OBINNA v. DIN & ORS
(2020)LCN/15389(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, September 15, 2020
CA/A/434/2011
RATIO
GROUNDS OF APPEAL: WHETHER MORE THAN ONE ISSUE FOR DETERMINATION MAY BE DEDUCED FROM A GROUND OF APPEAL
it is trite law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal. He can only combine two or more grounds of appeal in formulating an issue for determination. Proliferation of issues is not a legitimate exercise in our law. In Ezechukwu & Anor. v. I.O.C. Onwuka (2016) LPELR – 26055 (SC), the Supreme Court per Muhammed JSC (as he then was) held as follows:
“In Roda v. FRN (2015) 1 – 2, SC (Pt. II) 31 at 51 @ 52 this Court restated the overriding principle pertaining the formulation of issues for determination of appeals thus:- “It is certainly never the number of issues formulated and argued by the appellant that guarantees the success of his appeal. Rather, it is the relevance of these issues and the potency of the arguments thereon which put the appellant on a better stead. This explains why appellate Courts persistently frown at proliferation of issues and admonish parties to refrain from the unhelpful exercise, appellant’s argument come through more forcefully and with disarming clarity if they are neither repetitive nor verbose… The better approach, therefore, is to formulate a single issue tersely to cover a number of grounds which are governed by the same applicable principles of law… Succinctness remain the overriding indicia”. See also Ikweki v. Ebele (2005) 2 SC (Pt. II) 96 and Adeyemi v. State (2014) 5 – 6 SC (Pt. III) 148 at 171 – 172.”
In the same vein, the Court expressly held in Nduul v. Wayo & Ors (2018) LPELR – 45151 (SC) as follows:
“It must be stated right away that this Court and indeed all appellate Courts frown at the proliferation of issues for determination. It is not the number of issues distilled for determination that determines the success of an appeal but their content and quality. Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment, which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided. See: Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (146) 551 @ 567, Clay Industries (Nig.) Ltd. v. Aina & Ors. (1997) 8 NWLR (Pt. 516) 208; Ogunyade v. Osunkeye (2007) 15 NWLR (Pt. 1057) 218.” PER STEPHEN JONAH ADAH, J.C.A.
Before Our Lordships:
Abdu Aboki Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
NWACHUKWU OBINNA APPELANT(S)
And
1. CHIEF JOSEPH DIN 2. POLICE SERVICE COMMISSION 3. INSPECTOR GENERAL OF POLICE 4. COMMISSIONER OF POLICE, FEDERAL CAPITAL TERRITORY, ABUJA 5. INSPECTOR MAX ONYENUWE RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 11th day of May, 2011, Coram: Ugochukwu A. Ogakwu, J. (as he then was).
The Appellant herein by a Motion on Notice and Statement of Claim sought for the following reliefs at the trial Court:
1. A declaration that the arrest and detention of the Applicant on 13th of April, 2010 and 9th of June, 2010 respectively, as counsel to the Plaintiff in Suit No: FCT/HC/CV/345/08 by the 2nd, 3rd, 4th & 5th respondents at the instigation of the 1st respondent over a matter already pending in the High Court, before Bello J., constituted a violation of the applicant’s right to liberty and dignity of his person.
2. A declaration that the continuous phone calls by the 5th respondent and other men of the 3rd and 4th respondents to the Applicant between 13th of April, 2010 (when the Applicant was detained and compelled to make a statement in writing) and 9th of June, 2010 (when the Applicant was detained with his client i.e Plaintiff in Suit FCT/HC/CV/345/08) to report back to the police headquarters/station, Garki II, Abuja, constituted an inversion/violation of the Applicant’s right to privacy.
3. A declaration that the invitation and detention of the Applicant as counsel to the Plaintiff in Suit No: FCT/HC/CV/345/08 by the 2nd, 3rd, 4th & 5th respondents at the instigation of the 1st respondent constitutes infraction of the Applicant’s right to liberty to practice his profession as a lawyer, and to pursue his vocation and lawful business.
