CHIEF GABRIEL EBAK & ORS v. CHIEF (OJUKWA) OKEY EBEY & ORS (2013)

CHIEF GABRIEL EBAK & ORS v. CHIEF (OJUKWA) OKEY EBEY & ORS

(2013)LCN/6576(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 4th day of December, 2013

CA/C/76/2011

RATIO

CONDITION TO JOIN A PERSON IN ANY PROCEEDING

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

1. CHIEF GABRIEL EBAK
2. CHIEF JULIUS MBINA
3. MR. EGBARA IJANG
4. CHIEF ROBERT MBINA
5. CHIEF PETER EDIMAppellant(s)

AND

1. CHIEF (OJUKWA) OKEY EBEY
2. CHIEF JOSEPH AYANG ETABA
3. HON. EROMA AGBOR AWASSAM
4. AUGUSTINE EBAK
5. COMMISSIONER OF POLICE, CROSS RIVER STATE COMMAND
6. ASST. INSPECTOR GENERAL OF POLICE, ZONE 6, CALABARRespondent(s)

ONYEKACHI A. OTISI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, delivered on 15th November, 2010 in Suit No HU/Misc. 3/2010.

The Appellants and the 1st – 4th Respondents had been engaged in a feud over the Regency of Ohorodo of Okum Chieftaincy Stool. The Appellants alleged that the 1st – 4th Respondents had seized some emblems meant to be in the custody of the 3rd Appellant. In an attempt to gain hold of the other emblems, the Appellants alleged the 1st – 4th Respondents broke into the home of the 3rd Appellant, held him hostage until they successfully robbed him of the remaining emblems and some of his personal effects. The 3rd Appellant reported to the police at the Divisional Police Headquarters, Obubra. While the police were investigating the incident, the Chairman of Obubra Local Government caused the State Police Headquarters Calabar to take over the case, leading to the arrest of the 1st – 5th Appellants, including the 3rd Appellant who was the complainant. The 3rd Appellant then further reported to the Zonal Police Command, Zone 6, Calabar. While the matter was still being investigated, the 1st – 4th Respondents filed an action to enforce their fundamental rights.
The 1st to 4th Respondents in their Statement in support of their application to enforce their fundamental rights, had described themselves as the kingmakers and Regent of the Ohorodo Chieftaincy Stool of Apiapum in Obubra Local Government Area of Cross River State. That the Appellants are disputing the capacity of the 1st to 4th Respondents and lay claim to the Chieftaincy title; and that this resulted in the 1st to 4th Respondents filing both criminal summons and civil summons in the High Court of Justice, Obubra in Suits Nos. HB/15/2008, and, HB/18/2009. The case of the 1st to 4th Respondents in both suits is for a declaration that the 1st to 4th Respondents are entitled to the custody of the paraphernalia of the Chieftaincy Stool which they allege were illegally removed by the Appellants. That while these two suits were still pending, the Appellants connived with the 5th and 6th Respondents to effect the arrest and detention of the 1st to 4th Respondents on false allegation of robbery and stealing of the chieftaincy items the subject matter in HB/15/2008 and HB/18/2009. That the arrest of the 1st to 4th Respondents took place on 6th August, 2009 of the premises of the Obubra High Court premises on the last sitting day of the High Court before proceeding on annual vacation. When the 1st to 4th Respondents were denied bail and transferred from Obubra to State Criminal Investigation Department, Calabar, they filed an application for enforcement of their fundamental rights. The application was heard and the trial court gave judgment in their favour. The Appellants, dissatisfied with the said judgment appealed.
In the Notice and Grounds of Appeal filed on 7/2/2011, the Appellants raised six Grounds of Appeal; and, sought an order, reversing the said judgment and orders of the lower court delivered on 15/11/2010; and dismissing the action of the Respondents.

The Appellants’ Brief of Argument, settled by K. U. Ejukwa, Esq. of counsel was filed on 19/5/2011. The Respondents’ Brief was filed by O.N. Agbor, Esq. of counsel on 8/7/2011, and deemed properly filed and served on 23/1/2013. The Appellants’ Reply Brief was filed on 4/2/2013.
These Briefs were adopted by respective Counsel on 6/11/2013. The 5th and 6th Respondents, who were served with the processes in this Appeal, did not file any Brief and were not represented by Counsel.

