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MADUKA & ORS v. IGP & ORS (2020)

MADUKA & ORS v. IGP & ORS

(2020)LCN/14264(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/AW/138/2012

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. HYACINTH MADUKA 2. NWELE OKECHUKWU 3. ANTHONY EZEJI 4. RUFUS UGWA 5. SUNDAY ONWUSORONYE 6. FELIX OKORO 7. EMMANUEL OTA 8. SIR CLEMENT OGBONNAYA 9. H. R. H. IGWE MICHAEL N. UKAEGBU 10.BARRISTER VINCENT OTTAOKPUKPU 11. PATRICK EZENWA 12. CELESTINE ONWUSONYE 13. EMEKA IRUEFO 14. CHIMA NWAFOR 15. SUNDAY MADU 16. CHIEF PETER IBEZIMUZO APPELANT(S)

And

1. INSPECTOR GENERAL OF POLICE 2. A. I. G. MOHAMMED MURITALA ABBAS (A.I.G ZONE 9, UMUAHIA) 3. COMMISSIONER OF POLICE ANAMBRA STATE 4. CP JIBRIL. O. ADENIJI (COMMISSIONER OF POLICE, LEGAL/PROSECUTION SECTION, F. C. I. D, ABUJA) 5. B. O. NNANDI (OFFICER LEGAL DEPARTMENT, FORCE HEADQUARTERS, ABUJA) 6. ASP NWAMBU (ZIB UMUAHIA) 7. BARRISTER CHARLES ODOEMENA 8. BARRISTER BASIL IGWIKE 9. OKECHUKWU ONWUCHEKWA 10. JOSEPH ANULOBI 11. BENJAMIN ONWUNARUBA 12. MATTHIAS ANYADIEGWU RESPONDENT(S)

RATIO

THE DUTY OF THE POLICE TO PREVENT AND DETECT CRIME

Sections 4 and 24 of the Police Act give the Police the duty to prevent and detect crime, apprehend offenders, preserve law and order and protect lives and property.
A person’s liberty though guaranteed under the Constitution can be curtailed for the purpose of bringing him before the Court to answer to a charge. See ATT. GEN. OF ANAMBRA STATE V. UBA (2005) 15 NWLR (PT. 947) 47. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellants were Applicants at the Court below in a suit they filed against the Respondents in a Fundamental Right action, seeking the following reliefs:
a. “A Declaration that the purported reopening of Police investigation into allegations of Murder, looting and malicious damage at Umuchukwu community on 29/8/2009 which had already been exhaustively investigated by the Police and the culprits charged to Court in charge No. MU/18C/2011 is a contravention or likely contravention of the Appellants’ fundamental rights to personal liberty guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
​b. A Declaration that the invitation or summoning of the applicants by the Police at Umuahia Zone 9 for the ostensible purpose of reopening an allegation of crime already exhaustively investigated by the same Police formation and the real culprits charged to Court as recommended by the Police is a contravention or likely contravention of the Applicants fundamental rights to personal liberty guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

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  1. Perpetual injunction restraining the 1st – 6th Respondents, their servants, agents or privies from hunting for, inviting, summoning, interrogating, arresting or detaining the applicants or further doing so in respect of the allegations of Murder, looting and Malicious damage at Umuchukwu community on 29/08/2009.
    d. An order on the 1st – 6th Respondents to release to the 8th Applicant his international passport and National identity card taken from him in the course of an earlier investigation into the same allegations which had since been completed and the 8th applicant and the other applicants exonerated.
    e. 50 Million Naira general damages against the respondents jointly and severally for this latest contravention or likely contravention of the applicants fundamental rights to personal liberty guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The Respondents filed their respective affidavit in opposition to the Application.

​Judgment was entered against the Appellants and in favour of the Respondents by C. E. K Anigbogu, J, of the Ekwulobia

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Division of the Anambra State High Court in Suit No. AG/MISC14/2011 on the 23/01/2012. Aggrieved by that decision, the Appellants have appealed against the said Judgment.

