CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR
(2018)LCN/12124(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/IB/212/2013
RATIO
COURT AND PROCEDURE: WHETHER NON JURISTIC PERSON CAN BE SUED
“It is trite law that non-juristic persons generally cannot sue or be sued. In the case of AGBONMAGBE BANK LTD VS. GENERAL MANAGER G.B OLLIVANT LTD & OTHERS (1961) 1 ALL N.L.R. PAGE 116, (1961) SCNLR PAGE 317′ It was held among others that: – ‘General Manager G.B. Olivant Ltd is not descriptive of a Juristic person. The defendant so named was struck out of the action on a Preliminary Objection. It was further held that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person’.” PER JIMI OLUKAYODE BADA, J.C.A.
FUNDAMENTAL RIGHT: BREACH OF FUNDAMENTAL RIGHT
“Section 35 (5) (a)-(b) of the Constitution of The Federal Republic of Nigeria 1999 (As Amended).
It is trite law that in enforcement of Fundamental Rights, when there is evidence of arrest and detention which were done or instigated by the Respondent, it is for the respondent to show that the arrest and detention were lawful.
In this appeal the lower Court held in its Ruling on pages 122-137 of the Record of Appeal amongst others as follows: ‘If in fact the Jaiyelola Filling Station is directly opposite the Divisional Police Station, which the Respondents have not denied, then it is difficult to believe the story of the 4th Respondent of attack by the applicant and other people he mentioned without the attack attracting the attention of the Police and without the 4th Respondent reporting the matter to the Police immediately after he was allegedly attacked. I do not believe his story. I am of the view that his petition to the Police was not in good faith and the subsequent arrest and detention based on the petition is unlawful and wrongful.'” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
CHIEF IBRAHIM SALAMI Appellant(s)
AND
1. PA JOSIAH OYEDIRAN OLAOYE
2. THE COMMISSIONER OF POLICE OYO STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Ruling of Oyo State High Court, Ibadan Division in Suit No:- M/555/2011: BETWEEN – PA JOSIAH OYEDIRAN OLAOYE VS (1) THE COMMISSIONER OF POLICE OYO STATE (2) THE AREA COMMANDER OGBOMOSO (3) THE DIVISIONAL POLICE OFFICER AJAAWA (4) CHIEF IBRAHIM SALAMI delivered on 30th day of July 2012.
Briefly the facts of the case are that the 1st Respondent who was the Applicant at the trial Court initiated an action against the Appellant who was the 4th Respondent at the trial Court on 22/12/2011 praying for the following reliefs:-
(1) A Declaration that the harassment, arrest and consequent detention of the Applicant by the 3rd Respondent (i.e at the lower Court) at the Divisional Police Office Cell Ajaawa between 8.00 am on the 29th day of November 2011 and 7.00 pm on 30th day of November 2011 at the behest of the 4th Respondent constitutes a gross violation of the due process of law and amounts to an infringement of the Appellant?s Fundamental Rights enshrined in Section 35 (1) (4) and 5 (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
(2) An Order restraining 1st, 2nd and 3rd Respondents whether by themselves, their agents, privies and servants from further harassing, arresting detaining or otherwise witch-hunting the Applicant in any form whatsoever at behest of the 4th Respondent over a land matter that have (sic) no criminal ingredient.
(3) An order awarding the sum of (N500,000.00) Five Hundred Thousand Naira only as damages to the applicant for the infringement of his Fundamental Human Rights as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).
And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
The application was supported by a 31 paragraph affidavit, pertinent paragraphs of which are paragraphs 2 to 30 reproduced as follows:-
2. That by virtue of my position, I am conversant with the facts herein depose.
3. That all facts herein deposed to are within my personal knowledge, information and belief except otherwise specifically stated.
4. That the 1st Respondent is the head of Oyo State Police Command while the 2nd and 3rd Respondents serving as its agents in Area Command Ogbomoso and Divisional Police Office, Ajaawa respectively.
5. The 4th Respondent is the Baale of Moolo, a village in Ogo Oluwa Local Government.
6. That I am an old man of over 70 years of age.
7. That as a farmer, I carry out my farming on the land I inherited from my father located at Odo Oran Village in Ogo Oluwa Local Government of Oyo State where I built homestead as accommodation whenever I am in the farm.
8. That I have cocoa plantation and palm trees on the expanse land more than 2 Hectares.
9. That I have been carrying on my farming peacefully for over 4 decades without any disturbance whatsoever.
10. That on the morning of 23rd day of November, 2011, I was in the farm when suddenly I saw some surveyors in my farm land cutting down my cocoa trees in order to pave way for their surveying.
11. I was greatly surprised and I quickly went to them to ask them what they are doing.
12. But upon seeing me, the surveyors ran away.
13. Immediately, I took stock of the number of my cocoa trees destroyed, I counted about one hundred.
14. Because this surveyor never waited to answer any question from me, I carried out investigation which revealed that it was the 4th Respondent that sent those surveyors to destroyed my farm on the pre that he want to survey the land that never belong to him.
15. That the 4th Respondent village Moolo is about 4 kilometre away from my own farmstead Odo-Oran with two villages – Aba Ofa and Aba Owo Ayin in between.
16. That I reported the incident immediately to the Alajaawa’s palace to Mogaji Olawuwo Oladokun and other elders in the palace and they promised to send for the 4th Respondent.
17. That on Saturday the 26th day of November, 2011, I saw the 4th Respondent at Jayeola Petrol Station beside my compound in Ajaawa and I asked him whether he was the one that sent people to cut down my cocoa trees.
18. The 4th Respondent admitted that he sent the people but the matter will be settled at Alajaawa’s palace on Wednesday as the Mogaji in council had invited him to a meeting.
19.But on Thursday 29th day of November, policemen from the office of the 3rd Respondent came to my house in Ajaawa to arrest me.
20.That upon my arrest, I demanded for the reason and the refused to tell me until they bundled me into their motor vehicle.
21. That I was later informed by the police that it was the 4th Respondent that reported me to the 3rd Respondent, hence my arrest and detention.
22. That I was detained by the 3rd Respondent from 8.00 am on the 29th November, 2011 till around 7.00pm on the 30th November, 2011, all at the behest of the 4th Respondent.
23. That upon my being released on bail, I was arraigned on the 1st day of December, 2011 at Chief Magistrate Court 2, Ogbomoso before His Worship Mr. Taiwo Olaniran CMII on two count charges of conspiracy and threat to life in Charge No MOG/144C/2011 COP vs. Josiah Oyediran Olaoye photocopy of the CTC is herewith attached and marked Exhibit ‘A’.
24. The Magistrate admitted me to bail and the case was adjourned to the 19th day of December, 2011 for mention.
25.That the Charge No MOG/144C/2011, COP vs. Josiah Oyediran Olaoye came up for mention on Monday 19th December, 2011 and it was adjourned till Monday 16th January, 2011 for hearing and I left Ogbomoso for Ajaawa very late in the evening as I have other matters to attend to.
26.That on Tuesday the 20th day of December, 2011, six policemen from the office of the 2nd Respondent accompanied 5 surveyors to my farm land at Odo Oran to terrorize me and my family.
27. The six policemen from the office of the 2nd Respondent told me that they were on my farm at the behest of the 4th Respondent and made attempt to arrest me but the attempt was not successful and they eventually dropped a letter of invitation dated 22/12/2011 at my house on the 20/12/2011. Photocopy of the letter is herewith attached and marked Exhibit ‘B’.