In the Appellants’ Brief, four issues have been distilled for determination as follows:

1. Issue 1 distilled from Grounds 5.

Whether the trial court rightly entered judgment without resolving the conflict in the parties’ affidavits on the crucial issue of who lodged the complaint to the Police upon which the Applicants were arrested and without making specific finding on the issue.

2. Issue 2 distilled from Grounds 1, 2 and 4.

On the facts and circumstances of this case, whether the 1st – 4th
Respondents established the violation of their fundamental human rights by the Appellants.

3. Issue 3 distilled from Ground 6.
Where at the trial the issues involved in this matter were not effectually and justly resolved by reason of the non joinder of the Divisional Police Officer, Obubra whether the judgment of the court below can be allowed to stand.

4. Issue 4 distilled from Ground 3.

Whether these proceedings initiated and proceeded with in gross breach of the Fundamental Rights (Enforcement Procedure) Rules 1979 were cured by the coming into force of the Fundamental Rights (Enforcement Procedure) Rules 2009.

On Issue No 1, it is submitted that in view of the conflicting affidavit evidence of the parties, the trial Judge ought to have called for oral evidence in order to resolve the conflict; relying on Falobi vs. Falobi (1976) 9 & 10 SC 1 at 15, NNSL vs. Sabana Co. Ltd (1988) 3 SCNJ (PT 1) 130 at 148: Ceramic Mfg. Nig Ltd vs. N.I.D.B. (1999) 11 NWLR (PT 627) 383 at 396. That whether or not the parties so requested, the trial court ought to have suo motu called for oral evidence to resolve the conflict. It is submitted that the rule is founded on fair hearing and justice; that failing in the rule will give rise to failure of justice, relying on Ebohon vs. AG (1997) 5 SCNJ 163 at 171. The court is urged to hold that the trial court in entering judgment without first resolving the conflict and making specific finding on the crucial issue of complaint occasioned the failure of justice.

On Issue No 2, it is submitted that from the affidavit evidence, the 3rd Appellant had made allegations of crime against the 1st – 4th Respondents. That the 3rd Appellant, as the victim of on alleged crime, had the right and duty to report to the police the crime committed against him; relying on Osayande vs. Etuk (2008) ALL FWLR (PT 435) 1760 at 1781. That from the depositions in the counter affidavit, the 3rd Appellant did no more than lodge his complaint with the police. That from his report, the 3rd Appellant did not act on mere suspicion but had identified and named the 1st – 4th Respondents to the Divisional Police Headquarters, Obubra.
The 3rd Appellant had also asserted that the intervention of the Chairman of Obubra Local Government caused the re-arrest of the 1st – 4th Respondents as well as the Appellants, including the 3rd Appellant who was the complainant. That in seeking to bring his complaint out of the muddle thereby created, the 3rd Appellant sought the intervention of the 6th Respondent. The 3rd Appellant had further stated that the police by their investigations had of ready obtained vital evidence incriminating the 1st – 4th Respondents before they rushed to court. These depositions were not controverted by the 1st – 4th Respondents. It is submitted that police on their own can decide to arrest, detain, investigate and prosecute a suspect upon a complaint received from a member of the public; relying on Sections 4, 23 – 30 of the Police Act: Sam vs. COP (2009) ALL FWLR (PT 450) 760 at 774; Christlieb Ltd. vs. Mojekodunmi (2009) ALL FWLR (PT 472) 1042 at 1064. It is submitted that the 1st – 4th Respondents had no cause of action in the suit they filed and that the suit, which had the purpose of deterring the right of the 3rd Appellant to lodge a complaint to the police and restrain the 5th and 6th Respondents from carrying on their duties, cannot be sustained; relying on AG Anambra State vs. Uba (2005) 15 NWLR (PT 947) 44 at 67. It is also submitted that the trial court focused on matters extraneous to the five issues in the case. That on the live issues, the 1st – 4th Respondent failed to establish the violation of their fundamental rights against the Appellants.

On Issue No 3, it is submitted that the Divisional Police officer, Divisional Police Headquarters, Obubra was a necessary party f or the effectual and complete resolution of the matter. That the Appellants, except the 3rd Appellant, had denied involvement in the complaint and arrest of the 1st- 4th Respondents, while the acts of the 5th and 6th Respondents merely hinged on the acts of the said Divisional Police Officer or were occasioned by the muddling up acts of the chairman, Obubra Local Government Council. But, the Divisional Police officer was not made a party to the proceedings. It is submitted that of the time the trial court entered judgment, no right had been established by the 1st – 4th Respondents or obligation against the Appellants.

