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ZENITH BANK v. OKOLIE & ORS (2021)

ZENITH BANK v. OKOLIE & ORS

(2021)LCN/15853(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, July 14, 2021

CA/AS/156/2013

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

ZENITH BANK PLC APPELANT(S)

And

1. UGBECHIE CHARLES OKOLIE 2. COMMISSIONER OF POLICE, DELTA STATE POLICE COMMAND, ASABA 3. SUPOL CHIMEZIE UKACHUKWU, O/C ANTI-FRAUD, STATE CID DELTA STATE COMMAND, ASABA 4. GODSPOWER EGBE (IPO) ANTI-FRAUD UNIT, STATE CID DELTA STATE POLICE COMMAND, ASABA RESPONDENT(S)

 

RATIO:

POWER OF THE POLICE TO MAKE ARRESTS

The appellant was not under any mandate of the law to invite the 1st respondent. It had a choice whether to report to the Police the crime allegedly committed by Emmanuel Ifemeh and/or approach the 1st respondent.
The reference to the deposition of the 4th respondent in his counter-affidavit in a “sister” case has no foundation since the said counter-affidavit is not a part of the record of appeal in this appeal. The Court cannot go outside the record of appeal to decide any issue before it.
In the case of ONAH v. OKENWA (2010) 9 NWLR (PT. 1194) 512, 537 it was held that the question of instigation of the police has to be established by an applicant to earn the reliefs sought and that it requires facts to support the allegation. PER JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): At the High Court of Delta State, Uku Judicial Division (the lower Court), the 1st respondent was the applicant in an application for the enforcement of his fundamental rights brought against the 2nd, 3rd, and 4th respondents and the appellant as the 1st, 2nd, 3rd and 5th respondents as well as another person (4th respondent) who is not a party to this appeal. The 1st respondent claimed the following reliefs against them:
A. A DECLARATION that the arrest of the Applicant on the 3rd day of August, 2009 at his office College of Education, Agbor Delta State by the 2nd and 3rd Respondents who are agents or servants of the 1st Respondent at the instance of the 4th and 5th Respondent is illegal, unlawful and unconstitutional in that the arrest violated the fundamental rights of the applicant as guaranteed by Section 34, S.35, & 41 of the Constitution of the Federal Republic of Nigeria, 1999.
​B. A DECLARATION that the detention of the Applicant at the State CID, Delta State Police Command, Asaba by the 2nd and 3rd Respondents who are the agents or servants of the 1st Respondent at the instance of 4th and 5th Respondent on the 3rd day of August, 2009 is illegal, unlawful and unconstitutional in that it violated the Applicant’s fundamental and constitutional rights as guaranteed by Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999.
C. A DECLARATION that the threat to further arrest and detain the Applicant is illegal, unlawful and unconstitutional in that it violates the Applicant’s constitutional rights under Section 46 of the Constitution of the Federal Republic of Nigeria, 1999.
D. AN ORDER OF PERPRTUAL INJUNCTION restraining the Respondents whether by themselves their officers, servants, agents, privies, security operatives otherwise howsoever from further arresting, detaining or in any other manner violating or continuing in further violation of the fundamental rights of the Applicant.
E. N15,000,000 (Fifteen million Naira) damages jointly and severally against the Respondents to the Applicant as aggravated damages for his unlawful arrest and detention.”

​The application was supported by a statement pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 and a verifying affidavit as well as a reply to a counter-affidavit, an address, a reply on points of law and a further affidavit.

The 2nd to 4th respondents filed, inter alia, a counter-affidavit and a written address while the appellant filed a counter-affidavit and a written address.

After taking addresses from counsel and on 10/12/2010, the lower Court found in favour of the 1st respondent and granted the reliefs sought. In respect of relief E, the lower Court awarded the sum of N500,000.00 as exemplary damages jointly and severally against the appellant, the 3rd respondent and 4th respondent. The 2nd respondent was ordered to write an apology to the 1st respondent.

Aggrieved by the decision against it, the appellant appealed to this Court by the means of a notice of appeal filed on 17/12/2010 which incorporates two grounds of appeal. The notice was subsequently amended by the leave of this Court. The amended notice of appeal contains four grounds of appeal.

