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URHIADARHO v. TORERE & ORS (2021)

URHIADARHO v. TORERE & ORS

(2021)LCN/15811(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Thursday, September 30, 2021

CA/AS/337/2018

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

JULIUS URHIADARHO APPELANT(S)

And

1. MRS. VICTORIA TORERE 2. MR. ANDERSON EBIUVHE 3. AREA COMMAND, DELTA STATE COMMAND, WARRI RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF A TRIAL COURT

​In my view, there is nothing perverse or wrong in that decision. Part of the reasons given in the Judgment may be wrong, but an appellate Court will not interfere to set aside a correct conclusion in the Judgment. See Alhaji Ndayako & Ors Vs Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ 198 where Edozie, JSC pronounced with finality the position of the law thus:
“An appellate Court is only concerned with whether the Judgment appealed against is right or wrong, not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.”
See also Abaye Vs Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya Vs Uchendu 18 WACA 46 and recently in Appeal No.CA/AS/302C/2013 of Friday 25th June, 2021 Per Biobele Abraham Georgewill, JCA.
PER DANJUMA, J.C.A.

WHETHER OR NOT THE COURTS HAVE THE POWERS TO STOP THE POLICE FROM INVESTIGATING AN ALLEGATION OF CRIME
My lords, it is the law that whilst performing its legitimate duties, no Court of law including this Court has the power to stop the Police from investigating an allegation of crime and therefore, no person against whom there is a reasonable suspicion of having committed a criminal Offence or likely to commit a criminal offence would be granted an order in any way and howsoever capable of shielding him against criminal investigation and prosecution since no citizen of this country has any right to be an outlaw under the laws of this country and to be above the law. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 549@ p. 558. See also IGP V. Ubah (2015) 11 NWLR (Pt. 1472) 405 @ p. 413; Nwezi V. COP (2000) 2 HRLR 156 @ p. 159; Badejo V. Minister of Education (1996) 8 NWLR (Pt. 461) 15 @ p. 19; Hassan V. EFCC (2014) 1 NWLR (Pt. 1389) 607 @ p. 613; Gani Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606; AG. Anambra State V. Uba (2005) 15 NWLR (Pt. 947) 44; Christlieb Plc V. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512; Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 @ p. 252. PER GEORGEWILL, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal by the appellant against the Judgment of Hon. Justice E.I. Oritsejafor, of the Effurun Judicial Division of the Delta State High Court, sitting at Effurun, delivered on the 26/3/2018, dismissing the application of the appellant for the enforcement of his fundamental rights breached by the Respondents. The said application of the appellant is at pages 1-13 of the supplementary records of appeal and the Judgment is at pages 34-42 of the records of appeal.

STATEMENT OF FACTS
The Applicant/Appellant by an application for the enforcement of his fundamental right at the High Court of Justice, Effurun Judicial division, Delta State sought against the Respondents/Respondents the following reliefs:
1. A declaration that the threat to arrest the Applicant by the 3rd Respondent and officers under him at the instigation of the 1st and 2nd Respondents, based on the false and trumped up allegation of misconduct and stealing of Mona Products Limited goods is unlawful, unconstitutional and same amount to violation and infringement of the Applicant’s Fundamental Rights protected and guaranteed under Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 5 and 6 of the African Charter on Human and Peoples Right.
2. An Order of injunction restraining the 2nd Respondent and officers under him from arresting and detaining the applicant based on the false allegations mentioned above by the 1st Respondent.
3. Declaration that the issue between the Applicant, 1st and 2nd Respondents and Mona Products Limited is Civil in nature.

The application is at pages 1-12 of the supplementary records of appeal. The grounds upon which the application is brought are:
1. By virtue of Section 34 of the 1999 Constitution (as amended) and Article 5 of the African Charter on Human and People’s Right, every person is entitled to the dignity of human person and shall not be subject to torture, inhuman or degrading treatment by any person or authority.
2. By Virtue of Order II, Rule 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 and Section 46 of the 1999 Constitution of Nigeria, any person who’s fundamental rights is being or likely to be infringed may apply to Court for redress.
3. That no one should use the police or thugs to intimidate or threaten any person.

The grounds are contained in pages 12 of the supplementary records of appeal.

