(IPO OKIGWE POLICE STATION)
(INVESTIGATING POLICE OFFICER DI OF CID NIGERIA POLICE)
(CID NIGERIA POLICE, IMO STATE HEADQUARTERS, OWERRI)
5.COMMISSIONER OF POLICE OF IMO STATE
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Imo State, in suit No. HOW/401/2014, delivered on 23rd June, 2014 by Hon. Justice B.B. Ukoha, wherein the trial Court granted the reliefs sought by the Applicants (Appellants herein), except relief 5, which sought N10,000.000.00 (Ten Million Naira) as damages for unlawful detention and torture. The appeal is therefore against only that part of the decision of the Lower Court, refusing to grant Applicants relief, No. five (5).
The claims at the Lower Court were by originating motion, for enforcement of Fundamental Rights, and the Reliefs were:
"(1) A declaration that the arrest and detention of the 1st - 4th Applicants by the Respondents from 29th May, 2014 till date, for a civil claim made by the 1st Respondent against the Applicants, was done without lawful justification and contravenes Section 35 of the Constitution of the Federal Republic of Nigeria 1999, as amended and Article 6 of the African Charter on Human and People s Rights (Ratification and Enforcement Act) (sic).
(2) An order for immediate release of 1st - 4th Applicants who have been in Prison detention from 29th May, 2014 till date for it contravenes Section 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Article 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
(3) A declaration that the decision taken by the Respondents against the Applicants that Applicant pay to the 1st Respondent a total of N1,817,605.00 while in the Police Cell without giving the 1st - 4th Applicants any opportunity to defend themselves is unconstitutional and contravenes Section 36 (1) of Nigeria 1999 as amended and Article 7(1) (b) and 7 (2) of the African Charter on Human and Peoples Rights (and (sic) Ratification and Enforcement) Act.
(4) A declaration that the agreement extracted from the 1st - 4th Applicants by the Respondents to pay the sum of N1,817,605.00 (out of which the 1st - 4th Applicants have paid N189,000.00 to 1st Respondent while under Police detention) was obtained by torture, cruel, in human and degrading treatment and contravenes Article 5 of the African Charter on Human and
Peoples Right (Ratification and Enforcement (sic).
(5) (5) The sum of N10,000,000.00 (Ten Million Naira) being damages suffered by the 1st - 4th Applicants for unlawful detention and torture of their persons from 29th May, 2014 till date.
(6) A perpetual injunction restraining the Respondents from further arresting or detaining the Applicants for any matter connected with the fact of these proceedings, unless upon fresh facts which disclosed reasonable ground of commission of a crime know to law .
See pages 5 and 6 of the Record of Appeal.
The grounds for the reliefs sought were disclosed on pages 6 - 7 of the Records of Appeal and the same were repeated in the Applicants affidavit, in support of the application. The summary of facts, in a nutshell, shows that the 1st Respondent reported a case of conspiracy to commit fraud, fraud and stealing of the sum of (N2,300,000.00) against the Applicants to the Police. Applicants were the Promoters and leaders of Ugiri Progressive Union Weekly Contribution Okigwe Branch. The Okigwe Divisional Police Unit, of which the 2nd Respondent was the investigating Police Officer (IPO) effected
the arrest of the Applicants on 10/2/14, took statement from them, claiming that Applicant s admitted criminal implication and that they pleaded that criminal charge be suspended, gave them one week to settle with 1st Respondent, by paying through the Police the said debt. They invited the Applicants back to the Police station in May, 2014, claiming they (Applicants) defaulted and detained them; forced them to sign agreement to settle the 1st Respondent s claim and to made a down payment of N189,000.00, through the Police to the 1st Respondent. The Police claimed Applicants made the payments and undertaking, voluntarily, while they (Police) suspended arraignment of the Applicants and gave him time to complete the payment to the 1st Respondent, and they (Police) therefore released Applicants on bail, to go and comply with the undertaking.
The trial Courts Ruling on 23/6/14 in the case was short. It said:
I have seen the applicants application for an Order of enforcement of this fundamental rights. I have equally applicants Counsel s address in support of same and the relief being sought for by the Applicants. The Respondents who were served with the said application have refused to file any counter. It is trite that silence means admission. It is further settled that, where a party intends to challenge any averment in an affidavit evidence, that averment must be specifically denied and failure to do so means that the averments are true, and the Court is bound to act on same. In the light of the unchallenged and uncontroverted averments by the applicants, the reliefs of the applicants, except relief 5, are hereby granted (see page 42 of the Records of Appeal)."
That is the decision Appellants appealed against, that is, the refusal to award damages to the Applicant. Appellants filed Notice of Appeal on 25/8/14, as per pages 43 - 46 of the Records of Appeal and disclosed two (2) grounds of appeal.
