CHRISTOPHER IGBO & ORS v. GABINUS DURUEKE & ORS
(2014)LCN/7046(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of March, 2014
CA/OW/103/2009
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. CHRISTOPHER IGBO
2. THEODORE UWA
3. MOSES MEKEMEM
4. HERBERT ARIZIE
5. NICHOLAS NNEJI
6. LAMBERT MEKEMEM
7. DONATUS NWOSU
8. CELESTINE ARIZIE (JNR.) Appellant(s)
AND
1. GABINUS DURUEKE
2. SGT. THOMPSON
3. M.O. MADU (D.P.O. DIVISIONAL POLICE STATION NWAORIEUBI)
4. SGT. MAJOR
5. THE COMMISSIONER OF POLICE, IMO STATE POLICE COMMAND, OWERRI
6. SGT. CHRIS CHUKWU
7. THE A.I.G. OF POLICE POLICE ZONAL HEADQUARTERS, ZONE 9, UMUAHIA, ABIA STATE
8. THE ATTORNEY-GENERAL OF IMO STATE Respondent(s)
RATIO
WHETHER OR NOT THE COURT IS ALLOWED TO GRANT PERPETUAL INJUNCTION AGAINST ANY FUTURE ARREST OR DETENTION
It is however worthy of note that a court is not allowed to grants perpetual injunction against any future arrest or detention at large. If applicants are again wrongfully arrested and detained in future, the doors of the courts are always open and justice will be dispensed without fear or favour, affection or ill will. See, JIMOH V. A – G FEDERATION (1988) HRLRA 513 where the court held that:
“any violation of a citizens guaranteed fundamental right, for however short a time, must attract penalty under the law, i.e the Constitution.” PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Owerri delivered on the 12th day of November, 2008 in favour of the Applicants/Appellants. On the 28th day of June, 2006, the Appellant as applicants filed a motion ex parte against the Respondents for leave to enforce their fundamental rights as enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 and all other laws in that behalf. The Appellants/Applicants also prayed for six reliefs as stated in their motion ex parte and the reliefs sought by the Appellant/Applicants were as follows:
“1. A declaration that the arrest and detention of the Applicants at Divisional Police Headquarters, Nwaorieubi, Mbaitoli Local Government Area, Imo State, on 26th day of May 2006 by the 2nd and 3rd Respondent at the behest of the 1st Respondent is unlawful and unconstitutional.
2. A declaration that the arrest and detention of the Applicants in Police cell on 13th June, 2006 to 14th June, 2006 of State CID Owerri, Imo State Police Command by the 4th and 5th Respondents at the behest of the 1st Respondent for the same matter reported earlier at Divisional Police Headquarters Nwaorieubi, Mbaitoli Local Government Area, Imo State by the 1st Respondent is unlawful and unconstitutional.
3. A declaration that the arrest and detention of the Applicants in police cell at Zonal Police Headquarters,
Zone 9, Umuahia, Abia State on 22nd -23rd day of June, 2006 to 23 day of June 2006 by the 6th and 7th
Respondents at the behest of the 1st Respondent for the same matter previously reported at the offices of the 3rd and 5th Respondents by the 1st Respondent is unlawful and unconstitutional.
4. An order for the Respondents to pay the Appellants jointly and severally the sum of N5,000,000.00 (Five Million Naira) being damages or compensation for their unlawful violation of the Applicant’s rights to dignity of their human persons and personal liberty as guaranteed under Section 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999.
5. An order for the Respondents to render to the applicants a public apology published in any of the National Newspapers circulating within jurisdiction for their unlawful violation of the Applicant’s rights aforesaid.
6. Perpetual injunction restraining the Respondents howsoever, by themselves, their servants, agents, workmen and or privies from further violation of the Applicants’ rights aforesaid.”
Upon service of the motion on notice on all the Respondents, the 1st Respondent filed a 28 paragraphs counter affidavit on the 3rd day of November, 2006 for himself and on behalf of the 6th to 8th Respondents (See pages 47 – 51 of the Record).
Learned counsel for the Appellants raised an objection on the competence of the 1st Respondent, Gabinus Durueke to depose to the said counter affidavit on behalf of the 2nd – 8th Respondents who are public servants and without the fiat of the Attorney General. Thereafter, on the 16th day of November, 2006 the 2nd to 8th Respondents filed their separate counter affidavit of 14 paragraphs (see pages 47 – 59 of the record)
The Applicants/Appellants again filed a 14 paragraphs affidavit on the 13th day of December 2006 and a further affidavit of 12 paragraphs on 2nd day of July, 2008, (see pages 63 – 71 of the record).
