CHIEF MAURICE EBO & ANOR v. MR. CHINEDU OKEKE & ORS
(2019)LCN/13449(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2019
CA/E/359/2016
RATIO
FUNDAMENTAL RIGHT: RIGHT TO DIGNITY OF HUMAN PERSON AS PROVIDED UNDER SECTION 34 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 34: Every individual is entitled to respect for the dignity of his person, and accordingly-
a. No person shall be subject to torture or to inhuman or degrading treatment;
b. No person shall be held in slavery or servitude; and
c. No person shall be required to perform forced or compulsory labour.
Section 35: ?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. …
b. …
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; …PER ABUBAKAR SADIQ UMAR, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FREEDOM OF MOVEMENT UNDER SECTION 41 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 41 (1): ?Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part there of, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom
(2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society.PER V
FUNDAMENTAL RIGHT: IS DETERMINED BASED ON FACTS AND NOT SUBMISSIONS
This is consistent with the decision of this Court in OKAFOR V LAGOS STATE GOVERNMENT & ANOR (2016) LPELR 41066 (CA) where this Court held that:
The question of infringement of fundamental rights is largely a question of fact and does not so much depend on the dexterous submission of Counsel on the law. So it is the facts as disclosed by the affidavit evidence that is usually examined, analyzed and evaluated to see if the fundamental rights have been eviscerated as claimed or otherwise dealt with in a manner that is contrary to the Constitutional and other provisions on the fundamental rights of an individual.PER ABUBAKAR SADIQ UMAR, J.C.A.
APPEAL: AN ISSUE FOR DETERMINATION IN AN APPEAL MUST FLOW FROM THE GROUNDS OF APPEAL
The law is well settled that an issue for determination of an appeal, must relate to and flow from the ground(s) of the appeal, which must also derive from, and be founded on the judgment appealed against. This simply means that no party is permitted to raise any issue on appeal, outside the decision considered or contemplated in the judgment appealed against. The judicial authorities on this are replete. See the cases of AYANGOKE & ANOR V KEYSTONE BANK LTD (2013) LPELR ? 21806 CA, SHETTIMA V GONI(2011) 18 NWLR (PT.1297) P. 413, APROFIM ENGR. CONSTRUCTION (NIG.) LTD. VS. BIGOURET (2012) ALL FWLR (PT.622) 1740.PER ABUBAKAR SADIQ UMAR, J.C.A.
APPEAL: MUST BE FOUND ON A VALID COMPLAINT
In the case of OSSAI v FRN (2012) LPELR-19669(CA), this Court held as follows:
The law is trite that appeal – the ground(s) there of and the issue(s) therefrom, must be founded on a valid complaint, arising from the judgment on appeal. Putting it differently, a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratiodecidendi in the judgment of the lower Court.PER ABUBAKAR SADIQ UMAR, J.C.A.
POLICE: POLICE HAVE THE POWERS TO EFFECT ARREST ON PERSONS SUSPECTED TO HAVE COMMITTED A CRIME WITHOUT A WARRANT OF ARREST
In any event I must state categorically that the Police have the powers to effect arrest of persons suspected to have committed a criminal offence with or without out a warrant of arrest. See the cases of SALIHU V GANA & ORS (2014) LPELR-23069(CA) AND ISIYAKU & ANOR V. COMMISSIONER OF POLICE, YOBE STATE COMMAND & ORS(2017) LPELR-43439(CA). PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. CHIEF MAURICE EBO
2. CHIEF SUNDAY NWOKA Appellant(s)
AND
1. MR. CHINEDU OKEKE (ALIAS EKWE)
2. HUMPHREY OKOYE
(Alias Okota)
3. OLISA ONYEKA (ALIAS ODU)
4. SUPOL MANAGER, FORCE HEADQUARTERS, ABUJA
5. DSP EPHRAIM, FORCE HEADQUARTERS, ABUJA
6. INSPECTOR GENERAL OF POLICE
7. COMMISSIONER OF POLICE, ANAMBRA STATE Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court Awka, Anambra State (?the lower Court? or ?the trial Court?) delivered on the 1st day of July 2016 Coram I.B Gafai in Suit No: FHC/AWK/CS/379/2015.The learned trial Judge in his Judgment held that the Appellants failed to prove their case and consequently dismissed the Appellants? suit.
The action in the lower Court was commenced by a Motion on Notice dated 5th October 2015 (?the application?) filed by the Appellants as Applicants, under the Fundamental Rights (Enforcement Procedure) Rules 2009 and their claims were for:
1. A declaration that the arrest of the Applicants at Nkwelle Village, Ogidi in Idemili North Local Government Area of Anambra State of Nigeria on 15th day of September 2015 by the 1st -3rd Respondents with the aid, cover and support of the 4th-5th Respondents who claimed to be acting for and with the authority and support of the 6th Respondent and subsequent detention at Force Headquarters by the malicious instigation of the 1st -3rd Respondents who
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are out to unleash vendetta on the Applicants is wrongful , unlawful and in the main, contravenes the Fundamental Human Rights of the Applicants contrary to Sections 34(1)(a-b), 35 (1)(c), 41(1) of the CFRN 2011 as amended.
2. A declaration that by the Honourable Court that the torture of the Applicants on 15-09-2015 by the 1st-3rd Respondents with the protection of the 4th-5th Respondents who supported the 1st-3rd Respondents to torture the Applicants by smashing their glasses, tearing their dresses and leaving them (Applicants) naked in the public place ( office and hotel in Nkwelle Ogidi Village) is wrongful, unlawful and without any lawful excuse and therefore constitutes a flagrant breach of the Fundamental Human Rights of the Applicants contrary to Section 34(1)(a-c) of the CFRN 2011.
