LIVING MITIN v. COMMISSIONER OF POLICE, BAYELSA STATE & ORS
(2017)LCN/9847(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of May, 2017
CA/PH/454/2015
RATIO
POWERS OF THE POLICE: THE POWERS OF THE POLICE TO ARREST AND DETAIN SUSPECTED OFFENDERS; WHAT THE POLICE MUST BE CAUTIOUS OF WHILE EXERCISING ITS POWERS OF ARREST AND DETENTION
The powers of arrest of suspected offenders is vested in the police and no one can take that away from them. This general powers invested in the police to arrest and detain suspected criminals is statutory. Section 4 of the Police Act Cap 339, LFN, 1990 provides thus:- “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 and the due enforcement of all laws and regulations with which they are directly charged…” Section 29 of the Police Act specifically empower the Police to arrest and detain suspected persons whom the police reasonably suspect to have stolen item in his possession. Decisions such as Alameyesisegha Vs. Igoloiwari (2007) 7 NWLR (Pt. ) 524; Dokubo Asari Vs. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320, 360; Shola Abu Vs. COP CHR 18, all go to confirm the powers of arrest and detention vested in the Police. However in the exercise of those powers of arrest and detention, the Police need to be cautious in their approach given the provision of Section 35 (1) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). The Section provides that: “35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law- (a) … (b) … (c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or a such extent as may be reasonably necessary to prevent his committing a criminal offence; (d) ……… (e) ……… (f) ……… The personal liberty of the citizen is guaranteed under Section 35 (1) the Constitution and same is held as sacrosanct like every other right enshrined in Chapter iv of the Constitution. These rights are sacred and inalienable and that is why they are fundamental, the violation of which should be viewed as sacrilegious save in the manner the Constitution has recognized. In other words, the right to personal liberty and indeed all other rights enshrined under part IV of the Constitution of Federal Republic of Nigeria, 1999 (as amended) is not absolute. It admits of some exceptions. See Dokubo Asari V. Federal Republic Of Nigeria (2007) 5 – 6 SC 150, 185. PER SAIDU TANKO HUSAINI, J.C.A.
ARREST: INSTANCES UNDER WHICH A PERSON MAY BE ARRESTED; HOW TO DETERMINE THE REASONABLENESS OF THE ARREST MADE BY THE POLICE
This is where paragraph “C” of Section 35 (1) comes in. An arrest will be recognized as lawful only if it was made upon reasonable suspicion that the person whose arrest was made has committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence. What then is meant by “reasonable suspicion” The Court in Edwin Ukachukwu Umeh v. Kris Iorge Inu Ltd, the unreported case of this Court in Suit No.CA/K/242/96 delivered at the Court of appeal Kaduna Division on 14th March 2001 was confronted with this same question wherein the Court held that in considering whether the arrest of the applicant is illegal, unconstitutional and a violation of the applicant’s right to liberty and dignity of his person, the Court is only concerned with whether or not from the facts deposed to in the affidavit and counter-affidavit before the Court there was reasonable suspicion that the applicant has committed an offence at the time he was arrested and detained. This is imperative especially, in this case, where the appellant has alleged that the police did not carry out any investigation to establish, preliminarily, facts which disclose that the appellant is suspected to have committed an offence. Generally, an arrest should not be made until the police have concluded their investigation. But if arrest before completion of investigation is forbidden, this could also hamper the work of the police. See Oteri Vs. Okorodudu (supra).This, I believe explains it, why the concept of arrest based on reasonable suspicion was coined and developed. It is to allow the arresting authority to proceed to investigate and to effect arrest where at the point of investigation, there is a prima facie case against the person whose arrest is in issue. The onus is on Police (Police) to establish that they acted reasonably in effecting the arrest. See further cases in :- (1) Chukwuma v. COP (1964) NNLR 21; (2) COP, Ondo State vs. Obolo (1989) 5 NWLR (Pt. 120) 130, 138; Onah V. Okenwa (2010) 8 NWLR (Pt. 1195) 512, 536; (4) Duruku vs. Nwoke (2015) 15 NWLR (Pt. 1483) 417, 474. In the determination of the reasonableness of the arrest by the police, it is necessary to look into the facts contained in the affidavit evidence in support of the application and weigh same against those facts contained in the counter-affidavit so as to decipher whether: (1) An arrestable offence was disclosed, and (2) Whether the police, the 1st and 2nd respondents in this case, exercised their discretion properly in making the arrest as they did. The test in determining the “reasonableness” of arrest is objective, that is to say, a reasonable person acting without passion or prejudice and looking at the matter objectively and in the light of the facts known to the defendant at the time (as with the 1st& 2nd Respondents), not facts coming up subsequent to this, he or they believed that there was reasonable and probable cause for the arrest. See: Oteri V. Okorodudu (supra). PER SAIDU TANKO HUSAINI, J.C.A.
