ALHAJI BALA GUSAU & ORS v. EMEKA UMEZURIKE & ANOR
(2012)LCN/5111(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of January, 2012
CA/IL/24/2008
RATIO
STATUTORY PROVIDION ON THE LAWFUL ARREST OF AN ACCUSED
section 35(1) (c) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) automatically came into effect to bring into play section 35(4) and (5) (a) of the 1999 Constitution. For quick reference, section 35(1) (c) (4) (5) (a) are copied below:
“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 having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing o criminal offence;
(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before o court of law within a reasonable time,
(5) In subsection (4) of this section, the expression “a reasonable time” means –
(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day;” PER. JOSEPH SHAGBAOR IKYEGH, J.C.A
LAW OF EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE AN ALLEGED ARREST AND DETAINMENT
The burden is on the person alleging the detention to prove both – see Fajemirokun (supra) at page 613 per Muhammad, J. S. C., thus: “From the claims of the appellant who was the applicant at the trial court, the duty to establish that his fundamental right was breached, rested squarely on the appellant. It is trite law that he who asserts must prove. See section 135 – 137 of the Evidence Act which lay down the fundamentals of such proof …. That is the position of the existing law. It would thus amount to re-writing the law, if, as learned counsel for the appellant would want us to believe, that: “If a person alleges that he was arrested and detained, the burden of proving the legality of both the arrest and detention rests squarely on the respondents.” This to say the least, is putting the law (upside down) in a reversed position … Thus, it is certainly the appellant who would fail if no evidence at all were given on either side. The appellant was therefore bound, to prove the existence of those sets of facts which curtailed his right of freedom of movement. …” PER. JOSEPH SHAGBAOR IKYEGH, J.C.A
CIRCUMSTANCES WHERE A DETENTION CAN LEAD TO A BREACH OF FUNDAMENTAL RIGHT
It is, however correct to hold that detention, no matter how short, can lie a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful, in the first place; that is, if there is no legal foundation to base the arrest and/or detention of the applicant. See the case of Okonkwo v. Ogbogu (1996) 5 NWLR (pt 499) 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458; NEMI v. A.G LAGOS (1996) 6 NWLR (pt 452) held 2.Where there is a basis, as alleged in this case, that the Applicants were lawfully arrested for the purpose of investigation on the alleged issuance of dud cheques by the Police, then the duty of establishing that they were kept (or detained) beyond the period allowed by Law, resides with the party complaining about the detention, and in that case the Respondent have a duty to justify same, if lawfully done. PER. ITA G. MBABA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI BALA GUSAU
2. COMMISSIONER OF POLICE KWARA, STATE
3. INSPECTOR-GENERAL OF POLICE
4. NIGERIA POLICE COUNCIL Appellant(s)
AND
1. EMEKA UMEZURIKE
2. IKECHUKWU OPARA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment): The proceedings that generated the appeal originated from the decision of the High Court of Justice of Kwara State sitting at Ilorin (the Court below) declaring the detention of the 1st respondent wrongful and awarding N500,000 compensatory damages to the 1st respondent against the appellants for the infringement of the 1st respondent’s fundamental right to personal liberty.
The substance of the controversy arose under the following circumstances. The 1st respondent, a ile merchant, imparted ile materials from Togo. His business partner, the All State Company (Nig), was to clear the goods with men of the Nigeria Customs Excise and related agencies for him. Both of them were cash strapped. His business partner decided to borrow the sum of N1,849,000 with interest of N200,000 thereon making the total sum of N2,049,000 from the 1st appellant. The 1st respondent undertook to pay the loan. A cheque covering the loan was issued to the 1st appellant by the 1st respondent. The goods were, however, impounded by the Nigeria Customs and Excise. The 1st appellant presented the cheque dated 6.5.2005, for payment on 9.6.2005. It bounced. 1st appellant proceed to lodge complaint with 2nd – 4th appellants’ agents on the dud or bounced cheque. Pursuant to the report, the 1st respondent was arrested and detained by the 2nd – 4th appellants’ agents before he was charged to court.
The 1st appellant appealed separately against the decision of the court below. His notice of appeal conveying six grounds of appeal was filed on 19.1.2007. In the 1st appellant’s brief of argument dated
and filed on 28.3.08, by his learned counsel, Mr. Dayo Akinlaja, two issues tied to grounds 1, 2,4 and 3, 5 of the appeal respectively were coined for determination in the appeal thus:
“1. Whether on the available evidence in this case the learned trial judge was not wrong in holding that the detention of the 1st respondent was unlawful and in holding the appellant jointly liable for the detention – Grounds 1, 2 and 4.
2. Whether of whatever event the award by the learned trial judge of a sum of N500,000.00 as general damages in favour of the 1st respondent was not unwarranted having regard to the circumstances of this case – Grounds 3 and 5.”
In arguing issue 1, the 1st appellant’s learned counsel referred to paragraphs 4 – 20 of the 2nd respondent’s affidavit to contend that the affidavit did not reveal the source of information of the deponent, nor the fact that the deponent believed in the information while paragraphs 32, 36 and 41 thereof are legal arguments and conclusions offending sections 87 and 88 of the Evidence Act respectively and same should have been struck out by the court below and, having not done so, the said paragraphs of the affidavit must be discountenanced in accordance with the cases of A/G Federation (2006) ALL FWLR (Pt. 299) 1450 at 1500 -1501 and G.A.S. V. Thahal (2004) 4 SCNJ 89 at 104 and 107.
And that, the effect of striking out the said paragraphs of the affidavit leaves no evidence in support of the alleged detention of the 1st respondent who did not make the affidavit evidence, nor was the exact duration of the detention established which left the court below to speculate on the period of the detention contrary to the case of O. B. M. C V. M. B. A. S. Ltd. (2005) ALL FWLR (Pt. 261) 216 at 234; more so the declaratory relief granted by the court below that the detention was wrongful being equitable in content, cannot be granted on speculation but on materials placed before the court as held in the cases of Planwell Ltd. V. Ogala (2003) 12 SCNJ 58 at 65 and Livestock Feeds PLC V. Funtua (2005) ALL FWLR (Pt. 286) 753 at 770 – 771.
