INSPECTOR GENERAL OF POLICE & ANOR v. MR. BILLY AGBINONE & ORS
(2019)LCN/12607(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of January, 2019
CA/B/220/2016
RATIO
CIVIL: WHETHER THE POLICE SHOULD BE INVOLVED IN CIVIL PROCEEDINGS
“There are plethora of decisions on the fact that a civil arrangement is not a matter for the police. The police is not a debt collecting organization. The police are not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlement of civil disputes amongst people. See Igwe v. Ezeanochie (2010) 7 NWLR Pt. 1192 Pg. 61; Agbai v. Okugbe (1991) 7 NWLR Pt. 204 Pg. 391; Nkpa v. Nkume (2001) 6 NWLR Pt. 710 Pg. 543.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JURISDICTION: THE ISSUE OF JURISDICTION
“The issue of Jurisdiction is fundamental. It is the bedrock of any adjudication. The locus classicus on this point is Madukolu v. Nkemdilim (1962) All NLR 587 at 595 where the Supreme Court stated inter alia that for a Court to be properly constituted, certain conditions precedent must exist, to wit: a. It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another
b. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction
c. The case comes before the Court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.
Jurisdiction is the authority which a Court has to decide a matter before it. See Anyanwu v. Ogunewe (2014) 8 NWLR Pt. 1410 Pg. 437.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JURISDICTION: WHETHER JURISDICTION BOTHER ON SERVICE OF COURT PROCESS
“It is also trite that when a question of service is in issue, it automatically touches on the jurisdiction of a Court which must be satisfied on the proof thereof. See Estate of Late Chief Humphery Y.I.S. Idisi v. Ecodril Nig. Ltd. & Ors. (2016) LPELR-40438 (SC). In other words, service of Court processes is a condition precedent to the exercise of jurisdiction and the absence of service or of an effective service will therefore rob the Court of jurisdiction to hear the suit before it.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. INSPECTOR GENERAL OF POLICE
2. THE COMMISSIONER OF POLICE RIVERS STATE Appellant(s)
AND
1. MR. BILLY AGBINONE (JUSTICE OF PEACE)
2. SAMSON IDJIGHERE
3. FORCE ROCK TOOLS LTD Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State, delivered by Honourable Justice Roli Daibo Harriman on 19/5/2010 wherein damages was awarded against the Appellants and the 2nd and 3rd Respondents in favour of the 1st Respondent.
The facts that led to this appeal are as follows:
The 1st Respondent, Applicant at the lower Court entered into a contractual agreement with the 2nd and 3rd Respondents. There was an alleged breach of contract and the 1st Respondent demanded for some monies owed while the 2nd and 3rd Respondents demanded for the full sum of the lease agreement. Negotiation apparently broke down between the parties.
The 2nd and 3rd Respondents thereafter lodged a complaint against the 1st Respondent to the Appellants by a petition dated 28th October, 2009 over an allegation of criminal breach of contract, conduct likely to cause breach of peace and threat to life.
The Appellants arrested the 1st Respondent from his home in Effurun in Delta State and took him to Port Harcourt for interrogation and released him on bail the same day he was arrested.
The 1st Respondent then filed an application for the enforcement of his rights against the Appellants, 2nd Respondent and 3rd Respondent at the Delta State High Court wherein he claimed as follows:-
1. A declaration that the arrest of the applicant on Thursday, the 21st day of January, 2010 (From his residence at Sedco Road, Effurum) and subsequent detention on the same day at the Delta State Police Command, ‘A’ DIVISION, WARRI, Delta State and at the State C.I.D, Port Harcourt, Rivers State by men of the 3rd and 4th Respondent at the instance of the 1st and 2nd Respondents is unwarranted, illegal and unconstitutional in that the arrest and detention is a breach of applicant’s fundamental right to liberty and freedom of movement.