REPLY BRIEF: DUTY OF AN APPELLANT SEEKING TO FILE A REPLY BRIEF
What is required of the Appellant who is desirous to file a Reply brief is for him to direct his mind and attention to new points raised by the Respondent in his brief of argument. It is not a forum for the Appellant to canvass “new” or “fresh issues” not raised at the trial Court in the guise of a reply to new point raised by the respondents in their brief. PER SAIDU TANKO HUSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
LIVING MITIN Appellant(s)
AND
1. COMMISSIONER OF POLICE, BAYELSA STATE
2. DSP AKPONAPA GOLD O/C ANTI-VICE/ANTI KIDNAPPING & TERRORISM, YENAGOA
-IST SET OF RESPONDENTS
3. JOHNSON AGAGBO, DEPUTY GENERAL MANAGER DAEWOO NIG LTD, OGU BASE, YENAGOA
4. MR. OTOTO MONOVE, DAEWOO NIG. LTD, YENAGOA
-2ND SET OF RESPONDENTS Respondent(s)
SAIDU TANKO HUSAINI, J.C.A.(Delivering the Leading Judgment): This appeal arose from the Ruling delivered at the High Court of Bayelsa State on the 16th October, 2015 in Suit No. YHC/69/2015 refusing the application for enforcement of Fundamental rights of the Appellant herein.
The Appellant had sought to enforce his Fundamental rights to personal liberty in terms of the reliefs contained in his application dated the 21st July, 2015 and filed at the registry of the High Court of Bayelsa State, Yenagoa on the 23rd July, 2015. In it the Applicant now Appellant prayed for:
(a) A DECLARATION that the arrest, torture and detention of the Applicant on the 19/06/2015 by the police officers under the command of the 1st & 2nd Respondents at the instance of the 3rd& 4th Respondents is illegal, unlawful, unconstitutional and a breach of the applicant?s Fundamental right to personal liberty as guaranteed under the provision of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(b) A DECLARATION that the seizure of the Applicant?s vehicle on the 19/06/2015 by the police officers under
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the command of the 1st& 2ndRespondents constitutes a violation of the applicant?s rights guaranteed by Section 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 6, 9 & 14 of the African Charter on Human & Peoples? Right, and it is therefore unconstitutional and illegal.
(c) The sum of N100, 000, 000. 00 (One Hundred Million Naira) only been exemplary and aggravated damages for infringement of the applicant?s Fundamental rights to personal liberty, freedom of movement and dignity.
(d) The sum of N100, 000, 000. 00 (One Million Naira) only been compensation damages.
(e) AN ORDER of public apology made jointly by the Respondents.
(f) AN ORDER that the above stated damages be paid within 21st days of the delivering of Judgment in this Suit.
(g) AND FOR SUCH FURTHER ORDER (S) as the Court may deem fit to make as the justice of the case may demand.
Those reliefs are predicated on the grounds set out in the Motion paper thus:
(a) The Applicant has Fundamental right to freedom of movement, personal liberty and dignity under Sections 34, 35 and 41 of the
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Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 5, 6 & 12 of the African Charter on Human and Peoples Rights.
(b) The arrest, torture and detention of the Applicant without any justification on the 19/06/2015 at about 9:30am, at Paulmass Barbing Saloon, Baybridge Road, Kpansia, Yenagoa by the police officers under the command of the 1st and 2nd Respondents at the instructions and instigation of the 3rd and 4th Respondents is illegal, unlawful, wrongful, and unconstitutional and constitute a gross violation of the Applicant?s fundamental rights to personal liberty, freedom of movement and dignity under Section 34, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 5, 6 & 12 of the African Charter on Human and Peoples? Right
(c) The seizure of the Applicant?s vehicle with Chasis No:4TIBK46K97U016635, Engine No. 2GR-6090192, Vehicle make: Toyota and Vehicle type: Camry car, on the 19/06/2015 to 23/06/2015 by the police officers under the command of the 1st and 2nd respondents is illegal, unlawful and unconstitutional as it affects the business
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activities of the Applicant.
(d) That the Applicant is entitled to compensation for illegal and unlawful detention and seizure of the Applicant?s vehicle.