SUMMARY OF FACTS:
Records show that the Appellants and the 7th-12th Respondents were members of the same community. The 7th – 12th Respondents had alleged that the Appellants and their other townsmen had unilaterally changed the name of their community from “Nkerehi” to Umuchukwu”, a situation that resulted in several Court actions and clashes on both sides.

On the 29th of August, 2009, the clashes got worse between the two factions in which two persons namely; Iruka Okalazu and Chijioke Aniekwe were shot and killed and properties worth millions of Naira destroyed.

​Consequent upon the incident, several Police investigating units had carried out investigations into the incident. The 7th, 9th and 10th Respondents were arraigned for “Promoting Native war” and were subsequently discharged. Dissatisfied in the way and manner the Police in Zone 9 Umuahia carried out the investigation particularly failure to arraign the culprits in Court for the

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Murder of the aforesaid deceased persons, the 7th – 12th Respondents through their counsel, further petitioned the office of the Inspector General of Police (1st Respondent herein) praying for the re-opening of the investigation so as to ensure that Justice was done in the case of the Murder of the deceased men.

The 1st Respondent (the Inspector General of Police) directed the 4th and 5th Respondents to review all previous investigations into the case and advise him. The 4th and 5th Respondents reviewed the investigations earlier carried out, and decided to invite the Appellants again.

The re-invitation of the Appellants and others by the Police led to the present Suit wherein the Appellants alleged infringement of their fundamental rights and sought for an injunction to restrain the Police from re-opening the investigation into the case as well as general damages for the infringement of the Fundamental Rights of the Appellants.

The Appellants’ Counsel O. B. Onyali, SAN distilled a sole issue for determination thus:
“Whether the Court below was right in holding that in spite of the circumstances of this case the Police

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have unlimited powers to reopen investigation already completed and matter charged to Court”.

Counsel to the 1st – 6th Respondent, K. O. Ugwuoke Esq also distilled one issue for determination thus:
“Whether the trial Court was not right in holding that there was no breach or likelihood of a breach by the Respondents of the Appellants’ rights as enshrined in the Constitution”.

Counsel for the 7th -12th Respondents distilled a sole issue similar to the issue distilled by Counsel for the 1st – 6th Respondents but couched differently as follows:
“Was the learned trial Judge right in law in dismissing the Appellants’ application for the enforcement of their fundamental right and in holding that the Police has the powers to reopen the investigation of a case properly reported to them”.

The issues raised by all the Counsel as reproduced above can conveniently be compressed into one straight forward issue of narrow compass thus:
“Whether on the facts and circumstances of this case, the trial Court was right in dismissing the Appellants’ application for enforcement of their

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fundamental right and holding that the Police has the powers to re-open investigation of a case reported to them and re-invite parties where necessary”.

In his argument on the issue he formulated, learned counsel for the Appellants O. B. Onyali, SAN, argued that it is interference with the Constitutional duties of the Attorney General of Anambra State for the Police to reopen investigation in a case in which the Attorney General had taken over prosecution, considering the fact that the Police had concluded its investigation, charged the matter to Court and transferred the case to the office of the Attorney General.

He submitted that it is not within the province of an accused person who had been indicted by the Police investigation to say he did not like the outcome of the investigation.

Counsel contended that the constitutional right of the Appellants to personal liberty is likely to be infringed if the investigation is re-opened and therefore at liberty to bring this application.

​In his reply, counsel for the 1st – 6th Respondents contended in summary, that the Police has the power to determine the method and course of their

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investigation. That the Police has the Power to investigate, re-investigate or re-open investigation of cases reported to them.

Counsel submitted that the re-opening of an investigation by the Police and re-invitation of the Appellants who were on Police bail does not constitute a threat to, or an infringement of the fundamental rights of the Appellants.

Reacting to the submissions of learned counsel for the Appellants, counsel for the 7th – 12th Respondents also argued, in summary that nobody has been charged or tried for the murder of the two deceased persons and that investigation into the case of conspiracy, murder, looting and malicious damage has not been concluded.

He contended that the reliefs sought by the appellants at the Court below do not come within the ambit of enforcement of fundamentals right since the police has the discretionary powers to determine how they carry out their investigation as time does not run against the state.