2. The sum of 200, 000, 000. 00 (Two Hundred Million Naira) being special and general damages as well as loss suffered by the Applicant as a result of his arrest and detention on the 21st day of January, 2010 by men of the 3rd and 4th Respondents at the instance of the 1st and 2nd Respondents.
3. Injunction restraining the 3rd and 4th respondents, their men, agents, servants and privies from further arresting and detaining the applicant at the instance of the 1st and 2nd respondent on account of the facts and circumstances deposed to by the applicant in the affidavit in support of this application.
The learned trial Judge granted all the reliefs sought by the 1st Respondent as Applicant and awarded the sum of N500, 000.00 against the Appellants as well as the 2nd and 3rd Respondents jointly and severally, being special and general damage as loss suffered by the 1st Respondent as a result of his arrest and detention on 31/01/2010 by the Police at the instance of the of the 2nd and 3rd Respondents.
Dissatisfied, the Appellant filed a Notice of Appeal on 6/3/2014 an amended Notice was filed 25/1/17. Record was transmitted 8/6/16 and deemed transmitted on 25/1/17. Appellants’ brief was filed 24/2/17 and deemed filed 3/5/17. Appellants? reply brief was filed 16/4/18 and deemed filed 3/5/18. 1st Respondent?s brief was filed 17/10/17 and deemed filed on 3/5/18 while the 2nd and 3rd Respondents’ brief was filed 16/4/18 and deemed filed on 3/5/18.
In the brief settled by Mr. E.E. Edet Esq., the Appellants identified three issues for the determination of this appeal to wit:-
1. Whether the Court below had jurisdiction to hear and determine the suit, considering the non service of the originating process on the 1st Appellant who was the 4th Respondent.
2. Whether the non service of the originating process of the suit on the 1st Appellant who was 4th Respondent did not deny him of fair hearing.
3. Whether the learned trial judge was justified in his judgment against the Appellants who performed their constitutional duties in the arrest of the 1st Respondent in course of investigation of a criminal Complaint of threat to life and conduct likely to cause a breach of the peace against him vide a written petition and his subsequent release on bail within 24 hours.
In the brief settled by Mr. M.E. Ukusare, Esq., the 1st Respondent identified two issues to determine this appeal as follows:-
1. Was there service of the Originating processes on the 1st Appellant?
2. Was the trial judge justified in his judgment against the Appellants?
I am aware that the 2nd and 3rd Respondents’ counsel, Mr. O.J. Oghenejakpor Esq. also filed a brief in this appeal. The position of the law is that the traditional role of a Respondent in an appeal is to defend the judgment appealed against. The Respondent cannot urge any point against the judgment appealed against as in this case unless by virtue of a Respondent’s notice or a Cross Appeal. See Uwazuruike v. Nwachukwu & Ors. (2012) LPELR-15353; Senator Umaru Dahiru & Anor v. All Progressive Congress & Ors. (2016) LPELR-42089. The brief filed by the 2nd and 3rd Respondents’ counsel in this appeal being in support of the Appellant’s position is hereby discountenanced. In any event, the 2nd and 3rd Respondents filed a sister appeal No CA/B/381/2010 to ventilate their grievances against the judgment of the trial Court.
I will adopt the issues identified by both parties in the determination of this appeal and recouch them as follows:-
1. Whether there was proper service of the Originating process on the Respondents before the lower court assumed jurisdiction.
2. Whether the trial judge was right in the judgment and orders made in the circumstances of this case.
ISSUE ONE
Whether there was proper service of the Originating process on the Respondents before the lower Court assumed jurisdiction.
Learned Appellants’ counsel argued that failure to serve all parties an originating process of a matter robs the Court of jurisdiction to hear and determine that application. The Court below ordered for substituted service of the originating process on the 1st and 2nd Appellants, then 2nd and 3rd Respondents respectively on the 3rd February, 2010.