(e) That the Applicant did not commit any crime, as the purported allegation is monumentally untrue and pathologically fabricated.
The Appellant, in his affidavit in support of the application deposed to a variety of facts stating reasons why the application should be granted while also exhibiting to the application, documents he considered were relevant to his case. The application made at the trial High Court was accompanied with counsel?s written address. See pages 1 – 28 of the record Appeal.
The 1st and 2nd Respondents in response to the Motion on Notice served on them filed a Joint Counter-affidavit and a written address. See record: pages 30 – 46.
The 3rd – 4th respondents in the like manner filed a Joint counter-affidavit on 12th August, 2015 and same was accompanied with a written address of counsel. Record: pages 59 – 72.
?The Appellant in response to papers filed by the 1st – 4th Respondents filed 2 (two) other processes that is the Appellant?s
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further and better Affidavit in response to the 1st and 2nd respondents? Joint counter-affidavit and Appellant?s further and better affidavit in response to 3rd – 4th respondents? counter-affidavit and his reply on point of law. See Record at pages 73 – 85.
The trial High Court in a considered ruling, after hearing from counsel for and against the application, refused the request by the Appellant enforcing his Fundamental rights and the Court struck out the application in these words:
?The police must be allowed to perform their legitimate duties. If they are to be queried or sued for every little inconvenience they cause to members of the Public in the legitimate exercise of their duties, the Police will not be able to curb crime and the society will become a very unsafe place for us all to live in.
It is therefore my view that this Motion has no merit. It is therefore hereby struck out.?
?I want to believe that in an exercise such as the one at the High Court below where an application, a Motion on Notice, was taken and heard to conclusion on the merits and the Court was not disposed to granting the
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application, the proper order would be one of dismissal, not an order striking out of same. I say this just by the way since this is not the reason for the appeal before us, at least the grounds presented before us as grounds of Appeal did not raise this question as a complaint, let alone issues formulated from those grounds.
So, the Appeal before us stem from that Ruling stating that the Police must be allowed to carry out their constitutional or statutory mandate if the society must be rid of criminal elements.
The appeal to this Court is founded on the Notice of Appeal dated and filed on the 9th November, 2015 containing three (3) grounds of Appeal which I seek to reproduce in full thus:
?GROUNDS OF APPEAL
1. The learned trial Judgment erred in law thereby occasioned a miscarriage of justice when he held that ?if some of the duties of the police are to arrest and search suspect and curb crime generally, did they act wrongly in the arrest of the Appellant and impounding of his car as the movement of this particular ?black Toyota Camry Car? at Baybridge Road was suspected by the people around there and reported
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it to police? I do not think so?
PARTICULARS OF ERROR
(a) The appellant was arrested tortured and detained by the 1st and 2nd Respondents at the instance of the 3rd and 4th Respondents merely because he was using a Black Camry Toyota car.
(b) Apart from the arrest, torture and detention of the Appellant, his car, which he uses for his private business was impounded for more than five days.
(c) The action of the 1st and 2nd respondents at the instance of the 3rd and 4th Respondents is being justified under the refuge of Section 4 of the Police Act, Cap. P19, Laws of the Federation of Nigeria, 2004 and Section 35 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
(d) It is the law that the powers conferred by the law on security agencies are not a blanket cheque to dabble into unlawful arrest, torture and detention.
(e) A person?s liberty can only be curtailed under the above provisions upon reasonable suspicion of his having a criminal offence.
(f) It is trite law that the test as to what is reasonable belief that a suspect has committed an offence is objective and not based on what
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the policeman considered to be reasonable.
(g) The 1st and 2nd Respondents did not make a preliminary investigation before the arrest, torture and detention of the Appellant.
2. The learned trial Judge did not properly evaluate the affidavit evidence of the parties before striking out the Appellant?s case.
PARTICULARS OF ERROR
(a) From the affidavit evidence of the parties, it is clear that the 1st and 2nd Respondents have no reasonable reason to arrest, torture and detain the Appellant.
(b) There was undenied fact that 3rd and 4th respondents were instrumental to the arrest, torture and detention of the Appellant.
(c) The 1st and 2nd Respondents claimed that the Appellant was merely invited to the police station but he was tortured, detained and only released on bail and his car impounded for days.
(d) While the 1st and 2nd Respondents denied the appellant was not arrested and detained, the 3rd and 4th Respondents admitted that the Appellant was arrested and detained.
(e) In spite of the above undenied facts, the trial judge, without appraising the facts of the case struck out the Appellant?s case.
