IBE ORKATER v. CHIEF GODWIN EKPO & ORS (2014)

IBE ORKATER v. CHIEF GODWIN EKPO & ORS

(2014)LCN/7264(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of June, 2014

CA/C/130/2012

RATIO

WHETHER IN AN APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS, IT IS NECESSARY TO PROVE THE INSTRUMENTALITY OF THE OTHER PARTY IN SETTING THE LAW IN MOTION

In an application for the enforcement of fundamental rights as provided in Section 35 of the 1999 Constitution of the Federal Republic of Nigeria, the Applicant is under a duty to prove that the Respondent was instrumental to setting the law in motion to arrest him and that the report of the Respondent was totally false, malicious and without foundation. See Okonkwo vs. Ogbogu (1996) 4 SCNJ 190 at 205-206 and Nwadinobi vs. Botu (2002) FWLR (Pt.96) 450 at 458 paragraphs ”E”-“G”. per UZO I. NDUKWE-ANYANWU, J.C.A.

WHETHER A CAUSE OF ACTION CAN BE DEFEATED BY WRONG JOINDER OF PARTIES

It is now settled that no cause or matter shall be defeated by reasons of misjoinder/wrong joinder of parties. See Bello vs. INEC & Ors. (2010) 184 LRCN page 54 where the Supreme Court held:
“The position of the law is well settled that no cause or matter shall be defeated by reasons of misjoinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the right and interest of the parties actually before it.” per UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

IBE ORKATER Appellant(s)

AND

1. CHIEF GODWIN EKPO
2. SUNNY IBUOT
3. SUNNY UBOCHI Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): The 1st and 2nd Respondents as Applicants in the Court below brought an action under the Fundamental Rights Procedure Rules, against the Appellant as 2nd Respondent.
The 1st and 2nd Respondent prayed for the following reliefs:
“(a) A declaration that the arrest and detention and/or threat at arresting and detaining the Applicants by the Respondents amount to violation or breach of the Applicants’ Fundamental Rights to wit: right to dignity of human person, right to personal liberty, right to fair hearing, right to freedom of movement as guaranteed in Section 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria.
(b) An order for the Respondents to pay jointly and severally the sum of Five Million Naira (N5,000,000.00) as damage or compensation to the Applicants for breach of or “threat to the Applicants’ Fundamental Rights.
(c) An order of mandatory injunction restraining the Respondents from harassing, arresting, detaining the Applicants or otherwise violating the Applicants’ Fundamental Rights in respect of the false and fraudulent complaint.
(d) And for any further order or relief as the Honourable Court may deem fit to make in the circumstance.”

The 1st and 2nd Respondents filed their supporting affidavits and further and better affidavits in support of their prayers.
The 1st Appellant as 2nd Respondent and the other respondents filed their respective counter-affidavits and the trial was concluded with the learned trial Judge delivering his considered judgment on 26th January, 2009. In his judgment he granted these reliefs against the Respondents.
“I find and hold therefore that the 1st-3rd Respondents had breached Applicants’ Fundamental Rights by making false allegations to the police and leading the police to attempt to arrest the Applicants.
The Applicants are entitled to compensation for the violent and malicious invasion of their Fundamental Rights. I therefore award the 1st Applicant N2m (Two Million Naira) against the 1st-3rd Respondents jointly and severally. I also award the 2nd Applicant the sum of N2m (Two Million Naira) against the 1st -3rd Respondents jointly and severally.
The 1st-3rd Respondents shall jointly and severally pay each of the Applicants N3,000.00 (Three thousand Naira) cost.”

Being dissatisfied with the judgment, the Appellant filed his notice and 7 grounds of appeal. The Appellant filed his appellant’s brief on 6th August, 2012 and articulated 7 issues for determination as follows:-
“(i) Whether the Court was right when it held thus: “From the records before me, I find that the Applicants had lawfully purchased and paid for diesel which they purchased from the 1st Respondent. The basis did not arise nor exist therefore that they had stolen nor obtained the diesel by fraud or false pretences.”
(ii) Whether the Court was right when it held thus: “That the 1st-3rd Respondents led the Police in December, 2005 to Applicants’ Filling Station to arrest them when they had committed no offence.”
(iii) Whether the trial Court was right when it held thus: “I find and hold therefore that the 1st-3rd Respondents had breached the Applicants’ Fundamental Rights by making false allegations to the police and leading the police to attempt to arrest the Applicants.”
(iv) Whether the fundamental rights enforcement should be used as a shield to prevent criminal prosecution.
(v) The fundamental right application is incompetent for joinder of Applicants.
(vi) Whether the trial Court was right when it granted the Applicants separate reliefs as against joint reliefs the Applicants prayed for.
(vii) Whether the judgment of the trial Court that the 1st-3rd Respondents breached the fundamental rights of the Applicants was not perverse as it was not supported by the weight of evidence adduced before the trial Court?”

