MR. CHINEDU NWOYE & ORS v. EVANGELIST BEN UBAKEZE (2019)

MR. CHINEDU NWOYE & ORS v. EVANGELIST BEN UBAKEZE

(2019)LCN/12934(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/E/211/2010

RATIO

APPEAL: WHETHER THE COURT OF APPEAL HAS THE POWER TO HEAR AN APPEAL ON THE APPELLANT’S BRIEF ONLY WHEN THE RESPONDENT FAILS TO FILE THE RESPONDENT’S BRIEF OF ARGUMENT?

Therefore, going by the provisions of Order 19 Rule 10 of the Court of Appeal rules, which provides for consequences of the failure of a party to file brief of Argument, this Court is empowered to hear and determine this appeal on the Appellants brief alone.PER ABUBAKAR SADIQ UMAR, J.C.A.

APPEAL: AN APPEAL CAN ONLY SUCCEED ON THE STRENGTH OF ARGUMENTS AND NOT ON WEAKNESS OR FAILURE OF A PARTY TO FILE A BRIEF OF ARGUMENT
However, in deciding this appeal based on the Appellants brief alone, I am not unmindful of the position of the law that an Appeal can only succeed on the strength of the arguments vis–vis the position of law and not on the weakness or failure of the Respondent in filing his brief of argument. In the instant case, the Appellants still have a duty to establish to the conviction of this Court that the judgment of the trial Court was actually perverse. See CAMEROON AIRLINES V OTUTUIZU (2011) LPELR-827 (SC).PER ABUBAKAR SADIQ UMAR, J.C.A.

WHEN ISSUES ARE JOINED: THE EFFECT

It is trite that where a case is brought before the Court by pleadings and issues are joined on the pleadings by both parties, the issues must be tried as settled in the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR-3498 (SC) AT 18 (A).PER ABUBAKAR SADIQ UMAR, J.C.A.

PARTIES AT THE TRIAL COURTS ARE BOUND BY THEIR PLEADINGS AND ISSUES

It is also trite that parties at the trial Court are bound by the pleadings and issues raised in their pleadings vis–vis the evidence led. See ETIM V CLASEN VENTURES & ORS (2011) LPELR-3827 (CA) AT 18-19 (G-D).PER ABUBAKAR SADIQ UMAR, J.C.A.

COURT: PRIMARY DUTY OF THE APPELLATE COURT

The law is trite, that a finding or decision or judgment of lower Court which an appellate Court finds to be perverse must be set aside by the appellate Court. This is the one of the legal duties of appellate Court. In the case of EBE V. EBE (2004) 3 N.W.L.R (pt. 860) p. 215, per Olagunju (JCA) on the attributes of a perverse stated pointedly; that a judgment punctuated by such flagrant and fatal error is perverse within the meaning of that expression in ADIMORA V AJUFO (1988) 3 NWLR pt. 80 1 at 16; ODIBA v AZEGE (1998) 9 NWLR pt. 566 at 370, (1998) 7 SCNJ 119, 127, as it paid scanty regard to law such judgment cannot be allowed to stand.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. MR. CHINEDU NWOYE
(a.k.a. Onwuamaeze)
2. MR. TOOCHUKWU ONWUAMAEZE
3. MR. OBIDINMA ONWUNZE
4. MR. EZEADI UZEMEGBUNAM Appellant(s)

AND

EVANGELIST BEN UBAKEZE Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra State High Court of Justice, Holden at Otuocha, delivered on the 3rd August, 2010, Per J.I. NWEZE J. The trial Judge in his judgment awarded the Plaintiff (now Respondent in the instant appeal) nominal damages of N100, 000.00 against the 1st and 2nd Defendants (now 1st and 2nd Respondents) for injurious falsehood.

BRIEF FACTS OF THE CASE
The genesis of the facts that led to the scuffle between the parties is that, the Respondent commenced an action in Suit No. OT/32/2007 against all Akata family members, seeking an order of Court granting the Ubake sub-family of Akata larger family one third of the proceeds of sale of Akata family land. Prior to this development, there had been serious family crisis regarding who would succeed one Elder Ubadigbo Uzumegbuna as chairman of the Akata family and how the proceeds of the sale of the family land would be distributed.

