CHRISTIAN EMERE v. CHIEF AMBROSE ANACHUNA & ORS
(2018)LCN/12480(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/34/2012
RATIO
CRIMINAL LAW: WHAT AMOUNTS TO UNLAWFUL ARREST
“It is trite that merely making a report to the police who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. See SAMUEL ISHENO v. JULIUS BERGER PLC (2008) SCJN 220. It however translates to unlawful arrest when the allegation is unfounded and based on a personal vendetta or unresolved and maybe prolonged disagreement between the victim of arrest and the person who made the report. Our law has provided a remedy for any such victim of unlawful arrest and or detention. This is contained in Section 35 (6) of the 1999 Constitution which provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
CHRISTIAN EMERE Appellant(s)
AND
1. CHIEF AMBROSE
ANACHUNA
2. INSPECTOR GENERAL OF POLICE
3. THE COMMISSIONER OF POLICE ANAMBRA STATE
4. JOHN NWAELE (AREA COMMANDER ONITSHA)
5. INSPECTOR OKWOR Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Justice, Anambra State, delivered by Hon. Justice J.I. Nweze on 24/01/2011.
The Applicant now 1st Respondent at the trial Court by a motion on notice sought for the enforcement of his fundamental human rights in terms of the following reliefs:
1. A DECLARATION that the Applicant is entitled to personal dignity, personal liberty, right to family life, freedom of movement as enshrined in Section 34,35, 37 and 41 of the 1999 Constitution of the Federal Republic of Nigeria without any interference, hindrance, or infringement of the aforementioned fundamental rights of the Applicant by the Respondents.
2. A DECLARATION that it is illegal, null, void, unconstitutional and contrary to Section 34,35,36,37 and 41 of the 1999 Constitution of the Federal Republic of Nigeria for the Respondents to detain and torture the Applicant without any justification.
3. The sum of N1, 000,000.00(One Million Naira) only jointly and severally against the Respondents as general and exemplary damages to the Applicants for the infringement of his fundamental rights.
4. AND for such further order or orders as the Honourable Court may deem fit to make in the circumstance.
The Appellant and the 2nd, 3rd, 4th and 5th were found liable for the infringement of the Applicant’s rights to personal liberty and dignity of his human person. The 5th Respondent at the lower Court was exonerated from liability in respect of the Applicant’s claim. The learned trial judge awarded compensation and costs in favour of the Applicant and against the Respondents (apart from the 5th Respondent) jointly and severally.
Dissatisfied with the decision of the trial Court aforesaid, the Appellant initiated this appeal by virtue of a Notice of Appeal dated and filed on the 21/2/2011; records were transmitted on 7/2/2012 and deemed transmitted on 16/4/2013. The Appellant filed his brief of argument on 13/11/2013 and was deemed filed on 1/2/17. The first Respondent filed his Respondent’s brief on 1/2/17. Appellant filed reply brief on 13/2/17. At the hearing of the appeal, it was found by the Court that the 2nd- 4th Respondents were served by and phone call on 9/5/18 through their counsel, one Obasi who is the legal officer of the Area Command. Being satisfied that the 2nd -5th Respondents were aware of today’s hearing and had been served all processes relating to the appeal, the appeal was heard on 16/5/18.
Obumneme Ezeonu Esq. who settled the Appellants? brief identified two issues therein, for the determination of the appeal to wit:
1. Whether, the learned trial judge was correct when he held that the Appellant instigated the breach of the fundamental rights of the 1st Respondent by the 2nd, 3rd, 4th and 5th Respondents.
2. Whether the learned trial Judge properly evaluated the affidavit evidence of parties in granting the claims of the 1st Respondent.
In the brief settled by W.O Enwelum Esq. the 1st Respondent adopted the issues as raised by the Appellant. I think the complaint raised by the Appellant and addressed by the parties can be determined with the following sole issue for determination:
Whether the trial Court properly evaluated the evidence and came to a correct decision when it held that the Appellant instigated the breach of the fundamental rights of the 1st Respondents by the 2nd, 3rd, 4th and 5th Respondents.
SOLE ISSUE
Appellant’s counsel submitted that the findings of the lower Court that it was the Appellant that instigated the Police to breach the fundamental rights of the 1st Respondent is not borne out by the affidavit evidence of the parties in this case. By his affidavit evidence, the 1st Respondent, contrary to the finding of the learned trial judge, had placed the charge of instigation of the Police to breach his fundamental rights squarely on the doorsteps of the 5th Respondent at trial.
