AGU v. DURU & ORS (2021)

AGU v. DURU & ORS

(2021)LCN/15052(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, February 10, 2021

CA/KN/75/2015

RATIO

CONSIDERATIONS TO DETERMINE WHETHER AN ISSUE FOR DETERMINATION DISTILLED IN AN APPEAL ARISES FROM THE GROUND OF APPEAL TO WHICH IT IS CONNECTED

Now, it is pure common sense and logic that in determining whether an issue for determination distilled in an appeal arises from the ground of appeal to which it is connected, it is not enough to focus on mere semantics, i.e. the words used in framing the issue for determination, without looking at the arguments canvassed thereon and identifying the complaints addressed under the issue for determination and see whether they are the same as those raised by the ground of appeal and in its particulars. It is settled law that in ascertaining the complaint in a ground of appeal, the ground of appeal as formulated and the particulars thereto are to be read and construed together – Odukwe Vs Achebe (2008) 1 NWLR (Pt 1069) 40, Chidi Vs Consolidated Hallmark Insurance Plc (2018) LPELR 44384(CA). Where a ground of appeal and an issue for determination address the same complaints, it will be foolishness to say that the issue for determination did not emanate from and/or is not related to the ground of appeal.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ON WHOM LIES THE BURDEN TO JUSTIFY THE LAWFULNESS OF THE ARREST AND DETENTION OF THE PLAINTIFF IN A FUNDAMENTAL RIGHTS’ ACTION

It is trite that where the arrest and detention of a claimant is admitted by a defendant in a fundamental rights’ action, the burden is on such defendant to justify the lawfulness of the arrest and detention – Ubani Vs Director, State Security Service & Anor (1999) 11 NWLR (Pt 625) 129, Fajemirokun Vs Commercial Bank (Credit Lyonnais) Nig. Ltd (2002) 10 NWLR (Pt 774) 95, Jim-Jaja Vs Commissioner of Police (2011) 2 NWLR (Pt 1231) 375, Obiegue Vs Attorney General, Federation (2014) 5 NWLR (Pt 1399) 120, Salami Vs Olaoye (2018) LPELR 47256(CA). The law is that fundamental rights of a citizen are not absolute –Ukaegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342. Section 35 (1) (c) of the 1999 Constitution says that a person’s right to personal liberty can be breached upon a reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence. Section 41 (2) (a) states that a person’s right to freedom of movement may be negated by imposing restrictions on his movement where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

BARRISTER A. C. AGU APPELANT(S)

And

CYRIL DURU COMMISSIONER OF POLICE, KANO STATE BASHIR O/C ANTI FRAUD, NIGERIA POLICE, KANO RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the High Court, Kano State in Suit No K/M483/2013 delivered by Honorable Justice Aisha I. Mahmoud on the 20th of September, 2013.

The first Respondent commenced this action in the lower Court as a Fundamental Rights application against the second Respondent, third Respondent and the Appellant as first to third respondents respectively and his claims were for:
i. A declaration that the detention/invitation and continued detention of the Applicant at the Anti-Fraud Department of the Nigeria Police, Kano by the police or persons or security agents acting for and on behalf or as agents of the Police is illegal, unconstitutional, null and void.
ii. A declaration that the restriction of the movement of the first Respondent with the Anti-Fraud Department, Nigeria Police Headquarters Kano or persons or security agents acting for and on behalf or as agents of the Police at the instance of the Appellant is illegal, unconstitutional, null and void.
iii. An order of perpetual injunction

restraining the second and third Respondents and the Appellant from taking any further steps in connection with or relating to or arising from the invitation and complaint made by the Appellant against the first Respondent/from further interfering in any manner whatsoever with the first Respondent’s enjoyment of his fundamental rights to personal liberty and freedom of movement.
iv. An order of Court to bring the title document of No 35, Abeokuta Road, Sabon Gari, Kano forcefully collected and seized by the third Respondent to the Court and releasing same from unlawful custody to the Board of Trustees Umuaka Development Union, Kano, forthwith.
v. N1 Million jointly and severally against the second and third Respondents and the Appellant being damages for the aforesaid illegal and unconstitutional violation of the first Respondent’s rights as aforesaid and a letter of apology.

The case of the first Respondent on the affidavit in support of the application was that he is a native of Umuaka in Imo State and a member of the Umuaka Development Union, Kano Branch and that the activities of the Union is governed by a constitution. It was

his case that at a point in time, the Union became desirous of purchasing the property lying and being at No 35, Abeokuta Road, Sabon Gari Kano, but it lacked the funds for the purchase of the property and it was agreed that members of the Union contribute funds which were treated as shareholdings in the ownership of the property. It was his case that though receipt of purchase of the property and the title documents to the property were in the name of Umuaka Development Union, the property was actually owned in shares by the members of the Union who contributed the funds for its purchase and he exhibited the shareholding structure of the ownership of the property, the constitution of the Union and the memorandum of understanding of the purchase of the property.

