STANLEY K. C. OKONKWO v. ANTHONY EZEONU & ORS (2017)

STANLEY K. C. OKONKWO v. ANTHONY EZEONU & ORS

(2017)LCN/10173(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of April, 2017

CA/E/55/2012

RATIO

BURDEN OF PROOF: THE POSITION OF THE LAW ON THE BURDEN OF PROOF ON THE PLAINTIFF TO PROVE HIS CASE

The law is settled that the onus is on the plaintiff to prove his case with cogent and credible evidence. Where a defendant fails to file a defence or lead evidence to rebut or challenge the evidence led by the plaintiff, the onus on the plaintiff is discharged on a minimal proof. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

AFFIDAVIT EVIDENCE: THE EFFECT OF UNCONTROVERTED OR UNCHALLENGED AFFIDAVIT

The law is trite that where the affidavit of a party remains uncontroverted or unchallenged, the facts deposed to in the affidavit are deemed admitted by the adversary who had the opportunity but failed to file a counter affidavit to controvert the facts. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

FUNDAMENTAL HUMAN RIGHTS AND ENFORCEMENT: THE POSITION OF THE LAW ON WHOM LIES THE ONUS OF PROVING THAT A PERSON’S FUNDAMENTAL RIGHT WAS BREACHED

The law is settled that the onus is on the person alleging a breach of his fundamental right to prove same by cogent and credible evidence which in my view the appellant did. See FAJEMIROKUN v. COMMERCIAL BANK (CREDIT LYONIYAIS) NIG LTD & ANOR (2009) 5 NWLR (PT. 1135) 558 AT 600, 605 606, GUSAU & ORS. V. UMEZURIKE & ANOR (2012) LPELR – 8000 (CA). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

FUNDAMENTAL HUMAN RIGHTS AND ENFORCEMENT: WHETHER A PERSON MUST HAVE SUFFERED ACTUAL DAMAGE FOR HIM TO BE ENTITLED TO COMPENSATION

The law is settled that a person whose fundamental right is violated is entitled to compensation whether or not an actual damage or injury is suffered. See Section 35 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), ARULOGUN V. C. O. P (LAGOS STATE) & ORS. (2016) LPELR – 40190 (CA). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RELIEF: WHETHER THE COURT CAN GRANT A RELIEF NOT SOUGHT FOR BY A PARTY

The law has long been settled that a Court not being a Father Christmas or a charitable institution has no jurisdiction to grant a relief not sought for by a party. See OKOKO V. DAKOLO (2006) LPELR – 2461 (SC), OLAOPA V. O.A. U, ILE ? IFE (1997) LPELR – 2571 (SC). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

STANLEY K. C. OKONKWO Appellant(s)

AND

1. ANTHONY EZEONU
2. NKIRU EZEONU
3. NWAMAKA UCHENNA (A.C)
4. MIKE CHINAGOROM (IPO) Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein having obtained the leave of Court to apply for the enforcement of his fundamental rights filed a motion on notice supported by an amended statement, affidavits and Exhibits attached thereto at the High Court of Anambra State wherein he sought for the following reliefs:
(a) “A DECLARATION that the torture and detention of the applicant by the 3rd and 4th respondents for eleven days without a lawful trial on the instigation of the 1st and the 2nd respondents is a violation of his right to dignity and personal liberty guaranteed under Sections 94 and 35 of 1999 Constitution of Nigeria.
(b) N1,000,000.00 (one Million Naira) only being general damages against the respondents jointly and severally for violation of the applicant’s fundamental rights guaranteed under Sections 34 and 35 of 1999 Constitution of Nigeria.
AND FOR such further order as the Honourable Court may deem fit to make in the circumstances of the case.”

Upon being served with the processes, the 1st and 2nd respondents filed a counter affidavit and further

counter affidavit. The 3rd and 4th respondents did not file any process and were not represented throughout the hearing at the Court below. The affidavits of service of the Court processes including hearing notices are contained in the additional record of appeal. After hearing the appellant and 1st and 2nd respondents, the Court below in its judgment delivered on 29/9/2011 dismissed the reliefs sought by the appellant.

The appellant was aggrieved by the judgment and filed a notice and grounds of appeal containing 8 grounds of appeal on 5/12/2011. The appellant’s brief of argument was filed on 28/2/2012. He formulated the following three issues for determination:
1. “Whether or not the Court below was right to hold that the constitutional rights to personal liberty and dignity of the appellant were not infringed upon by the respondents (grounds 1, 2, 3,4 and 5);
2. Whether or not the Court below was right to reach the decisions in the judgment without considering the salient legal issues raised and argued by the counsel for the appellant in his written and oral submissions (Ground 6);
3. Whether or not the Court below was right to grant

the relief not sought by any of the parties to the suit (Ground 8).”

The 1st and 2nd respondents’ brief was filed on 23/8/2015. The Respondents’ counsel formulated the following issues for determination:
(a) Whether the lower Court rightly dismissed the appellant’s case.
(b) Whether the appellant was entitled to any of the reliefs claimed.

I have considered the grounds of appeal and the issues formulated by counsel to both parties. I am of the view that the issues which call for determination in this appeal are:
(1) Whether the Court below was right in dismissing the appellant’s claim.
(2) Whether the Court below was right in granting a relief not sought by any of the parties.

On issue 1, which is whether the Court below was right in dismissing the appellant’s claim, counsel submitted that the facts stated in paragraph 4 g, h, i and l of the statement in support of the application clearly established the fact that the 1st respondent instigated the 3rd and 4th respondents into arresting, torturing and detaining the appellant for eleven (11) days without trial contrary to the provisions of Sections 34 and 35 of the

Constitution of the Federal Republic of Nigeria which fact was not rebutted by the respondents. He further submitted that paragraphs 10, 11 and 19 of the 1st and 2nd respondents’ counter affidavit which seemed to have denied the facts in those paragraphs of the statement in support of the application are incompetent for non-compliance with the provisions 87, 88 and 89 of the Evidence Act and the Court below ought to have struck out those paragraphs. He referred to EKPEMUPOLO v. EDREMODA (2009) 8 NWLR (PT. 1142) 166, EGBUNIKE v. A.C.B LTD (1995) 2 NWLR (PT. 375) 34, EDOSOMWAN v. OGBEYFUN (1996) 4 NWLR (PT. 442) 266, NWOSU v. IMO STATE ENVIRONMENT SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688, N. I. P. S. S. V. OSIGWE (2008) 6 NWLR (PT. 1083) 39 AT 251 (C – F). Counsel also submitted that the 3rd and 4th respondents having failed to challenge or controvert the facts in support of the application, the averments in respect of their unconstitutional acts against the appellant are deemed to be true and taken as proved. He referred to OGOEJIOFOR V. OGOEJIOFOR (2006) 3 NWLR (PT. 966) 205, MINISTER, P. M. B. V. E. L. (NIG) LTD (2010) 12 NWLR (PT. 1208) 261, H.S.

ENGR. LTD V. S. A. YAKUBU (NIG) LTD (2009) 10 NWLR (PT. 1149) 416, UNIBIZ LTD v. C.B.L. (2005) 14 NWLR (PT. 944) 47.?

