MR. BONIFACE OBIUKWU & ANOR v. MRS. ESTHER OKWUDIRE & ORS
(2018)LCN/12012(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of July, 2018
CA/OW/43/2014
RATIO
COURT AND PROCEDURE: WHERE A PERSON MAKES COMPLAINT
“See in this regard, the recent decision of this Court in the case of ANUFI V. EFCC (2018) LPELR 43521(CA) wherein my learned brother, Ugo, JCA relying on some previous decisions of this Court, particularly the decision of this Court in Jim-Jaja v. COP (2011) 2 NWLR (Pt. 1231) 375 and that of the Supreme Court in the same case, reiterated the position of the law to the effect that a person who lodges a complaint to law enforcement agencies in respect of a straight forward civil matter, cannot immune himself from the consequences flowing from the violation of the affected person’s fundamental right(s).” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. MR. BONIFACE OBIUKWU
2. MRS. EBERE OBIUKWU Appellant(s)
AND
1. MRS. ESTHER OKWUDIRE
2. THE D.P.O. NIGERIA POLICE MGBIDI CSP CYLONG EBIMORE
3. THE COMMISSIONER OF POLICE, IMO STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 27/11/2013 by the High Court of Imo State presided over by Hon. Justice K.A. Ojiako (hereafter to be simply referred to as ‘the lower Court’ and ‘learned trial Judge’ respectively). The action in which the lower Court delivered the judgment appealed against was instituted by the 1st Respondent against the Appellants and the 2nd and 3rd Respondents respectively, under the Fundamental Rights Enforcement (Procedure) Rules, 2009 (hereafter to be simply referred to as FREP Rules. In the statement pursuant to Order II Rule 3 of the said Rules, the 1st Respondent who initiated the case sought the following reliefs: –
(1) A declaration that the arrest and detention of the applicant from the 19th day of March, 2013 to the 21st of March, 2013 by the 3rd Respondent on the complaint of the 1st and 2nd respondents was unconstitutional, unlawful, illegal, and an infringement on the fundamental rights of the applicant as enshrined under Sections 34(1)(a), 35(1) and 41, of the 1999 Constitution of the Federal Republic of Nigeria.
(2) An order of this Honourable Court directing the respondents to pay N10,000.00 (sic) (Ten Million Naira) compensation to the applicant for her unlawful arrest and detention in terms of the reliefs sought in the statement accompanying the affidavit in support of the application.
(3) A declaration of the Honourable Court that the amount of Fifteen Thousand Naira (N15,000.00) forcibly collected by the third respondent from the applicant as money for bail is illegal and should be returned to the applicant.
Forty-four (44) ‘grounds upon which the reliefs are sought’ were set out in the said Statement. See pages 3 – 9 of the record. The lower Court in its judgment duly set out the reliefs sought by the Respondent and also reviewed the processes (i.e. affidavits and written addresses) upon which the parties that bothered to put up appearances, contested the case. Having also identified the facts in respect of which the said parties were ad idem, and also setting out the pertinent issues (sic) that called for determination in the action to be whether the arrest and detention of the applicant have occasioned the infringement of the applicants (sic) fundamental rights as guaranteed under Sections 34(1) (a), 35(1) and 41 of the 1999 Constitution as amended the lower Court proceeded to state as follows: –
‘…By this the 1st and 2nd respondent (sic) report to the police that the applicant obtained the money by fraudulent means is manifestly false and ipso facto malicious.’
Another aspect of this case worthy of consideration is the deposition of the 2nd respondent of paragraph 14 which shall for clarity be reproduced thus:
(14) ”The police are on investigation of the applicant of a suspected criminal offence of obtaining by false pretences in the course of which the police have so far recovered the sum of N86,000.00 from the applicant.”
For the police to have recovered from the applicant the said sum of N86,000.00 which is the alleged contributions and clearance fees claimed by the 2nd respondent clearly evince the fact that the 2nd – 3rd respondents were on a debt recovery mission engendered by the false report by the 1st – 2nd respondents.
