HON. COMMISSIONER FOR WORKS, PLATEAU STATE & ORS v. IYANDA (2020)

HON. COMMISSIONER FOR WORKS, PLATEAU STATE & ORS v. IYANDA

(2020)LCN/14457(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/J/190/2019(R)

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

THE HONOURABLE COMMISSIONER FOR WORKS, PLATEAU STATE 2. THE HONOURABLE ATTORNEY GENERAL OF PLATEAU STATE 3. THE DIRECTOR, VEHICLE INSPECTION OFFICE, PLATEAU STATE 4. PAM SHAMA APPELANT(S)

And

PASTOR JOHN IYANDA RESPONDENT(S)

RATIO

INFRINGEMENT OF RIGHT TO OWN PROPERTYAS GURANTEED BY SECTION 44 OF THE CONSTITUTION

Taking first the contention of appellants that detention of property no matter how long it takes does not constitute deprivation of ownership of property and so does not amount to breach of Section 44 of the 1999 Constitution of the Federal Republic of Nigeria, I am afraid this Court has long settled that issue in a number of cases including A.C.B. v. Mary Okonkwo & Ors (1996) 1 NWLR (PT 480) 194 (CA), Edeh v. C.O.P. Bauchi State (2014) LPELR-23354 (CA), Government of Plateau State & Ors v. Nwaokorie (2014) LPELR-23368 (CA) to the effect that such action could and in fact infringe the victim’s right to own property guaranteed by Section 44 of the Constitution. This Court is bound by its decisions: see Usman v. Umaru (1992) NWLR (PT 254) 377 (S.C); Igbani v. Bayelsa State Independent Electoral Commission & Ors (2013) LPELR- CA/PH/304/2011; Young v. Bristol Aeroplane Co Ltd (1994) ALL E.R. 293, 300. PER UGO, J.C.A.

CIRCUMSTANCES WHERE THE NEED TO JOIN THE POLICE IN A CASE OF WRONGFUL ARREST AND DETENTION WILL ARISE

It is not also the law that the Police must always be joined in an action once the complaint of the claimant is that it was involved in his wrongful arrest and detention and/or that it was engaged by the defendant on record to carry out the wrongful arrest and detention in issue. The need to join the police in a case of wrongful arrest and detention will only arise where the evidence shows that there was reasonable cause for the defendant to report the claimant to the police. Where there was no such reasonable cause for the report and the report is found to be malicious, ill-motivated and without any reasonable cause, there is no need to join the police as the defendant who made the report can be proceeded alone directly: see Okonkwo v. Ogbogu (1996) 5 NWLR (PT 449) 420, (1996) LPELR-2486 (SC) p. 25. That much the apex Court (Sanusi and Okoro, JJ.S.C.) again reconfirmed in Okafor v. Abumofuani (2016) 12 NWLR (PT 1525) 117 when Sanusi, JSC, said at p.140 that:
“It is trite law, that where a report is made against a person specifically mentioned as a suspect or accused and the report is later found to be false, malicious, ill-motivated or unfounded, the person so reported and arrested and detained is entitled to damages to be paid to him by the person who made the false report since he is the person who set the law in motion against the victim falsely. The victim also needs not join the police as party as he can sue in his personal capacity as done by the respondent in the present case. See Okonkwo v. Ogbogu supra.”
Okoro, JSC, further clarified the issue of when the Police may be joined and not joined in such a case thus:
“It is trite that where a person makes a genuine complaint against another to the Police and the latter is arrested, detained and prosecuted by the Police, he cannot be said to have put the law in motion against him. See Gbajor V. Ogunburegui (1961) 1 All NLR (Pt. 1) 853; Isheno V. Julius Berger Nig. Plc. (2008) 6 NWLR (Pt. 1084) 582. However, where a report is made to the Police and the suspect is specifically mentioned, and the report is found to be false, malicious, ill-motivated and tissues of lies, in a claim for damages, the victim of the report shall be entitled to damages. In such a suit, the Police are not a necessary party because part of their duties is to receive complaint and act on it accordingly. Where the Police investigation reveals that the report was made mala fide, there is no cause of action against the Police except it can be shown that the appellant connived with the Police in making the false report. See Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 449) 420.” PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A.(Delivering the Leading Judgment): Appellants were respondents to Respondent’s Fundamental Rights Enforcement application of 7/10/2016 in the Federal High Court (Jos Division) in which he sought:
1. A Declaration that the detention of applicant’s vehicle at Anglo Jos Police Division at the instance of the 4th Respondent (now 4th Appellant) is wrongful and illegal and amounts to infringement of his fundamental right to personal liberty and dignity of the human person.
2. A Declaration that the detention of his Audi 80 Car with Chassis No WAU222BAZLA106551 and Registration No CU 269 BEN and generating plant by the Respondents is wrongful and infringement of his fundamental right to own private property.
3. An Order directing respondents to release forthwith to him his Audi 80 Car with Chassis No. WAU222BAZLA106551 and generating plant.
4. An Order directing the respondents (now appellants) to pay compensation in the sum of ₦5,000,000.00 for detaining wrongfully and infringement of his fundamental right to own property.