On Issue No 4, it is submitted that the 1st – 4th Respondents had failed to comply with the provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979. But, that the trial court relied on the provisions of Order XV Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 to overlook the non-compliance with the provisions of order 1 Rule 2(3) and (4); as well as order 2 Rules 1 and 2(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules 1979. Learned Counsel relied on Cunsin Nig Ltd. Vs. IGP (2008) ALL FWLR (PT 411) 959 at 969-971: Afribank Nig. Plc. vs. Adigun (2009) ALL FWLR (PT 476) 2009 at 2028.
It is further submitted that the exhibits in the proceedings were not exhibited on the affidavit in support of the application but rather to the Statement of facts. That this is not an irregularity but a fundamental vice: relying on order 7 Rule 2(1) (d) of the Fundamental Rights (Enforcement Procedure) Rules 1979: order 32 Rules 8 and 9 of the High Court (civil Procedure) Rules 2008: Abacha vs. Fawehinmi (2000) 6 NWLR (PT 660) 228 at 295, 350; Aso Motel Kaduna Ltd vs. Deyemo (2007) ALL FWLR (390) 144 at 1470-1471. That where a special procedure is prescribed for the enforcement of a particular right or remedy, non-compliance with or departure from the prescribed procedure is fatal to the enforcement of the remedy: relying on DG, SSS. vs. Ojukwu (2006) ALL FWLR (PT 339) 979 at 986; Afribank Plc. vs. Adigun (supra); KASOAP vs. Kofa Trading Co (1996) 2 SCNJ 325 at 334. It is further submitted that the proceedings before the trial court, which were initiated and proceeded with in gross breach of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979, ought to be dismissed.

In the 1st – 4th Respondents’ Brief, the following Issues were raised for determination:
1. Whether the complaint of armed robbery and stealing of the paraphernalia of the Ohorodo chieftaincy stool leading to the arrest and detention of the 1st to 4th Respondents was made by the 3rd Appellant alone or in concert with the other Appellants?

2. Whether the arrest and detention of the 1st to 4th Respondents in Obubra and their eventual transfer to Calabar for the heinous offence of armed robbery did not amount to a breach of their Fundamental Rights?

3. Whether the non joinder of the Divisional police Officer for Obubra, a non juristic person as a party vitiated the proceedings?

4. Whether the proceedings as initiated and prosecuted were not in substantial compliance with the 1979 Rules?
On Issue No 1, it is submitted that the manner of arrest and place of arrest suggested that the Appellants acted in concert with the police. And that the 5th and 6th Respondent failed to respond to the averments of the 1st – 4th Respondents in denial; and the court could not act on the ipse dixit of the Appellants.

On issue No 2, it is submitted that the onus of proving that the Appellants did no more than report a case of armed robbery to the police lay on the Appellants. That the attempt to involve the Chairman of Obubra Local Government is on afterthought as no petition from the said chairman was exhibited.

On Issue No 3, it is submitted that by the provisions of Section 214 and 215 of the constitution of the Federal Republic of Nigeria 1999, as amended, there is only one police force in Nigeria which recognizes the Inspect or-General and Commissioners of Police for each State. That the actions and activities of a Divisional Police officer to the state commissioner of Police, the 5th Respondent. That the Divisional Police officer, a non-juristic person, need not have been joined in these proceedings; relying on Akas vs. Manager & Receiver of Estate of Nwadike (2001) FWLR (PT 71) 1714.

On Issue No 4, it is submitted that the provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979 were complied with; and that by virtue of the provisions of the Fundamental Rights (Enforcement procedure) Rules 2009, the action was not vitiated.
In the Appellants’ Reply Brief, it is submitted that the 1st – 4th Respondents had acted on a supposition. That if the trial court could not have acted on the ipse dixit of the Appellants, it also could not have acted on the ipse dixit of the 1st – 4th Respondents without other evidence. And that the burden of proving their case lay on the 1st – 4th Respondents and not on the 5th and 6th Respondents. That in event of want of evidence to resolve the issue of who the complainant actually was, the 1st – 4th Respondents ought to fail in their case.
It is also submitted the 1st – 4th Respondents cannot by oral arguments traverse facts which they had every opportunity of trial stage to traverse but never did. It is submitted that the case of Akas vs. Manager & Receiver of Estate of Nwadike (supra) has been cited out of con.
The court is also referred to Carlen vs. University of Jos (1994) 1 SCNJ 72 at 85. The court is urged to uphold the appeal.
The Issues raised for determination by the parties are similar and shall be considered together.
The judgment and orders made by the trial court as reproduced of page 69 of the Record of Appeal are as follows:

