EBOH v. EBOH & ORS
(2022)LCN/16390(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/OW/435/2019
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
MR. RICHARD EBOH APPELANT(S)
And
1. MR. CHRISTIAN EBOH 2. MRS. ABIGAIL EBOH 3. MR. SAMUEL EBOH 4. PASTOR JOHN ADIELE RESPONDENT(S)
RATIO:
POSITION OF LAW ON WHEN A DECISION IS SAID TO BE PERVERSED
A decision is said to be perverse when it runs counter to evidence or where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shuts its eyes to the obvious, or when it has occasioned miscarriage of Justice (as in the instant case).INCAR LTD Vs. ADEGBOYE (1985). 1 NWLR (Pt. 8) 453, RAMONU ATOLAGBE Vs. SHORUN 1985. 1 NWLR (Pt. 7) 360. RITA NOSAKHARE PEMU, J.C.A.
WHEN AN APPELLATE COURT WILL INTERFERE WITH THE DECISION OF THE LOWER COURT
It is trite that an appellate Court, generally speaking, is loath to interfere with the judgment of the lower Court except where it is shown, as in this case, that:
– the decision is perverse; or
– it is not based on a proper appraisal of the evidence; or
– there is a misapplication of the law to findings of fact properly made or
– there has been a miscarriage of justice occasioned by an error in procedural or substantive law – Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 339 at 375 Para B-C; (2015) All FWLR part 793 Page 1824 at 1849-1850 Para H-A per Kekere-Ekun JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
WHEN AN APPELLATE COURT WILL INTERFERE WITH THE DECISION OF THE LOWER COURT
In the words of the learned Jurist, My Lord Hon. Justice Chima Nweze JSC in Oguntade v Oyelakin (2020) 6 NWLR Part 1719 Page 1 at 71-72 Para H-H:
“An appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence, put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious” OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, Owerri Judicial Division, delivered on the 31st day of January 2019 in Suit No. HOW/142/2018.
FACTS LEADING TO THIS APPEAL
On the 14th of January, 2018, there was a misunderstanding between the Appellant and the Respondents who are blood relations except the 4th Respondent.
The 4th Respondent is a tenant to the 1st Respondent. The 2nd Respondent is the 1st Respondent’s wife. The 2nd, 3rd Respondents including the Appellant are siblings of the same parents.
The misunderstanding between them led to a report to an invitation by the Police at Nekede Police Station by one Mr. Osuala – who was the 6th Respondent (now deceased) in the Court below.
As a result of the Report to the Police, the Respondents were arrested and detained but later released on bail.
There were breaches of the Respondents’ fundamental rights on the 14th of January, 2018; 15/1/2018; 27/2/2018 and the 1st of March, 2018.
As the Nekede Police Division was investigating the report in respect of the events of 14/1/2018; 15/1/2018, the Appellant wrote a petition to the Area Commander to take over the investigation of the case from the Nekede Police Division when the Police had concluded their investigation. The Area Commander prepared a charge and arraignment NOTICE to the Respondents to appear in Court at Magistrate Court, Ihiagwa.
While appearing at Ihiagwa Magistrate Court, the Police from Area Command, pursuant to the petition of the Appellant, went to the Court to arrest the Respondents on the 27th of February 2018 and again on 1st of March, 2018, in their homes.
The Respondents were compelled to file an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 because of the acts of the Police – pages 1-15 of the Record of Appeal.
The 1st – 4th Respondents filed their counter-affidavit and written address and after adoption of the written address the Court below granted part of the reliefs claimed by the Respondents in Reliefs C, D, G, H and I. – Pages 5 of the Records of Appeal.
The Appellants are dissatisfied with the decision of the Court below and have appealed same. Pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice of Appeal on the 24th of April, 2019, and same was amended on the 3rd of March, 2020, but deemed amended on the 21st of July, 2020 with Four (4) Grounds of Appeal.
