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UPELLE v. JAMES & ORS (2021)

UPELLE v. JAMES & ORS

(2021)LCN/15810(CA)

In the Court of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, September 08, 2021

CA/J/344/2019

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ANDREW OKWU UPELLE APPELANT(S)

And

1. FRANK JAMES 2. COMMISSIONER OF POLICE PLATEAU STATE COMMAND 3. CORPORAL EZEKIEL RESPONDENT(S)

 

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION ARISE FROM GROUNDS OF APPEAL


The law is trite that every issue for determination must be distilled from the grounds of appeal before the Court and any issue that does not arise from a ground of appeal will go to no issue. In such a situation the issue will be discountenanced or struck out by the Court. See the cases of OSINUPEBI VS. SAIBU (1982) 7 SC 104 and GOVERNMENT OF GONGOLA STATE VS. TUKUR (1987) 2 NWLR (PT. 56) 308.
In the case of AGBITI VS. NIGERIAN NAVY (2011) LPELR – 2944 (SC) the Supreme Court held that:
“Issues for determination in any appeal must flow from the grounds of appeal. They must project clearly and succinctly the substance of the complaint contained in the grounds of appeal. It is therefore wrong for an appellant or respondent to load many complaints in one issue for determination or create subsections under one issue. Issue for determination are meant to acquaint the Court with the grievances of the parties in the appeal and subsequently assist the Court in doing substantial justice in the determination of the issues…” PER IDRIS, J.C.A.

THE DOCTRINE OF FAIR HEARING

In the case of PAM & ANOR VS. MOHAMMED & ANOR (2008) LPELR – 2895 (SC), the Supreme Court in explaining the meaning and nature of the doctrine of fair hearing held that: “In Mohammed v. Kano N.A (1968) All NLR 411 at 413 (Reprint) Ademola C.J.N. considering the meaning of fair hearing said: “It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
In the same case of PAM & ANOR V. MOHAMMED & ANOR (Supra) the apex Court as it relates to the test of fair hearing held that:
“The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. The fundamental basis underlying the principle of Fair Hearing is the doctrine of audi alteram partem which means to hear the other side. See ASTO v. Quorum Consortium Ltd (2004) 1 NWLR (Pt. 855) 601. See also Ogundoyin v. Adeyemi (2001) 7 S.C. (Pt. II) 98; (2001) 13 NWLR (Pt. 730) 403. Fair hearing, in other words, involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Court was fair to all the parties’ in the proceedings. See Somai Sonka Co. Nig. Ltd v. Adzege (2001) 9 NWLR (Pt. 718) 312. The reasonable person and the impartial observer mean the same. They mean a complete stranger, an unbiased person to the proceedings. A reasonable person is a person with reason having a faculty of mind by which he distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper and just unbiased person. An impartial observer is not partial. He favours neither the plaintiff nor the defendant. He is disinterested in the matter, as he treats both the plaintiff and the defendant alike. He is an unbiased person. Both the reasonable person and the impartial observer are the hypothetical legal standard for determining or judging fairness, fair play and equity. The test of the reasonable man in Nigerian Courts is no more the man at the Clapham junction in London but one in anywhere in the Nigerian cities. PER IDRIS, J.C.A.

THE POSITION OF THE LAW ON THE PRIMARY DUTY AND ROLE OF A JUDGE

As it relates to the primary duty and role of a judge, the apex Court in the case of ODUTOLA & ORS VS. MABOGUNJE & ORS (2013) LPELR – 19909 (SC) per Stanley Shenko Alagoa, JSC held that:
“The primary duty of a Judge called upon to adjudicate on a matter between contending parties is to always strive to maintain balance. Like the referee on a football pitch he should be ready to share and apportion blame and show the red and green cards firmly and equally as the need arises. He goes into the field without any clear favorites in mind so that at the end of the game he can say with a clear conscience, “I did what I was called upon to do without fear or favour. I am convinced that I did my best.” That indeed in a nutshell is the whole essence in the art or science of judging.”
Flowing from the cases mentioned above, it becomes apparent that a judge’s duty is to be an impartial umpire in a case. To do this he is required to look at the cases of both parties which includes all evidence adduced by all sides and decide which is heavier. In the case of OLUBODE & ORS VS. SALAMI (1985) LPELR – 2607 (SC), the Supreme Court held thus:

“This Court in Mogaji v. Odofin (1978) 4 Sc. 91,93 stated the principle:
“The duty of trial judge is to consider the totality of the evidence in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before the Court in which both parties appear is preferable to another set of facts given in evidence by the other party, after a summary of all the facts must put the two set of facts on an imaginary scale, weigh one against the other, then decide on the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the proper law to it.”
PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein appealed against the decision of the Federal High Court sitting in Jos Division delivered by Honorable Justice M. H. Kurya in Suit No. FHC/J/CS/52/2018 on the 15th day of April, 2019 wherein the learned trial judge entered judgment in favour of the 1st Respondent (then Applicant) and against the Appellant (then 1st Respondent).

This case was filed by way of Motion on Notice by the 1st Respondent against the Appellant and the 2nd – 3rd Respondents for the enforcement of his fundamental human rights. In the said motion the 1st Respondent sought for the following reliefs:
1. A Declaration that the arrest of the Applicant by the Respondent constitutes a violation of the Applicant’s fundamental rights, guaranteed under Sections 34(1), 35(1), 35(3), 35(4), 35(6), 36(1), 36(4) and 36(5) of the Constitution of the Federal Republic of Nigeria, 2011 as Amended and Article 4, 5, 6 and 12 of the African Charter on Human and People’s Right (Ratification and Enforcement) of Nigeria, 2004 is therefore illegal and unconditional.
2. A Declaration that the Respondents subjected the Applicant to inhuman and degrading treatment, when the Applicant was arrested in his house, before his fiancee and detained at “A” division police station from the 30th day of June to the 2nd day of July, 2018, here in Jos as he was taken away like a common criminal from the Applicant’s residence and this constitutes a gross violation of the Applicant’s Fundamental Rights, guaranteed under Section 34 of the 2011, Constitution as amended till date, and Articles 4 and 5 of the African Charter on Human and People’s Right (Ratification and Enforcement) Acts Cap 10 Laws of Federation Nigeria, 2004 and is therefore illegal and unconstitutional.
3. N154,000.00 (One hundred and fifty-four thousand Naira) only as special damage against the 1st Respondent, being sum owed the Applicant by the 1st Respondent for purchasing his vehicle spare parts as well as workmanship for same.
4. N5,000,000.00 (Five Million Naira) as general damages against the Respondents for unlawful and unconstitutional arrest and detention of the Applicant and subjecting him to inhuman and degrading treatment, which caused him pains and sufferings till date.

5. And for such order or further order(s) as the Court may deem fit and just to make in the circumstances.

The Applicant’s motion was supported by a 29 paragraph affidavit deposed to by the Applicant with a Verifying Affidavit and accompanied with a Written Address. The Applicant also tendered Exhibits A, B1 – B5, C, C1 – C5, D, F and G. The ground upon which the application is predicated was given thus:
“The denial of the Applicant’s Right of his personal liberty, degrading treatment by the 1st and 3rd Respondent, trauma caused to the Applicant, the invasion of the privacy of the Applicant as well as the pains, hardship the Applicant suffered since his arrest and detention, contravened the Applicant’s Fundamental Right of Personal Liberty, respect for the dignity of his person and privacy as guaranteed under Sections 34(1), 35(1), 35(3), 35(4), 35(6), 36(1), 36(4) and 36(5) of the Constitution of the Federal Republic of Nigeria, 2011 as amended till date, and Article 4,5,6 and 12 of the African Charter on Human and People’s Right (Ratification and Enforcement) of Nigeria, 2004.” The facts of the case leading to this appeal as adduced from the pleadings at the trial Court are to the effect that the 1st Respondent who was the Applicant in the lower Court was a journalist as well as a businessman in Jos. Sometime on the 30th day of June, 2018, the 1st Respondent was arrested by the 2nd and 3rd Respondents on the instigation of the Appellant on the ground that he refused to make available the key to the car he fixed, after the Appellant who owns the car refuse to pay him the cost of spare parts and fixing the said car. The 1st Respondent claimed that upon his arrest and detention he was subjected to inhuman treatment as he was denied his medication for pneumonia he has been suffering from and was detained for 3 (three) days.

