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UMANE v. COP, EDO STATE & ANOR (2020)

UMANE v. COP, EDO STATE & ANOR

(2020)LCN/15722(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/B/262/2013

Before Our Lordships:

Moore Aseimo Abraham AdumeinJustice of the Court of Appeal

Biobele Abraham GeorgewillJustice of the Court of Appeal

Gabriel Omoniyi KolawoleJustice of the Court of Appeal

 

Between

ENGINEER AIKAHU M. UMANE APPELANT(S)

And

1. COMMISSIONER OF POLICE, EDO STATE 2. MR. HENRY OJEMOLON RESPONDENT(S)

 

RATIO:

RIGHT  TO PERSONAL LIBERTY AND OTHER FUNDAMENTAL RIGHTS

The above finding and conclusions of the trial Court were right and amply justified, having regard to the facts and circumstances  of this case. The appellant’s complaint is that his rights to personal liberty and human dignity were breached by the respondents. It is true that by Sections 35 (1) and 34 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the appellant is guaranteed his rights to personal liberty and dignity of human person, respectively. However, it is settled law that the right to personal liberty and the other fundamental rights provided for under Sections 33 to 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).are not absolute. See Ignatius Udeh v. Federal Republic of Nigeria (2001) 5 NWLR (Pt.706) 312. Ekwenugo V. Federal Republic of Nigeria (2002) 6 NWLR (Pt. 708) 111. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

NO COURT WOULD ASSIST IN ENFORCING PURPORTED HUMAN RIGHTS IF PLACED IN A SHAMEFUL POSITION

The appellant put himself in a rather awkward or shameful position that no reasonable tribunal or Court would assist him in enforcing his purported fundamental or human rights. To say the least, the appellant’s conduct or action,which obviously denied some people of Edo State access to portable water, would leave a very sour taste in the mouth of a right-thinking member of Edo State or the general public.
Without further ado, I agree with the opinion of the trial Court that the appellant’s “fundamental human right has not been infringed upon as the 1st respondent lawfully arrested and detained him on a reasonable suspicion of having committed a crime upon the report made by the 2nd respondent’’.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): In Suit No. FHC/B/CS/116/2009, which was a motion on notice for enforcement of his fundamental rights, the appellant as applicant sought the following relief:
“(1) A declaration that the arrest and detention of the Applicant by the Respondent from the 17 April 2009 till the night of Saturday 25th April 2009 when he was granted police bail, at the Edo State Criminal Investigation Bureau (CIB) Benin City, is a violent infringement of the Applicants Right to personal liberty and right to human dignity as enshrined in the Constitution of the Federal Republic of Nigeria.
(2) A declaration directing the Respondent to forthwith and or immediately stop all harassment and embarrassment of the Applicants with threats of further arrest and/or continued detention of the Applicant in police custody without being charged to Court as required by law in a manner relating to breach of contract.
​(3) A declaration restraining the Respondents, their Agents, Servants of Privies from further circumscribing the liberty of the Applicant in connection with or pertaining to the facts giving rise to the initial arrest, and eventual detention in police custody for nine days same as may be authorized by an order of Court.
(4) An Order of personal injunction restraining the Respondents, either by themselves, their Agents, servants or Privies from further harassing, embarrassing, threatening with arrest, detention/prosecution, circumscribing the liberty of the Applicant in connection with or pertaining to the facts giving rise to the initial arrest and detention of the Applicant, save as may be authorized by an order of Court.
(5) N10,000,000.00 (Ten Million Naira) damages against the Respondents in favour of the Applicant for the Breach of the Applicant’s Fundamental Rights.”

The appellant’s application was anchored on the following grounds:
“1. The Applicant was until recently, the General Manager, Edo State Urban Water Board.
2. The Applicant was on the 17th of April, 2009, till 25th April, 2009 put under arrest by the 1st Respondent because of a Petition by the 2nd Respondent over an allegation bothering on breach of contract.
3. The Respondents at all times material to this action, dehumanized, degraded, oppressed and detained the Applicant, in violation of his Fundamental Right as enshrined in the Constitution of the Federal Republic of Nigeria.
4. The Applicant’s right to his personal liberty has been seriously circumscribed by the action of the Respondents to this application. And the Respondents’ action against the Applicant is in breach of his Fundamental Right enshrined in the Constitution of the Federal Republic of Nigeria, 1999.
5. The Applicant has undergone much psychological, emotional and physical trauma as a result of the Respondents’ infringement of Fundamental Rights.”

