OBI v. OBI & ORS (2020)

OBI v. OBI & ORS

(2020)LCN/15349(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, July 23, 2020

CA/OW/262/2018

RATIO

GROUND OF APPEAL: WHETHER THE FINDINGS AND HOLDING OF A COURT NOT APPEALED AGAINST ARE DEEMED TO REMAIN BINDING AND CONCLUSIVE

The law is trite, that where the findings and holding of a Court are not appealed against, the same remain binding and conclusive. See the case of Nmanumeihe Vs Njemanze (2016) LPELR – 40212 (CA); Nze Vs Aribe (2016) LPELR – 40617 (CA); CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Ajijola Vs Rasaki & Ors (2019) SC 271/2018.
In the recent case of Ekweogu & Ors Vs Anyama & Ors (2020) LPELR – 49292 (CA), we held that:
“A ground of appeal consists of error of law or fact alleged by an appellant as the defect in the judgment appealed against, which he relies on the set it aside. See FBN Plc Vs A.G. Fed. & Ors (2018) LPELR – 46084 (SC); FMBN Vs NDIC (1999) 2 NWLR (Pt.591) 333; Abubakar Vs Waziri & Ors (2008) LPELR – 54 (SC)… A ground of Appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it” Ikosi Industries Ltd Vs Abdullahi & Anor (2015) LPELR – 26022 (CA); FBN Plc Vs May Medical Clinics (1996) 9 NWLR (Pt.471) 195.” PER ITA GEORGE MBABA, J.C.A

APPEAL: WHETHER A PERSON SUED IN A WRONG NAME MAY RAISE A COMPLAINT IN THIS REGARD ON APPEAL

The law is trite, that even if a person is sued in a wrong name, that is only a misnomer. And where the party has accepted the wrong name, entered appearance and/or filed processes in the said wrong name, to defend the action, knowing and admitting that he/it was, in fact, the party sued, he cannot be heard to complain that it was sued in a wrong name, on appeal. See the case of MTN Communications Ltd Vs Aluko & Anor (2013) LPELR – 20473 (CA); So Safe Table Water Tech. Ltd Vs Ayinoluwa & Anor (2013) LPELR – 22034 (CA). PER ITA GEORGE MBABA, J.C.A

APPEAL: ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST STEM FROM THE GROUNDS OF APPEAL

I have to observe that none of the three (3) Issues, distilled for the determination of this Appeal, derived, directly, for the judgment appealed against, touching on the ratio decidendi of the said judgment. The law is trite, as per many decided authorities, including the case of Nwaigwe & Anor Vs Amaechi & Ors (2017) LPELR – 43080 CA, that:
“…. An issue for determination of an appeal must relate to and flow from the ground(s) of Appeal, which must also derive from and be founded on the judgment appealed against. See Onwukwe Vs Ekejiuba (2017) LPELR – 42417 (CA); Shettima Vs Goni (2012) 18 NWLR (Pt.1279) 413; Ajibulu Vs Ajayi (2013) LPELR – 21860 (SC).”
See also Nze Vs Aribe (2016) LPELR – 40617 CA, where it was held that the ground/issue most touch on the ratio decidendi the judgment appeal against.
In the case of Amobi Vs Nzegwu & Ors (2013) LPELR -21863 (SC), the Supreme Court stated the meaning of “ratio decidendi” as:
“the reason for deciding” or reasoning principle or ground upon which a case is decided; the legal principle formulated by the Court, which is necessary in the determination of the issue raised in the case, in other words, the binding part of the decision is its ratio decidendi, as against the remaining parts of the judgment, which merely constitute obita dicta. See Afro Continental Nig. Ltd Vs Ayantuyi (1995) 9 NWLR (Pt.420) 411 at 435; Saude Vs Abdullahi (1989) 4 NWLR (Pt.116) 387 at 429 & 431; UTC (Nig.) Vs Pamotei (1989) 2 NWLR (Pt.103) 244 at 293.” Per Kekere-Ekun, JSC. PER ITA GEORGE MBABA, J.C.A

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

GODWIN OBI APPELANT(S)

And

1. NONSO OBI 2. AIG ZONE 9 UMUAHIA 3. ACP ABDULAZEEZ I. OBANJA 4. DSP CHRISTOPHER SAMUEL (ZONAL X-SQUAD) 5. SGT EREBEBE DONGHA EBINIPRE (OFFICER ATTACHED TO X-SQUAD) RESPONDENT(S)

