LawCare Nigeria

Nigeria Legal Information & Law Reports

MR. OGBO ONWODI & ORS v. MR. SYLVESTER NDIFE & ORS (2019)

MR. OGBO ONWODI & ORS v. MR. SYLVESTER NDIFE & ORS

(2019)LCN/13734(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of August, 2019

CA/E/454/2012

 

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. MR. OGBO ONWODI
2. MR. ANTHONY OKEKE
3. MR. WILLIAM ONWODI
4. MR. EMMANUEL ONWUEGBUSIA Appellant(s)

AND

1. MR. SYLVESTER NDIFE
2. INSPECTOR ALEX ENWEREM
(Station Officer Ossomala Police Post)
3. THE COMMISSIONER OF POLICE, ANAMBRA STATE
4. INSPECTOR GENERAL OF POLICE Respondent(s)

RATIO

WHETHER OR NOT THE COURT MUST CALL FOR ORAL EVIDENCE WHEN A MATTER IS BEING TRIED ON AFFIDAVIT EVIDENCE

The law is trite that if a matter is being tried on affidavit evidence and the Court is confronted with conflicting evidence relied on by the parties on a material issue before the Court the resolution of such conflict will be by calling for oral evidence. FALOBI V FALOBI (1976) LPELR 1236 (SC).
?However it is not in every circumstance where the affidavit of a party is in conflict with that of his adversary that oral evidence will be ordered, such instance is when there are other documentary evidence supporting one of the affidavits on record which can assist the Court in arriving at a just decision. Another instance where the Court is not bound to call for oral testimony is where the conflict is not on the key issue before the Court. When determining whether there is conflict in the affidavit to necessitate the calling of oral evidence, one must look at the issues in controversy in the particular case before the Court as regards to its relevance. PER UMAR, J.C.A.

THE CONCEPT OF MALAFIDE

The concept of mala-fide has been defined to mean bad faith. Bad faith which is the opposite of good faith, and generally implies or involves actual or constructive fraud or a design to mislead or deceive another or neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistakes as to one’s right or duties but some interested on sinister motive; while the term, ?Bad faith? implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. SEE BLACK’S LAW DICTIONARY, 6TH ED. P. 139.” PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State, sitting in Onitsha delivered by P.C OBIORAH J., on the 19th day of September, 2012 wherein the Court below declared the arrest and detention of the 1st Respondent by the 2nd to 4th Respondent at instance of the Appellants as unlawful and unconstitutional and thus entered judgment in favour of the 1st Respondent and against the Appellants and the 2nd to 4th Respondents.

BRIEF STATEMENT OF FACT
The 1st Respondent as Applicant in the Court below instituted the action which is the subject matter of the instant appeal for the enforcement of his fundamental rights against the Appellants and the 2nd to 4th Respondents as joint Respondents.

The 1st Respondent vide his undated motion on notice filed on the on the 25th day of October, 2010 prayed the Court below for the following reliefs:
?i. ?A DECLARATION that the arrest and detention of the Applicant from the 2nd day of October, 2010 to the 4th day of October, 2010 on which day the Applicant was whisked away to Atani Police Station where he

1

was further detained till 7pm when he was released after extorting money from him and the threat to further arrest and detain the Applicant at the Area Command office Onitsha or State Criminal Investigation Department (C.I.D) Awka for no just cause is wrongful and an infringement of the fundamental rights of the Applicant.
ii. N2, 000, 000.00 (Two Million Naira) damages against the Respondents for the unlawful arrest and detention of the Applicant.
iii. AN ORDER of injunction restraining the Respondents by themselves, their agents, privies, assigns or howsoever from detaining or further detaining the Applicant in a false allegation by the 1st – 4th Respondents which is a fall out of a criminal charge against the 1st to 4th Respondent and others pending at the Ogbaru Chief Magistrate Court, Atani.?

Accompanying the said Motion was a statement in support, a verifying affidavit, a further affidavit and a written address all undated but filed on the 25th day of October, 2010. (See pages 4 ? 18 of the Record).
?
The case of the 1st Respondent is that the 1st to 4th Appellants were his former landlords at one Agwe-Oleke farm

2

settlement, Ossomala where he used to farm and that sometimes in the year 2009, the Appellants on record and some other persons out of malice destroyed his crops in the farm which prompted him to lodge a complaint with the police. The 1st Respondent further stated that as a result of his complaint, the Appellants were charged to Court for malicious damage and that it was because of this misunderstanding that he left the farm settlements of the Appellants. It is also the case of the 1st Respondent that on 2/10/2010, he travelled to Agwe-Oleke with a friend, one Kelechukwu Izuka to recover a debt of N5, 000.00 from one Udenze Maduneme and that after recovering the said debt, he and his friend set out to return to their base but met his friend?s in-law who invited them to his house. The 1st Respondent stated that they had barely settled down at the base of their host when the 1st and 2nd Appellants in possession of dangerous weapons, surrounded and pounced on them and thereafter called the 3rd and 4th Appellant who came with a speed boat with some local vigilante boys conveying him to Ossomala Police Post where he was detained in the cell from 2nd

3

October, 2010 to 4th October, 2010 without any legal justification.

