MR. CHUKWUDI OKELU v. INSPECTOR GENERAL OF POLICE, ABUJA & ORS
(2018)LCN/11954(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/287/2013
RATIO
CRIMINAL LAW: CLAIM OF UNLAWFUL ARREST
”As held by this Court, in AIZEBOJE v. EFCC (2017) LPELR-42894(CA), it is the law that in a claim for unlawful arrest and detention, the Plaintiff must not only show that the defendant merely made a report against him, he must plead and establish that there was no reasonable and probable cause for making the report. See BAYOL v. AHEMBA (1999) 7 SC Pt. 1 Pg 92; IYALEKHUE v. OMOREGBE (1991) 3 NWLR Pt. 177 Pg. 941.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
MR. CHUKWUDI OKELU Appellant(s)
AND
1. INSPECTOR GENERAL OF POLICE ABUJA
2. THE ASST. INSPECTOR GENERAL OF POLICE, ZONE 9, UMUAHIA
3. COMMISIONER OF POLICE ANAMBRA STATE
4. SGT. GEORGE, SARS OFFICE AWKUZU (IPO)
5. DANIEL CHUKWUEMEKA NWANKWO Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Anambra State, delivered by Hon. Justice P.N.C Umeadi on 28/1/2011 wherein judgment was given in favour of the 5th Respondent at trial.
The Appellant and the 5th Respondent herein had a dispute over the sale of land wherein the Appellant alleged that the 5th Respondent collected the sum of N1, 070, 000 from him as vendor of a piece of land which transaction fell through and the 5th Respondent herein refused to refund the purchase price for the consideration that had failed.
The Appellant petitioned the office of the 3rd Respondent over the failed cheque and the threats of the 5th Respondent to his life and family members. The 3rd Respondent through the 4th Respondent in the course of their investigation detained the 5th Respondent and later released him on bail. The 5th Respondent later brought Suit No. 0/290m/2010 for the enforcement of his fundamental human rights and prayed for the following:
a. An order declaring the arrest, detention and torture of the Applicant in filthy police cell at SARS office Awkuzu from Friday 21st May, 2010 to Friday 28th May, 2010, unlawful.
b. An order of stay of all actions on the Respondents in connection with the matter.
c. An order of injunction restraining the Respondents from further arrest, detention and torture of the Applicant in connection with the matter in any manner whatsoever in future
d. An order for the payment of sum of N10 Million to the Applicants by the Respondents for infringing the Applicants fundamental rights as compensation and apology.
e. Any further order
TAKE FURTHER NOTICE that the Applicant will rely on the statement in support and grounds of this application as well as the affidavit of Mrs. Chinyere Nwankwo and exhibits already filed with the ex-parte application during the hearing of this suit as well as further affidavit of Applicant himself and the annexure and order of Court made on Friday 28/5/2010.”
The learned trial Judge granted all the reliefs of the 5th Respondent as Applicant and ordered the Appellant and the 1st – 4th Respondents to pay to the 5th Respondent the sum of 300, 000 (Three Hundred Thousand Naira) only and to render public apology to the 5th Respondent within 30 days. Hence this appeal.
Notice of appeal was filed on 16/2/11. Record was transmitted on 3/6/13 deemed filed on 13/2/17. The Appellant’s brief was filed on 22/11/16 and deemed filed on 13/2/17. A reply brief was filed on 10/11/17. The Respondents’ brief was filed on 6/1/17.
This Court saw the affidavit of service to the effect that the 1st-4th Respondents were served on 11/5/18 with hearing notice of the day’s hearing. In view of the apparent unwillingness and inability of the 1st-4th Respondents to defend the appeal after being served with all processes by the Appellant, the Court heard the appeal on the Appellant’s and 5th Respondent brief alone.
The following issues were identified by Appellant’s counsel for determination:
1. Whether the Applicant (5th Respondent) complied with the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009 in commencing this action.
2. Whether the Appellant was wrong to have reported to police the issuance of dud cheque to him by the 5th Respondent.
The Respondent identified three issues for determination as follows:
1. Whether there is a valid Notice of appeal pending in this matter to warrant a hearing of the appeal.
2. Whether the judgment of the lower Court had been complied with by the Appellant.
3. Whether there is reasonable ground of appeal proposed by the Appellant.
At the hearing of the appeal, the learned 5th Respondent’s counsel did not refer the Court to any Cross Appeal filed by him. The grounds of appeal contained in the Notice of appeal filed by the Appellant on 16/2/11 which the Appellant relied on shorn of any particulars are set out below:
1. Error in law
The learned trial Judge erred in law when he held that the suit is competent and that the further affidavit and an affidavit of urgency are proper affidavit in support of an application for enforcement of fundamental rights.
