By Legalpedia

ODUARAN ADJARHO V. INSPECTOR GENERAL OF POLICE & ORS.

APPEAL NO: CA/AS/355/2019

Areas Of Law:

Appeal, Action, Fundamental Rights, Constitutional Law, Court, Words And Phrases, Practice And Procedure, Criminal Law And Procedure, Contract, Statute

Summary Of Facts: This is an Appeal against the Judgment of the High Court of Delta State in Suit No. UHC/19/2019, delivered on 28/3/2019. The Appellant as Applicant at the Court below filed an application seeking the enforcement of his fundamental rights to personal liberty, and damages for alleged breach of his rights.

The case of the Appellant at the Court below is that based on the instructions of the 5th – 8th Respondents, the 1st to 4th, 9th and 10th Respondents who are officers and men of the Nigeria Police Force, arrested him on several occasions based on purely civil transaction of loan of the sum of N2,000,000 granted to the Appellant by the 5th and 6th Respondents on terms as agreed between them that he dropped leaflets of his Cheque book with them, which term he complied with.

That after sometime, the 5th and 6th Respondents filled the Cheque leaflets with a sum they claimed to be the capital and interest on the loan, and presented same at so that it could be dishonoured, with a ploy to getting the Police involved to arrest the Appellant.

The 5th to 8th Respondents at the Court below, denied the claims of the Appellant and stated that the Appellant had issued them six leaflets of cheques which he filled himself and gave them permission to present same if he fails to repay the amount loaned to him, but the cheques were dishonoured and a petition was written to the Police through the 6th Respondent’s solicitor.

That the Appellant asked for amicable settlement and showed the 6th Respondent a piece of land which he said was his and to be used to settle the loan sum, but upon investigations, the 6th – 8th Respondents found out that the claim of the Appellant was false, hence the Appellant was on the complaint of the 6th Respondent charged to a Magistrate Court.

The 1st – 4th and 9th- 10th Respondents on their part claimed that they were exercised their statutory power as Law Enforcement Agencies to detect, investigate and stop the commission of crimes.

HELD:

Appeal Allowed

ISSUES FOR DETERMINATION

* Whether the transaction between the Appellant and the 6th Respondent was purely civil and require no intervention by the Police

* Whether the Appellant’s right to personal liberty has been threatened in this case

* Whether the allegation against the Appellant for the issuance of dud (dishonored) Cheque, fraud and threat to life, not criminal in nature to warrant the intervention of the Police?

RATIONES

FUNDAMENTAL RIGHTS – BREACH OF A FUNDAMENTAL RIGHT – WHETHER A QUESTION OF FACTS

“Now, in considering whether or not any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), particularly Section 35(1) dealing with the right to liberty of the citizen, has been breached, the law is that each case of allegation of the breach of any of these fundamental rights, being primarily a matter of fact there being no legal presumption of their violation and or breach, must be decided on the peculiar facts and circumstances of each case. Thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to any of the fundamental rights as enshrined in Chapter IV of the Constitution of Nigeria 1999 (as amended).” – Per GEORGEWILL, JCA

FUNDAMENTAL RIGHTS – ALLEGATION OF BREACH MUST BE ON GOOD FAITH

“It is my therefore, my view that allegations of violation of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) must only be raised with all seriousness and in good faith. It must never be raised in bad faith or whimsically or merely as a red herring to raise a storm in a tea cup without any factual basis.” – Per GEORGEWILL, JCA.

COURT – EVIDENCE LED BY PARTIES – DUTY TO ASSESS THE VERACITY OF

“… I have taken time to reproduce the above relevant pieces of documentary Exhibits with a view to using it as required of a Court of law and encouraged by law, to assess the veracity of the Affidavit and Counter – Affidavit evidence led by the parties to determine which of the cases as presented by each of the parties represents the truth of the facts and circumstances of this case and to decide whether or not the Court below was right in its finding in favor of all the 1st – 10th Respondents on the issues of facts as joined by the parties in their Affidavit and Counter – Affidavit as in the Record of Appeal. See Equitorial Trust Bank Ltd V. Agada (2016) LPELR – 40792 (CA) per Georgewill, JCA. See also Kimdey V. Military Governor of Gongola State (1988) 2NWLR (Pt. 77) 445; Owena Bank Plc. V. Olatunji (2002) 12 NWLR (Pt 781) 559; Skye Bank Plc. V. Akinpelu (2010) 42 NSCQR 540.” – Per GEORGEWILL, JCA

RIGHT TO PERSONAL LIBERTY – BREACH OF – ON WHAT WOULD AMOUNT TO UNLAWFULL ARREST AND DETENTION

“Now, what then would amount to unlawful arrest and or detention? In law, an arrest and detention is said to be unlawful when it is done against the requirements of the rule of law and in breach of the right of the citizen to personal liberty. Thus, any person responsible for putting the law in motion leading to such an arrest would as well be liable once it is shown that it was done in malice or without probable and reasonable cause. A person said to have put the law in motion is one who took an active part in the initiation, continuation or procurement of the arrest and detention of another. However, where the Police used its own initiative on the strength of their investigations to effect arrest and or detention of a person within the confines of the law, then no liability would lie against the person who made the complaint to the Police. See Prince Brian Emonena & Anor V. Inspector General of Police & Ors. (2016) LPELR – 41489 (CA) per Georgewill, JCA. See also Mclaren V. Jennings (2003) 3 NWLR (Pt. 808) 470; Ezeadukwa V. Maduka (1997) 8 NWLR (Pt. 518) 1; Ejiofor V. Okeke (2000) 7 NWLR (Pt. 665) 367.” – Per GEORGEWILL, JCA

RIGHT TO PERSONAL LIBERTY – MALICE – MEANING – HOW PROVED

“In practice, the requirement of malice has always been the most difficult to construe by the Courts, because of its’ often times subtle nature and not easy to discern on the face of a Defendant. However, the word ‘Malice’ is generally an emotive term, and in relation to the tort of unlawful arrest and detention it means that the complaint leading to the arrest and or detention of the Claimant was instituted or made primarily by the Defendant because of a purpose other than that of bringing an offender to the justice he justly deserves. Malice, is thus the intentional doing of a wrongful act without legal justification, and may in most cases be inferred from the absence of probable and reasonable cause. A note of caution, though, malice does not necessarily mean and cannot necessarily be equated with hatred or ill will. See Black Law Dictionary 8th Edition @ page 958. See also Prince Brian Emonena & Anor V. Inspector General of Police & Ors (2016) LPELR-41489(CA) – Per GEORGEWILL, JCA

“… Now, on the above clear facts flowing directly from the Affidavit and Counter Affidavit evidence of the parties, I find as proved by the Appellant on his copious Affidavit and documentary Exhibits that the 5th – 6th Respondents acted capriciously and without any genuine reason or reasonable cause when the 6th Respondent jettison the recourse to an action in a Court of Law as agreed in the Memorandum of Agreement with the Appellant and rather with the connivance and goading of the 5th Respondent opted to criminalize a purely civil transaction of loan in order to harass, arrest and hamstring the Appellant into repaying the loan and interest to the 6th Respondent through the instrumentality of the Police. In my finding therefore, on the credible and uncontroverted evidence of the Appellant, corroborated in many respects by the terms of the Memorandum of Agreement, the 5th- 6th Respondents were directly and overtly instrumental to and did even misled the 1st – 4th and 9th – 10th Respondents into believing that there was indeed reasonable suspicion against the Appellant and genuine grounds to take the drastic steps it took against the Appellant on the alleged ground that the acts of the Appellant were fraudulent and amounted to the offence of issuance of dud Cheque, when it was the 5th – 6th Respondents that deliberately dated and filled in figures into the said two Cheques and purposely presented them to the bank in order to inaugurate the false claim of issuance of dud Cheque against the Appellant in order to use the instrumentality of the Police to recover the due debt from the Appellant. See Nzegbuna & Anor V. Okoye & Anor (2018) LPELR – 43943(CA), where this Court had per Dr. Oho JCA., stated and held inter alia thus:

“In the instant case, what seem to be clear from the printed records of Court is that the Respondents who were 1st and 2nd Applicants at the Court below committed no criminal offences and were not shown to be attempting to commit any shortly before the Police was brought in with the intention of apprehending them. I am agreement with the Court below on the fact that if there were any wrongful acts committed at all, then it must be the conduct of the 2nd Appellant who knew that there were no funds in the 1st Respondents account and not only threatened to present the Cheque for payment but still went ahead to lodge the Cheque in an empty account just to create the impression that the 1st Respondent herein had issued a dud Cheque. It is perhaps, important to state here that such quick fix or hastily contrived approaches to the resolutions of legal issues between parties every so often fails to achieve needed results and are greatly frowned upon by Courts as they give the impression of a party engaging in a sharp and an unconscionable practice.”

“… However, the 5th – 6th Respondents, on the other hand, having actively and purposely set the law and active processes in motion leading to the arrest and detention of the Appellant in a purely civil transaction for no offences at all committed by him, had acted in flagrant violation of the enshrined right to personal liberty of the Appellant, for which the Appellant, contrary to the perverse findings of the Court below, is entitled to some of the reliefs sought and proved by him against the 5th – 6thRespondents only and I so firmly hold!” –Per GEORGEWILL, JCA

RIGHT TO PERSONAL LIBERTY – LAWFUL ARREST AND DETENTION – SCOPE OF

“It follows therefore, that an arrest properly made in compliance with the laws of the land by the Police and or other Law Enforcement Agencies cannot constitute a breach of the fundamental right to personal liberty of a Citizen. Thus, a citizen who is arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of his having committed an offence cannot sue and if he does he cannot succeed against the Police in a Court of law for breach of his fundamental right to personal liberty. See Prince Brian Emonena & Anor V. Inspector General of Police &Ors (2016) LPELR-41489(CA). See also Okawo V. Commissioner of Police (2001) 1 CHR 407.” – Per GEORGEWILL, JCA

“The admitted evidence before the Court below, as in the Record of Appeal, was that the 6th Respondent petitioned through her Solicitors the Appellant to the Police alleging very grievous offences, including issuance of dud Cheques, fraud and threat to life. The alleged dud Cheques accompanied the said Petition to the Police and they believing reasonably that the Appellant had committed the alleged offences did swung into action by inviting, arresting, detaining and arraigning the Appellant before a Court of Law to answer to the alleged charges. The Appellant did not in any way rebut these facts as stated by the Police and I find that it was based on the facts as presented by the 5th – 6th Respondents, though clearly and deliberately contrived by them unbeknown to the Police that the Police acted in inviting, arresting, detaining and arraigning the Appellant before the Magistrate Court.”

“… In my finding therefore, on the credible and uncontroverted evidence of the Police they rightly carried out their statutory duties when they acted upon the seemingly reasonable suspicion presented against the Appellant by the 5th – 6th Respondents and invited, arrested and charged the Appellant to Court to answer to the alleged but clearly contrived offences by the 5th – 6th Respondents. I agree with the apt submission of the learned counsel for the Police that the Petition of the 6th Respondent against the Appellant constituted grounds for reasonable suspicion for which the Police was entitled by law in the exercise of its powers to invite, arrest, detain, investigate and arraign the Appellant, as it did, for the purposes of letting him have his day in Court to answer to the charges made levied him by the 5th – 6th Respondents. I find nothing untoward in the actions of the Police in the proved circumstances of this case, though they were in my finding clearly and purposely misled by the 5th and 6th Respondents, as I had already found as facts against the 5th and 6th Respondents earlier in this judgment. The actions of the Police was therefore, in my finding, clearly justifiable under Section 35(1)(c) of the Constitution of Nigeria 1999 (as amended).” – Per GEORGEWILL, JCA

NIGERIA POLICE FORCE – ESTABLISHMENT, DUTIES AND POWERS THEREOF

“… by Section 214 (2) (b) of the Constitution of Nigeria 1999 (as amended) the Nigeria Police Force, the 2nd Respondent, established under Subsection (1) of Section 214 of the Constitution of Nigeria 1999 (as amended) is primarily saddled with the enormous responsibility of maintaining law and order in the Society. A very difficult, task and at times a very dangerous one, every reasonable person living in this Country would readily attest to. These functions as are more specifically provided for in Section 4 of the Police Act are for the prevention and detection of crime, apprehension of offenders, the preservation of life and property and the due enforcement of all laws and regulations with which they are directly charged etc. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) per Georgewill JCA. It is therefore, my view that the purport of the above provision of Section 4 of the Police Act and the sacrosanct provisions of Section 214(2) (b) of the Constitution of Nigeria 1999 (as amended) is that it confers on the Police Force and its Officers and Men, the 1st – 10th Respondents, very enormous powers and discretion in the performance of their duties, including the powers to arrest and detain or to prevent or detect crimes and to arraign offenders before the Court of Law to answer to the allegation made against them, and the Courts are always ready to encourage the Police in the due performance of their constitutionally and lawfully guaranteed duties. It is for this reason and many other germane reasons that the Courts are very cautious and reluctant to interfere unjustifiably and unnecessarily with the discharge of their functions. See Fawehinmi V. IGP (2005) 1 NCC 415. See also Aigbadion V. The State (2000) 7 NWLR (Pt. 666) 686.

However, it must be pointed out at once that these very enormous powers vested in the Police do not give them a carte blank power to exercise it with impunity or in reckless disregard and in contravention of the laws of the land to infringe upon the inalienable fundamental rights of the citizens as constitutionally guaranteed in this Country. The standard of care expected of the Police in the due discharge of its duty is an objective one as permitted by law. It is never a subjective one and is therefore, not left to their whims and caprices. Thus, whenever the Police fail in this duty, and if the power of the Court is appropriately invoked, the Court would intervene to protect the inalienable fundamental rights of the Citizen against unwarranted breaches by the Police and other law enforcement agencies. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (Supra). See also COP V. Obolo (1989) 5 NWLR (Pt. 120) 130. See also Chukwuma V. COP (1964) NNLR 21; Mcadle V Egan (1933) 156 TLR 412.

The rationale for the above succinct position of the law would seem to be that at all times in the discharge of their duty, the Police and indeed all other Law Enforcement Agencies, charged with the responsibility of keeping law and order must bear in mind and take into consideration the two sided interest of the public, whom they serve namely: the protection afforded by law to the fundamental rights of the Citizen, particularly the rights to life, liberty and dignity of the human person on the one hand and the public policy requirement to ensure the smooth unhindered performance of the primary duty of the Police in the protection of life and property, prevention and detection of crime for the protection of the generality of the Citizenry of this Country. See Inspector General of Police & Ors. vs. Peter O. Ikpila & Anor (Supra)” – Per GEORGEWILL, JCA

“The police by law are empowered under Section 35 (1) of the 1999 constitution (as amended) and Section 4 of the Police Act to investigate, detect, apprehend and arraign before a court of law, person(s) reasonably suspected of having committed a criminal offence.” – Per OBASEKI-ADEJUMO, JCA

COURT – ON NEED TO BE CONSISTENT IN FINDINGS AND DECISIONS

“The Court below has a duty to be consistent in its findings and decisions in its judgment. It cannot hold unto two inconsistent and indeed contradictory positions, one as ‘findings’ and the other as ‘advice’. In Gov. Lagos State & Ors. V. Ohaigo Nig. Ltd & Anor (2018) LPELR – 45552(CA), this Court per Georgewill JCA, had reiterated the need for not only parties to be consistent but also for the Court to be consistent inter alia thus:

“My lords, the rule against inconsistency operates ordinarily to guard against parties presenting at trial cases different from the cases as pleaded in their pleadings. I think that, and I so hold, this rule also applies with equal force to the Courts in considering and arriving at findings in their judgments. The Courts, though not infallible and thus susceptible at times to err, do not enjoy a lower level of compliance with the rule against inconsistency. Thus, a Court cannot in one breadth make one finding and in another breadth on the same evidence and in the same judgment summersault to make an inconsistent finding to its earlier finding. It must lead by example by being consistent before being in a prime position to require of litigants’ compliance with the rule of consistency in the conduct and presentation of their cases.”

See also Akaninwo V. Nsirim (2008) All FWLR (Pt. 410) 610 @ p. 663; Nwoga V. Benjamin &Ors (2008) LPELR – 4651(CA); Saror&Anor V. Suswam&Ors (2012) LPELR – 8611(CA); Senator Chris Adighije V. Hon. Nekchi J. N. Nwaogu&Ors (2009) 2 NWLR (Pt. 1125) 234.”

PRACTICE AND PROCEDURE – EFFECT OF FAILURE TO ESTABLISH A PRIMA FACIE CASE AGAINST A PARTY

I find therefore, as fact that the Appellant did not make out any case against the 7th – 8th Respondent even on prima facie basis that would have even warranted them entering any defence to his claims against them. His claims against them therefore, fail in its entirety having failed to even make out any prima facie case against the 7th – 8th Respondents and I so hold. See Jolayemi V. Alaoye 2004 12 NWLR Pt. 887 322 per Uwaifo JSC.

ACTION

DISHONOURED CHEQUES (OFFENCES) ACT, SECTION 1 THEREOF – ISSUANCE OF DUD CHEQUE

“Indeed, the allegation of issuance of dud Cheque, if genuine, would constitute a grave offence in law. See Section 1 of the Dishonored Cheques (Offences) Act, Cap D11, Laws of the Federation of Nigeria 2004. See also Chief (Dr) O. Fajemirokun V. Commercial Bank Nigeria Ltd & Anor (2009) 2 -3 SC (Pt. 135) 58; Olutide&Ors V. Hamzat & Ors. (2016) LPELR -26047 (CA)” – Per GEORGEWILL, JCA

REASONABLE SUSPICION – WHETHER EQUALS PRIMA FACIE PROOF OF GUILT

“The law is now very well settled that reasonable suspicion is not and cannot be equated with prima facie proof of guilt of a person before he can be arrested by the Police for the purposes of his being investigated for alleged commission of a criminal offence. In other words, the Police need not establish a prima facie guilt of a person before he could either be invited or arrested by the Police over allegation of commission of a criminal offence once there exist reasonable suspicion of his having committed a criminal offence. See Mcadle V. Egan (1933) 156 TLR 412, on what is expected of a Police Officer once there is a reasonable suspicion against a person against whom a criminal complaint is made to the Police thus:

“Once there is what appears to be a reasonable suspicion against a particular individual, the Police officer is not bound … to fold his hand in order to make further inquiries if all that is involved is to make assurance double sure…”

Thus, while on the one hand, the Police, in my finding, had clearly acted upon reasonable suspicion in inviting, arresting, detaining and charging the Appellant to Court as a result of the active and positive role played by the 5th – 6th Respondents, and therefore, the Police was, in my finding and I so firmly hold, not in any way in breach of the right of the Appellant to personal liberty having acted in accordance and in compliance with the law.” – Per GEORGEWILL, JCA

FUNDAMENTAL RIGHTS – RIGHT TO PERSONAL LIBERTY – PERSON UNLAWFULLY ARRESTED AND DETAINED – WHETHER ENTITLED TO COMPENSATION

“In law, an Applicant or a person who has proved that he was unlawfully arrested and detained by or at the instance of another person or authority is entitled to award of compensation from that other person or authority as specified by law. See Mohammed V. IGP & Ors. (2019) 4 NWLR (Pt. 1663) 492 where the Supreme Court per Aka’ahs JSC., had stated inter alia thus:

“The Common law principles of assessment on award of damages do not apply to matters brought under the Fundamental Rights Enforcement Procedure Rules 2009. By virtue of the provision of Section 35 6 of the 1999 Constitution, any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person specified by law, and so a person who has proved that he was unlawfully arrested and detained is entitled to award of compensation…”

“… in the enforcement and or securing the enforcement of the fundamental rights of the Citizen the Courts are enjoined nowadays not only to frown at and deprecate abuses of the human rights of the citizens but also to award exemplary damages against violators of human rights of the citizens, be they individuals, corporate bodies or institution and or law enforcement agencies that would make the breach of the fundamental rights of the citizen very unattractive to would be violators. See Mohammed V. IGP & Ors (2019) 4 NWLR (Pt. 1663) 492 where the Supreme Court per Aka’ahs, JSC., cited with approval the views of Georgewill JCA., in IGP V. Ikpila (2016) 9 NWLR (Pt. 1517) 236, and stated inter alia thus:

“I fully endorse the sentiments expressed per Georgewill JCA in IGP V. Ikpila 2016 9 NWLR Pt. 1517 236 that the time has come for Courts in this Country to not only condemn and deprecate abuses of the fundamental rights of the citizen but also to make abuse of these rights by agents of state and or individuals or organization very unattractive by awarding exemplary damages in deserving cases.” – Per GEORGEWILL, JCA

“The actions of the 5th & 6th Respondents indeed amounted to a violation of the Appellant’s right to personal liberty. The Appellant is therefore entitled to an award of exemplary damages against the 5th & 6th Respondents who are the violators in this instant case.” – Per OBASEKI-ADEJUMO, JCA

CONTRACT – AGREEMENT BETWEEN PARTIES – BINDINGNESS ON PARTIES – BINDING EFFECT ON COURT

It’s trite that parties are bound by the terms of the agreement they have signed and the court is bound to honour same OKONDO COMMUNITY BANK V. ANNIRE (2013) LPELR – 21139 (CA), the court held thus;

“In this case the only document the Court can resort to is the agreement Exhibits “4” and “5” mutually agreed to by the parties. Exhibit “9” made by the Appellant and uncommunicated to the other two parties is not binding on any of the parties. “Where the intentions of the parties to a contract are clearly expressed in a document the Court cannot go outside, the document in search of other documents not forming part of the intention of the parties.” Dalek (Nig.) v. OMPADBC (2007) 7 NWLR Pt.1033 page 402; Mneji v. Zakhem Con. (Nig.) Ltd. (2006) 12 NWLR Pt.994-297. The Appellant fraudulently tried to import a term i.e. 3% per month which was not in the contract. The intention of the parties, in a written contract is always gathered from the document itself. The terms of the contract are to be determined by the parties and not by the Court. All that a Court does is to construe the words used by the parties in the agreement. Dantata v. Dantata (2002) 4 NWLR Pt.756 page 144.” Per NDUKWE-ANYANWU, J.C.A (P. 15, paras. B-E)

See also NNEJI V ZEKAM NIG LTD 2006 LPELR – 2059 (SC)” – Per OBASEKI-ADEJUMO, JCA.

Statutes Referred To:

Constitution of the Federal Republic of Nigeria, 1999 (as amended) Police Act Dishonoured Cheques (Offences) Act, Cap D11, Laws of the Federation of Nigeria 2004.