(2018) LPELR-45253(CA)

Transcription

1 RAPU v. IKUEGBOWO & ORS CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON TUESDAY, 10TH JULY, 2018 Suit No: CA/L/1202/2015 BIOBELE ABRAHAM GEORGEWILL UGOCHUKWU ANTHONY OGAKWU JAMILU YAMMAMA TUKUR Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MR. TONY RAPU - Appellant(s) And 1. REV. ZEBULON HARRISON IKUEGBOWO 2. CHIEF ELISHA MEGBA 3. CHIEF TOPIA OROALE 4. CHIEF OGUNSADE ODUWOLE 5. PRINCE SANMI JETHRO HARRISON RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether preliminary objections can be included in the formulation of issues for determination "The Respondents' issue number one challenges the competence of the appeal. The issue clearly does not arise from the Appellant's grounds of appeal. The Respondents said issue is an objection to the hearing of the appeal. It is more properly situated as a preliminary objection than as an issue for determination which is distilled from the grounds of appeal. In TAKUM LG vs. UCB (NIG) LTD (2003) 16 NWLR (PT. 846) 288 at 299 it was held that where the issue sought to be raised by the respondent in an appeal does not relate to the grounds of appeal formulated by the appellant, the respondent can raise such an issue as a preliminary objection and not as an issue for determination. The issue number one as distilled by the Respondents challenging the competence of the appeal runs counter to the intendment of an issue for determination as it seeks to abort and foreclose the hearing of the appeal in limine. It is trite law that the Respondents cannot challenge the competence of the appeal by an issue they have formulated for determination in the appeal. See OKELUE vs. MEDUKAM (2011) 2 NWLR (PT. 1230) 176, EFCC vs. AKINGBOLA (2014) LPELR (24257) 1 at 47-49, ODUNZE vs. NWOSU (2007) 13 NWLR (PT. 1050) 1 and IPC (NIGERIA) LTD vs. NNPC (2015) LPELR (24652) 1 at In EYO vs. JACKSON (2012) LPELR (19702) 1 at 11-12, Garba, JCA stated as follows: "... I have also observed that the Respondents' issue 1 above is not derivable from any of the grounds of the appeal, but appears and was argued in the form of a preliminary objection to the competence of the appeal. Although the principles of law in judicial practice allow a Respondent in an appeal, to raise and argue a preliminary objection in the Respondent's brief... the principles do not permit such a Respondent to merely raise it as an issue in the brief. Reacting to a similar situation in the case of EZUKWU v UKACHUKWU (2004) 7 SC (Pt. 1) 96 at 101, the Supreme Court had held that: 'The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate Court is limited to seeing whether or not the decision of the Court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. See the case of DR. J. M. UDOM v. MICHELETTI & SONS (1982) 7 SCNJ 438 at 457; (1997) 8 NWLR (Pt. 516) 187. As stated above, the issue under consideration is not derived from the Appellant's grounds of appeal. The issue is in the nature of a preliminary objection for determination before hearing the appeal in which issues for determination are raised. See NIGER PROGRESS LTD. v. N.E.L CORPORATION (1989) 4 SC (Pt. II) 164; (1989) 3 NWLR (Pt. 107) 68 at 82. Learned counsel ought to have raised the issue by way of preliminary objection pursuant to Order 2 Rule 9(2) of the Supreme Court Rules. As an issue for determination this appeal it is incompetent. In the above premises, the Respondents' issue 1 which is in the nature of a preliminary objection is incompetent and liable to be struck out since it was not even moved before the adoption of the briefs at the hearing of the appeal. It is struck out." I kowtow. The Respondents issue number 1 which challenges the competence of the appeal and is therefore in the nature of a preliminary objection is incompetent and it is hereby struck out. The said issue will play no part in the consideration of the submissions of learned counsel and determination of this appeal. See also RIVERS STATE GOVT. vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at and COP, ADAMAWA STATE vs. SARATU (2014) LPELR (24198) 1 at 8-10."Per OGAKWU, J.C.A. (Pp. 8-11, Paras. A-B) - read in context