​On his own part the 1st Respondent (now Appellant) filed a 19 paragraph counter affidavit and a written address. The Appellant’s case at the lower Court was that the parties had agreed that the Appellant’s car would be used for commercial purposes with a weekly remittance of N12,000 but that the 1st Respondent enjoyed uninterrupted period of 49 weeks without remittance amounting to N588,000. It was also the Appellant’s case that the 1st Respondent absconded with the car and placed him under fear after which he extorted over N30,000 from him. Additionally, the Appellant stated that 1st Respondent was not detained as he was released on the same day he was taken into custody.

The parties herein filed their respective Briefs of Argument. The Appellant’s Brief of Argument was filed on the 20th day of February, 2020 and settled by the Appellant’s Counsel, Achor Inyada Esq. In the said Appellant’s brief the following two issues for determination were raised thus:
1. Whether the Learned Trial Judge, was right in law when his judgment on the 1st Respondent’s motion was based only on the argument of the 1st Respondent without considering the Appellant’s side of the argument. (Ground One)
2. Whether from the circumstances of this case, the mere lodging of complaint against the 1st Respondent to the police makes the Appellant liable as pronounced by the Learned Trial Judge. (Grounds Two and Three)

On issue one, the Appellant’s Counsel argued that the learned trial judge failed to afford the Appellant fair hearing when he made no reference whatsoever to the content of his Counter Affidavit/Written Address in opposition to the 1st Respondent’s case in the course of his judgment. However, the learned trial judge concentrated solely and reproduced copiously, the 1st Respondent’s affidavit in support of motion/written address. On this point, counsel cited the case of UBN PLC VS. LAWAL (2015) 14 NWLR (PT. 1479) 203 AT 227, D – F.

On issue two, the Appellant’s Counsel argued that from the facts of the case, the Appellant has a reasonable and probable cause to lodge a complaint to the police. The Appellant’s Counsel further argued that the Appellant was not expected to hire thugs and use them to forcefully recover his car that the 1st Respondent admitted detaining until he was paid. Counsel further submitted that it is pertinent to point out that there is no evidence on record showing that the Appellant did anything more than mere reporting the applicant to the police to warrant him being held liable. Counsel placed reliance on the case of A. C. (O. A. O.) NIG. LTD VS. UMANAH (2013) 4 NWLR (PT. 1344) 323.
The Appellant’s Counsel also submitted that the determination of whether the Appellant was actively responsible for the arrest of the 1st Respondent and alleged illegal detention and torture of the 1st Respondent is a matter of fact and the Court must consider several things like whether there was a reasonable and probable cause which led the Appellant to lodge a complaint to the police. Counsel further argued that the Court has to consider the presence or absence of malice in the act of the Appellant.

The Appellant’s Counsel also submitted that the finding of the learned trial judge that the Appellant instigated the police into arresting the 1st Respondent is erroneous and not supported by evidence and thus there was no basis for the award of damages against the Appellant as the Appellant only exercised his legal right to lodge a complaint.

​The Appellant’s Counsel further argued that the 1st Respondent failed woefully to prove his allegations against the Appellant as he did not state the role played by the Appellant in his alleged detention other than that he legitimately accompanied the police IPO to his house and not the case that the Appellant insisted that he be detained, and that the award of damages against the Appellant in the circumstance is perverse as same is not supported by credible evidence.

