KALU & ORS v. ANYA & ANOR (2022)

KALU & ORS v. ANYA & ANOR

(2022)LCN/16976CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/411/2017

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

1. CHIEF OGBUWA KALU 2. MR. OTAOGU MICAH CHIKE 3. MRS. PRISCILLA ELECHI 4. MR. CHIEMELA OHAECHESI 5. COMMISSIONER OF POLICE, ABIA STATE 6. INSPECTOR-GENERAL OF POLICE APPELANT(S)

And

1. ARCHITECT OKORIE AGWU ANYA 2. MISS MERCY AGWU ANYA RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE POLICE TO BE DEBT COLLECTORS

It is not the duty of the police to be debt collectors or drive tenants out of people’s homes. But they are law enforcement agents whose duties are spelt out in the Police Act and other legislations.
The appellant had made a report to the police that the Respondent had threatened to kill him with a machete. PER PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State High Court holden at Aba in an enforcement of fundamental Right matter delivered on the 4th of May, 2017, in Suit No. A/M123/2015.

SYNOPSIS OF FACTS
The Appellants were sued as 1st to 4th Respondents by the 1st and 2nd Respondents at the Aba High Court for the enforcement of the fundamental rights of the Applicants now Respondents in this appeal.

The Applicants had instituted the suit on November 16th, 2015, and upon service of same on the Appellants, they filed a counter affidavit on 9/2/2016 – pages 1-20 of the Record of Appeal; pages 21-30 of the Record of Appeal.

The Applicants filed a further affidavit on the 16th day of March, 2016. There was also filed, a Reply on point of law – pages 31-34 and pages 54-55 of the Record of Appeal.

The parties adopted their written addresses on the 7th day of February 2017 – pages 38-40 of the Record of Appeal. Judgment was delivered on the 4th day of May, 2017. The Court below, satisfied that the 1st Applicant was unlawfully assaulted and detained, held inter alia, that there has been a breach of the Applicants’ fundamental right and are therefore entitled to damages.

The Appellants are dissatisfied with the judgment and have appealed it.
The Notice of Appeal was filed on the 8th day of June, 2017, pages 56-59 of the Record of Appeal.
The Appellants filed their brief of argument on the 14th of May, 2018. It is settled by Chief Ogbonna O Igwenyi.

1st and 2nd Respondents filed their brief of argument on the 12th of July, 2018, but same is deemed filed on the 29th of January 2020, it is settled by Uche S. Awa Esq.
The 3rd and 4th Respondents filed no brief of argument.
On the 9th of March, 2022, the parties adopted their respective briefs of argument.

The Appellant proffered two issues for determination from the grounds of Appeal. They are:
“(a) Whether in the circumstances of this case the Trial Judge was right to conclude that the complaint to Police of attack or threat to attack the 1st Appellant was merely intended to remove the 1st Applicant/Respondent from 134 Jubilee Road, Aba on 4/9/2015. (Distilled from ground 3(a) of the Notice of Appeal).
(b) Whether in a fundamental rights case, the burden of debunking the allegation of violation is automatic on the Respondent when the Applicant has not unequivocally established the facts relied upon by him. (Distilled from ground 3(b) of the Notice of Appeal)”.

The 1st and 2nd Respondents distilled two (2) issues for determination. They are:
“1. Whether in the circumstances of this case, the Trial Judge was right to conclude that the complaint to the Police of attack or threat to attack the 1st Appellant was merely intended to remove the 1st Applicant/Respondent from 134, Jubilee Road, Aba on 4/9/2018.
2. Whether in a Fundamental Rights case, the burden of debunking the allegation of violation is automatic on the Respondent when the Applicant has not unequivocally established the facts relied upon by him”.

It seems to me that the 1st and 2nd Respondents adopted the issues for determination of the Appellants. I shall consider this appeal based on the issues formulated by the Appellants.

ISSUE NO. 1.
Submits that the threat issued by the Respondents were not mere threat to remove the 1st Appellant from the house, but the intentions of the Respondents was to kill the Appellant. The Respondents had threatened the Appellants with machete, and it was wrong for the Court to have concluded that the Respondents did not intend to attack or kill the Appellant.

Submits that the 1st Respondent’s claim of threat to machete him had nothing to do with protecting the accommodation of the 2nd Respondent.
That the Appellants were right to have reported the matter to the Police.

ISSUE NO. 2.
Submits that it is the law that he who asserts must prove, citing NITEL LTD V. OKEKE 2017, ALL FWLR (Pt. 899) page 218.
That in a Fundamental Rights enforcement matter such as this, the ingredients of the allegation must be proved coherently and unequivocally but that where otherwise, the Applicants are unable to do so, there is nothing for the Respondents to labour on.

Submits that the Appellants were right to have reported the machete threat to the Police in what has become the Respondents’ penchant in frightening people. That the trial Court was wrong in referring to the report as mere excuse to get the Respondents out of the way in order to take possession of the 2nd Respondent’s accommodation.
Submits that the award of N800,000.00 to the Respondents by the trial Court is an encouragement to misbehaviour which is against public policy.

It is the Respondents’ contention that the Appellant made some false allegation which led to the arrest of the Respondent. That the Appellant refused to justify the arrest by the police.

RESOLUTION
It is not the duty of the police to be debt collectors or drive tenants out of people’s homes. But they are law enforcement agents whose duties are spelt out in the Police Act and other legislations.
The appellant had made a report to the police that the Respondent had threatened to kill him with a machete.
The Respondent was assaulted by the Police at Area Command Aba.

The 1st Appellant had gone to the property in his capacity as a relative of one Mrs. Badger, with some other persons to recover the room for the 4th Appellant. It was while he did this, that the Respondent threatened to harm the 1st Appellant with a machete.

The Respondent was assaulted by the police and transferred to Umuahia. He was subsequently granted bail.
There is no evidence that it was as a result of threat with cutlass, that a report was made to the police.

The Court observed that the report of the 1st Respondent/Appellant was not life threatening, and was made merely to prevent the Applicant/Respondent from interfering with the removal of property from the house in dispute.
That the report made was a ploy to allow the Appellant enter the house and was made in mischief.

This is why the Court found for the Respondent. All the report the Appellants made to the police was false. This issue is resolved in favour of the 1st Respondent and against the Appellant.

In fundamental Right cases as in every civil case, what is required is proof on a preponderance of evidence.

In this case the 1st Respondent was arrested based on the false report made by the Appellant. There is nothing to show on record that the report made to the police was justified. This was observed by the Court below.

There being no justification for the arrest of the 1st Respondent, there was clearly a breach of his Fundamental Right. This issue is resolved in favour of the 1st Respondent and against the Appellant.
The result is that the Appeal fails and same is dismissed.
The judgment of the Abia State High Court holden at Aba delivered on the 4th day of May 2017, in suit No. A/M123/2015 is hereby affirmed.
N100.000.00 costs in favour of the 1st Respondent.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the issues in contention have been set out.
I agree that this appeal is without merit, and I also dismiss it with the costs of N100,000 as awarded.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the preview of the draft judgment just delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice). I also dismiss the appeal for lack of merit.
I abide by the order as to costs.