(3)
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The Judgment/Ruling is against the weight of the affidavit evidence placed before the trial Court
PARTICULARS OF ERROR
(a) The facts of the case support the granting of the reliefs sought by the Appellant.
(b) The trial Judge did not consider all the facts before coming to the conclusion of striking out the suit.
Following the transmition of the record of appeal to this Court on 20th November, 2015, the Appellant filed in his brief of argument on the 30th November, 2015 wherein he formulated two (2) issues at paragraph 3.00 pages 2 – 3 of his brief thus:-
(1) Whether the powers conferred by the law on the 1st and 2nd Respondent to prevent crime also allows them to unlawful arrest, torture and detention (Distilled from ground One of the Notice and Grounds of Appeal)
(2) Whether the trial Court properly evaluated the affidavit evidence of the parties before coming to the conclusion of striking out the Appellant?s Motion on Notice? (Distilled from grounds two and three of the Notice and Grounds of Appeal.
The 1st and 2nd respondents in their opposition to the Appeal filed a joint brief of argument on the 6th January, 2016
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and the same deemed as properly filed and served on the 6th February, 2017 in it they raised two (2) issues at page 3 of the brief thus:
[I] Whether having regard to the circumstances of this case, the 1st and 2nd Respondents have a reasonable grounds to investigate the Applicant. (Distilled from ground one of the Notice and Grounds of appeal)
[II] Whether the trial Court properly evaluated the affidavit evidence of the parties before coming to the conclusion of striking out the Appellant?s Motion on Notice.
Issues for determination formulated by the 3rd and 4th respondents are contained in their brief of argument filed on the 3rd March, 2016. At page 2 of the said brief, the two (2) issues formulated for determination state thus:
[1] Whether the mere report made by the 3rd and 4th Respondents to the Police vide the letter at page 11 of the record of Appeal without more makes them liable for breach of Appellant?s Fundamental rights
[2] Whether the lower Court was wrong in striking out the Motion for lack of merit considering the affidavit evidence before the Court.
?The two issues formulated by the 3rd – 4th Respondents
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can be subsumed in the greater or larger issues formulated by the Appellant and the 1st and 2nd respondents respectively in their briefs of argument. Since the two (2) sets of issues formulated by the Appellant and the 1st& 2nd Respondent respectively are virtually the same I will adopt and abide by the two (2) issues formulated by the later in their brief of argument in addressing this appeal which came up for hearing on the 6th February, 2017.Parties and their counsel had adopted their respective briefs and argument canvassed thereto. Appellant through his counsel has urged us to allow the appeal and set aside the Ruling of the trial High Court.
Respondents speaking through their respective counsel have urged us to dismiss this appeal. Those conclusions coming from the counsel respectively sum up the submission made by them in their briefs of argument. I will now advert to those submissions.
COUNSEL SUBMISSIONS
ISSUE NO. 1:
Whether having regard to the circumstances of this case, the 1st and 2nd Respondents have a reasonable ground to investigate the Applicant? Distilled from ground one of the Notice and Grounds of Appeal.
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On this point it is submitted that the act of the 1st and 2nd Respondents who effected the arrest of the appellant, detained and tortured him and cannot be justified under any guise in absence of any fact from them which can reasonably be inferred that the Appellant had committed any offence. To this end the decisions in Chukwuka Vs. C.O.P. (1964) NNLR 21; COP, Ondo State Vs. Obolo (1989) 5 NWLR (Pt. 120) 130, 138; Onah v. Okenwu (2010) 8 NWLR (Pt. 1195) 512, 536 were cited and relied on. He further argued that the reason given by the police that the appellant was parading a Black Camry car similar to the car which previously blocked the 4th Respondent and the occupants accosted the 4th Respondent could not amount to reasonable suspicion to warrant the arrest of the Appellant to curtail his right. He further relied on Jin-Jaja v. COP (2011) 2 NWLR (Pt. 231) 313. Ekaete Edet Etim vs. Ogbogifiok (Dr.) Asikpo & 3 Ors (2005) CHR 28, 100; Duraku V. Nwoke (2015 15 NWLR (Pt. 1483) 417, 474. It is further argued that the 1st and 2nd Respondents arrested detained and tortured the Appellant just because he has a black Camry Car without first investigating whether the
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Appellant?s Camry Car is the same black Camry car suspected to have been used to commit other offences or crimes.
