IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, the 27th day of January, 2015
CA/AK/179/13
BETWEEN
1. MR. MATTHIAS NNORUGA
2. MRS. THERESA NNORUGA ... . Appellants
3. MR. MIKE AKPELE
4. MR. HYACINTH MICHAEL
AND
1. DR. AKINBOWALE R. ENIOWO
2. MR. OMONIYI (AREA COMMAND OFFICE, AKURE)
3. CORP OLANIPEKUN EHINMODE ....... Respondents
4. DAMILOLA OLADUNMOYE
5. AREA COMMANDER, AKURE
6. COMMISSIONER OF POLICE, ONDO STATE
APPEARANCES
Kehinde Aladedutire Esq. - For Appellant
AND
A. A. Orunkoya Esq. - 1st Respondent
Aderemi Ajibola Esq. - 2nd-6th Respondents - For Respondent
JAMES SHEHU ABIRIYI, J.C.A.: (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Federal High Court, sitting at Akure delivered on the 3rd of July 2013. The Appellants were the Applicants in that court while the Respondents were the Respondents.
Appellants in an amended Notice of Application at the Lower Court prayed for the following reliefs:
(a) A DECLARATION that the threat of arrest, subsequent arrest and detention of the applicants by the 2nd respondent (purportedly acting for the 5th and 6th respondents) on the false complaint of threat to life and fraud given by the 1st respondent, is unlawful and constitutes a breach, of the Fundamental Rights of the applicants as enshrined in sections 34, 35 & 41 of the Nigerian 1999 constitution as amended and Articles 4, 5, 6 & 12 of the African Charter on Human And People's Rights.
(b) A DECLARATION that the invasion of the residence of the 1st and 2nd applicants by the the (sic) 3rd and 4th respondents as if they were common criminals; the confiscation of the 2nd applicant's withdrawal booklets and the 1st and 2nd applicants cheque books in their residence; the forceful withdrawal of the sum of N970,000.00 from the 2nd applicant's bank account at First Bank Plc, Market branch Akure under duress occasioned by the actions of the said officers acting under the instruction of the 1st respondent who followed her to the bank in company of the other applicants who had been arrested, constitute a breach of the Fundamental Rights of the applicants as enshrined in Section 37 of the Nigerian 1999 Constitution)
(c) AN ORDER restraining the respondents from further threatening, arresting, harassing or intimidating the applicants upon false and frivolous petition.
(d) AN ORDER of this Honourable court mandating the respondents to release forthwith to the 2nd applicant her N970,000.00 she was forced by the officers of the 5th and 6th respondents named in relief (b) to withdraw from her account at First Bank Plc, Market branch, Akure, which is now in the custody of the 2nd and 3rd respondent or the 1st respondent.
(e) AN ORDER of this Honourable court awarding the sum of N20,000,000.00 (Twenty Million Naira) as exemplary damages against the respondents jointly and severally for the brazen infringement of the rights of the applicants.
From the affidavit evidence the complaint of the appellants at the Lower Court was as follows:
The appellants trade under the name and style of Akure Team Quarry.
The Appellants entered into an agreement (Exhibit A) with the 1st Respondent for the blasting, evacuation and management of rock. The 1st Respondent to this end released the sum N5,500,000 (Five Million, Five Hundred Thousand Naira). The 1st and 2nd Appellants used their certificate of Occupancy as a collateral for the money.
From the take off of the business the Appellants began to encounter various elements of frustration not envisaged.
After drilling several holes on the site preparatory to the blasting of the rock, the Appellants noticed that they had already spent N2,000,000 (Two Million Naira). They therefore wrote a letter (Exhibit B) to the 1st Respondent asking for a review of the contract. The 1st Respondent refused the request and asked for a refund of the N5.5 million he had paid. The Appellants paid back N2.4 million to the 1st Respondent.
Dissatisfied with the payment of N2.4 million, the 1st Respondent reported the Appellants to the police. 1st and 2nd Appellants were arrested and detained until the following day after they had each made a statement to the police. The son of the 1st and 2nd Appellants who was not a party to the contract was beaten up by the police. The police forcefully escorted the 2nd Appellant to her bank and compelled her to withdraw the sum of N970,000 from her account and christened the amount exhibit. The 2nd Appellant refused to endorse a paper transferring her money to the 1st Respondent in spite of the insistence of the police that she did so.
