LawCare Nigeria

Nigeria Legal Information & Law Reports

EZE & ORS v. OBI (2022)

EZE & ORS v. OBI

(2022)LCN/16507(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, November 24, 2022

CA/A/639/2011

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. BONIFACE EZE 2. INSPECTOR-GENERAL OF POLICE 3. D.S.P YUGUDA 4. A.C.P. AYUBA APPELANT(S)

And

OBI ADOLPHUS CHIEF RESPONDENT(S)

 

RATIO:

A PERSON CANNOT GO TO COURT TO SHIELD HIMSELF FROM CRIMINAL INVESTIGATION

As I near the terminus for this judgment, let me state that the foofaraw made as to whether the Respondent could have been charged to Court when the Appellant had been served with processes in respect of the application for the enforcement of his fundamental rights is contextually academic. The law remains that a person cannot go to Court to shield himself from criminal investigation and prosecution as it would be an interference with the powers given to law enforcement officers in control of criminal investigation. See A-G ANAMBRA STATE vs. UBA (2005) 15 NWLR (PT 947) 44, IGP vs. UBAH (2014) LPELR (23968) 1 at 27-28, HASSAN vs. EFCC (2013) LPELR (22595) 1 at 29 and CHROME INSURANCE BROKERS LTD vs. EFCC (2018) LPELR (44818) 1 at 29-30. Furthermore, the unchallenged and uncontroverted deposition in paragraph 36 of the Respondent’s Further Affidavit (see page 33 of the Records), is that some men said to be the robbers were apprehended by officers of Delta State Police Command and the said men were taken into custody by the 2nd–4th Appellants. UGOCHUKWU ANTHONY OGAKWU, J.C.A

THE COURT IS STILL DUTY BOUND TO CONSIDER THE MERITS OF THE PRELIMINARY OBJECTION BECAUSE THE FACTS ALONE DOES NOT MEAN THE OBJECTION IS BOUND TO SUCCEED

The legal position is even worse where a reply brief is not filed to a preliminary objection like in this case: DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMI (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. Given the state of the law, the Appellants having failed to file a Reply Brief are deemed to have conceded the points raised in the preliminary objection as incorporated and argued in the Respondent’s brief. See ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67-68 and CANAAN ESTATES & HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10. However, this fact alone does not willy-nilly mean that the preliminary objection is bound to succeed. The Court is still duty bound to consider the merits of the preliminary objection: SHELL PETROLEUM DEVELOPMENT CO vs. PESSU (2014) LPELR (23325) 1 at 32-33, OFULUE II vs. OKOH (2014) LPELR (23218) 1 at 15 and AKINLADE vs. AYINDE (2020) LPELR (49592) 1 at 7-9. UGOCHUKWU ANTHONY OGAKWU, J.C.A

IT IS AN IMPRISONMENT BY THE PERSON ORDERING THE ARREST AS WELL AS BY THE POLICEMAN IF A PERSON ORDERS A POLICEMAN TO ARREST ANOTHER PERSON

It is the above pericope from the decision of the lower Court that is at the pith of this appeal. Now, it seems to be settled law that when all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (supra) at 536 and Section 4 of the Police Act. For the 1st Appellant to be rightly held to have violated the Respondent’s fundamental rights, it has to be shown that he did more than lodge a formal report with the Police. It is rudimentary law 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. UGOCHUKWU ANTHONY OGAKWU, J.C.A

A PERSON CANNOT BE HELD LIABLE FOR BREACH OF FUNDAMENTAL RIGHTS SIMPLY BECAUSE HE MADE A COMPLAINT OF COMMISSION OF OFFENCE

In IGBOSONU vs. OHAYAGHA (2015) LPELR (41870) 1 at 54-55, this Court (per Mbaba, JCA) stated:
“By law, a person cannot be held liable for breach of fundamental rights simply because he made a complaint of commission of offence against another to the Police, and the Police used their discretion to arrest that other person for questioning. He can only be faulted if the complaint was ill-motivated and founded on dishonesty. See the case of Ejikeme Vs Nwosu (2002) 3 NWLR (pt.754) 356; Balogun Vs Amubikahun (1989) 3 NWLR (Pt.107) 18; Ejiofor vs Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba vs Director of SSS (1993) 7 NWLR (PT. 305) 353. In the case of Ogbonna vs Ogbonna (2014) 23 WRN 48, at 88, it was held that for liability to lie against a complaint to the Police, leading to the arrest, detention and prosecution of defendant, the complaint must have been made in bad faith, and the complainant did more than mere reporting the matter to the Police, and spearheaded the arrest, detention and prosecution of the victim of his false report, even where there was no basis for it.” UGOCHUKWU ANTHONY OGAKWU, J.C.A