In addressing the same issue in their brief of argument, the 1st and 2nd respondents alluded to the powers vested in the Police under the Police Act and the Constitution of the Federal Republic Nigeria, Section 4 and 35 (1) (c) respectively which is geared towards the prevention of crime and detection of same while the Police on the same score can act on information that will lead to the prevention and detection of crime, hence the 1st and 2nd Respondents through officers of the command acting in such information available to them duly invited the Appellant for preliminary investigation based on the facts and information available to them, and those facts as contained in the Counter-Affidavit of the 1st and 2nd Respondent she said, were not challenged.
?The third and fourth Respondents in their brief of argument, speaking on issue No. 1 argue that a Police informant cannot be found liable on account of information he supplied where the Police, acting on that information effected the arrest of a suspect. They relied on the case of
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Mandilas & Karaberis Ltd V. Apena (1969) NSCC vol. 1 372 and the decision in Onah V. Okenwa (supra) to submit that a police informant has no control over the Police in the exercise of their statutory functions and as such Police informant cannot be held liable for the arrest of suspect. He further relied on Onyedinma Vs. Nnite (1997) 3 NWLR (pt. 493) 333, 345; Bassey v. Afia (2010) All FWLR (Pt. 531) 1477, 1500, 1501.
OPINION
The Constitution of the Federal Republic of Nigeria under Section 46 (1) provides:
?46(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress?
This provision is re-enacted in Order II Rule I of the Fundamental right (Enforcement Procedure) Rules, 2009.The Appellant approached the High Court of Bayelsa State to seek to enforce his right relative to Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) among others of which it is claimed, there was an infraction of when the 1st and 2nd Respondents through officers of the command,
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unjustifiably effected his arrest and detained him (the Appellant). The 1st and 2nd respondents have denied this fact of arrest as alleged.
However from all the findings made at the Court below in the ruling appealed against, it is no longer a point in contest that the Appellant was arrested by the 1st and 2nd Respondents. From all indications the arrest of the Appellant was made or effected wherein, in furtherance of further investigation, the Police took him (appellant) to the station for interrogation. It is on record that the Appellant made Statement to the Police.
The powers of arrest of suspected offenders is vested in the police and no one can take that away from them. This general powers invested in the police to arrest and detain suspected criminals is statutory. Section 4 of the Police Act Cap 339, LFN, 1990 provides thus:-
?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 and the due enforcement of all laws and regulations with which they are directly charged
?Section 29 of the Police
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Act specifically empower the Police to arrest and detain suspected persons whom the police reasonably suspect to have stolen item in his possession.
Decisions such as Alameyesisegha Vs. Igoloiwari (2007) 7 NWLR (Pt. ) 524; Dokubo Asari Vs. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320, 360; Shola Abu Vs. COP CHR 18, all go to confirm the powers of arrest and detention vested in the Police.
?However in the exercise of those powers of arrest and detention, the Police need to be cautious in their approach given the provision of Section 35 (1) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). The Section provides that:
?35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
(a) ?
(b) ?
(c) for the purpose of
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bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or a such extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) ?
(e) ?
(f) ?
The personal liberty of the citizen is guaranteed under Section 35 (1) the Constitution and same is held as sacrosanct like every other right enshrined in Chapter Iv of the Constitution. These rights are sacred and inalienable and that is why they are fundamental, the violation of which should be viewed as sacrilegious save in the manner the Constitution has recognized. In other words, the right to personal liberty and indeed all other rights enshrined under Part IV of the Constitution of Federal Republic of Nigeria,
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1999 (as amended) is not absolute. It admits of some exceptions. See Dokubo Asari V. Federal Republic Of Nigeria (2007) 5 – 6 SC 150, 185. The Appellant has claimed that the manner of his arrest and detention is unconstitutional, a claim which the respondents have debunked.
This is where paragraph ?C? of Section 35 (1) comes in. An arrest will be recognized as lawful only if it was made upon reasonable suspicion that the person whose arrest was made has committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
What then is meant by ?reasonable suspicion The Court in Edwin Ukachukwu Umeh v. Kris Iorge Inu Ltd, the unreported case of this Court in Suit No.CA/K/242/96 delivered at the Court of appeal Kaduna Division on 14th March 2001 was confronted with this same question wherein the Court held that in considering whether the arrest of the applicant is illegal, unconstitutional and a violation of the applicant?s right to liberty and dignity of his person, the Court is only concerned with whether or not from the facts deposed to in the affidavit and
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counter-affidavit before the Court there was reasonable suspicion that the applicant has committed an offence at the time he was arrested and detained.
