OKONKWO & ANOR v. ANYADIEGWU & ORS
(2020)LCN/15343(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, July 09, 2020
CA/AW/415/2012
RATIO
DUTY OF THE POLICE: WHETHER THE POLICE IS VESTED WITH THE POWER TO ARREST AND DETAIN SUSPECTS
It is trite that the Police duty to investigate allegations of crime carries with it the power to arrest and detain suspects. See FAWEHINMI V. IGP (2002) 7 NWLR (PT. 767) 608. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
WHETHER A PERSON WHO HAS BEEN REASONABLY SUSPECTED TO HAVE COMMITTED A CRIMINAL OFFENCE MAY BE ARRESTED FOR BEING ARRAIGNED IN A COURT OF LAW
It is trite that no person can be unlawfully arrested and detained when he has committed no offence. On the other hand, a person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of law.
Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a criminal offence. See Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). An arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided for under Section 35 (1) (a) (b) (d) (e) and (f) of the said Constitution. Any restrain therefore of the said rights under any other circumstance would be unlawful and unconstitutional and amounts to a violation of the right of that citizen. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
1. MR. CASMIR OKONKWO 2. GEORGIAN VILLA HOTELS LTD APPELANT(S)
And
MR. EMMANUEL ANYADIEGWU 2. COMMISSIONER OF POLICE ANAMBRA STATE 3. MR. ALEX OGENYI (DIRECTOR SSS ANAMBRA STATE) 4. ISP KIGA (OFFICER-IN-CHARGE OF SARS, AWKUZU) 5. MR. GEORGE UDEOZOR RESPONDENT(S)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The 1st and 2nd Appellants and the 2nd – 4th Respondents herein were the Respondents at the trial in the Suit filed by the 1st Respondent herein as Applicant. Judgment was entered against the said 1st and 2nd Appellants and the 2nd, 3rd and 4th Respondents herein in favour of the 1st Respondent herein by J. I. Nweze, J, of the Otuocha Division of the High Court of Anambra State in Suit NO OT/289M/2012 delivered on the 31st day of August, 2012. Aggrieved by that judgment, the Appellants have appealed against the said decision.
SUMMARY OF FACTS:
The 1st, Respondent as Applicant at the trial Court filed an application on the 15th of May, 2012 for the enforcement of his Fundamental Right. The reason being that he was arrested and detained by the 2nd, 3rd and 4th Respondents at the instance of the Appellants from the 30th of April, 2012 to the 21st of May, 2012 when he was arraigned in Court on a one count charge of attempted stealing.
It is the case of the 1st Respondent that one George Udeozo, who is the owner and Managing Director/Chairman of the 2nd Appellant and the family of the 1st Respondent had a long lasting feud which resulted in the said George Udeozo being convicted and sent to jail in the United States of America. He was subsequently deported to Nigeria. The said owner of the 2nd Appellant then embarked on a revenge mission as a result of which the 1st Respondent was framed up, arrested by the 2nd – 4th Respondents and detained for 21 days. The 1st Respondent stated that he was tortured, abused and humiliated.
Consequently the 1st Respondent approached the trial Court for the enforcement of his fundamental rights, claiming as follows:
1. “A Declaration that the arrest, detention and torture of the Applicant from 30th day of April, 2012 to 9th day of May, 2012 at the office of the 2nd Respondent is unlawful, illegal and a violation of the Applicant’s fundamental right.
2. A Declaration that the transfer of the Applicant from the cell of the 2nd Respondent to the cell of the 1st and 3rd Respondents at Special Anti Robbery Squad Awkuzu (SARS) Awkuzu on the 9th day of May, 2012 and the Applicants continued detention and torture thereat till date of filling this Application is unlawful illegal and an abuse of the Applicant’s fundamental right.
3. Declaration that the Applicant is entitled to public apology and compensation for each day of his unlawful detention and torture by the Respondents acting in concert.
4. An order compelling the Respondents to pay to the Applicant jointly and severally the sum of Ten Million Naira (N10,000,000:00) only for unlawful detention and torture.”
The trial Judge in a considered judgment agreed that the 1st Respondent’s fundamental rights have indeed been breached by the 1st and 2nd Appellants and the 2nd – 4th Respondents and proceeded to grant his prayers and awarded Ten Million Naira (N10,000,000:00) jointly and severally against the 1st and 2nd Appellants and the 2nd – 4th Respondents. This appeal is predicated on the said judgment.
Learned Counsel for the Appellants Val Elosiuba Esq distilled four issues for determination as follows:
1. “Whether the learned trial Judge was right in holding that there was no rational justification for the 1st Respondent’s detention after the 2nd day of May, 2012 and hence his detention from 3rd day of May, 2012 to the 8th day of May, 2012 was unlawful and unconstitutional.
2. Whether the learned trial Judge was right when he held that the Appellants made no report to the Police but were instrumental in ensuring the arrest of the 1st Respondent by the Police and his detention.
