COMMANDANT-GENERAL, THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS & ANOR V. EMMANSON UKPEYE (2012)

COMMANDANT-GENERAL, THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS & ANOR V. EMMANSON UKPEYE

(2012)LCN/5460(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of June, 2012

CA/C/1999/2010

RATIO

LEGISLATION: CRIMINAL PROCEDURE ACT/ NIGERIA SECURITY AND CIVIL DEFENCE ACT 2007: WHETHER SECTION 3(1-3) OF THE NIGERIA SECURITY AND CIVIL DEFENCE (AMENDMENT) ACT, 2007 IS SUBJECT TO THE PROVISIONS OF SECTION 107(1) AND (2) OF THE CRIMINAL PROCEDURE ACT

“I have read the provisions of Section 107(1) and (2) of the Criminal Procedure Act Cap C41 Laws of the Federation of Nigeria, 2004 which is couched as follows: ?PART 13 Search Warrant Issue and execution 107. Cases in which search warrants may be issued: (1) Where a magistrate is satisfied by information upon oath and in writing that there is reasonable ground for believing that there is in the State in any building, ship, carriage, receptacle or place:- (a) anything upon or in respect of which any offence has been or is suspected to have been committed; or (b) anything which there is reasonable ground for believing will afford evidence as to the commission of any offence; or (c) anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence, the magistrate may at any time issue a warrant, called a search warrant, authorizing an officer of the Court, member of the police force, or other person therein named: (i) to search such building, ship carriage, receptacle or place for any such thing, and to seize and carry such thing before the magistrate issuing the search warrant or some other magistrate to be dealt with according to law; and (ii) to apprehend the occupier of the house or place where the thing was found if the magistrate thinks fit so to direct on the warrant. (2) In this section and section 108 of this Act, ?offence” includes an offence against a law of any other State of Nigeria which would be punishable in the State if it had been committed in that State.” The requirements of sections 107-110 of the Act are not provided in section 3(1)-(3) of the Nigeria security and Civil Defence corps (Amendment) Act, 2007. The express mention of one thing in a statutory provision automatically excludes the other. See Udoh v. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (pt. 2) 416 at 447; Attorney-General of Bedel State vds Aideyan (1989) 4 NWLR (pt.118) 646 and Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.8) 280. The Nigeria Security and civil Defence (Amendment) Act supra does not provide that officers of the Corp, upon entry, search and seizure of any thing or arrest shall arraign the suspect before a Magistrate Court. Neither is it provided that the Corp has to obtain a search warrant before their officers can enter and search premises nor seize suspected proceeds of such vandalization. Section 3(1)-(3) of the Nigeria security and civil Defence (Amendment) Act, 2007 is not rendered subject to the provisions of section 107(1) and (2) of the Criminal procedure Act. The Responsibility of instituting legal proceedings before any court of law rests on the Corp provided it is by or in the name of the Federal Attorney-General. Every word or clause employed in the Act supra is to be read and construed with reference to the context and other clauses in the statute to discover the legislative intention. See Oyeyemi v. Commissioner for Local Government Kwara State & ors. (1992) 2 SCNJ (Pt.2) 266; Orubu v. INEC (1988) 5 NWLR (Pt.94) 323.” Per TUR, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT: WHETHER SECTION 3(1) TO (3) OF THE NSCDC ACT 2007 BREACHES THE PRINCIPLES OF FUNDAMENTAL RIGHTS IN THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communication are guaranteed by section 37 of the constitution of the Federal Republic of Nigeria, 1999. Further more, no moveable property or interest in such property may be compulsorily acquired or taken possession in any part of Nigeria except as provided under Section 44 of the constitution, particularly subsection (k) for the purpose of any examination, investigation or enquiry. But the provisions of section 3(1)-(3) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007 are reasonably justifiable in a democratic society in the interest of defense, public safety, public order and public morality of the society in general. In my humble view the entry into No.4 Essien Lane, Calabar South on 23-06-2009, the search and seizure of the items pleaded by the Respondent in paragraph 6 of the statement of claim were justified by virtue of Section 3(1)(e)(i) and (ii), (f)(i) to (vi) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007.”Per TUR, J.C.A.

