ISIP v. AIG OF POLICE, ZONAL COMMAND HEADQUARTERS, ZONE 6, CALABAR, C.R.S & ORS (2022)

ISIP v. AIG OF POLICE, ZONAL COMMAND HEADQUARTERS, ZONE 6, CALABAR, C.R.S & ORS

(2022)LCN/16914(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/C/220/2014

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

JOHN SMITH ISIP APPELANT(S)

And

1. THE ASSISTANT INSPECTOR GENERAL OF POLICE, ZONAL COMMAND HEADQUARTERS, ZONE 6, CALABAR, C.R.S 2. MR. OWIA OYONG OTU (I.P.O) 3. CHIEF UFOT DAVIES ENANG 4. CHIEF UDO AKPAN ATARA 5. CHIEF UDO HARRY ENANG 6. ITORO LUCKY THOMAS 7. CHIEF AKPAN NATHANIEL OTON 8. ELDER NSE MORGAN OTON 9. ITOHOWO DOMINIC RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE AN APPLICANT FOR ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS ALLEGES THAT THE POLICE WHO EFFECTED HIS ARREST WAS PROCURED BY ANOTHER

An applicant for the enforcement of his fundamental rights who alleges that the police who effected his arrest and detention was procured by another ought to join the police as a party to the proceedings. Failure to join the police as a party is fatal to the case. Also, failure to join the police could justify the presumption that the applicant withheld relevant evidence which if produced, would be unfavourable to him. See Section 167 (d) of the Evidence Act, 2011 and the case of FAJEMIROKUN VS. C.B. (C.L) (NIG) LTD (supra).
In the instant case, the 3rd–9th respondents who alleged that the men and officers of the state police command Headquarters, Uyo severally arrested and detained them on the prompting and instigation of the appellant are no doubt necessary parties to the effectual and complete determination of the said allegations. And failure to join them in my respectful view is detrimental to their case. In N.D.P. VS. INEC (2013)6 NWLR (PT. 1350) 392 AT 426, the apex Court has held that judgment made with order against a person who was not a party to a pending suit is to no avail. Therefore, it cannot be allowed to stand. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, sitting at Ukanafun Judicial Division, delivered by Hon. Justice Ekerete A. Ebienyie on 27/3/2014, entering judgment in favour of applicants now 3rd–9th respondents.

The 3rd–9th respondents as 1st–7th applicants in the lower Court commenced a fundamental rights enforcement proceedings against the appellant as 3rd respondent as well as the 1st and 2nd respondents herein and prayed for the following reliefs:
(a) A declaration that the incessant use of the police by the 3rd respondent to harass, intimidate, arrest and detain the applicants on various occasions and threat to arrest and detain them by the 2nd respondent acting on the authority of the 1st respondent and on the instigation of the 3rd respondent when applicants have not committed any criminal offence is a violation of their fundamental rights to personal liberty and freedom of movement as guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore unlawful and unconstitutional.
(b) An order of injunction restraining the respondents their agents, servants, or persons howsoever called from interfering in any manner whatsoever with the applicants enjoyment of their fundamental rights to personal liberty and freedom of movement.
(c) An order directing the respondents to jointly and severally pay the sum of N1,000,000.00 (One Million Naira) damages to each of the applicants for wrongful violation of their fundamental rights aforesaid.

In response, appellant filed a counter affidavit of 56 paragraphs denying the claims and asserting that he merely forwarded a petition to the commissioner of police, Akwa Ibom State complaining of unlawful acts of the applicants wherein they were invited for investigation and thereafter granted bail on the same day. In effect, the applicants were neither detained nor restricted, as they claimed.

After hearing the parties on their respective affidavit evidence, the learned trial Judge in a reserved but considered judgment delivered on 27/3/2014 found that “the fundamental rights of the applicants had been flagrantly and unwarrantedly violated” and hence granted damages and costs in their favour.