4. A declaration that the settlement or purported settlement at the FCT Police Command, Garki II, Abuja on 11th June, 2010 of a dispute pending in the High Court of Justice, before Bello J., in Suit No: FCT/HC/CV/345/08 constitutes a denial of the applicant’s right to liberty to practice his trade/profession as a legal practitioner.
5. A declaration that the refusal of the 5th Respondent for the Applicant to defend and/or advise his client – Mr. Emmanuel Eromosele – at the Police headquarters/station on the 9th of June, 2010 on the ground that the Applicant is a co-accused/co-suspect, constitutes an infraction of the Applicant’s right to dignity and liberty of his person to practice his profession as a lawyer.
6. A declaration that the arrest and detention of the Applicant on both the 13th of April, 2010 and 9th June 2010, respectively, over a matter pending before a competent Court i.e High Court of Justice, Abuja in Suit No: FCT/HC/CV/345/08 and the continuous phone calls made between the said dates for the Applicant to report back to the police headquarters/station, Garki II, Abuja is unlawful, illegal and unconstitutional.
7. An Order of Court against the Respondents, jointly and severally, to pay damages to the Applicant in the sum of N500 Million (Five Hundred Million Naira) as exemplary, aggravated, special and general damages for the arrest, detention, humiliation, injury to the Applicant’s name and reputation as a lawyer, loss of business and goodwill caused by the frivolous allegation of the 1st Respondent.
8. An Order of Court compelling the 2nd – 5th Respondents to make a public apology to the Applicant published in 2 (two) known widely read, daily Newspapers in Nigeria.
Processes were filed and exchanged by the parties and in a considered ruling delivered on the 11th day of May, 2011, the trial Court refused and dismissed the Claims of the Appellant/Applicant for lacking in merit.
Dissatisfied with the said decision, the appellant appealed to this Court vide a Notice of Appeal dated and filed on the 7th day of June, 2011. The Record of Appeal was transmitted to this Court on 08/08/2011.
Parties in accordance with the rules of this Court filed their respective briefs of argument.
Nwachukwu Obinna Esq., i.e the appellant himself submitted Seven (7) issues for the determination of this appeal in the Appellant’s Amended Brief of Argument dated and filed on the 8th day of August, 2016 but deemed properly filed and served on the 6th of March, 2017; thus:
1. Assuming without conceding that the standard of proof in arrest of persons, is by prima facie evidence and not upon reasonable suspicion, whether there exist prima facie evidence for the arrest of the Appellant in this case. (Distilled from Ground 9).
2. Whether there is evidence before the lower Court that the Appellant dictated to his client whilst the later was writing his statement at the Police Station. (Distilled from Ground 10).
3. Whether the lower Court was correct in its finding that the deposition of Mr. Emmanuel Eromosele, procured by the 1st Respondent in his Counter Affidavit filed on 20/01/2011, was not challenged by the Appellant, who filed a Further, Further and Better Affidavit on 10/03/2011 in reply. (Distilled from Ground 14).
4. Whether Exh. F attached to the Appellant’s/Applicant’s affidavit sworn to, on 25th June 2010, (see P. 34 of the record) was a response of the 4th Respondent to the Appellant’s petition of 4th February 2010 or a response to the Court’s Order of 17th March, 2010 made in Suit No: FCT/HC/CV/345/08. (Distilled from Grounds 13 and 18).
5. Whether the incessant calling of the Appellant to report back to the Police Station, that he ran away after making his statement to the police on 13th April 2010 was not an arrest and infraction of the Appellant’s constitutional right to privacy. (Distilled from Ground 14).
6. Whether the petition of the 1st Respondent of 7th April, 2010 can be divorced from the pending suit in the High Court, Federal Capital Territory, Abuja, in Suit No: FCT/HC/CV/345/08 before Bello J., and more particularly the contempt proceedings then pending against him. (Distilled from Ground 15).
7. Whether the 1st Respondent did not instigate the arrest of the Appellant by the 2nd – 5th Respondents, in the circumstance. (Distilled from Grounds 16 & 17).