​The facts of the case leading to this appeal may be summarized as follows. The 1st respondent at all times material to this case, was of the Department of Geography, College of Education, Agbor, Ika South Local Government Area of Delta State. One Emmanuel Ifemeh was offered a job by the appellant. The 1st respondent signed a guarantor’s form for him in respect of the employment. In the course of his employment, he (Emmanuel) was alleged to have pilfered the sum of N500,000.00. The appellant reported the matter to the police. The 1st respondent contended that the police arrested and detained him on 3/8/2009.

At the hearing of the appeal on 28/6/2021, Mrs. I. C. Okpara for the appellant relied on and adopted appellant’s brief of argument that was filed on 18/1/2017 in urging the Court to allow the appeal and set aside the judgment of the lower Court.

G.O. Okoro, Esq., for the 1st respondent adopted and relied on the brief filed on behalf of the 1st respondent in urging the Court to dismiss the appeal and affirm the judgment of the lower Court.

The 2nd to 4th respondents were absent, and unrepresented in Court though they had been served with hearing notice.

​In the appellant’s brief of argument, the following issues have been formulated for the determination of the appeal:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“1. Whether the trial Judge was right in law in holding the Appellant liable to the 1st Respondent for which the Judge awarded the sum of N500,000.00 (Five hundred thousand Naira) only, jointly and severally against the appellant and 2nd-4th respondents for reporting the crime committed by one Ifemeh Emmanuel.
2. Whether the affidavit evidence as contained in the Respondent’s affidavit in support of his application and the counter-affidavit filed thereto established and/or supported the award/decision made by the trial Judge in respect of reliefs A, B, C and D of the 1st Respondent’s “Motion on Notice” dated 29th day of October, 2009.
3. Whether the trial Judge was right in imputing the alleged wrong doing of the 2nd-4th Respondents on the Appellant as if they are agents of the Appellant.
4. Whether the trial Judge was right in making out a case of malice for the 1st Respondent which was never canvassed, or raised by the 1st Respondent at the trial which entitled the 1st Respondent to damages and if so
5. Whether the award by the Judge of the sum of N500,000.00 (Five hundred thousand Naira) only as exemplary damages is not excessive.”

​1st respondent’s counsel in his brief of argument formulated three issues for the determination of the appeal. The issues are a reproduction of the first three issues of the appellant. The 2nd-4th respondents did not file a brief of argument.

I will pause at this stage to take a second look at some of the grounds of appeal in the amended notice of appeal and some of the issues formulated by appellant’s counsel. Ground (ii) of the amended notice of appeal reads:
“The decision of the learned trial Judge is unreasonable and cannot be supported having regards to the evidence before the Court.”
The matter that led to this appeal was a fundamental rights matter and as such a civil matter. The standard of proof in such a matter is proof on a balance of probabilities and not proof beyond reasonable doubt. It follows therefore that the omnibus ground in an appeal arising from such a matter ought to be couched to reflect that standard of proof, namely, that judgment is against the weight of evidence. The omnibus ground of appeal as couched in this appeal is fit for appeals from criminal cases only. See SULU-GAMBARI v. BUKOLA (2004) 1 NWLR (PT. 853)122. In the interest of justice, I shall overlook the defect as was done in ALI v. OBANDE (1999) 9 NWLR (PT. 620) 563, 571 and EBENEHI v. STATE (2009) 170 LRCN 91, 105.

The amended notice of appeal bears four grounds of appeal while the appellant’s brief of argument bears five issues for the determination of the appeal. This is obviously wrong. There cannot be more issues for the determination of an appeal than grounds of appeal. Where that is the case the Court will identify the proper issues and jettison the issue that is out of place. See UNITED PARCEL SERVICE LIMITED v. UFOT (2006) 2 NWLR (PT. 963) 1 AND EKE v. OGBONDA (2007) 144 LRCN 391.

The offending issue in this instance is issue 5. This is because, there is no ground of appeal which attacks the quantum of damages awarded by the lower Court. An issue for determination must spring from a ground of appeal and an issue which does not arise from any ground of appeal is not only incompetent but also completely valueless and must be ignored or struck out by the Court. See BOGOBIRI v. STATE (2017) 18 NWLR (PT. 1597) 247. I accordingly strike out issue 5 in the appellant’s brief of argument.

