UDU & ORS v. OGWUDU & ORS
(2020)LCN/15700(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Tuesday, November 24, 2020
CA/E/313/2016
Before Our Lordships:
MisituraOmodere Bolaji-YusuffJustice of the Court of Appeal
Joseph Olubunmi Kayode OyewoleJustice of the Court of Appeal
Abubakar Sadiq UmarJustice of the Court of Appeal
Between
1. EZEKIEL UDU 2. EGBO MICHAEL 3. ALIEZE SILAS 4. OBAZI STEPHEN 5. OGODO CLEMENT 6. ONWE PAULINUS 7. AGBO JOSEPH 8. OKPE MOSES 9. ESHEYA SAMPSON 10. HON. IKOR SAMUEL 11. ODO ALEXANDER 12. HON. ONWE JOSEPH 13. IKOR NWAIKOR 14. JOSEPH ODO AGBO 15. OGENE AGBO 16. IBAH AGBO 17. VINCENT IZEKWE APPELANT(S)
And
1. ASP PAUL OGWUDU 2. OGWUDU VINCENT 3. AGNES OGWUDU 4. IJEOMA OGWUDU 5. AREA COMMANDER (ABAKALIKI AREA COMMAND) 6. COMMISSIONER OF POLICE (EBONYI STATE COMMAND) RESPONDENT(S)
RATIO:
THE NATURE OF FUNDAMENTAL RIGHTS
Fundamental rights are basic rights and freedoms that all humans should ordinarily be guaranteed, such as right to life, right to freedom of association and right to personal liberty. They are often referred to as inalienable rights because they are rights granted to man by God himself and therefore ought not to be taken away from an individual, except under exceptional circumstances. The Supreme Court per Eso, J.S.C. elucidated on the nature of fundamental rights in the case of RANSOME-KUTI & ORS V. AG FEDERATION & ORS (1985) LPELR – 2940 (SC) P. 33, PARAS B-G thus:
“…what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is aprimary condition to a civilized existence and what has been done by our constitution since independence, starting with the Independence Constitution that is: the Nigeria (Constitution) Order in Council 1960 up to the present Constitution that is the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. It is not in all countries that the Fundamental Rights guaranteed to the citizen are written into the Constitution. For instance, in England, where there is no written constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding, there are fundamental rights.” ABUBAKAR SADIQ UMAR, J.C.A.
THE DUTY OF CITIZENS TO REPORT COMMISSION OF CRIME TO THE POLICE
The law is trite that generally, it is the duty of citizens 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. See the case of FAJEMIROKUN V. COMMERCIAL BANK (NIG) LTD & ANOR (2009) LPELR – 1231(SC). The Supreme Court in Fajemirokun’s case made it clear that a person can only be liable for reporting a perceived criminal act to the police if same is done mala fide. The pertinent consideration here is whether Exhibit E was written in bad faith. To resolve this issue, I find that the learned trial Judge deftly dealt with same and I take the latitude to extensively reproduce his finding in that regard. ABUBAKAR SADIQ UMAR, J.C.A.
THE STATUTORY DUTY OF THE POLICE FOR THE PREVENTION AND DETECTION OF CRIME
It is trite that the police have a statutory duty under the Police Act 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. In order to prevent the commission of crimes, the police are empowered to carry out arrests. By virtue of Section 35 (1) of the Constitution, such arrests which undoubtedly constitute a limitation to the right to personal liberty can be effected inter alia upon reasonable suspicion of having committed a criminal offence. Examining the requirement of reasonable cause for arrest, the Supreme Court in the case of OTERI V. OKORODUDU (1970) LPELR – 2824 (SC) stated that:
“It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police.”
It therefore follows that that the police do not have to wait until investigation is completed before arresting persons against whom allegations of crime are made. The police are empowered to investigate any criminal allegation. They may take any action they deem fit to take upon investigation. They may arrest, detain, and prosecute an alleged offender. In the legitimate discharge of their duties, they cannot be sued in Court for breach of Fundamental Rights. See the case of IKPE & ANOR V. MR EFFIONG (IPO) NIG POLICE FORCE, ONNA DIVISION, ONNA LGA & ORS (2014) LPELR – 23036 (CA). ABUBAKAR SADIQ UMAR, J.C.A.