The Appellant filed his brief of argument on the 3rd of March, 2020 but deemed filed on 21st of July, 2020. It is settled by Chidi B. Nworka Esq.
The Respondents’ brief was filed on the 7th September, 2020. It is settled by J.C. Uwazuruonye Esq. The Appellant filed a reply brief on 16th of March 2021.
The Appellant distilled two (2) issues for determination from the grounds of Appeal, viz:-
1. Whether the trial Court did not err in holding that there was a breach of the fundamental rights of the Respondents. (Derived from Grounds One, Two and Four of the Grounds of Appeal).
2. Whether the orders for apology and professional fees made by the trial Court are constitutionally valid. (Derived from Ground Three of the Grounds of Appeal).
The Respondents proffered two (2) issues for determination from the Grounds of Appeal.
1. WHETHER the Appellant herein did not misconstrue the judgment of the lower Court based on part of the reliefs granted in favour of the Applicants herein Respondents by relying on obiter instead of the ratio of the decision.
2. WHETHER the Respondents are not entitled to the orders of written apology and payment of their professional as decreed by the Court below including the award of damages even if not claimed by the Applicants herein Respondents.
I shall consider this appeal based on the issues for determination proffered by the Appellant.
ISSUE NO ONE:
The Appellant submits that it is only when a person who claims that his fundamental right has been in infringed proves same that the Court can proceed to grant his reliefs.
That what the Court took umbrage under, was the report Appellant made to the Area Commander that Nekede Police were handling the matter too slowly and they had requested the Area Commander to take over the matter for proper investigation.
It is surprising that the Court below interpreted the contents of his letter as instigating the arrest of the Respondent. That a person who reports a matter to the Police is not only entitled, but also duty bound to ensure that his complaint is prosecuted with dispatch.
That the Appellants complaint has been justified by the admission of the police, that there was delay in the conclusion of investigation and preferring of charges.
That there is no way the Appellants’ letter can be termed an inducement by him on the Area Commander to re-arrest the respondent.
That it was the Respondent who absconded from the Police thereby obstructing Justice. That is, assuming the story of the Respondent was correct.
That there was no basis on which the Court awarded damages against the Appellant as damages can only be awarded for an actual infringement.
ISSUE NO TWO:
Submits that the unavoidable condition precedent to the receipt of the apology relief is that the person must have been unlawfully arrested or detained. That in the instant case, the question of the alleged initial arrest or detention prior to the charge is not an issue as the trial Court observed. That the issue is what followed after the Appellant’s report to the Area Commander.
That the Respondents were not arrested or detained. That all the parties are ad-idem on this matter.
There was no basis for the Court’s grant of relief of apology hence it was not predicted on any breach or facts or legal basis.
RESOLUTION OF ISSUE NO ONE:
Exhibit “B” is the letter to the Area Commander, Nigeria Police Force Owerri, dated 23rd January, 2019. I deem it pertinent to reproduce same verbatim.
“Mr. Richard Eboh
Umuezerokam, Umuoma Nekede
Owerri West LGA
Imo State
23rd January, 2018.
The Area Commander
Nigeria Police Force
Owerri.
Sir,
SERIOUS REPORT OF THREATENING VIOLENCE/CONDUCT LIKELY TO CAUSE BREACH OF PEACE
With deep pains in my heart, I am constrained to bring to your notice the devious character of Mr. Christian Eboh, his wife Mrs. Abigail Eboh and Mr. John Monday all of same address.
On the 14th January, 2018, these mentioned persons fought me with cutlass and attempted to pour acid chemical on me, but people from my village rescued me from their hand. I reported this case to the Police Division Headquarters Nekede, I have lost interest in the way the Police are handling the case at Police Station Nekede, as such I am afraid of my life and my family.
Sir, kindly use your good office and save my life and my family, I am pleading you bring down this case to your office for proper investigation to be carryout please.
Thanks for your consideration
Yours faithfully,
signed
MR. RICHARD EBOH.”
