IN THE COURT OF APPEAL OF NIGERIA
On Thursday, The 27th day of March, 2014
1. CHIEF SUNDAY EFFIONG UDO ................. Appellants
2. MR. ELIJA ESSIEN
3. SOLOMON SUNDAY SOLOMON
4. UDO NSEABASI SOLOMON
5. OFFICER IN CHARGE STATE CID, POLICE HEADQUATERS, IKOT AKPAN ABIA
6. COMMISSIONER OF POLICE, STATE POLICE COMMAND IKOT AKPAN ABIA
1. CHIEF SUNDAY KOFEE ESSIEN .............. Respondents
2. TOM ISAAC UDO
3. ENO ELIJAH ESSIEN
4. JOSEPH JAMES ESSIEN
M. Mkpandiok Esq. for Appellant
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Akwa Ibom State sitting in Uyo delivered on the 16th of April, 2012.
The Respondents (as Applicants), instituted an action at the High Court against the Appellants (as Respondents) seeking some declaration for the infringement of their Fundamental Rights allegedly violated by the Appellants. The 1st - 3rd Appellants filed their Counter Affidavit and a Written Address. The 4th - 6th Appellants did not file any process.
The matter was, therefore, contested on the pleadings of the Respondents and the 1st - 3rd Appellants. At the conclusion of the trial, the learned trial judge entered judgment for the Respondents' restrained the 5th and 6th Appellants from arresting the Respondents and awarded the sum of N500,000.00 (Five Hundred Thousand Naira) damages against the Appellants.
Aggrieved, the Appellants filed a Notice and four (4) grounds of Appeal urging this court to set aside the judgment of the lower court.
The Appellant filed his brief and distilled three issues for determination, namely thus:
(i) Whether in the light of the facts and evidence before the court, the complaint of the 1st Appellant to the 6th Appellant had disclosed a prima facie case against the Respondents to justify their arrest.
(ii) Whether the failure of the learned trial judge to evaluate the evidence before the court properly has occasioned a miscarriage of justice.
(iii) Whether Exhibit AE 1 was admissible in law and having regard to the fact that the learned trial judge speculated on where the Respondents were arrested and the number of days or period they were detained and where.
The 1st - 4th respondents filed no brief. The appeal was, however, heard on the 1st - 4th Appellants' brief.
The Appellants counsel submitted as follows that:
"The 1st - 3rd Appellants are indigenes of Ntuk Otong Village, Asutan Ekpe in Ibesikpo Asutan Local Government Area, Akwa Ibom State, so are all the Respondents. The 1st - 3rd Defendant/Appellant in the Counter Affidavit deposed thus:
1. That I am the Village Head of Ntuk Otong and the 1st Respondent herein. Udo Nseabasi Solomon is not a native of Ntuk Otong.
12. That in further answer to the paragraph, we state that the 1st Applicant has been parading himself as Village Head of Ikot Abia Essien village, while the 2nd Applicant parades himself as Deputy Village Head of Ikot Abia Essien. Attached and marked Exhibit A is a letter signed by 1st and 2nd Applicant respectively.
13. That on enquiry from Ibesikpo Asutan Traditional Rulers Council and Clan Head of Asutan both confirmed that Ikot Abia Essien does not exist. Ikot Abia Essien is a street in Ntuk Otong. Letters from Traditional Rulers Council and Asutan Ekpe Clan Council of Chiefs are hereby attached and marked as Exhibit B and C respectfully.
14. That based on Exhibit A above, the 1st and 2nd Applicants use(s) other Applicants to cause breach of peace in the village.
15. That the Applicants threatened my life when embargo was placed on harvesting of village palm fruits. I reported the activities of the Applicants to Asutan Ekpe Clan Council of chiefs. The Applicants disobeyed the order of Clan Head whereby I reported the activities of the Applicants to the 6th Respondent".