In response, counsel for the 1st Respondent and that of 2nd – 5th Respondents adopted the Seven (7) Issues submitted by the Appellant for the determination of this appeal in their respective briefs. That of the 1st Respondent was filed on the 30th August, 2016, while that of the 2nd – 5th Respondents was filed on the 7th November, 2016. Both briefs were deemed properly filed and served on the 6th of May, 2017.
Appellant’s Reply Brief to the 1st Respondent was filed on the 3rd July, 2018 while the Reply Brief to the 2nd – 5th Respondents was filed on the 17th January, 2017.
From the cocktail of issues raised in the instant appeal by the parties, it is evident that some grounds of appeal were not considered. These grounds had no issues distilled from them. These are grounds 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12 of the notice of appeal. These grounds from the position of our law are deemed abandoned and must be struck out. See Ekunola v. CBN & Anor. (2013) 15 NWLR (Pt. 1377) 224, Ikumonihan v. State (2018) LPELR – 44362(SC). These grounds abandoned are hereby struck out.
Secondly, it is trite law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal. He can only combine two or more grounds of appeal in formulating an issue for determination. Proliferation of issues is not a legitimate exercise in our law. In Ezechukwu & Anor. v. I.O.C. Onwuka (2016) LPELR – 26055 (SC), the Supreme Court per Muhammed JSC (as he then was) held as follows:
“In Roda v. FRN (2015) 1 – 2, SC (Pt. II) 31 at 51 @ 52 this Court restated the overriding principle pertaining the formulation of issues for determination of appeals thus:- “It is certainly never the number of issues formulated and argued by the appellant that guarantees the success of his appeal. Rather, it is the relevance of these issues and the potency of the arguments thereon which put the appellant on a better stead. This explains why appellate Courts persistently frown at proliferation of issues and admonish parties to refrain from the unhelpful exercise, appellant’s argument come through more forcefully and with disarming clarity if they are neither repetitive nor verbose… The better approach, therefore, is to formulate a single issue tersely to cover a number of grounds which are governed by the same applicable principles of law… Succinctness remain the overriding indicia”. See also Ikweki v. Ebele (2005) 2 SC (Pt. II) 96 and Adeyemi v. State (2014) 5 – 6 SC (Pt. III) 148 at 171 – 172.”
In the same vein, the Court expressly held in Nduul v. Wayo & Ors (2018) LPELR – 45151 (SC) as follows:
“It must be stated right away that this Court and indeed all appellate Courts frown at the proliferation of issues for determination. It is not the number of issues distilled for determination that determines the success of an appeal but their content and quality. Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment, which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided. See: Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (146) 551 @ 567, Clay Industries (Nig.) Ltd. v. Aina & Ors. (1997) 8 NWLR (Pt. 516) 208; Ogunyade v. Osunkeye (2007) 15 NWLR (Pt. 1057) 218.”
In the instant case, two issues which are issues 3 and 5 were distilled from Ground 14. Issues 3 and 5 are therefore, proliferated issues and since it is not in tandem with our law, to consider proliferated issues, issues 3 and 5 are hereby discountenanced.
What then is left of the seven issues raised by the appellant and adopted by the respondents are issues one, two, four, six and seven. These five remnants of the issues for determination need to be re-arranged. I will in the interest of clarity and fairness re-package the issues into three. These will then read as follows:
1. Whether the appellant was arrested on the basis of a prima facie case against him or upon a reasonable suspicion of having committed an offence.
2. Whether it was established in evidence that the appellant dictated to his client what to write in his statement to the Police.
3. Whether the appellant from the evidence before the lower Court, proved his claim of infringement of his fundamental rights.
Issue One:
This issue is -Whether the appellant was arrested on the basis of a prima facie case against him or upon a reasonable suspicion of having committed an offence.
Learned counsel for the Appellant while arguing this issue submitted that the standard of proof in a criminal matter is reasonable suspicion and certainly not by prima facie basis as erroneously held by the lower Court. He further submitted that the phrase ‘’Prima Facie’’ is defined by Black’s Law Dictionary, 8th Edition at p. 1228 thus: “At first sight; on first appearance but subject to further evidence or information’’. While the Phrase ‘’reasonable suspicion’’ is defined in Black’s Law Dictionary 8th edition at p. 1497, thus “Particularized and objective basis, supported by specific and articulable facts for suspecting a person of criminal activity’’.