3 2. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether a party can maintain an action under breach of Fundamental Human Rights in a court of law against another individual for an act that had occasioned wrong or damage to him "The gravamina of this matter is the enforcement of the fundamental rights of the Respondents herein which they alleged had been infringed by the actions of the Appellant and the other Police Officers who were respondents at the lower Court. It is the Respondents case that their fundamental rights to dignity of human person and right to personal liberty guaranteed under Sections 34 and 35 of the 1999 Constitution had been violated by their arrest and detention. Now, fundamental rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights which have been described as the minimum living standard for civilized humanity have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the nonimmutability of the Constitution itself. See RANSOME-KUTI vs. ATTORNEY-GENERAL OF THE FEDERATION (1985) 7 NWLR (PT. 6) 211 at It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights. See UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT. 200) 708 at 761. I am not enthused by the Appellant's contention that a private individual cannot be found liable for violation of the fundamental rights. That is strange learning to me and it has no backing in law. The ratio in MINISTER OF INTERNAL AFFAIRS vs. SHUGABA (supra) which the Appellant relied on for this contention does not support the Appellant's position. In the excerpt from the decision quoted by the Appellant, the court stated: "Finally, it is undoubted relevance [sic] to bear in mind that the provision was designed to protect the individual against the coercive and oppressive exercise of governmental authority and abuse of majority. Hence the rights conferred can be enforced and avail essentially, if not entirely, against governments acting through their authorised agents." The above pericope is from the decision of Karibi-Whyte, JCA (as he then was) in the said case. The dictum forms part of the discourse by the learned jurist on the historical and political perspective, origin, nature and constitutional status of a fundamental right action. The case never decided that fundamental rights can only be enforced against the government. The words employed therein are instructive, videlicet, "... can be enforced and avail essentially..." It is not that it can be enforced and avail ONLY. Though the question was not in issue in the appeal, the dictum does not state that fundamental rights cannot be enforced against a private individual. Section 46 (1) of the Constitution which confers a right on a person to seek redress where his fundamental right has been eviscerated does not stipulate that such redress can only be sought against the government or agents of State. On the state of the law therefore, a private individual can be found liable for violation of the fundamental rights of a person where the facts establish such infringement."per OGAKWU, J.C.A. (Pp , Paras. E-C) - read in context

4 3. CONSTITUTIONAL LAW - BREACH OF FUNDAMENTAL RIGHTS: Whether a legitimate complaint to the police amounts to breach of fundamental rights "It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 536 and Section 4 of the Police Act. For the Appellant to be held to have violated the Respondents fundamental rights, it has to be shown that he did more than lodge a formal report with the Police. It is rudimentary law that if a person orders a Policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the Policeman. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a Policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (2004) 2 NWLR (PT. 858) 654. In order for a person to successfully maintain an action for violation of his fundamental rights, consequent upon an arrest and detention, it is not enough to merely establish that a report was made to the Police wherein he was named as the suspect. It needs to be established for example, that the Police did not act on their own volition when they decided to arrest the person or that the report was totally false, malicious and without foundation. See NWADINOBI vs. BOTU (2000) 15 WRN 32 at 40. In IGBOSONU vs. OHAYAGHA (2015) LPELR (41870) 1 at 54-55, this Court (per Mbaba, JCA) stated: "By law, a person cannot be held liable for breach of fundamental rights simply because he made a complaint of commission of offence against another to the Police, and the Police used their discretion to arrest that other person for questioning. He can only be faulted if the complaint was ill-motivated and founded on dishonesty. See the case of Ejikeme Vs Nwosu (2002) 3 NWLR (pt. 754) 356; Balogun Vs Amubikahun (1989) 3 NWLR (Pt. 107) 18; Ejiofor vs Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba vs Director of SSS (1993) 7 NWLR (PT. 305) 353. In the case of Ogbonna vs Ogbonna (2014) 23 WRN 48, at 88, it was held that for liability to lie against a complaint to the Police, leading to the arrest, detention and prosecution of defendant, the complaint must have been made in bad faith, and the complainant did more than mere reporting the matter to the Police, and spearheaded the arrest, detention and prosecution of the victim of his false report, even where there was no basis for it." The facts on which the Appellant could be liable for infringing the fundamental rights of the Respondents were not made out in the affidavit evidence before the lower Court. The lower Court got it wrong when it held that the Appellant set the law in motion against the Respondents and on that alone held that the Appellant had infringed the fundamental rights of the Respondents."Per OGAKWU, J.C.A. (Pp , Paras. C-B) - read in context

