INSPECTOR GENERAL OF POLICE & ANOR v. DR PATRICK IFEANYI UBAH & ORS
(2014)LCN/7517(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of November, 2014
CA/L/199A/2013
RATIO
TORT: MALICIOUS PROCESS; THE DEFINITION OF MALICIOUS PROCESS AND THE ELEMENTS OF MALICIOUS PROCESS
Malicious Process has been defined as a civil wrong separate from malicious prosecution, which entails instituting a legal process short of prosecution without probable cause and with malice. (See: Police Misconduct Legal Remedies by Harrison, Cragg and Williams 4th edition 2005; Clayton an Tomlinson Civil Actions Against the Police 3rd Edition Thomson Sweet & Maxwell, 2004 paras 8-083 to 8-089) The rationale for misfeasance in public office is that executive or administrative power ‘may be exercised only for public good’ and not for ulterior or improper purposes. (See: Jones v Swansea City Council (1990) 1 WLR 54, 85F).
In Three Rivers DC v Bank of England (2003) 2 AC 1 HL, the House of Lords clarified the elements of this civil wrong as follows:
i. The conduct must be that of a public officer, exercising power in that capacity;
ii. The officer must either intend to injure the claimant by his or her acts or knowingly/recklessly act beyond his/her powers;
iii And thereby caused damage to the claimant;
iv In circumstances where he or she knew the act would probably cause damage of this kind.
COURT: DUTY OF COURTS; THE PRINCIPLE THAT ALL LOWER COURTS MUST PRONOUNCE ON ALL ISSUES PROPERLY PLACED BEFORE THEM AND THE EFFECT OF THE FAILURE TO DO THE SAME
In the case of Brawal Shipping Ltd v. F.I. Onwadike Co Ltd [2000] 11 NWLR (Pt. 678) 387 @ 403 D-H the SC per Uwaifo J.S.C observed:
“The Supreme Court demands of lower courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. Consequently, this could be avoidable since it may become necessary to send the case back to the lower court for those issues to be resolved. [Oyediran v Amoo (1970) 1 All NLR 313; Ojogbue v Nnubia (1972) 6 SC 227; Atanda v Ajani (1989) 3 NWLR (Pt. 111) 511; Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131; Titiloya v Olupo [1991] 7 NWLR (Pt. 205) 519; Kato v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126; Yakassai v. Incar Motors Ltd (1975) 5 SC 107; International ile Industies (Nig.) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) 268.”
This issue which the court failed to make pronouncement on is crucial to the appellants’ case and has clearly led to a miscarriage of justice. In Kraus Thompson Org. Ltd v. UniCal [2004] 9 NWLR (Pt. 879) 631 the Supreme Court held that there is a miscarriage of justice only where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may likely have judgment in his favour. per. CHINWE E. IYIZOBA, J.C.A.
COURT OF APPEAL ACT: SECTION 15 OF THE COURT OF APPEAL ACT; THE CONDITIONS THAT MUST EXIST FOR SECTION 15 OF THE COURT OF APPEAL ACT TO APPLY
In the case of Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 the SC held that for Section 15 of the Court of Appeal Act to apply, the following conditions must exist:
(a) That the High Court or trial court had the legal power to adjudicate in the matter before the appellate court entertained it;
(b) That the real issue raised by the claim of the appellant at the High Court or trial court must 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 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 clearly manifest.
See also Obi v. I.N.E.C. (2007) 11 NWLR (Pt. 1046) 565; Amaechi v. I.N.E.C. (2008) 5 NWLR (Pt. 1080) 227; Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423; Agbakogbo v. I.N.E.C. (2008) 18 NWLR (Pt. 1119) 489. per. CHINWE E. IYIZOBA, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. INSPECTOR GENERAL OF POLICE
2. CP AYODELE OGUNSAKIN Appellant(s)
AND
1. DR PATRICK IFEANYI UBAH
2. CAPITAL OIL AND GAS LTD
3. AIGBOJE AIG-IMUOKHUEDE
4. COSMAS MADUKA Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This case was commenced on the 8th day of July, 2013 in the Federal High Court, Lagos Division by the 1st and 2nd Respondents by Originating Motion under the Fundamental Rights Enforcement Procedure Rules 2009.