3. In view of the nature of the proceedings in the Court below, was the Judge right in conducting inquiry into the authenticity of the report made to the Police and the innocence of the 1st Respondent.
4. Whether the award of the Sum of N10 Million Naira compensation and costs of N50,000 against the Appellants and other Respondents below by the trial Court was judicial and judicious in the circumstances of the matter.”
Learned Counsel for the 1st Respondent on his part formulated three issues for determination thus:-
i. “Whether from the facts of the case presented by parties, the learned trial Judge was right in holding that the 1st Respondent did not commit any Capital Offence and the Appellants were instrumental to the arrest and detention of the 1st Respondent due to the schemed report of armed robbery made against the 1st Respondent by the Appellants.
ii. Whether the arrest, detention and torture of the 1st Respondent from 30th day of April, 2012 till 21st day of May, 2012 (a period of 21 days) by the 2nd, 3rd and 4th Respondents at the instigation of the Appellants on a mere allegation of attempted stealing was a violation of the 1st Respondent’s inalienable fundamental rights as entrenched under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
iii. Whether in view of the duration (21 days) of the unjustified and unlawful arrest, detention, torture, inhuman and degrading treatment of the 1st Respondent, the trial Court was right in awarding a total sum of N10,000,000.00 (Ten Million Naira) in favour of the Appellant as compensation for the infringement of the 1st Respondent’s inalienable rights and also the sum of N50,000 (Fifty Thousand Naira) being cost of the proceedings and the action.”
Learned Counsel for the Appellants in his argument on the issues he raised, contended, in summary that the learned Trial Judge erred in law in holding that there was no rational justification for the arrest and detention of the 1st Respondent for a period of ten days since the subject matter under investigation was not a Capital Offence.
Counsel posited that Section 35 (7) of the 1999 constitution of the Federal Republic of Nigeria exculpated the detaining authorities in view of the nature of the complaint made to them. He argued that the learned trial Judge was wrong to have disregarded the evidence led by the Appellants before ascribing probative value to the evidence of the 1st Respondent. That there was no evidence to show that the Appellants were instrumental to the arrest of the 1st Respondent and his continued detention.
Counsel submitted that the Appellants merely made a report to the 3rd Respondent upon the information they received from their Security man that the non-joinder of the said Security man occasioned a miscarriage of justice. That the award of Ten Million Naira as damages and costs of Fifty Thousand Naira was excessive and punitive in the circumstance. There is also Appellants’ Reply brief filed on the 18th of March, 2019.
Reacting to the foregoing, learned Counsel for the 1st Respondent argued, in summary, that the arrest, detention and torture of the 1st Respondent from the 30th of April, 2012 till 21st day of May, 2012 a period of 21 days by the 2nd, 3rd and 4th Respondents at the instigation of the Appellants on a mere allegation of attempted stealing was a violation of the 1st Respondent’s fundamental rights, moreso as he did not commit any Capital Offence.
Counsel contended that in view of the duration of 21 days of unjustified and unlawful arrest, detention, torture and inhuman treatment meted out on the 1st Respondent, that the learned trial Judge was justified in awarding the sum of Ten Million Naira damages and Fifty Thousand Naira as costs for the infringement of the 1st Respondent’s inalienable rights. I will make use of the four issues formulated by Counsel for the Appellants in dealing with this appeal.
In determining this appeal the relationship that existed between the families of the 1st Respondent and the owner and Managing Director of Georgian Villa Hotels Ltd is very key. Records show that based on a report made by some members of the 1st Respondent’s family, the said George Udeozo and owner of the 2nd Appellant was sentenced to a term of imprisonment in the United States of America and subsequently deported to Nigeria. This naturally didn’t go down well with the said owner of the 2nd Appellant and it permanently strain the relationship between both families.
It is trite that no person can be unlawfully arrested and detained when he has committed no offence. On the other hand, a person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of law.
Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a criminal offence. See Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). An arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided for under Section 35 (1) (a) (b) (d) (e) and (f) of the said Constitution. Any restrain therefore of the said rights under any other circumstance would be unlawful and unconstitutional and amounts to a violation of the right of that citizen.
In the instant case, the question is whether the 1st Respondent has established and proved that his fundamental rights were breached or violated by the report lodged to the 2nd– 4th Respondents that cumulated to his arrest and subsequent detention.
The Appellants have not denied lodging a complaint against the 1st Respondent to the 2nd – 4th Respondents. They have maintained that they lodged a complaint of a plan to rob 2nd Appellant.
The uncontested facts in this case are that the 1st Respondent was arrested and detained for a total of 21 days before his release by the 2nd – 4th Respondents.
The question then is what was the justification for the arrest and detention of the 1st Respondent? As can be gleaned from the Record of Appeal, the 3rd Respondent in his counter affidavit admitted the arrest and detention of the 1st Respondent. He claimed that they were informed of a plan to rob the 2nd Appellant. He therefore sent his men to lay ambush for the robbers. That about 11 pm on the 30th of April, 2012, the 1st Respondent came out to carry out the operation and was arrested and taken into custody. He stated that the 1st Respondent was detained up to the 8th of May, 2012.