Counsel submitted that the Appellant in this case laid a complaint of murderous threat to life, stealing, removal of beacon stones, forcible entry etc against the 1st Respondent and some other persons. Counsel argued that the said petition was annexed to the counter affidavit of the Police (1st-3rd and 6 Respondents at the lower Court) as Exhibit ‘SEI’ (pages 34 to 36 of the record) and that the Appellant was acting within the precincts of the law when he made the said exhibit. Acting on this petition, the police exercised their right under the law in investigating the said petition.
Counsel submitted that the Appellant cannot be held liable for the breach of the fundamental rights of the 1st Respondent because he brought a bona fide petition bordering on suspicion of crime to the police. Counsel cited Nwangwu v Duru (2002) 2 NWLR Pt. 751 Pg. 283
Counsel submitted that the case of the police as contained in the counter-affidavit of 1st- 3rd and 6th Respondents at the lower Court is explicit about the steps they took in investigating the petition as in Exhibit ?SE1?. The 1st Respondent was invited to the police station and was confronted with Exhibit ?SE2?. HE made a statement, in line with the law and in response to the said petition and was admitted to bail. The bail bond was annexed to the counter-affidavit of 1st-3rd and 6th Respondents at the lower Court as Exhibit ?SE1?.
Counsel submitted that the aggressor has earlier been identified as one Mr. Peter Ezeinegbu against whom a charge has been filed as charge No. M/190C/2010.
Counsel submitted that even if the said deposition of the Appellant is interpreted as an admission that the 1st Respondent was asked about ownership of the said plots, he contended that such admission has no probative value. It is the law that where an admission is not based on personal knowledge of the maker of the facts admitted; such admission can hardly be of any value. Counsel cited: Seismograph Service (Nigeria) Ltd v. Chief Keke Ogbenekwekwe Eyuafe (1976) 9 & 10 SC, P. 146, Paras 2-10.
Counsel submitted that the 1st Respondent did not say that the Appellant was there when he was asked to make a statement of what he knows about the ownership of plots 546 and 548. He maintained at Paragraph 17 of the affidavit in support of the 1st Respondent’s application that he was taken to a separate room where he was shown a petition written by the Appellant.
Counsel further submitted that the police clearly denied paragraph 17 of the affidavit in support of the 1st Respondent’s application. The police stated in paragraph 5,7,14, and 15 of the counter affidavit of 1st – 3rd and 6th Respondents at the trial Court that the 1st Respondent was confronted with Exhibit ‘SE1’, petition by the Appellant making certain criminal allegations against him in connection with Plots 546 and 548.
Counsel submitted that the trial judge was therefore wrong when he held that (a) the Appellant confirmed that the 1st Respondent was asked to state what he knows about the ownership of plots 546 and 548; and (b) that the police did not deny this. The said statement was not confirmed by the appellant. The said statement was denied by the police.
Counsel submitted that the learned trial judge asked why the Appellant did not show any document whatsoever linking him to the land to justify the claim of ownership as made to the police. The need to annex the document bearing out Appellant’s title to the land was uncalled for in the circumstances of this case. In the first place, this case is not a land matter. It is purely a matter of alleged breach of fundamental rights. Furthermore, the 1st Respondent had admitted in his own affidavit evidence that the land does not belong to him.
Counsel submitted that the only connection between the Appellant and the 1st Respondent is disclosed in Exhibit ‘SE1’ (the petition written against the 1st Respondent). Against the contention of the 1st Respondent that he does not know the allottee of the said plot and thus could not be involved in the criminal allegations contained in Exhibit SE1, the 1st Respondent admitted that he was a signatory to an allocation paper transferring interest in the said plots to one of the persons connected with the said allegations who has already been charged to Court. Counsel argued that this does not mean that the 1st Respondent had been exonerated from the allegations contained in Exhibit ‘SE1’. In fact, the police states that it is in the course of investigation relating to Exhibit ‘SE1’ that the 1st Respondent was invited to the police.
Counsel submitted that the police clearly stated at pages 32 to 33 of the record that they were investigating exhibit ‘SE1’ and that the said exhibit was shown to the 1st Respondent for his reaction. The 1st Respondent did not state the contents of the petition he was shown. Counsel cited: Section 85 and 87 of the Evidence Act 2011, Nigerian Safety insurance v. Zaria Co-operative Credit Union (1978) 1 NCAR, Pg. 5, Paras. 15-35. But surely a petition was written by the Appellant. The police to whom the petition was directed insisted that they were investigating Exhibit ‘SE1’ which contained criminal allegations against the 1st Respondent by the Appellant.