However, the brief statement of facts that culminated into the lingering litigation as gleaned from the records before this Honourable Court are that Respondent

commenced the action against the Appellants sometimes in 2008 and by his statement of claim dated 2nd October, 2008, he sought redress for defamation of his character and for injurious falsehood against his person. It was the case of the Respondent that the Appellants made statements to the police which were false to their knowledge, adding that the said statements were made in the course of police investigation pursuant to a Petition dated 18th March, 2008, written to the Commissioner of Police on behalf of the 1st Appellant on record. The said petition which did not contain the name of the Respondent was tendered in evidence as Exhibit P.9. He further alleged that several persons mentioned therein were stockpiling firearms with an aim of attacking and/or to kill the Appellants. It was also the case of the Respondent that in the course of police investigation, the 1st and 2nd Appellants made statements, wherein they alleged amongst other things that the Respondent pointed them out to gunmen, one of whom released a gunshot aimed at them on the 16th March, 2008.
?
The Respondent went further to alleged that petitions and statements made by the Appellants

culminated into his being arraigned before the Chief Magistrate Court Nteje on count charge of Assault in Charge No. MCN/41C/08, adding that shortly after the said arraignment, the Appellants acting as a team invaded his residence at No.9 First Choice Road Ogbeotu Village, Ogidi with Officers of the State Anti-Robbery outfit (SARS) in a bid to implicate him and cause him to be prosecuted and imprisoned on trumped up charges of Armed Robbery and Gun-running. This according to him, led to his detention at the Crime Monitoring Unit, Awka and subsequently at Zone 9 Police Headquarters, Umuahia.

The Respondent stated that one Elder Ubadigbo Uzumegbuna, who was the chairman of the Akata family meeting for about 35 years also lodged a complaint against the 1st ? 3rd Appellants at the Chief Magistrate Court Nteje in MCN/46C/08 (see pages 160-161 of the records), particularly for alleged offence of giving false information against him.
?
The Respondent alleged further that it was at the Chief Magistrate Court Nteje in MCN/46C/08 that the Police tendered the said petition written by the Appellants, which was admitted as an Exhibit together with the

Statements of the Appellants and both were read openly to the hearing of all present during the trial, thereby labeling the Respondent as a dealer in firearms and as assassin. It was also the case of the Respondent that since he was neither the complainant in the Charge MCN/46C/08 nor was his name mentioned in the petition of the Appellants which projected him as a person that consorts with criminals, a hemp smoker, gun procurer and an assassin and has the capability of chasing away his committee of good friends and business associates. This as could be gleaned from the records was the bases of the Respondent?s claims for defamation and injurious falsehood.

The case of the Appellant as can be gleaned from their joint statement of defence at pages 61-70 of the Record of Appeal compiled and transmitted to this Honourable Court was that the unfounded allegations referred to by the Respondent were consistently presented to the police and after police due investigations, the Respondent was charged and arraigned before the Nteje Chief Magistrate Court in ?Charge N0. MCN/46C/08 ? C.O.P V Benjamin Ubakeze which the Respondent was still standing trial.

In debunking the assertions of the Respondent that his name was not mentioned in the Petition of the Appellants therefore there was no basis for his inclusion in the serious allegations made against him. The 1st Appellant claimed that it was after the petition had been written and sent to the Commissioner of Police, Anambra State and a copy given to him that he observed with shock and dissatisfaction that the Respondent?s name was not included in the said petition. This exclusion according to the Appellants? was omitted by the counsel that was briefed by the 1st Appellant to prepare the said petition on his behalf and the other Appellants. The Appellants went further to state that notwithstanding the inadequacy of the said petition, the Statement of the 1st Appellant made to the police on the 27/3/2008 gave a detailed account of the Respondent?s involvement in the act which led to the writing of the petition.
?
The Appellants vehemently denied the fact that the Respondent was arrested and detained by the Police of the Special Anti-Robbery Squad and that the Respondent had previously brought the said allegation against the 2nd

? 4th Appellants and one Zephniah Okoye in Suit No. HID/MISC. 32/2008 ?Evangelist Ben. Ubakeze V Mr. Zephniah Okoye & 6 Ors at the High Court Ogidi. The Judgment of the Court in the above mentioned suit was pleaded at the Court below wherein judgment was delivered on the 24th September, 2008, dismissing the Respondent?s application for lacking in merit.

