IGP & ORS v. UMOLO & ANOR
(2022)LCN/16847(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/79/2021
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. INSPECTOR GENERAL OF POLICE 2. COMMISSIONER OF POLICE 3. DSP OKOLI IWALA 4. ASP SHABA SULEIMON APPELANT(S)
And
1. MR. KENNEDY UMOLO 2. MRS. LOVELYN EJOH RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHEN A RELIEF IS SAID TO BE VAGUE
A relief can be said to be vague or imprecise when it is not clear, uncertain, incomprehensible, not clearly formulated and not capable of being understood. In NUHU V. OGELE (2003) LPELR-2077(SC) AT 9 (E), the Supreme Court Per PATS-ACHOLONU ,J.S.C stated the meaning of the word “vague” as follows:
“The term vague connotes something woolly, equivocal, a state of affairs that does not lend itself easily to comprehension, something blurry and nebulous, uncertain or shadowy.”
See also UNIJOS V. IKEGWUOHA (2013) LPELR-20233(SC) AT (D-D), OCTS EDUCATIONAL SERVICES LTD v. PADSON INDUSTRIES LTD & ANOR (2012) LPELR-14069(CA) AT 33 (D-D) AJAYI & ANOR V. AKINDAHUNSI & ORS (2019) LPELR-47912(CA) AT 40 (D). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT MISJOINDER OF A PARTY VITIATES AN ACTION
The law is trite that misjoinder of a party does not vitiate an action when there are still living parties willing to prosecute the case on both sides of the matter. The Court has the power in every cause or matter to deal with the matter in controversy so far as regards the rights and interests of the parties actually and properly before it. See AYANKOYA & ORS V. OLUKOYA & ANOR (1996) LPELR-669(SC) AT 15 (A). GENERAL ELECTRIC COMPANY V. AKANDE & ORS (2011) LPELR-9356(SC) AT 21(A). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THE COURTS CAN RAISE AN ISSUE SUO MOTU
A Court has the power to raise an issue suo motu especially where the case cannot be determined one way or the other without resolving the issue. Where the issue not raised by the parties is such that may affect the success or failure of the case, the Court is under a duty to raise the issue suo motu. However, the law is settled that a Court should not take up an issue suo motu and decide the matter before it on that issue without giving the parties the opportunity of being heard on the issue. It is in the interest of justice that the parties be given the opportunity of being heard no matter how settled or clear the law is in respect of the issue. See STIRLING CIVIL ENG. (NIG) LTD V. YAHAYA (2005) LPELR-3118(SC) AT 32-33 (F-F), LEADERS OF COMPANY LTD & ANOR V. BAMAIYI (2010) LPELR-1771(SC) AT 11-12 (D-E), NCC V. MOTOPHONE LTD & ANOR (2019) LPELR-47401 (SC) AT 37-39(E-G). In GBAGBARIGHA V. TORUEMI & ANOR (2012) LPELR-15535(SC) AT 15-16 (C-C), the Supreme Court Per RHODES- VIVOUR, J.S.C stated the exception to the general rule as follows:
“When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See Kuti v. Balogun 1978 1 SC. p. 53 Ogiamen v. Ogiamen 1967 NMLR p. 246 Adeniji v. Adeniji 1972 4 SC p. 10 Irri v. Erhurhobara 1991 2 NWLR Pt. 173 p. 252 but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge –
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the Record serious questions of the fairness of the proceedings is evident. See Comptoir Commercial & Ind. S.P.R. Ltd v. O.S.W.C. 2002 FWLR pt.105 p.839. M. O. Kolawole & Ors v. A.G. Oyo & 3 Ors; 2006 3 NWLR Pt.966 p.50.” PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria, Warri Judicial Division delivered in Suit No. FHC/WR/CS/68/2015 on 3/7/2018. The case of the 1st respondent who was the applicant at the lower Court is that he is a businessman carrying on business of hiring of equipment under the name and style of Ken-Ogha Engineering limited.
Two bulldozers were hired from him by George Timinimi and Welfare Timinimi who used the bulldozers to demolish the 2nd respondent’s property which was under construction. He was arrested and detained by the police at Orerokpe police station at the instance of the 2nd respondent along with one of the bulldozers. He was granted administrative bail by the Orerokpe Divisional Police Officer and directed to report to the police on 4/5/2015. When he reported at Orerokpe police station on 4/5/2015, he was re-arrested and detained at the 2nd appellant’s office in Asaba for nine (9) days. He was informed by the IPO that the case at the state headquarters was based on the 2nd respondent’s petition. He was informed that the police had concluded the investigation on the matter and their decision was that he should be charged to Court for the offence of riotous damage. His counsel wrote a petition to the AIG Zone 5, Benin City. He was already in the police vehicle on the way to Court when the police in Asaba received a signal from AIG office that he should be brought to Benin with the case file. He was eventually granted bail. The 2nd respondent set in motion the machineries to re-arrest him. The 2nd respondent then wrote a petition to the 1st appellant.
He then instituted a Fundamental Right (Enforcement) Proceeding at the lower Court and sought the following reliefs:
1. A declaration that the arrest and detention of the applicant by the Orerokpe Police Station on the 22nd day of April, 2015 and a re-arrest by the Delta State Police Command, Asaba on the 4th day of May, 2015 on the false complaint and under the close watch of the 7th respondent violated the applicant’s fundamental right to freedom of movement and personal liberty as contained in Sections 35 (1) and 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore unconstitutional, unlawful and illegal.
2. A declaration that the use and the continued use of the State Police CID at Asaba and the office of the Inspector General of Police by the 7th respondent to harass, intimidate and finally detained the applicant without any known offence was unconstitutional, illegal and unlawful.
3. A declaration that the renewed and continued harassment and or fresh threat to re-arrest and detain the applicant by the respondents after granting bail, is a serious threat to his fundamental right to personal liberty, freedom of movement guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore unconstitutional, unlawful, illegal, null and void.
4. An order restraining all the respondents by themselves, agents, servants and or privies from further harassing, intimidating, arresting or re-arresting and or detaining the applicant in respect of this matter.
5. An order of Court for the unconditional release of the applicant’s equipment to wit: the pale(sic) loader wrongly impounded and now being detained or kept at the 6th respondent Orerokpe Police Station aimed at frustrating the economy of the applicant.
6. An order for the payment of the sum of N10,000,000.00 (Ten Million Naira) only against the respondents jointly and severally being reasonable compensation for the harassment, unlawful arrest and detention of the applicant by the respondents on the 22nd April, 2015 and for the arrest of the applicant by the Delta State Police Command detaining him from the 4th day of May to 13th day of May, 2015 on the sponsorship and standing instruction of the 7th respondent.”