The 1st & 2nd Respondents Dr. Patrick Ifeanyi Ubah and his company Capital Oil and Gas Ltd entered into an agreement with the 4th Respondent herein Cosmas Maduka, a director of Access bank whereby a loan facility was obtained by Cosmas Maduka in the name of his company Coscharis Motors Limited from Access Bank to enable the parties finance the business of importation of petroleum products, Premium Motor Spirit (PMS) into Nigeria for profit sharing under the Petroleum Support Fund Scheme. The subsidy payments by the Federal Government Petroleum Products Pricing and Regulatory Agency (PPPRA) for the PMS deliveries into Nigeria were also domiciled with Access Bank. Cosmos Maduka alleged that out of the 10 LCs opened and paid for by Access Bank from the loan facility, six were executed as agreed. Problems arose with respect to the remaining four. It was alleged that the 1st and 2nd Respondents fraudulently diverted the proceeds of the four LCs. Coscharis Motors Limited then made a criminal complaint, Exhibit CP1, to the 2nd Appellant against the 1st and 2nd Respondents bordering on the offences of false pretences, fraud, stealing, forgery and money laundering with respect to the remaining 4 letters of credit established by Access Bank in favour of the 1st and 2nd Respondents. According to the complaint, the 1st and 2nd Respondents were to pay the proceeds of the sale of the petroleum products into Access Bank. The failure of the 1st and 2nd Respondents to pay the proceeds of sale into Access Bank prompted the complaint by Coscharis Motors Ltd. Based on the said criminal complaint Exhibit CP1, the 2nd Appellant commenced investigation of the 1st and 2nd Respondents and in the course of the said investigation the 1st Respondent was detained. It so happened that the 3rd Respondent herein, AIGBOJE AIG-IMOUKHUEDE who at the material time was the Managing Director of Access Bank was appointed the Chairman of the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers (hereinafter referred to as the Presidential Committee). The contention of the 1st and 2nd Respondents/applicants at the lower court was that they committed no crime; that the matter was a purely civil matter and that the 3rd respondent herein used his position as the chairman of the Presidential Committee to fight the private cause of his bank and to hound the Applicants through the appellants. The 1st and 2nd Respondents instituted the suit against the appellants herein and the 3rd and 4th Respondents claiming as follows:
1. “A DECLARATION that the persecution and public condemnation of the Applicants, camouflaged by the 1st and 2nd Respondents as an “investigation” of allegations made by the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Marketers under the control and Chairmanship of the 3rd Respondent and allegations made by the 4th Respondent, a co-director with the 3rd Respondent in Access Bank Plc (over ongoing civil contractual disagreements with the Applicants) and who have both expressed a determination, by all means available to them, to damage the Applicants’ reputation and business, is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants’ fundamental rights protected by Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”
2. “A DECLARATION that the declared conclusion of the 2nd Respondent, in his Police Interim Investigation Report dated 2nd November, 2012 that “at the conclusion, suspects will be arraigned for a prima facie case of money laundering, stealing and criminal conspiracy to commit felony.” (In the surrounding circumstances of the complaint and the facts revealed in the said Report including the fact that the matter was an entirely civil contractual dispute between the Applicants and the Complainant, the 4th Respondent, a co-director in Access Bank Plc with the 3rd Respondent) is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants fundamental right protected by section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. “A DECLARATION that the declared conclusion of the 2nd Respondent, in his Police Interim Investigation Report dated 3rd November, 2012 that “at the conclusion of these ongoing actions, a consolidated investigation report will be submitted on a prima facie case of conspiracy to commit felony, money laundering, forgery, stealing, obtaining under false pretences, and economic sabotage against Capital Oil & Gas, Ifeanyi Patrick Ubah and those found to have conspired, colluded, or aided the culprits” in the surrounding circumstances of the complaint and the facts revealed in the said Report, a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants’ fundamental right protected by section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
4. “A DECLARATION that the said Police Interim Investigation Reports issued by the 2nd Respondent to the 1st Respondent, dated respectively 2nd and 3rd November, 2012 being incurably tainted by prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants fundamental right protected by section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are invalid, ultra vires, null and void and cannot therefore be used for the purpose of any proceedings against the Applicants”
5. “A DECLARATION that as the complaints made against the Applicants by the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Marketers under the control and Chairmanship of the 3rd Respondent and by the 4th Respondent (in respect of the purely civil contractual disputes between him and the Applicants) are tainted by malice no law enforcement agency whatsoever is at liberty or can validly act on the complaints”
6. “AN ORDER nullifying and setting aside the said interim Investigation Reports of 2nd and 3rd November, 2012 issued by the 2nd Respondent and addressed to the 1st Respondent”
7. “AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Respondents by themselves, their subordinates, officers, servants, agents and privies from further intimidating, harassing, arresting, detaining the Applicants or instituting or continuing any criminal process or proceedings whatsoever against them on the basis of any complaint from the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers under the control and Chairmanship of the 3rd Respondent and/or by the 4th Respondent.
8. “COMPENSATORY DAMAGES IN THE SUM OF 10 BILLION NAIRA to be paid by the Respondents severally and jointly for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi offices of the 2nd Respondent from the 9th to the 19th of October, 2012.
The appellants and the 3rd & 4th Respondents herein as Respondents in the lower court filed preliminary objections in addition to substantive responses consisting of counter affidavits and written addresses to the Originating Motion. The lower court heard the preliminary objections together with the Originating Motion. After perusing all the processes filed before it and listening to all counsel involved in the case, the court delivered judgment over-ruling all the preliminary objections and granting all the reliefs claimed by the 1st and 2nd Respondents above but reducing the damages awarded to N10Million.
Prior to these Proceedings, the 1st Respondent herein had also instituted a suit under the Fundamental Rights (Enforcement Procedure) Rules for unlawful detention covering the same period of 9th of October to 19th of October before Abang J. also of the Federal High Court Lagos. On the disclosure that the 1st and 2nd Respondents remand was based on the order of a Magistrate Court, Abang J. struck out the suit. The 1st Respondent did not appeal against the decision of Abang J.
The appellants herein being dissatisfied with the judgment of the lower court filed a Notice of appeal with 9 grounds of appeal out of which they formulated 5 issues for determination as follows:
i. Whether lower court in the circumstances of this case can grant order of perpetual injunction restraining the Appellants from arresting, detaining, Instituting or continuing any criminal proceedings against the 1st and 2nd Respondents in connection with any criminal complaint by the 4th Respondent or Presidential Committee on Verification and Reconciliation of Subsidy Payments.
ii. Whether based on the evidence before the lower court, there was a breach of the 1st Respondent’s fundamental human rights arising from his detention between 9th to 19th October, 2012 that will warrant the award of N10 Million as damages in favour of the 1st Respondent for the unlawful breach of his fundamental right.
iii Whether the lower court was right to have refused to consider the issue of whether or not Exhibits COG3 and COG4 were public documents which require certification in accordance with section 105 of the Evidence Act 2011 before same can be admissible and relied on by the lower court. (Ground 6).
iv Whether the lower court was justified when it set aside the interim investigation report (Exhibits COG3 and COG4) dated 2nd and 3rd November, 2012 issued by the 2nd Appellant and addressed to the 1st Appellant when the certified true copies of the said investigation report were not before the lower court. (Grounds 1 and 8).
v Whether the lower court was justified to have held that the preliminary objection filed by the Appellants was devoid of any merit even when same was unchallenged.
