ALHAJI ALIYU N. SALIHU v. SULEIMAN UMAR GANA & ORS
(2014)LCN/7146(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of April, 2014
CA/K/309/2012
RATIO
PERSONS WITH THE RIGHT TO REPORT A CRIME TO THE POLICE
It is trite that every private individual has the right to report a crime or a suspected crime to the police – Isheno Vs Julius Berger (Nig) Plc (2008) 6 NWLR (Pt 1084) 582, Arab Contractors (O.A.O.) Nigeria Ltd Vs Umanah (2013) 4 NWLR (Pt.1344) 323. Section 4 of the Police Act, Cap 359, Laws of the Federation 1990 states the duties of the Police to include, amongst others, the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are charged. It is trite that once criminal allegations are made against a citizen, the Police has a constitutional and a statutory duty to investigate the allegations – Agbi Vs Ogbeh (2005) 8 NWLR (Pt.926) 40, Christlieb Plc Vs Majekodunmi (2008) 16 NWLR (Pt.1113) 324 and Onah Vs Okenwa (2010) 7 NWLR (Pt.1194) 512. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER THE CREDIBILITY OF ORAL EVIDENCE CAN BE ASSESSED BY DOCUMENTARY EVIDENCE
It is trite that where parties present oral evidence and documentary evidence, the latter should be used as a hanger from which to assess the credibility of the oral evidence and a trial Court should lean in favour of the party with the documentary evidence – Bunge Vs The Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573, Egharevba Vs Osagie (2009) 18 NWLR (Pt 1173) 299, Cameroon Airlines Vs Otutuizu (2011) 4 NWLR (Pt.1238) 512. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER UNCHALLENGED FACTS DEPOSED TO IN A COUNTER AFFIDAVIT CAN BE DEEMED ADMITTED BY THE COURT
It is also settled law that where facts deposed in a counter affidavit are not challenged or contested by a reply to the counter affidavit and such facts, on its face, will not lead to absurdity if accepted as being the truth of what they try to establish, a trial Court has a right to deem the facts as admitted and to be true and correct and to act on them – Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt.464) 15, Attorney General, Ondo State Vs Attorney General, Ekiti State (2001) 9-10 SC 116, Adams Vs Attorney General of the Federation (2006) 11 NWLR (Pt 991) 341, Dokubo-Asari Vs Federal Government of Nigeria (2007) 12 NWLR (Pt 1048) 320, First Bank of Nigeria Plc Vs Ndarake & Sons Nig Ltd (2009) 15 NWLR (Pt.1164) 406. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER AN APPELATE COURT CAN EVALUATE EVIDENCE
It is trite that it is the primary responsibility of a trial court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt. 857) 249, Oyekola Vs Ajibade (2004) 17 NWLR (Pt. 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt. 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt.1383) 350.
Evaluation of evidence adduced before the court is the exclusive preserve of the trial Court and where the records of proceeding show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt.1392) 483, Ikumonihan vs State (2014) 2 NWLR (Pt. 1392) 564. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALHAJI ALIYU N. SALIHU Appellant(s)
AND
1. SULEIMAN UMAR GANA
2. UBA SHU’AIBU
3. BELLO MOHAMMED
4. MANSIR MOHAMMED
5. YUSUF MOHAMMED ZABO
6. ADAMU ZUBAIRU JALALUDEEN
7. DAHIRU SAULAWA
8. HASSAN IBRAHIM
9. MANI ALIYU
10. COMMISSIONER OF POLICE, KADUNA STATE
11. AMINU SULEIMAN P & G II, METRO POLICE STATION KADUNA Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Kaduna State in Suit No. KDH/KAD/493M/07 delivered by Honorable Justice AbdulKadir A Othman on the 29th of November, 2011. The Appellant commenced an action in the Lower Court under the Fundamental Right (Enforcement Procedure Rules and he prayed for:
i. A declaration that the arrest and detention of the Applicant on two occasions by the tenth and eleventh Respondents on the instigation of the first to the ninth Respondents on the 8th of November 2007 from 4.00pm to 8.00pm and 17th of November 2007 from 3.00pm to 7.30pm without any lawful justification is a violation of the Applicant’s fundamental rights to dignity of his human person under section 35 of the Constitution of the Federal Republic of Nigeria, 1999.