It was also the case of the Appellants that contrary to the assertions of the Respondent that the Petition and Statements of the Appellants were read in open Court, the said Petitions and Statements were tendered without objection and their contents were not read in open Court. In further challenge of the Respondent?s assertions, the Appellants tendered the Certified True Copy of the Proceedings in Charge No. MCN/46C/2008.

On a final note, the Appellants in the Court below urged the Court to dismiss the Respondent?s suit as frivolous and lacking in merit.

At the conclusion of trial and upon filing of final addresses by both parties, the learned trial judge on 3rd August, 2010 delivered his considered judgment wherein he held at page 236 of the records that:

?The evidence before this Court shows that it was only the 1st and 2nd defendants that made false statements to the police. There is no wrong doing attributed to the 3rd and 4th defendants. The case against them is hereby dismissed.
As for the 1st and 2nd defendants, they were arraigned in charge No. MCN/46C/2008 on the 9th of April, 2008. By that date the police had concluded investigation into the matter. It means that by that day the plaintiff had been released. The plaintiff did not state when he was arrested and detained and when he was released. It is therefore not easy to assess the damages due to him. In such circumstances the Court can only award nominal damages. SEE JAMMAL ENGINEERING V. WROUGHT IRON (1970) NCLR 295.
In the premises, I award the plaintiff nominal damages of N100,000.00 against the 1st and 2nd defendants for injurious falsehood. There shall be cost of these proceedings against the 1st and 2nd defendants which is assessed at N50,000.00.?

However, the Appellants being dissatisfied with the judgment, have appealed to this Court vide an Original Notice of Appeal dated and filed on 18/8/2010.

Subsequently, the Appellants filed an Amended Notice of Appeal dated 9th day of February, 2016 and filed on the same date.

In line with the rules of this Court, on the 9th day of February, 2016 filed their Appellants? brief of argument dated 9th day of February, 2016. The said brief was settled by ONYINYE UZOMA ESQ. However, on the face of the Record, the Respondent did not file any brief. In compliance with Order 19 Rule 10 of the rules of this Honourable Court, this Court proceeded to hear the Appeal based on the Appellant?s brief alone on 24th January, 2019, wherein the counsel for the Appellants adopted his brief of argument and made adumbrations thereto on the issues and arguments in support of his various contentions in the appeal.

Learned counsel for the Appellant distilled the following issues for determination of this appeal to wit:
?1. Whether there was any proof before the lower trial Court (sic) that the Respondent/Plaintiff was ever arrested, detained and tortured at the cell of the Special Anti-Robbery Squad (SARS) on the basis of which the trial judge relied for his judgment in favour of the Respondent against the Appellants (formulated from grounds one and four).

2. Whether the trial judge was right in law when he relied on the fact that the Appellants were charged, to a Court for ?false information? by the police in charge No MCN/46c/2008 and on the basis of the charge whose trial has not been concluded reached the conclusion and judgment that the allegation contained in the statements of the 1st and 2nd defendant/Appellants to the police were false intended purposely to cause Respondent trouble and damages (formulated from grounds two and three)
3. Whether the Respondent Relief as contained in his pleadings before the lower Court was sought on two grounds and if so whether the reliefs depended solely on the proof of publication in Court and ought to be considered as failed with the failure of the Respondents claim for defamation and/or proof of publication (formulated from Grounds five and six).
4. Whether considering from the totality of the evidence before the lower Court the Respondent can rightly be said to have proved injurious or malicious falsehood warranting the judgment of the lower Court in his favour (formulated from grounds seven, eight and nine).?

