ENIANG EDEM EKPO ENE & ORS v. ELDER BASSEY A. BASSEY & ORS (2014)

ENIANG EDEM EKPO ENE & ORS v. ELDER BASSEY A. BASSEY & ORS

(2014)LCN/7715(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of June, 2014

CA/C/100/2011

RATIO

POLICE: POWER AND DUTY OF THE POLICE; THE POWER OF THE POLICE TO ARREST AND DETAIN PERSONS UPON REASONABLE SUSPICION AND THE DUTY OF THE POLICE TO PROVIDE BAIL FOR DETAINED CITIZENS

The Police are statutorily empowered by Section 35(c) of the 1999 Constitution of Nigeria and Section 24 of the Police Act to arrest and detain persons upon reasonable suspicion let alone upon receipt of a criminal complaint made officially as in the instant case. Until and unless a substantial surety for the bail of the applicant or detainee is provided as per Section 27 of the Police Act, there exist no breach of fundamental right of the applicants or detainee. The Supreme Court in the case of Ekpu vs. Attorney-General of the Federation (1998) 1 HRLRA (Human Rights Law Report of Africa) held thus:
“The law is that the police should provide bail for a detained citizen but they are not further enjoined to help the citizen find the person to take him on bail. Thus if the police offer an arrested person bail, there is no further obligation on them beyond the simple offer. They have no duty to help the person find a surety or meet the conditions of bail, and any further stay in detention by the person until he meets the conditions will not be unlawful. In this case, since the respondents offered bail to the applicants on April 10, 1994, then their continued detention after that date cannot be said to be unlawful.” per. UZO I. NDUKWE-ANYANWU. J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO LIMIT ITSELF TO THE CIRCUMSTANCES OF A PARTICULAR CASE AND WHETHER THE COURT CANNOT BE MOVED TO AN ORDER OF PERPETUAL INJUNCTION OR BLANKET INJUNCTION
Care must be taken whilst making orders affecting rights of parties in perpetuity. It would be recalled that the genesis of this suit is a dispute over land. This order would appear as if the ownership of the land has been determined already. This cannot be so as the question of title to land has not been litigated.
“A Court must as a rule limit itself to the circumstances of a particular case or a case placed before it. Thus a Court cannot be moved to an order of perpetual injunction or blanket injunction against any future arrest or detention”. Jimoh vs. Attorney-General of the Federation. per. UZO I. NDUKWE-ANYANWU. J.C.A.

COURT: DUTY OF THE COURT; WHETHER IT IS THE DUTY OF THE COURT TO MAKE INVESTIGATION AFTER HEARING A CASE
He who asserts must Prove.
“The function of the Court is to decide between parties on the basis of the evidence placed before it. It is not the duty of the Court to make investigations after hearing a case.”
See Odock vs. State (2007) 7 NWLR (Pt.1033) page 369; Nwankwo vs. State (1985) 6 NCLR page 228. per. UZO I. NDUKWE-ANYANWU. J.C.A.

DAMAGES: GENERAL DAMAGES; GENERAL DAMAGES FOR AN UNLAWFUL ARREST AND DETENTION

The second issue is that of the general damages.
“If a person is unlawfully arrested or detained there is a provision for compensation for general damages. Also there can also be a public apology by the appropriate authority or person. There is action in Tort for trespass to the person. But if one is arrested or detained, upon reasonable suspicion of having committed a criminal offence it would not be applicable.”See Abdul Yari Lafia vs. S.S.S. (2006); Thisday 21st March, 2006 page 6 per. UZO I. NDUKWE-ANYANWU. J.C.A.