28.That the policemen from the 2nd Respondent have since been intimidating, harassing, chasing and searching for me from any farmstead at Odo Oran to my house in Ajaawa which is Ojude Compound. All these at the behest of the 4th Respondent.
29.That the policemen from the offices of both 2nd and 3rd Respondents are victimizing and threatening to arrest me for no just course.
30.That my right to personal liberty has been infringed and is being infringed upon by this harassment from the 2nd and 3rd Respondents at the behest of the 4th respondent. I cannot sleep in any of my abode either at my farmstead Odo Oran or Ojude Compound, Ajaawa?.
Upon service of the 1st Respondent’s processes on the Appellant who was 4th Respondent at the lower Court, he filed a notice of Preliminary Objection on 23/1/2012 challenging the jurisdiction of the trial Court to entertain the suit.
In reaction to 1st respondent’s application the Appellant i.e 4th Respondent at lower Court filed a 10 paragraph Counter Affidavit.
Pertinent paragraphs are paragraphs 1 – 10 reproduced as follows:
1. That I am the Traditional chief/head of Mowolowo Community in Ogo-Oluwa Local Government area of Oyo State.
2. That by virtue of my position, I am very familiar with the facts of this suit.
3. That on 6/01/2012 at about 4.45p.m. I was served with a copy of the motion on notice in this suit at Mowolowo in Ogo-Oluwa Local Government area of Oyo State.
4.That on 8/01/2012, I had retained Abiodun Ogunjinmi Esq. of solicitor to file all necessary processes to serve as our answer in the circumstance of this suit on my behalf.
5.That on 8/01/2012, Lekan Olatoyinbo Esq. of Solicitor in the chambers of Abiodun Ogunjinmi read and interpreted all the motion on notice, all the paragraphs of the affidavit in support and the exhibits attached to my hearing and understanding.
6.That paragraphs 1, 4, 23, 24 and 25 of the affidavit in support of motion notice are correct.
7.That paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 28, 29, 30 and 31 are not correct.
8.That on 26/11/2011, I had honoured the invitation of Ogo Oluwa Local Government to attend the burial ceremony of Late Aajaawa Oba Oyedemi Scheduled for 10’o, clock in the morning at the council secretariat located at Ajaawa.
(a)That at about 5 o.clock in the evening when I was returning to Mowolowo community (my place of abode), Messrs Oyediran (now known as Josiah Oyediran Olaoye the applicant to this suit); Sunday a.k.a Ole of Ojude House, Ajaawa Jimoh Oloyin of Aba Ofa; Kasumu Raimi of Aba Ofa; Fatai Lamidi Aba House, Ajaawa, and Adebisi of Olosun House, Ajaawa attacked and threatened my life in the presence of one Mr Rasaki Oladosu.
(b)That the point of my attack was at Jayeola Petroleum Filling Station, Ajaawa in Ogo – Oluwa Local Government Area of Oyo State.
(c)That at the point of my attack, the applicant together with the other persons were armed with cutlasses, knives and guns.
(d)That on 28/11/2011, I instructed my solicitor Abiodun Ogunjinmi to lodge criminal complaint of threatening my life at the office of the Area Commander vide Exhibits I hereby attached.
(e) That on 1/12/2011, to my knowledge, the officers of the Area Commander arraigned the applicant on the offences of conspiracy and threatening life in charge No MOG/144c/2011 still pending before the Magistrate Court, Ogbomoso.
(f) That to my knowledge, the Applicant on 1/12/2011 was granted bail on a liberal terms.
(g) That on 16/12/2011, the applicant had entered into my farmland and damaged the survey pillars erected by my surveyor at my instance.
(h) That on 19/12/2011, I reported to my counsel {Abiodun Ogunjinmi Esq} with instructions to lodge a criminal complaint of malicious damage to property on my behalf to the office of the Area Commander, Ogbomoso.
(i) That on 21/12/2011, to my knowledge the officer of the Area Commander, Ogbomoso Zone had issued a letter inviting the applicant to appear with a view to answer inquiry on the allegation of malicious damage of 16/12/2011.
(j)That I accompanied the police investigation officers to direct them to ensure proper service on the applicant.
(k)That to my knowledge, the said damage till date.
(l)They only dropped the letter of invitation to bring the notice of the allegation to the notice of the applicant.
(m)They have duty to summon the suspect to the station to investigate criminal offences.
9.That to my knowledge, the area of land in which I instructed my Surveyor to erect survey pillar is my land.
(a) That I had earlier obtained judgment of both the customary Court, Lagbedu in Ogo Oluwa Local Government area and the Ogbomoso High Court in respect of the land purportedly claimed by the applicant.
(b). That to my knowledge, the applicant has no farmland or farm holding within the portion of land at Mowolowo.
(c). That Oran stream is the boundary between Mowolowo community and Ajaawa in Ogo Oluwa Local Government area of Oyo State.
(d). That the applicant has no cocoa plantation within the area where my surveyor erected survey pillar on my behalf.
(e).That I had equally obtained judgment in respect of Oba Ola and Owo Ayin of which they are paying customary rent to applicant had evaded service of the said letter of invitation.
(f).That on 21/12/2011, the investigating police officers delivered the said letter on the male adult in the applicant’s house at Ojude’s Compound, Ajaawa for the attention of the applicant to act upon.
(g).That to my knowledge, my report of 28/11/2011 is different from my report of 19/12/2011.
10.That the 1st, 2nd and 3rd Respondents informed me and I verily believe that:
(a).They did not harass the applicant.
(b).They did not detain the applicant beyond stipulated period during the course of the investigation of the offence of threatening life.
(c).The applicant has not submitted (sic) him for the inquiry in respect of the complaint of malicious damage till date.
(d).The applicant has not been detained and arrested in respect of the allegation of malicious me.(sic)
(e).That I and my agent did not cut any cocoa tree as alleged by the Applicant.
(f).That the applicant did not report me at any police station of damaging his cocoa tree till date.
(g).That to my knowledge, Olawuwo Oladokun is not the occupant of the palace of Alajaawa.
(h). That I do not submit the criminal report of my property for the resolution of Olawuwo Oladokun who is an cousin to the applicant.
(i). That till date, the applicant has not sued me in any Court over his allegation of damage to his cocoa plantation.
The 1st to 3rd Respondents at the lower Court also filed a 19 paragraph Counter Affidavit, pertinent paragraphs of which are 1 to 19 reproduced as follows:-
I, CPL Sunday Adeogun, Male, Christian, Nigerian and a public servant and a member of the Force attached to the ‘D’ Department State CID, Nigeria Police, Iyaganku Ibadan do hereby make oath and state as follows:-
1.That I am a litigation officer at the Legal Department of the 1st Respondent by virtue of which I am conversant with the facts giving vent to this suit.
2.That I have the consent of the 1st – 3rd Respondents to depose to this affidavit.
3.That I derive the facts herein deposed from my personal knowledge in the matter and facts that came to me in my official capacity and as disclosed to me by the 1st to 3rd Respondents at the Police State CID Iyaganku Ibadan on the 20th January, 2012 at about 12.30pm, the facts whereof I verily believed.
4. That I have read through the Court Processes on this Suit including the affidavit in support of the Applicant’s Motion on Notice dated 22nd December, 2011 and found that paragraphs 19, 20, 21, 22, 26, 27, 28, 29, and 30 are false and not correct while the other paragraphs are facts within the knowledge of the Applicant.