Appellant’s issue 4 is not argued in appellant’s brief of argument and it has been abandoned and I therefore strike out the same.

We are left with three issues for the determination of the appeal. The two sets of issues distilled by the counsel for the appellant and the 1st respondent are the same and I shall be guided by them in the determination of the appeal. I intend to consider the three issues together since they all revolve around proof of 1st respondent’s case against the appellant.

In arguing his issue 1, appellant’s counsel contended that pilfering (stealing) is a crime and that the police are mandated to receive complaints in respect of alleged crime. He referred to and relied on FAJEMIROKUN v. COMMERCIAL BANK NIG. LIMITED (2009) 175 LRCN 99. It was his further contention that the issue of malice was not raised by the 1st respondent and so the judgment (based on it) should be set aside.

​In respect of issue 2, counsel submitted that the findings of facts made by the lower Court were not based on credible evidence. He further submitted that there was conflict of affidavit evidence and that the lower Court ought to have invited oral evidence to resolve the conflict. He contended that from the letter of invitation by the police to the 1st respondent, he (1st respondent) was never arrested. He observed that the lower Court based its evaluation of evidence on facts in support of the motion ex-parte rather than on the affidavit in support of the motion. He posited that the evidence of the person who took the 1st respondent on bail was vital for the proof of his case. Counsel’s argument in respect of issue 3 is a repeat of his argument in respect of issue 2. I shall therefore not weary myself in restating the same.

1st respondent’s counsel in arguing issue 1, submitted that the police have a duty to fish-out the person who allegedly stole the money. It was his further submission that the appellant generated elaborately the issue of malice when it raised an issue of law on it in its address and that the 1st respondent answered it in his reply on points of law.

​In respect of issue 2, counsel posited that where conflict in affidavit evidence is not material, the Court will not call oral evidence. It was his contention that there was no conflict of affidavit evidence to warrant the calling of oral evidence. He further posited that the fact that the 1st respondent made a statement under caution shows that he was arrested. He stated that the lower Court based its finding on facts in support of the motion. Counsel referred to a deposition in a counter-affidavit of the 4th respondent in a case different from the instance matter which he described as a sister case.

As regards issue 3, counsel argued that the appellant through its agent set the law in motion against the 1st respondent and was actively instrumental in the arrest and detention of him.

RESOLUTION.
The contention of appellant’s counsel that there was conflict of affidavit evidence and that the lower Court ought to have called for oral evidence to resolve the conflict does not fall within the scope of the issues for the determination of the appeal. Any point of argument that does not fall within the scope of an issue for determination goes to no issue and must be discountenanced. I shall therefore discountenance the said point. The same consideration applies to the submission of appellant’s counsel that the lower Court based its evaluation of evidence on 1st respondent’s facts in support of motion ex-parte rather on his affidavit in support of the motion.

The lower Court found as a fact that the 1st respondent was arrested and detained by the police. See page 103 of the record of appeal.
I have scanned the grounds of appeal in the amended notice of appeal. There is no single ground of appeal which attacks the finding above. The result is that it remains binding and conclusive between the parties. The appellant cannot seek to have it set aside through the back door. See HERITAGE BANK LTD v. BENTWORTH FINANCE (NIG.) LTD (2018) 9 NWLR (PT. 1625) 429 and APGA v. ANYANWU (2014) 7 NWLR (PT. 1407) 541.

​It is common ground that the appellant made a report to the police about the alleged pilfering (theft) of the sum of N500,000.00 by its employee, Mr. Emmanuel Ifemeh. The said employee was guaranteed by the 1st respondent. The trial Court in effect found that the 1st respondent was arrested and detained by the 2nd and 3rd respondents. The law is that once an arrest is admitted or established, the burden falls on the party that effected the arrest to justify the same. See SANDY v. HOTOGUA (1952) 4 WACA 18, IYERE v. DURU (1986) 10–11 SC 19, 46 and ONOBRUCHERE v. ESEGINE (1986) 1 NWLR (PT. 19) 799, 805.