Counsel argued that Exhibits A and A1 (the petitions written by the 1st and 2nd respondents having no statutory character cannot give the 3rd and 4th respondents the legal power to arrest and detain the appellant for eleven days without trial because the 3rd and 4th respondents derive their power to detain the appellant within the ambit of Sections 34 and 35 of the Constitution from Section 4 of the Police Act and not from Exhibits A and A1. He argued further that the Court below made a case for the 3rd and 4th respondents and thereby reached a bias and perverse decision.

In response, the 1st and 2nd respondents’ counsel submitted that the appellant failed to prove how the 2nd respondent’s petition dated 11th May, 2009 which reported a case of assault on her person in her home and on the strength of which the appellant was arrested and possibly detained by the 3rd respondent amount to an infringement of his fundamental right. It is counsel’s contention that the appellant cannot claim to have been detained for eleven

days without more and expect the Court to find in his favour without furnishing the Court with any evidence of service of the Court process on the 3rd and 4th respondents from the beginning to the end of the proceedings. He further submitted that the appellant failed to provide the particulars of when he was arrested, detained and released. It is also his contention that only the arresting police officer who took part in the arrest, investigation and detention complained of can give evidence of those particulars. He referred to FASHOWE V. A. G. (FED.) (2007) 8 WRN 126 (13).

RESOLUTION:
The 3rd and 4th respondents are not represented by counsel and from the records of appeal, they never participated in the proceedings at the Court below and there is no indication whatsoever that the 1st and 2nd respondents’ counsel had their instruction to raise any issue on their behalf. Secondly, by virtue of Order 9 Rule 2 of the Court of Appeal Rules, 2011 which was the rule in operation at the time this appeal was filed, a respondent who desires to contend on appeal that the decision of the Court below should be affirmed on grounds other than those relied

upon by the Court must give notice to that effect specifying the grounds of that contention. No such notice was given by the 1st and 2nd respondents in this appeal. Thirdly the affidavits of service of the Court processes including hearing notices on the 3rd and 4th respondents are contained in the additional record of appeal transmitted to this Court on 9/6/2014 which has not been challenged in any way. Therefore the issue of service of Court processes on the 3rd and 4th respondents raised by the 1st and 2nd respondents’ counsel is not well taken.

?The law is settled that the onus is on the plaintiff to prove his case with cogent and credible evidence. Where a defendant fails to file a defence or lead evidence to rebut or challenge the evidence led by the plaintiff, the onus on the plaintiff is discharged on a minimal proof. In the instant appeal, the case was heard on affidavit evidence. The law is trite that where the affidavit of a party remains uncontroverted or unchallenged, the facts deposed to in the affidavit are deemed admitted by the adversary who had the opportunity but failed to file a counter affidavit to controvert the facts. As

far as the 3rd and 4th respondents in this appeal are concerned, the fact that the appellant was arrested and detained for 11 days remains uncontroverted.

As regards the 1st and 2nd respondents who filed a counter affidavit sworn to by the 2nd respondent for herself and on behalf of the 1st respondent, the fact that the appellant was arrested on 8th May, 2009 and detained until 19/5/2009 was clearly established. I say so because the 1st and 2nd Respondents denied only the facts concerning them as stated in the statement in support of the application. They did not state any other date of arrest or release of the appellant. The petition on page 71 of the record of appeal written by the 1st and 2nd respondents stated that the appellant was one of those who attacked the appellant at her residence on 9/5/09. Meanwhile, the appellant had already been arrested on 8/5/09 and was not released until 19/5/09. Therefore, the appellant could not have been one of those who allegedly invaded the 1st respondent’s residence on 9/5/09. The Court below clearly missed or ignored this important point. The petition is dated 11/5/09, three clear days after the arrest

and detention of the appellant. It is therefore obvious that the arrest and detention of the appellant could not have been based on the petition. The Court below was wrong when it found that “based on Exhibit A1, the 4th respondent, the I.P.O caused the arrest and detention of the applicant for the alleged assault occasioning harm which allegedly led to 2nd respondent’s miscarriage of her pregnancy”. The facts simply do not add up. I have examined the medical report on page 73 of the record of appeal relied on by the 1st and 2nd respondents. It is not stated anywhere on that document that the 1st respondent was pregnant and that she lost the pregnancy as a result of the alleged assault on her. Most importantly, the origin of that document is shrouded in misery, was it issued by the General Hospital Onitsha or by the police. There are two different dates on the document, 14/5/09 in the first column and 5/5/09 at the bottom in respect of the assault which allegedly happened on 9/5/09. The document ought not to have been relied on by the Court below.

From the facts deposed to by the 2nd respondent, it is clear as found by the Court below

that the strained relationship and the dispute over the property situate at NO.18, Okija Street, Iyiowa Odekpe between the 1st respondent and his father resulted in the arrest and counter arrest of one and the other and institution of both civil and criminal cases which were still pending. The appellant stated that sometime in early May, 2009, the 1st respondent’s father approached him for repacking of his household properties which the 1st respondent threw away from his father’s flat and as a family friend, he went and helped the 1st respondent’s father to re-pack the properties. It is therefore clear that the setting in motion of the machinery for the arrest and detention of the appellant by the 1st and 2nd respondents was actuated by malice. The law is settled that the onus is on the person alleging a breach of his fundamental right to prove same by cogent and credible evidence which in my view the appellant did. See FAJEMIROKUN v. COMMERCIAL BANK (CREDIT LYONIYAIS) NIG LTD & ANOR (2009) 5 NWLR (PT. 1135) 558 AT 600, 605 606, GUSAU & ORS. V. UMEZURIKE & ANOR (2012) LPELR – 8000 (CA).

The law is settled that a person who malafide lodges a

complaint to the police is answerable for the harassment and damages or injuries suffered by him. See UDEAGHA V. NWOGWUGWU (2013) LPELR ? 21819 (CA). In the instant case, there was no justification for the arrest, detention, harassment and parade in handcuff of the appellant like a criminal on the street where he lives.

Issue 2 is whether the Court below was right in granting a relief not sought by any of the parties. on this issue, the appellants’ counsel submitted that a Court of law can only grant a relief claimed by a party and not more. He referred to OSUJI V. EKEOCHA (2009) 16 NWLR (PT. 1166) 81, A.G, ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT. 224) 396, EDIBIRI V. EDIBIRI (1997) 4 NWLR (PT. 498 165), EKPENYONG V. NYONG (1975) 2 SC 71, S.S CO. LTD

V. AFROPAK (NIG) LTD 18 NWLR (PT. 1118) 77 particularly at page 109 Para F. He further submitted that the Court below ought not to have dismissed the appellant’s case if it is found that the application lacked merit and not suo motu grant an order staying the arrest of any of the parties which was not prayed for by the applicant. The respondent’s counsel did not offer any reply to the above submission.

RESOLUTION:
I have stated earlier in this judgment, the reliefs sought by the appellant. The Court below found that the suit lacks merit and dismissed it. However, the Court did not stop at that. The Court after dismissing the appellant’s case ordered as follows:
“Justice demands that the parties involved in this suit should not only embrace peace but should await the outcome of their pending suits in Court. In the same view, I hereby order that the arrest of any of the parties in connection with the facts of this suit should be stayed.”

