BISHOP NYONG DAVIS AYAKNDUE & ORS. v. BISHOP E. E. EKPRIEREN & ORS.
(2012)LCN/5723(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2012
CA/C/238/2011
RATIO
FUNDAMENTAL RIGHTS: NATURE OF HUMAN RIGHTS
Human rights are universal and apply to all persons without discrimination. Respect for human rights need to be upheld at all times, irrespective of circumstances or political systems. The right of any particular individual or group in any particular circumstances can only be restrained if they threaten to curtail similar or comparable rights of other persons. Thus, Human Rights Law applies at all times and in all situations. PER UZO I. NDUKWE-ANYANWU, J.C.A.
FUNDAMENTAL RIGHTS: CIRCUMSTANCES WHERE A PERSON’S RIGHT TO LIBERTY AND SECURITY MAY BE DEPRIVED
Chapter IV of the 1999 Constitution, Universal Declaration of Human Rights, 1948 and African Charter on Human and Peoples Right, 1981, provide that nobody’s right can be infringed upon by any individual or government. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the cases as listed under Section 35 of the 1999 Constitution, Article 6 African Charter on Human and Peoples Rights, 1981 and Article 3 Universal Declaration of Human Right, 1948: It therefore means that deprivation of liberty is only permitted within the exception listed in Section 35 of the 1999 Constitution and it also requires that it should be in accordance with the procedure prescribed by the law. This, in effect means that arrest and detention of a person must not be arbitrary. PER UZO I. NDUKWE-ANYANWU, J.C.A.
POLICE: WHETHER PROPER ARREST MADE BY THE POLICE CAN CONSTITUTE A BREACH OF FUNDAMENTAL RIGHTS
The law is that arrest properly made by the police cannot constitute a breach of Fundamental Rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for breach of his Fundamental Rights. Okaro v. C.O.P & Anor (2001) 1 CHR page 413 FHC (Kano Division); McLaren v. Jamming (2003) FWLR Pt.154 page 528. PER UZO I. NDUKWE-ANYANWU, J.C.A.
EVIDENCE: PRIMARY DUTY OF THE TRIAL COURT
The evaluation of evidence and the ascription of probative value is the primary duty of the trial court. Osulu v. Osulu (2003) 1 NWLR Pt.832 page 608. The evidence before the trial court was neither successfully challenged nor contradicted and not rendered inadmissible by the provision of any enactment. The Court was therefore right and justified in relying on such evidence in arriving at its decision. PTF v. IFMS Ltd. (2002) 16 NWLR Pt.794 page 586; Aprofim Eng. Construction Ltd. v. Sidow Ltd. (2006) 13 NWLR Pt.996 page 73. PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. BISHOP NYONG DAVIS AYAKNDUE
2. BISHOP KINGSLEY AKPABIO
3. APOSTLE G. O. EKPA
4. EZEKIEL EMMANUEL AYAKNDUE Appellant(s)
AND
BISHOP E. E. EKPRIEREN 1ST Respondent
1. CPL JACOB ONYEBUCHI
2. COMMISSIONER OF POLICE, AKWA IBOM STATE 2ND & 3RD Respondents Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting at Uyo delivered on 27th July, 2011. The Appellants who were the 1st – 4th Respondents in the court below, being dissatisfied with the judgment filed a notice with 2 grounds of appeal on 15th August, 2011.