Pages 36 of the Record of Appeal.
From the tenor of Exhibit “B” it is a letter of complaint to the Area Commander, Nigeria Police Force, Owerri, about the Character of the Respondent and his wife Abigail, and of one John Monday of same Address, indeed he reported that these persons fought him with cutlass and attempted to pour acid chemical on him. He reported expressly in Exhibit “B” that as a result of this, he and his family are afraid for their lives and urges the Police to transfer the case to the office of the Area Commander Owerri for further investigation. How may I ask does this amount to inducement by the Appellant to re-arrest the Respondents?
To hold that there was a breach of the fundamental right of the Respondents based on his re-arrest by Police is misconceived and I so hold. Exhibit “B” like every other document, speaks for itself.
This issue is resolved in favour of the Appellant and against the Respondents.
ISSUE NO TWO:
It is trite that you cannot put something on nothing. Both would collapse. See UAC Vs. MCFOY (1962) A-C 158.
There is nothing to show that the Respondents were wrongfully or unlawfully arrested or detained.
The question is what followed after the Appellants’ report to the Police Area Commander Owerri.
It is trite that where there is a wrong there is a remedy. In the present instance, there is no wrong established against the Respondent. The Court below was therefore wrong to have awarded damages based on nothing. The damages (in his words payment for professional fees) was ill founded and therefore wrongly awarded.
Decidedly any finding without evidential support is perverse and must be set aside – UDO Vs. C.R.S. NEWSPAPER CO. (2001) 22 WRN. 53. (C.A.).
A decision is said to be perverse when it runs counter to evidence or where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shuts its eyes to the obvious, or when it has occasioned miscarriage of Justice (as in the instant case).INCAR LTD Vs. ADEGBOYE (1985). 1 NWLR (Pt. 8) 453, RAMONU ATOLAGBE Vs. SHORUN 1985. 1 NWLR (Pt. 7) 360. The so-called damages awarded is hereby set aside.
This issue is resolved in favour of the Appellant and against the Respondent.
The appeal succeeds and same is allowed. The judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 31st day of January, 2019 in Suit No. HOW/142/2018 is hereby set aside.
Costs of N100,000 in favour of the Appellant.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts and contentions of Counsel to the parties have been well set out.
I am in agreement with my learned brother’s reasoning and conclusion.
A reasonable and genuine complaint made bona fide, to the Police cannot, I hold, be a ground for an action against the person making the complaint to the Police – John Holt Plc v. Allen (2014) 17 NWLR Part 1437 Page 443 at 471 Para F per Eko JCA (as he then was).
It is trite that an appellate Court, generally speaking, is loath to interfere with the judgment of the lower Court except where it is shown, as in this case, that:
– the decision is perverse; or
– it is not based on a proper appraisal of the evidence; or
– there is a misapplication of the law to findings of fact properly made or
– there has been a miscarriage of justice occasioned by an error in procedural or substantive law – Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 339 at 375 Para B-C; (2015) All FWLR part 793 Page 1824 at 1849-1850 Para H-A per Kekere-Ekun JSC
In the words of the learned Jurist, My Lord Hon. Justice Chima Nweze JSC in Oguntade v Oyelakin (2020) 6 NWLR Part 1719 Page 1 at 71-72 Para H-H:
“An appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence, put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious”
I am therefore in agreement with my learned brother that this appeal succeeds. I also set aside the judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 31st day of January, 2019 in Suit No: HOW/142/2018 by K. A. Ojiako J.
I abide by the consequential order of costs awarded.
IBRAHIM WAKILI JAURO, J.C.A.: I read in draft the judgment just delivered by my learned brother, RITA N. PEMU, JCA. I agree with his reasoning and conclusion that this appeal is meritorious and is allowed by me.
I abide by order as to costs.
Appearances:
Chidi B. Nworka, Esq., with him M.O.N. Inyamah (Mrs.) For Appellant(s)
…For Respondent(s)