The Applicant/Appellant sued the Respondents/Respondents for the violation of his fundamental Rights enshrined under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The Appellant/Applicant was until the 28th day of July, 2017, an employee and the Area Sales Manager of Mona Products Ltd. which has its head office at KM. 27, Lekki-Epe Expressway, Ibeju-Lekki, Lagos when his employment was terminated on grounds of alleged misconduct. The detail of the misconduct was however not stated in the termination email which was sent to him by his employer. The Applicant/Appellant then wrote a letter through his solicitor to the managing director of Mona Products Ltd. on the 22nd day of September, 2017 requesting for his two months’ salary and other incidental expenses. A copy of the letter was also sent to the 1st Respondent/Respondent.

​However, since the said letter was sent, the Applicant/Appellant could no longer sleep as the 1st and 2nd Respondents/Respondents kept threatening to deal ruthlessly with the Appellant. This prompted the Appellant to institute this action against the Respondents and same served on them.

Upon being served with the Motion on Notice, the 1st and 2nd Respondents/Respondents filed a counter affidavit in opposition to the application while the 3rd respondent failed to file any process in response to the application.

On receipt of the 1st and 2nd Respondents counter affidavit, the appellant filed a reply to the counter affidavit.
Parties adopted their respective written addresses on the 21st day of February, 2018 and the learned trial Judge gave his judgment on 26/3/2018 dismissing the application in its entirety for lack of merit.

ISSUES FOR DETERMINATION
The appellant raised the following issues for determination;
1. Whether or not the learned trial judge was right when he held that the Applicant/Appellant’s refusal to return the company’s property amounts to a crime (Ground 1).
2. Whether or not the learned trial judge was right when he held that the Applicant/Appellant failed to keep appointment with the respondent for the return of the company’s property (Ground 2).

ISSUE NO.1
Whether or not the learned trial judge was right when he held that the Applicant/Appellant’s refusal to return the company’s property amounts to a crime (Ground 1).
On this issue, Appellant’s counsel submitted that the trial Judge was wrong when he held that the Applicant/Applicant’s refusal to return the company’s property amounted to a crime of criminal conversion.

He submits that the allegation of crime against the applicant was a trumped up and a pretext to use the Nigeria Police Force to intimidate the applicant.

Counsel relies on the paragraphs 9 and 10 of the Applicant/Appellant’s Reply, to the 1st Respondent’s counter Affidavit and the annextures thereto the said Reply to the Counter Affidavit.
Counsel submits that his case is that he received products from the distributor and supplies to customers who were yet to pay him for goods received. The counsel wondered how monies never received in the first place could be converted or be visited by a report to the police.

Referring to the definition of fraudulent conversion in Black’s Law Dictionary 9th Edition thus:  …
And the case of Dr. … where the Court lucidly set out the meaning of conversion to be.”

Submits that Exhibits 0.01 to 0.03 shows an employment relationship between the Appellant and Mona Products Limited, which the 1st and 2nd respondents represent.

That there had not been challenged the fact that the Appellant had a duty to sell goods which he did and had not collected from the buyers whose names and addresses he had disclosed to the company. That sums were owed him by customers to be remitted as soon as the customers paid up had not been denied. That payment of 2 months’ salary and incidental expenses were demanded by the Appellant vide Exhibit 0.03 (Solicitors Letter at page 11 of the Supplementary Record of Appeal). That these facts clearly show that there was no attempt to convert the company’s property as wrongly held by the Court. That by the full and frank disclosure made, Appellant could not have intended to defraud to warrant any report to the police.

​That it was a civil relationship and civil transaction and the 3rd Respondent was forbidden by law to investigate. That the powers of the police as enshrined in Section 4 of the Police Act and 35(c) and 215 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) to prevent and detect crimes and the due enforcement of law does not extend to investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions.
DIAMOND BANK PLC VS. H.R.H. EZE (DR.) PETER OPARA & ORS. (2018) LPELR 43907 (SC).

That the amount (debit) owed Amicon and Mr. Omoregbe were to be paid to the company less the Appellant’s Expenses. That had not been done, yet the Respondents were trying to use the police to act as Debt Collectors to recover Debts owed from the Appellant.
That Debt Collection was ultra vires the enabling statutes. JIM-JAJA VS COP. (2011) 2 NWLR (PT. 1231) P. 375 referred.

​Counsel submits that though it is the duty of every law abiding citizen to report or lay complaint to the police when there is reason to suspect a crime or likely to be committed however for report actuated by malice, there is liability for the consequence of the malicious falsehood suffered. Agbakoba VS. STATE  SECURITY SERVICE (1994) 6 NWLR (PT. 351) P. 475 and EJIOFOR V. OKEKE (2000) 7 NWLR (PT. 665) P. 363 were relied upon.