ii. A declaration that the incessant disruption of the Road Transport Employees Association of Nigeria (RTEAN) by the first to the ninth Respondents not being members of the Association is an infringement of the Applicant’s right to freedom of association as guaranteed by section of the Constitution of the Federal Republic of Nigeria, 1999.
iii. A declaration that the prying by the tenth and eleventh Respondents in the Applicant’s activities, especially bank accounts sources of funds, mode of expenditure of funds, request for Applicant’s money in his account amounts to the infringement of his right to privacy.
iv. A declaration that the unprovoked infliction of bodily assault on the Applicant and members of his Association by the first and ninth Respondents on the 19th of November 2007 amounts to infringement of his fundamental rights to dignity of the human person.
v. Damages in the sum of N3 Million against the Respondents jointly and severally for infringing upon the rights of the Applicant.
The Appellant filed the necessary supporting documents in support of the application and his case in the affidavit in support was that he was a bona fide member of and the Chairman of the Bakin Ruwa Chapel of the Road Transport Employees Association of Nigeria (RTEAN) with operational office at No MG8, Nnamdi Azikiwe, Bye Pass, Bakin Ruwa, Kaduna under the National leadership of Chief Abubakar O Sadiq and that the first to the ninth Respondents were not members of the Association. It was his case that sometime on the 8th of November 2007 while he was on lawful duties with the members of his Association at Bakin Ruwa, the first to the ninth Respondents sent thugs to disrupt their operations and that he reported the matter to the Police but that the Police arrested him and members of his Association instead and that the Divisional Police Officer informed him that since he did not give money to support police operations, the Police will not cooperate with him. It was his case that again on the 17th of November, 2007 the first to the ninth Respondents caused the tenth to the eleventh Respondents to arrest and detain him from 3.00pm to 8.00pm and on the two occasions he was arrested and detained, he was not informed of the offence against him.
It was the case of the Appellant that on the 19th of November 2007, the tenth and eleventh Respondents requested for documents authorizing and authenticating his membership of the Road Transport Employees Association of Nigeria (RTEAN) and that he gave the documents but that to his surprise, the documents found their way into the hands of the first to the ninth Respondents. It was his case that on the 21st of November 2007, the eleventh Respondent requested him for the source of the funds of the Association, the bank details and what they did with the funds and that in the early hours of the 19th of November 2007, the first to the nineth Respondents led a large crowd armed with placards, sticks and other weapons to attack their office with intention of causing a breach of peace. It was his case that while this was going on, he called the eleventh Respondent who came and arrested the first to the ninth Respondents and took them to the Police Station but that events were subsequently turned around and he was made the accused person and that the first to the ninth Respondents have, in collaboration with the tenth to the eleventh Respondents, not allowed him to operate as a RTEAN member and official. It was his case that he registered as a member of RTEAN at the Kaduna State Branch in 2003 and that he was never suspended since his registration as a member and he attached the receipt of his payment for registration as Exhibit A.
The first to the ninth Respondents filed a counter affidavit in response to the case of the Appellant before the Lower Court and their case was that in November 2004, the Kaduna State Exco of the Road Transport Employees Association of Nigeria (RTEAN) was constituted by the National Body and the seventh Respondent was made State Chairman, the sixth Respondent was State Secretary, the eighth Respondent was the Deputy State Secretary while the Appellant was made State Internal Auditor and that the Appellant decided to break away and form a faction because he was dissatisfied with the position he was given. It was their case that the National Body suspended the Appellant from the Association and the Appellant thereafter broke into the office RTEAN and carted away the furniture of the Association and that this is now the subject of a criminal complaint of conspiracy and trespass pending before the Chief Magistrate Court 2, Kaduna; evidence of the pending charge was Exhibit A.
It was their case that on the 26th of October, 2007, the State Secretariat of RTEAN received a petition, Exhibit B, against the Appellant from its Bakin Ruwa Chapel over his illegal activities and that the State Secretariat wrote a letter to the Appellant, Exhibit C, to appear before it to answer the allegations in the petition but that the Appellant refused to and whereupon the State Secretariat dissolved the Executive Committee of the Bakin Ruwa Chapel and constituted a Caretaker Committee and it communicated this by a letter, Exhibit D, to the Chairman of Kaduna South Local Government Council. It was their case that the Appellant thereafter started committing offences known to law and that they reported to the Metropolitan Police, Kaduna by a letter, Exhibit E, and in the course of the police investigations into the allegations against him and in a bid to undermine same, the Appellant brought a direct criminal complaint against them, Exhibit F, and that this was still pending before Chief Magistrate Court 9, Kaduna.