And that with the admission of the 1st respondent in his oral evidence that he issued the cheque when he knew his account was in debit and, the cheque was repeatedly dishonoured on presentation for lack of funds constituted an offence justifying the 1st appellant’s report to the agents of the 2nd 4th appellants, which the latter investigated and decided on their own to charge the1st respondent to court demonstrating the dispute was not civil in nature and, the 2nd -4th respondents’ agents, not the 1tt appellant, took the decision to arrest the 1st respondent on the said criminal allegation which the court below held was lawful vindicated the 1st appellant’s criminal report to the agents of the 2nd 4th appellants vide Duru and Another V. Nwangwu (2006) 5 SC (Pt. 111) 70 at 71 and 78. It was contended finally on issue 1 that the evidence of the 1st – 2nd respondents was materially contradictory and the court below was wrong in picking and choosing from the said evidence in breach of the decisions in the cases of Boy Muka and Others V. State (1976) 9-10 SC (Reprint) 193 at 205 and Yusuf V. Obasanjo (2005) ALL FWLR (pt. 294) 387 at 483, more so the court below held 2nd respondent was not a witness of truth and should not have relied on his evidence to find the 1st appellant liable for the alleged detention of the 1st respondent.
Submissions on issue 2 pointed out that there was no credible evidence in proof of the alleged detention of the 1st respondent as the evidence was lacking in respect of its duration or time and dates to warrant the award of N500,000 compensatory damages to the 1st respondent vide Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22 at 35 – 36. Also, the evidence by the 2nd respondent that the 1st respondent was detained for four days should not have been believed by the court below after it found as a fact that the 2nd respondent was not a witness of truth; that the damages which the respondents sought in paragraph 40 of the 2nd respondent’s counter affidavit was for loss of earnings without strict proof of same; and that the 1st appellant merely exercised his civic duty of reporting the 1st respondent to agents of the 2nd -4th respondents in respect of the commission of an offence.
The 2nd – 4th appellants’ notice of appeal dated 10.11.08, was filed out of time on 4.3.09, upon an order of the Court made on the same date pursuant to a motion for enlargement of time to lodge the appeal. The notice of appeal in question has two grounds of appeal. A joint brief of argument of the 2nd -4th appellants dated and filed on 9.2.2011, but deemed duly filed and served on 30.6.2011, was prepared by Mrs. R. A. Shittu, Senior State Counsel, Ministry of Justice, Kwara State. Two issues were formulated by the learned senior state counsel in the brief for determination of the appeal in these words:
“ISSUE NUMBER ONE
“Whether from the totality of evidence available in case the learned trial Judge was right to hold that detention of the 1st Respondent by the agents of the 2nd – 4th Appellants at the behest of the 1st Appellant is illegal, unlawful or unconstitutional.”
ISSUE NUMBER TWO
“Whether having regards to the fact and circumstance of this case, the 1st Respondent is entitle to the whopping sum of N500,000 as damages.”
After adopting the 2nd – 4th appellants’ brief of argument on 15.11.011, Mrs. Shittu conceded the other three grounds of appeal and the arguments canvassed thereon by the 1st appellant 2nd – 4th appellants’ brief married issue one to ground 1- of the appeal and issue two to ground 2 thereof. Sections 4, 24, 25 of the Nigeria Police Act read with the proviso to section 35 of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) and the cases of Chukwuma V. C. O. P. (2005) ALL FWLR (Pt. 335) 177 at 188, Balogun V. Amubikanhun (1989) 3 NWLR (Pt. 107) 18 at 27 and Schlumberger (Nig) Ltd. V. Onah (2007) ALL FWLR (Pt. 389) 1360 at 1375 were cited in the brief for the proposition that the 2nd – 4th appellants were justified to accept the criminal complaint of dud cheque brought by the 1st appellant against the respondents and to arrest the respondents for the purpose of police investigation of the complaint and to later charge the 1st respondent to court on the criminal allegation in line with their statutory duty of law enforcement and sanctity of business in order to stem fraud, cheating and/or any act of criminality.
The contention on issue two attacked the award of N500,000 “punitive” damages against the appellants for having no basis and/or for having been awarded as a matter of course. The cases of Akibu V. Oduntan (1991) 2 SCNJ 30 at 31 41, Ogundiaro V. Okanlawon (1963) 3 ALL NLR 358, Faleye V. Otapo (1995) 3 NWLR (Pt. 381) 1 at 32- 33, and Sasegbon Laws of Nigeria (First Edition) Vol .14 at page 675 Were cited for the contention that the documentary evidence adduced in the court below discredited the respondents’ case and constituted sufficient ground to dismiss the declaratory relief sought by the respondents, which the court below wrongly granted in the face of the said discredited evidence, consequently, the appeal should be allowed.
Mr. T. Olomu, learned counsel for the respondents, settled his clients’ joint brief of argument dated and filed on 28.6.2011, but deemed properly filed and served on 30.6.2011, wherein the issues for determination formulated by the appellants were adopted by the respondents. It was argued on issue one that paragraphs 4, 20, 32, 36, 41 of the 2nd respondent’s affidavit were based on the information the deponent came across while trying to get the 1st respondent on police bail and could not have been from his personal knowledge for the purpose of invoking section 88 of the Evidence Act, more so the 2nd respondent, being a party to the case, was not required to follow section BB of the Evidence Act as he was entitled to depose to the affidavit without resort to the requirements of section 88 of the Evidence Act vide the cases of Okpara V. Gusau (2009) ALL FWLR (Pt.450) 801 (setting aside the Ruling of the court below in pages 91 – 103 of the record of appeal (the record), and Shodipo V. Lemminkainem OY (1986) ALL NLR at 87, distinguishing on the facts the cases of G. A. S. V. Thahal (supra) and A/G Adamawa V. A/G Federation (supra); and that regardless of the said paragraphs of the affidavit, paragraphs 7 to 1,6 of the appellants’ counter – affidavit and Exhibit A attached thereto also contained the same facts or information.