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): Appellant was the 5th Respondent in the Suit No. HON/44/2016, wherein the Applicant (now 1st Respondent) sought the enforcement of his Fundamental Rights against Appellant and the 2nd to 5th Respondents (who were all Respondents at the Lower Court). The Applicant at the Lower Court had sought the following reliefs against all the Respondents therein:
(a) An Order enforcing the Applicant’s rights to personal liberty…
(b) A declaration that the arrest and detention of the Applicant on 17th of October, 2016 by 3rd, 4th and 5th Respondents at the behest of the 5th Respondent over land matter, which is a pure civil matter, amounts to an infringement of the Applicant’s fundamental rights, protected by Sections 34(a) and 35(1) (3) (4) of the Constitution of the Federal Republic of Nigeria, 1999.
(c) A declaration that it is illegal for the 5th Respondent to employ the machinery of the Nigeria Police, as an instrument of vendetta and to punish the Applicant in order to get from the back door what he could not get from the Court.
(d) A declaration that the threat to re-arrest and detain the Applicant, violates the Fundamental Rights as per his personal liberty as protected by Section 35 of the 1999 Constitution of the Federal Republic of Nigeria.
(e) An Order restraining the 2nd and 5th Respondents or their privies from further re-arrest or detention of the Applicant, and stay all action pending the determination of the motion on notice for the enforcement of the Applicant’s Fundamental Right.
(f) Payment of the sum of Three Million Naira (N3,000,000.00) as damages, jointly and severally by the Respondents for the infringement of the rights Applicant
And for such order or other Orders as the Honourable Court may deem fit to make in the circumstances.” (See pages 1 and 2 of the Records of Appeal).

Applicant (now 1st Respondent) had relied on the statement filed in support of the application, together with the affidavits and exhibits thereof, to prove his claim. The 5th Respondent had filed a Counter affidavit to deny the claim and relied on some exhibits. The 1st to 4th Respondents also filed their Counter affidavit, with exhibits, to deny the claim (See pages 18 to 21, and 30 of the Records). At the end of the trial, and after considering the evidence and addresses of Counsel, the trial Court delivered judgment on 21/3/2017 and held for Applicant, thus:
“The contention of the applicant in this case, as can be gleaned from his processes in this Suit, is that his arrest and detention by the 1st to 4th Respondents at the behest of the 5th Respondent, from 10am to 7pm on 17/10/16, is unlawful and a breach of his fundamental rights to personal liberty and that he is entitled to damages of N3Million. The Respondents, through the processes they filed in this Suit, denied same and urged this Court to dismiss the claims of the Applicant.
By the authority of Director of State Security Services Vs Agbakoba (1999) LPELR – 954 (SC)… once an Applicant alleges that his fundamental rights were infringed upon, the person or body against whom the allegation is made must justify the said action complained of in law. The Respondents, through the 5th Respondent’s petition, dated 3rd October, 2016 have tried to show that the complaint of the 5th Respondent against the Applicant to the 1st Respondent, was lawful and that actions of the 1st – 4th Respondent (sic) in this matter on the basis of the 5th Respondent’s said petition, was justified in law
The aforesaid contention of the Respondents in this case, does not hold water at all, in that the 5th Respondent’s petition was written mala fide, as rightly contended by the Applicant, to use the Police to upturn the fruits of the judgment delivered by the High Court, Orlu, in HOR/63/13. To this extent, there’s no reasonable ground in the 5th Respondent’s petition that would have afforded the Respondents the reason to suspect the Applicant of having committed a crime or likely to commit a crime. The said 5th Respondent’s Petition only shows that there is a subsisting High Court judgment over which there is an appeal and that the alleged act of the Applicant on the land in dispute which (through the instrumentality of the winner of the High Court judgment) would be injurious to the interest of the 5th Respondent on the land. In so far as the alleged act of the Applicant on the land in dispute is based on a subsisting judgment of a competent Court of jurisdiction… same cannot be said to amount to crime or likelihood of committing a crime, so as to justify the deprivation of the Applicant’s personal liberty on 17/10/2016 from 10am to 7pm by the 1st – 4th Respondents at the behest of the 5th Respondent…
I, therefore, grant the reliefs claimed by the Applicant… I grant reliefs (a) (b) (c) (d) and N500,000 as damages, jointly and severally, against the Respondents… Cost of N10,000 against the Respondents.” See Pages 81 – 82 of the Records.

