MRS. BABY JUSTINA LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS (2010)

MRS. BABY JUSTINA LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS

(2010)LCN/3687(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of April, 2010

CA/PH/216/2004

RATIO

EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE THAT THE REFUSAL OF A TRIAL JUDGE TO DETERMINE AN ISSUE OCCASIONED A MISCARRIAGE OF JUSTICE

That aside, it is now settled beyond paradvanture that the burden is on an Appellant who complains about the refusal of a trial judge to determine an issue, to show that such a refusal occasioned a miscarriage of Justice. PER TIJJANI ABDULLAHI J. C. A.

RELIEF: DUTY OF A COURT TO LIMIT ITSELF TO RELIEFS OF THE PARTIES

Now, it is settled beyond dispute that in granting a relief to a party, a court’s order is circumscribed and restricted by the reliefs as framed by the applicant. This is because the court can grant less but not more than what the claimant claims. see A.G. EKITI STATE VS. DAMMOLA (2003) FWLR (PT. 169) p. 1121 – 1167 F-G and A.G. FEDERATION v. A.I. C. LTD. (2000) 10 NWLR (PT. 675) P. 293 at 308. PER TIJJANI ABDULLAHI J. C. A.

CONSTITUTIONAL LAW: TO WHAT EXTENT IS POWER OF THE POLICE TO ARREST AND DETAIN

It is trite that, the power of the 1st and 2nd Respondents to arrest and detain, pending investigation in some cases is constitutional and is derived from sections 214 and 216 of the constitution of the Federal Republic of Nigeria, 1999. I am of the considered view that the mere exercise of that power cannot by virtue of section 35(1) of the 1999 Constitution amount to a breach of the Appellant’s fundamental right, even when such exercise result in the curtailing of her freedom of movement or liberty. I hasten to say that if the contrary is the case, all persons arrested by the Police may as well claim breach of their fundamental rights. It is also to be noted that in exercising this power to arrest, 1st and 2nd Respondents, by virtue of section 4 and 24 of the Police Act Cap 359 LFN, have a discretion upon reasonable suspicion of committing a crime to arrest any person, including the Appellant. It is generally not the business of the courts to fetter this discretion. See the case of FAWEHINMI VS. I.G.P. (2002) FWLR (PT. 108) p. 1355 at 1376 – 1377.

RELIEFS: WHETHER A RELIEF COUCHED IN WIDE AND IMPRECISE TERMS SHOULD BE GRANTED

Let me say at this juncture that it is now trite law that such a relief couched in such wide and imprecise terms should not be granted. See JOE GOLDAY VS. CAB PLC (2003) FWLR (PT. 153) P. 376 at 389 F and 393 E – H and INEC v. MUSA (2003) FWLR (PT.145) P. 729 at P. 776 – 777 . PER TIJJANI ABDULLAHI J. C. A.

Justice

HON. JUSTTCE S. GALADIMA (OFR) Justice of The Court of Appeal of Nigeria

HON. Justice T. ABDULLAHI Justice of The Court of Appeal of Nigeria

HON. JUSNCE E. EKO. Justice of The Court of Appeal of Nigeria

Between

MRS. BABY JUSTINA LUNAAppellant(s)

AND

1. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND
2. THE DIVISIONAL POLICE OFFICER BORIKIRI POLICE STATION
3. KAINE DALA
4, BERIYE IKIRIKO
5. SERAH GOSPEL (The 3rd – 5th Respondents for themselves and on behalf of other Fish Sellers in Greek Road, Market who are opposed to the Applicant).Respondent(s)

