EMMANUEL & ANOR v. OBIBUBA & ORS
(2020)LCN/14316(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/AW/207/2011
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
1. MR. FABIAN EMMANUEL 2. MRS. JUDITH U. EMMANUEL APPELANT(S)
And
1. CHIEF LAWRENCE OBIBUBA 2. COMMISSIONER OF POLICE ANAMBRA STATE 3. INSPECTOR GEN. OF POLICE ZONE 9 UMUAHIA 4. INSPECTOR SUNDAY IHEANACHO RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSON CAN BE UNLAWFULLY ARRESTED AND DETAINED WHEN HE HAS COMMITTED NO OFFENCE
It is trite that no person can be unlawfully arrested and detained when he has committed no offence. On the other hand, a person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of law. Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a criminal offence. See Section (35) (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), an arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided under Section 35(a)(b)(c)(d) (e) and (f) of the said Constitution. Any restraint therefore of the said rights under any other circumstance would be unlawful and unconstitutional and amounts to a violation of the right of that citizen. PER NWOSU-IHEME, J.C.A.
THE DUTY OF THE POLICE UNDER THE POLICE ACT
Section 4 and 24 of the Police Act give the Police the duty to arrest offenders, preserve law and order and protect lives and property. Where it happens, a citizen who has been arrested by the Police cannot bring the Police or informant to Court for breach of fundamental right. True as it may seem, such arrest must be done legitimately and in accordance with laid down rules as provided for in the Constitution. In the case of LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND (2010) LPELR -8642 (CA), this Court, Port Harcourt Division held:
“Notwithstanding the Power of the Police as spelt out in Sections 4 and 24 of the Police Act, where this power is improperly used, the Court can stop the use of the power for that improper purpose, as that would no longer be covered by Section 35(1) (c) of the Constitution. In other words, an order restraining the Police from arresting on some particular occasion or for some particular improper purpose may be made by the Court.” PER NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The 1st and 2nd Appellants and the 2nd – 4th Respondents herein were the Respondents at the trial Court in the Suit filed by the 1st Respondent herein as Applicant. Judgment was entered against the said 1st and 2nd Appellants and the 2nd, 3rd & 4th Respondents herein in favour of the 1st Respondent herein by P. N. C. Umeadi, CJ, then of the Onitsha Division of the High Court of Anambra State in Suit No. 0/234M/2009 delivered on the 4th of November, 2010.
Aggrieved by that Judgment, the Appellants have appealed against the said decision.
SUMMARY OF FACTS:
The 1st and 2nd Appellants were tenants of the 1st Respondent at plot 283 Ofodite Agba Inland Town Onitsha. The 1st Respondent was said to have issued the Appellants with a quit notice to vacate the 1st Respondents premises due to their destructive, troublesome and intolerable style of living in the 1st Respondents premises.
This did not go down well with the Appellants and degenerated to series of conflicts and fights between both families. The Appellants thereafter reported the 1st Respondent and his
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family to the Police at Awka and parties were asked to go and maintain peace. The strained relationship led to several complaints to the Police by both parties the climax of which was the report made by the Appellants to the Police at Zone 9 Umuahia which resulted in the arrest of the 1st Respondent by the said Police in Zone 9 Umuahia and taken to Umuahia in company of the 1st Appellant on the 21st of April, 2009 and released on the 22nd of April, 2009.
The 1st Respondent stated that he was arrested at the Premises of the Police Area command Onitsha, manhandle and pushed inside the vehicle and that at the Police Zone 9 Umuahia he was forced to sit on the floor, made to remove his shirt and pair of trousers while leaving him with only his underwear’s and that he was humiliated. That it took the intervention of his counsel Andrew Okagbue Esq before he was released and asked to reconsider the issue of the quit Notice issued to the Appellants.
