HRH EZE (ENGR) PETER C. IHUA-MADUENYI (JP) v. HM, EZE ROBINSON O. ROBINSON JP & ORS
(2019)LCN/12681(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2019
CA/PH/FHR/223/2017
RATIO
EVIDENCE: WHERE FACTS ARE ADMITTED IN A PLEADING OR AFFIDAVIT EVIDENCE
“The position of the law is that facts admitted whether in a pleading or in an affidavit evidence need no further proof. They are deemed to be true, correct and admissible against the person making the admission. See Oceanic Bank International Ltd V. Brokenn Agro Allied Industries Ltd (2008) LPELR 4671; Ojo V. Gharoro (1999) 8 NWLR (Pt 615) 374 and Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt 146) 578.” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
POLICE FORCE: POWER OF THE POLICE TO INVESTIGATE CRIMES
“…would a grant of protective relief be appropriate in the circumstances? It has to be noted that a mere invitation of a person by the police without more, is within their powers; except where it can be shown that the police misused their powers. Thus, the exercise of the powers of the police to invite and investigate crimes simpliciter cannot amount to a breach of fundamental rights. See Kalio & Ors V. Dawari & Ors (2018) LPELR 44628; Akanbi & Ors V. Commissioner of Police Kwara State & Ors (2018) LPELR 44049; and Tsanyawa V. Economic and Financial Crimes Commission & Anor (2018) LPELR 45099. The more reason can also be found in the fact that the duties of the police is both statutory and constitutional…Thus, the exercise of the powers of the police to invite and investigate crimes simpliciter cannot amount to a breach of fundamental rights. See Kalio & Ors V. Dawari & Ors (2018) LPELR 44628; Akanbi & Ors V. Commissioner of Police Kwara State & Ors (2018) LPELR 44049; and Tsanyawa V. Economic and Financial Crimes Commission & Anor (2018) LPELR 45099. The more reason can also be found in the fact that the duties of the police is both statutory and constitutional.” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
HRH EZE (ENGR) PETER C. IHUA-MADUENYI (JP) Appellant(s)
AND
1. HM, EZE ROBINSON O. ROBINSON JP
2. COMMISSIONER OF POLICE, RIVERS STATE
3. DCP YAHAYA S. ABUBAKAR, DEPUTY COMMISSIONER OF POLICE, RIVERS STATE COMMAND, CRIMINAL INVESTIGATION DEPARTMENT, PORT HARCOURT Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Rivers State holden at Port Harcourt Coram; M.W. Danagogo, J; delivered on 16th February 2017.
By a motion on notice dated 22nd June 2016 but filed on 23rd June, 2016, the Appellant/Applicant sought to enforce his fundamental rights seeking for the following reliefs:
1. A DECLARATION that the applicant is entitled to the enjoyment of his fundamental rights to life, personal liberty and human dignity particularly the 1st Respondent either acting by himself, his agents, servants, privies or howsoever under his authority are not authorized under any law or statute to harass, intimidate, threaten or molest the life of the applicant in any manner whatsoever or depriving the applicant from enjoying his rights as a citizen of the Federal Republic of Nigeria.
2. A DECLARATION that the continued harassment, forced invitation and threat of arrest, incarceration, molestation and inhuman treatment meted out to the applicant from Tuesday 20th November, 2016 by the 3rd Respondent and officer of the 2nd Respondent at the Rivers State Criminal Investigation Department office of the Nigerian Police force, Port Harcourt on the instigation of the 1st Respondent in unlawful, illegal, unconstitutional and a violation of the applicant?s fundamental rights to personal liberty, freedom of movement and dignity of human person as guaranteed by Sections 34, 35 & 41 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 5, 6, 7 & 12 (1) of the African Charter on Human and Peoples Right Cap A LFN 2004
3. AN ORDER OF MANDATORY INJUNCTIONS compelling the respondents to refrain from further harassing, intimidating, forcefully inviting and threatening to arrest the applicant forthwith unconditionally.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the respondents, particularly the 2nd and 3rd respondents whether by themselves, their agents, privies and officers from further harassing, forcefully inviting and threatening to arrest the applicant forthwith unconditionally.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the respondents particularly the 2nd and 3rd respondents whether by themselves, their agents, privies and officers from further harassing, forcefully inviting, threatening to arrest, detaining or however dehumanizing the applicant and/or interfering with the applicant?s fundamental rights to person liberty, freedom of movement and human rights to person liberty, freedom of movement and human dignity.