Section 35 (4) of the said Constitution of the Federal Republic of Nigeria 1999 provides that any person who is arrested and detained should be taken to Court within a reasonable time. A reasonable time is stated in Section 35 (5) to mean a period of one day where there is a Court within the place of arrest and detention. The only justification beyond a period of one day is where the accused person is suspected of having committed a Capital Offence. See Section 35(7). It is obvious from the counter affidavit of the 3rd Respondent that the 1st Respondent did not commit any Capital Offence.
The Police in their counter affidavit filed on the 7th of August, 2012 admitted that the 1st Respondent was detained by the Police from the 8th of May, 2012. In the instant case the Police knew that at the time they detained the 1st Respondent, he had not committed a Capital Offence.
It is trite that the Police duty to investigate allegations of crime carries with it the power to arrest and detain suspects. See FAWEHINMI V. IGP (2002) 7 NWLR (PT. 767) 608.
The detention only becomes unlawful if it exceeds the constitutionally prescribed period of 1 or 2 days as the case may be. See Section 35 (5) of the 1999 Constitution.
The only exception is where the person detained is held on suspicion of having committed a Capital Offence. There was therefore no justification for the detention of the 1st Respondent after the 9th of May, 2012 in the circumstance. His detention from the 10th of May, 2012 to the 21st of May, 2012 is therefore unconstitutional and therefore unlawful.
It could easily be gleaned from the Records that the 1st Respondent was arrested when he had not even attempted to steal any money.
The Police was used by the 3rd Respondent the Director of State Security Services Anambra State to continue the detention of the 1st Respondent.
Learned Counsel for the Appellants contended that the Appellants merely lodged a complaint to the 3rd Respondent who then handed the 1st Respondent to the Police. The 1st Respondent failed to show how the Appellants instigated the 2nd – 4th Respondents to detain him. He made heavy weather on the fact that it was the duty of the 2nd – 4th Respondents to prevent and detect crime.
It is trite that for the Appellants to take benefit of the said law empowering the 2nd – 4th Respondents to prevent and detect crime etc, they must be shown to have made that complaint in good faith without malice.
Section 4 and 24 of the Police Act give the Police the duty to prevent and detect crime, apprehend offenders, preserve law and order and protect lives and property. Where it happens, a citizen who has been arrested by the Police cannot sue the Police or informant in Court for breach of his fundamental right. True as it may seem, such arrest must be done legitimately and in accordance with laid down rules as provided for in the constitution. In LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND (2010) LPELR – 8642 (CA) this Court, Port-Harcourt Division held:
“Notwithstanding the Powers of the Police as spelt out 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 restraining the Police from arresting in some particular occasion or for some particular improper purpose may be made by the Court.”
From all that have been x-rayed in this judgment, it is clear that the complaint made by the Appellants to the 2nd – 4th Respondents was bereft of good faith particularly when viewed along side the long standing feud between the families of the 1st Respondent and that of the owner and Managing Director of the 2nd Appellant which started all the way from the United States of America. It was simply a product of malice and vendetta occasioned by the said feud that started from the United States of America.
The 1st Respondent has shown that he was arrested and detained unlawfully. There is no doubt that he suffered mental torture in addition to humiliation and embarrassment. He is no doubt entitled to compensatory damages. Where as in this case, the Appellants fail to show justification for breaching the fundamental rights of the 1st Respondent, monetary compensation could be claimed.
It must be noted that even where there is no physical injury, substantial damages could be awarded for injury to the dignity of the person or for the discomfort or inconvenience done to the said 1st Respondent. The detention of the 1st Respondent by the 2nd – 4th Respondents at the prodding and instigation of the Appellants from 30th of April, 2012 to the 21st of May, 2012 constitutes a violation of the due process of law and an infringement of the 1st Respondent’s fundamental rights and he is therefore entitled to the award of damages jointly and severally against the Appellants and the 2nd, 3rd and 4th Respondents.
In the premise, the issues are resolved against the Appellants and in favour of the 1st Respondent. This appeal succeeds except for the issue of the Ten Million Naira damages awarded to the 1st Respondent by the lower Court which I consider excessive.
The Judgment of the lower Court in Suit No OT/289M/2012 delivered on the 31st day of August, 2012 by J. I. Nweze, J, is hereby affirmed. In place of the Ten Million Naira awarded to the 1st Respondent by the lower Court, I award the sum of Two Million Naira jointly and severally to the 1st Respondent. The Appellants are to pay the sum of One Million Naira to the 1st Respondent, while the 2nd, 3rd and 4th Respondents are also to pay One Million Naira to the 1st Respondent jointly and severally. I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME (Ph. D) J.C.A.
I agree with her reasoning and conclusions.
I also allow the appeal.
No order as to costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
I. Obiekwu For Appellant(s)
I. Okoye for the 1st Respondent.
O. J. Okechi for the 3rd Respondent For Respondent(s)