Before Their Lordships

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

CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

1. ENIANG EDEM EKPO ENE
2. DSP WALE (alias SUPOL EGO)
3. COMMISSIONER OF POLICE FORCE, C.I.D., ALAGBON CLOSEAppellant(s)

AND

1. ELDER BASSEY A. BASSEY
2. CHIEF EYO B. COBHAM
3. CHIEF ANTIGHA ITA COBHAMRespondent(s)

UZO I. NDUKWE-ANYANWU. J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 9th February, 2011. In it the learned trial Judge granted the Applicants the following reliefs:
“1. It is declared that the threatened arrest of the 2nd and 3rd Applicants by the Police from the Force CID Annex, Alagbon Close, Ikoyi, Lagos is in breach of their constitutional rights provision and that such arrest will be illegal, unlawful and therefore null and void.
2. It is declared that even if any offence had been committed, the applicants are entitled to a trial within a reasonable time and that any threatened arrest of the Applicants is unlawful.
3. It is declared that the Applicants are entitled to move freely throughout Nigeria and to reside in any part thereof without inhibition or restriction of their liberty.
4. The Respondents are hereby restrained by order of injunction from further arrest or threat or detention without trial in connection or in relation to the subject matter of the instant proceedings.
5. That 1st Applicant is awarded N0.5m (half million Naira) general damages against 1st Respondent as reparation of his unwarranted and unjustifiable arrest and detention at the instigation and orchestration of the 1st Respondent, with costs of N50,000.00 inclusive of out-of-pocket expenses.”

Being dissatisfied, the Respondents filed this appeal as Appellants.
The facts of this appeal is that, the Respondents as Applicants in the Court below had complained that the Appellants as Respondents had infringed on the fundamental rights of the 1st Applicant/Respondent. The 1st Appellant had alleged that the Respondents had trespassed on his property in issue, the main subject matter of this appeal. As a result of this alleged trespass, the 1st Appellant wrote a petition (Exhibit “B”) on 9th February, 2010 to the Commissioner of Police, Cross River State complaining of invocation of juju, malicious damage and forcible entry against the Applicants/Respondents in this appeal. The 1st Respondent was thereafter arrested and later released on bail with an instruction to the 2nd and 3rd Respondents to report to the police. Without the 2nd and 3rd Respondents reporting to the police, they wrote a counter petition against the 1st Appellant to Zone 6 Police Command, Calabar.
The 1st Appellant, subsequently upon this counter petition, wrote another petition to the D.I.G., “D” Department, Force Headquarters, Abuja dated 18th February, 2010 (Exhibit “C”). Consequently upon this second petition, the 1st Appellant was transferred together with the file to “D” Department, Force Headquarters, Alagbon – Lagos and was detained and later released on police bail.

The Respondents were unhappy with the arrest and detention of the 1st Applicant/Respondent. They, then filed a process under the Fundamental Rights Enforcement Procedure Rules, 2009, challenging the arrest and detention of the 1st Respondent.
The 1st Respondent as Applicant filed an affidavit of 8 paragraphs. The 1st Applicant as 1st Respondent filed a counter-affidavit of 20 paragraphs. There were several other affidavits filed by both parties in furtherance of their case. At the end, the trial Judge gave his considered judgment and granted the 1st Respondent’s reliefs sought.

The Appellants were aggrieved hence this appeal. The Appellants filed their Appellants’ brief on 10th February, 2012. They articulated 6 issues from 3 grounds of appeal as follows:
“1. Whether there was any incident or altercation or quarrel or misunderstanding between the Appellants and the Respondents arising from each party’s claim of land (or land disputes)”
2. Whether the Appellants did file counter affidavit against the affidavit of the Respondents and stating his case?
3. Whether a complaint from Appellant (retired police officer) amount to an infringement of the Fundamental Right of the Respondents.
4. Whether Police CID Alagbon Lagos rightly come into investigating a case against the Respondents when Appellants’ petition was sent to Deputy Inspector General of Police, Abuja?
5. Whether the judgment of the learned trial Judge against the Appellants is based on bias leading to perverse judgment and miscarriage of justice.
6. Whether in all, the award of N500,000.00 as damages and N50,000.00 as cost in favour of Respondents can be justified.”

Upon receipt of the Appellants’ brief, the Respondents filed their brief on 2nd of April, 2012 and articulated 2 issues for determination as follows:
“1. Whether the learned trial Judge properly evaluated the affidavit evidence filed by the parties before arriving at a finding that there was a breach on the fundamental rights of the Respondents.
2. Whether the award of N500,000.00 (five hundred thousand Naira) and cost of N50,000.00 (fifty thousand Naira) against the 1st Respondent as reparation for unjustifiable arrest and detention instigated by him was justifiable.”