It was their case that the Police concluded investigations sometime around 27th of November 2007 and a First Investigation Report was prepared to arraign the Appellant for offences before the Upper Customary Court, Kaduna on the 28th of November, 2007 and it was to stall the arraignment that the Appellant rushed to commence this action and obtained leave of the Lower Court which acted as a stay of proceedings of the criminal prosecution. It was their case that the Appellant did not at anytime report them to the Police and they were never arrested by the Police.
The Lower Court took arguments on the application and it, after considering the averments in the affidavits of the parties, concluded that the application was calculated to stall further proceedings against the Appellant in the criminal prosecution and was thus an abuse of process. The Lower Court dismissed the application as lacking in merit. The Appellant was dissatisfied with the ruling and he caused his Counsel to file a notice of appeal against it. A notice of appeal dated the 5th of January, 2012 and containing five grounds of appeal was filed by the Counsel to the Appellant.
In presenting the case of the Appellant on this appeal, his Counsel filed a brief of arguments dated 15th of May, 2013 and it consisted of seventeen pages. The Respondents did not file any brief of arguments in this appeal. The Respondents did not also attend Court at the hearing of the appeal despite being served with a hearing notice and Counsel to the Appellant was granted leave to argue the appeal on the Appellant’s brief alone. Counsel to the Appellant adopted the brief of arguments and he urged this Court to allow the appeal.
Counsel to the Appellant formulated two issues for determination in his brief of arguments and these were:
i. Whether from the totality of the affidavit evidence before the Honorable Court, the trial Court was not in error in dismissing the claim of the Appellant by which he claimed that he was unlawfully arrested and detained on two dates 8th of November 2007 and 17th of November 2007 and also that his rights to freely associate was tampered with as well and that his right to privacy was infringed upon hence breaching his fundamental rights to personal liberty, freedom of association and right to privacy guaranteed under sections 35, 40 and 37 respectively of the Constitution of the Federal Republic of Nigeria 1999.
ii. Whether from the joint counter affidavit of the first to the ninth Respondents there was any allegation of commission of crime against the Appellant which made them to stimulate and instigate the tenth to eleventh Respondents to infringe upon the various rights alleged in the Appellant’s application for the enforcement of his fundamental rights.
Reading through the entire processes in this appeal, it is the view of this Court that there is only one issue for determination in this case and it is:
Whether from the totality of the affidavit evidence of the parties, the Lower Court was right in dismissing the claims of the Appellant.
This appeal shall be resolved on this singular issue and the entire arguments of the Counsel to the Appellant shall be considered there under. Counsel stated that the complaint of the Appellant in this appeal is that the Lower Court did not rightly and adequately evaluate the evidence before it in the affidavits of the parties and that the evaluation of evidence and ascription of probative value to evidence are the primary functions of the trial Court and he referred to the case of Kankia Vs Magemu (2003) 6 NWLR (Pt. 817) 496. Counsel stated that the Lower Court did not state the basis for dismissing the case of the Appellant and none was evident when consideration is given to the affidavits of the Appellant which made specific depositions of brazen infringement of his fundamental rights. Counsel proceeded to x-ray the claims of the Appellant and the depositions in the affidavit in proof of them and he also referred to the counter affidavit of the first to the ninth Respondents, particularly the report made to the Police against the Appellant vide a letter, Exhibit E, and stated that the contents of the letter did not allege any criminality committed by the Appellant to warrant his invitation by the Police and it only raised an intra-union dispute, a civil matter.
Counsel stated that there was thus no basis for the arrest and detention of the Appellant on the 8th and 17th of November, 2007 as it is not part of the duty of the Police to investigate civil complaints and that the arrest and detention were illegal, unconstitutional and consequently an infringement of the fundamental rights to personal liberty of the Appellant and he referred to the case of Ifeagwu Vs FRN (2003) 15 NWLR (Pt 842) 113. Counsel referred to the case of Adeyaniu Vs WAEC (2002) 13 NWLR (Pt. 785) 479 on the nature of fundamental rights and the nature of its enforcement and he stated that this suit calls on the Court to interpret the provisions of the Chapter IV of the 1999 Constitution and to state whether on the totality of the facts of this case, the provisions have been infringed; he referred to the cases of Orhiunu Vs Federal Republic of Nigeria (2005) 1 NWLR (Pt.906) 39, Fawehinmi Vs IGP (2002) All NLR 357, amongst others on the interpretation of the Constitution. Counsel urged the Court to resolve the issues in this appeal in favour of the Appellant.