Learned counsel argued that the two standards are available to arrest a person as stated in the Constitution and the statute (Police Act and the Penal Code), as the phrase used in all the enactments is ‘’reasonable suspicion’’ and not ‘’prima facie’’, and therefore, the lower Court was wrong in using the prima facie standard.
Furthermore, Learned counsel drew this Court’s attention to the lower Court’s judgment, on the Petition of the 1st Respondent of 7th April 2010 (page 39-40 of the record) which captioned: ‘’PETITION AGAINST MR EMMANUEL EROMOSELE AND BARRISTER N.A. OBINNA FOR CONSPIRACY AND CRIMINAL CONVERSION OF PROPERTY KNOWN AS BLOCK A OF PLOT 411 LOBITO CRESCENT WUSE II ABUJA’’ and submitted that there was no document of transfer of title that was attached to the petition being a landed property, or being signed by the Appellant.
Learned Counsel referred this Court to a statement written by the 1st respondent to the Police on 12th April 2010 at page 201-206 particularly at page 205-206 of the record, and argued that, it contradicted the earlier statement/petition of 7/4/2010.
He stated that the statement of Defence and counter-claim of the 1st Respondent filed in Suit: FCT/HC/CV/345/08, did not plead any of the facts/allegation he made to the police.
Counsel referred this Court to a statement written by the Appellant to the police on 13/4/2010 at page 210-213 that the police should investigate the allegation of the 1st Respondent because giving false information to the police is also an offence under Section 178 of the Penal Code. The Learned counsel to the appellant finally urges us to resolve the issue in favour of the Appellant.
In response, counsel for the 1st Respondent while arguing this issue (issue one) submitted that the law is trite that every trial Judge has the obligation for the evaluation of evidence adduced before the Court and the process of evaluation involves appraising the strength or weakness of the evidence. He cited Ogunleye v. State (1991) 3 NWLR (Pt. 177) 1 at 13. Counsel posited that where a trial Judge has effectively discharged the primary duty of evaluation of evidence, an appellate Court would not readily interfere with it. He relied on the case Nwaeseh v. Nwaeseh (2000) 3 NWLR (Pt.649) 391 at 401. Counsel argued that Fundamental right proceedings are conducted on the basis of affidavit evidence and the law is trite that affidavit evidence carries as much weight as oral evidence. He relied on Soy Agencies v. Metalum Ltd 1991) 3 NWLR (Pt.177) 35 at 42. Counsel posited that, it is in furtherance of the duty of evaluation of the affidavits evidence before the lower Court that the trial Judge made the findings at page 28 of his Ruling (page 249 of Record of Appeal) that;
“From the affidavits filed in this matter, there existed prima facie basis upon which the Applicant could be deprived of his liberty upon a reasonable suspicion that he committed a crime based on the petition written by the 1st Respondent.”
Learned counsel argued that the totality of the affidavits produced a “prima facie” conclusion in the evaluation of the learned trial Judge that there was a reasonable suspicion for the deprivation of the Appellant’s liberty.
Counsel further argued that, it is the legitimate duty of every citizen to report a suspected crime to the Police and the duty on the Police to investigate same. He quoted the Court in Maduka v. Ubah (2015) 11 NWLR (Pt.1470) 201 at 228.
Furthermore, the police are given certain discretion in the exercise or performance of their duty and once that discretion is properly exercised, the police cannot be indicted. He cited the case of Dododo v. E.F.C.C (2013) 1 NWLR (Pt.1336) 468 at 508-512. Counsel submitted that Appellant’s Issue one is otiose and does not deserve the sympathetic consideration of the Court and accordingly, should be dismissed.
On this issue, the appellant was passionately drawing a distinction between prima facie evidence and the requirement of reasonable suspicion. The distinction to my mind is unnecessary. In terms of personal liberty, every person shall be entitled to his personal liberty and no person shall be deprived of such liberty except inter-alia, for the purpose of bringing the person before a Court in execution of the Order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. This clearly is the requirement of Section 35 of the Constitution of the Federal Republic of Nigeria 1999.
