MOSES & ORS v. AKPAN & ORS (2020)

MOSES & ORS v. AKPAN & ORS

(2020)LCN/13987(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/244/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. OFONIME CLEMENT MOSES 2. GLORY CLEMENT MOSES 3. NSEMEKE MONDAY MOSES 4. EMMAN STEPHEN OKON 5. ELIJAH MOSES AKPAN 6. MONDAY MOSES AKPAN 7. UBONG OKON EDEM APPELANT(S)

And

1. JACOB MOSES AKPAN 2. EKAETTE JACOB 3. CORP. KENNETH NGELE [Divisional Police Hqrts., Abak] 4. THE COMMISSIONER OF POLICE, AKWA IBOM STATE RESPONDENT(S)

RATIO

THE STATUTORY RESPONSIBILITY OF THE POLICE

I agree that the Police has a statutory responsibility to arrest a person who have committed any offence but the duty to arrest must be within the confines of the law and the Police must justify such arrest. See PUNCH (NIG.) LTD. v AG (FED) (1998) 1 HRLRA 488. Where there is an infraction of a right as in this case, the victim is entitled to damages. See: MINISTER FOR INTERNAL AFFAIRS v SHUGABA (1993) 3 NCLR 913; BELLO v AG (OYO) (1986) 5 NWLR [Pt. 45] 828. PER OWOADE, J.C.A.

WHETHER OR NOT JURISDICTION IS DETERMINED BY THE PLAINTIFF’S CLAIM

It is a fundamental principle that the jurisdiction is determined by the plaintiff’s claim. In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court. See The African Press of Nigeria Vs The Republic of Nigeria (1985) 1 All NLR 50 at 175. PER SHUAIBU, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellants who were the 1st – 7th Respondents in the Court below against the judgment of the High Court of Akwa Ibom State in the Abak Judicial Division delivered by Hon. Justice INIABASI UDOBONG on 24/3/2016.

The 1st and 2nd Respondents who were the Applicants in the trial Court instituted this action under the Fundamental Rights [Enforcement Procedure] Rules by motion on Notice claiming special and general damages.

The claims of the 1st and 2nd Respondents as Applicants as contained on the Motion on Notice of 27/10/2015 and the Statement of facts pursuant to Order 2(3) of the Fundamental Rights Enforcement Procedure Rules 2009 are as follows:
1. A declaration that it was unlawful for the 1st to 7th Respondents to lodge false complaints to the officers of the 9th Respondents at Divisional Police Headquarters, Abak alleging that the Applicants have assaulted them and thereby causing the officers of the 9th Respondents particularly the 8th Respondent to arrest and detain the 1st Applicant in cell at Divisional Police Hqrts., Abak.

A declaration that the threat to re-arrest and detain the Applicants by the Respondents when they have committed no offence at State Police Hqrts. Uyo is unlawful, null, void and unconstitutional.
3. An order directing the 8th and 9th Respondents to arraign the 1st to 7th Respondents in Magistrate’s Court, Abak for malicious damage, conspiracy, threat to life, and assault occasioning harm on the Applicants.
4. An order of injunction restraining the Officers of the 9th Respondent from acting upon false complaints that were lodged by the 1st to 7th Respondents at State Police Headquarters, Uyo against the Applicants pending the determination of this case.
5. The sum of N5,000,000.00 [Five Million Naira] only as special and general damages against the 1st – 7th Respondents for causing the arrest and detention of the 1st Applicant and also the re-arrest of the 2nd Applicant when she has not committed no offence known to law.
6. And such further order(s) as this honorable Court may deem fit to make in the circumstance.

The grounds upon which the 1st and 2nd Respondents Applicants reliefs were sought which also represent the facts

presented to the Court below by the Respondents/Applicants as stated in the Statement of Facts as follows:
1. The Applicants and 1st – 7th Respondents are natives of Ikot Oku Ubara village Ediene Abak in Abak LGA.
2. Sometime on 29/8/2015 one Mr. Oke neighbor to the Applicants hired the 1st Applicant to harvest palm fruits for him.
3. After the 1st applicant had harvested the palm fruits on 30/8/2015 the 3rd – 6th Respondents went to the Applicants house to carry two bunches of palm fruits belonging to Mr.Oke away.
4. The 3rd & 6th respondents claims ownership of two bunches of palm fruits. The 1st Applicant told the 3rd – 6th Respondents to wait for Mr. Oke before carrying the palm cones away.
5. The 3rd & 6th Respondents became annoyed and fought the 2nd Applicant. The 3rd & 6th respondents threw to the ground, 2nd Applicant and 3rd respondent and bit the upper lip and finger of the 2nd Applicant.
6. The 2nd Applicant in the course of struggling to remove her finger from the mouth of the 3rd Respondent bite her too.
7. The 1st Applicant tried to assist the 2nd Applicant but to no avail.