The appellant did not seek any order for injunction or stay of action against any of the respondents or vice versa. The law has long been settled that a Court not being a Father

Christmas or a charitable institution has no jurisdiction to grant a relief not sought for by a party. See OKOKO V. DAKOLO (2006) LPELR – 2461 (SC), OLAOPA V. O.A. U, ILE ? IFE (1997) LPELR – 2571 (SC). The order to stay the arrest of any of the parties in this case not having been asked for by any of the parties and not being a consequential order within the discretionary power of the Court is null and void. For these reasons, issue 2 is resolved in favour of the appellant.

In conclusion, this appeal succeeds. The judgment of the High Court of Anambra State delivered in suit No. O/384M/2009 on 29th September, 2011 is hereby set aside. In its place, judgment is entered in favour of the appellant as follows:
(1) It is hereby declared that the arrest and detention of the appellant by the 3rd and 4th respondents for eleven days without trial on the instigation of the 1st and 2nd respondents is a violation of the appellant’s right to personal liberty guaranteed under Sections 34 and 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
?(2) I hereby award a sum of N500,000.00 (Five Hundred Thousand Naira) as

compensation in favour of the appellant and against the respondents jointly and severally for the violation of the appellant’s fundamental rights.
(3) There shall be N50,000.00 (Fifty Thousand Naira) costs in favour of the appellant and against the respondents.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned sister MISITURA MODERE BOLAJI-YUSUFF, JCA. I cannot understand the reasoning of the learned trial judge in this case for failing to make clear findings of fact in favour of the Appellant. The basis of the learned trial judge’s conclusion was perverse. The 1st & 2nd Respondents never denied that the Appellant was arrested, but merely denied they activated or instigated same. The petition they wrote to police alleging that the Appellant was one of those who attacked the 2nd Respondent at her residence on 9/5/09 was factually false. The same couple had already engineered his arrest on 8/5/09 because he appeared to have helped the Respondents’ father. How could the trial Court have ignored such an important point? The petition against the Appellant was written on

11/5/09, three days after his arrest just to justify and fortify the reasons for his arrest. I believe the affidavit evidence of the Appellant not controverted on any material particulars. I set aside the judgment of the High Court of Anambra State delivered on 29/9/11 in Suit No. O/384M/2009. I abide by the judgment and orders entered instead in favour of the Appellant by my learned sister in the terms set out in the lead judgment. Appeal allowed. N100,000.00 for the Appellant against the Respondents.

JOSEPH TINE TUR, J.C.A.: I read in advance a copy of the decision that has been rendered by my learned colleague on the bench, Misitura O. Bolaji-Yusuff, JCA. Section 294(2)-(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended empowers me to either concur or render my decision. I have used the word “decision” in order to conform with the provisions of Section 294(2) of the Constitution which provides that any determination by a Justice of the Supreme Court is a “decision” or an “opinion.”

Sections 34(1)(a), and 35(1)(d), (4)-(5) of the Constitution of the Federal Republic of Nigeria, 1999 as

amended provides as follows:
“34(1) Every individual is entitled to respect for the dignity of his person, and accordingly:-
(a) No person shall be subjected to torture or to inhuman or degrading treatment.
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35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
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(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of:
(a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this

section, the expression ?a reasonable time” means:-
(a) In the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) In any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.”
A violation or breach of any of the provisions is actionable under Section 46(1) to (3) of the Constitution (supra) which reads as follows:
“46(1) Any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs- and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who make the application may be entitled

under this chapter.
3. The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
These provisions are under Chapter IV of the Constitution titled “Fundamental Rights”. The term “Fundamental Rights” has not been defined in Chapter IV of the Constitution (supra). The appellant brought this proceedings in the Court below on 5th August, 2009 under Chapter IV of the Constitution. At that time, proceedings of this nature were governed by the Fundamental Rights (Enforcement Procedure) Rules, 1979. The 1979 Rules were abrogated by the Fundamental Rights (Enforcement Procedure) Rules, 2009 with effect from 1st December, 2009. See Order XV rule 1 of the 2009. I shall determine this appeal based on the Fundamental Rights (Enforcement Procedural) Rules, 2009. In Rex vs. Chandra Dharma (1904-7) All E.R. Rep.570 Lord Alverstone C.J. held at page 571 as follows:
“We have no doubt that the judgment in this case was correct I think that the rule is clearly established that statutes which make alterations in procedure are retrospective. I think that the proposition is

established in the case cited by CHANNELL, J., (The Ydun (1)), and, if the action of a statute which shortens the period within which proceedings may be taken to retrospective, I see no reason why the action of a statute which lengthens that period should not also be retrospective. If a new right is given, or a new disability imposed, then, of course, the statute would not be retrospective. If it could fairly be argued that a new offence had been created or that the Ingredients of the old offence were materially altered by the new statute, then I should consider that the statute was not retrospective. But here the offence is not altered; the only alteration effected by the statute is that the time within which a prosecution may be brought is extended.?
The Fundamental Rights (Enforcement Procedure) Rules, 2009 defines what is the “African Charter”; “Fundamental Rights” and “Human Rights” under Order 1 Rule 2 of the Rules as follows:
“2. In these Rules:-
?African Charter? means the African Charter on Human and Peoples’ Rights.
“Fundamental Right’ means any of the rights provided for in Chapter IV of the

Constitution, and includes any of the rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
“Human Rights? includes fundamental rights.?
Order XI of the Rules provides as follows:
“At the hearing of any application, under these Rules, the Court may make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to which the applicant may be entitled.”

Paragraphs 4(a)-(t) of the facts in support of the application in the Court below, verified on oath averred as follows:
“(a) The applicant is a trader residing at No.1 Okija Street, Iyiowa Odekpe. He is a family friend of one Mr. Michael Ezeonu, the biological father of the 1st respondent.
(b) The 1st and the 2nd respondents are husband and wife as a Christian family who reside at No.18 Okija Street, Iyiowa Odekpe. The 4th respondent is a Police Investigation Office (IPO)

who carries his duty under instruction and supervision of the 3rd respondent, the Police Area Commander, Onitsha.
(c) Sometimes in early May, 2009 Mr. Michael Ezeonu approached the applicant for repacking of his household Property which the 1st respondent threw away from the flat of the said Michael Ezeonu. As a family friend to the father of the 1st respondent, Mr. Michael Ezeonu, the applicant went and helped him as he requested by repacking the said property in the flat.
(d) After helping the said Michael Ezeonu, the applicant went back to his (applicant’s) yard aforementioned and throughout the period of repacking the said property he did not see the 1st and 2nd respondents let alone having any altercation with them or anybody thereat or any place at all.
(e) The applicant was surprised to see the 1st respondent in the company of the 4th respondent, Michael Ezeonu who was under the arrest of the 4th respondent and other men in the morning of 8th May, 2009 at his yard, No.1 Okija Street, Iyiowa Odekpe. On sighting the applicant by the 1st respondent, he pointed at the applicant and the 4th respondent arrested him, handcuffed him and pushed him

and the said Michael and one Chukwuebuka Ezeukwu of the same yard with the applicant into an awaiting vehicle and drove them to the Police Area Command, Onitsha.
(f) The applicant avers that at the earliest time of his arrest he requested the police to tell him the offence he committed for which he was been arrested and handcuffed, but the question attracted slaps from the 4th respondent, Nobody including the 4th respondent informed the applicant about the reasons for his arrest with handcuff. The 4th respondent on getting to the Police Area Command got the applicant, the said Michael Ezeonu, and the said Chukwuebuka down, unlocked the handcuff in the hands of the applicant and that of Chukwuebuka, pulled off cloths of the applicant and the said others and pushed them into the cell without telling them the reason for detaining them.
(g) After the 1st respondent identified the applicant and the said Chukwuebuka at their yard aforementioned he joined the 4th respondent in the vehicle to the said Police Area command. He profusely thanked the 4th respondent and left when the 4th respondent was wearing off the applicant’s cloth for the purpose of