That is the Judgment Appellant appealed against, having been the 5th Respondent who wrote the petition that brought about the infringement of the fundamental rights of the Applicant, now 1st Respondent.

Appellant filed Amended Notice of Appeal on 7/1/2019 and raised 5 grounds of Appeal. He filed his Brief on 7/1/2019 and a Reply Brief on 14/5/19. In the Brief, Appellant distilled three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the jurisdiction of the trial Court was properly activated (Ground 5)
(2) Whether the invitation of the 1st Respondent by the 2nd – 5th Respondents, vide exhibit A (i.e. Petition) was within the ambit of the law (Ground 3)
(3) Whether the 1st Respondent’s application for enforcement of his fundamental rights has merit, vis a viz Section 35(1)(c) of the 1999 Constitution, as amended. (Ground 4).

Appellant did not distill any Issue from grounds 1 and 2 of the Appeal and they are hereby struck out. This is because a ground of Appeal from which no issue is distilled for determination is deemed abandoned and has to be struck out. See FRN Vs Umeh & Anor (2019) LPELR – 46801 SC; PDP Vs INEC & Ors (2014) LPELR – 23808 SC;Mathew Vs State (2019) LPELR – 46930 (SC).

The Respondent filed his brief on 25/4/2019 and adopted the Issues for determination, as distilled by the Appellant.

At the hearing of the Appeal, on 7/7/2020, Appellant and his Counsel were absent, despite being issued with the hearing notice. The 1st Respondent was represented by his Counsel and so the Appeal was deemed argued, since the briefs were before the Court.

As per the Brief of the Appellant, settled by Ndubisi Okwuchukwu, Esq, he argued the Issue 1, questioning the status and jurisdiction of the 2nd Respondent, that it is only a juristic person that can sue or be sued; as such, the jurisdiction of the trial Court was not properly activated to adjudicate on the Suit. He said that the 2nd Respondent is a mere administrative office, created for convenience purposes, in line with Section 6 of the Police Act; that the 2nd Respondent, by its status, cannot sue or be sued in respect of the Suit. He added that the only office of the Nigeria Police that can sue or be sued in its name is the office of Inspector General of Police and Commissioner of Police of a State. He relied onSection 215(1) (a) & (b) & 2 of the 1999 Constitution, as amended; and the case of the C.O.P. Ondo State Vs Obolo (1989) 5 NWLR (Pt.120) 13; PGSS Ikachi Vs Igbudu (2005) 12 NWLR (Pt.940) 543 at 549.

Counsel argued that the Appellant and 2nd to 5th Respondents were sued jointly, as one; that where one of the parties sued jointly is a non juristic person, the entire proceeding is rendered incompetent and a nullity; he said that the Court cannot decline jurisdiction over some and assume jurisdiction over others. He relied on Kadiz International Ltd Vs Kano Tannery Co. Ltd (2003) FWLR (Pt.255) at 288 – 289.

On Issue 2, whether the invitation and interrogation of 1st Respondent by the 2nd – 5th Respondents, vide Exhibit A (i.e. Petition) was within the ambit of the law, Counsel answered in the affirmative. He said that the sole essence of the Fundamental Rights Enforcement Procedure is simply and strictly to enforce the protection of citizen’s fundamental rights, as preserved by Chapter 4 of the Constitution; that it is, therefore, not the duty of the trial Court to conduct a criminal investigation, inquiring or trial, neither is it to establish the guilt or innocence of any party. He added that the Exhibit A, apart from the pendency of the Appeal, disclosed serious threat/danger to the life of the Appellant by the 1st Respondent; that the 2nd to 5th Respondents had a duty to investigate the complaint in the Exhibit A, which cannot be interfered with by anybody, including the Court!

He argued that by Exhibit B, the 1st Respondent was required to appear before the Police for questioning, but he failed to show up, and rather filed the fundamental rights action; he said that the Police acted within the confines ofSection 4 of the Police Act, to investigate any allegation of crime; that the trial Court was wrong to hold that the invitation and investigation of the 1st Respondent was unlawful; he said that there was evidence, that 1st Respondent was released on bail in the sum of N1m, after the interrogation, and that 1st Respondent never parted with any money, as, in the Exhibit B, it was clearly marked that “Bail is Free”. He said that there was no effective traverse of the Counter affidavit by the 1st Respondent, thus it must be accepted and acted upon.