The 2 issues captures the essence of this appeal. I intend to use same as opposed to the 6 issues articulated by the Appellants.

ISSUE ONE:
Learned Counsel for the Appellants argued that the main conflict in this appeal is the land dispute between the parties. The trial Judge did not totally appreciate, the 7th relief sought by the Respondents and readily granted it. Counsel argued that the grant of the 7th relief led to a substantial miscarriage of justice. Counsel referred the Court to the counter-affidavit of the Appellants and stated that the averments contained thereof refuted the averments in the Respondents’ affidavit.

Counsel argued that the complaint in the petition of the 1st Appellant did not amount to an infringement of the fundamental rights of the Respondents.
Learned Counsel urged the Court to hold that the 1st Appellant did not do more than write a petition against the Respondents. The Appellants did not do more than that and, therefore, did not infringe on the 1st Respondent’s fundamental rights. Counsel, therefore, reiterated that the award of N500,000.00 in general damages has no basis whatsoever. See Shugaba vs. Federal Ministry of Internal Affairs (1981) NCLIP page 459.

Counsel submitted that the 2 petitions written by the 1st Appellant did not breach the fundamental rights of the 1st Respondent even though the trial Judge held otherwise when he held thus:
“The heart of the matter is therefore not that of a complaint to the police simpliciter. Rather, it is a clear situation of a deliberately malicious complaint by an ex-retired police officer intended to over reach the Applicants, and to punish overwhelm and intimidate his fellow citizens through the instrumentality of the police, and to thereby breach the Applicants’ fundamental rights to personal liberty and fair hearing. In the event I find and hold that the authorities cited in support of issue are inapplicable and irrelevant to the instant proceedings. These issues are accordingly resolved in favour of the Applicants.”

Counsel argued that both petitions (Exhibit “B” & “C”) were approved by the appropriate authority and sent for investigation. The 2nd petition sent to D.I.G., Abuja was approved and directed to its annex office Alagbon in Lagos to investigate. Inspite of these 2 petitions by the 1st Appellant, 1st Respondent also wrote his own petition to Zone 6 Police Command, Calabar.
Counsel argued further that 2nd and 3rd Appellants properly came into this matter when the 2nd petition was forwarded to them for investigation in Lagos.

Counsel submitted that the learned trial Judge was already biased in favour of the Respondents. The learned trial Judge relied very heavily on the Respondents’ statement, verifying affidavit in support of the Respondents’ application in reaching his conclusion thereby occasioning a miscarriage of justice. The learned Counsel drew the attention of the Court to the meaning of an unfair trial.
“Unfairness of trial comes in two broad categories. One is procedural unfairness that arises where the Court or tribunal adopts a procedure which does not ensure that one or both of the parties are not put at a disadvantage. The commonest forms are where a party had been deprived of an opportunity of a hearing or where there is no procedural equality between the parties. Substantive unfairness arises where the judge approaches his adjudicative function with a mind closed or a mind influenced by considerations other than the facts in evidence, or is influenced by factors extraneous to his proper role as an umpire…”

Counsel argued that both parties had exercised their constitutional rights and petitioned to the various Police Departments. Counsel referred the Court to his averment in his counter-affidavit:
“Upon Applicants petition to Zone 6, Calabar intended to suppress my complaint and make me a suspect, I proceeded to forward a petition to the Deputy Inspector General of Police, “D” Department Force Headquarters, Abuja dated 18th February, 2010 of conspiracy, threat to life, malicious damage, and undue use of Zone 6 Police influence against Applicants as per copy attached as Exhibit “C”.”

Counsel, therefore, wondered where the Appellants had gone wrong to have N500,000.00 general damages awarded against them. Bias was manifest in the trial Judge’s assessment and evaluation of evidence when he held that, the 1st Respondent used his influence being an ex-police officer to orchestrate the treatment meted out on the 1st Respondent.
The trial Judge also held as follows:
“Sadly I find and hold, that the counter affidavit of the Respondents does not in anywhere controvert or refute directly front, or otherwise challenge or pretend to challenge or controvert the simple and unambiguous averments contained in paragraphs 1, 9-18 of the Applicants’ Statements or paragraphs 1-8 of the Applicants verifying affidavit in support of their application, in the instant case. The legal consequence is that they are deemed admitted or established.”

