MR. AMOS J. K. CHUKWU & ANOR v. MARTHA UDOH & ORS
(2019)LCN/12514(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/C/186/2012
RATIO
EVIDENCE: WHERE THERE IS CONFLICT OF EVIDENCE
“It is trite that where there is a conflict in affidavit evidence before a Court, the Court should resolve such conflict by calling and hearing oral evidence from the deponents or such other witnesses as the parties may be advised to call. See IKPANA V RTPCN [2006] 3 NWLR [Pt. 966] 106; FALOBI V FALOBI [1976] NMLR 169 SC; GBADAMOSI V ALETE [1998] 12 NWLR [Pt. 578] 402; HABIB (NIG.) BANK LTD. V OYEBANJI [1998] 13 NWLR [Pt. 580] 71; AKUJOBI V EKENAN [1999] 1 NWLR [Pt. 585] 96; F.S.B. INTERNATIONAL BANK LTD. V IMANO NIG. LTD. [2000] 7 SC [Pt. 1] 1; GEN. & AVIATION SERVICES LTD. V THAHAL [2004] 10 NWLR [Pt. 880] 50 SC; EZECHUKWU V ONWUKA [2006] 2 NWLR [Pt. 963] 151.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. MR. AMOS J. K. CHUKWU
2. MRS. GEORGINA IKE – Appellant(s)
AND
1. MARTHA UDOH
2. THE COMMISSIONER OF POLICE, CRS
3. MR. GREG IMOH
4. MR. OTU
5. ASST. INSP. GENERAL OF POLICE, ZONE – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Cross River State delivered on the 22nd day of June, 2011 by Hon. Justice Emilia Ibok in suit No. HC/447/2007.
The 1st Respondent as Applicant brought Fundamental Rights Enforcement proceedings against the Appellants and the 2nd 5th Respondents jointly and severally as Defendants Respondents. By her motion on notice of 24/12/2007, the 1st Respondent as Applicant prayed for the following reliefs:
1. A declaration that the constant arrest and detention of the Applicant by the Respondents is unconstitutional, null and void and a gross violation of her Fundamental Right as guaranteed by SS. 34, 35, 36, 37, 40 and 41 of the Constitution of the Federal Republic of Nigeria 1999.
2. Perpetual injunction restraining the Respondents from further arrest, detention and harassment of the applicant or do anything that is inconsistent with the right of the Applicant in respect of the property situate at No. 51/63 Atu Street, Calabar.
3. The sum of N5,000,000.00 [Five Million Naira] only against the Respondents jointly and severally for the continuous breach of the Applicants constitutional right.
The parties filed and exchanged affidavit evidence. The 1st Respondent as Applicant deposed to the fact that she is the owner of the property situate at No. 51/63 Atu Street, Calabar. That alongside with her brother she had been in possession and have been collecting rent in the property since 1986. That, the particulars of the property are in her possession. That the matter of ownership of the said property is pending in Suit No. HC/136/07 before the Calabar High Court. That, the Respondents have illegally and unlawfully detained her on the 12th of November, 2007. And, that they [Respondents] have subsequently been inviting her to the police station. That the Respondents are demanding to collect the title documents in her possession. That, they [Respondents], have threatened her with detention and embarrassment in the event of failure to produce the said document. 1st Respondent also deposed that she was thoroughly humiliated by the 2nd 5th Respondents arrest and have been driven away from her house since 12th of November 2007 and that they are likely to continue unless restrained by the Court.
The Appellants as 1st and 2nd Defendants in the Court below denied the allegation of detention and intimidation of the 1st Respondent by the Police and claimed that the police authorities conducted their investigations which included inviting the 1st Respondent to the Police Station on her [1st Respondents] claim of ownership of the property which the 2nd Appellant sold to the 1st Appellant. That the 1st Respondent not only destroyed renovation work being carried out on the property but repeatedly harassed, intimidated and assaulted the tenants in the property. That the application by the 1st Respondent was purely intended to obtain Court sanction for 1st Respondents unlawful activities.
