CHIEF MFON JOHN UMOAKAN v. CHIEF ITOHOWO OKON IKPAISONG & ORS
(2016)LCN/8392(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/C/53/2012
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CHIEF MFON JOHN UMOAKAN – Appellant(s)
AND
1. CHIEF ITOHOWO OKON IKPAISONG
2. OTOABASI UDO WILSON
3. UKEME DANIEL UDOUDO
4. AKANINYENE S. PAUL
5. NKOPUDUK MARK NKOKO
6. CHIEF HEZEKIAH UDO EKANEM
7. NKOEKUT OKON IKPAISONG
8. ELDER JAMES UDO ANANA
9. UDO EFFIONG DICKSON
(Alias Lolo mi)
10. ENGR. NSEOBONG AKARA UDO – Respondent(s)
RATIO
POLICE: MALICIOUS COMPLAINT; THE CAUSE OF ACTION FOR THE TRIAL COURT WHERE THE COMPLAINT TO THE POLICE IS FOUND TO BE MALICIOUS
Where the complaint to the police is found to be baseless, malicious and unfounded, the trial Court is at liberty to label such an unlawful conduct as a Witch Hunt. In such a situation, the Appellant should be damnified in damages. See SPDC (NIG) LTD v. OLAREWAJU (2002) 16 NWLR (Pt. 792) at 72.
The Appellant’s malicious complaint to the police was senseless and malicious construed to give a semblance of legality to his mischievous conduct. The arrest, restrain of the liberty of the Respondents was illegal and unlawful, and the trial Court was right to so hold. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
DAMAGES: DAMAGES FOR BREACH OF FUNDAMENTAL HUMAN RIGHT
Where as in the present case, the Appellant failed to show justification for breaching the fundamental rights of the Respondents, monetary compensation could be claimed just as the Respondents in this case have done. The Learned Trial Judge was well within the law to have awarded damages. See RANSOME KUTI v. A.G. OF THE FEDERATION (2001) FWLR (Pt. 80) at 1645. It should also be noted that even where there is no physical injury, damages could be awarded for injury to the dignity of the person or for the discomfort or inconvenience done to the Respondents. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant was the 1st Defendant at the trial Court in a Fundamental Right Enforcement proceeding filed by the Respondents herein as Applicants. Judgment was entered against the Appellant in favour of the Respondents by P. P. Idiong, J, of the Ukanafun Division of the Akwa Ibom State High Court in Suit No. HUK/MISC/21/2010 on the 13/6/2011.
Aggrieved by that decision, the Appellant has appealed against the said judgment.
The Respondents as Applicants at the trial Court sought the following reliefs:
“(a) An Order restraining the Respondents, servants, Agents, Privies, however, from harassing, intimidating, hunting for, inviting, arresting and detaining the Applicants on the pre of interviews, investigation or other unlawful acts of incarcerations.
?(b) A Declaration that the arrest and detention of the 1st, 2nd, 4th, 9th Applicants, the continuous hunt for the Applicants for arrest and detention, harassment, intimidation and humiliation/embarrassment by the 2nd – 4th Respondents at the behest of the 1st Respondent, constitute gross violation
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of the due process of law and amounts to infringement of the Applicants’ Fundamental Rights enshrined in Sections 35, 36, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999.
(ii) It is unlawful to use the machinery of the Nigeria Police Force in the aforesaid manner against the Applicants who are innocent and law abiding citizens and have not committed any crime.
The conduct of the Respondents is, in the circumstance, arbitrary, illegal, harsh, oppressive, vindictive, unlawful, unconstitutional and therefore void.
(c) N1,000,000 (One Million Naira) in favour of each of the Applicants in the footing of exemplary/aggravated damages against the Respondents jointly and/or severally.”
The Respondents in their grounds for bringing the Application averred that the Appellant on or about the 5th day of April, 2010 trumped-up charges before the police against the 1st – 9th Respondents consequent upon a chieftaincy tussle in their community, Ikot Inyang Abia and against the 10th Respondent due to the Appellant’s interest in the position of Local Government Community Liaison Officer (C.L.O). They claimed that based on the above,
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they were arrested, detained, hunted, intimidated and humiliated.