Counsel argued that the 3rd Respondent, 2nd Appellant herein was served his own copy of the process on 8th February, 2010 but there was no service on 4th Respondent now the 1st Appellant as no clean copy of the processes was served on him through the 2nd Appellant as ordered by the Court. Counsel submitted that failure to serve process where service of the process is required certainly goes to the root of the case. Counsel cited Chiazor v. Tukur (2007) All FWLR Pt. 351 Pg. 394 at 406-407 Par B.
Counsel reiterated that for the Court to exercise jurisdiction in respect of any matter, it must have the competence which inter alia includes the case coming by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. Counsel cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Counsel emphasized that the issue of jurisdiction to entertain any suit in which processes are not served or properly served on all the parties is so fundamental, and it cannot be sacrificed on the altar of technicalities. Counsel cited Dahiru Muhammad v. Toju Mustapha (1993) 5 NWLR Pt. 292; Teno Eng. Ltd v. Adisa (2005) 22 NSCQR 858.
Counsel submitted that no Court has jurisdiction to give judgment against a person or party who has not been served with the Originating Process, as he could not be said to have had fair hearing. Counsel cited Federal Republic of Nigeria & Anor v. Ifegwu (2003) FWLR Pt. 167 as cited in Arewa Paper Converters Ltd v. Nigeria Universal Bank Ltd (2006) All FWLR Pt. 335 Pg 1 at 51 A-B
Counsel contended that E.E Edet Esq. of the legal office of the Rivers State Police Command received service of the Originating Process for the 2nd Appellant while he was a litigation clerk/process receiver at the said Police formation while this case was initially handled by I.M. Udoma legal/prosecutions State CID Port Harcourt.
Counsel argued that a legal officer of the Nigerian Police cannot on his own takeover/allocate any matter to himself to prosecute except such a case has been assigned to him as in this instant case and the non representation of the 1st Appellant and indeed the Appellants at the lower court was due to lack of knowledge of existence of the case due to non service of Originating process.
Learned counsel to the 1st Respondent on the other hand argued that both Appellants are officers of the Nigeria Police Force established under the Constitution of the Federal Republic of Nigeria, 1999 and it was in fact the 2nd Appellant who authorized the arrest of the 1st Respondent. Counsel emphasized that the service on the 2nd Appellant in compliance with the Order of the trial Court aforesaid amounts to good service on the 1st Appellant.
Counsel contended that service on E.E. Edet, Esq. of the legal office of the Rivers State Police Command where the 2nd Appellant superintends and holds brief for the 1st Appellant is consistent with the law and therefore amounts to valid service on the 1st Appellant and Order V Rules 2, 5, 7 (b) and (c) of the Fundamental Rights (Enforcement Procedure) Rules 2009 has succinctly provided for the procedure of service in fundamental right proceedings.
Counsel argued that it is unconscionable for the Appellant to raise this point when in fact the same E.E. Edet Esq. who received the process for the 2nd Appellant is the same counsel for the 1st Appellant in this appeal. The 2nd Appellant did not put in any appearance or defence despite having knowledge of the pendency of the action, but seeing that they have failed, Mr. E.E. Edet, Esq. of counsel decided to file this appeal using service on the 1st Appellant as the main basis.
OPINION
The main thrust of the complaint in this issue is whether the trial Court had jurisdiction to proceed with the Fundamental Right Application brought before it without proper service of processes on the parties.
The issue of Jurisdiction is fundamental. It is the bedrock of any adjudication. The locus classicus on this point is Madukolu v. Nkemdilim (1962) All NLR 587 at 595 where the Supreme Court stated inter alia that for a Court to be properly constituted, certain conditions precedent must exist, to wit:
a. It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another
b. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction
c. The case comes before the Court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.
Jurisdiction is the authority which a Court has to decide a matter before it. See Anyanwu v. Ogunewe (2014) 8 NWLR Pt. 1410 Pg. 437.