Consequently, the 1st Respondent approached the trial Court for the enforcement of his fundamental rights, claiming as follows:
a. “A declaration that the pushing and rough handling of the
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Applicant at the Police station at Onitsha Area command and the Zone 9 Police station Umuahia by the 5th Respondent Inspector Sunday Iheanacho and his colleagues and the instigation of the 1st & 2nd Respondents on the 21/4/09 constitutes a gross violation and infringement of the Applicant’s Fundamental right as enshrined in Section 34 of the Constitution of Nigeria 1999.
b. A declaration that the detention of the Applicant at the Zone 9 Police station by the 5th Respondent Sunday Iheanacho and his colleagues at the instigation of the 1st & 2nd Respondents from about 10.30 a.m on 21/4/09 to 5.pm on 22/4/09 constitutes a gross violation of due process of law and amounts, to an infringement of the Applicant’s Fundamental rights as enshrined in Section 35 of the Constitution of Nigeria 1999.
c. An injunction restraining the Respondent or through their agents from using the machinery of the Nigeria Police in arresting, detaining, torturing, demanding or extorting money from the Applicant or any relation from applicant or otherwise from harassing the applicant or any of his relation in connection with the facts of this case.
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- Ten Million Naira only (N10,000,000:00) against the Respondents jointly and severally on the footing of exemplary and aggravated damages for the infringement of the applicant’s fundamental rights”.The trial Judge in a considered Judgment agreed that the 1st Respondent’s fundamental rights have indeed been breached by the 1st & 2ndAppellants and the 2nd – 4th Respondents and proceeded to grant his prayers and awarded (N400,000) jointly and severally against the 1st & 2nd Appellants and the 2nd – 4th Respondents. This appeal is predicated on the said Judgment.
Learned Counsel for the Appellants Dr. Z. Chukwuemeka Anyogu Esq distilled three issues for determination as follows:
1. “On the evidence before the Court, was the trial Judge correct in coming to the conclusion in law that the first Respondent’s fundamental right was infringed by the appellants?
2. Assuming (without conceding) that the first Respondent’s fundamental right was infringed, is the award of N400,000 (Four hundred thousand naira), against the appellants or any one of them justified?
3. Is the Judgment not perverse?”
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Counsel for the 1st Respondent and the other Respondents did not file brief. In an application filed on the 5th of June, 2017 Counsel for the Appellants prayed this Court that this appeal be determined on the Appellants’ brief alone. The said application was granted on the 17th of March, 2020 and Counsel for the Appellants then proceeded to adopt his brief filed on the 1st of July, 2013.
Learned Counsel for the Appellants in his argument on the issues he raised, contended that the Appellants have shown by their affidavit in opposition to the motion, that they lodged a complaint of threat to life against the 1st Respondent to the Police at Zone 9 Umuahia and that there was no evidence indicating that the complaint by the 2nd Appellant was fabricated, false or unfounded. Counsel argued that the trial Judge had found as a fact that the 1st Respondent was not wrongly or unlawfully treated.
He submitted that there was no evidence of instigation and that accompanying the Police in a red Volvo vehicle, the ownership of which was unknown and no evidence indicating that same was procured or produced by the 2nd appellant was insufficient to
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draw a conclusion of instigation.
I have painstakingly read the numerous affidavit both in support and in opposition of the Application for the enforcement of the Application for the enforcement of the fundamental rights of the 1st Respondent at the trial Court.
In determining this appeal, the relationship that existed between the Appellants as Tenants and the 1st Respondent as landlord in the aforementioned premises before the complaint or report to the Police at Zone 9 Umuahia that led to the arrest and detention of the 1st Respondent must be x-rayed. It is on record that the 1st Respondent issued quit notice to the Appellants who were his tenants, this did not go down well with the Appellants and as a result the relationship between both families was strained.
It is trite that no person can be unlawfully arrested and detained when he has committed no offence. On the other hand, a person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of law. Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably
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necessary to prevent him from committing a criminal offence. See Section (35) (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), an arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided under Section 35(a)(b)(c)(d) (e) and (f) of the said Constitution. Any restraint therefore of the said rights under any other circumstance would be unlawful and unconstitutional and amounts to a violation of the right of that citizen.