Counsel submitted that there is a conflict between the affidavit evidence of parties in this case, and where there is such conflict, it could be resolved by relying on documentary evidence. The learned trial judge should have resolved the conflict in affidavit evidence of parties as to the contents of the petition written by the Appellant by relying on Exhibit ‘SE1’.
Counsel further submitted that if there is no documentary evidence available to resolve the conflict in affidavit evidence of parties, it is necessary to call oral evidence to resolve the conflict. Learned trial Court did not also call any oral evidence to resolve this conflict. Since the question of the nature of the petition written by the Appellant was not resolved, it is submitted that the learned trial judge erred in holding that the Appellant instigated the breach of the fundamental rights of the 1st Respondent. Counsel cited:Falobi v. Falobi (1976) 9 & 10 S.C. 1, Pg. 15; Akinsete v. Akindutire (1966) 1 ALL NLR 147.
Counsel submitted that for a claim of instigation in a matter of breach of fundamental rights to succeed, it is necessary to show that the party against whom the allegation is made did more than laying a complaint to the police. The Appellant could have been held rightly liable for the arrest and detention of the 1st Respondent, if he did more than merely laying a complaint to the police. It was not alleged that the Appellant went to the house of the 1st Respondent with the police. It was not equally alleged that the Appellant assisted the police in any way to infer the conduct of instigation on his part. Counsel cited: Onah v Okenwa (2010) 7 NWLR Pt. 1194.
Counsel submitted that the trial judge in evaluating the import of Exhibit SE1 found that it is not clear how a petition written to the Area Commander, Onitsha directly would get to the Commissioner of Police at Awka for endorsement. Counsel complained that the trial judge cannot take judicial notice of the administrative procedure for attending to petitions addressed to the police hierarchy. In the first place, the procedure adopted by the police in treating petitions was not a live issue at the trial.
In the second place, if it was not clear to the learned trial judge how the procedure works, he should have called oral evidence of the police. This, he failed to do and thus caused a miscarriage of justice by faulting the procedure adopted by the police.
1st Respondent’s Counsel argued that the trial Court found that the Appellant instigated the 2nd ? 6th Respondents to breach the fundamental rights of the 1st Respondent, and that the Court before arriving at its conclusion x-rayed the averments of all the parties and found out that there was no petition so called before the arrest and detention of the 1st Respondent.
Counsel further submitted that the 1st, 2nd, 3rd, and 6th Respondents in paragraph 7 of their counter affidavit averred that they received a written petition on 2/4/2010 endorsed to the 3rd Respondent (now 4th Respondent) for investigation. The Appellant and the 5th Respondent did not refute this averment in their counter affidavit or further counter affidavit. The Appellant as a matter of fact admitted this in paragraph 11 of his counter affidavit. Consequently, the invasion of the residence of the 1st Respondent, his arrest and detention were all based on the non-existent and bogus allegation in the petition of the Appellant.
Counsel submitted that the Appellant admitted initiating a petition against the 1st Respondent to the police. Once the Court is satisfied that the report or complaint to the police which led to the arrest and detention of the Applicant is false, malicious and made without probable cause, the complainant bears the liability as well as the police. Counsel cited Oduwole & Ors v. West (2010) 10 NWLR Pt. 1203 Pg. 598; Aguomba v. Uwais (2007) ALL FWLR Pt. 346 Pg.440 at 467; A.C (O.O.A) NIG LTD v. Umanah (2013) NWLR Pt. 1344 Pg. 323 at 331.