THE SETTLED LAW ON SOMEONE WHO MERELY GIVES INFORMATION WITHOUT MORE WHICH INFORMATION LEADS TO THE ARREST OF A SUSPECT

See also FAJEMIROKUN vs. C. B. (NIG) LTD (supra), OWOMERO vs. FLOUR MILLS (NIG) LTD (1995) 9 NWLR (PT 421) 622 at 629, EZEADUKWA vs. MADUKA (1997) 8 NWLR (PT 518) 635 at 667, RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 28-30, OMEREONYE vs. ASST IGP, ZONE II (2019) LPELR (50690) 1 at 11-14 and GEORGEWILL vs. LAMBERT ELECTROMEC LTD (2021) LPELR (54469) 1 at 31-35. ​Undoubtedly, though it is settled law 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, cannot be liable in an action for unlawful arrest or detention; but it has to be remembered that what the earlier decisions establish is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand: SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 43-44. UGOCHUKWU ANTHONY OGAKWU, J.C.A

OUR CASE LAW IS THE LAW OF THE PRACTITIONER RATHER THAN THE LAW OF THE PHILOSOPHER

In FAWEHINMI vs. NBA (NO. 2) (1989) LPELR (1259) 1 at 139:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and from the common law) the formulation of general principles has not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even then, as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
See also OGUNNUBI vs. OGUNNUBI (2021) LPELR (53497) 1 at 10-12 and ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 34-37. UGOCHUKWU ANTHONY OGAKWU, J.C.A

IT IS THE DUTY OF CITIZENS OF THIS COUNTRY TO REPORT CASES OF COMMISSION OF CRIME TO THE POLICE FOR THIR INVESTIGATION

In the diacritical circumstances of this matter, it is therefore effulgent that the lower Court arrived at the correct decision when it held that it was the 1st Appellant that instigated the arrest and detention of the Respondent. In such circumstances, since the report was tainted by malice, without legal justification and mala fide, the 1st Appellant is liable for the consequent evisceration of the Respondent’s fundamental rights. In the words of Ogebe, JSC in FAJEMIROKUN vs. COMMERCIAL BANK (NIG) LTD (2009) LPELR (1231) 1 at 4:
“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
(underlining supplied)
​See also FABIYI vs. THE STATE (2013) LPELR (21180) 1 at 47, OKONKWO vs. EZEONU(2017) LPELR (42785) 1 at 10-11 and EWULO vs. EFCC (2015) LPELR (40912) 1 at 37-38. UGOCHUKWU ANTHONY OGAKWU, J.C.A

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The 1st Appellant and the Respondent are neighbours. In fact, they live in the same premises. The Respondent is the owner of the premises, while the 1st Appellant is one of the tenants in the premises. To put it mildly, the relationship between the 1st Appellant and the Respondent had not been cordial. Indeed, at all times material to this matter, there were proceedings in Court for the recovery of possession of the premises occupied by the 1st Appellant. Howbeit, the immediate catalyst for the proceedings which spawned this appeal is the robbery incident that took place in the premises, with the 1st Appellant as the victim of the robbery.

​Consequent upon the robbery, the 1st Appellant wrote a letter of complaint to the Police, wherein he stated that he strongly suspected the Respondent and his wife as being behind the robbery. As a result of this complaint, the Respondent and his wife were arrested and detained. While the Respondent’s wife was released within twenty-four (24) hours of the arrest and detention, the Respondent was only released after about five days in custody. The Respondent later instituted proceedings before the High Court of the Federal Capital Territory, Abuja in SUIT NO. FCT/HC/M/4999/2009: OBI ADOLPHUS CHIEF vs. BONIFACE EZE & ORS. for the enforcement of his fundamental rights. The Respondent claimed the following reliefs:
“1. A Declaration that the arrest and detention of the Applicant from the 29th May 2009 to the 4th of June 2009 by the respondent is a grievous violation of his fundamental rights as guaranteed by S. 35 of 1999 Constitution as well as Article 6 of the African Charter on Human & People’s Right
2. A declaration that the arrest and detention of the applicant instigated by the 1st Respondent and executed by the 2nd Respondent from 29th May to 4th June is unwarranted violation of the applicant’s right to freedom of movement as provided under S. 41 from 29th May to 4th June is unwarranted violation of the applicant’s right to freedom of movement as provided under S. 41 [sic] of the 1999 Constitution and Article 12 of the African Charter on Human & People’s Right.
3. A Declaration that the arrest and detention of the applicant in the force C.I. Dcell in Area 10 Abuja from 29th May, 2009 to the 4th June 2009 without reasonable suspicion to have committed any offence constitute a violent breach, gross, unreasonable and unwarranted violation of the applicant’s right to fair hearing as enshrined in S. 36 of the 1999 Constitution and Article 12 Human & People Rights
4. An order compelling the respondents to pay the applicant the sum of N50, 000,000 being exemplary and aggravated damages for the unlawful violation of the applicant’s fundamental right as stated above.”

The action was heard on the affidavits and processes filed and exchanged by the parties and in its judgment, the lower Court, Coram Judice: Senchi, J. (as he then was), entered judgment in favour of the Respondent. The judgment of the lower Court which was delivered on 28th June 2010 is at pages 93-112 of the Records of Appeal. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 6th July 2010. The said Notice of Appeal is at pages 113-116 of the Records of Appeal.