3. A declaration that the detention of the Applicants by the 1st-3rd Respondents at Nkwelle Ogidi Village Hall for hours by keeping them stark naked in a public place (hotel and offices) with the support, cover, protection and aid of the 4th-5th Respondents who claim to be acting for and with the authority and protection of the 6th Respondent without justification
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or lawful excise (sic) is wrongful, because (sic) founded on malice and the desperate desire to carry out vendetta on the Applicants is unlawful and in the main constitutes a serious infraction of the Fundamental Rights of the Applicants contrary to law.
4. An order of Court commanding the 1st ? 2nd Respondents to pay the Applicants special damages in the sum of One Million and Two Hundred and Five Thousand Naira, for loss of money, wrist watch, Samsung Handset Note 4, eye glasses, dresses, new laptop, six bottles of perfumes.
a. Particulars of Special Damages
i. Loss of Two Thousand Dollars at 200 Naira per dollar at N400,000
ii. Loss of Samsung Handset Note 4 valued at N120, 000
iii. Loss of Two Hundred and Fifty Thousand Naira (N250, 000)
iv. Loss of Dress valued Twenty Five Thousand Naira (N25,000)
v. New Laptop (big) Forty Six Thousand Naira (N46, 000)
vi. Six Bottles of Perfumes valued at Fifty Four Thousand Naira (N54, 000)
vii. Pairs of shoes valued at N40, 000
viii. Blackberry phone valued at Eighty Thousand Naira (N80, 000)
ix. Samsung Galaxy Note 3 valued Thirty Thousand Naira (N30,
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000)
x. Cash of Sixty Thousand Naira (N60, 000)
5. Perpetual Injunction restraining the Respondents, their muscle men, police officers from any station in Nigeria from arresting and detaining the Applicants at any police cell upon facts of this application.
6. An order of the Honourable Court awarding damages in the sum of Two Hundred Million Naira against the Respondents jointly and severally.
7. And for any order or other orders as the Honourable Court may deem fit to make in the justice of this application.?
The Respondents in response to the application filed by the Appellants, filed their respective Counter Affidavit and Written Addresses. The 1st to 3rd Respondents filed a Counter Affidavit and Written Address on 18 November 2015, while the 4th to 6th Respondents and 7th Respondent filed their Counter Affidavit and Written Address on 15 December 2015 and 20 October 2015 respectively. The Appellants thereafter filed several Further Affidavits in response to the Counter Affidavit filed by the Respondents.
BRIEF FACTS OF THE CASE
The facts of the case as gleaned from the records is that the Appellants alleged that
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the 1st to 3rd Respondents invaded their office on 15 September 2015 and detained them with the aid of the 4th to 5th Respondents without any legal justification. The Appellants contended that as at 15 September 2015, the right to investigate the complaint issued by the 2nd and 3rd Respondents against the Appellants was vested with the 7th Respondent pursuant to the instruction of the 6th Respondent, hence the 4th and 5th Respondent had no authority to arrest the Appellants. The Appellants contended further that the arrest of the Appellants by the 4th and 5th Respondents with the support and use of force by the 1st to 3rd Respondents is unlawful. The Appellants allege that they were stripped naked by the 1st to 3rd Respondents while photographs and videos of their nudity were made. The Appellants allege that they lost several items worth thousands of Naira and they live in immediate fear of the safety of their lives as the 1st to 3rd Respondents have threatened to maim them.
The 1st to 3rd Respondents in response to the claims of the Appellants contend that the Appellants engaged in fraudulent activities in their position as Chairman and Secretary of
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Nkwelle-Ogidi Development Union (?the Association?) until their recent removal from their respective posts. The 1st to 3rd Respondents alleged that the Appellants incorporated a company as well as an incorporated Trustee with names similar to the Association and utilized the new company and incorporated trustee as a font to alienate lands of the Association and divert the proceeds of the sale of the Association?s land for their personal gain. The 1st to 3rd Respondents deny stripping the Appellants or threatening the lives of the Appellants.
The 4th to 6th Respondent on the other hand, alleged that the Appellants were arrested pursuant to a petition issued on behalf of the 1st to 3rd Respondents to the Inspector General of Police. The 4th to 6th Respondents contended that there were allegations of fraud, conspiracy and embezzlement of community funds by the Appellant in the 1st to 3rd Respondents petition which necessitated the investigation and subsequent arrest of the Appellants pursuant to a warrant of arrest issued by the Chief Magistrate Court 1 FCT, Abuja.
The 7th Respondent in its response to the claims of the Appellants
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alleged that no police officer from the office of the 7th Respondent arrested the Appellants. The counter affidavit filed on behalf of the 7th Respondent states further that Applicants did not disclose the participation of the 7th Respondent in the action that culminated into this suit.
The lower Court heard the Appellants application on 17 May 2016 and delivered its Judgment on 01 July 2016. The learned trial Judge held in its Judgment at page 374 of the records that:
.one fact that stands out very clearly in all the facts is the criminal allegation of diversion of funds belonging to the Association or union in which the 1st to 3rd Respondents are members by (sic) the Applicants. This is the connection between the 4th to 7th Police Respondents with the Applicants on the facts?On the whole, the Applicants have woefully failed to prove their assertions in line with the provisions of Section 131 (1) and 134 of the Evidence Act; and cannot therefore expect from the Court an order of perpetual injunction in the manner they seek against the Re