In conclusion, the Appellant’s Counsel argued that the judgment is against the weight of evidence and urged the Court to resolve this issue in favour of the Appellant by allowing the appeal and setting aside the judgment of the trial Court.

On the other hand, the 1st Respondent filed his Brief of Argument on the 7th July, 2020 settled by his Counsel Okonkwo John Ekejuba Esq. and raised three issues for determination as follows:
1. Whether from the facts and circumstances of this case, the Appellant was given fair hearing.
2. Whether from the facts and circumstances of this case, the Appellant is not in continuous breach of the right of the 1st Respondent.
3. Whether the Appellant can raise a fresh issue on Appeal without first obtaining the leave of Court to so do.

​On issue one the 1st Respondent’s Counsel argued that the Appellant was given fair hearing. Counsel submitted that the Appellant’s major grievance in this appeal is not the fact that the Court did not hear their response but that the Court only mentioned their position in passing which means that the Court had at least taken judicial notice of their case. Counsel further argued that the Appellant cited a number of cases which are totally at per with the instant case.

The 1st Respondent’s Counsel also argued that the Appellant failed to place sufficient evidence before the Court and that the Appellant, 2nd and 3rd Respondents never challenged nor controverted the 14 exhibits before the Court as tendered by the 1st Respondent in proof of his claims before the Court.

​The 1st Respondent’s Counsel argued that there is a clear distinction between affidavit evidence where the Court will solely rely on the affidavit, the exhibits attached and the written address in forming opinion and drawing conclusion and oral evidence, where the Court will hear the witnesses, observe their demeanors as well as the exhibits attached thereto. Counsel further submitted that an Appellate Court will usually not interfere with the findings of the trial Court where the Court has from the evidence before it drawn up his condition. The 1st Respondent’s Counsel also argued that the Appellant, the 2nd and 3rd Respondents in their respective affidavit before the Court merely denied the fact that the 1st Respondent was ever detained but the 1st Respondent in a bid to get the 2nd Respondent to address this issue, stated equivocally that he was detained from Friday, 30th day of June, 2018 to Monday the 2nd day of July, 2018 wherein he proceeded to demonstrate all that transpired at the police station in Exhibit “F” and “G”.

The 1st Respondent’s Counsel also argued that it is clear that the trial Court delivered its judgment based on the weight of evidence and issues canvassed before it on the merits and no injustice was occasioned. It was further submitted that there is nothing in the proceeding before the trial Court that has qualified this case an exceptional circumstance which would necessitate this Court to strenuously interfere with the evidence in this matter. Counsel then cited the case of MOHAMMED VS. MIN, F. M. E. H. & U. D. (2018) 16 NWLR (PT. 1644) AT 179.

​On issue two, the 1st Respondent’s Counsel argued that if the rights guaranteed under Chapter IV of the Constitution are to be meaningful, they must be thoroughly examined from every angle and determined in an action complaining of their breach. Counsel cited the case of DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483) PAGE 417. Counsel then urged this Court to uphold his argument and hold that the Appellant is in continuous breach of the right of the 1st Respondent.

On issue three, the learned Counsel for the 1st Respondent submitted that in this instant appeal the Appellant assuaged to the fact that the 1st Respondent was the person that talked the Appellant into acquiring a vehicle for the purpose of commercial transportation but this fact was never made an issue at the lower Court and that leave of this Court was never sought and obtained in raising same and therefore urged this Court to expunge same but that if the Court is mindful of looking at it, his position is that the Appellant’s assertion in his paragraph 2.03, page 3 of his brief of argument is false and thus the argument should be discountenanced for being false and misleading in its entirety with substantial cost.
The Appellant also filed a Reply Brief of Argument on the 29th July, 2020 and settled by his Counsel Achor Inyada Esq in response to the 1st Respondent’s Brief of Argument. The Appellant’s Counsel submitted that the 1st Respondent wrongfully formulated and argued issues for determination which are not related to the Appellant’s Notice of Appeal.