In their brief of argument, the 1st and 2nd Respondents adopted the above issues formulated by the Appellants.
ISSUE I:
Whether lower court in the circumstances of this case can grant order of perpetual injunction restraining the Appellants from arresting, detaining, Instituting or continuing any criminal proceedings against the 1st and 2nd Respondents in connection with any criminal complaint by the 4th Respondent or Presidential Committee on Verification and Reconciliation of Subsidy Payments.
Learned counsel for the Appellants, Chief G.O. Obla in his brief of argument, after setting out part of the judgment of the lower court granting an order of perpetual injunction restraining the appellants and their agents and privies from further arresting, detaining or instituting any criminal proceedings against the 1st & 2nd Respondents on the basis of any complaint from the Presidential Committee under the chairmanship of the 3rd Respondent and or the 4th Respondent; submitted that the order runs contrary to the trite position of the law that no court can make an order restraining the Police from investigating any criminal complaint/crime.
In response, Mr. Oluyede for the 1st and 2nd Respondents in his brief argued thus:
“…..a careful perusal of the remedies claimed in this action will show that the basis of the 1st and 2nd Respondents’ claims at the court below is that the 2nd Appellant had concluded that the 1st and 2nd Respondents were guilty of the allegations made against them by the 3rd and 4th Respondents even without proof and before he had completed his investigations. Furthermore, the lower court found that the 2nd Appellant was not conducting an investigation that complied with the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, but in breach of the 1st and 2nd Respondents’ fundamental right to be presumed innocent until proven guilty; had committed acts of prosecutorial misconduct, activated a malicious process and perpetrated a misfeasance in public office, by working to achieve a given result, that is the guilt of the 1st and 2nd Respondents’ through discrediting, ignoring or suppressing evidence to the contrary”.
With profound respect to Mr. Oluyede, his arguments defy understanding. A criminal investigation remains what it is, just an investigation. If a Police investigator concludes that a suspect is guilty of the alleged crime even before conclusion of his investigation and takes the case to court without proof, all the accused needs to do after the prosecution has presented its case is to raise a no case submission and if upheld by the court that would be the end of the prosecution. Our Criminal Procedure Laws have put in place rules and regulations for the protection of the suspect during investigations. There are also relevant provisions under Chapter IV of the Constitution. The claims of the 1st and 2nd Respondents do not come within any of those provisions. The 1st and 2nd Respondents/applicants had come under section 36(5) of the 1999 Constitution but the section is inapplicable because they have not yet been charged to court. Once charged to Court, they are presumed innocent until proved guilty. In Okoro v. The State (1988) NWLR (Pt. 94); (1988) 12 SC (Pt. 11) 88 the Supreme Court in analyzing the presumption of innocence under Section 33(5) of the 1979 Constitution 36(5) of the 1999 Constitution) discussed how the burden can be discharged. It opined that the burden can be discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed under the law or Statute creating the offence. This goes to support the view that the section does not apply at the stage of investigation but applies only after the accused has been charged to court. The order of perpetual injunction restraining the appellants is unconstitutional because it is an interference with the powers given by the Constitution to Police Officers to investigate and prosecute crimes. See Attorney General Anambra State v. Chief Chris Uba (2005) 15 NWLR (Pt. 947) 44; where Bulkachuwa JCA held:
“For a person, therefore to go to court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in the control of criminal investigation. The plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one the court can take cognizance of for it has disclosed no cause of action. The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional power.”
It is indeed trite that no court has the power to stop the Police from investigating a crime and whether to or how it is done is a matter within the discretion of the Police. See Fawehinmi v I.G.P.(2002) 7 NWLR (Pt. 767 606; Agbi v. Ogbe (2005) 8 NWLR (Pt. 926) 40; Christlieb PLC v. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah v. Okenwa (2010) 7 NWLR; Hassan v. E.F.C.C. (2013) LPELR (CA).
Mr. OLuyede in his brief had further contended thus:
“The Learned Trial Judge rightly captured the totality of the Applicants’ case against the Appellant at the lower court when he summarized the Applicants case in his judgment, at pages 572 of the Records of Appeal, as follows:
“The Applicants allege that following the appointment of the 3rd Respondent, who is the Managing Director/Chief Executive Officer of Access Bank Plc, as the Chairman of the Presidential Committee on Verification and Reconciliation of subsidy payments to Petroleum Product Marketers, the 3rd and 4th Respondent (sic) saw it as an opportunity for vendetta and to witch hunt the Applicants and therefore conspired to instigate persecution of the Applicants using the 1st and 2nd Respondents for subsidy fraud upon spurious charges of complicity in forgery, money laundering, stealing, obtaining under false pretences and economic sabotage. The Applicants claimed that the 4th Respondent, in furtherance of the plan of the 3rd and 4th Respondents sent a petition dated 9th of October, 2012 to the 2nd Respondent, who is also acting under the influence and control of the 3rd Respondent as the Chairman of the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers.” (Emphasis supplied).
The Appellants, as well as the 3rd and 4th Respondents had colluded to initiate a police investigation which proceeded from the premise that the Applicants are guilty and had clearly evinced an intention to reject, discredit and suppress any evidence to the contrary. This is gross malicious process, misfeasance in public office and prosecutorial misconduct.
Malicious Process has been defined as a civil wrong separate from malicious prosecution, which entails instituting a legal process short of prosecution without probable cause and with malice. (See: Police Misconduct Legal Remedies by Harrison, Cragg and Williams 4th edition 2005; Clayton an Tomlinson Civil Actions Against the Police 3rd Edition Thomson Sweet & Maxwell, 2004 paras 8-083 to 8-089)
The rationale for misfeasance in public office is that executive or administrative power ‘may be exercised only for public good’ and not for ulterior or improper purposes. (See: Jones v Swansea City Council (1990) 1 WLR 54, 85F).