The Appellant on the other hand, in his defence to the action stated in his affidavit in opposition that his action was based on apprehension for his life and security due to incessant attempts on his life and threats by the Respondents and their Agents. He then resorted to the police as he is legally entitled to.
Consequent upon the foregoing, the Respondents as Applicants approached the Ukanafun Division of the High Court of Akwa Ibom State for the protection of their Fundamental Rights which was breached by the Appellant. The trial Judge in a considered judgment agreed that the Respondents’ fundamental rights have been breached and proceeded to grant their prayers and awarded N300, 000 (Three Hundred Thousand Naira) to the Applicants jointly and severally as compensation for the infringement of their fundamental rights. This appeal is predicated on the said judgment.
The Appellant’s counsel Charles A. Efiong Esq, distilled three issues for determination thus:
“(1) Whether or not the trial Court was biased in favour of the Respondents against the Appellant in the trial.
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(2) Whether the trial Court properly evaluated the evidence before it in arriving at a finding that the Respondent was not under any threat when he made a report to the 4th Respondent in the Court below.
(3) Whether the trial Court was right in holding the Appellant liable for hunting, harassing, intimidating, humiliating and embarrassing the Respondents when there was no evidence to that effect.”
The Respondents’ counsel Idongesit Umoh Esq adopted the three issues as distilled by counsel for the Appellant.
The issues raised by both counsel in my view, can conveniently be compressed into one straight forward issue of narrow compass as follows:
“Whether on the facts and circumstances of this case, the trial Court was right in holding the Appellant liable for the infringement of the Fundamental Rights of the Respondents and proceeded to award damages against him.”
In summary, counsel for the Appellant on the issues he formulated in his brief, contended that in view of the bias on the part of the Learned trial Judge, he failed to make judicial and judicious appraisal of facts before him.
?Counsel argued that the trial Judge ignored
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and expunged material evidence before him, acted on none existent evidence, fished for and relied on evidence not before the Court.
He submitted that the evidence before the trial Court on a proper appraisal would indicate that the Appellant being in reasonable apprehension of the security of his life made a report to constituted authority who performed their duty by investigating same within the bounds of the Law.
Counsel posited that the action of the Appellant complained about is his complaint to the police. The action against the Appellant should terminate at the consideration of the said complaint and argued that the Appellant cannot be put into accounting for any acts which the trial Judge should have found to be perpetrated by another party in the absence of any evidence linking the Appellant to such acts.
He therefore prayed this Court to allow this appeal, set aside the decision and orders of the trial Court and direct the Commissioner of Police Akwa Ibom State to investigate the matter which the Appellant reported to the police.
In his reply, learned counsel for the Respondents contended that there was no threat whatsoever on
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the Appellant’s life to warrant the arrest, detention, humiliation and threats of further arrests by the police who acted on the basis of the unsubstantiated, false and malicious complaint. That none of the Respondents has a Mercedes Benz said to have been used during the alleged offence and none of them has the capacity to hire a Mercedes Benz and none of the Respondents has a Gun or firearm. Counsel argued that the complaint was simply the animosity over the Appellant’s quest for the CLO position or sponsorship of the village Headship stool.
Counsel lifted some portions of the judgment of the trial Court and argued that the judgment in no way showed bias on the side of the trial Judge, that he properly evaluated evidence before him and was right in holding that the arrest and detention of the Respondents was unlawful.
?In determining this appeal, it is important to go back to the history of this case. I had earlier in this judgment mentioned that the Appellant and Respondents belong to the same community, Ikot Inyang Abia. It is on record that they have had tussle over Chieftaincy in their said community and the Appellant and the Respondents belong
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to different factions as well as the Appellant’s interest in the position of Local Government Community Liaison Officer (C.L.O).
Looking at some of the affidavit in support of the Appellant’s case at the trial Court, it was obvious that it was based on hearsay. (See pages 271-275 of the Record). The person who told the Appellant about the incident was a Niece to Obong Asuquo Akpan. This same lady did not deem it fit to make statement to the police.