NOT EVERY ERROR OR MISTAKE WILL VITIATE THE JUDGEMENT APPEALED AGAINST
The law is trite that not every error or mistake will vitiate the judgment appealed against. For an appellant to secure a reversal on the basis of an error, he must go the extra mile of establishing that the error complained of substantially affected the decision of the trial Court or that it occasioned a miscarriage of justice. See the case of OLONADE & ANOR V. SOWEMIMO (2014) LPELR – 22914 (SC). In this instance, where the error complained of did not occasion a miscarriage of justice or substantially affect the decision of the trial Court, I see no reason todisturb the decision of the trial Court by reason of its failure to expressly hold that there was no likelihood of the violation of the fundamental rights of the 1st, 5th, 6th and 10th appellants when the Court averted its mind to the issue and elaborately considered same in its judgment. (See pages 231 – 233 of the record of appeal). ABUBAKAR SADIQ UMAR, J.C.A.
HE WHO ASSERTS MUST PROVE AND THE ONUS LIES ON A PARTY WHO ALLEGES A BREACH OF HIS RIGHTS
It is trite law that he who asserts must prove. The onus lies on a party who alleges a breach of his fundamental rights to prove same through cogent evidence before the Court. See the case of OKAFOR V. LAGOS STATE GOVT (2017) 4 NWLR (PT. 1556) 404. In the instant case, the appellants had the onus of proving by credible affidavit evidence that their fundamental rights were breached, but they failed woefully to do so. Their reliefs for declaration that their fundamental rights to personal liberty were contravened or likely to be contravened must fail. ABUBAKAR SADIQ UMAR, J.C.A.
INJUNCTIONS ARE SOUGHT AS CONSEQUENTIAL RELIEFS TO DECLARATORY RELIEFS
It is a settled principle of law that where a principal relief for a declaratory order fails, any ancillary relief based on that declaratory order must fail. In other words, where, as in the instant case, injunctions are sought as consequential reliefs to declaratory reliefs, the injunction will be refused once the declarations are refused. See the case of CBN V. OKEMUO (2018) 15 NWLR (PT. 1642) 367. The appellants’ reliefs for exemplary damages and injunction are hereby refused. ABUBAKAR SADIQ UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ebonyi State in the Ohuakwu Judicial Division delivered by Vincent Nwanchor, J. on 15th March, 2016. The appellants as applicants instituted the action at the trial Court for the enforcement of their fundamental rights. The action was commenced by a motion on notice pursuant to Section 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order II Rules 1 – 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The application was accompanied by a statement pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, affidavit setting out the facts upon which the application is made and a written address in support of the application. See pages 1 – 54 of the record of appeal.
The appellants sought declaratory reliefs, injunction and damages against the respondents as contained in their statement pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
It was the case of the appellants that they and the 1st– 4th respondents are at loggerheads over a parcel of land which was the subject of litigation in suit no. HKW/4/2015 pending before the High Court of Ebonyi State. That criminal charge no. MEZ/20C/2015 instituted by the respondents against the 1st – 9th appellants was also pending in the Magistrate Court. The appellants also averred that despite the pendency of the matters in Court, the 1st respondent continued to use the police to harass, arrest, intimidate and detain them. That the 1st, 5th, 6th and 10th appellants were arrested, detained and later released on police bail by the 5th and 6th respondents despite being granted bail by the DPO, Ezzangbo Police Station. Also, the appellants claimed that the 2nd, 3rd, 4th, 7th, 9th, 11th – 17th appellants were thereafter invited by the 5th respondent with a view to maliciously arrest and detain them just as the 1st, 5th, 6th and 10th respondents were detained by the 5th respondent at the instigation of the 1st – 4th respondents.
In opposition to the application, the 1st – 4th respondents on one hand and the 5th and 6th respondents on the other filed their counter-affidavits and accompanying documents.