The 3rd Respondent alleged that the 2nd Applicant had stolen palm fruits belonging to her husband i.e. 6th Respondent.
9. The 1st and 2nd Respondents beat the 1st Applicant and tore his trouser and shirt. And the 1st Applicant went to the house naked.
10. The 6th Respondent invited the 1st, 2nd, 4th, 5th, and 7th Respondents to the house of the Applicants and damaged doors, zinc, window, pour oil of the Applicants on the ground and destroyed the door. Where the Applicant kept pigs and up till now the pigs are not seen.
11. The 1st & 2nd Respondents in order to assist the 3rd Respondent beat the Applicants mercilessly and both Applicants sustained injuries.
12. The 3rd and 6th Respondents thereafter rushed to Divisional Police Headquarters, Abak and lodged false report against the Applicants.
13. The 8th respondent was detailed to investigate the case. The 8th respondent arrested the Applicants on 30/8/2015 at about 6.30p.m and detained till 1/9/2015. While the 2nd Applicant was issued with medical form to go hospital. The 8th Respondent discovered the truth on investigation and went to arrest the 1st – 7th Respondents. The 1st to

7th Respondents were not seen.
14. The 1st – 7th Respondents left Divisional Police Headquarters, Abak to State Police Command, Uyo for arrest of the Applicants.
15. The Applicants are praying the Court to order the Divisional Police Headquarters, Abak to arrest and prosecute the 1st – 7th respondents.
16. The sum of N170,000.00 belongs to Truth and Beauty Dev. Association which was kept by the 1st Applicant got missing when the 1st to 7th respondents damaged the house of the applicants.
17. The applicants have not committed any offence known to law to warrant the 1st to 7th Respondents to lodge false report against them at State Police Command, Uyo.

The case of the Respondents Appellants is that:
The Applicants/Respondents harvested two palm cones belonging to the 3rd & 6th Respondents/Appellants and when the later went to collect the said cones from the applicants, a fight ensued and the lower lip of the 3rd respondent appellant was in the process severely bitten by the Applicants.
Some of the Respondents who were attracted to the scene intervened to stop the fight while some of them were not at the scene of

the fight at all. The 1st, 2nd, 4th, 5th and 7th Respondents were joined in the suit out of malice.
It was the 4th Respondent/Appellant who is the village security that was delegated by the village head to call in the Police from Abak Divisional Police Hqrts. The matter was not reported by the 1st, 2nd, 3rd, 5th and 7th Respondents to the Police at all. The 3rd Respondent/Appellant was rushed to the hospital by the 8th Respondent/Respondent [a police officer] as she was bleeding. There was another report lodged at the State Police Command Headquarters, Uyo by the in-laws of the 6th Respondent/Appellant. The 3rd and 6th Respondents/Appellants are wife and husband. Exhibit ‘A’ is the injury on the 3rd Respondent/Appellant’s lower lip while Exhibit ‘C’ is the Police medical report issued by the Police to her. The said exhibits were attached to the 1st – 7th Respondents/Appellants’ counter-affidavit.

The parties filed Affidavit, counter-affidavit and further affidavit. In the course of his judgment the learned trial judge suo motu struck out paragraphs 21, 25 and 27 of the 1st – 2nd Respondents affidavit in

support of motion filed on 27/01/2015 as well as paragraphs 6, 8, 9, 10, 11, 12, 13, 14, 17, 18, 20, 21, 23 and 26 of the 1st – 7th Respondents Appellants counter-affidavit filed on 16/2/2016, having found that the said paragraphs contained legal arguments and conclusions and are offensive paragraphs.

The learned trial judge also noted that though served with processes the 8th – 9th Respondents [now 3rd & 4th Respondents] opted not to show up in Court in defence of the Applicants claims and that they are deemed to have admitted the claims of the 1st and 2nd Respondents Applicants.