Arguing further on issue one, the respondents’ brief referred to the “Debt Settlement Agreement” in pages 20 – 21 and 38 – 39 of the record to contend that it established the detention of the respondents over a civil matter and the procedure for the enforcement of the agreement through the Investigation Police Officer, one Sergeant Moshood Salaudeen Abiola, recorded in pages 41 – 42 of the record proving the 2nd – 4th appellants’ agents were used by the 1st appellant to recover debt from the respondents for him, not for the purpose of criminal investigation and possible prosecution of the respondents by the 2nd – 4th appellants’ agents on reasonable grounds of the respondents having committed the offence of issuing dud cheque to the 1st appellant, therefore the court below was right in holding that the dispute was civil and outside the statutory powers of the 2nd – 4th appellants’ agents. It was also argued on issue one that the 1st appellant received N720,000 part payment of the debt of N2,049,000 respondents owed him before he presented the cheque of N2,049,000, when he was no longer entitled to the said sum of money having received part of it in the repayment of N720,000, his report to the police that respondents issued dud cheque to him when Exhibit E was written stopping the cheque became a false report and the 2nd – 4th appellants’ agents having acted on the false report by arresting and detaining the respondents, the 1st appellant was equally liable for the said arrest and detention following the cases of Duru V. Nwangwu (2006) 5 S. C. (Pt. 111) 70 at 77 and Balogun V. Amubikanhun (1989) 4 SC (Pt.1) 167 at 171; and that the alleged contradictions are mere discrepancies or minor variations normal in life and conformed to the truthfulness of the respondents’ case showing it was not “tutored, tailored and doctored” and the said evidence for the respondents was rightly accepted by the court below vide Gabriel V. The State (1989) 5 NWLR (Pt.122) 457 at 568 and Esangbado v. The state (1989) 4 NWLR (Pt. 113) 57 at 83.
The respondents’ brief argued on issue two that by section 35(6) of the 1999 Constitution, as amended, read with the cases of (sic) Daily Times of Nig. Ltd. (1990) ALL NLR 1, 3, 27 and 28, and Minister of Internal Affairs V. Abdulrahaman Shugba (citation not supplied) exemplary and aggravated damages such as awarded by the court below can be made for the infringement of a person’s right to personal liberty “not only to assuage the battered psyche and image of the respondents but to show judicial deprecation of the party at default” for the defendant’s “arbitrary, reprehensible and fraudulent” action, consequently the award of N500,000 compensatory damages against the appellants should not be disturbed having regard also to the evidence in the “Debt Settlement Agreement” with emphasis on clauses 3 and 5 thereof establishing the detention of the said detention of the respondents together with the undenied paragraph 40 of the respondents’ counter-affidavit amounting to an admitted fact needing no further proof, and that the appeal be dismissed on the submissions stated above.
I am in agreement with respondents’ learned counsel that the issues formulated by the 1st appellant are appropriate for discussion in the appeal and same will be followed in that regard accordingly.
Some threshold questions were raised. They deserve to be attended to first. In deposing to the affidavit in pages 16 – 18 of the record, the 2nd respondent, a party to the action, stated in paragraphs 1- 3 thereof –
“1. That I am the 2nd claimant in this case.
2. That by virtue of my position I am conversant with the fact of this case.
3. That I have the consent and authority of the 1st claimant to depose to this affidavit.”
The reproduced paragraphs above accorded the 2nd respondent the right to depose to the information in the affidavit in question. Paragraphs 4 – 20 thereof cannot, in the circumstances, be treated as hearsay. The court below was, in my view, right to overrule the objection that the said paragraphs of the affidavit constituted hearsay evidence. I would agree with Mr. Olomu for respondents that the renewed objection to the said paragraphs of the affidavit made in the appeal is untenable – see Shodipo V. Lemminkainen OY (supra) at page 231 thus:
“When the person swearing the affidavit is not the plaintiff, (which was not the case here), he must show that he has the authority of the plaintiff see Chingwin V. Russel (1910) 27 T. L. R. (C. A.) 27.”
The said objection is hereby discountenanced.
The 2nd respondent deposed to his affidavit with the consent and authority of the 1st respondent as stated in paragraph 3 thereof (supra). By obtaining the prior consent and authority of the 1st respondent before deposing to the affidavit, both respondents may use the affidavit evidence for the matter in which they have been jointly sued – see Akinkugbe V. Bucknor (2004) 11 NWLR (pt. 885) 652 at 672 thus:
“The effect of that contention is that the affidavit sworn to by the 1st appellant can only be used for the defence of the 1st appellant alone and cannot be used for the defence of the 2nd – 4th defendants in the application. That in effect there was no counter affidavit filed by the 2nd – 4th appellants to controvert the averments in the affidavit sworn to by the respondent in support of the application for order of interlocutory injunction pursuant to which the court would regard the averments sworn to in all the paragraphs of the affidavit in support of the application of the respondent.
With respect to the learned trial Judge this view cannot be supported by any rule of law statutory or otherwise. It has no legal basis. It would appear the learned trial Judge must have proceeded from this wrong assumption to deny the appellants of any evidence in opposition to the respondent’s motion for injunction. He took into account only the evidence in support. He foiled to hear the other side, thus violating one of the cardinal rules of natural justice, audi alteram partem.”
At any rate, the information deposed to in the 2nd respondent’s affidavit was common ground between the parties in respect of the circumstances behind the arrest of the 1st respondent and the efforts brokered by the 2nd respondent to release him from police custody for the peaceful settlement of the outstanding indebtedness to the 1st appellant, and so much of the information in that direction found its way in the 1st appellant’s counter – affidavit as correctly indicated by the respondents’ learned counsel in the written case of his clients.
The attack on the 2nd respondent’s affidavit on the above issues does not, therefore, have substance and is hereby rejected.
The question whether paragraphs 32 and 41 of the 2nd respondent’s affidavit offended section 87 of the Evidence Act was resolved in favour of the 1st appellant in the court below in page 155 of the record. The respondents did not cross – appeal the issue and same is considered closed against the respondents. The unedited paragraph 36 of the 2nd respondent’s affidavit objected to in the appeal deposed:
“That the 1st defendant is unnecessarily using to police to harass us so that he would not pay for the goods he has damaged.”