For a person to be detained it must be for legitimate reasons. Whether there is prima facie evidence or reasonable suspicion is a matter of facts which can be seen from the records of the lower Court. the lower Court, from the record of appeal, held at page 249 thereof as follows:
“From the affidavit filed in this matter, there existed prima facie basis upon which the applicant could be deprived of his liberty upon a reasonable suspicion that he committed a crime based on the petition written by the 1st Respondent.”
This finding of the lower Court has not been shown to be perverse. It follows therefore, that the detention of the appellant in this case was not out of order and not unconstitutional. This issue is therefore resolved against the appellant.
Issue Two:
This issue is – Whether it was established in evidence that the appellant dictated to his client what to write in his statement to the Police, and whether the fundamental right to equal public service was not breached.
Arguing Issue two, Learned Appellant’s counsel quoted Section 35 (2) of the 1999 Constitution as amended, and submitted that any person is entitled to legal practitioner of his person as of right, and therefore, on 8th June 2010, when Mr Emmanuel Eromosele consulted the Appellant and asked the Appellant to accompany him to the police station the following day, as his lawyer, it was to solicit for the Appellants legal opinion and assistance on the police invitation which later turned out to be arrest.
The appellant’s counsel further argued that, the Appellant was eminently qualified to represent Emmanuel Eromosele in whatever legal issue, and therefore, should not be said to have committed offence in the course of his professional undertaking. Counsel argued that before the lower Court can indict the Appellant, as Counsel, there must be credible and positive evidence placed before it to warrant an unethical conduct, as none of the respondents deposed that the Appellant was “dictating” or “directing” Mr. Emmanuel Eromosele on what to write in his written statement to the police on 9/6/2010.
Learned counsel quoted a case on giving of legal advice as approved by the Supreme Court in the case of State v. Rabiu (2013) 8 NWLR (Pt. 1357) 585 per Alagoa, JSC, at p. 608, para B –F. He further cited the provision that the Administration of Criminal Justice Act 2015 that provides that a suspect can;
“(b) consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest.”
He further argued that under the criminal procedure law, a refusal of a suspect or an accused to the services of counsel of his choice leads to a mistrial, as same impeach on his fair trial. The Appellant having been consulted and his services retained by Emmanuel Eromosele must be allowed to render the legal services sought by him.
On what constitutes right to liberty, learned counsel quoted – Prof. B.O. Nwabueze, SAN, in his book- The Presidential Constitution of Nigeria; C. Hurst & Company, London (1st ed.) 1982; in Chapter 28 thereof, titled -Freedom of Private Enterprise – which categorized the right to private enterprise as an offshoot of right to liberty. He opined that an individual or citizen is enabled by the protected human rights to carry on his chosen profession, career or vocation without molestation or distraction. Learned Counsel to the Appellant therefore, urged us to resolve the second issue too in favour of the Appellant.
In response to Issue Two, counsel submitted that the Appellant and Mr. Emmanuel Eromosele were co-accused. He cited this situation akin to what was frowned at in Audu v. Gideon (2015) 12 NWLR (Pt.1474) 495 at 516. Counsel submitted that the conflicting role sought to be played by the Appellant as an accused and as a legal practitioner to his co-accused was the complaint of the 5th Respondent as averred by the Appellant at paragraph 39 of his affidavit (page 10 of the Record of Appeal) and re-emphasized at paragraph 4.2 of his Brief. The pleadings before the trial Court relating to what transpired at the police station on the 9th of June, 2010 is relevant. He referred this Court to the averment of the 2nd – 5th respondent in their counter Affidavit to the Appellants claim at page 23 of the Record of Appeal. Their averment was never controverted by the Appellant at the trial Court.