“On the whole, it is my view which I so hold that the arrest of the applicants was malicious and their detention was unlawful and I hereby grant the following reliefs:
1. A declaration that the arrest and detention of the applicants by the 6th and 7th Respondents based on the complaint of the 1st to 5th respondents is unconstitutional an abuse of legal process and amounts to a nullity.

2. An order restraining the respondents from further arresting/detaining the applicants based on the allegation that gave rise to the complaint.

3. The Respondents shall pay to the applicants the sum of N300, 000.00 (three hundred thousand Naira) as damages for unlawful arrest and detention.

4. I assess costs as N10, 000.00 (Ten thousand Naira only) in favor of the applicants.”

Applications to enforce Fundamental Rights are usually determined by affidavit evidence. The answers to any issues for resolution must therefore be found in the affidavits before the court. The 5th and 6th Respondents, who were the 6th and 7th Respondents in the lower court, failed to file any counter affidavit. In spite of this fact, the orders made by the trial court, which are subject matter of this appeal, ought to be vindicated by the affidavit evidence which was presented before the trial court.

In the Statement of Facts, verified by an affidavit deposed to by the 1st Respondent, and reproduced at page 4 of the Record of Appeal, the 1st – 4th Respondents Stated:

“8. That on 6th August, 2009 being the last date the High Court of Obubra sat before proceeding on annual vacation, the 1st to 5th Respondents effected the arrest of the Applicants through the Divisional Police Headquarters Obubra claiming that some items of the chieftaincy emblems in their possession have been removed by unknown persons. They however suspected the Applicants. The Applicants were arrested of the premises of the Court after the Hon Justice Ebutta had risen and gone home.

9. The Applicants were detained for two days and released on bail. The Applicants were rearrested and detained on 24th August, 2009 and after spending three days at Obubra Police Station were transferred to Police State Headquarters, Calabar where they spent another four days.

10. The Applicants were tortured inspite of their insistence that the matters of the chieftaincy are already before the High Court Obubra.

11. The Applicants were released on 31st August, 2009 after extortion of about N150, 000.00 (One hundred and Fifty Thousand Naira) from them by officers and men of the 6th Respondents.”

In paragraphs 10 – 12 of the counter affidavit of the Appellants as 1st – 5th Respondents, at page 49 of the Record of Appeal, it is averred as follows:

“10. While these emblems were kept by the 3rd respondent, the applicants on the 3rd of August 2009 or thereabout (this time around armed) in the dead of the night forced themselves into the 3rd respondent’s house, held him hostage until they successfully robbed him of the remaining emblems left in his custody together with some of his belongings.

11. The following morning the 3rd respondent reported this incidence to the Nigerian police, Divisional Police Headquarters, Obubra which Police were still on preliminary investigations when the Chairman of the Obubra Local Government Area in attempt to help the 3rd applicant (his political friend) out of the mess he has thrown himself, caused the State police Headquarters, Calabar not only to take over the case but to indiscriminately arrest the 1st – 5th respondents including even the complainant.

In response to these averments, the 1st – 4th Respondents in a Further & Better Affidavit at page 53 of the Record of Appeal, simply averred in paragraph 3:

“That Paragraph 2, to 4, 7 to 12 are false…”

From these averments, the 3rd Appellant, 3rd Respondent therein, was the one who identified the 1st – 4th Respondents as the armed intruders in his home who robbed him. The 3rd Appellant made the initial report to the police at Divisional Police Station Obubra. The 1st, 2nd, 4th and 5th Appellants were not mentioned as the persons who laid the complaint. On the other hand, the 1st – 4th Respondents had categorically pointed of the Appellants as the persons who were responsible for their arrest. Clearly, these averments are in conflict.