The lower Court after hearing all the parties and considering all the processes filed and exchanged by the parties delivered its judgment, Coram E. A. OBILE, J and granted all the reliefs sought by the 1st respondent. The appellants were dissatisfied with the judgment. They filed a notice of appeal against the judgment on 11/3/21 pursuant to the order of this Court made on 3/3/21 by which time was extended for the appellants to file their appeal. Their Six (6) grounds of appeal without their particulars are:
“Ground ONE (1)
The learned trial Judge erred in law when, without jurisdiction he granted the 1st respondent’s relief/prayer one(1).
GROUND TWO (2)
The learned trial Judge erred in law when he granted the 1st respondent’s relief/ prayer one (1) as couched.
GROUND THREE (3)
The learned trial Judge erred in law when he ordered for the release of the pale (sic) loader (bulldozer) as per the prayer 5 of the 1st respondent on the motion on notice despite the striking out/removal of the then 6th respondent – (DPO Orerokpe Police Command).
GROUND FOUR (4)
The learned trial Judge erred in law when he granted the 1st respondent damages in the sum of N2,000,000 against the appellants.
GROUND FIVE (5)
The learned trial Judge erred in law when without inviting the parties to address him, he suo motu raised and resolved the issue of the admissibility of documents.
GROUND SIX (6)
The judgment is against the weight of the evidence.”
The appellants’ brief of argument filed on 23/6/21 was settled by Onoriode W. Ewenode, Esq. The 1st respondent’s brief was settled by U. G. Ehirim. Esq. It was filed on 16/7/21. The appellants’ reply brief to the 1st respondent’s brief was filed on 20/12/21. All the briefs were deemed as properly filed and served on 7/2/22. The 2nd respondent did not file any brief. The appellants formulated the following issues for determination:
1. “Whether the learned trial judge was not wrong in law to have granted the 1st respondent’s prayers/reliefs 1 and 6 as sought. (distilled from grounds 1, 2 and 4)
2. Whether the appellant’s right to fair hearing was not breached by the learned trial judge when he suo motu raised and resolved the issue of admissibility of the appellants’ exhibits in his judgment without inviting the appellants’ to address him on same? (Ground 5).
3. In the light of the evidence before the lower Court, was the learned trial judge not wrong in law to have granted relief 5 against a none existent party? (Distilled from grounds 3 and 6).”
The 1st respondent formulated the following issues for determination:
1. “Whether the learned trial judge was not right in law to have granted the 1st respondent’s prayers/reliefs 1 and 6 as sought. (distilled from grounds 1, 2 and 4)
2. Whether the appellants’ right to fair hearing were(sic) breached by the learned trial judge when in his evaluation of evidence (in accordance with express provision of the Evidence Act), he found/discovered and held that the public documents attached to the processes/evidence of the appellants were inadmissible in law having not been certified without first hearing arguments from parties on the issue of admissibility (Ground 5).
3. Whether the lower Court was not right in releasing the pale (sic) Loader (equipment) as prayed for by the applicant which was in the custody of the police/appellants and which was not shown to be a potential exhibit in charge no. MOR/85C/2015 or any pending charge whatsoever (Ground 3 and 6).”
I have considered the grounds of appeal, the issues formulated by both parties. The issues formulated by both parties are similar though couched in different words. In my view, the following are the issues which call for determination in this appeal:
1. Whether reliefs 1, 5 and 6 sought by the 1st respondent are vague and were granted against non-existing parties.
2. Whether the failure to hear the parties on the admissibility of the documents attached to the appellants’ counter-affidavit is a denial of fair hearing which has occasioned a miscarriage of justice.
3. Whether on the entire facts and evidence before the lower Court, the Court was right to have granted the reliefs sought by the 1st respondent.
On issue 1, the appellants’ counsel contends that the names of The Assistant Inspector General of Police, Zone 5, Benin City and DPO, Orerokpe Police Command having been struck out of the case, reliefs 1, 5 and 6 ought not to have been granted by the lower Court as they are police artificial command structures, not human beings nor juristic persons that can sue and be sued. It is also contended that reliefs 1 and 6 are wide, imprecise and complained of acts of two non-existing or inanimate facilities and such reliefs ought not to have been granted. He referred to LUNA V. C.O.P., RIVERS STATE POLICE COMMAND (2010) LPELR-8642(CA) AT 15 (D-E), A.G. LAGOS V. A.G. FEDERATION &ORS. (2003) LPELR- 620 (SC) 1 AT 309 (B-D), UNITED FOAMS PRODUCTS NIG. LTD. & ORS. V.OPOBIYI & ANOR (2017) LPELR-43166 (CA) AT 52 (B-C). OKOYE & ORS V. ARUEZE (2017) LPELR-42571 (CA) 1. Counsel argued that relief 5 which is directed at The Orokpe Police Command ought not to have been granted, the name having been struck out of the case. He referred to BELLO V. INEC & ORS (2010) LPELR-767(SC) 1 AT 22 (E-F), ADENUGA V. ODUMERU (2002) 8 NWLR (PT.821) 163 AT 187-188, KWARA STATE HOUSE OF ASSEMBLY & ORS. V. IBRAHIM (2015) LPELR-40734 (CA)1 AT 23 (D-F), ELUEMUNOH & ANOR V. OBIDIGWE & ORS. (2011)LPELR-9207(CA) 1 AT 22(D-E), ODERINDE V. AYODELE & ANOR. (2014) LPELR-23706(CA) 1 AT 50 KADUNA SOUTH L.G & ANOR. V. GAYA (2014) LPELR-41140(CA) AT 22-23 (G-H). He referred to Sections 214 and 215 (1-4) of the Constitution and submitted that the Police Service Commission is the employer of all policemen in Nigeria and not having been made a party in the case, the lower Court was wrong to have awarded the sum of N2,000,000 (two million naira) as damages against the appellants based on the principle of vicarious liability because none of the appellants is an employer of the other or of any police officer in Nigeria. He referred to UWAK & ORS. V. SAMPSON & ORS. (2017) 10 NWLR (PT. 1574) 491 AT 504(E-F).