In Three Rivers DC v Bank of England (2003) 2 AC 1 HL, the House of Lords clarified the elements of this civil wrong as follows:
i. The conduct must be that of a public officer, exercising power in that capacity;
ii. The officer must either intend to injure the claimant by his or her acts or knowingly/recklessly act beyond his/her powers;
iii And thereby caused damage to the claimant;
iv In circumstances where he or she knew the act would probably cause damage of this kind.
It is clear from the argument of counsel above that all that was summarized by the learned trial Judge were the allegations of the applicants. The allegation is that the 3rd and 4th Respondents used the position of the 3rd Respondent as chairman of the Presidential Committee as opportunity to witch hunt the applicants and conspire with the appellants herein to investigate them for subsidy fraud upon spurious charges. These were mere allegations of the applicants. The learned trial judge acted on these allegations without proper enquiry as to their authenticity. The truth is that there really was no cause of action against the appellants and the 3rd and 4th respondents. Mr. Oluyede defined ‘malicious process’ as a civil wrong of instituting a legal process short of prosecution without probable cause and with malice. Even the definition as given implies that a legal process has been instituted, that is that an action has been instituted in court. Here, the stage was still that of investigation. It cannot be said that there is no probable cause for the investigation. Following the reports made against the 1st and 2nd Respondents, the Police on investigation found that there is evidence that they diverted the proceeds of 4 letters of credit opened by Access bank for importation of PMS.
There was a criminal aspect to the matter, not just civil as alleged by the applicants at the lower court. Investigations were still on. The Reports were to be forwarded to the 1st Appellant who will give the directive whether or not to file information. At this stage, the applicants had no cause of action. If they had a genuine complaint, they should have waited until they were charged to court. After the prosecution had presented its case and it was unable to establish the elements of the offence, make a “No Case Submission”. Counsel also talked about the rationale for misfeasance in public office and even set down the elements of the offence as identified in Three Rivers DC v. Bank of England (supra). These clearly have no business with an action for an injunction to restrain policemen from carrying out their statutory function under a Fundamental Rights Case. Mr. Oluyede had quoted severally from the case of Abacha v. State [2002] 11 NWLR (Pt. 779) 437 but failed to advert his mind to the fact that the accused in Abacha’s case had actually been charged to court. He did not try to obtain an injunction to restrain the prosecution from charging him to court. The learned trial judge at page 575 of the Record of appeal held:
“While I do not suggest that the interim investigation Reports of the 2nd Respondent, i.e. Exhibits COG3 and COG4 are actuated by ulterior considerations, however given his membership of Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers, which Committee is chaired by the 3rd Respondent, the Managing Director/Chief Executive Officer of Access Bank Plc, and which Committee, the Applicants allege was manipulated by the 3rd and 4th Respondents to indict the Applicants, as vendetta over certain business relationship that had gone sour, it cannot be argued that the 2nd Respondent is not in best position to conduct a dispassionate and fair investigation into the complaint in Exhibit CP1.
I have examined Exhibit CP1; it was addressed for the specific attention of the 2nd Respondent herein. It is unusual that a person writing a petition to the Police would address same for the attention of a particular Police Officer. I say no more.”
Even assuming but without conceding that the 3rd and 4th Respondents had indeed done all that the 1st and 2nd respondents alleged they did in order to ensure their prosecution, the question is, is there reasonable grounds to justify the view of the Appellants that the applicants committed offences for which they should be prosecuted. If that is the position, the fact that they may be taking the action for some other ulterior motive is of no consequence; it is the duty of the Police to investigate criminal allegations against citizens. The courts cannot stop the Police from performing its statutory functions. If there is evidence of an infringement of any of the fundamental rights of the applicants, the situation can be remedied but not by stopping police investigation. For there to be an infringement of the right to be presumed innocent until proved guilty under Section 36 (5), the accused must have been charged to court. Presumption of innocence on the part of the prosecution during investigation does not arise because their business is to ascertain whether there is sufficient evidence to sustain the charges and then to prosecute the offender. Presumption of innocence arises after the accused has been charged to court. Section 4 of the Police Act provides:
“The Police shall be employed for the prevention and detection of crimes, the apprehension of offenders, the preservation of law and order, the protection of life and property and enforcement of laws and regulations which they are directly charged and shall perform such duties within or without Nigeria as may be required by them, or and under the authority of this or any other Act.”
There is no doubt that the above powers conferred on the Police are subject to statutory provisions on rights of the citizens and the provisions of the Constitution on fundamental rights. Where there has been no breach of any of those rights, the court cannot grant an injunction curtailing the rights of the Police to carry out their statutory functions.
The claim of the 1st & 2nd Respondents that their fundamental rights under section 36(5) of the Constitution were infringed is unfounded. The section provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. The 1st and 2nd Respondents had not been charged with any criminal offence. The presumption does not apply at the stage when the police are still investigating the commission of the offence. The learned trial Judge in granting the injunction did not exercise his discretion judicially and judiciously. Issue I is resolved in favour of the appellants.
ISSUE II:
Whether based on the evidence before the lower court, there was a breach of the 1st Respondent’s fundamental human rights arising from his detention between 9th to 19th October, 2012 that will warrant the award of N10 Million as damages in favour of the 1st Respondent for the unlawful breach of his fundamental right.
Chief Obla for the appellants on this issue submitted that the complaint as contained in Exhibit CP1 at page 188 of Volume 1 of the record of proceedings showed that the 1st Respondent was engaged in the diversion of the proceeds of sale of the petroleum products for which the 4 letters of credit were established by Access Bank at the instance of Coscharis Motors Ltd which said acts constitute the offence of stealing. Counsel submitted that the failure of the 1st and 2nd Respondents to deliver the exact quantity of petroleum products for which the 4 LCs were opened by Coscharis Motors Limited in Access bank constitute the criminal offence of obtaining by false pretenses and money laundering. The complaint of Coscharis Motors Limited to the 2nd Appellant against the 1st and 2nd Respondents was therefore criminal in nature. Counsel argued that section 4 of Police Act empowers the 2nd Appellant to investigate the complaint and if possible to prosecute the 1st and 2nd Respondents. Counsel relying on FAWEHINMI V. I.G.P. ((2002) 7 NWLR PT.767 606 AT 699 submitted that the process of investigation would naturally entail the arrest and detention of the 1st and 2nd Respondents for interrogation. Counsel submitted that it is consequently preposterous for the lower court to have held that the detention of the 1st and 2nd Respondents was unlawful and to have awarded damages of N10 Million in their favour.