The objection to paragraph 36 of the affidavit (supra) was predicated on section 87 of the Evidence Act which provides –
“An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.”
I do not, with deference to the 1st appellant’s learned counsel, see the “extraneous matter by way of objection, or prayer, or legal argument or conclusion” in paragraph 36 of the affidavit (supra) and hereby discountenance the object to it and the cases cited thereon (supra ).
The court below found as a fact that the arrest of the respondents by the 2nd – 4th appellants was based on a report made to them by the 1st appellant disclosing reasonable grounds that the respondents had committed the offence of issuing dud cheque to the 1st appellant making the said arrest lawful. To drive home the point, it is compelling to copy below part of the judgment of the court below on the issue in pages 164 – 165 of the record:
“Having considered the evidence before me, I am satisfied that the 2nd – 4th defendants vide their affidavit evidence has proved the legality and constitutionality of the arrest of the 1st claimant. The evidence before me shows that he was arrested based on the complaint lodged by the 1st defendant that he was duped by the issuance of a cheque which when he presented was dishonoured. There is no concrete evidence before me as the claimants’ counsel would want the Court to belief that the claimants brought to the attention of the Police that he had paid part of N720,000.00 out of the sum on the cheque to the 1st defendant of the time of his arrest. There is also no evidence that he produced to the Police the letter he wrote to his Bankers (Exhibit ‘E’) through which he countermanded the cheque – Exhibit (‘ABG2′) at the time of his arrest. On the basis of the deposition in the defendant counter-affidavit, lam satisfied that the defendants have been able to say what the 1st claimant did to justify his arrest. Therefore, his arrest could be said at the time he was arrested and based on the materials available to the 2nd – 4th defendants to be lawful and I so hold.”
The respondents did not cross appeal the above findings. They remain intact and binding on them, in my view – see S. P. D. C. N. Ltd. v. Edamkue (2009) 14 NWLR (pt.1160) 1 at 27, C. B. N. V. Igwillo (2007) 14 NWLR (pt. 1054) 393 at 427, Ogunyade v. Oshunkeye and Anor (2007) 15 NWLR (Pt. 1057) 218 at 257, and Standard (Nig) Engineering Co. Ltd and Anor v. N. A. C. B (2006) 3 SCNJ 1 at 13.
It follows from the uncontested findings above that the 1st appellant did not make false criminal complaint against the respondents, nor was any title of evidence proferred to establish bad faith on the part of the 1st appellant in lodging the said report to the 2nd – 4th appellants’ agents. It follows, in my respectful opinion, that the 1st appellant in laying the report to the 2nd – 4th appellants’ agents which the court below held arose from the issuance of a dud cheque by the respondents to the 1st appellants, a criminal offence, he acted on genuine grounds and, the court below agreed with the appellants on the issue by concluding that the arrest of the respondents-based on the said report was “lawful and legal.”
In my considered view, whether the 2nd – 4th appellants’ agents detained the respondents after their “lawful and legal” arrest was no longer the responsibility of the 1st appellant. For in the case of Fajemirokun V. Commercial Bank (Credit Lyonnais) Nigeria Limited and Another (2009) 5 NWLR (Pt. 1135) 558 at 600, 505 – 606, involving the criminal offence of the issuance of a dud cheque, as in this case, the Supreme Court held inter-alia 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 duty unless it is shown that it is done mala fide, (Page 600 of the Law Report).
Thirdly there was admission of the allegation of indebtedness, which was the cause and root of the whole problem which triggered of the application at the Lagos High Court. It is very clear that series of cheques that bounced were issued by the appellant’s company, (acts which were criminal in nature), for which the respondents were at liberty to resort to the police for their intervention, by reporting the matter to them. As citizens of Nigeria they have the choice to exercise their legal rights of placing their grievance before the police, being custodians of law and order, and that is where their own impute stops. Whatever action the police takes thereafter is not solely their responsibility and they are not solely liable. If of all there was ‘arrest’ and detention, it was not done by the respondents, but the police who had the authority, to do so. The ‘arrest’, ‘invitation’, and or detention may have been cause by the steps taken by the respondents, but as I have said earlier on, the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere – taken by Police, as suspicion, but dud cheques were actually given, as was proved by the annexture to the counter-affidavit. In this regard, I am of the view that the case of Dumbell V. Roberts (1944) 7 All ER 326 is of assistance.” (Pages 605 – 606 of the Law Report).
Also, in Duru and Another v. Nwangwu and Another (2005) 5 SCNJ 394 at 401 – 402, the Supreme Court (per Katsina – Alu, J. S. C. (later C. J. N.) held inter-alia thus:
“I now come to issue No.2. In the course of its judgment the Court of Appeal held that:
“… I am prepared to agree with the appellants that the respondents cannot seek to enforce their fundamental rights against them. That is so on the further ground that the respondents’ arrest and detention have been the work of the police officers and prison officers having nothing to do with the appellants. All that the 2nd appellant had done was to petition the police who in their judgment have carried out the arrests and detention of the respondents. It is settled that where an individual has lodged the facts of his complaint to the police as in this case by way of petition, and the police have thereupon on their own proceeded to carry out arrests and detention, then the act of imprisonment is that of the police …”In plain language it was their case that they did not arrest and detain the appellants and they cannot therefore be held responsible for the actions of the police.
First, the Court of Appeal, by its decision complained about was only trying to resolve and indeed rightly resolved the issue placed before it.”
See further Adefumilayo V. Oduntan (1958) WNLR 31, Gbajor V. Ogunburegui (1961) 1 ALL NLR 853, and S. P.D. C. (Nig) Ltd. V. Olarewaju (2003) FWLR (Pt. 140) 1640.
Accordingly, the court below, seriously contradicted itself by subsequently holding in another breath in its judgment that the 1st respondent was detained over a civil action of recovery of debt not amounting to the alleged commission of crime when it had earlier held the arrest was based on reasonable ground of the 1st respondent-having committed an offence and was on that basis “lawful and legal.”