We have been urged to hold that the constant threats to arrest and detain the appellant by men and agents of the 3rd Respondent based on the malicious and unsubstantiated allegations of the 1st and 2nd Respondents amounts to a violation of the fundamental human rights of the Appellant and to resolve the issue one in favour of the Appellant.

ON THE ISSUE 2
Whether or not the learned trial Judge was right when he held that the Applicant/Appellant failed to keep appointment with the Respondent for the return of the company’s property. (Ground 2)

​The learned counsel reproducing part of the Judgment at pages 42 lines 4-6 of the Record thus:
“In the circumstances the complaint by the 1st Respondent to the police cannot be said to be malicious. The moment the applicant began to fail to keep appointment made for the return of the company’s properties in his possession, the 1st Respondent had a duty to make the complaint to the police who had a corresponding duty to investigate the complaint.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned counsel pointed out that the finding was wrong as it was based on the counter Affidavit of the 1st Respondent to Appellant’s Affidavit to his Application which was replied to as found in pages 18-19 of the Record of Appeal.

The Reply as relevant here is as follows:
6. That I am no longer in possession of company phone, but the first Respondent has refused meeting me to collect same. However, the phone has been handed over to her counsel.
The N226, 000 owed to Amicom and Omoregbe are issues of lies. We were yet to calculate my expenses and deduct same before the use of the police.
7. That in answer to paragraphs 11 and 12 of the Counter Affidavit I had an appointment with the first Respondent only for me to get there and I saw only the 2nd Respondent whom I did not have any iota of dealing with. He is not even a staff of Mona Limited. Right there at Shoprite, I called the 1st Respondent on phone only to find out that he still at home. I simply drove away.
That from the reply supra Appellant had denied not keeping to appointment, rather it was the 1st Respondent who did not keep to appointment. That from this material contradictions in the affidavit evidence of parties, it beholved the Court as a duty to call oral evidence to resolve the conflict.
MARK V. EKE (2004) ALL FWLR (PT. 200) P. 1455; EZEGBU V. FATB (1992) 1 NWLR (PT. 216) PG. 197 and OLU IBUKUN V. OLU IBUKUN (1974) SC 41.

It was therefore submitted that the Courts have no jurisdiction to resolve conflicting averments in Affidavits or prefer one version of the depositions to the other without oral evidence. See ASONYE V. REGISTERED TRUSTEES OF CHRIST APOSTOLIC CHURCH (1995) 2 NWLR (PT. 379) 623 AT 634.
That what the trial Court did was to conjure evidence which was not proved before him.

We have been urged to set aside the findings of the trial Judge that the Appellant failed/refused to keep appointment with the Respondents and to set aside the judgment of the lower Court.

The learned counsel posited that the Respondents have continuously and persistently threatened to arrest and detain the Appellant without justification over a purely civil matter. That the 1st Respondent had so admitted using the men of the 3rd Respondent when Appellant did not respond to an invitation letter from the 3rd Respondent. That this alleged invitation was denied and challenged by paragraph 8 of the Reply to the Counter Affidavit as found at pages 18 and 19 of the Supplementary Record of Appeal:
“That I was not served with any invitation, it was after my letter Exhibit 0.03 that the 1st Respondent started chasing me all over town with the police. The 1st Respondent is challenged to show the letter of invitation.”

That the above averment was neither contradicted by the 1st Respondent nor did the 1st Respondent show any invitation letter sent to the Appellant which Appellant failed to honour. That it is on the basis of the above that the Appellant urges that his right was being threatened by the Respondents unlawfully. That such a citizen of Nigeria, like him has the sacrosanct rights protected by the Fundamental Rights enshrined in Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and enforceable ex virtue Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 thus:
“any person who alleges that any of the Fundamental Rights provided for in the Constitution or African charter on Human and People Rights (Ratification Enforcement) Act and to which he is entitled has been, is being or is likely to be infringed, may apply to the Court in the state where the infringement occurs or is likely to occur for redress.”