In brief, all the parties except the police officers were members of the same congregation – Mount Zion Light Full Gospel Assembly Church. On 17th October, 2011, the 2nd Appellant went to the 1st Respondent Church to introduce Apostle Peter Ekpo as the new pastor in charge of the Assembly. The 1st Respondent and the congregation who were opposed to the transfer resisted this move. A commotion thereafter ensued. Police men intervened and invited all the factions to the Police Station. Their statements were taken and the 1st Respondent was released the following day. It appears that the 1st Respondent was invited several times and on each occasion was detained for several hours. The 1st Respondent after all the harassment felt aggrieved and took out an action in the High Court to enforce his Fundamental Rights. The 1st Respondent as Applicant claimed the following reliefs in the High Court:
“(a) A declaration that the acts of the Respondents Jointly and severally, in instigating, effecting and taking to the habit of stalling Church activities, arresting and detaining the Applicant severally without any disclosed criminal offence, in addition to making attempts to unlawfully and forcefully take over Mount Zion Light House Full Gospel Church Ikot Akpan Abia Assembly and depriving him of membership of this chosen church is unlawfully and amounts to infringement of the Applicants fundamental rights to personal liberty, freedom of movement, right to dignity of human person, freedom of worship and right to peaceful association and assembly.
(b) Injunctive order restraining the Respondents jointly and severally from further acts of infringement of Applicant’s right as it relates to this complaint.
(c) An order for the sum of N2,000,000.00 damages in favour of the Applicant against the Respondents jointly and severally.
(d) And for any further orders it may please the court to make in the circumstances of this case.”
After all the affidavit evidence, the trial Judge delivered his considered judgment and found for the 1st Respondent/Applicant in the following terms:
“1. I hereby declare that the acts of the 1st – 4th Respondents in setting the law against the applicant and causing his arrest during church service is unlawful and amounts to a violation of the applicant’s fundamental rights to personal liberty, freedom of movement and right to peaceful association and assembly.
2. I hereby issue an order of injunction restraining the respondents from further acts of infringement of the applicant’s rights in relation to his complaint.
3. The 1st – 4th Respondents are hereby ordered to pay to the Applicant as exemplary damages compensation of One Million Naira only.
I make no order as to cost.”
The 1st – 4th Appellants being dissatisfied filed their Notice and 2 grounds of Appeal. They also filed their brief of argument on 22nd November, 2011. The Appellants articulated just one issue for determination namely:
“Whether or not the learned Judge properly addressed the issues canvassed by the parties in the Court below and made findings on them before proceeding to hold that it was the Appellants who set the law against the Respondent and caused his arrest.”
The 1st Respondent filed no brief neither did the police officers. On the 5th November, 2012 when the appeal was listed for hearing, the Respondents were all served but did not put in any appearance nor indicated to the Court the reasons for their absence.
The learned Counsel to the 1st – 4th Appellants argued their appeal on the appellants’ brief alone. Learned Counsel to the Appellants referred the court to paragraphs 21 – 28 of the Appellants’ counter-affidavit. Counsel denied that 1st Appellant ever visited the 1st Respondent’s Church nor was he with the 2nd – 4th Appellants when they visited the Church. Counsel submitted that the issue before the trial Court was not the alleged contemptuous behaviour of the 1st Appellant. The issue before the lower court was whether the Fundamental Rights of the Respondent have been breached by the intervention of the police to restore peace and order and who initiated the intervention. These questions were not answered by the trial Judge.
Counsel submitted that the position of the Law is that the Police is duty bound to intervene to prevent the infringement of the Law or an attempt at an infringement. See the Cases of Dokubo Asari v. FRN (2007) 12 NWLR Pt.1048 page 320, Oyiriola v. IGP (2007) 3 NWLR Pt.1128 page 342.
Finally counsel submitted that it would be irresponsible of the police not to intervene where there have become aware of the prevailing fracas in the church. The question for the trial Court to answer was not who caused the disturbances in the church that led to the intervention of the police. The issue for the trial court was the intervention of the police and who invited the police intervention. Counsel urged the court to hold that the fact that the 1st Respondent did not invite the police is a clear indication that the 1st Respondent and his thugs caused the disturbance that attracted the police. Counsel finally urged the Court to allow this appeal and set aside the judgment of the trial Court.
The 1st – 4th Appellants came to the 1st Respondent’s church on the strength of an illegal transfer letter. They all knew that the letter was illegal as 1st Appellant has been ordered not to continue as the head of the church by a judgment of the Court of Appeal CA/C/44/2009 delivered on the 29th March, 2010.