The 1st and 2nd Respondents filed their brief on 24th September, 2012 and articulated 3 issues for determination as follows:
“1. Whether the 1st and 2nd Respondents’ application for the enforcement of their fundamental rights was competent before the Court below.
2. Whether the learned trial Judge was right in awarding N2million to each of the 1st and 2nd Respondents.
3. Whether the judgment of the Court below was supported by the evidence before the Court.”

The facts of this case as captured by the Appellant are as follows:
The Appellant was contacted by the 4th Respondent to join in supplying diesel to Daewoo Nig. Ltd, Eket. The said supply of diesel was to be made in execution of an (sic) Local Purchase Order from Daewoo Nig. Ltd. which said LPO was facilitated by one Walter Francis. The Appellant and 4th Respondent raised money jointly to buy 13620 litres of diesel for supply to Daewoo Nig. Ltd., Eket. The said diesel was loaded into a truck driven by one Gogo and on arrival at Eket, close to the entrance gate of Daewoo Nig. Ltd. the youth restiveness was simulated by Walter Francis which prevented the truck driven by Gogo from getting to the Daewoo Nig. Ltd. gate. The said Walter Francis convinced the Appellant and 4th Respondent to hand the truck over to him to deliver to Daewoo Nig. Ltd., Eket. The Appellant and 4th Respondent handed the truck to him and left for Aba. The said Walter Francis discharged the diesel in petrol filling stations belonging to the 1st and 2nd Respondents. The Appellant suspected foul play when he could neither recover the diesel nor his money. The Appellant reported the incident to the police at Osisioma Ngwa and the Police arrested Gogo who took the police to the filling stations belonging to the 1st and 2nd Respondents where the diesel was discharged. When the 1st and 2nd Respondents were told that the police came to their filling stations they petitioned the 5th -7th Respondents that the case incidented at Osisioma Police Station be transferred to the Nigerian Police, Zone 6, Calabar.

The issues articulated by both parties are verbose and cannot properly dispose of this appeal. I will rather articulate the following issues which cover all the issues articulated by both parties as follows:
“(1) Whether the learned trial Judge properly evaluated the affidavit evidence filed by the parties before arriving at a finding that there was a breach of the fundamental rights of the 1st and 2nd Respondents.
(2) Whether the trial Judge was right in awarding N2m to each of the Applicants.”

The Appellant and the 3rd Respondent had bought diesel about 13620 litres at a cost of N945,000.00. This was to service the L.P.O. No.542 to supply to Daewoo (Nig.) Ltd. as part supply. This diesel was not delivered to Daewoo as directed, rather it was sold to 1st and 2nd Respondents fraudulently. The 1st and 2nd Respondents averred that the diesel was supplied to them normally and they paid N67:00 per litre and therefore paid a total of N924,600.00. This was evidenced by the cheque withdrawal from the 1st Respondent’s account.

As a result of this fraudulent diversion of the diesel, the Appellant & 3rd Respondent reported this diversion to the Police in Osisioma, Aba in Abia State. Thereafter the tanker driver was arrested. The tanker driver acted as a pointer to the police and led them to the two filing stations where the diesel was discharged. The two applicants are 1st and 2nd Respondents who owned those two filling stations where the diesel was discharged.

However, when the Police in Osisioma refused to or neglected to do a proper investigation, the Appellant then filed a petition to the Assistant Inspector General of Police, Zone 9, Umuahia. The police then swung into action and confirmed that indeed the diesel was discharged in the filling stations belonging to the 1st and 2nd Respondents.