His case in his 53-paragraphed affidavit in support of his application is that,

having given out his said Audi 80 car for general overhaul, his son Jonathan Iyanda was on his instruction driving it (it also had inside it the family’s electricity generator that was being taken to the mechanic for repair) to car painter for painting on 14/9/2015 when a team of officers from the Plateau State Vehicle Inspection Office motioned him to stop and requested for the particulars of the vehicle. The son stopped and gave the officers a Retention Note from the Kaduna State Vehicle Inspection office and, according to him, also disclosed to the officers that the vehicle belonged to his father the applicant and was undergoing repairs, and that applicant had even commenced processing the vehicle particulars with the Kaduna State Vehicle Inspection office. The Vehicle Inspection Officers, he said, were not satisfied and ordered the son to drive the vehicle to their office at Old Airport Road, Jos and park it there, which he said he actually did.

On arrival in Jos from Mararaba that same day, he said he headed straight to the Plateau State Vehicle Inspection Office and introduced himself to 4th appellant as the father of young Jonathan from whom

the vehicle was impounded. Fourth respondent he said immediately responded that the car was used for commercial purposes. When he responded politely, according to him, that the car was being driven to painter and the electricity generating set was only being taken for repair, 4th appellant got angry up and said how can he ‘old man be lying here?’ Fourth appellant he said even further threatened to deal with him, saying: “worthless Yoruba man, get out of my office or I call the police to arrest you” and proceeded to actually call the police who came and arrested him and took him to Anglo Jos Police Division, where he was detained for the next five hours.

Fourth appellant he said went to the police station later in the day and both of them stated their cases to the Divisional Police Officer after which the matter was settled and he was asked to go home and return to 4th appellant’s Vehicle Inspection Office the following day to get his vehicle and electricity generating set from 4th applicant. When he went to 4th applicant Vehicle Inspection Office the following day to get his property as agreed, he said 4th appellant rather

insisted that he (applicant) should beg him or forget about his vehicle, that he (4th appellant) is from Plateau State; that respondent should go to his State of origin and see if he would be allowed to do what he was doing. With 4th appellant refusing to honour their agreement with the police, he said he reported to the police again who promised to call 4th applicant to release the vehicle to him. When he returned to 4th appellant at his office, he still stood his ground and refused to release his vehicle and his electricity generating set to him. Following that, he said he went to the Kaduna State Vehicle Inspection office, paid for and got his Vehicle particulars, copies of which are annexed to his affidavit, and gave same to his lawyers to take to 4th appellant to plead for the release of his vehicle, all to no avail hence he commenced his instant application for enforcement of his fundamental rights.