It is also trite that when a question of service is in issue, it automatically touches on the jurisdiction of a Court which must be satisfied on the proof thereof. See Estate of Late Chief Humphery Y.I.S. Idisi v. Ecodril Nig. Ltd. & Ors. (2016) LPELR-40438 (SC). In other words, service of Court processes is a condition precedent to the exercise of jurisdiction and the absence of service or of an effective service will therefore rob the Court of jurisdiction to hear the suit before it.
The Appellants’ contention is that whereas the 2nd Appellant was served with the originating processes as ordered by the trial Court, the 1st Appellant was not served. Counsel argued that a separate clean copy ought to have been served on the 2nd Appellant to deliver to the 1st Appellant but this was not done and as a result the 1st Appellant was not given fair hearing at the trial.
I have read the Record, the order made by the trial Court as contained on the enrollment of order was that the 1st Respondent should serve the 1st Appellant through the 2nd Appellant that is the office of the Inspector General of Police be served through the office of the Commissioner of Police, Rivers State. In my view there is no contention as to service on the 2nd Appellant in this matter.
The effect of lack of service on a party in a suit denies the party a fair hearing which violates one of the twin pillars of natural justice- Audi Alterem Partem.
Let me take a look at the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 on the issue of service of processes particularly because the suit was initiated under that law.
Order V of this Rule deals with service of Court processes, Order V Rule 5, 6 and 7 which particularly concerns service on Police states as follows:-
5. If it is not possible to serve such an order personally, or if it is directed to a Police Officer, or a Prison Superintendent or other Public Official, it may be served by leaving it with any other officer working in the office of the Police Officer, or office of the Prison Superintendent or of the office of the Public Officer to whom the order is directed.
6. Such order shall be a sufficient warrant to any Superintendent of a Prison, Police Officer in charge of a police station, Police Officer or Constable in charge of the applicant or any other person responsible for his detention, for the production in Court of the applicant under restraint.
7. Where it appears to the Court, either after or without an attempt at personal service of the Court processes that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either-
(a) By delivery of the document to an adult person at the usual or last known place of abode or business of the party to be served; or
(b) By delivery of the document to some person being an agent of the party to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or the person, come to the knowledge of the party to be served; or
(c) By delivery of the document to any senior officer of any Government agency that has office both in the State where the breach occurred and head office either in the Federal Capital Territory or elsewhere; a service on the agency through its office in any state where the breach occurred will be considered as sufficient service; or
(d) By advertisement in the Federal Government Official Gazette, or in some newspapers circulating within the jurisdiction; or
(e) By notice put up at the principal Court House of, or some other place of public resort in the Judicial Division where the proceedings in respect of which the service is made is instituted, or at the usual or last known place of abode, or business, of the party to be served.”
From the foregoing provisions, service on the Police Authority can be deemed proper if served by leaving it with any other officer working in the office of the Police Officer. Service on the Police through its office in any state where the breach occurred will also be considered as sufficient service.
In my humble view, the rules clearly provides that the fact that the processes were served on the office of the 2nd Appellant that is the Commissioner of Police, Rivers State is enough service on the Nigeria Police. It is one and the same Police and service on the Rivers State Command of the Police is deemed a proper service on the Inspector General of Police moreso as the order of the trial Court states specifically that the 1st Appellant be served through the 2nd Appellant.
I believe the Court order of service on the 1st Appellant through the 2nd Appellant was clearly complied with.
Let me quickly add that on the face of the Record, even the 2nd Respondent who admitted service never appeared before the trial Court throughout the hearing of this matter. The 2nd Appellant never defended the claim. The 2nd Appellant at least cannot deny having knowledge of the existence of the case at trial.
In the peculiar circumstances of this case, the complaint of lack of fair hearing cannot be invoked in favour of the Appellants because a party or his counsel who is well aware of a matter or a date fixed for hearing of a suit and without any justifiable reason excused himself does so at his own peril and cannot blame anybody for it. See Onugha v. Ezeigwe (2011) 13 NWLR Pt. 1263 Pg. 184; Orugbo v Una (2002) 16 NWLR Pt. 792 Pg. 175.