The 2nd 5th Respondents as 3rd 6th Defendants also denied that the 1st Respondent was ever arrested and detained as alleged on the 12th of November or at all. That the 2nd Respondent received a written complaint from the 2nd Appellant alleging falsification of title documents over the property called 51 Atu Street, Calabar. That the 2nd Respondent referred the complaint to the 4th Respondent, who invited the 1st Respondent to the police. That 1st Respondents statement was recorded and she was asked to produce her documents. That Exhibit 1 attached to the motion paper was addressed to the 1st Respondent when she refused to bring her said title document to the police so as to conclude the investigation.
The 2nd 5th Respondents further deposed that the ownership of the house has been decided in favour of the 1st Appellant and that they were only interested in the alleged forgery. Also, that the 1st Respondent was never detained nor harassed as alleged and that they [2nd 5th Respondents] never visited the 1st Respondents house at odd hours as alleged or at all. In fact that the 2nd 5th Respondents did not set their eyes on the 1st Respondent ever since she left the Police Station on 12/11/2007 to warrant any threat to her.
The parties to the case filed written addresses in the Court below. However, it was in the midst of these seemingly conflicting affidavit evidence that the learned trial judge in his judgment of 22/6/2011 held sundrily at pages 79 82 of the Record of Appeal first that:
In the present instance, the respondents allege that the applicant was invited by the Police on account of an allegation made against her by the 1st and 2nd respondents that she [applicant] forged the title deeds to the property situate at No. 51/63 Atu Street, Calabar. All the parties are agreed that upon being confronted with that allegation by the 3rd to the 6th respondents and upon being asked to produce same, the applicant told the 3rd to the 6th respondents that the said title deeds were in custody of her lawyer F.O. Onyebueke, Esq. Since her lawyer was not available at the time the applicant was given time to produce the document.
The respondents are understandably silent on the assertion of the applicant that at the time of the report of the alleged forgery against the applicant by the 1st & 2nd respondents, they the respondents were aware of the pending litigation between the applicant and the 2nd respondent regarding the ownership of the property in question. The question arising is whether the report made to the 3rd 6th respondents by the 1st 2nd respondents that the applicant forged the title documents to the property in dispute while the tussle over ownership of the property was before the Court, and the resulting efforts to retrieve the said document[s] from the applicant can be said to be in good faith or can be said to portray a genuine belief that those documents were forged when there was every indication that the applicant was likely to rely on those same documents to prove her claim before the Court.
Moreover, considering that the 1st 2nd respondents would have had opportunity of cross examining on the genuineness of those documents in the course of the pending proceeding between the applicant and the 2nd respondent before the Court, can the report made by 1st 2nd respondents to the 3rd 6th respondents regarding same be said to have been motivated by the genuine belief by the 1st 2nd respondents that the applicant forged those documents? I think not. However one looks at that question, the answer is in the negative because retrieving the document from the applicant before she has the opportunity to tender same in Court after being aware of the pending case in which the document is crucial, smacks of some under handedness by the 1st 2nd respondents. Under those circumstances also, the use by the 1st 2nd respondents of the agency of State, namely, the police, in trying to force the applicant to part with the possession of the said title document[s] is tantamount to intimidation and harassment of the applicant and this Court so holds.
Furthermore, the assertion of the applicant that simultaneously policemen from the State Police Anti-Corruption Unit, the Anti-Vice Unit and the Zone 6 Zonal Police Command were employed or dispatched to handle the case has not been denied by the respondents. Considering therefore that the document alleged to have been forged are title documents in respect of some landed property, an object which is immovable and thus was not in danger of being carted away, the three reports made simultaneously to three different Police Departments negates any genuineness of the 1st & 2nd respondents believe in the truth of their assertion of forgery but rather strongly suggests an intent by the said respondents to harass the applicant and to forcefully deprive her of the possession of the said document (s).