Dissatisfied, appellant approached this Court through a notice of appeal filed on 31/3/2014. Appellant’s initial notice of appeal contains a sole ground but with leave of Court granted on 2/5/2017, appellant amended his notice of appeal and same contains four (4) grounds of appeal. Distilled from the said four grounds of appeal, appellant’s counsel formulated three issues for the determination of this appeal as follows:
1. Whether the trial Court acted in error when it made order granting reliefs 1, 2, 3 and 4 as damages to the applicants/3rd-9th respondents where the men and officers of Akwa Ibom State Police Command who arrested and detained the said applicants/3rd–9th respondents were not joined as necessary parties in this suit and no cause of action established against the 1st and 2nd respondents.
2. Whether the trial Judge was not in error when he relied on paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the applicants’ supporting affidavit to give judgment in favour of the applicants/3rd–9th respondents in the light of Sections 131, 132, 133, 136 and 140 of the Evidence Act, 2011.
3. Whether the Court did not err when it held that “how the 3rd respondent counted 33 thugs in an atmosphere of invasion is what the 3rd respondent has not explained. I am hard put to know how the 3rd respondent would keep such large sum of N300,000.00 at home for so called thugs of the applicants to come and prey on.”

It is pertinent to state at this juncture that although respondents herein were duly served with all the processes in this appeal, they chose not to take part in this appeal. And on 27/4/2019, appellant sought and was granted leave by this Court to argue the appeal solely on the appellant’s brief. Thus, the respondents would not be heard on this appeal.

Upon careful perusal of the record, the three issues formulated by the appellant can conveniently be compressed into a sole issue thus:
Whether considering the circumstances of the case, the lower Court was right in granting the reliefs of the 3rd–9th respondents.

Arguing the appeal, learned counsel for the appellant referred to the averments in paragraphs 5.3, 5.4, 5.5, 5.6 and 5.7, of the applicants’ supporting affidavit to submit that having identified the men and officers of the Akwa Ibom State Police Command as the ones who allegedly arrested and detained the 3rd–9th respondents, failure to join them as parties was fatal to their case. As necessary parties, any judgment handled down without them would not stand. He cited and relied on the authority inGREEN VS. GREEN (1987)3 NWLR (PT. 60) 480.

Still, in argument, counsel submitted that the 3rd–9th respondents knowingly refused to join the Akwa Ibom State police command as necessary party because they knew that the evidence by the said police if produced, would be unfavourable to them relying on Section 167 (d) of the Evidence Act, 2011.

In further argument, counsel referred to the averments in paragraphs 3–21 of the applicants’ supporting affidavit to contend that there is nothing to show that the 3rd–9th respondents were unlawfully and illegally arrested and detained on the instigation of the appellant as wrongly held by the lower Court. He thus submits that the onus lies on the applicants who alleged that they were arrested and detained to show that the respondent now appellant set the law in motion against them and that he was actively instrumental to their arrest and detention. Furthermore, they must show that the arrest and detention was unlawful. Counsel referred to the cases of FAJEMIROKUN VS. C.B. (C.L) (NIG) LTD (2002) 10 NWLR (PT.774) 95, EZEADUKWA VS. MADUKA (1997) 5 NWLR (PT.518) AND ONOGORUWA VS. I.G.P. (1991)5 NWLR (PT. 193) 593.

Counsel also faulted the decision of the lower Court on its reliance on the averments in paragraphs 3 – 21 of the supporting affidavit, contending that same were not supported by evidence and therefore deemed to have been abandoned. Furthermore, paragraphs 5 and 6 thereat, according to counsel are vague because the names of the members of the village council are not mentioned and being an artificial person could not have written a petition. Also, the appellant could not have written a petition against a non-juristic person i.e the village council. And that both paragraphs 5, 6, 7 and 8 of the supporting affidavit aforesaid, according to counsel violates Section 115 of the Evidence Act for failure to state the source and details of the informant, time and circumstances of the information contained therein.

Finally, counsel attacked the findings of the lower Court as to the circumstances in which 3rd respondent contend that 33 thieves who invaded the house of the appellant and thereafter concluded thus:-
“How the 3rd respondent counted 33 thieves in an atmosphere of invasion is what the 3rd respondent has not explained. I am hard put to know how the 3rd respondent would keep such large sum of N300,000.00 at home for the so called thugs of the applicants to come and prey on”.

Counsel contended that appellant has filed and annexed exhibits D1–D16 to prove that the militants entered his house, destroyed his properties and removed the aforementioned sum of money which facts were admitted by the 7th, 8th and 9th respondents who are standing trial as a result of said destruction and removal of the appellant’s money. He referred to MILITARY GOVERNOR, LAGOS STATE VS. ADEYIGA (2012)2 MJSC (PT.1) 76 AT 79 to the effect that where the evidence is unchallenged, the trial Court is entitled to rely and act on the uncontradicted evidence as there is nothing to put weight on the imaginary scale of justice.