To bring out the manifest or irreconcilable contradictions, it is worth-while to, again, reproduce below the first portion of the judgement earlier copied in the discourse and juxtapose it with the subsequent unedited finding in page 166 of the record thus:
“The contention that the 1st claimant issued to the 1st defendant a dud or bounced cheque will not assist the defendants with a view of justifying the detention of the 1st claimant. For one thing, it is clear on the face of Exhibit ‘ABG1’ or ‘MOJ1’ attached to the counter-affidavit of the 1st defendant and that of the 2nd 4th defendants respectively that the word “stopped CHQ” was written in capital letter on the cheque. The said words in my view is not synonymous with dud or bounced cheque. The Police having been given Exhibit ‘ABG1′ by the 1st defendant and having found the inscription “stopped CHQ’ on it should have been on inquiry either to the Bank or the 1st claimant to find out why the words was written. The only reasonable explanation that could have been offered if the Police had care to find out is what is contained in Exhibit ‘E1’ attached to 1st claimant reply to his Bank to stop payment in Exhibit ‘ABG1′ having paid part of the money written on the cheque. This, the Police has woefully failed to do.”
The scenario above clearly showed the Judgment of the court below vacillated or wavered on the facts grounding the alleged detention of the 1st respondent and, it would not be safe to allow the judgment to stand, in my modest view.
The court below made the following findings on the issue of the alleged detention of the 1st respondent in its judgment in pages 157 – 158 of the record:
“As regards the issue of detention for 4 days without trial, I regret to say that there is paucity of evidence from the 1st claimant in this regard. He who assert must proof. Since the defendants are denying the detention of the 1st applicant for which see paragraph 4 of the 1st defendant’s counter-affidavit and paragraphs 6 of the 2nd – 4th defendants’ counter-affidavit, it is therefore the duty of the 1st claimant to proof his detention for 4 days. See Buraimoh v. Adeniyi Esa & others (1990 ) 4 SCNJ 1. If it is true that he was detained for 4 days, it is his duty to give evidence when actually he was detained and when he was subsequently released. There is a total lack of evidence before me in this regard. In the circumstance of the foregoing, I am unable to hold that the 1st claimant was detained for 4 days. To so hold will be an attempt on the part of the Court to speculate. Definitely, it is not the duty
of the court to speculate but to act on cold evidence before it.”
The respondent did not appeal or cross appeal the above significant findings of fact. It is binding on them – see S. P. D. C. N. Ltd. (supra) and the others cases referred to (supra) on the same issue. The fulcrum of the 1st respondent’s case that he was detained for four days by the 2nd – 4th appellants’ agents was, therefore, not established by the respondents in light of the devastating finding above. That should have been the end of the matter.
Surprisingly, the court below which had earlier warned against basing judgment on speculation went on to hold in page 158 of the record:
“But this may not be the end of the matter on the issue concerning the detention of the 1st claimant by the 2nd – 4th defendants. Alt that have held so far is that the 1st claimant has not been able to prove that he was detained for q specific number of days – 4 days – as alleged in his affidavit. The question now is whether there is any evidence of detention of the 1st claimant by the 2nd – 4th defendant however short is may be. It is immaterial that the 1st claimant is unable to prove that he was detained for 4 days as alleged. The important thing in my view is whether there is evidence of any form of detention of the 1st claimant. Once there is evidence of detention, no matter how short and if it is shown that it is unlawful and not justified, then detention would be said to be proved as detention is restrain or confinement of somebody. It is unlawful if it is unwarranted. Once its unlawfulness is established, the length of detention impacts only on as to the quantum of damages.”
Frankly, I do not find the holding above comfortable or reassuring. It is with respect non sequitur. The duration or period of detention of a person is, in my view, a material fact not only for the purpose of the assessment of the quantum of damages to award the detained person but, also, to be sure the detention did not exceed the constitutional limit especially in a case like the present where the court below held the arrest of the 1st respondent leading to his subsequent alleged detention was lawful.
The court below, in trying to give the 1st respondent’s case a life-line held the proof of the duration of the detention was immaterial so long as there was a detention. But one may wonder what the court below finally found was the period of the alleged detention of the 1st respondent. The judgment of the court below is, however, silent whether the alleged detention was for some hours or some days short of four days.
In light of the crucial finding of the court below that the 1st respondent’s arrest was lawful, section 35(1) (c) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) automatically came into effect to bring into play section 35(4) and (5) (a) of the 1999 Constitution. For quick reference, section 35(1) (c) (4) (5) (a) are copied below:
“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 having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing o criminal offence;
(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before o court of law within a reasonable time,
(5) In subsection (4) of this section, the expression “a reasonable time” means –
(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day;”
The combined force of section 35(1) (c) (4) and (5) of the 1999 Constitution (supra) clearly makes time of the essence in detaining a person accused on reasonable grounds of having committed a criminal offence.In my considered view, whether the constitutional period of one day the 2nd -4th appellants’ agents were entitled to keep the 1st respondent in their custody before arraigning him in court was extended by the 2nd – 4th appellants’ agents and if so, to what extent – one day, two days, three days or couple of hours – did the 2nd – 4th appellants breach the one day constitutional time limit was left for guess-work or speculation, as there was no evidence concretising the duration of the alleged detention of the 1st respondent by the 2nd – 4th appellants’ agents – see by analogy the case of Emezue V. Okolo and Others (1978) N. S. C. C.312, where the claimant alleged he was detained for about forty-eight hours (unlike the case in hand where no specific period was alleged) the Supreme Court in ordering a retrial of his case which was dismissed prematurely on preliminary objection (unlike here where it was heard on the merits) held inter-alia
“Having alleged that he was detained for about forty eight hours, it seems to us, even if this is denied by the defendants, that he has a cause of action in a claim for unlawful detention with respect to the excess. Of course, whether he is able to prove his case or not at the trial is another matter …” (My emphasis).
Before I am done on the vexed issue of the duration of the alleged detention of the 1st respondent by the 2nd – 4th appellants’ agents, it is necessary to state that the fact of detention and the duration thereof go together and the burden is on the person alleging the detention to prove both – see Fajemirokun (supra) at page 613 per Muhammad, J. S. C., thus:
“From the claims of the appellant who was the applicant at the trial court, the duty to establish that his
fundamental right was breached, rested squarely on the appellant. It is trite law that he who asserts must prove.