Second that:
In addition, although as already stated elsewhere in this judgment, it is lawful for the police to arrest a person on reasonable suspicion, during investigation of a crime, it is not lawful to arrest a person until there is sufficient evidence upon which to charge and caution the suspect. It is therefore completely wrong to arrest, let alone detain a suspect before the police look for evidence implicating him. See the case FAWEHINMI V IGP [2002] 7 NWLR [Pt.767] 606 @ 651 Held 17. In this instance, the applicant was arrested and taken to the Police Station before the document alleged to have been forged was demanded of her in a bid to implicate her. That is wrong and constitutes an infringement on the applicants constitutional right to liberty and this Court so holds.
The 3rd 6th respondents assert that the applicant was not detained and that the fact of the detention not having been proved infringement has not been established. With respect, that is not the law. The position of the law is that both infringement and likelihood of infringement of a persons Fundamental Right are actionable and in this instance unjust harassment and intimidation of the applicant by the respondents evident. Besides, in this instance, the 3rd 6th respondents having first invited the applicant to the police station for questioning before subsequently demanding that applicant bring the title documents to establish her ownership of the property in dispute and thus clear herself is the reverse of the expected procedure under the Constitution of the Federal Republic of Nigeria where a suspect is deemed innocent until proved otherwise.
The fact of the applicants detention has not been satisfactorily countered by the respondents. In view of the applicant having named the places she was detained by the respondents, a general claim by the respondents that they were not aware of her detention is not sufficient to constitute a denial of that assertion by the respondent. This Court therefore believes the assertion of the applicant as to the fact of her detention. The fact of infringement of the applicants fundamental right to liberty as enshrined in the Constitution of the Federal Republic of Nigeria is therefore established and this Court so holds.
Third and finally that:
Coming to the issue of liability, the 3rd, 4th, 5th, and 6th respondents on record are agents of the State charged with the responsibility of enforcing the law and they only acted upon the information given them in the report made by the 1st -2nd respondents. This Court is therefore disposed to give them the benefit of doubt as to their having acted in good faith in this matter. The 3rd, 4th, 5th, and 6th respondents are therefore exonerated from liability. The 1st 2nd respondents who by their report prompted the 3rd 6th respondents to unjustly and unlawfully set in motion the events leading to the infringement of the applicants Fundamental Rights cannot however be said to have made the report in good faith. This Court therefore holds that the 1st 2nd respondents are jointly and severally liable for the said infringement of the applicants right to liberty. ACCORDINGLY, UPON HEARING F.O.ONYEBUEKE, Esq. of learned counsel for the applicant on this application of 23/11/07 in respect of the matter of the Fundamental Rights of the applicant, AND UPON HEARING O.I. EKUNKE, Esq., of learned counsel for the 1st 2nd respondents in opposition, ALSO UPON HEARING the representations of EYO U. EYO, Esq., of counsel for the 3rd, 4th, 5th and 6th respondents, IT IS ORDERED-
1. That the constant arrest and detention of the applicant by the respondents in relation to the events leading to this application be stopped forthwith, same having been hereby declared unconstitutional, null and void and a gross violation of her Fundamental Right as guaranteed by Sections 34, 35, 36, 37, 40 and 41 of the Constitution of the Federal Republic of Nigeria 1999.
2. That perpetual injunction be and is hereby granted restraining the respondents from further arrest, detention and harassment of the applicant or from doing anything inconsistent with the right of the applicant in respect of the property situate at No. 51/63 Atu Street, Calabar pending the determination by Court, of the already pending cases contesting the ownership of that property in Court.
3. That a sum of N300,000.00 (Three Hundred Thousand naira) only be paid to the applicant by the 1st and 2nd respondents jointly and severally for their continuous breach of the applicants constitutional right to personal liberty in the course of events leading to this application.
Dissatisfied with this judgment, the Appellants filed a Notice of Appeal containing two grounds of Appeal in this Court on 15-7-11. And, pursuant to the leave of this Honourable Court, on 2-7-2014 the Notice of Appeal was amended, the 2nd 5th Respondents herein having been wrongly named as 3rd 6th Appellants in the Notice of Appeal filed on the 15th July, 2011.
The briefs of argument for this appeal are:
1. Appellants brief of Argument dated 27/4/2015, filed on the same day but was deemed filed on 18/6/2015. It is settled by Effiom Ayi, Esq.