Now, the appellant, its agents or any of its employees did not effect the arrest and detention of the 1st respondent; rather, it made a report of the alleged crime to the police. The law in this regard was stated by Ogebe, JSC, in FAJEMIROKUN v. COMMERCIAL BANK (NIG.) LIMITED (2009) LPELR-123 (SC) page 4 as follows:
“Generally, it is the duty of citizens of the 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 citizen cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”

In OKONKWO v. OGBOGU (1996) LPELR-2486 (SC) PAGE 23, OGWUEGBU, JSC, expounded the law in the following words:
“To succeed in action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

See also GBAJOR v. OGUNBUREGUI (1961) 1 ALL NLR (PT. 4) 853, ISHENO v. JULIUS BERGER (NIG.) PLC (2008) 6 NWLR (PT. 1084) 582 and UAC (NIG.) PLC v. SOBODU (2007) 6 NWLR (PT. 1030) 368.

The burden is on the party who asserts that his opponent was actively instrumental in setting the law in motion against him to prove the assertion. In FIRST BANK (NIG.) PLC v. ATTORNEY-GENERAL OF THE FEDERATION (2014) 12 NWLR (PT. 1422) 470, 491, AKOMOLAFE-WILSON, JCA, put the law thus:
“The onus rests squarely on the party alleging false imprisonment to show that the defendant, that is the party who lodged the complaint, did more than merely making a report to the authorities, but that he took further steps and actively participated and/or directed and influenced the arrest and detention of the plaintiff.”
The lower Court found the appellant liable for the arrest and detention of the 1st respondent. On what basis did the lower Court reach its conclusion? To answer this question, I will take the liberty of setting out the reasoning of the lower Court that resulted in the conclusion hereunder:
“On issue one it is based on a complaint of conspiracy and stealing against Emmanuel Ifemeh and one Azuka C. Okah. The appellant was not mentioned among the conspirators. He is a guarantor to Emmanuel Ifemeh. He could have been invited by the 4th and 5th respondents and informed of the action of Emmanuel and then they resolve in an amicable way as guaranteeing someone is a civil matter and if he is not able to produce the said Emmanuel he could have been asked in writing to pay the money allegedly stolen or they sue him to Court to recover the said amount of N500,000.00… no complaint was made against the appellant other than being a guarantor to Emmanuel Ifemeh.” see page 103 of the record of appeal.
​The lower Court indeed held that the report of conspiracy and stealing was not made against the 1st respondent. Why then should the appellant be liable for the act of the Police in proceeding to arrest and detain the 1st respondent? The fact that the appellant did not invite the 1st respondent and inform him of the action of Emmanuel Ifemeh is not enough to attach liability to the appellant for the action of the Police. The appellant was not under any mandate of the law to invite the 1st respondent. It had a choice whether to report to the Police the crime allegedly committed by Emmanuel Ifemeh and/or approach the 1st respondent.
The reference to the deposition of the 4th respondent in his counter-affidavit in a “sister” case has no foundation since the said counter-affidavit is not a part of the record of appeal in this appeal. The Court cannot go outside the record of appeal to decide any issue before it.
In the case of ONAH v. OKENWA (2010) 9 NWLR (PT. 1194) 512, 537 it was held that the question of instigation of the police has to be established by an applicant to earn the reliefs sought and that it requires facts to support the allegation. In this instance, the 1st respondent failed to establish that the appellant set the law in motion leading to his arrest. The lower Court, with due respect, merely engaged in fanciful conjecture and speculation which Courts are not licensed to engage in. The implied conclusion of the lower Court that the appellant set the law in motion for the arrest and detention of the 1st respondent has no support in the facts of the case and so it is perverse. I accordingly set it aside.

In the light of what I have said thus far, I resolve the three issues for determination in favour of the appellant. I reach the inexorable conclusion that the appeal has merit and it is allowed. The decision of the lower Court delivered on 10/12/2010 in suit No. O/M/34/2009 against the appellant is hereby set aside. In its place, I dismiss the case of the 1st respondent against the appellant.
The parties shall bear their costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the opportunity of reading in draft, before now, the lead judgment anchored by my learned brother Joseph Eyo Ekanem, JCA. In this appeal; and I endorse wholly the reasoning and the conclusion arrived thereat in allowing this appeal.