At page 575 – 576 of the Record of Appeal, the learned trial Judge held thus:
“The 1st and 2nd Respondents have argued that the 2nd Respondent was merely carrying out his statutory duty in conducting an investigation in Exhibit CP1 and seem to suggest that the court has no jurisdiction to question the exercise of this statutory duty. It would seem that the 1st and 2nd Respondents are under the illusion that once they are acting in their official capacities as officers of the Nigerian Police Force, they can do no wrong, even when their actions fly in the face of the Nigerian Constitution and violently infringe on the Applicants’ fundamental rights. Methinks this is not the correct position of the law. As has been held by the Court of Appeal, in the case of MR. SIMEON CHIJIOKE AGU V. EMEKA OKPOKO; Appeal No. CA/L/718/06 (unreported) delivered on Friday, the 5th day of June, 2009, per Nwodo, JCA:
‘I must, state that the powers conferred on the police under section 4 of the Police Act is subject to statutory condition and constitutional provision on Fundamental Right. It is trite that where a statute vests specific powers in an institution and the exercise of such powers becomes an issue the institution vested with such powers must provide proof that the powers were exercised in the manner provided by law.'”
The above quotation from the judgment of Nwodo J. (of blessed memory) surely does not imply that the courts have the power to stop the Police from carrying out their statutory duty of investigating criminal offences. The appellants are not saying that the courts have no jurisdiction to question the exercise of their statutory duty under Section 4 of the Police Act. It can be questioned but within the confines of the Constitution and other statutes. For example, if in the course of investigation of a criminal offence, the Police fall foul of any of the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (Right to personal liberty) or indeed any other relevant statute, their action can be challenged in an action under the Fundamental Rights Provisions or by ordinary writ of summons. Section 36 of the Constitution (right to fair hearing) concerns proceedings before a court or other tribunal. It does not cover the activities of the Police in the course of investigation because the right to determine the case lies with the court and not the police. Their job is to investigate and if there is sufficient evidence, to prosecute the suspect. Common sense dictates that it is out of place for a suspect to go to court and seek to stop the investigation of a criminal offence on the ground that the complainants are biased and that they influenced the police to proceed on the basis that the suspect is guilty. No matter what the police do, the final decision as to the guilt of the accused is that of the Judge before whom the suspect is brought. Why jump the gun by stopping the police from investigating and prosecuting. The point is that the complaint of the 1st and 2nd Respondents that there was a breach of their fundamental rights under Section 36(5) of the Constitution is totally misconceived as the section applies only when the accused has been charged to court. Besides, where there is infringement of the fundamental rights of the applicant, he sues for redress and damages if applicable. He does not sue to stop investigation of an alleged criminal offence or to stop prosecution where there are grounds for such prosecution. If the 1st and 2nd Respondents say they have not committed any crime and that they are just being harassed and hounded by the appellants goaded by the 3rd and 4th Respondents, they should go to court and after the prosecution has presented its case, make a No Case Submission. It is surely wrong at this point of the investigation to ask the court to declare the police reports null and void and to restrain the police from further investigating or prosecuting them. It is indeed worrisome that a court of law would grant such orders.
As regards the detention of the 1st and 2nd Respondents/applicants from the 9th – 19th of October, they had deposed in paragraph 11 of their grounds in support of the application and in paragraph 23 of the affidavit in support, that the 2nd Appellant CP Ayodele Ogunsakin arrested and detained the 1st Respondent and some senior management staff of the 2nd Respondent from 9th to 19th October, 2012 in his Milverton Road Ikoyi Offices. In reaction to this averment, the 2nd Appellant in paragraphs 44 – 47 of their counter affidavit to the originating motion at pages 178 – 187 of the Records deposed as follows:
44. That while the 1st Applicant was in custody at the Special Fraud Unit of the Nigerian Police Force, Milverton Street, Ikoyi, Lagos, Coscharis Motors Limited made another petition/complaint against the applicants. A copy of the said complaint is attached herein as Exhibit CP1.
45. That the applicants sought to enforce their fundamental human rights against their detention and filed Suit No. FHC/L/CS/1203/2012 at the Federal High Court Lagos. The Federal High Court holden in Lagos Coram Honourable Justice Abang, held the detention of the 1st applicant was legal and dismissed his action.
46. That the detention of the 1st applicant at the Special Fraud Unit of the Nigeria Police Force, Milverton Street, Ikoyi Lagos was on the basis of a remand warrant issued by the Chief Magistrate of Lagos State. A copy of the warrant is annexed herein as Exhibit CP6.
47. That even before the Ruling in Suit No: FHC/L/CS/1203/2012 was delivered, the 2nd Respondent after completing investigations on the aspect of the complaint by the Presidential Committee on Subsidy caused the 1st applicant to be released from custody four days before he lost his case at the Federal High Court Lagos and long before the expiration of the warrant to detain him granted by the Chief Magistrate Court Lagos.”
Apart from his Lordship’s consideration of the detention of 9th – 19th October as regards the application of the doctrine of res judicata viz a viz Suit No. FHC/L/CS/1203/2012 in the preliminary objection of the 1st and 2nd respondents, nothing further was said in the judgment about the unlawfulness or otherwise of the detention. Yet the learned trial judge granted the applicants “compensatory damages in the sum of 10Million Naira to be paid by the Respondents severally and jointly for the injury suffered by the applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi Office of the 2nd Respondent from the 9th to the 19th of October, 2012.