The Appellants denied robbing the 1st Respondent as the matter between them was simply a contract which was performed in part.
That before the 1st Respondent travelled he verified that the Appellants had a crushing machine for quarry business.
The 2nd - 6th Respondents admitted that the Appellants worked on the site but that they were not in a position to know the value of the work done.
That the police in apparent anger by this application filed on the 7th November 2012, swooped on Appellants on the 11th November 2012 over one month after initial arrest of the Appellants and arraigned them before the Magistrate Court.
According to the 1st Respondent, he was convinced by the presentation of the Appellants and decided to enter into the contract of blasting and crushing of rocks. They entered into (the contract) an agreement. Then he transferred N5.5million to the Appellants.
When the appellants started reneging, investigation revealed that they did not have a licence to blast and crush rocks.
The Appellants asked for review of the transaction. But he insisted on the performance of the transaction as agreed or a refund of the full amount that he paid to them as the contract was a full contract relating to the management of the rock at his site.
When he demanded for the return of the entire sum he gave the Appellants, they started threatening to assassinate him.
So he wrote a petition to the police.
That the 2nd Appellant voluntarily withdrew the sum of N970,000 and the Appellants are aware that the police released the money to him (1st Respondent).
But the police case is that the Appellants proceeded to dig holes at the site with a view to deceive of their intention to defraud the 1st Respondent. That the 3rd Appellant, son of the 1st and 2nd Appellants was not beaten up. That the 2nd Appellant brought N970,000 voluntarily.
According to the police (2nd - 6th Respondents), a criminal complaint of robbery, fraud and threat to life was made through a petition by the 1st Respondent to the Commissioner of Police.
The 1st and 2nd Appellants were invited. The police visited the site and discovered that not much work had been done to warrant spending N3 million. The house of the 1st and 2nd Appellants was searched and a savings account slips and cheque book were recovered.
On her own the 2nd Appellant went to the bank withdrew N970,000 and brought to the police. The police handed it over to the "Owner".
The 1st Respondent wrote a letter dated 16/10/12 thanking the police and expressed optimism that the whole money will be returned to him.
That the Appellants had intention to defraud the 1st Respondent and cooked up stories as an excuse why the contract was not performed.
That a police permit is required for the use of explosives to blast stone or rock.
After considering the affidavit evidence of parties and addresses of learned counsel the Lower Court in a reserved Judgment dismissed the application in its entirety.
Dissatisfied with the decision, the Appellants have approached this court by notice of appeal containing four grounds of appeal from which they presented the following two issues for determination:
(1) Whether or not from the available evidence before the trial Judge and his findings in his Judgment, the trial Judge was right in dismissing the claims of the Appellants for the violation of their fundamental rights and award of damages to them for the violation (Ground One).
(2) Whether or not the trial Judge was right in refusing to evaluate material evidence canvassed on the reliefs, b, c, d and e in the Appellants' application and make pronouncement on same, the Appellants having canvassed same vehemently before the Court (Grounds Two, Three and Four).
The 1st Respondent and the 2nd - 6th Respondents presented the same issues for determination. They are:
(1) Whether or not from the available evidence before the trial Judge and his findings in his judgment, the trial Judge was right in dismissing the claims of the Appellants for the violation of their fundamental rights and award of damages to them for violation.
(2) Whether or not the trial Judge was right in holding that the fundamental rights of the Appellants were not violated in any way by the Respondents.
Arguing issue 1, learned counsel for the Appellants submitted that the Lower Court at page 162 line 17 and page 163 lines 1 to 13 of the record of appeal confirmed the violation of Appellant' rights by the Respondents. It was submitted that the issue on which the 1st Respondent involved the 2nd-6th Respondents who arrested and detained the Appellants was a matter of simple contract between the Appellants and the 1st Respondent which the Lower Court found as established.
It was submitted that the petition written by the 1st Respondent to the Police against the 1st and 2nd Appellants alleging robbery, fraud and threat to his life in order to compel the Appellants to refund his entire capital was baseless and the Lower Court ought to have so found having found that the matter between the Appellants and the 1st Respondent was that of simple business contract.
