHUA OLOTU JIMAH at Ajeromi Divisional police Station between the 30th day of May, 2004 and 23rd August, 2004 by the Respondent is without justification, unconstitutional, unlawful and illegal.
2. The Respondents, their agents, officers, servants or privies are hereby restrained from re-arresting, intimidating the applicants.
3. I order the Respondents to jointly and severally pay the sum of N2,000,000.00 to the applicants as damages for the unlawful detention and humiliation at Ajeromi Police station.
4. I access the cost of this suit at N200,000.00.”
Dissatisfied with the aforementioned decision, the appellant lodged an appeal against it anchored on five grounds, pursuant to a notice of appeal dated and filed on 14/2/06. In compliance with the Rules of Court, both parties filed in their respective briefs. The respondents filed a preliminary objection to ground 3 of the grounds of appeal and the issue distilled therefrom, pursuant to a notice dated 28/2/07 and filed 5/3/07. The appellant’s brief is dated and filed on 13/12/06, while the reply brief is dated and filed on 22/3/07. The respondents brief is dated 28/2/07 and filed on 5/3/07. The respondents, adopted their notice of preliminary objection and arguments in support as contained in paragraphs 5.1 to 5.6 of the respondents brief. The appellant in response to the preliminary objection adopted the arguments contained on page 6 of the appellants reply brief. As for the main appeal, appellant adopted the appellants brief and the reply brief and urged this court to allow the appeal. The respondents on their part also, adopted their reply brief in urging the court to dismiss the appeal with substantial costs.
In the appellants brief of argument, four issues were identified for determination. The respondents on their part adopted the four issues as formulated by the appellant, with a minor amendment and panel beating to issue number three. For the purposes of this appeal, the issues as formulated by the appellant will be adopted in determining the appeal, namely:-
1. Whether the Lower Court has jurisdiction to hear and determine the Motion on Notice when it was clear that the said matter was not set down for hearing within 14 days after grant of leave to enforce fundamental rights? This issue is distilled from ground 1 of the Notice of Appeal.
2. Whether the learned Judge was right when he Suo Motu raised an issue as to why the Respondents were not charged to court and proceeded to hold that because the Respondents were not taken to court that there was a design to harass the Respondents? This issue is distilled from Ground 2 of the Notice of Appeal.
3. Whether the respondents made out a case for breach of their fundamental rights to warrant the judgment of the Lower Court in their favour?
This issue is distilled from ground 3 of the Notice of Appeal.
4. Whether the learned trial Judge acted judicially and judicially(sick) in awarding the sum of N2 Million (Two Million Naira) as compensation to the respondents and cost of N200,000 (Two Hundred Thousand Naira)?
This issue is distilled from Grounds 4 and 5 of the Notice of Appeal.”
The respondents having raised a preliminary objection, the said objection, will be considered before venturing into the resolution of the issues raised.
The notice of preliminary objection is hereby reproduced, for ease of reference:
“TAKE NOTICE that at the hearing of this appeal or any other date this Honourable Court may deem convenient, the Respondents shall contend by way of preliminary objection that Ground 3 of the Notice of Appeal already filed in this suit and issue 3 distilled from same is incompetent and same ought to be struck out.
GROUNDS OF OBJECTION
i) That Ground 3 and issue 3 couched from it are so vague and general in its terms;
ii) That the said Ground of Appeal and issue(s) distilled from it do not disclose any reasonable ground of Appeal.
iii) Ground 3 and issue 3 distilled from it are/is incompetent.”
The preliminary objection basically complaints about ground 3 of the grounds of appeal and the issue distilled there from.
The contention of the respondents is that ground 3 and the issue distilled therefrom is so vague and general in terms and therefore discloses no reasonable ground of appeal, hence contravenes Order 3 Rule 2(4) of the Rules of this Court 2002.
Learned counsel further submits that ground 3 ought to have been made an omnibus ground of appeal in order to bring it within the exception contemplated by Order 3 Rule 2(4) (supra). Learned counsel therefore urged the court to strike out ground 3 and the issue couched from same, for being incompetent. In support of the submission, reference was made to the following cases. Okezie v. The Queen (1963) 1 SCNLR 24, Mobil Oil Nig Ltd v. Coker (1975) 3 SC 175, Angyu & Anor v. Alh. Malami (1992) 9 NWLR (Pt. 264) 242.
In his response, learned counsel for the appellant contends that ground 3 and issue 3 are neither vague nor ambiguous, hence competent. Learned counsel further submits that the said ground 3 and its issue are very precise, sharply outlined, distinct and certain, as challenges directly the findings and judgment of the lower court. Learned counsel further contends that the respondents have not argued that they do not understand the said ground and issue or that they were misled or confused about them, hence cannot be said to be vague and do not in any manner offend Order 3 Rule 2(4) of the Rules of this Court 2002. Learned counsel urged the court to overrule the said objection. In support of the submissions, reference was also made to the following cases. Garuba v. Kwara Inv. Ltd (2005)4 MJSC 58, Akanbi v. Salawu (2003)13 NWLR (Pt. 838) 637.
The ground of appeal under attack and the Issue distilled therefore, are hereby reproduced:
“GROUND 3
The Learned Trial Judge erred in law when he held that the respondents were threatened and detained using the influence of the Appellant.
PARTICULARS OF ERROR
a) There was conflict in affidavit evidence of parties before the court as to the issue of the appellant influencing the police.
b) Oral evidence was not called to resolve this conflict.
c) There was affidavit evidence by the police that the Respondents were arrested just once and granted bail on the same day within hours of the arrest.
C ISSUE 3
Whether the Respondents made out a case for breach of their fundamental rights to warrant the judgment of the Lower Court in their favour?
This issue is distilled from Ground 3 of the Notice of Appeal.”