6. AN ORDER compelling the respondents jointly and severally to pay to the applicant the sum of N100,000,000.00 (One Hundred Million Naira) as monetary compensation or damages for the violation of the applicant’s fundamental right to life, personal liberty and human dignity as guaranteed under Sections 33(1), 35(1) and 43 respectively by the Constitution of the Federal Republic of Nigeria 1999, as amended, as well as his rights guaranteed under the African Charter on human and Peoples Rights (Ratification and Enforcement) Act Cap Ag Laws of Nigeria 2004.
7. Written apology by each and every one of the respondents to the applicant.
Upon being served with the motion paper, the 1st respondent filed his counter affidavit in opposition to the motion and the applicant filed a reply to the 1st respondent’s counter affidavit. The 2nd and 3rd respondents did not file any counter affidavit in opposition to the motion.
The facts leading to this application is that both the Appellant/Claimant and the 1st Respondent/Defendant are traditional rulers in Rivers State. There exist a long standing dispute between them over the control and management of the 5% monthly deductions accruable to the traditional rulers in Ahoada East Local Government Area from the monthly allocation of the said Local Government.
The appellant’s case is that inspite of the Judgment of the High Court of Rivers State in Suit No AHC/62/2005 where the Court declared that the 1st respondent is not entitled to benefit from any such sum from the 5% monthly stipend, the respondent has been making it difficult for the appellant and other chiefs in the Local Government to access the stipend. The feud between the appellant and the 1st respondent escalated and the 1st respondent instigated the 2nd and 3rd respondents to invite him on four occasions to their office and the appellant in company of his lawyer honoured the invitation.
The appellant/claimant approached the Court to make pronouncement on the illegality and unconstitutionality of his harassment and threat of arrest.
The 1st respondent admitted that after his palace was attacked, he reported the commission of the offence to the police and the 2nd and 3rd respondents in their normal duty invited some people for questioning and the appellant was among the persons invited by the police.
In a considered ruling, the trial Court held that the applicant/ appellant failed to establish his case and is therefore not entitled to any of the reliefs sought. The trial Court dismissed the application with costs.
Dissatisfied with the decision of the trial Court, the appellant filed a notice of appeal on 28/03/2017. The said notice of appeal is predicated upon four grounds as reproduced hereunder without their particulars:-
1. The learned trial Judge erred in law when he held that the invitation of the appellant by the 2nd and 3rd respondents and is being held for some hours is not an infringement of his fundamental rights to attract the orders and the reliefs he sought against the respondents.
2. The lower Court erred in law and occasioned a miscarriage of justice when it ruled in favour of the 1st respondent and failed to consider all of the issues in the appellant?s application and all the circumstances of the case.
3. The learned trial Judge erred in law when it held that there was no threat to the safety of the appellant.
4. The Judgment is against the weight of evidence.
Learned counsel for the appellant formulated four issues for determination thus:
1. Whether the uncontroverted continuing invitation of the appellant by the 2nd and 3rd respondents without any justification did not warrant the learned trial Judge to grant protective reliefs and orders for the life, dignity and liberty of the appellant?
2. Whether the learned trial Judge properly evaluated evidence of the appellant that the 1st respondent instigated the 2nd and 3rd respondents to commit acts of infringement on the fundamental rights of the appellant?
3. Whether based on the unchallenged facts deposed to by the appellant before the Court, the learned trial Judge ought to have given judgment securing the appellant from threat to his safety.
4. Whether the judgment is against the weight of evidence.
The 1st respondent formulated three issues for determination thus:
1. Was the lower Court right in holding that the police (2nd and 3rd respondents) have the power and authority to invite, investigate, search and/or arrest any person on suspicion of commission of a crime and that such an invitation and search without more does not automatically amount to the infringement or likelihood of infringement of a person’s fundamental rights (Ground 1).
2. Does the 1st respondent have the right to report the commission of crime to the police (2nd and 3rd respondents) without more and can he (1st respondent) be liable for the acts of the 2nd and 3rd respondents where the said report was not made mala fide (Ground 2).