​In determining this appeal, it is apposite to look at the history of this case. I had earlier while summarizing relevant facts mentioned that the Appellants and the 7th -12th Respondents were

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members of one community which was originally known as Nkerehi until it was changed to Umuchukwu. This change did not go down well with a faction of the Community and consequently resulted in clashes that led to the death of two persons who were members of the community.

It is also on record that the 7th – 12th Respondents seem not to be happy about the way the Police carried out their initial investigation concerning the murder of the two deceased persons. They therefore petitioned the Inspector General of Police (1st Respondent) for a review of the investigation with a view to bringing the culprits of the alleged murder to book.

It is obvious that the main reason why the 7th – 12th Respondents petitioned the Inspector General of Police was the Murder of the two members of the Community aforementioned.
​Even though the matter had been investigated earlier and some findings made, does that preclude the 7th – 12th Respondents from petitioning the Inspector General of Police (IG) if they were aggrieved? I think not. Does that also stop the I.G. from ordering a review or re-investigation into the case? I also do not think so. Is

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the Police also empowered under the law to invite the Appellants again or any other party if the need arises?
Even though it is untidy, the Police has the powers to re-invite parties where there is need to do so. If the police invite the Appellants again following the outcome of their re-investigation, does that in any way infringe on the Fundamental rights of the Appellants to justify an injunctive relief and damages? I think not.
The prosecution at every level either the Police or the Attorney General have powers to amend, alter or in fact withdraw a charge at any stage in the cause of a criminal trial before judgment. In each case, the accused persons are given their constitutional right to take a fresh plea on the new charge.
The reliefs sought by the Appellants do not fall within the fundamental rights enforcement procedure the way we know it.
Sections 4 and 24 of the Police Act give the Police the duty to prevent and detect crime, apprehend offenders, preserve law and order and protect lives and property.
A person’s liberty though guaranteed under the Constitution can be curtailed for the purpose of bringing him before the

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Court to answer to a charge. See ATT. GEN. OF ANAMBRA STATE V. UBA (2005) 15 NWLR (PT. 947) 47.
I am aware that despite the provisions of Sections 4 and 24 of the Police Act, where this power is improperly used, the Court can stop the use of the power for that improper purpose. Put in another way, an order could be made by the Court restraining the Police from arresting or doing other improper act. For the Court to make such an order it must be clear that the Police have overstepped its bounds or there is likelihood of doing so.
In the instant case, the Police have not overstepped its bounds or gone outside its powers neither has there been any indicator of their doing so.
I therefore see no reason or justification to warrant the injunctive orders and damages prayed for by the Appellants at the Court below.
After listening to both parties and reviewing the evidence before him, the learned trial Judge at page 316 of the Record of appeal made the following findings of fact:
“I do not see any arbitrariness from exhibits attached which will give the Court the inkling that there is the likelihood of a breach of the right of the

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Applicants as enshrined in the Constitution. I guess the Applicants as per the Constitution are bound to know whatever the Police has against them and to be given the opportunity to defend themselves”.
The foregoing are findings of facts by the trial Court which can only be interfered with by this Court if they are shown to be perverse, but it has not been so shown by the Appellants. This Court has no reason or justification to intervene or interfere.

In the circumstance, the sole issue is resolved against the Appellants and in favour on the Respondents. This appeal is bereft of merit and is hereby dismissed. The Judgment of the trial Court in suit No. AG/MISC.14/2011 delivered on the 23rd of January, 2012 by C. E. K Anigbogu, J, is hereby affirmed.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME, (Ph. D) JCA.
I agree with her reasoning and conclusion.
I also affirm the judgement of the Court below in Suit No. AG/MISC.14/2011 delivered on the 23rd of January 2012.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned

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brother Nwosu-Iheme J.C.A.

​I agree with the decision by my learned brother in the lead judgment that this appeal lacks merit and is hereby dismissed. The judgment by the lower Court delivered on 23rd January, 2012 in suit No. AG/MISC.14/2011 is also affirmed by me.

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Appearances:

Emeka Nwankwo, Esq. For Appellant(s)

E. Ogheneno – for 1st – 6th Respondents.
N. D. Agu – for 7th – 12th Respondents For Respondent(s)