In response to the Counter Affidavit of the 1st - 3rd Appellants herein, on the specific allegations in the paragraphs above, the Respondents, in a rather sweeping manner in their further and Better Affidavit, deposed in paragraph 4 and stated thus:
4. That paragraph 12, 13, 14, 15, and 16 are totally false and untrue. Those letters were written when in the former administration of the state efforts were made to gazette lost and un-gazetted village. When a directive was issued against the move, nothing again happened.
Counsel submitted, that, there was no denial of the facts in paragraphs 1, 4 and 5 of the Counter Affidavit of the 1st - 3rd Appellants, particularly paragraphs 4 and 5, which clearly debunked the allegation that, the 1st Appellant had interest in the Respondents' palm fruits plantation. The failure to deny the existence of three families in Ntuk Otong Village, which comprises the Respondents, strengthened the case of the 1st - 3rd Appellants that, the Respondent were always out to oppose and undermine the authority of the 1st Respondent as the Village Head of Ntuk Otong and to affirm and confirm the numerous attempts by the Respondents to unconstitutionally and selfishly assert their autonomy, hiding under the land dispute, to cause break down of law and order in the village.
This degenerated into breach of peace in the community. The law is that any averment in an affidavit which has not clearly, unequivocally and directly been denied is deemed admitted. See F.A.A.N v. W.E.S. (Nig) Ltd (2011) All FWLR (Pt. 574) 42 @ 55 H. 3
Appellants' counsel submitted further that the facts in paragraphs 1, 12, 13, 14 & 15 of the Counter-Affidavit of the 1st - 3rd Appellants were more than relevant to the just determination of the issues before the trial court.
The Respondents did not successfully challenge the depositions, of the Appellant so, the court ought to have believed same and acted on them. See CHABASAYA v. ANWASI (2010) All FWLR (Pt. 528) 839 @ 851 H. 6 where the Supreme Court held as follows:
Evidence that is relevant to the issue in controversy and is not successfully challenged, contradicted and discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Judge in the determination of the case before it.
Counsel for the Appellants stated that there was a duty on the 1st Appellant to lodge a complaint to the 5th and 6th Appellants on the threat to his life, to avert a breakdown of law and order in the community.
The duty of maintaining peace in the community governed by the 1st Appellant is both statutory and constitutional. See Sec. 17(2) (d) of the Traditional Rulers Law, Cap.134 Laws of Akwa Ibom State, 2000.
Counsel submitted that the decision whether or not "any situation or conduct" is capable of causing a breach of the peace is solely the duty of the 1st Appellant as Village Head. Exhibits A & B annexed to the Counter Affidavit and admitted by the Respondents in paragraph 4 of their Further and Better Affidavit strongly established 1st Appellant's entitlement at law to lodge a complaint against the Respondents. See Section 37 of the Traditional Rulers Law, Cap.134, Laws of Akwa Ibom State, 2000 which provides as follows:
"A person who
(a) Purports to install another person, or
(b) Allows himself to be installed a paramount Ruler, a Clan Head or a Village Head without first obtaining official recognition in writing; is guilty of a felony and liable on summary convicted to a fine of Ten thousand Naira or imprisonment for two years or both".
The contention of the Respondents at the lower court was that the 1st Appellant forbade them from harvesting palm fruits from their parcels of land. They refused to heed that order and the 1st Appellant invited the 5th and 6th Appellants to arrest them. The 1st - 3rd Appellants denied ever lodging a complaint for the arrest of the Respondents.
By disobeying the lawful order of the 1st Appellant against harvesting palm fruits in the village, the Respondents committed a criminal offence.
See S.42 (1) of the Traditional Rulers Law, Cap. 134, Laws of Akwa Ibom State. Which provides:
"Any resident of a village who refuses, fails of neglects to comply with any lawful order of the Village Head made under sub section (1) or sub section (2) of section 18 of this Law or any person who incited any resident of a village not to comply with the order aforesaid is guilty of an offence."
