UKWENYA & ORS v. OCHAI & ORS
(2020)LCN/15719(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, June 05, 2020
CA/MK/271/2018
Before Our Lordships:
Ignatius IgweAgubeJustice of the Court of Appeal
Onyekachi Aja OtisiJustice of the Court of Appeal
Joseph EyoEkanemJustice of the Court of Appeal
Between
1. PASTOR JOHN UKWENYA 2. ADAKOLE ALECHENU 3. DANIEL OGBE ALECHENU 4. ONYIMOWO ABOJE 5. PASTOR MIKE IDUH APPELANT(S)
And
1. CHIEF JOHN OCHAI 2. CHIEF ODE WILLIAMS OTEIKWU 3. OLOFU OCHAI 4. OGALEKWU EKWU 5. THE COMMISSIONER OF POLICE, MAKURDI, BENUE STATE 6. THE AREA COMMANDER, NIGERIA POLICE FORCE, OTUKPO 7. THE DIVISIONAL POLICE OFFICER, IDEKPA-OHIMINI L.G.A. (INSP. AYEBUSI JOHN) 8. SGT. AGBO YAKUBU RESPONDENT(S)
RATIO:
THE POSITION OF THE LAW ON THE MODE OF RAISING PRELIMARY OBJECTIONS
Let me also re-state the position of the law on the mode of raising Preliminary Objections as have been laid down by the Supreme Court in a plethora of cases which have been followed by this Court, that where an objection is against the hearing of the Appeal (in other words that the entire Appeal is incompetent), a Notice of Preliminary Objection as filed by the learned Counsel to the Respondents would have been appropriate. Where however, the objection is against the competence of the Grounds of Appeal and the Issues formulated therefrom as in this case, then the appropriate mode would have been by way of a Motion on Notice. See Dauda vs. F.R.N. (2018) 10 NWLR (Pt.1626) 169; Adejumo vs. Olawaiye (2014) 12 NWLR (Pt.1421) 252 and the very recent case of N.C.C. vs. Motophone Ltd. (2019) 14 NWLR (1691) 1 at 24-25, paragraphs H-B. IGNATIUS IGWE AGUBE, J.C.A.
GROUNDS OF APPEAL MUST RELATE TO THE RATIO DECIDENDI OF THE COURT
Going by the State of our Law, it is now trite and needs no citing of authorities that Grounds of Appeal must relate to the rationes decidendi of the Court from which the Appeal arose which is the essence of
the third Ground upon which the Respondents’ Preliminary Objection is predicated. See the cases of F.B.N. Plc vs. A-G, Federation (2018) 6 NWLR (pt.1350) 225; Nwankwo vs. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377; NDIC vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt.880) 107; and A.I. Ltd. vs. N.N.P.C. (2005) 1 NWLR (Pt.973) 563; where it was variously held that an Appeal is an invitation to a higher Court to review a decision of a Lower Court and that Grounds of Appeal are basically highlights of the error of law or fact or mixed law and fact committed by the Lower Court in the decision taken which is sought to be set aside on Appeal. IGNATIUS IGWE AGUBE, J.C.A.
THE GROUND OF APPEAL MUST ARISE FROM THE JUDGEMENT AGAINST WHICH THE APPEAL IS FILED
In the light of the above and in spite of the decision of the Supreme Court per Rhodes-Vivour, JSC in Wassah&Ors. vs. Kara &Ors. (2015) Vol.239 LRCN page 38 at 59 AF; that it is long settled that a Ground of Appeal must arise from or relate to the Judgment against which the Appeal is filed and that the Ground of Appeal should be a direct challenge to the decision of the Lower Court and where this is not the case the Grounds of Appeal should be struck out on the authorities of Kolawole vs. Alberto(1989) 1 NWLR (Pt.98) 382 and Alubankudi vs. A-G, Federation(2002) 17 NWLR (Pt.796) page 360; which I am in total agreement with, as I had also held earlier, that the above cited authorities are not applicableto the facts of this case if a cursory look is taken at the Judgment of the Lower Court at pages 83/10 to 85/12 of the Records/Judgment of the Lower Court. IGNATIUS IGWE AGUBE, J.C.A.
THE TEST APPLIED IN DETERMINING THE EXISTENCE OF REASONABLE SUSPICION
In the case of Oteri V. Okorodudu (1970) All NLR 199, 204, the Supreme Court set out the test to be applied in determining the existence of reasonable suspicion as follows:
“In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen V. Wright 8 Car. And P. 522where he said that it must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of the facts known to defendant at the time and not subsequent facts that may come to light…” See also Totor V. Aweh (2000) 2 NWLR (Pt. 644) 309,318. IGNATIUS IGWE AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal challenges the Judgment of the High Court of Benue State, Otukpo Judicial Division delivered by the Honourable Justice D.E. Igoh on the 21st day of September, 2018 dismissing the Applicants’ (now Appellants’) Application for the enforcement of their Fundamental Rights. It would be recalled that by an Originating Motion dated and filed on the 30th day of May, 2018, the Appellants as Applicants pursuant to Order 2 Rules 1 and 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and Articles 2, 3, 4, 5, 6, 8, 9 and 10, 11 and 12 of the African Charter On Human and Peoples’ Rights (Ratification and Enforcement) Act, 1990 and Sections 34; 35; 38; 40; 41 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) sought for the following Reliefs:-
“1. AN ORDER enforcing the Fundamental Rights of the Applicants as provided for in Sections 34, 35, 38, 40, 41 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and Articles 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1990in terms of the Reliefs sought in the Statement accompanying the Affidavit in Support of the Application.
2. AN ORDER of injunction restraining the 5th, 6th, 7th and 8th Respondents, their Agents and/or Privies from taking further steps to effect the arrest of the 1st Applicant pending the determination of the Application on Notice.
3. A DECLARATION that the unlawful arrest, detention, intimidation, disturbance, harassment, humiliation and refusal to arraign the 2nd to 5th Applicants before a competent Court of Law at the instance of Respondents is illegal, unlawful, unconstitutional, null and void.
4. AN ORDER releasing the 2nd to 5th Applicants from the custody of the 5th to 8th Respondents, and restraining the 5th to 8th Respondents, their Agents and Privies from further harassing, embarrassing or arresting the Applicants or taking them to unlawful custody.
5. AN ORDER awarding the sum of Twenty Five Million Naira (N25,000,000.00) only against the Respondents jointly and severally in favour of the Applicants as general damages and or compensation for the unlawful arrest, detention, intimidation, harassment, humiliation and refusal to arraign them before a Court of competent jurisdiction.
6. Cost of this action to be determined at the end of the action.
7. AND for such further Order(s) as the Honourable Court may deem fit to make in the circumstances.”
The Application was accompanied by a Statement in Support thereof which was a replication of the Reliefs sought and reproduced earlier except that the Applicants stated in paragraph 1 thereof that the Applicant is the Pastor of Jesus is Great Ministries, Okete, Okpikwu, and resides in Okete-Okpikwu, Ohimini Local Government Area of Benue State and in the Reliefs sought in paragraph 2(i) they included an additional claim for “An Exemplary damages of Two Hundred Million Naira (N200,000,000.00) only against the Respondents.” See page 6 of the Record of Appeal.
At page 7 of the Records the Applicants in paragraph 3 of the Statement in Support stated the GROUNDS FOR THE RELIEFS SOUGHT as follows:-
“(a) That the 2nd to 5th Applicants at about 9:30am on the 28th day of May, 2018, while praying in their Church at Back To Bible Life Church, Agboke Village, the 1st to 4th Respondents initiated their arrest by the Agents of the 5th Respondent from Agboke Village, Ohimini Local Government Area of Benue State, and kept them in custody without any justifiable reason.
(b) That the Applicants were rough handled, dehumanized, beaten and kept in custody of the Respondents without proper care and food.
(c) That the movement of the Applicants have been restrained since the Applicants were in custody of the 5th to 8th Respondents and members of the immediate families of the Applicants were refused from interacting with the Applicants and seeking for their bail.
(d) That the Applicants are detained by the Agents of the 5th Respondent beyond twenty four hours and are yet to be released or arraigned before a Court of competent jurisdiction.”
The Applicants through Pastor John Godwin Ukwenya (the 1st Applicant now Appellant) also deposed to an Affidavit of 24 paragraphs on behalf of the other Applicants (now Appellants) in Support of the Application which can be found at pages 10 to 12 of the Records as well as Written Address pursuant to Order IV Rule 4(b) of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Upon being served with the Applicants’ Originating Processes, the 5th, 6th, 7th and 8th Respondents by a Motion dated 22nd June, 2018 sought for extension of time to file their Counter-Affidavit and Written Address, the Motion, Counter-Affidavit and Written Address in Support can be found at pages 22 to 28 of the Record of Appeal. On their part the 1st, 2nd, 3rd and 4th Respondents’ Counter-Affidavit to the Applicants’ Motion can be found at pages 29 to 31 of the Record of Appeal and is dated and filed on the 14th day of June, 2018. It would also appear that the 2nd Respondent Chief Odeh Williams Oteikwu deposed to a separate Counter-Affidavit same 14th day of June, 2018 and their Counsel E.O. Samson, Esq. also filed a Written Address in support of the two Counter-Affidavits. On a careful perusal of the Counter-Affidavit captioned “COUNTER-AFFIDAVIT OF THE 1ST, 2ND, 3RD AND 4TH RESPONDENTS” deposed to by Joy Samson, paragraph 2 thereof at page 30 of the Records discloses that she had only the consent of 1st, 3rd and 4th Respondents and not the 2nd Respondent to swear to the Counter-Affidavit. It is also pertinent to note that the 2nd Respondent annexed Exhibit “E-01” captioned “POLICE INVITATION” (See page 38 of the Records).