​In prosecution of the appeal, the Appellants compiled and transmitted the Records of Appeal on 10th December 2012, pursuant to the order of this Court made on 19th November 2012. The parties thereafter filed and exchanged briefs of argument; with the Respondent incorporating a Preliminary Objection in his Respondent’s Brief. At the hearing of the appeal, the Appellants and their counsel were absent. The Court, upon being satisfied that hearing notice was duly served on the Appellants’ counsel, proceeded to treat the appeal as having been argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021. The learned counsel for the Respondent duly moved the preliminary objection and he urged the Court to dismiss the appeal.

​The Appellants formulated three issues for determination in their brief of argument which was filed on 10th January 2013. The issues are:
“1. Whether the 1st appellant had reasonable and justifiable grounds for reporting the Armed Robbery incident of the 23rd day of May, 2009 to the police (i.e 2nd, 3rd, 4th Appellants) and/or suspecting the Respondent or his wife for having anything to do with the said robbery incident. (Ground one refers).
2. Whether, having held that an individual cannot malign or influence the police into exercising an individual script to the detriment of their sacred responsibilities as vested on them by law, the learned trial Judge was right in holding that it was the 1st Appellant that instigated the police (3rd and 4th Appellant) to arrest and/or detain the Respondent and his wife. (Ground Two Refers).
3. Whether it would have been proper and indeed lawful for the 2nd, 3rd and 4th Appellants to ignore and/or disregard the Court process duly served on him in respect of this case and proceed to charge and/or arraign the Respondent or his wife before a Court of law for the armed robbery attack on the 1st Appellant in justification of their arrest and detention. (Ground three refers)”

Pursuant to the order of this Court made on 27th February 2020, the Respondent filed his brief of argument on 5th March 2020 wherein three issues were equally distilled for determination, namely:
“a. Whether the 1st appellant’s report to the police against the respondent was out of malice, vengeance and/or personal vendetta.
b. Whether the 1st appellant cannot be held liable for maliciously instigating the 2nd, 3rd and 4th appellants to arrest, detain and cease [sic] the properties of the Respondent.
c. Whether there was order for stay of investigation and prosecution against appellants.”

The preliminary objection incorporated in the Respondent’s brief is predicated on a sole ground, as follows:
“That there is no competent Record of Proceeding before this Court.”

The Respondent crafted a sole issue as arising for determination in the preliminary objection, thus:
“Whether the brief of argument filed by the appellant can stand without a competent record of proceedings properly before this Court”.

The Appellants did not file a Reply Brief so they did not proffer any submissions in reply to the preliminary objection.

In light of the fact that the preliminary objection is threshold in nature, we shall embark upon the consideration and resolution of this appeal with the said preliminary objection.

THE PRELIMINARY OBJECTION
The Respondent submits that the Registrar of the lower Court having failed to compile and transmit the Records of appeal, the lot fell on the Appellants. It was stated that the Records of Appeal transmitted by the Appellants was neither compiled by the Appellants nor by a legal practitioner; as the unsigned Records of Appeal was compiled and transmitted by “Nneka Chambers” and therefore incompetent. The cases of OKAFOR vs. NWEKE (2007) 3 SC PT II 55 at 64 and OKETADE vs. ADEWUNMI (2010) 2-3 SC PT I 140 at 147 were referred to.

It was further submitted that the Records of Appeal does not bear the name or official title of the officer who certified it as required by Section 104 (2) and 105 of the Evidence Act, thereby making it incompetent, null and void vide GTB PLC vs. TABIK INV LTD (2005) 13 WRN 25 at 37-38 and GARUBA vs. OMOKHODION (2011) 6-7 SC (PT V) 89 at 130. It was opined that an unsigned document has no probative value and that since there is no competent Records of Appeal, there is no valid Appellants’ Brief of Argument. The cases of FASHEUN vs. A-G FEDERATION (2006) 43 WRN 99 at 120 and MacFOY vs. UAC LTD (1962) AC 150 at 160 were relied upon. The Court was urged to dismiss the appeal for want of prosecution, since the Appellants’ had failed to diligently prosecute the appeal by transmitting Records of Appeal that is not proper. The case of NIG NAVY vs. LABINJO (2012) 6 SC PT I 44 at 57-58 was called in aid.

As earlier stated, the Appellants did not file a Reply Brief so they did not proffer any submissions in answer to the preliminary objection. The law is settled that where an appellant fails to file a reply brief when it is necessary to do so, he will be deemed to have conceded the points arising from the respondent’s brief. See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE COMPANY (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 196 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518.