TIJJANI ABDULLAHI J. C. A. (Delivering the leading judgment): This is an appeal against the decision of Federal High court 2, Port Harcourt Judicial Division presided over by A. O. Faji (Judge) dismissing the application of the Appellant for enforcement of her fundamental human right wherein the learned trial judge held as follows:
“The powers of the police under sections 214 and 216 of the constitution and sections 4 and 24 of the Police Act should not also be feterred by the court unless there is a good reason. It seems to me that any interference in the exercise of the powers must be clearly defined in the order authorizing same. The police cannot therefore be restrained from carrying out their functions for all time and for all subjects. That will be a blanket interference. such an order is vague and will definitely lead to confusion. Also having struck out prayer 1 which is the prayer for a declaration, there is nothing for the 2nd prayer, which seeks an injunction to stand on. Thus prayer 1 having failed, prayer 2 must also fail since prayer 1 is the basis for the legal right to the injunction sought. Having struck out the two prayers on the motion paper the motion itself is hereby dismissed. There shall be cost of N5,000.00 in favour of each of the 3rd – 5th Respondents.”
The facts of the case as can be gathered from the record are that: The Appellant as Applicant at the Court below filed a Motion Exparte for leave to enforce her fundamental human rights against the Respondents and the said leave was subsequently granted.
The Appellant thereafter filed the Motion on Notice to enforce her fundamental human rights as follows:
1. A declaration that the continuous intimidation, harassment, embarrassment and the arrest of the Applicant is unlawful, unconstitutional and constitutes an infringement of the fundamental right of the Applicant to personal liberty. Freedom of expression, freedom of movement and personal dignity.
2. An order of injunction restraining the Respondents, especially the 1st and 2nd respondents, either acting by themselves or through their servants, Agents or privies from arresting, intimidating, harassing, embarrassing or interfering in any manner whatsoever with the personal liberty, freedom of expression, dignity of the Applicant as guaranteed under the constitution of the Federal Republic of Nigeria.
The 3rd to 5th Respondents out of the five Respondents were ones who filed a counter affidavit to the said application. The 1st and 2nd Respondents refused or neglected to file counter affidavit and did not also appear either in person through a counsel to defend the action.
The case proceeded to hearing and arguments were taken by the learned trial judge and adjourned the matter for judgment to a later date. on the 29th January 2004, the learned trial judge delivered his verdict wherein the application of the Appellant was dismissed as stated a while ago.
Aggrieved by the decision of the learned trial judge, the Appellant, on the 26th day of February,2004 approached this court and filed a Notice of Appeal which contains four grounds from which four issues were distilled for determination. The issues are:
“1. Whether the learned trial judge considered at all the issue of the Appellant making out a case with respect to her fundamental rights.(This issue is distilled from ground 1 (one) of the grounds of Appeal).
2. Whether the learned trial judge was right when he held that relief 1 on the motion is not directed at anyone (This issue is distilled from ground 2 (two) of the grounds of Appeal.)
3. Whether the learned trial judge was right in concluding that relief 2 on the motion is too wide and vague (this issue is distilled from ground 3 (three) of the grounds of Appeal)
4. Was the learned trial judge right in awarding cost of N15, 000 against the Appellant or any cost at all. This issue is distilled from ground 4 (four) of the grounds of Appeal.)” For his part, learned counsel for the 3rd to 5th Respondents did not formulate any issue for determination but adopted the ones distilled by the Appellants as theirs.
On 11th January, 2010 when the appeal came before us for hearing, in accordance with the rules of this court, learned counsel for the Appellant adopted his brief dated and filed 4th of February 2005 and urged us to allow the appeal.
For his part, learned counsel for 3rd to 5th Respondent adopted his brief of argument dated 18th May 2006 but deemed filed on 2nd July 2007. He urged us to dismiss the appeal for lacking in merit.
In arguing issue No. 1, which is whether the learned trial judge considered at all the issue of the Appellant making out a case with respect to her fundamental rights, learned counsel submitted that the learned trial judge did not consider at all the issue of whether the Appellant has made out a case with respect to violation of her fundamental human rights even though the issue was part of what was submitted to the learned trial judge for evaluation and proper consideration.
It is the submission of the learned counsel that it is trite law that for a judge to produce a judgment which is fair and just on a case put up by two or more contending parties, he must fully consider the evidence proffered by all the parties before him, ascribe probative value it, it make definite findings of fact, apply the relevant law and come to some conclusion. He relied on the cases of LEKO VS SODA (1995) 2 NWLR (PT 378) P. 435, WOLUCHEM VS GUDI (1981) 5SC P. 29T AND OLUFOS OYE VS OLORUNFEMI. Learned counsel further submitted that failure to make such findings is capable of resulting in a miscarriage of Justice. He relied on the case of AGBANELO v. U.B.N. LTD (2000) TNWLR (PT 66) P. 540. He urged us to resolve this issue in their favour.