APPELLANTS? ISSUE ONE
Learned counsel to the Appellant submitted that the trial Court in its judgment at pages 235 and 236 of the Records held thus:
?I do not think it could be seriously argued that anybody who was arrested, detained and tortured in the cell of the Special Anti-Robbery Squad has not suffered actual loss. The Plaintiff has therefore proved actual loss; he has therefore proved all that is required to sustain a case of injurious falsehood against the 1st and 2nd defendants.”

Flowing from the above, Counsel submitted further that in the statement of claim and the sworn deposition of the Respondent, there is no single line of the said Court processes where it was stated that the Respondent was tortured in the cell of the Special Anti-Robbery Squad, and that accounted for the reason why the Appellants did not join issues with the Respondent on the point.

?It is also the submission of counsel to the Appellants that in the Respondent?s action on the issue of his arrest, detention and torture in SUIT NO HID/MISC.32/2008, the Respondent in paragraph (t) of his

?Grounds for seeking Relief? in his said action for the Enforcement of his fundamental rights stated clean clear that ?that the Applicant escaped from his flat and ran away from the premises before the invaders could gain entrance into the premises?. The said Court process as contained at page 114 of the Record was before the trial Court as Exhibit long before the delivery of the said judgment. Notwithstanding the inherent position, the trial judge neglected that and preferred to base his finding of proof of the Respondent?s arrest, detention and torture on the Respondent?s clear self-contradiction as contained in his judgment.

Counsel also submitted that it is also clear from the abundance of evidence before the trial Court that the Respondent was never arrested let alone being detained and tortured as Exhibit D1 which is the Certified True Copy of the Proceeding in CHARGE NO. MCN/46C/2008 as shown at pages 139-162 of the records shows clearly that the persons arrested by the Police as contained in the evidence of one Police Inspector Lawrence Ede did not include the Respondent let alone his being detained and tortured. ?

Learned counsel submitted further that Exhibit D1 tendered during trial shows clearly that contrary to the evidence of the Plaintiff/Respondent in Court to the effect that he made statement to the police at the Special Anti-Robbery Squad (SARS) and which the trial Judge upheld and relied upon in his judgment, the evidence of PW3, one Inspector Celestine Ani, in the said Exhibit proves that the Respondent was not a witness of truth as the said PW3 in the course of his evidence tendered statements made to him by all the persons arrested but the Respondent was neither mentioned as one of those arrested nor was any statement tendered by the inspector Celestine Ani as belonging to the Respondent.

Counsel submitted that the lower Court at page 5 of its judgment contained in 236 of the Records held as follows:
?The Plaintiff did not state when he was arrested and detained or when he was released. It is therefore not easy to assess damages due to him?

Flowing from the preceding submission, counsel submitted further that notwithstanding the failure to satisfy the trial Court concerning any of the above, the

trial Court still believed that the Respondent was arrested, detained and tortured and that he made statements to the police at the Special Anti-Robbery Squad. It is the submission of Counsel that it is obvious that from the foregoing facts that there was no evidence before the lower Court upon which it could rightly predicate its findings that the Respondent has proved actual loss as stated in its judgment and that the Respondent woefully failed to satisfy the requirements outlined by the Supreme Court in the case of NEWBREED ORG. LTD V ERHOMOSELE (2006) 5 NWLR (PT. 974) 499.

On the final analysis on this issue, Counsel argued that the Courts should base their decisions on empirical evidence, factual situations and factual account of events presented before them by the parties, and not on imagined or undisclosed facts or on evidence unsupported by pleadings. Counsel referred this Honourable Court to the case of ALHAJI H.M MUSTAPHA V USMAN ABUBAKAR & ANOR (2011) 2 NWLR PT. 1233 PAGE 123 RATIO 17.
Counsel urged this Honourable Court to resolve this issue in favour of the Appellants.

APPELLANTS? ISSUE NO. 2
On this issue, learned counsel to the Appellants submitted that the trial Court in its judgment at page 236 of the Record stated as follows:
?The evidence before the Court shows that it was only the 1st and 2nd defendants that made the false statement to the police.”