The conclusion arrived at by the learned trial judge is with respect unsupportable. From the affidavit evidence reproduced above, the detention of the 1st applicant was on the basis of a remand order issued by a Chief Magistrate of Lagos State. A copy of the warrant was annexed as Exhibit CP6. The 1st applicant and others detained with him had filed Suit No: FHC/L/CS/1203/2012 for the enforcement of their fundamental rights based on the same detention of 9th – 19th October. The learned trial judge Abang J. had struck out the suit on the grounds inter alia that a claim under the Fundamental Rights provision is inappropriate where the remand is on the basis of an order from a Chief Magistrate. It is clearly an abuse of court process for the 1st and 2nd Respondents to have come back to the same Federal High Court to make similar claims; without disclosing the earlier suit and without also disclosing that their detention was based on a court order from a Chief Magistrate. The 2nd appellant’s counter affidavit pointed out these omissions. Yet, His lordship in his judgment did not give any consideration to the issue whether or not there was indeed a breach of the fundamental rights of the applicants. An arrest properly made by the Police cannot amount to a breach of fundamental rights. The 1st and 2nd respondents were arrested by the Police in the legitimate exercise of their statutory duty to investigate the commission of a crime. They were promptly taken to a magistrate court where a remand warrant was obtained. They were released after their statements had been obtained and investigation requiring their remand in custody concluded. There is no basis whatever for the award of N10 Million damages to the 1st and 2nd Respondents in the circumstances as their detention was not unlawful. Issue 2 is resolved in favour of the appellants.
ISSUES III & IV
iii. Whether the lower court was right to have refused to consider the issue of whether or not Exhibits COG3 and COG4 were public documents which require certification in accordance with section 105 of the Evidence Act 2011 before same can be admissible and relied on by the lower court. (Ground 6).
iv. Whether the lower court was justified when it set aside the interim investigation report (Exhibits COG3 and COG4) dated 2nd and 3rd November, 2012 issued by the 2nd Appellant and addressed to the 1st Appellant when the certified true copies of the said investigation report were not before the lower court. (Grounds 1 and 8).
The contention of the appellants here is that Exhibits COG3 and COG4 are official reports/records which emanated from the office of the 2nd appellant who is a public officer being the Commissioner of Police in charge of the Special Fraud Unit and addressed to the Inspector General of Police. Learned counsel submitted that Exhibits COG3 and COG4 are official documents within the meaning of Section 102 of the Evidence Act. They consequently require certification under Section 105 of the Act. Since they were not certified, the learned trial judge ought not to have accepted and acted on them. Counsel argued that in spite of their objection and detailed submissions, the learned trial judge in his judgment neither considered their submissions nor made any pronouncement on same. Counsel relying on Bayol v. Ahemba (1991) 10 NWLR (Pt. 623) 381 @ 392; WR & PC Ltd v. Onwo (1999) 12 NWLR (Pt. 312) 254 @ 326 and Crown Flour Mills Ltd v. Olokun (2008) 4 NWLR (Pt. 1077) 254 @ 288 submitted that the failure of the trial judge to consider and make pronouncement on the issue is a grave error especially given the fact that the judgment of the court was based primarily on the Exhibits.
Mr. Oluyede in reply submitted that the trial court did not have to expressly make a statement on the admissibility of the documents since the judgment shows that he found no reason to discountenance the document and that no miscarriage of justice was thereby occasioned as the appellants admitted the contents of the document in the court below. He however urged us to invoke section 15 of the Court of Appeal Act and resolve the issue if we take the view that the lower court ought to have ruled on it. On issue 4, counsel submitted that the complaint about non-certification of Exhibits COG3 and COG4 was unserious as there was no dispute as to the contents of the exhibits and that facts which are admitted need no further proof. Counsel contended that the learned trial Judge was right when he placed reliance on the facts placed before him by setting aside the police investigation reports also marked Exhibits COG3 and COG4.
It is not in doubt that the interim investigation reports Exhibits COG3 and COG4 are public documents within the meaning of Section 102 of the Evidence Act 2011. They are documents forming the official acts or record of the official acts of a public officer, the 2nd Appellant who is the Commissioner of Police in charge of the Special Fraud Unit and addressed to the 1st appellant, the Inspector General of Police. By Section 106 (ii) of the Evidence Act, such public document may be proved by the production of a copy of the document certified by the officer who made or issued such official communication or section 106(iii) by the records of the government department concerned certified by the head of the Department. Exhibits COG3 and COG4 annexed to the originating motion of the 1st and 2nd respondents were not certified true copies. This issue being a vital point of law was well argued in the 2nd appellant’s written address in opposition to the applicants’ originating motion. Surprisingly, the learned trial judge in his judgment made no pronouncement whatever on this vital point of law. In the case of Brawal Shipping Ltd v. F.I. Onwadike Co Ltd [2000] 11 NWLR (Pt. 678) 387 @ 403 D-H the SC per Uwaifo J.S.C observed:
“The Supreme Court demands of lower courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. Consequently, this could be avoidable since it may become necessary to send the case back to the lower court for those issues to be resolved. [Oyediran v Amoo (1970) 1 All NLR 313; Ojogbue v Nnubia (1972) 6 SC 227; Atanda v Ajani (1989) 3 NWLR (Pt. 111) 511; Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131; Titiloya v Olupo [1991] 7 NWLR (Pt. 205) 519; Kato v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126; Yakassai v. Incar Motors Ltd (1975) 5 SC 107; International ile Industies (Nig.) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) 268.”