2. Error in law
The learned trial Judge erred in law when he declared the arrest and detention of the Applicant/Respondent as unlawful and that it was a civil transaction without the fraud and dud cheque
3. Error in law
The learned trial Judge erred in law when he held that the entire transaction between the 5th Respondent/Appellant and the Respondent is purely civil in nature.
4. Error in law
The judgment is against the weight of evidence.
Order 7 Rules (4) and (5) of the Court of Appeal Rules 2016 provide as follows:
”notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant; provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”
I do not think that the 2nd portion of Order 7 Rule 5 which provides that the Court is not confined to the grounds in the Notice of appeal allows the Respondent to insert into the appeal issues that did not come up at the trial, in the judgment of the trial Court or in any post judgment proceedings which the Appellant did not bring as a ground of appeal and on which the 5th Respondent has not cross appealed. Thus, the issues distilled by the 5th Respondent do not emanate from the Grounds of Appeal filed by the Appellant and therefore go to no issue and must be disregarded. In the circumstances, the issues identified by the 5th Respondent are incompetent and have no relevance in this appeal. I will consider portions of the Respondents’ brief replying to the complaint of the Appellant.
I must mention that all the issues raised by the Respondent’s counsel should have come by way of a preliminary objection to the competence of the appeal. The preliminary objection could have been filed 48 hours before the hearing of the appeal separately to give the Appellant the opportunity to respond to it. The other and better alternative is to incorporate the preliminary objection in the Respondent’s brief thus giving the Appellant an opportunity to reply to it in the reply brief.
Under both instances, the Respondent must immediately the appeal is called for hearing before the argument of the appeal by the Appellant intimate the Court with the fact that he had filed a preliminary objection. It is settled that a preliminary objection must be filed and raised separately. Where it is raised as part of a brief, it must be under a conspicuous title under the name and style of PRELIMINARY OBJECTION followed by grounds and arguments in aid of same. See CHIWENDU ODEDO v. INEC (2008) 7 SCNJ 1.
None of the above was done by the 5th Respondent in this case. However I will consider all arguments relevant to this appeal proffered by the 5th Respondent’s Counsel in the brief.
I will therefore determine the appeal on the issues distilled by the Appellant’s counsel but recouch them as follows:
1. Whether there was proper commencement of the fundamental rights proceedings in this case to make the determination of the High Court competent.
2. Whether the Appellant activated the machinery of state through the 1st -4th Respondents to cause the unlawful arrest and detention of the 5th Respondent.
ISSUE ONE
Learned Appellant’s counsel, Mr. W.O. Enwelum Esq., argued that procedures for the enforcement of fundamental rights are provided for in the Fundamental Rights (Enforcement Procedure) Rules, 2009. Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 sets out the requirement for commencing an action under the rules. Counsel argued that the order provides that an application for the enforcement of fundamental right shall be supported by a statement setting out the name and description of the Appellant, the relief sought, the grounds upon which the reliefs are sought and supported by an affidavit setting out the facts upon which the application is made.
Counsel argued that from the processes filed by the 5th Respondent at the trial Court, there is no affidavit in support setting out the facts of the suit as required under the rules, counsel insisted that the purported affidavit of urgency which was deposed to by one Mrs Chinyere Nwankwo does not comply with the requirement of an oath and also does not contain the facts of the suit.
Counsel argued that it is obvious that as at the time the motion ex-parte was argued there was no filed motion on notice in the Courts file. Under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, there is no provision for leave of the Honourable Court to bring fundamental right suits.
Counsel submitted that Order 2 of the Fundamental Right Enforcement Rules refer to motion on notice and not motion ex-parte and that Order II Rule 6 while it makes provisions for service on the Respondent of the application, ex-parte motions are not served on the Respondents, thus only a motion on notice under Order II Rule 3 is served on the Respondent. Counsel’s view is that the Fundamental Human Right Enforcement Rules 2009 does not make provisions for how or when either a motion on notice or ex-parte should be served and that the Court is constrained to rely on Order 3 Rule 3 (1) of the Anambra State High Court Civil Procedure Rules in these circumstances. Counsel then submitted that by Order II Rule 3 of the Rights Enforcement Procedure Rules 2009 the only proper way to commence this suit at trial was by way of motion on notice, supported by a statement setting out the name and description of the Applicant, the relief sought and supported by an affidavit setting out the fact upon which the application is made.