APPEAL: ISSUES FOR DETERMINATION MUST BE LINKED TO GROUNDS OF APPEAL

“Firstly, the learned Counsel to the Respondent did not relate the two issues distilled for determination to any of the five grounds in the Notice of Appeal? That is the requirement of the law as settled by a plethora of judgments of the Supreme Court. See Atanda & Ors. v. Ajani & Ors. (1939) NSCC 511 at 537 and Akinlagun V. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80 paragraph “D-E”.”Per TUR, J.C.A.

TORT : LIBEL: INGREDIENTS TO PROVE LIBEL

“Order 19 rule 9 of the Federal High Court (Civil Procedure) Rules, 2009 provides as follows: 9. Documentary evidence shall be put in and may be read or taken as read by consent. It is not the parading of the Respondent as a suspect by the officers of the appellants that constitutes libel. The court has to examine the contents of the Press Release or video alleged to constitute libel. The NTA 9, News Script might have been attached or filed along with the pleadings but without being tendered and marked as an exhibit did not constitute legal evidence upon which the learned trial Judge could find that libel had been proved. The Respondent did not found his cause of action on slander but libel hence the need to tender the libelous document in support of the pleadings. In Winfield and Jolowicz on Tort, 10th edition, p.242 the learned authors differentiated libel from slander in this manner, ?…libel is addressed to the eye, slander to the ear.In all cases of defamation of character the question has always been, What is the mode of publication?? See Winfield and Jolowicz supra at p.243. In the absence of such evidence there is no proof that the Respondent was paraded on the NTA 9 as claimed.”Per TUR, J.C.A.

JUSTICES:

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. COMMANDANT-GENERAL, THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS
2. CROSS RIVER COMMANDANT, THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS – Appellant(s)

