CHIEF ITA OKON AQUA V. ETUBOM I. E. ARCHIBONG & ORS. (2012)

CHIEF ITA OKON AQUA V. ETUBOM I. E. ARCHIBONG & ORS.

(2012)LCN/5339(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2012

CA/C/148/09

RATIO

CONSTITUTIONAL LAW: RIGHT OF LIBERTY OF EVERY PERSON

As a foundation, every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the constitution itself or a law made pursuant thereto. Section 35 (1) of the 1999 Constitution (as altered) has made the following provisions on the personal liberty of a Nigerian:-

Section 35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-

a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community or
f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.

Subsections (2) and (3) of the Section provide for further rights of a person even where the law permitted the curtailment of his personal liberty; the right to remain silent and avoid answering questions until after consultation with a legal practitioner or other person of his choice and to be informed in writing, within twenty-four (24) hours of the curtailment of his liberty, of the facts and grounds for it in the language he understands to ensure that the personal liberty of a person was not arbitrarily curtailed or violated. Subsections (4) and (5) make provisions for a person whose personal liberty was curtailed pursuant to subsection 1(c) above to be arraigned before a court of law within one (1) day, two (2) days or such longer period as may be considered by the court in the peculiar circumstances of his case, to be reasonable.

In case of the infraction of any of the situations provided for in the preceding subsections, subsection (6) of Section 35 provides for the consequences against the authority or person responsible for violation of the personal liberty of a citizen. It provides thus:-

“Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, ‘the appropriate authority or person’ means an authority or person specified by law.”

The essence of the above provisions is that persons, officers or agents of the State who in the ordinary course of the discharge of their official duties or functions for instance the police and other security agencies in the Country, may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of subsection (1) – (5) above.

Where the ordinary discharge of their duties or functions warrants the arrest or/and detention of a citizen, they are bound to abide by and act in accordance, strictly, with the provisions of the subsections otherwise, the person whose liberty was curtailed or deprived by them, shall be entitled to compensation and public apology from them since the curtailment or deprivation would in the circumstances, be unlawful. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE FOR THE TORT OF ASSAULT

As a reminder, the burden is on the person or authority effecting or making the arrest and detention to prove that the arrest and detention were lawful. However, the burden of proof for the tort of assault is on the person making the allegation and being a civil claim, the standard of proof is on the balance of probabilities or preponderance of evidence as provided for in Sections 131, 132 and 134 of the Evidence Act, 2011 (as amended). See MADUABU v. RAY (2006) ALL FWLR (300) 1671; AUDU v GUTA (2004) 4 NWLR (864) 463; OTARU v IDRIS (1999) 6 NWLR (606) 330; ELIAS v OMO-BARE (1982) 5 SC 25. PER MOHAMMED LAWAL GARBA, J.C.A.

COURT: WHETHER THE COURT CAN GRANT A CLAIM NOT SOUGHT BY PARTIES

The law is common knowledge now that a court of law not being a charitable institution but one of facts and the law, does not grant to a party what he himself did not claim or seek, in a case. See UNION BEV. LTD. v OWOLABI (1988) 1 SCNJ 122; AKINBOBOLA v PLISSON FISKO (NIG) LTD. (1991) 1 NWLR (167) 270; FATUNBI v OLANLOYE (2004) 6-7 SC, 68. PER MOHAMMED LAWAL GARBA, J.C.A.

RELIEFS: WHETHER AN APPLICANT IS BOUND BY THE RELIEFS HE SEEKS

Besides an applicant is bound by the reliefs he seeks in his application. See Okoya V. Santili (1990) 3 SCNJ 83 at 126-127; Commissioner for Works, Benue State V. Devcom Construction Co. Ltd. (1988) 3 NWLR (pt.83) 407 at 420. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

CHIEF ITA OKON AQUA Appellant(s)

