MR. JAMES ADEYEMI ADEKAYODE & ANOR v. MRS. TAJUDEEN SALAUDEEN & ORS
(2019)LCN/12766(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/L/305/2011
RATIO
JURISDICTION: WHERE THERE IS ASSUMPTION OF JURISDICTION
“…the Court below assumed jurisdiction was on a fundamental rights complaint vide the cases of Diamond Bank Plc. v. Opara (2018) 7 NWLR (pt. 1617) 92, EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61, FBN Plc. v. A.G. Federation (2018) 7 NWLR (pt. 1617) 121, Mclaren and Ors. v. Jennings (2003) FWLR (pt. 154) 528, Iyere v. Duru (1986) 5 NWLR (pt. 44) 665, forbidding law enforcement agencies from enforcing civil or contractual obligations or using the law enforcement agencies to invade the liberty of the citizenry over civil wrongs as was wrongly done in this case under the thin guise of the powers and functions of the Police under Section 4 of the Police Act.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. MR. JAMES ADEYEMI ADEKAYODE
2. MRS. OLADUNNI ATUNDE (NEE ADEKAYODE) – Appellant(s)
AND
1. MRS. TAJUDEEN SALAUDEEN
2. COMMISSIONER OF POLICE, SPECIAL ANTI-FRAUD UNIT, IKOYI
3. THE OFFICER-IN-CHARGE, SPECIAL ANTI-FRAUD UNIT, SECTION “D” DEPT.
4. MR. DAYO AKINBIDEHIN
5. INSPECTOR GENERAL OF POLICE
6. THE ATTORNEY GENERAL OF THE FEDERATION
7. ADEDEJI MIKE
8. SUPOL JOHNSON – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the High Court of Lagos State (the Court below) whereby it awarded N100,000.00 damages against the appellants/2nd -7th respondents for the breach of the 1st respondents fundamental human rights for wrongful detention upon which the Court below issued a perpetual injunction restraining the 3rd– 7th respondents at the Court below from infringing the 1st respondents right to personal liberty.
The facts of the case, albeit, skeletally, were that the 1st respondent while acting as solicitors to the family of the appellants executed a sale agreement of their family property upon agreed consideration and professional fee of 15% on the purchase price. Upon the payment of the purchase price, the 1st appellant who was abroad phone the 1st respondent suggesting re-negotiation of the percentage by slashing it to 7.5%. The 1st respondent refused.
The appellants reacted by writing a petition to the 2nd respondent alleging that the 1st respondent had conspired with one Victor Kolade and obtained the sum of N20 million from unsuspecting members of the public for the purchase of their family property at No. 1, Ilesanmi Street Arowojobe Estate, Maryland Lagos by forging the signatures of the beneficiaries of the property. The 1st respondent reported to the police station upon the invitation contained in the petition where he wrote a statement detailing his own converse version of the case. The police were not satisfied with the 1st respondents explanation and directed that the 1st respondent must pay N6 million as instructed by the appellants before he would be free.
The 1st respondent succumbed to the coercion and made a cheque of N6 million under severe threat of continued detention by the 3rd – 6th respondents at the Court below. The cheque was made in the name of the present 7th respondent, Mr. Adedeji Mike, as instructed by the 3rd – 4th respondents. The 1st respondent was in police detention at the Special Fraud Unit (SFU) Ikoyi Annex office at 2A Ikoyi Club Road from 12 noon to 8.p.m. of 02.03.09 before he was set free after issuing the said cheque of N6 million. The case against the 1st respondent was also closed on that score.
The appellants admitted in their affidavit evidence at the Court below that they instructed the 1st respondent to act as solicitor for them in respect of the sale of their late mothers property located at No. 1, Ilesanmi Street, Arowojobe Estate, Maryland, Lagos in the course of which the 1st appellant had serious disagreement with the 1st respondent with respect to the 1st respondents liaison with one Mr. Victor Kolade over the sale of the property and advised the 1st respondent to stop acting for them as their solicitor in the sale of the property.
The appellant admitted at the Court below that the disagreement arose after the 1st respondent prepared the papers for the sale of the property and forwarded them to the 1st appellant in the United State of America for his signature which are still with the 1st appellant and yet to be executed at all material times.