The 1st – 4th Appellants stormed the 1st Respondent’s Church on 17th October, 2011 to remove the 1st Respondent forcefully. The 1st Respondent and his congregation resisted that move. The Appellants thereafter invited the police who broke the service and arrested the 1st Respondent and some of his members. The Appellants were also invited to the police station.
The 1st Respondent averred that on the 1st occasion he was kept over night without charging him to Court for any offence committed. Of course the 1st – 4th Appellants were not invited these number of times. The 1st Respondent also averred that he was kept in the cell with common criminals when he had done nothing to merit that type of treatment. Instead of taking laws into his hands the 1st Respondent filed an action under the Fundamental Rights procedure. These are what these rights include:
Fundamental Human Rights that are universally recognized and justiciable include but not limited to the following: (a) right to life, liberty and security of person; (b) freedom from slavery; (c) freedom from torture; (d) the right not to face discrimination because of racial or ethnic origin or religion; (e) the right not to be arrested and imprisoned arbitrarily; (f) the right to fair trial; (g) freedom of opinion and expression; (h) freedom of thought, conscience and religion; (i) right to movement and residence in one’s country; (j) right to freedom of peaceful assembly and association; (k) right to a nationality; and (l) right to marry and to found a family.
Human rights are universal and apply to all persons without discrimination. Respect for human rights need to be upheld at all times, irrespective of circumstances or political systems. The right of any particular individual or group in any particular circumstances can only be restrained if they threaten to curtail similar or comparable rights of other persons. Thus, Human Rights Law applies at all times and in all situations.
The learned trial Judge evaluated the evidence and found that, it was the Appellants who stormed the 1st Respondent’s Church. The Church service was disrupted and the Appellants invited the police into the church premises. The 1st Respondent was invited to the police station 3 times and on each occasioned detained unreasonably. There was no evidence that the Appellants were detained on any occasion.
Was it really necessary detaining the Respondent without eventually charging him to Court? The trial Judge properly evaluated the evidence and found as a fact, that the 1st Appellant was parading himself as the head of the church even after the Court of Appeal judgment of 29th March, 2010. The 1st Respondent was aware that the transfer letter purported to be written by the 1st Applicant to him was unlawful. As if the illegality was not enough, the Appellants stormed the 1st Respondent’s Church, disrupted the service, got him arrested and detained overnight in police custody.
Chapter IV of the 1999 Constitution, Universal Declaration of Human Rights, 1948 and African Charter on Human and Peoples Right, 1981, provide that nobody’s right can be infringed upon by any individual or government. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the cases as listed under Section 35 of the 1999 Constitution, Article 6 African Charter on Human and Peoples Rights, 1981 and Article 3 Universal Declaration of Human Right, 1948: It therefore means that deprivation of liberty is only permitted within the exception listed in Section 35 of the 1999 Constitution and it also requires that it should be in accordance with the procedure prescribed by the law. This, in effect means that arrest and detention of a person must not be arbitrary.
The 1st Respondent was arrested and taken to the police station where he was detained. He was severally invited and kept for long hours. There was really no point inviting the Respondent severally as he made a statement on the first day. Investigation into the fracas could have been carried out without the subsequent invitations and detentions in the police station. The crux of the matter is that the Appellants disrupted his church service twice. They also humiliated him in front of his congregation. They set in motion the police to harass the 1st Respondent by the many invitations and detentions. Finally he was not charged with any offence.
The law is that arrest properly made by the police cannot constitute a breach of Fundamental Rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for breach of his Fundamental Rights. Okaro v. C.O.P & Anor (2001) 1 CHR page 413 FHC (Kano Division); McLaren v. Jamming (2003) FWLR Pt.154 page 528.
The 1st Respondent had not committed any crime. He was in the middle of a church service when the Appellants stormed his church. As if that was not bad enough, they left and came back some minutes later with the police. Those arrests and detentions were orchestrated by the Appellants to harass the Respondent.