Counsel argued that the implication of commencing this suit by motion ex-parte together with statement in support and grounds of the application simply means that the Appellant as the 5th Respondent at the trial Court was not served with the process and indeed the ex-parte motion together with the annexed processes were not served on the Appellant. Again a closer look at the motion on notice filed on 2/6/2010 clearly show that the process was bereft of statement in support, grounds upon which the application is brought and the reliefs sought as provided in the rules.
Counsel argued that the mandatory provisions of Order 4 Rule 3 are that ex-parte application is only allowed after a motion on notice has been filed and not the other way round. Counsel cited OLANIYAN v. OYEWOLE (2008) 5 NWLR Pt. 1079 Pg. 122; MAKO v. UMOH (2010) 8 NWLR Pt. 1195 Pg. 82 at 86; C.C.C.T.C.S LTD. v. EKPO (2008) 6 NWLR Pt. 1083 Pg. 362 and submitted that none compliance with the prescribed mode of commencing an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 deprives a Court of jurisdiction. Counsel cited OLORUNTOBA v. ABDUL-RAHEEM (2009) 6 SCNJ 1 at 28; G &T INVESTMENT LTD. v. WITT &BUSH LTD. (2011) 8 NWLR Pt. 1280 Pg. 500 at Pg. 513; UMANAH v. ATTAH (2006) 17 NWLR Pt. 1009 Pg. 503.
The learned 5th Respondent’s counsel, Anthony O. Obi Esq., argued that the Applicant in the Court below filed ex-parte Motion No. 0/290m/2010 seeking the reliefs sought therein.
The Court granted the application in part and made consequential orders by the ruling delivered on 28th day of May, 2010 as already stated in the brief. The Applicant at the Court below filed the motion on Notice on 2/6/2010 with the prayers, annexure and written address.
5th Respondent’s counsel submitted that the application was in substantial compliance with Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
OPINION
The law on this point is very clear as it is governed by legislation. The Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to Section 35 of the 1999 Constitution state as follows in Orders 2 and Order 4 (3) and (4);
ORDER 2
1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:
Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.
4. The affidavit shall be made by the Applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.
5. Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application.
ORDER 4
3. The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the application especially when the life or liberty of the applicant is involved, hear the applicant ex parte upon such interim reliefs as the justice of the application may demand.
4. (a) The application ex-parte under this Order shall be supported by affidavit which shall state sufficient grounds why delay in hearing the application would cause exceptional hardship;
(b) A party moving the Court ex parte may support the application by argument addressed to the Court on the facts put in evidence;
(c) Where the application is made ex parte for interim reliefs, the Court may make the following orders;
(i) Grant bail or order release of the Applicant forthwith from detention pending the determination of the application;
(ii) Order that the Respondent against whom the order for the release of the applicant is sought be put on notice and abridge the time for hearing the application;
(iii) Order the production of the Applicant on the date the matter is fixed for hearing if the Applicant alleges wrongful or unlawful detention.
(iv) Grant Injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application;
(v) Any other order as the Court may deem fit to make as the justice of the case may demand.?
In this case by the Record on page 1, the Applicant now 5th Respondent filed a motion Ex-parte on 26/5/10 for the following orders:
a. An order releasing forthwith, the applicant from unlawful detention at SARS detention cell at Awkuzu pending the determination of the Application.
b. An order of injunction restraining the Respondents from taking further steps in connection with the matter or staying all actions pending the determination of the Application.
c. An order that the 1st, 2nd, 3rd and 4th Respondent be served through the officer in charge of the Legal Department of the state C.I.D, Awka and that such service be deemed proper as required by law
d. Any further order.
By Order 4 Rule 3 and 4 of the Rules, in a case where the Applicant is in custody, the application ex-parte can be brought particularly where the liberty of the Applicant is involved as was the case here.
