EKANEM & ANOR v. ESSIEN & ORS
(2022)LCN/16455(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/C/221/2017
Before Our Lordships:
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. HON. UNYIME EZEKIEL EKANEM 2. ITA PETER EKPENYONG APPELANT(S)
And
1. MR. SAMUEL EKPENYONG ESSIEN 2. COMMISSIONER OF POLICE, AKWA IBOM STATE 3. INSPECTOR OGAR ETTA (IPO SRS, UYO) RESPONDENT(S)
RATIO:
WHETHER AN APPEAL CAN BE MADE IN ABSENCE OF A DECISION
An appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point there cannot possibly be an appeal against what has not been decided against a party. See the Oredoyin v. Arowolo (1989) 4 NWLR (pt.114) 182. JAMES SHEHU ABIRIYI, J.C.A.
POSITION OF LAW ON INTERPRETATION OF STATUTE
The general principle is that where words used are plain and unambiguous, they must, as far as possible be given their natural and ordinary meaning, unless to do so would lead to absurdity. It has been held that the plain word used by the legislature is the best guide to their intention. The settled position of the law is that a statute must be interpreted as it is. Neither the Court nor a party may import what it does not contain. Per Kekere Ekun, JSC in ALHAJI ABBA MOHAMMED SANI v. THE PRESIDENT FRN & 1 SC.68/2010 delivered on 7th February, 2020. ADEMOLA SAMUEL BOLA, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 29th March, 2017 in the High Court of Akwa Ibom State in the Itu Judicial Division sitting at Itu. In the High Court (the Court below), the 1st Respondent applied for the enforcement of his fundamental rights against the Appellants, Commissioner of Police, Akwa Ibom State and Inspector Ogar Etta.
The 1st Respondent sought for the following reliefs:
1) That his arrest at the instigation of the Appellants was an infringement of his fundamental rights guaranteed under Section 35(1) (4) and (5), and 34(1) of the Constitution.
2) A declaration that the threat of further arrest if he did not pay the sum of N1,012,085 to the 1st Appellant is null and void.
3) A declaration that the recovery of debt is not part of the duties of the Nigeria Police.
4) An order of perpetual injunction restraining the Appellants and the two police officers from further harassing, arresting and detaining him.
5) N50 Million compensation.
The application was brought upon five grounds.
The case of the 1st Respondent as can be made out from the affidavit in support of the application was that he leased out his Petrol Filling Station to the 1st Appellant for a period. When he wanted to recover possession, the 1st Appellant asked for money he spent on structural improvements he carried out on the property. The 1st Appellant and he (1st Respondent) did not agree on the amount demanded by the 1st Appellant. The Appellants left promising to return. They returned with “a truckload” of policemen, handcuffed the 1st Respondent and took him to Ikot Akpan Abia where he was detained.
The case of the 1st Appellant was that the 1st Respondent breached their agreement for the lease of the property for another year. Both 1st Appellant and 1st Respondent had a meeting to sort out the issue of the lease. They agreed on the sum of N1,012,085. The 1st Respondent was to give the 1st Appellant a postdated cheque. The following day while the 1st Appellant was at the Filling Station, the 1st Respondent with four able bodied young men invaded the station, three of the able-bodied men each put his hand in his pocket and brought out a short gun. He was ordered never to return to the Filling Station.
It was this attack that he reported to the police.
In their defence the 2nd and 3rd Respondents filed a counter affidavit. Their defence as can be made out from the counter affidavit was that a case of unlawful possession of firearms/obtaining money by false pretence/threat to life and forceful seizure of property was reported to them by the 1st Appellant through a petition against the 1st Respondent. The statement of the 1st Respondent was recorded the same day. He applied for bail and was granted bail that might but produced the surety the following day 17th January, 2017. It was the 1st Respondent who volunteered to pay back for the repairs made by the 1st Appellant. There was no need to torture him.
The Court below considered the affidavit evidence of the parties and addresses of their learned counsel and entered judgment in favour of the 1st Respondent against Appellants and the police.
The Appellants appealed against the decision. The notice of appeal relied upon by the Appellants is the Further Amended Notice and Grounds of Appeal filed on 3/11/2021 and deemed duly filed and served on 10th November, 2021. It contains nine grounds of appeal. From the nine grounds of appeal, the Appellants presented the following issues for determination in a further amended brief of argument filed on 3rd November, 2021:
“1. Whether the Court below was justified to have proceeded to entertain the Suit despite the appellants’ application, objection and persistence to transfer the matter to the appropriate and more convenient venue (Judicial Division). [Ground iii)].
2. Whether the award of the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira), made by the Court below, in the footing of exemplary damages, as compensation to the 1st Respondent against the Appellants was justified in law. [Ground (iii)].