The position of the law, it was submitted, is that the institution of the police is not for the recovery of debts. We were referred to McLaren v. Jennings (2003) FWLR (Pt. 154) 537-358 and Onagoruwa v. State (1998) 1 ACLR 435 at 483, Nkpa v. Nkume (2001) 6 NWLR (Pt. 710) 543 at 549-550, Afribank (Nig.) Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654 at 679 S.P.D.C. (Nig) Ltd v. Olarewaju (2002) 76 NWLR (Pt. 792) 38 at 46 - 47 and Fawehinmi v. I.G.P. (2002) FWLR (Pt. 108) 1355 at 1378 and 1385.
It was submitted that the police are not robots and are not to act on the whims and caprices of any complainant. They have discretion to act or refuse to act on any petition written to them after examining the complaints of the complainants. It is unlawful, it was submitted, to arrest until there is sufficient evidence upon which to charge and caution a person.
Section 4 of the Police Act, it was submitted only empowers the police to apprehend offenders. It was submitted that the police having arrested and obtained the statements of the appellants ought to have referred the parties to a civil court and released the Appellants on bail instead of proceeding to detain them.
It was submitted that the invasion of the house of the Appellants on the pretext of recovering N5.5 million, assault on their son and seizure of withdrawal booklet and cheque book is a violation of the rights of the Appellants to private and family life contrary to Section 37 of the Constitution FRN 1999.
On issue 2, it was submitted that although the police denied leading the 1st and 2nd Appellants to the 2nd Appellants bank and compelled her to withdraw N970,000 the exhibit at page 39 of record shows that this is not true because the 1st Respondent thanked the police for assisting him retrieve his money. The 2nd-6th Respondents are therefore approbating and reprobating in their counter affidavit in order to shield the truth about their abuse of power on the 1st and 2nd Appellants with the collusion of the 1st Respondent.
It was submitted that the fact that the 2nd-6th Respondents alleged that the initial capital was paid into the account of the 2nd Appellant is of no moment since the 2nd-6th Respondents were not supposed to take the law into their own hands in going with her to the bank to collect her money.
The police, it was submitted, was wrong in going to the house of the Appellants to look for N5.5 million from the Appellants as shown by the search warrant even though they knew that N2.4 million had been collected by the 1st Respondent.
The Court was urged to evaluate the evidence and draw proper inference from the facts proved and make a pronouncement in favour of the Appellants. We were referred to Kimdey v. Mil. Governor Gongola (1988) 2 NWLR (Pt. 77) 445 at 459 and Mabogunje v. Adewumi (2006) 77 NWLR (Pt. 991) 224 at 248.
The arguments of learned counsel for the 1st Respondent and those of the 2nd-6th Respondents contained in their respective briefs of argument appear to me to be the same word for word.
On issue 1, they both submitted that there is no doubt that the Appellants are guilty of criminal misrepresentation, impersonation and fraud if the contents of the contract agreement executed between them and the 1st Respondent are compared with the statements of the Appellants with the police in the context that the Appellants have no qualification and expertise as well as the licence to blast rocks which epitomized a crystal clear contradiction to their claim and representation to the 1st Respondent and consequently induced the 1st Respondent into entering into the contract with them.
It was submitted that the submission of Appellants' counsel that the Lower Court in its judgment confirmed the position of the Appellants in page 162 line 17 and page 163 lines 1 - 13 of the record of appeal is quite absurd and weird. That the Lower Court was merely highlighting the various arguments and submissions of counsel for all the parties.
It was submitted that Appellants' conduct by claiming falsely to be experts in rock blasting and crushing of rock into granites for evacuation without a licence and certificate to carry out such business actually suggested a reasonable element of crime that required investigation and the 1st Respondent's report to the police was in line with the dictates of the law.
It was submitted that Section 35(1) of the Constitution provides that once there is reasonable suspicion of having committed a criminal offence, the police has the powers to arrest and the law does not say it must be certain that the offence has been committed.