5. The 4th Respondent reported a case of Conspiracy and threatening Life with Violence against the Applicant and some other persons at Ajaawa Police Station.
6. The case was incidented and statement recorded from the complainant and his witnesses who corroborated the complaint and having evaluated the evidence at his disposal, the 3rd Respondent reasonably believed that a prima-facie case was made against the Applicant for which he should be invited to defend himself. Annexed hereto are the statement of the complainant and the witnesses marked as exhibit ‘A’ – ‘A2’.
7. That contrary to paragraphs 19 and 20 of the Applicant’s Affidavit in support of the motion, the Applicant was informed about the reason for his arrest in the evening of 29th November, 2011 when he was arrested at about 3.30pm and that the complaint against him to be Conspiracy and Threat to Life. The Applicant made statement to the Police. Photocopies of his statement is hereby annexed as exhibit ‘B’.
8. That at his arrest he was offered bail pending the conclusion of police active investigation immediately but he was unable to perfect the bail until 9 o?clock the following morning before his arraignment in the Court of law.
9. He was arraigned before the Magistrate Court on 1st December, 2011 on a two-count charge of Conspiracy and Threatening Life. Photocopies of the said charge is hereby attached and marked as exhibit ‘C’.
10. On the 19th of December, 2011 the 2nd Respondent received a petition from the 4th Respondent’s Counsel dated the 19th December, 2011 entitled ‘Criminal Complaint of Malicious Damage of the Survey Pillars Erected by the complainants on their Property Situate, Lying and Being at Mowolowo in Ogo-Oluwa LGA, Oyo State’ against the Applicant. Having obtained statement from the complainant and witnesses, Policemen attached to the 2nd Respondent invited the persons mentioned in the petition to come and state their own side and defend themselves against the allegation but could not get the Applicant, they therefore left message for him.
11. The Applicant instead of reporting at the Police Station to make his defence brought this suit against the Respondents.
12.That contrary to paragraphs 26 and 27 of the Applicant?s Affidavit in support of motion, upon a petition written to the 2nd Respondent, PC Salawu Kamorudeen proceeded to the resident of the Applicant to invite him on the allegation against him and some other persons to give them the opportunity to defend the allegation against them but the Applicant was not at home, message was therefore left behind for him to see the I.P.O. at the Area Commander?s office Ogbomoso which he did not honour.
13. That at the conclusion of Police investigation against the other persons they were arraigned in Court on a two-count charge of Conspiracy and Conduct Likely to Cause a Breach of the Peace.
14.That Contrary to paragraphs 28, 29 and 30 of the Applicant’s Affidavit in support of the motion, the Respondents or any Policemen did not at any time intimidate, harass, chase, victimize or threatening to arrest the Applicant.
15.That the Applicant brought this action in order to stultify Police investigation into the allegation against him.
16.That the 1st Respondent is not involved in the investigation of this case.
17.That 1st Respondent is not the employer of the 2nd and 3rd Respondents.
18.That it will not be in the interest of justice to grant this application.
19.That I swear to this affidavit in good faith, conscientiously believing the content to be true and correct in accordance to the oath law?.
In his reply to the Counter Affidavit of the Appellant and 1st to 3rd Respondents at the lower Court, the 1st Respondent filed a 17 paragraph Further Affidavit, pertinent paragraphs of which are 3 to 15 reproduced as follows:-
3. That all facts herein deposed to are within my personal knowledge, information and belief except otherwise specifically stated.
4.That my attention has been drawn to the counter affidavit of the 1st-3rd Respondents, dated 30th day of January, 2012 but filed on 9/2/2012 and the counter affidavit of the 4th Respondent dated 23rd day of January, 2012 and filed the same date by my counsel, Olajide Olanipekun Esq., and there is need to depose to this further affidavit in order to put the proper facts before the Honourable Court.
5. That after my counsel, Olajide Olanipekun Esq. read and explained to me the two set of counter affidavits, I found that paragraphs 6, 7, 8, 11, 12, 14, 15 of the 1st – 3rd Respondent Counter affidavit are not true likewise, Paragraphs 8 (a), (b), (c), (g), (h), (i), (j), (k) & (m), 9 (a), (b), (c), (d), (e), (f) & (g), 10 (a), (b), (c), (d), (e) & (g) of the 4th Respondent Counter affidavit are not true.
6.That contrary to paragraph 7 and 8 of the 1st – 3rd counter affidavit, l was arrested by 8.00am on the 29th day of November, 2011 and was not offered any bail that I was unable to perfect until I informed the Police that my lawyer is on his way and that I will seek redress in Court of law for my rights that were infringed upon. It was on that point that I was released on the 30th day of November, 2011 around 7.00pm.
7. That it was as a result the fact that I informed the Police I will seek redress in Court of law for my arrest that the Police hurriedly arraigned me on the 1st day of December, 2011 in Charge No MOG/144c/ 2011 in Magistrate Court 2, Ogbomoso to cover up their illegal arrest and detention of me.
8. That since my arraignment in Charge No MOG/144c/2011, the Police has not been coming to Court to prosecute the charge with its witnesses every date of adjournment. On the 23rd April, 2012, following a successful application that the charge be struck out for want of diligent prosecution by my counsel Olajide Olanipekun Esq., the Court struck out the Charge MOG/144C/2011 and I was thereby discharged. The CTC of the record of proceedings is herewith attached and marked ‘EXHIBIT A’.
9. The fact that I have been discharged in Charge No. MOG/144c/2011, vindicate me and that my arrest and detention by the 1st – 3rd Respondents at behest of the 4th Respondent did not follow due process of law and thereby infringed on my fundamental rights.
10. That in reaction to paragraph 8 of the counter affidavit of the 4th Respondent, I neither attack nor threatening the 4th Respondent as he claimed.
In fact, the Jaiyeola Filling Station where the 4th Respondent claimed to be his point of attack was directly opposite the Divisional Police Station, Ajaawa and the attack of the magnitude that 4th Respondent claimed would have attracted the attention of the Police whose office is just a stone throw from the Filling Station.
11.That the 4th Respondent waited for 3 days before his counsel claimed to write a complaint to the 2nd Respondent is an afterthought as the 4th Respondent could have just walked across the road and make complaint immediately to the police if such attack takes place.
12.That my arrest and detention of 29th November, 2011 and subsequent harassments by the 1st – 3rd Respondents on the behest of the 4th Respondent are calculated attempt to intimidate me and thereby give the 4th Respondent opportunity to sell my farmland on which I have been farming for more than 40 years.
13.That as reaction to paragraph 9 of the 4th Respondent counter affidavit, the 4th respondent never obtain any judgment against me on my farmland and that there are not survey pillars on my farmland and that I never remove any survey pillar on my own land contrary to the assertion of the 4th Respondent.
14.That the policemen, from the offices of both 2nd and 3rd Respondents are victimizing and threatening to arrest me for no just course until I filed this suit.
15.That my right to personal liberty has been infringed and is being infringed upon by this harassment from the 2nd and 3rd Respondents at the behest of the 4th respondent. I cannot sleep in anv of my abode either at my farmstead Odo Oran or Ojude Compound, Ajaawa until I filed this application.
At the end of hearing, the learned trial Judge delivered a Ruling on 30/7/2012 in favour of the 1st Respondent.