The legal position is even worse where a reply brief is not filed to a preliminary objection like in this case: DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMI (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. Given the state of the law, the Appellants having failed to file a Reply Brief are deemed to have conceded the points raised in the preliminary objection as incorporated and argued in the Respondent’s brief. See ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67-68 and CANAAN ESTATES & HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10. However, this fact alone does not willy-nilly mean that the preliminary objection is bound to succeed. The Court is still duty bound to consider the merits of the preliminary objection: SHELL PETROLEUM DEVELOPMENT CO vs. PESSU (2014) LPELR (23325) 1 at 32-33, OFULUE II vs. OKOH (2014) LPELR (23218) 1 at 15 and AKINLADE vs. AYINDE (2020) LPELR (49592) 1 at 7-9.

​The quiddity of the Respondent’s preliminary objection is that the Records of Appeal is incompetent because the designation of the person who certified the Records of Appeal is unknown and furthermore that “Nneka Chambers” is neither the Appellants nor the legal practitioner for the Appellants and as such the Records of Appeal is not proper, more so, when it is unsigned. It is pertinent to state that the Respondent has not challenged the authenticity of the processes and proceedings compiled in the Records of Appeal or in any way contended that they do not form part of the records of the lower Court in respect of this matter. As rightly submitted by the Respondent, the Registrar of the lower Court having failed to compile and transmit the Records of Appeal, it became the responsibility of the Appellants to do so. Order 8 Rules 7 and 9 of the Court of Appeal Rules, 2021 provide as follows:
“7. Every Record of Appeal or Additional Record of Appeal shall contain the following documents in the order set out –
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the Record of Appeal; and
(d) a copy of the Notice of Appeal and other relevant documents filed in connection with the appeal.”
“9. Every Record of Appeal or Additional Record of Appeal compiled by a party to an appeal must be certified by the Registrar of the lower Court, before its physical or electronic transmission to the Court: Provided that it shall not be necessary for copies of individual documents to be separately certified, but the Registrar of the lower Court shall certify as correct each copy of the Record of Appeal transmitted in accordance with these Rules”.

The Records of Appeal in this matter substantially complies with the above provision and duly bears the certification stamp and signature of the Registrar of the lower Court, in substantial compliance with Section 104 of the Evidence Act. It has not been contended that the certification stamp and signature do not belong to the Registrar of the lower Court.

The Records of Appeal contains a compilation of the documents and proceedings used at the hearing at the lower Court. They are not documents and proceedings emanating from the person who is compiling and/or transmitting the Records. While the decision in OKAFOR vs. NWEKE (supra) remains good law, I do not think it will be applicable in the circumstances of this matter to void the Records of Appeal. The duly certified documents and proceedings of the lower Court are competent on their own and in my respectful view remain unaffected by any deficiency in the compilation having been said to have been done by “Nneka Chambers”; this is especially so, as the veracity and authenticity of the duly certified documents and proceedings have not been challenged. In the circumstances, it is a procedural irregularity which does not vitiate the separately certified documents and proceedings of the lower Court. It would have been a different matter if the Records of Appeal owe their authenticity and validity to the person compiling it. It has to be remembered that by Order 8 Rule 9 of the Court of Appeal Rules, 2021 (already reproduced above), even where a party is compiling Records of Appeal, the same in order to be valid, has to be certified by the Registrar of the lower Court. I am therefore unable to agree with the Respondent on any of the points on which he has sought to impugn the Records of Appeal.

Undoubtedly, the current disposition of the Courts is to eschew technicality in pursuit of substantial justice and to as much as possible decide a matter on the merits. Admittedly, the law is a technical discipline, so what the Courts frown at is not technicality per se, but resort to undue technicality: A-G ENUGU STATE vs. AVOP NIG PLC (1995) 6 NWLR (PT 334) 90 at 123-124, UNION BANK vs. BEAR MARINE SERVICES LTD (2018) LPELR (43692) 1 at 24-25 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT(2022) LPELR (56418) 1 at 30-31. The days when the whirligig of technicality rendered justice grotesque are long gone. The Courts have worked their way in the mass exodus from the Egypt of undue technicality and arrived at the promised land of substantial justice. With due deference to the Respondent’s counsel, the quest to scuttle the hearing and determination of this appeal on the merits is a resort to undue technicality and an invitation for this Court to embark on a regressive step to the foregone days of undue technicality. Happily, I am not regressive; so, I decline the invitation. See generally AFOLABI vs. ADEKUNLE (1983) 2 SCNLR 141, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 81) 184 and BANKOLE vs. DENAPO (2019) LPELR (46444) 1 at 20. In a coda, I remain of the informed and firm view that Records of Appeal is competent and that the briefs filed and exchanged pursuant thereto are equally valid and sufficient to drive the hearing and determination of the appeal on the merits. The preliminary objection is therefore dismissed.

THE APPEAL
I will now proceed to consider on the submissions of learned counsel on the respective issues they distilled for determination and thereafter resolve the appeal ensemble.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit on their issue number one that the 1st Appellant had reasonable and justifiable grounds for reporting the armed robbery attack on his household to the Police and for suspecting the Respondent and his wife for having something to do with the armed robbery incident. It was stated that the test of reasonable belief that a person committed an offence is an objective test vide COP, ONDO STATE vs. OBODO (1989) 5 NWLR (PT 120) 130 at 138 and OTERI vs. OKORODUDU (1970) 1 ALL NLR 194. The misunderstanding between the 1st Appellant and the Respondent was said to be such that it was logical that the suspicion of the Respondent as being behind the robbery was based on reasonable grounds.