The Learned appellants' counsel submitted that the learned trial judge was in grave error when he held thus:
"The fact that the dispute over the farmland went to Court and judgment was given in favour of the Applicants made the farmland to be a special case and no embargo should have been placed against the Applicants from harvesting palm fruits from the farmland when no court made an order for stay of execution. The resistance of the Applicants was not a criminal offence" (See page 59 of the record of Proceedings) Emphasis supplied.
Counsel submitted that a special case is not a subject matter of the Fundamental Rights Procedure Rules, which violates a constitutional or statutory provision. The position of the law is thus; See NWANA v. A.G. FEDERATION (2010) 15 WRN 178 @ 189 H.3 where it was held that:
An arrest or detention the subject matter of the fundamental Rights Procedure Rules is only that which violates any provision in the Constitution or any Federal or State Law for the time being in force.
The case would have been different if the Respondents had led evidence to show that the order was made against them only and no other. Therefore, the justification of their resistance by the court below negates the hallowed principle of the rule of law. See AFRIBANK v. ONYIMA (2004) 2 NWLR (Pt. 858) 654 @ 679 H.12 which held that
The 1st Appellant had a duty to lodge a complaint to the 5th and 6th Appellants against the Respondents. Whatever 5th & 6th Appellants decided to do with the information was their Responsibility. See Milad Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) page 621, FAJEMIROKUN v. CBN LTD (2009) 21 WRN 1 @ 10, where it was held by the Supreme Court that:
It is the duty of citizens of this country to report cases of commissions of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.
The information provided by the 1st Appellant to the 5th and 6th Appellant was privileged. 1st - 3rd Appellants were entitled to the protection of the law against any act of arrest and detention. See OCEANIC SECURITIES INT'L LTD v. BALOGUN (2012) All FWLR (Pt. 643) 1880 @ 1901, where the Court of Appeal per Mbaba, J.C.A. held thus:
In the case of P.G.S.S Macchi v. Igbudu (2005) 12 NWLR (Part 940) 543 at 574, it was held that any complaint made or information given to those interested in investigating a matter (the police) will in the interest of the society be privileged, once there is a reasonable belief that a crime has been committed.
DURU v. NWANGWU (2006) 5 SCNJ 394 @ 402.
It follows, therefore, that where an individual (in this case the 1st Appellant) had lodged the facts of his complaints to the police and the police had thereupon, on their own, proceeded to carry out arrest and detention, then the act of imprisonment is that of the police.
Counsel for the Appellants also submitted that the learned trial judge erred when he held that the 1st - 3rd Appellants' report to the police was not shown to be in good faith. Counsel opined that, it is a wrong approach to the application of the law. Indeed the law is settled that:
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.
See BASSEY v. AFIA (2010) All FWLR (Pt. 531) 1477 @ 1500-1501 H.5, EZEADUKWA v. MADUKA (1997) 8 NWLR (Pt. 5180) 635.
The learned trial judge wrongly applied the decision in ONAH v. OKENWA (2011) All FWLR (Pt. 565) 357 where Jauro, JCA held inter alia:
Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the Police to investigate, as investigation and detection of crime is one of the primary duties assigned to the police under section 4 of the Police Act. (See Onah v. Okenwa (supra) at 375).
See also the holding of Nwodo, J.C.A. (of blessed memory)
Every person in Nigeria who feels an offence has been committed has a right to the Nigeria Police Force. Once that right of complaint to the police who are custodians of order in the society is exercised, the right shifts to the police to exercise statutory powers under Section 4 of the Police Act. The power conferred on the police under the Police Act includes investigation, arrest, interrogation, search and detention of any suspect. In the process of investigation, the police is enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the persons complained against. This is the rationale for shifting the onus of justification of attest and detention on the police. Once an applicant is aggrieved that his fundamental right under the constitution has been infringed, commences an action in Court and establishes the claim on arrest and detention, the police take, once a complaint has been made to them must be based on facts which are reasonable and justifiable.