On Issue 3, whether 1st Respondent’s Fundamental Right Action had merit, visa viz, Section 35(1) (c) of the 1999 Constitution, as amended and Section 4 of the Police Act, Counsel answered in the negative. He argued that by Section 35(1) (c) of the 1999 Constitution, a person can be arrested and interrogated “upon reasonable suspicion of his having committed a criminal offence, to such extent as may be reasonably necessary to prevent his committing a criminal offence.” He also relied on Section 35(4) of the 1999 Constitution, to say that, any person who is arrested or detained, in accordance with subsection 1(c) of Section 35, shall be brought to Court of law, within reasonable time, and Section 35(5) defines reasonable time; he said that reading that jointly, with Section 4 of their Police Act, the exercise of their (2nd – 5th Respondents) powers as done, in this case cannot constitute a breach of 1st Respondent’s fundamental rights; that consequently, where a citizen is arrested by the Police in the legitimate exercise of their duty, and on grounds of reasonable suspicion of having committed an offence, he cannot succeed in an action against the Police, for a breach of fundamental right. He relied on the case of Okawo Vs C.O.P. (2011) 1 CHR 407; Eze Vs IGP (2017) 4 NWLR (Pt.154) 74 -75.

Counsel further argued that the question of infringement of Fundamental Rights is largely that of facts, and does not so much depend on the dexterity of Counsel’s submission on law; that it is the facts, as disclosed by affidavit evidence, that the Court examines and evaluates to see, if the Fundamental Rights of Applicant is violated. He relied on Okafor Vs Lagos State Govt. (2017) 4 NWLR (Pt.1556) 433. He also relied on Fajemirokun Vs CBN (CL) Nig Ltd (2002) 10 NWLR (Pt.774) 112 – 113, to say that Applicant who alleges that he was arrested and detained by the Police, at the instigation of another person, has the duly of proving his said arrest and detention. He urged us to resolve the Issues for Appellant and to allow the Appeal.

Responding, the 1st Respondent, by Brief settled by Chigozie Jerry Iheanacho, Esq, on the Issue of jurisdiction, said that Appellant’s Counsel was in double speak, when stating that the 2nd Respondent is a mere administrative office, created for convenience purposes in line with Section 6 of the Police Act, but turned round to say that 2nd Respondent is not a juristic person. He said that Section 6 of the Police Act does not forbid the creation of the office of the 2nd Respondent. He also submitted that Appellant’s Counsel lacked the locus to raise such objection; that even then, joinder or misjoinder of parties can never defeat a Suit that has merit, under the law. He argued that it was the 2nd Respondent (or the Counsel that represented it) that was competent to raise such objection but never did; that the objection, was founded on technicality; that the law is even settled that, where the right person was sued, but under a wrong name, that amounts to a misnomer and as such, the reliance on such technicalities by the Court is old fashion, which has been jettisoned for substantial justice. He relied on Safe Table Water Technologies Ltd Vs Anyinolwa & Anor. (2014) ALL FWLR (Pt.74) 649.

Counsel further said that, where a body or an office is created or established, and that body or office can employ servants, has power to do certain things, which could result in injury to others, such body or office (such as 2nd Respondent) must be taken to have power to sue and be sued. He relied on Thomas Vs Local Govt. Service Board (1965) NWLR (sic); he said that it would be safer for the Court to err on the side of liberalism whenever the issue of Fundamental Rights arises than to import restrictive or technicalities grounds to defeat justice. He relied on the case ofGarba Vs University of Maiduguri (1986) 4 NWLR (Pt…)

On Issue 2, whether the invitation, arrest and detention of the 1st Respondent by the 2nd – 5th Respondents, vide the Petition of the Appellant is within the ambit of the law, Counsel answered in negative; he said that a complaint or petition to the Police must be made bonafide and founded on truth, without intent to humiliate the opponent. He added that the petition was made maliciously; that the trial Court had already found it so. Thus, Appellant’s argument on the point has not shown how the said decision of the trial Court could be faulted. He said that 1st Respondent has satisfied the principle in SSS Vs Agbakoba (supra) which Appellant relied on, having proved his unlawful arrest and detention, which the trial Court upheld; he said that 2nd to 5th Respondents should have been warned that Appellant’s Petition (Exhibit A), being founded on land dispute, which land had been adjudged for 1st Respondent, and there was a pending appeal of the judgment, the matter was subjudice. Counsel referred us to paragraph 1(b) of Appellant’s Counter affidavit, where he averred:
“I have a land dispute with Chief Hyginus Ugbor which its appeal is pending at the Court of Appeal Owerri over the subject matter which the Applicant (1st Respondent) forcibly entered into and started altering its nature and character.” (Page 18 of the Records).