Furthermore to support this is the fact that no charges have been filed against the applicant.
The facts and circumstances of this case again clearly show that the issue in contention is a civil dispute with no iota of criminality to get the police involved. I have times without number admonished the police against turning itself into debt collectors like in this case. This is clearly outside of their duties as given to them under the law. It is an unlawful conduct appropriate by the police which does no good to the image of the police.
In the light of the foregoing I find as a fact that the report of the 1st – 2nd respondents to the police which engendered the arrest of the applicant is false and ipso facto malicious. Furthermore the dispute is a civil one without any semblance of criminality. The togging of the report (sic) obtaining by false pretences is one intended to give it a semblance of criminal offence.
It is trite that an arrest and detention based on a false report to the police is a clear breach of the persons (sic) fundamental rights to liberty, movement and right to dignity of human persons.
Such an arrest is unlawful and the infringing body together with the person(s) who made the report must of necessity be found liable for the said infringement.
On the whole, I find the 1st – 3rd respondents liable for the breach of the applicants (sic) fundamental right aforementioned. The applicant is therefore entitled to compensation to (sic) the said breach. See Section 35(1) of the 1999 Constitution.
With respect to relief C, the applicant must firstly prove that the amount of N15,000.00 was forcibly collected by the 3rd respondent from him, as bail money. This complaint here is criminal and must therefore be proved beyond reasonable doubt. This is anchored on paragraph 41 of the affidavit in support. The applicant therein stated that her brother Mr. Gerald Eburuo brought the said sum of N15,000.00 which was given to the IPO for onward transmission to the 3rd respondent. By this the evidence is bereft of the fact that the 3rd respondent received the money. Further to prove this fact as required by law the evidence of her said brother and the I.P.O. are very material as the evidence at (sic) the applicant on this score is hearsay.
It is not direct evidence of what she did. In the circumstance the applicant has failed to prove her entitlement to this relief in the relief (sic) which is not cognizable under this action.
Another feature in this action which I consider necessary to deal with is the issue of the said sum of N86,000.00 recovered by 3rd respondent from the applicant and admitted by the 1st – 2nd respondents. The said sum by the circumstances of this case and evidence of the applicant which I believe was extorted from her. Should they be allowed to keep same I am of the view that necessary orders ought to be made for the 1st – 3rd respondents to return the said sum to the applicant. This would serve as a deterrent (sic) to future occurrences.
However since the applicant never sought for it, this Court is not a father Christmas to grant same. I will not therefore so order.
On liability, with respect to the 4th respondent, no mention of any sort was made of him all through the affidavit evidence and the proceedings. I cannot in the circumstance hold him liable for the said breach of the applicants (sic) fundamental rights. There is no affidavit evidence that the 3rd respondent was acting on his behalf.
Finally I hold that the applicant has proved that her fundamental rights were unlawfully infringed by the 1st – 3rd respondents. This action therefore succeeds and I hereby make the following declaration and orders.
(1) The arrest and detention of the applicant from the 19th day of March 2013 to 21st March 2013 by the 3rd respondent on the complaint of the 1st and 2nd respondents is unconstitutional, unlawful, illegal and an infringement of the fundamental rights of the applicants (sic) as enshrined under Section 34(1) (a), 35(1) and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
(2) The 1st – 3rd respondent shall jointly and severally pay the sum of N500,000.00 as compensation to the applicant for the unlawful arrest and detention in terms of the reliefs sought in the statement accompanying the affidavit in support of the application.
(3) Relief 3 is unproved and is accordingly refused.
The 1st – 3rd respondent shall pay cost of this action assessed at N50,000.000.
Being aggrieved with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower court on 4/12/2013, a notice of appeal dated 29/11/2013, containing 4 grounds of appeal which together with their respective particulars read thus: –
GROUNDS OF APPEAL
(1) GROUND ONE: Error in law.