AND

ETUBOM I. E. ARCHIBONG & ORS. Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court sitting at Calabar, contained in the judgment delivered on the 28/4/09 in Suit No. FHC/CA/CS/1/2007. The Respondent herein, had commenced the suit against the Appellant and the 2nd & 3rd Respondents under the Fundamental Rights Enforcement Rules and claimed exemplary damages for their violation of his fundamental right to personal liberty.
The Federal High Court, after a consideration of the affidavit evidence placed before it by the parties to the action, entered judgment in favour of the 1st Respondent against all the Respondents therein and the Appellant being dissatisfied therewith, filed this appeal vide a notice of appeal on the 8/6/2009.
With the leave of the court granted on the 1/3/2010, the notice of appeal was amended in terms of the Amended Notice and Grounds of Appeal filed on the 17/2/2010. Consequently, the Appellants brief filed on the 15/9/2009 was amended vide the Amended Appellant’s Brief, filed on the 2/3/2010 which was adopted by the learned counsel for the Appellant at the oral hearing of the appeal on the 12/3/2012. We were urged to allow the appeal and set aside the decision of the Federal High Court for the reasons set out therein by the learned counsel.
The 1st Respondent’s brief filed on the 15/10/09 was adopted by Mr. Eno T. Offong, Esq., learned counsel who settled it at the hearing while the 2nd and 3rd Respondents brief filed on the 4/6/2010 but deemed on 2/2/2012, was adopted by the Director Civil Litigation, (DCL), Ministry of Justice, Cross River State; Mr. Ikoi E. Ikono, who appeared for the 2nd & 3rd Respondents at the hearing. The learned counsel for the 1st Respondent had urged the court to dismiss the appeal and affirm the decision by the Federal High court while the learned DCL – for the 2nd & 3rd Respondent said he had nothing to urge the court against allowing the appeal and setting aside the decision of the Federal High Court.
From the four (4) grounds contained on the Appellant’s notice of appeal, a single issue was raised by the learned counsel for the Appellant for determination in the appeal. It is at page 2 of the Appellant’s brief and as follows:-
Whether on the affidavit evidence adduced the lower court was right to hold the appellant liable for the alleged violation of the 1st respondent’s fundamental right to liberty.
The issue was adopted for the 2nd & 3rd Respondents while the learned counsel for the 1st Respondent had put it in a general form thus:-
“Whether in view of the evidence on record the learned Trial Judge was right to enter judgment in favour of the 1st Respondent.”
Bearing in mind that the appeal is by the Appellant alone and against the decision of the Federal High Court as it affect him specifically, the issue framed by the learned counsel for the Appellant, Mr. Essien Andrew, Esq., is more precise and apt for the determination of the appeal. I intend therefore, to use the Appellant’s issue in the determination of the appeal since it has been fully addressed by the learned counsel for the 1st Respondent in his brief.
The Appellant’s submission on the issue are that the allegation of the breach of his right by the 1st Respondent as it concerns him was based on the ground stated in paragraph 2 of the statement of the grounds for the reliefs sought. That the Appellant had specifically and directly denied the allegation in paragraphs 3 and 4 of his counter affidavit and had set up an alibi in further counter affidavit which was not controverted by the 1st Respondent. It was the further argument of the learned counsel for the Appellant that the burden was on the 1st Respondent to adduce evidence to prove assault against the Appellant but did not do so apart from his ipse dixit. The case of FAJEMIROKUN v. COMMERCIAL BANK (NIG) LTD. (2009) ALL FWLR (487) 1 at 18-19, was cited on the point and it was submitted that the Federal High Court had wrongly shifted the burden to the Appellant when the 1st Respondent did not prove the assault he alleged against him. For instance, it was contended that though the 1st Respondent had alleged that the assault was witnessed by several people, none of them was called to corroborate the affidavit evidence of the 1st Respondent which was contradicted by the Appellant’s evidence. In the circumstances, it was the submission of counsel that the Federal High Court was bound to give reasons why it preferred one version to the other, relying on AFRIBANK (NIG) PLC v. ADIGUN (2009) ALL FWLR (249) 2009 at 2026 – 7. According to him, the only documentary evidence produced by the 1st Respondent was a letter written by his Solicitor on the 25/2/2005 which gave a different version of the incident said to have happened on the 24/2/2005 and which alleged that the Appellant masterminded it. He said that in the grounds in support of reliefs, the 1st Respondent had alleged the Appellant had dragged him out of his car but in the letter by the Solicitor, the allegation was that the Appellant master minded the assault on the 1st Respondent. In further argument, learned counsel said the letter had discredited the 1st Respondent’s case that the Appellant physically assaulted him, on the authority of CONSOLIDATED BREWERIES v. AISOWIEREN (2002) FWLR (116) 959 at 987-8 and that the Appellant was bound by the grounds set out in the affidavit for the reliefs he sought outside which he could not go in arguing his application. The case of OYAWALE v. SHEHU (1995) 8 NWLR (414) 484 at 494 – 5 was relied on for the submission and it was submitted that it was not enough for the 1st Respondent to simply say that the Appellant master minded the assault without stating how he did so. It was pointed out that though 1st Respondent had stated in ground 5 of the grounds for the relief sought that his arrest was in connection with a case of trespass he did not say that it was the Appellant that lodged the complaint in the case so as to set the law in motion for the arrest. Also that even if the Appellant had made the complaint for trespass to the police, that fact alone was not enough to make him liable for the arrest and detention of the 1st respondent by the police, relying on the cases of IGALI v. LAWSON (2005) ALL FWLR (262) 565 at 580 and ISHENO v JULIUS BERGER (NIG) LTD. (2008) ALL FWLR (415) 1630 at 1643, among others. It was finally argued that the 1st Respondent had acknowledged in the grounds for the reliefs that his arrest was on the orders of the 2nd Respondent as opposed to being instigated by the Appellant who cannot therefore be liable for the arrest and detention. We were urged to allow the appeal and reverse the decision of the Federal High Court.