By Order 3 Rule 2(4) of the Rules of Court 2002, which is now order 6 rule 3 of the 2007 Rules, a ground of appeal which is vague, general in terms or discloses no reasonable ground of appeal is not permissible. See CBN v. Okogie (2002) 8 NWLR (Pt. 768) 48. I have considered ground 3 as reproduced above, the complaint contained therein is quite clear, unambiguous and comprehensible. The apex court in Garuba v. Kwara Inv. Ltd (supra) had this to say on grounds of appeal at page 79 paragraphs A-D of the report:
“Once the complaint is clear in such a ground of appeal, and the Respondent is not in any way misled or confused and the court can grasp unambiguously the purport of the ground, the ground will stand. Indeed once the ground is not misleading or incomprehensible, it is in the interest of overall justice to the parties to allow it as a valid ground of appeal; otherwise the court will find itself unnecessary adhering to technicality, the principle this court has always frowned upon.”
See Akaobi v. Salawu (supra). The said ground 3 and the issue distilled therefrom have passed the litmus paper test set by the apex court in Garuba v. Kwara Inv. Ltd (supra). The said ground and its issue cannot therefore be said to have violated Order 6 Rule 3 of the Rules of this Court 2007. Consequent upon the foregoing, the preliminary objection lacks merit; it fails and is hereby overruled. A consideration will now be made of the four issues formulated for determination.
Issue One
Learned counsel submits that the issue of jurisdiction can be raised at any time and for a court to have jurisdiction to entertain a case all the condition precedent to the hearing of the case must be satisfied. In support of this contention reference was made to the following cases. Madukolu v. Nkemdilim (1962) 2 SCNLR 342, Ogunsanya v. Dada (1990) 6 NWLR (Pt. 156) 374. Learned counsel further submits that by Order 2 Rule 2 of the fundamental Rights Enforcement Procedure Rules, a motion or summons must be entered for hearing within 14 days after the grant of leave. Learned counsel contends that in the instant case, leave was granted on 20/9/04 and the case adjourned to 14/10/04 not even for hearing but for report of service. Learned counsel therefore argued that the motion was not entered for hearing within 14 days in clear violation of Order 2 Rule 2, thereby depriving the court of jurisdiction to entertain the matter. In support of this submission, reference was made to the case of Ogwuche v. Mba (1994) 4 NWLR (Pt. 336) 75. In concluding learned counsel urged this court to resolve the issue in favour of the appellant and allow the appeal as the lower court lacks no jurisdiction.
In his response learned counsel for the respondent stated that leave was granted on 20/9/04 and the motion on notice dated 20/9/04 for the enforcement of the fundamental right was filed on 21/9/04. Learned counsel contended that once a motion on notice is filed in the courts registry within the statutory 14 days, such a motion is deemed to be entered for hearing. Learned counsel argued that the respondents motion filed on 21/9/04 is deemed entered for hearing within the statutory 14 days, hence, the lower court was right in assuming jurisdiction. Learned counsel submits that Ogwuche’s case no longer represents the law, as to what constitutes entering a motion for hearing and that latter decision have departed from the case. In support of this submission, learned counsel referred to the following cases:- Ezechukwu v. Maduka (1997) 8 NWLR (Pt. 518) 625, A.G. Federation v. Chief G.O.K. Ajayi (2000) 12 NWLR (Pt. 682) 509, Monye v. Presidential Task Force on Trade Malpractices (2002)15 NWLR (Pt. 789) 209, Inah v. Ukor (2002) 23 WRN 78. In concluding, learned counsel urged that this issue resolve in favour of the respondent.
Order 2 Rule 1(2) of the Fundamental Rights Enforcement Procedure Rules 1979 provides that the motion or summons must be entered for hearing within 14 days after the grant of leave. It must be noted that as at the time the ex- parte motion for leave to enforce the fundamental right is being granted, the motion on notice is not before the court and therefore could not strictly speaking be fixed for hearing. It is when it is filed that it is fixed for hearing by the registry staff. Order 2 Rule 1(2) does not therefore require the hearing of the motion on notice to come up within 14 days after the grant of leave. Rather it provides for the motion on notice to be entered (that I filed) within 14 days after leave has been granted. There is a clear dichotomy or cleavage between filing the motion or summons and fixing the application for hearing. While the former function is that of the litigant the latter function is that of the court and the applicant has no control over it.