In response to the allegations of the 1st Respondent, the Appellants filed their respective counter Affidavits and written addresses to the 1st Respondent?s motion on notice (See pages 19 ? 59 of the Record). The 1st Respondent in turn filed further affidavits in response to all the counter affidavits filed by the Appellants. (See pages 59 ? 63 and pages 67 ? 75 of the Records).

The case of the Appellants as can be gleaned from their various counter affidavits is that they never instigated the police to arrest and detain the 1st Respondent from 2/10/2010 to 4/10/2010. The Appellants stated further that there is no farm settlement at Agwe-Oleke, Ossomala but that the said piece of land belongs to their family. The Appellants however admitted that the 1st Respondent was a licensee of their family who farms on a portion of their land every farming season with a consideration of the payment of an amount in the tune of N2,500.00. It is also the case of the Appellants that the 1st Respondent?s license was revoked by the family on 28/8/2009 because the 1st

4

Respondent was involved in activities like stealing of yams, cassava and fish, smoking and selling of Indian hemp and engaging in bush burning.

It is the case of the Appellants that the 1st Respondent threatened and boasted openly to implicate members of their family in a crime and make sure they were imprisoned for life. The Appellants stated further that on 2/10/2010, the 1st Respondent sneaked into Agwe-Oleke under suspicious circumstances which necessitated his report and subsequent arrest by police. Meanwhile, it is important to state that the 3rd Appellant in its counter affidavit deposed that he was not around on 2/10/2010, the date when the incident was said to have occurred.
?
The 1st Respondent in his further affidavits denied all the assertions made by the Appellants over the reasons for the revocation of his farming license and that the Appellants at no time for the many years that he stayed at Agwe-Oleke reported to any police station or confronted him over the allegation of stealing, smoking and selling Indian hemp or bush burning. The 1st Respondent maintained that the 3rd Appellant was present and participated in his ordeal. He stated

5

further that he did not sneak into Agwe-Oleke at 9 p.m. but that he came there around 6 p.m. with his friend to recover his money from one Udenze Maduneme. The 1st Respondent also stated that the Appellants instigated his arrest and detention and were buying drinks for the police officers and urging the police to detain him.

The Application was taken on the 25th day of June, 2012 wherein counsel to the represented parties made oral submission in respect of their various contentions in the Application. The trial Court in its considered judgment at pages 81 ? 97 of the record held at pages 96 ? 97 thus:
?I am of the considered opnion that both the 1st to 4th Respondents and the police are liable for the violation of the rights of the applicant by his arrest and detention from 2/10/2010 to 4/10/2010. I declare that the said arrest and detention is unconstitutional and unlawful.
There is no doubt that the action of the respondents was activated by malice, and was oppressive and arbitrary. It is a deserving case for the award of exemplary damages. See Afribank Nig. Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654 and Odiba v. Azege

6

(1998) NWLR (Pt. 566) 370.
Accordingly, I hereby award the sum of Five Hundred Thousand Naira (N500, 000.00) as exemplary damages in favour of the Applicant. I further grant an order of injunction restraining the respondents by themselves, their agents, privies or servants from further arresting and/or detaining the applicant based on the false report of the 1st to 4th respondents.?

Aggrieved by the decision of the Court below, the Appellants appealed to this Honourable Court vide a Notice of Appeal dated the 29th day of October, 2012 and filed on the 1st day of November, 2012.

In line with the Rules of this Honourable Court, parties filed and exchanged their respective briefs of argument. The Appellants? brief dated the 10th day of June, 2013 and was filed on the 13th day of June, 2013. The said brief was settled by G.R.I. EGONU S.A.N.
?
The 1st Respondent?s Brief dated the 13th day of April, 2015 and filed on the same day was settled by A.U. OKAFOR ESQ. The Appellants? Reply brief dated the 4th day of May, 2015 was filed on the 5th day of May, 2015. The Appellants? Reply Brief was settled by N.P.F. EGONU

7

ESQ.