On their part, the case of the 1st – 4th respondents was that the 1st – 9th appellants on 26th December, 2013 conspired to destroy the farmland of the 1st respondent and stole the proceeds therefrom. That due to the acts of the 1st – 9th appellants, the 1st respondent wrote a petition to the Commissioner of Police, Ebonyi State, but the appellants wrote a counter-petition against the 1st respondent to the same Commissioner of Police. Also, that the appellants wrote another petition to the Deputy Inspector General of Police before the 1st – 9th appellants were charged to Court as directed by the Commissioner of Police. That after they were eventually charged to Court, the 1st – 9th appellants took out a civil action at the High Court. It was the further case of the 1st – 4th respondents that on 2nd June 2015, just a week after the 1st – 9th appellants were arraigned and granted bail; they invaded the 3rd and 4th respondents’ farmlands, destroyed and removed proceeds from there to an unknown destination. That as a result of this, the 1st – 4th respondents wrote a petition to the Commissioner of Police who took over the investigation from the DPO Ezzangbo, who the matter was first reported to. The 1st – 4th respondents denied that the 1st, 5th, 6th and 10th appellants were arrested or detained by the 5th and 6th respondents and also denied complicity in the alleged arrest or detention of the applicants.
The case of the 5th and 6th respondents was that they legally received the complaints of the 1st and 2nd respondents which consisted of criminal offences and acted within their powers when they invited the appellants in connection to the allegations made against them. That only the 1st, 5th, 6th and 10th appellants honoured the police invitation while the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th appellants refused to honour the police invitation extended to them. They denied detaining, intimidating or harassing the appellants.
After the hearing of the application, the trial Court delivered its judgement wherein it dismissed the appellant’s application.
Dissatisfied with the judgment of the trial Court, the Appellant filed a notice of appeal dated 10th June, 2016 and filed on the same day wherein three grounds of appeal were raised. The three grounds of appeal without their particulars as contained in the notice of appeal are hereunder reproduced as follows:
“GROUND ONE (Error in Law)
The trial judge erred in law when he failed to apply the reasonable man’s test to the case before him and proceeded to hold that the appellants were arrested and detained by the 5th and 6th respondents upon reasonable suspicion of having committed criminal offences contained in the petition (Exhibit E) lodged by the 2nd Respondent.
GROUND TWO (Misdirection in Fact)
The trial Court misdirected himself on the facts of the case and made a perverse findings of fact when he held in its judgment that the 5th and 6th respondents have not violated the fundamental rights of the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th appellants by the mere fact of the police invitation letter addressed to them.
GROUND THREE
OMNIBUS GROUND
The judgment of the Court below dismissing the appellant’s suit is totally unreasonable and cannot be supported having regard to the weight of evidence before the Court.”In line with the practice of this Court, parties filed and exchanged their briefs of argument. The appellant’s brief of argument which is dated and filed on 19th August, 2016 was settled by M.O. ODO, ESQ. Counsel distilled three issues for the determination of this appeal as follows:
“(a) Whether the Court below was right when it held in its judgment that the 1st, 5th, 6th and 10th Appellants were arrested and detained upon reasonable suspicion of having committed criminal offences contained in the complaint (Exhibit E) lodged to the police by the 2nd Respondent. (Ground 1 of the Notice of Appeal)
(b) Whether the Court below made a perverse finding of fact when it held in its judgment that the 5th and 6th Respondents have not violated the fundamental rights of the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th Appellants by the mere fact of police invitation letter addressed to them. (Ground 2 of the Notice of Appeal)
(c) Whether the Appellants have proved their case to entitle them to the reliefs sought having regard to the evidence on record. (Ground 3 of the Notice of Appeal).”
The 1st to 4th respondents filed a brief of argument which is dated and filed on 20th April, 2017, but deemed as properly filed and served on 17th January, 2019. The said brief was settled by HOSEA A. NWOFE, ESQ. learned counsel distilled three issues for determination thus:
“1. Whether the trial Court was right when it held that the arrest and detention of the 1st, 5th, 6th & 10th applicants were justified in law.
2. Whether the lower Court was right when it held that the 5th and 6th Respondents are not likely to violate the rights of the 2nd, 3rd, 4th, 7th, 8th, 9th and 11th – 17th appellants?
3. Whether the appellants have made a case entitling them to the reliefs sought?”
The 5th and 6th respondents did not file a brief of argument or any other process. Despite this, the claims against them cannot be granted as a matter of course. The appellants need to succeed against the 5th and 6th respondents on the strength of their case.
RESOLUTION
I have gone through the record of appeal compiled and duly transmitted to this Court and the briefs of argument of counsel. I have also considered the issues distilled by counsel for the determination of this appeal. However, I am of the view that the issue stated below is apt for the determination of the appeal:
Whether considering the facts and circumstances of this case as gleaned from the parties’ affidavit evidence, the trial Court was right to refuse the reliefs sought by the appellants?