Also, the 5th, 6th, 7th and 8th Respondents filed their Counter-Affidavit deposed to on their behalf by Sgt. Agbo Yakubu who signed Exhibits “E-01”. Annexed to the said Counter-Affidavit of the 5th – 8th Respondents were Exhibits NP “A”, NP “B”, NP “C”, NP “D”, NP “E”, NP “F”, NP “G”, NP “H” and a Written Address. See pages 39 to 58 of the Records. The Applicants upon being served with the Respondents’ Counter-Affidavits, filed a FURTHER AFFIDAVIT OF THE 1ST TO 5TH APPLICANTS PURSUANT TO ORDER VI RULE 2 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009. That FURTHER AFFIDAVIT can be found at pages 60 to 63 of the Records and filed on 29th day of June, 2018 and was accompanied by a Written Address (See pages 65 to 69 of the Records).
On the 10th day of July, 2018 the learned Counsel for the respective parties adopted their respective Addresses and on the 21st September, 2018, the learned Trial Judge found no merit in any of the Reliefs sought by the Applicants and he accordingly dismissed their Application for lacking in substance. See the Judgment at pages 75 to 85 of the Records.
Piqued by the said Judgment, the Applicants through their respective Counsel filed a Joint Notice of Appeal predicated on 3 (Three) Grounds as can be seen at pages 87 to 90 of the Records. For purposes of emphasis the Grounds of Appeal are hereunder reproduced albeit without their respective particulars as follows:-
“GROUNDS OF APPEAL:
GROUND ONE: ERROR OF LAW
The Judgment of the Trial Court is against the weight of evidence.
GROUND TWO:
The Trial Court erred in law when it failed to consider whether the Report made by the 1st to 4th Respondents on 7th Respondent against the Appellants was made maliciously even when there was sufficient evidence that the Report was made mala fide.
GROUND THREE: ERROR OF LAW
The Trial Court erred in law when it failed to evaluate and consider the Further Affidavit evidence of the Appellants/Applicants presented before the Honourable Court before dismissing the Fundamental Rights Application of the Appellants/Applicants when from the available evidence, the Court ought to have entered Judgment for the Appellants/Applicants.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
1. AN ORDER setting aside the Judgment of the High Court, Otukpo (hereinafter referred to as the Lower Court) dated 21st day of September, 2018 and in its place grant all the reliefs sought in Motion No. OHC/191M/2018.
2. AND ANY FURTHER ORDER THE COURT deems fit to meet.”
Upon the transmission of the Record of Appeal and entry of the Appeal on the 6th day of December, 2018, briefs of Argument were filed and exchanged by the respective learned Counsel to the Parties. In the Appellants’ Brief settled by Dominic Adejoh, Esq. dated and filed on the 10th day of December, 2018, Two (2) Issues were distilled from the Three (3) Grounds of Appeal for determination as reproduced hereunder:-
“ISSUES FOR DETERMINATION:
1. Whether the Lower Court was right to have dismissed the Fundamental Human Rights Application of the Appellants/Applicants without recourse to the Constitutional provisions, particularly Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended)?
2. Whether the failure of the Trial Court to consider the Further Affidavit of the Applicants/Appellants before it determined and dismissed the Originating Application was against the spirit of fair hearing and led to miscarriage of justice?”
On the other hand, E.O. Samson, Esq. who settled the 1st to 4th Respondents’ Brief of Argument filed on the 14th of January, 2019 nominated a Sole Issue for determination as couched and reproduced hereunder:-
“ISSUE FOR DETERMINATION OF THE COURT:
Whether the Lower Court was not right to have dismissed the Appellants’ Application for the Enforcement of their Fundamental Rights in view of the facts and evidence placed before the Lower Court.”
Before delving into the Arguments and resolution of the Issues as formulated for determination by the respective Learned Counsel to the Parties, it is necessary to have a resumé of the facts of the case as can be gleaned from the respective Briefs of Argument of the Parties. For the Appellants who were the Applicants at the Trial Court, their case as stated in their Affidavit is that the 1st to 4th Respondents initiated the arrest of 2nd to 5th Appellants/Applicants from the Church where the Applicants/Appellants were gathered for a prayer Session to their God, without any just cause. Page 6 of the Records refers.
Consequently, upon the report, the Appellants were arrested and detained by the 5th to 8th Respondents at the Divisional Headquarters of the Nigeria Police, Idekpa Division from 28th May, 2018 to 30th May, 2018, (More than 72 hours) without informing them of the ground of their arrest and detention or granting them administrative bail. The Appellants were only released on bail when the Respondents were served with the Originating Application from the Court (pages 6-8 of the Records refer).
It was their further case that the 1st – 4th Respondents filed their Counter-Affidavit on 14th June, 2018 together with their Written Address while the 5th – 8th Respondents also filed theirs as earlier stated, on the 25th of June, 2018 after their Application for enlargement of time was granted and all the Respondents attached various documentary Exhibits to their Counter-Affidavits in urging the Court to dismiss the Appellants’ Application. As also noted earlier the Applicants/Appellants upon being served the Counter-Affidavits and Written Addresses also filed a Further Affidavit in urging the Lower Court to grant the Application and after the adoption of the Written Addresses of the respective Counsel, the Court below dismissed the Applicants/Appellants’ Application, hence the Appeal against the Ruling of the learned Trial Judge.
The facts of the case of the Respondents as can be gleaned from their Brief of Argument are that the 1st Appellant stated that he was a Deliverance Minister who was invited by the 1st Respondent for a Prayer Ministration in Agboke Community and that later on he was frequently invited by Agboke Community for Prayers (Page 10 of the Records refers). On the 20th of May, 2018 he was invited also by the Youths of Agboke and they held their Prayer Session and left but after he left he heard that some of the Youths and Elders that had the Prayer Session with him were humiliated and harassed for no just cause. The 1st Applicant/Appellant also stated that while he was repairing his car on the 28th of May, 2018 he received a phone call that some of the members of his Ministry had been arrested while praying in Agboke Village at about 9:30am in connection with the prayer that was held on the 20th May, 2018 (Page 11 of the Records refers).
The 1st Appellant was said to have deposed to the fact that he was equally invited by the Divisional Police Officer, Idekpa in Ohimini Local Government and he later engaged his Lawyer to secure bail for the 2nd – 5th Appellants. (Page 11 of the Records refers). He also alleged that the 2nd to 5th Applicants/Appellants were in detention at the Police Station without being informed of what they did and also were refused bail by the Police but were in custody beyond 24 hours.
On their part, the 1st, 3rd and 4th Respondents denied the allegation on the ground that they did not know anything concerning the detention of the Appellants. (Page 30 of the Records refers). The 2nd Respondent was said to have stated that as the Clan Head of Agboke Community, the Police sent him an invitation letter to come forth with the names of the persons as shown in Exhibit “E-01” and further that he was not aware of the facts and circumstances that led to the violation of the rights of the Appellants.
As for the 5th to 8th Respondents they stated that they received a Petition from the 2nd Respondent on 28th May, 2018 in respect of the case of Criminal Conspiracy, inciting disturbance and defamation of Character against the Appellants. The Appellants were therefore invited upon the Petition for interrogation and the 1st Appellant never honoured the invitation but that the 2nd, 3rd, 4th and 5th were cautioned and each volunteered their Statements. They denied that the Appellants were ever denied bail but were released on administrative bail. The 5th to 8th Respondents further stated that the Applicants/Appellants brought the Suit (Application) in the Lower Court to scare them away from prosecuting the Applicants.
The 5th to 8th Respondents finally stated that they have concluded investigations and they were ready to prosecute the case to a conclusion. See Page 41 of the Records. I have searched through the case file but can not find the 5th to 8th Respondents’ Brief.
It has to be noted that in the Learned Counsel to the 1st to 4thRespondents’ Brief dated 28th day of October, 2018 but filed on 14th January, 2019 he incorporated the Respondents’ Notice of Preliminary Objection in paragraph 4.00 and while the Grounds are enumerated in paragraph 4.10 the Arguments in Support thereof can be found in paragraph 4.20 at pages 8 to 10 of the Brief of Argument.
We shall come to the Objection at the appropriate time in the course of this Judgment but at this juncture we shall proceed to look at the Legal Arguments of the respective learned Counsel in their Briefs of Argument.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER 1 (ONE):
Arguing this 1st (First Issue) which questions whether the Lower Court was right to have dismissed the Fundamental Human Rights Application of the Applicants/Appellants without recourse to the Constitutional Provisions, particularly Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended); the learned Counsel to the Appellants pointed out that from the totality of the evidence before the Trial Court, what is discernible is that the Appellants were arrested against their constitutional rights as provided in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). He contended that in determining this question it should be noted that the duty of the Court in the course of entertainment of Claims under the Fundamental Rights Enforcement Procedure is not to conduct criminal investigations, inquiry or trial, neither is it to establish the guilt or innocence of any party nor its essence the establishment of the Parties obligations or liabilities with respect to civil transactions between them.
According to him, the Sole essence of the Procedure is simply and strictly to enforce the protection of the citizen’s fundamental rights as preserved in Chapter IV of the Constitution and other Human Rights Instruments, where infringement is established or perceived. He cited the provisions of Section 46(1) of the Constitution to submit that it is trite that the issue as to whether a citizen’s fundamental right has been, is being or is likely to be infringed are issues basically of facts, which must be established by the Applicant who alleges the breach or perceived breach.
The learned Counsel to the Appellants noted that the Appellants were arrested and detained for 72 hours upon a baseless and flimsy Report made to the Police and that the Police never informed the Applicants/Appellants of the ground of their arrest nor were they charged to Court with any offence, but were kept in the most dehumanizing manner. Citing the cases of Oyewole Fashawe vs. Attorney-General of the Federation & 3 Ors. (2007) CHR page 80 at 120; where the Court interpreted the essence of Section 35(1)(c) of the Constitution and Abasin Band &Ors. vs. Gunaratne & 3 Ors. (2005) CHR page 291; a decision of the Supreme Court of Sri Lanka on the powers of the Police to arrest as well as Shabu Abu &Ors. vs. Commissioner of Police, Lagos State &Ors. (2006) CHR page 1 at page 22 paragraph F; on the trite position of the law that a person can only be arrested upon reasonable suspicion of having committed a crime which is lacking in this case, he submitted that the test for reasonable suspicion of a crime demands that Police brings the suspect before a competent Court within a reasonable time.