On this point I humbly believe the 1st Appellant has been served and cannot complain of non service when one of its agents has been duly served with the processes as ordered by the trial Court. This issue is resolved against the Appellants.
ISSUE TWO
Whether the trial judge was right in the judgment and orders made in the circumstances of this case
Learned counsel to the Appellants argued that the Court was not justified in the judgment against the Appellants, and the learned trial judge failed to consider the statutory functions of the Appellants as contained in Section 214 of the 1999 Constitution and Section 4 of the Police Act Cap P19 LFN 2004. The Appellant acted within the confines of the law in arresting the 1st Respondent in the course of investigating a criminal complaint of threat to life and conduct likely to cause breach of the peace which was lodged against him by a petition from 2nd Respondent. Counsel cited Fawehinmi v. IGP (2002) 7 NWLR Pt. 767 Pg. 606 (SC).
Counsel emphasized that the said crimes are known to law as contained in Section 86 of the Criminal Code Cap 38 LFN 2004 for which the Appellants have the statutory powers to act.
Counsel submitted that the act of the Appellants were not unlawful and did not in any way violate the fundamental right of the 1st Respondent as wrongly held by the lower Court. The fundamental rights of citizens are not absolute as the Constitution provides avenues through which such rights can be derogated and the 1st Respondent never raised it that he was detained beyond the constitutionally allowed period by the Appellants.
Counsel emphasized that the 1st Respondent is not above the law, he was only arrested by the Police at Effurum Delta State in course of investigation of a criminal complaint against him and taken to Port Harcourt same date for interrogation. He was thereafter released on bail the same date within 24 hours as provided by the law. The Appellants in this case only discharged their statutory duties within the bounds of the law. Counsel cited A.G Anambra State v. Uba (2005) 15 NWLR Pt. 947 Pg. 44 at 67
Counsel further contended that the lower Court erred for not considering the criminal complaint of the 2nd and 3rd Respondents against the 1st Respondent made to the Appellants.
Counsel argued that it is settled law that no Court including the Court below should declare an act provided by law which is done by an agency of the Federal Government unlawful, as same would amount to interference with its statutory duties. Counsel cited A.G Anambra v. Uba (supra); Dr. Lewis Chukwuma v. COP (2005) 6 NWLR Pt. 927 Pg.278
Learned counsel to the 1st Respondent contended that the argument that the arrest of the 1st Respondent was still within the statutory functions and constitutional duties of the Appellants was never raised at the lower Court and cannot therefore be raised and argued before the Court of Appeal since there is no finding on this point by the learned trial judge as against the Appellants.
Counsel opined that an appeal can only lie to this Court against the finding of the Court below. The law is settled to the effect that for an appellate Court to be competent to entertain an appeal, the issues raised must have been pronounced upon by the lower Court. Counsel cited Ogbeide v. Osula (2003) 15 NWLR Pt. 843 Pg. 266 at 284 Par. C-E.
Counsel urged this Honourable Court to discountenance this issue but should the Court decide otherwise, the learned trial judge was justified in the judgment against the Appellants as the 2nd Appellant admitted being served with the Originating processes.
Counsel opined that the Appellants did not file a counter affidavit and failure to controvert facts in an affidavit render such facts admitted and the Court is at liberty to rely on same as the truth of the situation.