The Appellant made a report and also wrote a petition to the Police reporting the fraudulent discharge of his 13620 litres of diesel in the filing stations of the 1st and 2nd Respondents. The Appellant acted within his right as a citizen to report. See Gbajor vs. Ugunburegun (1961) All NLR (Pt.IV) page 853; BWA Ltd. vs. Odiatu (1962) All NLR page 625.
ISSUE ONE:
The learned Counsel for the Appellant Bob C. Ogu, Esq. who settled this brief submitted that there was an allegation that the diesel was discharged in the filling stations of 1st and 2nd Respondents. He argued that the Appellant had a genuine suspicious that the (Applicants) 1st and 2nd Respondents were in possession of the diverted diesel. The Appellant had exercised his right by reporting a suspected criminal act to the police without attracting any liability to his person: Gbajor vs. Ogunburegun (1961) All NLR (Pt.IV) page 853; Bank of West Africa Ltd. vs. Odiatu (1962) All NLR page 625 where the Court held:
“It is the duty and the right of every citizen to bring to the notice of the police either report or a specific complaint against a person who is suspected or alleged to have committed offences, and it is for the police to decide what action they should take on the report or complaint.”
Counsel submitted that the trial Judge had no basis to have made the finding as follows:
“From the records before me, I find that the Applicants had lawfully purchased and paid for diesel which they purchased from the 1st Respondent. The basis did not arise nor exist therefore that they had stolen nor obtained the diesel by fraud or false pretences.”

The learned Counsel submitted that the trial Judge was wrong when he held that the 1st and 2nd Respondents had not committed any offence since there was no criminal charge against the 1st and 2nd Respondents. In the counter-affidavit of the 4th-6th Respondents, the Police Officers who are no longer parties averred that there was a prima facie case against the 1st and 2nd Respondents.

Counsel submitted further that the Court was wrong when it held that the Appellant had breached the fundamental rights of the 1st and 2nd Respondents when they attempted to arrest them. Counsel argued that the act of reporting to the police of any suspected criminal act against any citizen cannot constitute a breach of the person’s fundamental rights. See Gbajor vs. Ogunburegun (supra); Bank of West Africa Ltd. vs. Odiatu (supra) where it was held:
“It is the duty and the right of every citizen to bring to the notice of the police either report or a specific complaint against a person who is suspected or alleged to have committed offences, and it is for the police to decide what action they should take on the report or complaint.”

In the instant case, the 1st and 2nd Respondents had failed woefully to establish that the Appellant and the 3rd Respondent were instrumental to setting the law in motion to arrest them and that the report was totally false, malicious and without foundation.

Learned Counsel reiterated that the Fundamental Right Enforcement Procedure should not be used as a shield to prevent criminal prosecution. Counsel argued that in this trial the learned trial Judge held that the fundamental rights of the 1st and 2nd Respondents were breached and that they committed no offence. This invariably means that the trial Judge had already shielded the 1st and 2nd Respondents from criminal prosecution. This was definitely not the intendment of Chapter IV of the 1999 Constitution.

Further, the Counsel to the Appellant argued that the application of the 1st and 2nd Respondents in the lower Court was incompetent. It was incompetent because both applicants filed the application jointly, contrary to the provisions of the Fundamental Right Enforcement Procedure Rules, 1979. Counsel opined that fundamental rights were personal and as such, each applicant must bring a separate application. See R.T.F.T.C.I.N. vs. Ikwecheghi (2000) 1 WRN page 134, (2000) 13 NWLR (Pt.683) page 1 where the Court held:
“If an individual feels that his fundamental right or human right has been violated, he should take action personally for the alleged infraction, as rights of one differs in content and degree from the complaints of the other. It is a wrong joinder of action and incompetent for different individuals to join in one action to enforce different causes of action.”

Counsel, therefore, urged the Court to resolve this issue on behalf of the Appellant.
The learned Counsel to the 1st and 2nd Respondents submitted that their application in the lower Court was competent as the 1st and 2nd Respondents complied with the rules. They filed a motion exparte for leave to apply for an order for enforcement of their fundamental rights as guaranteed by Section 34, 35, and 36 of the 1999 Constitution. The 1st and 2nd Respondents thereafter filed their own separate affidavits deposing to facts within their knowledge. Order 2 rule 2(3) provides:
“2(3) Every party to the application must supply to any other party copies of the affidavit which he proposes to use at the hearing.”
The learned trial Judge in his judgment held:
“Applicants filed a single motion but deposed to different affidavit to ventilate their grievances. Their affidavits are virtually similar.”