Counsel submitted that an examination of Exhibit ?SE1? will reveal that there was no probable cause for the Appellant to report or petition the 1st Respondent to the Police which by necessary implications shows that the Appellant acted maliciously. The Appellant did not in any positive way connect the 1st Respondent to his alleged petition. The Appellant alleged that he was told by an unnamed person that it was the 1st Respondent who trespassed on his land. It is the law that suspicion however well placed can never amount to prima facie evidence or amount to a crime. Counsel cited:Oladotun v State (2010) 15 NWLR Pt.1217 Pg 490 at 493; Abru v. State (2011) 17 NWLR Pt. 1275 pg. 8
Counsel submitted that the Appellant for reasons best known to him decided to instigate the police to arrest, detain and dehumanize the 1st Respondent for no probable cause other than to embarrass him. Counsel therefore urged this Court to hold that the petition was actuated by improper and indirect motives and therefore affirm the holding of the trial Court to breach the fundamental right of the 1st Respondent. Counsel cited: Oduwole & Ors v. West (Supra), Aguomba v Uwais (supra) and Bakare v Ibrahim (1973) 6 SC 205
1st Respondent’s counsel submitted that contrary to the Appellant’s arguments, nowhere in the judgment did the Court rely on the written address of counsel to contrast averments in the affidavit. The trial judge identified and evaluated inconsistencies in the affidavit evidence of the Appellant and 2nd-6th Respondents. The trial Court hinged its findings on various paragraphs of the affidavits of the Appellant and his Co-Respondent at the trial Court. The trial Court referred specifically to paragraph 7 of the counter affidavit of the 2nd ? 5th Respondents, also 3, 5, 7-9 of the Appellant’s counter affidavit. There was no mention of the address in the whole judgment.
Counsel further submitted that it is the duty of the trial Court to evaluate and appraise the evidence as adduced and where the trial Court has evaluated the evidence creditably and appraised the facts, the appellate Court is divested of the right to substitute its views for that of the trial Court. Counsel cited: Odusote v Odusote (2012) 3 NWLR Pt. 1288 Pg 478 at 485.
The Appellant in reply submitted that the 1st Respondent relied on A.C. (O.O.A.) NIG LTD v. Umanah (2013) 4 NWLR Pt.1344 in paragraph 4.9 of his brief to say that the person who makes a malicious complaint leading to the arrest and the detention of the applicant is not culpable. Counsel further submitted that the above case is distinguishable as that case is based on breach of contract while this is not, there is no evidence that the complaint made by the Appellant is false or malicious, and the investigation of the Police did not reflect that neither did the trial judge make out any case of malice or falsity.
OPINION
The trial judge held at page 112 of the record that:
‘I am of the firm view that instead of any lawful investigation, the police decided, at the instance of the 4th Respondent, to delve into the resolution of the issue of ownership of plot 546 and 548 Akpaka Forest Layout. It was in the course of such illegal involvement that it arrested and detained the applicant. The arrest and detention, even if for the purpose of his making a statement, is illegal, unlawful and unconstitutional.’
I have to agree with the trial judge that the primary dispute between the Appellant and the 1st Respondent is the issue of land ownership which is purely a civil matter. Even though the appellant wrote a petition to the police, and the police being an authority vested with power to make arrest and investigate a crime which is reported to it may have the excuse to detain the 1st Respondent based on the petition of the Appellant.
It is trite that merely making a report to the police who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. See SAMUEL ISHENO v. JULIUS BERGER PLC (2008) SCJN 220. It however translates to unlawful arrest when the allegation is unfounded and based on a personal vendetta or unresolved and maybe prolonged disagreement between the victim of arrest and the person who made the report.
Our law has provided a remedy for any such victim of unlawful arrest and or detention. This is contained in Section 35 (6) of the 1999 Constitution which provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.
Let me also add that the 2nd, 3rd, 4th and 5th Respondents have the duty to diligently investigate any form of criminal allegation reported to it in order to know if a crime was actually committed or about to be committed or the report was just an act of malice and hatred. This is necessary in order to avoid initiating government machineries for a worthless cause or even to perpetrate injustice on harmless citizens who may not have the means to access justice.
As held by this Court, in AIZEBOJE v. EFCC (2017) LPELR- 42894(CA), it is the law that in a claim for unlawful arrest and detention, the Plaintiff must not only show that the defendant merely made a report against him, he must plead and establish that there was no reasonable and probable cause for making the report.
Let us look at the facts of this case closely. The pertinent portions of the affidavit filed on 21/01/10 in support of the motion for enforcement of rights states as follows in paragraphs 10-16 and paragraphs 23 & 24 on Pg. 5-6 of the record:
10. That on the evening of 12/06/2010, I was away when my son Chukwuma called me on the phone that some policemen numbering about 16 from the police of the Area commander were looking for me. The policemen who were led by the 6th Respondent had ransacked my entire house in search of me. My children and wife were crying and begging the policemen to stop the ransack but all their pleas fell on deaf ears as the police officers literally swept the house.