Still on arrest of a suspect, the learned Counsel again cited and relied on Preye Johnson vs. Commissioner of Police (2005) CHR, page 388 at 394 paragraphs G-H; on the need for the person who has been proved to have violated a right guaranteed by the Constitution to justify the infringement and not the victim of infringement to exclude all circumstances of justification. He further alluded to Abasin-Band & Ors. vs. Gunaratne & 3 Ors. (supra) at page 304 paragraphs B-D; on the need to be informed of the ground for his arrest; to urge us to hold that the conduct of the Respondents violated the rights of the Applicants/Appellants as the Respondents herein have not been able to give any reason so far for the arrest and detention of the Appellants.
Reference was again made to Section 35 of the 1999 Constitution which guarantees the sanctity of the Appellants’ Right to Personal Liberty and at the same time seems to recognize the duties imposed on the Respondents, by virtue of the provisions of Section 4 of the Police Act to enforce all laws, prevent the commission of crimes. Ransome-Kuti vs. A-G, Federation (2001) FWLR (Pt.80) 1637 at 1696 and Udeh vs. F.R.N. (2001) FWLR (Pt.61) 1734 at 1747; were cited in support of the above position of the Law and to further maintain that the Respondents in this case did not defend this action and there is nothing on record to show that Applicants/Appellants’ detention was secured with the ambits of the exception set out in Section 35(1)(a)-(c) of the Constitution.
He further submitted finally on this Issue that much as the Court recognizes the Respondents’ Constitutional and Statutory duties and functions to detect crime and bring the suspected criminals before Courts, in the present circumstances, it is clear that the Respondents breached the provisions of Section 35(4) and (5) of the Constitution which bars them from detaining the Appellants beyond one day without Court Order or taking them before a Court for purposes of being charged, if indeed they were suspected to have committed any offence. It was therefore his view that it is injustice and clear violation of their (Applicants/Appellants’) rights to personal liberty, for the Respondents to keep them in custody at their convenience in utter disregard of the Constitution of the Federal Republic of Nigeria, 1999. For the above contention he placed reliance on Augustine Eda vs. COP, Lagos (1984) 5 NCLR 836 and Isenalumhe vs. Amadi (2001) 1 CHR 461; to urge the Court to resolve this first Issue in favour of the Appellants.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 2 (TWO):
Arguing this Second Issue which questions whether the failure of the Trial Court to consider the Further Affidavit of the Appellants/Applicants before it determined and dismissed the Originating Application was against the spirit of fair hearing and led to miscarriage of justice, the learned Counsel to the Appellants submitted that the Lower Court failed to properly evaluate the Further Affidavit of the Applicants/Appellants vis-à-vis the Exhibits attached to the Counter-Affidavit of the 5th to 8th Respondents placed before the Court in order to determine whether they established any breach of their Fundamental Rights to personal liberty, dignity of the persons, freedom of thought, conscience and religion, peaceful assembly and association, freedom of movement and discrimination by actions and conduct of the Respondents.
The learned Counsel argued that the excuse by the Respondents and as contained in Exhibits NP“A” and NP “B” that a prima facie case was established against the 2nd to 5th Appellants/Applicants fades into insignificance in view of the failure of the Respondents to arraign the Appellants promptly before a competent Court to determine whether or not to order the Applicants/Appellants’ continued detention in accordance with the dictates of the Law. In so submitting above, he cited and relied on the authorities of Fawehinmi vs. I.G.P. (2002) 7 NWLR (Pt.767) 606; Onyirioha vs. I.G.P. (2009) 3 NWLR (Pt.1128) 142; on the impropriety of investigation procedure where the Police keeps an alleged suspect in detention while fishing for evidence to charge him to Court and the purport of the provisions of Section 35(1)and 36(5)and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) in that respect.
He further submitted that the law is trite as case law is replete on the principle that once the Court finds that the Fundamental Rights of an individual has been violated by the act(s) of a Respondent(s), the affected person (Applicant) is entitled to compensation which is the intent and purport of Section 35(6) of the 1999 Constitution (As Amended) the provision which he quoted. Further reference were also made to the case of Jim-Jaja vs. C.O.P. Rivers State (2013) 22 WRN 39 at 56; where the Supreme Court interpreted Sections 35(6) and 46(2) of the Constitution on the effect of the principle of “ubi jus ibiremedium” where an Applicant like the Applicants/Appellants herein are able to prove that violation of his/their right(s); and Ozide & Ors. vs. Ewuzie & Ors. (2015) LPELR-24482 (CA); on the award of damages in compensation as a consequence of the violation of a citizen’s right.
The learned Counsel to the Appellants also alluded to the authorities of Gusau &Ors. vs. Umezuruike (2012) LPELR-8000 (CA); Okonkwo vs. Ogbogu (1996) 5 NWLR (Pt.499) 420; Isenalumhe vs. Joyce Amadin (2001) CHR 458; Nemi vs. A-G, Lagos State (1996) 6 NWLR (Pt.452) and Ejiofor vs. Okeke (2000) 7 NWLR (Pt.665) page?; on the nature of arrest and detention upon which an action in breach of Fundamental Right can lie and the need for the Respondents who instigated an arrest and detention to show that the arrest and detention were lawful.
In conclusion, the learned Counsel cited and relied on the dicta of Nwodo, JCA of blessed memory and Mbaba, JCA where they respectively held that the law presumes that damages flow naturally from injuries suffered by the victimized as a result of infraction of his fundamental rights and that even if the Applicants have not sought any damages, damages should be awarded; to urge us to allow the Appeal.
ARGUMENT OF THE LEARNED COUNSEL TO THE 1ST TO 4TH RESPONDENTS ON THEIR PRELIMINARY OBJECTION AND THE SOLE ISSUE DISTILLED FOR DETERMINATION:
In reaction to the argument of the Issues distilled by the learned Counsel to the Appellants as set out above, the learned Counsel to the Respondents as noted earlier in the introductory part of this Judgment, gave Notice of Preliminary Objection in paragraph 4.00 page 8 of the Respondents’ Brief of Argument on the competence of Grounds One and Two of the Grounds of Appeal and the Issues formulated therefrom.
In paragraph 4.10 of the same page, the learned Counsel to the Respondent set down the Grounds upon which the Preliminary Objection is predicated as follows:-
“1. That the issue or issues distilled are not tied or related to any ground of appeal.
2. That the issues distilled are not connected to any of the grounds of appeal.
3. That the grounds of appeal, the issues distilled therefrom and the Brief of Argument are not in respect of the ratio decidendi, the decision or Judgment of the Lower Court.”
In his argument on the Preliminary Objection the learned Counsel submitted that a curious look at that issues distilled by in the Appellants’ Brief of Argument show that none of the issues is tied to any of the Grounds of Appeal and for this reason the Issue(s) are not competent and should be discountenanced and struck out. The authorities of Ndukwe vs. The State (2009) Vol.170 LRCN page 185 and SPDC Nig. Ltd. vs. Edamkue&Ors. Vol.176 page 1 at page 22 paragraphs A-P per Ogbuagu, JSC on the above stated principle.
Upon the assumption that it is inelegance not to tie the Issues to the Grounds of Appeal, the learned Counsel, posited that it is a serious misfortune on the Appellant where the issues distilled are at large and this Court on the authorities of Diamond Bank Plc vs. Opara (2018) Vol.277 LRCN page 1 at13 KP and Oketaolegun vs. The State (2015) Vol.247 LRCN page 1 at 26 ZZ; should discountenance them.
Lastly on the ground that the Grounds of Appeal do not reflect a direct challenge to the decision of the Court below since the Appellants did not attack the decision and findings of the Trial Court by the Grounds of Appeal and their Brief of Argument, he submitted that the consequence is that these Grounds of Appeal should be struck out. For this submission he placed reliance on the dictum of Rhodes-Vivour, JSC in Wassah & Ors. vs. Kara & Ors. (2015) Vol.239 LRCN page 38 at 59 AF.
Turning to the Sole Issue distilled on behalf of the 1st – 4th Respondents which is whether the Lower Court was right to have dismissed the Appellants’ Application for the Enforcement of their Fundamental Rights in view of the facts and evidence placed before the Lower Court, he answered the question in the affirmative. According to the learned Counsel, the 2nd Respondent was the one who made the Report to the 7th Respondent by Exhibit NP “B” the Complaint Letter that culminated in the investigation by the 5th to 8th Respondents on the allegation of Criminal Conspiracy, inciting disturbance and Defamation of Character. The 1st, 3rd and 4th Respondents according to the learned Counsel denied any knowledge of the violation of the rights of the Appellants and that a curious look at the Appellants’ Affidavit does not disclose the role played by the 1st to 5th Respondents in violation of their (Appellants’) rights. Reference was made to the Appellants’ Affidavit as contained in pages 60 to 63 of the Record of Appeal.
He posited that the entire case of the Appellants rest on the fact that the 2nd Respondent made a Report to the Police which was under investigation and the 2nd to 4th Respondents made their Voluntary Statements in Exhibits NP “D”, NP “E”, NP “F” and NP “G” which are not challenged. For the submission above, he referred us to the decision of the Trial Court at page 84 of the Records which he quoted at page 11 lines 6-14 of the Respondents’ Brief of Argument which findings in his view have not been impugned or challenged by the Appellants nor did they prove that they were detained beyond the Constitutionally required time which burden rested on the Appellants so to do and not the Respondents.