The 2nd ? 4th Respondents have no briefs before this Honourable Court and this Honourable Court on the 22nd day of May, 2015 proceeded to hear the appeal on the Appellants? and the 1st Respondent?s Briefs wherein counsel to the Appellants and the 1st Respondent adopted their Briefs and made oral adumbrations in respect of their various postures for the determination of the appeal.

Learned counsel to the Appellants distilled five issues for the determination of this appeal to wit:
1. ?Whether the 1st Respondent (applicant) proved his case against the appellants?
2. Whether the learned trial Judge properly directed himself on the facts of the case and gave dispassionate consideration to the issue properly raised and heard in the case?
3. Whether the learned trial Judge was right in attributing to the Appellants accusation of crime against the 1st Respondent (applicant) and in relying on the purported failure of the appellants to prove the purported crime in determining the case against the appellants?
4. Whether the learned trial Judge was right in holding that there was no conflict in the evidence in

8

the case for which oral evidence should have been called to resolved for a fair and just determination of the case?
5. Whether the onus was on the appellants to prove whether the 1st Respondent (applicant) was arrested

The 1st Respondent counsel on the other hand distilled three issues for the determination of this appeal to wit:
1. ?Whether there was infringement of the Fundamental Human Rights of the 1st Respondent.
2. Whether the Court below was correct in holding the 1st ? 4th Appellants responsible for the breach of the Fundamental Rights of the Respondent.
3. Whether the compensatory damages awarded to the 1st Respondent by the lower Court was enough compensation for the inhuman and degrading treatment meted to 1st Respondent by the 1st ? 4th Appellants and the 2nd ? 4th Respondents.?

ARGUMENTS AND SUBMISSIONS OF COUNSEL
The Appellants? counsel submitted that from the evidence before the Court, Agwe ? Oleke was and is the private land of the Appellants and members of their family and that the 1st Respondent was formerly a licensee of the Appellants at Agwe- Oleke in

9

respect of a portion of the land up to early December, 2009 when the 1st Respondent left the land owing to a dispute between the parties and other persons. Counsel submitted further that the 1st Respondent in his affidavit at page 9 lines 1 to 2 and 18 to 21 of the record stated that he left his home at Ogbakuba Town and travelled to Agwe ? Oleke Ossomala on the 2nd day of October, 2010 in the company of another man. It is the contention of counsel that the 1st Respondent went to the private land of the Appellants and members of their family knowing full well that he has a serious dispute with the Appellants.

Counsel referred this Honourable Court to paragraph 11 of the counter-affidavit of the 4th Appellant at page 21 lines 1 to 4 of the record and submitted further that it was only natural for the 1st Appellant to make a call to the 4th Appellant to report to the Police at Ossomala about the presence of the 1st Respondent at Agwe ? Oleke. According to counsel to the Appellants, at no time did the Appellants say or suggest that sneaking into Agwe ? Oleke at the hour 9 p.m. or 6 p.m under suspicious circumstances was a crime under the

10

law but that no one can say that an enemy going into a private land of his adversaries in the company of another man has not acted in a suspicious circumstance?. It is the submission of counsel that considering the surrounding circumstances, the Appellant did nothing wrong when they reported the matter to the Police and have not in any way breached the fundamental right of the 1st Respondent. Counsel submitted that there was no evidence on which the trial Court could hold that the Appellants instigated or encouraged the Police to arrest or detain the 1st Respondent.

It is also the submission of learned counsel to the Appellants that the learned trial judge erred when he held that there was no conflict in the affidavit evidence of the parties requiring the calling of oral evidence and that the learned trial Judge in some passages of his judgment wrongly assumed that the Appellants admitted arresting and detaining the 1st Respondent. Counsel submitted further that from the facts deposed in the affidavit of the 1st Respondent and counter-affidavit of the Appellants, there is a very serious conflict in the affidavit evidence of the parties on the

11

arrest and detention of the 1st Respondent or on the instigation to arrest and detain the 1st Respondent.

It is the contention of counsel that considering the circumstances of this case, it was not open for the trial Court to pick and choose which side of the story to believe or disbelieve and that the Court was duty bound to all oral evidence to resolve the conflict.
?
Counsel to the 1st Respondent on the other hand in his brief submitted that the 1st Respondent was held the at ransom by the 1st and 2nd Appellants who later called the 3rd and 4th Appellants to come to Agwe Oleke on the 2nd day of October, 2010 and that the 3rd and 4th Appellants came in a speed boat with some local vigilante boys and from the scene, the 1st Respondent was hounded in the speed boat and taken to Ossamala Police Post where he was detained from 2nd October, 2010 to 4th October, 2010 in a very dingy cell before he was taken to Atani Police Station where he was finally granted bail. It is the contention of counsel to the 1st Respondent that it is crystal clear that flowing from the heels of the foregoing, the 1st Respondent suffered unlawful arrest and detention in the

12

hands of the 2nd ? 4th Respondents at the instance of the Appellants. Counsel submitted further that the only allegation put up by the Appellants was that the 1st Respondent entered Agwe ? Oleke in suspicious circumstances and that this allegation does not clothe the Appellants with any justification to unlawfully arrest the 1st Respondent. Counsel referred this Honourable court to Sections 35 (4) and 41 of the Constitution of the Federal Republic of Nigeria.