In First Bank of Nigeria Plc vs. May Medical Clinics and Diagnostic Centre Limited LER (2001) SC 184/1995, [2001] 4 S.C. (PT. 1) 108, (2001) 4 S.C. (PT. 1)108, the Supreme Court, per Belgore JSC (as he then was), said:
‘Where the only evidence before a court are affidavits of the parties- that is to say the applicant’s affidavit and respondent’s counter-affidavit, the court can rule and arrive at a conclusion in so far as the affidavits do not contain totally divergent depositions of facts. In cases where the affidavits, on material facts to be adjudicated upon are diametrically of variance, the court before which the proceeding is being conducted must not pick and choose or believe one and reject the other, it is only by resorting to viva voce evidence that the court will resolve the conflict on the facts. However where conflicts in the affidavits do not touch the material substance of the matter before the court, decision may be based on the evidence in those affidavits and there will be no need to resort to oral evidence to resolve such immaterial facts (L.S.D.P.C. v. Adold/Stamm International (Nig.) Ltd. (1994) 7 NWLR (Pt.358) 545, 550; Okupe v. FIBR (1994) All NLR. (Reprint) 284: 6arba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, Falobi v. Falobi (1976) 9 -10 SC.
1). It is also right that the court can consider facts in affidavit by disregarding flimsy facts deposed therein and there will be no necessity to call oral evidence (L. S. D. P. C. v. Adold/Stamm International Nigeria Limited (supra)).”
In Military Administrator, Federal Housing Authority vs. Aro (1991) 1 SCNJ 154, (1991) 1 SC (PT 1) 160, the Supreme Court per Belgore JSC (as he then was), said:
“Surely when two parties in a dispute render their facts into affidavits and there are conflicts in the affidavits such conflict can best be resolved by having oral evidence from the parties. Once this situation of conflict in affidavits arises, and the conflict is not on a trivial matter in dispute but on the substance of the dispute; whether the parties so request or not, it is incumbent on the court faced with such a situation to advise the parties to give oral evidence to resolve the conflict.”
See also: Falobi vs Falobi (supra); National Bank of Nigeria Ltd vs. The Are Brothers Nigeria Ltd (1977) LPELR- 1953(SC); In Re Otuedon (1995) 4 NWLR (PT 392) 655.
Contrary to the position advocated for a trial count faced with conflicting affidavit evidence to adopt and employ, the trial court in this case did not call for oral evidence but relied only on the affidavit evidence before it. In her resolution of the divergent affidavit evidence, the learned trial court said at page 68 of the Record of Appeal as follows:

“…it is my considered view that the central issues in contention are the facts as contained in photograph 8 of the Statement of the applicants and paragraph 10 of the counter affidavit of the Respondents while the applicants state that they were arrested of the premises of the Court by the police of the instance of the 1st to the 5th Respondents who suspected that they removed some of the Chieftaincy items. The respondent on the other hand in paragraph 10 of the counter affidavit stated that the applicants went into the house of the 3rd respondent in the dead mid night and robbed the 3rd respondent of the chieftaincy emblems and some of his belongings…

But in the instant case was there any suspicion or that the applicants actually committed the offence? Going through paragraph 10 of the counter affidavit, the Respondents made it clear that the applicants robbed the 3rd respondent. The question is why didn’t the Respondents arrest the applicants in their various houses rather they brought police to the High Court Premises, on the day of the Civil case and being the last day the High Court would stop sitting due to vocation and arrested the applicants. Was it a coincidence that the alleged robbery took place on the night proceeding the date of their civil matter?
Why were the applicants released on bail in the case of robbery and rearrested again and taken to Calabar where they spent N150, 000.00 (one hundred and fifty thousand) Naira for their bail…”