Once an applicant has filed his motion or summons within the prescribed 14 days after the grant of leave, he has complied with requirements of the rule. The case of Ogwuche no longer represents the position of the law. Hence, it is not the law that the application must be heard within 14 days after the grant of leave. Rather, the motion must be filed within 14 days after the grant of leave, where it is not filed within 14 days the leave granted becomes spent or void and the only saving grace is a fresh application for leave. See Ezechukwu v. Maduka (supra), A.G. Federation v. Ajayi (supra), Monye v. Presidential Task Force on Trade Malpractices (supra).
The application was filed within the prescribed time and the lower court had jurisdiction to entertain same. This issue is resolved against the appellant in favour of the respondents.
Issue 2
Learned counsel made reference to page 194 line 18 of the record and stated that the lower court raised an issue suo motu and proceeded to decide the matter without inviting counsel to address it on the new issue. Learned counsel contended that once an issue has been raised, the parties must be afforded an opportunity of addressing the court. In support of this submission, reference was made to the following cases: Kotoye v. CBN (1989)1 NWLR (Pt. 98) 419, Agbi v. Ogbe (2004) 5 MJSC 41, Olusanya v. Olusanya (1983) 14 NSCC 97. Learned counsel argued that, having raised the issue and determined the matter without hearing the address of counsel, the decision ought to be set aside as it has occasioned a miscarriage of justice. Learned counsel further proceeded to make submissions as to the reasons for the delay in arraigning the respondents before a court of law, which was due to their request for an amicable out of court settlement. In support of the reasons for the delay, learned counsel made reference to Exhibit B of the respondent’s application, pages 41 and 44 of the records and paragraphs 12 – 19 of the 2nd to in respondents counter affidavit.
In a short response, learned counsel for the respondents submitted that the comments of the learned trial Judge on page 194, does not amount to raising an issue suo motu but was a mere obiter. Learned counsel submitted that a complaint against an obiter in a judgment or ruling cannot constitute an appealable ground of appeal. In support of this submission, reference was made to the case of University Press Ltd v. I.K. Martins Ltd (2000) FWLR (Pt. 5) 722. Learned counsel made a reference to Section 35(4) of the 1999 Constitution in response to the reasons given for the delay in arraigning the respondents. Learned counsel urged that the issue be resolved in favour of the respondents. In a short reply, learned counsel for the appellant made reference to Black’s Law Dictionary as to the meaning of ‘obiter’ and submits that the question raised by the learned trial Judge was the sole ground for his findings against the appellant. Learned counsel posits that such a question cannot be said to be an orbiter, hence urged the court to resolve the issue in favour of the appellant.
The contention of the respondents is that the issue raised on page 194 of the records is an obiter and cannot constitute an appealable ground of appeal. What then is an ‘obiter’? Black’s Law Dictionary 8th edition by Bryan A. Garner defined ‘obiter’ at page 1102 as follows:
“Something said in passing. A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential.”
With the above definition, a consideration will be made as to whether the issue raised was a mere obiter or not. The learned trial judge on page 194 of the records raised an issue as to why the respondents were not charged to court. Based on the said issue, the learned trial Judge read bad faith in the conduct of the respondents and held that based on failure to arraign them in court, there was a design to harass them. The issue raised weighed heavily and played a pivotal role in the decision of the court, hence it cannot be said to be an obiter.