For the 1st Respondent, after setting out paragraphs 3, 4 and 6 of the further affidavit of the 1st Respondent, it was submitted that the letter by the Solicitor attached thereto as Exhibit ‘A’, showed a complaint to the 2nd Respondent about the arrest, humiliation and bullying carried out by men of the 2nd Respondent which were master minded by the Appellant. It was the case of the 1st Respondent that the evidence linking the Appellant to the scene of the arrest of the 1st Respondent was very consistent and that the Appellant had filed “two affidavits which did not conform with each other as to content” and so remain in conflict. Relying on the case of PANACHE COMM. LTD. v IKOMU (1994) 2 NWLR (327) 420, learned counsel for the 1st Respondent had said both affidavits should be disregarded and ignored. Furthermore, he said Exhibit ‘A’ did not contradict the statement of the 1st Respondent but rather strengthened his position because it did not remove the Appellant from the scene of the 1st Respondent’s arrest and it constituted admissible evidence entitled to be given weight. According to counsel, the cases of ISHENO v. JULIUS BERGER (NIG) LTD. and EKANEM v EBONG (2008) ALL FWLR (425) 1176 cited by the learned counsel for the Appellant are different because, here the case involved the full personal participation of the Appellant in helping the 3rd Respondent drag the 1st Respondent out of his car, pushed down and slapping him on the orders of the 2nd. It was his submission that where a person maliciously makes a report against another and causes his arrest, he will be liable even though he may not technically have been the investigator or prosecutor in the strict sense, placing reliance on the case of BALOGUN v. AMUBIKAHUN (1989) 3 NWLR (107) 18. In addition, he said the standard of proof was on the balance of probabilities which the 1st Respondent had established by showing that Appellant in company of the 3rd Respondent had infracted his right to personal liberty and the Federal High Court was right to so find. We were urged by him to dismiss the appeal.
The submissions for the 2nd & 3rd Respondents on the issue are to the same effect as those made by the learned counsel for the Appellant i.e. that there were contradictions in the statement of the 1st Respondent on the grounds for the relief and the letter by his Solicitor which was marked Exhibit ‘A’ to his further affidavit. Also that the 1st Respondent did not prove the violation of his personal liberty by the Appellant and the 2nd and 3rd Respondents and so the Federal High Court was wrong to have granted the reliefs sought by the 1st Respondent. The case of MOMAH v. VAT. PET. INC. (1996) 7 NWLR (458) 100 at 108 on the effect of contradiction in affidavit evidence was cited and we were invited to invoke the provisions of Section 149 (d) of the Evidence Act against the 1st Respondent for failure to call any witness who was present when he was allegedly assaulted. It was submitted that even if the 1st Respondent was arrested, the arrest was justified by the provisions of Section 35 (1) (c) of the Constitution.
As a foundation, every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the constitution itself or a law made pursuant thereto. Section 35 (1) of the 1999 Constitution (as altered) has made the following provisions on the personal liberty of a Nigerian:-
Section 35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community or
f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.
Subsections (2) and (3) of the Section provide for further rights of a person even where the law permitted the curtailment of his personal liberty; the right to remain silent and avoid answering questions until after consultation with a legal practitioner or other person of his choice and to be informed in writing, within twenty-four (24) hours of the curtailment of his liberty, of the facts and grounds for it in the language he understands to ensure that the personal liberty of a person was not arbitrarily curtailed or violated. Subsections (4) and (5) make provisions for a person whose personal liberty was curtailed pursuant to subsection 1(c) above to be arraigned before a court of law within one (1) day, two (2) days or such longer period as may be considered by the court in the peculiar circumstances of his case, to be reasonable.
In case of the infraction of any of the situations provided for in the preceding subsections, subsection (6) of Section 35 provides for the consequences against the authority or person responsible for violation of the personal liberty of a citizen. It provides thus:-
“Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, ‘the appropriate authority or person’ means an authority or person specified by law.”
The essence of the above provisions is that persons, officers or agents of the State who in the ordinary course of the discharge of their official duties or functions for instance the police and other security agencies in the Country, may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of subsection (1) – (5) above.
Where the ordinary discharge of their duties or functions warrants the arrest or/and detention of a citizen, they are bound to abide by and act in accordance, strictly, with the provisions of the subsections otherwise, the person whose liberty was curtailed or deprived by them, shall be entitled to compensation and public apology from them since the curtailment or deprivation would in the circumstances, be unlawful.