RESOLUTION
By virtue of Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 2 Rule 1 of the Fundamental Right (Enforcement Procedure) Rules 2009, any person who alleges that any of the fundamental right provided for in the Constitution of the Federal Republic of Nigeria or the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and which he is entitled to, has been is being or is likely to be infringed, may apply to the Court in the state where the infringement occurs or likely to occur for redress.

In the present case, the 3rd–9th respondents alleged that since the year 2004, they have been in and out of police cell as a result of the petitions of the 3rd respondent. The said respondents are the administrators of the village of Ikot Ukpong, Obioese in Oruk Anam Local Government Area of Akwa Ibom State. Specifically, the said respondents averred in paragraphs 3–17 of the affidavit in support of the motion on pages 4–7 of the record of thus:
3. That I am the village head of Ikot Upong Obioese, the 2nd and 6th applicants are the village Council Chairman and Youth President respectively while the 3rd, 4th, 5th and 7th applicants are members of the village Council.
4. That the 3rd respondent who is a member of my village and my subject has made writing of false and malicious petitions against us to the police and causing our arrest and detention of his stock in trade.
5. That between the year 2004 and July 2013, the 3rd respondent has written a total number of 8 petitions against us and other members of the village thus causing our arrest and detention on each such occasion.
6. That sometime in the month of May, 2004 when the 3rd respondent demolished the village hall on the ground that it covered his storey building, the village council lodged a complaint of malicious damage against him at the Divisional Police Headquarters, Ikot Ibritam. The 3rd respondent rather than honouring the invitation of the DPO turned around to write a false petition to the 1st respondent against us alleging threat to his life.
7. That consequent upon the said petition the 2nd and 5th applicants and the then village head, Chief Akpan Jonah (Deceased) were arrested and detained for two days from 19/6/2004 to 21/6/2004 before they were released on police bail.
8. That on 20/10/2007, the 3rd respondent wrote a petition to the Special Anti-Robbery Squad (SARS) at the State Police Command Headquarters, Uyo alleging falsely and maliciously that we are armed robbers and based on the said petition, the 2nd and 3rd applicants among others were arrested and detained for three days from 20/10/2007 to 23/10/2007 when they were granted police bail. Those arrested were released and were not charged to Court because the police found the allegation to be false and unfounded.
9. That the 3rd respondent wrote the said petition against us because after the burial of the late village head, I was favoured by the village council and the kingmakers to be selected as the next village head to succeed the late village head, Chief Jonah Udo Ekpo.
10. That the 3rd respondent had contested the village headship stool with me after my selection on 23/2/2008 by the kingmaker as the village head elect.
11. That I was eventually recommended by the Oruk Anam Traditional Rulers Council to the Akwa Ibom State Government for recognition and eventual issuance of a certificate of recognition and sometime in the year 2010, I was recognized and issued with a certificate of recognition as the village head of Ikot Ukpong Obioese to the annoyance and displeasure of the 3rd respondent.
12. That sometime in the year, 2009 the village council appointed some people in the village to collect village levies for the prosecution of a land dispute between the village and Ikot Akpan village in Ikot Abasi Local Government Area. The 3rd respondent, to frustrate that exercise, wrote another petition against us and those appointed to collect the levies, to the Special Anti-Robbery Squad of the State Police Command Headquarters, Ikot Akpan Abia, Uyo branding us as “militants”. Consequently, the 2nd Applicant who is the village council chairman was arrested and detained along with those appointed to collect the levies.
13. That the police however released those arrested and detained when from their investigation, the police discovered that the petition was maliciously written by the 3rd respondent just to frustrate the collection of levies aforesaid and because he lost out in the chieftaincy tussle.
14. That sometime in the month of June, 2011 a woman in the village became very sick and her family accused one Esau Akpan Enang as being responsible for her sickness. When the sick woman was brought to my palace by her relations to lodge a formal complaint and at which time the woman was unable to talk, she unfortunately died some minutes thereafter in my compound.
15. That as a result of the death of the woman, the said Esau Akpan Enang accused of being responsible was abducted from his house at night and I lodged a complaint at the Divisional Police Headquarters, Ikot Ibritam but surprisingly, the 3rd respondent wrote a petition to the Commissioner of Police, State Police Headquarters, Uyo alleging that I and members of the village council had murdered the said Esau Akpan Enang and buried her.
16. That based on the 3rd respondent’s false and malicious petition, I was arrested and detained for 9 days by the police but when the 3rd respondent refused to show up and make statement to the police, I was released to go home.
17. That sometime in December, 2011 about 5 months after I was released from the police custody as aforesaid, the 3rd respondent wrote yet another petition against us to the 1st respondent alleging falsely that we are militants. Consequently, I, the 2nd, 3rd, 5th and 6 applicants was arrested for 5 days until 31/12/2011 when we were released by police.