That the Appellant’s rights were unlawfully violated by the Respondents that this issues be resolved in favour of the Appellant and the Appeal allowed and the decision of the trial Court dismissing the Application be set aside and in its place to hold that the Appellant’s Rights were violated by the Respondents.
On their part, the 1st and 2nd Respondents by their Brief of Argument filed on 16-11-20 which was adopted at the hearing raised two issues for determination thus:
1. Whether the learned trial Judge was right in dismissing the Appellant’s application (framed from ground 1 of the grounds of Appeal).
2. Whether the 1st Respondent has a duty/right to report any act that bothers on criminality to the police (from ground 2 of the grounds of Appeal).

Arguing the 2 issues together, it was submitted that the trial Judge was right in dismissing the application by the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The learned Counsel submitted that it was obvious as found by the trial Court that the Affidavit evidence showed a contractual relationship of employer/employee between the Appellant and the 1st Respondent and it is that that must be evaluated; Relies on Mbang Vs Janet (2015) ALL FWLR PT 767 at 76 & 769.

Contends that the trial judge rightly dismissed the application as it was founded on the foundation of a contractual relationship and cannot be brought under the Fundamental Rights Enforcement Procedure.

That criminality was involved and therefore outside the invocation of the Fundamental Rights Enforcement Procedure Rules. The case of Egbuonu Vs Bornu Radio Television Corporation (1997) 54 LRCN 2739 RATIO 2 (SC) was cited in aid.

In Egbuonu VS Bornu Radio Television Corporation (Supra), it was held thus;
“The procedure of instituting an action based on the infringement of a fundamental human right under the Constitution is prescribed by Fundamental Right (Enforcement Procedure) Rule, cap. 62 of the Laws of the Federation, 1990.
An action for wrongful dismissal from employment cannot be brought under the rules since it belongs a different class of action from actions on contravention on threatened contravention of a fundamental right. In this case the Appellant main claim which is based on wrongful dismissal from employment is founded on contract. For him to enforce the claim, he was bound to take out a writ of summons against the respondent. This he failed to do. The Court of Appeal was therefore right to strike out the case on the authority of decision of this count.”

That the Appellant’s application was incompetent for not been properly commenced under the Fundamental Rights Enforcement Procedure Rules, 2009, and lacks merit.

Further in argument, the 1st and 2nd Respondents reproduced the Affidavit of the Applicant/Appellant in support of his Application and both the Counter Affidavit thereto and Reply Affidavit with the letter of employment and submitted that the Appellant’s conduct depicted criminality and that there was no breach of the Appellant’s fundamental right to the dignity of his person as the Appellant was not under any form of torture, inhuman or degrading treatment; neither was he arrested nor detained contrary to Sections 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The learned counsel relied on Ahuruonye Vs Ikune (2015) ALL FWLR PT 811 where “torture” is defined to include “Mental harassment as well as physical assault”; while “Inhuman treatment and degrading treatment are defined as ‘inhuman treatment’ means treatment which is devoid of feeling for the suffering of others. Degrading treatment means reviling, holding one up to public apology, lowering a person in the estimation of the public, exposing him to disgrace, dishonor, contempt and ridicule”.

Rita Iyeghe Vs Ahmadu Bello University, Zaria (2016) ALL FWLR (PT 851) P.1377 at 1386 was also relied upon and it was then submitted that a critical examination of the affidavit evidence of the parties as referred to does not show any degrading or inhuman treatment.

That the report to the police after a persistent refusal to keep appointments and to return company property after termination of appointment amounted to crime of conversion. That Appellants application was rightly dismissed.

​Reference was made to Brayn A.  Garner’s Black’s Law Dictionary 9th Edition, page 381 where criminal conversion is defined as “The wrongful possession of disposition of another’s property as if it were one’s own; an act or series of acts of willful interference without lawful justification, with an item of property in a manner inconsistent with another’s right whereby that other person is deprived of the use and possession of the property.

That from the above definition, the act of the 1st Respondent to make a formal complaint to the police (3rd Respondent) of the acts of the Appellant which he called criminal in relation to the company’s properties in his possession cannot be malicious. That they are criminal acts which every citizen has a right to report to the police.

Fajemirokun Vs Commercial Bank of Nigeria Limited (2009)175 LRCN 99 at 109 Ogebe (JSC) relied upon thus:
“Generally, it is the duty of citizens of this country to report commission of crime to the police for their investigation and what happens after such is entirely the responsibility of the police…”

Counsel also relies on Section 4 of the Police Act thus;
“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 military duties within and outside Nigeria as may be required by them or under the authority of this or any act.”