Since the Respondents claimed that the 1st -3rd Appellants instigated the 5th and 6th Appellants to arrest and detain them, what was required was facts to support that, the allegation was made mala fide. See ONAH v. OKENWA (supra) @ 377. There was no evidence before the lower court to support such allegation. The 1st - 3rd Appellants cannot be held liable for any arrest and detention. Counsel urged the court to resolve Issue 1 in favour of the Appellants.
On this issue, counsel for the Appellants submitted that the learned trial judge failed to evaluate all the pieces of evidence emanating from the affidavit before him. See ABUBAKAR v. YAR'DUA (2009) 5 WRN 1 @ 128 H.17.
He stated that the findings and conclusions of the learned trial judge was perverse. He heavily relied on the Affidavit of the Respondents and glossed over other facts. He, therefore, misapplied the evidence before him against the 1st - 3rd Appellants. See BUHARI v. INEC (2009) 7 WRN 1 @ 174 H.73. Where the Supreme Court held as follows:
A perverse judgment is a wrong, unreasonable or unacceptable finding, having regard to the evidence before the Court. A perverse finding is one not supported by evidence before the Court. It is a finding raised on a wrong assessment of the evidence before the Court. A finding of fact based on exaggerated or bloated evidence on the part of the trial Court could be perverse. So too finding of fact borne out from addition or subtraction from the evidence before the Court.
Paragraph 7 of the Counter Affidavit contained basic or specific denial of the allegations in paragraphs 9 & 10 of the Respondents' Affidavit and does not require any subordinate facts to support it. See OKAGBUE v. ROMAINE (1982) All NLR (Pt. 1) 108 @ 118 H.7, UGWU v. ARARUME (2008) 155 LRCN 164 @ 212 H-H.
The learned trial judge misapplied the facts before him when he relied on an alleged threat to eliminate the Respondents against weighty denial and the law. See EZEADUKWA v. MADUKA (1997) 8 NWLR (Pt. 518) 635 @ 662 H.3. By the evidence before the trial court, there was nothing to show that the 1st Appellant attempted or manifested the intention to kill the Respondents. In civil cases, the burden of proof lies on the person who will fail if no evidence was adduced by either side. See Sections. 132, 137 Evidence Act 2011. MANNI v. SHANONO (2006) 4 NWLR (Pt. 969) 132 @ 156-157 H.7, ARCHIBONG v. ITA (2004) 2 NWLR (Pt. 858) 590 @ 646-647 H.2.
Evidence should be cogent and strong enough to sustain the case. See OGOEJEOFO v. OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205 @ 221 H.5 UBA PLC. v. LAWAL OSULA (2003) FWLR (Pt. 178) 1080 @ 1088 H.3.
Where a court is called upon to exercise its discretion or to decide an issue based on the affidavit evidence before it, it is duty bound to evaluate the affidavit before reaching a decision one way or another. FGN v. AIC LTD (2006) 4 NWLR (Pt. 970) 337 @ 356 H.2 & 3.
The trial court improperly evaluated the evidence before it, wrongly shifted the burden of proof on the appellants and thereby occasioned a miscarriage of justice. This Honourable court can set it aside. OLOHUNDE & ANOR. v. ADEYOJU 6 SCJE 150 @ 182-183.
Counsel urged the court to set aside the judgment of the court below and allow this appeal.
Counsel for the Appellants submitted that arrest is not severable from detention. There cannot be detention without arrest. MCLAREN v. JENNINGS (2003) 3 NWLR (Pt. 808) 470 @ 483 H.5.
In both their affidavit in support and the Further and Better Affidavit, the Respondents did not state where they were arrested and detained and for how long.