It was the case of the first Respondent that Umuaka Development Union had a share in the ownership of the property and it was always represented by the Appellant at the shareholders meeting and that in actualization of the memorandum of understanding of the purchase of the property, a seven-man Board of Trustees was set up to manage the property and he was appointed Chairman of the Board, and had

already served five years and was serving another five years. It was his case that property was managed by the Board of Trustees for about ten years without any rancor and that proceeds from the building were distributed amongst the shareholders and that in 2005, the Appellant as Chairman of the Umuaka Development Union collected the dividends due to the Union in the sum of N44,800.00.

It was the case of the first Respondent that the law firm of the Appellant, Messrs A. C. Agu & Co was appointed by the Board of Trustees as the caretaker of the property and the Appellant rendered accounts to the Board and was paid 10% of the rent collections as his commission and the Appellant had custody of the title documents of the property. It was his case that at a point in time the Board of Trustees took a decision to collect the title documents of the property from the Appellant and lodge same for safe keeping with UBA Plc and that UBA Plc declined taking the title documents for safe keeping because of the prevailing crisis in the North at the time and the Board of Trustees resolved that the first Respondent should take custody of the documents and which he did

and kept for over ten years. It was his case that in 2010, the Board of Trustees slashed the commission due to the law firm of the Appellant to 3% of collections and that the Appellant did not take kindly to this decision.

It was the case of the first Respondent that around 2010 the shareholders of the property agreed to demolish the frontage of the property and to erect a two storey structure thereon and they mandated the Board of Trustees to source the funds for the construction and some of the shareholders contributed money to increase their shareholding in the ownership structure, while others advanced loans to the Board and that the Appellant gave a loan of N200,000.00. It was his case that to raise additional funds for the construction, the Board of Trustee collected advance rent payments from the tenants on the property. It was his case that it was around this time that the Appellant was made Chairman of the Umuaka Development Union and he was unhappy that he was not paid commission on the advance rents collected, and he was still reeling from the slashing of his commission on collections from 10% to 3% by the Board.

It was the case of the first Respondent that the Appellant thereafter locked up the entrances into the property with padlocks and wrote a letter to him dissolving the Board of Trustees and stated that he was the only person who could let out the property. It was his case that the actions of the Appellant generated a lot of tension in the Union and amongst the shareholders of the property and this led to claims and counterclaims on the ownership of the property and that the Appellant caused his arrest by the second and third Respondents on the 1st of February, 2013 for no reason and that the only condition given by the third Respondent for his release was that he should produce the title documents of the property. It was his case that some elders of the Union intervened and came to the Police Station to secure his release but that the third Respondent insisted on the production of the title documents of the property and he and the Investigating Police Officer, in the company of the elders of the Union, went to his house to collect the title documents and handed same to the third Respondent.

It was his case that upon learning of the intervention of the elders of the Union, the

Appellant at the next meeting of the Union held on the 10th of February, 2013 announced the termination of the membership of the first Respondent and of the thirteen elders who went to secure his release from the Police Station and barred them from the property in question. It was his case that this led to an action commenced on behalf of the owners of the shares in the property against the Appellant in Suit No K/101/2013 – Barrister M. N. Duru & 12 Ors Vs Barrister A. C. Agu & 2 Ors in the High Court of Kano State and that the High Court made orders of interim injunction restraining the Appellant and his cohorts from locking up or tampering with the property in question and directing all securities agencies to grant unimpeded access to the property to the owners of the shares in the property.

It was the case of the first Respondent that the order of Court was served on the second and third Respondents and notwithstanding which, and the fact that the issue of the ownership of the property is pending before a competent Court, the second and third Respondents continued inviting him and his sureties to the Police Station at the behest of the

Appellant and these they have done over ten times for no just reason. It was his case that the actions of second and third Respondents and the Appellant amounted to an interference with his fundamental rights as guaranteed under the Constitution.

The second and third Respondents, as first and second respondents, filed a counter affidavit and it was their case that by reason of a letter addressed to the second Respondent and minuted to the third Respondent, the Umuaka Development Union alleged cases of breach of trust, forgery and impersonation against the first Respondent and a team was detailed to investigate same. It was their case their officers went to the shop of the first Respondent to invite him to the Police Station on the 1st of February, 2013 and that the first Respondent willingly followed the officers and he was released on bail on the 2nd of February, 2013 within twenty-four hours. It was their case that the first Respondent denied being in possession of the title documents of the property in dispute and denied receiving them from the Appellant and he also denied all the allegations of impersonation and forgery made by the Union. It was their

case that they executed a search warrant on the residence of the first Respondent and during which they recovered the title documents of the property and that the documents were originals and they were in the name of Umuaka Development Union. They admitted inviting the first Respondent and his sureties to attend the Police Station on different dates and it was their case that the case reported to the Police disclosed a criminal complaint and not a civil complaint.

The Appellant, as third respondent, filed a counter affidavit in response and it was his case that he was the Chairman of the Umuaka Development Union and that the first Respondent had ceased to be a member of the Union as his membership was determined in February, 2013. It was his case that the property at No 35 Abeokuta Street, Sabon Gari, Kano was purchased in 2001 during the tenure of his predecessor in office and the documents were in the name of the Union and they were signed by the then Chairman and Secretary of the Union and the first Respondent was only appointed as the Chairman of the Plot Committee charged with the responsibility of looking for and securing a property to be purchased

by the Union, while he was appointed as the caretaker of the property. It was his case the property was purchased by funds generated from members of the Union as loans and that the Union paid interest, in servicing the loans, on yearly basis to the members who gave the loan and who elected to defer the repayment till a future date.