In response to the above arguments, the 1st respondent’s counsel submitted that reliefs 1 and 6 are explicit enough as not to admit of equivocations and the fact that the reliefs were sought and granted against the respondents left on record are not in doubt. He argued that assuming but not conceding that the reliefs are defective, it is too late for the appellants to give a perverse colouration to the clear reliefs/claim of the 1st respondent. He referred to AJAYI V. JOLAYEMI (2001) 5 SCNJ 250 AT 268 (RATIO 7 & 8), BASHUA V. MAJA (1976) 11 SC 143. KESHINRO V. BAKARE (1967) A.N.L.R.290. On the grant of relief 5, he submitted that relief 5 is Incidental to reliefs 1-4 and the Court could still have granted the relief even if it was not specifically asked for. Counsel argued that the DPO Orerokpe Police Command being an agent/servant/delegate/representative/subordinate of the 1st and 2nd appellants at all times, 1st and 2nd appellants are liable for the acts and omissions of the DPO. He referred to ATAGUBA V. GURA (2005) 2SCNJ 139 AT 154 (RATIO: 10). Section 11 Of Police Act.
In his reply to the 1st respondent’s arguments, the appellants’ counsel submitted that the issue of defective reliefs is a jurisdictional issue which can be raised for the first time at this stage.
RESOLUTION
Order VII Rules 1 and 2 of the Fundamental Right (Enforcement) Procedure Rules, 2009 provides that where the respondent is challenging the Court’s jurisdiction to hear the application, he may apply to the Court for an order striking out the suit or setting aside the proceedings and the notice of preliminary objection must be filed with the counter-affidavit to the main application. Rule 4 provides that the preliminary objection shall be heard along with the substantive application. The complaint of the appellants in respect of the reliefs sought by the 1st respondent should have been raised by a notice of preliminary objection immediately after the service of the 1st respondent’s motion. The appellants upon service of the 1st respondent’s motion filed a 35 paragraphs counter-affidavit to which several documents were attached as exhibits and a written address. The appellants did not file a notice of preliminary objection and did not either in their counter-affidavit or in their address raise any objection on the competency of the reliefs sought by the 1st respondent. A defendant who has an objection to the reliefs being sought in a Fundamental Right Enforcement Proceedings should raise the objection at the earliest opportunity which is immediately after service of the application not on appeal. See CARLEN (NIG) LTD V. UNIJOS & ANOR (1994) LPELR-832(SC) AT 33-35 (G), GEZOJI & ANOR V. KULERE (2011) 15-21 (). I agree with the 1st respondent’s counsel that the objection to the competency of reliefs 1 and 6 now being raised for the first time on appeal is belated. Even if the objection had been raised timeously, the objection is one that totally lacks merit.
A relief can be said to be vague or imprecise when it is not clear, uncertain, incomprehensible, not clearly formulated and not capable of being understood. In NUHU V. OGELE (2003) LPELR-2077(SC) AT 9 (E), the Supreme Court Per PATS-ACHOLONU ,J.S.C stated the meaning of the word “vague” as follows:
“The term vague connotes something woolly, equivocal, a state of affairs that does not lend itself easily to comprehension, something blurry and nebulous, uncertain or shadowy.”
See also UNIJOS V. IKEGWUOHA (2013) LPELR-20233(SC) AT (D-D), OCTS EDUCATIONAL SERVICES LTD v. PADSON INDUSTRIES LTD & ANOR (2012) LPELR-14069(CA) AT 33 (D-D) AJAYI & ANOR V. AKINDAHUNSI & ORS (2019) LPELR-47912(CA) AT 40 (D).
At the beginning of this judgment, I stated the reliefs sought by the 1st respondent. Reliefs 1 and 6 which sought a declaration that the arrest and detention of the 1st respondent by the police at Orerokpe Station on the 22nd day of April, 2015 and his re-arrest and detention by the Delta State Police Command, Asaba on the 4th day of May, 2015 are unconstitutional, unlawful and illegal and payment of the sum of N10,000,000.00 (Ten Million Naira) compensation for the harassment, unlawful arrest and detention of the applicant cannot be said to be unclear, uncertain and not understood. The filing of a counter-affidavit and written address is a confirmation that the appellants understood the claims against them. The appellants cannot at this stage be heard to say that they did not understand the reliefs or were misled in its purport.
The issue of the juristic personality of the Assistant Inspector General of Police, Zone 5 and DPO, Orerokpe Police Command who were the 2nd and 6th respondents at the lower Court were raised by the appellants in their address at the lower Court. The issue was extensively considered and resolved in favour of the appellants. The Assistant Inspector General of Police, Zone 5 and DPO, Orerokpe Police Command were struck out for not being juristic personalities.
The law is trite that misjoinder of a party does not vitiate an action when there are still living parties willing to prosecute the case on both sides of the matter. The Court has the power in every cause or matter to deal with the matter in controversy so far as regards the rights and interests of the parties actually and properly before it. See AYANKOYA & ORS V. OLUKOYA & ANOR (1996) LPELR-669(SC) AT 15 (A). GENERAL ELECTRIC COMPANY V. AKANDE & ORS (2011) LPELR-9356(SC) AT 21(A).
In the instant case, the lower Court rightly held that the case could not be struck out for misjoinder. The judgment and the orders of the lower Court including relief 5 are directed against the respondents left on record and not against non-juristic personalities that were no longer parties to the case.
The appellants’ counsel made heavy weather of the fact that the lower Court held that the appellants are vicariously liable for the actions of the Assistant Inspector General of Police, Zone 5 and DPO, Orerokpe Police Command who were the 2nd and 6th respondents at the lower Court.
Sections 214 and 215 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) provide thus:
214 “(1) There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other Police Force shall be established for the Federation or any part thereof.
(2) Subject to the provisions of this Constitution-
(a) The Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly.
(b) The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law;
(c) The National Assembly may make provision for branches of the Nigeria Police Force forming part of the Armed Forces of the Federation or for the protection of harbours, waterways, railways and air fields.”
Section 215. (1) There shall be-
(a) an Inspector General of Police who, subject to Section 216 (2) of this Constitution shall be appointed by the President on the advice to the Nigeria Police Council from among serving members of the Nigeria Police Force.
(2) The Nigeria Police Force shall be under the command of the Inspector-General of Police and any contingents of the Nigeria Police Force stationed in a State shall, subject to the authority of the Inspector-General of Police, be under the command of the commissioner of police of that State.”
Section 7 (1) of the Police (Establishment) Act, 2020 provides that:
“Appointment, tenure, removal, etc; Inspector-General of Police”
(1) The Inspector-General of Police shall be the head of the Nigeria Police Force and shall exercise full Command and Operational Control over the Police and all its departments and units.