Counsel stated that the Law is trite that where there is no reply to a counter Affidavit, the counter affidavit is to be believed. He relied on the case of Watharda v. Ularamu (2015) 3 NWLR (Pt.1446) 253 at 265. Counsel argued that the trial Judge was therefore right in his findings at page 30 of the Ruling (page 251 of the Record of Appeal) when he concluded that:
“l do not understand it to be part of the responsibility of counsel and indeed, it will be unethical for counsel while his client is writing a statement before the police to dictate to him, direct him or advice on what to say. Such a situation will remove the very essence and character of a statement which is meant to be volunteered by a person. The Applicant had the right opportunity to fully exercise this right relative to advising his client from the point in time when he was instructed up until when his said client was required to voluntarily make a statement to the police with respect to the allegation against him.”
Learned Counsel finally, urged this Court to resolve this Issue against the Appellant.
In this appeal, the issue is more to do with the alleged involvement of the appellant as counsel in trying to over indulge in the investigation of his client. The appellant being a legal practitioner, it is trite must completely detach himself from the case of his client. There is clearly the demand of ethics that a legal practitioner shall not be sensuously and emotionally involved in the matter he is handling. The issue of whether there was evidence of direct interference as to dictate a statement to the client while the Police was investigating is the allegation of the Police against the appellant. It is an issue that the appellant being a co-accused person, can only defend himself. In our law, a person accused can only defend his case. He needs to leave other people to fight their own battles.
Appellant’s counsel submitted that Exhibit F attached to the Appellant’s/Applicant’s affidavit is the letter Written by the 4th Respondent, Commissioner of Police – to the Appellant in respect of the Court order of 17/3/2010 in suit No: FCT/HC/CV/345/08, this by no means, a response to the Appellants petition of 4/2/2010 Exhibit D, as erroneously held by the lower Court.
Counsel argued that the said Appellant’s petition of 4/2/2010 was not attended to, till date, contrary to and in violation of Article 13(2) & (3) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Acts, Laws of the Federation 2004, which provides thus;
1. ‘Every citizen shall have the right of equal access to the public service of his country.
2. Every individual shall have the right of access to public property and service in strict equality of all persons before the law’.
Learned counsel submitted that, the letter written by the 4th Respondent in Exh. F was addressing the Court order duly served on them, and not a response to the Appellant’s petition written on behalf of his client – Exh. D.
In response, learned counsel for the 1st Respondent submitted that, after the trial Court granted an order at the instance of the Appellant compelling the 1st Respondent to re-open the premises locked, the Appellant further wrote to the Police forwarding the order of the Court and which the Police acknowledged in their correspondence to the Appellant. He further submitted that it is very curious that Appellant resorted to self-help against the 1st Respondent and rather than shy away for such acts of self-help. The Appellant contended that his right has been infringed for not getting the desired response he expected from the 2nd Respondent. He relied on the case of D.P.C.C.L. v. B.P.C.L (2008) 4 MJSC 161 at 176. Thus, the Appellant’s contention before the trial Court of deprivation to equal public service as a breach of his fundamental right is founded on this absurdity. The fundamental right content in Chapter IV of the Constitution does not admit of deprivation of equal public service as right. The rights to be enforced under the Fundamental Right Procedure are those rights listed in Chapter IV of the Constitution. See – Section 46 of the Constitution. This issue therefore, is resolved against the appellant.
Issue Three:
Whether the appellant from the evidence before the lower Court, proved his claim of infringement of his fundamental rights.
The issues of fundamental rights are inalienable and basic to human existence. The denial of such rights is regarded as a denial of a person’s humanity. However, as the issue of fundamental rights is, it has been generally held that there are no absolute rights and freedom. The right of one stop where the right of other begins.
This action was contested on affidavit evidence. The Appellant and the 1st respondent in their respective affidavits deposed that the 1st respondent was the beneficial owner of Plot No.6, Lobito Crescent, Wuse II, Abuja, the premises being used for commercial purposes with various tenants thereon, and the appellant was a solicitor to one of the 1st respondent’s tenants, Big Bite Ltd – a fast food catering service situates at the premises.
Misunderstanding brew up between the 1st respondent and Big Bite Ltd over rent review and the discovery that the Big Bite Ltd had sublet the premises.