The reliefs sought by the appellants before the trial Court center around enforcement of their fundamental rights. Fundamental rights are basic rights and freedoms that all humans should ordinarily be guaranteed, such as right to life, right to freedom of association and right to personal liberty. They are often referred to as inalienable rights because they are rights granted to man by God himself and therefore ought not to be taken away from an individual, except under exceptional circumstances. The Supreme Court per Eso, J.S.C. elucidated on the nature of fundamental rights in the case of RANSOME-KUTI & ORS V. AG FEDERATION & ORS (1985) LPELR – 2940 (SC) P. 33, PARAS B-G thus:
“…what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is aprimary condition to a civilized existence and what has been done by our constitution since independence, starting with the Independence Constitution that is: the Nigeria (Constitution) Order in Council 1960 up to the present Constitution that is the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. It is not in all countries that the Fundamental Rights guaranteed to the citizen are written into the Constitution. For instance, in England, where there is no written constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding, there are fundamental rights.”
Therefore, Courts have a duty to protect fundamental rights as guaranteed under Chapter IV of the Constitution. The appellants in this appeal complain chiefly of the alleged violation and alleged likelihood of violation of their right to personal liberty as guaranteed underSection 35 (1) of the Constitution. Section 35 (1) of the 1999 Constitution as amended provides as follows:
“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.”
Section 46 (1) of the Constitution also provides that:
“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.”
From the provisions of the Constitution reproduced above, it is clear that the Constitution not only protects the contravention of fundamental rights, it also protects likely or anticipated contravention of fundamental rights. It is therefore not out of place to seek protection of one’s rights where there is the likelihood of such a right being trampled upon.
The appellants’ counsel submitted that by virtue of Section 35 (1)(c) of the 1999 Constitution, a person’s right to personal liberty can be curtailed upon reasonable suspicion of his having committed a criminal offence.
He submitted that there was no evidence before the Court below that there was a reasonable suspicion that the 1st, 5th, 6th and 10th appellants had committed a criminal offence before they were detained by the 5th and 6th respondents. Counsel also submitted that the test of determining whether there is a reasonable suspicion sufficient for the police to make an arrest is a reasonable man’s test, which he argued that the trial Court failed to apply. He relied on the case of COP ONDO STATE V. OBOLO (1989) 5 NWLR (PT. 120) 130. He submitted further that the police have a duty to professionally investigate matters reported to them before making arrests and that the 5th and 6th respondents arrested the 1st, 5th, 6th and 10th appellants without conducting any investigation. He referred to the cases of JIM-JAJA V. COP (2011) 2 NWLR (PT. 1231) 375; ATIKU V. STATE (2010) 9 NWLR (PT. 1199) 241. Counsel urged this Court to set aside the decision of the trial Court on the ground that as at the time of the alleged arrest and detention of the appellants, there was no reasonable suspicion to warrant such arrest and detention.
On the other hand, it was submitted by counsel for the 1st – 4th respondents that the petition written to the Commissioner of Police by the 2nd respondent, Exhibit E disclosed a clear imputation of crime against the appellants which the 5th and 6th respondents were bound to investigate. Learned counsel further submitted that the crime alleged in Exhibit E is quite distinct from the subject matters in suit no. HKW/4/2015 and charge no. MEZ/20C/2015. He also submitted that the pendency of a suit between the parties cannot inhibit either party from reporting a newly committed crime to the police. Counsel submitted further that 5th and 6th respondents being police officers have a statutory duty to investigate allegations of crime. He relied on the cases of CHUKWUMA V. COP (2005) 8 NWLR (PT. 927) 278; AGBI V. OGBEH (2005) 8 NWLR (PT. 926) 40. He therefore submitted that the appellants have no cause of action against the 1st – 4th because they merely reported allegations of crime against the police.
The complaints of the appellants regarding the alleged arrest and detention of the 1st, 5th, 6th and 10th appellants are in two folds. First, that the 1st – 4th respondents instigated the 5th and 6th respondents to arrest, detain and intimidate the appellants and second, that the 5th and 6th respondents unlawfully arrested and detained the appellants. See paragraphs 30 – 32 of the appellants’ affidavit at pages 14 – 15 of the record of appeal.