See section 135 – 137 of the Evidence Act which lay down the fundamentals of such proof …. That is the position of the existing law. It would thus amount to re-writing the law, if, as learned counsel for the appellant would want us to believe, that:
“If a person alleges that he was arrested and detained, the burden of proving the legality of both the arrest and detention rests squarely on the respondents.”
This to say the least, is putting the law (upside down) in a reversed position …
Thus, it is certainly the appellant who would fail if no evidence at all were given on either side. The appellant was therefore bound, to prove the existence of those sets of facts which curtailed his right of freedom of movement. …”
The appellants did not admit the detention of the 1st respondent, therefore, they had no obligation to prove the legality of a detention that was not admitted by them, nor proved by the respondents, as required by law. I conclude on the issue of liability that the court below erred in entering judgment for the 1st respondent against the appellants for the infraction of the 1st respondent’s fundamental right to freedom of movement.
On quantum of damages, the court below noted in its judgment alright, in my view, that the duration of the detention is invaluable to the assessment of the quantum of damages. In the case in hand, the duration of the alleged detention was not established. The measuring rod the court below used in assessing and awarding the N500,000 damages to the 1st respondent absent the are of time of the alleged detention made the award to hang in the air. The ambiguous statement in the judgment of the court below that “the 1st applicant’s detention was short-lived due to the intervention of the 2nd applicant” without specifying the length of time that comprised the “short-lived” nature of the alleged detention did not help matters regarding the beginning and the end of the alleged detention.
Much as the statement of the law by the court below in its judgment in pages 176 – 177 of the record that the quantum of damages for the infringement of fundamental right should be an appreciable sum of money because of the prized asset of the right especially the right to freedom of movement which, in my view, ranks next to the right to life in the rungs of the ladder of fundamental rights, the duration of the alleged detention is a critical or pivotal factor for the purpose of assessment of the quantum of damages to award for the infringed right.
– Because the alleged detention may, for example, be within the constitutional limit of one day, and lawful in certain cases, or it may be beyond the constitutional time limit of one day and unconstitutional in certain cases. The onus is therefore on the claimant to prove with specification the extent of time of the alleged detention. It was not done here. The damages of N500,000 awarded the 1st respondent by the court below accordingly, stand on nothing, in my view. The award was on misapprehension of facts by the court below see Momodu V. University of Benin (1997) 1 NWLR (pt. 512) 325 at 350. I hereby set aside the said award.
The appeal is meritorious. I allow it. The judgment of the court below together with the award of damages of N500,000 are hereby set aside. An order dismissing the case in the court below is accordingly entered with costs of N50,000 jointly to the appellants against the 1st respondent.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading the draft of the lead judgment of my learned brother I.S. Ikyegh, JCA just delivered. His lordship has exhaustively and admirably treated all the live issues that call for our determination in this Appeal. I entirely agree with his reasoning and conclusions arrived thereat.
A hard look at the record of the lower court would reveal the fact that the learned trial judge was wrong to have held that the police detained the 1st Respondent purely on a civil matter in consequence of which the damages were awarded in his favour. Evidence abound to the effect that the 1st Respondent issued a cheque in favour of the Appellant which was dishonoured on presentation.
That aside, the 1st Respondent in his oral testimony admitted that he did not have sufficient fund in his account at the time of the issuance of the said cheque. This could be seen from page 133 lines 15 and 16 of the record where he said thus under cross-examination:
“I deliberately let (SR) the cheque undated before (SR) at the time I don’t (SR) have money to cover the sum in the account…”
There is also evidence before the learned trial judge that the appellant lodged a complaint with the police sequel to the repeated dishonouring of the cheque issued to him by the 1st Respondent and the complaint eventually led the police to file a First Information Report against the 1st and 2nd Respondents alleging inter-alia, offences of criminal conspiracy, cheating and issuance of dud cheque against the 1st and 2nd Respondents. This being the case, I am of the view that the 1st Respondent could not be said to have been detained by the police on purely civil matters. The learned trial judge was wrong to have held so.
For these reasons and the fuller ones, ably set down in the lead Judgment, I too allow the appeal and abide by the consequential orders therein contained.
ITA G. MBABA, J.C.A.: The 1st Appellant raised six grounds of appeal against the judgment of the Lower Court and distilled 2 Issues for determination as follows:
(1) Whether on available evidence in this case the learned trial judge was wrong in holding that the detention of the 1st respondent was unlawful and in holding the appellant jointly liable for the detention (Grounds 1, 2 and 4)
(2) Whether at whatever event the award by the learned trial judge of the sum of N500,000.00 as general damages in favour of the 1st respondent was not unwarranted having regard to the circumstance of this case-grounds 3 and 5″
The 2nd to 4th appellants on their part filed their notice of appeal out of time on 4/3/09 pursuant to the order of this Court and raised two grounds of appeal. They also formulated 2 Issues for determination namely:
(1) Whether from the totality of evidence available in the case the learned trial judge was right to hold that detention of the 1st Respondent by agents of the 2nd-4th Appellants at the behest of the 1st Appellant is illegal, unlawful or unconstitutional
(2) Whether having regards to the fact and circumstance of this case, the 1st Respondent is entitled to the whopping sum of N500,000.00 as damages”,
The 2 Issues raised by the 2 sets of Appellants, which are identical, require our review of the entire evidence adduced before the trial Court and how that court applied the same to resolve the issues to arrive at the decision reached.
The main question now is whether or not the Applicants (Respondents herein) had established that their arrest and detention by the 2nd to 4th Appellant on the instigation of the 1st Appellant were unlawful, and whether the duration of their said detention was established, to justify their claim and the award of the damages.