The learned trial judge found merit in the case of the 1st & 2nd Respondents Applicants and awarded damages of N3,000,000.00 (Three Million Naira) jointly and severally against the Respondents for breach of the Applicants Fundamental Rights to liberty, freedom of movement and Human dignity and granted the order of injunction.

The concluding part of the trial Court decision as could be seen on pages 113 – 114 of the Record of Appeal is as follows:
First, at page 113, that:
I hold the view that the detention of the Applicants in the

Police Station from 30/8/2015 to 1st September, 2015 is beyond the constitutional provision of twelve hours or almost 24 hours was unlawful, illegal, unconstitutional, a violent violation of the fundamental rights of the Applicants. See EMEZUE v OKOLO [1978] SC 63; Section 35(5)(a) 1999 Constitution. From Abak Police Station to Magistrate Court, Abak is less than five kilometers, but the Police in doing the bidding of the 1st – 7th Respondents decided to dump the Applicants in the cell. The destination of an arrested person for a crime is the Court and not the Police Station, I so hold.
Second, still on page 113 of the Records that:
The act of the 1st – 7th Respondents by setting the Police at Ikot Akpan Abia against the Applicants thereby rendering the Applicants homeless as admitted by the 1st – 7th Respondents is violation of the dignity of the human person of the Applicants and 1st – 7th Respondents are liable. See Section 34(1)(a) of 1999 Constitution, the word degrading in Section 34(1)(a) is defined by Black’s Law Dictionary, Sixth Edition at page 428 as “Reviling, holding one up to public obloquy, lowering

a person in the estimation of the public, expose to disgrace, dishonor or contempt. See: UZO v EZEONU II [1991] 6 NWLR [Pt. 200] 708 @ 742. Why did the Police invade the house of the Applicants in the unholy hour of 3a.m for a mere assault as through the Applicants were common criminals? The answer lies in the malicious procurement of the 9th Respondent to punish, torture and reduced the Applicants to a mere animal. See BALOGUN v AMUBIKAHUN [1989] 3 NWLR [Pt. 107] 18; FAJEMIROKUN v CBN LTD. [2009] 2 FWLR [Pt. 485] 2933 @ 2938. I agree that the Police has a statutory responsibility to arrest a person who have committed any offence but the duty to arrest must be within the confines of the law and the Police must justify such arrest. See PUNCH (NIG.) LTD. v AG (FED) (1998) 1 HRLRA 488. Where there is an infraction of a right as in this case, the victim is entitled to damages. See: MINISTER FOR INTERNAL AFFAIRS v SHUGABA (1993) 3 NCLR 913; BELLO v AG (OYO) (1986) 5 NWLR [Pt. 45] 828.

And, third and finally that:
On the whole, the case of the Applicants is meritorious and ought to succeed. The case of the Applicants success [sic] and I make the following

orders:
1) The Respondents shall jointly and severally pay the Applicants the sum of N3,000,000.00 [Three Million Naira] as general damages for the breach of the Applicants fundamental rights to liberty, freedom of movement and human dignity as a result of the Respondents’ unlawful act together with cost of this action assessed at N50,000.00 [Fifty Thousand Naira].
2) The 9th Respondents, their servants, privies, officers and agents are hereby restrained from further harassing, arresting, summoning and detaining the Applicants on the matter constituting the subject of the complaint in this case by the 1st – 7th Respondents.

Dissatisfied with part of this decision, the 1st – 7th Respondents/Appellants filed a Notice of Appeal containing seven (7) grounds of Appeal in this Court on 21/04/2016.

The relevant briefs of Argument for the appeal are:
1. Appellants brief of argument filed on 12/9/2017 but deemed filed on 19/2/2018. It is settled by O. A. Umoh, Esq.
2. 1st and 2nd Respondents Amended brief of Argument filed on 7/1/2019 and deemed filed on 24/01/2019. It is settled by Mfon D. Uyoh, Esq.