The Appellant filed his own counter-affidavit and raised no objection to the 1st and 2nd Respondents’ application. Counsel argued that the position of the law is that a party who desires to raise an objection to the competence of a suit on grounds of procedural irregularities must do so before taking steps in the proceedings. See Mkpat Enin Local Government vs. Pikk (Nig.) Ltd. (2004) All FWLR (Pt.236) page 287 where Ekpe, JCA held:
“It is a well settled law that a breach of a rule of practice or procedure can only render a proceeding an irregularity and not a nullity. Such irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity.
The only exception to this general rule is that the party will be allowed to complain on appeal if he can show that he has suffered miscarriage of justice by reason of the procedural irregularity.”

Counsel submitted further that the 1st and 2nd Respondents filed a Joint application but filed separate affidavits. The case of R.T.F.T.C.I.N. vs. Ikwecheghi (supra) cited by the Appellant is not on all fours with the instant case. There is no provision under the Fundamental Rights Enforcement Procedure Rules, 1979 which prevents joinder of applicants in an application for enforcement of fundamental right particularly where the facts relied upon are similar and a common cause of action is established as in this case. Counsel referred the Court to the case of Uzoukwu & Ors. vs. Ezeonu II & Ors. (1991) 6 NWLR (Pt.200) page 768 where Nasir, PCA (as he then was) held:
“The section requires that a person who wishes to petition and this includes in my opinion a group of persons claiming together, he is entitled to a fundamental right.”

The trial Judge was therefore right when he held that:
“Applicants filed a single motion but deposed to different affidavits to ventilate their grievances. Their affidavits are virtually similar.”

Counsel submitted that the 1st and 2nd Respondents’ affidavits contained sufficient facts which established their cause of action. Counsel stated that the case of the 1st and 2nd Respondents was that on 23rd of November, 2005 Udeme Joseph Bassey, a known dealer in Petroleum Products supplied to the 1st and 2nd Respondents, 13,800 litres of diesel at a cost of N67.00 per litre amounting to N924,600.00. The 1st and 2nd Respondents took delivery of the diesel product at the 1st Respondent’s filling station at No.19, Uyo Road, Ikot Ekpene and paid the agreed price of N67.00 per litre amounting to N924,600 which was the market price for the product. See paragraph 6 of the 1st Respondent’s Affidavit at page 4 and paragraph 5 of the 2nd Respondent’s affidavit at page 10 of the records. See also Exhibit “A” attached to the 1st Respondent’s affidavit which is an Intercontinental Bank Cheque of N700,000.00 which was duly received by the 3rd Respondent as shown on the bank statement of account on page 7 of the record of proceeding.

Counsel argued that the Appellant said it was Gogo, the tanker driver who incriminated the 1st and 2nd Respondents.
Counsel submitted that the counter-affidavits of the 1st Appellant and the 3rd Respondent were at variance as regards the quantity of the diesel in question. Appellant said it was 13620 litres whilst the 3rd Respondent said it was 30,000 litres. Counsel, therefore, stated that the 13,800 litres of diesel bought was not the same diesel alleged stolen by the Appellant. The trial Judge was, therefore, right to hold that:
“From the record before me, I find that the Applicants had lawfully purchased and paid for the diesel which they purchase from the 1st Respondent. The basis did not arise nor exist therefore that they had stolen nor obtained the diesel by fraud or false pretences.”

Counsel submitted that the 1st and 2nd Respondents in their affidavits established a breach of or threat to their fundamental rights by the Appellant and the 3rd Respondent. Counsel submitted that the Appellant in his affidavit averred that he reported the 1st and 2nd Respondents to the Police, Zone 9 Umuahia vide Exhibit “1B2”. However, the letter Exhibit “1B2” was addressed to Zone 6, Calabar and was alarmed when Umuahia Zone 9 swung into action.
Counsel alleged that, the Police in Zone 9 Umuahia was induced by the Appellant to send the law in motion for the infringement of their fundamental rights.
Counsel submitted further that the learned trial Judge carefully evaluated the affidavits of all the parties before the Court, properly weighed same and made findings of facts before arriving at his decision in favour of the 1st and 2nd Respondents. The Appellate Court will not reading interfere with the evaluation of evidence on findings of facts by the trial Court unless it is shown that such evaluation or findings were perverse and not supported by the evidence before the trial Court. See Anyanwu & Ors. vs. Uzowuaka & Ors. (2009) Vol. 177 LRCN page 204.