The learned trial Judge erred in law in relying and acting on unsigned document to hold that the 2nd appellant is a member of the Applicant’s Association.
Particulars of error:
(a) It is trite law that unsigned document lacks probative value and is inadmissible in evidence against a party.
(b) The alleged Constitution of the Association has no reference to the 2nd appellant.
(2) GROUND TWO: Error in law.
The learned trial Judge erred in law when he held that there is no material disparity in the names on the documents before him.
Particulars of Error:
(a) The Applicant did not place any evidence before the Court in reconciliation of the two different names.
(b) It is not the duty of Court to presume that the two names are the same without any evidence to that effect.
(3) GROUND THREE: Error in law
The learned trial Judge erred in law in embarking on resolution of the conflicting affidavits before it without inviting oral evidence.
Particulars of error
(a) There are material conflicts in the affidavits on the issues before the Court.
(b) It is trite law that in the face of such conflicts oral evidence becomes necessary for resolving the conflicts.
(4) GROUND FOUR:
The judgment is against the weight of affidavit evidence before the Court.
The relief which the Appellants seek from this Court and as contained in the notice of appeal is, that the judgment of the Imo State High Court sitting at Mgbidi and presided over by Hon. Justice K.A. Orjiako delivered on the 27th November, 2013 be set aside and the claims of the 1st Respondent be dismissed.
The appeal was entertained on 2/5/2018, as the Appellants had before then, on 19/5/2015 filed a brief of argument dated 16/3/2015 but deemed to have been properly filed and served on 29/9/2015; while the 1st Respondent (hereafter to be simply referred to as ‘the Respondent’) had on 23/10/2015 filed a brief of argument dated 15/10/2015. As there was evidence before the Court that the Respondent and the 2nd and 3rd Respondents respectively, had notice of the hearing date of the appeal (i.e. 2/5/2018), and given the absence of all the Respondents in appeal and their non-representation by counsel, the appeal was deemed as having been duly argued on the aforementioned brief of argument of the Appellants (for whom Chukwuemeka Okoro Esq., appeared) and that of the Respondent, as the 2nd and 3rd Respondents respectively, in any event never filed brief(s) of argument in the appeal.
Three issues were formulated by the Appellants for the determination of the appeal in their brief of argument. They read thus: –
1. Whether the learned trial judge was not wrong in delivering judgment in the matter on the conflicting affidavits on crucial facts in the case without calling for oral evidence. (Grounds 3 and 4).
2. Whether the learned trial judge was not wrong when he held that “the non-signing of Exhibit A1 is not fatal and that “If the document (i.e. Exhibit A1) has been exhibited as the list of the members of the Association it does not enure to the 2nd respondent to contend that same having not been signed must be discountenanced” and thereupon relied and acted on the said document to hold that the 2nd Respondent is a member of the Association (Ground 1)
3. Whether the learned trial judge was not wrong in pre-judging the report by the 1st – 2nd Respondents as “false and malicious report” when the Police are investigating the report.
The Respondent formulated three issues (which were not tied to the grounds of appeal) for the determination of the appeal in her brief of argument and they read thus: –
1. Whether there was before the trial Court affidavits that were irreconcilable in conflict on crucial facts to warrant the Court or the Judge calling for oral evidence to resolve the conflict.
2. Whether the learned trial Judge was wrong when he held that “the non-signing of Exht.A1 is not fatal and that if the document (i.e. Exht. A 1) has been exhibited as the list of the members of the Association it does not enure to the 2nd Respondent to contend that same having not been signed must be discountenanced” and thereupon relied and acted on the said document to hold that the 2nd Respondent is a member of the Association.
3. Whether by the totality of affidavit evidence adduced by the Applicant/1st Respondent in this suit she did not establish a case of infringement of her Fundamental Rights against the 1st and 2nd and 3rd Respondents now, the 1st and 2nd Appellants and 2nd Respondent.