There is absolutely nothing in law which stops a court from raising an issue suo motu, provided such issue will lead to a proper determination of the dispute between the parties. Where however a court raises an issue suo motu, parties must be given an opportunity to address the court on the now issue raised. See A.G. Leventis (Nig) Plc v. Akpu (2007) 17 NWLR (Pt. 1063) 416. Bhojsons Plc v. Daniel Kalio (2006) 5 NWLR (Pt. 973) 330.
In the instant case, the failure to afford the parties an opportunity to address the court on the new issue, affected their rights to fair hearing and occasioned a miscarriage of justice. Consequently this issue succeeds and is hereby resolved in favour of the appellant.
Issue 3
Learned counsel for the appellant submits that a party desirous of obtaining a relief before any court must establish by credible evidence that he is entitled to such relief. In support of this contention, reference was made to the following cases: Buhari v. Obasanjo (2005) 8 MJSC 1, A.G. Anambra v. A.G.F. (2005) 7 MJSC 1. Learned counsel contended that the respondents have failed to prove by affidavit evidence the date, time and places where their fundamental rights were violated. Learned counsel stated that the letters from the respondents counsel to the police at pages 41-45 never alleged several arrest, detentions and interrogations. Learned counsel further stated that the averments as to arrest and detention were duly denied and challenged by the appellants in paragraphs 26, 27 and 38 where it was stated that respondents were released on bail the very day they were invited by the police.
Learned counsel further submitted that the counter affidavit of the 2nd – 7th respondents, which has not been controverted has explained everything. Learned counsel made reference to paragraph 6-10 of the 2nd – 7th respondents counter affidavit and Exhibit B attached thereto, and submitted that the respondents were released on bail the very day they were invited to the police station. Learned counsel further contended that the respondents having not challenged any of the depositions in the counter affidavit of 2nd – 7th respondents, the averments contained in the said counter affidavit are deemed admitted.In support of this contention, reference was made to the following: Azeez v. State (1986) 2 NWLR (Pt. 23) 541, Anyaegbuna Osaka (1993)5 NWLR (Pt. 294) 449.
Learned counsel further contended that the seeming conflict between the affidavit of the respondents and the counter affidavit of the appellant has been resolved by the counter affidavit of 2nd – 7th respondent which stands uncontroverted. Learned counsel argued that in the event the conflict has not been resolved, oral evidence ought to have been called to resolve same, which has not been done. In support of this submission, reference was made to the following cases of Edohon v. A.G. Edo State (1997) 5 NWLR (Pt. 505) 298 Okoye v. Lagos State Government (1990) 3 NWLR (Pt. 136) 115. Learned counsel further argued that the learned trial Judge stated that the depositions in the counter affidavit of 2nd to 7th respondents gave a Picture of what transpired, yet erroneously held that the rights of the respondents/applicants had been breached. Learned counsel made reference to paragraphs 6-13, 17-20, 26 and 27 of the 2nd – 7th respondents counter affidavit and urged the court to hold that the applicants have not establish a breach of their fundamental right. Learned counsel urged that this issue be resolved in favour of the appellant.
The respondents as earlier stated in this judgment amended issue 3 in their respondents brief. Hence, issue 3 in the respondents brief only treated the preliminary objection raised by the respondents as to ground 3 of the grounds of appeal and the issue distilled from the said ground. Curiously however, the respondents did not respond to the submissions of the appellant made under issue number 3. Hence, the submissions of counsel for the appellant stands unchallenged and will now be considered on its merits.
The sum total of the contention of the appellant under this issue is that the respondents as applicants have not established by evidence that their fundamental right had been breached. The ground upon which the respondents as applicants sought the reliefs in the lower court was based on the following:
“That the several arrests, interrogations and detentions of the applicants at the Ajeromi Police Station Ajegunle Lagos between 30th May, to August, 23, 2004 at the behest of the 1st respondent is without justification, unconstitutional and illegal.”
See pages 38 and 39 of the records containing the reliefs and the grounds upon which the reliefs are sought. The contention of the respondents as applicants was that they were arrested, interrogated and detained several times between 30/5/04 to 23/8/04 at the instance of the appellant for no justifiable cause.
The appellant from his counter affidavit at page 106 of the records averred that he was assaulted by the respondents and his shop vandalized, consequent upon which he lodged a report at the police station. The appellant further averred that when the respondents were invited to the police station, they were granted bail that same day. The appellant further averred that the respondents tendered a written apology for their conduct which was attached as Exhibit DD and solicited for an amicable settlement of the matter. The appellant averred that he sustained injuries after the assault and was referred to the General Hospital by the Police. Exhibit CC attached to the counter affidavit contains the referral letter from the police, out patient card of Lagos State Health Management Board and Hospital receipts from Vemedix Clinic. The respondent filed a further and better affidavit, to the counter affidavit of the appellant.
The 2nd to 7th respondents, who were the second set of respondents also filed a counter affidavit at pages 162 to 171, of the records. Paragraphs 6-10, 12, and 22 of the counter affidavit are relevant and are hereby reproduced:
“6. That on the 30th of march, 2004 at about the 12:35 hours, a case of Assault, Malicious Damage and Threat to life was reported by one Mr. Cosmas Onah of No. 23 Nosamu str. Ajegunle Lagos against one Mr. Desmond Okenwa, Mr. Oghene Mairo and Mr. Joshua Olotu Jimoh.
7. That IPO Ereristus Urammah was detained to investigate the case and invite the suspects to the Ajeromi police station Ajegunle for interrogation.
8. That in the course of the investigation the site of the alleged offence was visited by IPO Everistus Urammah and photographs of damaged items were taken. Copy attached as Exhibit “A”.
9. That statements were obtained from all the parties to the case under caution while the complainant Mr. Cosmas Onah who sustained injuries when he was assaulted by Mr. Desmond Okenwa was issued a police medical report for treatment.
10. That on the same day the 30th of March, 2004 Mr. Desmond Okenwa was cautioned to be of good behaviour and not to further breach the peace of the public and released on bail to Mr. Mairo Emeofa. A copy of the Bail bond attached as Exhibit “B”.
12. That at the end of the investigation, Criminal Charges were drafted and the suspects Mr. Desmond Okenwa, Oghene Mairo and Mr. Joshua Olotu Jimoh were to be arraigned in court for Assault, Malicious Damages and Threat to life of Mr. Cosmas Onah, when the suspects started pleading for out of court settlement with Mr. Cosmas Onah the complainant.
22. That this case was thoroughly investigated by 4 (four) independent Police Officers at two different Police Stations and they all came to the same conclusion in their individual report and recommendations that the Plaintiffs are to be arraigned in court for Assault, Malicious Damages and Threat to the life of the 1st Defendant Mr. Cosmas Onah.”
The counter affidavit filed by the 2nd – 7th respondents has not in any way been controverted by way of further affidavit, hence the facts averred therein are deemed admitted. See Azeez v. State (supra), Anyaegbuna v. Osaka (supra). In fact, the learned trial Judge, while referring to the said counter affidavit, in his ruling page 194 stated thus:
“The counter affidavit sworn to by Sunday Aigbokan on behalf of 2nd to 7th Respondents gave a Picture of what transpired between the applicants and the 1st respondent.”
From the affidavits filed, particularly the paragraphs earlier reproduced, it is clear that the respondents were invited to the police station based on a report of criminal allegation against them by the appellant. The respondents also apologized and pleaded for an amicable settlement out of court.