It was submitted that where an individual lodges a complaint to the police by way of petition and the police act upon it and arrests and detains the act of detention is that of the police. The 1st Respondent is therefore exonerated from liability in this case. Reliance was placed on Nwagu v. Duru (2002) 2 NWLR (Pt. 75) 205 at 282-283.
It was submitted that the alleged arrest and detention of the Appellants was justified under Section 35 (5) of the Constitution. It was submitted that once there is reasonable suspicion of having committed the offence, the police has power to arrest. We were referred to Dokubo Asari v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320.
It was submitted that the criminal conduct of the Appellants was transparently reprehensible judged by any moral standards and their appeal must be dismissed.
On issue 2 formulated by learned counsel for the Respondents, it was submitted that the 1st Respondent has a constitutional right and obligation under Section 24(e) of the Constitution, F.R.N. to petition to the law enforcement agents on the slightest suspicion of a commission of crime.
It was submitted that Section 214 of the 1999 Constitution provided for the establishment of the police force in Nigeria while Section 4 of the Police Act empowers the police to receive complaints from members of the public which justified the receipt of the petition of the 1st Respondent and went further to carry out an investigation on the complaint lodged against the Appellants.
It was contended that the fact that the Appellants neither had the qualification nor licence to blast and crush rock into granite as falsely claimed and made the 1st Respondent to believe so resulted in the arrest and detention of the Appellants for only a day as stipulated under Section 35(1)(c) of the 1999 Constitution (as amended). That the police exercised its discretion to arrest and detain on the petition of the 1st Respondent on suspicion of a criminal wrong of deceit and fraud committed against the 1st Respondent.
In their reply to the 2nd-6th Respondents' brief, the Appellants pointed out that the 1st Respondent never petitioned on criminal misrepresentation and impersonation. That the petition against the Appellants was for robbery, fraud and threat to life.
This appeal can be determined on the two issues formulated by the Appellants.
An 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. See Okano v. C.O.P. & Anor (2001) 7 CHR 407.
Any violation of a citizen's guaranteed fundamental right however short a period must attract penalty under the law. See Alaboh v. Boyes (1984) 5 NCLR 830 and Jimoh v. A-G, Fed. (1998) 7 HRLR A 513.
Where the arrest and detention of a person are unlawful and unconstitutional any subsequent arraignment of that person before a Court of law cannot and would not cure the illegality or unconstitutionality. See Abiola v. Abacha (1998) 7 HRLRA 458.
The burden of proving the legality or constitutionality of the arrest and or detention of a person is on the arresting authority. Therefore it is the duty of the Respondents to justify the arrest of the Appellants. The Respondents having admitted the arrest and detention of the Appellants, the onus was on them to prove that such arrest or detention was lawful. See Iyere v. Duru (1998) 5 NWLR (Pt. 44) 665 Abiola v. Abacha (supra) and Jimoh v. A-G, Fed. (supra).
As the laws of this Country stand, the police have no power to detain a person for breach of contractual obligations. Any such detention is a violation of the person's right to freedom of movement. See McLaren v. Jennings (2003) FWLR (Pt. 154) 528.
The case of the Appellants again at the risk of being repetitive was that they entered into a contract Exhibit A with the 1st Respondent. The Appellants used their Certificate of Occupancy as collateral. The 1st Respondent paid N5.5 million. The Appellants began the work and encountered some problems. They wrote a letter Exhibit B to the 1st Respondent asking for a variation of the contract. The 1st Respondent refused the request for variation and wanted a return of the N5.5 million he had paid. He was given N2.4 million because part of the money had been used at the commencement of the work. The 1st Respondent reported to the police.
The police unlawfully detained them; they said and forced the 2nd Appellant to withdraw her money from the bank which the police gave to the 1st Respondent. The case of the Appellants being that they were illegally detained on a matter in which the police have no jurisdiction, a contract between them and the 1st respondent, the burden was on the police to prove that the Appellants were justifiably arrested and detained. Have the Respondents justified the arrest and detention of the Appellants?
From paragraphs 4, 5 and 6 of the 1st Respondent's affidavit in opposition, he admitted that he executed an agreement with the Appellants for blasting of rock and crushing of same. Even in his report to the police Exhibit AA5 which is on page 75 of the record of appeal, he stated thus: "We went into agreement for them to blast, evacuate and manage the rocks and stones on my land..."