It is clear from the provisions of Sections 214 and 215 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and Section 7 (1) of the Police (Establishment) Act, 2020 that the operational command and control of the Nigeria Police Force is under the Inspector General of Police. Legally, the person or officer who has statutory control over the operations or activities of an authority should be answerable in his official capacity for whatever grievance arises as a result of performance of that duty. There is only one police force in Nigeria and the force is under the authority and command of the Inspector General of Police. Though the relationship between members of Nigeria Police Force and the Inspector General of Police is not that of master and servant the IGP is answerable for the actions and infractions committed by members of NPF under his command unless it is shown that the action or infraction complained of is outside the statutory duties of the officers. See NWANNA V. A. G. FEDERATION & ANOR (2010) LPELR-9047(CA) AT 8-10 (D). See IGP & ORS V. UCHENWOKE & ORS (2020) LPELR-50624 (CA)AT 8-10 (G-B). On the need to join the Inspector General of Police where the actions of the Nigerian Police Force is the subject matter of the proceedings, the Supreme Court in ATTORNEY GENERAL KANO STATE VS ATTORNEY GENERAL OF THE FEDERATION (2007) 6 NWLR (PT. 1029) 164 AT 192 (C- D) per Kalgo, JSC held thus:
“The Inspector General of Police is the head of the Nigerian Police Force which is recognized by the Federal and State Governments of Nigeria; and it is a separate body created by the Constitution with special powers and responsibilities. Therefore, it can properly be sued.”
The appellants’ counsel submitted that the Police Service Commission is the employer of policemen in Nigeria and ought to have been joined in the suit. He relied on the decision in UWAK & ORS V. SAMPSON & ORS (SUPRA) AT PAGE 504 where it was held that:
“There is a clear distinction between the Nigeria Police Force as an entity and its functionaries. Where the intention is to hold the Nigeria Police Force vicariously responsible for the actions of its operatives, it is non-negotiable that the Nigeria Police Force must be made a party to the action.”
The Nigeria Police Force is different and distinct from the Police Service Commission. Their powers and functions are separate and distinct. The duties of the police are stated in Sections 4 and 5 of the Police Act as follows:
“4. The Police Force shall:
(a) “Prevent and detect crimes, and protect the rights and freedom of every person in Nigeria as provided in the Constitution, the African Charter on Human and People Rights and any other law;
(b) Maintain public safety, law and order;
(c) Protect the lives and property of all persons in Nigeria.
(d) Enforce all laws and regulations without any prejudice to the enabling Acts of other security agencies;
(e) Discharge such duties within and outside Nigeria as may be required of it under this Act or any other law;
(f) Collaborate with other agencies to take any necessary action and provide the required assistance or support to persons in distress, including victims of road accidents, fire disasters, earthquakes and floods;
(g) Facilitate the free passage and movement on highways, roads and streets open to the public; and
(h) Adopt community partnership in the discharge of its responsibilities under this Act or under any other law; and
(i) To vet and approve the registration of private Detective Schools and private Investigative outfits.
5. (1) The Police Force is responsible for promoting and protecting the fundamental rights of persons in police custody as guaranteed by the Constitution.
(2) For the purpose of Subsection (1) of this Section, the Police Force shall collaborate with and maintain close working relationship with any Government agency or relevant private initiatives in the establishment of schemes or mechanisms offering legal service to accused persons, detainees or accused persons in police custody in need of legal services to ensure that they have full access to justice as laid down under the relevant provisions of Chapter IV of the Constitution.
(3) In addition to the provisions of Subsections (1) and (2) of this Section, the Police Force is also charged with the responsibility for promoting and protecting the fundamental rights of all persons as guaranteed under the African Chapter on Human and Peoples’ Rights (Ratification and Enforcement) Act and other international legal instruments on Human Rights to which Nigeria is a signatory.”
The powers and functions of the Commission which the appellants submitted is the employer of all policemen in Nigeria are stated in Sections 6 and 7 of the Police Service Commission (Establishment) Act, 2001 as follows:
6. “(1) The commission shall –
(a) Be responsible for the appointment and promotion of persons to offices (other than the office of the Inspector-General of Police) in the Nigeria Police Force;
(b) Dismiss and exercise disciplinary control over Persons (other than the Inspector-General of Police) in the Nigeria Police Force;
(c) Formulate polices and guidelines for the appointment, promotion, discipline and dismissal of officers of the Nigeria Police Force;
(d) Identify factors inhibiting or undermining discipline in the Nigeria Police Force;
(e) Formulate and implement policies aimed at the efficiency and discipline to the Nigeria Police Force;
(f) Perform such other functions which in the opinion of the Commission are required to ensure the optimal efficiency of the Nigeria Police Force; and
(g) Carry out such other functions as the President may, from time to time, direct.
(2) The Commission shall not be subject to the direction, control or supervision of any other authority or person in the performance of its functions other than as is prescribed in this Act.
7. The Commission shall have power to-
(a) pay the staff of the Commission such remuneration and allowances as are payable to persons of equivalent grades in the Civil Service of the Federation;
(b) enter into such contracts as may be necessary or expedient for the discharge of its functions and ensure the efficient performance of the functions of the Commission; and
(c) do such other things as are necessary and expedient for the efficient performance of the functions of the Commission.”
It is clear from the above provisions of the Police Act and Police Service Commission (Establishment) Act that the primary function of the Nigeria Police Force is prevention and detection of crimes, protection of the rights of every person in Nigeria and maintenance of law and order. The primary function of the Nigeria Police Service Commission is to appoint, promote and discipline police officers (other than the Inspector-General of Police). Though the Nigeria Police Service Commission is responsible for the appointment, promotion and discipline of all police officers (other than the Inspector-General of Police) in Nigeria, the Commission cannot be vicariously liable for an infraction committed by a police officer in the performance of his statutory and constitutional duties. The plank upon which the principle of vicarious liability is built is the existence of a relationship of master and servant. See IFEANYI CHUKWU (OSONDU) CO. LTD V. SOLEH BONEH (NIG) LTD (2000) LPELR-1432(SC) AT 12-13 (G-D) Where the Supreme Court Per OGUNDARE, JSC stated the nature and basis of the doctrine of vicarious liability as follows:
“The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortious act committed by his servant while acting in the course of his employment. Tubervill v. Stamp (1697) 1 Ld. Raym. 264; Dyer v. Munday (1895) 1 Q.B. 742. This is what is known as the doctrine of vicarious liability which is based on the principle of law enunciated by Sir John Holt CJ in Hern v. Nichols (c. 1700), 1 Salk 289; “one of the earliest cases on the subject wherein the learned Chief Justice pronounced. “Seeing somebody must be a loser by this deceit. It is more reason that he that employs and puts a trust and confidence in the deceiver, should be a loser than a stranger.” The doctrine means that one person takes the place of another so far as liability for the tort is concerned – see Launchbury v. Morgans (1971) 2 QB 245, 253. It is the relationship of master and servant that of itself gives rise to this liability and not the old fiction that the master had impliedly commanded his servant to do what he did.”