Counsel urged the Court to hold that the judgment was not against the weight of evidence. Learned Counsel argued that the case of Gbajor vs. Ogunburegun (supra) cited by the Appellant does not support the case of the Appellant. Counsel submitted that there are exceptions in law to the right of a citizen to make a complaint against another citizen to the Police. There are also exceptions to the right or powers of the Police to arrest or threaten to arrest a citizen upon an allegation of commission of crime or reasonable suspicious of commission of crime. The exceptions are as follows:
“(a) Where it is shown that the report or complaint to the Police is totally false, baseless and without foundation.
(b) Where the police is induced to arrest or threatened to arrest a suspect and do not act on their own volition or initiative.
(c) Where the complaint or report is made malafide.
See the cases of Monday Nwadinobi vs. Mrs. Mary Botu (2000) 9 NWLR (Pt.272) 220 at 228; Fajemirokun vs. Commercial Bank (Credit Lyonnanis) Nig. Ltd. (2009) 5 NWLR (Pt.1135) page 588 at 600.”

Counsel submitted further that the complaint of the Appellant to the Police was totally false, baseless and without foundation. The Appellant induced the police at Osisioma Police Station and Zone 9, Umuahia to arrest or threaten to arrest the 1st and 2nd Respondents when no offence was committed by or alleged committed by the 1st and 2nd Respondents. Counsel argued that the burden was on the Appellant to prove, by credible evidence, that the 1st and 2nd Respondents committed any offence or were reasonably suspected to have committed a criminal offence to warrant his report to the police.

Counsel finally, submitted that the trial Judge was right when he held that the 1st and 2nd Respondents did not commit any offence to warrant the false and malicious complaint by the Appellant and the 3rd Respondent.
Finally Counsel urged the Court to uphold the judgment of the Court below and resolve this issue against the Appellant.

The learned Counsel to Appellant had challenged the competency of the 1st and 2nd Respondents’ application in the lower Court. Learned Counsel had argued that the 1st and 2nd Respondents had filed only one application, but with individual affidavits deposing to facts of the case. By virtue of Order 2 rule 3 of the 1979 Fundamental Rights Enforcement Procedure Rules, the lower Court or Judge is empowered to consolidate and consider several applications together where they had been filed separately, so far as they relate to the same infringement. See Komolafe vs. Attorney-General of the Federation and Olawepo vs. A.G.F. 1 NPILR page 407.

In the above cases, the trial Judge upheld the application for consolidation since the reliefs sought by both men were identical. So also the Court will allow many applications to be joined together in the same application once a common cause of action can be established. See Uzoukwu & Ors. vs. Ezeonu II & Ors. (supra).
See Ogwuche & Ors. vs. University of Agriculture, Makurdi & Ors. 2 NPILR page 809 where 102 students successfully prosecuted one action against the Respondents under the 1979 Fundamental Right Enforcement Procedure. In Sadiku & 35 Ors. vs. Obafemi Awolowo University, Ife 2 NPILR page 809. Here also, 36 students who were expelled by the university were permitted to file a single application for the enforcements of their rights. It, therefore, means, that the 1st and 2nd Respondents are within their scope in filing only one application for both of them. The trial Judge was right in holding that “the applicants filed a single motion but deposed to different affidavits to ventilate their grievances. Their affidavits are virtually similar.” The application filed by the 1st and 2nd Respondents is, therefore, competent for the enforcement of their fundamental rights.

The Appellant had argued that he was within his inalienable rights when he made a report to the Police in Osisioma Police Station that his 13620 litres of diesel had been diverted. The Police at Osisioma was tardy, so he wrote a petition Exhibit “1B2” to Assistant Inspector General of Police, Zone 6, Calabar. A close look at Exhibit “1B2” the petition to Zone 6, Calabar will reveal that the Appellant narrated the whole story. He named everyone who had been connected with the disappearance of the 13620 litres of diesel. There was no mention of the 1st and 2nd Respondents in the petition written on his behalf by a lawyer.
It should be noted that, the petition was directed to the Assistant Inspector General of Police, Zone 6, Calabar. However, the Command that did the investigation was Zone 9, Umuahia. It was during the investigation that the tanker driver led the Police to the 1st and 2nd Respondents who owned the filling station the diesel was discharged.