This action was commenced in the Lower Court by an application for the enforcement of the fundamental rights of the Appellant.
Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt.6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which arc in fact antecedent to the political society itself’ and “it is a primary condition to civilized existence”.
Fundamental rights are rights derived from natural or fundamental law – Igwe Vs Ezeanochie (2010) 7 NWLR (Pt.1192) 61. In the words of Jacques Maritain:
“The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. The dignity of the human persons? The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to man because of the very fact that he is a man” (Jacques Maritain, The Nights of Man and Natural Law 65 (D. Anson trans. 1943).
Calling these guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607.
The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the court to protect these rights – Igwe Vs Ezeanochie supra. The Appellant predicated his application before the Lower Court on his rights to personal liberty, freedom of association and privacy which he said were guaranteed under the provisions of sections 35, 42 and 37 respectively of the 1999 Constitution.
The main complaint of the Appellant in this appeal is that the Lower Court did not properly evaluate the affidavit evidence led by the parties on his application before coming to a decision to dismiss the application. It is trite that it is the primary responsibility of a trial court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt. 857) 249, Oyekola Vs Ajibade (2004) 17 NWLR (Pt. 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt. 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt.1383) 350.
Evaluation of evidence adduced before the court is the exclusive preserve of the trial Court and where the records of proceeding show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt.1392) 483, Ikumonihan vs State (2014) 2 NWLR (Pt. 1392) 564.
In the ruling appealed against, the Lower Court summarized the respective cases of the Appellant and of the first to the ninth Respondents as contained in the affidavits and counter affidavit as well as the addresses of the Counsel and continued thus:
“The … issue for determination is as follows:
Whether the applicant has been able to show that his rights as guaranteed by the Constitution has been breached and will continue to be breached by any or all the respondents as to entitle him to the reliefs and orders sought.
In summary the applicant seem to suggest that the 1st – 9th respondents have and in collaboration with the 10th and 11th respondents breached his rights so guaranteed as a result of which he was detained by the 10th and 11 respondents. On the other hand the 1st – 9th respondents have in summary showed that the applicant was suspended from the association referred owing to activities and he was operating illegally and subsequently charged to court. The record of proceeding of the Chief Magistrate Court Ibrahim Taiwo Road where the applicant and I other were standing trial is annexed to the counter affidavit, the matter is still pending. Exhibit B is a petition made against the applicant by Bakin Ruwa Chapter of the Association to the State Chairman of the Association is equally annexed to the counter affidavit. Exhibit C an invitation letter dated 27/10/07 is equally annexed to counter affidavit inviting the applicant to come and defend the petition made against him which he refused to attend and Exhibit D is a letter dated 10/11/07 written to the Chairman Kaduna South Local Government introducing the caretaker committee of the Association and indicating the suspension of the applicant from the Association. And Exhibit E dated 13/11/07 addressed to the Area Commander Metro Kaduna by Secretary of the Association State Chapter Kaduna. … this suit was instituted by the applicant on 27/11/07 while all these activities in Exhibits A-E were going on and the applicant did not challenge any of these Exhibits tendered and the activities contained therein. The applicant did not in any way equally explain the falsity contained in these documents annexed by the respondents. I therefore believe they all existed and it does (sic) not in any way constitute a breach of the applicant’s rights by any stretch of imagination. The applicant has therefore failed woefully to prove that he is entitled to any of the reliefs sought for lacking in proof. I rather take that this application is clearly an abuse of process. It is calculated into (sic) stalling further proceeding against the applicant under the guise of enforcement of fundamental right. I am satisfied with the averments of the applicant is (sic) indeed short of proof. I am therefore not in a position to grant any of the reliefs sought instead I hereby dismiss same for lacking in merit.” (see pages 131 to 132 of the records).
What is clear from this portion of the ruling is that the Lower Court considered the affidavit evidence of the Appellant and of the first to the ninth Respondents and it preferred the evidence of the Respondents in the counter affidavit because it was backed by documents and because neither the evidence nor the documents and their contents were challenged by the Appellant. It is indeed correct that the bulk of the facts deposed in counter affidavit of the first to the ninth Respondents and the contents of the documents attached thereto were not contested of challenged by the reply to counter affidavit of the Appellant.