Counsel relying on the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 argued that the law is clear that an accused person is presumed innocent of the offence for which he is charged until proven guilty. It is on the strength of this that counsel submitted that at the time of the judgment of the lower Court, there was a pending charge against the 1st and 2nd Defendants before the Chief Magistrate Court Nteje (i.e. MCN/46c/2008) for the offence of false information to the Police and that on the very day when the said judgment was delivered i.e. on the 3rd August, 2010, fresh plea was taking concerning the charge before the magistrate different from that partly heard the matter in Exhibit D1 tendered at the trial.

Counsel submitted that there was no evidence before the trial Court upon which the trial Court could rely to hold that the statements of the 1st

and 2nd Appellants to the police were false. Counsel relying on the case ofA.S.E.S.A V EKWENEM (2009) 40 NSCQR 51; EJEZIE V ANUWU (2008) 34 NSCQR 996, argued that the trial Court had a duty not to speculate or conjecture.
Counsel urged this Honourable Court resolve this issue in favour of the Appellants.

APPELLANTS? ISSUE NO. 3
On this issue, counsel submitted that from the Respondent?s Statement of Claim, his deposition on oath and those of his witnesses as contained in pages 5-9, 11-15, 16-28 of the Records, it can be clearly ascertained that the alleged loss suffered and the Relief which he claimed at page 23 of his said statement of claim and deposition on oath were in consequence of the alleged publications of the petition and written statements of the Appellants which were allegedly tendered and ?caused to be read to the hearing of all present labeling the Plaintiff as a dealer in arms and an assassin.”

Counsel submitted further that from the paragraph and subsequent ones that the Respondent?s alleged loss stated in paragraph 23 of the Statement of Claim and deposition on

oath was ?occasioned? by the alleged publication of the aforesaid documents which according to the Respondent and his witnesses, was tendered and read in open Court. It is the submission of Counsel that it is obviously clear before the trial Court by virtue of Exhibit D1 and the evidence before the Court that the petition of the 1st Appellant (alleged to be the petition of all the Appellants) were not at any time read in open Court, therefore the Respondent?s allegation of loss, defamation of character and injurious falsehood were therefore baseless, hinging on falsehood.

Counsel argued that it is the law that the Court is duty bound to make findings on every piece of evidence adduced before it and make pronouncement on it one way or the other and where it fails to do so on material and important issues of fact, the Appellate Court will have no other alternative, but to allow the Appeal. Counsel referred this Court to the case of OLAGUNJU V ADESOYE (2009) 38 NSCQR 262 at 307.

In the final analysis on this issue, counsel submitted that the evidence before the trial Court via Exhibit D1 shows clearly that the alleged documents were not read

in open Court and that has weakened the Respondent?s case because the Respondent?s relief was sought on the ground namely, publication of the 1st Appellant?s petition and the 1st and 2nd Appellants? statement to the police. Counsel finally urged this Court to resolve this issue in favour of the Appellants.

APPELLANTS? ISSUE NO. 4
Learned counsel to the Appellants submitted that the Respondent?s alleged cause of action in Suit No. OT/58/2008 were clearly stated in paragraphs 15-21 of the Respondent?s Statement of Claim which can be found at pages 5-9 of the Record of Appeal and Paragraphs 15-21 of the Respondent?s deposition on oath at pages 11-13 of the Record.

Flowing from the preceding paragraph, counsel submitted further that a perusal of the paragraphs referred to above will show that the alleged cause of the Respondent?s action was the alleged reading ?to the hearing of all present? at the Chief Magistrate Court, Njete in Charge No. MCN/46C/2008 ?a petition written by all the Defendants? i.e. the Appellants as well as the Appellants? statements to the

policemen which were tendered at the lower Court as Exhibits P9, P4 and P5 respectively.

