C.O.P., KADUNA STATE POLICE COMMAND & ANOR v. DAUDA & ORS
(2020)LCN/14490(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, July 13, 2020
CA/K/119/C/2020
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
1. COMMISSIONER OF POLICE, KADUNA STATE POLICE COMMAND 2. INSPECTOR GENERAL OF POLICE APPELANT(S)
And
- ALH. SANI DAUDA 2. MURTALA NASIR ALMISRY (JUDGE SHARIA COURT 2 MAGAJIN GARI) 3. ALH. SHEHU SANI DAUDA 4. ALH ABDULLAHI KALOMA 5. NASIBA SANI DAUDA 6. ALH. ABDULRAHMAN HARUNA 7. ABUBAKAR MUSA ABUBAKAR RESPONDENT(S)
RATIO
WHETHER OR NOT ARREST AND DETENTION MUST ALWAYS FOLLOW FINDING OF PRIMA FACIE EVIDENCE AGAINST A CULPRIT
However, arrest and detention must always follow finding of sufficient prima facie evidence against the culprit. The Supreme Court in the case of Fawehinmi v. I.G.P. & Ors (2002) LPELR -1258(SC), Per Wali JSC held thus:
“I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence…”
Similarly, in Agundi v. Commissioner of Police (2013) All FWLR (Pt. 660) 1247 at p. 1295, paras. E-F, the Court, per Tur JCA held as follows:
“For a person’s personal liberty to be lawfully deprived it has to be shown that it was within the ‘following cases and in accordance with procedure permitted by law’ under Section 35(1) to (7) of the Constitution of the Federal Republic of Nigeria, 1999. Personal liberty of a person shall not be deprived until the person is shown to have violated or infringed a known law and secondly, the procedure for interfering with the person’s personal liberty must be permitted by the law or the Constitution”. PER MUKHTAR, J.C.A.
WHETHER OR NOT AN APPLICATION FILED BY MORE THAN ONE PERSON FOR THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS IS INCOMPETENT AND IS LIABLE TO BE STRUCK OUT
The provision of Rule 2(1) of the Fundamental Rights states thus:
2.-(1) Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.
The words “any person” mean “any one person” in a clear English grammar. No other meaning can be imported into that provision to admit multiplicity of applicants. The Court below erred in law for adjudicating over the application notwithstanding the opposing depositions in the Appellant’s counter affidavit. It should not have entertained the application from the onset due to the multiplicity of Applicants. See the case of Kporharor Vs Yedi & Ors and Archibong Udo Vs Ebanga Udo Robson & 4 Ors where the Court held as follows:
“…the adjective used in both provisions in qualifying who can apply to a Court to enforce a right is “any” which denotes singular and does not admit pluralities in any form… In my humble view, any application filed by more than one person … under the fundamental rights (Enforcement Procedure) Rules is incompetent and liable to be struck out”. PER MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the ruling of the High Court of Kaduna State delivered on 31st January 2020 in suit number KDH/KAD/982/2019. The action was commenced by an application for enforcement of fundamental rights filed by the 1st to 6th Respondents jointly before the lower Court, against the Appellants and the 7th Respondent wherein the 1st to 6th Respondents sought remedies for infringement of their fundamental rights as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) .
The Appellants responded by filing a counter affidavit and a written address dated 15th November 2019 with exhibits P1 – P8. The matter was initiated by the 7th Respondent’s complaint, made in writing through his lawyers, to the Appellants stating that the 1st to 6th Respondents have enticed an already married woman and engaged her into an unlawful second marriage and thereby committed several offences relating to Sections 45, 46, 58, 217, 229, 230, 239, 365, 366 & 369 of the Penal Code Law of Kaduna State 2017. In response to that complaint, the Appellants instructed
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their officers to investigate the case, in the process of which they arrested and detained the 1st to 4th Respondents.
The 1st to 6th Respondents, in defending their fundamental rights, filed an application, before the trial Court, for enforcement of fundamental rights, to which the Appellants and the 7th Respondent filed their respective responses as Respondents.
After hearing the Application, the learned trial Judge granted the prayers of the Applicants, in the controversial ruling delivered on 31st January 2020, the subject of the instant appeal. The Notice of Appeal is predicated upon three grounds as hereunder reproduced, bereft of their particulars, thus:
(1) The learned trial Judge erred in law when she found that the application of the Respondents is meritorious without considering the 2nd & 3rd Appellants’ counter – affidavit in opposition to the Respondents’ motion and written address in support of the said counter-affidavit thereby occasioning a miscarriage of justice to the 2nd and 3rd Appellants.