AT PAGE 15 (A-D) of the report, His Lordship stated thus:
“In summary, to succeed against a master the plaintiff must; 1. establish the liability of the wrongdoer, and prove 2. that the wrongdoer is a servant of the master and 3. that the wrongdoer acted in the course of his employment with the master. See Young v. Edward Box & co. Ltd. (1951) TLR 789; 793 where Denning L. J., said: “In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant’s liability.”
For a relationship of master and servant to exist and for a master to be vicariously liable for the action of a servant, the following conditions must be established: 1) the master’s power of selection of his servant. 2) The payment of wages or other remuneration. 3) The master’s right to control the method of the work. 4) The master’s right of supervision or dismissal. See SHORT V. J & W HENDERSON LTD (1945) LI.L.REP 271. The above conditions must co-exist before a relationship of master and servant can be said to exist. Conditions 2 and 3 are clearly absent in this case. Salaries, allowances, expenses and other benefits of the members of the Nigeria Police Force are paid by the Nigeria Police Force. The commission has no power over the command and operational control of the police. See Sections 26 and 27 of Police (Establishment) Act, 2020 which provide that: Funding of the Police Force:
26. (1) There is established and maintained for the Police Force a fund (in this Act referred to as “the General Fund”) into which shall be paid –
(a) Budgetary allocations for capital and recurrent expenditure, for members of the Police Force and Traffic Warden Service established under this Act and the other staff of the Police Force; as may be appropriated by an Act of the National Assembly for the Police Force;
(b) Such contributions as may be made available to the Police Force for the purposes of this Act, by the State Governments and the Federal Capital Territory, Abuja.
(C) Aid and assistance from international bilateral and multilateral organisations provided that the purpose for the aid or assistance does not conflict with the objectives of this Act;
(d) All sums of money accruing to the Police Force by way of grants-in-aid, gifts, testamentary dispositions, endowments and contributions from any other source;
(e) All money generated by the Police Force in the course of its operations, including:
(i) Two-thirds of fees paid by members of the public in respect of extracts from police reports,
(ii) Two-thirds of fees paid in accordance with Standing Orders for services of police officers who would otherwise be off duty, and
(iii) Any other financial resource that may be vested in or accrue to the Police Force in the course of performing its functions under this Act or any other law.
(f) Any other financial resource that may be vested in or accrue to the Police Force in the course of performing its functions under this Act or any other law.
(1) A State Government or the Federal Capital Territory, as the case may be, shall:
(a) Keep records of all contributions made; and
(b) Specify the purpose for which a contribution is made, under Subsection (1)(b) of this Section.
Expenditures by the Police Force
27. (1) The Police Force shall, from time to time, apply the money accruing in the General Fund to:
(a) The cost of administration and operations of the Police Force;
(b) The payment of salaries, allowances, expenses and other benefits of the members of the Police Force and the Warden Service established under this Act and the other staff of the Police Force;
(c) The payment of pensions and other retirement benefits under any law;
(d) Costs of acquisition and upkeep of premises belonging to the Police Force and any other capital expenditure of the Police Force;
(e) All costs connected with or incidental to the operations of the Community Policing Committee Forums and Boards established under Part XIV of this Act;
(f) The investments, maintenance of utilities, training, research and similar activities; and
(g) Any other payment for anything incidental to the provisions of this section or any other function of the Police Force under this Act.
(1) Any contribution made by a State Government or the Federal Capital Territory under Section 26 (1) (b) of this Act or any other contribution in respect of which a purpose was specified shall be used by the Police Force for the purpose specified.
Though the commission is responsible for the appointment, promotion and discipline of police officers (other than the Inspector-General of Police) in the Nigeria Police Force, the Commission has no control over the police officers in the performance of their statutory and operational duties. Even if it can be argued that the Commission is the employer of policemen in Nigeria by virtue of its power of appointment, promotion and discipline of police officers, the commission cannot be sued or be vicariously liable for infractions committed by police officers in the course of performance of their statutory and constitutional duties. As I stated earlier, the duties of the police are imposed by statute and the Constitution and the Commission has no power to command and control police officers in their operational duties. That power constitutionally resides with the IGP. Therefore, the relationship between the Nigeria Police Service Commission is not that of master and servant. Therefore, in the application of the principle of vicarious liability for the action of a police officer in Nigeria, the emphasis is on who has the power of command and control of the police officers in the performance of their statutory and constitutional duties not who is the employer. The contention that the Commission ought to be joined in this action is misconceived. The lower Court was therefore right to hold that the IGP is vicariously liable for the actions of a police officer in the course of the performance of their statutory and constitutional duties. For the several reasons stated above, Issue 1 is resolved against the appellants.
On issue 2, the appellants’ counsel contends that the lower Court suo motu raised the issue of admissibility of Exhibits FB 01-FB 04 attached to the appellants’ counter-affidavit and resolved same against the appellant without hearing the parties thereby denying the appellants their right to fair hearing. He referred to EAGLE SUPER PACK (NIG)LTD V. A.C.B.PLC (2006) LPELR – 980 (SC) 1 AT 39 (F), LEADERS OF COMPANY LTD & ANOR V. BAMAIYI (2010) LPELR-1771 (SC) 1 AT 11-12 18 NWLR (PT.1225) 329, MOJEKWU V. IWUCHUKWU (2004) LPELR-1903 (SC) 1 AT 25 (D), WAGBATSOMA V. FRN (2018) LPELR- AT 23 (A-F). He submitted that the failure of the Court to hear the parties on the admissibility of the documents has occasioned a miscarriage of justice in this case. He referred to DAIRO V.U.B.N & ANOR (2007) LPELR- 913 (SC), (2007) 16 NWLR (PT.1059) 99 AT 27 (A-C), JEV & ANON V. IYORTOM & ORS. (2014) LPELR- 23000 (SC) 1 AT 31-32 (E), OGWE & ANOR. V.I.G.P & ORS (2015) LPELR-24322(SC) AT 27-28, SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR-46404 (SC) 1 AT 17-19 (A-B).