The application was contested by the respondents and after hearing arguments of the parties, the trial Court delivered a reserved judgment on 28/02/2013 whereby the application was dismissed. Being dissatisfied with the decision of the lower Court the appellant appealed to this Court.

The appeal was heard based on the appellant’s brief filed on 04/12/2014 but deemed as properly filed on 18/02/2015 and the 2nd respondent’s brief filed on 12/01/2018 and deemed filed on 15/01/2018.In his brief, learned counsel for the appellant identified the following issue for determination:
“Whether the trial Court was right when it held that the Appellant’s Fundamental Human Right was not violated, having found that the Appellant was arrested and detained from the 17th to the 25th April, 2009. And whether or not the Appellant is not entitled to damages as a result of the violation of his Fundamental Human Right.”

On behalf of the 2nd respondent, a single issue was also framed for determination but couched as follows:
“Whether the finding/holding by the learned trial judge that the Appellant was detained from the 17th day to 25th day of April, 2009 in the custody of the 1st Respondent on the reasonable suspicion of his having committed the offence of conversion and stealing is sufficient to conclude that the Appellant arrest and detention was unlawful and therefore a violation of the Appellant’s fundamental right to his personal liberty.”

From the issues identified by the parties, which issues are very similar, I think that the live issue for resolution in this appeal is:
“Whether or not by the arrest and detention of the appellant from the 19th day to the 25th day of April, 2009 was in the violation of the appellant’s fundamental rights to personal liberty and human dignity as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”

Learned counsel referred to the facts and affidavits in support of the appellant’s application; the depositions in the respondents’ respective counter affidavits; the reasoning and conclusions of the trial Court in its judgment delivered on 28/02/2013, and after citing various authorities to buttress his arguments, urged the Court to allow the appeal and set aside the judgment of the lower Court on the following grounds:
“i. From the affidavit evidence adduced in the trial Court, it was manifestly evident that the Respondents arrested and detained the appellant for nine (9) days on a thrumped-up charge of conversion and stealing.
ii. The Appellant was arrested and detained on the 17th April 2009 and the police concluded its findings on the 18th April 2009 and eventually granted bail to the Appellant on the 25th day of April 2009, 7 clear days after concluding its investigation.
iii. The Learned Trial Judge failed to give consideration to the affidavit evidence of the 1st Respondent wherein it was admitted that the Appellant was arrested and detained for nine (9) days without recourse to any Court of law.
iv. The Nigeria police force acted outside the provision of the law that prescribe its role and duty, which does not include enforcing contract and recovery of common debt.”

On the other side, learned counsel for the 2nd respondent urged the Court to dismiss the appeal and affirm the decision of the trial Court for reasons as follows:
“(1) The arrest of the Appellant was legal.
(2) There were good grounds for suspecting the Appellant of having committed a criminal offence.
(3) The Appellant admitted collecting N20,000,000.00 for technical support service up front.
(4) The Appellant did not execute the contract up till date.
(5) The Police did not act in excess of their power of arrest and detention.
(6) The Applicant/Appellant was not granted bail by the Police upon a Court order compelling them to do so.
(7) The Applicant/Appellant by the application stalled further Police investigation and a possible arrangement and prosecution.”

From the record of appeal, an affidavit, counter affidavits, further affidavits and reply affidavits were filed and exchanged amongst the parties.

In his brief, learned counsel for the appellant stated the “relevant facts” simply as follows:
“The Appellant until recently was the General Manager of Edo State Urban Water Board. The 2nd Respondent who is a contractor sought the Appellant’s technical support service for the execution of some contract. The sum of N360,000.000.00 (Three Hundred and Sixty Million Naira) was agreed upon between the appellant and the 2nd Respondent to effectively execute the projects.
Surprisingly, the 2nd Respondent petitioned the 1st Respondent through his counsel alleging a number of allegations against the Appellant.”

Learned counsel for the 2nd respondent was more elaborate when he stated the relevant facts in his brief thus:
“The 2nd Respondent subject several contracts awarded to him by the Edo State Government to the Appellant to execute.