Counsel further submitted that failure to prove detention implies that there was no arrest capable of violating the Fundamental Rights of the Respondents. One does not put something on nothing and expect it to stand. It will fall. See MCFOY v. UAC LTD (1962) AC 152 @ 160, A.G., ADAMAWA STATE v. A.G. FEDERATION (2006) 135 LRCN 911 @ 981 H.5
It is settled law that it is not enough for a plaintiff to merely state that an act is illegal and unconstitutional. He must show how his civil rights and obligations have been breached or threatened.
In an application for the enforcement of Fundamental Human Rights, particularly where arrest is alleged, the Applicant must prove specific detention and duration. It is not a matter for speculation.
The absence of such specific deposition by the Respondents show that the lower court engaged in speculation and filled the gap in the evidence that was not before it. See. GUSAU v. UMEZURIKE (2012) All FWLR (Pt. 655) 291 @ 318.
The law is that, a party who seeks a court order must do all in its power to establish that it deserves such an order. See NACHPN v. MHWUN (2010) 2 NSCR 101 @ 138.
Counsel urged this court to hold that the facts before the lower court did not support the Respondents' claim against the 1st - 3rd Appellants. See OLALOMI v. NIDB LTD (2010) 1 NSCR 1 at 35.
Counsel for the Appellants submitted that the award of N500,000.00 damages against the Appellants by the court below had no foundation in law. The duration of detention is invaluable to the assessment of the quantum of damages. See GUSAU v. UMEZURIKE (supra) @ P.319.
In support of their Affidavit, the Respondent exhibited (Exh. AE1) a copy of an undated petition purportedly addressed to the 6th Appellant on the subject matter of their application. It is the law that unsigned and undated document has no evidential value. See GLOBAL SOAPS & DETERGENT IND. LTD v. NAFDAC (2011) All FWLR (Pt. 599) 1025 @ 1047.
Counsel submitted that the document was legally inadmissible evidence to the extent of its irregularity and ought not to have been admitted by the court below. See ABABAKAR v. CHUKS (2008) 154 LRCN1 @ 17 H.3.
In the light of the above, counsel urged the court to resolve Issue 3 in favour of the Appellants and allow this appeal.
The Respondents in this appeal, in an Originating Summons claimed against the appellants in the following manner.
1. A declaration that the arrest of the applicants by the 5th and 6th Respondent on the 28th February 2011 is unlawful and constitutes a breach of the Applicants Fundamental Rights to liberty as enshrined in section S. 35 of the 1999 constitution of the Federal Republic of Nigeria.
2. A declaration that the continued detention of the Applicant in the cell of the 6th Respondents from 28th of February, 2011 by the 5th and 6th respondents without disclosure of any offence against the Applicant and without being admitted to Bail and or prosecution amounts to a flagrant denial of the Applicants right to liberty and fair hearing.
3. A declaration that the constant and consistent harassments of the Applicants and members of their families by making regular and nocturnal visits to their homes threatening to arrest members of the Applicants family if certain financial conditions are not met by the applicants amounts to a flagrant breach and or threat to the Applicants' Fundamental Right as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.
4. N2,000,000.00 (Two Million) Naira damages against the Respondents jointly and severally for infringing on the Fundamental Rights of the Applicant.
5. AN ORDER OF INJUNCTION restraining the 6th respondent and his agents and or officers from further harassments, intimidation arrest and or detention of the Applicants and members of their family forthwith.
6. AND for such order(s) as this Honourable Court may deem fit to make in the circumstances of the case.
A cursory look at the claims of the Respondents did not disclose anywhere what was claimed against the 1st - 4th Appellants. In the respondents' affidavit of 20 paragraphs, the only complaint against the 1st - 4th Respondents was found in paragraph 12.
Paragraph 12 stated that on the 28th day of February 2011 the 1st Respondents carried out their threat but this time using our dear Nigeria Police to accomplish their evil desire. We were all arrested by the Police and thrown into detention at the prompting of the 1st - 4th Respondents.