(2) The learned trial Judge erred in Law when she failed to strike out or dismiss the application of the
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Respondents same having been filed by more than one (1) person contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Fundamental Rights Enforcement Procedure Rules and several judicial pronouncements including Kporharor & Anor Vs Yedi & Ors (2017) LPELR – 42418 (C.A.).
(3) The learned trial Judge misdirected himself when he completely ignored the position of the law as judicially stated by the Court of Appeal case in Sampson Vs Uwak (2017) 10 NWLR (PT. 1574) 491 at 504 paras F – H wherein it was held thus:
“the Nigeria Police Force is a necessary party in any suit in which damages is being sought against the Nigeria Police Force. The none inclusion of the Nigeria Police Force as a party in this suit, therefore, renders the suit incompetent and liable to be dismissed…”
The learned counsel for the Appellants DSP Martins D. Leo, Esq distilled 3 issues from the foregoing 3 grounds of appeal thus:
1. Whether the learned trial Judge erred in law when he found that the application of the 1st – 6th Respondents is meritorious without considering the
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Appellants’ Counter Affidavit and written address and in particular Exhibit P1 being a criminal complaint?
2. Whether the learned trial Judge erred in law when he failed to strike out or dismiss the application of the 1st – 6th Respondents, same having been filed by more than one person contrary to the provision of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 2 Rule 1 of the Fundamental Right (Enforcement Procedure) Rules 2009, particularly as it relates to the adjective “any”?
3. Whether from the facts of the suit before the trial Court, the Nigeria Police Force ought to have been joined as a party by virtue of the damages claimed by the 1st – 6th Respondents to the tune of Five Billion Naira (N5,000,000,000.00) against the 2nd & 3rd Respondents now the Appellants out of which N2,000,000.00 was awarded by the trial Court?
The learned counsel for the 1st to 6th Respondents Abdullahi Bello, Esq raised and argued three similar issues thus:
1. Considering the provisions of the Interpretation Act in construing
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Section 46 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and Order 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, whether the 1st to 6th Respondents are not entitled to jointly file an application to enforce their fundamental rights.
2. Whether a miscarriage of justice has been occasioned in this case by the trial Court in granting the fundamental right application of the 1st to 6th Respondents.
3. Whether the Nigerian Police Force is a necessary party in this case.
The Appellants’ three issues are not only elegant in their couching style but are also properly related to specific grounds of appeal, which the 1st to 6th Respondents’ issues are not. The three issues raised by the Appellants are therefore adopted for determination of this appeal.
Issue One: On this issue, it was argued for the Appellant that the complaint lodged by the 7th Respondent who was the complainant are allegations related to criminal offences as contained in Sections 45, 46, 58, 217, 229, 230, 239, 365, 366 & 369 of the Penal Code Law of Kaduna State 2017, which the Nigeria Police has statutory power and duty to investigate. The Appellants contended
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that no Court has the power to stop the Police from investigating a crime and that when and how it is done is a matter of discretion exercisable by the Police. Reliance was placed on the case of IGP Vs UBAH (2015) 11 NWLR (PT. 1471) 407 where the Supreme Court held thus:
“No Court has the power to stop Police investigating a crime and when to or how it is done is a matter within the discretion of the Police. For a person therefore to go to Court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law Officers… The Court lacks the power to issue declaratory and injunctive reliefs with a view to impeding the result of Police Investigation made pursuant to the statutory duty under Section 4 of the Police Act. The Court lacks the powers to restrain the police from investigation of criminal complaints under Section 4 of the Police Act… It is the duty of the Police to investigate criminal allegations against citizens. The Courts cannot stop the Police from performing its statutory functions. If there is evidence of an infringement of any of the fundamental rights of a party,
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the situation can be remedied but not by stopping Police investigation… There is no fixed or stipulated order of procedure for police investigation of crimes. Criminal investigations are carried out by the Police based on strength of the information at the disposal of the Police investigator. The Police investigator then uses his discretion to determine how to carry out his investigation. (Olatinwo Vs State (2013) 8 NWLR (Pt.355)126)”
It was further submitted that the forgoing and other authorities including Atakpa Vs Ebetor (2015) 3 NWLR Pt. 1447 @ 549 and Gani Fawehinmi Vs IGP & 3 Ors (2007) 7 NWLR (Pt.665) PG. 481 @ 519 as well as Onah Vs Okenwa (2010) NWLR (Pt.1194), 5120 @ 513 were ignored by the learned trial Judge, which if countenanced would have led him to see reason for such clear case … to be investigated by the Appellants.