​The Appellant’s contention on their second issue is that the lower Court, having held that an individual cannot influence the Police in the execution of their duties, was wrong to then hold that the 1st Appellant instigated the Police to arrest and detain the Respondent. It was posited that under the Criminal Procedure Code Act, the Police has the discretion to accept or reject to act on a complaint orinformation; and that the 1st Appellant acted in accordance with the law by reporting the robbery incident. It was maintained that the Police having accepted the complaint, in exercise of their discretion; it then became the complaint or information of the Police and no longer that of the 1st Appellant, who merely exercised his right under the law by reporting the armed robbery attack to the Police for investigation. The cases of NWANGWU vs. DURU (2002) 2 NWLR (PT 751) 265, SPDC (NIG) LTD vs. OLAREWAJU(2002) 16 NWLR (PT 792) 38, ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512,FAJEMIROKUNvs. C. B. NIG LTD (2009) 5 NWLR (PT 113) [sic] 588 at 600 and 606 and AFRIBANK (NIG) PLC vs. ADIGUN (2009) 11 NWLR (PT 1152) 329 were referred to.

​Still in argument on their third issue, it was submitted that the Respondent having filed an action in Court, the Police could not have ignored or disregarded the Court processes and proceed to charge the Respondent to Court for armed robbery, especially when investigation had not been completed. It was consequently opined that the Respondent not having been charged to Court did not import lack of merit or substance in the complaint that led to the Respondent’s arrest and detention.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the 1st Appellant’s report to the Police alleging that the Respondent is an armed robber is accentuated by malice, vengeance and personal vendetta as a result of the Respondent’s action to evict the 1st Appellant and that the lower Court rightly found as such at page 108 of the Records of Appeal. The said finding of fact was said to be unchallenged and so should not be disturbed vide AGUOCHA vs. AGUOCHA (2004) 43 WRN 17 at 24 and KRAUS T. ORG. LTD vs. UNICAL (2004) 25 WRN 1 at 19. It was asserted that the belief of the 1st Appellant was not objective and reasonable.

​Arguing his second issue, the Respondent posited that complaints made in good faith cannot be held against a person; but that the complaint of the 1st Appellant which was made mala fide can be held against him. It was stated that the 1st Appellant fabricated a malicious report against the Respondent and instigated the Police to arrest him in order to put him out of circulation. The cases of UAC OF NIG PLC vs. SOBODU (2007) 6 NWLR(PT 1030) 368 at 388-389, OGUERI vs. THE STATE (2000) 2 CLRN 14 at 26 and AFRIBANK NIG PLC vs. ONYIMA (2004) 2 NWLR (PT 858) 654 at 673 were cited in support. It was maintained that the 1st Appellant did not deny instigating the arrest and detention of the Respondent and directing that the Respondent’s car should not be released; thus showing that the Police were not acting on their own initiative, but carrying out the directives of the 1st Appellant.

The Respondent’s contention on his third issue is that there was no order staying investigation and prosecution in the armed robbery complaint. It was posited that it was more than one month after the Respondent was released from detention, before he instituted the action to enforce his fundamental rights. The Appellants, it was stated, had over one month after releasing the Respondent to charge him to Court if there was any good reason for his arrest and detention.

RESOLUTION
The facts of this matter are not convoluted. The facts are simple and straightforward. There is no real dispute over the facts. Furthermore, there is no appeal against the finding of the lower Court that the arrest and detention of the Respondent for about five days is a violation of his fundamental rights. The narrow confines in which this appeal has been contested is whether the 1st Appellant was rightly found liable for the said evisceration of the Respondent’s fundamental rights, for having reported an armed robbery incident to the Police; and the Police, on their own initiative, in the discharge of their statutory duties, arrested the Respondent. The parties also contend on the implication of the substantiality of the Respondent, not having been charged to the Court for any offence.