Before, I consider the appropriateness of the issues formulated by the Appellants and Respondent respectively, for the determination of the appeal, I consider it pertinent to dwell on the necessity of the 3rd Respondent on record, as a party in the instant appeal.
The 3rd Respondent as it appears in the record of appeal is ‘The Commissioner of Police, Imo State. This Respondent was the 4th Respondent in the process by which the instant action was instituted by the 1st Respondent and against whom the 1st Respondent, having regard to the reliefs sought as re-produced hereinbefore, never sought any relief. This apparently informed the position taken by the lower Court in its judgment, when it stated thus: –
‘On liability, with respect to the 4th respondent, no mention of any sort was made of him all through the affidavit evidence and the proceedings. I cannot in the circumstance hold him liable for the said breach of the applicants (sic) fundamental rights. There is no affidavit evidence that the 3rd respondent was acting on his behalf.’
The finding of the lower Court as stated above, in my considered view not only go to show that the 1st Respondent did not disclose any cause of action against the 4th Respondent before it, but that the 4th Respondent cannot by law be held to be vicariously liable for the deeds or misdeeds of the 3rd Respondent before the said Court, solely on account of the said 4th Respondent being a superior officer to the 3rd Respondent. This in my considered view would appear to be in keeping with the provisions of Section 6(1)(a) and (b) of the Police Service Commission (Establishment) Act, 2001 which show that both the 3rd and 4th Respondents respectively, are Police Officers employed into the Nigeria Police Force by the Police Service Commission. The provisions in question state thus: –
‘6(1) The Commission shall :
(a) be responsible for the appointment and promotion of persons to offices (other than the office of the Inspector-General of Police) in the Nigeria Police Force;
(b) dismiss and exercise disciplinary control over persons (other than the Inspector-General of Police) in the Nigeria Police-Force;’
The 1st Respondent who initiated the instant action and who included the 4th Respondent was certainly not aggrieved with the finding of the lower Court in respect of the said 4th Respondent as re-produced above. This is because she never filed any appeal against the said party in respect of that part or finding of/in the judgment of the lower Court. Similarly, the Appellants (who given their case in their counter affidavits filed in opposition to the case of the 1st Respondent as disclosed in the affidavits filed before the lower Court), never claimed to have had anything to do in respect of the alleged infraction or violation of the fundamental rights of the said 1st Respondent in conjunction with the 3rd and 4th Respondents, either jointly or severally. In the counter affidavits which the Appellants filed in controverting the case of the 1st Respondent, it was only to the 3rd Respondent (now 2nd Respondent in the appeal) they claimed to have lodged a report against the 1st Respondent and consequent to which the said 1st Respondent was arrested.
Given this situation, it therefore become totally incomprehensible to me how the 4th Respondent (now 3rd Respondent in the instant appeal) qualifies as a person that is directly affected by the appeal and thus to qualify as a party in the appeal. The Appellants would appear to have simply dragged the 4th Respondent before the lower Court, into the instant appeal as the 3rd Respondent, simply because he was a party in the 1st Respondent’s suit as initiated before the lower Court. There is no law or rule of practice that stipulates that every, and all the parties in a case at the lower Court should be railroaded as it were, into an appeal, whether or not such a party or parties will be affected by the appeal. I am of the considered view that it not only shows a poor understanding of the law in respect of who qualifies as necessary or desirable party or parties to an appeal, to simply force an appeal on a party against who a lower Court never made a finding of liability or non-liability in a case before it and against which there is no appeal, but also a clear misconception of the purpose of an appeal.
The 4th Respondent before the lower Court (now 3rd Respondent in the instant appeal), is therefore on very firm grounds in not participating in the instant appeal.