The trial Judge had also shown bias when he kept emphasizing on the age of the 1st Respondent thus:
“Was it fair or part of police duty to detain a 74 year old man in their cell when he came in answer to their so called invitation letter? After obtaining the statement of a 74 year old man, was it not obvious to the 2nd and 3rd Respondents that it was a simple dispute over ownership of property that ought to be referred and the parties advised to seek redress in a civilized manner and allow Police to perform more or attend to more important security issues.”

Counsel stated that it was out of bias that the trial Judge had a blind eye to the following:
“(1) It is a lie that Respondent are principal members of Upper Cobham Clan hence they could not mention the name of their ancestral parents but rather used the word forebears.
(2) It is a lie that the Respondents have landed property known and called the Upper Cobham Beach Factor in Marina and have been exercising all rights of ownership.
(3) It is a lie that the Respondent was still being detained as at 16th March, 2010 when exparte motion was filed seeking motion for leave for enforcement of fundamental rights.
(4) It is a lie that Appellant acting through his agents went to land in dispute and poured some fetish substance and carried out some invocations to eliminate Respondents.
(5) It is a lie that Respondents planned to report a case against Applicants as can be seen that no date of occurrence of the incident alleged was mentioned in their entire affidavit.
(6) It is a lie that Applicant outsmarted the Respondents to report his case to State C.I.D. as Applicants petition dated 9th of February, 2010 was written after two days of the occurrence of the incident and Applicants petition was directed to Commissioner of Police, not State C.I.D. as alleged by Respondents. The impression created of rushing to report at C.I.D. by Applicant in paragraph 14 of Statement as if the report was made the same day of the incident is a mere ruse.
(7) It is a lie that Applicants petitions are false.
(8) It is a lie that the Police Alagbon Close, Lagos did not properly and officially come into the case.
(9) It is a lie that the Applicants used his ex-police status to or “connections” to “instigate” Police against Respondents as police were merely carrying out instructions from a superior officer to investigate a criminal complaint.”

It is also true that it was the trial Judge that kept on stressing the point that the 1st Appellant was a retired Police officer in the following words:
“…he being a retired policeman, decided to use his “friends” in the police to arrest, intimidate and detain the Applicants whereby the 1st Applicant was arrested and had been so detained in the police cell at Alagbon Close, Lagos. The purported offence for which the 1st Applicant was arrested is alleged to have been committed in Calabar and therefore, his being taken to Lagos is just to show that the 1st Respondent has some muscle to flex.”

Counsel, therefore, urged the Court to resolve this issue in favour of the Appellants and hold that the Court was biased, hence its decision.
In response, the learned Counsel submitted that the Respondents never referred or asked for a declaration of title to land. The Appellants’ Counsel was, therefore, wrong when he stated that “the bottom line therefore of the conflict between the contesting parties is the land in dispute.”

Counsel argued that the inclusion of a right of possession to the land was only to show the history of how the fundamental rights of the 1st Respondent in this appeal came to be breached.
Counsel submitted further that granting of the 7th relief was not a miscarriage of justice. The grant of this relief followed the findings by the trial Court, that the 1st Respondent’s fundamental human rights were breached by the Appellants.

Counsel also submitted that the trial Court evaluated the evidence properly. See Aregbesola vs. Oyinlola (2011) 9 NWLR (Pt.1253) page 458. Counsel argued that the Appellants have not shown the improper evaluation of evidence by the trial Judge. See also Amadu vs. Yantumaki (2011) 9 NWLR (Pt.1251) page 161.

Counsel submitted that the Appellants did not challenge the affidavit evidence of the Respondents and the trial Judge has this to say:
“…If a party wishes to challenge an evidence given by affidavit at a stage or in a proceeding, where no oral evidence is available, then he must challenge that evidence frontally in a counter-affidavit. If he fails to do so, then the affidavit evidence must be accepted as true: Alagbe vs. Abimbola (1978) 2 SC 39, 40, Nwede vs. State (1985) 3 NWLR (Pt.13) 44; Uzoukwu & Ors. vs. Ezenonu II & Ors. (1991) 6 NWLR (Pt.200) 708.”

