(2016) LPELR-41249(CA)

Transcription

1 UKATA & ORS v. AKPANOWO & ORS CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON WEDNESDAY, 23RD MARCH, 2016 Suit No: CA/C/195/2013 CHIOMA EGONDU NWOSU-IHEME ONYEKACHI AJA OTISI PAUL OBI ELECHI 1. ETIM HARRY UKATA 2. ISAAC HARRY UKATA 3. OKON HARRY UKATA 4. ASP. JAMES HARRY UKATA Before Their Lordships: Between And 1. PASTOR IME DICK AKPANOWO 2. MARK AKPAN AKPANOWO 3. CHIEF MONDAY AKPAN AKPANOWO 4. THE COMMISSIONER OF POLICE, AKWA IBOM STATE 5. THE AREA COMMANDER, AREA POLICE COMMAND HEADQUARTERS, IKOT EKPENE 6. MR. FEBEMA FELIX (The DPO in-charge of Ukanafun Divisional Police Headquarters) 7. MR. GABRIEL EFFIONG (IPO) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Circumstances in which an appellate court will interfere with the findings of facts made by a lower court "The foregoing are findings of fact by the trial Judge which can only be interfered with by this Court if they are shown to be perverse, but it has not been so shown by the Appellants. This Court therefore has no reason or justification to interfere." Per NWOSU-IHEME, J.C.A. (P. 13, Paras. C-D) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - ARREST: Circumstances under which a person can be lawfully arrested and detained "It is trite that no person can be unlawfully arrested and detained when he has not committed any offence. A person who has committed a criminal offence or reasonably suspected to have done so may be arrested for the purpose of being arraigned in a Court of Law. Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a criminal offence. See Section 35(1) of the 1999 Constitution of Federal Republic of Nigeria. An arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided under Section 35 (1) (a) (b) (d) (e) and (f) of the said Constitution. Any restraint therefore of the said right under any other circumstances would be unlawful and unconstitutional and amount to a violation of the citizen's right."per NWOSU-IHEME, J.C.A. (Pp. 7-8, Paras. E-C) - read in context

4 3. POLICE - POWERS OF THE POLICE: Need for the police to be cautious while exercising its power to make arrests "Even though the police under Section 4 and 24 of the Police Act has a duty to prevent and detect crime, apprehend offenders, preserve law and order and protect lives and property and where this happens, a citizen who has been arrested by the police cannot sue the police or informant in Court for breach of fundamental right. True as it may seem, such arrest must be done legitimately and in accordance with laid down rules as provided for in the Constitution. In the unreported case of LUNA v. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND in Appeal No. CA/PH/216/2004, this Court, Port-Harcourt Division held: "... Notwithstanding the power of the police as spelt out in Section 4 and 24 of the Police Act, where this power is improperly used, the Court can stop the use of the Power for that improper purpose, as that would no longer be covered by Section 35(1)(c) of the Constitution. In other words, an order restraining the police from arresting on some particular occasion or for some particular occasion or for some particular improper purpose may be made by the Court."Per NWOSU-IHEME, J.C.A. (Pp , Paras. C-B) - read in context

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6 CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The 1st - 4th Appellants were the 5th - 8th Respondents at the trial Court in the suit filed by the Respondents herein as Applicants. Judgment was entered against the Appellants in favour of the Respondents by Pius P. Idiong, of the Ukanafun Division of the Akwa Ibom State High Court in Suit No. HUK/15/2012 delivered on the 23rd of July, Aggrieved by that decision, the Appellants have appealed against the said judgment. The immediate cause of this action was reported to have taken place on the 10/2/12. On the said day, the Respondents alleged that the Appellants broke and entered the 1st Respondent's compound. The 2nd Appellant was alleged to have done so with his thugs while armed with dangerous weapons. In the process, the 2nd Appellant with his alleged thugs were said to have wantonly destroyed the 1st Respondent's cash and economic crops. The matter was reported to the police as a result of which the 2nd Appellant was arrested and detained. The 1st and 3rd Appellants who were said to be there to take the 2nd Appellant on bail were also arrested and detained, 1

7 even though the police stated that the 1st & 3rd Appellants were arrested because they were on police wanted list in an earlier incident. (See Paragraphs of the affidavit of the Appellants in support of their application at the trial Court). The 1st - 3rd Respondents alleged that they were arrested and detained for 9 (Nine) hours and would have been detained for a longer period but for the intervention of their counsel. The Appellants have maintained that they did not commit any offence to warrant their arrest and detention. The 1st - 3rd Respondents maintained that the Appellants were instrumental to their arrest and detention, while the police did not inform them of the allegation levelled against them throughout the period they were detained. The Respondents, particularly 1st - 3rd Respondents contended that the Appellants have violated their fundamental rights to personal liberty and freedom of movement provided for and guaranteed under Sections 35; and 41 of the 1999 Constitution of the Federal Republic of Nigeria as amended. Consequently, the Appellants claimed against the Respondents as follows: (a) A declaration that the arrest 2