2. 1st Respondents brief of Argument dated and filed on 9-11-2015 but deemed filed on 12-11-2017. It is settled by J. U. Adung, Esq.
On 16-10-2017, this Honourable Court granted the Appellant leave to argue the appeal on the briefs filed by the Appellant and the 1st Respondent alone.
Learned counsel for the Appellant nominated a sole issue for determination of the Appeal. It is:
Whether the petition authored by the Appellant against the 1st Respondent to the 2nd 5th Respondents for forgery, harassment and willful damage to the Appellants property was established to be false to warrant their being liable for the breach of the 1st Respondent’s constitutional right to personal liberty.
The sole issue nominated by the Appellant was adopted by the 1st Respondent. Unfortunately, having carefully perused the record of Appeal in this case, I do not see anything in the evidence presented to the Court below, in the judgment of the trial Court or even in the Appellant’s Notice and Grounds of Appeal that warrants the donation of the sole issue by the Appellant and/or the adoption of the same by the Respondents. Rather, I think the sole issue in this appeal is:
Whether the learned trial judge was justified from the evidence to find the Appellants liable in breach of the Fundamental Right to liberty of the 1st Respondent.
On the above, learned counsel for the Appellant submitted that it is an elementary principle of our jurisprudence that the burden to show that a fundamental right of an applicant has been breached lies solely at the door step of the applicant. The applicant is required to show with clear, convincing and credible evidence the facts upon which such claim is predicated. This burden, said counsel derives from the well established principle encapsulated in the provision of Section 135 of the Evidence Act, 2011 that he who alleges must prove. He submitted that the 1st Respondent had willfully and incurably failed to demonstrate that there was actual, threatened or imminent breach of any of her fundamental rights. He submitted that it is not enough to merely allege a breach of any of the fundamental rights but same must be unequivocally proved. He submitted that paragraph 5 of the 1st Respondent’s Affidavit in support on which her application was founded merely stated as follows:
That the Respondents have illegally and unlawfully detained me on the 12th of November, 2007.
Counsel submitted that such bare deposition which the honourable trial Court based its judgment on was vehemently denied by the 2nd 5th Respondents in paragraph 4(b) of their counter affidavit. He submitted further that assuming but not conceding that the 1st Respondent was detained, the same cannot tantamount to a breach of his right to liberty as there are instances where the law allows a departure from the constitutionally protected right.
Appellants counsel further submitted that the important questions as to when exactly was the 1st Respondent arrested ‘and for how long’ had not been authoritatively established by the 1st Respondent. Also, that it is imperative to note that the Appellants petition to the police for which the 1st Respondent was invited was on forgery, harassment and willful damage to property and not for land ownership for which the 1st Respondent misleadingly invited the trial Court to believe.
He submitted that from the totality of the 1st Respondents affidavit evidence, it is eminently clear that the 1st Respondents action was nothing but a pre-emptive and preventive measure designed to frustrate the efforts of the police to establish the veracity or otherwise of the Appellants petition. That investigation having not been completed by reason of the 1st Respondents refusal to honour the police invitation and the pre-emptive institution of the suit which gave rise to this appeal, it cannot be said that Appellants petition was established to be false to warrant Appellants being liable for the breach of the 1st Respondents right to personal liberty.
He submitted that the action of the 1st Respondent was titilatingly captured in the case of A-G, ANAMBRA STATE V UBA [2005] 15 NWLR [Pt. 947] page 44 @ 67 as interference of powers given to law officers in the control of investigation… Appellants counsel further submitted that assuming but not conceding that the 1st Respondent was arrested and detained by the police, the Appellants would still nevertheless be held not liable. This, according to counsel is because it has been abundantly demonstrated and even conceded by the 1st Respondent that the Appellants lodged a complaint of forgery, harassment and willful destruction to their property against the 1st Respondent. That the police in consequence invited the 1st Respondent to the police as evidenced in the attached exhibit to the 1st Respondents application [page 4 of the Records]. The Appellants, said counsel have no power, competence or capacity to direct, control, influence or superintend the investigation of the complaint. They did not participate in the investigation of the complaint. That, rather, the 2nd 5th Respondents convinced about the merit of the Appellants complaint decided to conduct a thorough investigation in order to do justice to all parties which unfortunately, the 1st Respondent stalled by the calculated institution of the action at the trial Court. In the circumstance, said counsel, the Appellants cannot be held answerable for the actions of the 2nd 5th Respondents. On this, Appellants counsel referred to the cases of YUSUF UMAR V ALHAJI ANWALU ABDULSALAM [2001] 1 CHR 413 and BASSEY V AFIA [2010] ALL FWLR [Pt. 531] 1480.