Appellants in a 41-paragraphed affidavit deposed to by 4th appellant on 6th March 2017, swore as follows:
7. That I know as a fact that paragraphs, 1, 2, and 3 of the Applicant’s affidavit are false.
8. That the applicant was not in

possession of the said car at the time it was impounded.
9. That the driver of the said car who is not joined as Plaintiff was waived down to stop by the Vehicle Inspection Officers stationed at duty along Gold and Base road to stop.
10. That when the driver of the car was stopped, he could neither present the car particulars nor a driving license.
11. That all the driver could present was an expired retention note as such, he was directed to drive the vehicle in question to the Vehicle Inspection Office at Old Airport Road Jos.
12. That since the car was purportedly undergoing repairs in the absence of the particulars and driving license, he ought to have obtained a permit from the proper authority and also a car testing board for that purpose.
13. That paragraph 12 of the Applicant’s affidavit is not true as no such explanation was offered.
14. That paragraph 13 is not true as none of the Vehicle Inspection Officers delayed the driver for any reason whatsoever, that he left as soon he parked the car and no one saw him till date.
15. That paragraph 17 is not true rather the Applicant was very hostile.

The paragraph 18, 19, 20, 21, 22, 23, 24, and 25 are not true.
17. That the Applicant shouts and hostility drew my attention out of my office, of which I invited him into my office so as to enquire what the problem was.
18. That the bone of contention was when the Applicant was told neither the said car nor generating plant in the boot would be released to him as the Applicant was not in possession of the car at the time it was impounded.
19. That the car could only be released to the driver from whom it was impounded.
20. That I know that it is unethical to release the said vehicle to a 3rd party. This is to avoid any claim of ownership of the car by another party subsequently.
21. That the Applicant’s shouts and hostile nature constituted nuisance at the Vehicle Inspection Office, attempts to calm him down proved abortive.
22. That the Applicant was then begged to leave the office but he refused.
23. That the Police was eventually called to intervene in the matter which led to the arrest of the Applicant and he was taken to Anglo Jos Police Divisional Headquarters.
24. That paragraph 27, 28, 30 and 31 are not

true.
25. That while at the Anglo Jos Police Divisional Headquarters before the Divisional Police Officer (DPO) the Officers of the Vehicle Inspection Office gave account of all that transpired as regards this case.
26. That paragraph 32, 33, 34, 35, 36, and 37 of the Applicant’s affidavit are not true.
27. That my name is not Shama, but Samuel Pam.
28. That paragraph 39, 40, 41, 42, 43 and 44 are not true.
29. That the Applicant came to the Vehicle Inspection Office the following day, 15th day of September 2017 and requested for the car in question and the generating plant therein.
30. That the earlier position stated in paragraphs 18 and 19 above was maintained.
31. That based on my relationship with the DPO, I was ready to release the car without the particulars, however on the condition that the Applicant brings the driver from whom the car was impounded.
32. That paragraph 45, 46, 47, 48, 49, 50, and 52 are not true.
33. That I have never seen Exhibits “A-A5” until when I was served with Court process on the 23rd day of January 2017.
34. That the Applicant was not seen again since the 15th day

of September 2016 nor any of his lawyers.
35. That the Applicant was never at any point detained.
36. That the Applicant was never denied his fundamental right to own property.
37. That the Police was not joined as a party in this suit.

The trial judge in granting the application had this to say:
“The Respondents have not adduced any reason for impounding and keeping the Applicant’s car and generator over the years. This very act of commission is clearly outside the ambit of the law in prosecuting their duties. It is a constitutional breach of the Applicant’s right to own property as stipulated under Section 44 (Supra) of the Constitution and I so hold.
“It is also the case of the Applicant that he was detained at the Anglo Jos Nigeria Police Division at the instance of the 4th Respondent, agent of the 1st – 3rd Respondents for about 5 hours, and that that breach his Fundamental Right to the dignity of the human person.
“The Respondents did not deny this fact but stated that the Police was called to intervene because the Applicant did not want to leave their office and was also making noise. That this led

