SUNNY UBOCHI v. CHIEF GODWIN EKPO & ORS
(2014)LCN/7266(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of June, 2014
CA/C/31/2012
RATIO
WORDS AND PHRASES: REASONABLE SUSPICION
Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or likely to commit the offence.
“An arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for the breach of his fundamental rights.”
Okaro vs. C.O.P. & Anor. (2001) 1 CHR page 407.
However, it should be noted that the police does not have unbridled powers to deprive citizens of their liberty while the case against them is still being investigated: Johnson vs. Lufadeju (2002) 1 NWLR (Pt.768) page 203 per UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
SUNNY UBOCHI – Appellant(s)
AND
1. CHIEF GODWIN EKPO
2. SUNNY IBUOT
3. IBE ORKATER – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa lbom State sitting in lkot Ekpene delivered on 26th of January, 2009 granting the Applicants the reliefs sought as follows:
“(a) A declaration that the arrest and detention and/or threat at arresting and detaining the Applicants by the Respondents amount to violation or breach of the Applicants Fundamental Rights to wit: right to dignity of human person, right to personal liberty, right to fair hearing, right to freedom of movement as guaranteed in Section 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria.
(b) An order for the Respondents to pay jointly and severally the sum of Five Million Naira (N5,000,000.00) as damage or compensation to the Applicants for breach of or “threat to the Applicants’ Fundamental Rights.
(c) An order of mandatory injunction restraining the Respondents from harassing, arresting, detaining the Applicants or otherwise violating the Applicants’ Fundamental Rights in respect of the false and fraudulent complaint.
(d) And for any further order or relief as the Honourable Court may deem fit to make in the circumstance.”
Being dissatisfied the Appellant filed a notice with 10 grounds.
The facts of this appeal are as follows:
The Appellant was contacted by the 4th Respondent to join in supplying diesel to Daewoo Nig. Ltd., Eket. The said supply of diesel was to be made in execution of a Local Purchase Order from Daewoo Nig. Ltd. which said LPO was facilitated by one Walter Francis. The Appellant and 4th Respondent raised money jointly to buy 13620 litres of diesel for supply to Daewoo Nig. Ltd., Eket. The said diesel was loaded into a truck driven by one Gogo and on arrival at Eket, close to the entrance gate of Daewoo Nig.Ltd., the youth restiveness was simulated by Walter Francis which prevented the truck, driven by Gogo, from getting to the Daewoo Nig. Ltd. gate. The said Walter Francis convinced the Appellant and 4th Respondent to hand the truck over to him to deliver to Daewoo Nig. Ltd., Eket. The Appellant and 4th Respondent handed the truck to him and left for Aba. The said Walter Francis discharged the diesel in petrol filling stations belonging to the 1st and 2nd Respondents. The Appellant suspected fowl play when he could neither recover the diesel nor his money. The Appellant reported the incident to the police at Osisioma Ngwa and the Police arrested Gogo who took the police to the filling stations belonging to the 1st and 2nd Respondents where the diesel was discharged. When the 1st and 2nd accused were told that the police came to their filling stations they petitioned the 5th – 7th Respondents that the case incidented at Osisioma Police Station be transferred to the Nigerian Police, Zone 6, Calabar.
The Appellant filed his Appellant’s brief on the 12th of April, 2012 and articulated three issues for determination as follows:
“1. Whether the trial Judge was right when he assumed jurisdiction to entertain this action (Grounds 1, 2, 3 & 4).
2. Whether the trial Judge was right in awarding to the Applicants what they did not ask from the Court when the trial Judge awarded two million Naira (N2,000,000.00) to each of the Applicants (Grounds 5 & 10).
3. Whether the judgment of the Court below was not perverse and against the weight of evidence when the trial Court held that 1st-3rd Respondents had breached Applicants’ fundamental rights (Grounds 6, 7, 8 & 9).”
The 1st and 2nd Respondents filed their brief on 19th July, 2012 but deemed properly filed and served on 26th February, 2013. The 1st and 2nd Respondents articulated their own three issues for determination as follows:
“1. Whether the Applicants’ (1st and 2nd Respondents) application for the enforcement of their fundamental rights was competent before the Lower Court.
2. Whether the learned trial Judge was right in awarding N2million to each of the Applicants (1st and 2nd Respondents).
3. Whether the judgment of the Lower Court was supported by the evidence before the court.”
The preliminary objection in this appeal was abandoned and of no effect as the Record of Appeal complained of was remedied by a motion filed on 3rd of September, 2012. This motion was taken on the 26th of February, 2013 and the order praying for the Record of Appeal to be deemed as properly filed and served was granted.