The Appellant who is dissatisfied with the ruling of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated five issues for the determination of this appeal. The said issues are reproduced as follows:-
(1) Whether the trial Court was right to have held that the act of the Police in detaining the 1st Respondent for a period of less than 24 hours upon a criminal petition written by the Appellant is unconstitutional, unlawful, wrongful and amounts to the infraction of the 1st Respondent’s Fundamental Human Rights (Distilled from Grounds 1 and 8)
(2.) Whether the 2nd Respondent can be held vicariously liable for the acts of the 2nd and 3rd Respondents who have been held to be non-juristic persons and whose names have been struck out by the Honourable Court.
(3)Whether the trial Court was not wrong to have held that the Appellant’s criminal petition to the Police against the 1st Respondent which subsequently culminated in the arrest and detention of the 1st Respondent was in bad faith (Distilled from Grounds 4 and 7).
(4) Whether the trial Court was right not to have disregarded Exhibit ‘A’ and paragraphs 8 and 9 of the 1st Respondent’s further affidavit. (Distilled from Ground 5).
(5) Whether the trial Court was right to have awarded the sum of N250,000.00 as damages against the Respondents (Distilled from Grounds 3 and 10).
On his own part the learned Counsel for the 1st Respondent adopted the five issues formulated for determination by the Appellant.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO. 1
Whether the trial Court was right to have held that the act of the Police in detaining the 1st Respondent for a period less than 24 hours upon a criminal petition written by the Appellant is unconstitutional, unlawful, and wrongful and amounts to the infraction of the 1st Respondent Fundamental Human Rights. (Distilled from Grounds 1 and 8)
The Learned Counsel for the Appellant stated that on 26/11/2011 the Appellant was attacked at about 5pm at Jaiyeola Petroleum Filling Station, Ajaawa in Ogo-Oluwa Local Government Area of Oyo State. He went further that on 28/11/2011 the Appellant instructed his Solicitor Ogunjimi Esq to write a Criminal Petition of threat to his life to the Area Commander’s Office.
Based on the said Petition the 1st Respondent was arrested by the 2nd and 3rd Respondents for the offence of conspiracy and threat to life, and upon his arrest he made a statement to the Police.
Learned Counsel referred to paragraph 8 of the 1st to 3rd Respondent’s Counter Affidavit, he submitted that the 1st Respondent was granted bail within a period of less than 24 hours. And the 1st Respondent was then arraigned on 1/12/2011 for the offence of conspiracy and threat to the life of the Appellant at the Magistrate Court Ogbomoso in charge NO; MOG/144C/2011 and that he was granted bail on Liberal grounds.
It was stated on behalf of the Appellant that despite the pending case at the Magistrate Court, the 1st Respondent on 16/12/2011 entered into the farm land of the Appellant at Mowolowo in Ogo-Oluwa Local Government Area, Oyo State and damaged the survey pillars erected by the Appellant’s Surveyor.
In view of the damages referred to above, the Appellant was said to have instructed his solicitor to write Criminal Petition for malicious damage of his property to the office of the Area Commander Ogbomoso upon which the Area Commander issued a letter on 21/12/2011 inviting the 1st Respondent to appear with a view to answering the allegation of malicious damage against him.
The learned Counsel for the Appellant submitted that the action of the officers of the 2nd Respondent (The Police) relates to a statutory duty and exercise of their power as contained in Sections 4 and 24 of the Police Act Cap P19 Laws of the Federation of Nigeria, 2004.
He argued that the Police i.e the 2nd Respondent merely discharged its, statutory duty by inviting the 1st Respondent and interrogating him by taking his statement. He referred to the following: FAWEHINMI VS I.G.P (2002) 7 NWLR PART 767 PAGE 606 AT 670-671. SHITTA BEY VS. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC PAGE 40
SECTIONS 4 OF THE POLICE ACT CAP P 19 LFN 2004. SECTION 35 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)
He finally submitted that the Police only acted in their official capacity and within the ambit of the law. He therefore urged that this issue be resolved in favour of the Appellant.
In his response to the submission of learned Counsel for the Appellant, the learned Counsel for the 1st Respondent submitted that it is trite law that in enforcement of Fundamental Rights, when there is evidence of arrest and detention which were done or instigated by the Respondent, it is for the Respondent to show that the arrest and detention were lawful. He referred to the case of DIRECTOR SSS VS AGBAKOBA (1999) 3 NWLR PART 595 PAGE 371 PARAGRAPH A, 373 PARAGRAPH H.
The Ruling of the lower Court on pages 122 – 137 of the Record of Appeal was referred to, where it was held that the Petition to the Police was not in good faith and that the subsequent arrest and detention based on the Petition is unlawful and wrongful.
He urged this Court to resolve this issue against the Appellant and hold that the Respondent having failed to discharge the onus placed on them by the law to establish before the lower Court that the arrest and detention of the Applicant (now the 1st Respondent) was lawful or justified by law, this appeal should be dismissed.
In this appeal under consideration, the Appellant alleged that on 26/11/2011 on his way back to Mowolowo Community from Council Secretariat at Ajaawa for the burial ceremony of late Alajawa Oba Oyedemi, that he was attacked and his life was threatened with dangerous weapons by the 1st Respondent and some other people. He stated that he was attacked at about 5pm at Jaiyeola Petroleum Filling Station Ajaawa in Ogo Oluwa, Local Government Area of Oyo State. And on 28/11/2011, he instructed his Solicitor Ogunjimi Esq to write a Criminal Petition of threat to his life to the Area Commander Office.
Based upon the Petition written on behalf of the Appellant, the 1st Respondent was arrested by the 2nd and 3rd Respondents for the offence of conspiracy and threat to life and upon his arrest the 1st respondent made statement to the Police.
The 1st Respondent was detained from 8.00am on 29th day of November till 7.00pm on the 30th day of November 2011.
It must be noted right from the onset that the period of arrest stated by Counsel for the parties to this appeal are the same. From 8.00am on the 29th day of November 2011 till 7.00pm on 30th November 2011 is definitely more than 24 hours stipulated by Section 35 (5) (a)-(b) of the Constitution of The Federal Republic of Nigeria 1999 (As Amended).
It is trite law that in enforcement of Fundamental Rights, when there is evidence of arrest and detention which were done or instigated by the Respondent, it is for the respondent to show that the arrest and detention were lawful.
In this appeal the lower Court held in its Ruling on pages 122-137 of the Record of Appeal amongst others as follows:-
“If in fact the Jaiyelola Filling Station is directly opposite the Divisional Police Station, which the Respondents have not denied, then it is difficult to believe the story of the 4th Respondent of attack by the applicant and other people he mentioned without the attack attracting the attention of the Police and without the 4th Respondent reporting the matter to the Police immediately after he was allegedly attacked. I do not believe his story. I am of the view that his petition to the Police was not in good faith and the subsequent arrest and detention based on the petition is unlawful and wrongful.”
The ruling of the learned trial Judge cannot be faulted because after carefully reading the affidavit evidence before the Court, it would be discovered that the case is rooted in a land matter. There is no doubt that the Appellant wanted to intimidate the 1st Respondent. But instead of that he should have followed a legally approved and civilized way by instituting an action for possession and not to use Police to infringe or trample on the rights of others. This is because where someone’s right ends, there the right of another person begins. The Police are not to be used as land recovery agents.
The Courts have in strong terms condemned the use of Policemen or Soldiers in the resolution or settlement of disputes among people, this is because the use of Policemen often lead to infringement of the fundamental rights of others. And a Fundamental Right is certainly a right which stands above the ordinary laws of the land.