to his arrest and he was taking to Anglo – Jos Police Divisional Headquarters.
“The situation under which personal liberty of a citizen can be constrained are specified in Section 35 (1) (a) to (f) as earlier mentioned in this judgment.
“The Police have a duty to act upon any report or complainant made to them. Equally the Respondents or any other person have a right to lodge a complainant to the Police. In this case however, it is my belief that the 4th Respondent’s report was actuated by malice. I say this because from the entire affidavit facts before me, the Applicant did not commit any crime necessitating the report to Police which eventually led to his arrest. All that the 4th Respondent did was just to exhibit a show of power and nothing more. The act of malicious report of the Applicant to the Police by the 4th Respondent and subsequent deprivation of his right to liberty cannot be justified in Law. I find such act unlawful and contrary to Section 35 of the Constitution.
“By virtue of Section 35 (6) a person deprived unlawfully of his personal liberty as in this case is entitled to compensation by the very fact of that

deprivation. The damage flows consequentially from that unlawful act.
“I hereby award the sum of N1 Million as damages payable by the Respondents jointly and severally to the Applicant. In addition, the Respondents shall release the Applicant’s Audi 80 with Registration No. CU 269 BEN and his generating plant forthwith.”

Appellants are dissatisfied with that decision hence this appeal. They have formulated the following three questions for determination from six grounds of appeal that they filed:
1. Whether the totality of the facts and circumstances of respondent’s case at the lower Court supported his claim for breach of his rights to liberty and to own property enshrined in Section 35 and 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
2. Whether the lower Court had jurisdiction to hear the matter respondent having not been identified as a party on the face of the originating process.
3. Whether the lower Court’s finding of breach of Respondent’s right to liberty on the basis that 4th appellant’s act of reporting him to the police was malicious was not wrong and did not

occasion a miscarriage of justice.

Respondent on his part distilled two questions only as follows:
1. Whether in the light of the facts and circumstances of this matter the trial Court was not right to have arrived at the decision that the respondent’s fundamental rights were breached entitling him to the reliefs sought and granted by the Court.
2. Whether the respondent was not right to have followed Form No 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 thus the trial Court had the requisite jurisdiction to entertain the matter.

Appellants argued their issues one and three together and argued issue 2 separately.

Appellants submitted on issue 2 that Respondent’s name was not reflected in the face of his application as required by Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009; that the application bears only their names as respondents and that made it incompetent, invalid and liable to be struck out.

Respondent in answer submitted that his application complied with Form No 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 so he was in order; that in any case

the objection of appellants was mere technicality which the Courts have always set their faces against.

I think this argument of appellants can be dismissed summarily, for Respondent in the title of his application clearly revealed himself as the applicant, saying: “IN THE MATTER OF AN APPLICATION BY PASTOR IYANDA FOR AN ORDER FOR THE ENFORCEMENT OF A FUNDAMENTAL RIGHT.” Immediately after that sentence is the word ‘AND,’ following which are appellants’ names as Respondents to the application. I therefore find it difficult to understand which process appellants were basing their argument of ‘no applicant in the application’ on. I unhesitatingly resolve this issue against them.

On Issues 1 and 3, appellants first argued that since respondent’s contention was that he was arrested and detained by the Police but at fourth appellant’s instruction, Respondent ought to have joined the police to his application and his failure to do that was fatal to his case and the lower Court wrong in granting it. They submitted further that since the police ordinarily have a right to arrest and even detain pending

investigation, it should have been joined to the action and the lower Court’s order declaring his arrest and detention by the police unlawful is not only fatal but also breached the right of the Police to fair hearing.

At any rate, they further argued, the lower Court’s finding of malice on the part of 4th appellant in calling in the police was not justified given the provisions of Section 35(1)(c) of the 1999 Constitution stating that it is not breach of a person’s right to liberty if he is arrested for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence. They pointed to paragraphs 21 to 23 of their counter affidavit where they deposed that the reason they called in the police was to prevent respondent from committing an offence. They said their averment in those paragraphs that Respondent was hostile was not countered by Respondent by way of a further affidavit so that assertion is deemed admitted.

They also argued that by making a

finding of malice the lower Court appeared to have veered outside fundamental rights enforcement application to the realm of tort of malicious prosecution and that equally rendered its decision perverse.