Also the trial Judge went ahead to hold that the Appellants “did not in anywhere controvert or refute directly, point or otherwise challenge or pretend to challenge or controvert the simple and unambiguous averments contained in the 1st Respondent’s affidavits”.

Counsel, therefore, urged the Court to hold that the trial Judge properly evaluated the affidavit evidence placed before him before arriving at his findings and conclusions. Counsel urged the Court not to disturb these findings as they are not perverse. Counsel, therefore, urged the Court to resolve this issue in favour of the Respondents.

The Respondents in this appeal had filed an application in the Court below to enforce their fundamental rights as enshrined in the 1999 Constitution. The 1st Respondent alleged that the 1st Appellant breached his fundamental rights as he instigated his fellow police officers to arrest and detain him unduly. The 1st Appellant is a retired police officer.
The 1st Respondent alleged that the 1st Appellant instigated the police to arrest and detain him on a purported charge of conspiracy and malicious damage to his property charge of conspiracy and malicious damage to his property. Also alleged is that the 1st Appellant claimed that a property which had been under the possession and ownership of the Upper Cobham family, Calabar belonged to his great grandfather. This is the allegation levied by 1st Respondent against the 1st Appellant.

The 1st Appellant in his case accepted that he wrote a first petition (Exhibit “B”) on the 9th February, 2010 to the Commissioner of Police, Cross River State. In that petition, the 1st Appellant complained of invocation of juju, malicious damage and forcible entry against the Respondents. The 1st Appellant also averred that the 1st Respondent was arrested by the police. He identified the 1st Respondent and thereafter he was released on police bail. The 1st Respondent was also given police invitation letter to deliver to the 2nd and 3rd Respondents to report to the Police State C.I.D. The 2nd and 3rd Respondents did not honour this invitation rather they wrote a counter-petition to Zone 6 Police Command, Calabar against the 1st Appellant. The 1st Appellant saw the Respondents’ counter-petition as intended to suppress his own complaint. The 1st Appellant thereafter proceeded to forward a petition to the D.I.G. of Police, “D” Department Force Headquarters, Abuja (Exhibit “C”) dated 18th February, 2010. The 1st Appellant accused the Respondents of conspiracy, threat to life, malicious damages, and undue use of Zone 6 Police influence against him.

The Respondents had alleged that the 1st Appellant is using his influence as a retired officer of the police to instigate the arrest and detention of the 1st Respondent. It is on record that the 1st Appellant wrote a 1st petition and was forced to write a 2nd one when the Respondents seemed to have petitioned Zone 6 Command, Cross River State, Calabar. If the 1st Appellant was that powerful, he wouldn’t have had to write a 2nd petition to the D.I.G. He was fearful that the Respondents had a lot of influence detrimental to his own complaint.

The 1st Appellant in his counter-affidavit gave the reasons and the necessity of writing a 2nd petition (Exhibit “C”). The 1st Appellant was obviously fearful of the antics of the Respondents. The 1st Appellant had alleged that juju was planted on the disputed land to harm him. This juju was exhumed and the photographs formed part of his exhibits.
Also exhibited was a photograph of his damaged building.

The Respondents never controverted these assertions. The 1st Appellant could not have planted the juju himself nor damaged his building. The 1st Appellant was acting within his rights as a citizen to petition the police on a perceived threat to his life and property as evidenced by the exhibits attached to his counter-affidavit. There was no counter to the 1st Appellant’s averment to the threat to his life and the destruction of his property. The 1st Appellant exercised his inalienable rights to report a case of malicious damage and threat to life against the Respondents. The Respondents did not deny these allegations in any of their affidavits.
The Respondents turned round and accused the 1st Appellant of instigating his arrest and detention in police custody. The Respondents proffered no proof of the fact that the 1st Appellant instigated his arrest and detention. What were the things the 1st Appellant did in furtherance of the alleged instigation?