This issue which the court failed to make pronouncement on is crucial to the appellants’ case and has clearly led to a miscarriage of justice. In Kraus Thompson Org. Ltd v. UniCal [2004] 9 NWLR (Pt. 879) 631 the Supreme Court held that there is a miscarriage of justice only where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may likely have judgment in his favour. An examination of the reliefs sought by the 1st and 2nd respondents at the lower court will reveal that the main crux of the suit was to have the reports Exhibits COG3 and COG4 nullified and set aside. It was therefore important that the status of these reports viz a viz their admissibility in evidence be resolved by the trial judge. A determination of the issue would have led to a decision whether or not the case against the appellant should be struck out or dismissed. Dawodu v. National Population Commission 6 WRN 116 @ 118; Ovunwo & Anor v. Woko & Ors (2011) LPELR-2841 (SC). The applicants relied on the error and consequently had judgment entered in their favour. There was a clear miscarriage of justice and it is expedient that this court either remits the case back to the lower court for it to make a pronouncement on the issue or by itself determine the issue through the invocation of Section 15 of the Court of Appeal Act. In the case of Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 the SC held that for Section 15 of the Court of Appeal Act to apply, the following conditions must exist:
(a) That the High Court or trial court had the legal power to adjudicate in the matter before the appellate court entertained it;
(b) That the real issue raised by the claim of the appellant at the High Court or trial court must 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 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 clearly manifest.
See also Obi v. I.N.E.C. (2007) 11 NWLR (Pt. 1046) 565; Amaechi v. I.N.E.C. (2008) 5 NWLR (Pt. 1080) 227; Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423; Agbakogbo v. I.N.E.C. (2008) 18 NWLR (Pt. 1119) 489.
It is my view that the five conditions adumbrated above exist in this appeal. The subject matter of the suit was within the competence and jurisdiction of the lower court. The issue raised at the lower court which was not pronounced on can be distilled from grounds 6 & 8 of the Notice and Grounds of Appeal at pages 618 – 626 of Volume 11 of the Record of Appeal, all the materials for the determination of the issue are before us. From the materials in the Record of Appeal and the written briefs of the parties, there is need for expeditious disposal of the case in order to meet the ends of justice. It will clearly lead to injustice and unnecessary hardship to remit the case back to the lower court for determination of the issue. I shall now proceed through the invocation of section 15 of the Court of Appeal Act to consider whether the said exhibits were properly admitted and used in the judgment. By Section 90 (c) of the Evidence Act 2011 only a certified copy of a public document and no other type of secondary evidence is admissible. In the case of I.B.W.A. vs. Imano Ltd (2001) 3 SCNJ 160 @ 177 Iguh JSC observed:
“It cannot be over-emphasized that a court of law is expected in all proceedings between it to admit and act only on legal evidence. Accordingly, where a trial court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too if a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence”
Further in the case of Eghobamien v. Federal Mortgage Bank Nigeria (2002) 17 NWLR (Pt. 797) 488 @ 500 Mohammed JSC observed:
“I do not have to repeat the clear provision of the law that a court of law can only determine an issue on legally admissible evidence. Courts have no discretion to act on evidence made inadmissible by the express provision of a Statute even with the consent of the parties.”
See also Okafor v. Okpala (1995) 1 NWLR (Pt. 374) 749 @ 758; Abdullahi v. Milad Kaduna State (2004) 5 NWLR (Pt. 866) 232 ” 250; Agbi v Ogbe (2006) 11 NWLR (Pt. 990) 65 @ 119; Nigerian Bank of Commerce & Industry v Ogbemi
In the light of the above authorities of the apex court, Exhibits COG3 and COG4 being public documents which were not duly certified are inadmissible in evidence. The learned trial Judge erred in failing to pronounce on the objection to their admissibility and in declaring the documents null and void. I am not unmindful of the fact that since the documents were in the possession of the appellants, obtaining certified copies could pose some difficulty for the 1st and 2nd respondents. In such a situation, section 89 of the Evidence Act provides:
“Secondary evidence may be given of the existence, condition or contents of a document when-
a. The original is shown or appears to be in the possession or power-
(i) Of the person against whom the document is sought to be proved, or
(ii) Of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it………”
Section 90 provides that under the circumstances above, any secondary evidence of the contents of the document is admissible. Therefore, if the 1st & 2nd respondents had served a notice to produce the certified copies on the appellants and they failed to produce them, the uncertified copies exhibited would have satisfied the requirements of the law. Not having taken this step, the exhibits are inadmissible in law. The lower court erred in declaring them null and void. Issues iii and iv are resolved in favour of the Appellants.
ISSUE V:
Whether the lower court was justified to have held that the preliminary objection filed by the Appellants was devoid of any merit even when same was unchallenged.
I have read carefully the arguments of both counsel on issue V. The bone of contention is whether the learned trial judge was right in over-ruling the preliminary objection of the appellants that the Ruling of Abang J. in Suit No: FHL/L/CS/1203/2012 constitutes a bar to the institution of this suit. The lower court in its judgment at p. 564 of the Records held that the parties and the subject matter in the two suits are not the same; and therefore that the ruling of Abang J. does not constitute estoppel to the present suit.
The law is that if a party brings an action against another for a particular cause and judgment is given on it, he cannot institute another suit against the same party for the same cause. However, within one cause of action, there may be several issues. Once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See Ladegha v. Durosimi (1978) 3 SC 82; Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) 51; Adigun v. Gov Osun State (1995) 3 NWLR (Pt. 385) 513.