The Appellant as solicitors to Big Bite Ltd on the 29/1/2008 filed a suit before the FCT High Court in suit No.FCT/HC/CV/345/18 seeking for the determination of the appropriate rent review of the premises.
While the suit lasted for more than two years, and without the payment of rent by Big Bite, the 1st Respondent discovered that the Managing Director of Big Bite Ltd, Mr. Emmanuel Eromosele had sublet the premises to different sub tenants including Mr. Emma Ndah Sunday – an in-law to Mr Eromosele.
While, the suit of Big Bite is pending, the said Emma approached the 1st respondent for settlement by agreeing to pay him the sum of N10 million on 5th January, 2010 but the settlement later failed, leaving the 1st Respondent to wonder around especially on how to recover his premises, and the rents in arrears.
Infuriated by the action of the appellant and his cohorts, the 1st respondent petitioned the Nigeria Police on 7/4/2010 for conspiracy and criminal conversion of the premises. The appellant honored the invitation made by the police and at the police station the appellant was arrested and questioned. He was granted police bail. While, investigation was pending, the appellant and the 1st respondent decided to settled amicably, and consequently, agreement was reached and signed before the police – ordering the vacation of the premises and handover same to the 1st respondent.
While, the case seemed to be over, the Appellant thereafter feel aggrieved of his invitation to the Nigeria Police, and made a U-turn by filing a fundamental rights case before the FCT High Court. After the case was reserved for judgment, the 1st respondent got hint of the case, and quickly filed a counter affidavit and written address in his defense. In a considered judgment by the trial lower Court, the appellant’s case was dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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However, the appellant counsel submitted that the constitutional right of the appellant has been violated because he was invited and detained at the instance of the 1st Respondent. I wish to draw out a line here about Section 35 (7) of the 1999 Constitution as amended which says:
“Nothing in this section shall be construed (a) in relation to subsection as applying in the case of a person arrested or detained upon reasonable suspicion of having committed an offence”.
The key phrases in that subsection are: (1) reasonable suspicion, and (2) committing an offence. The question that comes therefore are these: firstly, has the appellant been arrested upon reasonable suspicion? Secondly, is the allegation for which he was invited not a serious offence? The answers to these two questions are in the affirmative. No one can say that there was not a reasonable suspicion that a crime has been committed. The 1st Respondent was allegedly deprived of his premises for a considerable period of time, on the action of the appellant and others who in turn sublet the premises and collected rents for some times under the guise that the determination of the rent review is pending before the FCT High Court in suit No.FCT/HC/CV/345/18. Both parties agreed on these set of facts.
In Sunday Ubochi v. Chief Godwin Ekpo & Ors (2014) LPELR-23523 (CA), it was held that:
“Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or likely to commit the offence. An arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for the breach of his fundamental rights.”
I am therefore, comfortably at home with the argument put forward by the Learned counsel to the 1st Respondent that, it is in furtherance of the duty of evaluation of the affidavits evidence before the lower Court that the trial Judge made the findings at page 28 of his Ruling complained of.
I therefore hold that the fundamental right of the appellant has not in any way been violated simply because he was invited upon reasonable suspicion.
The findings and decisions of the trial Court in dismissing the claim of the appellant is proper as it has discharged its primary duty of evaluation of evidence and ascribing probative value to it. In the circumstances, I hold that this issue is resolved against the appellant, and in favour of the respondent.
Flowing from the foregoing, this appeal lacks merit, and same is hereby dismissed. The judgment of the trial Court in dismissing the claim of the Appellant is hereby affirmed.
ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA.
My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. These findings and conclusions flowed from the evidence adduced at the trial.
It is for this reason and the more detailed reasons given by my Learned Brother STEPHEN JONAH ADAH, JCA that I also find that this appeal is unmeritorious and it is hereby dismissed. I also affirm the judgment of the High Court of the Federal Capital Territory, Abuja delivered on the 11th of May 2011.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal fails.
I abide by the other orders made therein the lead Judgment.
Appearances:
Appellant in person For Appellant(s)
James Idih, Esq. – for the 1st Respondent
Doom Mnenga, Esq. – for the 2nd to 5th Respondents For Respondent(s)