committing him to the cell.
(h) The applicant avers that the said Michael Ezeonu was released by the 4th respondent in the evening of the same day i.e. 8th May, 2009 but the applicant and the said Chukwuebuka continued staying therein for two days i.e. from the morning of the 8th May, 2009 to the morning of 10th May, 2009 when the applicant was brought out of the cell by the 4th respondent who ordered him together with others to sit down on the dirty are floor and face the 1st respondent who was comfortably sitting on a seat in the office of the 4th respondent
(i) Immediately the applicant sat down as the 4th respondent commanded, the 1st respondent brought out a document, handed it over to Mr. Michael Ezeonu and asked him to sign same. On the refusal of the said Michael to sign the document the 1st respondent collected it and put it in his breast pocket, told the said Michael that his helpers (the applicant and the said Chukwuebuka) would remain in the cell till he agrees to sign the document and went away with the 4th respondent.
(j) Briefly after the 1st and the 4th respondents went out of the office, the 4th respondent returned without the

1st respondent. The 4th respondent then brought out a petition written by the 1st and the 2nd respondents against the applicant, Michael Ezeonu and two others and told the applicant that the complaint of the 1st and 2nd respondents therein was that the said Michael Ezeonu unlawfully employed the applicant and others to beat the 2nd respondent and thereby caused her to lose two months pregnancy.
(k) After the 4th respondent explained to the applicant and others the said subject matter of the petition of the 1st and the 2nd respondents against them, the 4th respondent recorded the statements of the applicant and others. The 4th respondent thereafter asked the said Michael to go but led the applicant and others back to the cell wherein they were pushed and locked.
(l) On the 13th May, 2009 the 4th respondent brought out the applicant and others from the said cell, handcuffed them again and paraded them as criminals in Okija Street, Iyiowa Odekpe, the street of the applicant. The 1st respondent was matching side by side with the 4h respondent on that fateful day. The applicant and others were later pushed into the police vehicle and drove back to

the Police Area Command and the 4th respondent pushed the applicant and others into the cell wherein the applicant continued staying with hardened criminals till the 19th May, 2009 when the applicant and others were released on the intervention and pressure of the said Michael Ezeonu.
(m) In the early morning of 15th May, 2009 when the said Michael Ezeonu noticed that his protest against the unlawful detention of the applicant and others was not yielding positive result, he instructed his lawyer, IKENNA IZUEGBULEM, ESQ. to counter-petition the AIG, Zone 9, Umuahia for thorough and unbiased investigation of the false information given to the police by the 1st and the 2nd respondents against applicant and others. The said lawyer did as the said Michael Ezeonu instructed and the petition was submitted to the office of the said AIG in the afternoon of the 15th May, 2009. Photocopy of the file copy of the said counter-petition is hereto attached and marked Exhibit ‘A’.
(n) After the applicant was released alongside with others involved in the petition of the 1st and 2nd respondents the said Michael Ezeonu showed him a document entitled “terms of

settlement? which the said Michael told the applicant that it was earlier given to him to sign but he refused to do so and kept an unsigned copy back before it was brought again to him at the Police Area Command on the 10th May, 2009. The said Michael also told the applicant that the reason why he did not sign it was because it was made in exclusion of his lawyer by the 1st respondent and his lawyer, C.P. Oguchienti, Esq. The applicant later collected the copy shown to him by the said Michael Ezeonu and made a photocopy of same which is hereto annexed and marked Exhibit “B”.
(o) On the 19th May, 2009 when the applicant was released, the 1st respondent called him and others at the Police Area Command and warned them sternly to the effect that he does not want to see them help the said Michael Ezeonu in whatever manner otherwise they would keep on putting themselves in trouble,
(p) When the 1st respondent threw out the property which the applicant helped his father, Michael Ezeonu to repack in his flat some got damaged. As a result, the said Michael Ezeonu reported the 1st respondent to the police who later charged the 1st respondent to Atani

Magistrate’s Court for malicious damage of property and other offences. Photocopy of the charge sheet No.MGB/52C/2009, C.O.P. V. ANTHONY EZEONU is hereto attached and marked Exhibit “C’.
(q) It was after the 1st respondent was charged to the Court that he concocted the allegation in his petition to the 3rd and the 4th respondents against the applicant and others. The 1st respondent made the said complaint out of revenge and malice and he did not hide the fact that he was inducing the 3rd and the 4th respondents into the unlawful torture and detention of the applicant and others. He was laughing at them on the 13th May, 2009 when they were paraded as criminals on their street. He has told the said Michael, his father in the presents and hearing of the applicant and the 4th respondent that the applicant and others who helped him repack the property would continue being detained if he did not sign the purported terms of settlement of the Suit 0/685/2006, ANTHONY EZEONU & ANOR. AND MICHAEL EZEONU pertaining to No.18 Okija Street, Iyiowa Odekpe. The 4th respondent did not caution the 1st respondent against that statement and the act of the 1st respondent.

Rather the 4th respondent asked the said Michael Ezeonu to comply with the 1st respondent’s whim and caprice by signing the shown purported terms of settlement which the said Michael Ezeonu refused signing, hence the further detention of the applicant.
(r) For the period of eleven days i.e. from the morning of 8th May, 2009 to the evening of 19th May, 2009, the applicant was locked up by the respondents in the police cell that houses about twenty hardened criminals who tortured him therein. He did not sleep well because of mosquito bites and reeky environment of the cell. He was seriously starved and terribly traumatized.
(s) The 3rd and the 4th respondents know that there are both High Courts and Magistrate Courts beside the Police Area Command, Onitsha whereat the applicant was detained for the period of eleven days without trial. They deliberately refused to charge the applicant to an appropriate Court if they feel the applicant really committed the alleged offence in the petition of the 1st and the 2nd respondents.
(t) The distance between the said Police Area Command and the Courts aforementioned is not up to the radius of one

kilometre.”