Both parties agreed that the 1st - 4th Appellants made a complaint to the 5th and 6th Appellants, that the Respondents were about to breach the peace in their village.
This suit was initiated by an originating summons. Therefore, the court will resort to the affidavits and exhibits for answers in this appeal. The Appellants caused Exhibit AEC III to be written. For clarity, I will reproduce this letter written to the Respondent pleading for understanding and to help keep the peace within the community.
Elder Eno Jackson Essien,
Chief Sunday Koffi Essien,
Chief Tommy Isaac Udo, Ntuk Otong village
Mr. Akpan Timothy, ------ Asutan Ekpe,
Mr. Joseph Jones Essien, Local Government Area
Mr. Eno Elija Essien,
REQUEST FOR PEACE IN NTUK OTONG VILLAGE
RE: TEMPORARY EMBARGO FOR SIX WEEKS ON HARVEST OF OIL PALM FRUITS GROWN IN NTUK OTONG VILLAGE
I am informed that you are planning for violence and acts capable of breaking down peace and order in Ntuk Otong village because of temporary embargo for six weeks on harvesting of oil palm fruits grown in Ntuk Otong village. This temporary embargo is done by Ntuk Otong village Council or authority for the developmental project (village Electrification) in the village. I hereby request you to keep peace and never disrupt in any form or manner the temporary embargo for six weeks on harvesting of your oil palm fruits in your village.
As a traditional institution, temporary embargo on oil palm fruits grown in the village is a traditional or customary means of generating fund or revenue easily for use in the development project in the Village by the Village Head instead of the statutory method of raising fund for approved community project in the village as the Village Head is authorized to do by section 18 (1) (4) (5) (6) of the Traditional Rulers Law, Cap. 134 vol. 6 of the Laws of Akwa Ibom State of Nigeria - 2000.
In the same vein among the statutory functions of your village Head as contained in section 17(2) (h) & (i) of the Traditional Rulers' Law, Cap, 134, vol. of the Laws of Akwa Ibom State of Nigeria - 2000 is to mobilized the effort of his people towards the implementation of development programmes affecting his area of authority in co-operation with the Local Government function within his area and to ensure that social institutions such as Primary School, Health Centre, Rural Electricity etc within his area of authority are adequately supported by his people. All of you are enjoying electric light in the village today and fund that will be realized from the harvesting of oil palm fruits grown in your village by the village authority shall be used in supporting electricity project in your village for the benefit of all the residents of your village. Therefore, always remain peaceful with the authority of your village.
Again, your village (Ntuk Otong) is within my clan or domain. As a Clan Head and by virtue of my functions as contained in section 17 (1) of the Traditional Rulers' Law, Cap. 134; vol. 6 of the laws of Akwa Ibom State of Nigeria - 2000 are to serve as a coordinating force within my Clan and to serve as a rallying force in organizing community projects affecting my clan, and therefore by virtue of my position in the community, I cannot close my eyes on any good development programme that any of my villages may embark upon. I have to get in touch with such a village for encouragement.
You may be advised that the temporary embargo for six weeks on harvesting of your oil palm fruits grown in your village is a clear violation of your Fundamental Rights within the provision of section 44(1) of the 1999 constitution of the Federal Republic of Nigeria, and that you should take lawsuit against your village authority and claim millions of naira. If you heed to such an advice, you will be fighting fruitless fight or flogging a dead horse. If you do that, there will be no gain for you in spending your hard earned money in law suit and you will wish your village no development and progress as in the modern day societies or communities. In my final analysis, I wish you to keep peace and remain calm until this temporary embargo for six weeks on your oil palm fruits I your village is lifted about third week of March, 2011.
Please co-operate with your village and comply accordingly.
OBONG B. U. EKANEM
In this letter the Clan Head of Asutan Ekpe stated that an embargo has been placed on harvesting of the oil palm fruits grown in Ntuk Otong village for six weeks.