In compliance with the order of the Federal High Court, the Appellants and the 1st Respondent filed and exchanged written addresses while no address was filed by the 2nd – 7th Respondents. The 8th Respondent had been withdrawn and his name struck out on the 6th of June 2008. See pages 75 – 90 of the record.
In his judgment the learned trial Judge granted reliefs 1, 2 and 3 of the applicant/Appellants prayers as they affect the 2nd to 7th Respondents only. The trial court however, refused relief 4 of the Applicants prayers for monetary compensation while prayer 5 though granted was modified by the court in its judgment. Relief 6 was however completely ignored by the trial court. (See pages 126 to 145 of the record.)
The facts that culminated in this appeal and the gravamen of the Appellant’s complaints are that the Appellants were arrested and detained in various police cells in Imo State and Zone 9 Police Headquarters, Umuahia, Abia State on three different occasions allegedly at the instigation of the 1st Respondent, Gabinus Durueke for alleged offences of malicious damage and threat to life by the 2nd to 7th Respondents who are serving policemen and officers within the Nigeria Police Force. The Appellants claimed that they were first arrested and detained in police cell on the 26th day of May 2006 at the Divisional Police Headquarters, Nwaorieubi in Mbaitoli Local Government Area of Imo State by the 2nd – 3rd Respondents at the instigation of the 1st Respondent. Again from the 13th day of June 2006 to 14th June 2006, the Appellants/Applicants were arrested and detained in Police cell at the State Criminal Investigation Department, Owerri, Imo State by the 4th and 5th Respondents, also at the behest and instigation of the 1st Respondent for the same offences of malicious damage and threat to life reported earlier still by the 1st Respondent.
Subsequently, in a third petition written by the 1st Respondent to the 7th Respondent at Zone 9 Police Headquarters, Umuiahia in Abia State, the 1st Respondent lodged the same complaint of malicious damage and threat to life. The Appellant/Applicants were again allegedly arrested and detained in Police cell Zone 9, Umuahia by the 6th and 7th Respondents from the 2nd day of June, 2000 to the 23rd day of June 2006.
The Respondents however, made attempts at refuting these incessant arrests and detention of the Appellants in police cells on three different occasions and in so doing made contradictory statements in their counter affidavits. See the following:
(i) Paragraphs 17, 18, 20 & 21 of the counter affidavit of the 1st Respondent filed on 3/11/2008 which he purported to depose to for himself and on behalf of the 2nd – 8th Respondents, at pages 47 – 53 of the Record of Appeal.
(ii) Paragraph 5(a) – (d) and 7 of the counter affidavit of the 2nd – 8th Respondents filed on 16/11/2006 at pages 54 – 57 of the Record of Appeal.
(iii) Paragraph 4 of the further counter affidavit of the 1st Respondent filed on 31/5/2007 at page 58 of the Record of Appeal.
(iv) Paragraphs 5, 6, 7, 9 and 10 of the further, further affidavit of the Applicants filed on 2/7/2008 at pages 67 – 71 of the Record of Appeal.
The Applicants/Appellants filed an application for enforcement of their fundamental rights complaining against these incessant arrests and detention in police cells on the various dates in question and sought the aforementioned 6 reliefs as stated in their statement and particulars accompanying their motion ex-parte.
The learned trial judge in a considered ruling delivered on the 12th day of November 2008 granted reliefs 1, 2 and 3 sought by the Appellants declaring their arrests and detention on police cells by the 2nd – 7th Respondents at the instigation of the 1st Respondent unlawful and unconstitutional. The learned trial judge however excluded the 1st Respondent from reliefs 1, 2 and 3 which he granted and refused relief 4 wherein the Appellants claimed N5,000,000.00 (five million naira) damages in breach of the Appellants fundamental rights. The learned trial judge however, modified relief 5 sought by the Appellants while granting it and further excluded the 1st Respondent from the said relief, completely ignoring relief No. 6.
The Appellants/Applicants filed this appeal against the said judgment on the three grounds of appeal as stated in their notice and grounds of appeal.
The said grounds of appeal are hereby reproduced without their particulars as follows:
GROUND ONE:
Error in law
The learned trial Judge erred in law when in his judgment delivered in this Suit on 12/11/2008 he excluded the 1st Respondent from reliefs 1, 2 and 3 sought by the Appellants and granted to them by the court.
GROUND TWO:
Error in law
The learned trial Judge erred in law when in his judgment delivered in this Suit on 12/11/2008, he refused to grant the 4th relief sought by the Appellants.