It was the case of the Appellant that the title documents were in the custody of his predecessor in office and that they were handed to him upon his being elected Chairman of the Union and he kept same safe until his rented apartment was affected by the crisis of 2004 and whereupon he had to relocate to a hotel and he then handed the title documents of the property to the first Respondent who owned his own house for safe keeping. It was his case that the memorandum of understanding of the shares ownership structure of the property referred to by the first Respondent was strange and unknown to the members and leadership of the Union and neither was the constitution of the Plot Committee members into a seven man Board of Trustees for the management of the property known to or approved by the Union.

It was the case of the

Appellant that the Plot Committee of the first Respondent was dissolved by the Union on the 16th of November, 2011 and the first Respondent was directed to return the title documents of the property to him, but that the first Respondent initially denied being in possession of the documents and later change tact and said the documents were missing. It was his case that the first Respondent clandestinely master minded alterations to the Constitution of the Union and that the altered Constitution was rejected by the Union and was not signed by its leadership. It was his case that the Union reported the infractions of the first Respondent to the second and third Respondents for investigation and that upon invitation, the first Respondent followed the Police to the Police Station quietly and was treated decently and released on bail within twenty-four hours. It was his case that the first Respondent, at the Police Station, denied being in possession of the title documents and by reason of which a search warrant was issued and executed on his house and wherein the title documents of the property were discovered and were taken custody of by the Police.

It was the case of the Appellant that the Union has a right to report the suspicion of commission or attempted commission of a crime to the second and third Respondents for investigation and prosecution and the forgeries and impersonations carried out by the first Respondent were criminal offences that the Union did not condone. It was his case that the Union complained to the Commissioner of Police Kano and pursuant to which the first Respondent was taken to the Police Station and documents related to the complaint were recovered from him and this matter was commenced for the purpose of stopping the Police from prosecuting the first Respondent.

The lower Court heard the matter on the merits and it delivered a considered Ruling and the highlights of which were that:
i. The invitation and detention of the first Respondent by the second and third Respondents on the basis of the report of either the Appellant alone or alongside the Umuaka Development Union did not amount to a breach of the first Respondent’s fundamental rights.
ii. The issue involved in the entire case was the true nature of the ownership of the property at No 35, Abeokuta Street,

Sabon Gari, Kano and that having discovered the original title documents of the property and in view of the fact that the question of the ownership structure was pending before the High Court of Kano State, the role of the second and third Respondents had ended and the lower Court granted the prayer for perpetual injunction restraining the second and third Respondents and the Appellant from taking any further steps in connection with or relating to or arising from the invitation and complaint made by the Appellant against the first Respondent pending the determination of the Suit No K/101/2013 – Barrister M. N. Duru & 12 Ors Vs Barrister A. C. Agu & 2 Ors.
iii. The lower Court refused the other claims of the first Respondent.

The Appellant was dissatisfied with the portion of the decision of the lower Court granting the order of perpetual injunction and he caused a notice of appeal dated the 18th of October, 2012 and containing two grounds of appeal to be filed against it.

In arguing the appeal before this Court, the Appellant filed a brief of arguments dated the 30th of April, 2018 on the 3rd of May, 2018. On his part, the first

Respondent filed a notice of preliminary objection dated the 23rd of May, 2018 on the 24th of May, 2018, challenging the competence of the appeal, as well as a brief of arguments also dated the 23rd of May, 2018 on the 24th of May, 2018. Counsel to the Appellant filed a Reply brief to the arguments on the preliminary objection of the first Respondent and it was dated the 11th of December, 2018 but filed on the 14th of January, 2019. Counsel to the second and third Respondents filed a brief of arguments dated the 4th of January, 2019 on the 14th of January, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective processes on the preliminary objection of the first Respondent and on the substantive appeal.

Before proceeding to consider the preliminary objection of the first Respondent and the substantive appeal, this Court notes that the second and third Respondents contended strenuously in their brief of arguments against the decision of the lower Court complained about by the Appellant and they urged the Court to allow the appeal. It is elementary that the primary role of a respondent in

an appeal is to support or defend the decision of the lower Court –Elochin (Nig) Ltd Vs Mbadiwe (1986) 1 NWLR (Pt 14) 47, Adefulu Vs Oyesile (1989) 1 NWLR (Pt 122) 377, Buhari Vs Obasanjo (2003) 17 NWLR (Pt 850) 510, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pr 1618) 245. Where a respondent desires to depart from this traditional role and wants to contend against the decision of a lower Court, he must file a notice of cross appeal – Obi Vs INEC (2007) 11 NWLR (Pt. 1046) 565, Cameroon Airlines Vs Otutuizu (2011) 4 NWLR (Pt. 1238) 512. Where a respondent fails to cross appeal, he cannot be heard to attack the decision of a lower Court and cannot argue in support of an appeal.
These points were comprehensively explained by the Supreme Court in the case of Zakirai Vs Muhammad (2017) 17 NWLR (Pt 1594) 181 thus:
“It is a well-established principle of law that the primary duty of a Respondent in an appeal is to support the judgment/decision of a lower Court appealed against. Where a Respondent is not comfortable with a finding, not the entire Judgment, which he considers fundamental, he can challenge same by filing a