Counsel argued that the Appellants having admitted that they arrested and detained the 1st Respondent, the onus lies on the Appellants to justify the arrest and detention even if for one minute. Counsel cited Ejefor v. Okeke (2000) 7 NWLR Pt. 665 Pg. 363; Ibiyeye v. Gold (2013) ALL FWLR Pt. 659 Pg1074 at 1111-1113 Par G-A; Oceanic Securities Int.l Ltd v. Balogun (2012) ALL FWLR Pt. 643 Pg 1880 at 1907 Par B-C
Counsel emphasized that the argument that the 1st Respondent was released within the constitutional limit of 24 hours the same day does not accord with law and is unjustified because the length of time of the detention is immaterial to the fact of unlawful detention. Counsel cited Alaboh v. Boyles (1984) 4 NCLR 830; Isenaluhme v. Joyce Amadin (2001) 1 CHR 459; Gusau v. Umezurike (2012) All FWLR Pt. 655 Pg. 291
Counsel opined that Exhibit OJ3 at pages 75-77 of the Record of Appeal exposed the real reason the Appellants were called in to arrest the 1st Respondent was to recover the 2nd and 3rd Respondents? Rig equipment and recovery of debt.
Counsel argued that the 1st Respondent is a director in Billag Resources Ltd. and there is nothing to indicate in the Exhibits B1, B2 and B3 that the 1st Respondent acted in his personal capacity in any form. The law is very trite to the effect that a director of a company has a different legal personality from the company. Counsel cited N.D.I.C v. Vibelko Nig. Ltd. (2006) ALL FWLR Pt. 336 Pg. 386 at 399 Par. C-E
Counsel emphasized that the state of mind and acts of the managing director of a company are all regarded as those of the company so that in the event of a dispute, it is the company that should answer. Counsel cited Amadiume v. Ibok (2006) ALL FWLR Pt. 321 Pg 247 at 264 Par. B
Counsel further contended that if the 2nd and 3rd Respondents are aggrieved by the action or conduct of Billag Resources Ltd. in neglecting to return their equipment, their remedy lies in the tort of detinue and damages in contract. Those are certainly no criminal offences to warrant the arrest of the 1st Respondent and the Appellants ought to know this. The whole essence of the powers of Police as prescribed by Section 214 (2) (b) of the Constitution and Section 4 of the Police Act is centered on crime. Counsel cited Odon v. Amange (2010) ALL FWLR Pt. 509 Pg.469 at 502 Par. C-D
Counsel further argued that crime detection is a function of investigation carried out as preliminary and follow up investigations. If the Police allege that an offence may have been committed given the content of a petition, the first stage in the investigation is to carry out a preliminary investigation. Counsel cited LAW AND PRACTICE OF CRIMINAL INVESTIGATION AND PROSECUTION IN NIGERIA 2007 BY BASIL MOMODU.
Counsel opined that Section 24 of the Police Act, Sections 10 and 55 of the Criminal Procedure Act relied on to cause the arrest of the 1st Respondent without warrant do not give blanket powers to the Appellants. It is only suspicion upon reasonable ground that will justify any arrest made by any Police officer. Counsel cited Agundi v. C.O.P (2013) ALL FWLR (Pt. 660) 1247 at 1296 Par. E-B
Counsel argued that Section 35 (1)(a)(b)(c)(d)(e) and (f) enumerates the circumstances under which a citizens liberty may be curtailed or deprived.
Counsel emphasized that it is not the law that the Police must arrest in the course of investigating a matter. Counsel cited Fawehinmi v. Inspector- General of Police (2002) ALL FWLR Pt. 108 Pg 1355 at 1384-1385; Okorodudu v. Oteri (supra); Hussein v Kam (1969) 3 ALL E.R. 1962 Pg. 1630.
OPINION
The main contention here is whether the arrest of the 1st Respondent was within the statutory functions and constitutional duties of the Police as provided under S. 214 of the 1999 Constitution (as amended) and S. 4 of the Police Act Cap P19 LFN 2004.
Section 214 of the 1999 Constitution (as amended)provides as follows:-
214. (1) There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other Police force shall be established for the Federation or any part thereof.