The Appellant was unable to justify the arrest and detention of the 1st respondent by the 2nd Respondent. Although the 1st respondent was charged to the Magistrate Court on 1/12/2011 in charge No: MOG/144C/2011 but he was eventually discharged for lack of diligent prosecution on 23/4/2012.
See the following cases: –
DIRECTOR SSS VS. AGBAKOBA (Supra) AGBAI VS OKOGBUE (1991) 7 NWLR PART 391, (1991) LPELR 225 (SC)
Therefore the lower Court was right to have held that the act of the Police in detaining the 1st Respondent for a period of more than 24 hours contrary to Section 35 (5)(a)-(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) upon a Criminal Petition written by the Appellant, is unconstitutional, unlawful, wrongful and amounts to the infraction of the 1st Respondent’s Fundamental Human Rights.
This issue No. 1 is therefore resolved in favour of the 1st Respondent and against the Appellant.
ISSUE NO. 2
Whether the 2nd Respondent can be held vicariously liable for the acts of the 2nd and 3rd Respondents who have been held to be non-juristic persons and whose names have been struck out by the Honourable Court (Distilled from ground 2).
The learned Counsel for the Appellant submitted that only Juristic persons can sue and be sued, therefore the Area Commander, Ogbomoso Police Command, Owode, Ogbomoso and divisional Police Officer, Ajaawa are not juristic persons.
It was contended that by virtue of Section 215 (2) of the Constitution of The Federal Republic of Nigeria, 1999 (As Amended), it is only the Commissioner of Police that can sue and be sued in his official capacity
It was also submitted on behalf of the Appellant that having struck out the names of 2nd and 3rd Respondents from the case they no longer exist as parties.
The learned Counsel for the Appellant referred to the Ruling of the lower Court where 1st Respondent was held liable for the acts of 2nd and 3rd Respondents whose names were struck out of the case.
He submitted that the lower Court was wrong to have held the 2nd Respondent liable for the acts of the parties struck out.
He urged that this issue be resolved in favour of the Appellant.
In his response the learned Counsel for the 1st respondent referred to Section 215 (2) of the Constitution of the Federal Republic Of Nigeria 1999 (As Amended) which states that the Police command in every state is placed under the Command of the Commissioner of Police.
He stated that going by the provisions referred to above and also the processes filed by 1st to 3rd Respondents at the lower Court, that there was nowhere that Police contended that the Policemen that arrested and detained 1st Respondent was acting on their own volition and not on behalf of the Oyo State Command of the Nigeria Police under the authority of the Commissioner of Police, Oyo State and the 2nd Respondent before this Court.
He urged this Court to resolve issue two against the Appellant and in favour of the Respondent.
The issue here is whether the 2nd Respondent can be held vicariously liable for the acts of the 2nd and 3rd Respondents who have been held to be non-juristic persons and whose names have been struck out at the lower Court.
It is trite law that non-juristic persons generally cannot sue or be sued.
In the case of AGBONMAGBE BANK LTD VS. GENERAL MANAGER G.B OLLIVANT LTD & OTHERS (1961) 1 ALL N.L.R. PAGE 116, (1961) SCNLR PAGE 317′ It was held among others that: –
‘General Manager G.B. Olivant Ltd is not descriptive of a Juristic person. The defendant so named was struck out of the action on a Preliminary Objection. It was further held that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person’.
See also the following cases:-
MAERSK LINE & ANOTHER VS. ADDIDE INVESTMENT LIMITED & ANOTHER (2002) 11 NWLR PART 778 PAGE 317. CHIEF GANI FAWEHINMI VS NIGERIAN BAR ASSOCIATION & OTHER NO. 2 (1989) 2 NWLR PART 105 PAGE 558. OLUFEAGBA & OTHERS VS ABDUL-RAHEEM & OTHERS (2009) 18 NWLR PART 1173 PAGE 384.
CARLEN NIG. LTD VS. UNIVERSITY OF JOS & ANOTHER (1994) 1 NACR PAGE 125 AT 134-135
By the Provisions of Section 215 (2) of The Constitution of The Federal Republic of Nigeria 1999 (As Amended) which states that –
“The Nigeria Police force shall be under the command of the Inspector-General of Police and any contingents of the Nigeria Police Force stationed in a state shall, subject to the Authority of the Inspector General of Police, be under the command of the Commissioner of Police of that State”.
Going by the Provisions set out above and all the processes filed by 1st to 3rd Respondents at the lower Court, there was nowhere that it was stated that the policemen that arrested and detained the 1st Respondent were acting on their own volition and not on behalf of the Oyo State Command of the Nigeria Police under the authority of the
Commissioner of Police Oyo State who is the 2nd Respondent before this Court.
In this appeal, the petition written by the Appellant was written to the area Commander of Nigeria Police Ogbomoso Zone. Also, the Counter-Affidavit filed by the 1st to 3rd Respondents at the lower Court on page 66 to 68 of the Record of Appeal was sworn to by one CPL Sunday Adeogun, a Litigation Officer in the office of 2nd Respondent before this Court.
The said Counter Affidavit tried to justify the actions of the 2nd and 3rd Respondents in arresting and detaining the 1st Respondent/Applicant. It was not stated anywhere that the 2nd and 3rd Respondents acted outside their official capacity which is deemed in law to be under the authority of the Commissioner of Police.
Furthermore, the charge sheet NO. MOG/144C/2011 on page 72 of the Record of Appeal was filed in the name of the Commissioner of Police which shows that the Commissioner of Police has taken responsibility of all actions of 2nd and 3rd Respondents.
It must be appreciated that since the inception of the case, everything that was done was in the name of Commissioner of Police, Oyo State. Therefore, the lower Court was right when it held that the 2nd Respondent was liable.
This issue No. 2 is resolved in favour of the 1st Respondent and against the Appellant.
ISSUE NO 3
Whether the trial Court was not wrong to have held that Appellant?s Criminal Petition to the Police against the 1st Respondent which subsequently culminated in the arrest and detention of the 1st Respondent was in bad faith (Distilled from Grounds 4 and 7).
The learned Counsel for the appellant referred to paragraph 8(b) and (d) of his Counter-Affidavit where it was averred that his life was threatened with dangerous weapons by the 1st Respondent/applicant in company of other people at Jaiyeola Filling Station Ajaawa in Ogo-Oluwa Local Government Area of Oyo State and consequent upon which the appellant instructed his solicitor to write a Criminal Petition to the Area Commander’s Office against the 1st Respondent/Applicant on 28/11/11.
It was based on the petition of the appellant that the 1st Respondent was arrested and charged to Court in charge No. MOG/144C/2011 at the Magistrates Court in Ogbomoso for the offences of Conspiracy and threat of life.
It was submitted on behalf of the Appellant that every citizen including the Appellant has a Fundamental Right to his life as enshrined in Section 33(1) of 1999 Constitution of the Federal Republic of Nigeria (as amended). And where that right is about to be impugned, such person can report to the Nigeria Police for the safety of their life.
It was submitted on behalf of the Appellant that the learned trial Judge was wrong to have held that the appellant’s Criminal Petition to the Police for threat to his life by the 1st Respondent/Applicant was written in bad faith.
He argued that the Appellant petitioned the Police and the Police in their Judgment carried out arrest and detention of the 1st Respondent. He relied on NWANGWU VS. DURU (2002) 2 NWLR PART 751 PAGE 265 AT 281-283.