In spite of the above situation, he asserted that the 5th to 8th Respondents had shown that the 2nd to 5th Appellants were granted administrative bail in Exhibit NP “H”. He further insisted that the 1st Appellant who failed to submit himself to Police invitation has no moral duty to complain about violation of the rights of the 2nd to 5th Appellants when they (2nd – 5th Appellants) succumbed to the invitation by 5th to 8th Respondents and were granted bail upon their Voluntary Statements. According to the learned Counsel, the conduct of the 1st Appellant validated the facts deposed to in the Counter-Affidavit of the 5th to 8th Respondents in paragraph 16 of their Counter-Affidavit that the Application was brought in order to “smear the image of the Respondents and scare them away from the exercise of their duties.”
In conclusion, we were urged to dismiss the Appeal for the reasons enumerated in page 12 of the Respondents’ Brief of Argument.
RESOLUTION OF ISSUES:
Before delving into the resolution of the substantive Issues distilled for determination, it is apt at this juncture to determine the Preliminary Objection raised by the Learned Counsel to the Respondents since the determination of the Preliminary Objection in the Respondents’ favour, Grounds 1 and 2 shall be struck out. Let me also re-state the position of the law on the mode of raising Preliminary Objections as have been laid down by the Supreme Court in a plethora of cases which have been followed by this Court, that where an objection is against the hearing of the Appeal (in other words that the entire Appeal is incompetent), a Notice of Preliminary Objection as filed by the learned Counsel to the Respondents would have been appropriate. Where however, the objection is against the competence of the Grounds of Appeal and the Issues formulated therefrom as in this case, then the appropriate mode would have been by way of a Motion on Notice. See Dauda vs. F.R.N. (2018) 10 NWLR (Pt.1626) 169; Adejumo vs. Olawaiye (2014) 12 NWLR (Pt.1421) 252 and the very recent case of N.C.C. vs. Motophone Ltd. (2019) 14 NWLR (1691) 1 at 24-25, paragraphs H-B.
In the last case above cited, Abba Aji, JSC who delivered the Lead Judgment of the Apex Court was confronted with what the learned Counsel to the 1st Respondent raised as “Preliminary Points” to the competence of Grounds 1, 8 and 9 of Issue 1 and Grounds 5 and 6 of Issue 3 by reason that the Grounds raised Issues of mixed law and facts without the leave of the Court below first sought and obtained and the learned Counsel to the Appellant in his Reply Brief on the authorities of KLM Royal Dutch Airlines vs. JamlatAloma (2017) LPELR-42588 (SC); and Odunukwe vs. Ofomata (2010) 18 NWLR (Pt.1225) at 423 as well as Okorocha vs. Ohakim & Ors. (2014) LPELR-22057 (SC); challenged the competence of the Preliminary Objection and urged the Supreme Court to discountenance the Notice of Preliminary Objection and relying on the dicta of Aka’ahs, JSC and Rhodes-Vivour, JSC in Adejumo vs. Olawaiye (supra), discountenanced the Preliminary Points or Objection on the Ground that the Respondent’s objection was incapable of completely debilitating and destroying the entire Appeal.
In the instant case, the Appellants did not file a Reply Brief to urge us to discountenance the Preliminary Objection. That notwithstanding, I would have been minded to discountenance the Respondents’ Preliminary Objection but taking a cue from my Noble Lord Abba Aji, JSC in the N.C.C. vs. Motophone Ltd. (supra) case at page 25 paragraphs E-F; I shall in the interest of justice consider the Preliminary Objection for whatever it is worth.
Going by the State of our Law, it is now trite and needs no citing of authorities that Grounds of Appeal must relate to the rationes decidendi of the Court from which the Appeal arose which is the essence of the third Ground upon which the Respondents’ Preliminary Objection is predicated. See the cases of F.B.N. Plc vs. A-G, Federation (2018) 6 NWLR (pt.1350) 225; Nwankwo vs. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377; NDIC vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt.880) 107; and A.I. Ltd. vs. N.N.P.C. (2005) 1 NWLR (Pt.973) 563; where it was variously held that an Appeal is an invitation to a higher Court to review a decision of a Lower Court and that Grounds of Appeal are basically highlights of the error of law or fact or mixed law and fact committed by the Lower Court in the decision taken which is sought to be set aside on Appeal.
Accordingly, a Ground of Appeal must be related to the decision of the Lower Court and the reason for such decision and must also contain complaints that the Appellant relies upon to succeed in setting aside the ratio decidendi of the Judgment, and not just the observations and passing remarks (Obiter dicta) of a Judgment in the course of writing his Judgment.
Upon a careful perusal of the Grounds of Appeal in the instant case, Ground One complains that the Judgment is against the weight of evidence. This is a general Ground otherwise tagged the Omnibus Ground which has been defined as a Ground of fact complaining against the totality of the evidence adduced at the Trial. It is not against a specific finding of fact or any document and cannot be used to raise any issue of error or law. By it, the Appellate Court is invited to examine and determine on what grounds of facts, apart from misdirection, that the Judgment appealed against can be supported. On the purport of an Omnibus Ground, it has been held that it implies that the Judgment of the Trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial Court wrongly accepted; or that the inference drawn or conclusion reached by the Trial Court based on the accepted evidence cannot be justified. It has also been held that the further implication of the Ground is that when the evidence adduced by the Appellant is placed side by side and with that of the Respondent weighed on the imaginary scale of justice, the Judgment given in favour of the Respondent is against the totality of the weight of evidence adduced before the Trial Court. Amongst other implications of an Omnibus Ground is, as it has also been held that such a ground questions the appraisaland evaluation of evidence. See Obatoyinbo vs. Oshatoba (1996) 5 SCNJ 1; Chief EtowaEnang vs. Fidelis IkorAdu (1981) 11-12 SC 25 at 26; Anyaoke vs. Adi (1986) 3 NWLR 731 and specially the celebrated case of Finnih vs. Imade (1992) 1 NWLR (Pt.511) at 543 also reported in (1992) LPELR-1277per Nnaemeka-Agu, JSC citing the dictum of Uwais, JSC in Anachuna Anyaoke & Ors. vs. Dr. Felix Adi &Ors. (No.2) (1986) 3 NWLR (Pt.31) 731 at page 42. See also per Ogbuinya, JCA in Shima Chagba vs. KwaghtsumeUgande & Ors. (2013) LPELR-22853 (CA) at pages32-33 paragraphs C-A; Nwaigwe vs. Okere& Anor. (2008) LPELR-2095 (SC) per Tobi, JSC at page 35 paragraphs C-E and Ogbuagu, JSC in Emmanuel Ben vs. The State (2006) LPELR-770 (SC) page 26, paragraphs C-E.
From the above analysis, Ground 1 alone which complains that the Judgment is against the weight of evidence, the Learned Counsel can not seriously contend that the Issues distilled therefrom are tied to Grounds 1 and 3 of the Grounds of Appeal whereas Issue Number 2 is tied to Ground 2 of the Grounds of Appeal as the Grounds question the evaluation and appraisal of the totality of the evidence by the Trial Court.
There is no doubt as submitted by the learned Counsel to the Respondents that as decided by Ogbuagu, JSC in SPDC (Nig.) Ltd. vs. Edamkue&Ors. Vol.176 page 1 at 22 AP of LRCN; the law is settled that as a general rule, Issue(s) for determination must relate to or be distilled from a Ground or Grounds of Appeal and if not so distilled it/they will be regarded as incompetent, discountenanced and struck out. See Akere vs. Gov. Oyo (2012) 12 NWLR (Pt.1314) page 240 (SC); Omo vs. JSC, Delta State (2000) 12 NWLR (Pt.682) page 444 andMadukolu vs. Nkemdilim (1962) 2 SCNLR (Pt.1322) 311 as well asNdukwe vs. The State (2009) Vol.170 LRCN page 185; Animashaun vs. UCH (1996) 12 SCJ 179 at 184; Chief Agbaisi& 3 Ors. vs. Ebikorefe&Ors. (1997) 4 NWLR (Pt.502) 630 and Adelusola& 4 Ors. vs. Akinde& 3 Ors. (2004) 12 NWLR (Pt.887) 295; ably cited by the learned Counsel to the Respondent.
The above authority notwithstanding, I hold the view that all the issues relate and are distilled from the Grounds of Appeal as I had earlier held.
Finally on the contention that the Grounds of Appeal do not challenge the ratio decidendi of the Lower Court and the findings, it is pertinent to note that the Appellants complained at the Lower Court that they were arrested and detained upon the complaint of the 2nd Respondent to the 5th to 8th Respondents who are Law Enforcement Officers. They also complained that they were detained for 72 hours without bail and access to their family members of their respective families, in violation of their rights to freedom of Association, liberty, movement, dignity of human person, thought and from discrimination as entrenched in Sections 34, 35,38, 40, 41 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) which should have enured in their favour in view of their averments in their Affidavit and Further Affidavit in Support of their Application for the enforcement of their Fundamental Rights particularly as the 5th to 8th Respondents did not defend the action and according to the Appellants that there is nothing on Record to show that the detention of the Applicants/Appellants was secured within the ambit of Section 35(1)(a)-(b). Notwithstanding the above contentions/Claims of the Appellants, the Court below held at page 83 paragraph 2 i.e. lines 23-37 of the Records to page 84 lines 1-2, as well as lines 23-34 of page 84 of the Records and found in favour of the Respondents that the arrests were justified and lawful for the reasons advanced in so holding which are the rationes decidendi being challenged in the Grounds of Appeal and the Issues raised therefrom. Furthermore, at page 85 of the Records/12 of the Judgment complained against, the learned Trial Judge also held that it was not clear before him as to the length of time the Applicants were detained inPolice custody. He further held that the 5th to 8th Respondents in their Counter-Affidavit stated in paragraph 10 thereof that the Applicants/Appellants were promptly granted Administrative Bail in Exhibit NP “H” which averment was not challenged. However, a look at the copious averments especially in paragraphs 4 and 5 of the Further Affidavit, the Court ought to evaluate same against the documents annexed to the Counter-Affidavit of the Respondents and it is the alleged failure by the Court below so to do that has warranted Ground 3 and Issue Number 2 (Two) formulated therefrom.