In paragraphs 18 and 28 of the claimant’s affidavit in support of their application for enforcement of fundamental rights they averred as follows:
“(18) that the 1st Claimant was detained for four (4) days at the police station without trial
(28) That the men of the monitoring unit of the Nigeria Police Kwara State arrested me and detained me for two days before they took me to court on spurious allegations of cheating, issuing dud cheques among other offences”. (Page 17 of the Record)
The Police had a duty to controvert those averments, clearly and properly, by either denying same as required by law or admitting same and justifying their actions. All that the 2nd-4th Respondents (now 2nd – 4th Appellants) said, as per their affidavit of 4/4/06 (deposed to by Sgt. Salawu Moshood) was a blanket denial of paragraphs 2 to 43 of the supporting affidavit of the Claimants. See the paragraph 6 of their counter affidavit which said
“That the Respondents deny strongly, all the averments in paragraphs 2 to 43 of the supporting affidavit”
Throughout the 21 paragraphs of the Counter affidavit the 2nd Respondent never mentioned the averments in paragraphs 18 and 28 of the Claimants’ affidavit, to deny them namely the detention of the 1st claimant for 4 days and of the 2nd claimant for 2 days before taking him (the latter) to court, of course, in Law, a general traverse or denial is no denial. See the case of A,G. Anambra State v. Owuselogu Enterprises (1987) 11-12 SCNJ 44 held 6 and 7; DOGARI and ors v. A.G. Taraba State (unreported decision of this Court in CA/7/243/2010, delivered on 26/5/11, pages 35-36. TAI AJOMALE V. YADUAT (1991) SCNJ 178
Surprisingly, the learned trial Judge, in his findings on page 157-158 of the Record, on the issue of detention for 4 days without trial said:
“As regards the issue of detention for four days without trial, I regret to fry that there is paucity of evidence from the 1st Claimant in this regard. He who asserts must proof. Since the defendants are denying the detention of the 1st applicant for which see paragraph 4 of the 1st defendants counter affidavit and paragraph 6 of 2nd 4th defendants’ counter affidavit, it is therefore the duty of the 1st Claimant to prove that he was detained for 4 days… If it is true that he was detained for 4days, it is his duty to give evidence when actually he was detained. There is a total lack of evidence before me in this regard. In the circumstance of the foregoing, I am unable to hold that the 1st Claimant was detained for four days. To so hold will be an attempt on the part of the Court to speculate…”
Of Course that cannot be said to have been a proper finding by the trial Court, as the positive evidence, on oath, by the Applicants in paragraphs 18 and 28 of their affidavit was not positively denied or controverted as required by law. Moreover, it was not for the 1st Defendant (1st Appellant) to deny the detention on behalf of the police.
Even though there is no appeal against that finding of the trial Court by the Respondents in this appeal, I cannot close my eyes to it since the Appellants have called us to appraise/review the evidence and how the trial court applied the same to reach its decision.
It is, however correct to hold that detention, no matter how short, can lie a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful, in the first place; that is, if there is no legal foundation to base the arrest and/or detention of the applicant. See the case of Okonkwo v. Ogbogu (1996) 5 NWLR (pt 499) 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458; NEMI v. A.G LAGOS (1996) 6 NWLR (pt 452) held 2.Where there is a basis, as alleged in this case, that the Applicants were lawfully arrested for the purpose of investigation on the alleged issuance of dud cheques by the Police, then the duty of establishing that they were kept (or detained) beyond the period allowed by Law, resides with the party complaining about the detention, and in that case the Respondent have a duty to justify same, if lawfully done.
The Respondents appear to have established the fact of their detention, though the trial court was not sure of how long. It was the duty of the Appellants to establish that the detention was done within the period allowed by law. They (2nd to 4th Respondents (Appellants) never attempted to justify the detention of the Applicants and never even told the court whether or not they detained the Respondents. They were evasive and rather averred:
17) “That I was informed by Mrs Funsho D. Lawal Ag D.C.L. and I verily believe her that all investigations and actions of the 2nd to the 4th Respondent (sic) in the criminal case be contained within the Powers granted them under the provisions of the 1999 Constitution and in the Police Ad
18) That the Respondents have not in any unconstitutional way caused the applicants any loss of caring
19) That investigation (sic) have not concluded concerning the criminal changes (sic) against the two applicants herein
20) That it is in the interest of justice not to grant any of the reliefs claimed by the applicants nor make any order of restraint on the 2nd to the 4th Respondents, so that proper investigation into all the Criminal Charges against the two applicants herein can be concluded?”.
That was an implied admission that they arrested and detained the Applicants and were still looking for them!
How can that detention be justified in the face of the fact that the Police later became aware that the entire claim of commission of crime was founded on the civil claim of recovery of debt whereof the alleged dud cheques had been ‘stopped’, by the applicants before the 1st Appellant presented it to the bank and had even, collected part of the money. See page 166 of the Record, where the court held:
“The contention that the 1st Claimant issued to the 1st defendant a dud cheque or bounced cheque will not assist the defendants with a view of justifying the detention of the 1st claimant. For one thing, it is clear on the face of Exhibit ABGI or ‘Moji’ attached to the Counter affidavit of the 1st defendant and that of the 2nd-4th defendants, respectively, that the word “stopped CHQ” was written in capital letter (sic) on the cheque. The said words, in my view, is not synonymous with dud or bounced cheque.
The police having found the inscription “stopped CHQ” on it, should have been on inquiry either to the Bank or the 1st Claimant to find out why the words was (sic) written. The only reasonable explanation that could have been offered, if the Police had cared to find out is what is contained in Exhibit ‘E1’ attached to the 1st Claimant (sic) reply, to his Bank to stop payment “in Exhibit ‘ABG1’, having paid part of the money written on the cheque. This, the Police has woefully failed to do.
With such clear and sound findings, was the learned trial Judge right to hold that the applicants were lawfully arrested on bona fide complaint of criminal wrong doing, reported by the 1st Appellant? (pp 164-165 of the Record).
I strongly doubt that, as their knowledge that the Applicant had ‘stopped the cheque before they presented it to the bank, and had paid part of the money outstanding on the cheque before the presentation of same to the Bank, had completely negated any presumption of offence relating to issuing of dud cheque. If anything, the 1st Appellant was giving false information to the police and the aim was to get them to use their coercive powers to recover the debt from the Appellant, under the threat of punishment for crime of issuing dud cheque. I do not think the finding of the trial Court on that was therefore right, when she said:
“I am satisfied that the 2nd-4th defendants vide their affidavit evidence -has (sic) proved the legality and constitutionality of the arrest of the 1st claimant. The evidence before me shows that he was arrested based on the complaint lodged by the 1st defendant that he was duped by the issuance of a cheque which when he presented was dishonored.” (P164 of the Record). That was a perverse finding.