In the interpretation of the above provisions on personal liberty, which have been substantially the same in the previous Constitutions of Nigeria, the courts in the country have been consistent in holding that where a party in a suit claims that he was unlawfully arrested and detained by another, the burden of proving the legality or constitutionally of the arrest and detention is on the person who effected the arrest. In other words, the burden of proving the legality or constitutionality of the arrest and detention of a person is on the arresting authority or persons where it was not disputed. See MADIEBO v. NWANKWO (2002) 1 NWLR (746) 426 at 433; NWADINOBI v. BOTU (2000) 9 NWLR (672) 220 at 379; ABIOLA v. FEDERAL REPUBLIC OF NIGERIA (1995) 7 NWLR (405) 1; ONAGORUWA v. I.G.P. (91) 5 NWLR (193) 593; C.O.P. ONDO STATE V. OBOLO (1989) 5 NWLR (120) 130 at 138.

Claims for the violation or threat to the personal liberty guaranteed by the Constitutional provisions are usually made before the courts under the Fundamental Rights (Enforcement Procedure) Rules, enacted specifically to govern or regulate actions for the enforcement or protection on the fundamental rights generally guaranteed by the constitution. By the Fundamental Rights (Enforcement Procedure) Rules, 1979, applicable at the time of the 1st Respondent’s action, any person who alleged that any of the fundamental rights provided for in the Constitution or African Charter on Human and People’s Right (Ratification and Enforcement) Act, 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. Under the Rules, the application may be made by way of originating process or motion on notice, supported by a statement, setting out the name and description of the Applicant, the relief/s sought, the grounds upon which the reliefs are sought and an affidavit setting out the facts upon which the application was made. It is also required that the application be accompanied by a written address in support of the grounds of the application.
Upon service of the application, the Respondent/Respondents where he/they intend to oppose the application shall file a written address which may be accompanied by or with a counter affidavit. As can be observed, whether made by way of originating summons or motion on notice, the application and opposition if any, would be considered and decided on the basis of the statement, the grounds, the reliefs sought and the affidavits filed in support or opposition as the case may be, which is argued in the written addresses by the parties.
In its judgment, particularly at page 62 of the record of appeal, the Federal High Court had stated that in discharging the burden of proof the allegations the 1st Respondent made against the Appellant and other Respondents, he had relied on the statement in support, particularly paragraphs 2-7 and 10-paragraphs affidavit he swore to on the 10/11/2007. Since the fulcrum of the 1st Respondent’s case against the Appellant in particular is said to be based on the facts contained in these paragraphs, it is expedient to set them out in detail for a full appreciation of the case. Paragraphs 2-7 of the statement in support are as follows:-
“2. The Applicant on the 24th day of February, 2005, was coming out of the Chief Magistrate Court, Ikot Nakanda, Akpabuyo Local Government Area when the 2nd Respondent with the 3rd Respondent on the orders of the 1st Respondent dragged him out of his car and pushed him to the ground and started slapping him.
3. The Applicant demanded to know why he is being subjected to so much humiliated but he was only informed that he was under arrest.
4. The situation became so humiliated that a lawyer from the Director of public prosecution Department of the Ministry of Justice, Mr. Odibu tried to intervene by enlightening the 1st and 2nd Respondents that it was wrong for them to humiliate the Applicant outside the court premises. Mr. Odibu advised the 1st and 2nd Respondents that the proper thing would have been to invite the Applicant to the Police station if they think that he had committed any offence. The 1st and 2nd Respondents rebuffed and took the Applicant to Zone 6 Police Headquarters and detained him in the cell.
5. The Applicant demanded to know why he is being subjected to so much humiliation but he was only informed that he was under arrest.
6. The Applicant was detained for about 5 days. He was investigated on an issue of trespass and nothing was found against him. The Applicant was refused bail from that 24th of February to 28th of February, 2005 when the 1st and 2nd Respondent forcefully extorted the sum of N70, 000.00 (seventy thousand naira) only from him before he was granted bail.
Up till date, the Applicant has not been charged with any offence.
7. The Applicant was kept in inhuman condition and the action of the Respondents was oppressive, reckless and willful, just to humiliate the Applicant.”
The 10-paragraphs further affidavit deposed to by the 1st Respondents which appears from page 19 – 20 of the record of the appeal is thus:
“1. That I am the Applicant herein.
2. That by virtue of my position, I have full knowledge of the facts of this case.
3. That the 2nd Respondent in company of the 3rd Respondent on the order of the 1st Respondent traced the Applicant to the Chief Magistrate Court, Ikot Nakanda, Akpabuyo Local Government Area on the 24th day of February, 2005.
4. That the Applicant was already sited in his car about to drive out when the 2nd and 3rd respondents rushed towards him and dragged him out of his car loaning him slaps uncountable on that same 24th day of February, 2005.
5. That from Akpabuyo Chief Magistrate Court, Ikot Nakanda, the Applicant was taken to Police Headquarters Zone 6, Calabar and was detained on that 24th until 28th February, 2005.
6. That the Applicant through his Solicitors wrote to the Assistant Inspector General of Police on the 25th day of February, 2005 demanding the release of the Applicant which was not responded to until date. A copy of the said Letter is hereby annexed and marked as Exhibit ‘A’.
7. It was not until the Applicant paid the outrageous sum of N70, 000.00 (Seventy Thousand Naira) to the Respondents that he was granted bail on the 28th day of February, 2008.
