Chief Effiong Otu Bassey & Ors. V. Chief Ekpenyong Afia & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE, J.C.A.

This is an appeal against the Ruling of G. J. Abraham J. in Suit No. HKN/Misc.10/2005 at the Ikono Judicial Division, of the High Court of Akwa Ibom State delivered on 27th April, 2006.

The Appellants in this appeal were the 2nd – 16th Respondents before the lower court. The 1st set of Respondents (that is the Applicants/Respondents) were the three Applicants before the lower court. The 2nd set of Respondents (that is the 4th – 6th Respondents in this appeal) were respectively the 17th – 18th Respondents and the 1st Respondent before the lower court.

In the court below, the 1st set of Respondents as Applicants brought an application for leave to enforce their Fundamental Rights as against 18 Respondents (now the Appellants and the 2nd set of Respondents). The leave to enforce fundamental rights was granted to the Applicants/Respondents. Consequently, by a motion on notice dated 11th day of April, 2005, the Applicants/Respondents in the statement of support of motion sought the following reliefs:

(i) A declaration that the arrest, torture, detention and harassment of the 1st and 2nd Applicants and continuous threat to arrest and detain the 3rd Applicant and the subsequent harassment and frequent invitations of the Applicants as evidenced in the letter of 5/11/2004 issued by and under

the authority of the 17th and 18th Respondents at the instance of the 1st – 16th Respondents and further threat of detention are without legal justification and amounts to an infringement of the fundamental rights of the Applicants and is contrary to Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.

(ii) An order directing the Respondents to jointly and severally pay the sum of N10,000.000.00(sic) (Ten Million Naira) to the Applicants as damages for the violation and threat of violation of the fundamental rights of the Applicants.

(iii) An order directing the Respondents jointly and severally to offer public apology via a written letter addressed to the Applicants and copies (sic) to the Village Council of Ebo-Ita Mbonuso in Ini Local Government Area.

(iv) An order of injunction restraining the Respondent, their agents, privies, subordinates from further arrest, detention, threats of arrest or harassments of the Applicants in connection with the subject matter of this suit.

(v) And for such further and other orders as this honourable court may deem expedient to make.

This was followed by a 19 paragraph statement of grounds upon which the above reliefs were sought.

The facts of the case are as follows. The Appellants and the Respondents belong to the same community. The 2nd – 16th Respondents/Appellants accused the Applicants of destruction of Shrines belonging to the community. This coincided with a time when the entire community allowed some students of the Community who were at the University of Uyo to hold a Christian Crusade in the villages comprising the Community members. Members of the community including the 2nd – 16th Respondents/Appellants reprimanded the Applicants/Respondents in a Village Council meeting and asked them to pay fines for desecrating the community shrines. Alongside, this development, the 1st – 16th Respondents at the lower court (which includes the 2nd – 16th Respondents/Appellants) in this court withdrew an initial petition/Report lodged by the 2nd – 16th Respondents/Appellants to the Divisional Police Headquarters, Odoro Ikpe on the issue of destruction of Community shrines against the Applicants.

On 26/8/2004, the Appellants wrote Exhibit ‘CC’ to the Commissioner of Police, Akwa Ibom State. Exhibit “CC’ is a letter/petition signed by the 2nd – 16th Respondents/Appellants as Ebo village Council Chiefs alleging that the 1st and 2nd Applicants hired some members of armed students cultists from University of Uyo to Ebo village to destroy and set ablaze shrines and other valuables and urged the Commissioner of Police to withdraw the matter from the D.P.O. for proper investigation.

Consequent on Exhibit “CC’, the Police from the State Police Headquarters arrested the 1st and 2nd Applicants and later released them on bail. The Applicants were kept in the Police Station from 11.00 a.m. to 7.00p.m. After that day, subsequent invitations were served on the Applicants by the Police for investigation.

On 7/2/2006, while moving the motion on notice, learned Counsel for the Applicants/Respondents relied on a 6 paragraph affidavit in support of the motion on notice and Exhibit ‘A’ which incorporates all the processes including Affidavits used in obtaining leave. He also sought leave of court which was granted without objection to rely on the further and better affidavit filed on 7/2/2006.

In a considered ruling delivered on 27/4/2006, the learned trial Judge exonerated the Police, that is the 4th and 5th Respondents on the ground that Exhibit CC discloses a criminal offence which the Police was duty bound to investigate, and also the 6th Respondent (Chief Otu Robert Akpan) on the ground that he unlike the 2nd – 16th Respondents/Appellants did not sign Exhibit ‘CC’, the letter which the learned trial Judge adjudged to be a “false and malicious fabrication” by the 2nd – 16th Respondents/Appellants against the Applicants /Respondents.

At pages 150 – 151 of the record, the learned trial Judge specifically held as follows:

“In conclusion and in answer to the issue raised for determination. I have found the 1st, 17th and 18th Respondents not liable. The 2nd – 16th Respondents are however liable for the violation of the fundamental rights of the Applicants to personal liberty as enshrined in Section 35 of the Constitution of the Federal Republic of Nigeria 1999. It has been held by the Court of Appeal, that, those who set in motion a wrongful machinery which leads another to acts in breach of a person’s liberty must be held liable for the breach of the person’s liberty as if they had done the act themselves. See Anambra State Government Sanitation Authority (ASESA) vs. Ekwenem (2001) FWLR 2034 at 2053 – 2054. Held 2.”

And from pages 151 – 152 of the record, the learned trial Judge declared and ordered as follows:

1. It is hereby declared that the arrest of the 1st and 2nd Applicants by the Police and the subsequent threat to arrest the Applicants based on the malicious and ill-motivated and trumped up report lodged by the 2nd – 16th Respondents to the Police as contained in Exhibit CC attached to their counter affidavit was unjustified and illegal and amounted to a violation to personal liberty protected under Section 35 of the Constitution of the Federation (sic) Republic of Nigeria 1999.
2. It is ordered that the 2nd – 16th Respondents shall jointly and severally pay the sum of N500,000.00 to the Applicants for breach of their fundamental rights.
3. It is hereby ordered that the 18th Respondent, the Commissioner of Police, Akwa Ibom State, his agents, privies, subordinate or any Police officer acting under him be and is hereby restrained from arresting the Applicants or taking any steps against the Applicants in connection with the petition written by the 2nd – 16th Respondents dated the 26th August, 2004, the same having been found to be a false and malicious fabrication.

Dissatisfied with the Ruling of the learned trial Judge, the 2nd – 16th Respondents/Appellants filed a notice of appeal containing five (5) grounds of appeal before this court on 13/5/2006.

The 6th Respondent and the 4th and 5th Respondents filed Respondents notices to contend and vary the decision of 27th April, 2006 on 21/6/2006 and 13/11/2008 respectively. The 6th Respondent intends that the judgment be varied as follows:

That it be ordered that 2nd – 16th Respondents shall not be found liable to pay damages to the Applicants based merely upon their reports to the Police.

The grounds on which the 6th Respondent intends to rely are as follows:

1. The 2nd to 16th Respondents/Appellants were wrongly found to have arrested or wrongfully curtailed the personal liberty of the Applicants/Respondents.
2. The 2nd to 16th Respondents/Appellants merely reported to the Police who are the legally empowered institutions to investigate crimes and offences.
3. The Police stated in their counter affidavit that a prima facie case was established against the Applicants/Respondents.
4. The case of Anambra State Environmental Sanitation Authority (ASESA) vs. Ekwenem (2001) FWLR (Pt. 51) 2034 held 2 does not apply in their case.
5. The Police which acted upon the report of the 2nd to 16th Respondents/Appellants have been exonerated by the court below.

The 4th and 5th Respondents on the other hand intend to vary the judgment as follows:

That it be ordered that the 4th and 5th Respondents shall not be prevented from carrying out their Constitutional duties of arresting, investigating and prosecuting the 1st – 3rd Applicants/Respondents when a prima facie case has been made out against them during the cause of investigations.

The grounds on which the 4th and 5th Respondents intend to rely on are as follows:

1. That the 2nd to 16th Appellants/Respondents performed their Constitutional duties as law abiding citizens by reporting the activities of the 1st – 3rd Respondents/Respondents to the 4th & 5th Respondents whose duty it is to investigate such a report in order to determine its veracity and take appropriate action.
2. That during the cause of investigation, a prima facie case was made out against the 1st – 3rd Respondents/ Respondents by the 4th & 5th Respondents after a careful and thorough investigation.
3. That it is the statutory duty of 4th & 5th Respondents to maintain law and order by investigating commission of crimes reported to them by law abiding citizens.
4. That it was necessary that the 4th & 5th Respondents take appropriate action to avoid a breakdown of law and order in Ebo Itu-Mbonuso village as the situation would have escalated.
5. That fettering the 4th & 5th Respondents in respect of 1st – 3rd Respondents / Respondents offences amounts to giving them the leverage to commit more offences and an encouragement for other would be breakers to follow suit.

The 6th and the 4th & 5th Respondents are therefore in the words of Order 9 Rule 1 of the Court of Appeal Rules 2007, Respondents who not having appealed from the decision of the Court below, desire to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, and have therefore specified the grounds of contention and the precise form of the order which he proposed to make, or to make in that event, as the case may be.

Appellants’ brief of argument dated 12th March, 2008 was filed on the same date. Applicants/Respondents brief of argument was filed on 8/5/2008. The briefs of argument of the 6th and the 4th & 5th Respondents / Respondents were filed on the 25/5/08 and 19/11/08 respectively.

The Appellants formulated five (5) issues from the five grounds of appeal filed.

They are:

1. Whether the Applicants / Respondents could make use of and rely on the facts contained in an expired affidavit dated 9th March, 2005 in support of their motion ex parte for leave in the motion on notice dated 11th April, 2005 in view of Section 34(1) of the Evidence Act and Order 2 Rules 2(1) (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
2. Whether the reliefs and orders granted by the learned trial Judge are not at variance with the claims of the Applicants / Respondents and therefore gratuitous and outside jurisdiction.
3. Whether the view of the learned trial Judge that Exhibit CC from the Respondents / Appellants “was false, malicious and devoid of foundation” was not perverse and led to miscarriage of justice.
4. Whether the conduct of the trial Judge did not show that the said Judge was biased or showed real likelihood of bias and conducted an unfair trial.
5. Whether the sum of N500,000.00 (Five Hundred Thousand Naira) damages against the 2nd to 16th Respondents / Appellants is not exorbitant, excessive, and unjustified?

Learned Counsel for the Applicants / Respondents formulated four (4) issues for determination, they are:

1. Whether in the light of the facts that were before the court, the Fundamental Rights Enforcement Procedure Rules 1979 and the Evidence Act, the learned Judge was right to entertain the Motion on Notice as presented by the Applicants.
2. Whether the Reliefs granted by the learned Judge are compatible with the reliefs sought by the Applicants.
3. Whether the learned Judge was biased in his evaluation of Exhibit CC and whether the findings therefrom led to a miscarriage of Justice.
4. Whether the sum of N500,000.00 damages in favour of all the Applicants can be regarded as excessive.

The 4th & 5th and the 6th Respondents / Respondents identically formulated the following issues for determination.

1. Whether the court below was right to grant the relief or orders not claimed by the Applicants / Respondents.
2. Whether the mere report to the Police constituted a breach of Fundamental Right of the Applicants / Respondents.

To a large extent the interests of the Respondents/Respondents (that is the 2nd set of Respondents) in this appeal cut across each other. The appeal is therefore to a large extent between the Respondents/Appellants and the Respondents/Respondents on one hand and the Applicants / Respondents on the other hand. I will determine the appeal with the following six (6) issues which are admixture of the issues formulated by the two sets of parties in this case.

1. Whether the Applicants/Respondents could make use of and rely on the facts contained in an expired affidavit dated 9th March, 2005 in support of their motion ex parte for leave in the motion on notice dated 11th April, 2005 in view of Section 34(1) of the Evidence Act and Order 2 Rules 2(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules 1979.
2. Whether the reliefs and orders granted by the learned trial Judge are not at variance with the claims of the Applicants/Respondents and therefore gratuitous and outside jurisdiction.
3. Whether the view of the learned trial Judge that Exhibit CC from the Respondents / Appellants “was false, malicious and devoid of foundation” was not perverse and led to miscarriage of justice?
4. Whether the conduct of the trial Judge did not show that the said Judge was biased or showed real likelihood of bias and conducted an unfair trial.
5. Whether the mere report to the Police constituted a breach of Fundamental Right of the Respondents / Respondents.
6. Whether the sum of N500,000.00 (Five Hundred Thousand Naira) damages against the 2nd to 16th Respondents / Appellants is not exorbitant, excessive and unjustified?

The contention of the Respondents / Appellants on Issue No. 1 is that the Applicants / Respondents could not use their affidavits dated 9th March, 2005 which they earlier used in their motion ex parte for leave to bring their application to secure or enforce their Fundamental Rights to support their motion on notice dated 11th April, 2005. Such affidavits, said Appellants’ Counsel are the ones deposed to on the 9th March, 2005 by the Applicants / Respondents in this case are expired evidence used or adduced in a previous proceeding and cannot be used in subsequent proceedings unless Section 34(1) of the Evidence Act is complied with.

Learned Counsel for the Appellant also submitted that the Counsel to the Applicants/Respondents in the court below did not make reference to the statement filed by the Applicants / Respondents to show therein the acts allegedly done by the Respondents/Appellants that constitute breach of the fundamental rights of the Applicants/Respondents.

So also, said Appellants’ Counsel, by virtue of Order 2 Rule 2 (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the Applicants/Respondents further and better affidavit dated 7th February, 2006 (pages 97 – 100 of Record) could not be used in the application since it did not deal with any new matter raised by any other party in any affidavit. Relying on the cases of Ekpezu vs. Ndem (1991) 6 NWLR (Pt. 196) 229, Francis Shanu & Anor vs. Afribank Nigeria Plc (2002) 17 NWLR (Pt. 795) 185 and Dipo Rafiu Ayinde vs. Alhaji Sakiratu Salawu (1989) 3 NWLR (Pt. 109) 297. Learned Counsel for the Appellant reiterated his submission that the expired evidence in the affidavit of the Applicants/Respondents dated 9th March, 2005 made use of on 5th day of April, 2005 could not be used again in the motion on notice on the 7th of March, 2006 when the motion on notice was being moved in the court below, as none of the conditions stated in Section 34(1) of the Evidence Act 1990 had been shown to be available to the Applicants/Respondents.

On Issue NO.1, learned Counsel for the Appellants concluded that the case of the Applicants/Respondents in the court below lacked legal foundation or was not supported by any legal evidence to warrant the favour of the decision of the lower court. And relying on the cases of Jacker vs. International Cable Co. Ltd. (1888) 5 T. L. R. 13, Kojo vs. Solaz (1938) 4 WACA 191 at 193 and Simeon Muonweoku vs. Jos. E. Egbunike (1959) III ENLR 53 at 54, he submitted that courts are obliged to decide cases based on legal evidence.

In response to Issue NO.1, learned Counsel to the Applicants/Respondents reviewed the facts of the case in relation to the processes filed and submitted that the provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979, in particular, Order 2 Rule 2 were complied with by the Applicants/Respondents.

Applicants’/Respondents’ Counsel submitted that the view of Appellants’ Counsel that he never referred to the statement in support of his motion is false. On this, he referred to the judgment of the lower court at page 135 of the Record where the learned trial Judge expressly held that Applicants’ Counsel referred to and rely on the statement in support of the motion on notice amongst other court processes.

On the question of whether the affidavits used in support of the application for leave could also be used to support the facts in the statement on the motion on notice, learned Counsel for the Applicants/Respondents submitted that Section 34 of the Evidence Act, dealing with general law of evidence in trials does not apply in this case where the statute regulating the specific procedure for enforcement of fundamental rights required the proceedings be commenced ex parte after which the affidavit used to obtain the Order ex parte must be served on the opponent with the statement.

If the affidavit was to expire, said Applicants’/Respondents’ Counsel, the law would not ask that the affidavit and the statement used to obtain leave be served alongside the motion on notice. Learned Counsel to the Applicants/Respondents submitted further, citing the case of Osho vs. Attorney General of Ekiti State (2002) FWLR (Pt. 100) 1038 at 1311 that even if the affidavits, were to have expired, by its exhibition to the affidavit in support of the motion on notice it formed part and parcel of the application. In fact, said Applicants’/Respondents’ Counsel, Section 34 (1) of the Evidence Act contemplated regular proceedings which involved hearing and cross examination unlike the procedure in fundamental rights which are sui generis and the only means of the Respondents being aware of the facts in the affidavit used ex parte is for him to be served at the motion stage and to controvert same if he so desires .

Applicants/Respondents’ Counsel furthered relying on the case of Duke vs. Akpabuyo Local Government Area (2006) 113 LRCM 108 at 114 that the Respondents/Appellants filed a counter affidavit and they never objected to the processes but joined issues on the substance. They are therefore deemed to have waived that right in law. He added that the cases of Ekpeazu vs. Ndem (supra), Francis Shanu & Anor vs. Afribank Nig Plc (supra) and Ayinde vs. Salawu (supra) cited by the learned Counsel for the Appellants were all cases commenced by writ of summons and involved trials. That none of those cases involved Fundamental Right (Enforcement Procedure) Rules. And that the correct position of the law concerning the relevance and applicability of affidavits and processes used in obtaining leave at the determination of motion on notice can be found in the cases of Inah & Ors vs. Ukoi (2003) FWLR (Pt. 143) 382, ACB vs. Ugorji (2002) FWLR (Pt. 93) 1893 and Cunsin (Nig.) Ltd. vs. I.G.P. (2008)) 5 NWLR (Pt. 1081) 546.

On the argument of the Appellants’ Counsel that the Applicants/Respondents further and better affidavit could not be used in the application as it did not deal with any new matter raised by any other party in any affidavit, Applicants’/Respondents’ Counsel submitted that he applied for and obtained leave to use the further and better affidavit during the argument of the motion and that leave was granted without any opposition. He relied on the case of Iyoho vs. Effiong (2007) 30 NSC & R 207 to say that there was no appeal against the leave so granted. And that at any rate, the counter affidavit of the Respondents raised several issues that could only be challenged by filing further and better affidavit.

Both the issue of not speaking to the statement in support of motion in the course of oral argument and that of the competence of the Applicants/Respondents further and better affidavit were adequately and satisfactorily attended to in the Judgment of the learned trial Judge and the Applicants/Respondents have also in their arguments considered above provide adequate factual and legal basis to counter the arguments of Counsel to the Appellants.

To my mind, the more important issue in relation to Issue No. 1 is whether indeed the “expired” affidavit used in obtaining leave can still be used and relied on to provide facts in support of the motion on notice.

On this point, the learned Counsel for the Applicants/Respondents was right when he opined that the provisions of the Fundamental Rights (Enforcement Procedure) Rules deliberately provide for peculiar procedures on the use of affidavit evidence outside the catch of the provision of Section 34(1) of the Evidence Act which only allows evidence given by a witness in a previous judicial proceeding or at a later stage of the same proceeding to be given when certain conditions have been fulfilled.

The provisions of the rules pertinent to the resolution of Issue No. 1 are contained in Order 1 Rule 2(3) as well as Order 2 Rule 2(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.

Order 1 Rule 2(3) of the Rules provides as follows:

“(3) An Application for such leave must be made ex parte to the appropriate court and must be supported by a statement setting out the name and the description of the Applicant, the relief sought, and the grounds on which it is sought, and by an affidavit verifying the facts relied on”

While Order 2 Rule 2(1) and (2) enact thus:

“2(1) Copies of the statement in support of the application for leave under Order 1 Rule 2(3) must be served with the notice of motion or summons under Rule 1(3) of Order 2 and, subject to paragraph 2 of this Rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in the said statement.

(2) The court or Judge may, on the hearing of the motion or summons allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of any affidavit of any other party to the application and where the Applicant intends to ask to be allowed to amend his statement or use further affidavits he must give., notice of his intention and of any proposed amendment of his statement to every other party, and must supply to every such party copies of such further affidavits.”

In the case of Cusin Nigeria Limited & Anor vs. Inspector General of Police & 5 Ors (2008) 5 NWLR (Pt. 1081) 546 at 558, the Court of Appeal (Lagos Division) per Isa Ayo Salami who presided and read the lead judgment said of the above provisions quite relatively to the instant discussion at page 558 that:

“It will sound awkward or absurd if copies of the statement of facts verifying affidavit already filed along with the application for leave were to be refiled or filed again when the motion on notice is being filed after leave had been granted. The necessity to use the same set of statement of facts as well as verifying affidavit is further emphasized in Order 2 Rule 2(1).

I am strengthened or encouraged in the view that there should be no further filing of copies of verifying affidavit and statement of facts by the provisions of sub-Rule (1) or Rule 2 of Order 2. Peremptorily excluding the necessity to file further statement of fact and verifying affidavit. The purpose of the requirement is to forestall a situation whereby an Applicant seeks to secure enforcement of his right on a statement of facts and verifying affidavit other than those he used to obtain leave when the Respondent would not be in court.”

In the instant case, the Applicants / Respondents attached the processes used to obtain leave ex parte including statement and verifying affidavits as Exhibit ‘A’ to the motion on notice and utilized the said Exhibit ‘A’ alongside the affidavit in support of his motion on notice and the further and better affidavit for which he sought and was granted leave of court in arguing his motion on notice.

The processes filed by the Applicants / Respondents are in conformity with the provisions of Order 1 Rule 2 (3) and Order 2 Rule 2(1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules 1979 and the Applicants / Respondents were justified to have utilized the verifying affidavits in support of the application for leave ex parte in the subsequent motion on notice.

Issue No 1 is resolved as against the Appellants.

Under Issue NO.2, learned Counsel for the Appellants submitted that the reliefs granted by the learned trial Judge were at variance with the reliefs sought by the Applicants / Respondents. After contrasting the claims or the reliefs by the Applicants / Respondents and those granted by the learned trial Judge, Appellants Counsel quoted from paragraph 1 of page 147 of the record where the learned trial Judge held that:

“The Applicants are saying that the 1st – 16th Respondents instigated the 17th and 18th Respondents to arrest and detain them. It is not enough to make such blanket allegations.

There must be specific facts to show the acts of instigation – such facts have not been disclosed by the Applicants. The 1st – 16th Respondents have denied having instigated the Police. The 17th and 18th Respondents are also saying they were never instigated by the 1st – 16th Respondents. There is therefore nothing before me to conclude that beyond ordinarily reporting the matter to the Police, the 1st to 16th Respondents had done any act which can be interpreted as inducement or instigation of the Police.”

According to Appellants’ Counsel, the above findings of the learned trial Judge in the court below made it obvious that the head relief of the Applicants necessarily failed. But that the court below did not want the matter to rest there by dismissing the reliefs claimed.

The learned trial Judge, said Appellants’ Counsel then raised suo motu and commenced the consideration of what he termed “the second exception is where the report is false, malicious and devoid of foundation.” On this, Appellants’ Counsel said the court below was on a frolik of its own when it started considering a case which was not put up by the Appellants / Respondents that Exhibit CC (attached to the 1st – 16th Respondents counter affidavit) addressed to the Commissioner of Police, Akwa Ibom State was “false, malicious and devoid of foundation.”

In relation to Issue No.2, Appellants’ Counsel submitted that the decision of the court below on Exhibit CC as basis for the breach of the Applicants / Respondents fundamental right to personal liberty by the Respondents / Appellants is certainly outside the reliefs claimed in the court below by the Applicants / Respondents.

Appellants submitted on this score that the learned trial Judge is without the power to award to the Applicants / Respondents the three claims contained at pages 151 to 152 of the record, as they were not claimed by them. And as the head claim, the declaration, is improper the consequential orders in reliefs two and three on pages 151 to 152 of the record cannot stand. Appellants’ Counsel relied on the cases of Etim Ekpenyong & 3 Ors vs. Inyang Effiong Nyong & 6 Ors (1975) 2 SC 74 at 80, Nigerian Housing Development Society Ltd. vs. Yaya Mumuni (1977) 2 SC 57 at 81 and urged this court to set aside the decision of the court below.

In response to Issue No. 2 learned Counsel to the Applicants / Respondents submitted that the proper issue which this court is to examine is whether the reliefs granted are compatible with or flow from the reliefs sought. That, a calm perusal of reliefs No. 1 sought by the Applicants/Respondents shows that in substance they were complaining that the 1st – 16th Respondents/Appellants caused the Police that is 17th & 18th Respondents by their complaint to arrest and detain the Appellants/Respondents without legal justification. Counsel submitted that the Applicants /Respondents specifically stated in the grounds set out in the statement that the Appellants complaint to the Police caused the arrest and detention of the Applicants /Respondents. And that the Appellants admitted that the report to the Police Exhibit CC was written by them. Counsel relied on the case of AG Leventis vs. Akpu 30 NSCQR (Pt. 2) 631 and submitted that the learned trial Judge was bound to resolve the issue of the authenticity of the report to the Commissioner of Police as evidenced in Exhibit CC. And furthered that the findings and conclusions of the learned trial Judge were distilled from the facts and evidence submitted by the parties. Counsel concluded that the learned trial Judge was right to hold at pages 148 to 149 that the petition made by the 2nd – 16th Respondents / Appellants was false and malicious.

In dealing with Issue No.2, reference must be made to the reliefs granted by the learned trial Judge as well as the claims by the Applicants / Respondents.

The head relief granted by the learned trial Judge would be found at pages 151 – 152 of the printed record thus:

“1. It is hereby declared that the arrest of the 1st and 2nd Applicants by the Police and the subsequent threat to arrest the Applicants based on the malicious and ill motivated and trumped up report lodged by the 2nd – 16th Respondents to the Police as contained in Exhibit CC attached to their counter affidavit was unjustified and illegal and amounted to a violation of the right of the Applicants to personal liberty protected under Section 35 of the Constitution of the Federal Republic of Nigeria.”

In contrast, the head claim or relief of the Applicants / Respondents as contained on pages 57 – 62 of the record is as follows:

“2(i) A Declaration that the arrest, torture, detention and harassment of the 1st and 2nd Applicants and the continuous threat to arrest the 3rd Applicant and the subsequent harassment and frequent invitations of the Applicants as evidenced in the letter of 5/11/2004 issued by and under the authority of the 17th and 18th Respondents at the instance of the 1st – 16th Respondents and further threat or detention are without legal justification and amounts to an infringement of the fundamental rights of the Applicants and is contrary to Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.”

In the instant case, it goes without saying that the reliefs of the Applicants /Respondents as couched more especially under the head claim or the declaratory paragraph form the basis of the Applicants / Respondents claims for the enforcement of their fundamental rights before the lower court.

Now, a comparison of the head relief granted by the learned trial Judge and the head claim submitted for adjudication by the Applicants / Respondents would indeed show that it is an understatement to say that the reliefs granted by the learned trial Judge are at variance with the claims of the Applicants / Respondents. I think the reliefs granted by the learned trial Judge lied against the findings as well as the claims / reliefs of the Applicants / Respondents.

For instance, the Applicants / Respondents prayed that their arrest, detention and further threats be declared unconstitutional as they were without legal justification.

The learned trial Judge on the other hand declared the arrest and threats on the Applicants / Respondents based on the malicious and ill motivated and trumped up report lodged by the 2nd – 16th Respondents Exhibit CC as unjustified and illegal and amounted to a violation of Applicants right to personal liberty.

Meanwhile, there was no question or mention of the letter Exhibit CC in the Applicants/Respondents claim for reliefs not to talk of the parties joining issue on the letter Exhibit CC.

Therefore, the learned Counsel for the Appellants was absolutely in order when he asserted that the learned trial Judge went on a frolic of his own and outside the claims of the Applicants/Respondents when he decided to use Exhibit CC as the basis for the Applicants/Respondents rights.

Second, the Applicants/Respondents claimed that their arrest was without legal justification, the learned trial Judge however exonerated the arrestor the Police that is the 4th and 5th Respondents in this appeal 17th & 18th Respondents before the lower court) on the ground that legal justification was provided by the 4th & 5th Respondents for the arrest of the Applicants/Respondents.

The claim of the Applicants / Respondents did not for once suggest that their arrest by the Police was with legal justification. Having now provided legal justification, what was the basis of the grant of the declaratory relief by the learned trial Judge?

I agree with the learned Counsel for the Appellants that the reliefs granted by the learned trial Judge in the instant case were at variance with the claims of the Applicants/Appellants, I will add that they were also at variance with the findings of the court.

In the case of Etim Ekpenyong & 3 Ors vs. Inyang Effiong Nyong & 6 Ors (supra) at page 80 the Supreme Court per Dan Ibekwe JSC held thus:

“… we think that as the reliefs granted by the learned trial Judge were not sought by the Applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and restated by this court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law but good sense.”

See also, Nigerian Housing Development Society Ltd. vs. Yaya Mumuni (supra) at page 81.

In this respect, it must be always be borne in mind that the adjudicatory jurisdiction of a court of law depends first and foremost on the claims before the court and that to have jurisdiction, the court must restrict itself to the claim before it. A-G Anambra State vs. Uba (2005) 15 NWLR (Pt.947) 44, Egbuziem vs. Egbuziem (2005) 4 NWLR (pt. 916) 488.

Clearly, therefore the learned trial Judge was ultra vires his jurisdiction when he granted reliefs not based on the claims of the Applicants I Respondents.

Issue No.2 is resolved in favour of the Appellants.

Issue No. 3 is a variant of Issue No. 2 as it suggested that the judgment was perverse and led to miscarriage of justice.

Appellants’ Counsel referred to the findings of the learned trial Judge at page 149 of the record to the effect that:

“I belief the 2nd – 16th Respondents in writing to the Commissioner of Police manufactured this false and malicious story in order to create a new sensation and thereby persuade the Police to arrest the Applicants. Since the petition which the 2nd – 16th Respondents write (sic) to the Commissioner of Police was false, malicious and devoid of foundation, the 2nd – 16th Respondents cannot be protected under the general principle of law earlier highlighted. The 2nd – 16th Respondents caused the Police to arrest the Applicants for an offence which never existed.

The 2nd – 16th Respondents must take responsibility for the violation of Applicants right to personal liberty protected under Section 35 of the Constitution of the Federal Republic of Nigeria 1999.”

From the facts presented before the court, Appellants’ Counsel submitted first, that Exhibit CC was not part of the case of the Applicants against the Respondents.

Second, that Exhibit CC was not mentioned in the statement of the Applicants and there was no evidence proffered by the Applicant on the falsity or maliciousness of Exhibit CC.

Third, that evidence on record show that the Police from Ikot Akpan Abia led by the 17th Respondent/ Respondent only went to the Applicants/Respondents village and invited all the parties to their office on 13th September, 2004 for fact findings and to make statements to the Police. Thus, the Police did not arrest the Applicants/Respondents not to talk of arrest based on Exhibit CC.

Fourthly, the Police investigated Exhibit CC and found prima facie evidence against the Applicants/Respondents for conduct likely to cause breach of the peace, criminal conspiracy and malicious damage.

Learned Counsel for the Appellants then relied on the decision of Oputa JSC in the case of Overseas Construction Company (Nig) Ltd. vs. Greek Enterprises (Nig) Ltd. (1985) 3 NWLR (Pt. 13) 407 at 409 that “a finding of fact which is merely speculative and not based on any evidence is perverse and will invariably and inevitably lead to a miscarriage of justice.” Counsel furthered, that in this case, all the arguments raised suo motu by the learned trial Judge against the Respondents in respect of Exhibit CC in order to find the said Exhibit “false, malicious and devoid of foundation” were against the rules of natural justice and the Constitution in that the Respondents / Appellants had no opportunity and were not given one to respond to same. Relying on the case of Atoyebi vs. Odudu (1990) 6 NWLR (Pt. 157) 384 at 401, Appellants’ Counsel submitted that the duty of the trial Judge was limited to trying the issues arising from the statement of the Applicants / Respondents in support of the application to redress in the absence of pleadings. He distinguished the facts and circumstances of the present case from the case of Anambra State Environment Sanitation Authority (ASESA) vs. Ekwenem (2001) FWLR 2034 at 2053 on the ground that the case was not one based on the enforcement of fundamental rights but arose from the tort of vicarious liability. And that in the instant case having found the Police, the arrestor not liable the Appellants could also not be liable based merely on a report to the Police.

In response to Issue NO.3, Counsel to the Applicants/ Respondents emphasized that the 1st to 16th Respondents/Appellants admitted writing to the Commissioner of Police against the Applicants/Respondents and their names are set out in Exhibit CC and that he as Counsel addressed the issue of falsehood at pages 115 to 117 of the record and the fact that the Respondents/ Appellants used the Police to settle their vendetta.

Applicants/Respondents’ Counsel concluded in respect of Issue NO.3 that the Applicants/Respondents have clearly shown both by affidavit evidence and address of Counsel that the sole report made by the Respondents/Appellants to the Commissioner of Police as Exhibit CC was false, malicious and bereft of foundations. And that there was no perverseness or miscarriage of justice in the learned trial Judge addressing those issues.

It seems to me that the learned Counsel for the Applicants/Respondents misconceived the purport of Issue No. 3 and has in the process mixed up some elementary legal concepts.

First, the tendering of Exhibit CC by the Respondents/Appellants themselves and the ‘admission’ that they are the makers of Exhibit CC does not necessarily push the falsity or maliciousity of Exhibit CC as an issue between the parties. And when a Counsel as in this case claims to have addressed on a non issue, the address itself goes to no issue. This is because address of Counsel not backed up by evidence on issues at stake between the parties mean next to nothing.

Just as much as evidence including affidavit evidence offered on a matter which was not in issue between the parties is in the same position as evidence without pleadings which equally goes to no issue. Therefore, the central question in Issue No. 3 is still whether the falsity or maliciousity of Exhibit CC was in issue between the parties and the simple answer is in the negative.

Also, I agree with the learned Counsel for the Appellants that the learned trial Judge wrongly applied the decision in Anambra State Environment Sanitation Authority (ASESA) vs. Ekwenem (supra) to hold at pages 150 – 151 of the record that:

“It has been held by the Court of Appeal that those who set in motion a wrongful machinery which leads another to act in breach of a person’s liberty must be held liable for the breach of the person’s liberty as if they had done the act themselves …”

The Court of Appeal’s decision in Anambra State Sanitation Authority (ASESA) vs. Ekwenem (Supra) itself relied on the Supreme Court case of Ajao vs. Ashiru (1973) 11 SC 37 – 38. There is no doubt that the two cases were not fundamental rights cases, the claims in the two cases were founded in tort on the principles of vicarious liability. Thus in the case of Ajao vs. Ashiru the Supreme Court held inter alia at page 37 that:

“We are of the view that, even if the Police had been shown to have removed the mill at the Defendants instance, the Defendants would nevertheless have been liable for the wrongful seizure-of the mill, since they would have set in motion a ministerial act as distinct from a judicial act……..”

The ace here lies in the distinction by the Supreme Court between the setting in motion of a ministerial act as distinguished from a judicial act.

When a citizen ‘uses’ the Police or any law enforcement agency by his own command to carry out an unlawful, or illegal action, that citizen would still be vicariously liable on the basis that by commanding the law enforcement agent as a superior, he sets in motion a ministerial act.

The converse as it is in the instant case, is when a citizen reports a matter to the Police or any law enforcement agency for the exercise of their discretion including the discretion to investigate neither the Police nor the citizen would be liable for the breach of a right of arrest if the report to the Police discloses a prima facie case against the Applicant.

In the instant case, the learned trial Judge did not only misapply the decision in the ASESA case (supra) to the facts before him but was clearly in error to have decided on the falsity and maliciousity of Exhibit CC when no such issues were placed before him.

In Atoyebi vs. Odudu (supra) Olatawura JSC at page 401 said.

“A court should adjudicate on matters or issues properly submitted by the parties and not on matters not raised by the parties. The court in that circumstances will be making a case for the parties.”

Issue NO.3 is resolved in favour of the Appellants.

In Issue NO.4, the learned Counsel for the Appellants has alleged bias or its likelihood against the learned trial Judge. First, on the ground that he descended into the arena and made arguments on the issue of Exhibit CC being false, malicious and devoid of foundation. Second, on the ground that the learned trial Judge referred to the case of Nwadinobi vs. Botu (2000) 9 NWLR (Pt. 672) 220 at 228, which case was not cited by the Applicants / Respondents’ Counsel. And third, that the learned trial Judge was partial because he said in his judgment that:

“… 2nd to 16th Respondents sounded like blood thirsty and villainously violent people.”

In response, learned Counsel to the Applicants / Respondents submitted that it is not every pronouncement of a Judge that can be made the subject of an appeal. He furthered, relying on the case of Umanah vs. Attah (2007) 145 LRCN 479, that the Respondents have not alleged that the learned trial Judge was induced or partisan or had any relationship or foreknowledge of the case. And concluded that a complaint of bias or denial of fair hearing has to be strictly proved and shall not be based on mere conjecture, speculation, or the subjective personal views of the party or his Counsel.

In deciding the fourth issue, it must be quickly pointed out that the comments of the learned trial Judge that “… 2nd to 16th Respondents sounded like blood thirsty and villainously violent people” were unnecessary and uncalled for. However, an allegation of bias cannot be founded on the judgment itself; rather, it must be extrinsic to the judgment of the court. And as was pointed out by the learned Counsel to the Applicants /Respondents, a complaint of bias or denial of fair hearing has to be strictly proved and shall not be based on mere conjecture, speculation, or the subjective personal views of his party or his Counsel. See Oyedeji vs. Akinyele (2001) FWLR (Pt. 77) 970.

In the instant case the facts and comments contained in the judgment of the learned trial Judge alluded to by the learned Counsel for the Appellants could not sustain allegations of bias or likelihood of bias and did not occasion any miscarriage of justice.

Issue NO.4 is resolved against the Appellants.

Issue NO.5 deals with the lack of justification of the monetary award of general damages of N500,000.00 (Five Hundred Thousand Naira) against the Appellants in this case. Issue NO.6 from the 4th & 5th, and 6th Respondents (that is the 2nd set of Respondents) questions the propriety of the liability of the Appellants based on a mere report – Exhibit CC to the Police.

The questions that arose in both issues Nos. 5 and 6 have been adequately covered by my answers to Issues Nos. 2 and 3. There is no point to further belabour on Issues Nos. 5 and 6. Accordingly, Issues 5 and 6 are answered and resolved in favour of the Appellants and the 2nd set of Respondents respectively.

In this appeal, Issues Nos. 1 and 4 have been resolved against the Appellants.

Issues Nos. 2, 3, 5 and 6 have been resolved in favour of the Appellants and the 2nd set of Respondents.

In spite of my resolution of Issues Nos. 1 and 4 against the Appellants. The resolutions contained in Issues Nos. 2, 3, 5 and 6 are more germane to this appeal.

The learned trial Judge was in excess of jurisdiction to have based his decision on the falsity of Exhibit CC, an issue which was not part of the case of the Applicants/Respondents. And in terms of Issue No.6, a mere report to the Police could not constitute a breach of the Applicants/Respondents fundamental rights.

This appeal is meritorious and it is accordingly allowed. The Ruling and orders of Godwin J. Abraham, J. in Suit No. HKN/MISC.10/2005 delivered on the 29th day of April, 2006 are hereby set aside.

There shall be no order as to costs.

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Other Citations: (2009)LCN/3236(CA)