In spite of the fact that Exhibit AA5 was in connection with a contract agreement and contained no allegation of robbery or fraud, the police in paragraph 21 of the counter affidavit told a lie that the 1st Respondent reported a case of robbery and fraud. To show that the means by which we tell lies are the same means by which providence uses to expose the sin that lies hidden in our souls, the 2nd-6th Respondents proceeded in the same paragraph 21, that is paragraph 21(e) to show that they visited the site and it was discovered that not much work was done on the site to warrant spending the sum of N3 million. That what the police saw at the site was just mere holes drilled on the rock. No mention is made about visiting the site of the alleged armed robbery. Even in their counter affidavit no mention was made of where the alleged robbery occurred and what was robbed. Therefore the alleged report of robbery was concocted by the police to enable them severely deal with the Appellants. For after all what was involved was merely a civil dispute between the Appellants and the 1st Respondent. See paragraphs 9, 10, 11 and 12 of the 2nd-6th Respondents counter affidavit apart from paragraph 21(e) referred to above. In those paragraphs the 2nd-6th Respondents showed that the Appellants had not started work on the site. That the Appellants went ahead to drill holes. That the Appellants had not expended N3 million. And that the Appellants had not done or started any major work when they asked for a review of their transaction.
At page 162-163 of the record of appeal the Lower Court found the following facts established. This is what the Court stated:
"From the averments of the Applicants contained in the affidavit in support, the attached exhibits and the averments of the Respondents together with all the exhibits, the following facts have been established:
1. That the Applicants entered into a business of blasting, evacuation and management of rock with the 1st Respondent at Block 3A G.R.A. along Oda Road Akure.
2. There were challenges and impediments which frustrated the continued performance of the work.
3. The sum of N2,400,000 out of the contract sum of N5.5 million was paid into the account of the 1st Respondent but he demanded for the refund of the entire sum.
4. The Applicants insisted on quantifying the job they have carried out on the site if the 1st Respondent insists on collecting the balance of the money released."
After making the above findings which clearly show that the transaction was purely civil, the Lower Court held that the arrest of the Appellants was justified. As I have stated above, no law in this country gives the police the power to dabble into purely civil transactions between parties. See McLaren v. Jennings (supra). That is a power given only to the Courts. The police in this case had no power to convert a purely civil transaction between the parties into a case of armed robbery and fraud and proceed to remove bank documents belonging to the 2nd Appellant, march her to the bank and compel her to withdraw N970,000 which they gave to the 1st Respondent. This is in addition to beating the 2nd Appellant's son who was not even a party to the transaction between the 1st and 2nd Appellants and the 1st Respondent.
It is contended that the 1st Respondent cannot be held liable because he merely made a report to the police. Is that so? This is far from the truth, the police themselves claim that he followed the 2nd Appellant to the bank where she was compelled to withdraw the money. The 1st Respondent wrote a letter dated 16/10/2012 to the police asking for the sum of N970,000 which 2nd Appellant was compelled to withdraw from the bank and expressed his optimism that the "whole money will be retrieved." It is not correct therefore that the 1st Respondent merely made a report and let the police do its work. He was in the thick of the matter, pushing the police to get his money for him otherwise according to him he would commit suicide. See Exhibit AA5 his letter to the police. Surely those who do business are not "lily-livered boys" who will run to the police when there is a problem with the contract instead of going to Court to seek for remedy. I do not agree that the 1st Respondent can get off the hook in this matter.
The 2nd-6th Respondents not only messed themselves up in their counter affidavit but also in their brief of argument. Although in the counter affidavit they claimed that the 1st Respondent reported a case of robbery fraud and threat to life, in their brief they tried to make out a case of misrepresentation. Also in their brief of argument they re-enforced the case which they had made in their counter-affidavits that the transaction was a purely civil matter, a contract between the Appellants and the 1st Respondent. See the following extracts from the briefs of argument of the Respondents:
"The Appellants and 1st Respondent entered into the said contract on the premise that the Appellants have knowledge......"
"We must submit that the contract agreement between the Appellants and 1st Respondent as well as the purported business certificate the Appellants exhibited..."