It is important to note well certain facts evident from the affidavit evidence placed before the learned trial Judge.
The 3rd Appellant, who alleged intrusion in his home as well as armed robbery, admitted that he personally laid a complaint before the police of Divisional Police Headquarters, Obubra. Aside f nom the contention of the 1st – 4th Respondents, there is nothing else to connect the 1st, 2nd, 4th and 5th Appellants to the complaint in issue.
In paragraph 8 of the Statement of the 1st – 4th Respondents of page 4 of the Record of Appeal, the 1st – 4th Respondents alleged that the Appellants suspected them of having removed the chieftaincy emblems in dispute. The 3rd Appellant, who admitted he was the one that laid the complaint before the police, was certainly acted within his rights in reporting his suspicions to the police. The complaint which the 3rd Appellant made to the police was not conclusively shown to have been frivolous or to have been made without foundation or out of malice. I do not see how the 3rd Appellant can be indicted or faulted for his report to the police. See: Owomero vs. Flour Mills (Nig) Ltd (1995) 9 NWLR (PT 421) 622 at 629: Ezeadukwa vs. Maduka (1997) 8 NWLR (PT 518) 635 at 667.
The law supports a person who brings a report or complaint before the police, so long as he leaves the police to use their discretion in taking further steps. The affidavit evidence did not show any undue influence on the police by the 3rd Appellant or by any of the Appellants. The fact that the 1st – 4th Respondents were arrested within the court premises after the conclusion of proceedings for the day in the civil suit filed by the 1st – 4th Respondents, may not be commendable but, the cause for this act by the police cannot be categorically laid of the foot of the 3rd Appellant or of the Appellants.
Learned counsel for the 1st – 4th Respondents submitted that in the absence of any proof, the burden lay on the Appellants to show that they were not acting in concert with the police. He also contended that the averment in paragraph 12 of the counter affidavit at page 48 of the Record of Appeal, that the 3rd Appellant “furthered his complaint” to the 6th Respondent showed that the Appellants did more than lodge a complaint to the police.
But, these submissions are not grounded by the affidavit evidence. I shall repeat for clarity the averments of the Appellants in paragraphs 11 and 12 of the counter affidavit, already reproduced above:

11. The following morning the 3rd respondent reported this incidence to the Nigerian police, Divisional Police Headquarters, Obubra which Police were still on preliminary investigations when the Chairman of the Obubra Local Government Area in attempt to help the 3rd applicant (his political friend) out of the mess he has thrown himself, caused the State Police Headquarters, Calabar not only to take over the case but to indiscriminately arrest the 1st – 5th Respondents including even the complainant.

12. In the face of that played out attempt to muddle up the complaint of the 3rd respondent, the 3rd respondent furthered his complaint to the Zonal Police Command, Zone 6, Calabar which Police was still investigating that 3rd respondents complaint and had already obtained vital evidence incriminating the applicants before they rushed to court to commence this suit and thereby stayed the hands of the Police.
From these averments, the 3rd Appellant was compelled to complain further to the 6th Respondent when the State Police Headquarters Calabar took over the matter and arrested all the parties, including the 3rd Appellant, who was the complainant himself. This averment was not seriously challenged by the 1st – 4th Respondents. Obviously, the complaint to the State Police Headquarters could not have been made by the 3rd Appellant. To avoid his complaint or report being muddled up or befuddled, the 3rd Appellant decided to take his complaint higher. I do not see how this action can be viewed or interpreted as evidence of the 3rd Appellant or of the Appellants acting in concert with the police. If the police decide to take any action upon a further complaint to 6th Respondent, they would be acting within their legitimate powers.
The burden of proving their allegations rests squarely on the 1st – 4th Respondents as Applicants before the lower court. See: Sections 134 and 135 of the Evidence Act, 1990 (now Sections 135 and 136 of the Evidence Act, 2011. It is my considered view: however, having regard to the affidavit evidence, that neither the 3rd Appellant nor the Appellants were shown to have exerted undue negative influence on the police in the performance of their duties.
These questions were posed by the trial court:
“The question is why didn’t the Respondents arrest the applicants in their various houses rather they brought Police to the High Court Premises, on the day of the Civil case and being the last day the High Court would stop sitting due to vocation and arrested the applicants.
Was it o coincidence that the alleged robbery took place on the night proceeding the date of their civil matter?”
However, from the affidavit evidence, it was not the Appellants who arrested the 1st – 4th Respondents. The 3rd Appellant, acting within his lawful rights, had laid a complaint to the police. The police in turn, and, acting within their legitimate powers, effected the arrest of the 1st – 4th Respondents. The answer to the question as to whether or not there was any coincidence in the timing of the reported incident of armed robbery cannot be speculated upon by the court.
The 5th and 6th Respondents, the police, are empowered to investigate any criminal allegation. They may take any action they deem fit to take upon investigation. They may arrest, detain, and prosecute on alleged offender. See section 4, 24 – 30 of the Police Act, section 10 of the criminal code:
Section 20 of the Criminal Procedure Act. See also Section 35(1) (c) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. In the legitimate discharge of their duties, they cannot be sued in court for breach of Fundamental Rights. See: Okanu vs. COP, Imo State (2001) 1 cases on Human Rights 407 at 411 per Ogebe JCA (as he then was). If the police are exposed to have stepped out of line in the discharge of their duties, then an action for the enforcement of fundamental rights can be sustained against them.
A close examination of the affidavit evidence would not bear out the allegation that the Appellants breached the fundamental rights of the 1st – 4th Respondents. The 1st, 2nd, 4th and 5th appellants made no complaint against the 1st – 4th Respondents. The initial complaint made to the police of the Divisional Police station, Obubra, was made by the 3rd Appellant, who was acting within his lawful rights. From the affidavit evidence of both the Appellants and the 1st – 4th Respondents, the investigations of the 5th and 6th Respondents have not been concluded. The 5th and 6th Respondents cannot therefore be, as was ordered by the trial court, restrained from:
further arresting/detaining the applicants based on the allegation that gave rise to the complaint.
The police cannot be restrained from performing their legitimate responsibilities, within the parameters of the law. The orders made by the trial court against the Appellants cannot therefore be sustained, having regard to the affidavit evidence. Issues Nos. 1 and 2 are thus resolved in favour of the Appellants.