They filed their Brief of argument on 18/11/2014 and distilled two issues for the determination of the appeal, as follows:
"(1) Whether the Court below was not wrong to have refused to grant the Appellant s relief NO.15 of their claim in Suit No. HOW/401/2014, hearing held their arrest and detention by the Respondents was unlawful? (Ground one)
(2) Whether the Court below did not exercise its discretion judicially and judiciously when it refused to grant the Appellants damages for unlawful detention and torture of their persons from 29th May, 2014 till the day of judgment on the 23rd day of June, 2014? (Ground two)."
The 1st Respondent filed his Brief on 11/6/2015 and distill four (4) issues for determination, namely:
"(1) Whether the 1st Respondent was given fair hearing in the light of the above facts of the case.
(2) Whether the 1st Respondent is in breach at (sic) any right of the Appellants or the Applicants at the Court below.
(3) Whether the hands of the Appellants or the Applicants at the Court below are clean before the Court of equity
(4) Whether the Lower Court was right in granting any relief at all to the Appellants."
I should state, straightaway, that the 1st Respondent committed a fatal error of proliferation of issues, by, not only raising too many issues, but also formulating issues for determination of the appeal, outside the grounds of appeal, raised by the Appellants; and he (Respondent) had not filed any cross appeal or Respondents '
Notice! As can be seen, none of the four issues, donated by the 1st Respondent, related to any of the two grounds of the appeal by the Appellants, which (without their particulars) were:
"(1) The learned trial judge erred in law when he refused to grant the Appellants relief No.5 of their claim in suit No. HOW/401/2014, having held that the arrest and detention of the Appellants by the Respondents was unlawful.
(2) The learned trial judge was bound to act on the admitted facts of the Appellants affidavit for enforcement of the fundamental rights."
The law is trite, that issue for determination of appeal, has to relate to and flow from the ground(s) of appeal, to be competent, and that a party cannot formulate more issues than the number of grounds of appeal, raised to challenge the decision of the trial Court. It is also trite law, that a ground of appeal cannot be split to generate two or more issues for determination, whereas two or more grounds of appeal can combine to give birth to an issue for determination of appeal. See Ossai Vs FRN (2013) 13 WRN 87; SPDCN Ltd Vs Registrar Business Premises, Abia State (2015) 8 CAR 443 at 448;
(2016)2 NWLR (pt.1496) 326; Igbokwe Vs Edom & Ors (2015) 8 CAR 224 at 240.
In the case of Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR - 25968 (CA) this Court held that:
the Respondent has no room to formulate issue(s) for determination of appeal, outside the grounds of appeal raised by the Appellant, except he had cross appealed or raised a Respondents Notice on the issue, raised." See Agbarakwe Vs University Press Plc (2015) 6 CAR 188 at 201; Ojegbe Vs Omatore (1999)6 NWLR (Pt.608) 591; Bawa Vs Aliyu (2015)3 NWLR (pt.1447) 523.
In the circumstances, the 1st Respondent s 4 issues for determination and the arguments there-unders are incompetent and are hereby struck out.
This Appeal shall, therefore, be determined on the two issues, distilled by the Appellants, which on a close look, appear to be on the same complaint. I shall therefore, consider the appeal on the meshed issue, as rephrased below:
"Whether the trial judge was correct to refuse to award damages to the Appellants after holding that their fundamental rights had been violated by their arrest and detention by the Respondents, from 29th May to 23rd June, 2014."
Appellants Counsel, J.K. Ukanwa Esq., had argued that the fact that the arrest and detention of the Appellants were adjudged unlawful, gave them right to compensation and apology. He relied on the case of Isenalumhe Vs Joyce Amadin (2001) 1 CHR 458 at 467; Okonkwo Vs Ogbogu & Anr (1996) 5 NWLR (pt.449) 420, and on Section 35 (6) of the 1999 Constitution of Federal Republic of Nigeria. Counsel also relied on the Supreme Court case of Jim-jaj Vs C.O.P. Rivers State (2013)22 WRN 39 at 56, where it was held:
"...once the appellant proved the violation of his fundamental right by Respondents damages, in form of compensation and even apology, should have followed."
Counsel said that, since the trial Court had held for the Appellants, that the arrest and detention of the 1st - 4th Applicants by the Respondents from 29th May, 2014 till date for a civil claim made by the 1st Respondent against the Appellants was done without lawful justification and contravenes Section 35 of the Constitution of the Federal Republic of Nigeria..." , damages for that violation should have followed, naturally.
He also relied on Ndukwem Chiziri Nice Vs A.G. Federation & Anor (2007) CHR 218; Adigun Vs A.G. Oyo State (1989) NWLR (pt.53) 678 at 684.