cross-appeal … Where the Respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the Court, he must then file a Respondent’s Notice …
Without a cross-appeal or Respondent’s Notice, he will not be allowed to attack the judgment, and the effect of violating this rule is that arguments in his brief in support of the Appellant will be ignored … In this case, the fourth Respondent urged this Court to allow the appeal in Appellant’s favour, which is wrong, and the end result is that the arguments in his brief will be ignored.”
The second and third Respondents, in the present case, did not file a notice of cross appeal and thus, the entire arguments contained in their brief of arguments condemning the decision of the lower Court and urging the granting of the appeal are inappropriate. The arguments will be ignored by this Court.

This takes us to the preliminary objection of the first Respondent. The gravamen of the notice of preliminary objection filed by the first Respondent were that the two issues for determination formulated by the Counsel to the Appellant did not relate to the

complaints contained in the two grounds of appeal, that the second issue for determination was vague, unclear and imprecise and that there was no evidence of payment of filing fees on the notice of appeal. This Court will resolve the contentions on the notice of preliminary objection without the necessity of recanting the arguments of Counsel to the first Respondent and Counsel to the Appellant thereon in this judgment.

The two grounds of appeal of the Appellant on his notice of appeal read thus:
Ground One
The learned trial Judge erred in law when he granted perpetual injunction against the Appellant and the 2nd & 3rd Respondents from prosecuting the 1st Respondent in a criminal Court in respect of criminal offences.
Particulars of Error
a. The complaints against the 1st Respondent at the Police were criminal in nature (viz criminal breach of trust, forgery and impersonation) and not civil.
b. In the course of investigation by the Police, the original title documents of Umuaka Development Union were recovered from the 1st Respondent after the Police executed a search warrant at the residence of the 1st Respondent.

No other authority, except the Police, is statutorily empowered to arrest, detain and prosecute offenders or criminal cases.
d. Police did not exceed its constitutional duties in this case to warrant the grant of perpetual injunction by the trial Court.
Ground Two
The learned trial Judge erred in law when he grated perpetual injunction against the Respondents from prosecuting the 1st Respondent in a criminal Court on the basis of existence of a civil matter in the High Court of Justice No 9, Kano.
Particulars of Error
a. The case before the High Court of Justice No 9 Kano is a civil matter, the complaint against the 1st Respondent in this case is a criminal matter.
b. Both criminal and civil matters can go hand in hand in Court.

Counsel to the Appellant distilled two issues for determination for consideration in this appeal respectively from the two grounds of appeal. These are:
i. Whether the Court below was right to protect the 1st Respondent in this matter in the decision given on 20th September, 2013, having held that the Police did not exceed its statutory duty.
ii. Whether there was mistake, vagueness or omission

by the trial Court to make the right inference after holding that the Police acted within its statutory powers.

the two issues for determination show clearly that the first issue for determination contended on the complaints raised under the first ground of appeal and that the contention under the second issue for determination was on the complaints raised in the second ground of appeal. The argument of Counsel to the first Respondent that the two issues for determination do not relate to the grounds of appeal is totally misconceived.

On the allegation of vagueness of the second issue for determination, the Supreme Court in Nuhu Vs Ogele (2003) 18 NWLR (Pt 852) 251 defined “vague” to mean something that is wooly, equivocal, a state of affairs that does not lend itself easily to comprehension, something blurry and nebulous, uncertain or shadowy. In OCTS Educational Services Ltd Vs Padson Industries Ltd (2012) LPELR 14069(CA), this Court stated that “vague” means not clearly grasped in the mind, not precise in expression, not firmly determined, not clearly perceived, not clearly formulating or expressing ideas. In other words, an issue for determination will be considered vague where it does not conclusively lead to a definite understanding

of the complaint it addresses or where what it says is so uncertain and robs it of any form of intelligibility. Where the complaint addressed by an issue for determination can be reasonably ascertained, the fact that it is inelegantly drafted does not render it vague. A read through the second issue for determination formulated by Counsel to the Appellant shows that, though it could have been better drafted, the complaints it addresses are reasonably ascertainable and are not unintelligible. The contention of Counsel to the first Respondent that it is vague is not well founded.

It was the further contention of Counsel to the first Respondent on the notice of preliminary objection that there was no evidence of payment of filing fees on the face of the notice of appeal and that this rendered the notice of appeal incompetent. The notice of appeal of the Appellant forms part of the records of the lower Court compiled and transmitted to this Court by the Registry of the lower Court on the 8th of April, 2015 and the records of appeal were deemed properly compiled and transmitted by this Court on the 8th of June, 2015 without any objection. A look at the notice

of appeal shows that it carries the stamp of the lower Court on its face asserting that it was presented thereat for filing on the 21st of October, 2013. The records of appeal confirm on its face that all the processes contained therein are certified true copies of the processes in the case file and in the custody of the lower Court. These assertion and confirmation are not contested by the first Respondent and neither is it the contention of the first Respondent that the records of appeal were not regularly compiled by the Registry of the lower Court.
Section 168 (1) of the Evidence Act provides that “when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”. This raises a presumption of regularity of judicial or official acts which is expressed in the Latin maxim omnia presumuntur, rite esse acta meaning that a prima facie presumption of the regularity of the acts of public officers exists until the contrary appears – Ogbuanyinya Vs Okudo (No. 2) (1990) 4 NWLR (Pt 146) 551, Shitta Bey Vs Attorney General of the Federation (1998)