The Appellant’s Counsel also argued that the 1st Respondent’s answer to the Appellant’s complaint of denial of fair hearing that the Court at least took judicial notice of the Appellant’s case is misconceived as merely taking judicial notice of a case does not amount to consideration of the party’s case before judgment is delivered and that the learned trial judge only made some passing reference to the Appellant’s Counter Affidavit/Legal Argument and no more.

The Appellant’s Counsel argued that the judgment appealed against failed to satisfy or meet the standard of a good judgment. On this point counsel cited the case of OYEDELE VS. STATE (2019) 6 NWLR (PT. 1667) PAGE 74 AT PAGES 91 – 92. It was further argued that the doctrine of audi alteram partem was flagrantly breached in relation to the Appellant by the learned trial judge where he failed to reckon with Appellant’s Counter Affidavit/Legal Argument before arriving at his decision. On this point counsel cited the case of AUDU VS. A. G. FEDERATION (2012) II SCNJ PAGE 198 AT 214 AT PARA 3 D.

The Appellant’s Counsel also argued that the finding that the Appellant went through the back door and instigated the arrest and detention of the 1st Respondent without prove, is perverse as nothing on record suggests that, and that all the Appellant did was to merely lodge a complaint against the 1st Respondent for forcefully confiscating his car.

The Appellant’s Counsel also argued that malice was not established against the Appellant for lodging the complaint at a single police station.

RESOLUTION OF THE ISSUES
I have reviewed the briefs of argument filed by the parties herein and I shall adopt the issues formulated for determination of this appeal distilled by the Appellant as it reflect all the issues formulated in this appeal. The issues are reproduced hereunder as follows:
1. Whether from the facts and circumstances of this case, the Appellant was given fair hearing.

2.Whether from the circumstances of this case, the mere lodging of complaint against the 1st Respondent to the police makes the Appellant liable as pronounced by the Learned Trial Judge

Before delving into deciding the issues formulated hereinabove I will like to tackle issues 2 and 3 of the 1st Respondent’s brief. The 1st Respondent in his brief formulated the following as issue 2:
Whether from the facts and circumstances of this case, the Appellant is not in continuous breach of the right of the 1st Respondent. (Distilled from ground 2)

The Appellant in his reply brief argued as it relates to this issue that it does not relate to the grounds of appeal. Ground 2 of the Notice of appeal reads thus:
GROUND TWO
The learned trial judge erred in law in his finding that the Appellant instigated the arrest and detention of the 1st Respondent when he held thus:
“My findings are that the 1st Respondent surreptitiously went through the back door and illegally obtained the services of the 3rd Respondent to infringe upon the Appellant’s Rights. And I so hold.”

PARTICULAR OF ERROR
a. There is no basis for the finding there, being no material facts on record showing that the Appellant played any more role than merely laying a complaint to the Police that the 1st Respondent absconded with his car.
b. Having held that the 3rd Respondent acted on his own, there is no basis for finding the Appellant liable for the alleged detention and torture of the 1st Respondent by the 3rd Respondent.
c. The Police station where the 1st Respondent was allegedly taken to is an official public office.
d. The 1st Respondent conceded to have officially written a statement at the Police Station in respect of the complaint.
e. The Appellant has no control whatever over the Nigeria Police
f. The Appellant does not have the power of arrest or coercion over any citizen nor does he give orders and instruction to the Police.
g. The decision to invite the 1st Respondent for questioning was entirely that of the Police.
h. The 1st Respondent was immediately released on self-recognition at the discretion of the Police without any input from the Appellant.
i. The only role, on record, played by the Appellant was accompanying the 3rd Respondent to the 1st Respondent’s house and did not instigate the 3rd Respondent as speculated by the learned trial judge.