In holding that the 1st Appellant instigated the arrest and detention of the Respondent, the lower Court reasoned and held as follows at pages 107-109 of the Records:
“Thus, in view of the above provision of the constitution, it is the law that the onus lies on an Applicant who alleges that he was arrested and detained to show that the Respondent set the law in motion against him and that the Respondent was actively instrumental to his arrest and detention and that the arrest and detention were unlawful. In the instant case, by Exhibit ‘A’, the complaint of the 1st Respondent to the 2nd Respondent and paragraph 19 of the 1st Respondent’s counter affidavit supports the facts of the Applicant that the arrest and detention by the 2nd, 4th and 5th Respondents were instigated or upon prompting of the 1st Respondent. It also appears that from the averment of the 1st Respondent at paragraphs 18 and 19 of his counter-affidavit, the 1st Respondent stated as follows:- paragraph 18 ‘that my pastor, Mr. Jonathan Onuoha who had earlier approached the Applicant for peace over these problems to no avail, informed me and I verily believed him that:-
a. On the 25th May, 2009 he went to the Applicant’s House and confronted him with issues relating to the robbery incident.
b. Applicant admitted being in the house with visitors at the time of the robbery incident but refused to come out even soon thereafter as he was not in good terms with Mr. Boniface and his wife;
c. Boniface did not report the incident to him otherwise he would have chased after the robbers and recovered the vehicle from them’.
Paragraph 19 ‘That I was compelled by these prevailing circumstances to report the robbery incident to the police who as part of their investigations arrested the Applicant and his wife and also released them on bail pending the ongoing investigation into the incident.’
It is interesting or note-worthy to have a close look at paragraph 18 of the 1st Respondent’s counter affidavit. The approach of the pastor ‘for peace over these problems’ are deposed at paragraphs 5 – 12 of the counter affidavit of the 1st Respondent. These problems are to the effect that the 1st Respondent is a tenant in the compound of the Applicant. The Applicant had taken out summons against the 1st Respondent to recover possession of his property and it appears the wife of the 1st Respondent and that of the Applicant are not in the best of friendly relationship. It therefore appears that there is nothing to suggest that the Applicant knew of the coming of the armed robbers, or has a hand in the robbery or any fact suggestive of the involvement of the Applicant and his wife in the armed robbery of 23rd May, 2009 in the compound of the Applicant. It appears to me, from the evidence contained in the affidavit, counter affidavit and Exhibits, the misunderstanding between the Applicant and the 1st Respondent had reached its Climax. Thus, the armed robbery incident of 23rd of May, 2009 in which the 1st Respondent was the only person robbed in a compound of four flats and only his flat was visited by the armed robbers and incidentally, the 1st Respondent was robbed by the armed bandits, the stage is now set for the 1st Respondent to grind his axe against the Applicant and his wife. Thus, the 1st Respondent wrote a complaint to the 2nd Respondent, the Inspector General of Police alleging criminal conspiracy, armed robbery and theft against the Applicant and his wife. The Applicant was arrested and detained together with his wife at the force CID cell, Garki by the 2nd Respondent. The Applicant’s wife who is nursing a baby and another child were left at home unattended.
Now the law is that every citizen of this great country has a civil responsibility to report to the Law Enforcement Agencies any commission of crime and it is the duty of the Law Enforcement Agencies to properly investigate the information given to them. In the instant case, the 1st Respondent’s letter of complaint, Exhibit ‘A’ is devoid of any reason or iota of truth in reasonably suspecting the Applicant and his wife of armed robbery. Thus based on the facts of this application, the grounds upon which the application is based, the affidavit in support and indeed the counter affidavit of the 1st Respondent and Exhibit A, B and C, I hold the view that there is no basis for reasonable suspicion of the Applicant and his wife and that the arrest and detention of the Applicant and his wife were actually instigated or prompted by the 1st Respondent and I so hold.”

It is the above pericope from the decision of the lower Court that is at the pith of this appeal. Now, it seems to be settled law that when all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest,interrogate, search and detain any suspect: ONAH vs. OKENWA (supra) at 536 and Section 4 of the Police Act. For the 1st Appellant to be rightly held to have violated the Respondent’s fundamental rights, it has to be shown that he did more than lodge a formal report with the Police. It is rudimentary law 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. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a Policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt 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, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (supra). In order for a person to successfully maintain an action for the violation of his fundamental rights, consequent upon an arrest and detention, it is not enough to merely establish that a report was made to the Police wherein he was named as the suspect. It needs to be established for example, that the Police did not act on their own volition when they decided to arrest the person or that the report was totally false, malicious and without foundation. See NWADINOBI vs. BOTU (2000) 15 WRN 32 at 40.
In IGBOSONU vs. OHAYAGHA (2015) LPELR (41870) 1 at 54-55, this Court (per Mbaba, JCA) stated:
“By law, a person cannot be held liable for breach of fundamental rights simply because he made a complaint of commission of offence against another to the Police, and the Police used their discretion to arrest that other person for questioning. He can only be faulted if the complaint was ill-motivated and founded on dishonesty. See the case of Ejikeme Vs Nwosu (2002) 3 NWLR (pt.754) 356; Balogun Vs Amubikahun (1989) 3 NWLR (Pt.107) 18; Ejiofor vs Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba vs Director of SSS (1993) 7 NWLR (PT. 305) 353. In the case of Ogbonna vs Ogbonna (2014) 23 WRN 48, at 88, it was held that for liability to lie against a complaint to the Police, leading to the arrest, detention and prosecution of defendant, the complaint must have been made in bad faith, and the complainant did more than mere reporting the matter to the Police, and spearheaded the arrest, detention and prosecution of the victim of his false report, even where there was no basis for it.”
See also FAJEMIROKUN vs. C. B. (NIG) LTD (supra), OWOMERO vs. FLOUR MILLS (NIG) LTD (1995) 9 NWLR (PT 421) 622 at 629, EZEADUKWA vs. MADUKA (1997) 8 NWLR (PT 518) 635 at 667, RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 28-30, OMEREONYE vs. ASST IGP, ZONE II (2019) LPELR (50690) 1 at 11-14 and GEORGEWILL vs. LAMBERT ELECTROMEC LTD (2021) LPELR (54469) 1 at 31-35. ​Undoubtedly, though it is settled law 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, cannot be liable in an action for unlawful arrest or detention; but it has to be remembered that what the earlier decisions establish is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand: SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 43-44. Let me invite my Lord, Oputa, JSC to speak to this matter. Hear him in FAWEHINMI vs. NBA (NO. 2) (1989) LPELR (1259) 1 at 139:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and from the common law) the formulation of general principles has not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even then, as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
See also OGUNNUBI vs. OGUNNUBI (2021) LPELR (53497) 1 at 10-12 and ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 34-37.