3. Whether the judgment of the Court below is perverse, against the weight of evidence and occasioned a miscarriage of justice when the Court held that the 1st and 3rd Respondents had breached the 1st Respondent’s fundamental rights. [Grounds (iv), (v), (vi), (vii) and (viii)].
4. Whether the Court below was justified in awarding of the sum of N1,500,000.00 exemplary damages jointly and severally against the 2nd Appellant herein. [Ground (ix)].
The 1st Respondent adopted the issues formulated by the Appellants.
The Appellants filed an Appellants’ further amended reply brief on 3rd November. It was deemed duly filed on 10th November, 2021.
On Issue 1, learned counsel for the Appellants contended at great length that the matter was heard in the wrong judicial division of the High Court of Akwa Ibom State. That the 1st Respondent having gone to the Itu Judicial Division to institute the action instead of the Uyo Judicial Division where the action took place, was forum shopping.
On issue 2, learned counsel for the Appellants submitted that to justify an award of exemplary damages, a claimant must show that the defendant committed the wrongful act complained of and that the defendant’s conduct has been high-handed, outrageous, oppressive, malicious or generally against the law.
From the circumstances of this case, it was contended, there was nothing on which the Court below would hold that the Appellants were liable to pay exemplary damages of N1,500,000 as compensation to the 1st Respondent for the alleged violation of the 1st Respondent’s fundamental right.
On issue 3, learned counsel for the Appellants submitted that by the provisions of the Police Act, the 1st Appellant has the right and duty to report the Act of the 1st Respondent to the police and the police is empowered to arrest and interrogate the 1st Respondent. Consequently, an arrest properly made cannot constitute a breach of fundamental rights.
Fundamental rights provisions, it was submitted, should not be used by a person to shield himself from criminal investigation and prosecution.
The issues in the instant case, it was contended arose from a tenancy or lease transaction between the 1st Respondent and 1st Appellant. That the 1st Respondent engaged thugs to drive the 1st Appellant away at gun point from the Petrol Filling Station after he had invested much in renovating the Filling Station. That the 1st Appellant and the police therefore acted lawfully when the 1st Appellant made the report and the police decided to investigate the allegations. That the invitation or arrest of the 1st Respondent by the police and his detention for a few hours and the inquiry into the circumstances surrounding the acts of the Respondent were normal and responsible acts in the course of police investigations. These did not amount to an infringement of the fundamental rights of the 1st Respondent, it was contended.
On issue 4, learned counsel for the Appellants argued that there was no allegation against the 2nd Appellant who was 4th Respondent in the Court below. Yet, he has been made to spend money on litigation and ordered by the Court to jointly pay the sum of N1,500,000 and costs of N50,000. The liability of the 2nd Appellant in the matter was not considered by the Court below, it was contended. Otherwise, the Court below would not have found the 2nd Appellant liable, it was argued.
On issue 1, learned counsel for the 1st Respondent contended that this action is a fundamental rights action. That it is sue generis. Therefore the cases cited by learned counsel for the Appellants are not applicable to this case.
On issue 2, it was contended by learned counsel for the 1st Respondent that from the counter affidavit of the Appellants, the Appellants and the 1st Respondent had a commercial relationship which was outside the powers conferred on the police. That from the counter affidavit of 2nd and 3rd Respondents, the 1st Respondent was arrested for his failure to issue the agreed cheque to the Appellants. The Court below was therefore justified when it awarded exemplary damages to the 1st Respondent, it was contended.
On issue 3, learned counsel for the 1st Respondent submitted that every Nigerian has the duty to report to the police any crime and the police is empowered by law to investigate same. But that the power of the police to investigate is limited only to crime and not civil matters like the instant case. The counter affidavit of the Appellants, it was submitted, is very clear as to what happened between the parties. The Court was referred to paragraphs 11, 12 and 18 of the counter affidavit of the Appellants.
The Appellants, it was argued, knew from the outset that the issues between the parties bordered on communal disagreement and nothing more.
It was submitted that there are civil means in which an aggrieved party can seek redress for loss or damage suffered and it is not for the police to dabble into civil transactions as in this case. The Court was referred to Nkpa v. Nkume (2001) 6 NWLR (pt. 710) 543 at 561. On issue 4, learned counsel for the 1st Respondent contended that from the affidavits of the 1st Respondent every dealing regarding the property was carried out for the 1st Appellant by the 2nd Appellant. Therefore the Court below had no difficulty in finding him guilty jointly and severally with the others.
The Appellants’ further reply brief was not a response to any new point arising from the 1st Respondents’ brief. See Order 19 Rule 5(1) of the Court of Appeal Rules. I will therefore discountenance it.