The 1st and 2nd respondents swore in a joint counter-affidavit on 25th June, 2010 to wit:
?1. That I am the 2nd respondent in this application and the 1st respondent is my husband.
2. That t have the consent and authority of the 1st respondent to depose to this affidavit on our behalf. The facts I depose herein are both within my personal knowledge and what the 1st respondent informed me and I verily believe him.
3. That we are in receipt of the applicant’s motion on Notice for enforcement of his Fundamental Right and all Paragraphs of applicant’s facts in support of the motion, as they concern the 1st and 2nd respondents are false as they contain tissues of lies and stories concocted by the applicant to suit his purpose.
4. That in answer to the paragraphs of the applicants said statement, I state that sometime in May 2009. I was alone in the house when suddenly I started hearing an unusual noise in our premises. This was immediately followed by a big bang on the front protector leading to our flat. As I opened the door to ascertain who was banging on the door, I saw about five strange looking men. I could only

recognize the applicant who lives in the neighbourhood.
5. That when I opened the door and demanded to know the reason for the bang on the door, one of them retorted “where is your husband Anthony Ezeonu but before I could answer that my husband was not around, one of them started beating and kicking me, until I fell down and hit my stomach on the ground and immediately I started bleeding as I was then, 3 weeks pregnant.
6. That consequent upon the fact above, I addressed a petition dated 11th May, 2009, to the Area Commander, Nigeria, Police, Onitsha, who their upon ordered the arrest of the applicant and one Chukwuebuka Ezeukwu who led the group.
7. That my husband, the 1st respondent had earlier addressed a petition to the Commissioner of police, Anambra State complaining against a similar invasion of the premises by the applicant and the 1st respondent’s father Michael Ezeonu, wherein items of property of the 1st & 2nd respondents were carted away by the 1st respondent’s said father, aided by the applicant, Chukwuebuka Ezeukwu and the other thugs.
8. That following the injury sustained, consequent upon the beatings by the applicant,

Chukwuebuka Ezeukwu and the other thugs, I was, via Police Medical report, referred to the Onitsha hospital, Onitsha, whereat I was accordingly examined by a doctor who issued me with a report. Copy, each of the Petitions addressed to both the Commissioner of Police Anambra State and that, to the police Area Commander, Onitsha, by the 1st respondent and my good self, respectively dated 20th April and 11th May, all of 2009, as well as the police Medical Report, dated 14th May, 2009 issued to me, in consequence of my report, are herewith annexed and Marked as Exhibit A, Al & A2, respectively.
9. That the 1st respondent’s father Michael Ezeonu, apparently feeling irked by our petitions to the police and suspecting police arrest, detention and possible criminal prosecution against him, the applicant and his hired thugs, encouraged and sponsored the applicant to bring this action.
10. That the 1st respondent informed me and I verily believe him as follows:
(a) That the 1st respondent did not at any time, thank the 4th respondent for any reason whatsoever as whatever the 4th respondent did to the applicant was at the discretion of the 4th

respondent and never upon any command of the 1st and 2nd respondents.
(b) That the 1st respondent neither was given an executive seat by the 4th respondent nor observe when the applicant was brought out from any cell by the 4th respondent and was ordered to sit on bare floor.
(c) That the 1st respondent did not at any time compel Mr. Michael Ezeonu to execute any document either in presence of the 4th respondent on anybody at all, neither did the 1st respondent threaten that the applicant or any body else would be detained until they execute any document whatsoever.
(d) That the 1st respondent is not aware that the applicant was ever paraded on handcuffs by the 4th respondent as same is a blatant falsehood.
11. That the applicant’s depositions in this case, most of which are fabricated falsehood, orchestrated by Mr. Michael Ezeonu, their sponsor who hired the applicant and others as thugs, were made simply to divert attention from the assault and injury the applicant and his fellow thugs inflicted on me on the day they invaded our premises.
12. That if at all the applicant was ever detained for any number of days by the 4th

respondent, it is not within the knowledge of the 1st and 2nd respondents as the 1st the 2nd are not detention authorities.
13. That I know as of fact that the applicant, who loafs around the streets, has no visible means of livelihood, much more financing a suit in Court.
14. That the la respondent has for sometimes now been engaged in legal battle with his father Mr. Michael Ezeonu, who since about 1991, deserted his matrimonial home, abandoning the 1st respondent, the 1st respondent’s mother and the 1st respondent’s other siblings, who the 1st respondent’s mother single-handedly saw to their education and trainings, following he said desertion.
15. That the 1st respondent’s said mother died sometimes in 2005 and since then the said 1st respondent’s father have been making frantic efforts to forcefully move into the premises with a mistress he claimed he married, even when the 1st respondent’s mother was alive, as well as the children claimed to have been begotten of the said new marriage.
16. That the 1st respondent and his said siblings, have refused to be evicted from the premises in preference for their said father and his newly

acquired wife and children, moreso when the claim as to ownership of the said premises, is still pending in Court and yet to he determined.
17. That the said 1st respondent’s father Mr. Michael Ezeonu, despite the pendency of the suit in Court, Das resorted to all manner of blackmail and trumped-Up, criminal charges and allegations, against the 1st respondent in his desperate bid to frighten the 1st respondent and his siblings, out of the premises. One of such trumped-Up charges against the 1st respondent of depicted in Exhibit “C” of the applicant’s affidavit in support of his application.
18. That the 1st & 2nd respondents after the complaints to the police aforesaid did not do any further thing as the arrest and detention of persons, including the applicant is only the prerogative of the police.
19. That Exhibit ?B? annexed to the applicant’s Verifying Affidavit in Support of Motion on Notice, does not emanate from our Counsel, as same must have been forged. So our Counsel C.P. Oguchienti Esq, informed me and I verily believe him.
20. That the documents annexed as Exhibit in the affidavit of the applicant, are not within

the personal knowledge of the applicant, as those relate to the dispute in Court, between the 1st respondent and his father, Mr. Michael Ezeonu.
21. That I urge the honourable Court to dismiss the suit of the applicant as being most frivolous and a gold-digging exercise simply orchestrated and financed by Mr. Michael Ezeonu, in his avowed bid to deal with the 1st respondent.
22. That I make this oath in good faith conscientiously believing the content to be true and correct in accordance with the Oath’s Act.”

The 1st and 2nd respondents relied on a Further Counter affidavit sworn on 24th January, 2011 to wit:
?1.. That I am the 2nd respondent herein and the 1st respondent is my husband.
2. That I have the consent and authority of the 1st respondent to depose to this affidavit on our behalf. And the facts I depose hereto are both within my personal knowledge and as informed me by the 1st respondent and I verily believe him.
3. That I was infact two weeks pregnant at the time the applicant and his group assaulted me in our house, leading to my miscarrying (sic) the baby.
4. That at the time I was making my report to the

police, I was not pregnant as I had already miscarried (sic) the baby at that time.
5. That it was thereafter, after thorough medical examination and treatment that I took in, in the month of June, 2009 and delivered my baby on the 3rd of March, 2010.
6. That it is idle and irresponsible or an illiterate applicant to describe in his further affidavit, a duly qualified medical Doctor as “Purported Doctor who apparently concocted a medical report as per our Exhibit “A”, as stated by the applicant in his further affidavit.
7. That the applicant?s sponsor of this case, Mr. Michael Ezeonu, who deserted his matrimonial home since over 15 years does not live with us, (l hardly see him) and could not have known when I became pregnant nor when I delivered my baby.
8. That the applicant whom I never met except the day they attacked me, does not live with us and does not know we live in our house, except the falsehood supplied to him by Mr. Michael Ezeonu. Little wonder the applicant claimed in his affidavit that I delivered a baby girl when infact my baby is a boy. Copy of birth certificate, issued to me by the National Population Commission

upon my said delivery, is herewith annexed as Exhibit ?C?.
9. That it is never to my knowledge that the applicant was ever paraded by any body on the street as same is a blatant falsehood. Though the applicant, in his further affidavit, failed to mention who paraded him and for what purpose.
10. That the fact referred to by the applicant in paragraph 10 of his further affidavit, must have been a typographical error as it is not arguable that he invaded our home. And that was why he was invited by the 3rd and 4th respondents.
11. That I make this oath in good faith conscientiously believing the content to be true and correct in accordance with the Oath’s Act.”