5 4. JUDGMENT AND ORDER - DELIVERY OF JUDGMENT: Time frame within which judgment of the court must be delivered; effect of judgment delivered outside the time frame "As earlier indicated, the convenient starting point will be the Appellant's second issue. This is so because, if as contended by the Appellant that the decision of the lower Court is a nullity, then the decision is liable to be set aside irrespective of whether the substance of the decision was the correct one. Now, Section 294 (1) of the 1999 Constitution stipulates as follows: "Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof." The thrust of the above provision is for a Court to deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. The proceedings before the lower Court at pages 84 to 85 of the Records shows that the Court concluded argument on the matter on 25th March, 2014 after which it adjourned the matter to 15th May 2014 for judgment. However, the Ruling was not delivered until 28th April, 2015, see pages 86 to 94 of the Record of Appeal. This is a period clearly in excess of the ninety (90) days stipulated in Section 294 (1) of the 1999 Constitution. It therefore goes without saying that the decision of the lower Court fell short of the stipulation in Section 294 (1) of 1999 Constitution. The Appellant relied on the case of OJOKOLOBO vs. ALAMU (supra) and SAVANNAH BANK vs. STARITE INDUSTRIES OVERSEAS CORPORATION (supra) to contend that the non-compliance with Section 294 (1) of the Constitution rendered the decision of the lower Court null and void and entirely of no legal effect. In order for the decision of the lower Court to be declared a nullity, the appellate Court has to be satisfied that a miscarriage of justice was occasioned as a result of the failure to deliver the decision within the ninety days stipulated in Section 294 (1) of the Constitution. Section 294 (5) of 1999 Constitution provides as follows:- "The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof." I reiterate that the Records show that the decision of the lower Court was delivered outside the ninety (90) day period within which the decision ought to have been delivered after the close of argument. However, Section 294 (1) of the Constitution is not to be interpreted and applied in isolation. In order to arrive at a proper understanding of the stipulations of the Section, it should be read in conjunction with Section 294 (5) which provides that the decision of the Court is not to be set aside or treated as a nullity solely on the ground of noncompliance with Sub-section (1) unless a miscarriage of justice is shown to have been occasioned by reason of the delay: PDP vs. TAIWO (2004) 8 NWLR (PT. 876) 656 at 676 and DURO vs. INEC (2010) LPELR (8587) 1 at 24. Therefore the regnant legal position will seem to be that the effect of non-delivery of a decision by a Court within ninety (90) days is that such a decision would no longer be set aside for being a nullity unless the delay had occasioned a miscarriage of justice. See ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT. 901) 18; IGWE vs. KALU (2002) 5 NWLR (PT. 761) 678; ACB vs. AJUGWO (2011) LPELR at and MOLEGBEMI vs. AJAYI (2011) LPELR at From the foregoing, the decision of the lower Court can only now be set aside if this Court is satisfied that the delay occasioned a miscarriage of justice. The Appellant's contention is that the miscarriage of justice was in the lower Court holding that a land matter was reported to the Police when the report was of criminal trespass, thereby showing that the delay caused the lower Court to forget the facts of the case. I am unable to agree. As rightly submitted by the Respondents, the case was fought on affidavit evidence. The lower Court after a consideration of the relative cases made by the parties made the finding of fact that the Appellant reported a land matter to the Police. It is a different matter if the finding is not correct, but prior to making the finding, the lower Court had stated the Respondents' case as being that they were arrested, detained and made to sign an undertaking to release land to the Appellant. It continued and stated the Appellant's case to be that he complained to the Police of criminal trespass to his land. It is consequently limpid that the lower Court did not forget the facts of the matter as contended by the Appellant. It clearly restated the facts and made its finding. It is therefore not correct that the delay resulted in the lower Court forgetting the facts before it thereby occasioning a miscarriage of justice. I am of the informed view that the Appellant did not suffer any miscarriage of justice as a result of the failure by the lower Court to deliver its decision within ninety (90) days from the conclusion of argument before it. Consequently, I make bold to hold that the effect of a decision delivered outside the period stipulated in Section 294 (1) of the 1999 Constitution, is that such a decision is not a nullity unless it has occasioned a miscarriage of justice. See AYINKE STORES LIMITED vs. ADEBOGUN (2008) 10 NWLR (PT. 1096) 612. The decision of the lower Court, even though delivered in excess of ninety (90) days, is not a nullity as no miscarriage of justice was occasioned to the Appellant as a result of the delay."per OGAKWU, J.C.A. (Pp , Paras. E-E) - read in context

6 UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the High Court of Lagos State, Coram Justice: D. O. Oluwayemi, J. in SUIT NO. M/166/2011: REV. ZEBULON HARRISON IKUEGBOWO & ORS. vs. INSPECTOR GENERAL OF POLICE & ORS. By an Originating Motion on Notice filed on 12th November, 2012, the Respondents herein, who were the Applicants at the lower Court, applied for the enforcement of the fundamental rights, claiming the following reliefs: A. A DECLARATION that the arrest of the Applicants in October, 2010 and January 2011 by the respondents, their agents, servants, officers or otherwise howsoever at Itedo, Lekki, Lagos State constitutes a flagrant violation of the Applicants fundamental rights guaranteed under Sections 35, 38, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4, 5, 6, 9, 12 and 14 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria 1990 and is therefore illegal, unconstitutional, null and void. 1

7 B. A DECLARATION that the detention of the Applicants by the respondents, their agents, servants, officers or otherwise howsoever in October, 2010 and January 2011 constitutes a flagrant violation of the Applicants fundamental rights guaranteed under Sections 35, 38, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4, 5, 6, 9, 12 and 14 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria 1990 and is therefore illegal, unconstitutional, null and void. C. A DECLARATION that the Respondents are not entitled in law to arrest, detain or in any other manner restrict the liberty of the Applicants on the account of any civil and lawful land transaction in flagrant violation of the Applicants fundamental rights guaranteed under Sections 35, 38, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4, 5, 6, 9, 12 and 14 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria

8 D. A DECLARATION that the statutory duties of the Respondents do not cover or extend to intervention in civil transactions willingly entered into by citizens and therefore the arrest and detention of the applicants by the respondents over a civil transaction is illegal, unconstitutional and ultra vires the respondent. E. A DECLARATION that the invitation of the applicants by the police in respect of a civil transaction and the threatened infringement of the applicants [sic] guaranteed under Sections 37, 38, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4, 5, 6, 9, 12 and 14 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria 1990 and is illegal, unconstitutional, null and void. F. A DECLARATION that the every undertaking that may be forcefully extracted from the applicants by the respondents to pay money to any person(s), to surrender land to anybody and any such money paid or to be paid to any person(s) in respect of any civil land transaction is illegal, ineffective, unenforceable, unconstitutional, null and void and of no effect. 3

9 G. A DECLARATION that the Applicants are entitled to their liberty and freedom without let or hindrance from the Respondents, their agents, servants, officers or otherwise in exercise of their fundamental rights guaranteed under Sections 35, 38, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4, 5, 6, 9, 12 and 14 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria H. AN INJUNCTION restraining the Respondents, whether by themselves, their servants, agents, officers or otherwise howsoever from further violating the fundamental rights of the Applicants through unlawful arrest and detention except and in a manner permitted and sanctioned by law. I. AN INJUNCTION restraining the Respondents from executing, enforcing or giving effect to the undertakings that may be forcefully obtained from the Applicants or from enforcing or otherwise giving effect to the undertaking that may be extracted from them to pay money or surrender their land to any person(s) in breach of the fundamental rights of the applicants. J. N50M (FIFTY MILLION NAIRA) being special, aggravated, punitive and general 4

10 damages against the respondents, jointly and severally for their violation of the Applicants fundamental rights. The Appellant herein was the 5th Respondent at the lower Court; the other Respondents at the lower Court were Police Officers. The action at the lower Court was contested between the Appellant and the Respondents and in its Ruling the lower Court held that the fundamental rights of the Respondents herein were infringed upon and granted the reliefs claimed by them. The lower Court further awarded general damages against the Appellant in favour of the Respondents. The Appellant was dissatisfied with the judgment and appealed against the same. The Police Officers who were also respondents at the lower Court did not appeal against the decision of the lower Court. The Appellant s Notice of Appeal is at pages of the Records, while the scarified Ruling of the lower Court is at pages of the Records. The Records of Appeal having been compiled and transmitted, the Appellant filed his brief of argument on 17th February, The said brief was deemed as properly filed on 26th May The Respondents filed their brief of argument on 2nd June

11 At the hearing of the appeal, the Appellant and his counsel, though duly served with hearing notice were absent from Court. The Appellant s counsel wrote a bare letter for adjournment without stating any reason why he sought the adjournment. In the circumstances, the Court treated the appeal as argued since briefs had been filed and exchanged, whereupon learned counsel for the Respondents urged the Court to dismiss the appeal. The Appellant formulated two issues for determination as follows: 1. Whether the Learned trial Judge in the Court below was right to say that the Appellant a private citizen was in breach of the Fundamental Human Rights of the Respondent when he reported the incident of trespass involving violence to the law enforcement agencies and consequently was liable for any breaches of the Fundamental Human Rights of the Respondents perpetrated by the law enforcement agencies? 2. Whether in view of the provisions of Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended there was a breach of the Constitution when the Judge delivered judgment 6

12 13 months after final addresses and whether the aforesaid breach resulted in a miscarriage of justice as provided in Section 294 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended? On their part, the Respondents distilled three issues for determination, namely: 1. Whether this appeal is competent, having regard to the proceedings of this Honourable Court on the 26th May 2017? 2. Whether the Learned trial judge was right to say that the appellant a private citizen was in breach of the fundamental human rights of the respondents when he reported the incident involving violence to the law enforcement agencies and consequently was liable for any breach of the fundamental human rights of the respondents perpetrated by the law enforcement agencies? (Grounds 2 & 3) 3. Whether in view of the provisions of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended there was a breach of the Constitution when the judge delivered judgment 13 months after final addresses and whether the aforesaid breach resulted in miscarriage of justice as provided in Section 294(5) of the