Counsel submitted that from the facts of the instant case, the conduct of the 1st ? 4th Appellants and that of the 2nd ? 4th Respondents discloses malice, gross regard to the rule of law, oppressive and abuse of official power and the lower Court was right to have awarded exemplary damages in against the Appellants and the 2nd ? 4th Respondents. On the second issue distilled by learned counsel to the 1st Respondent, he argued that the law is trite that where a person(s) has induced the arrest and detention of another for no just cause, the person that initiated the arrest and detention is culpable for the breach of the fundamental rights of the latter. He referred this

13

Honourable Court to the case of FAJEMIROKUN V COMMERCIAL BANK (CL) NIG LTD & ANOR (2002) 10 NWLR (PT. 774) 95 @112 ? 114.

The 1st Respondent counsel?s issue 3 is on whether the compensatory damages awarded to the 1st Respondent by the lower Court was enough compensation for the inhuman and degrading treatment meted out on the 1st Respondent by the Appellants and the 2nd ? 4th Respondents. However, learned counsel to the Appellants in his Reply Brief challenged the competence of the said issue on the ground that it does not flow from any of the grounds of appeal and as such, becomes irrelevant and goes to no issue. I agree with learned counsel to the Appellants in this regard because having read the judgment of the Court below and also the grounds of appeal in the instant case, it is crystal clear that issue 3 distilled by learned counsel to the 1st Respondent does not emanate from any of the said grounds. The Apex Court in the case of OKOYE V NIGERIAN CONSTRUCTION FURNITURE CO. LTD. & ORS. (1991) LPELR 2509 (SC), held thus:
”…This Court has consistently said in an unbroken stream of authorities that the issues for

14

determination in an appeal must arise from and be related to the grounds of appeal filed. As rightly canvassed by learned counsel for the appellants, each party to an appeal, the appellant or the respondent, is entitled to formulate what are in his opinion the issues for determination, but the issues must arise from and relate to the grounds of appeal filed.”
On this note, issue 3 distilled by learned counsel to the 1st Respondent is hereby discountenanced. Save for the above, the arguments and submissions in the Appellants? Reply brief is more of rearguing and resubmitting what is contained in their Brief of Argument.

RESOLUTION OF ISSUES
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. However, I am of the view that the issues formulated for determination by counsel can be condensed as one:
?Whether on the totality of the gamut of affidavit evidence placed before the

15

Court below, the learned trial judge was right in granting the reliefs sought by the 1st Respondent

I am of the considered opinion that the grouse of the Appellants? appeal revolves around whether the 1st Respondent is entitled to the reliefs sought at the Court below, whether there was no conflict in the affidavit and counter affidavits of the parties to warrant the calling of oral evidence by the Court below and whether the Court below properly evaluated the evidence placed before it in reaching the decision that is being challenged now.

In resolving this appeal, I shall start from whether there were conflicts in the affidavit and counter affidavits on record to warrant the calling of oral evidence by the Court below for a fair and just determination of the matter.

The same issue was raised by counsel to the Appellants at the Court below and the lower Court dealt extensively with same. Permit me to reproduce in its entirety the findings of the Court below in this regard. The learned trial Judge at pages 90 to 93 of the record held thus:
?I have carefully studied the various affidavits of the parties bearing in mind

16

that the live issues in this suit is the legality or lawfulness of the arrest and detention of the applicant on 2/10/2010 to 4/10/2010. This is the foundation of this fundamental rights enforcement action. I wish to observe that none of the respondents has challenged or controverted the fact of the arrest and detention of the applicant from 2/10/2010 to 4/10/2010 at Ossomala Police Post and Atani Police Station. Also, not in dispute is the fact that it was the 1st respondent who first saw the applicant at Agwe-Oleke and called the 2nd and 4th respondents who now came with local vigilante men to arrest and take the applicant to Ossomala Police Post.
I have read the paragraphs of the counter affidavit which the learned senior counsel argues were in conflict with the applicant?s affidavit. The first ?conflict? relate to the reasons given by the parties for the applicant?s cessation of farming at Agwe-Oleke and relocation to Ogbakuba. The applicant averred that the 1st to 4th respondents and others maliciously damaged his crops in the farm which led to Charge No. MGB/8C/2010: C.O.P v Williams Onwodi & Ors, and that he left the