The learned trial Judge instead raised suo motu an issue of jurisdiction touching on the facts of the case before him and pronounced on same without calling on counsel to address the Court as required by law. This is however extraneous to the issues for determination in this appeal. It is accordingly discountenanced without much ado.
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The learned counsel for the 1st to 6th Respondents, however, argued that the powers of the Appellants as provided in Section 4 of the Police Act is subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). While they enjoy wide powers to prevent crimes, that power cannot be carried out arbitrarily in contravention or disregard of constitutional provisions, particularly the provisions that guaranty the fundamental rights of citizens, which apply even to matters under police investigation.
It was further argued that the procedure for criminal investigations by the Police or other security agencies in Nigeria is governed by law and that it would be out of place to argue that when same is done in contravention of the provisions of the law or in violation of constitutional rights of citizens, it cannot be checked and reviewed by Courts of law. The learned counsel for the 1st to 6th Respondents however did not identify the particular law that was violated or the statutory limit of the Appellant’s authority that was stepped out.
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In the instant case, the written complaint exhibit P1, was made on the 9th of November 2019 and received by the 1st Appellant on the same day, which was also the wedding day. The complaint was predicated upon assault, wrongful confinement, wrongful restraint and false imprisonment of one Abdullahi Tesla. The 7th Respondent, on whose instructions the complaint was made by his solicitors, was not present at the wedding venue. Paragraph 15 of the 7th Respondent’s counter affidavit shows that he sent the said Abdullahi Tesla to the wedding venue to give warning. It was argued for the 1st to 6th Respondents that the 7th Respondent’s report related to crimes, which he didn’t witness. It is pertinent that one need not witness a crime personally before he complains about it. It is unlike hearsay evidence as complaint is not evidence. Thus, it could be made upon reasonable belief and it is for the Police to investigate and find out the truth or falsity of the information. The liability of the informant only arises where the information leading to arrest or detention is given without reasonable belief.
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It was further argued for the 1st to 6th Respondents that the protection afforded to a person who reports crime or possible commission of crime to security outfits is not an absolute one, as the exercise of that duty must be based upon reasonable suspicion or belief, logic, legitimate and not one borne out of malice. Reliance was placed on the case of Eromosele v. Wermer (2014) All FWLR (Pt. 751) 1531 at pages 1571-1572, paras. H-C, per Tom Yakubu JCA (of blessed memory) relied on the observation of Belgore JSC in the case of Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at page 27, thus;
“The reasonable and probable cause to my mind, entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The believe in the criminal culpability of the plaintiff must be honest, based on full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances, which if true would lead every reasonable person to believe the plaintiff has committed an offence. The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is
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probably guilty of the offence he is accused of committing”.
The 1st to 6th Respondents referred to the definition of the word ‘legitimate’ in the Collins English Dictionary & Thesaurus, as ‘authorised or in accordance with law…’ The synonyms include ‘lawful, genuine, rightful, reasonable, logical’.
It was further argued for the 1st to 6th Respondents that the former marriage in question between the 7th Respondent and the 5th Respondent was an Islamic marriage. That the suggested offence of enticing or taking away a married woman concerns only marriage under the Marriage Act. It was further argued that the 7th Respondent and the 5th Respondent have been divorced from their marriage since 9th January 2018 by the judgment of the Sharia Court, sitting in Tudun Wada, while the complaint was against the marriage between the 5th & 4th Respondents was contracted under Islamic law in November 2019, with the 5th Respondent’s father and brother, amongst others, in attendance. It was therefore submitted that the 5th Respondent’s complaint that his wife was enticed away was not born out of good faith.
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It is pertinent to note that once the Appellants received a complaint of facts constituting prima facie commission of an offence, it should as soon as it is so received be investigated as was done in the instant case.
The duty of the Nigeria Police to investigate criminal allegations is, in my view, beyond dispute. To hold otherwise is to create a chaotic situation the manifestation of which may not be fully appreciated until one goes into the shoes of the Appellants. In the instant case, it was alleged that a married woman was enticed or coerced into a second marriage during the subsistence of another marriage. The Appellants, upon receiving that information, caused an investigation to be carried out, the clear purpose of which was to find out the truth or falsity of the information or complaint and take necessary steps according to law.