The issues formulated for the determination of the instant appeal by the Appellants and the 1st Respondents respectively, have been re-produced hereinbefore. Having regard to the judgment of the lower Court appealed against, I however intend to resolve the issues by a consideration of the issue as to ‘whether or not the lower Court having regard to the totality of the evidence before it, was wrong in finding the Appellants and 2nd Respondent to have violated the fundamental rights of the Respondent.
The stance of the Appellants under their issue 1 is to the effect that the lower Court was wrong to have delivered the judgment they have appealed against on conflicting affidavits on crucial facts without calling for oral evidence. In sustentation of their stance, the Appellants referred to Section 116 of the Evidence Act, 2011 and cases considered to be relevant on the fact that there were very serious conflicts on crucial facts in their (Appellants’) affidavits and those of the Respondent, relating to the existence and nature of the Association which the Respondent alleged that the 2nd Appellant was a member. The Appellants submitted that given the conflicting affidavit evidence on the issue, the law demanded that the said conflicts be resolved by parol evidence. The lower Court was accused of failing to address the need for parol evidence in the resolution of the conflicts but proceeded to decide the crucial issues on the conflicting affidavits against the Appellants without affording them the opportunity to cross-examine the Respondent on the depositions in her affidavits.
The stance of the Respondent is to the contrary of that of the Appellants. The Respondent submitted that there was no irreconcilable conflict on any crucial fact that necessitated the calling of oral evidence to resolve the same. That the lower Court had no difficulty in arriving at the conclusion that the 2nd Appellant was a member of the Association – Devine (sic) Ladies and Gentlemen Association of Nigeria. That the mere fact that the Respondent stated that the 2nd Appellant was a member of the Association and the denial by the 2nd Appellant that she was a member, is not such conflict contemplated under Section 116 of the Evidence Act 2011. That the lower Court from the available exhibits, fact and circumstances had no problem in making a finding of fact that the 2nd Appellant was a member of the Association.
Though the Respondent conceded that in appropriate cases where such conflicts occur, the lower Court was bound to call for parol evidence, she however said this was not so in the instant case. This is moreso as the Appellants who claimed that the 2nd Appellant was contributing to the Respondent’s business outfit of bi-weekly fund contribution, did not tender or exhibit any contribution card, pass book, note book or anything, showing such connection with the Respondent contrary to the position of the law that whoever it is that asserts a fact must prove it. That the Appellants at least ought to have produced something to show that the Respondent was collecting money from the 2nd Appellant;but none was produced.
The issue regarding the non-calling of oral evidence to resolve purported or alleged conflicting affidavit evidence in a fundamental right proceeding, was considered recently by this Court in its unreported decision delivered on 12/7/2018 in APPEAL NO:CA/OW/175/2014, UNITED BANK FOR AFRICA PLC & ANOR. V. MR. IZUKA JOHNSON. Therein, I stated thus: –
‘It is beyond dispute in my considered view that the only manner by which parties are required to place their evidence before a Court entertaining an application for the enforcement of fundamental rights is by affidavits. See in this regard the provisions of Order II Rules 3 – 7 and Order XII of the FREP Rules, which deal with written addresses. See also the case of JACK V. UNIVERSITY OF AGRICULTURE MAKURDI (2004) LPELR ? 1587 (SC) wherein the Supreme Court dwelling on procedure for hearing of an application for the enforcement of fundamental right said per Katsina-Alu, JSC; (as he then was) thus: –
‘The next question is one of procedure. For the enforcement of Fundamental rights, a special procedure has been established by law as prescribed by the Fundamental Rights (Enforcement Procedure) Rules, 1979. The process of enforcement of fundamental rights is commenced by an application made to the Court; first, for leave; and upon leave being granted, by Notice of Motion or by Originating Summons for redress. No oral evidence is called. The application is heard on the affidavit in support of the application and the affidavits which every party to the application proposes to use at the heating. The affidavits constitute the evidence…’
The grouse of the Appellants under their issue four, given their argument/submissions therein, in my considered view is that the commencement by the Respondent of his application entertained by the lower Court by way of originating summons given the conflicting affidavits filed therein by the parties has deprived the said Court of the ability to properly determine the case.