8 and detention of the Applicants for 9 hours on 28/2/2012 by the 3rd and 4th Respondents acting on the authority of the 1st and 2nd Respondents and on the instigation of the 5th to 8th Respondents when the Applicants have not committed any offence is a violation of the Applicants' Fundamental Rights to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore illegal, unlawful and unconstitutional. (b) A declaration that the threat to further arrest and detain the Applicants by the 3rd and 4th Respondents acting on the authority of the 1st and 2nd Respondents when the Applicants have not committed any offence is a violation of the Applicants' fundamental rights to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore illegal, unlawful and unconstitutional. (c) An order directing the Respondents to jointly and severally pay the sum of N10, 000, (Ten Million Naira) to each of the Applicants for the unlawful violation of their 3

9 Fundamental rights aforesaid. (d) An order of injunction restraining the Respondents whether by themselves, their agents, servants or persons howsoever from interfering with the Applicants' enjoyment of their fundamental rights to personal liberty and freedom of movement." The trial Judge in a considered judgment agreed that the Respondents' fundamental rights have been breached and proceeded to grant their prayers and awarded the sum of N200,000 jointly and severally to each of the Respondents as damages for the infringement of their fundamental rights. This appeal is predicated on the said judgment. The Appellants' counsel A. W. Atakpa Esq, distilled four issues for determination thus: (i) Whether the proceedings from the including, the 25th day of June, 2012, till judgment were not vitiated by the failure of the Court to order and serve the further and better affidavit of the Applicants and hearing notice on the 1st, 2nd, 3rd and 4th Respondents, who were not in Court on 14th May, 2012, when the Court did not sit, and were unrepresented? (ii) Whether the Applicants were arrested by the 3rd and 4th Respondents at the instance of the 4

10 5th, 6th, 7th and 8th Respondents (the Appellants) and taken to the Area Command Headquarters on 28/2/2012, to necessitate compliance with the mandatory provisions of Section 35(3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, requiring that they be informed in writing of the offences alleged against them? (iii) Whether the findings and decision/judgment of the trial Court was perverse? (iv) Whether there was a real likelihood of bias in the trial Court? The Respondents' counsel O. A. Umoh Esq also distilled four issues similar to those of the Appellants thus: (i) Whether or not the judgment of the lower Court was perverse (Distilled from ground 1) (ii) Whether the lower Court was not right in holding that the Applicants had proved their arrest and detention for 9 hours of the 3rd and 4th Respondents in the lower Court (Distilled from grounds 2, 3 and 4). (iii) Whether the lower Court was biased against the Appellants. (Distilled from ground 5). (iv) Whether the 4th to 7th Respondents in this appeal who never contested the matter at all at the lower Court were denied fair hearing. The issues 5

11 formulated by both counsel can conveniently be compressed into one straight forward issue thus: "Whether on the facts and circumstances of this case, the trial Court was right in holding the Appellants liable for the infringement of the Fundamental Rights of the Respondents and proceeded to award damages against them." Counsel for the Appellants A. W. Atakpa Esq, contended that the 1st, 2nd and 3rd Respondents herein were never arrested by the police at the instance of the Appellants. That mere invitation by the police to the 1st - 3rd Respondents, without more, does not constitute a breach of any of the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria. He described the findings and decision of the trial Court as perverse and not borne out of evidence, coupled with the likelihood of bias in the entire proceedings. There was also a Reply brief were the Appellants' counsel tried to react to some issues raised in the Respondents' brief. Reacting to the foregoing, counsel for the 1st - 3rd Respondents O. A. Umoh Esq, submitted that the judgment of the learned trial Judge was based on the evidence before the Court 6

12 and not in any way shown to be perverse. He posited that there were ample evidence of violation of the rights of the 1st - 3rd Respondents and the police were unable to justify their unlawful detention. In determining this appeal, the relationship that existed between some of the Appellants and the 1st - 3rd Respondents before the series of arrests and detention is key. There relationship was everything but cordial, there was indeed no love lost between them. The arrests and detention of the 1st - 3rd Respondents was therefore a clear demonstration of revenge, bitterness and malice that had accumulated over the years, using the police as willing tools to actualise their dream. It is trite that no person can be unlawfully arrested and detained when he has not committed any offence. A person who has committed a criminal offence or reasonably suspected to have done so may be arrested for the purpose of being arraigned in a Court of Law. Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a criminal offence. See Section 35(1) of the

13 Constitution of Federal Republic of Nigeria. An arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided under Section 35 (1) (a) (b) (d) (e) and (f) of the said Constitution. Any restraint therefore of the said right under any other circumstances would be unlawful and unconstitutional and amount to a violation of the citizen's right. In the instant case, the question is whether the 1st - 3rd Respondents have established and proved that their fundamental rights were breached or violated by the Appellants or any of them? Reading through the Ten paragraph counter affidavit of the Appellants (see pages 25 to 27 of the Record). The Appellants did not deny lodging a complaint against the 1st - 3rd Respondents at the Police Area Command for which the said respondents were detained for 9 hours and which was the cause of the action at the lower Court. Rather all that the 3rd Appellant who deposed to the said counter affidavit said was that the Petition to the Police Area 8