That the police have the right under the law to invite the Applicants to the Station upon the complaint of the 1st Respondent of the criminal conduct of the Appellant; that the police should be allowed to perform their statutory duties and the Appeal be dismissed.

On its part, the 3rd Respondent, by its Brief of Argument settled by Onoriode W. Ewenode, Esq of learned Counsel formulated a lone issue to wit: whether from the circumstances of this case, the 3rd Respondent was not empowered by both the 1999 Constitution and the police Act to investigate allegations of crime reported by both the 1st and 2nd Respondents to it?

Relying on Section 35(c) of the 1999 Constitution and Section 214(2) thereof and Sections 24, 25, 26 and 27 of the Police Act, Counsel submitted that the police may arrest upon the police having reasonable suspicion of any person having committed an offence.

Relies on Ene & Ors VS Bassey & Ors (2014) LPELR 23524 CA at page 26, Par. D-E thus;
“The police are statutorily empowered by Section 35(c) of the 1999 constitution of Nigeria and Section 24 of the Police Act to arrest and detain persons upon reasonable suspicion, let alone upon receipt of a criminal complaint made officially, as in the instant case.
There exist no breach of the fundamental rights of the Applicant” (C.A).

Ononuju VS IGP & ORS (2014) LPELR 24332 (CA) Par Husseini, (JCA) at Page 24-25 Par. A-C thus:
“The general powers invested in the police to effect arrest of suspected offenders and to detain them is statutory. I refer to Section 4 of the Police Act Cap. 339, LFN 1990, Police Act Cap. 19, Laws of the Federation of Nigeria; Vol. 13, 2004, see further Sections 24(1) and 29 of the same Act. Other legislations such as the Criminal Procedure Code at Section 26 amongst others, all empower the police to make arrest in certain circumstances.”

The following cases were also relied upon thus:
1. EDEH VS COP BAUCHI STATE (2014) LPELR-23354 (CA)
2. MANU & ANOR VS AHMADU & ORS (2015) LPELR 25635 CA
3. I.G.P & ORS VS IKPILA & ANOR (2015) LPELR 40630 CA @ 52-54
4. OKONKWO VS EZEONU & ORS (2017) LPELR 42785 (CA) @ 41-62

Specifically, the 3rd Respondent’s counsel referred to the case of Baro Vs C.O.P Delta State, (2019) LPELR 48611 CA/ @ 15 wherein this Court held, “I find support in the case of A.G ANAMBRA STATE VS. UBA (2005) 33 WRN 199 @ 213-214 LINES 4, RATIO 5 where this Court held thus;
“For a person to go to Court to be shielded against criminal investigation and prosecution is an interference of powers given by the constitution to law officers. The Plaintiff has no legally recognizable right to which the Court can come to his aid. His claim is not one the Court can take cognizance of, for it has disclosed no cause of action.
The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional powers.” It is long settled that a Court of law can not grant an order to forbid or prevent the police from performing their normal duties.”

That there is no averment in the entire 19 paragraphs of the Appellants Supporting Affidavit of 29th September, 2017 that the 3rd Respondent or his officers arrested or detained the Applicant/Appellant for one minute; that there are averments and findings of the trial Court of him running away from arrest and as such seeking the shield of the Court from being arrested relying also on EGONU & ORS. V. OGBONNA & ORS. (2018) LPELR 46063 CA per Bolaji Yusuf, JCA and OCEANIC SECURITIES VS. BALOGUN & ORS. (2012) LPELR 9218 (CA) 1 @ 20-30 PAR. C and KURE VS. C.O.P. (2020) LPELR 49378 (SC) 1 @ 33 thus:
“The primary duty of the police by Section 4 of the Police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders”
was relied upon and to urge that on this also IBIYEYE VS GOLD (2012) ALL FWLR (PT. 659) 1074, the 3rd Respondent’s lone issue should be resolved in its favour and to dismiss the Appellant’s appeal with cost and uphold the judgment of the trial Court.

RESOLUTION OF THE APPEAL
I have studied carefully the Record of Appeal in this matter and the judgment of the Court in particular; and think that from the grounds of Appeal and the Issues formulated by the parties the real issue for determination is whether the Applicant/Appellant had made out a case for the breach of his Fundamental Right at the trial Court to warrant this Court to set aside the trial Court’s decision to the contrary. That the complainant cannot complain of a breach of his fundamental right.
This case is a straight and simple contest, on simple facts and settled position of the law.