Furthermore, in paragraphs 20–26 thereof 3rd–9th respondents averred that:
20. That the village council invited the 3rd respondent to the village council but he turned down the village invitation.
21. That rather than honour the invitation of the village council, the 3rd respondent through his lawyer wrote a petition to the State Police Command Headquarters, Uyo falsely and maliciously alleging that we set fire on his land, demolished his uncompleted building and removed his beacon stones from the land.
22. That based on the said petition I, the 2nd, 3rd and 4th applicants was on 4/3/2013 arrested and detained for one day as we were released on 5/3/2013 on police bail and asked to come back on 6/3/2013 with the 5th, 6th and 7th applicants, a directive of which we compiled and another interview was fixed for 14/4/2013.
23. That when we went for the police interview on 14/4/2013 as scheduled, we were confronted with yet another petition authored by the 3rd respondent and in which petition he falsely and maliciously alleged that we damaged his storey building and car on 4/3/2013 and based on the said petition we were all arrested and detained for 3 days from 14/4/2013 to 17/4/2013 when the police released us on bail.
24. That on the 4/3/2013 a date the 3rd respondent alleged that we damaged his house and car, I, the 2nd, 3rd and 4th applicants were at the State Police Command Headquarters, Uyo and we were released on bail the following day.
25. That when the police on their investigation discovered that we were even in their custody on the date the 3rd respondent alleged we damaged his house and car, the police decided to free us except the 5th, 6th and 7th applicants whom we took to the police station on the directive of the police as aforesaid.
26. That on the insistent of the 3rd respondent, the police decided to arraign the 5th, 6th and 7th applicants at the Magistrate’s Court, Ikot Ibritam for malicious damage in charge No. MOA/52C/2013.

The law is settled that the onus lies on an applicant who alleges that he was arrested and detained to show that the respondent set the law in motion against him and that the respondent was actively instrumental to his arrest and detention. Furthermore, the applicant must also show that the arrest and detention were unlawful. See EZEADUKWA VS. MADUKA (SUPRA).

It is also trite that for an application alleging infringement of fundamental right to succeed applicant must place before the Court all vital evidence regarding the infringement or breach of such right. Thus, it is only thereafter that the burden shifts to the respondent.

Before considering whether the 3rd–9th respondents have discharged the burden of showing that the appellant was instrumental to their arrest and detention, it is pertinent to, first of all, consider the effect (if any) on the failure to join the necessary party to the said fundamental right application.

Counsel to the appellant has submitted and I agree with his submission that of all the several arrests and detentions, only on one occasion that the 3rd–9th respondents were arrested and detained at the Zonal Police Command Headquarters Zone 6, Calabar.

Otherwise, all the arrests and detentions allegedly done were by officers and men of the state police command headquarters, Uyo. The pertinent question here is, are the men and officers of police who allegedly arrested and detained the 3rd–9th respondents at the state police command headquarters, Uyo necessary parties to this suit?

A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. Thus, it is a party in the absence of whom the whole claim cannot be effectually and completely determined. A necessary party should be allowed to have his fate in his own hand. See GREEN VS. GREEN (Supra).

An applicant for the enforcement of his fundamental rights who alleges that the police who effected his arrest and detention was procured by another ought to join the police as a party to the proceedings. Failure to join the police as a party is fatal to the case. Also, failure to join the police could justify the presumption that the applicant withheld relevant evidence which if produced, would be unfavourable to him. See Section 167 (d) of the Evidence Act, 2011 and the case of FAJEMIROKUN VS. C.B. (C.L) (NIG) LTD (supra).
In the instant case, the 3rd–9th respondents who alleged that the men and officers of the state police command Headquarters, Uyo severally arrested and detained them on the prompting and instigation of the appellant are no doubt necessary parties to the effectual and complete determination of the said allegations. And failure to join them in my respectful view is detrimental to their case. In N.D.P. VS. INEC (2013)6 NWLR (PT. 1350) 392 AT 426, the apex Court has held that judgment made with order against a person who was not a party to a pending suit is to no avail. Therefore, it cannot be allowed to stand.