17

place as a result of the misunderstanding arising therefrom. The 1st to 4th respondents on their part, alleged that the applicant?s licence was revoked by their Inyala family for acts of stealing, smoking and selling Indian hemp and bus burning.
It is my considered view that there is no conflict in the above divergent averments to warrant calling of oral evidence, for two reasons. The first is that the applicant produced the documentary evidence of the pending criminal charge against the respondents for malicious damage. Interestingly, the respondents who gave their reasons for the purported revocation of the farming licence, which are serious criminal allegations, did not provide any evidence of reporting the matter to the police or prosecution of the applicant for the alleged offences. It follows that the ?conflict? in the affidavit of the parties can easily be resolved on the basis of the documentary evidence produced by the applicant. This document lends credence to the account of the applicant that he left Agwe-Oleke due to the hostility of the respondents generated by the events surrounding the criminal charge, and not the

18

respondents? unsubstantiated and empty story of stealing and selling of Indian hemp leveled against the applicant.
Secondly, I hold that even if the reasons given by the parties for the exit and relocation of the applicant from Agwe-Oleke to Ogbakuba are in conflict, such conflict is immaterial and peripheral to the live issues of this suit.
Another area of ?conflict? in the averment of the applicant that he came to Agwe-Oleke around 6.00 p.m. but the respondents averred that he sneaked into the community at 9.00 p.m. Whether the time was 6.00 p.m. or 9p.m is inconsequential as the important fact which was not challenged is that the applicant was arrested on that 2/10/2010. Such discrepancy on time for the arrest which both parties agreed took place on 2/10/2010 is therefore immaterial and cosmetic.
The same goes to the averment of the applicant that he went to Agwe-Oleke with Kelechukwu Izuka and both of them were in the house of Izuka?s in-law when the 1st and 2nd respondents pounced on them. To the 1st ? 4th respondents, the applicant was not in company of anybody when he was seen at Agwe-Oleke or near the

19

house of Udenze Maduneme, his alleged debtor. These averments, cannot assume the toga of serious conflict to warrant the Court calling of oral evidence. Moreover, it is not enough for the respondents to deny that the applicant was not in company of anybody or near the house of Udenze Maduneme, yet fail to disclose where at Agwe-Oleke they saw him or arrested him. If the respondents are serious in denying where the applicant was arrested they owe it a duty to state where they arrested him. Having failed to do so, whatever conflict they envisaged only exists on their imagination.
Another area of disparity is that the applicant stated that he had a large farm at Agwe Oleke farm settlement, which the respondents stated that there is no farm settlement at Agwe-Oleke which is part of their family land that the applicant has a small farm which barely had enough farm produce to feed his family. Whether the applicant?s farm at Agwe-Oleke is a farm settlement or not is immaterial as there is no dispute that the land belongs to the Inyala family of the respondents. Again, the issue of size of the farm is cosmetic.
In all, I hold that there is no serious

20

conflict on the material and live issues in this suit to warrant calling oral evidence to resolve.?

I want to state at this stage that the grouse of the 1st Respondent?s claims at the Court below as deductible from his affidavit in support of his application is for the enforcement of his fundamental rights on the ground that the Appellants instigated his arrest and detention by 2nd and 4th Respondents from 2/10/2010 to 4/10/2010 and in the course of his unlawful arrest and detention, he suffered inhumane and degrading treatment and was subjected to physical and mental torture.

Deciding whether or not there are material contradictions or otherwise in the entire gamut of affidavit evidence before the Court below is an issue to be decided after revising the record before this Honourable Court. The law is trite that if a matter is being tried on affidavit evidence and the Court is confronted with conflicting evidence relied on by the parties on a material issue before the Court the resolution of such conflict will be by calling for oral evidence. FALOBI V FALOBI (1976) LPELR 1236 (SC).
?However it is not in every circumstance where the

21

affidavit of a party is in conflict with that of his adversary that oral evidence will be ordered, such instance is when there are other documentary evidence supporting one of the affidavits on record which can assist the Court in arriving at a just decision. Another instance where the Court is not bound to call for oral testimony is where the conflict is not on the key issue before the Court. When determining whether there is conflict in the affidavit to necessitate the calling of oral evidence, one must look at the issues in controversy in the particular case before the Court as regards to its relevance.