Learned counsel for the Appellants nominated six(6) issues for determination of the Appeal. They are:
i) Whether the learned trial judge was right to have struck out paras. 6, 8, 9, 10, 11, 12, 13, 14, 17, 18 and 20 of the counter-affidavit of the 1st – 7th Respondents/Applicants without stating how each of the affected paragraphs violated Section 115(1) and (2) of Evidence Act [as amended] and therefore incompetent and whether it was right for the trial Court to turn round and make use of the same paragraphs of the said counter-affidavit against the deponents in its judgment. (Grounds One & Six).
ii) Whether the damage done to the Applicants/Respondents’ property and the assault on them is not an unjustifiable interference with the property and person of another which gives rise to an action in trespass and if so, whether the trial Court was not without jurisdiction to entertain and hold the 1st – 7th respondents/appellants liable on this aspect of the action brought under the enforcement of fundamental rights procedure. [Ground Two]
iii) Whether the judgment of the trial Court was not perverse. [Ground Three]

iv) Whether it was not wrong for the trial Court to hold the 1st – 7th respondents/appellants liable in damages when it was not shown that they were those who set the law in motion against the Applicants/Respondents and whether the award of damages by the trial Court for the violation of the Applicants/Respondents dignity of the human person contrary to Section 34 (1)(a) of the 1999 Constitution (as amended) did not amount to granting a relief not claimed by a party. [Ground Four]
v) Whether from the facts averred to in the counter-affidavit of the 1st – 7th respondents/appellants, it was not wrong for the trial Court to hold that the complaint of the Respondents/Appellants to the Police was actuated by malice. [Ground Five]
vi) Whether the trial Court did not act upon some wrong principles of law in awarding an extremely high amount of damages against the Respondents/Appellants. [Ground Seven]

Learned counsel for the 1st and 2nd Respondents on the other hand nominated three (3) issues for the determination of the Appeal. They are:
Whether in the circumstances of this case, the Court upon striking out the affected paragraphs of the

Applicants’ affidavit and 1st – 7th Respondents’ counter-affidavit did turn around and relied on the affected paragraphs to arrive at its decision and whether the contents of pages 103 & 104 of the record of appeal does not constitute enough explanation as to how the affected paragraphs offend Section 115(1) and (2) of the Evidence Act. [Grounds 1 & 6]
2. Whether from the evidence placed before the Court, the fundamental rights of the Applicants were not breached and whether the trial Court having considered all, and finding that the complaint of the 1st – 7th respondents appellants was actually actuated by malice has the power to so hold and also award damages claimed by the 1st & 2nd Applicants/Respondents as long as such damages does not exceed what the 1st & 2nd Applicants/Respondents.[sic] [Grounds 3, 4, 5 and 7].
3. Whether the trial Court having found the Appellants liable for violating the fundamental rights of the Applicant which is the principal claim does not have the powers to make reliefs ancillary to the main claim and whether Section 34 (1)(a) of the 1999 Constitution is not a part of Chapter 4 of the said Constitution. [Ground 2]

This appeal was first heard and reserved for judgment on 26/3/2019. However, on a careful perusal of the record of appeal and the processes filed by the parties, hearing notices were caused to be issued on the parties through their counsel to further address the Court on the question:
Whether the claims and/or reliefs sought by the Applicants Respondents are triable and/or could be accommodated under the Fundamental Right Enforcement Procedure Rules 2009 in the first instance.
On 10/5/2019, learned counsel to the Appellants filed his Written Address on the question posed by this Court. Therein, he answered the question posed by the Court in the negative. He submitted that the claims of the Applicants/Respondents as contained on pages 2 & 3 of the Record of Appeal has not disclosed any of their rights have been infringed as contained in the Constitution or African Charter on Human and Peoples Rights [Ratification and Enforcement]. He submitted that by claim No. 3 as contained in page 3 of the record of appeal and also by paras. 10, 12, 16, 17 and 26 of the Applicants/Respondents affidavit and paragraphs 8,

11, 12 and 18 of the Applicants Respondents further and better affidavit, the Applicants averred to the fact of damage done to their property and assault on them.
He submitted that the above paragraphs of the Applicants affidavit evidence show interference with the property and person of another which give rise to an action in trespass. In other words, said counsel, the Applicants/Respondents claims or reliefs could not have been accommodated under the Fundamental Rights [Enforcement Procedure] Rules 2009. And, that the learned trial judge was in error to have assumed jurisdiction and entertain the matter under the Fundamental Rights Procedure Rules.
He referred to the case of CLETUS MADU v NEBOH [2002] CHR page 67 @ 71 and submitted that the claims or reliefs of the Applicants Respondents especially claim No. 3 are not the kind of wrong envisaged by law to be enforced by the Fundamental Right [Enforcement Procedure] Rules.
He urged us to resolve the question posed by the Court in favour of the Appellants, allow the appeal and set aside the judgment of the trial Court.