I will utilize the issues as articulated by the Appellant in determining this appeal. The learned Counsel for the Appellant, however, did not paginate his brief as required by the rules of this Court. I will determine first issue 1 and 2 and lastly issue 3. Issue one is one on the jurisdiction of this Court to hear this matter ab initio in the Court below.
ISSUE ONE:
Learned Counsel for the Appellant submitted that the learned trial Judge was in error when he failed to resolve the issue of jurisdiction raised in the Lower Court. The duty of the Court is to determine all issues placed before it. See Omoru vs. Akinyede (2007) All FWLR (Pt.355) page 468. Counsel submitted that the 3rd Respondent raised the issue of the incompetence of the action because the 1st and 2nd Applicants filed one application for the purpose of securing their fundamental rights.
The trial Judge ought to have properly determined one way or the other the question of jurisdiction before determining other issues. See Dapialong vs. Dariye No.2 (2007) All FWLR (Pt.373) page 81.
The trial Judge glossed over this all important issue and stated in passing:
“That the Applicants filed a single motion but deposed to different affidavit to ventilate their grievances. Their affidavits are virtually similar.”
The trial Judge failed to make any pronouncement as to: Whether the filing of a single motion by the two Applicants was Proper or not?
Learned Counsel argued that where the condition of competence exists, it is not a mere irregularity which can be cured by consideration of substantial justice but a fundamental defect, fatal to the adjudication. See Odofin vs. Agu (1990) 3 NWLR (Pt.229) page 350. Counsel submitted further that Section 42(1) of the 1999 Constitution (as amended) provides as follows:
“Any person who alleges that any of the provisions 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.”
This provision pertains to an individual. It is, therefore, improper for two or more persons to file one application: R.T.F.T.C.I.N. vs. Ikwecheghi (2000) 13 NWLR (Pt.683) page 1. Counsel reiterated that for a Court to have competence to hear a matter, certain conditions must coexist. These conditions have been laid down in Madukolu vs. Nkemdilim (1962) 2 SCNLR page 341:
“(a) The Court is properly constituted as regards number and qualification of members of the bench.
(b) The subject matter is within the Court’s jurisdiction.
(c) The case came before the Court initiated by due process of law and upon fulfillment of any condition precedent to exercise of the Court’s jurisdiction.”
See also Attorney-General, Kano State vs. Attorney-General of the Federation (2007) All FWLR (Pt.364) 238 at 251-252; WAEC vs. Adejanju (2008) 9 NWLR (Pt.1092) 271 at 294.
Counsel submitted that the filing of a single/joint originating process by the 1st and 2nd Applicants at the Court below to ventilate their grievances ab initio robbed the learned trial Judge of the jurisdiction to entertain the matter because it was a misjoinder/wrong joinder of action and thus failed the test of due process as enunciated in Madukolu vs. Nkemdilim (supra). Counsel also stated that the originating process shows that it did not contain facts which will be verified by an affidavit as required by Fundamental Rights Enforcement Procedure Rules, 1979. Rules of Court are meant to be observed and followed. Where these rules are mandatory, non-compliance will only make the whole proceedings a nullity. See Equity Bank of Nig. Ltd. vs. Halilco (Nig.) Ltd. (2006) All FWLR (Pt.337) page 438.
It is, therefore, clear that the joint originating process that contained no facts which could be verified by an affidavit was brought in disregard to the requirement of the law and procedure for initiating such an action and was, therefore, incompetent. Counsel urged Court to resolve this issue on behalf of the Appellant.
In response, the learned Counsel to the 1st and 2nd Respondents submitted that their action was commenced in compliance with the provisions of the Fundamental Rights Enforcement Procedure Rules, 1979. They filed a motion exparte for leave to apply for an order for the enforcement of their fundamental rights as guaranteed by Section 34, 35 and 36 of the 1999 Constitution. The 1st and 2nd Respondents thereafter filed their own separate affidavit deposing to facts within their own knowledge. Order 2 rule 2(3) provides:
“2(3) Every party to the application must supply to any other party copies of the affidavit which he proposes to use at the hearing.”