Indeed, I consider it pertinent to say that if the purpose of Appellants’ issue four is to show that the conflicting affidavits of the parties in the Respondent’s application was inimical or detrimental to the proper exercise by the lower Court of its adjudicatory jurisdiction in the Respondent’s application, then the Appellants in my considered view should have availed themselves of the provision of Order VII of the FREP Rules which deals with ‘preliminary objection disputing the Court’s jurisdiction’; or they could have taken advantage of the provision of Order IX Rule 1(i) of the said Rules (which relates to effect of non-compliance in relation to mode of commencement of the application) before the lower Court. See the case of OLIYIDE & SONS LTD V. OAU, ILE-IFE (2018) LPELR 43711 (SC), and UCHENDU V. OGBONI (1999) LPELR 3287 (SC) amongst many others.
I am of the considered view that it is obvious from the record that the Appellants did not take advantage of both or either of the provisions of the Orders hereinbefore mentioned, even though it would appear that they obliquely strayed as it were, into the realms of their issue four under consideration, in some parts or portions of their written address before the lower Court. Proceedings under the FREP Rules, in my considered view easily qualify to be classified as being sui generis and suffice it to say that as the Appellants never complained about the propriety of the commencement by the Respondent of his application by way of originating summons and or that his (Respondent?s) cause of action was not one that could be properly decided on affidavit evidence (given what the Appellants considered to be irreconcilable conflicts therein), issue four as argued in the instant appeal, serves no useful purpose.
This is more so when a Court in ‘regular cases’ is not mandated to hands off a case in which there are conflicting affidavits. See in this regard the case of OGAH V. IKPEAZU (2017) LPELR 42372 (SC) wherein the Supreme Court said thus: –
‘This Court has remained resolute on the criteria which justify determination of claims by originating summons. From the seemingly endless number of the decisions of the Court, where the facts are or likely to be in dispute it is improper to commence such action by originating summons.’
In the case at hand where the learned trial Judge in the exercise of his discretion under Order 3 Rule 8 of the Rules of Court proceeded on appellant’s amended originating summons, the right procedure is for the lower Court to re-appraise the affidavits and documents of both sides and infer whether or not the facts therein are in such dispute or conflict that a decision one way or another is impossible.
If the facts remain in conflict, pleadings are ordered and the matter proceeds accordingly.
See also the case of CHAIRMAN NATIONAL POPULATION COMMISSION V. CHAIRMAN, IKERE LOCAL GOVT (2001) LPELR 3166 (SC) wherein the Supreme Court per Ayoola, JSC; said thus: –
‘Whether proceedings may be heard entirely on affidavit evidence or not is not to be determined by the form of the proceedings but by the nature of the issues and the parties’ reaction to the facts in issue in the proceedings. Where there is no contentious issue of fact in the proceedings, no reasonable objection can be taken to a hearing on the affidavits. It is when there is serious dispute as to facts to be resolved that trial on affidavits is inappropriate.’
I have read the record painstakingly, and it is obvious ex-facie the judgment of the lower Court from pages 77 – 83 that the said Court accorded the affidavits filed before it by the parties (which the Appellants have alleged to be conflicting) insightful or astute consideration and that the said Court actually (and in my considered view, rightly too) found no conflict therein as it were, in respect of the claim of the Respondent that his fundamental rights under Sections 34(1)(a) and 35 were violated by the Appellants.
Indeed, I am of the considered view that the very fact that the Appellants never controverted the fact that the Respondent was at the premises of the 1st Appellant to serve a Court process, the service of which the said 1st Respondent did not voluntarily accept through the 2nd Appellant or any of the personnel of the said 1st Appellant, inferentially rendered the account of the Respondent more probable than the case of the Appellants that went to suggest that the said Respondent is just out to make fast money and has for purpose concocted the instant case.