8. That the Applicant was arrested, detained, humiliated and kept in inhuman condition at the Police Headquarters Zone 6, Calabar cell from the 24th day of February, 2005 to 28th day of February, 2005.
9. The Applicant has not been charged with any offence in any court of law up till date.
10. AND that I swear to this affidavit bonafide, believing the content to be true, correct and in accordance with the Oaths Act, 2004.”
As can clearly be seen, the depositions which specifically affect the Appellant who was the 3rd Respondent in the Federal High Court, are paragraph 2 of statement and paragraphs 3 and 4 of the further affidavit which are to the effect that the Appellant along with the 3rd Respondent herein, had traced the 1st Respondent to the Magistrate Court, Ikot Nakanda, dragged him out of his car, slapped several times and arrested and detained him for four (4) days.
On his part, the Appellant had deposed to a counter affidavit and a further counter affidavit the relevant portions of which are paragraphs 1, 2, 3 and 4 as well as paragraphs 4, 5 and 6 respectively. They are as follows:-
“1. I am the 3rd Respondent in this case and in have been served with the statement filed by the applicant in this suit and the affidavit verifying the facts relied on.
2. On the 23rd of February, 2005, I was not at the premises of the Chief Magistrate Court, Ikot Nakanda. I had a case with the applicant in that court on the 21st of February, 2005 and not the 23rd of February, 2005.
3. I did not drag the applicant out of his car, pushed him or slapped him whether alone or in the company of the 2nd Respondent on that 23rd of February, 2005 or on any other date. In fact the applicant is physically much bigger than me and I could not have picked a fight with him.
4. I am not a policeman. I do not take orders from the A.I.G. in Zone 6 and I do not give him orders. I was not in any way responsible for the arrest, detention and/or bail of the applicant in the matter which led to up to this suit.
AND
“4. That 3rd Respondent had a case with the Applicant in the Chief Magistrate Court, Ikot Nakanda in Akpabuyo which came up on the 21st day of February, 2005 and the 3rd Respondent was in attendance. After the case, 3rd Respondent went back to his village in Edik Edim in Akpabuyo Local Government. 3rd respondent did not afterwards come back to the Chief Magistrate Court or High Court premises in Ikot Nakanda, Akpabuyo on the 24th February, 2005.
5. That 3rd Respondent did not drag the applicant out of his car, pushed and slapped him either alone or in the company of 1st and 2nd Respondent on the 24th February, 2005 or on any other day. In fact as at the year in question, 3rd Respondent was 75 years and of a very poor health and did not have the capacity to pick a fight with a much younger and healthier person like the applicant.
6. That applicant 3rd Respondent did not on the 24th February, 2005 through 28th February, 2005 or in any other day, order the detention of the applicant or anybody or responsible for his arrest or did he demand, collect or benefit from the N70, 000.00 the applicant allegedly paid for his bail. 3rd Respondent is not also a policeman and have no capacity to.”
The above depositions are challenges and positive denials of the depositions of the 1st Respondent that the Appellant had assaulted, arrested and detained him.It may be recalled that I had earlier on stated the position of the law on the burden of proof in cases of arrest and detention where it is not in dispute.
As a reminder, the burden is on the person or authority effecting or making the arrest and detention to prove that the arrest and detention were lawful. However, the burden of proof for the tort of assault is on the person making the allegation and being a civil claim, the standard of proof is on the balance of probabilities or preponderance of evidence as provided for in Sections 131, 132 and 134 of the Evidence Act, 2011 (as amended). See MADUABU v. RAY (2006) ALL FWLR (300) 1671; AUDU v GUTA (2004) 4 NWLR (864) 463; OTARU v IDRIS (1999) 6 NWLR (606) 330; ELIAS v OMO-BARE (1982) 5 SC 25.
Since the arrest and detention of the 1st Respondent was not disputed, the burden of proving the legality was that of the person/s or authorities responsible in law, for the arrest and detention.
Before considering whether the Appellant was jointly and/or severally responsible for the arrest and detention of the 1st Respondent or not, I intend to consider whether the evidence before the Federal High Court as contained in the 1st Respondent’s statement and further affidavit has met the standard of proof of the allegation of assault he made against the Appellant. In other words, whether the 1st Respondent had discharged the burden of proving the allegation of assault against the Appellant as required by law.
The Federal High Court did not make any specific finding on the allegation of assault in its judgment but after stating the evidence adduced by the parties, simply concluded thus:
“It is the court’s opinion that the Applicant has established that he was arrested and detained by the 1st and 2nd Respondents for 5 days at the instigation of the 3rd Respondent as well as the receipt of Exhibit A, the Applicant’s Solicitor’s letter of 24th February, 2005 by the 1st and 2nd Respondents. The Respondents are being economical with the truth with their evasive and general denial in their counter affidavits upon which no weight should be attached. The Respondents defences are tissues of lies upon which no probative value should be attached.
The Applicant has discharged the onus of proof on him and proved the averments contained in this Statements and further affidavit on a preponderance and balance of probabilities having regard to Section 35 of the Constitution of the Federal Republic of Nigeria 1999.
It can easily be observed that the above conclusion is based entirely on the allegation of the arrest and detention of the 1st Respondent by the 2nd and 3rd Respondents herein, said to have been at the instigation of the Appellant. The finding is confined to the allegation of arrest and detention of the 1st Respondent by the 2nd and 3rd Respondents and did not even mention the allegation of assault in the process of the arrest and/or detention against any of the Respondents therein. In fact, the finding by the Federal High Court reflected the claims made by the 1st Respondent in the reliefs sought from that court in paragraph 2 of the statement in support of the case alleged against the Respondents therein. For ease of reference, paragraph 2 is as follows:-