The learned Counsel for the appellant also submitted that where an individual has lodged a complaint to the Police by way of petition, and the Police have thereupon acted on their own proceeded to carry out arrest and detention, the act of imprisonment is that of the Police. He relied on the following cases:-
NWANGWU VS DURU (Supra) OWOMERO VS FLOUR MILLS NIG. LTD (1995) 9 NWLR PART 421 PAGE 622 AT 629. GBAJOR VS OGUNGBUREGUI (1961) 4 ALL N.L.R PAGE 853.
He finally submitted that the arrest and detention of the 1st Respondent/Applicant by the Police based on the petition of the Appellant is not in any way wrongful and unlawful.
He urged that this issue be resolved in favour of the Appellant.
The learned counsel for the Respondent stated that after going through the processes filed in this case, it would be revealed that the issue in contention between the parties is land matter.
He referred to paragraphs 10 and 11 of the Further Affidavit deposed to by the 1st Respondent/Applicant. It was stated that the alleged attack was debunked in the said paragraphs of the Further Affidavit referred to above.
He referred to the case BADEJO VS. FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR PART 464 PAGE 15 AT 42 PARAGRAPHS E-F.
He urged that this issue be resolved in favour of the 1st Respondent and against the Appellant.
There is no doubt that the arrest and detention of the 1st Respondent was based on the criminal petition written to the Police by the Appellant. The Appellant had alleged that the 1st Respondent attacked, and threatened his life with dangerous weapons. The attack was said to be in front of Jaiyeola Petroleum Filling Station Ajaawa in Ogo-Oluwa Local Government of Oyo State.
It is also true that every citizen including the Appellant and the Respondents have fundamental Right to their lives as enshrined in Section 33 (1) of The Constitution Of The Federal Republic of Nigeria 1999 (As Amended) and where the right is about to be impugned, such person can report to the Nigerian Police for the safety of their lives. But I am of the view that in doing this there must be honesty of purpose.
A careful reading of the processes of the parties filed at the lower Court would reveal that in the first place, what is in contention between the Appellant and 1st Respondent is land dispute.
Secondly, the bottom of the petition written by the Appellant against 1st Respondent was knocked off by paragraphs 10 and 11 of the Further Affidavit of the 1st Respondent which states thus:-
10. That in reaction to paragraph 8 of the Counter Affidavit of the 4th Respondent, I neither attacked nor threatened the 4th Respondent as he claimed. In fact, the Jaiyeola Filling Station where the 4th Respondent claimed to be his point of attack was directly opposite the Divisional Police Station, Ajaawa, and the attack of that magnitude that 1st Respondent claimed would have attracted the attention of the Police whose office is just as stone throw from the filling station.
11.That the 4th Respondent waited for 3 days before his counsel claimed to write a complain to the 2nd Respondent is an afterthought as the 4th Respondent could have just walked across the road and make complaint immediately to the police if such attack took place.
The learned trial Judge brought out the falsehood in the petition when he held that:-
If in fact Jaiyeola Filling Station is directly opposite the Divisional Police Station, which the Respondents’ have not denied, it is difficult to believe the story of the 4th Respondent of attack by the Applicant and other people he mentioned without the attack attracting the attention of the Police and without the 4th Respondent reporting the matter to the Police immediately after he was alleged attacked. I do not believe his story. I am of the view that his petition to the Police was not in good faith and the subsequent arrest and detention based on the petition is unlawful and wrongful.
In my humble view the Ruling of the lower Court cannot be faulted. And I agree that the petition of the Appellant against the 1st Respondent to the Police was not in good faith, it was in bad faith.
This issue No. 3 is also resolved in favour of the 1st Respondent and against the Appellant.
ISSUE NO. 4
Whether the trial Court was right not to have disregarded Exhibit ?A? and paragraphs 8 and 9 of the 1st Respondent?s Further Affidavit. (Distilled from Ground 5).
The Learned Counsel for the Appellant referred to the Further Affidavit filed by the 4th Respondent/Applicant in response to the Counter Affidavits of the Appellant and 1st to 3rd Respondents at the lower Court. The Further Affidavit was filed on 16/5/2012.
He stated that in paragraphs 8 and 9 of the said Further Affidavit the 1st Respondent/Applicant relied on Exhibit ?A? which is a Certified True Copy of the record of proceedings in charge No. MOG/144c/2011. (See pages 106 to 107 of the Record of Appeal).
He submitted that the trial Judge was wrong to have admitted the averments in paragraphs 8 and 9 and Exhibit ?A? relied on in the Further Affidavit of the 1st Respondent without evaluating same. He relied on Section 115 (2) of the Evidence Act 2011 and the following cases:-
GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR PART 18 PAGE 621. ORJI VS. ZARIA INDUSTRIES LTD (1992) 1 NWLR PART 216 PAGE 124. JOSIEN HOLDINGS LIMITED VS. LORNAMEAD LTD (1995) 1 NWLR PART 371 PAGE 254. BAMAIYI VS. THE STATE & 4 OTHERS 6 NSCQR PAGE 158.
It was also contended that Exhibit ‘A’ was made during the pendency of the 1st Respondent’s application for enforcement of Fundamental Human Rights and that the Court cannot place reliance on same. He relied on Section 83 (3) & (4) of the Evidence Act, 2011 which he said renders Exhibit ‘A’ inadmissible.
He urged that this issue be resolved in favour of the Appellant.
In his response the learned Counsel for the 1st Respondent submitted that paragraphs 8 and 9 of the Further Affidavit of the 1st Respondent/Applicant dated 16/5/2012 on pages 106-109 of the Record of Appeal are not in contravention of Section 115 (2) of the Evidence Act 2011 and also that the document marked Exhibit ?A? attached in paragraph 8 of the affidavit was proper.
He submitted that paragraphs 8 and 9 of the Further Affidavit are not in contravention of Section 115 (2) of the Evidence Act, 2011.
He relied on the following cases of:-
NIGERIA SOCIAL INSURANCE TRUST MANAGEMENT BOARD (N.S.I.T.F.M.B) VS. KLIFCO NIG. LTD (2010) ALL FWLR PART 5334 PAGE 73 (SC) U.T.C. VS. ALHAJI ABDULWAHAB LAWAL (2014) ALL FWLR PART 727 PAGE 456 (SC) AT PAGE 676 PARAGRAPHS D-F. LADOJA VS. AJIMOBI (2016) ALL FWLR PART 843 PAGE 1846 PARAGRAPHS D-H.
He urged that this issue No. 4 be resolved against the Appellant and thereby dismiss the Appeal.
The submission of the learned Counsel for the Appellant is that the trial Judge was wrong to have admitted the averments in paragraphs 8 and 9 and Exhibit ‘A’ relied on in the Further Affidavit of the 1st Respondent without evaluating same.
The said paragraphs 8 and 9 of the Further Affidavit of the 1st Respondent being referred to are hereby set out as follows:
(8) That since my arraignment in charge No. MOG/144c/2011, the Police has not been coming to Court to prosecute the charge with its witnesses every date of adjournment. On 23rd April, 2012 following a successful application that the charge be struck out for want of diligent prosecution by my Counsel Olajide Olanipekun Esq the Court struck out the charge No. MOG/144c/2011 and I was thereby discharged. The CTC of the record of proceedings is herewith attached and marked as Exhibit ?A?.
(9) The fact that I have been discharged in charge No. MOG/144c/2011 vindicates me and that my arrest and detention by the 1st to 3rd Respondents at behest of the 4th Respondent did not follow due process of law and thereby infringed on my Fundamental Rights.