The Appellants through their respective counter-affidavits stated that none of them or any member of their family instigated the police to arrest and detain the 1st Respondent from 2/10/2010 to 4/10/2010 or at any other time with the 3rd Appellant stating in his counter affidavit that he was not around on the date the 1st Respondent was arrested and detained claiming that he live at a place some kilometers away from the place where the 1st Respondent was allegedly arrested and detained.
?
Bearing the grouse of the 1st Respondent in mind, which is

22

centered on his unlawful arrest and detention by the police on the instigation of the Appellants, I have read with due diligence the entire gamut of affidavit evidence on record vis–vis the holding of the Court below as reproduced extensively above, and I agree with the reasoning and conclusion of the learned trial judge only to the extent of the of the depositions in the affidavit of the 1st Respondent and the counter affidavits of the 1st, 2nd and 4th Appellants that there is no conflict on the material and live issues in suit which is the subject matter of the instant appeal to warrant the calling of oral evidence by the Court below.

However, with respect of that of the 3rd Appellant, I am of considered opinion that there are material conflicts which necessitated the calling of oral evidence by the Court below. The 1st Respondent in paragraph 13, 14 and 15 his affidavit at pages 8- 11 of the record deposed to the following facts.
?13. That the 1st and 2nd Respondents surrendered me with their weapon and then called the 3rd and 4th Respondents to come to the scene.
?14. That the 3rd and 4th Respondents came in a speed boat

23

and came with some local vigilante boys who came and hounded me into a speed boat.
15. That I was taken to the Ossomala Police Post where the 1st ? 4th Respondents falsely alleged that I was debarred from coming to Agwe Oleke, Ossomala by an ORDER OF COURT.”

In opposition to the depositions of the 1st Respondent, the 3rd Appellant in his counter affidavit at pages 39 ? 41 of the record deposed to the following facts:
13. I was not around on the 2/10/2010 when the applicant, Sylvester Ndife was allegedly arrested and detained. I live some kilometres away from the place where the applicant was allegedly arrested and detained.
14. I was informed about the alleged arrest and detention of the applicant by one James Ezepue in the farm on the following day being Sunday, the 3rd day of October, 2010.
15. I did not go to Ossomala Police Post or to the Atani Police Station in respect of this matter and I never instigated the Police to arrest and detain the applicant from 2/10/2010 to 4/10/2010 or at any other time.
16. I was never armed with any form weapon and neither did I threaten the applicant in any way at Agwe

24

Oleke on the 2nd day of October, 2010, at any other time and place.

In the 1st Respondent?s further affidavit at pages 67 ? 70 of the record, the 1st Respondent in paragraph (e), (f) and (g) opposed the above depositions as contained in the 3rd Appellant?s counter affidavit as thus:
(e) That paragraph 13 of the counter affidavit of the 3rd Respondent is not true as the 3rd Respondent was at Agwe Oleke on 2/10/2010.
(f) That paragraphs 14 of the counter affidavit of the 3rd Respondent is not true but beautifully concocted by the 3rd Respondent in order to extricate himself, so A.U. Okafor Esq., of Counsel informed me and I verily believe him.
(g) That paragraphs 15, 16, 17 and 18 of the counter affidavit of the 3rd Respondent are not true at all.

Flowing from the above depositions, the question is on what ground was the Court below able to connect the 3rd Appellant to the arrest and detention of the 1st Respondent in the face of the conflicting depositions in their respective affidavits, counter and further affidavits? I am of the opinion that there was no basis for believing the story of the 1st Respondent over that

25

of the 3rd Appellant. The 3rd Appellant joined issues with 1st Respondent on the material fact which is the purported illegal arrest and detention of the 1st Respondent by the police at the instigation of the Appellants. I am of the opinion that the trial Court fell into this grave error by treating the Appellants as one not minding the fact that they filed separate counter Affidavits and written addresses in opposition to the 1st Respondent application for the enforcement of his fundamental right. Notwithstanding the similarities in the defences of the Appellants which invariably made the Court below to think that their defences were the same; I am of the opinion that despite these similarities, the 3rd Appellant?s defence was notably different from that of the other Appellants. The 3rd Appellant denied ever in participating in the whole saga and there was no way this material conflict could have been resolved in the absence of any other form of evidence or calling of oral evidence by the Court below. There was no documentary evidence on record which could have assisted the court in this regard. I hold that only regarding the material conflicts in the

26

affidavits of the 1st Respondent and the 3rd Appellant that the Court below ought to have called oral evidence.