In the light of the above and in spite of the decision of the Supreme Court per Rhodes-Vivour, JSC in Wassah&Ors. vs. Kara &Ors. (2015) Vol.239 LRCN page 38 at 59 AF; that it is long settled that a Ground of Appeal must arise from or relate to the Judgment against which the Appeal is filed and that the Ground of Appeal should be a direct challenge to the decision of the Lower Court and where this is not the case the Grounds of Appeal should be struck out on the authorities of Kolawole vs. Alberto(1989) 1 NWLR (Pt.98) 382 and Alubankudi vs. A-G, Federation(2002) 17 NWLR (Pt.796) page 360; which I am in total agreement with, as I had also held earlier, that the above cited authorities are not applicableto the facts of this case if a cursory look is taken at the Judgment of the Lower Court at pages 83/10 to 85/12 of the Records/Judgment of the Lower Court.
I therefore reiterate on the whole that the Preliminary Objection lacks merit and same is accordingly discountenanced and dismissed. I so hold because even if Grounds 1 and 2 are struck out, Ground 3 can sustain the Appeal if it succeeds. Besides, this Court can adopt the Sole Issue formulated for determinationas it encompasses all the Grounds of Appeal as I do hereby and subsume the Two Issues distilled for determination within the Respondents’ Issue which is:-
“WHETHER THE LOWER COURT WAS RIGHT TO HAVE DISMISSED THE APPELLANTS’ APPLICATION FOR THE ENFORCEMENT OF THEIR FUNDAMENTAL RIGHTS IN VIEW OF THE FACTS AND EVIDENCE PLACED BEFORE THE LOWER COURT.”
To answer the above question, it is necessary to allude to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) upon which theAppellants/Applicants predicated their Application for the enforcement of their Fundamental Rights. Section 34(1) of the Constitution provides that every individual is entitled to respect for the dignity of his person and nobody shall be subject to torture and/or inhuman or degrading treatment. By Section 35(1)(a)-(c), (5) and (6) which is the crux of the complaint of the Appellants’ complaint, every person shall be entitled to his personal liberty and no person shall be deprived of such liberty, save in the circumstances enumerated in Section 35(1)(a)-(c) for the purpose of the Applicants/Appellants in the Lower Court culminating in this Appeal and which are:-
“(a) In the execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty.
(b) By reason of failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law.
(c) For the purpose of bringing him before a Court in execution of the order or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent hiscommitting a criminal offence.”
Subsection (4) of Section 35 on its part stipulates mandatorily that:
“(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 reasonable 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 a trial at a later date.
(5) In Subsection (4) of this Section, the expression “reasonable time” means:-
(a) In any 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 inthe circumstances may be considered by the Court to be reasonable.
(6) Any person who is unlawfully arrested and detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”
The above provisions notwithstanding, Subsection (7) of Section 35 has entered a caveat to the effect that:-
“(7) Nothing in this Section shall be construed:-
(a) In relation to subsection (4) of this Section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence.”
Sections 38, 40, 41 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) by their respective provisions guarantee the Right to Freedom of Thought, Conscience and Religion, Right to Peaceful Assembly and Association; Right to Freedom of Movement and Right to Freedom from Discrimination which Rights are also enshrined in Articles 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12 of the African Charter On Human and Peoples’ Rights (Ratification and Enforcement) Act, 1990 upon which the Appellants/Applicants’ Application was also predicated upon.
From the submissions of the learned Counsel to the Appellants their complaint as can be gleaned from their Affidavit and Further Affidavit is that the dignity of their persons and their right to Personal Liberty and Freedom of Movement had been violated by the Respondents by their being arrested and detained for 72 hours without bail, while exercising their rights as guaranteed them by the Constitution, to freedom of thought, conscience and religion as well as freedom from discrimination. Indeed the GROUNDS FOR THE RELIEFS SOUGHT speak for themselves as had earlier been reproduced in this Judgment.
The facts in Support of the Reliefs Sought have been summarized by the learned Counsel to the Respondents but it is necessary here to go back to the Affidavit of Pastor John Godwin Ukwuenya who deposed in paragraphs 1 to 22 as to the cause of the Appellants’ action as follows:-
“1. That I am Pastor of Jesus is Great Ministry in Okete – Okpikwu, Ohimini Local Government, Benue State and one of the Applicants inthis case.
2. That by virtue of paragraph One (1) above I am familiar with the facts stated herein.
3. That the other Applicants cannot depose to the affidavit, they are detained in Police custody.
4. That I have the consent of the other Applicants and their Counsel to depose to this Affidavit.
5. That as a deliverance Minister, I was first invited to Agboke by the 1st Respondent for a prayer ministration sometime in 2014, which I did.
6. That after that ministration, the members of Agboke Community started inviting me to minister to them in prayer.
7. That again on the 20th day of May, 2018, the Agboke Village Youths invited me for a prayer ministration in their Village.
8. That I honoured the invitation and went to the Agboke Community in Ohimini Local Government to pray for the Youths as requested.
9. That on getting there I was ushered to under a cashew tree in the compound of One Jack Okwori where the Youths and other committed worshippers were gathered in anticipation of my coming.
10. That we prayed and I left the Community without any problem.
11. That I was surprised to hear that some of the Youthsand members of the Community I prayed with were harassed and humiliated by the Elders of the Community for no just cause.
12. That I was equally surprised to receive a phone call while at the Mechanic Village, Otukpo working on my car on 28th day of May, 2018 that the 2nd to 5th Applicants who are members of my Ministry were arrested while praying in the Church at Agboke Village at about 9:30am in connection with the prayers we had together at Agboke Village on 20th of May, 2018.
13. That I was later informed that I was equally wanted by the Divisional Police Officer, Idekpa, Ohimini Local Government.
14. That it was in that process that I had to engage my lawyer to secure the release of the 2nd to 5th Applicants.
15. That when my Lawyer met with 8th Respondent who was the I.P.O. handling the matter at the Police Station at Idekpa to secure their release, he was equally met with disappointment as the Police refused to grant him audience to the release of 2nd to 5th Applicants.
16. That the Agents of the 5th Respondent have since kept the 2nd to 5th Applicant under dehumanizing condition in unlawful custody.
17. That the 2nd to5th Applicants have been under the custody of the 5th to 8th Respondents unlawfully without the commission of any offence or without being told of the offences they have committed.
18. That the 2nd to 5th Applicants are being treated inhumanly and have been without proper food and treatment.
19. That the freedom of movement of the 2nd to 5th Applicants is presently been curtailed unjustifiably since the Applicants are the breadwinners of their families and cannot be seen to perform their responsibilities.
20. That the relatives of the 2nd to 5th Applicants have made concerted efforts to secure the bail of the 2nd to 5th Applicants but were refused bail.
21. That the 2nd to 5th Applicants are in the custody of the 5th to 8th Respondents beyond twenty-four hours without (sic) unjustifiable reasons.
22. That I was informed by Dominic Adejoh, Esq., Counsel to the Applicants in his Law Firm, Victory Chambers, Eyum Memorial Centre, Otukpo, Benue State about 11:00am on the 29th day of May, 2018 and I verily believe him as follows:-
(a) That proper investigation must be carried out before arrest and detention of the Applicants.
(b) That the Constitution requires the treatment of persons with human dignity.
(c) That failure to charge the Applicants to Court within 24 hours is unlawful and unconstitutional.
(d) That the law required that compensation be paid and a public apology tendered to the Applicants for their unlawful detention in accordance with the Constitution.
(e) That there are more than Four (4) High Courts and Six (6) Magistrates Courts within Three (3) Kilometres from State/Local Government within jurisdiction where the 2nd to 5th Applicants are being detained.”
In their reaction to the above averments, Joy Samson, the Litigation Secretary in the Chambers of E.O. Sampson & Partners of No.6, Enugu Road (Destiny House), Otukpo, Benue State, on behalf of the 1st, 2nd, 3rd and 4th Respondents deposed to the following facts in their counter-affidavit.
“3. That I was informed by the 1st, 3rd and 4th Respondents in the Law Office of E.O. Samson & Partners at No. 6, Enugu Road, (Destiny House), Otukpo, Benue State on the 13th day of June, 2018 at about 10. Am and I verily believe them as follows:
(a) That the 1st Respondent is thecurrent District Head of Oglewu and also the Ada’ Ohumini of Ohimini Local Government of Benue State while the 3rd and 4th Respondents are residents of Agboke in Oglewu District, Ohimimi Local Government Area of Benue State.
(b) That all the paragraphs of the affidavit are false since they do not know anything concerning the detention and arrest of the violation of their human rights.
(c) That this suit is brought in bad faith against them since they are not aware of the facts and circumstances concerning the violation of their rights.
(d) That they were not involved nor instigate the violation of the human rights of the Applicants.
4. That I make this Oath believing its contents to be true in accordance with the Oaths law”. See page 30 of the Records.
As I said earlier, in spite of the fact that the above counter-affidavit was headed as incorporating the 2nd Respondent, the 2nd Respondent yet deposed to his individual counter-affidavit since from paragraph 3 of the earlier counter-affidavit of Joy Samson, he was excluded from her (Joy’s) averments. In that 6 paragraph Counter-Affidavit he (2nd Respondent) deposed tothe following facts:
“That I, Odeh Oteikwu, Male, Adult, Christian, Clan Head of Agboke Community of Oglewu of Ohimini Local Government Area of Benue State do make Oath and state as follows:
1. I am the clan Head of Agboke Community, Oglewu in Ohimini Local Government Area of Benue State.
2. That sometime in the month of May, 2018 the office of the Nigerian Police, the Otukpo Divisional Police sent a letter to me in my capacity as the clan head of Agboke community to invite one OchayiAchechema, InalegwuOriton and AmidieObochi to report to the Divisional Police in Otukpo. The said letter is hereby exhibited as Exhibit E-01.