Coming to the issue of breach of Respondent’s right to own property, they argued that the lower Court misconstrued the import of Section 44 of the 1999 Constitution of this country which Respondent claimed was breached by their detention of his said two properties. They submitted that Section 44 of the 1999 Constitution of this country is only concerned with claims of outright ownership of property and not mere detention of property; that since Respondent did not anywhere in his application claim that they were claiming ownership of his said vehicle and electricity generating set but only detaining them, his cause of action is for the tort of detinue and not for enforcement of his fundamental right within Section 44 of the 1999 Constitution of this country.

Proceeding from that premise and citing the case of Ikpekpe v. Warri Refinery and Petrochemical Co Ltd & Anor (2018) LPELR-44471 (SC), they further submitted that the trial Federal High

Court lacks jurisdiction over cases of detinue, that the proper forum for such action is the State High Court.

In conclusion, they submitted that the case of respondent before the lower Court pointed more to the detinue and malicious prosecution so the lower Court was wrong in entertaining it as fundamental rights enforcement action under Chapter 4 of the 1999 Constitution.

Mr. Izang Aware for respondent in answer submitted that given the respondent’s assertion that it was appellants who ‘by sheer show of power’ instigated his arrest by the Police, his action was properly constituted without the Police who carried out the arrest – in support of which counsel cited the dictum of our brother Lokulo-Sodipe, J.C.A. in UBA Bank v. Johnson (2018) LPELR-45073 (CA) p. 22-27. Counsel also argued that appellants’ argument that respondent’s action for their detention of his properties was actually one for the tort of detinue and not fundamental right to own property within the context of Section 44 of the 1999 Constitution of this country was also misconceived. He argued that appellants confiscated respondent’s car and

electricity generating set without recourse to due process of law so their action amounts to acquisition of his property with impunity. That conduct, counsel cited A.C.B. v. Mary Okonkwo & Ors (1996) 1 NWLR (PT 480) 194 (CA) and later forwarded to us the decision of this Division of this Court in Edeh v. C.O.P. Bauchi State (2014) LPELR-23354 (CA), amount to infringement of respondent’s fundamental right to own property under Section 44 of the 1999 Constitution of this country.

Resolution of issue
The two principal issues raised by appellants here is whether respondent’s action as it relates to his complaints of breach of his right to personal liberty was properly constituted in the absence of the police who arrested and detained him, and secondly, whether his claim for breach of his fundamental right to own property was in order given that appellants by his own saying, only detained his Audi car and electricity generating set and not that they were claiming ownership of it.

A third issue, which they also addressed and which I in fact consider equally fundamental, is whether the lower Court was right in its finding that their act

of reporting Respondent to the police, when it had not been shown by them that he committed any offence, was malicious and so amounts to breach of his right to liberty for which he deserved compensation.

arrested and detained is entitled to damages to be paid to him by the person who made the false report since he is the person who set the law in motion against the victim falsely. The victim also needs not join the police as party as he can sue in his personal capacity as done by the respondent in the present case. See Okonkwo v. Ogbogu supra.”
Okoro, JSC, further clarified the issue of when the Police may be joined and not joined in such a case thus:
“It is trite that where a person makes a genuine complaint against another to the Police and the latter is arrested, detained and prosecuted by the Police, he cannot be said to have put the law in motion against him. See Gbajor V. Ogunburegui (1961) 1 All NLR (Pt. 1) 853; Isheno V. Julius Berger Nig. Plc. (2008) 6 NWLR (Pt. 1084) 582. However, where a report is made to the Police and the suspect is specifically mentioned, and the report is found to be false, malicious, ill-motivated and tissues of lies, in a claim for damages, the victim of the report shall be entitled to damages. In such a suit, the Police are not a necessary party because part of their duties is to receive complaint and

act on it accordingly. Where the Police investigation reveals that the report was made mala fide, there is no cause of action against the Police except it can be shown that the appellant connived with the Police in making the false report. See Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 449) 420.”