The 2nd Respondent mobilised the Appellant to the various site and consequently paid various sums to the Appellant when the latter presented certificate of job performance and successful execution of some of the contracts and near complete execution of one of two contracts.
Trouble however started when there was a change of Government and the new Governor of the State, His Excellency Adams Oshiomole set up an Assets Verification Committee.
The Committee in the course of verifying the assets of the Edo State Government found that the contracts which the Appellant claimed have been substantially executed were far from the true position. Meanwhile the Appellant have expended some of the money in buying properties for himself in addition to withdrawing the sum of N20,000,000.00 up front from the contract sum for a so-called technical support service.
The 2nd Respondent consequently wrote a petition to the Commissioner of Police alleging conversion/stealing against the Appellant.
The 1st Respondent arrested the Appellant who made statement and was subsequently granted bail. The Appellant filed suit No B/286M/2010 after he was granted bail which culminated in this Appeal.”

The facts stated in the 2nd respondent’s brief align with those found and stated by the trial Court in its judgment, especially on pages 170 to 173 of the record, where the Court comprehensively stated and held as follows:
“It is settled that the Applicant was at the time of the alleged contract between him and the 2nd Respondent, a Civil Servant and the General Manager of the Edo State Urban Water Board. That the contract, the object of the financial dispute between the Appellant and the 2nd respondent was for seven water projects in different parts of Edo State.
That this matter of the dispute was reported to the 1st respondent who arrested the Appellant. The question is, was his fundamental right breached by this arrest, if yes, how much compensation is he entitled to.
In paragraphs 17, 18, 19 and 21, the applicant described his encounter with the 1st and 2nd respondents thus:-
“(17) Surprisingly, the 2nd respondent reported the matter through his lawyer to the 1st respondent making a number of allegations against the Appellant.
(18) Based on the petition, 1st respondentcaused the appellant to be arrested and detained over a matter which was purely Civil in nature.
(19) The 1st Respondent’s officer forced the Applicant after detaining him for eight days (i.e. 17th to 24th April 2009) to write an undertaking that he would pay the 2nd respondent, the sum of N10,000,000.00 at the Police Station on Friday, the 8th of May 2009. The Applicant was not inspite of the purported agreement, allowed to go home until the night of Saturday the 25th April 2009, when he was granted police bail.
Thus the applicant was detained at the police station for nine days (i.e. 17th to 25th April 2009). A copy of the purported agreement is attached herewith and marked as Exhibit “A”
(20) …
(21) The Appellant has suffered severe mental, physiological torture as a result of the action of the Respondent to this suit.’’
The 1st Defendant in his affidavit filed on the 18/6/2009 deposed that:
“(4) That the 2nd Respondent wrote a petition dated the 1st April 2009 to the commissioner of police against the Applicant for the offence of conversation and stealing. A copy of the petition is attached herewith as Exhibit “A”.
(5) …
(6) That as a result of paragraph 4 above, I invited the Applicant to my office for interrogation on the 17/4/2009.
(12) That the Applicant was granted bail on the 17/4/2009 and was asked to be reporting to the police Station daily until 23/4/2009 when he formally signed the bond. The bail bond is attached herewith as Exhibit “E’’.
The Applicant and his Counsel called the transaction between the applicant and the 2nd respondent a matter “purely civil in nature’’ I beg to differ. Firstly, it was not in the place of this applicant to provide the 2nd respondent a government contractor, the “technical know – how “(see paragraph 5 of the Grounds for which reliefs are being sought) for a contract awarded by the Edo State Government under his supervision, as the General Manager of the Urban Water Board. His intention was not at all honourable. Thus his deposition in paragraph 6 of his affidavit that he reluctantly (after much pressure) obliged him with the technical know how’’ is just a cock and bull story. The Applicant main concern was his own selfish and fraudulent interest, not the general goods of society. Or how else can one explain a situation where soon after the 2nd Respondent remitted the money for the job to him, he immediately removed N20, 000.000.00 for himself even before the job commences. He deposed in paragraph 9:
“The 2nd Respondent paid an initial deposit of N223,000,000.00 (Two Hundred and twenty-three million Naira) with a firm promise to pay the balance sum of N137,000,000.00 (one hundred and thirty-seven million Naira) in due course. Out of the initial deposit paid, it was agreed between the parties that N20,000,000.00 (Twenty million Naira) would be for the Appellant’s technical support services.’’
This payment certainly was up front, that is, even before the said “technical advice” was rendered. As events turned out the job was not done, but he had been paid.”