13 Constitution of the Federal Republic of Nigeria as amended? (Ground 1). The Respondents issue number one challenges the competence of the appeal. The issue clearly does not arise from the Appellant s grounds of appeal. The Respondents said issue is an objection to the hearing of the appeal. It is more properly situated as a preliminary objection than as an issue for determination which is distilled from the grounds of appeal. In TAKUM LG vs. UCB (NIG) LTD (2003) 16 NWLR (PT. 846) 288 at 299 it was held that where the issue sought to be raised by the respondent in an appeal does not relate to the grounds of appeal formulated by the appellant, the respondent can raise such an issue as a preliminary objection and not as an issue for determination. The issue number one as distilled by the Respondents challenging the competence of the appeal runs counter to the intendment of an issue for determination as it seeks to abort and foreclose the hearing of the appeal in limine. It is trite law that the Respondents cannot challenge the competence of the appeal by an issue they have formulated for determination in the appeal. 8

14 See OKELUE vs. MEDUKAM (2011) 2 NWLR (PT. 1230) 176, EFCC vs. AKINGBOLA (2014) LPELR (24257) 1 at 47-49, ODUNZE vs. NWOSU (2007) 13 NWLR (PT. 1050) 1 and IPC (NIGERIA) LTD vs. NNPC (2015) LPELR (24652) 1 at In EYO vs. JACKSON (2012) LPELR (19702) 1 at 11-12, Garba, JCA stated as follows: "... I have also observed that the Respondents' issue 1 above is not derivable from any of the grounds of the appeal, but appears and was argued in the form of a preliminary objection to the competence of the appeal. Although the principles of law in judicial practice allow a Respondent in an appeal, to raise and argue a preliminary objection in the Respondent's brief the principles do not permit such a Respondent to merely raise it as an issue in the brief. Reacting to a similar situation in the case of EZUKWU v UKACHUKWU (2004) 7 SC (Pt. 1) 96 at 101, the Supreme Court had held that: The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate Court is limited to seeing whether or not the decision of the Court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of 9

15 raising issues for determination which have no relevance to the grounds of appeal filed. See the case of DR. J. M. UDOM v. MICHELETTI & SONS (1982) 7 SCNJ 438 at 457; (1997) 8 NWLR (Pt. 516) 187. As stated above, the issue under consideration is not derived from the Appellant's grounds of appeal. The issue is in the nature of a preliminary objection for determination before hearing the appeal in which issues for determination are raised. See NIGER PROGRESS LTD. v. N.E.L. CORPORATION (1989) 4 SC (Pt. II) 164; (1989) 3 NWLR (Pt. 107) 68 at 82. Learned counsel ought to have raised the issue by way of preliminary objection pursuant to Order 2 Rule 9(2) of the Supreme Court Rules. As an issue for determination this appeal it is incompetent. In the above premises, the Respondents' issue 1 which is in the nature of a preliminary objection is incompetent and liable to be struck out since it was not even moved before the adoption of the briefs at the hearing of the appeal. It is struck out." I kowtow. The Respondents issue number 1 which challenges the competence of the appeal and is therefore in the nature of a preliminary objection is incompetent and it is hereby struck out. 10

16 The said issue will play no part in the consideration of the submissions of learned counsel and determination of this appeal. See also RIVERS STATE GOVT. vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at and COP, ADAMAWA STATE vs. SARATU (2014) LPELR (24198) 1 at The Respondents issue numbers two and three are the same as the issues distilled by the Appellant. The issues as crafted by the Appellant would therefore serve as guide in the consideration of the submissions of learned counsel and determination of this appeal. Let me state however that in resolving the appeal, which will be done en bloc, I will first resolve with the Appellants issue number two (Respondents issue number three) as it raises the question of whether the judgment of the lower Court is a nullity. ISSUES FOR DETERMINATION Whether the Learned trial Judge in the Court below was right to say that the Appellant a private citizen was in breach of the Fundamental Human Rights of the Respondent when he reported the incident of trespass involving violence to the law enforcement agencies and consequently was liable for any breaches of the Fundamental 11

17 Human Rights of the Respondents perpetrated by the law enforcement agencies? Whether in view of the provisions of Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended there was a breach of the Constitution when the Judge delivered judgment 13 months after final addresses and whether the aforesaid breach resulted in a miscarriage of justice as provided in Section 294 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended? SUBMISSIONS OF LEARNED COUNSEL The Appellant submits that in the circumstances of the case, the lower Court ought not to have penalized the Appellant, a private citizen for violation of fundamental rights since the law is that the fundamental rights enshrined in Chapter IV of the Constitution are generally not enforceable against private individuals as the State is usually the violator of fundamental rights. The case of MINISTER OF INTERNAL AFFAIRS vs. SHUGABA (1982) 3 NCLR 915 at 976 was referred to. It is the further submission of the Appellant that a citizen has a duty to report the commission of a crime to the Police and that what happens after such a report is the 12