I am of the view that paragraphs 8 and 9 of the Further Affidavit of the 1st Respondent set out above are not in contravention of Section 115 (2) of the Evidence Act, 2011, also the document marked as Exhibit ?A? in paragraph 8 of the said affidavit was properly put before the lower Court.
Section 115 (1) of the Evidence Act, 2011 provides thus:-
‘Every Affidavit used in Court shall contain only, a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.’
A careful reading of the said paragraph 8 of the Further Affidavit would reveal that the Applicant merely deposed to the facts of what happened during trial in charge No. MOG/144c/2011 and how the charge was struck out for want of diligent prosecution. The facts contained in the said paragraph were buttressed by the Exhibit ‘A’ attached to the affidavit. Therefore I agree with the submission of the learned Counsel for the 1st Respondent that paragraph 8 of the Further Affidavit is not in contravention of the provision of Section 115 (2) of the Evidence Act 2011. So also is paragraph 9 of the Further Affidavit which is only statement of facts known by the 1st Respondent as the consequence of the striking out order of the Magistrate Court and are not in contravention of Section 115 (2) of the Evidence Act 2011.
The learned Counsel for the Appellant submitted that Exhibit ‘A’ is inadmissible. The Section that deals with this is Section 83 (3) of the Evidence Act 2011 which provides as follows:-
‘Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’
The key word in the above provision is ‘a person interested’ which has been defined in many decided authorities to mean a person who has pecuniary or other material interest in the result of the proceedings, a person whose interest is affected by the result of the proceedings and therefore would have a temptation to prevent the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest due to sympathy. It means an interest in the legal sense which means something to be gained or lost.
See the following cases:- NIGERIA SOCIAL INSURANCE TRUST MANAGEMENT BOARD (N.S.I.T.F.M.B) VS. KLIFCO NIG. LTD (Supra)
U.T.C. VS. ALHAJI ABDULWAHAB LAWAL (Supra).
LADOJA VS. AJIMOBI (Supra).
A perusal of the said Exhibit ‘A’ attached to the Further-Affidavit of the 1st respondent at the lower Court being complained about would reveal that the document emanated from the Chief Magistrate’s Court, Ogbomoso as signed by Mr. T Oladiran-Magistrate (CM II) and it did not show in any way that the person who made the document is a person interested.
The Magistrate who is performing a duty in his official capacity cannot be said to be a person interested under Section 83 (3) of the Evidence Act, 2011.
My conclusion on this is that Exhibit ‘A’ attached to the Further Affidavit of the 1st Respondent/Applicant at the lower Court was not made by interested person therefore it is not in contravention of Section 83 (3) of the Evidence Act, 2011.
In view of the foregoing, this issue No. 4 is hereby resolved in favour of the 1st Respondent and against the Appellant.
ISSUE NO. 5
Whether the trial Court was right to have awarded the sum of N250,000.00 as damages against the Respondent (Distilled from Grounds 3 and 10)
The learned Counsel for the Appellant contended that one of the Appellant’s grouse is that the trial Judge erred in law when he awarded the sum of (N250,000.00) Two hundred and fifty thousand Naira as damages against the Respondent as same was not justified by evidence.
He argued that the Appellant should not have been liable for damages because all he did was to lodge Criminal complaint of threat to life to the Police. And having lodged the complaint to the Police, the Appellant does not have further powers to determine extent to which the Police can detain.
He submitted that the detention and granting of bail to the 1st Respondent is the exclusive preserve of the Police and not that of the Appellant. He went further that if there is any constitutional infringement of the 1st Respondent’s Fundamental Right by the Police, the Appellant would still not be held liable in damages because he only wrote a petition which prompted the Police in carrying out their statutory and official duty.
It was submitted further that the 2nd Respondent is the Commissioner of Police Oyo State cannot be held vicariously liable in damages for the acts of 2nd and 3rd Respondents at the lower Court who are non-juristic persons. He contended that one cannot put something on nothing and expect it to stand, it will definitely collapse. He relied on the following cases: –
MACFOY VS U.A.C (1962) A. C. PAGE 152. ODUA INVESTMENT CO LTD VS TALABI (1991) 1 NWLR PART 170 PAGE 780. ANYAEGUHAM VS. A. G. (2000) 20 WRN PAGE 78 AT 86.
It was finally submitted that the learned trial Judge was wrong to have made an order of damages against the Appellant. He urged that this issue be resolved in favour of the Appellant.
The learned Counsel for the 1st Respondent submitted that having found that the 4th Respondent/Applicant (now 1st Respondent) was wrongly and unlawfully arrested and detained, the order of the lower Court for payment of the sum of (N250,000.00) Two Hundred and fifty thousand Naira as compensation to the 1st Respondent is in order.
He relied on the case of JIM-JAJA VS C.O.P RIVERS STATE (2013) 22 W.R.N. PAGE 39 AT 62 LINES 35-45.
In this appeal under consideration, it was found that the Appellant was arrested and detained from 8.am on 29/11/2011 till 7.00pm on 30/11/2011 which is more than 24 hours stipulated by Section 35 (5) (a-b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The arrest and detention was based on Criminal Petition written to the Police which was not in good faith.
The arrest and detention was adjudged unlawful and wrongful by the order of the lower Court pursuant to Section 35 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which states that: –
‘Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.’
The order of the lower Court for the payment of the sum of (N250,000.00) Two hundred and fifty thousand Naira as compensation to the Appellant is in order. See JIM-JAJA VS C.O.P (Supra).
Consequent upon the foregoing this issue No. 5 is hereby resolved in favour of the 1st Respondent and against the appellant.
In the result, with the resolution of the five issues in this appeal in favour of the 1st Respondent and against the Appellant, it is my view that this appeal is unmeritorious and it is hereby dismissed.
The Ruling of the lower Court in Suit No. M/555/2011 Between: – PA JOSIAH OYEDIRAN OLAOYE VS. COMMISSIONER OF POLICE & OTHERS delivered on 30th day of July, 2012 is hereby affirmed.
There shall be (N100,000.00) One Hundred Thousand Naira costs in favour of the 1st Respondent and against the Appellant.
Appeal Dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother J. O. Bada, JCA. I concur with the reasoning and conclusion therein.
It is obvious, from the Affidavit evidence of the parties, that the genesis of the dispute between the Appellant and the 1st Respondent is rooted in a land ownership. Instead of pursuing his right thereto through the proper judicial channel, the Appellant preferred to pursue a short-cut to that by way of intimidation of the 1st Respondent through the instrumentality of the police. The facts contrived by the Appellant as the arsenal of intimidation of the 1st Respondent were grounded on quick-sand. They could therefore not stand. The contrived attack on him was shown to have happened in broad day light (5.00p.m), in a Petrol Station directly opposite a Police Station. If those facts were true, common sense would have dictated to any reasonable person to seek immediate help from the police; that is, if the police were unable to witness the incident that happened directly opposite their office in day light.