This is imperative especially, in this case, where the appellant has alleged that the police did not carry out any investigation to establish, preliminarily, facts which disclose that the appellant is suspected to have committed an offence.
Generally, an arrest should not be made until the police have concluded their investigation. But if arrest before completion of investigation is forbidden, this could also hamper the work of the police. See Oteri Vs. Okorodudu (supra). This, I believe explains it, why the concept of arrest based on reasonable suspicion was coined and developed. It is to allow the arresting authority to proceed to investigate and to effect arrest where at the point of investigation, there is a prima facie case against the person whose arrest is in issue. The onus is on Police (Police) to establish that they acted reasonably in effecting the arrest. See further cases in :- (1) Chukwuma v. COP (1964) NNLR 21; (2) COP, Ondo State vs. Obolo (1989) 5 NWLR (Pt. 120) 130, 138; Onah V.
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Okenwa (2010) 8 NWLR (Pt. 1195) 512, 536; (4) Duruku vs. Nwoke (2015) 15 NWLR (Pt. 1483) 417, 474.
In the determination of the reasonableness of the arrest by the police, it is necessary to look into the facts contained in the affidavit evidence in support of the application and weigh same against those facts contained in the counter-affidavit so as to decipher whether:
(1) An arrestable offence was disclosed, and
(2) Whether the police, the 1st and 2nd respondents in this case, exercised their discretion properly in making the arrest as they did
The test in determining the ?reasonableness? of arrest is objective, that is to say, a reasonable person acting without passion or prejudice and looking at the matter objectively and in the light of the facts known to the defendant at the time (as with the 1st& 2nd Respondents), not facts coming up subsequent to this, he or they believed that there was reasonable and probable cause for the arrest. See: Oteri V. Okorodudu (supra).
I will now look at the facts as revealed in the supporting affidavit to the application and the counter-affidavit of the 1st and 2nd Respondents in
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particular, on this point, that is, the circumstances leading to the arrest of the Appellant. These facts are deposed to at paragraphs 8 to 34 of the supporting affidavit. But stated briefly, the facts are that the Appellant was picked up by the Police at point along Baybridge Road Yenagoa, Bayelsa State and taken straight to his house, along with Toyota Camry Car in handcuff. He gave details of particulars to his Toyota Camry car.
At the completion of search conducted in his house, the police took him to station where he was allegedly detained and tortured and asked to confess to the allegation of attempt to kidnap the 3rd Respondent, which he denied. Eventually he was released on police bail while his Toyota Camry Car was released to him 4 or 5 days later on the 23rd June, 2015. He denied the averments in paragraphs 10 of the counter-affidavit of the 1st& 2nd respondents. He insists that the police did not carry out any preliminary investigation to ascertain whatever evidence at their disposal before he was arrested.
?By their counter-affidavit filed on 7th August, 2015 the 1st and 2nd respondents deposed to facts among others, at paragraph 10 (a)
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– (k) of the counter-affidavit thus:
?10. That the 1st and 2nd Respondents deny paragraph 9 of the supporting affidavit as the facts contained therein are misleading, in a specific response, the 1st and 2nd Respondents aver as follows:
(a) That on the 10th of June, 2015, an incident of Armed Robbery was reported at ?A? Division, the Nigeria Police Force where a black Camry Car was used to rob a woman who withdrew Two Hundred Thousand Naira (N200, 000. 00) from Diamond Bank Yenagoa.
(b) That in the same vein, information was received on 15th June 2015 that a gang of criminal used a Black Toyota Camry Car to carry out their nefarious activities within and outside Yenagoa.
(c) That on 19th June, 2015 a petition from Daewoo Nigeria Ltd was received by the 1st Respondent giving information about a gang of suspected criminal operating in dark Toyota Camry Car along the Ox-bow Lake. A copy of the petition is hereby attached and marked Exhibit ?A?.
(d) That on the same 19th June, 2015 a telephone call was received at the control Room, ?B? Department Nigeria Police from an informant at Baybridge Road
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Kpansia, Yenagoa that they are suspecting the movement of one Black Toyota Camry car and that the Police should come and find out who are the occupants and the mission of those who are using the vehicle.
(e) That based on the information received from the informant, the 2nd Respondent was ordered to dispatch his men to the area to verify the authenticity of the information.
(f) That on the arrival at Baybridge Road, they saw a Black Toyota Camry car with Registration Number: Yen 634 AA and the team stopped the Black Camry Car and took the car together with the applicant to the office of the Anti Vice/cultism for further investigation.