He urged us to invoke Section 15 of the Court of Appeal Act, 2004, and award damages which the Lower Court should have awarded to the Appellants. He relied on Oyeyemi Vs Irewole L.G. (1993)1 NWLR (pt.270) 462; Bamidele Vs Comm For Local Gov. (1994)2 NWLR (pt.328) 568; UTC (ing) Plc Vs Philips (2012)6 NWLR (pt.1205)136.
RESOLUTION OF ISSUE
I think the law is trite and the case law on this issue is replete, that once the Court has found that the fundamental rights of applicant has been violated by the act(s) or conduct of a respondent, the affected person (applicant) is entitled to compensation, in the circumstances. That too was/is the intent of the law in Section 35 (6) of the 1999 Constitution, as amended, which says:
"Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person
In the case of Jim-jaja Vs C.O.P. Rivers State (2013) 22 WRN 39 at 56, the Supreme Court held:
"A community reading of Sections 35 (6) and 46 (2) of the Constitution (supra) will give effect to the principle of Ubi Jus ibi remedium. By Sections 35 and 46 of the Constitution, fundamental rights matter are placed on a higher pedestal than ordinary civil matters, in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved violation of his fundamental right by the Respondents, damages, in form of compensation and even apology, should have followed."
See also the case of Ozide & Ors. Vs Ewuzie & Ors. (2015) LPELR - 24482 CA, where it was held that:
"The law is trite, that damages in compensation, legally and naturally follow every act of violation of a citizen's fundamental right." See Section 35 (6) of the 1999 Constitution, as amended OSIL Ltd Vs Balogun & Ors. (2013) ALL FWLR (pt.677) 653.
In the case of Gusau & Ors Vs Umezuruike (2012) LPELR - 8000 (CA), this Court held:
"... that detention, no matter how short, can lie a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful in the first place; that is, if there is no legal foundation to base the arrest and/or detention of the applicant." See Okonkwo Vs Ogbogu (1996)5 NWLR (PT.499)420; Isenalumhe Vs Joyce Amadin (2001)CHR 458; Nemi Vs A.G. Lagos State (1996)6 NWLR (pt..452).
?Also in the case of Ejiofor Vs Okeke (2000)7 NWLR (pt.665), it was held:
Where there is an evidence of arrest and detention which were done or instigated by the Respondent, in an action for enforcement of fundamental rights application, it is for the respondent to show that the arrest and detention were lawful (See Agbakoba Vs SSS (1994)6 NWLR (pt.351) 45.
And in the case of Agu Vs Okpoko (2009) LPELR - my Lord, Nwodo JCA (of blessed memory) said:
the law is trite, that the law presumes that damages flow, naturally, from the injury suffered by the victimised as a result of infraction of its (sic) fundamental rights, even if the Applicant has not sought any damages the law presumes that damages, flow naturally from the injury suffered and should be awarded
I cannot therefore understand why the learned trial Court refused to award compensation to the Applicants in this case after having held that their fundamental rights had been violated by their unlawful arrest and detention (for over 3 weeks) by the Respondents, over a matter or complaint by the 1st Respondent, which the Court adjudged was purely civil in nature. Even if the trial Court was not inclined to grant the N10,000.000.00 (Ten Million Naira) claimed by the Applicants, it had discretion to determine whatever lesser amount to give as compensation, in line with Section 35 (6) of the Constitution. Certainly, the trial Court, in my opinion, did not have discretion to refuse to award any damage, in the circumstance of this case, especially as Applicants had asked and pressed for damages.
We have stated, several times, that a party that employs the Police or any enforcement agency, to violate the fundamental rights of a citizen, should be ready to face the consequences, either alone or with the misguided Agency. See the case of Ogbonna Vs Ogbonna (2014) LPELR - 22308 CA; (2014) 23 WRN 48, where we held:
" ...the police have no business helping parties to settle or recover debts. We also deprecated the resort by aggrieved creditors, to the Police to arrest their debtors using one guise of criminal wrong doing or another. See Ibiyeye vs Gold (2013) ALL FWLR (Pt.659)1074; OSIL Ltd vs. Balogun (2012) 7 WRN 143 at 173 - 174. Of course, a man who procures the Police to do some illicit duties for him should be ready to face the legal consequences of that illegality, and the law is well settled on this. See Udeagha vs Nwogwugwu (2013) LPELR - Ejiofor vs Okeke (2000) 7 NWLR (Pt.665) 363; Agbakoba vs SSS (1994) 6 NWLR (Pt.351) 475."
May be I should also add that the Public Officer of a law enforcement agency that allows himself to be used by any member of the public, to commit illegality that results in damages and liability to the Agency or government, should be made to pay such costs or damages, personally, either in part or in whole, if this can serve to warn such officer to act within the rules and scope of his office. The Police in particular, should consider this, to stem the tide of unlawful arrests and detentions, which have resulted in huge financial losses to the Force and the Nation.