14 Command was written by him and not the 4th Appellant. This in no way justified the arrest and detention of the 1st - 3rd Respondents. The said petition by the 3rd Appellant marked as (Exhibit "UKATA") even though written by the 3rd Appellant, it was obvious that he did not do so alone, but on behalf of his family where the Appellants are members. In the said counter affidavit, the Appellants averred that the 1st - 3rd Respondents have instituted three cases in the High Court and two in the Magistrate's Court against them. These facts clearly do not constitute a criminal offence to justify the said Petition to the police. It is therefore obvious that the arrest and detention of the 1st - 3rd Respondents was not predicated on their having committed any criminal offence or any reasonable suspicion that they had committed any offence. The said Respondents have rather stated that the Police did not inform them of the allegations against them throughout the period of their arrest and detention. In a situation such as this, the length of time spent in detention is immaterial in an unjustified circumstance. See RAZAK OSAYIANDE ISENALUHME v. JOYCE 9

15 AMADIN & ORS (2001) CHR page 458. Learned counsel for the Appellants have contended that a citizen who lodged a complaint to the police and thereafter left the police to use their initiative to investigate same cannot in law be held liable if the police violates the Fundamental Right of the citizen in the course of their investigation. For the Appellants to take benefit of the said law, they must be shown to have made that complaint in good faith and without any malice. Even though the police under Section 4 and 24 of the Police Act has a duty to prevent and detect crime, apprehend offenders, preserve law and order and protect lives and property and where this happens, a citizen who has been arrested by the police cannot sue the police or informant in Court for breach of fundamental right. True as it may seem, such arrest must be done legitimately and in accordance with laid down rules as provided for in the Constitution. In the unreported case of LUNA v. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND in Appeal No. CA/PH/216/2004, this Court, Port-Harcourt Division held: "... Notwithstanding the power of the police as spelt out 10

16 in Section 4 and 24 of the Police Act, where this power is improperly used, the Court can stop the use of the Power for that improper purpose, as that would no longer be covered by Section 35(1)(c) of the Constitution. In other words, an order restraining the police from arresting on some particular occasion or for some particular occasion or for some particular improper purpose may be made by the Court." From all that have been x-rayed in this judgment, it is clear that the complaint made by the Appellants to the police was bereft of good faith. It was simply a product of malice occasioned by the alleged numerous Court cases instituted by some of the Respondents against the Appellants' family. The 4th to 7th Respondents herein are police officers, it is rather strange that they are Respondents in this appeal when in fact all through the proceedings at the trial Court the key players and those who were arrested and detained unlawfully by the police were the 1st, 2nd and 3rd Respondents. Be that as it may, the 1st - 3rd Respondents have shown that their fundamental rights to freedom of movements and personal liberty had been violated by the Appellants. The 11

17 1st - 3rd Respondents have shown that they were arrested and detained. There is no doubt that they suffered mental and physical torture in addition to humiliation and embarrassment. They are no doubt entitled to compensatory damages. Where as in the present case, the Appellants failed to show justification for breaching the fundamental rights of the Respondents, monetary compensation could be claimed. It must be made clear that even where there is no physical injury, substantial damages could be awarded for injury to the dignity of the person or for the discomfort or inconvenience done to the Respondents. After reviewing the evidence and painstakingly evaluating same, the learned trial Judge at page 78 of the Record of Appeal made the following findings of fact: "... It is the view of this Court that the applicants have proved that their fundamental rights to personal liberty and freedom of movement had been violated by the Respondents. As a result, the burden has shifted to the Respondents to justify their said actions which they have failed to do. It is therefore the considered opinion of the Court that the applicants have proved that their 12

18 arrest and detention for 9 hours by the 3rd and 4th Respondents at the instance of the 5th - 8th Respondents on 28/2/2012 when the applicants did not commit any criminal offence is a violation of their fundamental rights to personal liberty and freedom of movement contrary to Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and I accordingly so hold." The foregoing are findings of fact by the trial Judge which can only be interfered with by this Court if they are shown to be perverse, but it has not been so shown by the Appellants. This Court therefore has no reason or justification to interfere. In the circumstance, the sole issue is resolved against the Appellants and in favour of the Respondents. This appeal is bereft of merit and hereby dismissed. The judgment of the trial Court in Suit No. HUK/15/2012 delivered on the 23rd of July, 2012 by P. P. Idiong, J, sitting at High Court of Justice, Ukanafun Division is hereby affirmed. I however modify the amount awarded to each Respondent from N200,000 each to N100,000 each to only the 1st, 2nd and 3rd Respondents. I make no order as to 13

19 costs. ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, C. E. Nwosu-Iheme (Ph.D), JCA, made available to me a copy of the Judgment just delivered in draft form in which the Appellant's appeal was dismissed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I also dismiss this appeal. I abide by the orders made in the lead Judgment. PAUL OBI ELECHI, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, Chioma Nwosu-Iheme, JCA. Having considered all the issues raised in the appeal on their merit, I do not have any other thing to add. I adopt his reasoning and conclusion as mine in also dismissing this appeal as being unmeritorious. I abide by the order of cost. 14