UGBOMAH & ANOR v. GOVERNOR OF ANAMBRA STATE & ORS
(2021)LCN/15748(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/303/2015
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. MRS MARTINA UGBOMAH 2. MISS CHINENYE EDITH UGBOMAH APPELANT(S)
And
1. GOVERNOR OF ANAMBRA STATE 2. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, ANAMBRA STATE 3. CSP JAMES NWAFOR, OFFICE IN CHARGE SPECIAL ANTI-ROBBERY SQUAD, AWKUZU 4. COMMISSIONER OF POLICE, ANAMBRA STATE RESPONDENT(S)
RATIO
THE FUNDAMENTAL RIGHT TO PERSONAL LIBERTY
Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that every citizen is entitled to his personal liberty and that no citizen shall be deprived of his said personal liberty save in accordance with the procedure permitted by law.
Section 35 (1) (c) of the said Constitution enumerates three circumstances where a citizen can be deprived of his constitutionally guaranteed liberty to include:
a. For the purpose of bringing him before a Court in the execution of an order of Court.
b. Upon reasonable suspicion that he has committed an offence.
c. To prevent or stop him from committing a criminal offence.
From the above provisions of the said Section 35(1) (C) of the Constitution, it is obvious that the right to personal liberty is not absolute. Such liberty can be curtailed or restricted under certain circumstances permitted by law. See EKWENUGO V. FEDERAL REPUBLIC OF NIGERIA (2001) 6 NWLR (PT. 708) PG 185.
The power of the Police to arrest on reasonable suspicion is subject to the requirement that the Police shall before the arrest, satisfy themselves that there exist reasonable ground for suspicion of guilt. The test to be applied is that of a reasonable man acting without passion and prejudice see, TOTOR V. AWEH (2000) 2 NWLR (PT. 644) PG. 309. PER NWOSU-IHEME J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering The Leading Judgment): The Appellants as Applicants at the lower Court took out an Application for the enforcement of their fundamental rights against the arrest, humiliation, torture and detention at the Nigeria Police, Onitsha Area Commanders Office and at the Special Anti Robbery Squad (SARS) Awkuzu by the 3rd & 4th Respondents from the 1/8/2013 to 29/8/2013 a period of Twenty Nine days.
In a considered Judgment delivered on the 8th day of October, 2014, the learned trial Judge C. Nwankwor, J, in Suit No O/113M/2014 dismissed the application. This Appeal is a by-product of the said Judgment.
SUMMARY OF RELEVANT FACTS:
The Appellants’ case, in summary, was that they are mother and daughter and were on the 1/8/2013 arrested at the Upper Class Hotel, Onitsha, along with the Director of the said Upper Class Hotel and other workers of the Hotel by the Police. That they were thereafter paraded with other workers as common criminals with guns and human skulls placed in their front. That after parading them, they were put in a Black Maria lorry and taken to the Special Anti-Robbery Squad, Awkuzu Cell where they were detained from 1/8/2013 to 29/8/2013. That while in detention, they were tortured, stripped naked in the presence of men. That the 1st Applicant was forced to sign a statement already written by a Police Officer. That they were tortured to admit that the Director of the Upper Class Hotel was a ritualist and that denial would attract severe torture and beating.
That while in detention Policemen informed them that the 1st Respondent supervised the demolition of the said Hotel and their properties collected.
The 1st & 2nd Respondents’ case in summary, was that the 1st Respondent was only invited to the site of the demolition of the Hotel building and that the 1st & 2nd Respondents are not Law Enforcement Officers and therefore had nothing to do with this Suit.
The 3rd and 4th Respondents’ case in brief, was that sequel to a tip off, a team of Police detectives from SARS Awkuzu conducted a search on Upper Class Hotel and its premises. Two AK47 Riffles, 56 rounds of ammunition and human skulls were recovered from Room 102 in the said Hotel. That prior to the said tip off, a written petition was made to the office of the Inspector General of Police and the said Petition was referred to the office of the Commissioner of Police Anambra State for discreet investigation. That an entry of the complaint of kidnapping, assassination/murder, Arms dealing etc was made in the Crime Diary of SARS Awkuzu.
In the course of the investigation, the applicants were arrested amongst other persons who were suspected to have committed the said offences. At the conclusion of the preliminary investigation, the Applicants were released on conditional bail, while the Director of the said Hotel and others who were suspected to have committed the offences were arraigned in Court.
Learned Counsel for the Appellants, Kachi J. Bielu Esq distilled two issues for determination as follows:
1. “Whether the trial Court was right to hold that the arrest and detention of the Appellants was Police discretion exercised within the ambit of the Law.