The Appellants definitely set in motion the arrests and detentions of the 1st Respondent without any reasonable cause. The law is, if a person is unlawfully arrested or detained there is a provision for compensation and public apology by the appropriate authority or person. See Section 35(6) of the 1999 Constitution, Abdul Yari Lafia v. SSS (2006) THISDAY 21st March —- page 67.
The Appellants have complained that the trial Judge did not evaluate the affidavit evidence of the parties before reaching his decision. The 1st Respondent averred that his church service was disrupted when the Appellants stormed his church. The Appellants did not deny going to the 1st Respondent’s church. There was a commotion in the church following the Appellants visit. This was also not denied. There was arrests and detentions on many occasions. These issues the Appellants did not deny. The difference in the evidence of the Respondent and the Appellants was that on all occasions, the detention was for a few hours and not more. These facts were not denied by the Appellants. The Appellants only denied inviting the police themselves. From, the normal run of things, Appellants storming the church might not attract the patrolling patrol team. The Appellants were neither arrested nor detained by the police. It therefore shows that the Appellants had a hand in the arrests and detentions of the 1st Respondent. The Appellants were the ones who caused a criminal breach by storming the 1st Respondent’s church and attempted to forcefully remove the 1st Respondent.
The Appellants cannot successfully deny that they set in motion the series of arrests and detentions of the 1st Respondent.
The evaluation of evidence and the ascription of probative value is the primary duty of the trial court. Osulu v. Osulu (2003) 1 NWLR Pt.832 page 608. The evidence before the trial court was neither successfully challenged nor contradicted and not rendered inadmissible by the provision of any enactment. The Court was therefore right and justified in relying on such evidence in arriving at its decision. PTF v. IFMS Ltd. (2002) 16 NWLR Pt.794 page 586; Aprofim Eng. Construction Ltd. v. Sidow Ltd. (2006) 13 NWLR Pt.996 page 73.
I am satisfied that the trial Judge evaluated properly the affidavit evidence placed before him. I cannot find fault with it. The Appellants failed to controvert the evidence of the 1st Respondent. They also failed to satisfy the Court on their sole issue raised on appeal.
This appeal therefore fails. It is hereby dismissed. The judgment of the lower Court is affirmed including that as to costs. The Appellants are to pay the 1st Respondent compensation of N1m as ordered by the Court below.
The cost of this appeal is N50.000.00 against the Appellants in favour of the 1st Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I agree completely with the reasoning and conclusion reached by my learned brother, U. I. Ndukwe-Anyanwu, J.C.A, in the lead judgment delivered in this appeal. The lone issue in the appeal has been comprehensively considered by my learned brother and I join in dismissing the appeal for lacking in merit.
JOSEPH TINE TUR, J.C.A.: Having read an advance copy of the judgment of Lord, Uzo I. Ndukwe-Anyanwu, J.C.A. I am also inclined the dismissal of this appeal.
The preamble to the Constitution of the Federal Republic of Nigeria, 1999 as altered recognizes that good governance and the welfare of all persons in our country is anchored on the principles of Freedom, Equality and Justice. The state social order is also founded on ideals of Freedom, Equality and Justice under Section 17(1) of the Constitution supra. Freedom and liberty are bed-fellows. Under Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered every person shall be entitled to his respect and liberty and no person shall be deprived of such liberty save in accordance with a procedure permitted by law. Under subsection (2) of Section 35(1)(c) read together with Section 40 and 41(1) of my the Constitution supra. Freedom, liberty, free movement and right to peaceful assembly, etc of every citizen is guaranteed. They shall be trampled upon for example, by arrest or detention by the police for the purpose of bringing the person before a Court in execution of the order of a Court or upon 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. Other circumstances which may warrant interference with the freedom, liberty, movement, respect of the individual, etc, are provided under Section 35(1)(b)(d)(e) and (f) of the Constitution. These rights are subsumed under the phrase “Fundamental Rights” in chapter 4 of the Constitution supra.