For his part, learned counsel for the 3rd to 5th Respondents, concedes that a trial court should consider all issues properly raised before it but failure to pronounce on all material issues is not necessarily fatal to a case if such failure did not occasion a miscarriage of Justice. He is of the further view that, a court is not bound to pronounce on an issue which had been subsumed in another issue that has been determined by that court. He relied on the case of DALARI v. SADIKWU (1998) L2 NWLR (pr. 576) p. 112 at 121H – 122A to buttress his submission on this point.
To do Justice to the competing arguments of the parties on this issue, it will not be out of place if the prayer, is once more reproduced in order to have a close look at it with a view to finding out if same is vague and not directed to any particular person as canvassed by the learned counsel for the Respondents. It reads thus:
“1. A declaration that the continuous intimidation, harassment, embarrassment and the arrest of the Applicant is unlawful, unconstitutional and constitutes an infringement of the fundamental right of the Applicant to personal liberty. Freedom of expression, freedom of movement and Personal dignity.”
A hard and closer look at the prayer or relief one as reproduced above will no doubt reveal the fact that same (prayer/relief) is ungrantable. It could not be granted as rightly submitted by the learned counsel for the Respondents because it is vague and not directed at any person in particular. I am of the considered view that even if the breach of the Appellant’s rights was successfully proved, the relief would still not have been granted by the lower court because the prayer was grossly incompetent. I am of the view that, a decision on the question of breach of Appellant’s fundamental rights would have in the circumstance of the decision, on the incompetence of the prayer have made no impact whatsoever on the out come of the case.
That aside, it is now settled beyond paradvanture that the burden is on an Appellant who complains about the refusal of a trial judge to determine an issue, to show that such a refusal occasioned a miscarriage of Justice. I am of the view that the Appellant in the circumstances of the case in hand has woefully failed to show how the refusal of the learned trial judge to consider whether the Appellant has made out a case with respect to the breach of her fundamental right, has occasioned a miscarriage of Justice. See THE STATE VS. AJIE (2000) FWLR (PT. 16) P. 283 1 at P.2842A and ODUKWE VS. OGUNBIYI (1998) B NWLR (PT. 61) P. 339 at P. 350 D – F.
In the light of the foregoing, this issue is resolved against the Appellant and in favour of the Respondents.
Issue No.2 poses the question which is whether the learned trial judge was right when he held that relief 1 on the motion is not directed at any one. Learned counsel for the Appellant submitted that the trial judge was wrong to have held that relief 1 on the motion paper was not directed at the Respondents. Learned counsel is of the view that when relief 1 is taken into consideration together with the ground or grounds upon which relief 1 is being sought, there is no difficulty in holding that the said relief 1 is being sought against the Respondents.
It is the submission of the learned counsel that based on the above analysis, the learned trial judge should have considered the whole essence of Justice in dealing with this issue rather than technicalities by saying the name “Respondents” was not written on relief 1. In persuit of Justice, learned counsel went on, the issue of technicalities should be waived aside. He referred to us to the cases of ADEWUNI v. A.G. EKITI STATE (2002) 93 LR CN P. 43 at p. 46 and JOSEPH AFOLABI AND ORS vs. JOHN ADEKUNLE AND ANOR (1983) -2SCNLR p. 141. Learned counsel urged us to resolve this issue in their favour.
Learned counsel for the Respondents on the other hand, drew our attention to prayer 1 at pages 9 and 11 of the record and contended that it is not the argument of the Appellant that the said prayer or statement of fact contained any reference to the Respondents. The argument of the Appellant, learned counsel went on is that the grounds as listed in the statement of facts ought to be considered as part of the relief sought’ Learned counsel however submitted that the reliefs sought are different from the grounds upon which the reliefs are sought and that they perform entirely different functions in the said application.
Learned counsel further submitted that whereas the reliefs are the prayers or the anticipated orders the applicant desires the court to make, the grounds are the reasons factual or legal, for which the orders or reliefs are to be made’ The grounds he opined are simply the rationale for the relief and not the relief itself.
Now, it is settled beyond dispute that in granting a relief to a party, a court’s order is circumscribed and restricted by the reliefs as framed by the applicant. This is because the court can grant less but not more than what the claimant claims. see A.G. EKITI STATE VS. DAMMOLA (2003) FWLR (PT. 169) p. 1121 – 1167 F-G and A.G. FEDERATION v. A.I. C. LTD. (2000) 10 NWLR (PT. 675) P. 293 at 308.