The Appellant had taken the right steps as a right thinking citizen to report to the Police. When they were not forthcoming, he instructed his lawyer to write and forward a petition to the Assistant Inspector General of Police, Zone 6, Calabar. The Appellant did not take laws into his hands, he took the normal route a law abiding person must take. The Appellant had not been shown through the affidavits of the 1st and 2nd Respondents that he did any other thing in furtherance of his petition to the police.

It was the police that invited the 1st and 2nd Respondents to their office. The 1st and 2nd Respondents averred that they were held in the Police Station, Umuahia from 9:00am to 7:00pm of the same day 27th of April, 2006. The 1st and 2nd Respondents were never arrested nor detained unduly. In fact, the 1st and 2nd Respondents deposed to the fact that they were arrested and detained from 9:00am to 7:00pm of the same day. The police officers – 4th -6th Respondents in the Court below deposed to the fact that the 1st and 2nd Respondents were arrested and granted Police bail on the same day. The 1st and 2nd Respondents were released on the production of reasonable sureties that same day. Paragraph 6 of the 4th-6th Respondents in the lower Court is reproduced hereunder for ease of reference:
“6. That 4th-6th Respondents further deny paragraph 15 of the 1st Applicant’s verifying affidavit and state that the 1st Applicant was detained on a reasonable suspicion of having committed a criminal offence and was duly granted police bail when a surety became available to ensure he appears to stand trial. (The bail bond duly certified by one Joseph Bassey Ikoedam and Boniface Johnson Atakpa to the effect that no money was collected for this purpose from the 1st Applicant is hereby annexed and marked Exhibit “C”).”

This paragraph was not in any way countered by the 1st and 2nd Respondents so it would be taken as true:
“8. That 4th-8th Respondents further states that in difference (sic) to the Court’s order restraining it from investigation of this case, no further action was taken in furtherance of investigation into this case pending the possible reversal of the Court’s order.”

The 4th-6th Respondents have since stopped further investigation.
“The burden of proving the legality or constitutionality of the arrest or detention of a person is on the arresting authority. Therefore, it is the Respondents’ duty to justify the arrest of the applicants. Where the Respondents, having admitted the arrest and detention of the applicant the onus is on them to prove that such arrest and detention is lawful.”
Iyere vs. Doru (1988) 5 NWLR (Pt.44) page 665; Abiola vs. Abacha (1998) 1 HRLRA page 453, Jimoh vs. Attorney-General of the Federation (1998) 1 HRLRA 513.

The 4th-6th Respondents agreed that they arrested and detained the 1st and 2nd Respondents for questioning. It was on a reasonable suspicion that they were receivers of stolen diesel. The diesel was actually delivered to their filling stations. 1st and 2nd Respondents accepted that indeed they bought the diesel at market overt. This means that they bought the diesel at the current market price.
The 1st and 2nd Respondents had a connection with the diesel which was traced by the 4th-6th Respondents during investigation to them. It can be said that the diesel was traced to the 1st and 2nd Respondents even though they bought it from a supposed Petroleum Products dealer.

It is not the duty of the Court below to try to investigate and rule on whether the 1st and 2nd Respondents had committed an offence since there was no criminal charge a before him. The 4th-6th Respondents had arrested and detained the 1st and 2nd Respondents on a reasonable suspicion that a crime had been committed.
The diesel had been traced to the 1st and 2nd Respondents and as such, the suspicion was reasonable. It is only after their arrest and questioning could the 1st and 2nd Respondents say how they bought the diesel exhibiting the documents and instrument of purchase i.e. the cheque for N700,000.00.

In the circumstances of this case, the police first arrested the 1st and 2nd Respondents on a reasonable suspicion that the diesel, the subject matter of their investigation, was found with the 1st and 2nd Respondents. It is only by arresting and detaining them did they proffer how they bought the diesel at supposed market price.