The framers of the Constitution of the Federal Republic of Nigeria, 1999 as altered have placed so much premium or value on freedom, liberty, movement, etc, of a citizen that they did provide in Section 35(6) of the Constitution supra as follows:
“’35(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”
My humble view is that the appropriate authority or person specified by the law is the authority or person that caused the unlawful arrest or detention of any citizen. Once the Courts find that the arrest or detention was unlawful, the person injured is entitled to compensation and apology if claimed in a Court of competent jurisdiction: See for instance Section 46(1) and (2) of the Constitution supra.
Paragraphs 1 – 21 of the affidavit of the Respondent in support of his application for the enforcement of his fundamental rights in the Court below reads as follows:
“1. That I am the Applicant herein and by virtue of my position as a member and Bishop in charge of the Church called Mount Zion Light House Full Gospel Church – Ikot Akpan Abia Assembly I am conversant with the facts of this case.
That myself and the 1st-4th Respondents are members of the same Church called Mount Zion Light House, Full Gospel Church Incorporated, (hereinafter called Church), with registered office at No.9 Invang Street, Calabar where the office of the Church’s President situates.
3. That between the years 2002 and 2009, one Bishop Paul Akpan Augustine was the Head and President of the entire field of Mount Zion Light House Full Gospel Incorporated while the 1st Respondent herein, was the Vice President. A copy of the affidavit of facts sworn to by the 1st Respondent to prove this assertion in suit No.FHC/CA/CS/25/2005 is hereto attached and marked Exhibit “A”.
4. That in suit No.FHC/CA/CS/25/2005 instituted by the 1st Respondent in concert with one Bishop Jacob Brown Udobang, the said President, and Bishop Paul Akpan Augustine was by order of the Federal High Court sitting at Calabar removed from office on the 23rd day of January, 2009. A copy of the enrolled order is hereto attached and marked Exhibit “B”.
5. That based on Exhibit “B”, the 1st Respondent forcefully took benefit of the judgment in the suit he denounced and disassociated himself from, per paragraphs 2, 3 and 8 of Exhibit “A”, and became the president of the entire Church.
6. That on the 29th day of March, 2010 the Court of Appeal sitting at Calabar in a considered judgment in Appeal No.CA/C/44/2009 set aside the judgment in Exhibit “B” which brought the 1st Respondent to office of President. A copy of the said judgment is attached as Exhibit “C”.
7. That instead of obeying the order of the Court of Appeal and step down from office as president, the 1st Respondent driven by tribalistic tendencies and greed ceded more than 400 branches of the church in the
Ibibio speaking parts of Akwa Ibom State and parades himself as the President of the whole Church, and conscripted the 2nd, 3rd and 4th Respondents as syndicate to terrorize some Assemblies with police and thugs and force their obedience and loyalty to himself and not the adjudged President.
8. That on Sunday, the 10th day of October, 2010, while in lawful worship and Assembly with the officers and members of Ikot Akpan Abia Assembly of the Church, the 1st – 4th Respondents bumped into my Church hall, stopped the divine service that was on going and questioned why the Assembly has not been remitting their monthly accounts to him personally but to the Headquarters at Calabar.
9. That in reply to that question in the presence of all members of the Church, I being the Spiritual Head of Ikot Akpan Abia Assembly told the 1st with 2nd – 4th Respondents that my Assembly’s loyalty is for the Headquarters of the Church at Calabar having regards to the Court of Appeal judgment of 29th March, 2010.
10. That without any warning, and or provocation, the 1st – 4th Respondents, after a rowdy session that disrupted church service, left at about 10:17am and returned in 40 minutes time with a team of armed policemen in mufti led by 5th Respondent on the instructions and directive of the 6th Respondent and got me and the Presiding Elder arrested at about 10:57am, took us to “C” Division Police Station in Uyo and detained us in the police cell with common criminals till 5:25pm of Monday, 11th October, 2010.