I am of the strong view that it does not amount to technicalities for the learned trial judge to refuse to grant a relief not prayed for by the Appellant. The question of technicalities must not be confused with insistence by the court to comply with our adjectival laws. The mere refusal by the learned trial judge to circumvent the raw restricting his orders to the relief claimed can therefore not amount to technicalities’ See OKPALA V. OKPU (2003) FWLR (PT. 150) P. 1623 at P. 1645 – 1646 G – A.

Let me, finally say, on this issue that it is not “essence of Justice,, as submitted by the learned counsel for the Appellant, for a court to suo motu amend a claimant’s defective claim for the purpose of granting same. see OLATUNJI V. OWENA BANK NIG. PLC (2003) FWLR (PT.158) P.1215 at 1226 A-G.
This issue like the previous one, is resolved in favour of the Respondents and against the Appellant.

Issue No. 3 is whether the learned trial judge was right in concluding that relief 2 on the motion paper is too wide and vague. Learned counsel for the Appellant submitted that the learned trial judge did not properly consider and interprete relief 2 which was sought before him and as a result, he reached a wrong conclusion occasioning a miscarriage of Justice because:
1. The Relief sought in an application for enforcement of fundamental right is always in the statement in support. Looking at the statement, especially page 11 of the record, the expression “in any manner whatsoever” which the learned trial judge complained of is not there. Prayer No. 2, he submitted cannot be said to be too wide as stated by the learned trial judge.
2. Relief 2 which the Appellant sought against the Respondents also has limitation with respect to subject matter because it stated that the arrest, intimidation, harassment, embarrassment or interference should be only in respect of Appellant’s personal liberty, freedom of expression, freedom of movement and personal dignity as guaranteed under the constitution.
3. The motion sought orders against the 3rd – 5th Respondents contrary to the decision of the learned trial judge because the relief on page 11 of the record of appeal stated that “an order of injunction restraining the Respondents, especially the 1st and 2nd Respondents.” Learned counsel submitted that the word “Respondents covers the 3rd and 5th respondents together with all the Respondents.
It is the submission of the learned counsel that from their serious and critical analysis set out above, the conclusion of the learned trial judge on relief 2 which was part of the reliefs claimed by the Appellant against the Respondents, there exist no doubt that, a wrong analysis and a wrong appreciation of the Appellant’s claim was arrived at by the learned trial judge. Learned counsel urged us to resolve this issue in their favour.
Learned counsel for 3rd to 5th Respondents, however submitted that in the absence of any statutory authority to the effect that reliefs sought for in the motion paper in an application for the enforcement of fundamental right are completely irrelevant or must be ignored by the court, counsel cannot rely on the reliefs in his motion paper at the trial court and then reject same in this court. Learned counsel further submitted that it is a fundamental rule of equity that a party would not be allowed to approbate and reprobate. He relied on the case of ILOABACHIE vs. PHILIP (2003) FWLR (PT. 115) p.726 at p. 749 B.
Again, learned counsel submitted that reliefs 2 in the motion paper is the same in substance as that in the statement in support. The omission of the phrase in any manner whatsoever does not make the relief in the statement in support less vague than that in the motion paper.
It is trite that, the power of the 1st and 2nd Respondents to arrest and detain, pending investigation in some cases is constitutional and is derived from sections 214 and 216 of the constitution of the Federal Republic of Nigeria, 1999. I am of the considered view that the mere exercise of that power cannot by virtue of section 35(1) of the 1999 Constitution amount to a breach of the Appellant’s fundamental right, even when such exercise result in the curtailing of her freedom of movement or liberty. I hasten to say that if the contrary is the case, all persons arrested by the Police may as well claim breach of their fundamental rights. It is also to be noted that in exercising this power to arrest, 1st and 2nd Respondents, by virtue of section 4 and 24 of the Police Act Cap 359 LFN, have a discretion upon reasonable suspicion of committing a crime to arrest any person, including the Appellant. It is generally not the business of the courts to fetter this discretion. See the case of FAWEHINMI VS. I.G.P. (2002) FWLR (PT. 108) p. 1355 at 1376 – 1377.

However, not withstanding the power of the Police as spelt in sections 4 and 24 of the Police Act, where this power is improperly used, the court can stop the use of the power for that improper purpose, as that would no longer be covered by section 35(1) (c) of the Constitution. In other words, an order retraining the Police from arresting on some particular improper occasion or for some particular improper purpose may be made by the court. However, with due respect to the learned counsel, it would be too wide an order to restrain the Police from arresting or detaining simpliciter, as contained in relief 2 of the Appellant’s motion paper and statement in support, bearing in mind that the Order sought is not an interim one but a final and perpetual injunction. It is in this respect that relief 2 was stated to be “without limitation” by the learned trial judge.
Let me say at this juncture that it is now trite law that such a relief couched in such wide and imprecise terms should not be granted. See JOE GOLDAY VS. CAB PLC (2003) FWLR (PT. 153) P. 376 at 389 F and 393 E – H and INEC v. MUSA (2003) FWLR (PT.145) P. 729 at P. 776 – 777 .
In the light of the foregoings, this issue is resolved against he Appellant and in favour of the Respondents.