In the instant case, the question is whether the 1st Respondent has established and proved that his fundamental rights were breached or violated by the report lodged to the Police at Zone 9 Umuahia that cumulated to his arrest and subsequent detention. The Appellants did not deny lodging a complaint against the 1st Respondent to the Police at zone 9 Umuahia, rather they have maintained that they lodged a complaint of threat to life against the 1st Respondent and his family.
On the other hand, paragraph 3 (g) of the grounds for the
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Applicatory at pages 3 of the Record of Appeal painted a better and more natural picture of the events of report against the 1st Respondent and subsequently his arrest and detention. The said paragraph 3(g) mentioned a quit Notice which the 1st Respondent issued to the Appellants. The other facts and events in the suit at the trial Court came about as a result of the said quit Notice which turned the relationship of landlord and tenant sour.
It is the case of the 1st Respondent that he was arrested and detained from 10.30 a.m. on 21/4/09 until 5. pm on 22/4/09. The 2nd – 4th Respondent in Exhibit B attached to the counter affidavit of 2o/10/09 show that the 1st Respondent made his statement at Zone 9 Umuahia on 21/4/09. Exhibit C also attached shows that 1st Respondent was granted bail on 22/4/09. There is nothing on record by the 2nd, 3rd & 4th Respondents to debunk the time stated by the 1st Respondent. The suit at the trial Court revolved in the way and manner the 1st Respondent was arrested and detained. Did the Appellants and the 2nd – 4th Respondents over step their bounds? Did the Police conduct themselves and did they effect the
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arrest professionally? Paragraph 1 (f) of the further affidavit of the 1st Respondent dated 6/7/09 states as follows:
“(f) That the 1st & 2nd Respondents accompanied the 5th Respondent and his colleagues on the day the applicant was arrested and taken to Umuahia. They came in a dark red Volvo wagon where in the 2nd Respondent stayed in the front seat with the driver while the applicant was sandwiched at the back seat all through the journey from Onitsha to Umuahia”.
The Appellants did not debunk this averment. It is therefore taken to be the truth. The said paragraph 1(f) of the further affidavit shows clearly that the Appellants procured the 2nd, 3rd & 4th Respondents to arrest the 1st Respondent and take him to Umuahia to detain him from the 21/4/09 to 22/4/09 and the Police carried out their function in a most unprofessional manner. It was not the duty of any of the Appellant to join the Police in the vehicle in taking the 1st Respondent from Onitsha to Umuahia. The Police allowed themselves to degenerate to the level of taking the 1st Respondent from Onitsha to Umuahia in a mere landlord & Tenant conflict. Paragraph 3(g) of
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the Grounds for the application which clearly stated that the 1st Respondent issued quit notice to the Appellants. The issuance of the quit Notice by the 1st Respondent to the Appellants was clearly the reason why the relationship between the landlord and the Tenants went sour and was clearly the reason why the Appellants lodged the report to the Police. It was a clear demonstration of revenge, bitterness, malice that had accumulated over a period of time clearly because of the issuance of the quit notice using the Police in faraway Zone 9 Umuahia as a willing tool to actualize their vendetta.
The facts as stated by the 1st Respondent in his affidavit and Grounds for the Application and even the defence of the Appellants in their counter affidavit do not in any way constitute a criminal offence to justify the petition to the Police and the subsequent arrest and detention of the 1st Respondent. The trip to far away Police Headquarters Zone 9 Umuahia when all the parties reside in Onitsha Anambra State with so many Police stations speak volumes of the level of bitterness and revenge nurtured by the Appellants.
Apart from alleging “threat to
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life” the Appellants did not go further to state how the 1st Respondent threatened their lives to warrant that journey all the way to Police Zone 9 Umuahia to lodge the report.