A person to be joined in any proceeding is someone whose presence is necessary as a party, and the only reason which makes him a necessary party to the action is that he should be bound by the result of the action, which cannot be effectually and completely settled unless he is a party. The necessary Party is one whose participation in the matter will enable the court effectually and completely adjudicate upon and settle all issues in controversy. See: Mogaji vs. Mogaji (1986) LPELR- 1891(SC); Chinweze vs. Masi (1989) 1 NWLR (PT 97) 254.
However, the fact that a necessary party to an action has not been joined will not necessarily render the action a nullity.
See: Bello vs. INEC (2010) LPELR-767(SC), (2010) 8 NWLR (PT 1196) 342.
Section 6 of the Police Act provides as follows:
The Force shall be under the command of the Inspector-General, and contingents of the Force stationed in a state shall, subject to the authority of the Inspector-General, be under the command of the Commissioner of that State.
In other words, it is the Commissioner of police for a particular State who takes responsibility for the acts of the police in that State. Therefore, the Divisional Police Officer, Obubra, whose acts are accounted for by the 5th Respondent, is not a necessary party in these proceedings. Issue No 3 is thus resolved against the Appellants.
The Fundamental Rights (Enforcement Procedure) Rules 1979 were abrogated by the Fundamental Rights (Enforcement Procedure) Rules 2009. In the Transitional provisions, the Fundamental Rights (Enforcement Procedure) Rules 2009 provided as follows:
1. The Fundamental Rights (Enforcement Procedure) Rules 1979 are hereby abrogated.
2. From the commencement of these Rules, pending Human Rights applications commenced under the 1979 Rules shall not be defeated in whole or in part, or suffer any judicial censure, or be struck out or prejudiced, or be adjourned or dismissed, for failure to comply with these Rules provided the applications are substantial compliance with the Rules.
By these provisions, the words: substantial compliance with the Rules, mean substantial compliance with the 2009 Rules, not the abrogated 1979 Rules. The application before the lower court, as filed, was in substantial compliance with the Rules. I agree with the learned trial Judge that any defect in the application would not amount to a ground to dismiss the application, having regard to the provisions of order XV Rules 1 and 2 of the 2009 Rules. I therefore resolve Issue No 4 against the Appellants.
Upon the resolution of Issues 1 and 2 in favour of the Appellants, this appeal is succeeds; and, is hereby allowed.
The Ruling of the Cross River State High Court sitting at Obubra delivered on 15th November, 2010 in suit No HB/ MISC.3/2010 is hereby set aside. The action of the 1st – 4th Respondents, which was not proved against the Appellants, or at all, is hereby dismissed.
The 1st – 4th Respondents shall pay costs of N50, 000.00 to the Appellants.

MOHAMMED LAWAL GARBA, J.C.A.: The views expressed and the conclusions on the four (4) issues submitted for decision in this appeal, by my learned brother, Onyekachi A. Otisi, JCA, in the lead judgment just delivered, are the same with mine.
For all the reasons set out therein, which are adopted hereby, I too allow the appeal in the terms of the lead judgment.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, Onyekachi A. Otisi, JCA. I am in agreement with the reasoning and final conclusions reached in the lead judgment.
I abide by all the consequential orders contained therein and adopt them as mine.

Appearances

K.U. Ejukwa, Esq.,For Appellant

AND

O.N. Agbor, Esq., for the 1st – 4th Respondents.For Respondent