Learned counsel for the Appellants further questioned whether the mere incidenting of a complaint as the Appellants did to the police to investigate a case of forgery and other criminal offences committed by the 1st Respondent constitutes a breach of the Fundamental Right of the 1st Respondent. He submitted that the Appellants in paragraph 9 of their counter affidavit filed on 17th day of July, 2008 [page 24 of the Records] stated:
That by reason of the unprovoked interference by the applicant with my peaceful occupation and possession of the land especially the destruction of a part of the property perpetuated by her, I was constrained to draw the attention of the police to the conduct of the Applicants [1st Respondent].
He submitted that the law is clear beyond equivocation that where a complaint is made to the police by a complainant, he will not be liable for what the police do in the course of its investigation, if all he did was make a report and nothing more. On this, counsel referred to the case of FAJEMIROKUN V COMMERCIAL BANK NIG. LTD. [2009] ALL FWLR [Pt. 487] 1; BASSEY V AFIA [2010] ALL FWLR [Pt. 531] 1480.
Appellants counsel further submitted that the award of N300,000.00 [Three Hundred Thousand naira] only to be paid by the Appellants jointly and severally for their continuous breach of the 1st Respondents constitutional right to personal liberty was wrong in the circumstance. The Appellants legally cannot be said to be liable for the alleged breach of the 1st Respondents constitutional right to personal liberty because they merely wrote a petition against the 1st Respondent which was not found to be false or made in bad faith.
He referred to the case of BONIFACE EZEADUKWA V PETER MADUKA & SONS [1997] 8 NWLR [Pt. 518] 635 @ 637 and submitted that Liability does not attach to a private citizen who merely named a suspect. And that in GBASOR V OGUNBUREGUI [1961] ALL NLR 853 it was held that the act of indicating to the Police a person whom one suspects of having committed an offence, is not itself sufficient to make one liable for false imprisonment should the police decide on their initiative to arrest that person.
Learned counsel for the 1st Respondent on the other hand, submitted on the sole issue that the petition authored by the Appellants or the 1st Appellant to the police against the 1st Respondent which led to the arrest and detention of the 1st Respondent on the 12th day of Nov., 2007 and other subsequent invitation was carried out within the realm of suspicion and it constituted flagrant violation of the 1st Respondents Fundamental Right who at the time of infringement was in possession of No. 51/63 Atu Street, Calabar.
He submitted further that throughout the hearing of the 1st Respondents Fundamental Rights application in HC/447/2007 in the Court below, the Appellants who were the 1st and 2nd Respondents, never exhibited any document purported to have been forged by the present 1st Respondent for which the present 1st Appellant had written a Petition to the Police for investigation of forgery. There was no document exhibited in the Court below to distinguish the one that was authentic and the one that was purportedly forged by the present 1st Respondent which the police were allegedly investigating upon a petition. That, the only thing that happened was the arrest and detention of the 1st Respondent on the 12th day of November, 2007 and her subsequent invitation to search for and produce documents of title in the face of pending cases of HC/116/2003 and HC/136/2007 where those documents were to be used. Particularly the 1st Appellant alleged that he bought the disputed properties No. 51/63 Atu Street, Calabar from the 2nd Appellant in 2006.
He added that the record of Appeal does not contain the authentic document and the one that was said to have been forged by the Respondent, and that it follows that the Appellants Petition to the police was within the domain of suspicion in which case there was no forgery. 1st Respondents counsel submitted that Appellants ordinarily would have pleaded any particulars of forgery or fraud in the already pending cases [HC/116/2003 and HC/136/2007] in proof of their case against the 1st Respondent. However, that they failed to do that but rather adopted a procedure of first, arresting and detaining the 1st Respondent before sourcing for evidence against her by the invitation on page 15 of the records.