It was also the case of the appellants that they caused their solicitors to address a letter to the intending purchaser of the property who responded that it had paid the purchase price of N20 million to the 1st respondent for the property and had been issued with the documents of sale which the purchaser forwarded a copy thereof in its letter of response to the appellants, therefore the appellants instructed their solicitors to write a petition to the 2nd respondent over the matter alleging conspiracy, obtaining money by trick and forgery against the 1st respondent, and that it was based on the said petition that the 2nd respondent invited the 1st respondent to his office for interrogation in the course of which the 1st respondent made a cheque of N6 million to close the criminal allegation.
The Court below found as a fact that the dispute between the 1st respondent and the appellants was purely contractual and did not warrant the 1st respondents detention by the police as the police cannot act as a debt collectors; upon which the Court below entered judgment in favour of the 1st respondent against the appellants and the 3rd – 8th respondents.
Not satisfied with the judgment, the appellants filed a notice of appeal with five (5) grounds of appeal. The appellants, with the leave of the Court, filed an amended brief of argument on 07.02.17, which was deemed as properly filed on 15.1-1.18, the respondents did not file brief of argument. The appellants were granted the leave of the Court to have the appeal heard on the appellants brief alone.
It was argued in the amended brief that paragraphs 8(a) (g) of the appellants counter affidavit in pages 80-81 of the record of appeal (the record) which deposed to new or fresh facts were not denied or countered by the 1st respondent and that had the Court below considered the unchallenged and admitted facts which were adverse to the 1st respondents case it would have dismissed the case of the 1st respondent citing in support the cases of Usman v. Baba (2005) 5 NWLR (pt. 917) 113, Habib (Nig.) Ltd. v. Opomulero (2000) 15 NWLR (pt. 690) 315.
The appellants argued that since the 2nd – 8th respondents were not served any hearing notice at the Court below, the proceedings leading to judgment against them is a nullity and as such stultified the 2nd -8th respondents acting on the appellants petitions as the 2nd – 8th respondents operate independent of the appellants citing in support the cases of S.P.D.C. (Nig.) Ltd. v. Niger Optical Services Co. Ltd. (2004) 7 NWLR (pt. 872) 420 at 436, 440, Anidiobi v. Anidiobi (2007) 2 NWLR (pt. 1017) 1 at 13, Adeyemi v. Lan and Baker Nig. Ltd (2000) 7 NWLR (pt. 663) 33, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6, Scott Emuakpor v. Ukavbe (1975) 12 SC 14, Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 606 at 670 and 693, Gbajor v. Ogunburegui (1961) 1 ALL NLR 853, Fajemirokun v. Commercial Bank (Credit Lyonnais Nig. Ltd.) (2002) 10 NWLR (pt. 774) 112, Totor v. Aweh (2000) 2 NWLR (pt. 644) 309 – 320 read with section 35 (1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and Section 4 of the Police Act Cap P19 LFN 2004.
It was argued that there was conflict between paragraphs 40 – 50 of the 1st respondents affidavit in support of the application in pages 45 – 47 of the record and paragraph 9 – 9.1 of the appellants counter affidavit in pages 81 – 82 of the record, therefore the Court below should have called for oral evidence to resolve the conflict on material and crucial issues and that having failed to do to, is decision should not stand citing in support the cases of Akinsete v. Akindutire (1963) 1 ALL NLR 147, N.B.N. Ltd. v. The Are Brothers Nig. Ltd. (1977) 6 SC 97, N.R.C. v. Cudjoe (2008) 10 NWLR (pt. 1095) 329 at 360, Lijadu v. Lijadu (1991) 1 NWLR (pt. 169) 627, D.P.C.C. v. B.P.C. Ltd. (2008) 4 NWLR (pt. 1077) 376 at 420, Military Administrator, Federal Housing Authority v. Aro (1991) 1 NWLR (pt. 168) 405 at 410.
It was argued that the appellants counter affidavit, particularly paragraphs 9(a) (d) thereof was direct evidence under Sections 77(a) and (b) and 58 of the Evidence Act and has probative value and being uncontradicted and should have been preferred by the Court below in favour of the appellants by dismissing the action citing in support the case of Adeyanju v. WAEC (2002) 13 NWLR (pt. 785) 479.