3. That I asked the above persons mentioned in paragraph 2 above to visit the Deputy Police Officer in view of the letter to me.
4. That I am not aware of the facts and circumstances leading to the violation of the rights of the Applicants.
5. That this suit is brought in bad faith and I am not aware of the detention of the Applicants and I do not play role that led to their detention or the violation of their human rights.
6. That I make this Oath bona fide believing its content to be true andjust in accordance with the Oaths law.”
The 2nd Respondent’s counter-affidavit can be found at pages 32 and 33 of the Records while the letter of invitation from the D.P.O.; Nigeria Police Ohimini Division can be found at page 38 of the Records.
On their part, the 5th to 8th Respondents deposed to their counter-affidavit to the Applicants’ affidavit, through Sgt. Agbo Yakubu, a Police Officer attached to the Divisional Police Headquarters, Ohimini, Benue State Police Command as follows:
“1. That I am a Serving Police Officer attached to the Divisional Police Headquarters, Ohimini Benue State command and one of the investigating Police Officers that investigated the above suit upon which this application is hinged.
2. That I have the consent and authority of the 5th, 6th and 7th Respondents to depose to this counter-affidavit.
3. That I have read the Applicants’ Affidavit in support of this Applicants’ application.
4. That the facts as contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22(a, b, c, d, e) 23 and 24 of the Applicants’ Affidavit in support ofthis application are all false, fabricated and misleading.
5. That in response to the above referred paragraphs that on the 28th May, 2018 at about 1300 hrs, the case of criminal conspiracy inciting disturbance and defamation of character was reported against the Applicants and other suspects through a complaint made by the kindred Head of Agboke (2nd Respondent) wherein the case was accepted and referred to the office of the 7th Respondents for discreet investigation. Copies of the Police Extract from Crime Diary and Petition are hereby annexed and marked as Exhibit NP “A” and Exhibit NP “B” respectively.
6. That I know as a fact that upon the receipt of the Petition, Officers of the 7th Respondent swung into action inviting the Applicants and co-suspects to the office of the 7th Respondent for interrogation. The copy of the letter of invitation to the kindred Head to produce the Applicants to the office of the 7th Respondent is hereby annexed and marked at Exhibit NP “C”.
7. That I know as a fact that upon service of the letter of invitation the 1st Applicant never honoured the invitation but it was only the2nd, 3rd, 4th and 5th Applicants that reported to the office of the 7th Respondent.
8. That I know as a fact that upon the arrival of 2nd, 3rd, 4th and 5th Applicants to the office of the 7th Respondent, they were confronted with the above allegations as shown in Exhibit NP “A” and Exhibit NP “B” respectively.
9. That I know as a fact that the 2nd, 3rd, 4th and 5th Applicants were cautioned by officer of the 7th Respondent wherein they volunteered their statements to the officers of the 7th Respondent copies of the 2nd, 3rd, 4th and 5th Applicants Volunteered Statements are hereby annexed and marked as Exhibit NP “D,” Exhibit NP “E”, Exhibit NP “F” and Exhibit NP “G” respectively.
10. That I know as a fact that in the course of investigation the 2nd, 3rd, 4th and 5th Applicants were never arrested nor detained beyond the Constitutional requirement but the 2nd, 3rd, 4th and 5th Applicants were properly granted Police Administrative bail. The copy of the bail bond is hereby annexed and marked as Exhibit NP “H”.
11. That I know as a matter of fact that upongrant of bail to the 2nd, 3rd, 4th and 5th Applicants never reported back to bail to the office of the 7th Respondent as stipulated in ExhibNP ”H” above for arraignment.
12. That I know as a fact that 1st Applicant has never reported to the office of the 7th Respondent for interrogation and since then he has been on the run to pervert justice.
13. That I know as a fact that the investigation into the matter has been concluded and Premia facia case of Criminal Conspiracy, Inciting Disturbance and Defamatory of character has been established against the Applicants.
14. That I know as a fact that officers of the 7th Respondent are ready to prosecute the Applicants to a logical conclusion for the above offences.
15. That I know as a fact that the 5th, 6th, 7th and 8th Respondents cannot be stopped from carrying out their statutory and constitutional obligations of arresting, investigating and prosecuting of suspects whenever there is a criminal complaint.
16. That this Application is brought to smear the image of the Respondent and scare them from the exercise of their duties.
17. That this Application is brought totarnish the image of the Respondents and for Applicants to also reap from where they did not sow.
18. That it will serve the Justice of the case for the Court to refuse the grant of this Application against the 5th, 6th, 7th and 8th Respondents.
19. That this Application is brought to smear the image and good reputation of the 5th, 6th, 7th and 8th Respondents in Society as same is brought in bad faith.
20. That the Application will be prejudicial to the 5th, 6th, 7th and 8th Respondents.
21. That the Court is urged to dismiss this Application against the 5th, 6th, 7th and 8th Respondents for being frivolous, veracious and not in the interest of justice.
22. That I make thus deposition in good faith, consciously believing its content to be true, correct to the best of my knowledge and in accordance with the Oaths Act, 2004.’’
The documentary Exhibits above enumerated as annexed to the 5th to 8th Respondents counter Affidavit can be found at pages 43 to 53 of the Records.
At pages 60 to 63 of the Records, the 1st Applicant on behalf of the 1st to 5th Appellants/Applicants deposed to a Further Affidavit and inparagraph 4 thereof that he was informed by his Counsel Dominic Adejoh, Esq; in company of his other fellow Applicants that their learned Counsel had been served with the 1st- 4th Respondents as well as the 5th to 8th Respondents Counter Affidavits and that:
“4(a) That the Applicants (sic) denies paragraph 4,6,7,8,9,10,11,12,13,16,17,19,20 and 21 of the 5th to 8th Respondents’ Counter Affidavit and equally denies all the paragraphs of the 1st to 4th Respondents’ counter-Affidavit to the extent that it was the Respondents that gave false, fabricated, and misleading facts to this Honourable Court with doctored Exhibits.
b. That the Applicants denies Paragraph 5 of the 5th to 8th Respondents Counter-Affidavit and states that a critical perusal of the two Exhibits (NP “A” and NP “B” respectively) shows a lot of contradictions, falsification particularly line 3 of Exhibit NP “A” which was not signed by the maker thereof and wherein the said document alleged that the Applicants are cultists and insulted the 1st Respondent which warranted the 1st Respondent to set the Law Enforcement Agents (5th to 8thRespondents) in motion against the 1st to 5th Applicants to cause their arrest and detention.
c. That further to the above Paragraph, Exhibit NP ‘B’ did not suggest any criminal allegation or raise any issue against the Applicants that will warrant their arrest and detention whereas it only contains complain of threat to peace and security in AgbokeOglewuEhaje Council of Ohimiri LGA of Benue State stating the name of the 1st Applicant and no more, the pertinent question to ask is where and how did the police come about the other names from which they carried out the arrest and detention of the 2nd to 5th Applicants in question who were in church praying before their unlawful arrest? We urge the Court to admit the 2 Exhibits in evidence.
d. The Applicants deny Paragraph 6 of the 5th to 8th Respondents’ Counter-Affidavit to the extent that the 2nd to 5th Applicants were not invited but were arrested on 28th of May, 2018 from their place of worship and detained them without lawful justification and further states that Exhibit NP ‘C’ was manipulated to mislead the Honourable Court, a closer look at the dates on Exhibits NP‘A’, NP ‘B’ and NP ‘C’ show lots of contradictions, the 1st Respondent wrote a letter of complaint (Exhibit NP ‘B’) to the Divisional Police Officer Ohimiri LGA on the 28th May, 2018, the letter was minuted upon for immediate action to take effect on the 1st June, 2018, the DPO upon receipt of the said Exhibi NP ‘B’ issued a reply (Exhibit NP ‘C’) to the 1st Respondent dated 25th of May, 2018, from the above, it clearly shows how the Respondents intend to mislead to the Court with their facts.
e. I vehemently deny Paragraph 7 of the 5th to 8th Respondents’ Counter-Affidavit to the extent that I was at the mechanic Otukpo fixing my car when I was informed through phone call that the Police came to the Church with police pickup van on the 28th of May, 2018 and arrested 2nd to 5th Applicants from the Church where I pastor while they were praying in the Church. I immediately contacted my lawyer who accompanied me to the Divisional Police Office at IdekpaOhimiri LGA to see the 2nd to 5th Applicants who were already in custody and possibly if he can secure their release but failed toyield any fruitful result, I was not told of any invitation for interrogation by the Police while I was with my lawyer neither was I told there was any complaint against me, as a man of God my hands are clean. I won’t be running away from the Law Enforcement Agents as I am a law abiding citizen of this country.
f. That paragraph 9 of the 5th to 8th Respondents’ counter-affidavit is admitted to the extent that the Statement they wrote did not disclose any offence against any of the Applicants even though there are some contradictions and manipulations noticed at the back of all the Statements as some of the writings were erased by placing a blank paper object to photocopy and certify same, we apply that in this proof of the said allegation we demand that the original copy be produced in order not to amount to withholding of evidence.
g. That paragraph 10 of the 5th to 8th Respondents’ counter affidavit is completely false and that the 2nd to 3rd Applicants were arrested on the 28th May 2018 at about 9 am conveyed by Police van from their place of worship at Agboke to Idekpa Divisional Police Office, Ohemini LGA, and detained untilthe 7th and 8th Respondents were served with the Originating Application that the Police after the payment of N20,000.00 only on each of the Applicant asked them to go even when my lawyer tried to secure this release and it failed.
h. Further to the above I state that the 2nd to 5th Applicants never signed any bail bond and neither did any of their relatives sign same on their behalf, the Bail Bond attached to the Counter-Affidavit marked Exhibit NP ‘H’ was signed by the 1st Respondent who initiated the arrest and detention of the 2nd to 5th Applicants in order to mislead the Court.
i. That paragraphs 11, 12 and 13 of the 5th to 8th Respondents’ Counter-Affidavit are false and in addition states that the 7th Respondent asked them to go till further notice since then nothing was heard from the investigation of the Police until this Originating Application and that if from the investigation of the Police as denied established a prima facie case against them, they would arraigned them before a Court before now.