The learned trial Judge on page 80 of the record rightly gave the following order:
”Court: I order that the Respondent be put on notice of the issue of release of applicant and an order for injunction. (2) leave is granted to the applicant to serve the 1st, 2nd, 3rd and 4th Respondents with the order and all other processes in this suit by substituted means that is by serving same through the officer in charge of Legal Department state C.I.D Awka and such shall be deemed as good and proper service. (3) this matter is adjourned to 7/6/10 for hearing of the motion on notice.”
The learned trial Judge converted the motion ex-parte to one on notice as has been the correct jurisprudence on this point in this situation.
Much was made by the Appellant’s counsel about the fact that the process was commenced by a motion ex-parte. It is all a storm in a tea pot as that procedure is right and proper in the circumstance of this case as it is provided by the rules and the justice of the case demanded it be done. See LEEDO PRESIDENTIAL MOTEL LTD. V. BANK OF THE NORTH LIMITED & ANOR. (1998)LPELR-1775 (SC).
The 2nd complaint made by the Appellant to the process by which the fundamental right suit was commenced is that there was no affidavit in support setting out the fact as required by the rules and that the affidavit of urgency filed by Mrs. Nwankwo would not suffice more so because a motion on notice should have been filed accompanied with statement in support, grounds upon which the application is brought, reliefs sought and an affidavit setting out the facts relied upon.
Appellant’s counsel in my view has lost sight of an essential element in the provisions of the rules. It is that any mode of commencement can be used.
In Order 2 Rule 2, the application for enforcement may be by any originating process accepted by the Court. I do not see how the commencement of this process by motion ex-parte has adversely affected the rights of the Appellant or led to a gross miscarriage of justice against him. After all, the motion on notice was filed on 13/5/13 with all relevant processes.
Contrary to the argument of learned Appellant’s counsel, that the ex-parte motion was intended to seek leave pursuant to the provisions of the previous orders, that was not the essence of the motion ex-parte in this case as no prayer for leave to bring an application was sought or obtained. The only leave granted was leave to serve the 1st-4th Respondents herein by substituted means at the trial Court. This issue is resolved against the Appellant.
ISSUE TWO
Whether the appellant activated the machinery of state through the 1st -4th Respondents to cause the unlawful arrest and detention of the 5th Respondent.
Learned Appellant’s counsel argued that part of the Laws of the Federation of Nigeria, includes the Dishonoured Cheque (Offences) Act 1990 (as amended). The act makes it an offence for any person to issue another person a cheque that will be dishonoured upon presentation for payment.
Counsel argued that the issuance of a dud cheque is a criminal offence and that it is the duty of citizens of Nigeria to report cases of commission of crime to the police for their investigation and what happens thereafter is the responsibility of the police. Counsel cited FAJEMIROKUN v. COMMERCIAL BANK CREDIT LYONNAIS NIG LTD. (2009) 5 NWLR Pt. 1135 Pg. 588 at 595; ATIKU v. STATE (2010) 9 NWLR Pt. 1199 Pg. 241 at 257; AFRI BANK NIG PLC v. ANUEGBUNWA (2012) 4 NWLR Pt. 1291 Pg. 560 at Pg. 564.
Learned counsel reminded us that the 5th Respondent admitted issuing a dud cheque to the Appellant. The 5th Respondent also did not deny that the Appellant paid him the sum of N1,070,000.00 (One Million and Seventy Thousand Naira) only. The Appellant demanded for the return of the purchase sum of the failed transaction between him and the 5th Respondent. Rather than the 5th Respondent paying the Appellant back or deliver the original allocation paper of the plot, he started threatening the Appellant. Section 4 of the Police Act LFN empowers the police to investigate any allegation of criminality against anybody or group, therefore, the complaint of the Appellant to police (see page 42 of the Record of Appeal) was in accordance with the provisions of the Police Act.
Learned Appellant’s counsel argued that the Appellant with a lawful and genuine complaint against the 5th Respondent should not have been held responsible for his arrest and imprisonment by the police.
Counsel cited JIM JAJA v. C.O.P (2011) 2 NWLR Pt. 1231 Pg. 375 at 381; BALOGUN v. AMUBIKAHUN (1989) 3 NWLR Pt. 107 Pg. 18; MAIN STREET BANK NIG. PLC v. OGWU (2015) 15 NWLR Pt. 1482 Pg. 336 at 338.