The law is trite that generally, it is the duty of citizens 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. See the case of FAJEMIROKUN V. COMMERCIAL BANK (NIG) LTD & ANOR (2009) LPELR – 1231(SC). The Supreme Court in Fajemirokun’s case made it clear that a person can only be liable for reporting a perceived criminal act to the police if same is done mala fide. The pertinent consideration here is whether Exhibit E was written in bad faith. To resolve this issue, I find that the learned trial Judge deftly dealt with same and I take the latitude to extensively reproduce his finding in that regard. He stated that: “The fact of the Exhibit E, the said petition written by the 2nd respondent to the 6th respondent against the applicants and which gave rise to the arrest and detention or invitation, as they may be, is relevant. The purport of the said Exhibit E is that the 2nd respondent was aggrieved by the act of the applicants and decided making report thereof to the police for their investigation. However, this Court is conscious of the contention of the 1st, 5th, 6th and 10th applicants that they were already admitted to bail by the DPO, Ezzangbo Police station when the 1st respondent instigated the 2nd, 3rd and 4th respondents to raise the said Exhibit E. To my mind, the averment by the 1st – 4th respondents at paragraphs 12 and 28 of their counter-affidavit reproduced ante to the effect that the pending matters, suit No HKW/4/2015 and Charge No. MEZ/20C/2015, are different from the present petition and that the second petition came about when the applicants allegedly invaded the 3rd and 4th respondents’ farm lands and destroyed their crops, is crucial and cannot be swept under the carpet. It is not for this Court at this stage to proceed to determine the perceivedresult of the 5th and 6th respondents’ investigation of the matter. From their affidavit evidence, it is obvious the 1st – 4th respondents as required by law have placed their perceived grievance before the police whose duty it is to investigate the matter and come up with their investigative report based on which the veracity or otherwise of the complaint will be known. Until then, any finding based on that by any tribunal be(sic) as misleading as it is extra-legal. Having regard to the above findings, it is as clear prove (sic) as crystal that the applicants have failed to prove that the complaint made by the respondents to the 5th and 6th respondents is unlawful.” See pages 227 – 228 of the record of appeal.
I am in consonance with the decision of the trial Court elaborately reproduced above and I am also of the firm view that the 1st – 4th merely performed their duties as responsible and law-abiding citizens by reporting suspected criminal activities to the police. The alternative would have been to toe the ignoble path of resorting to self-help. The appellants failed to show mala fide or vindictiveness in the act of the appellants. The 1st – 4th respondents are therefore not liable for instigating the 5th and 6th respondents to violate the appellants’ fundamental rights to personal liberty as alleged by the appellants.
The second limb of the appellants’ grievance concerning the alleged arrest and detention and of the 1st, 5th, 6th and 10th appellants is that the 5th and 6th respondents violated the rights of the 1st, 5th, 6th and 10th appellants by arresting and detaining them unlawfully. The 5th and 6th respondents in their counter-affidavit denied arresting and detaining the respondents. Paragraphs 10 – 14 of the said counter-affidavit are reproduced hereunder:
“10. That on the strength of the 2nd Respondent complaint and the directives that I should investigate the case, I invited the 1st – 17th Applicants.
11. That it was only the 1st, 5th, 6th and 10th Applicants who honoured the Police invitation extended to them.
12. That the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th Applicants refused to honour Police invitation.
13. That the 1st, 5th, 6th and 10th Applicants volunteered their statement under caution stating their own side of the story and were immediately granted bail as soon as they made their statements.
14. That the 1st, 5th, 6th and 10th Applicants were released on bail immediately they finished writing their statements to a surety one Onwe Peter on the same date being 13th August 2015. Attached and marked Exhibit ‘C’ is the Police bail bond.” See page 140 of the record of appeal.
Assuming but without agreeing that the 1st, 5th, 6th and 10th appellants were arrested and detained by the police upon the criminal complaint lodged by the 1st – 4th respondents, it is trite that the police have a statutory duty under the Police Act 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. In order to prevent the commission of crimes, the police are empowered to carry out arrests. By virtue of Section 35 (1) of the Constitution, such arrests which undoubtedly constitute a limitation to the right to personal liberty can be effected inter alia upon reasonable suspicion of having committed a criminal offence. Examining the requirement of reasonable cause for arrest, the Supreme Court in the case of OTERI V. OKORODUDU (1970) LPELR – 2824 (SC) stated that:
“It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police.”