I hold that this appeal is meritorious, as I resolve the issue for Appellant and allow the appeal. I set aside that aspect of the trial Court' s decision, refusing to award damages for the Appellants. Acting under Section 15 of the Court of Appeal Act, 2004, I think Appellants were entitled to award of damages for the injuries they suffered, I award them N1,000,000.00,(One Million Naira) only, as compensation for the brutal violation of their Fundamental Rights, to be paid by the Respondents, jointly and severally.
The Respondents shall also pay the cost of this appeal, assessed at Fifty Thousand Naira (N50,000.00) only.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the lead judgment of my Learned brother I. G. Mbaba, JCA, and I am in total agreement with the succinct and indubitable reasons and conclusions that informed his allowing this Appeal.
The authorities of Adigun v. A.G. Oyo State (1989) NWLR (Pt.53) 678 at 648, Ndukwem Chiziri Nice v. A.G. Federation & Anor (2007) CHR 218, which were followed subsequently by the Supreme Court and indeed this Court in Jim-Jaja v. Cop Rivers State (2013) 22 WRN 39 at 56, Osil Ltd v. Balogun & Ors (2013) ALL FWLR (Pt.677) 653; Ozide & Ors v. Ewuzie & Ors (2015 LPELR - (CA) and Gusua & Ors v. Umezuruike (2012) LPELR -800 (CA) among others; are all on point and had long settled the position of the law as entrenched in Section 35(6) and 46(2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) that where there is any proven violation of the fundamental right of a citizen of the nation as in the instant case, the learned Trial Judge had no alternative than to award the Appellant damages as compensation for such breach.
Where however, the Court below failed so to do, this Court shall invoke Section 15 of the Court of Appeal Act, 2004 and step into the shoes of the Trial Court to do the needful by awarding the victim of such infraction like the present Appellants the appropriate damages as my Lord herein has rightly done.
In the circumstance, I also allow this Appeal for being meritorious and endorse the sum of N1,000,000.00 (One Million Naira) only as damages awarded in favour of Appellants against the Respondent jointly and severally. I also abide by the (N50,000.00) costs imposed on the Respondents in favour of the Appellant.
FREDERICK OZIAKPONO OHO, J.C.A.: I have had the privilege of reading the draft judgment of my learned brother ITA G. MBABA, JCA just delivered and I agree with his reasoning and conclusions therein. I agree that the Appeal is meritorious and therefore succeeds. I too will set aside the aspects of the Lower Court's decision and abide by the consequential orders of my Lord. The apex Courts and as well as this have always condemned the excess use of police power and other law enforcement officials charged with the duty of maintaining order in the society. In the case of SUNDAY JIMOH vs. ATTN-GEN. OF THE FED. & 2 ORS. (1998) HRLRA 513 at 515, the Supreme Court was of the view that;
"Those who feel called upon to deprive other person of their personal liberty in the discharge of what they consider their duty should strictly observe the terms and rule of law." (Underline mine for emphasis).
It was the need to curtail the excesses of the men and officers of law enforcement agencies that made it necessary to strengthen the Fundamental Human Rights (Enforcement Procedure) Rules in Nigeria, not long ago. Generally, the Court
will not hesitate to declare any wrongful action of the police null and void if it is discovered that there had been an improper use of police power under the guise of the so-called exercise of the power of investigating and prevention of crimes. See the case of JOHN FALADE vs. ATTN-GEN. LAGOS STATE (1980) 2 NCLR 771, where it was held that the Court is always prepared and will be quick to give relief against any improper use of power or any abuse of power by any member of the Executive, the Police or any other person. See also the case of CHIEF PAT ENWERE vs. C.O.P. (1993) 6 NWLR (PT.299) 333 on the subject.
To make matters rather worse, the invitation of the police to intervene in a matter that is purely civil in nature cannot be justified under any circumstances. The duties of the Police as provided under Section 4 of the POLICE ACT, Cap 359 LFN 1990 does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties. See the case of MCLARENCE vs. JENNINGS (2003) 3 NWLR (PT.808) 470. See also the case of AFRIBANK NIG. PLC vs. ONYIMA (2004) 2 NWLR (Pt.858) 654.
To mere fact that the police are usually invited into just about every matter under the sun is no justification to get the police involved in the resolution of civil disputes. The police has recently held itself out as a responsible law enforcement organization should be seen to live up to its billings in quickly to turning down matters not statutorily assigned to it so as to avoid embarrassments of matters of this nature. There are usually dire consequences at every turn of event, in the event of things of this nature happening. The position is and has always been that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police. See the case of NKPA vs. NKUME (2001) 6 NWLR (Pt.710) 543 and a host of other decided cases on the subject.
J. K. Ukanwa, Esq. For Appellant
Okwudiri Obigwe, Esq. for 1st Respondent
2nd to 5th Respondents
Unrepresented For Respondent