It is trite that where parties present oral evidence and documentary evidence, the latter should be used as a hanger from which to assess the credibility of the oral evidence and a trial Court should lean in favour of the party with the documentary evidence – Bunge Vs The Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573, Egharevba Vs Osagie (2009) 18 NWLR (Pt 1173) 299, Cameroon Airlines Vs Otutuizu (2011) 4 NWLR (Pt.1238) 512.
It is also settled law that where facts deposed in a counter affidavit are not challenged or contested by a reply to the counter affidavit and such facts, on its face, will not lead to absurdity if accepted as being the truth of what they try to establish, a trial Court has a right to deem the facts as admitted and to be true and correct and to act on them – Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt.464) 15, Attorney General, Ondo State Vs Attorney General, Ekiti State (2001) 9-10 SC 116, Adams Vs Attorney General of the Federation (2006) 11 NWLR (Pt 991) 341, Dokubo-Asari Vs Federal Government of Nigeria (2007) 12 NWLR (Pt 1048) 320, First Bank of Nigeria Plc Vs Ndarake & Sons Nig Ltd (2009) 15 NWLR (Pt.1164) 406.
The Lower Court thus acted on right legal principles in assessing the affidavit evidence of the parties and as such its decision cannot be said to be perverse to warrant this Court interfering therewith.
It must be understood that fundamental rights of a citizen are not absolute – Ukaegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt.1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria supra and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.
Section 35 (1) (c) of the 1999 Constitution says that a person’s right to personal liberty can be breached upon a reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence. Section 41 (2) (a) sates that a person’s right to freedom of movement may be negated by imposing restrictions on his movement where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.
It is trite that every private individual has the right to report a crime or a suspected crime to the police – Isheno Vs Julius Berger (Nig) Plc (2008) 6 NWLR (Pt 1084) 582, Arab Contractors (O.A.O.) Nigeria Ltd Vs Umanah (2013) 4 NWLR (Pt.1344) 323. Section 4 of the Police Act, Cap 359, Laws of the Federation 1990 states the duties of the Police to include, amongst others, the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are charged. It is trite that once criminal allegations are made against a citizen, the Police has a constitutional and a statutory duty to investigate the allegations – Agbi Vs Ogbeh (2005) 8 NWLR (Pt.926) 40, Christlieb Plc Vs Majekodunmi (2008) 16 NWLR (Pt.1113) 324 and Onah Vs Okenwa (2010) 7 NWLR (Pt.1194) 512.
In carrying out these tasks, the Police is empowered under the provisions of section 24 of the Police Act to arrest without warrant any person whom any other person charges with having committed a felony or misdemeanor – Ibikunle Vs State (2007) 2 NWLR (Pt.1019) 546. Provided, as stated in section 27 of the Police Act, that a person so arrested without a warrant shall be taken before a Magistrate within a reasonable time or granted bail with or without sureties at the Police Station. Reading these provisions of the Police Act along with the provisions of sections 35 (1) (c), 41(2) (a) and 45 of the Constitution, it is clear that where it is shown that the Police acted reasonably within its powers under the Police Act in the investigation of a criminal complaint and with reasonable grounds to believe that a person had committed a criminal offence or is likely to commit one, the necessary curtailment of the fundamental rights of such a person cannot amount to a breach of that person’s fundamental rights – Onah Vs Okenwa (2010) 7 NWLR (Pt.1194) 512, Hassan Vs. Economic and Financial Crimes Commission (2014) 1 NWLR (Pt.1389) 607.
It was not in contest between the parties in this matter that the first to the ninth Respondents wrote a petition to the tenth and eleventh Respondents against the Appellant and that the acts complained of by the Appellant in his application before the Lower Court were in respect of things that happened in the course of the police investigations of the allegations contained in the petition. Counsel to the Appellant argued vigorously that the allegations against the Appellant in the petition of the first to the ninth Respondents to the tenth and eleventh Respondents, Exhibit E, were in respect of an intra-union dispute and civil in nature and not criminal and that the Police had no business getting involved in them. The law is that in determining whether the contents of a petition are civil or criminal in nature, the Court does not rely on the interpretation placed on the contents of the petition by the parties but on the contents of the petition itself – Nnamdi Azikiwe University Vs Nwafor (1999) 1 NWLR (Pt 585) 116.