11. That at the “C” Division Police station, the 5th and 6th Respondents refused to release me on bail based on the insistence of the 1st – 4th Respondents despite my plea as an aged man of God, and the pleas of more than 12 members of the church who came with me to the police station. That on Friday, the 15th day of October 2010, which was a return date for interview with the DPO of that Division, I and my presiding Elder was at the police station re-arrested by the 5th Respondent on insinuations and instructions of the 1st – 4th Respondents at 8:43am and detained till 5:46pm for no criminal offence but for insisting that t can not as a law abiding citizen and a decent man of God be loyal to 1st Respondent having regards to the Court of Appeal judgment
12. That on Sunday, the 17th day of October, 2010, the 1st — 4th Respondents at about 10:36am bumped into my church at Ikot Akpan Abia Assembly in company of a team of policemen led by the 6th Respondent with intent to forcefully remove me as the Minister in charge for purposes of planting another minister, one Apostle Emmanuel Etuk, but the Church membership rejected such action. To show his strength, the 1st — 4th Respondents ordered the police to re-arrest me, and this was done. I was arrested on that Sunday about 11:00am and taken to the same Police Station and unlawfully detained till the next morning 11:14am.
13. That on the said three occasions, the 1st – 4th Respondents have caused my arrests and unlawful detentions without any criminal offence committed.
14. That on Sunday, the 24th day of October, 2010 while in our usual lawful divine service, the 1st Respondent sent one Bishop Umoren to the church at Ikot Akpan Abia Assembly with a message to me that he will personally bring a new Minister to take over the Assembly on Sunday, on 31st October, 2010 and that if any resistance is made, the whole Church membership will be arrested and the Church shut down permanently.
15. That the entire acts of the Respondents constitute violations of my fundamental rights to personal liberty, freedom of movement, right to dignity of human person, freedom of worship and right to peaceful assembly.
16. That the envisaged coming of the Respondents to the Ikot Akpan Abia Assembly on Sunday, the 31st day of October, 2010 constitute a serious threat to further violation of my fundamental rights enumerated above.
17. That I nave not committed any criminal offence to warrant the repeated arrests and detentions caused and effected by the Respondents otherwise between 10th and 25th October, 2010 I would have been charged to Court.
18. That the intervention of the Police in this complaint is unlawful since it is not within their duties to force an unwilling congregation to be loyal to a Church leader removed by order of court.
19. That as an aged Bishop in charge of a large congregation I have suffered great indignity owing to the repeated arrests and detentions even in the face of my Church members.
That I am entitled to the protection of my fundamental rights and monetary damages to compensate the violations.
21. And that I swear to this affidavit in good faith in accordance with the Oaths Act in force.”
I shall reproduce only paragraphs 19 – 31 of the Counter Affidavit of Bishop Kingsley Akpabio (2nd Appellant) deposed to on 14th December, 2010 which is as follows:
“19. That after the Applicant refused to leave Ikot Akpan Abia Assembly and continued to stay there, the congregation became agitated and tensed up. Two factions emerged, the one supporting the Applicant’s stay and the other opposing his stay.
20. That Apostle Peter Ekpo was posted to replace the Applicant in Ikot Akpan Abia Assembly and on the 10th day of October, 2010, Apostle Peter Ekpo went in that assembly to take over from the Applicant. I accompanied him in order to introduce him to the assembly as the new preacher.
21. That when Apostle Peter Ekpo arrived at Ikot Akpan Abia Assembly, the Applicant and some hired thugs and a few members of the assembly who support his stay threatened violence and to physically remove Apostle Peter Ekpo and I from the church. That the attempt to remove us from the church premises resulted in commotion.
22. That the noise and commotion generated by the confrontation attracted the attention of a police patrol van which came into the church premises and invited all of us including the 3rd and 4th Respondents, the Applicant, one Edem Nsa and all officers of the congregation to the “C” Division of the Nigeria Police Force Aka Offot, Uyo. That the 1st Respondent was not present in the church when all the foregoing was going on.