The next germane question is whether the 3rd–9th respondents as applicants before the lower Court have discharged the onus of proving the infractions of their fundamental rights by placing before the lower Court all vital evidence regarding the alleged infringement or breach of such right.

I have earlier reproduced the relevant averments regarding the alleged infringement of the 3rd-9th respondents’ fundamental rights and also found that same are not directed at the men and officers of the state police command, Uyo who are necessary parties to the case on appeal. Nonetheless, in paragraphs 31–34 of the supporting affidavit, 3rd–9th respondents averred as follows:-
“31. That after the police at the state police command Headquarters, Ikot Akpan Abia, Uyo had arraigned the 5th, 6th and 7th applicants in charge NO MOA/52C/2013 as aforesaid, the 3rd respondent further wrote a petition to the 1st respondent against all of us based on the same facts of malicious damage to his storey building and car contained in his earlier petition to the commissioner of police and upon which the 5th, 6th and 7th applicants were charged to the Magistrate Court, Ikot Ibritam and the said charge is still pending in that Court.
32. Consequent upon the said petition the 1st respondent instructed the 2nd respondent to arrest and detain us again at the Zonal Police Command Headquarters, Zone 6, Calabar.
33. That the 2nd respondent on the early hours of Friday 12/7/2013 led a team of police and invaded our compounds looking for us to arrest and detain but fortunately for us, none of us was found to arrest.
34. That the 1st and 2nd respondents are now hunting us about to arrest and detain.”

In response to the above, appellant in paragraphs 21-24 of the counter affidavit averred that when the said respondents were granted bail by the police as a result of an earlier petition, they mobilized militants and thugs numbering thirty-three (33) to kill him and his brother. They demolished his iron gate and broke into his house wherein they destroyed all his household items and took away the sum of three hundred thousand naira (N300,000.00) being a dowry paid as bride price on his 1st daughter. These latter acts prompted him to write another petition this time to the Assistant. Inspector-General of Police, Zone 6, Calabar as shown in Exhibit “B” attached to the said counter affidavit. In essence, the petitions, exhibits A and B according to the appellant were meant to complain to the police authorities of the 3rd–9th respondents’ unlawful conducts which culminated into the criminal charge pending before the Chief Magistrate’s Court, Ikot Ibritam.

I have stated that in an application for the enforcement of fundamental right, the onus is on the applicant to show that he was unlawfully arrested and detained. The question then is, were the 3rd–9th respondents able to prove unlawful arrest and detention? I do not think so considering the affidavit evidence placed before the lower Court. After all the police are at liberty to investigate any allegation of commission of crime made by any person. In the instant case, the appellant having complained of massive destruction of his properties and carting away his money, the police are duty bound to investigate. Furthermore, in the absence of any further affidavit in support by the 3rd–9th respondents contradicting the appellant’s complaints in his petitions to the police; it is absurd for the lower Court to interrogate those complaints by concluding that “How the 3rd respondent counted 33 thugs in an atmosphere of invasion” and at the same time expecting the appellant to explain. Perhaps, the learned trial Judge must have been oblivious of the fact that proof of issues in civil case is on a balance of probability and so where there is nothing to put on the one side of the imaginary scale, the other satisfies the requirement of proof. In the instant case, the appellant’s averments regarding the massive destructions of his properties remained unchallenged and uncontradicted and the lower Court ought to have acted on it.

On the whole, the appeal succeeds per force and it is accordingly allowed. The decision of the lower Court in Suit NO HUK/43/2013 delivered on 27/3/2014 is hereby set aside. Parties to bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read in advance the judgment delivered in this appeal by my learned brother, Aliyu JCA and I agree with both the reasoning and conclusion. I also allow the appeal. I abide by the consequential orders contained in the lead judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the advantage of reading in advance, the judgment just delivered by my learned brother BALKISU B. ALIYU, JCA. I agree that judgment made against a person who was not a party to a suit cannot be allowed to stand on whatever guise. Furthermore, the police who allegedly arrested and detained the applicants been necessary parties, the failure to join them is fatal to their suit.

I also allow the appeal and abide by the consequential orders contained in the lead judgment.