2. Whether the trial Court in Anambra State are entitled to take judicial notice of the enactments creating Courts and the location of the Courts which are relevant to facts before the Court.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Learned Counsel for the 1st & 2nd Respondents B. C. Obiekie Esq also distilled two issues for determination thus:
1. “Whether the Appellants have made out a case against the 1st & 2nd Respondents by proving their assertions as contained in their application.
2. Whether the learned trial Judge was wrong in striking out the paragraphs of the Appellants affidavit for non-compliance with Section 115 of the Evidence Act.”
Counsel on each side extensively argued on the issues they distilled.
Learned Counsel for the Appellants argued, in summary, that the detention of the Appellants for 29 days without reason or order of Court cannot be justified as such was illegal and unlawful.
He contended that the Judgment of the lower Court shows lack of fair hearing and that it was erroneous for the learned trial Judge not to call oral evidence to reconcile conflicts in the affidavit, he described the Judgment of the lower Court as perverse and urged the Court to allow the Appeal.
Reacting to the foregoing, learned Counsel for the 1st & 2nd Respondents posited that the Appellants failed to prove the assertions they made against the 1st & 2nd Respondents. Counsel contended that the Appellants suffered no injury attributable to the actions of the 1st & 2nd Respondents to justify such damages claimed by them. He described the Appellants as gold diggers who want to reap where they did not sow and urged the Court to dismiss this Appeal.
The issues distilled by both Counsel are similar but can be compressed into one straight issue of narrow compass thus:
“Whether on the facts and circumstances of this case the learned trial Judge was right to hold that the arrest and detention of the Appellants was within the Police discretion, exercised within the ambit of the law and proceeded to dismiss their Application.”
Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that every citizen is entitled to his personal liberty and that no citizen shall be deprived of his said personal liberty save in accordance with the procedure permitted by law.
Section 35 (1) (c) of the said Constitution enumerates three circumstances where a citizen can be deprived of his constitutionally guaranteed liberty to include:
a. For the purpose of bringing him before a Court in the execution of an order of Court.
b. Upon reasonable suspicion that he has committed an offence.
c. To prevent or stop him from committing a criminal offence.
From the above provisions of the said Section 35(1) (C) of the Constitution, it is obvious that the right to personal liberty is not absolute. Such liberty can be curtailed or restricted under certain circumstances permitted by law. See EKWENUGO V. FEDERAL REPUBLIC OF NIGERIA (2001) 6 NWLR (PT. 708) PG 185.
The power of the Police to arrest on reasonable suspicion is subject to the requirement that the Police shall before the arrest, satisfy themselves that there exist reasonable ground for suspicion of guilt. The test to be applied is that of a reasonable man acting without passion and prejudice see, TOTOR V. AWEH (2000) 2 NWLR (PT. 644) PG. 309.
In the circumstances of this case particularly the discovery of incriminating items like human skull, AK47 Riffles and 56 rounds of ammunition in Room 102 of the said Upper Class Hotel aroused the suspicion that an offence had been committed. This suspicion was heightened by the fact that the persons who committed the said offence were unknown at that time.
The arrest of the Applicants who were workers in the said Hotel at that material time was therefore not out of place. It was well within the law and the suspicion was quite reasonable.
After the investigation, the Police exonerated the Applicants and released them on bail.
The power of the 3rd & 4th Respondents to arrest and detain pending investigation in some cases is constitutional and is derived from Sections 214 and 216 of the Constitution of the Federal Republic of Nigeria (as amended).
The Police are empowered under Section 4 of the Police Act to investigate, arrest, interrogate, search and detain a suspect. It was in the exercise of the said power vested in the Police by Law that the 3rd & 4th Respondents arrested the Appellants and detained them. The Appellants were subsequently released while the Director of the Hotel and three others were charged to Court.
The Appellants have failed to show how the Respondents breached their fundamental right.
In the premise, the sole issue is resolved against the Appellants and in favour of the Respondents. This Appeal is unmeritorious and is hereby dismissed. The Judgment of C. Nwankwor, J of the Onitsha Division of the Anambra State High Court in Suit No O/113M/2014, delivered on the 8th day of October, 2014 is hereby affirmed.
I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA before it was delivered. I agree with the reasoning and conclusion therein. I dismiss the appeal and abide by the consequential orders.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment of my learned brother CHIOMA NWOSU-IHEME, JCA just delivered.
I agree with his Lordship that this appeal is devoid of merit and should be dismissed. I accordingly dismiss the appeal.
I also affirm the decision of the trial lower Court.
Appearances:
Dr. K. J. Bielu For Appellant(s)
B. C. Obiekie, Esq.- for 1st & 2nd Respondents For Respondent(s)