10 NWLR (Pt 570) 392, Amala Vs The State (2004) 12 NWLR (Pt 888) 520, Ugwu Vs State (2013) 14 NWLR (Pt 1374) 257. In Nwachukwu Vs State (2002) 12 NWLR (Pt 783) 543, the Supreme Court commented on this presumption thus:
“There is therefore a general presumption of law to the effect that the formal requisites for the validity of all judicial or official acts were complied with so long as they are shown to have been done in a manner substantially regular. The position of law is summarized by the Latin maxim omnia presumuntur rite esse acta which means that all acts are presumed to have been done rightly and regularly until the contrary is proved. This presumption of law is commonly applied particularly to judicial and official acts and the onus of proving the contrary lies on him who alleges such contrary position.”
This means that where a Court process is presented at the Registry of a Court for filing and it is stamped accordingly and it subsequently forms part of the records of the Court, and there is nothing showing any substantial irregularity on the part of the Registry staff, the presumption enures to the benefit of the Court process

that every formal requirements needed to be done for its validity had been done – Eneh Vs NDIC (2018) LPELR 44902(SC), Barau Vs Consolidated Tin Mines Ltd (2019) LPELR 46806(CA). It is elementary that part of the formal requirements for the validity of a Court process is payment of filing fees in the Registry of the Court. In the instant case, the notice of appeal of the Appellant enjoys the presumption under Section 168 (1) of the Evidence Act that it was properly filed with the payment of appropriate filing fees. The onus of proving otherwise was on the first Respondent who contended the contrary – Barewa Pharmaceuticals Ltd Vs Federal Republic of Nigeria (2016) 17 NWLR (Pt 1540) 63, Abiodun Vs Federal Republic of Nigeria (2016) 17 NWLR (Pt 1542) 462, Ilori Vs Ishola (2018) LPELR 44063(SC). And to rebut the presumption, the party must lead cogent, credible and acceptable evidence, and it cannot be rebutted by presumptuous postulations or rhetorical questions – Udom Vs Umana (No 1) (2016) 12 NWLR (Pt 1526) 179. The first Respondent did not present this Court with anything to rebut the presumption. The contention of the Counsel of the first

Respondent against the competence of the notice of appeal is baseless and it is rejected.

The preliminary objection of the first Respondent is without any merit and it is hereby refused and dismissed.

Going to the substantive appeal, after reading through the records of appeal, particularly the case of the parties before the lower Court, the Ruling of the lower Court and the notice of appeal, as well as the arguments of Counsel in their respective briefs of arguments, this Court is of the opinion that there is only one issue for determination in the appeal. It is:
Whether, on the facts and circumstances of this case, the lower Court was correct when it granted the order of perpetual injunction sought by the first Respondent against the Appellant and the second and third Respondents?

This appeal will be resolved on this sole issue for determination and all the arguments of Counsel will be considered there under.

In arguing the issue for determination, Counsel to the Appellant reproduced relevant portions of the Ruling of the lower Court and he referred to the case of Onah Vs Okenwa (2011) All FWLR (Pt 565) 357 in asserting that once

criminal allegations are made against a citizen, the Police have a statutory duty to investigate the allegations. Counsel stated that, after having held that the second and third Respondents did not exceed their statutory power in this case, it was wrong for the lower Court to turn around and grant an order of perpetual injunction against the same persons and that the order of injunction contradicted the earlier finding. Counsel stated that the allegations made against the first Respondent of withholding the title documents of the property of Umuaka Development Union, forgery of documents and tampering with the minute book of the Union were all criminal in nature and were distinct from and not covered by the civil action pending before another Court.

Counsel stated that it is not wrong in law for a civil matter and a criminal matter emanating from the same transaction to go on separately at the same time and the claims in the civil matter in the other Court were not the same as those in the present case and the processes filed in the other civil matter were not attached to the processes filed in the present case. Counsel stated that the issue of there

being another matter before a competent Court was raised suo motu and resolved by the lower Court without it calling on the parties to address it and that had the lower Court allowed the parties to address it, it would have been properly informed of the differences between the two cases. Counsel stated that the action of the lower Court in raising and resolving the issue suo motu occasioned a miscarriage of justice against the Appellant and the second and third Respondents and that this is fatal to the decision of the lower Court and he referred to the cases of Ejezie Vs Anuwa (2008) 47 WRN 1 and INEC Vs Okoronkwo (2009) All FWLR (Pt 488) 227. Counsel stated that the action of the lower Court in raising and resolving the issue suo motu was also a clear denial of the Appellant’s right to fair hearing and that this nullifies the decision of the lower Court and he referred to the case of Eze Vs University of Jos (2017) All FWLR (Pt 898) 101.