Learned counsel to the 5th Respondent argued that the Appellant right from the word go knew the nature of the business he had with the Respondent, which is sale of land. Counsel explained that the Appellant was given all the necessary documents and taken to the land before he chose to deposit the sum of N1 million with respect to the land but all of a sudden changed his mind and demanded for a refund which he is not entitled to as no refund is guaranteed after payment.
Counsel submitted that it was the bogus petition and a huge sum of money the Appellant gave to the 4th Respondent to kill him that led to the police hanging him in their slaughter house at Awkuzu.
Counsel stressed that the Appellant cannot escape liability in this matter by saying he merely made a report of ‘homicide potential’ to the police.
OPINION
The trial Judge on this issue held as follows at page 85-86 of the Record:
”It would seem the Applicant made a report to the police against the 5th Respondent who was invited and made a statement but later the Applicant now claims that the police turn against him and began to pressure him to pay the money being demanded by the 5th Respondent. The Complaint of the Applicant is that the 1st-4th Respondents tortured and detained him from Friday 21/5/10 to Friday 28/5/10 at the SARS office Awkuzu. The 1st -4th Respondents in their 59 paragraphs counter affidavit contended the detention of the Applicant was as a result of a petition dated 17/5/10 written by the 5th Respondent titled ‘Threat to life, intimidation, harassment and homicide potential’.
I agree that the police have the power to make arrest and investigate a crime which is reported to it. See Ejiofor V. Okeke (2007) 7 NWLR Pt. Pg 33 at 638. It is clear that the primary dispute between the Applicant and the 5th Respondent is the failed land transaction which is purely civil matter. Therefore the excuse which the 1st- 4th Respondents would have to detain the Applicant would be the petition of the 5th Respondent. I reckon that matters of the nature of a threat to life are not easy to decipher. At what point does one call in the police? If one delays it may be too late.
On the other should one be allowed to get away with it when it is obvious that no such threat exists. I think the cases would be decided on their merit. I think that there has to be a real and tangible threat before one will be exculpated for inviting the police into a purely civil matter on the ground that his life is been threatened. I have perused the petition in Exhibit B (supra) again and there is nothing convincing about the alleged threat. I think the police upon an arrest following a Complaint are expected to sieve the grain from the chaff. The police are expected to invite the parties and upon discovering the core issues in this suit are purely civil in nature advice both parties to pursue the claims in the law Courts. It is an outrage that the police deem it fit to detain the Applicant from 21/5/10 to 28/5/10 on the basis of the petition Exhibit B (supra) only. I consider the 59 paragraph affidavit by the 1st-4th Respondent as mere grandstanding.
I have to agree with the trial Court that the primary dispute between the Applicant and the 5th Respondent is the failed land transaction which is purely a civil matter. Even though the Appellant wrote a petition to the police, and the police being an authority vested with power to make arrest and investigate a crime which is reported to it may have the excuse to detain the Applicant based on the petition of the 5th Respondent.
What is expected of the police in a case like this is to determine the nature of dispute between the parties first, where it is purely civil then parties should be advised to take recourse in the law Courts and where it is criminal in nature the police is expected to commence a thorough investigation into the criminal issues involved.
I have to address the position of law as touching the effect of frivolously or maliciously reporting a crime to the law enforcement agents.
It is settled law that one who lodges complaint with the Police or any authority of like manner, malafide leading to the arrest and/or detention of another is answerable in law for the harassment and injuries caused that other person. See FAJEMIROKUN v. COMMERCIAL BANK (CREDIA LYBNNAIS) NIG. LTD.(2009) 5 NWLR Pt.1135 Pg. 558 at 600; CHIMEBELE & ANOR. v. EDEH & ORS. (2017) LPELR- 42289; OCEANIC SECURITIES INTERNATIONAL LTD. v. BALOGUN & ORS (2012) LPELR-9218(CA).
This Court stated in SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR v. DANIEL PESSU (2014) LPELR-23325(CA) that if a person orders a policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the policeman. I do not intend to mean that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, can be liable in an action for unlawful arrest or detention.
Merely making a report to a policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. See SAMUEL ISHENO v. JULIUS BERGER PLC (2008) SCJN 220. It however translates to unlawful arrest when the allegation is unfounded and based on a personal vendetta or unresolved and maybe prolonged disagreement between the victim of arrest and the person who made the report.
Our law has provided a remedy for any such victim of unlawful arrest and or detention. This is contained in Section 35 (6) of the 1999 Constitution which provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.