AND

EMMANSON UKPEYE – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Commandant-General, Nigeria Security and Civil Defence Corps and the Cross River State Commandant of the Corps have lodged an appeal against the judgment of Hon. Justice A. Ademola of the Federal High Court, Calabar Cross River State delivered on the 11th day of June, 2010 in favour of the Respondents couched in the following manner at page 95 lines 18 to page 96 lines 1-16 of the printed record to wit:
“(D) DEPOSITION:
The Plaintiff’s case succeeds in their entirely (sic) against the Defendants and this Court grants his claims as follows:
1. An order is hereby made declaring the entry into the private residence of the Plaintiff at No.4 Essien Lane, Calabar and carting away and illegally impounding of the Plaintiff’91s tools of trade including (a) 1 No. 33kv pot insulator (b) 1 No. Disc insulator (c) 8 No. piece of conductor and stay wire (d) ‘bd drum of bare AL conductor 100mm (e) 2 No. pieces of 3″ steel pipe and other items by the 1st and 2nd Defendants, and their agents are unconstitutional and illegal.
2. An order is hereby made directing the Defendants to apologise publicly to the plaintiff through the National Newspapers, NTA and CRBC TV.
3. Five Million (N5, 000,000.00) damages is hereby awarded against the Defendants for defamation of character and wrongful detention of Plaintiffs property i.e. tools of trade from 24-07-2009 till date despite demands.
4. It is further ordered that the items listed in paragraph 16(1) of the statement of claim be returned to the Plaintiff by the Defendants and their agents forthwith.
5. N10, 000.00 (Ten thousand Naira) costs also awarded against the Defendants in favour of the Plaintiff.”
Five grounds accompany the Notice of Appeal filed on the 17th day of June, 2010 from which the learned Counsel for the appellants distilled four issues for determination in paragraph 3.1-3.4 of the Appellants’ Brief of Argument filed on the 25-03-2011. The Respondent’s Brief of Argument was filed on 13-04-2011. Learned Counsel to the Respondent set out two issues for determination at page 2 of the Brief of Argument. Before considering the issues for determination I shall set out the facts that culminated into Mr. Usen Emmanson Ukpeye (hereafter referred to as “the Respondent) instituting this suit against the appellants on 15-09-2009 before the Federal High Court, Calabar, Cross Rivet State (hereinafter called ” the appellants”)
The suit was contested in the lower Court on pleadings and sworn deposition. The Respondent’s case is that he is an Electrical Contractor and the Executive Director of Empovin Consult Ltd. of No.4 Essien Lane, Calabar South, Cross River State of Nigeria. The company is a licensed Electrical/Civil/Mechanical Engineers and is an Ago-Allied Management Consultant. The Respondent is also a registered member of the Licensed Electrical Contractors Association of Nigeria, Cross River State Chapter. On the 23-06-2009 the Respondent was away to Odukpani Local Government Area of Cross River State, when the appellant’s officers led by one Mr. Amachi invaded his residence at No.4 Essien Lane, Calabar South, Cross River State searched and carted away his tools of trade. On receiving this information the Respondent returned to Calabar South and on the 24-06-2009 reported at the office of the appellants at New Airport Road, Calabar South Local Government Area of cross River State. The Respondent presented photocopies and original receipts and waybills to Mr. Amachi and further confirmed the quantity of the items carted away by the appellants, officers.
On 26/06/2009 Mr. Amachi invited the Respondent to the office of the 2nd appellant in Calabar where he met a Crew from the NTA 9, CRBC Television and pressmen. The Respondent was presented to the press as a thief and the seized equipments as exhibits of vandalized public properties. This was in the presence of the Commandant-General (1st appellant) who was visiting Cross River State at that material time in question. The event was broadcast on NTA 9, CRBC, Cross River State Radio from 28-06-2009 up to 01-07-2009. That the Respondent’s customers, business associates, and members of the public heard the broadcast and regarded the Respondent as responsible for most of the vandalization that had occurred in Power Holding Company Plc and other electrical installations in the state. The invasion of the Respondent’s residence was without any search warrant. The items carted away were (a) 1 No. 33kv pot insulator (b) 1 No. Disc Insulator (c) 8 No. piece of conductor and stay wire (d) ‘bd drum of base AL conductor 100mm (e) 2 No. piece of 3 steel (sic) pipe and other items. The Respondent pleaded in paragraph 11 of the Statement of claim as follows:
“11. The defendant in a press released to the news agency including NTA 9 Calabar, CRBC, and other media said of and concerning the plaintiff the following false and libelous words.
“One of the major tasks performed by the Nigerian Security and Civil Defence Corps is the security of lives and property as well as check vandalisation of public utilities.
Recently, officials of the Corps arrested a suspect in possession of high tension electrical cables and insulator on Essien Lane in Calabar South.
The suspect Usen Imanson Ukpeye an Electrical Contractor was alleged to be unable to explain how he acquired the equipment found in his premises and is being detained to give full evidence on the electrical equipment.”
The Respondent averred that by the said derogatory and defamatory words and publication the defendants embarrassed and exposed him to ridicule and contempt before the general public.
The defendants also lowered his estimation before his fellow electrical contractors. The appellants did not prosecute or try the Respondent in any court of law till date nor have they apologized despite the Respondents’ solicitor letter dated 03-07-2009. The Respondent averred that he had been greatly embarrassed and humiliated by the appellants’ false and defamatory statement published concerning him and broadcast on the NTA news, Calabar and other mass media. The Respondent alleged he suffered damages and claimed against the appellants as follows:
“16(1) An order declaring the entering of the private residence of the plaintiff at No.4 Essien Lane, Calabar and carted away and illegally impounded the plaintiff’91s tools of trade including (a) 1 No. 33kv pot insulator (b) 1 No. Disc Insulator (c) 8 No. Piece of conductor and stay wire (d) ‘bd drum of base AL conductor 100mm (e) 2 No. Piece of 3 steel pipe and other items by agents of 1st and 2nd defendants as unconstitutional and illegal.
(2) An order directing the defendants to apologize publicly to the plaintiff through National Newspaper, NTA and CRBC TV.
(3) Ten Million Naira (N10, 000,000.00) as damages against the defendants for defamation of character and wrongful detention of plaintiff’s property i.e. (tools of trade) from 24-07-2009 till date despite demand.”
In a 15 paragraph Joint statement of Defence the appellants pleaded that the invasion of the premises of the Respondent was carried out by their officers in line with the policy of Government that no individual is allowed to be in possession of Power Holding company of Nigeria materials and other equipments so as to prevent illegal use of such equipments and the vandalization of the company’s property. That the invasion and the carting away of the Respondent’s properties was authorized by the law governing the operations of the appellants, namely, section 3(1)-(3) of the Nigeria security and Civil Defence Corp (Amendment) Act, 2007. Besides, during investigation the Respondent presented doubtful photocopies of receipts to support the items seized. They denied parading the Respondent as a thief but as a suspect in line with the law. The claims founded on defamation of character and the reliefs claimed thereof by the Respondent were denied.
The learned trial Judge heard oral and documentary evidence before finding in favour of the Respondent.