The 3rd and 4th respondents, though served the process did not counter these facts which have remained unchallenged. Facts not challenged nor countered are deemed admitted. See Andony vs. Ayi II & Ors (2004) All FWLR (Pt.227) 444, at 482; Elendu vs. Ekwoaba (1995) 3 WLR (pt 386) 704 at 747; In Re Odutola (2002) FWLR (Pt.119) 162 at 1633 and Iyama vs. FMBN (1999) 13 NWLR (Pt.634) 178 at 188.

?The learned trial Judge rendered the decision now subject of this appeal

on 29th September, 2011. The learned trial Judge held at page 151 lines 6 to page 154, lines 1-8 of the printed record as follows:
?It is my finding based on the averments of the 2nd respondent in paragraphs 5, 6 and 8 of their counter-affidavit to the effect that the alleged beating and kicking of the 2nd respondent which caused her harm is a criminal offence – in respect of which she is at liberty to lay her grievances to the police as she did in Exhibit ?A1?. Exhibit “A2? is a medical report issued to her for the said beating and miscarriage of her pregnancy.
The 1st respondent is also at liberty to report to the police for alleged unlawful invasion of his premises by the applicant and he 1st respondent’s father – which led to the petition in Exhibit ?A?.
It therefore follows from the foregoing that although the evidence of the IPO is lacking in this suit, it is trite that it is the duty of the citizens of Nigeria to report cases of commission of crime to the police for their investigation.
What happens after such report is entirely the look out of the police. In other words, citizens of Nigeria cannot

be held culpable for doing their civic duty unless it was done mala fide. See Fajemirokun vs. C.B. Nig. Ltd. & Anor. (supra) Page 595 at 596 ratio 10.
It is further trite that liability does not attach to a private citizen who merely names a suspect See Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt.518) page 635.
It is interesting to further observe that a cursory study of Exhibit “A” shows arrest of 1st respondent by his father, Mr. Michael Ezeonu and counter arrest. It is not an over statement to hold that this suit was premised on the crisis and enmity existing in the family of 1st respondent and his father, Mr. Michael Ezeonu.
In view of the foregoing, issue No.1 is hereby resolved in favour of the 1st to 2nd respondents.
On Issue No.2 Which is whether the applicant is entitled to any of the reliefs sought?
Having earlier resolved that the applicant was sponsored by 1st respondent’s father to file this suit on some spurious facts. The applicant claimed in paragraph 12 of his further affidavit that Mr. Michael Ezeonu informed me about the facts. I deposed to in paragraphs 10 and 11.”
It is pertinent to note that one of such

notorious spurious facts can be seen with recourse to paragraph 13(a) to (d) of the Applicant?s further affidavit wherein he deposed that Exhibit ?A2?, medical report was forged and that 2nd respondent gave birth to a baby girl.
Conversely, Exhibit ?C? annexed to paragraph 8 of the 2nd respondent’s further counter-affidavit debunked the above averment and clearly stated that 2nd respondent gave birth to a bouncing baby boy on the 1st day of March, 2010. I wish to further observe Exhibit ?C? is a birth certificate issued by the National Population Commission to the 2nd respondent. I therefore hold that it is not only authentic but reliable.
In adopting my discussion on issue No.1 above, I wish to further add that Exhibits “A” and “A1?, petitions addressed to the 3rd respondent by 1st and 2nd respondents are criminal in nature which empowered the 4th respondent to arrest and detain the applicant for interrogation. The Court of Appeal in the case of Chris Uba vs. A.G. Anambra State (2005) 15 NWLR (Pt.947) 44 at Page 67 held thus:
?”For a person to go to Court to be shielded against criminal

investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation, etc.”
From the foregoing, I am of the firm view that Mr. Ezeonu who is not a party in this suit has sponsored this suit vide the applicant as a shield to criminal investigation of Exhibit ?A1?. Finally, I hold that the applicant has failed to make out a proper case of infringement of his fundamental right. In the circumstances, the applicant is not entitled to the reliefs sought in this application.
This suit lacks merit, it hereby fails and is accordingly dismissed.”

In Thomas Cole Conteh & Ors. vs. The Queen (1956) A.C 158, Lord Somervell of Harrow held at page 163 as follows:
?The gist of the offence charged is that the accusation should be false to the knowledge of those conspiring. It is of course, no offence for people who believe that a crime has been committed, to agree to take steps with a view to a prosecution.”

The reasoning of the learned trial Judge regarding the case against the 1st and 2nd respondents might be supported by the weight of

decided authorities cited by the learned trial Judge. However, the learned trial Judge did not advert his mind to the unchallenged affidavit evidence of the appellant that the 3rd and 4th respondents had detained him from 8th May, 2009 to 19th May, 2009, a period of eleven days, that they tortured him without his being arraigned before a Magistrate nor a High Court which was a violation of the provisions of Section 34(1)(a) and 35(4) to (5) of the Constitution of the Federal Republic of Nigeria, 1999. Three things were involved in the proceedings in the Court below. First is the fact that the arrest of the appellant suspected to have committed a crime was not for the purpose of bringing him to a Court nor was it to such an extent as was reasonably necessary to prevent his committing a criminal offence which is permissible under Section 35(1)(c) of the Constitution. The second involved his detention beyond the period stipulated in Section 35(4)-(5) of the Constitution. The third aspect is the torture of the appellant during the period of his arrest and detention by the 3rd and 4th respondents which is prohibited under Section 34(1)(a) of the Constitution. The

3rd and 4th respondents did not for any moment appear in the Court below to dispute these violations by way of a counter affidavit. I shall refer to Articles 5, 6, 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap.A9, 1983 which came into effect on 17th March, 983. The articles are covered in mandatory terms as follows:
“ARTICLE 5
Every Individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
ARTICLE 6
Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Xxxxxxxx
ARTICLE 12
1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law…”
The African Charter

constitutes part of the domestic laws of Nigeria. See Abacha vs. Fawehinmi (2000) 4 S.C (Pt 2) 1 at 21 and Ogugu V. The State (1994) 9 NWLR (Pt.366) 1. Part of the Charter provides as follows:
?WHEREAS a Charter entitled the “African charter on Human and Peoples, Rights” has been duly adopted by diverse States in Africa and Nigeria is desirous of adhering to the said Charter.
AND WHEREAS it is necessary and expedient to make legislative provision for the enforcement in Nigeria of the said Charter by way of an Act of the National Assembly:
1. Enforcement of provisions of African Charter on Human and Peoples’ Rights.
As from the commencement of this Act, the provisions of the African Charter on Human and Peoples Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.?
The learned trial Judge was bound to take judicial notice of the charter alongside the Constitution and the Fundamental Rights