However, arrest and detention must always follow finding of sufficient prima facie evidence against the culprit. The Supreme Court in the case of Fawehinmi v. I.G.P. & Ors (2002) LPELR -1258(SC), Per Wali JSC held thus:
“I think I can say this that in a proper investigation procedure, it
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is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence…”
Similarly, in Agundi v. Commissioner of Police (2013) All FWLR (Pt. 660) 1247 at p. 1295, paras. E-F, the Court, per Tur JCA held as follows:
“For a person’s personal liberty to be lawfully deprived it has to be shown that it was within the ‘following cases and in accordance with procedure permitted by law’ under Section 35(1) to (7) of the Constitution of the Federal Republic of Nigeria, 1999. Personal liberty of a person shall not be deprived until the person is shown to have violated or infringed a known law and secondly, the procedure for interfering with the person’s personal liberty must be permitted by the law or the Constitution”.
The provision of Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria 1999, arrest or detention of any person must be predicated upon reasonable suspicion of having committed an offence. In other words, arrest or detention of a person must be predicated upon reasonable suspicion.
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However, it is the result of the investigation that will show whether the investigation had revealed a prima facie case that could lead to arrest and detention. In other words, it is only the result of the police investigation that will show justification or otherwise of an arrest and detention and not based on mere conjecture. Thus, the finding of the learned trial Judge that there was no reasonable basis to suggest that the 1st to 6th Respondents have committed any offence was divorced from the result of the investigation, the only report upon which such finding or conclusion could be predicated. The Court below ought not have assumed that the Appellants were incapable of determining how best to meet the duties of crime detection imposed upon them by Section 4 of the Police Act .
Thus, the question whether the arrests and detention were made by the Police with or without detection of prima facie criminal case or whether the case is criminal or civil in nature could best be determined from the investigation report, which is not in evidence. Moreover, statutory presumption is in favour of regularity to the
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effect that the Appellants were working in compliance with the requirements of the law unless otherwise proved.
The foregoing appraisal focused my mind to resolving issue one in favour of the Appellants and against the 1st to 6th Respondents. It is accordingly so resolved.
Issue Two: questions the propriety of the application for enforcement of fundamental rights collectively or jointly by the 1st to 6th Respondents and whether it complies with the provision of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 2 Rule 1 of the Fundamental Rights Enforcement (Procedure) Rules 2009.
The learned counsel for the Appellants argued that the adjective “any” used in both the Constitution and the Enforcement of Fundamental Rights Rules refers to a single individual as opposed to multiple persons coming together to enforce an alleged breach of their collective fundamental rights. See the case of Kporharor Vs Yedi & Ors (2017) LPELR – 42418 (C.A) and case of Archibong Udo Vs Ebanga Udo Robson & 4 Ors (2018) LPELR – 45183 (C.A) where the Court held thus:
“…the
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adjective used in both provisions in qualifying who can apply to a Court to enforce a right is “any” which denotes singular and does not admit pluralities in any form. It is individual rights and not collective rights that is being talked about… In my humble view, any application filed by more than one person to enforce a right under the fundamental rights Enforcement (Procedure) Rules is incompetent and liable to be struck out”.
It was submitted for the Appellants that the foregoing authorities indicate that enforcement of fundamental right must be brought by each person separately. That the foregoing authorities were cited and argued before the lower Court in the written address supporting the counter affidavit filed by the Appellants. Other arguments relating to assessment of the weight of evidence are discountenanced because it does not relate to any issue raised for determination.
The Court was urged to resolve the 2nd issue in favour of the Appellants.
It was, however, argued for the 1st to 6th Respondents that the Respondents’ joint application for enforcement of fundamental rights was properly instituted as
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no law requires individual applications for enforcement of fundamental rights. The Court was urged, on behalf of the 1st to 6th Respondents, to resolve the 2nd issue against the Appellants.
The provision of Rule 2(1) of the Fundamental Rights states thus:
2.-(1) Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.
The words “any person” mean “any one person” in a clear English grammar. No other meaning can be imported into that provision to admit multiplicity of applicants. The Court below erred in law for adjudicating over the application notwithstanding the opposing depositions in the Appellant’s counter affidavit. It should not have entertained the application from the onset due to the multiplicity of Applicants. See the case of Kporharor Vs Yedi & Ors and Archibong Udo Vs Ebanga Udo Robson & 4 Ors where the Court held as follows:
“…the adjective used in both provisions in
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qualifying who can apply to a Court to enforce a right is “any” which denotes singular and does not admit pluralities in any form… In my humble view, any application filed by more than one person … under the fundamental rights (Enforcement Procedure) Rules is incompetent and liable to be struck out”.