He submitted that the Appellants having no basis or sufficient evidence to arrest the 1st Respondent on the mere petition of forgery of title documents which the police are not competent to investigate, the petition to the police was merely speculative. He submitted that 1st Respondent had clearly established in her affidavit evidence that she was arrested on 12/11/2007 and that she also received another invitation on 20/11/2007 to go to the office of Mr. Otu: Phone No. 08023781279 with all relevant documents relating to the property in dispute. He submitted that the above clearly shows that 1st Respondent in this appeal was arrested in connection with land ownership and not forgery of non-existent documents. It is not necessary, said counsel that in Fundamental Rights application, the applicant must establish breach of her basic rights beyond reasonable doubt. He referred to the provision of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 [as amended] and submitted that the 1st Respondents application was in compliance with Section 46 of the 1999 Constitution particularly according to counsel as there were pending cases in the High Court of Calabar in the same subject matter [No. 51/63 Atu Street, Calabar] in HC/116/2003 and HC/36/2007 between the Appellants and the 1st Respondent. 1st Respondent’s counsel referred to the cases of MACHIKA V KATSINA STATE HOUSE OF ASSEMBLY [2011] 3 NWLR [Pt. 1233] 15 @ 23 and JIM-JAJA V COMMISSIONER OF POLICE [2011] 2 NWLR [Pt. 1231] 380 @ 381 and concluded that it is clear that where there is breach of ones fundamental rights, the party in breach must be liable in damages for such breach.
RESOLUTION OF THE SOLE ISSUE
My first observation on the sole issue in this appeal is that the learned trial judge would not have justifiably held as for example on page 80 of the Records that:
….It is therefore completely wrong to arrest, let alone detain a suspect before the police look for evidence implicating him…
OR at page 81 of Records that:
the fact of the applicant’s detention has not been satisfactorily countered by the respondents. In view of the applicant having named the places she was detained by the respondents, a general claim by the respondents that they were not aware of her detention is not sufficient to constitute a denial of that assertion by the respondent. This Court therefore believed the assertion of the applicant as to the fact of her detention
When in fact the seriously conflicting affidavit evidence of the parties would have been resolved by calling oral evidence.
It is trite that where there is a conflict in affidavit evidence before a Court, the Court should resolve such conflict by calling and hearing oral evidence from the deponents or such other witnesses as the parties may be advised to call. See IKPANA V RTPCN [2006] 3 NWLR [Pt. 966] 106; FALOBI V FALOBI [1976] NMLR 169 SC; GBADAMOSI V ALETE [1998] 12 NWLR [Pt. 578] 402; HABIB (NIG.) BANK LTD. V OYEBANJI [1998] 13 NWLR [Pt. 580] 71; AKUJOBI V EKENAN [1999] 1 NWLR [Pt. 585] 96; F.S.B. INTERNATIONAL BANK LTD. V IMANO NIG. LTD. [2000] 7 SC [Pt. 1] 1; GEN. & AVIATION SERVICES LTD. V THAHAL [2004] 10 NWLR [Pt. 880] 50 SC; EZECHUKWU V ONWUKA [2006] 2 NWLR [Pt. 963] 151.
Second, even on the facts deposed to in the supporting affidavit by the 1st Respondent as applicant, the facts deposed to do not appear to vindicate the remedy sought. Thus, the learned counsel for the Appellants was right to have asked the questions in his brief of Argument: When exactly was the 1st Respondent arrested? And for how long? all these at the backdrop of the fact that the Appellants petition to the police against the 1st Respondent on which the 1st Respondent was invited was on forgery, harassment and willful damage to property.