In response, the 1st respondent’s counsel submitted that it is not in doubt that exhibits F, G, H and I attached to the 2nd respondent’s counter-affidavit as well as Exhibits FB.10-FB.04 attached to the appellants’ counter-affidavit are public documents and only certified true copies of the documents are admissible. He argued that no breach of fair hearing has occurred in the instant case because evidence that is inadmissible by law remains inadmissible whether or not parties addressed the Court and the Court is duty bound not to act on such evidence. He referred to OKONJI & 2 ORS. V. NJOKANMA & 2 ORS. (1999) 12 SCNJ 259 AT 279 (RATIO 9 and 19), UMOGBAI V. AIYEMHOBA (2002) 8 NWLR (PT.770) 687.
In his reply, the appellants’ counsel referred to GOV. OF KWARA STATE V. IREPODUN BLOCK MANUACTURING CO. (2013) WRN 1 AT 150-151 (LINES 35-10). He submitted that documents attached to an affidavit in a case even if they are public documents remain and form part of the evidence before the Court.
RESOLUTION
At pages 142- 145 of the record of appeal, the lower Court considered the admissibility of exhibits E, F.B. 01 – F.B 04 and G which were attached to appellants’ counter-affidavit and 2nd respondent’s counter-affidavit. He held that they are public documents and were not certified as true copies of the originals as required by Section 104 of the Evidence Act. The Court at page 145 held that:
“Even though the applicant raised no objection to the admissibility of the documents (exhibits) under reference, they still remain inadmissible and are accordingly expunged from the record. No doubt striking out of the exhibits which the respondents heavily relied on for their defence has crumbled their case. The case of the respondents has also collapsed on this issue.”
A Court has the power to raise an issue suo motu especially where the case cannot be determined one way or the other without resolving the issue. Where the issue not raised by the parties is such that may affect the success or failure of the case, the Court is under a duty to raise the issue suo motu. However, the law is settled that a Court should not take up an issue suo motu and decide the matter before it on that issue without giving the parties the opportunity of being heard on the issue. It is in the interest of justice that the parties be given the opportunity of being heard no matter how settled or clear the law is in respect of the issue. See STIRLING CIVIL ENG. (NIG) LTD V. YAHAYA (2005) LPELR-3118(SC) AT 32-33 (F-F), LEADERS OF COMPANY LTD & ANOR V. BAMAIYI (2010) LPELR-1771(SC) AT 11-12 (D-E), NCC V. MOTOPHONE LTD & ANOR (2019) LPELR-47401 (SC) AT 37-39(E-G). In GBAGBARIGHA V. TORUEMI & ANOR (2012) LPELR-15535(SC) AT 15-16 (C-C), the Supreme Court Per RHODES- VIVOUR, J.S.C stated the exception to the general rule as follows:
“When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See Kuti v. Balogun 1978 1 SC. p. 53 Ogiamen v. Ogiamen 1967 NMLR p. 246 Adeniji v. Adeniji 1972 4 SC p. 10 Irri v. Erhurhobara 1991 2 NWLR Pt. 173 p. 252 but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge –
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the Record serious questions of the fairness of the proceedings is evident. See Comptoir Commercial & Ind. S.P.R. Ltd v. O.S.W.C. 2002 FWLR pt.105 p.839. M. O. Kolawole & Ors v. A.G. Oyo & 3 Ors; 2006 3 NWLR Pt.966 p.50.”
The instant case does not fit into any of the exceptions enumerated above. It is clear from the pronouncement of the lower Court that the lower Court was aware that the appellants’ case revolved around those exhibits. The lower Court was in serious error to have suo motu raised the issue of the admissibility of the documents attached to the appellants’ affidavit and unilaterally resolved same in its judgment without hearing the parties more so when the Court itself held that without those documents, the appellants’ case crumbled. Failure to hear the parties is a denial of the appellants’ right to fair hearing guaranteed by Section 36(1) of the Constitution. See UNION BANK OF NIGERIA V. AWMAR PROPERTIES LTD (2018) LPELR-44376(SC) AT 30-31(E-D) where the Supreme Court held that:
“Suo Motu means on his own motion. It occurs where a judge decides an issue without given counsel a hearing and proceeds to render a decision. See Uzoho v. National Council on Privatization (2007) All FWLR (Pt. 394) p.370. Section 36 of the Constitution provides for fair hearing. This is a mandatory provision that must be complied with by the Courts when determining the civil or criminal rights, obligations of a person. He must be heard. Audi Altaram Partrem means please hear the other side. Fair hearing indeed has its origins in the Old Testament. Even the Lord Almighty gave Adam an oral hearing after he ate the forbidden fruit. Once a party shows that he has been denied a fair hearing and it is found to be correct. A breach of his right to a fair hearing has occurred and the trial or proceedings would be declared a nullity. See Isiyaku Mohammed v. Kano N.A. (1968) 1 ALL NLR P. 42, Akande v. state (1988) 3 NWLR (Pt. 85) p. 681 F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) p.652, Oje v. Babalola (1991) 4 NWLR (Pt. 185) p. 267.”
The law is that an appellate Court will not interfere with a decision of the lower Court unless the misdirection is so grave as to have occasioned a miscarriage of justice.
The main reason for the decision of the lower Court is that there is nothing that incriminated the 1st respondent in his statements to the police and he should have been released after that statement. The Court turned round after that finding and held that the statements on which that finding is based are inadmissible and expunged same from the record. Once the statement upon which the finding of the Court that the 1st respondent did not any crime was expunged from the record, the decision crumbled. In the instant case, the failure of the lower Court to observe the principle of fair hearing has occasioned a miscarriage of justice because the appellants were not given an opportunity to react or do anything about the issue raised suo muto by the Court and which formed the basis of the lower Court’s decision. For the foregoing reasons, issue 2 is resolved in favour of the appellant.
The law is settled that once an appellate Court finds, as in this case, that there is a breach of the right of fair hearing in the proceeding in issue, it must allow the appeal having no other alternative in the matter. It is immaterial that the same decision would have been arrived if the principle of fair hearing had not been breached. See NDUKAUBA V. KOLOMO & ANOR (2005) LPELR-1976(SC) AT 13-14 (G-E), CITEC INT’L ESTATE LTD & ORS V. FRANCIS & ORS (2014) LPELR-22314(SC) AT 34-35 (G-E) CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD V. AKINGBADE (2016) LPELR-40437(SC) AT 21-22(A-A). Issue 2 is resolved in favour of the appellant.
Ordinarily, the case would have been remitted to the lower Court for re-assignment to another judge for hearing de novo. However, this case being a fundamental human rights case and which has been in Court for almost seven years, I am of the firm view that this is an appropriate case to invoke the provisions of Section 15 of the Court of Appeal Act which provides that:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or take, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
See also Order 4 Rules 3 and 4 of the Court of Appeal Rules. 2021 which provides that:
“3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to Costs.