The trial Court further held that there was no concrete evidence that the claimant brought to the attention of the police that he had paid (N720,000.00) part of the sum on the cheque to the 1st defendant at the time of his arrest, and that there was no evidence he produced Exhibit E, which he had written to the bank to stop the cheque. Of course, that finding too, conflicts with subsequent findings of his lordship on page 166 of the Records, when he said;
“The contention that the 1st claimant issued to the 1st defendant a dud or bounced cheque will not assist the defendants with a view of justifying the detention of the 1st claimant. For one thing it is clear on the face of Exhibit ABG1’or ‘MOJI’ attached to the counter affidavit of the 1st defendant and that of the 2nd-4th defendants respectively that the word “stopped CHO’ was written in capital letter (sic) on the cheque, The said words, in my view, is not synonymous with dud or bounced cheque… the Police having been given Exhibit “ABG” by the 1st defendant.. should have been on inquiry… to find out why the words (stopped CHQ) was (sic) written. (Emphasis mine)
Thus, there was evidence before the trial Court that the cheque had been stopped, before the 1st Appellant presented it to the Bank and that he had been paid N720,000.00 of the amount on the cheque, before he presented it to the bank; and those fact were already with the police (who produced the “stopped” Cheque (Exhibit’ ABG mine)
Though the Respondents did not cross appeal against such manifest perverse findings, which obviously show some state of confusion in appraisal of the evidence by the lower Court, what can the appellate court do, where sufficient evidence had been led to arrive at a desired lawful conclusion?
I think where sufficient evidence have been led by the two sides to enable the court to make its findings and rule on claim, but the trial court failed to make a correct findings that promote justice, the appellate court should intervene, and a resort would have to be made to Order 4 Rules 3 and 4 of this Court. It states as follows:
Rule 3: “The court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order as the case may require, including any order as to cost.”
Rule 4 says: “The powers of the court under the forgoing provision of this Rule may be exercised not withstanding that no notice of appeal or respondents notice has been given in respect of any particular part of the decision of the court below or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or affirming or varying the decision of that court is not specified in such a notice; and the court may make any order, on such terms as the court thinks just, to ensure the determination of the merits of real question in controversy between the patties.”
I think those wise and foresighted provisions of the Rules to do justice, and pure hardship can be invoked to cure the injustice which the perversity in the findings would cause. See the case of AFRTBANK (NIG.) PLC V. YELWA (2011) NWLR (PT.1261) 280 held 9, or (201) ALL FWLR (PT.585) 296, held 3
It would be unjust to rely on those findings by the trial court to justify deliberate act of the 1st Appellant setting the (police (2nd to 4th Appellant) in motion to arrest and detain the Respondent over what they knew was a civil claim of recovery of debt, and which the Respondents were not denying and were making effort to liquidate, after meeting the challenges they had which Frustrated their earlier expectation/agreement to pay which were known to the 1st Appellant. See the case of Ejefor vs Okoke (2000) & NWLR (Pt 665) 363 held 4where it was held that “where there is an evidence of arrest and detention of an Applicant which were done or instigated by the Respondent in an action for the enforcement of fundamental rights application, it is for the Respondent to show that the arrest and
detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention was lawful.”; See also Agbakubar v. SSS (1994)6 NWLR (pt 351) 425.
Even on the alleged claim of issuing dud cheque, the law is that, by the Dishonoured Cheques (Offences) Ad, which the Appellant sought to rely on “the provisions of section 1(3) of the Act provides that a person shall not be guilty of an offence under the law if he proves to the satisfaction of the Court that when he issued the cheques, he had reasonable ground for believing and did believe, infact, that it would be honoured, if presented for payment within the period specified in sub section (1) and which period is 3 months.” See the case of Faysal Harb & Ors v FRN (2008) All FWLR (pt. 430) 705 at 730.
Of course, the cheque was about one month of issue when the Appellants presented it for clearing against the run of the agreement they had.
After all its confused findings, the trial judge, however, in my opinion, managed to land well by finding the Appellants responsible for the wrongs of the wrongful use of Police powers to detain the Respondents at the instigation of the 1st Appellant.
I resolve the issues against the Appellants, as there was available evidence to prove that the detention of the Applicants (Respondents) was unlawful, and the award was justified, pursuant to section 35 (6) of the 1999 Constitution of Nigeria.
Just a few days ago, this court held, in the case of ALHAJA KUDIRAT IJAIYA IBIYEYE & ANRE VS. ABDULIAHI GOLD & 2 ORS (unreported decision of this Court in CA/IL/M.95/2010), delivered on 7/12/11, that the police have no business helping parties to settle or recover debts. We also deprecated the resort by aggrieved creditors to police to arrest their debtors, using one guise of criminal wrong doing or another, when we said:
“It is usually in the nature of offended creditors to feign criminal wrong doing against their debtors, in order to attract sympathy and/or co-operation of the Police to arrest and detain their victims so as to negotiate the settlement of the debt. That appeared to be the case in this appeal. This practice must be condemned, as the Police’s power of arrest does not extend to enforcement of private contracts – Yusuf Umar us. Anwalu Salam & Ors (2001) 1 CHR 413; Martins & Ors us. Nwachukwu & ors (2009 – 10) CHR82 at 99.” (Mbaba JCA)
I am, therefore, unable to, agree with the position of my learned brother Ikyegh JCA in the lead Judgment in this appeal. I think there is no merit in the Appeal. Accordingly, I dismiss the same and affirm the decision of the lower Court. Parties to bear their costs.
Appearances
MR. J. A. AIMIERN (WITH MESSRS Y. A. ALAJO, G. A. FALEYE, AND O.O. ABIFARIM) FOR THE 1ST APPELLANT
MRS. R. A. SHITTU (S. S. C., KWARA STATE) FOR THE 2ND – 4TH APPELLANTS.For Appellant
AND
MR. T. OLOMU (WITH MR. A. S. ADEGBOYE)For Respondent