"We humbly urge the Appellate Court to have a concise scrutiny of the contents of the contract ......"
It is clear from all that I have stated above that the affidavit evidence of all the parties showed and the Lower Court found that the transaction between the 1st Respondent and the Appellants was purely a civil transaction - a contract between the Appellants and the 1st Respondent. The Respective arguments of both parties before this Court show that the matter before the Lower Court was a civil transaction a contract between the Appellants and the 1st Respondent. As the Respondents tried to challenge arguments of the Appellants before this Court, they found themselves in a quagmire and only succeeding in proving also that the transaction between the Appellants and the 1st Respondent was a civil transaction - a contract between the parties. A rose by whatever name still smells sweet.
The 2nd-6th Respondents in an attempt to justify the unlawful interference with the appellants' fundamental rights or piqued by the application to enforce their fundamental right quickly arraigned them before the magistrate court. This certainly cannot help them. Once the arrest and detention are found to be unconstitutional, the subsequent arraignment before the magistrate court would not cure the illegality. The Lower Court was misled by the subsequent arraignment to find the arrest and detention constitutional. It was not.
The Respondents contended that the arrest and detention for only twenty-four hours or for only one day was justified and relied on Section 35(1)(c) of the Constitution FRN 1999. The Lower Court was misled by this submission and saw nothing wrong with the detention of the Appellants for only one day. With respect to the Lower court, this was wrong. Any violation of a citizen's right however short the period, is wrong and must be punished by the Court. See Alaboh v. Boyes (supra).
From what I have stated above I am of the view that issue 1 should be resolved in favour of the Appellants. I accordingly resolve it in favour of the Appellants.
There is overwhelming evidence that the police went to the house of the Appellants and removed the withdrawal booklet of the 2nd Appellant and a cheque book. They marched her to the bank and forced her to withdraw the sum of N970,000 which they gave to the 1st Respondent. They have not shown on whose orders all these were done. As pointed out earlier the burden of proving the legality or constitutionality of going into the house of the Appellants, taking the withdrawal booklet of the 2nd Appellant and forcing her to the bank where she was compelled to withdraw N970,000 which they gave the 1st Respondent is on the Respondents. This burden the Respondents have woefully failed to discharge.
The learned trial Judge in my view wrongly failed to consider evidence led on the alleged illegal entry into appellant's house, removing withdrawal booklet and cheque book of the 2nd Appellant and forcing her to go to the bank and withdraw N970,000 which they gave to the 1st Respondent. The Lower Court did not therefore consider and evaluate material evidence led on relief (b).
A Court as a rule must limit itself to the circumstances of a particular case or a case placed before it. Therefore a Court cannot be moved to make a blanket order of injunction against any further arrest or detention. If the Applicant is again wrongfully arrested and detained in future, the doors of the Court are always open and justice will be dispensed without fear or favour, affection or ill-will. See Jimoh v. A-G, Fed. (1998) 1 HRLA 513.
Relief (c) was for an order restraining the Respondents from further threatening, arresting, harassing or intimidating the Appellants. The Lower Court did not need to consider that relief. If the Appellants are again illegally arrested, the doors of the Courts are open and justice will be done without fear or favour. That relief was not also considered.
Relief (d) was not considered by the Lower Court since relief (b) was not considered.
The case of the Appellants having been wrongly dismissed by the Lower Court, it was not surprising that relief (e) was not considered.
From the foregoing, issue 2 should be resolved in favour of the Appellants. I accordingly resolve the said issue.in favour of the Appellants.
The two issues having been resolved in favour of the Appellants this appeal should be allowed. It is accordingly allowed.
The decision of the Lower Court is set aside by me. Reliefs (a) (b) (d) sought by the Appellants are granted.
The Appellants are also awarded N3 million (Three Million Naira) damages against the Respondents jointly and severally for the infringement of their fundamental rights by the Respondents.
Appellants are awarded N50,000 (Fifty Thousand Naira) costs which shall be paid by Respondents.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the Judgment Delivered by my learned brother James Shehu Abiriyi, J.C.A. I agree with the conclusion and I also abide with the consequential orders.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.