I cannot agree more. I hold that enforcement of fundamental right must be brought by each person separately and not collectively as the Respondents did. The second issue is answered affirmatively in favour of the Appellants. It also renders issue three insignificant.
Suffice it to observe that any action against the Nigeria Police or its officers, no matter how highly placed must be brought against the Nigeria Police Force as a statutory body. The Inspector General of Police and the Commissioner of Police, the Appellants herein are mere agents of the Nigeria Police, which is the principal and vicariously responsible for whatever its agents do officially.
Thus, the Appellants being subordinates or agents of the Nigerian Police Force, as created under Sections 214 and 215 of the Constitution of the Federal Republic of Nigeria 1999 (as amended),
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the latter is a necessary party in any suit against the operations of the Nigeria Police Force. Therefore, the none inclusion of The Nigeria Police force as a party in this matter, renders same incompetent and the Court below should have struck it out. See Sampson Vs Uwak (2017) 10 NWLR (PT.1574) 491 at 504 paras F – H. The Nigeria Police Force was not made a party in this suit.
The Supreme Court held in Fawehinmi v. Inspector-General of Police (2002) 23 WRN 1; (2002) 7 NWLR (Pt. 767) 606, per Wali JSC thus :-
“I am satisfied that in the performance of their duty to maintain law and order, to investigate allegations of crime and to arrest, the police have and can exercise some measure of discretion. It all depends on the circumstances of every occasion, the best of their capability, the image of the police force and the overall interest of the society.”
In Sampson Vs Uwak, the Court held thus:
“… By virtue of SS. 214 & 215 of the CFRN 1999 (as amended) and SS. 3, 4, 5 Police Act, there is a clear distinction between the Nigeria Police Force as an entity and its functionaries. Accordingly,
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where the intention is to hold the Nigeria Police Force vicariously responsible for Its operatives’ action, it is not negotiable that it must be made a party to the action.”
The action against the Appellants, in their official as opposed to their private capacities, presupposes that the party that ought to be sue is the Nigeria Police Force. Thus, the Nigeria Police Force is an indispensable party to the suit, and the failure join the Nigeria Police Force renders the action against the Appellants a non starter and incompetent.
Without more ado, this appeal has glaring merit and is hereby allowed. The Ruling of the Court below delivered on 31st January 2020 in suit number KDH/KAD/982/2019 is accordingly set aside. In the stead thereof, the action filed at the trial Court is hereby struck-out for incompetence.
There shall be no order as to costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother HUSSEIN MUKHTAR, JCA and I agree with the reasoning and conclusions of my lord in the said judgment. Seeing that I have nothing extra to add, I adopt the judgment as mine.
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SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my lord, HUSSEIN MUKHTAR, JCA and I agree with his reasoning and conclusion.
The Nigerian Police Force as a statutory body, is a disclosed Principal and its functionaries, merely agents of the Principal in any act or action to which the Police is involved hence it is that body that is answerable for any tort perpetrated by its servant. Non-inclusion of the Nigerian Police Force as a party renders the case otiose, incomplete and therefore incompetent.
The 1st – 6th respondents as applicants at the Court below, sought to enforce their Fundamental Rights to personal liberty under Section 35(1) of the Constitution of the FRN, 1999 (as amended). However, their greatest undoing, was the joint manner the application was made or brought at the Court below contrary to the stipulation at Section 46(1) of the Constitution of the FRN (as amended) which requires separate and not joint application by group of persons even where the cause of action arose from the same transaction or breach. The provision of Section 46(1) of the Constitution of FRN 1999 (as amended) is replicated in the Fundamental rights
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(Enforcement Procedure) Rules, 2009 under Order II Rule 1 which provides that:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution, or African Charter on Human and Peoples’ rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be in fringed may apply to the Court in the State where the infringement occurs or is likely to occur for redress.”
The use of the term “Any person” in the provision above, can only refer to the “individual” person and not a group of individuals put together to jointly seek redress by way of action to enforce their joint interest or right.
For the reasons, so fully discussed in the lead judgment, I too allow this appeal and strike out the suit before the trial Court, as incompetent.
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Appearances:
DSP MARTINS D. LEO, ESQ. For Appellant(s)
ABDULLAHI BELLO. ESQ. – for the 1st – 6th Respondents
RILWAN UMAR, ESQ., with him, S. A. MUSTAPHA, ESQ. and S. S. TAMBAI, ESQ. – for the 7th Respondent For Respondent(s)