The 1st Appellant laid his complaint and the 1st Respondent was arrested and detained for an unknown number of days. The 1st Respondent could not disclose the number of days he was detained. However, the 2nd and 3rd Appellants in their counter-affidavit of 18th June, 2010 averred as follows:
“8. That the 1st Applicant was the only one that honoured the invitation at the office of the 2nd and 3rd Respondents on the 8th March, 2010.
9. That the statement of the 1st Applicant was thereby obtained in relation to the matter and it is hereby attached and marked as Exhibit “NPF5”.
10. That the 1st Applicant was unable to provide an adequate surety for his release until the 12th March, 2010, when upon the application for his bail by one Ekpenyong Emmanuel he was there and then granted bail. (A copy of the bail bond is hereby attached and marked as Exhibit “NPF6″).”

This evidence of the 2nd and 3rd Appellants was not controverted or denied in any of the Respondents’ affidavit. If bail was granted a person after his interrogation and he fails to meet up with the conditions of bail, that is his own problem.
The 1st Respondent has not shown that the bail conditions were unreasonable. The police have not been given unbridled powers to deprive citizens of their liberty while the case against them is still being investigated. See Johnson vs. Lufadeju (2002) 8 NWLR (Pt.768) page 203.
However, in this case, the 2nd and 3rd Appellants averred that the 1st Respondent appeared on the 8th day of March, 2010 and was granted bail. Unfortunately, the 1st Respondent did not find a reasonable surety until the 12th day of March, 2010. A period of 4 days due to no fault of the Appellants.
The Respondents were arrested on the grounds that a crime had been committed.
“An arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for the breach of his fundamental rights.”
Okaro vs. G.O.P. & Anor. (2001) 1 CHR page 407.

I agree that “the burden of proving the legality or constitutionality or the arrest and or detention of a person is of the arresting authority.” Therefore, it is the Appellants’ duty to justify the arrest of the Respondents.
The Appellants have admitted the arrest and detention of the 1st Respondent. The onus is on them to prove that such arrest or detention was lawful. Iyere vs. Doru (1988) 5 NWLR (Pt.44) page 665; Abiola vs. Abacha (1998) 1 HRLRA page 453; Jimoh vs. Attorney-General of the Federation (1998) 1 HRLRA page 513.
The 1st Appellant in his counter-affidavit averred that he wrote 2 petitions because the Respondents had planted juju and destroyed or damaged his property. He made an honest complaint. There were exhibits of the exhumed juju and photographs of the damaged building. The onus of prove of a breach of fundamental rights was on the Respondents who are bound to prove the existence of those sets of facts which curtailed or threatened to curtail their right to freedom of movement. See Fajemirokun vs. CBN (2009) 39 NSQR 1 at page 32:
“Citizens (including the 1st Respondent herein) have the choice to exercise their legal right of placing their grievances before the police, being custodian of law and order, and that is where their own stops whatever action the police takes thereafter is not solely their responsibility and they are not solely liable. If at all there was arrest and detention, it was not done by the Respondents, but the police who had the authority to do so.”

The Respondents in their affidavits have not shown that the arrest and detention of the 1st Respondent was unlawful. The only evidence by the Respondents was that it was the 1st Appellant that instigated the arrest and detention of 1st Respondent. Okurukat vs. Nicodemus (2001) 4 NWLR (Pt.654) page 663 where Ogebe, JCA (as he then was) held:
“In other to succeed in an action for breach of fundamental rights in relation to arrest where it is inferred to be unlawfully, the arrestee must prove to the smallest detail that the arrest or intended arrest was unlawful in the sense that the laid down procedure was not followed by the person effecting the arrest.” See Ezeadukwe vs. Maduka (supra) 635 at 642.
The 2nd and 3rd Respondents agreed that they arrested the 1st Respondent in furtherance of their investigation. That the 1st Respondent was granted bail but still remained in custody because he couldn’t produce a suitable surety.

The length of time or number of days is appreciable, because the 1st Respondent lives in Calabar and he was arrested in Lagos. The 1st Respondent didn’t controvert this statement by the 2nd and 3rd Respondents in his affidavit. It, therefore, means that the averments of the 2nd and 3rd Appellants stands as the true state of the facts.