Counsel said the Petition (Exhibit A) even made mention of the judgment and the pending Appeal, and yet 2nd – 5th Respondents denied, in paragraph 15 of their Counter affidavit, of being aware of same! Thus, he said the trial Court was right to hold the arrest and detention of Applicant, unlawful.

On Issue 3, whether case of Applicant had merit, Counsel answered in the affirmative; that the trial Court was right to so hold. He said the arrest and detention of Applicant was not in line with Section 35(1)(c) of the 1999 Constitution, as it was founded on malicious complaint and the Respondents could not justify it. He reliedSSS Vs Agbakoba (supra); Fajemirokun Vs CBN (CL) Nig Ltd (supra). He urged us to resolve the Issues against Appellant and to dismiss the Appeal.

RESOLUTION OF ISSUES
Appellant’s Reply Brief affirmed that the Judgment of the High Court, (which adjudged the land for Applicant) was on appeal (Appeal No. CA/OW/129/2018). Appellant’s Counsel made other submissions, which, in my view, amounted to a rehash of the earlier arguments in the main Brief, and that is not what a Reply Brief is meant to do. See Egbebu Vs Izejiobi & Anor (2017) LPELR – 42285 (CA); Awusa Vs Nigerian Army (2018) LPELR – 44377 (SC); Ozuruoha Vs Alozie & Ors (2019) LPELR – 46906 CA.

Appellant’s Issue 1, challenged the jurisdiction of the Court to hear and determine the Suit, on the ground that the 2nd Respondent (who was the 1st Respondent at the Lower Court), “A.I.G, ZONE 9, Umuahia” was/is not a juristic person, and so cannot sue or be sued. But the learned Counsel admitted that the 2nd Respondent is an “Administrative Office, created by the Police Act, for the purpose of discharging its (Police) duties conveniently!”
I have not seen, anywhere in the Records of Appeal, where Appellant’s Counsel raised any such objection to the legal status of the 1st Respondent, at the trial. He never did and could not have, because he was not (and has never been) the Counsel representing the said 1st Respondent (now 2nd Respondent) at the trial. The 1st to 4th Respondents had a Counsel at the Lower Court, N. Orji, Esq, who helped them (1st to 4th Respondents) to file their Counter- affidavit, denying the Applicant’s claim. He (Counsel for 1st to 4th Respondents) filed an address, which raised no issue or objection to the status of the 1st Respondent. On Appeal, Learned Counsel for Appellant is not the 2nd Respondent’s Counsel and so lacks the competence to make any argument for and on behalf of the 2nd Respondent, as to its legal status in this Appeal, in my view.
Though issue of jurisdiction can be raised at any stage, even on Appeal, I think this particular objection by Appellant’s Counsel is strange and misplaced, as Appellant’s Counsel had no locus or legal competence to raise same; and after the 2nd Respondent had, gladly, taken active part in the proceedings at the trial Court, and was represented by Counsel, and had owned up its office and place the Police Force! Appellant’s Counsel has also admitted that the 2nd Respondent is an Administrative Office of convenience, created by Statute (the Police Act).