Counsel referred to the cases of Kasamu Vs Ogundimu (2017) All FWLR (Pt 892) 1126 and Obajimi Vs Adediji (2007) All FWLR (Pt 394) 335 on when a decision of a Court is said to be perverse and stated that the

decision of the lower Court granting the order of injunction in favour of the first Respondent was perverse as it completely ignored the facts presented before it and it relied on the claims in a pending civil action, the processes of which were not attached to any process filed before it. Counsel stated that the directive of the lower Court that the release of the title documents of the property of the Union recovered by the Police from the first Respondent should await the outcome of the pending civil matter was a fruitless voyage by the lower Court as it was a relief not claimed and which the lower Court should not have made and he referred to the case of Agballah Vs Nnamani (2005) All FWLR (Pt 245) 1052. Counsel concluded his arguments by praying the Court to resolve the issue for determination in favour of the Appellant and to find merit in the appeal, allow the appeal, and set aside the order of perpetual injunction made by the lower Court.

In his response, Counsel to the first Respondent reiterated and highlighted the respective cases presented by the parties before the lower Court and stated that the complaints made by the Appellant to the second

Respondent was in respect of the recovery of the title documents to the property at No 35, Abeokuta Road, Sabon Gari, Kano and that this was purely a civil matter and that the second and third Respondents had no powers to get involved such a civil matter. Counsel stated that the questions of the ownership, usage, management and custody of the title documents of the said property was part of the issues raised for adjudication in Suit No K/101/13 – Barrister M. N. Duru & 12 Ors Vs Barrister A. C. Agu & 2 Ors brought by the share owners of the property, including the first Respondent, against the Appellant and which was pending before the High Court of Kano State. Counsel stated that the High Court of Kano State granted an order on interim injunction in the said action on the 23rd of February, 2013 restraining the Appellant and the second and third Respondents from interfering with the questions of the ownership, usage, management and custody of the title documents of the said property.

Counsel stated that the principles of rule of law demanded that the second and third Respondents respect the pending judicial process commenced in Suit No

K/101/13 because it is the law that any subject matter of a suit before a Court is sub judice and parties thereto are not permitted to resort to self-help or employ the services of other arms of government for the purpose of taking any action in respect thereof and he referred to the cases of A. G. Vs Times Newspapers Ltd (1972) 3 All ER 1136, Kalu Vs FRN (2012) LPELR 9287(CA) and Mianaekere Vs PDP (2014) LPELR 22987 (CA). Counsel stated that it was after the said commencement of the action that the second and third Respondents, at the behest of the Appellant, arrested, interrogated, investigated, harassed, intimidated, tormented and detained the first Respondent in respect of the title documents of the property which were in his custody as the Chairman of the Board of Trustees of Umuaka Development Union, Kano.

Counsel stated that the lower Court was thus correct when it held that the second and third Respondents had concluded their task after recovering the title documents to the property from the first Respondent and in granting the order of perpetual injunction against them and this was aimed at protecting the integrity of the pending Court action and

to prevent the Appellant from using the second and third Respondents as instruments of self-help in respect of a subject matter that was sub judice and he referred to the case of Military Governor of Lagos Vs Ojukwu (1986) NSCC 304 wherein he said the Supreme Court deprecated resort to self-help on a matter pending in Court. Counsel stated that the facts before the lower Court showed that the first Respondent had a vested legal right in the property in question as a share owner and Chairman of the Board of Trustees of Umuaka Development Union, Kano and custodian of the title documents of the property and that these facts supported the grant of the perpetual injunction and he referred to the case of Goldmark Nigeria Ltd Vs Ibafon Company Ltd (2012) 3 SC (Pt III) 72.

Counsel thereafter addressed the legal contentions of the Counsel to the Appellant and stated that the contentions were erroneous as the allegations made by the Appellant against the first Respondent to the second Respondent were purely civil in nature, with no criminal element, and that there was nothing for the second and third Respondents to proceed with after the commencement of Suit No

K/101/13. Counsel stated that it was not correct that the issue of the pending action was raised suo motu by the lower Court as the point was raised and canvassed by the Counsel to the parties in their respective written addresses before the lower Court. Counsel stated that the decision of the lower Court was based on a dispassionate evaluation of the affidavit evidence presented by the parties and a consideration of the legal arguments of their Counsel and, as such, it is not perverse and that the lower Court did not proceed on any voyage to grant a relief not claimed. Counsel concluded his address by praying the Court to find no merit in the appeal and to dismiss same accordingly.

This action was commenced in the lower Court by an application for the enforcement of the fundamental rights of the first Respondent. Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the

land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law – Igwe Vs Ezeanochie (2010) 7 NWLR (Pt 1192) 61. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607.
The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria

The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights –Igwe Vs Ezeanochie supra.