GROUND THREE:
Error in law
The learned trial Judge erred in law when in his judgment delivered in this Suit on 12/11/2008, he modified the 5th relief sought in this matter by the Applicants/Appellants before purporting to grant it.
Learned counsel for the Appellants filed his brief of argument on the 15th day of October 2009 while the 1st to the 7th Respondents did not file any brief of argument even though they were duly served on the 22nd day of January, 2014 and the 16th day of January, 2014 respectively. This appeal was however taken in default of the Respondents’ brief on the 28th day of January, 2014.
In his brief of argument, learned counsel for the Appellants formulated three issues for determination to wit:
“1. Whether the learned trial High Court judge was right in law to have excluded the 1st Respondent, (Gabinus Durueke) from reliefs 1, 2, and 3 and relief 5, as modified by him, which were sought by the Applicants/Appellants and granted by the court. (Ground 1).
2. Whether the learned Federal High Court Judge was right in law to have refused the Applicants/Appellants’ 4th prayer for the Respondents to pay to them the sum of N5,000,000.00 (Five Million Naira, Only) being damages or compensation for their unlawful violation of the Applicants fundamental rights and dignity of their human persons and personal liberty after the trial Judge had granted Appellants reliefs 1, 2, and 3 and even relief 5 as modified, sought in their application. (Ground 2).
3. Whether the learned trial Judge was right in law to have modified the 5th relief sought by the Applicants/Appellants for the Respondents to render to them a public apology published in any of the National Newspaper circulating within jurisdiction before granting it in the form the court did (Ground 3),”
In his judgment delivered on 12th day of November, 2008. The learned trial Judge C.V. Nwaokorie held thus:
“1. The court hereby makes the declaration contained in reliefs 1, 2 and 3 of the Applicants’ prayers as if affects the 2nd – 7th Respondents only.
2. The relief contained in paragraph 4 of applicants prayers is hereby refused, while the relief claimed in the 5th prayer of the applicants is hereby granted in the following terms (as a token, non monetary compensation for the violations.) The 2nd – 7th Respondents are ordered to render an unqualified public apology to the applicants within 30 days from today. The publication shall be in the form of a letter addressed to the applicants individually and separately through their learned lead counsel, Chief (Sir) T.C. Nwachi for onward transmission to them. Wherein they must undertake to lay the complaints of the 1st Respondent to them to rest and express remorse for the excessive overzealousness of some of their operatives in the handling of the said investigations.
3. The police investigation into this matter is hereby ordered terminated forthwith, whilst these proceedings are hereby abated, and the suit adjourned sine die.
4. Parties are to bear their respective cost of this action.”
Dissatisfied with the aforementioned Judgment of the Federal High Court, Owerri delivered on the 12th day of November, 2008, the appellants appealed against same via a Notice of Appeal dated 11th December, 2008 and filed on the 16th December, 2008. The Appellants equally filed their Appellants brief of argument dated 15th October, 2009, and filed on the same 15th October, 2009. The Respondents, however did not file any respondent’s brief despite proof of service of the Appellant’s brief on all of them on the 21st day of October, 2009.
The Appellants instead, filed a motion on notice dated 16th day of March, 2009 and filed on 18th day of March 2009 praying this court for an order for definite hearing based on the Appellants’ brief of argument in default of the Respondents brief, which order was granted on the 16th day of September 2013. The said motion was heard unopposed and was reserved for Judgment on the 28th day of January, 2014.
On the said issues as formulated by the Appellants which are hereby argued together, learned counsel for the Appellants submitted that the learned trial judge was wrong to have excluded the 1st Respondent from the 1st, 2nd, 3rd and 5th reliefs sought by the Appellants and granted by him. He argued that it was on record from the counter-affidavit of the 2nd – 7th Respondents particularly, paragraph 4 and paragraphs 11, 18 and 21 that it was the 1st Respondent that set the machinery of arrests in motion by first alerting the 2nd and 3rd Respondents and later the 6th and 7th Respondents and that the Appellants were actually arrested.
The learned counsel submitted that the 1s Respondent set the machinery of law in motion against the Appellants and was actively instrumental to the incessant arrests and detentions of the Applicants at all times.
Learned counsel concluded that the learned trial Judge had no justification in law for excluding the 1st Respondent from the reliefs sought by the Appellants and granted by the court. He cited the case of OKONKWO V. UGBOGWU (1996) 5, NWLR (Pt.449) 420 at 433; where the Court of Appeal held thus:
“to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him”.
He also cited the case of FAJEMUROKUN V. C.B. (C.L.) NIG. LTD. (2002) 10, NWLR (Pt.774) 95 at 111 – 112. Paragraphs G – C. where the Court of Appeal held thus:
“where there is evidence of arrest and detention of an Applicant which were done or instigated by the Respondent in an action for the enforcement of fundamental rights application, it is for the Respondent to show that the arrest and detention were lawful.”