​The preliminary issues of the multiplicity of issues and the founding of an appeal on a ground that did not germinate from the rationes decidendi of a judgment let alone from the Record of the Appeal is well reasoned. It cannot be glossed over as an academic question with no bearing on the appeal as lodged, as it is the perpetuation of this pattern that contributes to the elongation of trial time without valid cause and task the judicial system and litigants, unnecessarily. On the merit of the appeal, it is obvious that the trial Court had found that the appellant herein was arrested and detained. It was a finding based on the evidence led. This finding not having been appealed against nor set aside is binding between the parties.
See HERITAGE BANK LTD. V. BENT WORTH FINANCE LTD. (2018) 9 NWLR (PT. 1625) 429 and UPGA VS. ANYAWU (2014) 7 NWLR (PT. 1407) 541.
See also our decision in CA/B/216/2016 – MR. AKIAH HUMPHREY OKOLIE & 2 ORS. VS. INEC delivered on 22nd November, 2019.

It was not disputed; indeed settled that the arrest and detention of the 1st Respondent was effected by the 2nd and 3rd Respondents. It is these Respondents that had the duty of justifying the arrest and detention.
It is not the burden of the Appellant nor its agents who merely performed their civic duty and obligation of ensuring that crimes are reported to the Law Enforcement Agencies, to be answerable for whatever infraction of the rights to liberty or dignity of the 1st Respondent; so long as there was no malice or unreasonableness in their report.
The host of apt cases already referred to by my Lord, Ekanem, JCA, makes the replication of same or further cases in citation, of no utilitarian value.
Suffice it to say, in total agreement with my Lord Ekanem, JCA, that there was in fact and in law, no evidence of any instigation, connivance or definitive and particularised report against the 1st Respondent of any crime and with a malicious intent that led to the arrest, prosecution or detention of the 1st Respondent.
There was, in consequence, no basis for the liability adjudged against the Appellant herein.

I, therefore, also allow the appeal and set aside the decision of the lower Court delivered on 10th December, 2020 in Suit No. O/M/34/2009 and dismiss the case of the 1st Respondent against the appellant. The damages ordered to be paid by the appellant shall, if already paid, be refunded.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA in this appeal. I agree with the reasoning and conclusion of my learned brother and would only add a few words for emphasis.

​It is a principle of law that a citizen has the duty to report commission of crime to the police for investigation and what happen after is entirely the responsibility of the police, see; CHUKWU & ANOR v UDOH & ORS (2019) LPELR – 47008 (CA), this Court held thus;
“…the learned counsel to the 1st Respondent was right to have suggested that it is the duty of citizen of this Country to report cases of commission of crime to the police for their investigation and what happened after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty. Ogebe JSC, in FAJEMIROKUN V COMMERICAL BANK NIG. LTD (2009) ALL FWLR (PT. 487) 1. And that, when a citizen reports a matter to the police or any law enforcement agency for the exercise of their discretion including the discretion to investigate, neither the police nor the citizen would be liable for the actions of the police. See BASSEY V AFIA (2010) ALL FWLR (PT. 531) 1480. This is because, a complainant who did not induce the Police to act in a particular manner cannot be held liable for the actions of the police…”
per OWOADE, JCA (PP. 31- 2, PARAS. B – A).
See also; WILLIAM & ANOR v USEN & ORS (2018) LPELR-46163 (CA); ABUGO v AROMUAINO (2018) LPELR-46142 (CA).
The 1st Respondent therefore had a duty/ burden to show that the Appellant report/complaint to the 2nd—4th Respondents was done malafide; this, the 1st Respondent failed to do.
The lower Court in reaching its decision based it on a personal conviction that the Appellant set the wheels in motion for the arrest of the 1st Respondent and not on the evidence before the Court, in so doing, imputed the issue of malice, which was not raised by the parties neither where there any evidence to that effect.
There is no evidence as gleaned from the records before this Court that the Appellant instigated the police to invite the 1st Respondent and demand a repayment of the stolen money.

Flowing from the above and the succinct reasoning(s) in the lead judgment, I too hold that the appeal has merit and is allowed.

​I abide by all other consequential orders in the lead judgment.

Appearances:

MRS. I.C. OKPARA holding the brief of G. O. GIWA-AMU, ESQ. For Appellant(s)

G.O. OKORO, ESQ. – for 1st Respondent For Respondent(s)