The fact that the Police at the Police Headquarters Zone 9 Umuahia on their part embarked on that frivolous journey all the way to Anambra State when there are so many Police command in Anambra State, shows the level of decay in the Nigeria Police and how cheap it is to procure the Police at the slightest report no matter how frivolous. In a situation such as this even though the 1st Respondent was detained from 21/4/09 to 22/4/09, the length of time spent in detention is immaterial in an unjustified circumstance such as this. See RASK OSAYIANDE ISENALUME V. JOYEC AMADIN & ORS (2001) CHR. PG. 458.
Learned Counsel for the Appellants contended that the Appellants merely lodged a complaint to the Police and that the 1st Respondent did not show how the Appellants instigated the Police to detain the 1st Respondent. He posited that it was the duty of the Police to prevent and detect crime. For the Appellants to take benefit of the said Law empowering the Police to
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prevent and detect crime etc, they must be shown to have made that complaint in good faith and without malice.
Section 4 and 24 of the Police Act give the Police the duty to arrest offenders, preserve law and order and protect lives and property. Where it happens, a citizen who has been arrested by the Police cannot bring the Police or informant to Court for breach of fundamental right. True as it may seem, such arrest must be done legitimately and in accordance with laid down rules as provided for in the Constitution. In the case of LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND (2010) LPELR -8642 (CA), this Court, Port Harcourt Division held:
“Notwithstanding the Power of the Police as spelt out in Sections 4 and 24 of the Police Act, where this power is improperly used, the Court can stop the use of the power for that improper purpose, as that would no longer be covered by Section 35(1) (c) of the Constitution. In other words, an order restraining the Police from arresting on some particular occasion or for some particular improper purpose may be made by the Court.”
From all that have been x-rayed in this Judgment, it is clear
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that the complaint made by the Appellants to the Police was bereft of good faith. It was simply a product of malice and vendetta occasioned by the issuance of quit Notice by the 1st Respondent who was the landlord to the Appellants as Tenants.
The 1st Respondent has shown that he was arrested and detained unlawfully. There is no doubt that he suffered mental torture in addition to humiliation and embarrassment. He is no doubt entitled to compensatory damages. Where as in the present case, the Appellants fail to show justification for breaching the fundamental rights of the 1st Respondent, monetary compensation could be claimed.
It must be noted that even where there is no physical injury, substantial damages could be awarded for injury to the dignity of the person or for the discomfort or inconvenience done to the said Respondent. The detention of the 1st Respondent at the Police Headquarters Zone 9 Umuahia by the 4th Respondent inspector Sunday Iheanacho at the prodding and instigation of the Appellants from 21/4/09 to 22/4/09 constitutes a violation of the due process of law and, an infringement of the 1st Respondent’s fundamental rights and
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he is therefore entitled to the award of damages jointly and severally against the Appellants and the 2nd, 3rd& 4th Respondents.
In the premise, the sole issue is resolved against the Appellants and in favour of the 1st Respondent. This appeal is bereft of merit and is hereby dismissed. The Judgments of the trial Court in Suit No. 0/234M/2009 delivered the 4th of November, 2010 by P. N. C. Umendi J, (later CJ) then sitting at the Onitsha Division of the High Court of Anambra State is hereby affirmed.
I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME, (Ph. D) JCA.
I agree with her reasoning and conclusion.
I also dismiss the appeal, and affirm the judgment of the High Court of Justice of Anambra State, sitting in Onitsha delivered on the 4th of November 2010.
I abide by the consequential order made as to costs that there shall be no order as to costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother Nwosu-Iheme J.C.A.
I agree with and adopt the
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finding and conclusion reached by my learned brother in the lead judgment that this appeal is hereby dismissed.
The judgment delivered by the lower Court on 4th November, 2010 in suit No. 0/234M/2009 is also affirmed by me.
I abide by the order as to cost.
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Appearances:
Prof. Z. C. Anyogu, with him, C. I. Achu For Appellant(s)
Respondents absent For Respondent(s)