Counsel submitted further that the Respondent?s cause of action was not proved at the trial as the Respondent at the conclusion of his evidence was unable to show the trial Court that the said Exhibits P9, P4 and P5 were read in open Court to the hearing of all and that the Appellants on the other hand through Exhibits D1 which is the Certified True Copy of the Magistrate Court?s Proceedings in charge NO. MCN/46C/2008, proved convincingly that Exhibits P9, P4 and P5 were never read in open Court ?to the hearing of all present?.

It is the submitted that the lower Court erred in law not to have made a finding of fact on whether or not the alleged Exhibits P9, P4 and P5 were read in open Court ?to the hearing of all present? as that was made an issue before the Court.

MCN/46C/2008 as shown at pages 139-162 of the records shows clear that the persons arrested by the Police as contained in the evidence of one Police Inspector Lawrence Ede did not include the Respondent.

Counsel referred this Honourable Court to the sworn depositions of PW3, Engineer Okwudili Chibuzor and PW4, Chief Ernest Olisaeloka Enweugwu as contained in pages 20-24 and 25-28 of the Records of Appeal respectively. Counsel also referred this Honourable Court to the answers of same PW3 and PW4 while under cross-examination at pages 211-212 and 212-214 of Records respectively. He submitted that there are obvious contradictions in their testimonies as to the issue of arrest, torture and detention of the Respondent. Counsel on the submissions above argued with heavy reliance on the case of AREMU V ADETORO (2007) 31 NSCQR 62 at 78 that where a witness in a case gives contradictory evidence, the Court cannot pick and choose.

Counsel on a final note urged this Honourable Court to allow this appeal and set aside the judgment and consequential orders of the trial Court.

RESOLUTION
It is important at this stage to put the records straight. The Respondent failed to file a Respondent?s brief in response to all the arguments and submissions of the Appellants in their brief. Therefore, going by the provisions of Order 19 Rule 10 of the Court of Appeal rules, which provides for consequences of the failure of a party to file brief of Argument, this Court is empowered to hear and determine this appeal on the Appellants? brief alone.
However, in deciding this appeal based on the Appellants? brief alone, I am not unmindful of the position of the law that an Appeal can only succeed on the strength of the arguments vis–vis the position of law and not on the weakness or failure of the Respondent in filing his brief of argument. In the instant case, the Appellants still have a duty to establish to the conviction of this Court that the judgment of the trial Court was actually perverse. See CAMEROON AIRLINES V OTUTUIZU (2011) LPELR-827 (SC).

I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted brief of argument of counsel for the Appellants in support of his contention in this appeal.

The issues for determination canvassed by the learned counsel are undoubtedly clear to me.

I have perused the entire pleadings of both parties including the evidence led by parties and all the exhibits tendered in the course of trial. I have considered the issues formulated by Appellants alongside the grounds of appeal and I am of the considered opinion that issue stated below is apt and germane for the determination of the appeal:
?Whether in consideration of the totality of evidence before the lower Court, the Respondent was entitled to the judgment in his favour.”

It is believed that all the issues distilled by the Appellants are subsumed in the above stated issue.

It has become a routine principle in our adjudicatory process that an Appellate Court does not have any business with the finding of facts made by the trial Court, unless where it is manifestly obvious that the reasoning and conclusion of the trial Court was perverse against the interest of justice. The law is trite, that a finding or decision or judgment of lower Court which an appellate Court finds to be perverse must be set aside by the appellate Court. This is the one of the legal duties of appellate Court. In the case of EBE V. EBE (2004) 3 N.W.L.R (pt. 860) p. 215, per Olagunju (JCA) on the attributes of a perverse stated pointedly; that a judgment punctuated by such flagrant and fatal error is perverse within the meaning of that expression in ADIMORA V AJUFO (1988) 3 NWLR pt. 80 1 at 16; ODIBA v AZEGE (1998) 9 NWLR pt. 566 at 370, (1998) 7 SCNJ 119, 127, as it paid scanty regard to law such judgment cannot be allowed to stand.