An appeal should be a complaint against the decision of a trial Court. Thus in the absence of such a decision on a point there cannot possibly be an appeal against what has not been decided against a party. See the Oredoyin v. Arowolo (1989) 4 NWLR (pt.114) 182. The Court below gave a considered ruling on the oral objection of the Appellants to the hearing of the application at the Itu Judicial Division on 21st February, 2017. The Appellants have not appealed against that ruling. See the Further Amended Notice of Appeal of Appellants. Secondly, before the Appellants oral objection to the hearing of the application at the Itu Judicial Division, the Appellants had filed a motion in the Uyo Judicial Division to the same end. Therefore, the oral objection at the Itu Judicial Division was an abuse of Court process. Thirdly, Judicial Divisions are created in various State High Courts to avoid concentration of cases in particular Divisions. It is not for the Court to set aside a decision of the Court merely because it was determined in a Division the aggrieved party feels was the wrong Division.
Fourthly, fundamental rights actions are sue generis and are not governed by the Civil Procedure Rules. The Appellants’ counsel was therefore wrong in relying on cases that deal with civil actions.
Issue 1 is therefore resolved against the Appellants and in favour of the 1st Respondent.
I will determine issues 2 and 3 together.
It is common ground on the affidavit evidence of the parties that the 1st Appellant and the 1st Respondent entered into a lease agreement wherein the 1st Respondent leased a Petrol Filling Station to the 1st Appellant. Apparently there was no happy ending to the lease. According to the 1st Respondent upon the expiration of the term granted to the 1st Appellant, the 1st Appellant in company of 2nd Appellant demand for N1,012,085 for structural improvement on the property. They did not reach a compromise before the 1st Appellant brought police who arrested him and compelled him to undertake to pay the amount to the 1st Appellant.
The police said it was the 1st Respondent who volunteered to pay back for the repairs.
The Appellants in their counter affidavit said that at a meeting with the 1st Respondent, the 1st Respondent accepted to refund to him N1,012,085.00.
Although the Appellants and 2nd and 3rd Respondents claimed that the 1st Respondent was not arrested because of this money but for a violent attack on the 1st Appellant, the Court below had no difficulty in seeing the falsehood in their claim.
The Court below found that although the petition against the 1st Respondent was prepared by a solicitor accusing the 1st Respondent of attacking the 1st Appellant with a pistol, the allegation on which the police granted the 1st Respondent bail was “obtaining under false pretence.” See exhibit E annexed to the counter affidavit of the 2nd and 3rd Respondents. It is surprising that the 1st Appellant was chased out of the filling station by gun wielding able bodied men as he claimed in the counter affidavit and he did not go straight to the police to report the alleged crime but instead went to consult a solicitor to prepare a petition for him on the alleged attack. It is surprising too that although the petition made reference to an attack by the 1st Respondent on the 1st Appellant by able-bodied men, the police released him on bail for an alleged offence of “obtaining by false pretense” and after a purported “plea bargain” in which the 1st Respondent agreed to pay to the 1st Appellant the money claimed by him.
The Court below was on firm ground when it found that the 1st Appellant was doing everything within human contemplation to have his alleged indebtedness by the 1st Respondent settled by all means even by leveling false criminal allegation against the 1st Respondent. It was wrong for the police to support the 1st Appellant in “this blind and heartless approach to recovering debt.” The report made by the 1st Appellant to the police leading to the arrest and detention of the 1st Respondent by the 2nd and 3rd Respondents was unjustified and done in bad faith. The 1st Respondent therefore rightly applied for the enforcement of his right to liberty against 1st Appellant and the 2nd and 3rd Respondents. See the decision of the Supreme Court Diamond Bank Plc v. H.R.H. Eze (Dr) Opara & Ors (2018) LPELR – 43907. See also Section 35(1) of the 1999 Constitution.
The Court below at page 197 of the record in its judgment found that the 1st Respondent was entitled to compensation under Section 35(6) of the Constitution but ordered the Appellants to pay compensation to the 1st Respondent as exemplary damages. Appellants have sought to make an issue of the use of the phrase exemplary damages. That should not be an issue. The order was for the Appellants and the 2nd and 3rd Respondents to pay compensation. The use of the phrase exemplary damages in the order was merely a surplusage.
Issues 2 and 3 are resolved against the Appellants and in favour of the 1st Respondent.
In paragraph 9 of the affidavit in support of the 1st Respondent’s application, the 1st Respondent deposed to the fact that 2nd Appellant and the 1st Appellant approached him with the bill of N1,012,085. In paragraph 18 of the 1st Respondent’s further affidavit he deposed to the fact that he was beaten by the 3rd Respondent in the presence of both Appellants to compel him to sign the undertaking to pay debts. He signed in the presence of 3rd Respondent and the Appellants. In paragraph 2 of the Further Affidavit the 1st Respondent deposed to the fact that the conduct of the Appellants had brought untold hardship to him. See also paragraph 5 of the further affidavit where the 1st Respondent deposed in part thus:
“The 4th Respondent has been the link between the 3rd Respondent business with the applicant and the demised and all transactions in relation to this issue was accordingly carried out by the 4th Respondent for an unbehalf of the 3rd Respondent.“
The 3rd and 4th Respondents are the Appellants in the appeal.