ISSUES FOR DETERMINATION
The issues for determination are set out by the appellant at page 4 paragraphs 3.0 to 3.4 to wit:
“3.1 Whether the Appellants acted within the scope of their statutory duties as provided for under the Nigeria Security and Civil Defence Corp (Amendment) Act, 2007. Ground 1 of the notice of appeal.
3.2 Whether the Respondent’s evidence that he was paraded on Television which was admitted by the trial judge is admissible in law. Ground 3.
3.3 Whether the Exhibit UEUI which the Respondent relied on to prove that he was an electrical contractor is admissible in law. Ground 5.
3.4 Whether taking into consideration the entire facts and circumstances of this case the sum of N5,000,000.00 (Five Million Naira) awarded against the Appellants is justified. Grounds 4 and 2.”

ISSUE 1:
Learned Counsel to the appellants referred this Court to the circumstances that led to the officers of the appellants entering into the Respondent’s residence and seizing the materials as covered by the provisions of Section 3(1)(e)(i)(ii) and (f) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007. That the members of the Corps have power to enter, search and make arrest with or without a search warrant. Nowhere was it provided under the Act supra as held by the learned trial Judge that for entry into any premises to be lawful resort must be had to the criminal Procedure Act, namely, by obtaining a search warrant from a Magistrate. Learned counsel urged this court to hold that His Lordship erred to have imported the requirement of the criminal procedure Act into the clear and unambiguous provisions of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007. The words of the statute must be given their simple and ordinary meaning. See Ugwu v. Ararume (2005) 2 CCLR Vol. 2215 at 326 paragraph 25 and Unipetrol (Nig.) Plc v. E.S.B.I.R. (2006) 8 NWLR (pt.983) 624 at 641. Reference was further made to the provisions of section 44(1)(k) of the constitution of the Federal Republic of Nigeria, 1999 which authorizes the temporary taking of possession of property for the purpose of any examination, investigation or inquiry by agents of the State as happened in this circumstances. Learned counsel urged that this issue be resolved in favour of the appellants.

ISSUE 2:
The learned Counsel to the appellants’ submission on issue two was that the document attached to the Respondent’s statement of claim dated 28-06- 2009 as evidence of their communication with the public was a public document which required certification under Section 97 (2)(c) of the Evidence Act cap E14 Laws of the Federation of Nigeria 2004; Aladegbemi v. Fasanmade (1988) 3 NWLR 129; Nzekwu v. Nzekwu (1989) 1 NSCC 581. Besides, the document was not tendered in Court to allow the Appellants test its veracity. The evidence as to when the alleged broadcast was made was also contradictory. The Pw2 testified that he heard the broadcast on NTA Calabar on 28-07 -2009 while the document itself showed that the news item was read on 28-06-2008. This called into question the authenticity or the truth in the evidence of the Respondent’s witness that he heard the news item. This Court was urged to resolve issue two in favour of the appellants.

ISSUE 3:
In arguing issue three reference was made by learned Counsel to Exhibit “UEU1” which the Respondent relied upon to prove that he was an electrical contractor. Learned Counsel argued that the Exhibit was not admissible in law, citing Section 97(2)(c) of the Evidence Act supra. Being a document issued by the Ministry of Mines and Power the exhibit required certification. Learned Counsel urged this Court to expunge Exhibit “UEU1” as inadmissible; to hold that there was no evidence upon which the learned trial judge could have held that the Respondent was a licensed Electrical Contractor.