In the instant appeal, the Appellants? Counsel made heavy weather on non-consideration of issues before the trial Court. On this note, I shall seek to address the issues of facts posited before the trial Court which ordinarily, the

trial Court ought to weigh. For ease of clarity on point of reference, I want to reproduce the opinion of the learned trial judge as copiously lifted from pages 235-236 of the Record as thus:
?I do not think that it could be seriously argued that anybody who was arrested, detained and tortured in the cell of the Special Anti-Robbery Squad has not suffered actual loss. The Plaintiff has therefore proved actual loss. He has thereby proved all that he is required to prove to sustain a case of injurious falsehood against the 1st and 2nd defendants.”

After a close and careful perusal through the pleadings of the Respondent as PW1 during trial vis–vis his evidence and also the Exhibits tendered, particularly Exhibit D4 which is the Certified True Copy of the Judgment of the Court in Suit No. HID/MISC/32/2008 Evangelist Ben. Ubakeze V Mr. Zephniah Okoye & 6 Ors., which was pleaded by the Appellants in paragraph 6 of their joint statement of defence, I see no basis for this Court to hold that the Respondent was indeed arrested, detained and tortured in the cell of the Special Anti-Robbery Squad.

It is important to point out that Exhibit D4 is an action instituted by the Respondent against the Appellants for the enforcement of his fundamental rights relying on the petition and statements made by the Appellants. I have carefully perused Exhibit D4, i.e. the Application, statement in support and the grounds upon which same was sought. There was nowhere it was stated by the Respondent, as Applicant in the suit that he was arrested, detained and tortured in the cell of the Special Anti-Robbery Squad. The Respondent stated in paragraphs ?S? and ?T? of the grounds upon which the said Application was sought thus:
(S). ?That the immediate reaction of the Appellant was that the 1st – 4th Respondents has secured Policemen to come and assassinate him given that barely 48 hours ago on 28/3/08, the Applicant was charged to Court at the Chief Magistrate Court of Njete in MCN/41c/08 at the behest of the 1st ? 4th defendants(sic).?
(T) “That the Applicant escaped from his flat and away from the premises before the invaders could gain entrance into the premises.? (See page 114 of the Records)

It is pertinent to add that the above suit was filed by the Respondent on the 16th day of April, 2008 shortly after the petition in Exhibits 4 and the statements were allegedly made to the police by the Appellants. It is equally important to note that the trial Court had in Suit No. HID/MISC/32/2008 Evangelist Ben. Ubakeze V Mr. Zephniah Okoye & 6 Ors delivered its judgment on 2nd September, 2008 wherein the Respondent?s Application was dismissed for lacking in merit. (See pages 128-132 of the records).

Surprisingly when the suit that culminated into the instant appeal was filed, the Respondent vehemently maintained that he was arrested, detained and tortured by the Officers of the Special Anti-Robbery Squad. (See Page 206, lines 1-6 of the Records of appeal).
?
The puzzle I find difficult to resolve is that if the Respondent was truly arrested, detained and tortured as claimed, I see no reason why the issue of a fundamental claim was omitted in his action in Exhibit 4. The omission in my considered opinion was not accidental but a true reflection of what transpired between the Appellants and the Respondent. It is believed that the Respondent upon having his application

dismissed; merely garnished his statement of facts as contained in the old suit to reflect his arrest, detention and torture. I agree with learned counsel for the Appellants that the Respondent is not a witness of truth.

On the strength of the forgoing, I agree with learned counsel for the Appellants that there was no evidence by the Respondent showing that he was as a matter of fact arrested, detained and tortured by the officers of the Special Anti-Robbery Squad.

Secondly, I shall seek to consider whether the trial Court was right when it held that the Respondent proved all that he was required to prove and sustain a case of injurious falsehood i.e. that all the allegations contained in the statements of the 1st and 2nd Appellants to the police were false and were intended to cause the Respondent troubles and damages.

It is important to state the fact that the trial Court relied on the fact that the Appellants were charged to a Magistrate Court for ?false information? by the police in Charge No. MNC/46C/2008. I say this because the charge heavily relied upon by the trial Court had not been concluded as at the time when the

judgment being appealed against was delivered. The trial Court held at pages 234-235 of the records thus:
?In the instant case, the defendants admitted that they made statements to the police. On the strength of the statement, the police invaded the plaintiff?s house. The police which investigated the matter was of the view that the information was false hence the 1st and 2nd defendants were charged to Court for giving of false information to the police.”