23. That at the police station we were all arrested, interrogated, cautioned and asked to make statement under caution as suspects.
24. That after giving the statement the police allowed all of us including the Applicant to go and directed us to return to the police station on the 15th day of October, 2010. That the Applicant was not detained but was released and told to return with the 3rd and 4th Respondents and others on 15th day of October, 2010.
25. That consequently paragraphs 10 and 11 of the Applicant’s affidavit are false to the extent that the Applicant was detained.
26. That it is also not true that the Applicant was re-arrested on the 15th day of October, 2010. Rather on the 15th of October, 2010 when we went back to the police station as directed, the Divisional Police Officer (DPO) of “C” Division who was to interview us was absent and after waiting for him for some time, we including the Applicant all left the police station.
27. That when we returned to the police station on a subsequent date, the DPO of “C” Division of the Nigeria Police Force after interviewing us including the Applicant advised us to go home and settle the matter between ourselves within the confines of the church and to report the terms of settlement to the police.
28. That paragraphs 12, 13 and 14 of the Applicant’s affidavit are false. Apart from the 10th day of October, 2010 when the police intervened in the church premises to prevent a breakdown of law and order, the police have not again gone into the church premises either of their own volition or on any person’s invitation and have not again arrested the Applicant on account of the foregoing.
29. That consequently paragraphs 13 and 14 of the Applicant’s affidavit are false. The 1st Respondent has informed me and I verily believed him that he did not send any message through Bishop Umoren or any other person to the church at Ikot Akpan Abia to inform the Applicant that he will bring a new minister and or arrest the members of the church on the 31st day of October, 2010 or on any other date.
30. That consequently paragraphs 15, 16, 17, 18, 19 and 20 of the applicant’s affidavit are not true.
31. That the Applicant has commenced this suit in order to avoid further investigation of the case by the police more so as he has refused all entreaties to settle the disagreement as directed by the police and had refused to proceed on transfer to calm the frayed nerves in Ikot Akpan Abia Assembly of the church.”
The appellants agree being invited to the police station with the Respondent where they were arrested, interrogated, cautioned and asked to make statements under caution. On 15th day of October, 2010 and other subsequent days they were at the police station. This is a tacit admission that the Freedom, liberty, dignity and movement of the Respondent was curtailed by the police. The Respondents’ freedom of worship in Mount Zion Light House Full Gospel Church at No.9 Inyang Street, Calabar was also infringed by the appellants. On 27th July, 2011 the learned trial Judge held as follows:
“1. I hereby declare that the acts of the 1st – 4th Respondents in setting the law against the applicant and causing his arrest during church service is unlawful and amounts to a violation of the Applicant’s fundamental rights to personal liberty, freedom of movement and right to peaceful association and assembly.
2. I hereby issue and order of injunction restraining the Respondents from further acts of infringement of the applicant’s rights in relation to his complaint.
3. The 1st – 4th Respondents are hereby ordered to pay to the Applicant as exemplary damages compensation of One Million Naira only.
I make no order as to cost”
“Arrest” means “1. A seizure or forcible restraint.
2. The taking or keeping of a person in custody by legal authority, especially in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law, especially of bringing that person before a Court” See Black’s Law Dictionary, 9th edition, p.124. The Respondent came within the term ‘detainee” which means “A person held in custody, confined, or delayed by an authority, such as law enforcement or a government” See Black’s Law Dictionary supra, P.513.
I am inclined to hold that in view of the subsisting judgment of the Court of Appeal, even if an appeal was pending in the Supreme Court, the appellants had no business in trespassing into the church where the Respondent and others were worshiping to interfere as found by the learned trial Judge. They set the police in motion against the Respondent and were rightly found liable in damages. I see no merit in this appeal which is dismissed. I abide by the N50,000.00 cost awarded by my Lord against the appellants in favour of the Respondent.
Appearances
Francis Ekanem Esq.For Appellant
AND
For Respondent