Facts are the arrowhead and fountainhead of the law. This is so because it is the facts as presented that will determine how the legal principle in decided cases will apply to the latter case. So, it is the peculiar facts of this matter as disclosed in the affidavit evidence that we will now turn to in order to ascertain if the finding and holding of the lower Court at page 109 of the Records that there is no reasonable basis for the suspicion of the Respondent and that his arrest was actually instigated or prompted by the 1st Appellant is the correct decision.

​I had stated at the outset that the relationship between the 1st Appellant and the Respondent was not cordial. It was far from cordial. In the words of the lower Court at page 108 of the Records, the robbery incident set the stage for the 1st Appellant “to grind his axe” against the Respondent. Let me iterate that a citizen is liable for an arrest where there is no reasonable basis for his report and where the report is made mala fide. The bad blood between the 1st Appellant and the Respondent is palpable and evident from the depositions in paragraphs 5-13, 18, 19 and 22 of the 1st Appellant’s Counter Affidavit at the lower Court, wherein it is deposed as follows:
“5. That I am a tenant to the Applicant in his premises at Plot 161 Gbazango, Kubwa – Abuja, the subject matter of a Recovery of Premises action instituted against me by the Applicant which is still pending before the Chief District of Court, Life–Camp, Abuja.
6. That Applicant started problems with my Family when about the month of January, 2008 the Applicant’s wife, Ogechi asked her husband to eject us out of the premises on grounds that my wife does not greet her.
7. That I pleaded with them to allow peace to reign and also sent my Pastor to them for peace all to no avail as they subsequently issued us with a quit notice and also instituted action in Court against us for the recovery of the said premises which said action is still pending in Court.
8. That about the month of May, 2008, the Applicant reported my wife to the Police Station at Gbazango village, Kubwa – Abuja alleging that my wife is ‘a witch’ in response to which the police arrested and detained my wife.
9. That Applicant insisted that we undertake to pack out of the demised premises as a condition for the release of my wife on police bail.
10. That about the month of July, 2008 Applicant went to the police station at phase iv, Kubwa – Abuja and laid a complaint to the effect that I and my wife brought Armed Robbers to his premises in reaction to which the police arrested and detained us for about two (2) days and when our solicitors applied for our bail, Applicant insisted again that our packing out of the premises should be made a condition for our release on bail by the police.
11. That the Applicant felt bad and bitter upon our release on bail and knelt down at the police station and vowed that he would make sure that we are removed from the demised premises dead or alive by all means possible.
12. That about the month of April, 2009, the Applicant disconnected water to my Flat and threatened to inflict bodily injury on my younger brother, Mr. Izuchukwu if he dared come near to his house to fetch water.
13. That on the 23rd day of May, 2009 at about 7:30pm, Applicant’s wife drove the applicant’s Honda Accord Car into the premises and was immediately followed by Armed Robbers who moved straight to my flat and robbed me of my Honda Accord Car and the sum of One Hundred Thousand Naira (N100,000.00) at gunpoint and quickly ran away without entering any other apartment within the premises.
18. That my Pastor, Mr. Jonathan Onuoha who had earlier approached the Applicant for peace over these problems to no avail informed me and I verily believed him that:
(a) On the 25th day of May, 2009 he went to the Applicant’s House and confronted him with issues relating to the robbery incident.
(b) Applicant admitted being in the house with visitors at the time of the robbery incident but refused to come out even soon thereafter as he was not in good terms with Mr. Boniface and his wife.
(c) Boniface did not report the incident to him otherwise he would have chased after the robbers and recovered the vehicle from them.
19. That I was compelled by these prevailing circumstances to report the robbery incident to the police who as part of their investigations arrested the Applicant and his wife and also released them on bail pending the ongoing investigations into the incident.
22. That the Applicant had vowed time without number to make life miserable for me and members of my family which vow he has made good by exposing us to deadly threats and frivolous litigation.”
(See pages 8-11 of the Records of Appeal)

The above deposition depicts a tit-for-tat situation with the 1st Appellant getting his own back at the Respondent for having reported him to the Police in the past as deposed to in paragraphs 8-10 of his Counter Affidavit reproduced above. This lucently discloses that the 1st Appellant was acting mala fide and had no reasonable basis for the suspicion stated in his complaint to the 2nd Appellant that “I strongly suspect my landlord and his wife …. because they have vowed to make my life miserable until I pack out of his house …. Since then he and his wife have vowed to make me leave either in peace or in pieces and I believe this is one of their ploys to make me leave. How comes the armed robbers did not enter any other flat after robbing me?” (See page 21 of the Records).