18 responsibility of the Police and the citizen cannot be held culpable unless it is shown that he acted mala fides. The case of FAJEMIROKUN vs. COMMERCIAL BANK (NIG) LTD (2009) 5 NWLR (PT. 1135) 588 at 611 was relied upon. It was opined that the Appellant only instructed his Solicitor to make a report to the Police on the criminal activities of using thugs and armed men to break the perimeter fence on his land and the threat to the public peace. It was stated that the Appellant was duty bound to report the alleged crime to the Police which had a duty to investigate and or prosecute the perpetrators. The cases of NWADINOBI vs. BOTU (2000) 9 NWLR (PT. 672) 220 at 222 and EJEFOR vs. OKEKE (2000) 7 NWLR (PT. 665) 363 at 367 were cited in support. The Appellant contended that the lower Court was wrong when it held that the Appellant set the law in motion by reporting a land matter to the Police instead of seeking redress from a Court of law. It was asserted that the Appellant s report was not about a land matter simpliciter but of criminal trespass using armed thugs and hoodlums, and that the Appellant merely exercised his civic duty by 13

19 reporting to the Police and he was not responsible for what the Police did thereafter. It was stated that an arrest properly made cannot constitute a breach of fundamental right. The case of UDO vs. ESSIEN (2015) 5 NWLR (PT. 1451) 83 at was called in aid. The Appellant s contention on the second issue is that the judgment of the lower Court is a nullity having been delivered thirteen months after final address and that it occasioned a miscarriage of justice as the lower Court no longer remembered the facts of the case, which resulted in its holding that the Appellant reported a land matter to the Police, when the report was criminal trespass. It was therefore posited that the judgment of the lower Court was delivered without jurisdiction and therefore null and void. The cases of OJOKOLOBO vs. ALAMU (1987) 7 SC (PT. II) 124 and SAVANNAH BANK vs. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 8 NWLR (PT. 1144) 491 at were referred to. The Respondents submit that the provisions of Chapter IV of the Constitution do not state that they can only be enforced against some set of people or organisation or government. It was maintained that the Respondents 14

20 were arrested at the instigation of the Appellant in a land matter when the course open to the Appellant was to recover his land through a Court of law. The Respondents opine that the lower Court was right to hold that the Appellant set the law in motion by reporting a land matter to the Police. It was stated that the Appellant had the burden of proving that the arrest and detention of the Respondents was legal and constitutional, but he failed to discharge the burden, thereby showing that the fundamental rights of the Respondents had been infringed upon. The cases of COP ONDO STATE vs. OBOLO (1989) 5 NWLR (PT. 120) 130 at 138, AGBAKOBA vs. THE DIRECTOR, S.S.S. (1994) 6 NWLR (PT. 351) 475 at 495 and DIRECTOR, S.S.S. vs. AGBAKOBA (1999) 3 NWLR (PT. 595) 314 were relied upon. The Respondents maintain that the facts show that their fundamental rights to dignity of human person and freedom of movement enshrined in Sections 34 and 35 of the 1999 Constitution were infringed and there was no justification for the violation. The cases of FAWEHINMI vs. ABACHA (1996) 9 NWLR (PT. 475) 710 at 742, McLAREN vs. JENNINGS (2003) 3 NWLR (PT. 808) 470 at 484 and AJAO vs. ASHIRU (1973) 11 SC 17 at 29 were cited in support. 15

21 The Respondents contention on the second issue is that the decision of a Court given in excess of the ninety (90) days provided in the Constitution shall not be set aside or treated as a nullity unless the appellate Court is satisfied that the decision occasioned a miscarriage of justice. Section 294 (5) of the 1999 Constitution and the cases of OKONKWO vs. UDOH (1997) 9 NWLR (PT. 519) 16 at and NNAJIOFOR vs. UKONU (1986) 4 NWLR (PT. 36) 505 at 517 on the meaning of miscarriage of justice were called in aid. It was contended that the case was fought on affidavit evidence and it could not therefore be said that the lower Court did not remember the facts as witnesses were not called. It was conclusively stated that the delay did not affect the decision and no miscarriage of justice was occasioned. RESOLUTION As earlier indicated, the convenient starting point will be the Appellant s second issue. This is so because, if as contended by the Appellant that the decision of the lower Court is a nullity, then the decision is liable to be set aside irrespective of whether the substance of the 16

22 decision was the correct one. Now, Section 294 (1) of the 1999 Constitution stipulates as follows: Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof." The thrust of the above provision is for a Court to deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. The proceedings before the lower Court at pages 84 to 85 of the Records shows that the Court concluded argument on the matter on 25th March, 2014 after which it adjourned the matter to 15th May 2014 for judgment. However, the Ruling was not delivered until 28th April, 2015, see pages 86 to 94 of the Record of Appeal. This is a period clearly in excess of the ninety (90) days stipulated in Section 294 (1) of the 1999 Constitution. It therefore goes without saying that the decision of the lower Court fell short of the stipulation in Section 294 (1) of 1999 Constitution. 17