“a) A declaration that the arrest and detention of the Applicant by the Respondents without lawful justification is illegal, unconstitutional, null and void.
b) Enforcement of the right of the Applicant as enshrined in Section 35 of the Constitution of the Federal Republic of Nigeria 1999.
c) Exemplary damages of N10, 000,000.00 (Ten million Naira) against the Respondents jointly and severally.”
So in the reliefs sought or claims made against the Respondents therein, the 1st Respondent here did not claim for any alleged assault by the Appellant or any of the other respondents. The law is common knowledge now that a court of law not being a charitable institution but one of facts and the law, does not grant to a party what he himself did not claim or seek, in a case. See UNION BEV. LTD. v OWOLABI (1988) 1 SCNJ 122; AKINBOBOLA v PLISSON FISKO (NIG) LTD. (1991) 1 NWLR (167) 270; FATUNBI v OLANLOYE (2004) 6-7 SC, 68. Although the 1st Respondent had made statement and deposition as to the alleged assault, he did not seek any relief or remedy for it in the claims he made at the Federal High Court and that court did not make any finding in respect of assault as seen above.
But looking at the statement of the 1st Respondent as well as the further affidavit in support of the case he claimed in respect of the assault along the positive denial by the Appellant has the 1st Respondent proved assault against the Appellant as required by law? Heavy reliance was made by the Federal High Court in the finding set out above, on the letter attached to the further affidavit of the 1st Respondent as Exh. ‘A’. In the said Exh. ‘A’, the 1st respondent’s solicitors had written to the 2nd and 3rd Respondent herein that, inter alia-
“It is our instruction that our client… was arrested and humiliated and seriously bullied in the premises of the Chief Magistrate Court, Ikot Nakanda, Akpabuyo Local Government Area yesterday being 24th day of February, 2005 by policemen from Zonal Headquarters, Calabar. Our client said his arrest was master minded by one Ita Okon Aqua.”
Undoubtedly, facts in the above statement, are that it was the policemen from Zonal Headquarters, Calabar, that not only arrested, but also “humiliated and seriously bullied” the 1st Respondent at the premises of the Magistrate Court.
Unlike in the statement of the 1st Respondent and the further affidavit which formed the pleadings and evidence of the 1st Respondent respectively, the Appellant was not said to have participated or even “instigated ” or “master-minded” the humiliation and serious bullying of the 1st Respondent. All that the Exh. ‘A’ stated was that the Appellant master minded the arrest of the 1st Respondent without more and how he did that was not explained.
In the circumstances, the further affidavit of the 1st Respondent and the Exh. ‘A’ attached thereto, are at variance and one did not support the other on the issue of the allegation of assault against the Appellant. The contents of Exhibit ‘A’ do not in any way support the statement by the 1st respondent that the Appellant had physically assaulted him on the day he was arrested by the police at the scene of the arrest.
So the further affidavit of the 1st Respondent which was in the same terms with the statement in support in respect of the allegation of assault by the Appellant was directly, and not evasively, denied and challenged by the initial and further counter affidavit of the Appellant that he did not drag or slap the 1st Respondent on the date of the incident in question. If no further evidence was available at this stage, it was the 1st Respondent who would fail on the claim for assault because it was he who first asserted that he was assaulted by the Appellant. The burden of proof therefore remained on the 1st Respondent to proffer further evidence that would make it probable that he was in fact assaulted by the Appellant as he claimed. The further evidence was Exhibit ‘A’ attached to the further affidavit as stated earlier, which however did not support the 1st Respondent’s further affidavit on the allegation of assault. Rather, it tacitly supported the Appellant’s deposition that he did not physically assault the 1st Respondent. The extract of the finding by the Federal High Court set out earlier, had left no doubt on the issue. For that reason, the evidence placed by the 1st Respondent before the Federal High court did not preponderate in favour of the allegation of assault made against the Appellant and so the 1st Respondent did not effectively discharge the burden of proof in respect of the claim for assault made against the Appellant in particular. In that regard, there was no evidence that the Appellant had indeed, violated or practically threatened to violate the 1st Respondent’s fundamental right enshrined in Section 35 of the 1999 Constitution as far as the allegation of physical assault is concerned.
I now go to the issue of the arrest and detention of the 1st Respondent. The question that requires decision here is, whether by the facts and evidence placed before the Federal High Court, it was established that the Appellant had instigated or master-minded the arrest and detention of the 1st Respondent to justify the finding that he was liable jointly and/or severally?
From the statement in support and the further affidavit of the 1st Respondent as well as the Exhibit A attached thereto, the case against the Appellant was that he acted on the order of the 2nd Respondent’s herein and together with the 3rd Respondent, arrested the 1st Respondent on the date of the incident. The Appellant was again said to have instigated and master minded the arrest of the 1st Respondent in Exhibit ‘A’. The Appellant had unequivocally denied and controverted his participation in the arrest of the 1st Respondent since he, undeniably, is not a policeman who takes orders from the 2nd Respondent. Apart from the ipse dixit of the 1st Respondent, which has been controverted by the Appellant, there is no other or further evidence from the 1st Respondent to show that it was probable that the Appellant had in fact participated in the arrest. The mere fact that the Appellant was at the scene or even accompanied the policeman, the 3rd Respondent to where the 1st Respondent was arrested or had identified him to the 3rd Respondent would not ipso facto, amount to effecting the arrest by the Appellant. This position is supported by Exhibit ‘A’ where the Appellant was only said to have “instigated” or “master minded” the arrest of the 1st Respondent by the police.