In the instant case, a bird’s-eye view of the Respondent’s case on the affidavits she placed before the lower Court, is to the effect that the 2nd Appellant was one of the contributors to the fund of an Association (Devine Ladies and Gentlemen Association of Nigeria of which she is the president) formed by members to assist themselves by contributing money which is given out in turn to the members, to benefit therefrom.
That it was the inability of the Association to ‘settle’ the 2nd Appellant with the contribution due to her in November 2013 as it was then not yet her turn, that resulted in the complaint she made to the Police and in respect of which she (Respondent) was arrested. The 2nd Appellant in the counter affidavit she placed before the lower Court, while disowning membership of the Association which the Respondent claimed she (2nd Appellant) belonged to, disclosed that she was a participant in a scheme being operated by the said Respondent and to which she (2nd Appellant) contributed; and that it was as a result of the inability of the Respondent ‘to settle’ her in January, 2013, as agreed and instead, telling stories that there were other subscribers, who ranked for settlement before her, and who she (Respondent) had to duly settle before her (2nd Appellant), that she (2nd Appellant) suspecting that she (2nd Appellant) had been defrauded or scammed or swindled, made a report of ‘suspected obtaining by false pretences’ against the Respondent to the 2nd Respondent who effected the arrest of the Respondent and detained her.
I am of the considered view that it is obvious given the respective cases of the Respondent and Appellants on the affidavit, that there was actually no irreconcilable facts that required oral evidence to resolve regarding the fact that the 2nd Appellant clearly and voluntarily too at that, parted with her monies to the Respondent either as the alter ego of the Association to which the Respondent claimed that the 2nd Appellant belonged, or to the said Respondent as the operator of a private business outfit, and that there was an arrangement that the 2nd Appellant would be paid what was due to her on a future date, and that when the future date as it were arrived, the Respondent did not give the 2nd Appellant what was due to her on the account that there were others that had to be settled before her. Given the state of affairs as narrated above, the lower Court was therefore eminently in a position to make inferences it considered appropriate, as to the purpose the Appellants set out to achieve by reporting the matter to the Police and the said Court glaringly came to a conclusion in this regard without calling for the resolution of this relevant or material fact, by asking parties to call oral evidence.
The 2nd Appellant going by the affidavit evidence she placed before the lower Court, in my considered view, clearly conceded the material fact or issue that she and Respondent had a business arrangement or business interaction (whether or not the said business arrangement or interaction was on the platform of an Association). The Appellants by their issue 1 in my considered view would appear not to appreciate the position of the law that it is basically not the filing of counter affidavit in a matter tried on affidavit evidence that throws up irreconcilable facts in the matter. A Court must be confronted with conflicting or contradictory evidence relied on by the parties on a material issue, which was not the situation in the instant case.
I am also of the further view that it is the non-appreciation of the position of the law as articulated above, that the Appellants are tenaciously holding on to Exhibit A1 (which has not been shown to be inadmissible in law ab initio, but only that at the best, the said Exhibit ought not to have been accorded any weight because it is unsigned) as not establishing the membership of the Association to which the Respondent claimed that the 2nd Appellant belonged. The membership of the Association in question, in my considered view, was not a material fact or issue, given the fact that the Appellants in their affidavits disclosed the purpose for the monies she parted with.
Flowing from all that has been said and as I have not seen any irreconcilable facts thrown up by the affidavits of the Respondent and Appellants respectively, in the instant case, I see no basis for the positions of the Appellants under their issues 1 and 2 respectively. The said issues are resolved against the Appellants at this stage.
Given the resolution of Appellants’ issues 1 and 2, against them, the only issue outstanding is whether the lower Court was right to have found in favour of the Respondent on the affidavit evidence before it. In this regard, I believe that it is the finding of the lower Court to the effect that the report the Appellants made to the 2nd Respondent is false and ipso facto malicious, that has to be examined against the backdrop of the evidence before the lower Court, particularly that of the Appellants and against the backdrop that the 2nd Respondent never denied the account of the arrest and detention as given by the Respondent.