It is however evidently clear from the record of appeal and the submission of learned counsel for the Appellants that the 1st Respondent had set the machinery of law in motion and was actively instrumental to the incessant arrests and detention of the Appellants, which arrests and detentions were carried out by the 2nd-7th Respondents at the instance of the 1st Respondent. However, the 1st Respondent, like any law abiding citizen of Nigeria is entitled to lay his complaints at the nearest police station proximate to him to report any perceived danger which he believes may reasonably lead to the commission of a crime, or might likely endanger his life. In the same vein, any citizen is entitled to approach any High Court within jurisdiction pursuant to S.46 of the Constitution at the Federal Republic of Nigeria, 1999 for an order enforcing his fundamental rights which he thinks are being threatened or violated by any person in that state. The learned trial Judge in his decision found likewise and I am in total agreement with him in that regard.
The 1st Respondent in this case feared for his life and to stem any trespass to his land and property, he rightfully and dutifully resorted to the police for rescue in accordance with the law. The 1st Respondent had done his duty in the eyes of the law and it was now left for the police whose duty is it to protect life and property to proceed to act in accordance with the tenets of their profession. They exceeded their bounds and the court declared their action as unlawful.
Relief 5 as sought by the Applicants is for an order for the Respondents to render to the Applicants/Appellants a public apology published in any of the National Newspapers circulating within the jurisdiction for their unlawful violation of the Appellants’ rights. Before I make any further comments on the aforesaid relief, suffice it to say that the Nigeria Police Force and its operatives whether at the Federal, State or Zonal Command are empowered by the Police Act, the Constitution and other relevant laws in that regard to investigate crimes or perceived danger which have been reported to them. The police however have absolute discretion as to who to, arrest, charge and prosecute and in so doing arrests may be made and invitations extended to persons who they reasonably believe have committed an offence. There is no gainsaying the fact that in the course of their duty they are enjoined to conduct their investigations in line with the principles of the rule of law and that they must act judiciously and judicially.
In the instant case, the Police had affected a number of arrests and detention of the Applicants/Appellants in various police cells. The learned trial Judge has found the action of the police improper and in his considered ruling has declared these incessant arrests and detentions unlawful. I cannot agree more with his decision and I have found no reason to disturb the findings of the learned trial Judge in that regard. Section 35(6) of the 1999 Constitution reads 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.”
To begin with, the law has not specified the amount of compensation to be given to a person who has been unlawful arrested and detained. From my understanding of this section of the Constitution, the trial court has the discretion to determine the amount of compensation to be given to an aggrieved party. I do agree that the Appellants are entitled to some compensation for their detention and arrests which the court has rightly declared unlawful. In the result, I do hereby peg the compensation due to the Appellants at N50,000 against the Respondents in favour of the Appellants.
On the issue of public apology, I agree entirely with the decision of the lower court which reads as follows:
“The 2nd to 7th Respondents are ordered to render an unqualified public apology to the Applicants within 30 days from today. The publication shall be in the form of a letter addressed to the applicants individually and separately through their learned counsel Chief (Sir) T.C. Nwachi for onward transmission to them wherein they must undertake to lay the complaints of the 1st Respondent to them to rest and express remorse for the excessive overzealousness of some of their operatives in the handing of the said investigation.”
It is however, my ardent view that the Appellants ought to be fully assuaged by this form of apology, as anything outside this form of apology will further dent the image of the police in the eyes of the general public and will serve no useful purpose to the parties concerned.
Relief 6 as prayed by the Appellants is an order for perpetual injunction restraining the Respondents howsoever, by themselves, their servants, agents, workmen and a privies from further violation of the Applicants’ rights aforesaid. It is however worthy of note that a court is not allowed to grants perpetual injunction against any future arrest or detention at large. If applicants are again wrongfully arrested and detained in future, the doors of the courts are always open and justice will be dispensed without fear or favour, affection or ill will. See, JIMOH V. A – G FEDERATION (1988) HRLRA 513 where the court held that:
“any violation of a citizens guaranteed fundamental right, for however short a time, must attract penalty under the law, i.e the Constitution.”
Accordingly, this appeal is allowed in part only to the extent of payment of N50,000 compensation to the Appellants against the Respondents. Save for the issue of the aforesaid compensation, the judgment of the lower court delivered on the 12th day of November, 2008 is hereby affirmed. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances
S. C. Nwachi Esq, (Mrs.)For Appellant
AND
For Respondent