(g) That as soon as the Applicant arrive the office, he requested that he should be allowed to call his relations and the team obliged him and his relations came immediately.
(h) That the team recorded statement from the Applicant to ascertain his identity and his mission in that area. A copy of the statement of the Applicant is hereby attached and marked Exhibit ?B?
(i) That to further the investigation, the team procures a search warrant which was executed in the house and premise of the
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Applicant. A copy of the search warrant is hereby attached and marked Exhibit ?C?
(j) That the Applicant was released to go while the Black Toyota Camry was impounded for further investigation.
(k) That on the 3rd June, 2015 after the preliminary investigation the Black Toyota Camry Car Registration Number; YEN 634 AA, was released to the Applicant on bond. A copy of the bond to release Exhibit is hereby attached and marked Exhibit ?D?
The 1st & 2nd Respondents denied the averments in the counter-affidavit that the Appellant was arrested detained or tortured but was invited only, while admitting that he made Statement to the Police.
So, from the chronology of events, there have been incidences of allegation of criminal activities by some hoodlums using a ?black Camry car? stretching from the incident of the 10th June, 2015 to 15th June, 2015 to the 19th June, 2015. The police acted on the last information disclosed to them as at paragraph 10 (d) of their counter-affidavit. This information led to the arrest of the Appellant. There is thus some preliminary facts at the disposal of the Police at the time
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the arrest of the appellant was made.
So, on the principle of reasonableness of the arrest of the Appellant, upon the facts disclosed above by the parties on both sides, can the 1st and 2nd Respondents be faulted over the arrest of the appellant? I do not think so. The arrest of the appellants by the police is covered by the exception provided for under Section 35 (1) (c) of the 1999 Constitution (as amended) and thus the 1st and 2nd Respondents did not act outside their powers.
The police in the discharge of their duties are not bound, I think to disclose the source of the information reaching them leading to the arrest of any suspected criminal and indeed the Appellant hence the 1st and 2nd Respondents, in the exercise of their powers of arrest of the Appellant were not indiscreet, if they failed to put it across him, information about other events or information leading to his arrest.
?Information reaching the Police leading to the arrest of suspected criminals are information coming from persons who themselves have no control over the police in the exercise of their statutory powers of whether or not they should effect arrest in any
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particular case. Those informants cannot be held liable on account of the arrest made by police. See: Onah Vs Okenwa (2010) 7 NWLR (Pt. 1199) 512, 536; Mandilas & Karaberis Ltd V. Apena (1969) ASCC Vol. 6 at page 372; Onyedinma Vs. Nnite (1997) 3 NWLR (Pt. 493) 333, 245.
So, on the question whether the 1st and 2nd respondents exercised due diligence in the arrest of the Appellant, I will return an affirmative answer and resolve issue No. 1 in their favour and against the Appellant.
Issue No. 2
Whether the trial Court properly evaluated the Affidavit evidence of the parties before coming to the conclusion of striking out the Appellant?s Motion on Notice.
For the Appellant it has been argued that the trial Court failed to properly evaluate the evidence before it in this case on appeal but that this Court is in good position as the trial Court to carry out proper evaluation of the affidavit evidence in the printed record before us. It is argued that the counter-affidavit of the 1st & 2nd respondents were in conflict with the counter-affidavits of the 3rd & 4th Respondents. That whereas the 1st – 2nd Respondents in their
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counter-affidavit aver that the Appellant was never arrested or detained, the counter-affidavit of the 3rd – 4th respondents state the contrary, that is, the Appellant was indeed arrested. We were urged to discountenance both counter-affidavits and decide the case based only on the affidavit of the Appellant in support of the application and hold that the personal right to liberty of the Appellant was violated. He further submits that failure of the trial Court to evaluate evidence before it occasioned a miscarriage of justice against the Appellant. He urged us to so hold.
Learned Appellant?s counsel further argue that the issue of torture of the Appellant was not considered and evaluated at the trial Court. He argued that the mere fact of the arrest and detention of the Appellant was torture in itself relying on the Supreme Court case in Okonkwo vs. Ogbogu (1996) 5 NWLR (Pt. 449) 420, 435; Ekpu Vs. Attorney-General of the Federation (1998) 1 HRLPA 391, 420-421. It is further argued that the trial Court also failed to properly evaluate the role of the 3rd – 4th Respondents who were instrumental to the arrest of the Appellant.
?In the opinion of
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the 1st and 2nd Respondents in their brief of argument, the trial Court evaluated the evidence before it and came to the conclusion as it did that the case of the Appellant left too many gaps to be believed on the question of breach of his Fundamental rights.