The contention of the 1st and 2nd Respondents is that estoppel is inapplicable because the parties and the subject matter are not the same. In suit No. FHC/L/CS/1203/2012, the parties are (1). Dr. Patrick Ifeanyi Ubah, (2). Mr. Joseph Orji, (3) Mr. Chibuzo Ogbuokiri, (4) Mr. Godfrey Okorie and (5) Mr. Nsikan Usoro as applicants. The Respondents were (1) Inspector General of Police, (2) Commissioner of Police (Special Fraud Unit, Lagos), (3) CSP Francis Idu Alonyenu. In the present suit, the applicants are (1) Dr. Patrick Ifeanyi Ubah, (2) Capital Oil & Gas Limited and respondents are (1) Inspector General of Police, (2) C.P. Ayotunde Ogunsakin, (3) Aigboje Aig-Imokhuede and (4) Cosmas Maduka. It is noteworthy that in the first suit the 2nd – 5th applicants are all staff of Capital Oil and Gas Ltd, the 2nd applicant in the second suit. Essentially, the applicants are the same in both suits. The two respondents in the first suit are also the 1st and 2nd respondents in the second suit. The 2nd respondent in this suit, Ogunsakin is the Commissioner of Police in charge Special Fraud Unit Lagos. In the first suit, Abang J. held at pages 284 & 285 that the applicants cannot apply to the court for the enforcement of their fundamental rights with respect to their detention when it was not in dispute that they were being detained by a subsisting order of remand made by a Magistrate Court Lagos State. The Court further stated that the Police have both constitutional and statutory right to arrest any person accused of committing a criminal offence including the applicants even if it is based on mere suspicion provided the detention is in line with the provisions of section 35(4 & 5) of the 1999 Constitution. In spite of the ruling in respect of which there was no appeal, the 1st & 2nd respondents herein filed this suit challenging again the same detention of the 1st Respondent from the 9th – 19th of October, 2012 which Abang J. had declared constitutional being based on a remand warrant from a Magistrate Court. This clearly constitutes issue estoppel. That particular issue having been determined by Abang J. cannot be re-litigated. The learned trial judge, Aneke J. in holding that the doctrine of estoppel per rem judicatam was inapplicable because the parties and the subject matter are not the same, failed to isolate and consider the issue of the detention of 9th – 19th October, 2012. If his lordship had done so, he definitely would have arrived at a different conclusion. Although the law is that for issue estoppel to apply the parties and the subject matter must be the same, in the case of Ikemi v. Efamo (2001) 10 NWLR (Pt. 720) 1, the SC held that this does not mean that all the parties in the previous suit must be made parties in the latter suit. Where there are several parties in the previous suit, it is sufficient that those who were necessary parties to the issue in the previous suit are the same as in the later suit. The particular issue here is the detention of 9th – 19th October and the parties concerned are the 1st respondent and the appellants herein. Consequently, as far as this issue is concerned, the parties and the subject matter in the two suits are the same. The learned trial Judge was wrong in granting the 1st and 2nd respondents compensatory damages in the sum of 10 Million Naira for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to Section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi Offices of the 2nd Respondent from the 9th to the 19thof October, 2012; when Abang J. had already declared the detention constitutional. There was no appeal.
The 1st & 2nd Respondents are estopped from re-litigating the issue. The learned trial judge was wrong to have over-ruled the preliminary objection in its entirety as devoid of any merit. Issue V is resolved in favour of the appellants.
Having resolved all the issues in this appeal in favour of the appellants, I hold that this appeal is meritorious. It is hereby allowed. The judgment of Aneke J. in Suit No. FHC/L/CS/07/13 delivered on the 18th day of February, 2013 as against the appellants herein is hereby set aside. In its place, the Originating Motion as it concerns the appellants herein is dismissed with N50, 000.00 costs in their favour against the 1st and 2nd Respondents.
JUSTICE UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother, C. E. Iyizoba, JCA. I agree with her reasoning and final conclusions. I have nothing to add. I abide by all the consequential orders in the lead Judgment and adopt them as mine.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the closely reasoned judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., which I had the honour of reading in draft. I wish to put in these few words in addition.
Abang J., having held in suit No. FHC/L/CS/1203/2012 that the arrest and detention of the 1st respondent by the appellants was by order of a Magistrate court and thus constitutional upon which Abang J. refused the action, the subsisting decision of Abang J., sitting in a court of co-ordinate jurisdiction (Federal High Court) with the court below estopped the subsequent case brought by the 1st respondent at the court below on the same set of facts and with the same appellants as parties. See Union Bank of Nigeria v. Edionseri (1988) 2 NWLR (pt. 74) 93 or (1988) 19 N.S.C.C. (pt. 1) 603 per the lead judgment of Nnaemeka-Agu, J.S.C. (as he was, now of blessed memory).
The court below should have upheld the preliminary objection and dismissed the subsequent action on ground of estoppel/abuse of process. See Ojo v. Olawore (2008) -7 S.C. (pt. 11) 54, Kede v. Yussuf (2001) 3 SCM 62, Jimoh v. Akande (2009) 1 S.C.N.J. 107 at 130-131, A.C.B. Plc. v. Nwaigwe (2011) 1 – 2 S. C. (pt. 11) 67.
The police are statutorily empowered by section 4 of the Police Act in these words –
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property….”
There is no fixed or stipulated order of procedure for police investigations of crimes. The established position is that criminal investigations are carried out by the police based on the strength of the information at the disposal of the police investigator. The police investigator then uses his discretion to determine how to carry out the investigation. See Olatinwo v. State (2013) 8 NWLR (pt. 1355) 126. The court lacks the powers to issue declaratory and injunctive reliefs with a view to impeding the result of police investigation made pursuant to the statutory duty under section 4 of the Police Act. Similarly, the court lacks the powers to restrain the police by injunction from investigation of criminal complaints under section 4 of the Police Act.
In the result, I too would allow the appeal and abide by the consequential orders contained in the said robust lead judgment.
Appearances
CHIEF G.O. OBLA with OLUSOLA FOLARIN and M.R. OBLA (MISS)For Appellant
AND
IFEOMA ESOM
PAUL USORO SAN with OLADIMEJI SARUNI; TAOFIK ADELEDA and O.O. AMADI
N.O. OLAIYA ESQ., with K.UDEMEZUE, C.O. ONUMAEGBU and J.C. UMEHFor Respondent