I have painstakingly read the affidavit evidence placed before the Court by the Appellants and I cannot find anything wrong or uncanny in the inference made by the lower Court to the effect that the report made to the 2nd Respondent by the Appellants against the Respondent was false and ipso facto malicious inasmuch as the said 2nd Respondent who acted on the complaint/report, filed no counter affidavit to controvert the account surrounding the arrest and detention of the Respondent and which was to the effect that all the Appellants wanted to achieve and used the 2nd Respondent for was to recover the contributions she (2nd Appellant) claimed to have made to the Respondent. Indeed, the very fact that the Appellants admitted the recovery as it were, of the sum of N86,000.00 from the Respondent in circumstances which the Respondent deposed to in her affidavits (which the 2nd Respondent never controverted), and which glaringly went to show that the concocted complaint/report of the commission of a crime (i.e. suspected obtaining by false pretences) by the said Respondent, was designed solely for the purpose of using the 2nd Respondent given his position as a Police Officer, to recover the contributions the 2nd Appellant made to the Respondent, as the said Respondent was not forthcoming with what the 2nd Appellant conceived to have been due to her given the agreement between her (2nd Appellant) and the Respondent.
Though the Appellants having regard to their submissions, clearly realise that the law absolves a person who makes a bona fide or genuine criminal complaint/report to the Police, against the consequences of an arrest and detention made by the Police on the basis of the said bona fide or genuine complaint/report, they (Appellants) would appear not to have realised that they were still duty bound to show that the reasonableness of the complaint/report (in that the unreasonableness of a complaint/report of the suspected commission of a crime made by a person against another person) renders the complaint/report to be lacking in bona fide. See in this regard, the recent decision of this Court in the case of ANUFI V. EFCC (2018) LPELR 43521(CA) wherein my learned brother, Ugo, JCA relying on some previous decisions of this Court, particularly the decision of this Court in Jim-Jaja v. COP (2011) 2 NWLR (Pt. 1231) 375 and that of the Supreme Court in the same case, reiterated the position of the law to the effect that a person who lodges a complaint to law enforcement agencies in respect of a straight forward civil matter, cannot immune himself from the consequences flowing from the violation of the affected person’s fundamental right(s).
I am of the considered view that as it is undoubtedly inferable from the affidavit evidence of the Appellants that there was no iota of reasonableness in the complaint/report of ‘suspected obtaining by false pretences’ which they made against the Respondent and that all that the purported investigation into the complaint/report by the 2nd Respondent to whom same was made, was the arrest and detention of the Respondent and the recovery of the contributions the 2nd Appellant claimed to have made to the said Respondent, the report/complaint made to the 2nd Respondent, was in the circumstances rightly found by the lower Court to have been ‘manifestly false and ipso facto malicious’.
The Appellants having therefore, diabolically made their complaint/report against the Respondent, criminal in nature, against the glaring backdrop that whatever arrangement the 2nd Appellant had with the said Respondent, is glaringly civil in nature, they cannot extricate themselves from the breach of the fundamental rights of the Respondent, as they instigated the same in the knowledge that their complaint/report was false.
Flowing from all that has been said is that Appellants’ issue 3, like their issues 1 and 2 (which have been earlier so resolved) must be and are hereby resolved against them given the correctness of the judgment of the lower Court appealed against and in the light of the evidence before the said Court.
In the final analysis, the instant appeal is evidently unmeritorious and is hereby dismissed. The judgment of the lower Court is affirmed.
Costs in the sum of N100, 000.00 is awarded in favour of the 1st Respondent and against the Appellants and the 2nd Respondent jointly and severally.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree
Appearances:
Chukwuemeka OkoroFor Appellant(s)
Respondents are absent and none is represented by counsel.For Respondent(s)