(Enforcement Procedure) Rules, 1979 in the determination of the controversy between the parties. Section 122(1),(2)(a) of the Evidence Act, 2011 provided as follows:
?(1) No fact of which the Court shall take judicial notice under this section needs to be proved
(2) The Court shall take judicial notice of:-
(a) All laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria.?
In Finnih vs. Imade (1992) 1 SCNJ 87, Balakin JSS held at pages 02 to 103 as follows:
“The Court of Appeal in its Judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No. N.S.L.N.72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:
“(m) In the interest of peace and order, all allotment of plots, erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.”
?This is inter-alia to show that the

plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoruyi who claimed the land and asserted that he derived his title from the Oba of Benin through Ward “A” because at one time the plot Allotment Committee Ward “A” asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to clear once and for all the confusion that has arisen about grants relating to Ward “A” and Ward ?17?.
The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.
By this reference it cannot be construed to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by Counsel for the defendant/appellant. It must he understood that the Court of Appeal is entitled to take judicial notice of this edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The

answer to issue No.4 formulated by the defendant/appellant is YES.
Section 73(1)(a) of Evidence Act provides:
“73(1) The Court shall take judicial notice of the following facts:
(a) All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria….”
Section 4 of the Police Act Cap. P19, Laws of the Federation of Nigeria Vol. 13,2004 provides as follows:
?4. General Duties of the Police:
The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
In the course of carrying out this statutory functions or duties police officers do arrest or apprehend offenders and take them to police stations for interrogation or further inquires. A suspect in police custody may be

released before being discharged or arraigned in a Court of competent jurisdiction. Alternatively, the police may arrest and detain a suspect till he is arraigned in a Court of competent jurisdiction. In Alderson vs. Booth (1969) 2 All E.R271, Lord Parker, sitting in the Queen’s Bench Division explained what constitutes an arrest by a policeman at page 273 as follows:
“There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying “I arrest you” without any touching, provided of that course that the accused submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which, in the circumstances of the case, were calculated to bring to the accused’s notice, and did bring to the accused’s notice, that he was under compulsion and thereafter he submitted to that compulsion.
Looked at in that way, I for my part have little

doubt that just looking at the words used here “I shall have to ask you to come to the police station for further fests” they were in their con words of command which one would think would bring home to an accused that he was under compulsion. But the Justices here had the evidence not only of the police officer but of the respondent, and they were not satisfied, having heard him, that it had been brought home unequivocally to him that he was under compulsion. I confess it surprised me he was believed, but believed he was when he said he said or conveyed that he was not going to the police station because he thought he was under compulsion, but was going purely voluntarily. It seems to me that this is so much a question of act for the Justices that, surprising as this decision is, I feel that this Court cannot interfere.
I would only say this, that if what I have said is correct in law, it is advisable that police officers should use some very clear words to bring home to a person that he is under compulsion.
?It certainly must not be left in the state that an accused can go into the witness box and merely say “I did not think I was under

compulsion.” If difficulties for the future are to be avoided, it seems to me that by far and away the simplest thing is for a police officer to say “I arrest you.” If then the accused goes to the police station after hearing those words, if seems to me that he simply could not be believed if he thereafter said “I did not think there was any compulsion, I was only going voluntarily.” Accordingly, I would dismiss this appeal.”
Blain, J. agreed at page 273 as follows:
“I agree, I would add that I have considerable sympathy with any police officer who believes that he has arrested a person with good reason, and finds that he has failed to do so through using words selected with a laudable desire to perform his duties with the maximum of courtesy. That, however, is of far less importance than the vital right of the subject to know when he is compellable and when he is free. I agree that this Court cannot Interfere.”
Donaldson, J., concurred at pages 273-274 to wit:
“I too agree in particular that courtesy is to be encouraged and that police officers in these circumstances are faced with a difficult decision to make. But it is

particularly desirable that clear words should be used in circumstances in which, as a result of the effect of drink or drugs, a person’s understanding may be dulled.”
In Dallison vs. Caffery (1964) 2 All E.R.610, Lord Denning M.R. held at pages 616 to 617 as follows:
?The taking of the plaintiff round London:- Counsel for the plaintiff next said that, even if the arrest was justifiable, nevertheless it was not lawful for the defendant to take the plaintiff to 10, Millfields Road and not to take him straight back to the police station at Dunsatable. This raises an interesting point as to the power of the police in regard to a man whom they have in custody. Counsel for the plaintiff says that a constable has no more power than a private person. I cannot agree with this. So far as arrest is concerned, a constable has long had more power than a private person. If a constable makes an arrest without warrant, he can justify it on the ground that he had reasonable cause for suspecting that the accused had committed a felony. He does not have to go further (as a private person has to do) and prove that a felony has in fact been committed. So far

as custody is concerned, a constable also has extra powers. If a private person arrests a man on suspicion of having committed a felony, he cannot take the man round the town seeking evidence against him; see Hall vs. Booth (1). The private person must, as soon as he reasonably can, hand the man over to a constable or take him to the police station or take him before a Magistrate; but so long as he does so within a reasonable time, he is not to be criticized because he holds the man for a while to consider the position; see John Leurs & Co., Ltd. vs. Time (2). A constable, however, has a greater power. When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he says that he was working, for there he may find persons to confirm or refute his alibi. The constable can put the suspect up on

an identification parade to see if he is picked out by the witnesses. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice; by which I mean, of course, justice not only to the man himself but also to the community at large. The measures must, however, be reasonable. In Wright vs. Court (3) a constable held a man for three days without taking him before the magistrate. The constable pleaded that he did so in order to enable the private prosecutor to collect his evidence. That was plainly unreasonable and the constable?s plea was overruled. In this case, it is plain to me that the measures taken were reasonable. Indeed, the plaintiff himself willingly cooperated in all that was done. He cannot complain of it as a false imprisonment. I hold, therefore, that the judge was right in rejecting the claim of false imprisonment.?
What about torture?
Torture is defined in Black’s Law Dictionary, 9th Edition page 1627 as: The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure…

?By torture I mean the infliction of physically founded suffering or the threat immediately to inflict it, where such infliction or threat is intended to elicit, or such infliction is incidental to means adopted to elicit, matter of intelligence or forensic proof and the motive is one of military, civil, or ecclesiastical interest.” James Heath, Torture and English Law 3 (1982).?
Regulations 340 to 341 Nigeria Police Regulations, 1968 commencement date being 1st April, 1968 provides as follows:
“340. The attributes of a police officer:
A police officer is required to have a thorough understanding and knowledge of the laws, and of police orders and instructions, and to develop the attributes of:-
(a) Efficiency and thoroughness through meticulous attention to details in he performance of his duties.
(b) Courtesy, forbearance and helpfulness in his dealings with members of the public;
(c) Tact, patience and tolerance, and the control of his temper in trying situations;
(d) Integrity, in refusing to allow religious, racial, political, or personal feelings, or other considerations, to influence him in the

execution of his duties.
(e) Impartiality, in the avoidance of feelings of vindictiveness, or the showing of vindictiveness towards offenders.
(f) Strict truthfulness in his handling of investigations, and in the giving of evidence.
341. Liability for misuse of powers:
In the individual exercise of his powers as a police officer, every police officer shall be personally liable for any misuse of his powers, or of for any act done in excess of his authority.?
To arrest and detain a suspect for eleven days and torture him or her during such period of incarceration constitutes a breach of Section 34(1)(a) and 35(4)-(5) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. By regulation 341 of the Police Regulations, 1968 such a police officer is to be held personally liable for the misuse of statutory powers or as acts done in excess of authority. The 3rd and 4th respondents were police officers. They had the responsibility to justify why they tortured the appellant in the course of his detention for eleven days contrary to the provisions of Section 34(1)(a) and 35(1)(4)-(6) of the Constitution. See Watters vs.