ISSUE 4:
Issue 4 covers grounds 2 and 4 in the Notice of Appeal. Learned counsel to the appellants challenged the award of N5, 000,000.00 damages in favour of the Respondent. That the officers of the appellants were performing their statutory functions when they seized the items reasonably suspected of being illegally acquired by the Respondents. The learned trial judge did not however take into consideration the efforts made by the appellants to prosecute the Respondent in a Court of law. The Respondent would not honour their invitation on several occasions. Moreover, the Respondent did not lead evidence to show the monetary value of the items seized by the appellants. Learned Counsel drew the Court’s attention to the signatures on the receipts tendered by the Respondent to argue that they were not authentic. That the signature on the receipt from O.C. Nig. Ltd. was not that of the Respondent; neither was the Respondent’s signature on the receipt from Cutler Hammer in which the goods were sold by PHCN. That the learned judge had the power to have compared the signature on the receipt to arrive at a just decision, citing Lawal v. Ejidike (1997) 2 NWLR (Pt.487) 319 at 330 paragraph D. But the learned trial judge did not. Learned Counsel further urged this Court to hold that the receipts tendered by the Respondent in the lower court are not authentic nor reliable hence Lordship ought not to have attached any weight to them.
On defamation, it was argued that the Respondent did not prove the claim. That it was the Respondent that chose to brand himself a thief and not the appellants hence they should not be held liable in damages, citing Ughomor v. Hadomeh (1997) 9 NWLR (Pt.520) 307 at 327-328 paragraphs “H-D”. Being a gold digger the Respondent was not entitled to any form of damages. Reference was made to oceanic Bank International Ltd. v. G. Chitex Ind. Ltd. (2000) NWLR (pt.661) 464 at 4g0 paragraph “F-G”. This court was urged to resolve this issue in favour of the appellants. On the whore the learned counsel to the appellants urged that the appeal should be allowed.

RESPONDENT’S ISSUES FOR DETERMINATION
Learned counsel to the Respondent formulated two issues for determination set out at page 2 of the Brief of Argument as follows:
“1. Whether the appellants have any statutory power to remove the plaintiff’s contractual material, item of trade and equipments without any search warrant issued by a Magistrate or any authorized person and endorsed to the appropriate officer thereof.
2. Whether the sum of N5 million awarded by the trial Court as damages to the respondent was proper in the circumstance of this matter.”

Before I reproduce the arguments adumbrated by learned Counsel to the Respondent, may I make the following observations: Firstly, the learned Counsel to the Respondent did not relate the two issues distilled for determination to any of the five grounds in the Notice of Appeal? That is the requirement of the law as settled by a plethora of judgments of the Supreme Court. See Atanda & Ors. v. Ajani & Ors. (1939) NSCC 511 at 537 and Akinlagun V. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80 paragraph “D-E”.

Secondly, Order 18 rule 4(2) of the Court of Appeal Rules, 2011 provides as follows:
“(2) The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also confirm to Rule 3(1), (2), (3), (4) and (5) of this Order.”
The learned Counsel to the Respondent formulated two issues without answering all material points of substance raised on behalf of the appellants. This Court has been denied the opinion of learned Counsel to the Respondent respecting two vital issues set down for determination by the appellant. The two vital issues goes to the admissibility of documentary and oral evidence to prove the claims upon which the learned trial judge damnified the appellants in favor of the Respondent. I shall however reproduce the arguments on the two issues formulated for determination by the learned Counsel to arrive at a just decision.

ISSUE 1:
To the learned Counsel to the Respondent, Section 3(1)(e) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007 and Section 107 of the Criminal Procedure Act Laws of the Federation of Nigeria, 2004 are to be read together so that without a search warrant from a Magistrate what the appellants’ officers did contravened the provisions of Section 37 and 44 of the Constitution of the Federal Republic of Nigeria, 1999. That the acts of entering the Respondent’s premises, searching and seizing the items or tools of trade constituted a breach of the fundamental right to privacy as guaranteed by the Constitution. It was conceded however that the appellants have the power to arrest and institute legal proceedings in the name of the Attorney-General of the Federation in the circumstances described in the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007. But in this circumstance having presented the receipts and exhibits to Dw1 who admitted that they have not actually embarked on such an investigation, the appellants had no justification in retaining custody of the Respondent’s contractual tools of trade for such a long period. The seizure occurred on 24-07-2009 but up till 11-06-2010 when the learned trial judge delivered judgment the appellants were yet to release them. This constituted a violation of the provisions of Section 44 of the Constitution of the Federal Republic of Nigeria, 1999.