3. Was the lower Court not right in holding that the appellant failed to prove his case to entitle him to the reliefs sought having regard to the circumstances of this case and the materials/evidence placed before the Court? (Grounds 3 and 4).
In the resolution of this appeal, this Court will adopt the issues as formulated by the appellant and the issues are:-
1. Whether the uncontroverted continuing invitation of the appellant by the 2nd and 3rd respondents without any justification did not warrant the learned trial Judge to grant protective reliefs and orders for the life, dignity and liberty of the appellant?
2. Whether the learned trial Judge properly evaluated evidence of the appellant that the 1st respondent instigated the 2nd and 3rd respondents to commit acts of infringement on the fundamental rights of the appellant?
3. Whether based on the unchallenged facts deposed to by the appellant before the Court, the learned trial Judge ought to have given judgment securing the appellant from threat to his safety.
4. Whether the judgment is against the weight of evidence?
In arguing Issue No 1, learned counsel for the appellant submitted that the appellant has shown the numerous invitations on him by the 2nd and 3rd respondents, the long hours he spent on every such invitation at the police station and his denial or sponsorship of the attack on the palace of the 1st respondent and all these facts were not countered by the 2nd and 3rd respondents. He also submitted further that the law is settled that averments in an affidavit which are not denied are deemed admitted as true and correct. He referred to Egbuna V. Egbuna (1989) 2 NWLR (Pt 106) 773; and Attorney General Anambra State & Ors V. Okeke & Ors (2002) 5 SCNJ 318 @ 329.
He also argued that the 2nd and 3rd respondents did not present any evidence at the trial Court showing that the appellant is culpable and not entitled to an order restraining the 2nd and 3rd respondents from further inviting him without justification. He referred to Agbakoba V. The Director SSS (1999) 6 NWLR (Pt 351) 475 @495. Counsel also stated that Section 46 of the Constitution compels a Court to take action to protect the appellant once there is any likelihood that his fundamental rights are breached.
Learned counsel further stated that the appellant has deposed in paragraphs 23, 24 and 26 of his affidavit in support that he is elderly with health challenges and in need of daily intake of drugs; the continuous harassment and invitation from the 2nd and 3rd respondents could lead to his break down and death. He also stated that the continued invitation of the appellant for three weeks continuously is a ploy to detain him and a vendetta for his stopping the 1st respondent from collecting monies for traditional rulers of Ahoada East extraction, and the use of criminal investigation to harass the appellant is unconstitutional.
On Issue No 2, learned counsel submitted that the learned trial Judge erred by holding that the report made by the 1st respondent to the police was not mala fide and by implication stated that the police could go on a wild goose chase relying on the case of Gani Fawehinmi V. IGP (2002) 8 SCM 27; even though the case of Gani relied upon by the trial Court neither authorize the police to continuously invite a person without proof of commission of an offence nor authorized the police to harass, detain, intimidate or threaten individuals. Counsel referred to Page 92 Paragraph 19 (c) of the records and Page 93 Paragraph 20 of the record. Counsel concluded that the Paragraphs referred to showed that the 1st respondent instigated the 2nd and 3rd respondents. He referred to SkyPower Airways Ltd V. Olima (2005) 18 NWLR (Pt 957) 224 @ 232.
On Issue No 3, learned counsel for the appellant argued that from the facts deposed to Paragraphs 22 – 29 at Pages 42- 43 of the record, which facts were not controverted by the respondents, the trial Court was in error to come to the finding that the invitation of the appellant by the 2nd and 3rd respondents was not a breach of his fundamental rights. He referred to Globe Fishing Industries Ltd V. Coker (1990) 7 NWLR (Pt 162) 265 and Okereke V. Ejiofor (1996) 3 NWLR (Pt 434) 90.
On Issue No 4, learned counsel for the appellant submitted that from the totality of the evidence adduced, the decision of the trial Court was against the weight of evidence. Counsel also submitted that despite the unchallenged and uncontroverted evidence before the trial Court, which evidence established the acts of the respondents, the trial Court failed to pronounce on the infringement of the appellant’s fundamental rights, counsel urged this Court to reverse the trial Court’s decision and award exemplary damages. He referred to Eliochin Nig Ltd V. Mbadiwe (1986) NWLR (Pt 14) 47 and Rookes V. Bernards (1964) 1 ALL ER 367.