Let me also add that the 1st-4th Respondents had the duty to diligently investigate any form of criminal allegation reported to it in order to know if a crime was really committed or about to be committed or the report was just an act of malice and hatred. This is necessary in order to avoid initiating government machineries for a worthless cause or even to perpetrate injustice on harmless citizens who may not have the means to access justice.
It is true the Appellant wrote a petition titled ‘Threat to life, intimidation, harassment and homicide potential’ exhibited on page 42 of the Record. I have read the further further affidavit in support of the application particularly paragraph 8 (L) and (M) which shows that it was the 5th Respondent who first reported the Appellant to the police (See page 50 of the record) for forcing him to write the cheque.
This story of who was the first complainant was confirmed by paragraphs 4 (h) to (o) of the Appellant’s counter affidavit on page 38-39 of the record. Also the pertinent portions of the affidavit of the 1st-4th Respondents are set out below as contained on page 62 of the record:
7. That in the course of investigation, the applicant was arrested.
8. That in the course of investigation and statement recording, it was discovered that the applicant had some complicity in kidnapping and armed robbery related cases.
9. That on discovering this, a signal was sent to the police investigators at Awka for further directives.
10. That kidnapping and armed robbery as discovered is not bailable as a matter of course.
11. That herewith attached and marked Exhibit ‘C’ is a copy of the police wireless message sent to the Police Headquarters, Awka.
12. That having investigated that aspect of discovery during the course of investigation, and having obtained the consent of the powers that be, the applicant was temporary released on bail pending the outcome of the ongoing investigation into the matter.
13. That suffices it to say that investigation into the matter is still in progress when the applicant instituted this action.
It seems to me that given the fact that it was the 5th Respondent who first reported the matter to the police claiming threats to life etc against the Appellant, he cannot turn around if the same measure was meted out to him.
I have to say that in this case there were accusations and counter accusations of threat to life and the police might have had difficulty in discerning who was actually threatening whom. However, since it was the 5th Respondent who had collected money for a consideration that had apparently failed and subsequently issued a dishonoured cheque contrary to the provisions of the Dishonoured Cheques Offences Act 1977, the police were quite right to have invited him for investigation.
As held by this Court, in AIZEBOJE v. EFCC (2017) LPELR-42894(CA), it is the law that in a claim for unlawful arrest and detention, the Plaintiff must not only show that the defendant merely made a report against him, he must plead and establish that there was no reasonable and probable cause for making the report. See BAYOL v. AHEMBA (1999) 7 SC Pt. 1 Pg 92; IYALEKHUE v. OMOREGBE (1991) 3 NWLR Pt. 177 Pg. 941.
In view of the affidavit evidence of the parties, it is difficult to tell whether there was no reasonable and probable cause for making a report of threat to life by the Appellant against the 5th Respondent. In other words, I am not convinced on a balance of probability that the Appellant had no reasonable or probable cause to make the report of threat to life and issue of dud cheque against the 5th Respondent.
The fact of the matter is that the facts of this case do not reveal a mere civil matter between the parties. There was the issue of issuing a dishonoured cheque which is a felony and which the police were bound to investigate, when it was reported. I am of the humble view that the police acted within their mandate and responsibility in arresting and detaining the 5th Respondent and that the arrest and detention was not master minded by the Appellant but was part of the process of police investigation. Afterall if the police do not investigate the issue of the sale of land, they were bound to investigate the issue of dud cheque which is a criminal offence.
I do not believe that the Appellant maliciously activated the machinery of state against the 5th Respondent in the circumstances of this case. The appeal succeeds in that the substantial issue in controversy has been resolved in favour of the Appellant. The judgment of Hon. Justice P.N.C Umeadi delivered on 28/1/11 in Suit No. O/290m/2010 and the orders therein are hereby set aside. Appeal Allowed. No order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the preview of the lead judgment of my learned brother, the PJ. HELEN MORONKEJI OGUNWUMIJU, JCA, with which I am in complete agreement. For the same reasons contained therein, which I humbly adopt as mine, I am also of the firm viewpoint that the instant appeal harbours both substance and merit. It deserves to succeed and the same is accordingly allowed by me. In consequence, I hereby endorse the consequential orders made in the said lead judgment inclusive of the one regarding costs.
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
W.O. ENWELUMFor Appellant(s)
A.M. AGWU holding the brief of A.O. OBI – for 5th RespondentFor Respondent(s)