It was argued that the holding of the Court below that the allegation of conspiracy, forgery and obtaining money by trick were only used to arm the 3rd – 6th respondents with reason to compel the 1st respondent to pay the entire N6 million was not supported by the evidence and even contrary to the evidence vide paragraphs 1 – 3 of the fresh evidence which corroborates paragraphs 8 (a) (f) of the counter affidavit in pages 80 – 81 of the record.
The appellants submitted, in the alternative, that the criminal allegations deprived the Court of the jurisdiction to entertain the action as a fundamental rights case thus going outside the terms of the application before it, therefore the decision should not stand and the appeal should be allowed and the decision of the Court below set aside citing in support the cases of Tiga Green Farms and Agricultural (Nig) v. Misui O.S.K. Lines Ltd & Anor (2005) 17 NWLR (pt. 953) 70 at 187, Ushae v. C.O.P (2005) 11 NWLR (pt. 937) 499 at 531.
The linchpin of the dispute was that upon issuing the cheque of N6 million, the 1st respondent regained his liberty/freedom from police custody where he had been kept from 12 noon to 8 p.m. on the petition of the appellant over what turned out to be a civil dispute as rightly held by the Court below. These facts are common ground between the parties. There were no irreconcilable pieces of affidavit evidence on the heart of the dispute to warrant the calling of oral evidence or to expect a further affidavit from the 1st respondent when the core issue in dispute as highlighted in the course of the discussion was straight-forward and devoid of violent conflicting evidence videInegbedion v. Selo-Ojemen (2013) 8 NWLR (pt. 1356) 211 at 236; also, the general denial of the civil content of the dispute did not displace the allegation vide NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (pt. 1328) 148.
The fresh evidence on appeal did not detract from the pith and marrow of the dispute that the petition was camouflaged to hoodwink and give the impression of criminality when the true facts on ground as rightly found by the Court below emerged from a civil dispute which the affidavit evidence of the appellants could not shake off; therefore behind the facade or mask of the petition betrayed the true position that it was not a criminal grievance, but a civil action dressed in the borrowed robe of criminality.
The Court below was absolutely right when it held that the appellants activated the 2nd – 5th respondents by their veiled petition of criminality for recovery of money (N6 million) from the 1st respondent in a purely civil dispute which infringed the fundamental rights of the 1st respondent as rightly found by the Court below which was not culpable of assumption of jurisdiction over a criminal case when indeed the matter upon which the Court below assumed jurisdiction was on a fundamental rights complaint vide the cases of Diamond Bank Plc. v. Opara (2018) 7 NWLR (pt. 1617) 92, EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61, FBN Plc. v. A.G. Federation (2018) 7 NWLR (pt. 1617) 121, Mclaren and Ors. v. Jennings (2003) FWLR (pt. 154) 528, Iyere v. Duru (1986) 5 NWLR (pt. 44) 665, forbidding law enforcement agencies from enforcing civil or contractual obligations or using the law enforcement agencies to invade the liberty of the citizenry over civil wrongs as was wrongly done in this case under the thin guise of the powers and functions of the Police under Section 4 of the Police Act.
The 2nd 8th respondents did not file any notice of appeal or notice of cross-appeal, nor did the learned counsel for the appellants represent them at the appeal, therefore the appellants learned counsel cannot complain for a party that did not brief him to represent at litigation as he lacks the standing to do so vide Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172.
In the result, I find no merit in the appeal and hereby dismiss it and affirm the judgment of the Court below (Abiru, J., (as he then was)). Parties to bear their costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The lead judgment of my learned bother, Joseph Shagbaor Ikyegh, JCA, which has just been delivered was made available to me in draft.
I am allegiant to the reasoning and conclusion in the said lead judgment. I adopt the same as mine. I have nothing further to add.
For the same reasoning and conclusion therein contained, I agree that the appeal has no merit. I equally dismiss the same. I abide by the consequential orders made in the lead Judgment inclusive of the order as to costs.
TOBI EBIOWEI, J.C.A.: I have read in draft the judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA just delivered. I agree and have nothing to add.
Appearances:
Professor J.N. Mbadugha with him, Mr. A. Adio For Appellant(s)
Mr. T. A. Mokuolu (S.S.C. Fed. Min. of Justice) for the 6th Respondent.
1st, 2nd-4th and 7th-8th Respondents were served hearing notice but were unrepresented.
For Respondent(s)