The lower Court in this case held that “4th Respondent’s [4th Appellant’s] report against the Respondent was ‘actuated by malice…. because from the entire affidavit facts before me [it] the Applicant did not commit any crime necessitating the report to Police which eventually led to his arrest, that all that the 4th appellant did was ‘just to exhibit a show of power and nothing more,” that the act of malicious report of the Applicant to the Police by the 4th appellant and subsequent deprivation of his right to liberty cannot be justified in Law.

If it is correct in this finding of malice on the part of 4th appellant in reporting the Respondent to the police, the inescapable conclusion will be that there was no need for respondent to join the police, for that is what the authorities say.

The question, however, is

whether that finding of the lower Court based solely only on the disputed depositions of the Respondent, which were not subjected to any oral examination of the deponents, is sustainable in law. Fourth appellant it should be remembered swore in answer to those very depositions accepted by the lower Court to make its finding of malice, that Respondent became very unruly in his office actually constituted himself into a nuisance, that he was shouting and refused to leave appellant’s office even when begged to leave hence he, 4th appellant, called in the police. All that is contained in paragraphs 18-23 of the counter affidavit earlier reproduced. Where affidavits so conflict on a material issue, credibility becomes an issue, for which oral evidence must be taken to enable the Court decide for itself who is lying and who in its opinion is speaking the truth. It does not even matter that none of the parties asked to be allowed to cross-examine any of the deponents or to call any witnesses. That is the position long settled by the apex Court in Falobi v. Falobi (1976) 9-10 S.C,; (1976)LPELR-1236(SC) and followed by a long line of cases too numerous to mention

here. That point is now codified in Section 116 of the Evidence Act stating that:
S.116. When there are before the Court affidavits that are irreconcilably in conflict on crucial facts the Court shall for the purpose of the resolving the conflict arising, from the affidavit evidence, ask the Parties to proffer oral evidence as to such facts, and shall hear such oral evidence, or the deponents of the affidavits and such other witnesses as may be called by the parties.
This, the lower Court failed to do. It rather simply accredited Respondent’s version of the events on his affidavit and discredited that of fourth appellant, which action makes his decision perverse. That perversity assumes a even bigger dimension because, if it is true as appellants asserted in their counter-affidavit that Respondent constituted himself into a nuisance in their office, was shouting and refused to leave their office even when begged to leave, it can hardly be seriously asserted that they had no reasonable cause to invite the police to come and take him away. They do not have to wait until he commits a cognizable offence like breaking an officer’s head or

damage furniture in the office before they call the police.
Given the flawed grounds on which the finding of malice was made by the lower Court, I am convinced that its judgment deserved to be set aside and an order for retrial before another Judge of that Court be made, so that oral evidence, in compliance with Section 116 of the Evidence Act 2011, can be taken by the trial judge to determine this undoubtedly crucial issue of the conduct of the respondent in appellants’ Plateau State Vehicle Inspection Office on 15th September 2015 as well as any other issue on which oral evidence may be deemed necessary.

Having come to that conclusion, I resist the temptation of determining the equally very interesting contention of appellants that it is not only unethical for them to release the vehicle and electricity generating set they impounded to anyone other than the very person from whom they impounded it.

In conclusion, I find merit in the appeal and here allow it and set aside the judgment of the lower Court; in its stead, I order accelerated Retrial of the case by a different Judge of that Court, the retrial to commence not later than four

months of this appeal given the age and nature of the case.
Parties are to bear their costs.

ADZIRA GANA MSHELIA, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother Ugo, J.C.A just delivered. I agree with his Lordship’s reasoning and conclusion that the appeal should be allowed. For the same reasons adumbrated in the lead Judgment which I adopt as mine, I too allow the appeal and order for accelerated retrial of the case by different Judge of that Court.

TANI YUSUF HASSAN, J.C.A.: I read in draft the Ruling just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and abide by the orders made therein.

Appearances:

J.F. Katungu, Esq., with him, N.D. Dashe, Esq. (both Principal State Counsels of the Plateau State Ministry of Justice) For Appellant(s)

Izang Aware, Esq., with him, Miss F.A Izang and T.I. Bello, Esq. For Respondent(s)