The law is trite that every issue for determination must be distilled from the grounds of appeal before the Court and any issue that does not arise from a ground of appeal will go to no issue. In such a situation the issue will be discountenanced or struck out by the Court. See the cases of OSINUPEBI VS. SAIBU (1982) 7 SC 104 and GOVERNMENT OF GONGOLA STATE VS. TUKUR (1987) 2 NWLR (PT. 56) 308.
In the case of AGBITI VS. NIGERIAN NAVY (2011) LPELR – 2944 (SC) the Supreme Court held that:
“Issues for determination in any appeal must flow from the grounds of appeal. They must project clearly and succinctly the substance of the complaint contained in the grounds of appeal. It is therefore wrong for an appellant or respondent to load many complaints in one issue for determination or create subsections under one issue. Issue for determination are meant to acquaint the Court with the grievances of the parties in the appeal and subsequently assist the Court in doing substantial justice in the determination of the issues…”

A glance at issue two formulated by the 1st Respondent together with ground two of the notice of appeal shows clearly that the issue was not formulated from the ground of appeal. The 1st Respondent’s issue two is therefore hereby struck out.

At this juncture I will like to tackle issue three formulated by the 1st Respondent which reads thus:
“Whether the Appellant can raise a fresh issue on appeal without first obtaining the leave of Court to do so.”

The 1st Respondent had argued that the Appellant assuaged to the fact that the 1st Respondent was the person that talked the Appellant into acquiring a vehicle for the purpose of commercial transportation in paragraph 2. 03 page 3 of the Appellant’s brief.

​It is imperative to state here that the portion the 1st Respondent is complaining about is located in the material statement of facts of the Appellant’s brief at the beginning of the brief. This part of the brief is not in fact the main argument contained in the issues for determination. I therefore find that this is not an issue this Court will concern its self about.

This “fresh issue” is neither contained in the notice of appeal nor in the issues for determination which are what the Court needs to concern itself with. As a result of my reasoning above, I find that this issue is of no moment and I therefore strike it out.

I shall now move on to the two issues I have adopted for the determination of this appeal.

ISSUE ONE
Whether from the facts and circumstances of this case, the Appellant was given fair hearing.

The Appellant had argued that the trial judge made no reference to the counter affidavit/written address in opposition to the 1st Respondent’s case in the course of his judgment. The 1st Respondent on his part maintained that the matter was heard and determined based on affidavit evidence and that the 1st Respondent adduced 14 exhibits in proof of its case while the Appellant did not file anything which left his evidence unchallenged or controverted.

​In the case of PAM & ANOR VS. MOHAMMED & ANOR (2008) LPELR – 2895 (SC), the Supreme Court in explaining the meaning and nature of the doctrine of fair hearing held that: “In Mohammed v. Kano N.A (1968) All NLR 411 at 413 (Reprint) Ademola C.J.N. considering the meaning of fair hearing said: “It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”