Counsel submitted further that the 1st and 2nd Respondents filed a joint application but filed separate affidavits. The case of R.T.F.T.C.I.N. vs. Ikwecheghi (supra) cited by the Appellant is not on all fours with the instant case. There is no provision under the Fundamental Rights Enforcement Procedure Rules, 1979 which prevents joinder of Applicants in an application for enforcement of fundamental rights particularly where the facts relied upon are similar and a common cause of action is established as in this case. Counsel referred the Court to the case of Uzoukwu vs. Ezeonu II & Ors. (1991) 6 NWLR (Pt.200) page 768 where Nasir, PCA (as he then was) held:
“Rules of Court are to be obeyed no doubt, but where the rules themselves allow for various exceptions, the Court will not infer absolute mandatory effect which will nullify a trial.”
Counsel further submitted that it is well settled that no cause or matter shall be defeated by reasons of misjoinder/wrong joinder of parties. See Bello vs. INEC & Ors. (2010) 184 LRCN page 54 where the Supreme Court held:
“The position of the law is well settled that no cause or matter shall be defeated by reason of misjoinder or non joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the right and interest of the parties actually before it.”
Counsel stated that the 1st and 2nd Respondents deposed to facts in two separate affidavits. They also filed affidavits verifying the facts relied upon in the statement as required by the Fundamental Right Enforcement Procedure Rules, 1979. Counsel, therefore, urged the Court to hold that the 1st and 2nd Respondents’ action was competent and to resolve this issue in their favour.
The learned Counsel to the Appellant had challenged the competence of the 1st and 2nd Respondents’ application in the Lower Court. Learned Counsel had argued that the 1st and 2nd Respondents had filed only one application, but individual affidavits deposing to facts of the case. By virtue of Order 2 rule 3 of the 1979 Fundamental Rights Enforcement Procedure Rules, the Lower Court or Judge is empowered to consolidate and consider several applications together where they had been filed separately, so far as they relate to the same infringement. See Komolafe vs. Attorney General of the Federation and Olawepo vs. A.G.F. 1 NPILR page 407.
In the above cases, the trial Judge upheld the application for consolidation since the reliefs sought by both men were identical. So also the Court will allow many applications to be joined together in the same application once a common cause of action can be established. See Uzoukwu & Ors. vs. Ezeonu II & Ors. (supra).
See Ogwuche & Ors. vs. University of Agriculture, Makurdi & Ors. 2 NPILR page 809 where 102 students successfully prosecuted one action against the Respondents under the 1979 Fundamental Right Enforcement Procedure. In Sadiku & 35 Ors. vs. Obafemi Awolowo University, Ife 2 NPILR page 809. Here also 36 students who were expelled by the university were permitted to file a single application for the enforcements of their rights. It, therefore, means, that the 1st and 2nd Respondents are within their scope in filing only one application for both of them. The trial Judge was right in holding that “the applicants filed a single motion but deposed to different affidavits to ventilate their grievances. Their affidavits are virtually similar.” The application filed by the 1st and 2nd Respondents is, therefore, competent for the enforcement of their fundamental rights.
ISSUE 3:
Learned Counsel to the Appellant referred the Court to the Supreme Court decision in Hamza vs. Kure (2010) 10 NWLR (Pt.1203) page 630 where the Court held that a finding of the Court will be regarded as perverse in any of the following situations:
“(a) It is speculative and not based on any evidence; or
(b) The Court took into account matters which it ought not to have taken into account; or
(c) The Court shut it eyes to the obvious.”
Counsel submitted that the learned trial Judge shut his eyes to the obvious conflicts in the affidavits of the parties. Specifically, the Appellant and the 3rd Respondent in their petitions never mentioned the names of the 1st and 2nd Respondents. That the 1st and 2nd Respondents came into the picture when the tanker driver Gogo led the investigating police officers to their filling stations. The Appellant had written a petition against Gogo – the tanker driver and not the 1st and 2nd Respondents. This conflict the trial Judge never resolved.
Counsel argued that since the petition did not mention the 1st and 2nd Respondents, the trial Judge was, therefore, working on speculations. See Menakaya vs. Menakaya (2001) 16 NWLR (Pt.738) page 203. Counsel submitted that where there is a conflict in the affidavit evidence of parties that the trial Judge must call for oral evidence of the parties to resolve it.
Counsel, therefore, urged the Court to resolve this issue in favour of the Appellant.
In response, the learned Counsel to the 1st and 2nd Respondents submitted that the trial Judge carefully evaluated the affidavits evidence or findings of facts before arriving at his decision in favour of the 1st and 2nd Respondents.
