Emmanuel Okonkwo & Anor V. Augustine Ekwebi & Ors (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This appeal is against the judgment of the Enugu State High Court delivered on 9/3/07. Notice of Appeal was filed on 31/5/07. The appellant?s brief was filed on 5/3/09 and it was deemed filed on 13/5/09. The 1st and 2nd respondents filed their joint brief on 21/8/13 and it was deemed filed on 23/9/14. On 28/1/16, an order of this Court had issued that the appeal be heard on the appellants? brief and the 1st and 2nd respondents? briefs alone, since the 3rd to 6th respondents on record had been unwilling or unable to file their respondents? briefs. The facts that led to this appeal are as follows:
The appellants and the respondents had a dispute over a piece of land both parties being from Ireh Village, Ojoto, in Idemili South L.G.A of Anambra State. The dispute was submitted to customary arbitration but it later degenerated into violence. The 1st and 2nd respondents claimed that on Wednesday 22nd November, 2002 the appellants forcibly entered their land and started to attack them and that there was altercation and thereafter the appellants
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reported the matter to the 3rd respondent who sent his men to hunt the 1st and 2nd respondents. On 2nd December, 2006 the appellants were alleged to have procured the service of the men of Special Anti Robber Squad (SARS) who were alleged to have invaded the 1st and 2nd respondents? house, broke the doors, ransacked their entire home and arrested the 2nd respondent who was also detained at Awka. The 1st respondent was also searched for by SARS with a view to detaining him.
?The 1st and 2nd respondents filed an action under Fundamental Rights Enforcement Rules and on 19th December, 2006 leave was granted to them to enforce their Fundamental Rights to freedom of movement and right of personal liberty. The matter was fixed for 2nd January, 2007 and on 21/12/2006, the 1st and 2nd respondents filed a motion on notice and got the Chief Bailiff of the Court to serve the processes on the appellants and the 3rd and 4th respondents. The appellants filed a counter affidavit. The 3rd to 6th respondents did not file any counter affidavit.
The case was tried on the affidavits of the parties and the learned trial judge having heard the arguments of counsel
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on behalf of the parties delivered judgment on 9th March, 2007 in favour of the 1st and 2nd respondents. The Court awarded N500, 000 for infringement of privacy and another N500, 000 for unlawful arrest of and detention of the 2nd respondent with N50,000 cost. The appellants being dissatisfied with the judgment appealed to the Court of appeal.
The appellants submitted the following issues for determination:
I. Whether the suit against the 3rd and 5th respondents non juristic persons has not affected the competency of the action.
II. Whether non compliance with Order 2 Rule1(4) of the Fundamental Rights Enforcement Procedure Rules is not incurably fatal to the enforcement of the 1st and 2nd respondents? rights.
III. Whether the appellants are liable for the independent act of the police.
Differently couched, the respondents submitted the same issues for determination thus:
I. Whether the fact of few non juristic persons sued together with juristic persons who are in majority renders the whole proceeding before the learned trial judge a nullity.
II. Whether the respondents complied with Or. 2 R. 1 (4) of the Fundamental
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Rights Enforcement Procedure Rules.
III. Whether the appellants are liable for the action of the special police SARS.
I will adopt the issues as couched by the appellant since they represent the complaints against the judgment for review.
ISSUE ONE
Whether the suit against the 3rd and 5th respondents non juristic persons has not affected the competence of the action.
Learned counsel for the appellant Mr C.J Asiegbu Esq argued that the 3rd respondent is not a juristic person who can sue or be sued. Section 214 of the 1999 Constitution of the Federal Republic of Nigeria provides for the establishment of Nigeria Police Force and in Section 215 of the Constitution only the Inspector General of Police and the Commissioner of Police for each State are mentioned and therefore juristic persons. There is nowhere either in the Constitution or Police Act where the Divisional Police Officer or Assistant Inspector General of Police (A.I.G) are stated to be legal persons.
Counsel cited C.O.P, Ondo State v. Obolo (1989) 5 NWLR Pt. 120 Pg. 130 at 141 where it was held that a Divisional Police Officer is not a legal person that can sue or be
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sued. Counsel urged this Court to hold that since the 3rd and 5th respondents were non juristic persons, the action was incurably bad being not properly constituted. Counsel also argued that the alleged actions of the 3rd and 5th respondents cannot be used to indict the appellants.
?In reply to this issue, Chief S. O. P Okeke conceded that the 3rd and 5th respondents herein who were also 3rd and 5th respondents at the trial Court are non juristic persons. Counsel submitted that the status of the 3rd and 5th respondents cannot render the action at the trial Court incompetent, what can be urged is a strike out of the names of the non- juristic party as long as the one of the plaintiffs and one or two of the defendants are juristic persons, the action would still be competent and the whole trial cannot be declared a nullity. Counsel argued that since the appellants who were the 1st and 2nd respondents at the trial, and the Commissioner of Police who was the 4th respondent at trial and the Inspector General of Police who was the 6th respondent were juristic persons, who can sue and be used, the action is competent even where the mistake of joining non juristic
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persons to the suit had occurred.
RESOLUTION
A lawsuit is in essence, the determination of legal rights and obligations in any given situation. Therefore only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to the law suits before Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection.
?I agree with Chief Okeke that as a general rule only natural persons, that is to say, human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law Court. In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly or by common law, either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. See Fawehinmi v. NBA No. 2 (1989) 2 NWLR Pt. 105 Pg. 558 at Pg. 595. There is no doubt that the Court can only assume
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jurisdiction over juristic persons. If a sole party to a suit either as plaintiff or defendant dies and there is no substitution, there ends the action or the appeal. However, if there are multiple parties on both sides, the case can be competently pursued to its logical conclusion. See Olufeagba v. Abdul-Raheem (2009) 18 NWLR Pt. 1173 Pg. 384, Momodu v. Momodu (1991) 2 SCNJ 15 at 21- 22.
In this case under review, where some of the respondents at trial were non juristic persons, the decision law is that where one or some of the parties among others in an action filed by many plaintiffs against many defendants are non juristic persons lacking legal capacity to sue and be sued, that fact alone cannot render the suit incompetent, on ground of improper constitution as to the parties. In such a situation, the action cannot be maintained by or against the non- juristic parties therein. Such parties are to be struck out of the suit. See Fawehinmi v. NBA No. 2 supra, Elder S. Akpan and Ors v. Rev. NSE Umoren and Ors (2012) LPELR- 2909 (CA); Nigeria Nurses Association v. A.G.F (1981) 11-12 SC Pg. 1.
?I agree with learned appellants? counsel that a joint
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reading of Section 214 and 215 of the 1999 Constitution shows that only the Inspector General of Police and the Commissioner of Police of a State are imbued with legal personality. Therefore the 3rd and 5th respondents at the trial Court and in this Court being non juristic persons, their names are liable to be struck out. They are hereby struck out. That would however not render incompetent the whole suit and the judgment of the trial Court there being existing juristic parties to which the judgment of the trial Court could be attached. This issue is partly resolved in favour of the appellants, but does not resolve the appeal in their favour.
ISSUE TWO
Whether non compliance with Or. 2 R. 1(4) of the Fundamental Rights Enforcement Procedure Rules is not incurably fatal to the enforcement of the 1st and 2nd respondents? rights.
?The complaint of the appellants raised in this issue is that the 1st and 2nd respondents as applicants at the trial failed to comply with Or. 2 R. 1 (4) of the Fundamental Rights Enforcement Rules. Counsel submitted that non compliance in this circumstance is fatal to the competence of the application as the
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condition precedent to the hearing of the application was not fulfilled. Counsel submitted that Or. 2 R. 1 (4) requires that the contents of the affidavit must be supplied by the applicants or deposed to by him. Counsel referred us to pg. 40 and 41 of the record wherein the affidavit of the bailiff of the High Court Idemili Judicial Division, Ogidi is exhibited which shows it was sworn to by the bailiff without any impute from the applicant. Counsel insisted that non compliance with the rule is incurably fatal to the enforcement of any remedy under the rule. Counsel cited EFCC v. Ekeocha (2008) 14 NWLR Pt. 1106 Pg. 161 at 177- 178; In Re Appolos Udo (1987) 4 NWLR Pt. 63 Pg. 120 at 120; Ogwuche v. Mba (1994) 4 NWLR Pt. 336 Pg. 75 at 87.
?On the other hand, the 1st and 2nd respondents argued that pages 38 and 39 of the records disclose that the affidavit of service filed on 25th day of January, 2007 was deposed to by the 1st respondent Augustine Ekwebi for himself and with the consent of the 2nd respondent and on his behalf that the respondents had complied with the provision of Or. 2 R. 1 (4) of the Fundamental Right (Enforcement Procedure) Rules by
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starting the names, places, addresses and dates at which the respondents now appellants were served. Counsel argued further that the 1st respondent did not lift any information from any person or bailiff as he stated in his affidavit facts which he had personal knowledge of. Counsel also submitted that whether the 1st respondent lifted the said information from the bailiff or not is immaterial, the only important thing is that Or. 2 R.1 (4) Fundamental Rights (Enforcement Procedure) Rule has stated clearly and unambiguously the necessary contents of the affidavit of service and the 1st and 2nd respondents have complied with these requirements.
RESOLUTION
Or. 2 R. 1(4) of the Fundamental Rights (Enforcement Procedure) Rules provides as follows:
An affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under Paragraph (3) of this rule has not been served, the affidavit must state the fact and the reason why service has not been effected, and the
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said affidavit shall be before the Court or Judge on the hearing of the motion or summons.
Let us remember that the specific complaint of the appellants relates to the non compliance by the 1st and 2nd respondents with Or. 2 R. 1(4) set out above. I have looked at pg 38- 41 of the records. Pages 38- 39 is an affidavit of service of the motion on notice on all the respondents at the trial to the application for the enforcement of the rights of the 1st and 2nd respondents herein fundamental rights. It was sworn to by the 1st respondent herein pursuant to Or. 2 R. 1 (4) of the Rules.
?The requirements of service on all the respondents to the application before the hearing of the motion on notice were in my humble view fulfilled perfectly by the applicants at the trial Court. I have to add that the factual basis of this objection is grossly misconceived. The applicants at the trial swore to an affidavit of service of the motion through the 1st applicant. The affidavit sworn to by the Bailiffs of the Court on pg. 40 and 41 of the record indicates that the motion on notice and verifying affidavit were served on the 1st and 2nd respondents now appellants.
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All these were in fulfilment of the condition precedent to the hearing of the application. The argument that the affidavit of service sworn to by the bailiffs of Court ought to have indicated whether or not they acquired information from the applicants is a non issue in view of the fact that the 1st applicant on behalf of both applicants personally swore to an affidavit of service on 25/1/07 stating how and when each respondent to the application was served. The argument of the appellants would have found strength if the applicants had not sworn to the affidavit exhibited on pages 38- 39 of the record. In Onyemaizu v. Ojiako & Anor (2010) 1 SCNJ 204 the Supreme Court held that the filing of a verifying affidavit is personal to the applicant/1st and 2nd respondent. I am of the view that the said 1st and 2nd respondent being applicants at trial fulfilled the requirements of the law. The complaint has no factual or legal basis and the issue is resolved against the appellants.
ISSUE THREE
On this issue, Learned Appellants? Counsel argued that the respondents claimed relief (2) against all the respondents in the Court below but the facts in
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support of the relief as contained in paragraph 17 of their statement concerned only, the respondents in the Court below.
Counsel insisted that the relief cannot be claimed against the 3rd and 5th respondents being non juristic persons, and there is no direct allegation against them in person in any of the paragraphs in the affidavit. Counsel submitted that reliefs (b) and (c) were not proved against the appellants specifically. The appellants had denied in a counter affidavit the allegations contained in the 1st and 2nd respondents (herein) affidavit. The present 1st and 2nd respondents did not deny the averments in paragraphs 29 and 30 of the counter affidavit by a further or better affidavit and are deemed to have thus admitted the contents of the counter affidavit. Counsel cited A. G Ondo State v. A. G Ekiti State (2001) 17 NWLR Pt.743 Pg. 706 at 747- 750; Mandilas & Karaberis v. Lamidi Apena (1969) ALL NLR pg. 392.
?Counsel argued that they should not be penalised for reporting 1st and 2nd respondents at trial who had brought armed thugs on the land to the police who then investigated the report and entered their homes on lawful
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investigation. Counsel argued that since the 1st and 2nd respondents admitted the averments in paragraphs 29 and 30 of the counter affidavit, the only conclusion to be drawn is that the police were at the premises on lawful investigation. The police were not under the control of the appellants and their method of investigation would not be controlled or directed by the appellants.
Learned Respondents? Counsel argued that this Court must determine who invited the police into the land in dispute and what information was given to the police. Counsel reminded us that before the 1st and 2nd respondents herein were arrested, there were actions and cross actions pending before the High Court to wit:
HID 238/ 2006 BETWEEN (1) LINUS EKWEBI (2) AUGUSTINE EKWEBI VS EMMANUEL OKONKWO filed by the 1st and 2nd respondents against the 1st appellant and HID/ 246/ 2006 FIDELIS KUZUE VS (1) LINUS EKWEBI (2) AUGUSTINE EKWEBI filed by the 2nd appellant against the 1st and 2nd respondents.
?Counsel argued that the Special Anti-Robbery Squad is a special branch of the police under the 4th respondent. The squad is specially created and armed to deal with cases of
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armed robbery in Anambra State. Before the members of the squad embarked on duty, they were informed that there was a case of armed robbery involving the 1st and 2nd respondents. The appellants informed the 4th respondent that the 1st and 2nd respondents were armed robbers, so the armed robbery squad went into operation in their house, broke the doors, ransacked their entire home, arrested the 2nd respondent, detained him at Awka and went looking for the 1st respondent before the application to the trial Court.
Counsel insisted that the 1st and 2nd respondents were not armed robbers but the police were instigated to treat them as such. This action of the appellants was with the malicious intent of getting possession of the land in dispute through the unlawful intervention of the Anambra State Anti Robbery Squad. Counsel cited First Bank v. Ernest Onukwugha (2005) 16 NWLR Pt. 950 Pg. 120, Okonkwo v. Ogbodu & Anor (1996) 5 NWLR Pt. 449 Pg. 420 at 422.
RESOLUTION
The matter of the legal status of the 3rd and 5th respondents has been settled in issue one. The appellants swore to a counter affidavit on page 42- 47 of the record. In paragraphs
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29- 30 of the said counter affidavit, the appellants averred as follows on page 45- 46 of the record:
?29. That the applicants cordoned off the piece or parcel of land, which is in possession of the 2nd respondent, with thugs who were armed to the teeth with gun and other lethal weapons shooting sporadically in the air and threatening to kill the respondents should they be seen on the land again. This necessitated the report of the crime to the police.
30. That save that the men of the Special Anti-Robbery Section (SARS) came and arrested the 2nd applicant in the ordinary course of investigation of a crime, and dropped invitation for the 1st applicant to report at their office at Awka, the 1st and 2nd respondents deny breaking the doors and ransacking the entire home of the applicants as alleged in paragraph 17 of the facts and grounds upon which application is brought.?
?On page 29 of the record the facts and statement of the grounds on which the application to enforce fundamental rights verified by affidavit was based in paragraphs 14- 20 set out below:
?(14) That was the scenario when on Wednesday 22nd November, 2006 the
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1st and 2nd respondents forcibly entered the land and started to attack the applicants.
(15) There was an altercation naturally when the applicants were defending themselves and their property.
(16) That 1st and 2nd respondents? using their financial wealth went and reported to the 3rd respondent who spread his men and started hunting for the applicants.
(17) On Saturday the 2nd day of December, 2006 the 1st and 2nd respondents procured the services of men of Special Anti- Robbery Squad (SARS) under the 4th respondents all of them invaded the house of the applicants, broke the doors and ransacked the entire home of the applicants and arrested the 2nd applicant and took him to Awka where he is detained.
(18) The respondents are up till now chasing the 1st applicant and threatening to deal with him whenever he is seen.
(19) The applicants are now living in danger because the 1st and 2nd respondents wrote a fraudulent petition alleging threat to life which the 3rd to 6th respondents know to be false yet act on it.
(20) The respondents know fully well that this is a land dispute.?
?The point made by the appellants is
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that even though they swore that the 1st and 2nd respondents hired armed thugs to resist possession of the land, the 1st and 2nd respondents did not swear to an affidavit to counter this fact. In my humble view, that would not affect the merit of the application in the circumstances of this case. Even if the trial Court believed that the 1st and 2nd respondents herein had armed hired thugs on the land in dispute, it would not excuse wrong information to SARS to the effect that the 1st and 2nd respondents herein are armed robbers to necessitate the forceful invasion of their homes and the arrest of the 2nd respondent. I agree that the anti robbery squad could ordinarily not have been put into operation without a report that the 1st and 2nd respondents were involved in acts of armed robbery. I would have tilted to the view of the appellants if the divisional policemen were sent to the land in dispute to disarm the alleged gun toting thugs in possession of the land in dispute in order to avert a breakdown of law and order and arrested the 1st and 2nd respondents herein on the land in such circumstances. Then the subsequent arrest and detention of the 1st and 2nd
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respondents in that circumstance would have been lawful. The involvement of the Anti Robbery Unit of the police in what was purely a land dispute was done as learned respondents? counsel said, with malus animus- in bad faith.
?I cannot find fault in the clear and erudite reasoning of the learned trial judge on page 63- 64 of the records as set out below:
?There is authority that where the police act independently pursuant to a report made to them by a citizen, the citizen cannot be liable for the actions of the police. See Mandilas and Karaberis v. Lamidi Apena (1969) ANLR 392 (reprint). For such a defence to avail the respondents they must prove that they only made a genuine report to the police. It must also be shown that the police embarked on an independent investigation. In the instant case, there is no affidavit from the police to show that they were engaged in any lawful investigation. More importantly there is no evidence of the report lodged with the police by the 1st and 2nd respondents. There is no entry in any police crime diary. There is simply no evidence of any police investigation at all. The only logical conclusion is that
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the police were engaged by the 1st and 2nd respondents as a resort to self help and to serve their interest. That being so the arrest and detention of the 2nd applicant is clearly unlawful and a violation of his fundamental rights.
The applicants have alleged that when the police came to arrest them they ransacked their premises. They claimed that their right to private and family life was thereby infringed. The 1st and 2nd respondents have denied that allegation in their counter affidavit. That is a denial I don?t think they are capable of asserting. The reason is that it is for the police men to deny that it never happened. Besides they appeared to have misunderstood the applicants? allegation. The allegation is that the invasion of their residence was by police men. The 1st and 2nd respondents denied acts attributed to the police. Consequently on the evidence before the Court, I find that the police men procured by the 1st and 2nd applicants, broke the door of the applicant?s house and ransacked same.?
?There is no doubt in my mind that the police were given wrong information in order to procure the arrest from their homes
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and detention of the 2nd respondent herein. In the first instance, the 4th and 6th respondents both at trial and in this Court are juristic persons recognized by the Constitution. It is settled that the onus of proving that an arrest and detention was lawful rests on the respondents. See Ejefor v. Okeke (2000) 7 NWLR Pt. 665 Pg. 363; Agbakoba v. SSS (1994) 6 NWLR Pt. 351 Pg. 475; Oceanic Securities v. Alh. Bashir Olaide Balogun & Ors (2012) LPELR- 9218 (CA). The 4th and 6th respondents did not contest the application or joined issues in this appeal despite repeated service of process. Suffice it to say that the appellants maliciously put the law in motion against the 1st and 2nd respondents herein which led to the invasion of their privacy and detention of the 2nd respondent herein. The 3rd issue is resolved against the appellants.
The applicants had claimed N5,000,000.00 for the violation of their fundamental rights. The award by the learned trial judge of N500, 000 for each head of claim has not been challenged by any ground of appeal.
?In the circumstances, the substance of all issues having been resolved against the appellants, the appeal
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fails. The judgment of Hon. Justice J. I. Nweze of the Enugu State High Court delivered on 9/3/07 in Suit No:HID/MISC139/2006 is hereby affirmed. Appeal Dismissed. N100,000 costs to the 1st and 2nd respondents against the appellants.
Other Citations: (2016)LCN/8880(CA)