5. That I was informed by DonminicAdejoh, Esq. my counsel in his law firm at V.E. Johnson & Co., Victory Chambers,Eyem Memorial Centre, Ahmadu Bello-way, Otukpo, Benue State at about 4:00 pm on the 25th June, 2018 and I verily believe him as follows:
(a) “That unless an order restraining the Respondents from intimidating, harassing and/or arresting the Applicants in the exercise of their Constitutional Rights to religion and other rights contained in the Constitution are made by the Court in the circumstances as prayed in the reliefs in accompanying the motion in support of the affidavit, the rights of Applicants will be continuously violated.
(b) That the African Charter on People’s and Human Rights enjoin the treatment of persons with dignity and also enjoins the right to assemble with others freely and freedom to practice any religion of your choice in the community.
(c) That in the circumstances the Respondents will not be prejudiced by the grant of this Application.
6. That I make this Oath in the interest of justice believing same to be true in accordance with the Oaths Law.”
From the evaluation of the depositions of the 2nd Respondent Chief Odeh Williams Oteikwu (the 2nd Respondent) and the 8th Respondent Sgt. Agbo Yakubuon behalf of the 5th – 8th Respondents who are Police-Officers, there appears to be an unresolved conflict as to what triggered off the arrest and detention of the Applicants/Appellants by the 5th to 8th Respondents which the lower Court ought to have taken into consideration before outrightly dismissing the Applicants/Appellants’ application for the enforcement of their fundamental rights. Whereas the 2nd Respondent purported in paragraphs 2 to 5 of his Counter-Affidavit that sometime in the month of May, 2018 the office of the Nigerian Police Otukpo Divisional Headquarters sent him a letter in his capacity as the Clan Head of Agboke Community to invite OchayiAchechema, InalegwuOvitom and AmicheObochi to report to the Divisional Police Otukpo which letter is annexed to the Counter-Affidavit as Exhibit E-01 and that he (2nd Respondent) (the Deponent) asked the above named persons to report (visit) the Deputy Police Officer in view of the letter to him (the Deponent), incidentally none of the persons mentioned in Exhibit E-01 is an Applicant/Appellant in the Application for the enforcement of the human rights that has warranted this Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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However, in paragraph 5 of the Counter-Affidavit sworn to by the 8th Respondent (Sgt. Agbo Yakubu) who signed Exhibit E-01 (the letter of invitation) exhibited by the 2nd Respondent to his Counter-Affidavit, the said Police Officer had stated that on the 28th May, 2018 at about 13.00 hours, a case of criminal conspiracy, inciting disturbance and Defamation of Character was reported against the Applicants and other suspects through a complaint made by the 2nd Respondent who was the kindred Head of Agboke and the complaint was accepted and referred to the office of the 7th Respondent who was the Divisional Police Officer (DPO) Idekpa-Ohimini Local Government Area of Benue State. Copies of the crime diary and the 2nd Respondent’s petition were annexed to the 5th to 8th Respondents’ Counter-Affidavit as Exhibits NP ‘A’ and NP ‘B’.
Now, a careful perusal of the above documents (Exhibits) which can be found at pages 43 and 44 of the Records of Appeal, would reveal that Exhibit NP ‘A’ the Crime Diary is headed “CRIMINAL CONSPIRACY, INCITING DISTURBANCE AND DEFAMATION OF CHARACTER” and the entry hasit that on the 28th day of May, 2018 about 3.30 hours, one Chief John Ochayi (the 1st Respondent not the 2nd Respondent) came to the Police Station Idekpa and reported that, on the 28th day of May, 2018 at about 17.30 hours at Agboke-Oglewu, the following persons namely: Mike Egwa, AlechenuOgbe, AlechenaAdakoleAbojiOnyemowo and Pastor John Ekwuenya all members of Agboke and Ebaya-Oglehu, criminally conspired and defamed his character saying that he is a cultist.
The complainant was said to have further stated that the suspects insulted him and threatened to cause problem in Agboke community. According to the Crime Diary, Action was taken and the case was accepted and referred to the Surveillance Squad while Sgt. Yakubu Agbo the 8th Respondent was detailed to investigate same.
Exhibit NP ‘B’ at page 44 of the Records is a petition captioned “THREAT TO PEACE AND SECURITY IN AGBOKE OGELEWU EHAJE COUNCIL WARD OHIMINI LGA BENUE STATE” emanating from the office of the CLAN HEAD, AGBOKE OGLEWU EHAJE, OHIN.. LOCAL GOVERNMENT AREA, BENUE STATE, dated the 28th May, 2018, addressed to the Divisional Police Officer, Ohimini LocalGovernment Area, Idekpa, Benue State and the Director of State Security Service, Idekpa. The petition was jointly signed by Chief Odeh OteikwuWillians (2nd Respondent), Chief OketaOketa and Ogakwu K. Agboke (PRO). Their complaint was to bring to the notice of the Addresses the imminent threat to the peace and security and impending breakdown of law and order in AgbokeOglewu District Ohimini LGA.
They alleged that on Sunday 20th May, 2018 at about 10.35 pm, one Mr/Pastor John (male) of Ojah and his followers or the so called disciples broke down law and order by taking over the Agboke community with public disturbance, insubordination, violence led by the Pastor John/Prayer House. They further alleged that sometime in February, 2018, HRH Chief/Dr. John Ochayi, OcheObandeo, K. Oglewu/Adah Ohimini invited Agboke community leaders and elders to meet with Senior Vigilante Officials in Idekpa/Otukpo and the said Pastor John who was cautioned by the VGN Officials and the Community Leaders warned the Pastor that he should stop his type of preaching in the prayer house at Agboke that will cause or amount to religious fanatics in Agboke. With effect fromFebruary, 2018 the Council of Elders had intervened to no avail and accordingly, they wanted to bring it to the notice of the authorities to which the Petition was addressed for their information and necessary action.
It was upon the receipt of this Petition from the 2nd Respondent who purported in paragraph 4 of his Counter-Affidavit not to be aware of the facts and circumstances leading to the violation of the rights of the Applicants and that the Appellants’ Application was brought in bad faith he not being aware of the detention of the Applicants as he did not play any role that led to their detention or the violation of their human rights, that the officers of the 7th Respondent as deposed to in paragraph 6 of Sgt. Agbo’s Counter-affidavit; swung into action and arrested the 2nd to 5th Applicants/Appellants.
According to the 8th Respondent upon investigation of the Appellants they were cautioned and they volunteered Exhibits NP ‘D’ NP ‘E’, NP ‘F ‘ and NP ‘G’, their Statements. From the said statements which can be found at pages 46, 47, 48 to 52 while their purported bail bond which wassigned by the self-same 2nd Respondent as the surety for all the Applicants/Appellants, as can be found at page 53 of the Records, it is clear that the Bail Bond purportedly reads 29/05/2018 as the date of entry thereof and release of the Appellants whereas the Applicants deposed to the fact that it was not until the 30th of May, 2018 that the Appellants were released on Bail. This is in tandem with the averment of the Applicants that they were detained for 72 hours without just cause. The Learned Trial Judge with the respect could therefore not be right to have held as he did at page 85 of the Records/12 of his Judgment that:-
“From the facts before me it is not clear as to the length of time the Applicants were detained in Police custody. The 5th – 8th Respondents in their Counter-affidavit in paragraph 10 stated however that the Applicants were promptly granted Police administrative bail in Exhibit NPH. No evidence was made available to challenge or controvert this fact. Given the facts and circumstances of this case it cannot be said that the Applicants were unlawfully arrested and detained without the commission of any offence or withoutbeing told of the offences they were alleged to have committed. The Court cannot therefore give an order of injunction either interim or perpetual restraining the Respondents from performing their lawful duty of arresting those reasonably suspected to have committed criminal offences.”
With the greatest respect again to the Learned Trial Judge, I do not agree with him that the Applicants/Appellants did not challenge paragraph 10 of the Counter-Affidavit of the 5th to 8th Respondents that the Applicants/Appellants were promptly granted bail. To buttress the fact that the Appellants challenged paragraph 10 of the 5th – 8th Respondents’ Counter-Affidavit, it is necessary to allude to Paragraph 4(g) and (h) of the Applicants/Appellants’ Further Affidavit at page 62 of the Record of Appeal where they averred thus:-
“g. That Paragraph 10 of the 5th to 8th Respondents’ Counter-Affidavit is completely false and that the 2nd to 5th Applicants were arrested on the 28th May, 2018 at about 9 am and conveyed by Police van from their place of worship at Agboke to Idekpa Divisional Police Office, Ohimini LGA, and detained until7th and 8th Respondents were served with the Originating Application that the Police after the payment of N20,000.00 only on each of the Applicant asked them to go even when my lawyer tried to secure their release and it failed.
h. Further to the above, I state that the 2nd to 5th Applicants never signed any bail bond and/or neither did any of their relatives signed same on their behalf, the bail bond attached to the Counter-Affidavit marked Exhibit NP ‘H’ was signed by the 1st Respondent who initiated the arrest and detention of the 2nd to 5th Applicants in order to mislead the Court.”
From the averments in the above sub-paragraphs of the Appellants’ Further-Affidavit and indeed sub-paragraph (i) of Paragraph 4 thereof, that up till now nothing had been heard from the 7th and 8th Respondents who asked the Appellants to go until further notice; the claim by the 5th to 8th Respondents that a prima facie case had been made against the Appellants which warranted their arrest, had been debunked and the Lower Court ought to have made the order of perpetual injunction restraining at least the 1st, 2nd, 5th to 8th Respondentsparticularly the 2nd Respondent who should not have been believed by the Court below because of his not being an honest and truthful person from his contradictory Depositions.