11. That the noise and commotion created by the actions of the police officers attracted the attention of the neighbors and passers-by who came to know the cause of the commotion in my apartment to find out why the 5th Respondents and his agents were creating such scene in my house, the 6th Respondent warned.
12. When my wife challenged the 6th Respondent on the embrassment himself and his agents were causing to my person and the family. The 6th Respondent merely said that, they have orders from above to bring me to the station that I trespassed on land of 5th Respondent at Akpaka Layout.
13. When the 6th Respondent and his agents and cohorts were satisfied that I was nowhere in the house, they forced my son to call me on phone. The 6th Respondent introduced himself and informed me that the Area commander wants to see me immediately to explain my involvement in the land belonging to the 5th Respondent at Akpaka layout 3-3.
14. I informed the 6th Respondent that I travelled, but promised to see the 3rd Respondent on Monday morning 14/06/2010 by which time I hope to have come back from my journey, the 6th Respondent and his agents left without leaving any invitation letter.
15. On 14/06/2010, I went to the office of the Area command Onitsha in company of my lawyer, at the police station we were able to get in contact with the 6th Respondent through phone call.
16. The 6th Respondent then placed me under arrest for trespass to the land of the 5th Respondent. My lawyer required for explanation on why I should be placed under arrest. The 6th Respondent said that a petition was written against me by the 4th Respondent. My Lawyer requested to give my lawyer a copy of the said petition.
On the other hand, the following are excerpts of the petition written by the 1st Respondent to the police which was attached to the counter affidavit of the 1st – 3rd and 6th Respondent. The petition is on Pg. 34-36 of the record. At Pg. 35-36 the petition stated in relevant parts as follows:
Surprisingly, while on routine visit to the land on the 1st of April 2009. I observed that my materials have been used to do some job in the extreme part of the land, I equally observed that over 3,000 blocks valued over (N300, 000.00) Three hundred thousand Naira I kept there have been removed as well as the trips of sand and all other materials.
On enquiry I was told that one Ambrose Anachuna who is reputed to be in the habit of forging fake papers and seizing parcels of land from unsuspecting persons was behind this criminal act. The most horrible aspect of it all was that the whole thing was being done at night time. Later that night, at about 8pm, I went to verify the information and I saw more than thirty (30) people with dangerous weapons, such as cutlasses, guns and sticks on my property, chanting war songs, smoking indian hemp and on sighting me, one of them shouted; ?na him be that, ? ?na him be that o?. They all immediately pursued mewith these weapons, with the obvious intent to kill or harm me. With aid of darkness, I managed to slip through their fingers and God saved me, I immediately rushed to the 3-3 police station and lodged a complaint. From there I was referred to Area Command Headquarters. Hence this petition.
I have deliberately set out the affidavit in support of the human rights and the petition in order to better appreciate the vague complaint made by the 1st Respondent against ‘Messers Ambrose Anachuna (Appellant), Peter Ezeinogba, Nnamdi and several others for murderous threat to my life, stealing, removal of beacon stones, forcible entryetc.’
The Petition implied that it was the 1st Respondent who initiated the invasion of thugs on his land and whose gang threatened to kill him. None of the 1st Respondent’s counter affidavit specified how he know that it was the Appellant who sent the men to his land at night and threatened him. The petition did not say that he saw the Appellant or spoke to him at all.
It is true the Appellant wrote a petition alleging murderous threat to life, stealing, removal of beacon stones, forcible entry etc., but I cannot see anything such as a real threat to life in this matter. I agree with the learned trial judge that there is no prima facie case emanating solely from the petition against the 1st Respondent. Furthermore the said threat has to be a real and tangible one before the police can intervene.
What is expected of the police in a case like this is to determine the nature of the dispute between the parties first, where it is purely civil then parties should be advised to take recourse in the law Courts and where it is criminal in nature the police is expected to commence a thorough investigation into the criminal issues involved. The police did neither; instead the officers proceeded to arrest and detain the 1st Respondent.
In SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR v. DANIEL PESSU (2014) LPELR-23325(CA) the Court held that if a person orders a policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the policeman. I do not intend to mean that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, can be liable in an action for unlawful arrest or detention.