(2) Subject to the provisions of the Constitution:-
(a) the Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an act of the National Assembly;
(b) the members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law;
(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the Armed Forces of the Federation or for the protection of harbours, Waterways, Railways and Airfields’
While Section 4 of the Police Act provides as follows:-
‘The Police shall be employed for 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 directly charged, and shall perform such military duties within and outside Nigeria as may be required of them by, or under the authority of this or any other Act.’
From the foregoing provisions, the duties of the Police include among others the prevention and detection of crime, preservation of law and order, protection of life and property etc.
I have no doubt it is the duty of the Police to investigate any complaint or allegation of crime or any conduct likely to cause breach of peace in the community. I also agree with learned counsel to the Appellants that the Police has a duty to investigate the criminal complaint of threat to life and conduct likely to cause breach of peace which was the complaint against the 1st Respondent.
Before I consider the question of whether the Police acted under a reasonable suspicion that a crime had been committed or was about to be committed by the 1st Respondent before taking steps to arrest him, it is important to add that detention no matter how short can still qualify as a breach of fundamental right, as long as such detention is adjudged unlawful. See Gusau v. Umezurike (2012) LPELR -8000; Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 499 Pg. 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458;
In my humble view, the police only relied on the petition of the 2nd and 3rd Respondents dated 28th October, 2009 and titled ‘CRIMINAL BREACH OF CONTRACT, CONDUCT LIKELY TO CAUSE BREACH OF PEACE AND THREAT TO THE LIFE OF OUR CLIENT’.
Aside from this letter, there was nothing whatsoever oral or documentary that implicates or suggests that the 1st Respondent really committed any crimes or that he was about to do so. The letter is on Pg. 75 of the Record.
Paragraph 2 of the letter reads as follows:
‘It is our instruction that our client’s life has been under severe threat from Mr. Billy James Agbinone, the Director of Billag Resources Ltd which threat is in connection with our client’s demand for the return of his Rig from Bayelsa State by Mr Billy James Agbinone.’
When a report is made to the Police and it is obvious that it is purely a civil matter, whether the complainant makes a cursory complaint of threat of death just to ensure the involvement of the Police, it is the duty of the Police to make preliminary investigations. Why did the Police need to arrest him from Effurum in Delta to Port Harcourt in Rivers State? Why did they not ask him questions first to ascertain the type of transaction between the parties?
It is obvious that the matter between the parties was a contractual transaction for which in any event parties could have ventilated their grievances through other lawful means other than calling on the police to interfere in what is purely a civil matter.
The power of the Appellants to arrest and detain a citizen of Nigeria such as the 1st Respondent can only arise if the 1st Respondent is reasonably suspected of having committed a criminal offence or about to commit a criminal offence. No such suspicion existed. The writing or presenting of a petition against another does not in itself obviate the requirement and the need for the arresting officer to convince himself that there is a basis to suspect that an offence has been committed or about to be committed. See Dumbell v. Robebts (1994) 1 ALL E.R. 326 at 326; Okorodudu v. Oteri (1970) ANLR 199 at 203.
Like I said earlier, the Police has power to investigate criminal complaints made to it and to prevent and detect crimes, however, that power has to be exercised reasonably. Such power is to be exercised depending on the circumstances of every occasion and most importantly in the overall interest of the society. See Fawehinmi v. IGP (2002) 7 NWLR Pt. 767 Pg. 606 (SC).
In Oteri v. Okorodudu & Anor. (1970) LPELR-2824 (SC) the Supreme Court held on the definition of reasonable suspicion as follows:-
‘In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P. 522 where he said that it must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light as is shown by Wright v. Sharp [1947] L.T. 308. Lord Wright in McArdle v. Egan [1933] All E.R. Rep. 611 at 613 showed that the responsibility is ministerial and not judicial when he said:-
“It has to be remembered that police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person arrested.