However, there was no evidence whatsoever before the Federal High Court of how or in what way the Appellant instigated or master minded the arrest and later detention of the 1st Respondent by the police. The learned counsel for the Appellant is right when he said that it was not enough for the 1st Respondent to simply state in his statement that the Appellant instigated and master minded his arrest and detention without demonstrating facts which support or form the basis of such an assertion.
There was no evidence that it was the Appellant that had set the law in motion, by reporting the 1st Respondent to the police and unduly influenced them in the arrest and detention. Although the 1st Respondent had stated that his arrest was in connection with a case of trespass, he did not say that it was the Appellant who in fact reported the case to the police against him and ensured that the police arrested and detained him.
However, even if it was shown, either directly or by inference that it was the Appellant that had made a report of the case of trespass to the police and named the 1st Respondent as the suspect, that alone, would not render the Appellant liable in law, for the arrest and detention by the police. The law was stated in the case of ISHENO v. JULIUS BERGER (NIG) LTD. (supra) by Supreme Court that:-
“…. where on a report made by an appellant to the police …. the appellant was asked whether he suspected anyone. He replied that he suspected the respondent who was consequently arrested and detained by the police for inquiry such expression of opinion is said to be no more than putting the police on a trail upon which they can work … Giving such information to the police cannot therefore form the basis for any action for false imprisonment or false prosecution by the police since it would be the duty of the police, after receiving such information, to make investigations themselves which may or may not lead to an arrest ….”
See also BALOGUN v AMUBKANHU (1989) 3 NWLR (107) 18; EJIKEME v NWOSU (2002)3 NWLR (753) 356; EKANEM v EBONG (supra).
The evidence adduced by the 1st Respondent in support of the allegations against the Appellant in particular, did not in any way establish that he was responsible for the arrest and detention of the 1st Respondent by the police to ground the finding that he was liable to the 1st Respondent for the breach of his right to personal liberty. By the case put forward by the 1st Respondent at Federal High Court, the Appellant did not arrest or participate in the arrest and detention, which was shown to have been effected by the police. The Federal High court in the circumstances, erred in law by finding the Appellant liable jointly and severally for the alleged breach of the 1st Respondent’s right to personal liberty.
It may have been observed that I did not consider the submissions by the learned Deputy Director/Head Civil Litigation, for the 2nd & 3rd Respondents in this appeal wherein he sought to challenge or attack the decision of the Federal High Court. There is no record that the 2nd and 3rd Respondents have filed a Respondents’ notice or notice of cross-appeal and so as Respondents to the appeal, what is expected of them in judicial practice, is to defend and NOT to attack the decision appealed against. The duty of the 2nd and 3rd Respondents in the absence of a Respondent’s notice or notice of cross-appeal from them is to support the decision of the Federal High Court and is precluded from attacking or even questioning in whatever way, the decision appealed against. See ATANDA v. AJANI (1989) 3 NWLR (111) 511; COMPTOIR COMM. & IN D.S.P.R. LTD. v OGUN STATE WATER BOARD (2002) 9 NWLR (773) 629; OHAKIM v. AGBASO (2010) 19 NWLR (1226) 172 at 255 & 256 -7.
With that said I find merit in the appeal for the reasons stated earlier and allow it. Consequently, the decision of the Federal High court as it affects the appellant is hereby set aside and the 1st Respondent’s case against the Appellant is dismissed. Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree entirely with his reasoning and final conclusion.
I allow the appeal and abide by all consequential orders contained in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I have read the lead judgment delivered by my Lord Mohammed Lawal Garba, JCA and I am also of the humble opinion that the appeal should be allowed.
Paragraphs 1-9 of the Statement of facts relied upon by the 1st Respondent to institute an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 are as follows:
“1. The Applicant is from Edik Idim Ikot Effanga in Akpabuyo Local Government Area of Cross River State.
2. The Applicant on the 24th day of February, 2005, was coming out of the chief Magistrate court, Ikot Nakanda, Akpabuyo Local Government Area when the 2nd Respondent with the 3rd Respondent on the orders of the 1st Respondent dragged him out of his car and pushed him to the ground and started slapping him.
3. The Applicant demanded to know why he is being subjected to so much humiliation but he was only informed that he was under arrest.
4. The situation became so humiliating that a lawyer from the Director of Public Prosecution Department of the Ministry of Justice, Mr. Odibu tried to intervene by enlightening the 1st and 2nd Respondents that it was wrong for them to humiliate the Applicant outside the Court premises. Mr. Odibu advised the 1st and 2nd Respondents that the proper thing would have been to invite the Applicant to the Police Station if they think that he had committed any offence. The 1st and 2nd Respondents rebuffed and took the Applicant to Zone 6 Police Headquarters and detained him in the cell.
5. The Applicant was detained for about 5 days. He was investigated on an issue of trespass and nothing was found against him. The Applicant was refused bail from that 24th of February to 28th of February, 2005 when the 1st and 2nd Respondents forcefully extorted the sum of N70, 000.00 (Seventy thousand Naira) only from him before he was granted bail.