In the same case of PAM & ANOR V. MOHAMMED & ANOR (Supra) the apex Court as it relates to the test of fair hearing held that:
“The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. The fundamental basis underlying the principle of Fair Hearing is the doctrine of audi alteram partem which means to hear the other side. See ASTO v. Quorum Consortium Ltd (2004) 1 NWLR (Pt. 855) 601. See also Ogundoyin v. Adeyemi (2001) 7 S.C. (Pt. II) 98; (2001) 13 NWLR (Pt. 730) 403. Fair hearing, in other words, involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Court was fair to all the parties’ in the proceedings. See Somai Sonka Co. Nig. Ltd v. Adzege (2001) 9 NWLR (Pt. 718) 312. The reasonable person and the impartial observer mean the same. They mean a complete stranger, an unbiased person to the proceedings. A reasonable person is a person with reason having a faculty of mind by which he distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper and just unbiased person. An impartial observer is not partial. He favours neither the plaintiff nor the defendant. He is disinterested in the matter, as he treats both the plaintiff and the defendant alike. He is an unbiased person. Both the reasonable person and the impartial observer are the hypothetical legal standard for determining or judging fairness, fair play and equity. The test of the reasonable man in Nigerian Courts is no more the man at the Clapham junction in London but one in anywhere in the Nigerian cities.”
As it relates to the primary duty and role of a judge, the apex Court in the case of ODUTOLA & ORS VS. MABOGUNJE & ORS (2013) LPELR – 19909 (SC) per Stanley Shenko Alagoa, JSC held that:
“The primary duty of a Judge called upon to adjudicate on a matter between contending parties is to always strive to maintain balance. Like the referee on a football pitch he should be ready to share and apportion blame and show the red and green cards firmly and equally as the need arises. He goes into the field without any clear favorites in mind so that at the end of the game he can say with a clear conscience, “I did what I was called upon to do without fear or favour. I am convinced that I did my best.” That indeed in a nutshell is the whole essence in the art or science of judging.”
Flowing from the cases mentioned above, it becomes apparent that a judge’s duty is to be an impartial umpire in a case. To do this he is required to look at the cases of both parties which includes all evidence adduced by all sides and decide which is heavier. In the case of OLUBODE & ORS VS. SALAMI (1985) LPELR – 2607 (SC), the Supreme Court held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“This Court in Mogaji v. Odofin (1978) 4 Sc. 91,93 stated the principle:
“The duty of trial judge is to consider the totality of the evidence in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before the Court in which both parties appear is preferable to another set of facts given in evidence by the other party, after a summary of all the facts must put the two set of facts on an imaginary scale, weigh one against the other, then decide on the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the proper law to it.”

​Having stated the above let me draw from the findings of the lower Court. Counsel for Appellant had argued that the trial judge made no reference to the content of the Appellant’s Counter-Affidavit/Written Address but reproduced copiously the 1st Respondent’s Affidavit in support of Motion/Written Address throughout his 10-page judgment. Additionally, that the issue for determination did not cover all the arguments canvassed by both parties.

I agree with the argument of the Appellant’s counsel. I have painstakingly read through the lower Courts judgment and indeed any reasonable man would come to the conclusion that the trial lacked fair hearing. First and foremost, the trial judge totally ignored the evidence of the Appellant. Given that it is a case of fundamental human rights and is heard on affidavit evidence the trial judge’s decision did not once refer to the defence of the Appellant in order to weigh it against that of the 1st Respondent.

Secondly, the trial judge only stated the issues for determination formulated by only the 1st Respondent before going ahead and summing them up into one sole issue and answering it without giving any regard to the issue formulated by the Appellant in his written address. This to me, indicated that the trial judge only gave consideration to the 1st Respondent’s written address.

Finally, the trial judge seemed to conclude on page 100 of the record of appeal that:
“…My findings are that the 1st Respondent surreptitiously went through the back door and illegally obtained the services of the 3rd Respondent to infringe upon the Appellant’s Right.” I have looked through all the evidence adduced by the parties herein and I find no evidence that the above is actually the truth of the matter. It is the law that he who asserts must prove and in this case there was no proof that the Appellant “illegally obtained the services of the 3rd Respondent to infringe upon the Appellant’s Rights” as stated by the trial judge.

All in all, a perusal of the judgment makes it clear that the trial Judge simply believed the case of the 1st Respondent without considering that of the Appellant. I find that there indeed was an absence of fair hearing in this case.

I resolve this issue in favour of the Appellant against the 1st Respondent.

ISSUE TWO
Whether from the circumstances of this case, the mere lodging of complaint against the 1st Respondent to the police makes the Appellant liable as pronounced by the Learned Trial Judge

​The Appellant had argued that he has the right to report the 1st Respondent to the police for absconding with his car for months and using it to extort money from the Appellant. Additionally, the Appellant also argued that having reported the matter to the police it is the duty of the police to use its discretion to investigate the matter and that does not make the Appellant an agent to invoke vicarious liability. It was then argued by the Appellant’s counsel that the trial judge’s finding that the Appellant instigated the police into arresting the 1st Respondent is erroneous and not supported by evidence. Counsel for the 1st Respondent did not give any arguments as it relates to this issue.