On the question that the trial Court did not evaluate the issue of torture, he referred to the finding in the ruling of the trial Court at page 92 of the record to prove the contrary, that is, to say the trial Court found as a fact that there was no malice by the Respondents against the Appellant, hence the trial Court came to the right conclusion as it did. He urged us to answer issue No. 2 in the affirmative in favour of the Respondents.
It was argued on behalf of the 3rd – 4th Respondents that the trial Court rightly struck out the Suit of the Appellant who failed to prove his claim of breach of his Fundamental right to personal liberty. The Appeal it is argued, lacks merit and same should be dismissed.
The Appellant further filed 2 (two) Reply briefs in response to what he described as ?new? or ?fresh? issues arising from the brief of argument for the 1st and 2nd
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Respondents and 3rd – 4th Respondents respectively. But upon perusing the 2 (two) reply briefs it dawned on me that the Appellant or his counsel has mixed up issues in the application of Order 19 Rule 5 (1) of the Court of Appeal Rules, 2016 which provides thus:-
?5-(1) The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent?s brief, file and serve or cause to be served on the Respondent a Reply brief which shall deal with all new points, arising from Respondent?s brief?
What is required of the Appellant who is desirous to file a Reply brief is for him to direct his mind and attention to new points raised by the Respondent in his brief of argument. It is not a forum for the Appellant to canvass ?new? or ?fresh issues? not raised at the trial Court in the guise of a reply to new point raised by the respondents in their brief.
?There is a difference between the two procedures referred to above. The Appellant adopted the latter and this is outside the purview of Order 19 Rule 5 (1) to render the two (2) reply briefs filed by the Appellant incompetent. The same
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must be discountenanced in the consideration of issue No. 2.
In arguing issue No. 2 the Appellant addressed 2 (two) main questions namely:-
(1) The question of the contradiction in the affidavit evidence of the 1st & 2nd Respondents on the one part and the 3rd and 4th Respondents on the other relative to the issue of the arrest of the Appellant.
(2) The question of torture of the Appellant by the 1st – 2nd Respondents.
With regard to the first, above, the trial Court in its ruling at page 90 of the record made a finding when it held that the Appellant was indeed ?arrested? relying on the reason itemised as (1) (2) (3) (4) at pages 89 – 90 of record of appeal notwithstanding the contradictory nature of the affidavit evidence of the 1st and 2nd and 3rd – 4th Respondents as alleged by the Appellant. The trial Court having made that finding, it is too late in the day, to urge on us to strike out those processes filed by the Respondents respectively. In any case there is no ground of appeal before us challenging the ruling of the Court below over her failure to discountenance those processes. It is now too late to urge it on us.
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The issue of torture is tied to the first, which revolve around the arrest of the appellant. In his brief of argument the Appellant has contended that an ?arrest? is one form of torture. This being the case, I do not think it is proper for the appellant to turn around to address this question as distinct and unconnected with what he earlier accepted was an arrest in some form.
From the ruling of the trial Court, in the printed record, the issue of arrest of the Appellant, the propriety or otherwise of same, was considered, hence the Court came to the conclusion and rightly, too that his arrest was justified under the law. I agree.
Issue No. 2 is similarly resolved against the Appellant and in favour of the Respondents.
Both issues having been resolved against the Appellant, the appeal is on the whole dismissed for lacking merit. The Judgment delivered at the High Court of Bayelsa State, Yenagoa on the 16th October, 2015 is affirmed. There is no order as to cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the advantage of reading the draft of the leading Judgment in this Appeal just delivered by my
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learned Brother, Saidu Tanko Husaini, JCA.
I agree ?in toto? with his lordship’s line of reasoning and the conclusion reached that the Appeal has no iota of merit. I therefore dismiss the Appeal and affirm the judgment of the trial Court appealed against. I also make no order for costs.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
Felix T. Okorotie, Esq.For Appellant(s)
Mrs. Zgolieme Gwegime (ASP) SCID, Yenagoa for the 1st and 2nd Respondents.
Kingsley K. Teibogiren, Esq. for the 3rd and 4th Respondents.For Respondent(s)
Appearances
Felix T. Okorotie, Esq.For Appellant
AND
Mrs. Zgolieme Gwegime (ASP) SCID, Yenagoa for the 1st and 2nd Respondents.
Kingsley K. Teibogiren, Esq. for the 3rd and 4th Respondents.For Respondent