Their functions are not judicial, but ministerial.” We would also refer to the judgment of Diplock, L.J. (as he then was) in Dallison v. Caffrey [1965] 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where at page 371 he said:-
“One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this con it means no more than that he himself at the time believed that there was reasonably and probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesis he would have believed had he been reasonable (see Herniman v. Smith (1938) A.C. 305, 316 per Lord Atkin). In the nature of things this issue can seldom seriously arise.”
“The test of what is reasonable suspicion is not as high as establishing a prima facie as Lord Devlin in Shasban Bin Hussain v. Chong Fook Kam [1969] 3 All E.R. 1926 in an appeal from the Federal Court of Malaysia made clear in the Privy Council when he said at 1630:-
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquiries are examples of those factors with which all judges that have had to grant or refuse bail are familiar. There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control.
I agree with the learned trial judge that the police had no reasonable suspicion that a crime was about to be committed or had actually been committed by the 1st Respondent as there was nothing to implicate him. It is expected of the Police to do more in this respect than ordinarily acting on a frivolous and unfounded allegation contained in a petition. Police have been told on several occasions by the Courts that it is not on every occasion when they need to investigate that they should use their powers of arrest. Powers of arrest should be used with discretion and in the circumstances of this case a warrant from a judicial authority who had read the affidavit of the Complainant would have saved the day for the Police. While addressing this issue, the learned trial judge rightly observed as follows:-
‘There is nothing from the police that shows me they had other information like a statement from the complainant or witnesses that indicate that there is a reasonable suspicion that a crime is about to be committed. The police had discretion to ask for more information from the complainant before taking steps in their investigation. In any case investigation may not mean immediate arrest as they have done in this case. The police must not allow itself to be used like this. Time and money, taxpayers money will then be expended in helping business men to settle scores instead of the police devoting itself to investigating cases of real and present danger. The latest tactics of using the police to recover debts or enforce agreements or ‘criminal breach of contract’ (as counsel for the Respondents put it) is unconstitutional, unethical, unwarranted and degrading.’
There are plethora of decisions on the fact that a civil arrangement is not a matter for the police. The police is not a debt collecting organization. The police are not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlement of civil disputes amongst people. See Igwe v. Ezeanochie (2010) 7 NWLR Pt. 1192 Pg. 61; Agbai v. Okugbe (1991) 7 NWLR Pt. 204 Pg. 391; Nkpa v. Nkume (2001) 6 NWLR Pt. 710 Pg. 543.
Interestingly, the Police did not contest any of the averments in the 1st Respondents affidavit in support of the motion to enforce his rights even though the Police were served.
The Appellants acted unreasonably in arresting the 1st Respondent based on an unfounded and a frivolous allegation which they did not investigate before conducting an arrest. I am of the view that the learned trial judge was right to have made both the Appellants and the 2nd and 3rd Respondents liable jointly and severally.
In Shell Petroleum v Daniel Pessu (2014) LPELR 23325(CA) this Court held as follows:
“It is trite law that if a person orders a policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the policeman. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention.”
See also Afribank v. Onyima (2004) 2 NWLR Pt. 858 Pg. 654
This issue is resolved against the Appellants. I have to commend the lucid and erudite reasoning of the learned trial judge.
In the circumstances, I am of the view that the appeal has no merit and it should be dismissed. The judgment and orders of the High Court of Delta State in Suit No EHC/M9/2010 delivered on 19/5/2010 by Hon Justice Rilo Daibo Harriman are hereby affirmed. Appeal Dismissed. No order as to costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA just delivered.
I agree entirely with the reasoning and the conclusion reached. I do not have anything more useful to add.
The appeal lacks merit, and it is accordingly dismissed by me.
I abide by all the orders contained in the lead Judgment.
Appearances:
E.E. EDET (ASP)For Appellant(s)
M.E. UKUSARE for the 1st Respondent
S.O. ADAMU holding the brief O.J. OGHENEJAKPOR for the 2nd and 3rd RespondentsFor Respondent(s)