​From the undisputed facts, the 2nd respondent got contracts for the execution of about 7 (seven) water projects in different parts of Edo State, at a time when the appellant was a civil servant, serving as the General Manager of Edo State Urban Water Board. The appellant put forward himself to offer “technical advice’ to the 2nd respondent and a ‘contract’ to that effect was entered into and executed. The 2nd respondent paid an initial sum of N223,000,000.00 (Two hundred and twenty-three million) into the account supplied by the appellant and the appellant immediately withdrew the sum of N20,000,000.00 (Twenty million naira), which he appropriated to himself and “As events turned out the job was not done, but he had been paid’’ – per Hon. Justice A. Edodo-Eruaga, the learned trial Judge, on page 21 of the judgment at page 174 of the record of appeal. The learned trial Judge proceeded to hold, inter alia, as follows:
“The 1st respondent in paragraph 8 of his affidavit said his investigation revealed that the money was not used for the purpose it was meant for. In effect, it was converted. This is a crime known to our law.
A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing, see Section 383 (1) of the Criminal Code Law Vol. II Cap Laws of Bendel State as applicable in Edo State. A crime was thus involved in this transaction.
The 2nd Respondent exercised his right of placing his grievance before the police, being the custodian of law and order by his petition. By Section 4 of the Police Act Cap 359 Laws of the Federation 1990, the police is employed for the prevention and detection of crime amongst other duties. The arrest of the Applicant was therefore legal and I so hold.”

The above finding and conclusions of the trial Court were right and amply justified, having regard to the facts and circumstances  of this case. The appellant’s complaint is that his rights to personal liberty and human dignity were breached by the respondents. It is true that by Sections 35 (1) and 34 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the appellant is guaranteed his rights to personal liberty and dignity of human person, respectively. However, it is settled law that the right to personal liberty and the other fundamental rights provided for under Sections 33 to 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).are not absolute. See Ignatius Udeh v. Federal Republic of Nigeria (2001) 5 NWLR (Pt.706) 312. Ekwenugo V. Federal Republic of Nigeria (2002) 6 NWLR (Pt. 708) 111.
In this case, the petition by the 2nd respondent to the 1st respondent, and which petition led to the arrest and detention of the appellant from the 19th day to the 25th day of April 2009, was not malicious. It was infact done in good faith, because the appellant’s action or conduct was not only obviously criminal in nature, it was certainly despicable. By the appellant’s action of collecting money from a contractor, who had been authorized to execute contracts for the benefit of the general public, and misappropriating the money with the ultimate result that jobs under his direct supervision were not executed, the appellant ought not to be heard complaining that his fundamental human rights had been breached by the respondents.
​The appellant put himself in a rather awkward or shameful position that no reasonable tribunal or Court would assist him in enforcing his purported fundamental or human rights. To say the least, the appellant’s conduct or action, which obviously denied some people of Edo State access to portable water, would leave a very sour taste in the mouth of a right-thinking member of Edo State or the general public.
Without further ado, I agree with the opinion of the trial Court that the appellant’s “fundamental human right has not been infringed upon as the 1st respondent lawfully arrested and detained him on a reasonable suspicion of having committed a crime upon the report made by the 2nd respondent’’.

It is for all the foregoing reasons that I resolve the sole issue in this appeal against the appellant.
The appeal, therefore, fails and it is dismissed for being bereft of merit.

The judgment of the trial Court in Suit NO. B/286M/2010, per Hon. Justice A. Edodo-Eruaga, delivered on 28/02/2013 is hereby affirmed.
The sum of N200,000.00 (Two hundred thousand naira only) is hereby awarded as costs in favour of the 2nd respondent and against the appellant.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A., just delivered. I am in complete agreement with the adroit reasoning leading to the inescapable conclusions reached therein. I therefore adopt same as mine and I have nothing more to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, M.A.A. Adumein, JCA graciously obliged me with the draft of the judgment just delivered wherein, he found no merit in the appeal and has consequently dismissed it.
I agree with his analysis and resolution of the issues thrown up for consideration by this Court.

​I agree with the conclusion reached that the appeal is not only frivolous, I consider it as an abuse of the constitutional right of appeal.
I too, dismiss the appeal, and I abide with the orders made as to costs.
Appeal fails, and it is hereby dismissed.

Appearances:

Solomon I. Aibangbe, Esq. For Appellant(s)

C. N. Dike, Esq., with him, I. Atoe, Esq. – for 2nd Respondent For Respondent(s)