The question that must be answered as it relates to this issue is whether a legitimate complaint to the police can amount to a breach of fundamental human right?
Indeed, Sections 34 and 35 of the 1999 Constitution as amended, confer every individual with the right to dignity and personal liberty. However, the Supreme Court in the case of FAJEMIROKUN VS. COMMERCIAL BANK (NIG) LTD & ANOR (2009) LPELR – 1231 (SC), held in relation to legitimate complaint to the police as follows:
“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
Similarly, in the case of AL-HASHIM VS. TOM & ORS (2019) LPELR – 47651 (CA), the Court of Appeal held that:
“Police officers are empowered to investigate any criminal allegation or complaint made. They may arrest, detain and even prosecute by virtue of Section 4 of the Police Act. In the legitimate discharge of their duties they cannot be sued in Court for breach of fundamental rights. Such breach does not cover cases where a Respondent has made a legitimate complaint to the Police or cases where the Police investigate and act on complaints made to them. See Okanu Vs COP, Imo State (2001) 1 cases on Human Rights page 407 and Atakpa Vs Ebetor (2015) 3 NWLR (Pt. 1447) 549 at 558, see also Section 35(1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”
In the case of OKAFOR VS. ABUMOFUANI (2016) LPELR – 40299 (SC) the apex Court held that: “It is trite that where a person makes a genuine complaint against another to the police and the later is arrested, detained and prosecuted by the police, he cannot be said to have put the law in motion against him. See Gbajor vs Ogun buregui (1961) ALL NLR 853, Isheno v Julius Berger Nig. Plc (2008) 6 NWLR (Pt. 1084) 582. However, where a report is made to the police and the suspect is specifically mentioned, and the report is found to be false, malicious, ill motivated and tissues of lies, in a claim for damages, the victim of the report shall be entitled to damages. In such a suit, the police are not a necessary party because part of their duties is to receive complaint and act on it accordingly. Where the police investigation reveals that the report was made mala fide, there is no cause of action against the police except it can be shown that the appellant connived with the police in making the false report. See Okonkwo v Ogbogu (1996) 5 NWLR (Pt. 449) 420.”
​Drawing from all the case law above, I can say that it is indeed the duty of the police to investigate a complaint laid before them, and upon investigation to take appropriate action. I also find that there is no evidence that the Appellant did nothing more than lay his complaint before the police. It was not shown or proven that the Appellant interfered with or otherwise directed the police’s investigation. Upon comprehensively going through the facts of this case, the Appellant was certainly acting within his rights in laying a complaint before the police and he cannot be faulted on this score.
Additionally, the Appellant cannot be held responsible for actions taken by the police. It must be stated that fundamental rights are not breached merely because a respondent has made a legitimate complaint to the police, or when the police investigate and act on complaints duly made to them. In a nutshell, there is no evidence that shows that the Appellant made the complaint maliciously with ill intent which would warrant the Appellant to be liable to pay damages to the 1st Respondent.

I resolve this issue in favour of the Appellant against the Respondents.
In conclusion therefore, and having regard to all the above findings made by this Court, it is my decision that this appeal is meritorious and the same is therefore hereby allowed. The judgment of the trial is consequently hereby set aside. 

AHMAD OLAREWAJU BELGORE, J.C.A.: I agree entirely with my learned brother, MOHAMMED BABA IDRIS, JCA, that this appeal is meritorious and should be allowed.

I allow the appeal and set aside the decision of the trial Court.

​ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Idris, JCA. I fully agree with his reasonings and conclusion that this appeal is meritorious and ought to be allowed. It is accordingly allowed by me too. I abide by all the consequential orders in the lead judgment.

Appearances:

E. A. Inyada, Esq., with him, U. D. Nimyel, Esq. For Appellant(s)

J. E. Okonkwo, Esq. – for 1st Respondent

Y. S. Rwang (DDCR), with him, N. Mba (PSC) – for 2nd and 3rd Respondents For Respondent(s)