Counsel submitted that it was the report that set in motion the police to harass and threaten to arrest them. Counsel argued that the statements of the 1st and 2nd Respondents clearly established a breach of the 1st and 2nd Respondents’ fundamental rights by the Appellant and 3rd Respondent. It was the case of the 1st and 2nd Respondents that the Appellant and 3rd Respondent wrote a petition to the police that set all these in motion against them. The 1st and 2nd Respondents had bought 13800 litres of diesel from a known dealer, Udeme Joseph Bassey, and paid. After about 1 month, policemen from Osisioma Police Station visited their filling stations informing them that they stole the diesel or obtained it by false pretences. Counsel opined that the police was working on the malicious petition written against them by the 3rd Respondent.
Counsel argued that the Appellant and the other Respondents in the Court below continued to hunt and harass the 1st and 2nd Respondents. They also threatened to arrest and detain them when the 1st and 2nd Respondents did not commit any offence.
Counsel stated that there was no need for the trial Judge to call for oral evidence as none of the parties identified any conflict in the affidavits. It was rather the affidavits of the Respondents in the Court below that was contradictory. The Appellant said the diesel was 30,000 litres whilst the 3rd Respondent said it was 13620 litres that was stolen. The police at Osisioma Police Station and Zone 9, Umuahia lacked the territorial jurisdiction to investigate the 1st and 2nd Respondents at Ikot Ekpene, Akwa Ibom State within the territorial jurisdiction of Zone 6, Calabar.
Counsel reiterated that, the law is now settled that a person who sets the law in motion by making complaint or report to the police leading to the arrest or threat to the arrest and detention of another as a result of false information will be liable in an action for the enforcement of fundamental rights, citing the case of Okonkwo vs. Ogbobu (supra) at page 601.
Counsel submitted finally that the learned trial Judge in his judgment carefully evaluated the affidavit evidence of the parties before the Court, properly weighed same and made findings of facts before arriving at his decision.
The Appellate Court will not readily interfere with the evaluation of evidence or findings of facts by the trial Court unless it is shown that such evaluation or findings were perverse and not supported by the evidence before the trial Court. See Anyanwu & Ors. vs. Uzowuaka & Ors. (2009) Vol.177 LRCN page 204.
Counsel, therefore, urged the Court to hold that the judgment of the Court is not perverse and resolved this issue in favour of the 1st and 2nd Respondents.
“Evaluation of evidence is the primary duty of a trial Court which saw, heard and assessed the witnesses while they testified. Where the trial Judge has unquestionably evaluated the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the views of the trial Court.”
See Agbi-Ogbah (2006) 11 NWLR (Pt.990) page 65; Bashaya vs. State (1998) 5 NWLR (Pt.550) page 351, Ojokolobo vs. Alamu (1998) 9 NWLR (Pt.565) page 226; Sha vs. Kwan 5 SC page 178; State vs. Ajie (2000) 7 SC (Pt.1) page 24; Fagbenro vs. Arobadi (2006) 7 NWLR (Pt.978) page 174, Adebayo vs. Adesei (2004) 4 NWLR (Pt.862) page 44.
As above, the evaluation of evidence is the primary duty of the trial Judge. It is only where and when it fails to evaluate such evidence properly or at all, that an appellate Court can interfere and re-evaluate such evidence, Adebayo vs. Adesei (supra).
This action was contested by affidavit evidence. The 1st and 2nd Respondents in their affidavits averred that the Appellant with the 3rd Respondent and the other Respondents in the Court below breached their fundamental rights. The Appellant and the 3rd Respondent had made a report of their stolen diesel to the police at Osisioma Police Station. On the strength of that report the driver of the tanker, Gogo was arrested. The tanker driver thereafter led the police to the filling stations of the 1st and 2nd Respondents. Before then, neither the Appellant nor the 3rd Respondent had mentioned the 1st and 2nd Respondents. The 1st and 2nd Respondents were subsequently invited by the Police at Zone 9, Umuahia, Abia State. They answered the call. At the police station they were arrested, questioned and detained. They were granted police bail the same day. The 1st and 2nd Respondents averred that on that day they were detained from 9:00am-7pm. They were never arrested nor detained again.
The Appellant and the 3rd Respondent in their affidavit evidence claimed that when they realized that their diesel was missing they made a report to the police like law abiding citizens.
These are the facts placed before the trial Court. The trial Court thereafter held that the Appellant and the 3rd Respondent had breached the fundamental rights of the 1st and 2nd Respondents when they had committed no offence. It must be stressed that a criminal charge was not placed before the trial Court for it to reach such a conclusion.
“A court as a rule must limit itself to the circumstances of a particular case or a case placed before it. Thus a Court cannot be moved to make decision on what is not placed before at.”