Flowing from the record, the Respondent maintained in his statement of claim that his name was not mentioned in the petition but that in the statements made by the Appellants to the police, the Appellants alleged amongst other things that he pointed them out to gunmen, one of whom released a gunshot aimed at them on the 16th March, 2008. The Respondent at the trial Court made an attempt to disassociate himself from the petition, stating that the petition was not directed at him. On this note there was no basis for the false accusation. However it is important to note that the statements of the Appellants connected the Respondent to the allegations contained in Exhibit 9 which is the petition. ?

It was after the petition was written to the Commissioner of Police and statements made that police investigation commenced. During the course of investigation, the police carried out some searches and made some arrest and amongst those whose residence were searched was the Respondent. Attempt was also made to arrest him but he said in Suit No. HID/MISC.32/2008 that he escaped and ran away before the invaders who were undoubtedly, the officers designated to effect his arrest got to his house.

There is no doubt from the evidence led at the trial that although the name of the Respondent was not mentioned in the petition, he saw himself as part of those who were said to be stockpiling firearms and that he pointed the Appellants out to gunmen, one of whom released a gunshot aimed at them on the 16th March, 2008. The evidence of PW3 at page 208 of the records is helpful in this regard and I shall proceed to reproduce same below. PW3 testified under cross examination thus:
?We were accused of Armed Robbery, that the plaintiff is an arsonist, supplies Indian hemp, associates with thieves and that we deal with guns and firearms.

The petitions are in evidence as Exhibit P9, P2 and P3. I know A.O Nwankwo as their lawyer, I don?t know if he also wrote Exhibit P9. A.O Nwankwo is the only lawyer I know engaged by the defendants. Exhibit P9 were written at the instance of the 1st to 2nd defendants. That was why they are standing trial on the charge of giving false information.?

The Respondent in one vein sets the foundation of this action on the petition and the statements made by the 1st and 2nd Appellants and in the same vein tries to distance himself from the proceedings in charge NO. MCN/46C/2008 because according to him, his name was not mentioned in the petition.

I am of the considered view that since the trial Court rightly took cognizance of the existence of the trial in Charge NO. MCN/46C/2008 alleging false statement to the Police against the Respondent, the said trial which was yet to be concluded, the trial Court ought not to have made a pronouncement in respect of the matter yet to be decided by a Court of competent jurisdiction. The records of proceedings in the suit were duly tendered before him and marked as Exhibit D1, but he shut his eyes to the obvious. ?

At that point, the veracity of the statements of the Appellants was yet to be determined and going by the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, the Appellants enjoyed the presumption of innocence until contrary is proved. Flowing from the above, I am of the considered opinion that the trial Court erred by not considering Exhibit D1. In the light of the foregoing, I so hold this issue is resolved in favour of the Appellants.

On the whole, I resolve that this Appeal is meritorious and it is hereby allowed. Accordingly, the judgment of the trial Court Per J.I. NWEZE J. delivered on the 3rd August, 2010 in Suit No. OT/58/2008: EVANGELIST BEN UBAKAEZE V MR. CHINEDU NWOYE A.K.A ONWUAMAEZE & 3 ORS is hereby set aside. I make no order as to cost.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother ABUBAKAR SADIQ UMAR JCA. He has dealt exhaustively conclusively with all the issues in the appeal, I agree with his reason and conclusions. I abide by the orders in the lead judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR JCA and I totally endorse the reasoning and conclusions therein.

?For the more detailed reasoning in the lead judgment of my learned brother, I equally find merit in the appeal and I accordingly allow it. I also adopt the consequential orders in the lead judgment as mine.

Appearances:

Onyinye Uzoma, Esq.For Appellant(s)

For Respondent(s)

Appearances

Onyinye Uzoma, Esq.For Appellant

AND

For Respondent