In arguing his Issue No 1, which is similar with the appellant’s Issue No. 1, learned counsel for the 1st respondent submitted that the law is trite that the 2nd and 3rd respondents have the legal duty to prevent and detect crimes, apprehend offenders, preserve law and order as well as protect life and property and in carrying out these duties, the law empowers them to invite, interrogate, arrest or detain a suspect. He referred to Section 4 of the Police Act. Counsel then submitted that the invitation and search of the appellant’s house without more cannot be said to be an infringement of his fundamental right. He referred to Section 35 (1) (c), (3) (4) and (5) of the Constitution and Usman V. Economic and Financial Crimes Commission (2017) LPELR 43196.
He also stated that having admitted that there was an attack on the 1st Respondent’s palace, and an existing misunderstanding between the appellant and the 1st respondent, the 2nd and 3rd respondents were justified in inviting the appellant for investigation. Moreso, the appellant stated that he was invited about three times for interrogation and was never detained for 24 hours in any of the invitations. Counsel then summed up and submitted that those invitations never infringed on the appellant’s fundamental rights. He referred to Fawehinmi V. Inspector General of Police & Ors (2002) LPELR 1258; Ozah V. Economic and Financial Crimes Commission & Ors (2017) LPELR 43386 and Ogbuefi Azuka V. AIG (2007) CHR 69.
Learned counsel pointed out that what the appellant sought was protection from investigation which is not the intendment of the law. He referred to Fawehinmi V. Inspector General of Police (supra).
Learned counsel submitted further that though facts admitted need no further proof, the law is settled that where declaratory and consequential injunctive reliefs are sought, the appellant must still prove his case to the satisfaction of the Court to be entitled the reliefs sought and cannot rely on admissions of the respondents. He referred to Emenike V. Peoples Democratic Party & Ors (2012) LPELR 7802. He then argued that the 1st respondent has filed a counter affidavit and rebutted the facts in the affidavit in support. Counsel urged to resolve this issue in favour of the 1st respondent.
On Issue No 2, learned counsel submitted that every citizen who feels that an offence has been or is about to be committed has a right to make a report to the police and the person cannot be held liable for the acts of the police except where the report was lodged in bad faith. He referred to Fajemirokun V. Commercial Bank of Nigeria Ltd & anor (2009) LPELR 1231. Counsel then stated that the 1st respondent’s palace was attacked and this fact even the appellant admitted, then the 1st respondent has a duty to make a report to the police which he did. It is the duty of the appellant to prove that the 1st respondent did more than report to the police and he failed to prove that. Therefore, the appellant cannot be held respondent for what the 2nd and 3rd respondents did in the course of their investigations.
Finally, learned counsel stated that their invitation of the appellant coupled with a search of his house without more do not amount to infringement of his fundamental right. He referred to Ozah V. Economic and Financial Crimes Commission & Ors (supra). Counsel urged the Court to resolve this issue in favour of the 1st respondent.
On Issue No 3, learned counsel submitted that in a declaratory relief such as this, the appellant needs to prove his case to the satisfaction of the Court notwithstanding the position of the law that facts admitted need no further proof. He relied on Emenike V. Peoples Democratic Party & Ors (supra) and Nwokidu V. Okanu (2010) NSCQR 215 @ 246.
Learned counsel further argued that by Paragraphs 15, 18 and 19 (f) of the counter affidavit, it can be seen that the appellant is being investigated for a crime that was indeed committed following due process of the law. The application of the appellant seeks to shield him from being investigated. Moreover, granting this type of application will give right to every other being investigated to file an action to be shielded from investigation and the police will be handi-capped in the performance of their duties. He referred to Fawehinmi V. Inspector General of Police (supra) and Usman V. Economic and Financial Crimes Commission (supra). Counsel urged the Court to resolve this issue in favour of the 1st respondent and to dismiss the appeal.
In his reply on points of law, learned counsel for the appellant submitted that the powers of the police to invite, arrest, investigate or search a suspect cannot be exercised in such a way as to infringe on a suspect’s fundamental rights, or in other words the powers must not be improperly exercised.