All we could see in the verifying affidavit of the 1st Respondent are as follows:
4. That the particulars of the said property is in my possession.
5. That the Respondents have illegally and unlawfully detained me on the 12th of November, 2007.
6. That the Respondents have subsequently been inviting me to the Police Station.
7. That they have resorted to intimidation and harassment and even come to my house at odd hours.
8. That one of the invitation received by the Police on the 20th of November is hereby attached as Exhibit 1.
9. That the Respondents are demanding to collect the title documents in my possession.
10. That the matter over ownership of the said land is pending before Calabar High Court No. 5 with suit No. HC/136/07.
11. That the Respondent have threatened me with detention and embarrassment in the event of failure to produce the said documents.
I must say, that in a case fought on affidavit evidence, the facts in the affidavit must have properly been put before the Court. In other words, an unfettered burden lies on the applicants affidavit to stand or fall on its merit. See BELLO V A-G, LAGOS STATE [2007] 2 NWLR [Pt. 1017] 155; A-G, ONDO STATE V A-G, EKITI STATE [2001] 17 NWLR [Pt. 743] 706 SC; EJEFOR V OKEKE [2000] 7 NWLR [Pt. 665] 363.
Indeed, in such a case as in the instant one fought on affidavit evidence an applicant as plaintiff, in order to obtain judgment must prove by affidavit the reliefs sought in the statement of claim, otherwise the action will fail. For example, it is not enough for a plaintiff who seeks a constitutional remedy or a remedy under the constitution by merely parading before the Court the constitutional provisions. He must prove, by affidavit that he deserves the remedy sought. The Court can only give the applicant plaintiff judgment if the facts deposed to in the affidavit vindicate the remedy sought. A mere agglomeration of facts as in the instance case which do not vindicate or justify the remedy sought will not give rise to a judgment in favour of the applicant plaintiff. Similarly, the affidavit evidence which would strengthen the facts or stories averred in the pleadings should be cogent and substantial to create in the mind of the Court a relief that the applicant plaintiff has established the assertion contended by a party. See A-G, ANAMBRA STATE V AG, FED. [2005] 9 NWLR [Pt. 931] 572 SC.
Third, the affidavit evidence of the parties in this case do not dispute the fact that All that the Appellants did was to make a report of forgery of title documents to the Police and did not instigate the police to invite, arrest or detain the 1st Respondent at any point in time. This is borne out in the depositions in the counter affidavit of the 2nd 5th Respondent reproduced on pages 19 21 of the Record of Appeal as follows:
1. That I am the Principal Litigation Officer in the Department of Public Prosecutions, Ministry of Justice, Calabar and in that capacity I am conversant with all the files in the department, including this one.
2. That I have read through the entire case file in this suit, including the motion paper and the entire affidavit.
3. That I have equally interviewed both Mr. Greg Imoh and Mr. Otu Ubi who investigated the complaint at the State Police Command State CID, Calabar and Zone 6 Command, Calabar.
4. That paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 in support of the motion paper is false. Sgt. Otu Ubi, the IPO informed me and I verily believe him thus:
a) That the applicant is not the owner of the property known and called 51 Atu Street, Calabar. The 2nd Respondent is the Administratrix of the said property. She inherited from her late Mother, Madam Martha Okokon Mesembe, who died in 1986.
b) That the Applicant was never arrested and detained as alleged or at all on the 12th November or any date at all.
c) That the 3rd Resp. received a written complaint from the 2nd Resp. alleging falsification of title documents over the property called No. 51 Atu Street, Calabar.
d) That the 3rd Resp. referred the complaint to the 5th Respondent, who invited the applicant to the Police. Her statement was recorded and she was ask to go and produced her documents, so as to find out whether they were fake or not. She was never detained nor harassed as alleged.
e) That Exhibit 1 attached to the motion paper was addressed to the Applicant when she refused to bring her said title document to the police so as to conclude the investigation.
f) That the Respondents never visited the applicants house at odd hours as alleged or at all; nor threatened her with detention and embarrassment as alleged or at all. Since the applicant left the Police Station on the 12th of Nov., 2007, none of the Respondents have set their eyes on her to warrant such a threat.
g) That the ownership of the house has been decided in favour of the 2nd Respondent. However, the 3rd 6th Respondents were only interested in investigating the alleged forgery.