I cannot therefore see how the joinder of the 2nd Respondent, in this Suit, can vitiate the judgment of the trial Court. The law is trite, that even if a person is sued in a wrong name, that is only a misnomer. And where the party has accepted the wrong name, entered appearance and/or filed processes in the said wrong name, to defend the action, knowing and admitting that he/it was, in fact, the party sued, he cannot be heard to complain that it was sued in a wrong name, on appeal. See the case of MTN Communications Ltd Vs Aluko & Anor (2013) LPELR – 20473 (CA); So Safe Table Water Tech. Ltd Vs Ayinoluwa & Anor (2013) LPELR – 22034 (CA).
In this case, at hand, the 1st to 4th Respondents (now 2nd to 5th Respondents) filed Counter affidavit, deposed to by the 4th Respondent, who said:
“that I have the consent and authority of the 1st – 3rd Respondents to depose to this affidavit and I do so on their behalf”; “that I have been advise by N. Orji of Counsel at the Zonal Police Headquarters, Zone 9, Umuahia, on Wednesday the 28th day of December, 2016 at about 10am and I verily believed him that paragraphs… of the Applicant’s affidavit contain inadmissible evidence being offensive to Section 115 of the Evidence Act, 2011…” See Paragraphs 3 and 5 of the Counter affidavit (Page 30 of the Records of Appeal).
The above shows that there was no issue raised at the Lower Court by the 1st to 4th Respondents, about the status of the 1st Respondent – A.I.G, Zone 9 of the Police Command, Umuahia. It has become normal and acceptable practice to join the A.I.G (Assistant Inspector General of Police) (who heads the Zonal Command of the Police) in the matters relating to the acts of the Zonal Command, so that the Zonal Command can take responsibility; the same (Office of A.I.G.) being a creation of statute (Police Act) just as the office of the Commissioner of Police (C.O.P) and Divisional Police Officer (D.P.O.)
I do not, therefore, see any illegality or non juristic person in the 2nd Respondent, as that Office/Officer takes decision and acts in the way that affects the fundamental rights of the party, complaining. See Okafor & Anor. Vs The Assistant Inspector General of Police (A.I.G.) Zone II Onikan & Ors (2019 ) LPELR – 46505 (CA).
In the case of Ohanedum & Anor Vs C.O.P. (Imo State) & Ors (2015) LPELR – 24318 (CA), this Court said:
“I think that… the Police formations – from Police Post to Division, to Area Command, to State Command, to Zonal and Force Headquarters, are never known to be arranged in Appellate levels, such that a complainant at the Divisional level is expected to appeal to the Area Command as a “Higher Court”, where his complaint is not well treated at Divisional level, and so on!… “There is one Nigeria Police, whether at Divisional Level, State, Zonal or Force Headquarters Commands and investigation done at one level should be seen and taken as the act of the Police, as a whole… Thus, where the Police at the substation or divisional level have arrested and detained an Applicant for more than 24 hours, or beyond the period constitutionally allowed and later released him on bail… the Police from another unit, to whom an aggrieved party further complained, should not take pleasure in further harassment or incarceration of the Applicant… if it has cause to conduct fresh investigation.”
It is, therefore, clear, in my opinion, that by suing a Divisional Police Officer (DPO), or Commissioner of Police (C.O.P) or Assistant Inspector General of Police (A.I.G) or Inspector General of Police (I.G.P), it is the Nigeria Police Force (N.P.F.) that is sued by different names or appellations, and those offices are mentioned, and statutorily recognized by the Police Act.