Once criminal allegations are made against a citizen, it is a constitutional and statutory a duty of the police to investigate, as investigation and detection of crime is one of the primary duties assigned to the police under Section 4 of the Police Act.
In view of the foregoing, and from the affidavit evidence the respondents as applicants have not made out a case for the breach of their fundamental rights to warrant the judgment in their favour.
Consequently this issue succeeds and is hereby resolved in favour of the appellant.
Issue 4
This issue relates to the award of N2Million damages and N200,000 costs to the respondents. The damages and costs awarded to the respondents were predicated on the fact that their fundamental right had been breached. Having resolved issue three in favour of the appellant, to the effect that the respondents have not made out a case for the breach of their fundamental rights, the damages awarded and cost will therefore have no legs to stand on, and are hereby set aside.
Consequent upon the foregoing, the appeal succeeds in part and the judgment of the lower court delivered on 19/1/2006 and all the orders made therein are hereby set aside. There will be no order as to costs.

ADZIRA GANA MSHELIA, JCA: I read before now the judgment just delivered by my learned brother, Jauro, JCA. I agree with the reasoning and conclusions reached therein in allowing the appeal in part. I only wish to add few words of mine for the purpose of emphasis. On the 3rd issue for determination in particular, appellant’s counsel contended that respondents failed to establish that their fundamental human right was breached as such the lower court was in error to have entered judgment in favour of the respondents. The respondents applied for the enforcement of their fundamental human right in the lower court on the ground that they were arrested and detained several times by the police, at the instance of the appellant.

All that the appellant did was to exercise his right as a citizen by laying complaint to the police after the respondents assaulted him. There was no iota of evidence before the lower court in this case, to show that the appellant ever did more than laying a complaint to the Police. The affidavit evidence disclosed that respondents were arrested but released on bail by the police on the same day. It is a matter for the police to decide what action they should take on the report or complaint. See Gbajor vs. Ogunburegui (1961) 1 ANLR 853 at 853 and FCMB vs. Ette (2008) Volume 22 WRN 1. Having regard to the circumstances of the case, I am of the firm view that learned trial Judge was in error to have entered judgment in favour of the respondents based on the affidavit evidence placed before him.
For the reasons stated herein above and the more detailed reasons stated in the lead judgment, I too would allow the appeal in part, and abide by all consequential orders cost inclusive.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege of reading In advance the Judgment just delivered by my learned brother JAURO JCA. I am in complete agreement with the reasonings proffered therein and the conclusion arrived there at, that this appeal succeeds in part. I wish to add a few words.
Every person in Nigeria who feels an offence has been committed has a right to report to the Nigerian Police Force. Once that right of complaint to the police who are custodians of order in the society is exercised, the right shifts to the police to exercise their statutory powers under 54 of the police Act. The power conferred on the Police under the Police Act includes investigation, arrest, interrogation, search and detention of any suspect. In the process of investigation, the Police is enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the persons complained against. This is the rationale for shifting the onus of justification of arrest and detention on the Police. Once an Applicant aggrieved that his fundamental right under the constitution has been infringed commences an action in court and establishes the claim on arrest and detention, the onus shifts to the Police.

Therefore, whatever action the Police takes, once a complaint has been made to them must be based on facts which are reasonable and justifiable. That calls for accountability by the Police for actions taken.
The Appellant was the complainant to the Police. It was based on his complaint that the Police acted by commencing their investigation of keeping the Respondent in the station for few hours.
The question of instigation raised against the Appellant has to be established by the Respondents to earn the relief sought. To claim instigation requires evidence as to facts to support that the allegation was not made in good faith or that it is a fabricated story which caused the Police to arrest and detain. In the instance case, there is no credible affidavit evidence in support of the claim on instigation. The Appellant exercised his legal right seeking the intervention of the Police.

On issue of raising matters by the court, a court has the powers to raise an issue suo motu in respect of any matter before it. This power must be exercised judicially so that justice will be done to all the parties. Once a court raises an Issue suo motu and decides it unilaterally without giving the parties opportunity to be heard, it will be in breach of the parties right to fair hearing. The parties must be invited to address the court on the point. See African Continental Bank Ltd. v. Crestline Services Ltd. (1991) 6 N.W.L.R (pt.197) 301, Udogu v. Egwuatu (1994) 3 N.WLR (pt.330) 120, Cunsin (Nig.) Ltd. v. I.G.P. (2008) 5 N.W.L.R (pt.1080) 546.
The Learned Trial Judge raised suo motu a novel Issue on why the Respondents were not charged to court. This vital Issue was relied on by the court below without inviting learned counsels on both sides to address the court. This failure was an error and affected the decision of the court below on that point For these and the fuller reasons contained in the lead Judgment I hold the appeal succeeds in part and abide by all the consequential orders inclusive of cost.

Appearances

Frank Umesie EsqFor Appellant

AND

G. P. Agbeotu EsqFor Respondent