The first Respondent predicated his application before the lower Court on his rights to personal liberty, personal dignity and freedom of movement which are guaranteed under the provisions of Sections 35 and 41 of the 1999 Constitution.
From the affidavit of the parties, it was not in doubt that the second and third Respondents arrested, detained and interrogated the first Respondent at the behest of the Appellant; this was the reason why the first Respondent had to be granted bail in order for him to leave the custody of the second and third Respondents. Thus, it was not in contest between the parties that the second and third Respondents interfered with the personal liberty and freedom of movement of the first Respondent – Anufi Vs Economic and Financial Crimes Commission (2018) LPELR 43521(CA). It is irrelevant that the arrest and detention of the first Respondent

did not last more than twenty-fours as asserted by the Appellant and the second and third Respondents. The law is that interference with the liberty and freedom of a person even for one hour is a clear violation of his fundamental rights –Gusau Vs Umezurike (2012) LPELR 8000(CA), Idjighere Vs Agbinone (2019) LPELR 46428(CA).

The law is that fundamental rights of a citizen are not absolute –Ukaegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate

authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.
Section 35 (1) (c) of the 1999 Constitution says that a person’s right to personal liberty can be breached upon a reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence. Section 41 (2) (a) states that a person’s right to freedom of movement may be negated by imposing restrictions on his movement where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.

The Appellant and the second and third Respondents sought to justify the arrest and detention of the first Respondent under the provisions of Sections 35(1)(c) of the 1999 Constitution. They contended that they arrested and

detained the first Respondent upon reasonable suspicion of his having committed a criminal offence and/or that it was reasonably necessary to prevent his committing a criminal offence. It was their case that they acted on the strength of a written complaint against the first Respondent received from Umuaka Development Union and signed by the Appellant and in the exercise of their power of investigation. Looking at the provisions of Section 35(1)(c) of the Constitution, it is clear that for a justification of arrest and detention of a person to fly it must have be done (a) for the purpose of bringing him before a Court, or (b) upon reasonable suspicion of his having committed a criminal offence, or (c) when it is reasonably necessary to prevent his committing a criminal offence – Jim-Jaja Vs Commissioner of Police supra, Anufi Vs Economic and Financial Crimes Commission supra.

In deliberating on the case made out by the parties, the lower Court held in the Ruling appealed against that the Appellant (the third respondent in the lower Court) was within his right to report the issue of the withholding of the title documents to the property at No 35,

Abeokuta Street, Sabon Gari, Kano by the first Respondent (the applicant in the lower Court) to the second and third Respondents (the first and second respondents in the lower Court) and that the fact that the title documents were recovered from the first Respondent only after the intervention of the second and third Respondents gave credence to the action of the Appellant. The lower Court thereafter stated thus:
“The police in this case particularly the 1st and 2nd respondents have a statutory duty by virtue of the Police Act to investigate, to detain and arrest a person upon a complaint made against that person. It is after investigation that they will have the chance to either charge the suspect to Court or discharge him …
However, having discovered the document in question and also that fact that the substantive case is now before a Court of competent jurisdiction the role of the police particularly the 1st and 2nd respondents ends. Accordingly, the respondents will not be prejudiced if the Court grants the applicant’s prayer.
Perpetual injunction is hereby ordered against the respondents from further taking any step in

connection with or relating to or arising from the invitation and complaint made by the respondents against the applicant pending the suit being determined by the High Court No 9.
Now, in respect of the 2nd prayer it is my view that the issue of the title document does not fall under the fundamental rights procedure. Secondly, since the issue as it relates to the title of the No 35 Abeokuta Road is before the Court of competent jurisdiction, it is my view that the application would be better determined before the said Court. Any person or group of persons can make an application for the release of the title document of No 35 Abeokuta Road Sabon Gari before the said Court.”
With respect to the lower Court, these holdings and deliberations are incongruous, confused and confusing. On the one hand, the lower Court found that the Appellant was right to report the first Respondent to the Police and that the Police were right to investigate the complaint against the first Respondent, and on the other hand, it perpetually restrained the Police from concluding its investigation into the said complaint as it was the basis of a civil matter which was

already pending in another Court. A read through the case of the parties shows that the simple reason for this confusion in reasoning was the woeful failure of the lower Court to identify the core issue that arose before it for adjudication in the cases presented by the parties and to make a finding thereon. The issue is – whether the allegations made against the first Respondent by the Appellant, either in his personal capacity or as the Chairman of Umuaka Development Union, in his complaint to the second Respondent were criminal in nature. A resolution of this issue would have guided the decision of the lower Court on the perpetual injunction granted, which is the crux of this appeal.
This is because if the allegations were criminal in nature, the task of the second and third Respondents could not have ended with the recovery of documents from the first Respondent, as found by the lower Court, and the order of perpetual injunction made by the lower Court would be wrongful as it has been held that Fundamental Rights provisions cannot be used, and should not be used, by a person to shield himself from criminal investigation and prosecution –