This was not targeted at the Respondents only. It was an embargo on the whole village. This temporary embargo was for developmental projects; it was for Electrification of the village.
This embargo was on the village as a whole and not for any specific person. The letter went on to state the need for this embargo.
As a traditional institution, temporary embargo on oil palm fruits grown in the village is a traditional or customary means of generating funds or revenue easily for use in the developmental projects in the village by the Village Head instead of the statutory method of raising fund for approved community project in the village. The village Head is authorized to do, by Section 18 (1) (4) (5) (6) of the traditional Rules Law, Cap. 134 Vol. 6 of the Laws of Akwa Ibom State of Nigeria - 2000.
In the final paragraph of this Exhibit, the Clan Head clearly advised the Respondents not to embark on any law suit against the Appellants as it would be in vain and that the whole village will suffer deprivation if this embargo is lifted. The Respondents were also advised to allow the embargo to run out for peace to reign. This letter was copied to, The Deputy Police Officer, Ibesikpo Asutan, the Commissioner of Police, Akwa Ibom State, the Paramount Ruler, Ibesipko Asutan Local Government Area, and Chief Sunday Effiong Udo, the Village Head of Ntuk Otong village - 1st Appellant. This letter was directed to the 1st Respondent and others.
It appears these Respondents did not heed this letter that advised them to allow peace to reign. The Respondents thereafter started with acts likely to cause a breach of the peace, by refusing to abide by the embargo and threatening the life of the 1st Appellant. This necessitated the report to the police. The 1st Appellant also deposed that the 1st and 2nd Respondents were parading themselves as Clan Head and deputy Clan Head of Ikot Abia Essien which is not a known community, but rather a street in Ntuk Otong. See exhibit B and C in paragraph 38 and 39 of the Record of Appeal. With the two Exhibit B & C to the Appellants affidavit, it appears that the Respondents had orchestrated an uneasy situation in the community which necessitated the report to the Police.
Every citizen of this country has a right to report to the Police where he honestly believes that a crime has been committed or a crime is about, to be committed. See Onah v. Okenwa (supra). In the present case, the Respondents breached the embargo placed on the whole village. They even threatened 1st Appellant. The 1st Appellant was within his constitutional right to report all these to the Police. It is this report that culminated in the respondents being arrested and detained.
Arrest properly made cannot constitute a breach of Fundamental Rights. A citizen who is arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in court for breach of his Fundamental Rights. Okawo Vs. C.O.P and Anor (2001) 1 CHR 407 CA.
Every citizen has a duty to report a suspected criminal offence to the Police for investigation and apprehension. See Afribank (Nig) PLC v. Onyima (2004) 2 NWLR (Pt. 858) page 654.
In the present case, the Respondents have not been able to show through their affidavits that the Appellants had done anything more than report to the police that the Respondents were threatening the peace of the community.
What ever the police does to maintain the peace of a community is generally within their scope of duty. See Milad Lagos State v. Ojukwu (supra).
The mode of initiating this action by originating summons did not provide enough evidence to decipher whether, the Appellants' did more than report these incidents to the police. It is not on record how many days these respondents were held and on how many occasions.
This suit was commenced by an originating summons.
In general terms, originating summons is used for un-contentious actions, that is, those actions where facts are not likely to be in dispute. Where facts are in dispute or riotously so, an originating summons Procedure will not avail a plaintiff and he must come by way of writ of summons. In other words, an originating summon, will not lie in favour of a Plaintiff where the proceedings are hostile in the sense of violent dispute. Inakoju Vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 SC, Osunbade Vs. Oyewunmi (2007) All FWLR (Pt. 368) 1004 SC.
The facts in the affidavits in support of the motion have been seriously controverted. See Osunbade Vs. Oyewunmi (2007) All FWLR (Pt. 368) page 1004, Dapialong Vs. Lalong (2007) 5 NWLR (Pt. 1026) page 199, Falobi Vs. Falobi (1976) 9-10 SC page 1.