The 1st Appellant accused the trial Judge of bias in the manner he evaluated the evidence placed before him as to what, the 1st Appellant did to instigate the 1st Respondent’s arrest and detention. Other than writing the 2 petitions (Exhibits “B” & “C”) there was no other evidence as to what the 1st Appellant did to instigate the 2nd and 3rd Respondents into action. The trial Judge failed to advert his mind to the fact that the 1st Respondent was offered bail and that he could not find a suitable surety to take him on bail.
“There is no agency relationship between a private citizen and a police officer in the performance of his police duties, under Section 4 of the Police Act or any other enabling law to the same effect.”
See Ezeadukwa vs. Maduka (supra).

In the instant case there was nothing like that in evidence. The 1st Respondent did not complain of the terms or conditions of the bail or that the conditions for bail was unreasonable. Nothing like that was alleged by the 1st Respondent. Can it then be said that the 2nd and 3rd Appellants held the 1st Respondent longer than was necessary. The answer to that is a resounding No! See Iyere vs. Doru (supra); Abiola vs. Abacha (supra); Jimoh vs. Attorney-General of the Federation (supra).

The learned trial Judge harped on the fact that the 1st Respondent was an old man, over 70 years. Age is not a factor when considering bail for a suspect. It can only be a persuasive factor to mellow the terms and conditions for bail if the likelihood to abscond is more remote. The learned trial Judge granted the Respondents the 7th relief prayed for. That is:
“4. The Respondents are hereby restrained by order of injunction from further arrest or threat or detention without trial in connection or in relation to the subject matter of the instant proceedings.”

This particular order cannot be made in this present case as it appears that the Respondents had been given a right to do whatsoever with the land in dispute.
Care must be taken whilst making orders affecting rights of parties in perpetuity. It would be recalled that the genesis of this suit is a dispute over land. This order would appear as if the ownership of the land has been determined already. This cannot be so as the question of title to land has not been litigated.
“A Court must as a rule limit itself to the circumstances of a particular case or a case placed before it. Thus a Court cannot be moved to an order of perpetual injunction or blanket injunction against any future arrest or detention”.
Jimoh vs. Attorney-General of the Federation.

I, therefore, hold that the learned trial Judge must have been carried away by the thought that the 1st Appellant is a retired Police officer and, therefore, influenced the arrest and detention of the 1st Respondent. That is not so, the arrest and detention of the 1st Respondent was done during the investigation of the subject of their petitions. I cannot see any evidence of the instigation alleged by the Respondents.
He who asserts must Prove.
“The function of the Court is to decide between parties on the basis of the evidence placed before it. It is not the duty of the Court to make investigations after hearing a case.”
See Odock vs. State (2007) 7 NWLR (Pt.1033) page 369; Nwankwo vs. State (1985) 6 NCLR page 228.
It, therefore, follows that the allegation of instigation by the Respondents against the 1st Appellant was unsubstantiated and unproved.
This issue is for the above reasons resolved in favour of the Appellants.

In the instant case the arrest and detention was proved to be lawful and, therefore, the Respondents have no right to be compensated. It was not at the instigation of the 1st Appellant. Rather the arrest and detention was done in the course of the 2nd and 3rd Appellants’ investigation of the petition of both parties.
This issue also is resolved in favour of the Appellants.
Both issues have been resolved in favour of the Appellants.
This appeal is meritorious and, therefore, allowed. The judgment and orders of the trial Judge are hereby set aside.
I make no order as to cost. Each party to bear its respective cost.

CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Uzo I. Ndukwe-Anyanwu JCA, obliged me with the draft of the leading judgment just delivered now. His Lordship has, admirably, resolved all the issues put forward for the determination of this appeal.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in draft, the judgment of my learned brother, Ndukwe-Anyanwu JCA, allowing this appeal. I completely agree with the reasoning and the conclusion reached, and have nothing further to add.
I abide by the Orders made in the lead judgment.

Appearances

Chief C. OkoiFor Appellant

AND

B. Offiong with him A. EyoFor Respondent