It is one of such that the Courts do not have to delay in dispensing justice expeditiously where possible as it is one that touches on the allegation of the breach of Fundamental Rights.

Happily, the Respective Counsel for the parties have understandably not gone on a rigmarole of submissions that delay justice by their departure from the point.
I shall however touch on the respective issues, such that their places and purport may be underscored for whatever their worth may be.

​Starting with the 3rd Respondent’s sole issue, it is obvious that its learned counsel has re-stated the settled position of the law as appertaining the powers, duties and limits of the police and its function arise in the investigation, prevention, arrest and enforcement of all laws and Regulations pursuant to the Constitution, the Nigeria Police Act and the various Penal and Criminal Procedure Codes and Act or law as may be stated.

The police represented by the 3rd Respondent herein has not been shown by the Appellant to have overstepped its legal/statutory bounds nor even exercised any of its statutory duties and powers and in any matter encroaching or violating any of his fundamental rights.

I have combed the entirety of the Appellant/Applicant’s affidavits and the judgment of the Court and find no scintilla of evidence disclosing any actionable violation of Appellant’s Fundamental Right by the 3rd Respondent.

The trial Court rightly did not make any order in favour of the Appellant and against the 3rd Respondent, as there was no cause of action disclosed against the 3rd Respondent.

I should observe however, in passing that there was no suit for the interpretation of the police powers under the law in litigation, and therefore, the sole issue by the Appellant if for the purpose of the question whether they invited the Appellant in accordance to the police powers is legal, then I answer in the affirmative, except to point out that the Appellant had not averred that he was invited by the police and that, that was illegal.

Appellant merely complained against the Appellant’s actions in pursuing him to the church, fixing an appointment with him and defaulting and complaining to the 3rd Respondent as if he was a fugitive of justice who was in infraction of the law.

The seeming attempt in the 3rd Respondent’s Brief of Argument to justify the 1st and 2nd Respondents’ position does not affect the Appellant’s appeal in any way.

I shall however proceed to consider the appeal as relating to violation of fundamental rights of the Appellant by the 1st and 2nd Respondent. The Appellant was neither arrested nor tortured. He was not subjected to any form of inhuman or degrading treatment. There was no evidence of any violation of Sections, 34, 35 or 36 of the Constitution, 1999 (as amended). There is nothing in the record of appeal reflecting any mental harassment and degrading treatment of the Appellant. The question of invitation to meet with the Respondents to discuss or sort out their business deals and the state of sales, proceeds, indebtedness for the purpose of Account sequel cessation of employment whether rightly or wrongly does not without more constitute a violation of Fundamental Right of a citizen.

A formal complain to the police to investigate a perceived fraud or crime will not without more constitute a violation of one’s Fundamental Right if the police did not take any action against the complaint. It will also not constitute a violation of a claimant’s right even if actions were taken by the police, except it is shown that the report or complaint was baseless and the machinery of Justice was set in motion while actuated by malice.

​It is however obvious to me that the trial Judge was not correct in stating that when the Appellant failed to keep up appointments with the Respondents in respect of the return of the company properties in his possession, he was guilty of criminal conversion for which the 1st Respondent had a duty to complain to the police who had a corresponding duty to investigate the complaint.

I think it is this over stretched and erroneous view of the law (with due respect) on what constitutes criminal conversion when there was no proof of the properties of the 1st and 2nd Respondents with the Appellant and the intent to convert nor the rebuttal evidence of the circumstances of possession if there was possession and if there were no exceptions that had emboldened the Respondents and wrongly, too.

The powers and discretionary powers of the police under the Police Act and the protection as recognized in the cases of Fajemirokun Vs. Commercial Bank of Nigeria Limited (2009) 175 LRCN 99 particularly at 109 (Supra) does not confer a blank cheque on the Respondents nor create a liability where none has been proved as in this case. Not having established any breach of Fundamental Right, the Appellant as Applicant was not entitled to succeed. His application was rightly dismissed. He had not complained of the breach of the terms of his contractual Agreement with the company represented by the 1st and 2nd Respondents so the argument that he had approached the Court with a wrong cause of action other than on breach of contract and under its procedure of writ of summon for the claims in purported breach is without basis; and did not arise in the claims made at the trial Court.