The issues in this matter arose from the activities of the Road Transport Employers Association of Nigeria. In Exhibit E, the first to the ninth Respondents alleged anti-Union activities against the Appellant in its Bukin Ruwa Chapel and that the Kaduna State Executive of the Association dissolved the Executive Council of the Association in the Bakin Ruwa Chapel and appointed a Caretaker Committee, in its place, and that the Appellant was hindering the Caretaker Committee from taking over the Bakin Ruwa Chapel of the Association and operating and they thus appealed to the Police to wade into the matter to prevent a total collapse of law and order in the Bakin Ruwa Area. The prevention of law and order is part of the statutory duties of the Police. The tenth to the eleventh Respondents thus acted within their powers when they decided to investigate the allegations against the Appellant. The invitation of the Appellant to the Police Station and his detention for a few hours on each occasion and the inquiry into the accounts of the Bakin Ruwa Association under his management were normal and reasonable acts in the course of police investigations. They do not, and cannot, amount to an infringement of the fundamental rights of the Appellant.
The first to the ninth Respondents deposed in their counter affidavit that the Police concluded investigations into the allegations against the Appellant sometime around 27th of November 2007 and that a First Investigation Report was prepared to arraign the Appellant for offences before the Upper Customary Court, Kaduna on the 28th of November 2007 and that it was to stall the arraignment that the Appellant rushed to commence this action and obtained leave of the Lower Court which acted as a stay of proceedings of the criminal prosecution. These assertions were not challenged or contested by the Appellant or met by contrary assertions in the reply to counter affidavit and they will be deemed true and correct. It has been held that the Fundamental Rights provisions cannot be used, and should not be used, by a person to shield himself from criminal investigation and prosecution – Attorney General, Anambra State Vs Uba (2005) 15 NWLR (Pt.947) 44. The Lower Court was thus on very firm ground when it held that the application of the Appellant was an abuse of process and dismissed same.
It is pertinent to say that what the Appellant did in this matter was to misuse the machinery of the Court to stall inquiry into his activities which Police investigation had shown were criminal in nature. The Appellant apparently did this on the advice of and with the help of his firm of Solicitors, Messrs. Auta Maisamari & Co. The records of appeal show that it was the same law firm that filed a direct complaint against the first to the ninth Respondents in the Magistrate Court to stall the initial police investigations into the activities of the Appellant. This Court has had cause to state and restate that lawyers who misuse their knowledge of the law and legal procedure to stultify the process of administration of justice are a disappointment and constitute a clog to the progress of the legal profession. In its decision in Suit No CA/K/319/07 – Mbas Motel Limited Vs Wema Bank Plc delivered on the 22nd of March 2013, this Court stated that:
“Lawyers as operators of the administration of justice system owe a duty to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
‘We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.’
In Williams Vs Akintunde (1995) 3 NWLR (Pt 381) 101 at 115 B-C, Pats- Acholonu, JCA (as he then was) added thus:
“We all agree that the Attorney whose professional thoughts begin and end with his own private client is a pitiable mockery of what a great Lawyer really is and that only by taking part in the movements for the betterment of the Law of the profession can he practice Law in the grand manner, the only way it is worth practicing.”
It is hoped that Counsel will learn to rise above the primordial desires of achieving the best interests of their clients at all costs, even if it means abusing or destroying the administration of justice system.
In conclusion, this Court finds that this appeal is completely devoid of merits and it is hereby dismissed. The decision contained in the ruling of the High Court of Kaduna Sate in Suit No KDH/KAD/493M/07 delivered by Honorable Justice AbdulKadir A. Othman on the 29th of November, 2011 is hereby affirmed. The Respondents, having not participated in the appeal, are not entitled to any cost. These shall be the orders of the Court.
ABDU ABOKI, J.C.A.: I have had the advantage of reading the lead judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA. I agree with the reasons and conclusion reached therein that the appeal is devoid of merits.
I too affirmed the decision of the Lower Court in Suit No.KDH/KAD/493M/07 delivered by Hon. Justice Abdulkadir A. Othman on the 29th of November, 2011. I abide by the consequential orders as to costs.
ITA GEORGE MBABA, J.C.A.: I have had the privilege of seeing and reading, the lead judgment of my learned brother, H. A. O. ABIRU JCA, and I agree with his reasoning and conclusion on the issues, that the appeal lack merit and should be dismissed.
I too dismiss the appeal and abide by the consequential orders therein.
Appearances
E. N. Ogbu with S. A. AutaFor Appellant
AND
No appearanceFor Respondent