Powers not limited by Notice of Appeal
4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
The conditions which must be present for this Court to exercise its power under Section 15 of the Court of Appeal Act have long been settled by the Supreme Court. See NJIDEKA EZEIGWE v. CHIEF BENSON CHUKS NWAWULU & ORS (2010) LPELR-1201(SC) AT 49-50 (E-F) Per ONNOGHEN, J.S.C:
“In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465, Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227, Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit:
(a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”,
(b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
(c) that all necessary materials must be available to the Court for consideration.
(d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and,
(e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”
See also AGBAKOBA V. INEC & ORS (2008) LPELR-232(SC) AT 80 (B), ECOTRADE LIMITED v. ALHAJI (CHIEF) SIKIRU Al-ABI MACFOY & ORS (2015) LPELR-25205(CA) AT 35-36 (G-F), EMMANUEL CHUKWUEMEKA OKEKE v. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR-43781(CA) AT 31-33 (F-F). All the above conditions are present in this case.
Base on the above, I will now proceed to consider issue 3 which is whether on the entire facts and evidence before the lower Court, the Court was right to have granted the reliefs sought by the 1st respondent. The facts and circumstances upon which the 1st respondent predicated his application are not in dispute. They have been stated earlier in this judgment. The 1st respondent in his affidavit in support of the application confirmed the fact that a complaint of destruction of property was made to the police by the 2nd respondent. Section 4 (a), (b) and (c) of the Police Act, 2020 provides that the Police Force shall:
5 “Prevent and detect crimes, and protect the rights and freedom of every person in Nigeria as provided in the Constitution, the African Charter on Human and People Rights and any other law;
6 Maintain public safety, law and order;
7 Protect the lives and property of all persons in Nigeria.”
It is trite that once allegation of commission of a crime is laid before the police, it is the constitutional and statutory duty of the police to investigate the allegations. See Cosmos Onah vs. Desmond Okenwa (2010) LPELR 4781, HASSAN & ORS V. EFCC & ORS (2013) LPELR-22595(CA) AT 39-40(E-E). In the discharge of their duties, the police have the statutory and constitutional power to invite, arrest and detain anyone they suspect of having committed the offence.
At page 129 of the record, the Court held as follows:
“Let me from the onset state that it is beyond any argument that the applicant is a businessman who is carrying on business under the name and style of Ken-Ogha Engineering Ltd, as deposed to by the applicant. Applicant’s company I think and believe is an artificial and not natural person. In other words, it is juristic entity or person. Similarly, the applicant was not the operator of the pale loader or bulldozer as referred to by the 7th respondent. Furthermore, it is also settled that the applicant was not at the scene of crime when the alleged crime was committed.”
The above finding of the lower Court is pure speculation. The evidence of the 1st respondent in paragraph 2 of his affidavit is that he is a businessman carrying on business under the name and style of Ken-Ogha Engineering Limited. That deposition was denied by the appellants.
It is settled that under the Nigerian Law, the conclusive way to show the incorporation of a company is the production of the Certificate of Incorporation. See NNPC V. LUTIN INV. LTD & ANOR (2006) LPELR- 2024(SC) At 9 (E-F), EKWEOZOR & ORS V. REG. TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIG (2020) LPELR-49568(SC) AT 37 (E-G).
The use of the word “limited” does not create a presumption that the company is a limited liability company. See BANK OF BARODA V. IYALABANI CO. LTD (2002) LPELR-743(SC) AT 19-20 (G-G) where the Supreme Court Per EJIWUNMI, J.S.C held as follows:
“In A.C.B. Plc. v. Emostrade Ltd. (supra) Kalgo, J.S.C. at page 520 had the following to say: “It is also not enough to assume that because company uses the name ‘limited’ on the writ of summons as plaintiff, that company must be a limited liability company entitled to sue. The company’s status must be proved especially in this case where it was denied to be a limited liability company at the time of the transaction. This was not proved in this case and cannot be presumed either. The respondent as plaintiff, is therefore not a legal entity or juristic person entitled to sue and be sued in law. See Carlen (Nig.) v. University of Jos (1994) 1 NWLR (Pt. 323) 631; Shitta v. Ligali (1941) 16 NLR 23; Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558. The respondent is also not one of the bodies or associations which even though not incorporated, have been expressly or impliedly conferred with a right to sue or be sued by statutes.” “The several dicta from the decisions of this Court that have been set down above are to show that it is not sufficient for a plaintiff being a corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of “Ltd. or “Plc.”. That status which it is claiming for itself has to be proved except it is admitted by the opposing party by tendering its certificate of incorporation or such other evidence as would prove its juristic personality.”
The mere use of “NIGERIA LIMITED” in the name Ken- Ogha Nigeria Limited is not enough to “think and believe” that the entity is an artificial and not natural person” or that “it is a juristic entity or person” as erroneously held by the lower Court.
The appellant personally applied for the release of the equipment detained by the police not Ken-Ogha Nigeria Limited.
The lower Court considered the facts in the affidavits of both parties.
At pages 130-132 of the record of appeal and held as follows:
“As rightly pointed out by the 7th respondent, she never mentioned the name of the applicant in either of the petitions her counsel wrote to the police. The 1st to 6th respondents as earlier stated are investigating a case of malicious damage reported against the applicant by the 7th respondent who denied the police assertion. What then is the basis of the police claim that a prima facie case of malicious damage has been made against the applicant to warrant his prosecution. In my view, applicant’s statements to the Police should act as guide to ascertain the claim of the 1st to 6th respondents. The Police (1st to 6th respondents) attached applicant’s statements to them to their counter-affidavit as Exhibit F.B. 03. I have carefully gone through Exhibit F.B. 03 and discovered that there is nothing that has incriminated the applicant in his statements to the Police on 21/4/2015 and 12/5/2015. In both statements, applicant maintained that on 10/4/2015, one Welfare Timinimi went to his office to make inquiry about some of their equipments and hired pale loader to grade a road and no more. Flowing from Exhibit F.B. 03, I fail to see any substance in the claim by the Police that the applicant has committed the offence of malicious damage or any other offence at all. It follows also that the contention by the 7th respondent that the applicant is a prime suspect is baseless, unfounded and holds no water. I think the 7th respondent must know that the Police have no power or authority to arrest and detain the applicant simply because he failed to show up in Court to testify in Charge NO.: MOR/85C/2015 Between: Commissioner of Police V. Hon. Timinimi George. The action or step taken by the Police here is unlawful, illegal and unconstitutional. Again, the 7th respondent is self contradictory, in that at one breath she said she never mentioned the name of the applicant to the 1st to 6th respondents and at another breath, she maintained that the applicant is a prime suspect in the case. This of course is fatal to the case of the respondents.