W.H. Smith & Son Ltd. (1914) 1 K.B. 595. I wish to draw attention to the provisions of Section 1(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended which provides as follows:
“1(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any Persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this constitution.
(g) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency, be void.?
Police officers are authorities or persons that are bound by the provisions of the Constitution hence any conduct or acts they do or commit that are contrary or inconsistent with provisions of the Constitution, the Police Act or Regulations may be declared by a Court of competent jurisdiction null and void, in which case, that may be held to constitute an abuse of legal

process as to render the police officers concerned personally liable in damages. In Shaaban Bin Hussien vs. Chong Fook Kam (1970) A.C. 942 no reasonable suspicion existed at the time the plaintiffs were arrested and detained by the police officers. Lord Devlin held at pages 946 to 947 thus:
“The law on arrest is contained in the Constitution and the Criminal Procedure Code. For the purposes of this case if is enough to say that under Section 23(1)(a) of the Code the police were empowered to arrest the plaintiffs if a reasonable suspicion existed of their having been concerned in an offence of reckless and dangerous driving causing death. In any case of wrongful arrest it is important to identify at the outset the precise time of arrest, not only for the purpose of Article 5, Clause 3, of the Constitution, which provides that an arrested person shall be informed as soon as may be thereafter of the grounds of his arrest but also because it is the time when the existence of a reasonable suspicion must be proved. The statement of claim alleges in paragraph 6 that “both plaintiffs were stopped by the police at about 7am and after prolonged questioning

were taken to Bukit Tingi Police Station.” In paragraph 7, it is alleged that at about 6pm on the same day both the plaintiff were locked up in separate cells at Mentakab Police Station and kept falsely imprisoned.
An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes It clear that he will, if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make inquiries. The moment when it occurred in this case was between 8.05 and 9am on July 11 when (their Lordships have quoted the relevant passage from the evidence) the corporal told the plaintiffs of the existing suspicion and said that he had instructions to detain them. Mr. Gratiaen, for the appellants, has very fairly conceded that, notwithstanding the pleading and their Lordships doubt whether it can be construed as alleging an arrest before 6pm – the plaintiffs were arrested by the corporal not later than 9am.” On the question of the damages awarded by the Federal High Court of

Malaysia, Lord Devlin held at pages 949-951 as follows:
“The sum of $2,500 for each plaintiff seems to their Lordships on any view to be extremely high. Judging by the special damage pleaded in the statement of claim, it is equivalent to five month’s wages with overtime. On the view that the Board has taken of the facts of this case, this is undoubtedly excessive. On this view, the scope for compensatory damage’s is limited; they must be confined to approximately nine hours’ detention in the company of the police. The Court is not in this category of case confined to awarding compensation for loss of liberty and for such physical and mental distress as it thinks may have been caused. It is also proper for it to mark any departure from constitutional practice, even if only a slight one, by exemplary damages; but these do not have to be large. The subject has been considered by the House of Lords in Rookes vs. Barnard (1964) A.C. 1129, 1221. The Board approves also of what was said on this topic by Scott, L.J. in Dumbell vs. Roberts. In particular, the Lord Justice said, at p.329:
?”The more high-handed and less reasonable the detention is, the larger

may be the damages; and, conversely, the more nearly reasonably the defendant may have acted and the nearer he may have got to justification on reasonable grounds for the suspicion on which he arrested, the smaller will be the proper assessment.”
Their Lordships would not in any event think it right in this case to substitute a figure of their own. What is necessary by way of an award to ensure respect for constitutional principles is a matter that should be settled, at least in the first instance, by the Courts of Malaysia. Their Lordships have said “in any event” because there is in fact a formidable obstacle to a review of the damages by any Court. At the conclusion of the argument in the Federal Court, the Court said that it would allow the appeal giving its reasons later, and then adjourned before judgment was entered so that Counsel might agree upon the quantum of damages. When judgment was entered the figure of $5,000 was awarded as agreed damages. The agreement must have been reached on a view of the case which the Board has found to be incorrect. Whether this or any other of the circumstances in which the agreement was made are such as to

permit a review is a matter for the Federal Court to determine. The case should be remitted to the Federal Court for it to decide whether it is open to it to review the amount of the damages, and, if so, to settle the appropriate figure.
In discussing reasonable suspicion their Lordships, it will be observed, have referred to several English authorities as illustrative of the test to be applied. In so doing their Lordships have not ignored the observation of Suffian, F.J. that the existence of the local written law makes it unnecessary and, indeed, confusing to refer to English authorities. In saving this the judge was echoing remarks that have several times in the past been made by judges when dealing with codifying statutes; in particular by Lord Herschell in Bank of England vs. Vagliano Brothers (1891) A.C. 107 who said at p.145 that “an appeal to earlier decisions can only be justified on some special ground.”
?It is quite clear that the law of Malaysia has to be taken from the Code and not from cases on the common law. But where, as here, the Code is embodying common law principles, decisions of the Courts of England and of other Commonwealth

countries in which the common law has been expounded, can be helpful in the understanding and application of the Code. Their Lordships have confined their citations within these limits.
Their Lordships wilt accordingly report to the Head of Malaysia their opinion that the case should be remitted to the Federal Court for it to decide whether it is open to it to review the amount of the damages and, if so, to settle the appropriate figure in the light of their Lordships’ judgment and vary its order accordingly.”

?There is no evidence that the appellant acquiesced to his torture nor continuous detention by the 3rd and 4th respondents for eleven days in breach of constitutional and statutory provisions. In Rookes vs. Barnard & Anor. (1964) A.G. 1129 the House of Lords determined the kind of damages that a plaintiff whose constitutional and legal rights had been violated or breached by servants of the government if found liable. Lord Devlin held at page 1226 as follows:
“The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category – I say this with particular

reference to the facts of this case – to oppressive action by private corporations or individuals. Where one man is more powerful than another it is inevitable that he will try to use his power to gain his ends: and if his power is much greater than the other’s, he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. It is true that there is something repugnant about a big man bullying a small man and, very likely, the bullying will be a source of humiliation that makes he case one for aggravated damages, but it is not, in my opinion, punishable by damages.”
See also Williams vs. D.T.N (1990) 1 SCNJ 1 at 22-23; Odiba vs. Muemue (1999) 6 SCNJ 245 at 260.

The appellant did not claim exemplary damages hence, though a breach of his fundamental rights had been established against the 3rd and 4th

respondents, the appellant cannot be granted what he did not claim. See Ekpenyong vs. Nyong (1975) 2 S.C 71; Egri vs. Uperi (1974) 1 N.M.L.R 22; Nigeria Housing Development Society vs. Mumiuni (1977) 2 S.C 57 at 81 and Mangibo vs. Ogride (2009) 4 NMLR 357 at 362.

But the Court of Appeal has the power to interfere with the verdict of a lower Court under the circumstances provided in Order 4 Rule 9(1)-(4) of the Court of Appeal Rules, 2016 as follows:
“9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-rule

(2) of this Rules affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
(b) Reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.”

A substantial wrong and a miscarriage of justice was occasioned by the learned trial Judge in the Court below against the appellant. This led to the complete dismissal of the appellant’s claims hence this Court has to interfere to remedy the wrong. For all these and the fuller reasons

given by my learned colleague, I also allow this appeal. I abide by the orders made in favour of the appellant.

Appearances

No appearance for Appellant.For Appellant

AND

N.N. Onuzurike for the 1st and 2nd Respondents.For Respondent