ISSUE 2:
Learned Counsel argued that defamation was proved; citing Ayeni v. Adesina (2007) All FWLR (Pt.390) 1451, Reference was made to the evidence of Pw1 which had a damaging effect on the Respondent’s character, business and reputation. Dw1 had also admitted in the trial court that the Respondent was paraded as a suspect. Counsel argued that when a fact is admitted it needs no further proof, citing Bunge vs. Government of Rivers State (2006) 12 NWLR (pt.995) 573. That once the Respondent proves that libel had been published without legal justification the cause of action was complete; the Respondent was entitled to damages without proving resulting injury. Oduwole vs. West (2010) 5-7 (pt.4) MJSC 18 paragraphs “A-C”, Ejabulor v. H.H. Oshe (1990) 5 NWLR (pt.148) 1 and Offoboche vs. Ogoja Local Government (2001) FWLR 1051 were cited in argument. That the social standing of the Respondent had to be taken into consideration in the determination of damages to be awarded in libel cases. Daily Times v. Williams (1936) 3 NWLR (Pt.124) 543 was referred to in argument. That the Court looks at the conduct of the defendant from the time the libel was published to the time of verdict – Oduwole v. West supra at p.37-38. Counsel urged that issue two be resolved in favour of the Respondent.

I shall start by considering issue one set down for determination by the appellants. Section 3 of the Nigeria Security and Civil Defence Corps (Amendment) Act 2007 reads as follows:
“ENACTED by the National Assembly of the Federal Republic of Nigeria:
I. Section 3 of the Principal Act is amended by substituting for a new subsections “3(1) and (3)” of Section 3.
(I) The Corps shall:
xxxxxxxx
(e) maintain twenty-four hours surveillance over infrastructures, sites and projects for the Federal, State and Local Government.
(i) enter and search any premises and seize any material suspected to have been used in vandalisation or suspected proceed of vandalisation.
(ii) enter and search premises of any suspected illegal dealer in petroleum products or materials used by Power Holding Company of Nigeria, Postal Services, Nigeria Telecommunication or for any other public utility or infrastructure:
(f) have power to arrest with or without a warrant, detain, investigate and institute legal proceedings by or in the name of the Attorney-General of the Federation in accordance with the provisions of the constitution of the Federal Republic of Nigeria against any person who is reasonably suspected to have committed an offence under this Act or is so involved in any:
(i) criminal activity;
(ii) chemical poison or oil spillage nuclear waste, poisoning;
(iii) industry espionage or fraud;
(iv) activity aimed at frustrating any government program or Policy;
(v) riot, civil disorder, revolt, strike, or religious unrest; or
(v) power transmission lines, or oil pipelines, NIPOST cables, equipment, water board pipes or equipment vandalisation.”
The Corp has the power to enter and search any premises and seize any materials suspected to have been used in vandalization or the suspected proceeds of vandalization or to enter and search premises of any illegal dealer in petroleum products or materials used by Power Holding Company of Nigeria, Postal Services, Nigerian Telecommunication or for any other public utility or infrastructure. The Corp also has the power to arrest with or without warrant any person suspected to have committed an offence in the circumstances described under the Act supra. The Nigeria Security and Civil Defence Corps (Amendment) Act, 2007 is a special legislation enacted to take care of public infrastructures, sites or projects belonging to the Federal, State and Local Government and her agencies, example, PHCN against vandals. The provisions of the Act supra should not be construed as to inhibit the purpose for which it was enacted. In Attorney-General of the Federation & Ors. v. Abubakar (2007) 10 NWLR (Pt.1041) 1 it was held at page 148 per Tabai, JSC that:
“…The principle is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision.”
See also Governor of Kaduna State v. Kagoma (1932) 6 SC 87 at 107-108.
The object and intention of the National Assembly should be determined by a combined reading of Section 3(1)-(3) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007 which is to timeously prevent the vandalisation of Federal, State and Local Government infrastructures, sites and projects by enabling officers of the Corp to enter, search and seize the materials used for such vandalisation or the proceeds thereof; to arrest, detain, investigate and prosecute such offenders in the name of the Attorney-General of the Federation where there is evidence to support prosecution. All that is required of the officers is to have reason to suspect that the materials in the premises come within the provisions-of Section 3(1)(e)(i) and (ii) of the Act for them to act.
Once the Corp have reason to suspect that any material had been used in vandalisation or that the proceeds are from the vandalisation of the infrastructures of the Federal, State or Local Government or they have cause to reasonably suspect that any person has committed an offence or is involved in the commission of any offence under Section 3(1)(f)(i)-(vi) of the Act they are to set in motion the operation to arrest the vandals or enter, search and seize the vandalized property.