In CHIEF L. OYELAKIN BALOGUN v. ALHAJI BUSARI AMUBIKAHUN (1989) LPELR-725(SC) the Supreme Court held that It was the appellant that set in motion the law by appealing to the police to arrest, charge and take the respondent to the police. He approached the police, knowing they had the cloak of authority to frame a criminal charge. The Apex Court held that the Appellant was actively instrumental in prosecuting the Respondent. The Court held that in the Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in that case, and through the same mischievous lying, the police not only make an arrest of the incriminated person, but proffer a charge against him and take him to Court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person.
The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense. The Court relied on (Watters v. Pacific Delivery services Ltd. (1964) 42 D.L.R. (2d) 661; Pandit Gaya ParshadTewari v. SardarBhagat Singh (1908) 24 T.L.R. 884). See also: Farley v. Danles (1855) 4 EXB 493, 499; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, 684. Jim-Jaja v C.O.P Rivers State (2012) LPELR 20621 Pg.1 at 14-15
I concede that the learned trial judge at this stage cannot and should not have entered a finding on the issue of whether or not the Appellant had a claim on the land in question and thus was able to lodge a complaint.
However, the learned trial judge contrary to the argument of Appellant’s counsel made a thorough evaluation of the facts in issue and I do not agree that there is a valid complaint regarding the learned trial judge’s interpretation of the contents of the petition. In view of this I have to address the position of the law as touching the effect of frivolously or maliciously reporting a crime to the law enforcement agents.
The position of the law is that it is not enough for a plaintiff in a claim for unlawful arrest and detention or false imprisonment to plead and provide evidence that the defendant merely made a report against him, he must also plead and establish that there was no reasonable and probable cause for making the report. The Plaintiff has the legal burden of showing that the report made by the defendant is false, frivolous and without legal foundation. See BAYOL vs. AHEMBA (1999) 7 SC (PT 1) 92 and IYALEKHUE vs. OMOREGBE (1991) 3 NWLR (PT 177) 941.
‘Where there has been a report of trespass to land by a party, immediately there is a bone fide claim of right by the other party, the police should hands off unless there is the threat there would be an imminent breach of peace. In that case both parties can be bound over by the police to keep the peace. I think what is material here is whether the complainant merely wrote a petition containing facts which he believed to be true and which are in fact believable to be true. Where the complaint is palpably incredulous or guess work on the part of the Complainant, then it is maliciously initiating the process of police investigation or executive action against another.
In this case, the petition was filed by the Appellant on 2/4/09 and addressed to the Area Commander in Onitsha. Nothing was done about it until it was endorsed to the Commissioner of Police three weeks later on 28/4/09. The 1st Respondent’s home was invaded by Police on 14/6/10 more than a year after the petition which was the basis of the investigation. I am persuaded that the Appellant willfully started the malicious campaign against the 1st Respondent without any reasonable cause and the learned trial judge was right to hold the Respondents at the trial Court liable, I therefore hold that the 2nd-5th Respondents were wrong to have detained the 1st Respondent in a civil matter on the basis of the petition written by the appellant when it was clear that there was no real threat to his life and even the petition did not disclose why he suspected the 1st Respondent as being the one who trespassed on his land.
I concede that it is the duty of citizens of the country to report cases of crime to the police for their investigation and what happens thereafter is entirely the responsibility of the police. The citizens cannot be held culpable for doing their duty, unless it is shown that it is done mala fide, which would have been discovered if the police had diligently carried out their duty instead of arresting and unnecessarily detaining citizens they are to protect, in this case the 1st Respondent. See Oceanic securities international limited v. Alh Bashir Olaide Balogun 2012 LPELPR-9218 (CA). The 1st Respondent is therefore entitled to the remedies granted by the trial Court.
I have no reasons to fault the findings of the learned trial judge that the Appellant maliciously instigated police arrest and detention against the 1st Respondent. This Appeal has absolutely no merit.
I affirm the judgment of Hon. Justice J.I. Nweze on 24/1/2011 in suit no: OT/MISC/17/2010. Appeal dismissed. N100, 000 costs to the 1st Respondent against the Appellant.
IGNATIUS IGWE AGUBE, J.C.A.: The draft of the Lead Judgment just delivered by my learned brother, the PJ, HELEN MORONKEJI OGUNWUMIJU JCA was made available to me before now.
I agree with his reasoning and conclusion therein. I abide by the consequential orders made therein.
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
ObumEzeOnu with him, Gideon UanyiFor Appellant(s)
W.O. Enwelum- for 1st RespondentFor Respondent(s)