On the evidence highlighted above, learned counsel for the Appellants cannot be heard to contend that the 2nd Appellant had no hand in the travails of the 1st Respondent.
Issue 4 is also resolved against the Appellants and in favour of the 1st Respondent. All four issues having been resolved against the Appellants and in favour of the 1st Respondent, this appeal is hereby dismissed for want of merit.
Parties shall bear their respective costs of the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the preview of the judgment just delivered by my learned brother James S. Abiriyi, JCA, and I agree with the reasoning and conclusion in dismissing the moribund appeal.
By virtue of Section 35 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) any person who is unlawfully arrested and detained is entitled to compensation and public apology from the appropriate authority or persons. Whereas in the present case, the lower Court having found that the arrest and detention of the 1st respondent was unjustified, he was entitled to compensation irrespective of the use of phrase exemplary damages.
I too dismiss the appeal and I abide by the consequential order contained in the lead judgment.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, JAMES SHEHU ABIRIYI, JCA. I share his opinion and concur with his conclusions and reasoning as elucidated in the judgment.
Issue No. 1 of the Appellants’ appeal raises the question whether the Court below was justified to have proceeded to entertain the suit despite the Appellants’ application, objection and persistence to transfer the matter to the appropriate and more convenient venue (Judicial Division). It was the contention of the Appellants’ Counsel that the matter was heard in the wrong judicial division of the High Court of Akwa Ibom State. That the 1st Respondent having gone to Itu Judicial Division to institute the action instead of Uyo Judicial Division where the action took place was forum shopping. In other words, the Appellants’ Counsel objected to the hearing of the matter by the lower Court sitting at Itu. Suffice to say this is an objection to the jurisdiction of the Itu High Court.
Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:-
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress”.
The emphasis here is that “any person … may apply to a High Court in that state of redress”. The Appellants alleged that the action at the lower Court was heard in a wrong judicial division of the High Court of Akwa Ibom State. That the 1st Respondent having gone to Itu Judicial Division to institute the action instead of Uyo Judicial Division where the action took place, was forum shopping.
The Enforcement of Fundamental Right is governed in the main by Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 and procedurally regulated by the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Order II Rule 1 of the Rules provides:-
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act and to which he is entailed, 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”.
Order 1 Rule 2 defines a Court to mean the Federal High Court, or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.
There is nowhere in Section 46 of the Constitution or Order 1 Rule 2 or Order II Rule 1 of the Rules was the expression “judicial division of the State High Court” utilized to define which particular Court or judicial division has jurisdiction to adjudicate in respect of an action for the enforcement of a fundamental right in a State or Federal High Court. In other words “a judicial division of the High Court” has no place when it comes to applying to the Court in the State where the infringement occurred, or is likely to occur for redress. The Applicant is at liberty to apply to any Court in the State notwithstanding the judicial division to ventilate his grievance or the seek redress. All what is required is to apply to the High Court in the State.
The contention of the Appellants’ Counsel on the issue of applying to a specific judicial division is extraneous to the provisions of Section 46 of the Constitution and the Enforcement Rules.
The principles guiding the interpretation of statues have been restated on numerous occasions by the Apex and the Appellate Courts. The general principle is that where words used are plain and unambiguous, they must, as far as possible be given their natural and ordinary meaning, unless to do so would lead to absurdity. It has been held that the plain word used by the legislature is the best guide to their intention. The settled position of the law is that a statute must be interpreted as it is. Neither the Court nor a party may import what it does not contain. Per Kekere Ekun, JSC in ALHAJI ABBA MOHAMMED SANI v. THE PRESIDENT FRN & 1 SC.68/2010 delivered on 7th February, 2020.
The contention of the Appellants in respect of the 1st Issue canvassed, is clearly off tract of the provision of Section 46(1) of the Constitution and Order II Rule 1 of the Enforcement Rules. The argument lacks merit and is unsustainable. The issue is accordingly resolved against the Appellants.
In conclusion, I abide by the final decision and consequential orders made by my lord, ABIRIYI, JCA. I adopt them as mine. The appeal is dismissed.
Appearances:
Utibe-Abasi Ema, Esq. For Appellant(s)
Abasiodiong Ekpenyong, Esq. – for 1st Respondent
2nd and 3rd Respondents served on 15th November, 2021 at their Legal Department, Headquarters, Uyo, Akwa Ibom State For Respondent(s)