The 4th -6th Respondents had proved that the 1st and 2nd Respondents were lawfully arrested on a reasonable suspicion that a crime had been committed. I don’t think this is unreasonable as the 4th-6th Respondents invited the 1st and 2nd Respondents to their offices. They appeared. On that same day, they were arrested, detained and offered Police bail. They were also released that same day on police bail. Was this unreasonable? I think not.

Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or is likely to commit the offence.
“An arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for the breach of his fundamental rights.”
Okaro vs. C.O.P. & Anor. (2001) 1 CHR page 407.

However, it should be noted that the police does not have unbridled powers to deprive citizens of their liberty while the case against them is still being investigated. Johnson vs. Lufadeju (2002) I NWLR (Pt.768) page 203

The 1st and 2nd Respondents did not in anyway state what the Appellant did that was wrong, other than make a report and write a petition to the Police. The Appellant was only exercising his right under the Constitution. There was nothing unreasonable in what he did. The Appellant was on a legitimate chase to find out who defrauded him out of his 13620 litres of diesel.

Having not specifically stated what else the Appellant did, it cannot be said that he set the law against the 1st and 2nd Respondents maliciously.
The trial Judge in his decision held that the 1st and 2nd Respondents have not committed any crime. This finding in my humble opinion is perverse as there is no criminal charge before him.
“A Court must as a rule limit itself to the circumstances of a particular case or a case placed before it. Thus a Court cannot be moved to make an order of perpetual injunction or blanket injunction against any future arrest or detention.” If the applicant is again wrongly arrested and detained in future, the doors of the Courts are always open and justice will be dispensed without fear or favour affecting or ill will.”
See Jimoh vs. A.G.F. (1998) 1HRLRA page 513.

In the present case the learned trial Judge held that the 1st and 2nd Respondents have not committed any offence. This is, therefore, a shield against any future prosecution of the 1st and 2nd Respondents. The trial Judge has clearly gone beyond the scope of fundamental rights procedure placed before him.
From the foregoing, it is clear that the Appellant and 4th-6th Respondents in the Court below did not breach the fundamental rights of the 1st and 2nd Respondents. This issue is, therefore, resolved in favour of the Appellant.

ISSUE TWO:
Having held that the Appellant and the 4th-6th Respondents in the Court below had not breached the fundamental rights of the 1st and 2nd Respondents, this issue is now an academic exercise. This issue also fails.

Having resolved both issues in favour of the Appellant, this appeal is meritorious and, therefore, allowed. The judgment and the orders of the High Court of Akwa Ibom State sitting in Ikot Ekpene is hereby set aside.
I make no orders as to costs.

CHIMA CENTUS NWEZE, J.C.A.: My Lord, Uzo I. Ndukwe-Anyanwu, JCA, obliged me with the draft of the leading judgment just delivered now. I am persuaded by the reasoning and conclusion. I abide by the consequential orders in the said leading judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in advance, the Judgment of my learned Brother, Ndukwe-Anyanwu JCA, allowing this appeal. I completely agree with the reasoning and the conclusions reached, which I adopt as mine.
It must be emphasized that the Appellant was certainly acting within his rights in taking his complaint to the police.

In Fajemirokun V. Commercial Bank Nig. Ltd LER [2009] SC.336/2002, the Supreme Court, per Ogebe, JSC, said:
“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 malafide.”
In concurring with the lead Judgment, A. M. Mukthar, JSC (now CJN) said:
“…I have said earlier on the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere suspicion…”
See also: 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. It is for the police to investigate a complaint laid before them, and upon investigation, to take appropriate action.

There is no evidence that the Appellant did any more than lay his complaint before the police. He has not been shown to have interfered with or otherwise directed the police investigation. A report mode to the police does not, without more, amount to instigating the police in anyway. The Appellant was certainly acting within his rights in laying a complaint before the police; and, he cannot be faulted on this score. He cannot be held responsible for actions taken by the police.
Fundamental rights are not breached simply because a respondent has made a legitimate complaint to the police; or when the police investigate and act on complaints duly made to them.
For these reasons, and, for the more comprehensive reasons given in the lead judgment, I also allow this appeal; and, abide by the orders made.

Appearances

Bob C. OguFor Appellant

AND

P. I. O. Ikwuka 3rd Respondent
P. A. Udoh with him J. I. Ubom – 1st and 2nd RespondentFor Respondent