It therefore follows that that the police do not have to wait until investigation is completed before arresting persons against whom allegations of crime are made. The police are empowered to investigate any criminal allegation. They may take any action they deem fit to take upon investigation. They may arrest, detain, and prosecute an alleged offender. In the legitimate discharge of their duties, they cannot be sued in Court for breach of Fundamental Rights. See the case of IKPE & ANOR V. MR EFFIONG (IPO) NIG POLICE FORCE, ONNA DIVISION, ONNA LGA & ORS (2014) LPELR – 23036 (CA). I hereby hold that the 5th and 6th respondents did not violate the 1st, 5th, 6th and 10th appellants’ fundamental rights to personal liberty as the arrests, if any were made in the course of carrying out their legitimate duties.
Having held that the respondents did not violate the rights of the 1st, 5th, 6th and 10th appellants, the next issue for consideration is whether by issuing a letter of police invitation to the 2nd, 3rd, 4th, 7th, 8th, 9th and 11th – 17th appellants, the 5th and 6th respondents were likely to violate their fundamental rights. In this regard, counsel for the appellants submitted that rather than decide whether or not the fundamental rights of the 2nd, 3rd, 4th, 7th, 8th, 9th and 11th – 17th appellants were likely to be violated, the trial Court veered off course to hold that their rights were not violated. He therefore submitted that the finding of the Court in that respect is perverse. He referred to the case of MOMOH V. UMORU (2011) 15 NWLR (PT. 1270) 217. Learned counsel further submitted that it is contrary to public policy for the police to wade into a matter already submitted to the Court for adjudication. He also submitted that the respondents were given notice to produce certain documents before the trial Court, which they refused to produce, therefore raising the presumption that the evidence would be against them if made available.
On his part, learned counsel for the 1st – 4th respondents submitted that the contention of the appellants that the 2nd, 3rd, 4th, 7th, 8th, 9th and 11th – 17th appellants did not complain of violation of their rights goes to no issue as the learned trial Judge expressly resolved the issue against them. He also submitted that rather than trying to prevent the police from carrying out their lawful duties, the appellants ought to have waited for the outcome of the investigations into the allegations of crime levelled against them. Counsel further submitted that the police acted in line with the law by releasing the 1st, 5th, 6th and 10th appellants timeously and unconditionally. He submitted that the burden of proving that a fundamental right has been beached lies on the person who alleges such breach and that the appellants provided no evidence of violation or threatened violation of their rights. He referred to the case of OKANU V. IMO STATE COMMISSIONER OF POLICE (2001) 1 CHR 407. Counsel further stressed that the subject matter of the criminal charge pending before the Magistrate Court is different from that of the petition written to the Commissioner of Police, Exhibit E.
The appellants have alleged that the decision of the trial Court on the allegation of likelihood of violation of the right to personal liberty of the 2nd, 3rd, 4th, 7th, 8th, 9th and 11th – 17th appellants is perverse. The Supreme Court in the case of JAMES V. INEC & ORS (2015) LPELR – 24494 (SC) P. 80 PARAS C-D stated thus:
“In Atolagbe v. Shorun (1985) LPELR-SC.14/1984 this Court stated a perverse decision as being one that is persistent in error, different from what is reasonable or required and against the weight of evidence. It is also that decision wherein the judge took account of matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious.”
It is my firm view that to determine whether or not a decision or a portion of it is perverse, the whole decision or the whole of the relevant part of that decision must be considered. In deciding the issue of the likelihood of the violation of the right to personal liberty of the 2nd, 3rd, 4th, 7th, 8th, 9th and 11th – 17th appellants, the trial Court at 231 of the record of appeal stated:
“The 2nd and last issue waiting on the wings is whether there is the likelihood of infringement of the fundamental rights of the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th applicants to entitle them to the reliefs sought in this application.”