It is my conclusion that applicant has not committed any offence to have warranted Police invitation, investigation, detention and intended prosecution of the applicant. The Police ought to have set the applicant free after obtaining statements from him which statements revealed that he committed no crime.”
First, the lower Court failed to realise that the police had a duty to investigate the allegation of destruction of property made to the police whether or not the 2nd respondent mentioned the 1st respondent’s name. When allegation of crime is made to the police, it is the duty of the police to carry out a thorough investigation and fish out the offender. Failure of a complainant to mention anyone as a suspect is not an excuse or a bar to the performance of the police duties of preventing, detecting and investigating a crime. See ONYEKWERE V. THE STATE (1973) 8 NSCC Page 250 at 255 where the Supreme Court held that:
“If a complaint is made to the police that an offence has been committed, it is their duty to investigate the case not only against the person about whom the complaint has been made, but also against any other person who may have taken part in the commission of the offence.”
See also OZAH V. EFCC & ORS (2017) LPELR-43386(CA) AT 27-28 (A-G).
Secondly, it is not the duty of the Court to tell the police that a suspect must be released once his statement does not implicate him. Even if a suspect is not implicated by his statement to the police, it is the sole discretion of the police to decide how to proceed with the investigation. Obtaining statements from a suspect and potential witnesses is just an aspect of police investigation. They may take any action within the ambit of the law they deem fit to take upon investigation. They may arrest, detain, and prosecute an alleged offender. See Sections 31-33 of the Police Act, 2020 and Section 35(1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The 1st respondent in paragraphs 30 & 31 of his affidavit stated thus:
“30. That all efforts to release me even though I have substantial surety and my impounded equipment is still with the police at Orerokpe failed. I was told by the police at Asaba that they had concluded with the investigation of the matter and that the conclusion reached is for me to be charged to Court for the offence of riotous damage, an offence that will send me to the Federal Prisons Sapele for remand as the charge were drafted at Asaba in a way that the magistrate Court will not have jurisdiction to entertain my case and consequently my case file would have to be referred for(sic) the DPP advice while I remain(sic) in custody. But for the swift and intelligent move of my lawyer Alfred Ukanehg Esq., who quickly forwarded a petition to the AIG office Zone 5 Benin City over the grave injustice and unlawful arrest and detention by the Orerokpe and Asaba Police Command and a concluded plan to take me to prison, my case file was immediately transferred to Zone 5 Benin City.
“31. That I was already in the police vehicle being taken to Court in Orerokpe from Asaba to be charged to Court when the police men taking me to Court were called back to return to Asaba and that there is a signal from AIG office in Benin City that the case file and me are now needed at Benin City…”
By the above deposition of the 1st respondent, the police were already taking him to Court for arraignment when the AIG gave instructions that he should be brought to Benin with the case file. The decision of the lower Court that the 1st respondent did not commit any offence to have warranted the invitation, investigation, detention and intended prosecution of the 1st respondent is against the spirit and the letters of the law when it has not been shown that the police stepped outside their statutory and constitutional duties. The 1st respondent’s equipment was hired to destroy the 2nd respondent’s property. The finding of the Court that the 1st respondent was not the operator of the equipment and was not at the scene when the alleged crime was committed is not enough for the Court to conclude that he committed no crime in the face of his own admission that he carries on his business as Ken – Ogha Nig, Ltd. The Court is in no position to come to a definite conclusion at this stage that a person who hired out his equipment and who provided the operator of the equipment used to destroy another person’s property has not committed a crime merely because there is nothing incriminating in his statement. See UMOERA V. COP (1977) LPELR- 3371 (SC) AT 15 (B-C) where reference was made to OKUYEMI V. POLICE (1946) 12 W.A.C.A. PAGE 3, where Fatayi-Williams J.S.C stated that:
“Police investigations are not necessarily followed by judicial proceedings but they may be. Moreover, it is only after investigations have been completed that the Police decide whether to prosecute the suspect or not.”
See also MEZUE & ANOR V. OKOLO & ORS (2019) LPELR-47666(CA) AT 20-21(B- C), DANFULANI V. EFCC & ORS (2015) LPELR-25899 (CA), AG. ANAMBRA STATE V. UBA (2005) 15 NWLR part 947 pg. 44 at 67.
The appellants at this stage have no duty to prove that the 1st respondent committed a crime. The decision of the lower Court that the 1st respondent is entitled to a judicial fiat to prevent the police from investigating a non-existent crime is erroneous especially when the statement relied on by the Court to come to that conclusion, Exhibit F.B.03 was held to be inadmissible and expunged from the record. The police were entitled to invite and arrest the 1st respondent upon investigation and suspicion of having committed a crime. The responsibility to investigate a matter and determine whether or not the matter should be prosecuted is that of the Police. On the affidavit of the 1st respondent, it cannot be said that the appellants’ invitation, investigation and arrest of the 1st respondent is unlawful. Even the person’s the 1st respondent alleged the police refused to arrest have been charged to Court. The Court should at all times be cautious and reluctant not to interfere unjustifiably and unnecessarily with the discharge of the police functions except in very clear cases of infringement of the fundamental rights of the citizen guaranteed by the Constitution. I do not see this case as one. See IGP & ORS V. IKPILA & ANOR (2015) LPELR-40630(CA) AT 52-54 G -D), OGAN V. C.O.P RIVERS STATE & ORS (2018) LPELR-44293(CA) AT 14-16 (E-D). Issue 3 is resolved in favour of the appellants.
The result is that the appeal succeeds. The judgment of the Federal High Court of Nigeria delivered in suit no. FHC/WR/CS/68/2015 on 3rd July, 2018 is hereby set aside. The 1st respondent’s application is hereby dismissed. Parties shall bear their own costs in this appeal.
JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, I agree with the reasoning and conclusion therein that the appeal has merit. I adopt the same in allowing the appeal. I abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have read the judgment of my Lord, MISTURA OMODERE BOLAJI – YUSUFF, JCA and I agree with the apt reasons and conclusion therein and totally agree that there is a world of difference between when a party is responsible for a damaged item and when such person hires out its equipment for services and if used for illegal service the hirer is liable for any damages and not the owner of the equipment.
For this and other reasons in the lead judgment, I too find that the appeal succeeds. The judgment of the Federal High Court delivered on 3rd July, 2018 is set-aside.
Appearances:
Onoriode W. Ewenode. For Appellant(s)
E. O. Jakpa with him G. S. Bebenimibo for the 2nd respondent. For Respondent(s)