6. Up till date, the Applicant has not been charged with any offence.
7. The Applicant was kept in inhuman condition and the action of the Respondents was oppressive, reckless and willful just to humiliate the Applicant.
8. The sum of N10, 000,000.00 (Ten million Naira) will be adequate compensation for the unlawful detention and humiliation of the Applicant.
9. The Applicant instituted this matter at the State High Court, Calabar for the enforcement of his fundamental right and the case lasted since 24th April, 2005 to 22nd December, 2006 when the Applicant applied for the withdrawal of the application on ground of procedural irregularity.”
The grounds for instituting the action are as follows:
“(a) The Respondents are not competent to arrest and detain the Applicant without any lawful justification or should have released him on bail without any strings or within a reasonable period if he had committed any offence known to law.
(b) The right to personal liberty is fundamental and cannot be denied the Applicant except in accordance with the law.”
The Reliefs claimed by the Applicant before the Federal High Court Calabar, cross River State are as follows:
“(a) A declaration that the arrest and detention of the Applicant by the Respondents without lawful justification is illegal, unconstitutional, null and void.
(b) Enforcement of the right of the Applicant as enshrined in Section 35 of the Constitution of the Federal Republic of Nigeria, 1999.
(c) Exemplary damages of N10, 000,000.00 (Ten million Naira) against the Respondents jointly and severally.”
From the facts set out in support of the application before the learned Federal Judge it was made clear that the act of arresting and detaining the applicant/1st Respondent was conducted by the Assistant Inspector General of Police (1st Respondent) and Sgt. Archibong (2nd Respondent) before the lower Court. Besides an applicant is bound by the reliefs he seeks in his application. See Okoya V. Santili (1990) 3 SCNJ 83 at 126-127; Commissioner for Works, Benue State V. Devcom Construction Co. Ltd. (1988) 3 NWLR (pt.83) 407 at 420. All that the applicant sought before the Federal High Court was a declaration that his arrest and detention without lawful justification was illegal, unconstitutional, null and void; the enforcement of his fundamental right as enshrined under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 coupled with N10 million Naira exemplary damages jointly and severally. Was the arrest and detention of the applicant unconstitutional, illegal, null and void?
On the issue of arrest and detention Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 reads thus:
“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;”
Paragraphs 4-5 of the affidavit in support of the application is to the effect that upon arrest, the applicant was detained at Zone 6 Police Headquarters for five days; that he was investigated on an issue of trespass but nothing was found against him. The applicant was granted bail on 28-02-2005. From the applicant’s showing he was suspected of having committed trespass whether criminal or civil by the 1st and 2nd Respondents hence his arrest and detention. This came within the ambit of the provisions of Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999. The provision empowers the deprivation of the personal liberty of every person upon reasonable suspicion of his having committed a criminal offence. The reasonable suspicion that a person has committed an offence for which he may be arrested or detained depends upon the facts available to the police at the time of arrest and or detention. See Dumbell v. Roberts (1964) 1 All E.R. 326 at 329 and Hussain V. Choong Fook Kam (1969) 3 All E.R. 1926 at 1930 all cited with approval in Oteri V. Okoro audu (1970) 1 All NLR 199 at 205. Therefore the competence of the arrest or detention of the 1st Respondent by the Assistant Inspector General of Police and Sgt. Archibong is governed by the provisions of Section 35(1) (c) of the Constitution of the Federal Republic of Nigeria, 1999. The only ground for instituting the suit under the Fundamental Rights (Enforcement Procedure) Rules, 1979 has failed.
Moreover, the learned Federal Judge was faced with the counter affidavit of the appellant which is at page 16 of the printed record to wit:
“COUNTER AFFIDAVIT
I, Chief Ita Okon Oqua, male, Nigerian, Christian, farmer of Edik Idim village in Akpabuyo L.G.A. hereby make oath and state that:
“1. I am the 3rd Respondent in this case and I have been served with the statement filed by the applicant in this suit and the affidavit verifying the facts relied on.
2. On the 23rd of February, 2005 I was not at the premises of the Chief Magistrate Court, Ikot Nakandu I had a case with the applicant in that Court on the 21st of February, 2005 and not the 23rd of February, 2005.
3. I did not drag the applicant out of his car, pushed him or slapped him, whether alone or in the company of the 2nd Respondent on that 23rd of February, 2005 or on any other date. In fact the applicant is physically much bigger than me and I could not have picked a fight with him.
4. I am not a policeman I do not take orders from the A.I.G. in Zone Six and I do not give him orders. I was not in anyway responsible for the arrest, detention and/or bail of the applicant in the matter which led up to this suit.
5. And I swear to the affidavit in good faith believing the facts herein stated to be true and accurate and in accordance with the Oaths Act.”
This prompted the 1st Respondent to depose to a Further Affidavit already reproduced by my Lord in the lead judgment. The material conflicts as to the where about of the appellant and the application on 23-02-2005 in the affidavits could only be resolved by oral hearing. See Eboh V. Oki (1974) 1 SC 179 at 189-190; Falobi V. Falobi (1976) NMLR 169; Afri Bank Nig. Plc V. Adigun (2009) All FWLR (Pt.249) 2008 at 2026-2027. Without such a resolution it cannot be said that the applicant had proved the claims against the appellant even on a balance of probabilities to be entitled to an award of exemplary damages. For these and the fuller reasons adumbrated by my Lord, I also set aside the judgment and allow the appeal. I abide by the orders made by my Lord hereunder.