A person the Corp believed to have committed a crime or offence is a suspect. To reasonably suspect is to consider some one as having probably committed a wrongdoing but without certain truth or legal proof. However, investigation before or after arrest and detention may determine the truth or otherwise of the suspicion. Where officers of the Corp are empowered under the Act to act on reasonable suspicion this may also involve the apprehension or imagination of the existence of some wrong based on inconclusive or slight evidence, or possibly when no legal evidence exists.
When arrested the suspect has to show how he or she came into custody or possession of any or all of the materials described in section 3(e)(i)(ii) or 3(f)(i)-(iv) of the Act supra.
I have read the provisions of Section 107(1) and (2) of the Criminal Procedure Act Cap C41 Laws of the Federation of Nigeria, 2004 which is couched as follows:
“PART 13
Search Warrant
Issue and execution
107. Cases in which search warrants may be issued:
(1) Where a magistrate is satisfied by information upon oath and in writing that there is reasonable ground for believing that there is in the State in any building, ship, carriage, receptacle or place:-
(a) anything upon or in respect of which any offence has been or is suspected to have been committed; or
(b) anything which there is reasonable ground for believing will afford evidence as to the commission of any offence; or
(c) anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence, the magistrate may at any time issue a warrant, called a search warrant, authorizing an officer of the Court, member of the police force, or other person therein named:
(i) to search such building, ship carriage, receptacle or place for any such thing, and to seize and carry such thing before the magistrate issuing the search warrant or some other magistrate to be dealt with according to law; and
(ii) to apprehend the occupier of the house or place where the thing was found if the magistrate thinks fit so to direct on the warrant.
(2) In this section and section 108 of this Act, “offence” includes an offence against a law of any other State of Nigeria which would be punishable in the State if it had been committed in that State.”
The requirements of sections 107-110 of the Act are not provided in section 3(1)-(3) of the Nigeria security and Civil Defence corps (Amendment) Act, 2007. The express mention of one thing in a statutory provision automatically excludes the other. See Udoh v. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (pt. 2) 416 at 447; Attorney-General of Bedel State vds Aideyan (1989) 4 NWLR (pt.118) 646 and Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.8) 280.
The Nigeria Security and civil Defence (Amendment) Act supra does not provide that officers of the Corp, upon entry, search and seizure of any thing or arrest shall arraign the suspect before a Magistrate Court. Neither is it provided that the Corp has to obtain a search warrant before their officers can enter and search premises nor seize suspected proceeds of such vandalization. Section 3(1)-(3) of the Nigeria security and civil Defence (Amendment) Act, 2007 is not rendered subject to the provisions of section 107(1) and (2) of the Criminal procedure Act.
The Responsibility of instituting legal proceedings before any court of law rests on the Corp provided it is by or in the name of the Federal Attorney-General.
Every word or clause employed in the Act supra is to be read and construed with reference to the context and other clauses in the statute to discover the legislative intention. See Oyeyemi v. Commissioner for Local Government Kwara State & ors. (1992) 2 SCNJ (Pt.2) 266; Orubu v. INEC (1988) 5 NWLR (Pt.94) 323.

Truly, the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communication are guaranteed by section 37 of the constitution of the Federal Republic of Nigeria, 1999. Further more, no moveable property or interest in such property may be compulsorily acquired or taken possession in any part of Nigeria except as provided under Section 44 of the constitution, particularly subsection (k) for the purpose of any examination, investigation or enquiry. But the provisions of section 3(1)-(3) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007 are reasonably justifiable in a democratic society in the interest of defense, public safety, public order and public morality of the society in general.
In my humble view the entry into No.4 Essien Lane, Calabar South on 23-06-2009, the search and seizure of the items pleaded by the Respondent in paragraph 6 of the statement of claim were justified by virtue of Section 3(1)(e)(i) and (ii), (f)(i) to (vi) of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007. I resolve issue one in favour of the appellants.