He referred to Ukata & Ors V. Akpanowo & Ors (2016) LPELR 41249 and Luna V. Commissioner of Police Rivers State unreported appeal No CA/PH/216/2004.
Counsel also in response to the 1st respondent’s brief stated that there is no deposition by the 1st respondent that there was reasonable suspicion that the appellant committed the offence for which he was continuously invited by the 2nd and 3rd respondents. He referred to Chukwuma V. Commissioner of Police (1964) NMLR 21; Duruaku V. Nwoke (2015) 15 NWLR (Pt 1483) 423; Alaboh V. Boyes (1984) 4 NWLR 830 and Jimoh V. Attorney General of the Federation (1998) 7 HRLRA 513.
Counsel also distinguished the case of Ozah V. Economic and Financial Crimes Commission (supra) with the present appeal and argued that in the case at hand there was no preliminary investigation report presented to the appellant when he was invited by police; no undisputed criminal allegation against him, and that it is a pure vendetta. He referred to Ukata & Ors V. Akpanowo & Ors (supra). Counsel urged the Court to hold that the appellant is entitled to the declaratory reliefs sought.
The Nigerian Constitution seeks to protect and safeguard the basic or fundamental rights of all citizens. By its nature, fundamental right is a right that stands out and above the ordinary laws of the land which is in fact antecedent to any political society. It is a right with international flavor as can be seen in the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
Fundamental rights are guaranteed to all citizens and any person who alleges that any of the provision has been or likely to be breached can approach the Court for a redress. Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that:-
46(1) Any person who alleges that the provision of this Charter has being, is being, or is likely to be contravened in any state in relation to him may apply to the High Court for redress.
It is against the background of Section 46(1) above, the appellant approached the High Court for the enforcement of his fundamental rights to personal liberty contrary to Section 35(1), freedom of movement contrary to Section 34 and dignity of human person contrary to Section 41 of the Constitution.
Against this background, the Issues for determination adopted by the Court will now be resolved starting with Issue No. 1 and then Issues Nos 2, 3 and 4 jointly;
Whether the uncontroverted continuing invitation of the appellant by the 2nd and 3rd respondents without any justification did not warrant the learned trial Judge to grant protective reliefs and orders for the life, dignity and liberty of the appellant.
The main complaint in the issue is the fact that the appellant was invited by the 2nd and 3rd respondents about three or four times in connection with a crime committed in the palace of the 1st respondent. This fact can be seen in paragraphs 16 – 20 of the affidavit in support. The 1st respondent admitted that in the course of investigating the crime committed in his palace, the police invited some people for questioning including the appellant. The position of the law is that facts admitted whether in a pleading or in an affidavit evidence need no further proof. They are deemed to be true, correct and admissible against the person making the admission. See Oceanic Bank International Ltd V. Brokenn Agro Allied Industries Ltd (2008) LPELR 4671; Ojo V. Gharoro (1999) 8 NWLR (Pt 615) 374 and Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt 146) 578.
The 2nd and 3rd respondents on the other hand did not file any counter affidavit in opposition. The law is trite that in a situation such as this where facts are provable by affidavit, and one of the parties (as the appellant herein) deposed to certain facts, the respondents have a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established. In other words, in the absence of a counter affidavit, averments in an affidavit in support are generally admissible and the Court is entitled to give full weight and value to such averments. See NICON V. Power and Industrial Engineering Co., Ltd (1986) 1 NWLR (Pt 14) 1; Egbuna V. Egbuna (1989) 2 NWLR (Pt 106) 773 and Attorney General Anambra State & Ors V. Okeke & Ors (2002) 12 NWLR (Pt 782) 575. The facts of inviting the appellant to the police station on several occasions constitutes the finding of fact of the trial Court. The Court in its judgment held inter alia at P157 of the records thus:
‘Now the agreed fact in this case is that, the 1st respondent reported the attack on his palace to the police and the police (2nd and 3rd respondents) in the course of their investigation into the report extended invitation to the appellant on 17/05/2016 and three other occasions.’
The learned trial Judge then held as follows:
It is trite and I so hold, that the police in trying to discover whether a crime has been committed is entitled to question anybody or make enquiry.