23 The Appellant relied on the case of OJOKOLOBO vs. ALAMU (supra) and SAVANNAH BANK vs. STARITE INDUSTRIES OVERSEAS CORPORATION (supra) to contend that the non-compliance with Section 294 (1) of the Constitution rendered the decision of the lower Court null and void and entirely of no legal effect. In order for the decision of the lower Court to be declared a nullity, the appellate Court has to be satisfied that a miscarriage of justice was occasioned as a result of the failure to deliver the decision within the ninety days stipulated in Section 294 (1) of the Constitution. Section 294 (5) of 1999 Constitution provides as follows:- The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. I reiterate that the Records show that the decision of the lower Court was delivered outside the ninety (90) day period within which the decision ought to have been 18

24 delivered after the close of argument. However, Section 294 (1) of the Constitution is not to be interpreted and applied in isolation. In order to arrive at a proper understanding of the stipulations of the Section, it should be read in conjunction with Section 294 (5) which provides that the decision of the Court is not to be set aside or treated as a nullity solely on the ground of non-compliance with Sub-section (1) unless a miscarriage of justice is shown to have been occasioned by reason of the delay: PDP vs. TAIWO (2004) 8 NWLR (PT. 876) 656 at 676 and DURO vs. INEC (2010) LPELR (8587) 1 at 24. Therefore the regnant legal position will seem to be that the effect of non-delivery of a decision by a Court within ninety (90) days is that such a decision would no longer be set aside for being a nullity unless the delay had occasioned a miscarriage of justice. See ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT. 901) 18; IGWE vs. KALU (2002) 5 NWLR (PT. 761) 678; ACB vs. AJUGWO (2011) LPELR at and MOLEGBEMI vs. AJAYI (2011) LPELR at From the foregoing, the decision of the lower Court can only now be set aside if this Court is 19

25 satisfied that the delay occasioned a miscarriage of justice. The Appellant s contention is that the miscarriage of justice was in the lower Court holding that a land matter was reported to the Police when the report was of criminal trespass, thereby showing that the delay caused the lower Court to forget the facts of the case. I am unable to agree. As rightly submitted by the Respondents, the case was fought on affidavit evidence. The lower Court after a consideration of the relative cases made by the parties made the finding of fact that the Appellant reported a land matter to the Police. It is a different matter if the finding is not correct, but prior to making the finding, the lower Court had stated the Respondents' case as being that they were arrested, detained and made to sign an undertaking to release land to the Appellant. It continued and stated the Appellant s case to be that he complained to the Police of criminal trespass to his land. It is consequently limpid that the lower Court did not forget the facts of the matter as contended by the Appellant. It clearly restated the facts and made its finding. 20

26 It is therefore not correct that the delay resulted in the lower Court forgetting the facts before it thereby occasioning a miscarriage of justice. I am of the informed view that the Appellant did not suffer any miscarriage of justice as a result of the failure by the lower Court to deliver its decision within ninety (90) days from the conclusion of argument before it. Consequently, I make bold to hold that the effect of a decision delivered outside the period stipulated in Section 294 (1) of the 1999 Constitution, is that such a decision is not a nullity unless it has occasioned a miscarriage of justice. See AYINKE STORES LIMITED vs. ADEBOGUN (2008) 10 NWLR (PT. 1096) 612. The decision of the lower Court, even though delivered in excess of ninety (90) days, is not a nullity as no miscarriage of justice was occasioned to the Appellant as a result of the delay. The gravamina of this matter is the enforcement of the fundamental rights of the Respondents herein which they alleged had been infringed by the actions of the Appellant and the other Police Officers who were respondents at the lower Court. It is the Respondents case that their fundamental rights to dignity of human person and 21

27 right to personal liberty guaranteed under Sections 34 and 35 of the 1999 Constitution had been violated by their arrest and detention. Now, fundamental rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights which have been described as the minimum living standard for civilized humanity have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME-KUTI vs. ATTORNEY-GENERAL OF THE FEDERATION (1985) 7 NWLR (PT. 6) 211 at It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights. See UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT. 200) 708 at 761. I am not enthused by the Appellant s contention that a private individual cannot be found liable for 22

28 violation of the fundamental rights. That is strange learning to me and it has no backing in law. The ratio in MINISTER OF INTERNAL AFFAIRS vs. SHUGABA (supra) which the Appellant relied on for this contention does not support the Appellant s position. In the excerpt from the decision quoted by the Appellant, the court stated: Finally, it is undoubted relevance [sic] to bear in mind that the provision was designed to protect the individual against the coercive and oppressive exercise of governmental authority and abuse of majority. Hence the rights conferred can be enforced and avail essentially, if not entirely, against governments acting through their authorised agents. The above pericope is from the decision of Karibi-Whyte, JCA (as he then was) in the said case. The dictum forms part of the discourse by the learned jurist on the historical and political perspective, origin, nature and constitutional status of a fundamental right action. The case never decided that fundamental rights can only be enforced against the government. The words employed therein are instructive, videlicet,... can be enforced and avail essentially... 23

29 It is not that it can be enforced and avail ONLY. Though the question was not in issue in the appeal, the dictum does not state that fundamental rights cannot be enforced against a private individual. Section 46 (1) of the Constitution which confers a right on a person to seek redress where his fundamental right has been eviscerated does not stipulate that such redress can only be sought against the government or agents of State. On the state of the law therefore, a private individual can be found liable for violation of the fundamental rights of a person where the facts establish such infringement. The pertinent question however is whether in the diacritical circumstances of this matter the lower Court was correct in its decision that the Appellant violated the fundamental rights of the Respondents herein. The simple and straightforward facts of this matter as lucent from the Records is that the Appellant instructed his Solicitor to write a Petition to the Police complaining of criminal trespass to his property. In paragraph 20 and 21 of the Appellant s counter affidavit at the lower Court, it is deposed as follows: 24

30 20. That I was shocked when an unknown person acting in concert with thugs and hoodlums who were fully armed and the applicants herein stormed into my land and forcefully drove all the security staffs out of the land with their sporadic shootings and thereafter began to occupy the land. 21. By a letter dated the 9th of June, 2009, my solicitors Messrs Gbenga Biobaku & Co. wrote a petition to the Commissioner of Police, Force Headquarters, Moloney Street, Lagos against the defendants. See page 101 of the Supplementary (Additional) Record of Appeal. The said Petition is at pages of the Main Records and pages of the (Supplementary) Additional Record of Appeal. The facts as deposed to by the Respondents is that policemen stormed their village, arrested and detained them and made them to sign an undertaking to release land to the Appellant. They further deposed that they did not physically meet the person who complained against them, leading to their arrest. (See paragraphs 6-11 of the Respondents affidavit in support of the Originating Motion at page 6 of the Records). 25

31 It is effulgent from the facts on record that the Appellant did no more than write a Petition to the Police. There is nothing on record that the Appellant was instrumental to the Police arresting and detaining the Respondents or that he in any way influenced the action taken by the Police in their investigation of the Petition written by his Solicitors upon his instructions. In holding that the Appellant violated the Respondents fundamental rights the lower Court reasoned and held as follows at page 93 of the Records: I have carefully considered the submissions of both Learned Counsel, there [sic] Affidavit in Support and the Exhibit attached. The Applicants herein alleged that they were arrested, detained and made to sign an undertaking to release land to the 5th Respondent. That the arrest was made at the instance of the 5th Respondent. The 5th Respondent on the other hand said the Police acted on his Petition, where he complained of criminal trespass upon his land by the Applicants. In view of the above, its obvious that the 5th Respondent herein set the law in Motion against the Applicant by reporting land matter to the Police instead of seeking redress from the Court of Law. 26

32 It is translucent that the lower Court predicated its finding the Appellant liable on the ground that he set the law in motion by reporting land matter to the Police. This finding is not an accurate representation of the report made to the Police. The said Petition is titled: RE: PETITION AGAINST: (1) MR. SANMI JETHRO HARRISON (2) TOPIA OROALE (3) AISEPH MEGBA (4) ANIOS ODUSADE (5) SEBLON IKUEGBOWO AND OTHERS FOR ACTS LIKELY TO CAUSE BREACH OF PEACE/LOOMING MAYHEM, ILLEGAL PREVENTION OF LAWFUL ACTS AND UNLAWFUL USAGE OF THUGGERY AND FIRERY [sic] WEAPONS. (See page 52 of the Records and 123 of (Supplementary) Additional Record). The body of the Petition alleges as follows: Our client was therefore shocked that very recently, the above suspects acting in convert [sic] with thugs, hoodlums and street urchins fully armed with all forms of fiery weapons ranging from guns, pistols, matchets, [sic] cudgels forcefully drove all the security staffs out of the land with their sporadic shootings. 27

33 The Petition then concluded as follows: We are therefore constrained with no other alternative other than to crave for your indulgence to ensure that these criminal acts don t go unpunished and to ensure that our Client as law abiding citizen can peaceably enjoy his constitutional right to life and property. We count on your prompt and anticipated response, sir. Howbeit, it was not contended that the Petition was written mala fide or that the Appellant directed the Police on what to do pursuant to the Petition. It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 536 and Section 4 of the Police Act. For the Appellant to be held to have violated the Respondents fundamental rights, 28

34 it has to be shown that he did more than lodge a formal report with the Police. It is rudimentary law that if a person orders a Policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the Policeman. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a Policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (2004) 2 NWLR (PT. 858) 654. In order for a person to successfully maintain an action for violation of his fundamental rights, consequent upon an arrest and detention, it is not enough to merely establish that a report was made to the Police wherein he was named as the suspect. It needs to be established for example, that the Police did not act on their own volition when they decided to arrest the person or 29