The next point of consideration is whether the 1st Respondent is entitled to the reliefs sought at the Court below and whether the Court below properly evaluated the evidence placed before it in reaching the decision.
?
As gleaned from the record, the 1st, 2nd and 4th Appellants played one role or the other in the arrest and detention of the 1st Respondent by the police. The 1st Appellant, Mr. Ogbo Onwodi stated in paragraph 12 of his counter affidavit at pages 51 of the record that:
?12. On the 2nd day of October, 2010, I saw the applicant, Sylvester Ndife at 9 p.m. sneaking into Agwe Oleke under suspicious circumstances. Being apprehensive of the way and manner he sneaked into Agwe Oleke and bearing in mind his earlier threat to implicate us in a crime I immediately called Anthony Okeke, the 2nd respondent and thereafter we called on phone Paul Onwodi and Emmanuel Onwuegbusia the 4th respondent both of who live at Ossamala to report the incident to the police at there is no police post at Agwe Oleke, which is an island across

27

the River Niger.

The 2nd Appellant, Mr. Anthony Okeke also stated in paragraph 12 of his counter affidavit at pages 31 of the record that:
?12. On the 2nd day of October, 2010, the 1st respondent called me to say that he saw the applicant, Sylvester Ndife at 9 p.m. sneaking into Agwe Oleke under suspicious circumstances. Being apprehensive of the way and manner he sneaked into Agwe Oleke and bearing in mind his earlier threat to implicate us in a crime we called on phone Paul Onwodi and Emmanuel Onwuegbusia the 4th respondent both of who live at Ossamala to report the incident to the police, at there is no police post at Agwe Oleke.?

The 4th Appellant, Mr. Emmanuel Onwuegbusia stated in paragraph 11, 12 and 13 of his counter affidavit at pages 51 of the record that:
?11. On 2/10/2010, the applicant sneaked into Agwe Oleke and was seen at 9pm by Ogbo Onwodi who called me on phone and asked me to go to Ossomala Police Post and report to the police of the presence of the applicant at Agwe Oleke under suspicious circumstances.
12. I and Paul Onwodi went to the police and reported the incident. The police said that they

28

were busy and had to call the head of the vigilante in Ossomala to go to Agwe Oleke with us.
13. When we got to Agwe Oleke, we met Ogbo Onwodi and the applicant who was informed by the vigilante men that his presence was required at Ossomala Police Post.”

Flowing from the above depositions in the 1st, 2nd and 4th Appellants? counter affidavit, it is not in dispute that the 1st Respondent was arrested and detained by the police of the Ossomala Police Post on the 2/10/2010. The defence of the 1st, 2nd and 4th Appellants is that they never instigated the police and only acted based on the suspicious circumstances in which the 1st Respondent came into Agwe-Oleke. Learned counsel to the Appellants also made heavy weather on the fact that no one can say that an enemy going into the private land of his adversaries in the company of another has not acted in a suspicious circumstance.
?
The questions I ask myself are, what crime has the 1st Respondent committed to warrant his arrest and detention by the police? Is there any crime called suspicious circumstance in our laws? Was there any instigation on the part of the 1st, 2nd and 4th

29

Appellant in the arrest and detention of the 1st Respondent by the police of the Ossomala Police post?

I am of the opinion that there is no crime called suspicious circumstances known to our criminal law. A crime is only a crime if it has been defined by law and a particular sanction ascribed to it. The Supreme Court, Per OGEBE, J.S.C in the case of FAJEMIROKUN V COMMERCIAL BANK (NIG) LTD. & ANOR (2009) LPELR-1231 SC held as follows:
?It is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”

However, from the facts of this case, can it be said that all circumstances leading to the arrest and detention of the 1st Respondent was as result of the 1st, 2nd and 4th Appellants performing their civic responsibilities in the absence of bad faith?
?
My answer is in the negative. The 1st Appellant who claimed that he saw the 1st Respondent sneak into Agwe-Oleke did not state where he saw

30

the 1st Respondent. The 1st Respondent deposed to the following facts in paragraphs 9, 10 and 11 of his affidavit that:
9. That on the 2nd day of October, 2010, I travelled to Agwe-Oleke in company of my friend, Kelechukwu Izuka to recover debt owed to me by a man I gave some yam seedlings to cultivate, harvest and share with me, by name Udenze Maduneme.
10. That I and my friend arrived Agwe-Oleke around 6pm vide a small canoe and after we had seen my debtor and recovered N5,000.00 (Five Thousand Naira) from him, we set out on our way to our base.
11. That along the way, I and my friend met my friend?s in-law who is living at Agwe-Oleke farm settlement and the man insisted that I and my friend must come and know his base.
?
Flowing from the above depositions, it is crystal clear that Agwe-Oleke is a place not for the exclusive settlement of the Appellants? family as there were other persons settled in the said place. Other people such as Udenze Maduneme and the 1st Respondent?s friend?s Kelechukwu Izuka?s in-law were present in Agwe-Oleke when the 1st Respondent visited on the 2nd day of October, 2010. So if

31

there are other people that the 1st Respondent could legitimately visit in Agwe-Oleke and the 1st Appellant failed to state where in particular in Agwe-Oleke he saw the 1st Respondent sneaking into, what suspicious circumstance can warrant the report made to the police?