The Courts in this Country especially the Supreme Court and this Court have variously warned against the use of the police for the pursuit of purely civil claims. See paragraphs 10 and 11 of the Further Affidavit of the 1st Respondent. See also Arab Contractors (O.A.O) Nig. Ltd v. Umanah (2013) 4 NWLR (pt.1344) 323; Abah v. UBN Plc & Ors (2015) LPELR – 24758 (CA) and Nwadiugwu v. I.G.P. & Ors (2015); LPELR 26027 (CA). Thus, in Igwe & Ors v. Ezeanochie & Ors (2010) 7 NWLR (pt.1192) 61, Ariwoola, JCA (as he then was) said:
“The Police are not and should not in any community of civilized people be used as debt or levy collectors. The Courts have in strong terms condemned the use of Policemen and Soldiers in the resolution or settlement of disputes amongst people, as such the use of Policemen often lead to infringement on the fundamental rights of others. See Agbai vs. Okogbue (1991) 7 NWLR (pt.391); Nkpa vs. Nkume (2001) 6 NWLR (pt.710) 543 at 561.”
Accordingly, where the police willingly entangle themselves in matters that are purely in civil nature, they should be prepared to reap the consequence of any damage or breach of right occasioned to any of the parties to the dispute.
It is for the above reason and the other detailed reasons fully adumbrated in the lead judgment, that I agreed that this appeal is devoid of any merit. It is accordingly dismissed. The judgment of the Court below is therefore affirmed. I abide by the order on costs.
FOLASADE AYODEJI OJO, J.C.A.: I have had the advantage to read in draft, the lead judgment just delivered by my learned brother, Jimi Olukayode Bada JCA. I agree with him that this appeal lacks merit and should be dismissed.
It is common ground amongst parties in this appeal that premised on a complaint lodged by the Appellant, the 1st Respondent a seventy-year-old man was arrested by officers of the 2nd Respondent at 8am on 29th November, 2011 and was only released at 7pm on 30th November, 2011.
To determine whether the arrest and detention of the 1st Respondent was lawful, the burden is on the 2nd Respondent who seeks to justify his action to prove his officers acted upon reasonable suspicion that the 1st Respondent committed a crime. The law is settled that where there is evidence of arrest and detention of an Applicant in an application for enforcement of fundamental right, the onus is on the Respondent to show that the arrest and detention were lawful. See Ejefor v. Okeke (2000) 7 NWLR (Pt. 665) Pg. 363 at 381 Paragraph F and Fajemirokun v. Commercial Bank of Nigeria Ltd. (2002) 10 NWLR (Pt. 774) 95 at 111.
The Respondents also have a duty to prove that they acted upon reasonable suspicion. See Oteri v. Okorodudu (1970) LPELR 2824.
In arriving at a decision whether the officers of the 2nd Respondent had reasonable and probable cause to arrest and detain the 1st Respondent as they did, recourse will have to made to the affidavit evidence on record. The relevant affidavit is the counter affidavit deposed to on behalf of the 2nd Respondent by CPL Sunday Adeogun. See pages 66 – 68 of the record. At paragraphs 5 – 6 of the said affidavit it is deposed that the 1st Respondent was arrested upon a report bordering on conspiracy and threat to life with violence made to the 2nd Respondent by the Appellant. That upon evaluation of the statements made to the police annexed as Exhibits A and A2 to the counter affidavit, officers of the 2nd Respondent reasonably believed there existed a cause to arrest the 1st Respondent.
It is stated in Exhibits A and A2 that on 26th November, 2011 at about 5pm, four men including the 1st Respondent insulted the Appellant and promised to waste his life because of the land he was surveying and that members of the OPC were looking for the Appellant’s downfall.
I have carefully perused the counter affidavit of CPL Sunday Adeogun and it is nowhere stated therein that the 1st Respondent is a member of the OPC. Furthermore, there is unchallenged and uncontroverted evidence at paragraphs 10 – 11 of the further affidavit of the 1st Respondent that Jaiyeola Filling Station where the alleged incident occurred is directly opposite the Divisional Police Station Ajaara. Even though the incident occurred on 26th November, 2011, the Appellant did not make a report until the third day. The lower Court observed at page 136 of the record as follows:
“If in fact the Jaiyeola Filling Station is directly opposite the Divisional Police Station, which the Respondents have not denied then it is difficult to believe the story of the 4th Respondent of attack by the Applicant and other people he mentioned without the attack attracting the attention of the police and without the 4th Respondent reporting the matter to the police immediately after he was allegedly attacked. I do not believe the story. I am of the view that his petition to the police was not in good faith and the subsequent arrest and detention based on the petition is unlawful and wrongful.”
It is significant to note that the above finding is not a subject of the appeal before us. See the Appellant Notice of appeal at pages 141 – 145 of the record. In Michael v. The State (2008) LPELR 1874 at 7 paragraphs D, the Supreme Court held as follows:
“It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points or decisions not appealed remain unchallenged.”
The findings of the lower Court to the effect that if truly the attack occurred directly opposite the Divisional police Station, Ajaara it would have attracted the attention of the officers of the 2nd Respondent or that the Appellant would have immediately walked in to the station to make a report, subsist and are binding on the appellant. See Idiok v. The State (2008) LPELR 1423 at 10-11 Paragraphs F – C; Daniel v. Federal Republic of Nigeria (2015) LPELR 24733 at 32 paragraphs A – C and Adeyeye v The State (2013) LPELR 19913 at 48 paragraphs D – F.
Furthermore, it is clear from the record that the 1st Respondent was detained for more than the constitutionally allowed period of twenty four hours. See Section 35(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended.
The lower Court’s reasoning and its decision that the arrest and detention of the 1st Respondent by the 2nd Respondent upon the instigation of the Appellant cannot be faulted.
I also wish to lend my voice to that of my learned brother in the lead judgment that the police have no business in the resolution of civil matters. Section 4 of the Police Act provides for the duties of the police to include the prevention and detention of crime, apprehension of offenders, the preservation of law and order amongst others. It does not include undue interference in the private affairs of citizens. This Court has on several occasions deprecated the undue interference of the police in matters that are entirely civil in nature. The use of the police to settle a matter that is purely civil in nature is not justifiable in law. There are civil remedies available to a person who alleges trespass on his property.
Where the police allows itself to be used in the settlement of private scores in the guise of investigation and prevention of crime, the Court would intervene and a person who activates such improper use of power would also be held liable for the wrongful act of the police. See Awogwe & Ors. v. Odom & Ors. (2016) LPELR 40214 at 17-19 paragraphs E- D; Arab Contractors (O.A.O) Nig. Ltd. V. Umanah (2012) LPELR 7927 at 10; Igwe & Ors. v. Ezeanochie & Ors. (2009) LPELR – 11885 at 34 paragraphs C – E and Ogbonna v. Ogbonna & Ors. (2014) LPELR ? 22308 at 54 paragraphs C ? G, where this Court, per Mbaba JCA held thus:
“This brings to the fore again, the said reminder of how the police sometimes allow themselves to be willing tools in the hands of mischief makers to pursue evil private scores, agenda of trouble makers, like the Appellant, and compromise the law and proper function of their office. I had cause to deprecate this in the case of Gusau v. Umezurike (2012) ALL FWLR (Pt. 655) 89. . . of course a man who procures the police to do some illicit duties for him should be ready to face the legal consequences of that illegality. The law is well settled on this.”
The instant Appellant who engaged the police to settle a civil matter should be ready to face the law. It is for the foregoing and other reasons well-articulated in the lead judgment that I also dismiss this appeal and abide by all consequential orders made by my learned brother therein.
Appearances:
Mr. S.S. Umesi with him, Ibrahim Olayinka, Esq. and Olusanjo Adewade, Esq.For Appellant(s)
Mr. M.O. Olanipekun with him is W. A. Bello, Esq for the 1st Respondent.
2nd Respondent served with Hearing Notice but he was not represented in CourtFor Respondent(s)