I should also add that Appellant was wrong when he argued that the Respondents were only sued, jointly. They were sued jointly and severally; thus, each Respondent at the trial Court also had distinct capacity, such that if a party died or ceased to exist, the remaining Respondent(s) could sustain the Suit.

I therefore resolve the Issue 1 against the Appellant.

The Issues 2 and 3 (taken, together) also failed to attack the judgment of the trial Court, which had adjudged the invitation of the Applicant by the 1st to 4^th Respondents, at the behest of the 5th Respondent, (which led to the arrest and detention of Applicant from 10am to 7pm on 17/10/2006) to be unlawful and an infringement of Applicant’s fundamental rights. The trial Court had, categorically, stated:
“The Respondents, through the 5th Respondent’s Petition… have tried to show that the complaint of the 5th Respondent against the Applicant to the 1st Respondent was lawful and that their actions of the 1st – 5th Respondent (sic) in this matter, on the basis of the 5th Respondent’s said petition was justified. The aforesaid contention of the Respondents… does not hold water at all, in that the 5th Respondent’s petition was written malafide, as rightly contended by the Applicant to use the Police to upturn the fruits of the judgment delivered by High Court Orlu in HOR/63/2013… There was no reasonable ground in the said 5th Respondent’s Petition that would have afforded the Respondents the reason to suspect the Applicant of having committed a crime, or likely commit a crime.” (See pages 81 – 82 of the Records).
It was the duty of the Appellant to point at credible evidence from the Records of Appeal, to fault or puncture that decision of the trial Court, and to fault the reasons the trial Court gave for holding that the arrest and detention of Applicant (1st Respondent) was unlawful and amounted to violation of Applicant’s fundamental rights.
What the Appellant has done in this appeal amounted to arguing the case, afresh, to show us why the Petition by the 5th Respondent (now 1st Respondent) was valid (raising reasonable suspicion of commission of crime), to warrant investigation by the Police, and how the Police have power/right to investigate every allegation of crime, and to arrest and detain and release on bail, in the course of their work, as protected by the Section 35(1) (c) and (4) of the 1999 Constitution and Section 4 of the Police Act. Those were the same arguments Appellant and 1st 4th Respondents had advanced at the Court below, which the trial Court reviewed and considered, and found wanting! For failing to lead any credible arguments to challenge the basis of the decision of the trial Court and/or to fault that decision, it means there is no credible appeal or argument against the said decision of trial Court.
The law is trite, that where the findings and holding of a Court are not appealed against, the same remain binding and conclusive. See the case of Nmanumeihe Vs Njemanze (2016) LPELR – 40212 (CA); Nze Vs Aribe (2016) LPELR – 40617 (CA); CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Ajijola Vs Rasaki & Ors (2019) SC 271/2018.
In the recent case of Ekweogu & Ors Vs Anyama & Ors (2020) LPELR – 49292 (CA), we held that:
“A ground of appeal consists of error of law or fact alleged by an appellant as the defect in the judgment appealed against, which he relies on the set it aside. See FBN Plc Vs A.G. Fed. & Ors (2018) LPELR – 46084 (SC); FMBN Vs NDIC (1999) 2 NWLR (Pt.591) 333; Abubakar Vs Waziri & Ors (2008) LPELR – 54 (SC)… A ground of Appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it” Ikosi Industries Ltd Vs Abdullahi & Anor (2015) LPELR – 26022 (CA); FBN Plc Vs May Medical Clinics (1996) 9 NWLR (Pt.471) 195.”
I have already held that the arguments of the Appellant of the Issues distilled for the determination of the Appeal, failed short of attacking the substance or ratio decidendi of the judgment appealed against, namely, that Appellant’s Petition (Exhibit A) was in bad faith, and that the 2nd to 5th Respondents should have warned themselves against arresting and detaining the 1st Respondent on the basis of the malicious Petition, which sought to use the Police to undermine a valid decision of the High Court, which had adjudged the land, the subject matter of the Petition, in Suit No. HOR/63/2013, for the 1st Respondent.
The trial Court had said:
“… The 5th Respondent’s Petition was written malafide, as rightly contended by the Applicant, to use the Police to upturn the fruits of the judgment delivered by the High Court, Orlu, in HOR/63/2013… The 5th Respondent’s Petition only shows that there is a subsisting High Court judgment over which there is an appeal and that the alleged act of the Applicant on the land in dispute which (through the instrumentality of the winner of the High Court judgment) would be injurious to the interest of the 5th Respondent on the land. In so far as the alleged act of the Applicant on the land in dispute is based on a subsisting judgment of a Court of competent jurisdiction… same cannot be said to amount to crime… so as to justify the deprivation of the Appellant’s personal liberty on 17/10/16, from 10am to 7pm, by the 1st – 4th Respondents at the behest of the 5th Respondent. The proper complaint would have been made to the Court of Appeal and not to the Police.” (See pages 81 – 82 of the Records of Appeal).
I cannot fault the above decision of the trial Court, especially as there is no appeal against that finding and holding.

A party, who procures the Police, or any security agency, to harass, arrest and/or detain a citizen, on the basis of a false or malicious complaint, should be ready to face the consequences thereof, together with the misguided security agency. See Ogbonna Vs Ogbonna & Anor (2014) LPELR – 22308 (CA); OSIL Vs Balogun (2012) 7 WRN 143 at 173 – 174; Udeagha Vs Nwogwugwu (2013) LPELR – 21819 CA. Appellant’s Petition, disclosed by 2nd to 5th Respondents, on page 34 of the Records of Appeal, was a fraud. He had claimed ownership of the lands which had been adjudged for 1st Respondent, and which judgment he was appealing!

I see no merit in this Appeal and so resolve the Issues against the Appellant, and dismiss the Appeal.

Appellant shall pay cost of the Appeal, assessed at Fifty Thousand Naira (N50,000.00) only to the 1st Respondent.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree

Appearances:

NDUBISI OKWUCHUKWU, ESQ. For Appellant(s)

CHIGOZIE JERRY IHEANACHO, ESQ. for the 1st Respondent

2nd to 5th RESPONDENTS
Unrepresented.
For Respondent(s)