ISSUES 2, 3 AND 4:
These three issues deal with evidence to prove libel and the award of damages. They overlap. I shall take them together. Paragraph 11 of the Statement of Claim pleaded the contents of the Press Release by the appellants’ officer said to have been aired NTA 9, Calabar, CRBC and other media concerning the Respondent. But at the trial the Respondent did not tender any Press Release or video as an exhibit. See Order 20 rule 1(1), (4), 2(1), 2(a)-(d) and 3 of the Federal High Court (Civil Procedure) Rules, 2009.
If the appellants had admitted issuing the Press Releases or video tapes etc they should have been tendered from the Bar and marked as exhibits. Order 19 rule 9 of the Federal High Court (Civil Procedure) Rules, 2009 provides as follows:
“9. Documentary evidence shall be put in and may be read or taken as read by consent.”
It is not the parading of the Respondent as a suspect by the officers of the appellants that constitutes libel. The court has to examine the contents of the Press Release or video alleged to constitute libel. The NTA 9, News Script might have been attached or filed along with the pleadings but without being tendered and marked as an exhibit did not constitute legal evidence upon which the learned trial Judge could find that libel had been proved. The Respondent did not found his cause of action on slander but libel hence the need to tender the libelous document in support of the pleadings. In Winfield and Jolowicz on Tort, 10th edition, p.242 the learned authors differentiated libel from slander in this manner, “…libel is addressed to the eye, slander to the ear.” In all cases of defamation of character the question has always been, “What is the mode of publication?” See Winfield and Jolowicz supra at p.243. In the absence of such evidence there is no proof that the Respondent was paraded on the NTA 9 as claimed.

Besides the learned trial Judge merely referred in his judgment to the fact that the Respondent tendered Exhibits “UEU1-8” but the appellants, none (See p.84 lines 21-23 of the printed record). His Lordship then held at page 92 lines 3-19 of the printed record as follows:
“The Plaintiff gave oral and documentary evidence before the Court of his ownership of the equipments and materials. He tendered Exhibits UEU2-6 to buttress his claims. The Defendants objected feebly through their Counsel, B. Alajogun. After a careful perusal of the said exhibits tendered by the Plaintiff, the Defendants Counsel objections to the admissibility of the said exhibits on grounds of wrong signatures, 3rd party receipts were discountenanced as untenable in law by this Court.
Furthermore, DW1, Terver Samuel Amachigngi, the sole witness for the Defendants, exhibited a lack of thorough and dutiful investigation of this matter. He also confirmed the authenticity of some of the exhibits tendered evidencing Plaintiff’s ownership of the equipments and item. Having listened to Plaintiffs evidence particularly Pw1, perused Exhibits UEU2-6 vis-a-vis Dw1’s evidence, I am in no doubt that the Plaintiff has discharged the onus of proof required under Section 137(1) and (2) of the Evidence Act in civil matters pertaining to his ownership of the said equipments and materials.”
The learned trial Judge did not consider Exhibit “UEU1” in determining whether the Respondent is a registered electrical contractor who had the right to be in custody of the materials and equipments seized by Dw1 at No.4 Essien Lane, Calabar. Exhibit “UEU1” was issued by the Federal Ministry of Mines and Power on 16-04-2006 to the Respondent. To be admissible it had to be certified under Section 111(1) (2), 112 and 113(a) (ii) or (iii) of the Evidence Act, 1990. That was not. The learned trial Judge erred to have found libel proved. The award of five million Naira damages and cost of ten thousand Naira to the Respondent is hereby set aside.
On the whole this appeal is allowed. The claims of the Respondent before the lower court are dismissed. I make no order as to costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA.
I agree with his reasoning and conclusions reached thereat. I am in agreement that this appeal is meritorious and therefore allowed. I abide by the order of cost contained therein.

ISAIAH OLUFEMI AKEJU J.C.A.: I had the advantage of reading before now the judgment of my learned brother, Joseph Tine Tur, JCA just delivered. I agree with the reasoning and the conclusion that the appeal has merit and should be allowed. I therefore allow the appeal and abide by the consequential order. I make no order as to costs.

Appearances

Babatunde Alajogun PSC & M. Ashu For Appellant

AND

U.E. Eba, J. Osumu & U. Effa For Respondent