On 25/3/2020, this matter came up for re-hearing before another Panel of

this Court. Meanwhile the Applicants/Respondents had filed his Written Address on 19/6/2019. Mr. Mfon D. Uyoh, Esq., for the Applicants Respondents gave us the following reasons why the claims of the Applicants Respondents could be accommodated under the Fundamental Rights [Enforcement Procedure] Rules 2009. They are:
1. Paragraph 20 of the Applicants affidavit at the trial Court at page 5 of the record of appeal which is “that the 8th Respondent arrested us on 30/8/2015 at about 6.30p.m and detained till 1st September, 2015 while the 2nd Applicant was issued with medical report to go to the hospital”. The arrest of the Applicants by the 8th Respondent at the behest of the 3rd & 6th Respondents is breach of Section 35 of the Constitution.
2. Paragraphs 22 – 23 of the supporting affidavit at the trial Court reveal how the Respondent therein lodged a complaint at State Police Hqrts., when the Police at Abak Division realized that the Applicants/Respondents did not commit any offence to warrant the invasion of their house at night in the manner that was done at the instance of the Respondents/Appellants.

The act of the Appellants/Respondents by invading the house of the Applicants/Respondents in a pretext of demanding two (2) cones of palm fruits and damaging the Applicants/Respondents’ doors, walls, pouring of the Applicants/Respondents’ oil, destroying of roof and wounding of 2nd Applicant/Respondent is act of lawlessness and impunity which is not in consonance with the Constitution of the Federal Republic of Nigeria 1999 as amended.
4. The uncontroverted paragraphs 7 – 10 of the supporting affidavit of the Applicants/Respondents reveal how 3rd and 6th respondents therein went to the Applicants/Respondents’ house and engaged them in a fight. My lords, this act is infringement of their right to private life as contained in Section 37 of the Constitution.
5. Paragraph 22 of the Appellants/Respondents affidavit at the trial Court admitted the fact that the applicants were not at home for fear of being arrested base [sic] on the 1st – 7th Respondents false complaint at Police Headquarters. The fact contains in pages 57 – 112 of the record of appeal amount to infringement of the Applicants fundamental right as enshrined in

Section 34(1)(a) of the Constitution.
In deciding the issue posed by this Court and on which the parties to this appeal have filed Written Addresses, it must be recalled in the words of Belgore, JSC in the case of TUKUR v GOVT. OF GONGOLA STATE [1989] 4 NWLR [Pt. 117} 517 @ 567 -568, that “No High Court can try an issue of fundamental right as such. Such a determination can only be tied to a particular subject matter…”
In the instance case, even from the claims of the applicants’ respondents’ as earlier demonstrated, it is obvious that the claims are not indeed for breaches of the Fundamental Rights of the Applicants/Respondents but for trespass and interference to person.

In the circumstance, the issue posed by the Court is resolved in favour of the Appellants Respondents. This appeal is meritorious and it succeeds.

The judgment and orders of the Honorable Justice Ini-Abasi T. Udobong of the High Court of Akwa Ibom State in Suit No. HA/FHR.32/2015 of 20th March, 2016 are hereby set aside.
Suit No. HA/FHR.32/2015 is accordingly struck out. Parties are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother MOJEED ADEKUNLE OWOADE, JCA was made available to me in draft.

The determinant issue in my view revolves round whether the claims and or reliefs sought by the respondents herein can be accommodated under the Fundamental Rights (Enforcement Procedure) Rules 2009.

Having therefore given due consideration to the plaint of the respondents herein, I wholly agree with my Learned brother that the claims are not in respect of any breach of the respondents constitutionally granted fundamental rights. I do agree that the appeal in the event has merit, and that the suit before the lower Court be struck out.
I abide on order made as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading the judgment of my learned brother, Mojeed A. Owoade, JCA in this appeal. I agree entirely with his reasoning and conclusion that the appeal is meritorious and should be allowed.

jurisdiction conferred on the Court. See The African Press of Nigeria Vs The Republic of Nigeria (1985) 1 All NLR 50 at 175.

I also agree that the claim before the lower Court do not qualify as falling within the ambit of Fundamental Rights and I therefore allow the appeal. Consequently, Suit No.: HA/FHR. 32/2015 at the lower Court is hereby struck out.

Appearances:

A. UMOH, ESQ., For Appellant(s)

MFON D. UYOH, ESQ., For Respondent(s)