The trial Court further held at page 232 of the record that:
“Hence, the 5th and 6th respondents at paragraph 10 of their counter affidavit stated that “on the strength of the complaint and the directive that I should investigate the case, I invited the 1st – 17th respondents (sic).” The existence of the above facts means that the 5th and 6th respondents have not gone beyond the ambit of the powers conferred on them by law to invite the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th applicants for the purpose of being investigated. The existence of Exhibit MO.6, the Police invitation letter to the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th applicants actually justifies the averments of the 5th and 6th respondents at paragraphs 11 – 19 of their counter-affidavit to the effect that the said Exhibit A is still being investigated.” Flowing from the foregoing, it is indubitably clear that the trial Court averted its mind to and indeed addressed the grievances of the 2nd, 3rd, 4th, 7th, 8th, 9th, 11th – 17th appellants that their fundamental rights were likely to be violated. It is unreasonable for counsel to the appellants to seek a reversal of the decision of the trial Court on the trivial ground that the learned trial judge failed to expressly state that there was no likelihood of the violation of the fundamental rights of the 1st, 5th, 6th and 10th appellants when the trial judge did consider the issue in his judgment.
The law is trite that not every error or mistake will vitiate the judgment appealed against. For an appellant to secure a reversal on the basis of an error, he must go the extra mile of establishing that the error complained of substantially affected the decision of the trial Court or that it occasioned a miscarriage of justice. See the case of OLONADE & ANOR V. SOWEMIMO (2014) LPELR – 22914 (SC). In this instance, where the error complained of did not occasion a miscarriage of justice or substantially affect the decision of the trial Court, I see no reason todisturb the decision of the trial Court by reason of its failure to expressly hold that there was no likelihood of the violation of the fundamental rights of the 1st, 5th, 6th and 10th appellants when the Court averted its mind to the issue and elaborately considered same in its judgment. (See pages 231 – 233 of the record of appeal).
The complaint of the appellants that the police had no power to investigate the allegation of crime reported to them because the ownership of the land was already subject of litigation does not hold water. This is because it is crystal clear that the subject matter of the petition written to the police by the respondents is different from that of those of the pending civil and criminal matters. The petition, Exhibit E complained of a crime allegedly committed on 2nd June, 2015 which was during the pendency of the civil and criminal cases in Court. The 1st – 4th respondents could not have obtained an order of Court as the new report made to the police was an entirely different matter.
I have taken due notice that relying on Section 167 (d) of the Evidence Act, the appellants’ counsel made heavy weather of the alleged withholding of evidence by the 5th and 6th respondents. The documents allegedly withheld are insignificant and of no moment because the appellants seek to rely on the documents to prove that the alleged arrest and detention of the 1st, 5th, 6th and 10th appellants were made mala fide. There was ample evidence before the Court that the arrests and detention, if any, were carried out by the police in the course of their legitimate duties. Assuming but without agreeing that the 5th and 6th respondents withheld evidence, the appellants have failed to show that they suffered any miscarriage of justice therefrom.
It is trite law that he who asserts must prove. The onus lies on a party who alleges a breach of his fundamental rights to prove same through cogent evidence before the Court. See the case of OKAFOR V. LAGOS STATE GOVT (2017) 4 NWLR (PT. 1556) 404. In the instant case, the appellants had the onus of proving by credible affidavit evidence that their fundamental rights were breached, but they failed woefully to do so. Their reliefs for declaration that their fundamental rights to personal liberty were contravened or likely to be contravened must fail.
It is a settled principle of law that where a principal relief for a declaratory order fails, any ancillary relief based on that declaratory order must fail. In other words, where, as in the instant case, injunctions are sought as consequential reliefs to declaratory reliefs, the injunction will be refused once the declarations are refused. See the case of CBN V. OKEMUO (2018) 15 NWLR (PT. 1642) 367. The appellants’ reliefs for exemplary damages and injunction are hereby refused.
In the final analysis, the sole issue for determination distilled by this Court from the issues submitted by the parties is hereby resolved against the appellants and in favour of the respondents. The appeal is unmeritorious and same is hereby dismissed. The judgment of the trial Court delivered by Vincent Nwanchor, J. on the 15th March, 2016 is hereby affirmed. Parties shall bear their respective costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, J.C.A. I agree with his reasoning and conclusion that the appeal lacks merit and is hereby dismissed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, J.C.A. and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment of my learned brother, I equally find the appeal totally devoid of merit and I dismiss it. I adopt the consequential orders in the lead judgment as mine.
Appearances:
M. O. Odo. For Appellant(s)
O. N. Omaji, with him, P. O. Ogwudu – for the 1st – 4th Respondent. For Respondent(s)