In the present case, the Respondents deposed that the appellants put an embargo on their farmland that they had litigated with the Appellants and won. The Appellants deposed that only the 3rd Appellant was a party to that suit. The Respondents claimed in their affidavit that the Appellants put that embargo because of the result of the law suit. The Appellants controverted that the embargo was on the whole village and not only on the Respondents. This can be gleaned from the letter from Asutan Ekpe Clan council of Chiefs Exh. C on page 39 of the Record of Appeal. See also Exhibit ABC III on pages 23-25 Record of Appeal.
From the above, it is clear that the proceedings in this case are hostile and riotous. There is no way the learned trial Judge would have reached a just conclusion with so many issues hanging loose and unresolved.
When a suit is commenced by an originating summons instead of writ of summons the appropriate order to be made by the court is to direct the suit to proceed with the filing of pleadings. However, if the facts are contained in an affidavit which has been controverted, the court has a duty to ask the parties to adduce oral evidence to resolve the issues in controversy. Osunbade Vs. Oyewunmi (2007) All FWLR (Pt. 368) 1004 SC, Dapialong VS. Lalong (2007) 5 NWLR (Pt. 1026) 199 CA.
The Respondents, as Applicants in the Court below, could not, therefore, prove that it was the Appellants that instigated the police to arrest and detain them. The appellants just exercised their own rights of reporting to the police where they suspected that a crime had been committed or was about to be committed. Afribank v. Onyima (supra)
The Respondents in the court below did not prove that the appellants report to the police was done mala fide. There was no proof that other than the appellants' report to the police, the Appellants instigated the 5th and 6th Appellants to arrest and detain the Respondents. The 5th and 6th Appellants were within their scope of duty, when they arrested and detained the Respondents in the course of their investigation and keeping the peace in the community. As the Respondents did not state the duration of their detention it would be difficult to ascertain whether the detention was unreasonable in the circumstances of this case. The Respondent could not prove mala fide on the part of the 1st - 4th Appellants.
In civil cases, the burden of proof is on the part who asserts a fact, to prove same, for he who asserts must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities. Longe Vs. FBN Plc (2006) 3 NWLR (Pt. 967) page 228, Daodu Vs. NNPC (1993) (Pt. 538) page 355, Kala v. Potiskun (1998) 3 NWLR (Pt. 540) page 1, Braimah v. Abasi (1998) 13 NWLR (Pt. 581) page 167.
The trial court failed to evaluate all the evidence as deposed to in the affidavits and documents exhibited by the parties in reaching its decisions. I, therefore, hold that the Respondents could not prove their claims against the Appellants. In resolving the main issue, the evidence was evaluated taking care of the 2nd and the 3rd issues in this appeal. It is obvious that there was not enough evidence to warrant the conclusions reached by the trial Court.
For the above reasons this issue one is resolved in favour of the Appellant.
This appeal is meritorious and, therefore, succeeds. It is allowed. The judgment of the lower court is set aside, so also is the order to pay to the Respondents N500,000.00 as compensation.
Cost to the Appellants is assessed at N50,000.00 against the Respondents.
MOHAMMED LAWAL GARBA, J.C.A.:
I have, before now, read a draft of the lead judgment delivered by my learned brother Uzo I. Ndukwe-Anyanwu, JCA, in this appeal. The views expressed on the Issue 1 and the conclusion reached, are the same with mine.
For the reasons set out in the lead judgment, which I adopt, I too allow the appeal in the terms thereof.
ONYEKACHI A. OTISI, J.C.A.:
I had the opportunity of reading, in advance the Judgment just delivered by my learned brother, Ndukwe-Anyanwu, J.C.A., allowing this appeal.
The issues raised have been comprehensively addressed. I am in complete agreement with the reasoning and conclusions of my learned brother, which I adopt as mine.
I abide by the Orders made in the lead Judgment, including the order as to costs.