It is also now settled that the mere invitation of a person or suspect by the police in the course of their investigation into a crime reported to them without more is not a threat to the personal liberty or life of the person so invited.
It is the above reasoning of the learned trial Judge that is put to test by the appellant who contended that some protective reliefs ought to have been granted by the trial Court.
Section 4 of the Police Act confers on the 2nd and 3rd respondents extensive powers of maintaining law and order. By that Section, the Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the Preservation of law and order, the Protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. See Fawehinmi V. Inspector General of Police (2002) 7 NWLR (Pt 767) 606; Ozah V. Economic and Financial Crimes Commission & Ors (2017) LPELR 43386 and Azuka V. Inspector General of Police (2007) CHR 69.
Against the above background, would a grant of protective relief be appropriate in the circumstances? It has to be noted that a mere invitation of a person by the police without more, is within their powers; except where it can be shown that the police misused their powers. Thus, the exercise of the powers of the police to invite and investigate crimes simpliciter cannot amount to a breach of fundamental rights. See Kalio & Ors V. Dawari & Ors (2018) LPELR 44628; Akanbi & Ors V. Commissioner of Police Kwara State & Ors (2018) LPELR 44049; and Tsanyawa V. Economic and Financial Crimes Commission & Anor (2018) LPELR 45099. The more reason can also be found in the fact that the duties of the police is both statutory and constitutional.
By seeking some protective reliefs from the Courts, the appellant is by implication trying to stop the police from performing their lawful and constitutional duties. It is not right and it is not healthy for the Courts to afford a shelter to people being investigated by the police for crimes. Where the Courts accede to these types of requests, then investigating crimes in this country would be an impossibility for every suspect will rush to the Court and seek for protective orders. The Courts cannot and should not stop police from performing their lawful and constitutional duties. See Oguejiofor & Ors V. Ibeabuchi (2017) LPELR 43590 and Attorney General Anambra State V. Uba (2005) 33 WRN 191.
In the light of the above, the trial Court was perfectly correct to have refused the grant of any protective orders. The appellant has not shown that any of his rights as guaranteed by Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) have been or are likely to be breached. Issue No 1 as formulated is therefore resolved against the appellant and in favour of the respondents.
Having carefully gone through Issues 2, 3 and 4, it is my humble view that being issues relating to evaluation of evidence, there will be no harm in dealing with them together.
Evaluation of evidence entails assessment of evidence so as to ascribe probative value to it. It involves a reasoned belief and preference of the evidence of one of the contending parties and disbelief of the other. The primary responsibility of evaluating such evidence presented by parties before it, rests on the trial Court. See Oyekola V. Ajibade (2004) 17 NWLR (Pt 902) 356 and Al-Mustapha V. State (2013) 17 NWLR (Pt 1383) 350. An appeal Court will only interfere where there is an improper evaluation of evidence.
In relation to affidavit evidence, evaluation of same entails specific reference to Paragraphs in the affidavit in support and reference to Paragraphs in the counter affidavit on a Particular point, assess and appraise their probative value before deciding the point on the basis of the assessment made. The aim of such evaluation is to ensure the veracity and authenticity of the evidence. See Okoye & Anor V. Centre Point Merchant Bank Ltd (2008) 15 NWLR (Pt 1110) 335.
The appellant vide Paragraph 15 of the affidavit in support deposed that the 1st Respondent instigated the 2nd and 3rd respondents to invite him on the allegation of sponsoring unknown armed men to attack his palace. The 1st Respondent in his counter affidavit averred that after the attack on his palace, he reported the crime to the police who invited several people for investigation including the appellant. The trial Court in its judgment at Page 157 of the records held inter alia, that:
“The report the 1st respondent made to the police therefore cannot be said to be in bad faith. He therefore cannot be held culpable or liable for reporting the attack on his palace to the police. Of course, what the police decided to do in the course of their investigation into the report is entirely the responsibility of the police, because they have a discretion to or not to investigate the report he made to them.
Now, two main issues arose from the three issues for determination under consideration. First, that the trial Court failed to hold that it was the 1st respondent who instigated the 2nd and 3rd respondents to invite the appellant and secondly, the trial Court’s refusal to secure the safety of the appellant.