In my humble view, and in total agreement with the Learned Counsel to the Appellants’ submissions on Issue Number 2 (Two) of their Brief of Argument, the learned Trial Judge did not properly evaluate the Further-Affidavit of the Appellants vis-à-vis the Exhibits attached to the Respondents’ Counter-Affidavit in order to determine whether the Respondents breached the fundamental rights of the Appellants to personal liberty; dignity of the person; rights to freedom of thought, conscience and religion; rights to peaceful assembly and association; freedom of movement and from discrimination by the conduct of the Respondents.
In the first, by Exhibit NP ‘A’ if the Appellants by their preaching called the 1st Respondent a cultist, the 1st Respondent ought to have sued them in a civil Court for defamation so also should the allegation of insult on his person. As for Exhibit NP ‘B’, as I had already held, the 2nd Respondent was most dishonestafter setting the machinery of the law in motion, to have deposed in paragraphs 2 to 5 of his Counter-Affidavit that he was not aware of the facts and circumstances leading to the violation of the rights of the Appellants and that he was not aware of the detention of the Appellants since he purportedly did not play any role that led to the arrest and detention of the Appellants by the 5th to 8th Respondents or the violation of their human rights.
With the conflicting evidence of the 2nd Respondent, the Court below ought to have disbelieved the Respondents. Even from the doctored statements of the Applicants to the Police, it is clear that they were arrested while they were lawfully assembled for the purposes of worship in exercise of the fundamental rights to freedom of worship and conscience. As was held in Fawehinmi vs. I.G.P (2002) 7 NWLR (Pt. 767) 606 at 681-682 paragraph H per Uwaifo, JSC:-
“In a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the Police looked for evidenceimplicating him.” Although the Court below rightly held that it is the duty of the Police to investigate and arrest and possibly detain persons suspected to have committed an offence, however, I am unable to agree with him that the Police can arrest a suspect on a baseless flimsy allegation. From the authority above cited, investigation should precede arrest. It is only after the investigation has established substantial reason(s) or basis for the allegation of crime against a suspect that he may be arrested and detained if necessary.
From the facts and circumstances of this case, even though the 5th to 8th Respondent by virtue of Section 214(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which establishes one Police Force for Nigeria and by Section 4 of the Police Act, cap. P19, Laws of the Federation, 2004:
“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 militaryduties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act;”
they must be careful so that in the exercise of their Statutory Powers, the fundamental human rights of the citizens as guaranteed them by the Constitution are not breached.
Furthermore, they ought to be circumspect on the nature of complaint brought to them so that they are not misled by self-centered, dictatorial and unscrupulous leaders/persons of the 1st and 2nd Respondents’ ilk in particular.
In the instant case, the Learned Counsel to the Appellants has rightly cited the authorities of OyewoleFashawe v. A.G. of Federation & 3 Ors. (2009) CHR P-80 at 120; Abasin Banda &Ors. V. Gunaratne& 3 Ors (2005) CHR P. 29, Shabu Abu &Ors. V. Commissioner Lagos State &Ors (2006) CHR P.1 at P. 22 para F; Preye Johnson V. COP, (2006) CHR, P. 388 at 394 paras G-H; where it was variously held that by virtue of Section 35(1) (C) of the Constitution, the law does not give the Police outright power to deny citizens of their personal liberty while cases against them are being investigated.
Furthermore just likethe case of Banda &Ors. V. Gunaratne& 3 Ors (supra); in the circumstances of this case, there were no grounds for the detention of the Appellants over night after their arrests. Their detention was therefore unreasonable since as has been disclosed by the Appellants in paragraph 22(e) of their Supporting Affidavit at page 12 of the Records:
“That there are more than four (4) High Courts and six (6) Magistrate’s Courts within the radius of three (3) kilometers from State/Local Government Area within jurisdiction where the 2nd – 5th Applicants were being detained”, yet, the Appellants were not arraigned before any of those Courts even up to when this case was determined by the Lower Court. Again, it is not the business of the 5th to 8th Respondents to hold that a prima facie case was established against the Appellants. Rather, in order to demonstrate that a prima facie case had been established, the Appellants ought to be arraigned before a Court of law and tried by the Prosecution. Even upon the contention of the Respondents as upheld by the Trial Court that the Appellants were arrested upon reasonable suspicion, theonus was on the Respondents to show or demonstrate the reasonability of such suspicion by arraigning the Applicants/Appellants before a Court of competent jurisdiction which the Respondents have not done till date.
From the totality of the evidence on record, there is no doubt that the Appellants’ rights have been violated and as was held in Preye Johnson V. Commissioner of Police (2006) CHR p. 388 at 394 paragraphs G-H; where the Constitution guarantees a right and facts as in this case have been established that the rights of the Appellants have been infringed, it was left for the Respondents to justify such infringement which the Respondents have not done in this case. As I held in Onyirioha Vs I.G.P. (2009) 3 NWLR (Pt. 1128) 342 at Pages 362 para H; 375 paras G-H and 375 – 376 (Paras H-B), a Nigerian citizen is entitled to his God given natural right free from encumbrance or incarceration save in accordance with the fundamental laws of the land which is the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Having held that the Appellants’ rights were violated and following the dicta of their Lordships of theSupreme Court in Jim-Jaja V. C.O.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225 at 244-245 paras H-A per Ngwuta, JSC by virtue of Sections 35(6) and 46 of the Constitution, the Appellants who were unlawfully arrested and detained in violation of their rights are entitled to compensation and public apology. They did not even have to ask for payment of compensation before being awarded one for compensation was automatic.
As was also held in the above cited case (See page 254, paragraphs C-E); where as in this case, the Appellants claimed general damages of N25,000,000.00 (Twenty-five Million Naira) and Exemplary Damages of N200,000,000.00 (Two Hundred Million Naira) only jointly and severally against the Respondents, it is for the trial Court and indeed this Court to consider the claim and in our opinion, the amount that would be justified to compensate the 2nd to 5th Appellants as victims of the breach. Considering the number of Appellants involved and the length of their detention notwithstanding, the 2nd to 5th Appellants shall be entitled to General Damages of N1,000,000.00 (One Million Naira) each and the cost of this Appeal which I assess at N100,000.00in favour of the 2nd to 5th Appellants only, against the 1st, 2nd and 5th to 8th Respondents.
On the whole, the sole issue re-couched by me is resolved in favour of the Appellants and against the Respondents. The Appeal is therefore meritorious and hereby succeeds. The Judgment of the High Court of Justice, Benue State, Otukpo Judicial Division delivered by Hon. Justice D.E. Igoh. on the 24th day of September, 2018 dismissing the Applicants/Appellants’ Application for the enforcement of their Fundamental Rights; is hereby set aside and the Application granted as per prayers 1, 2, 3, part of prayer 5, 6 and 7 thereof.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatius IgweAgube, JCA, allowing this appeal. I agree with the resolution of the issues arising for determination, and hereby adopt same as mine.
The appeal has merit. I also allow the appeal and abide by the orders made in the lead Judgment.
JOSEPH EYO EKANEM, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother, Agube JCA. I agree with the reasoning andconclusion therein that the appeal has merit.
It is clear that the 2nd – 5th appellants were arrested and detained by the police on the report or petition of the 1st and 2nd respondents. The arrest and detention having been established, the burden fell on the 5th to 8th respondents to justify the same. See Iyere V Duru (1986) 10 – 11 SC 19, 46. It was established that the police received a petition from the 2nd respondent alleging threat to peace and security in Agboke community, Ohimini Local Government Area. There was also a report by the 1st respondent against the appellants for alleged conspiracy, defamation of character, insult to him and threat to cause problem in Agboke community. The police promptly arrested and detained the 2nd – 5th appellants. No Investigation, “discreet” or otherwise, was carried out by the police to ascertain if there was reasonable ground for suspecting that the appellants had committed the alleged offences before effecting the arrest and detention of the said appellants.
Section 35(1)(c) of the Constitution of Nigeria, 1999 (as amended) provides that:
“(1) Every person shall be entitled to his personalliberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence”.
In the case of Fawehinmi V. Inspector – General of Police (2002) 7 NWLR (Pt. 767) 606,681 – 621 Uwaifo, JSC, stated that:
“In a proper Investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence implicating him”.
In the case of Oteri V. Okorodudu (1970) All NLR 199, 204, the Supreme Court set out the test to be applied in determining the existence of reasonable suspicion as follows:
“In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen V. Wright 8 Car. And P. 522where he said that it must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of the facts known to defendant at the time and not subsequent facts that may come to light…” See also Totor V. Aweh (2000) 2 NWLR (Pt. 644) 309,318.
Armed only with the petition or report by the 1st and 2nd respondents. the police without more arrested and detained the 2nd – 5th appellants. Viewed objectively, the police had no basis to arrest and detain the said appellants. There was therefore no justification for their action.
The 1st and 2nd respondents were actively instrumental in setting the law In motion leading to the arrest and detention of the said appellants. The complaint of the 1st respondent was essentially civil in nature and he ought to have pursued it as such and not seek to draw the police into the matter. The 1st and 2nd respondents are as liable as the police for the arrest and detention.
On account of the above and the more detailed reasons set out in the lead judgment of my learned brother, I also find merit in the appeal which I allow. The 2nd – 5th appellantsare awarded the sum of N1,000,000.00 as general damages to be paid by the 1st, 2nd, 5th, 6th, 7th and 8th respondents. I abide by the order as to costs made in the lead judgment.
Appearances:
D.O. Ogah, Esq.For Appellant(s)
E.O. Samson, Esq. for 1st-4th RespondentsFor Respondent(s)