Last but not the least issue for determination is issue No. 4 which poses the question whether the learned trial judge was right in awarding N15,000.00 cost against the Appellant or any cost at all. Learned counsel submitted that it was wrong for the learned trial judge to award the cost of N15,000.00 against the Appellant because she went to court to enforce her fundamental human rights which the court did not find to be frivolous.
Learned counsel further submitted that though it is the law that issue of cost is at the discretion of a judge, being a discretionary remedy, it must be judiciously and judicially awarded’ Though cost follows event, the award of N15.000.00 cost against the Appellant, learned counsel went on did not follow event in this case because:
(1) The Appellant was enforcing her fundamental right.
(2) Technicalities was used to dismiss the Appellant’s case.
(3)The court did not find the Appellant’s case to be frivolous.
It is the contention of the learned counsel that costs are awarded by courts as an indemnity to the person entitled to them. They are not imposed to punish a party who pays them nor given as a bonus to the party who receives them. He referred us to the cases Of P.S.O. OLASOP VS. NATIONAL BANK OF NIG. LTD. and ANOR (1985) 3 NWLR (PT.11) P. 147 at 148; LAYINKA VS. MAKINDE (2002) 98 LRCN P. 1139 at 1143 and AKINBOBOLA VS. PLISSON FISKO NIG. LTD. (1991) 2 LRCN P. 415. Learned counsel urged us to resolve this issue in their favour.
Learned counsel for the Respondents reiterated the submission of the learned counsel for the Appellant wherein he also submitted that cost follows event but added rightly in my view that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement. See AKINBOBOLA VS PLISSON FISKO (1991) 1 NWLR (PT. 167) P. 270 at 274.
I cannot but agree with the learned counsel for the Respondents when he submitted thus:
“We submit that N5,000.00 cost awarded in favour of each of the 3rd, 4th and 5th respondents respectively is sufficient indemnity for them, and is not too high as to insinuate punishment on the part of the appellant. Moreover, counsel to the appellant has failed to proffer any special reason why appellant who lost a case is not entitled to pay cost to indemnify the winning parties.”
This issue like the three previous issues is resolved in favour of the Respondents and against the Appellant.
In sum, in the light of all that has been said and with all the four issues having been resolved in favour of the 3rd to 5th Respondents, this appear fairs for racking in merit and it is accordingly dismissed with N50,000.00 costs in favour of the 3rd to 5th Respondents and against the Appellant.

SULEIMAN GALADIMA, J. C. A.: I have read in advance the judgment of my learned Brother
ABDULLAHI, JCA just delivered. I agree with him that the appeal is lacking in merit and ought to be dismissed with costs assessed and fixed at N50,000.00 in favour of the 3rd to 5th Respondents, but against the Appellant.

EJEMBI EKO. J. C. A.: My learned brother, TIJJANI ABDULLAHI, JCA, had before now availed me a copy of the judgment just delivered. I agree with his analysis and resolution of the issues in the appeal.
I will only comment briefly on ground 4 of the grounds of appeal at page 39 of the Record. The ground complains that the learned trial judge erred in law in awarding the cost of N15,000.00 against the Appellant. This ground of appeal was filed and argued without leave of court. The decision/order appealed is the final decision/order of the Federal High Court sitting at Port Harcourt’ Appeal against the final decision/order is ordinarily as of right by dint of section 241(1) (a) of the 1999 constitution. However, subsection 2 (c) of section 241 of the same constitution states inter alia that nothing in section 241 thereof shall confer any right of appeal, without leave of court, from a decision of the Federal High court as to costs. This ground of appeal no. 4 is therefore incompetent as no prior leave of court was sought and obtained before it was filed and/or argued.
Order 6 Rule 6 of the Court of Appeal Rules, 2007 empowers this court to strike out any notice of appeal when the appeal is not competent or for any other sufficient reason. Accordingly Ground 4 of the Notice of Appeal, being incompetent by dint of section 241 (1) (a) and (12) (c) of the 1999 Constitution, is hereby struck out.
Having thus stated in addition to the reasons contained in the lead judgment, which thereby adopt, thereby dismiss the appeal and abide by all consequential orders in the said lead judgment.
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Appearances

Dr. A. Amuda KannikeFor Appellant

AND

M.O. Bianenyin (JR)For Respondent