See Jimoh vs. A.G.F. (1998) 1 HRLRA page 513.
In the present case, it is clear that the trial Judge had gone beyond the scope of fundamental rights procedure placed before it.
The 1st and 2nd Respondents were arrested and detained on a reasonable suspicion that a crime had been committed. The Appellant and 3rd Respondent made a report to the police of their missing diesel. The 1st and 2nd Respondents were never mentioned in the report or petition. It was the police investigation that led the police to them. The Appellant and the 3rd Respondent, other than this report and petition, did not do anything untoward. The 1st and 2nd Respondents did not aver that they did any other thing. A citizen under the 1999 Constitution is entitled to his inalienable right to report a crime.
No one can say that there was not a reasonable suspicion that a crime has been committed. The diesel was indeed missing. The diesel was found in the filling station of 1st and 2nd Respondents. Both parties agreed on these set of facts. The only controversy was how it got to the filling stations of the 1st and 2nd Respondents. Was it by sale in the market overt as argued by the 1st and 2nd Respondents or that they are receivers of stolen goods. It is only by investigation can the police get to the root of the situation at hand.
It, therefore, presupposed that there was a reasonable suspicion that a crime had been committed.
Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or likely to commit the offence.
“An arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for the breach of his fundamental rights.”
Okaro vs. C.O.P. & Anor. (2001) 1 CHR page 407.
However, it should be noted that the police does not have unbridled powers to deprive citizens of their liberty while the case against them is still being investigated: Johnson vs. Lufadeju (2002) 1 NWLR (Pt.768) page 203
The 1st and 2nd Respondents have not, by their averments, stated what else the Appellant and the 3rd Respondent did to further or to facilitate their arrest and detention by the police. Where no evidence is led to establish the claims made before a Court, such claims will be dismissed for want of evidence. See Remi vs. INEC (2005) 6 NWLR (Pt.920) page 56.
The findings and decisions of the trial Court were perverse as it failed in its primary duty of evaluation of evidence and ascribing probative value to it. In the circumstances, I hold that this issue is resolved in favour of the Appellant.
ISSUE 2:
I have found that the trial Judge reached a wrong decision. The 1st and 3rd issues having been resolved in favour of the Appellant, it would be a mere academic exercise to delve into this issue.
It is on the damage awarded the 1st and 2nd Respondents against the Appellant and the 3rd Respondent.
This issue fails. The three issues articulated by the Appellant have all been resolved in his favour. This appeal is meritorious and, therefore, allowed. The judgment and orders of the trial Judge are set aside including that as to damages and costs.
I make no orders as to costs. Each party is to bear its own cost.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my urbane Lord, Uzo I. Ndukwe-Anyanwu, JCA, just delivered now. I am persuaded by the taut logic of His lordship’s reasoning and the ensuing unanswerable conclusion.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in advance, the Judgment of my learned Brother, Ndukwe-Anyanwu JCA, allowing this appeal. I completely agree with the reasoning and the conclusions reached.
I would only emphasize that the Appellant was certainly acting within his rights in taking his complaint to the police.
In Fajemirokun V. Commercial Bank Nig. Ltd LER [2009] SC.336/2002 , the Supreme Court per Ogebe, JSC, said:
“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
In concurring with the lead Judgment, A. M. Mukthar, JSC (now CJN) said:
“…I have said earlier on the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere suspicion…”
See also: Owomero vs. Flour Mills (Nig.) Ltd (1995) 9 NWLR (Pt.421) 622 at 629, Ezeadukwo vs. Maduko (1997) 8 NWLR (Pt.518) 635 at 667. It is for the police to investigate a complaint laid before them, and upon investigation, to take appropriate action.
There is no evidence that the Appellant did any more than lay his complaint before the police. He has not been shown to have interfered with or otherwise directed the police investigation. A report made to the police does not, without more, amount to instigating the police in any way. The Appellant was certainly acting within his rights in laying a complaint before the police; and, he cannot be faulted on this score. He cannot be held responsible for actions taken by the police.
Fundamental rights are not breached simply because a respondent has made a legitimate complaint to the police; or when the police investigate and act on complaints duly made to them.
For these reasons, and, for the more comprehensive reasons given in the lead judgment, I also allow this appeal; and, abide by the orders made.
Appearances
P. I. O. IkwukaFor Appellant
AND
P. A. Udo with him J. I. Ubom – 1st and 2nd Respondent
Bob C. Ogu – 3rd RespondentFor Respondent