I would have been inclined to maintain a contrary view if the 1st, 2nd and 4th Appellants stated that the Appellant was seen coming into their land which licence of the 1st Respondent thereon had been revoked or any other part of the Appellants? exclusive family land where no other person had a possessory right on. I agree with the learned trial Judge that the story of the 1st, 2nd and 4th Appellants is trumped up and that they clearly wanted to deal with the 1st Respondent in view of the existing bad relationship between them arising from the events leading to Charge No. MGB/8C/2010: C.O.P V WILLIAMS ONWODI & ORS.
?
The concept of mala-fide has been defined to mean bad faith. Bad faith which is the opposite of good faith, and generally implies or involves actual or constructive fraud or a design to mislead or deceive another or neglect or refusal to fulfill some duty or

32

some contractual obligation, not prompted by an honest mistakes as to one’s right or duties but some interested on sinister motive; while the term, ?Bad faith? implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. SEE BLACK’S LAW DICTIONARY, 6TH ED. P. 139.”

In this instance case, the 1st, 2nd and 4th Appellants? set the machinery of the police in motion in the unlawful arrest and detention of the 1st Respondent and with the presence of malicious intentions should be held liable, irrespective of their contention that they acted in the confines of their civic duty. I cannot but agree only to the extent of the 1st, 2nd and 4th Appellants at the exclusion of the 3rd Appellant that it is clear from the facts of this case that the 1st, 2nd and 4th Appellants instigated the police to detain the 1st Respondent whom they arrested and brought to the police post and later to Atani Police Station. I also agree with the trial judge?s findings that the defence of the 1st 2nd and 4th Appellants that they merely made a report to the police without instigating them to arrest and detain the 1st Respondent is

33

frivolous and misconceived since they did not act in good faith. I am of the opinion that the Court below properly gave a dispassionate consideration to the issues raised before it and was right to have granted the reliefs sought by the 1st Respondent.

On the whole I declare that the arrest and detention of the 1st Respondent by the police at the instance of the 1st, 2nd and 4th Appellants is unconstitutional and unlawful and I also hold that the 1st, 2nd and 4th Appellants and the 2nd ? 4th Respondents are liable for the violation of the rights of the 1st Respondent by his arrest and detention from 2/10/2010 to 4/10/2010.

Having largely resolved the issue distilled by this Honorable Court in favour of the 1st Respondent, this appeal fails and same is hereby dismissed. It is hereby ordered that:
1. The sum N500, 000. 00 (Five Hundred Thousand) granted to the 1st Respondent at the Court below shall lie against the 1st, 2nd and 4th Appellants and also the 2nd, 3rd and 4th Respondents.
2. An order of injunction restraining the 1st, 2nd and 4th Appellants and also the 2nd, 3rd and 4th Respondents by themselves, agents, privies or

34

servants from further arresting and/or detaining the 1st Respondent based on the false report made by the 1st, 2nd and 4th Appellants.

This Court awards the sum of N100,000.00 (Hundred Thousand Naira only) as cost in favour of the 1st Respondent and against the 1st, 2nd and 4th Appellants.

IGNATIUS IGWE AGUBE, J.C.A.: I have read through the Lead Judgment of my Learned Brother A. S. UMAR, JCA; and there is no doubt that 1st, 2nd and 4th Appellants set the machinery of the law in Motion that led to the unlawful arrest and detention of the 1st Respondent thereby violating his fundamental right to freedom of movement. Accordingly, the 1st Respondent was and is entitled to the Reliefs sought and ably granted him by the Learned Trial Judge.
I also affirm the Judgment of the Court below as this Appeal is unmeritorious and hereby dismissed. I abide by all the consequential orders made by my Learned Brother, including costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR JCA. I agree. I abide by the orders of my learned brother.

35

Appearances:

G.R.I. Egonu, SANFor Appellant(s)

A.U. Okafor, Esq. for the 1st Respondent
For Respondent(s)

 

Appearances

G.R.I. Egonu, SANFor Appellant

 

AND

A.U. Okafor, Esq. for the 1st RespondentFor Respondent