It should be noted that at no time was the appellant arrested by the 2nd and 3rd respondents. The appellant only honoured the invitation extended to him by the 2nd and 3rd respondents. In a consideration of whether to infer the acts of the 1st respondent as malicious or made in bad faith, the enquiry should be whether the report made by the 1st respondent to the 2nd and 3rd respondents leading to the invitation of the appellant is true; where the report is false or actuated by malice, then an inference of instigating the police may be made. But the trial Court found out that the palace of the 1st respondent was attacked and this fact even the appellant admitted. In the circumstances such as this the 1st respondent was perfectly right to report the attack on his palace to the police. In Oando Plc V Farmatic Biogas West Africa Ltd. & Anor (2018) LPELR 45564 @ 25, Abubakar JCA; held that:
‘The law is well settled that a citizen’s civic responsibilities include reporting crimes and perceived or suspected criminal acts either to his person or the person of a fellow citizen and such a citizen, after making such complaints to the appropriate security agencies, cannot be held culpable for performing his civic responsibility, unless at the conclusion of the investigations of the complaints he made, it is found that they were baseless and made mala fide.’
See Fajemirokun V. Commercial Bank Nig Ltd & Anor (2009) 2 SCM 55. The 1st respondent has a duty to report not only a crime committed against his person but against any person. There is therefore justification for the report he made to the police; it cannot be said to be actuated by malice or in bad faith.
Of interest is the fact that investigation into the commission of the crime has not concluded before the appellant rushed to the Court for the enforcement of his fundamental rights. This fact alone would seem to foist upon the Court a situation of near hopelessness to arrive at a decision on whether the 1st respondent instigated the police or not. This is so because it is only upon the completion of the investigation and subsequent finding of no fault on the part of the appellant that the issue of the role played by the 1st respondent can come into play; for where the complaint against the appellants are prima facie established, the fact of his invitation by the police or even his arrest will be of no moment and cannot afford him any relief. The issue of instigating the police to invite the appellant is to my mind prematurely raised at this stage. It ought to have waited until after the conclusion of the police enquiry into the offence.
The stance taken by the trial Court in refusing to hold that the 1st respondent instigated the police to invite the appellant is proper in the circumstances. Moreso, apart from the bare assertion in the affidavit in support that the 1st respondent instigated the police to invite the appellant, there is no evidence to prove such instigation. The fact that at a point in time there was a dispute between appellant and the 1st respondent which dispute arose as a result of the way the money accruable to the two traditional rulers was shared is no evidence of instigation.
Finally, as rightly observed by the trial Court, the 2nd and 3rd respondents cannot be stopped by the Court from performing their lawful and constitutional duties. The appellant has not proved the entitlement of any of his reliefs as he could not show that any of his fundamental right has been or is likely to be breached. I think the aim of this application is to stop the police from performing their duties and that explains the rush to the Court. Unfortunately the Court cannot at this stage come to the aid of the appellant.
Though with the resolution of Issue No. 1 against the appellant, this Court ought to dismiss the appeal, out of abundance of caution, the remaining issues were considered and resolved against the appellant and in favour of the respondents.
The resolution of all the Issues against the appellant leaves this Court with no option than to hold that this appeal is unmeritorious and it ought be and is hereby dismissed. I affirm the decision of the trial Court in Suit No PHC/1636/2016. Cost of N50,000.00 is awarded to the 1st Respondent.
APPEAL DISMISSED.
ALl ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of a preview of the lead judgment of my learned brother Lamido, JCA. I fully agree with his reasoning and conclusions. I have nothing more to add. I too would dismiss this appeal for lacking in merit. I abide by all the consequential orders of my learned brother, including the order on costs.
MOHAMMED MUSTAPHA J.C.A.: I had the advantage of reading the lead Judgment just delivered by my Learned brother ABUBAKAR MU’AZU LAMIDO, JCA.
The Appeal lacks merit and it is hereby dismissed. I abide by the consequential orders in this appeal.
Appearances:
O.U. Ulasi, Esq.For Appellant(s)
G.I. Abibo, Esq., with him, C.E. Nwokorie, Esq., C.S. Maduba, Esq., and E.E. Briggs, Esq., for the 1st Respondent.
The 2nd and 3rd Respondents were absent and unrepresented.
For Respondent(s)