The Argument in this wise is of no moment. There is no doubt that the Appellant is on a very strong thicket and platform, in his punches against the views and stands of the learned trial Judge as appertaining the Appellant and the finding of or imputation of criminality. The Court below was therefore right when it held that the Appellant had not made out a case of breach of his fundamental right by the Respondents.

​In my view, there is nothing perverse or wrong in that decision. Part of the reasons given in the Judgment may be wrong, but an appellate Court will not interfere to set aside a correct conclusion in the Judgment. See Alhaji Ndayako & Ors Vs Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ 198 where Edozie, JSC pronounced with finality the position of the law thus:
“An appellate Court is only concerned with whether the Judgment appealed against is right or wrong, not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.”
See also Abaye Vs Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya Vs Uchendu 18 WACA 46 and recently in Appeal No.CA/AS/302C/2013 of Friday 25th June, 2021 Per Biobele Abraham Georgewill, JCA.

However, the Order 2 Rule 2 of the Fundamental Rights Enforcement Procedure Rules (2009) has not appropriately been activated as there did not exist any proven facts from the Affidavit evidence of the complainant/Appellant showing the violation or likely violation of such Fundamental Rights provided for in the constitution or African charter on Human and people’s Rights Ratification and Enforcement Act and to which Appellant is entitled; the violation has not been proved nor shown to be on-going or likely to be infringed. To fear on the basis of qui a timet, because Appellant was being called and for sorting out of their contractual relationship did not as yet constitute a cause of action to warrant the invocation of that procedure and suit.

The suit was rightly dismissed; the decision of the trial Court in SUIT No. EHC/M/109/2017 delivered on 26/03/2018 is right. I affirm same and accordingly dismiss the appeal against same herein lodged against it and award a cost of N50,000 in favour of each of the 1st and 2nd Respondents in this Appeal.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been availed in advance a draft copy of the leading judgment just delivered by my noble lord, Mohammed Ambi – Usi Danjuma, PJCA, with which I am in complete agreement with the conclusions reached therein dismissing the Appeal for lacking in merit. I hereby adopt the same as mine.

​My lords, it is the law that whilst performing its legitimate duties, no Court of law including this Court has the power to stop the Police from investigating an allegation of crime and therefore, no person against whom there is a reasonable suspicion of having committed a criminal Offence or likely to commit a criminal offence would be granted an order in any way and howsoever capable of shielding him against criminal investigation and prosecution since no citizen of this country has any right to be an outlaw under the laws of this country and to be above the law. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 549@ p. 558. See also IGP V. Ubah (2015) 11 NWLR (Pt. 1472) 405 @ p. 413; Nwezi V. COP (2000) 2 HRLR 156 @ p. 159; Badejo V. Minister of Education (1996) 8 NWLR (Pt. 461) 15 @ p. 19; Hassan V. EFCC (2014) 1 NWLR (Pt. 1389) 607 @ p. 613; Gani Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606; AG. Anambra State V. Uba (2005) 15 NWLR (Pt. 947) 44; Christlieb Plc V. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512; Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 @ p. 252.

On the evidence of the parties as in the printed record, it seems clear to me that the Appellant against whom there is an allegation of holding back the property of former employee after his employment had been terminated cannot in good conscience, consider his action has merely civil in nature for which the Police under no guise should intervene even if a complaint is made to it against the Appellant. I think the enforcement of fundamental rights should be reserved for the clearest of cases where there is legal justification for any intended or actual violation of any of the fundamental right of the Citizen. In such deserving cases that Court would not and have never shied away from intervening to ensure the observance and sanctity of the fundamental rights of the Citizen against both would be and actual violators. See Grace Jack V. University of Agriculture (2004) 11 LRCN 956. However, the facts and circumstances of this instant case does not fit the bill of threatened or actual breach of the fundamental right of the Appellant which the Court below ought to have intervened at his instance to grant the reliefs sought by him against any or all of the Respondents.

It is for the above few words of mine but for the fuller reasons given so adroitly marshalled out in the leading judgment that I too hold that appeal lacks merit and ought to be dismissed. I too hereby dismiss the appeal in its entirety. I shall abide by the consequential orders made in the lead judgment, including the order as to cost.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA in this appeal and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I also abide by all consequential order(s) in the lead judgment.

Appearances:

O. O. Ohimor, Esq. For Appellant(s)

D. E. Agbaga, Esq. – for 1st and 2nd Respondents

Onoriode W. Ewwnode, Esq. – for 3rd Respondent For Respondent(s)