Again, the Appellant who stated that on the 12/11/2009 there was an attempt on his life said it was one Mfon Akpan Abara who saw and reported the incident to him. Paragraph 2-5 of the affidavit of the said Mfon Akpan Abara stated in summary that he was riding a motorcycle along Ekparakwa – Aba Road when he saw a Mercedes Benz car parked. What I find unusual was that this same Mfon Akpan Abara did not make any statement to the police.
?Having failed to report this incident to the police, as serious as it was painted, the subsequent affidavit in respect of the same incident which the so called eye witnesses saw but never deemed fit to report to the police, is in my humble view an afterthought and
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therefore of no moment.
It is on record that the Appellant at the trial Court had instituted suit No. HUK/MISC/26/2009 against the Respondents. The Court granted a stay of action against the Respondents. The same Appellant based on a fresh complaint to the police on the same subject matter, caused the Respondents to be arrested again.
Where the complaint to the police is found to be baseless, malicious and unfounded, the trial Court is at liberty to label such an unlawful conduct as a Witch Hunt. In such a situation, the Appellant should be damnified in damages. See SPDC (NIG) LTD v. OLAREWAJU (2002) 16 NWLR (Pt. 792) at 72.
The Appellant’s malicious complaint to the police was senseless and malicious construed to give a semblance of legality to his mischievous conduct. The arrest, restrain of the liberty of the Respondents was illegal and unlawful, and the trial Court was right to so hold.
The evidence presented by the Appellant at the trial Court in defence of his action were feeble, very shaky, vague and bereft of facts to sustain the complaint made to the police. The trial Court was right to have jettisoned, discountenanced and rejected
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same.
After reviewing the evidence and painstakingly evaluating same, the learned trial Judge at page 334 of the Record of Appeal made the following findings of fact:
“… In the instant case, I have already found that by their actions the Respondents have violated and infringed on the applicant’s Fundamental Rights guaranteed and protected under Section 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. It follows therefore that they are entitled to damages. See Section 35 (6) of the Constitution. I do not therefore have any doubt that the applicants are entitled to damages. In the final analysis, this case succeeds…..”
The foregoing are findings of fact by the trial Court which can only be interfered with by this Court if shown to be perverse, but it has not been so shown by the Appellant whose defence I had earlier described as baseless and malicious. It was based on the chieftaincy tussle in their community as well as the Appellant’s interest in the position of Local Government Community Liaison Officer (C.L.O) which did not go in his favour, the Appellant made the complaint against the Respondents to
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the police in bad faith borne out of deep rooted enmity between them.
It is on record that the Respondents were arrested, detained and humiliated. It is obvious that they suffered mental and physical torture in addition to the humiliation and embarrassment they were subjected to. The Learned Trial Judge was right to so hold.
Where as in the present case, the Appellant failed to show justification for breaching the fundamental rights of the Respondents, monetary compensation could be claimed just as the Respondents in this case have done. The Learned Trial Judge was well within the law to have awarded damages. See RANSOME KUTI v. A.G. OF THE FEDERATION (2001) FWLR (Pt. 80) at 1645. It should also be noted that even where there is no physical injury, damages could be awarded for injury to the dignity of the person or for the discomfort or inconvenience done to the Respondents.
In the circumstance, the sole issue is resolved against the Appellant and in favour of the Respondents. This appeal is bereft of merit and is hereby dismissed.
The judgment of the learned trial Judge in Suit No. HUK/MISC/21/2010 delivered on 13/6/2011 by P. P. Idiong,
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J, is hereby affirmed.
I make no order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, C. E. Nwosu-Iheme (Ph.D), JCA, made available to me a copy of the Judgment just delivered in draft form in which the Appellant’s appeal was dismissed. The issues raised in this appeal have been completely resolved. I am in agreement with his reasoning and conclusion, which I adopt as mine.
This appeal is also dismissed by me; and, the judgment of the learned trial Judge hereby affirmed.
I abide by the orders made in the lead Judgment.
PAUL OBI ELECHI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother Chioma E. Nwosu-Iheme, JCA.
?I am in agreement with the reasoning and conclusion contained therein which I hereby adopt as mine in dismissing the appeal as being unmeritorious.
?Appeal dismissed.
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Appearances
Charles A. Efiong, Esq.For Appellant
AND
I. F. Umoh, Esq.For Respondent