​The absence of reasonable belief in this allegation is underscored by the fact that as deposed to in the affidavit evidence of the parties, there was already an action pending in Court for recovery of possession of the premises from the 1st Appellant by due process. It therefore does not stand to reason, as alleged, that the armed robbery incident was a ploy engineered to make the 1st Appellant leave the premises. Sadly, it seems that the Police did not independently of their own volition assess the complaint in order to ascertain if it was grounded on reasonable belief or made mala fide. This is limpid from paragraph 8 of the 2nd-4th Appellants’ Further Counter Affidavit where it is deposed as follows:
“8. That I am further informed by ASP Rimamsomte Ezekiel and Inspector Obafemi Ojo that, our investigations was only bothered on the area of Armed Robbery which was committed on the 23rd May, 2009 against the 1st Respondent and his family members, that any personal problem of the applicant and the 1st Respondent is not our area of concern and therefore does not involve us”.
(See page 37 of the Records of Appeal)

In the diacritical circumstances of this matter, it is therefore effulgent that the lower Court arrived at the correct decision when it held that it was the 1st Appellant that instigated the arrest and detention of the Respondent. In such circumstances, since the report was tainted by malice, without legal justification and mala fide, the 1st Appellant is liable for the consequent evisceration of the Respondent’s fundamental rights. In the words of Ogebe, JSC in FAJEMIROKUN vs. COMMERCIAL BANK (NIG) LTD (2009) LPELR (1231) 1 at 4:
“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
(underlining supplied)
​See also FABIYI vs. THE STATE (2013) LPELR (21180) 1 at 47, OKONKWO vs. EZEONU(2017) LPELR (42785) 1 at 10-11 and EWULO vs. EFCC (2015) LPELR (40912) 1 at 37-38.

As I near the terminus for this judgment, let me state that the foofaraw made as to whether the Respondent could have been charged to Court when the Appellant had been served with processes in respect of the application for the enforcement of his fundamental rights is contextually academic. The law remains that a person cannot go to Court to shield himself from criminal investigation and prosecution as it would be an interference with the powers given to law enforcement officers in control of criminal investigation. See A-G ANAMBRA STATE vs. UBA (2005) 15 NWLR (PT 947) 44, IGP vs. UBAH (2014) LPELR (23968) 1 at 27-28, HASSAN vs. EFCC (2013) LPELR (22595) 1 at 29 and CHROME INSURANCE BROKERS LTD vs. EFCC (2018) LPELR (44818) 1 at 29-30. Furthermore, the unchallenged and uncontroverted deposition in paragraph 36 of the Respondent’s Further Affidavit (see page 33 of the Records), is that some men said to be the robbers were apprehended by officers of Delta State Police Command and the said men were taken into custody by the 2nd–4th Appellants. The apprehension of the said men afforded the opportunity for the Respondent to have been charged with any offence he was linked with; but he was not. Be that as it may, as I stated earlier, there is no challenge or issue in this appeal as to whether the fundamental rights of the Respondent was breached. The paramount issue is whether the lower Court rightly held that the 1st Appellant was liable for the said infringement.

​It seems that this is now the appropriate time to put this judgment to bed. All the issues for determination have been resolved against the Appellants. The lower Court rightly held that the 1st Appellant instigated the arrest and detention of the Respondent as he had no reasonable and justifiable grounds for “strongly suspecting” that the Respondent had anything to do with the robbery incident. The pendency of the application for enforcement of fundamental rights could not in law prevent the 2nd–4th Appellants from further investigating and prosecuting the Respondent if the commission of any offence was disclosed against him. In a coda, the appeal is devoid of merit. The same fails and it is hereby dismissed. The decision of the lower Court delivered on 28th June 2010 is hereby affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N100,000.00 against the Appellants.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance, the draft of the leading judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I agree with his reasoning and conclusion that the appeal is devoid of merit and it is also dismissed by me.
I abide by the Order of costs of N100,000.00 (One Hundred Thousand Naira) awarded against the Appellants.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA just delivered. I agree with his conclusions that the appeal is devoid of merit and it is consequently dismissed.

​The judgment of the lower Court delivered on 28th June 2010 is hereby affirmed.
I abide by the consequential Orders.

Appearances:

P. A. N. Ejiofor, Esq. with him, K. C. Obi, Esq. For Appellant(s)

Appellants duly served, but absent and not represented by Counsel For Respondent(s)