Attorney General, Anambra State Vs Uba (2005) 15 NWLR (Pt 947) 44. On the other hand, if the allegations were not criminal, but civil in nature, then the order of perpetual injunction will be appropriate as the second and third Respondents would have had no business getting involved in the first place – Jim-Jaja Vs Commissioner of Police (2013) 6 NWLR (Pt 1350) 225, Anufi Vs Economic and Financial Crimes Commission supra. The issue of the nature of the complaints against the first Respondent required a definite finding by the lower Court and not one that could be inferred or speculated upon. A definite resolution of the issue would have given clarity to and provided a basis for the findings and deliberations of the lower Court. The failure of the lower Court to make this crucial finding befuddled the Ruling, obscured the reasoning of the lower Court and made the Ruling opaque, lacking clarity and the holdings arrived at therein baseless. It is elementary that the strength of a judgment lies in its reasoning and it should therefore be convincing. Clarity of exposition is always essential. Dignity, convincingness and clarity are exacting requirements

of any decision of Court and they are conditions precedent to a Court achieving the main object of a judgment, which is not only to do, but to be seen to do justice. Clarity of thought in a judgment leads to proper reasoning and proper reasoning is the foundation of a just and fair decision. In the words of the one-time Chief Justice Sabyasachi Mukharji of India:
“The supreme requirement of a good judgment is reason. Judgment is of value on the strength of its reasons. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons. Reason, therefore, is the soul and spirit of a good judgment.”
It was the failure of the lower Court to make this necessary finding that led to this appeal and it is what has defined the arguments of Counsel to the parties in the appeal. Counsel to the Appellant contended that the allegations were criminal in nature and that the order of perpetual injunction was thus improper, while Counsel to the first Respondent countered that the allegations were civil in nature and that the order of perpetual injunction was proper. The resolution of this

appeal, therefore, lies in the determination of the nature of the allegations contained in the complaint made against the first Respondent by the Appellant to the second Respondent.
Now, the case of the second and third Respondents on their counter affidavit in the lower Court was that it was by reason of a letter addressed to the second Respondent and minuted to the third Respondent, wherein the Umuaka Development Union alleged breach of trust, forgery and impersonation against the first Respondent that a team of Police Officers headed by the third Respondent was detailed to investigate same. It was their assertion that the allegations contained in the letter were criminal in nature. This assertion was backed by the Appellant. The first Respondent maintained otherwise and it was his case that the complaints made by the Appellant to the second Respondent were in respect of the recovery of the title documents to the property at No 35, Abeokuta Road, Sabon Gari, Kano and the ownership, usage, management of the property and the custody of the title documents which were in his possession as the Chairman of the Board of Trustees of Umuaka Development Union,

Kano. It was his case that they were civil in nature.
The law is that in determining whether the contents of a petition are criminal in nature, the Court does not rely on the interpretation placed on the contents of the petition by the parties but on the contents of the petition itself – Nnamdi Azikiwe University Vs Nwafor (1999) 1 NWLR (Pt 585) 116. Thus, the task of the Court in deciding whether the allegations against the first Respondent were criminal or civil in nature is to examine the contents of the letter of complaint addressed by the Appellant to the second Respondent. This Court has read and scoured through the entire records of appeal and cannot find any such letter. The letter was neither exhibited by the second and third Respondents to their counter affidavit nor was it exhibited by the Appellant to his processes. The letter was not produced and/or presented before the lower Court by either the second and third Respondents or the Appellant.
This refusal of the second and third Respondents and of the Appellant to produce the said letter of complaints amounted to the withholding of the most crucial evidence in these proceedings.

Section 167 (d) of the Evidence Act, 2011 states that the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Explaining this provision in Ewugba Vs State (2018) 7 NWLR (Pt 1618) 262, the Supreme Court stated:
“The rule in Section 167(d) of the Evidence Act is contained in the maxim “omnia praesumuntur contra spoliatorem.” Where a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted. The withholding of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it.”
Thus, the failure to produce the letter of complaint raises the presumption of withholding evidence against the second and third Respondents and the Appellant; that if the letter had been produced it would have shown that the allegations against the first Respondent were civil in nature, as asserted by the first Respondent, and not criminal in nature, as asserted by the second and third Respondents and the Appellant. The necessary consequence of this

presumption is that the order of perpetual injunction made by the lower Court, and against which the Appellant has rallied in this appeal, was proper in the circumstances of this case and this Court cannot tamper with it.

This appeal is really much ado about nothing. Common sense and an understanding of our environment tell us that the second and third Respondents could not, and would not, have kept open the investigation commenced in 2013, seven years ago, into a complaint on custody of title documents of property between members of a cultural union, alive till today. Thus, a positive resolution of this appeal in favour of the Appellant would have yielded nothing but an ego boosting victory as there is no investigation to go back to. It is common knowledge that the judicial time of the Courts in this country is scarce and it is only fair that the Courts should be allowed to expend this scarce time in resolving meaningful disputes that add to legal jurisprudence. It is the duty of all the stakeholders in the administration of justice system, particularly legal practitioners, to aid the Courts in this direction and not to clog the Court’s docket

with meaningless, pointless and useless litigation in the like of this present appeal.

In conclusion, the Court finds and holds that the appeal is without merit. It is hereby dismissed. The decision contained in the Ruling of the High Court, Kano State in Suit No K/M483/2013 delivered by Honorable Justice Aisha I. Mahmoud on the 20th of September, 2013 is affirmed. The parties shall bear their respective costs of the appeal. These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead Judgment of my learned brother Abiru JCA, just delivered, to which I agree. I too find no merit in the appeal and I dismiss it.

AMINA AUDI WAMBAI, J.C.A.: I read the leading judgement of my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA, and I am in agreement with his reasoning and conclusion that the appeal is devoid of any merit. I too dismiss the appeal and abide the consequential orders in the main judgement.

Appearances: