Mr. Edet Asuquo Nkanga & Ors V. Obong Effiong E. Etefia & Ors (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
This is in respect of an appeal against the decision of the High Court of Akwa Ibom State sitting at Uyo in the Uyo Judicial Division delivered by ANDREW E. OKON J. on the 19th November, 2012 in respect of an application for the enforcement of fundamental rights brought by the respondents against the appellants.
In the said proceedings, the respondents alleging that their rights had been infringed by the appellants sought the following reliefs from the trial Court:
1. An order restraining the respondents by themselves, servants, agents or privies or whosoever acting on their behalf from arresting or further re-arresting, intimidating, harassing, inviting or re-inviting the applicant to and detaining them at any police station wherever in Nigeria in connection with the subject matter of this case.
2. A declaration:
(a) That the act of subjecting the appellants to arrest or threats to arrest, harassment, intimidation, assaults and abuses is a gross violation of the applicants, fundamental rights as enshrined in Sections 34, 35 and 37 of the
1
Constitution of the Federal Republic of Nigeria, 1999.
(b) That it is unlawful for the 1st respondent to employ the services of the 2nd-5th respondents to unlawfully, maliciously and baselessly arrest and detain the applicants in relation to a purely civil matter and compelling the applicants to continue to visit the 5th respondent?s office, without preferring any charge against the applicants.
(c) That the totality of the action of the respondents is illegal, harsh, oppressive, vindictive, unlawful, unconstitutional and therefore void.
(d) That the respondents jointly and severely should pay the applicants the sum of N10,000,000.00 (Ten million Naira) only being exemplary damages for the infraction of the fundamental rights of the applicants,
(e) That the respondents should pay the applicants the sum of N250,000.00 being the money illegally, fraudulently and forcefully obtained from the applicants in lieu of granting bail to the applicants.
Upon being served, the respondents filed affidavit depositions upon which the parties joined issues at the end of which their counsel adopted their written addresses. In a considered
2
judgment, the learned trial Judge exonerated the 2nd-6th appellant but found against the 1st appellant and ordered him to pay compensation and costs to the respondents.
Apparently dissatisfied with the turn of events, the appellants invoked the appellate jurisdiction of this Court via a notice of appeal filed on 31st January 2013 containing 6 grounds. The said notice of appeal was subsequently amended via the amended notice of appeal filed on 17th March, 2014 equally containing 6 grounds.
The listing of the parties in the amended notice of appeal is particularly confounding seeing that the 2nd -6th appellants expressed no dissatisfaction with the judgment of the trial Court and both the initial notice of appeal as well as the amended notice of appeal indicate that the dissatisfied party was the 1st appellant. That the 2nd-6th appellants were co-respondents with the 1st appellant at the trial Court did not automatically translate to their being co-appellants when they did not complain against the judgment as can be gleaned from the grounds of appeal.
However, since the briefs were filed and the appeal contested as the parties were
3
listed in the notice of appeal, I shall for ease of reference not alter this. Such an unnecessary mix-up should however be avoided by counsel.
At the hearing of the appeal Mr. Ukpong the learned counsel for the appellants adopted their brief filed on 18th August, 2014 but deemed properly filed and served on 24th March, 2014 as well as the appellants’ reply brief filed on the 10th November, 2015 as the arguments of the appellants in this appeal.
Although the respondents were unrepresented at the hearing of the appeal, their brief filed on the 10th October, 2014 settled by Victor Esu Esq. was deemed adopted as their arguments in this appeal pursuant to Order 18, Rule 9 (4) of the Rules of this Court.
The appellants in a rather lazy manner submitted 6 badly crafted issues for determination from each of the 6 grounds in the amended notice of appeal as follows:
1. Whether the main root of problem between the 1st respondent and the respondent was the administration of the market in the village.
2. Whether the 1st appellant would be held personally liable for signing a letter under his capacity as a president of an association.
<br< p=””
</br<
4
3. Whether the D.P.O. at Itam police Station investigated the several allegations contained in the petition of the respondent.
4. Whether the appellant petition alleging commission of crime and giving false information and threatening violence to the A.I.G. Calabar was made in good faith.
5. Whether the trial Court was right in relying on the applicant?s affidavit in support of the motion ex-parte in giving judgment when the said affidavit was not served on the 1st appellant alongside the motion on notice.
6. Whether the judgment of the lower Court was against the weight of evidence.
The respondents on their part formulated a single issue for determination as follows:
Whether the trial Court was right in the appraisal of the evidence before him which culminated in the Court holding that the 1st respondent/appellant acted in bad faith when he caused the police at Zone 6, Calabar to arrest and detain the applicants/respondents and that the 1st respondent/appellant was thereby liable in damages to the applicants/respondents
Although this appeal was initiated by the appellants, this is one of those rare occasions when
5
the respondents capture what is in issue in the appeal better than the appellants who initiated the appeal and I shall accordingly adopt the lone issue formulated by the respondents in determining this appeal.
Mr. Ukpong for the appellants contended that from the unchallenged averments of the appellants before the trial Court, the basis of the complaint of the 1st respondent was the allegation of false information and not the market dispute alluded to by the learned trial Judge.
He submitted that the 1st respondent acted at all relevant times in his capacity as president of Nung Oku Etefia Development Association and ought not to have been held personally liable.
He argued that there was evidence before the trial Court that the complaint of the 1st appellant was investigated and found substantiated by the police at Itam who however failed to charge the culprits to Court and that the further complaint to the 6th appellant was in good faith. He urged the Court to hold that citizens could not be held liable for reporting crimes. He referred to FAJEMIROKUN VS CBN but gave incomplete citation.
He pointed out that the respondents
6
failed to serve the statement and affidavit used in the motion ex parte thereby depriving the trial Court of jurisdiction. He referred to OGWUCHE VS MBA (1994) 4 NWLR (PT 336) 76 and ATAKE VS AFEJUKU (1994) 9 NWLR (PT 368) 379 at 400.
He highlighted the case presented by the appellants before the trial Court and urged the Court to hold that the judgment of the trial Court was against the weight of evidence. He referred to MOGAJI VS ODOFIN (1981) 1 SC 101 and SHA VS KWAN (2000) FWLR (PT 11) 1803.
He urged the Court to allow the appeal.
In response, Mr. Esu submitted that the learned trial Judge duly evaluated the adduced facts and made findings that the 1st appellant’s petition to the 6th appellant was actuated by malice thereby making the 1st appellant liable. He referred to ONAH VS OKENWA (2010) 7 NWLR (PT 1194) 512 at 518 and FAJEMIROKUN VS CBN (NIG) LTD (2009) 5 NWLR (PT 1153) 588 at 595-590.
He pointed out that the learned trial Judge did not consider the liability of the 1st appellant from the perspective of his position as president of Nung Oku Etefia Development Association and that the disclosed facts justified the
7
inference of the learned trial Judge that the 1st appellant was forum shopping.
Mr. Esu further submitted that the processes said not to have been served were in actual fact served on counsel in open Court and referred to the relevant page in the record of appeal. He then concluded by submitting that the judgment of the learned trial Judge was in accord with the weight of evidence placed before the Court and that the appellants failed to show how the said judgment was in any way perverse.
He urged the Court to dismiss the appeal with costs.
In his reply brief, Mr. Ukpong reiterated his earlier submissions and urged the Court to discountenance the submissions of his colleague for the respondents and accordingly allow the appeal.
The circumstances here seem a bit straightforward. The 1st appellant as leader of an association in his Ikot Oku Ikono Community in Akwa Ibom State, called Nnung Oku Etefia Development Association had embarked on what could be described as a local accountability and resource control agenda against the traditional and institutional leadership of the community as can be seen from Exhibit A to the
8
respondents? originating application before the trial Court on pages 14-15 of the record of appeal.
Apparently not taking this threat to their authority lightly, the traditional and institutional leadership of the community in unison brought in the police against the 1st appellant as can be gleaned from Exhibits B1-B2 thereof on pages 16-21 of the record of appeal. Exhibit B1 written on 4th July, 2009 was an application for the arrest of the 1st appellant while exhibits B2 which followed on the 25th July, 2009 listed some very grave criminal allegations against him.
The 1st appellant reacted to this first with the letter to the Clan Head, Exhibit C of 14th September, 2009 on pages 22-24 which attracted a response from the Clan leadership on 6th October as seen in Exhibit D after the arrest of the respondents on the 29th September based on the petition of the 1st appellant to the 6th appellant via a letter dated 15th September, 2009 exhibited by the 2nd to 6th appellants to their counter-affidavit at trial and seen on page 69 of the record of appeal.
Evidently, Exhibit B2 written by the respondents to the DPO, ?D’, Division,
9
Itam was written over 6 weeks before the complaint of the 1st appellant to the 6th appellant, the Assistant Inspector General of police, Zone 6, Calabar. The only account of the various police investigations was given by the 3rd appellant who investigated the 1st appellant’s petition at the Zone 6 Police Headquarters and deposed to a counter-affidavit contained on pages 64-70 of the record of appeal. In paragraph 8 thereof, she deposed as follows:
(8) That the preliminary investigations I carried out after obtaining statement from independent witnesses reveals that:
(a) The 1st Respondent is the community chairman of Nung Oku Etefio in Ikot Oku lkono.
(b) The community is divided into various factions.
(c) The Applicants conspired and gave false information, first to the police at Itam police Station and cause the 1st Respondent to be arrested and second to the State Security Service Uyo that the 1st Respondent is in possession of fire arms, a kidnapper and a cultist.
(d) The Police at Itam police Station and S.S.S. investigated the allegation and found it to be false.
(e) The preliminary investigation I carried out in zone 6
10
Police Headquarters also reveals that the allegations false and the Applicants are looking for a way to remove the 1st Respondent as the community chairman and silence him.
Although there was no evidence that the Clan Council took steps to invite the 1st appellant before the arrest of the respondents/applicants and the trial Court was not favored with a report of the investigation by the DPO, ?D” Division, Itam or the S.S.S. by the respondents/applicants which contradicted the averments of the 3rd appellant/respondent who unlike the 1st appellant and the respondents was not a party to the communal dispute, the learned trial Judge stated as follows on lines 10-19 and 29-32 of page 145 and lines 1-6 of page 146 respectively of the record of appeal thus:
I had said earlier that the problem between the applicants and the 1st respondent had to do with the administration of Okpokpo market. It is a matter the Clan Council could have handled effectively. But the 1st respondent did not give the council any chance. I am not sure the DPO Itam could have concluded the investigation of all the issues raised by the applicants in their Exhibit B2 between
11
25th July, 2009 when the Exhibit was written and 14th September, 2009 when the 1st respondent and his supporters asked, in Exhibit C copied to the DPO, that the Clan Council should intervene in the matter. In my view, the 1st respondent was shopping for a police formation that was likely to be favorably disposed to him…. .
In this case, I have already said so much on the facts of the case and the bone of contention between the applicants on one hand and on the other hand the 1st respondent who got the 2nd, 3rd and 5th respondents to arrest and detain the applicants until they were released on bail. Having regard to the circumstances of this case, my view is that the report by the 1st respondent to a high ranking Police formation like Zone 6 Calabar in respect of a mere misdemeanor like allegedly giving false information to the police and threatening violence, was not made in good faith. The report was intended to get the said three respondents to arrest and detain the applicants.
With due respect to the learned trial Judge, I do not see how these observations and findings could be related to the affidavit evidence before him. They moved from
12
inferences from adduced evidence to speculations.
Those findings formed the basis of the conclusion of the learned trial Judge that the 1st appellant/respondent did not act in good faith. The learned trial Judge in making the above wittingly or unwittingly indicted and impugned the integrity of the 2nd to the 6th appellants who were public officers, acting in their official capacities, without any evidential basis. According to OGUNBIYI, JSC:
The law is further well pronounced that evaluation of evidence and the ascription of probative value to evidence are the primary functions of a Court of trial, which heard, saw and duly assessed the witnesses. The duty of the Court of Appeal is to find out whether there is evidence on record on which the trial Court could have acted.
Appellate Court can also in perverse findings tamper with the evaluation of evidence or where on the face of the record it is clear that justice has not been done in the case. See Lawal V. Adekoya (1974) 6 SC 83 and Balogun V. Akanji (1988) 1 NWLR (Pt 70) 301. See also Nsirim V. Nsirim (2001) FWLR (Pt 96) P. 433 at 445. In other words, the appellate Court will not interfere
13
with the finding of fact made by the trial Court unless it is shown that such finding does not derive from the evidence before that Court or is not related thereto. See again Ogundule V. Chief Olabode (1973) 2 SC 71. See GBEMISOLA VS BOLARINWA (2014) 57 NSCQR 510 at 557.
I hold that the findings and conclusions of the learned trial Judge that the 1st appellant made his report to the 2nd-6th appellants actuated by malice was unsupported by the adduced affidavit evidence and resulted in miscarriage of justice in this case. The decision of the learned trial Judge was perverse and should not be allowed to stand.
I therefore resolve the lone issue in favour of the appellants.
I find merit in this appeal and I accordingly allow it.
The judgment of the trial Court herein is hereby set aside.
Cost of N50,000.00 is awarded in favour of the appellants against the respondents.
Other Citations: (2016)LCN/8865(CA)