5. The F.I. Ititim, Esq., (A.D.P.P.) of counsel, has informed me and verily belief him that the 3rd 6th Respondents are empowered under the Police Act to investigate crime and to avert any possible or persive break down of law and order.
6. That paragraphs 10 17 of the affidavit in support of the motion is false. The applicants refusal to produce the alleged forged title documents is frustrating the police investigation on the complaint of forged title documents. A grant of this application would not meet the ends of justice as the legitimate complaint of the 2nd Respondent would have been aborted and the Police frustrated by a Court order.
7. That the justice of this case would be a dismissal of the application as same is brought in bad faith.
8. That the written petition of the 2nd Respondent, upon which the 3rd 6th Respondents acted is attached hereto and mark Exhibit CAI and CA II.
9. That I make this oath in good faith, conscientiously believing the same to be true in accordance with the Oaths Act.
By these, the learned counsel to the 1st Respondent was right to have suggested that it is the duty of citizen of this country to report cases of commission of crime to the police for their investigation and what happened after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty. Ogebe JSC, in FAJEMIROKUN V COMMERCIAL BANK NIG. LTD. [2009] ALL FWLR [Pt. 487] 1. And that, when a citizen reports a matter to the police or any law enforcement agency for the exercise of their discretion including the discretion to investigate, neither the police nor the citizen would be liable for the breach of a right of arrest. See BASSEY V AFIA [2010] ALL FWLR [Pt. 531] 1480. This is because, a complainant who did not induce the Police to act in a particular manner cannot be held liable for the actions of the police. Indeed, liability does not attach to a private citizen who merely names a suspect. See BONIFACE EZEADUKWA V PETER MADUKA & SONS [1997] 8 NWLR [Pt. 518] 635 @ 667; GBASOR V OGUNBUREGUI [1961] ALL NLR 853.
Finally, the perversity of the judgment appealed against in the instant case became heightened by the invention of the doctrines of good faith and bad faith outside the facts presented in the affidavit evidence of the parties. For example at page 81 of the Records, the learned trial judge came to a wrong conclusion and held thus:
Coming to the issue of liability, the 3rd, 4th, 5th and 6th Respondents on record are agents of the State charged with the responsibility of enforcing the law and they only acted upon the information given them in the report made by the 1st 2nd respondents. This Court is therefore disposed to give them the benefit of doubt as to their having acted in good faith in this matter. The 3rd, 4th, 5th and 6th respondents are therefore exonerated from liability. The 1st and 2nd respondents who by their report prompted the 3rd 6th respondents to unjustly and unlawfully set in motion the events leading to the infringement of the applicants Fundamental Rights cannot however be said to have made the report in good faith. This Court therefore hold that the 1st 2nd respondents are jointly and severally liable for the infringement of the applicants right to liberty…
As was said earlier on the learned trial judge could not have justifiable come to this conclusion outside of the facts presented to the Court in the affidavit evidence of the parties. More so, when oral evidence was not called to resolve the fundamentally conflicting affidavit evidence and when it was obvious from the facts presented that the Appellants did no more than to make a report bordering on crime against the 1st Respondent for the police to investigate.
In the circumstance, the sole issue in this appeal is resolved in favour of the Appellants.
The appeal is meritorious and it is allowed. The judgment and orders of Emilia Ibok, J: of the Cross River State High Court sitting in Calabar delivered on 22/6/2011 in suit No. HC/ 447/2007 are accordingly set aside.
Parties are to bear their respective costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was privileged to read an advanced copy of the judgment delivered by my brother, MOJEED ADEKUNLE OWOADE, JCA and I am in total agreement with nothing to add. I too allow the appeal and set aside the judgment of the trial Court. I abide by other orders therein.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the benefit of reading the draft, the lead judgment of my learned brother, Mojeed A. Owoade, JCA. I agree with his reasoning and conclusion that the appeal is meritorious and should be allowed.
I too allow the appeal and abide by all the consequential orders in the lead judgment.
Appearances:
Effiom Ayi, Esq. For Appellant(s)
J. U. Adung, Esq. for 1st Respondent For Respondent(s)
