LAWAL GARBA, UZO I. NDUKWE-ANYANWU, ONYEKACHI A.
Mkpandiok Esq. for Appellant
LAW- breach of fundamental right- whetherproper
arrest constitutes breach thereof – What to
prove to be successful in a claim of wrongful
arrest and detention -
on whom lies the burden of proof in civil cases
– standard of proof in civil matters
CITIZENS- duty to
report a suspected criminal offence to the
Police for investigation and apprehension – Need
to assert and prove mala fides to succeed in a
claim of wrongful report leading to arrest and
LAW – DESIGNATION AND POWERS OF VILLAGE HEAD:
Need to establish statutory basis thereof
AND PROCEDURE- COMMENCEMENT OF ACTIONS: when a
suit will be commenced by originating summons –
when a suit will be commenced by a writ of
PRACTICE AND PROCEDURE – PERVERSE
JUDGMENT: meaning thereof
v. W.E.S. (Nig) Ltd (2011) All FWLR (Pt. 574) 42
v. ANWASI (2010) All FWLR (Pt. 528) 839
NWANA v. A.G. FEDERATION (2010) 15 WRN 178
AFRIBANK v. ONYIMA (2004) 2 NWLR (Pt. 858)
LAGOS STATE v. OJUKWU (1986) 1 NWLR (Pt. 18) 621
v. CBN LTD (2009) 21 WRN 1
SECURITIES INT'L LTD v. BALOGUN (2012) All FWLR
(Pt. 643) 1880
v. NWANGWU (2006) 5 SCNJ 394 @ 402
v. AFIA (2010) All FWLR (Pt. 531) 1477
v. MADUKA (1997) 8 NWLR (Pt. 5180) 635
v. OKENWA (2011) All FWLR (Pt. 565) 357.
ABUBAKAR v. YAR'DUA (2009) 5 WRN 1
BUHARI v. INEC (2009) 7 WRN 1
OKAGBUE v. ROMAINE(1982) All
NLR (Pt. 1) 108
UGWU v. ARARUME (2008) 155 LRCN 164
EZEADUKWA v. MADUKA (1997) 8 NWLR (Pt.
v. SHANONO (2006) 4 NWLR (Pt. 969) 132
v. ITA (2004) 2 NWLR (Pt. 858) 590
v. OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205
PLC. v. LAWAL OSULA (2003) FWLR (Pt. 178) 1080
v. AIC LTD (2006) 4 NWLR (Pt. 970) 337
& ANOR. v. ADEYOJU 6 SCJE 150
MCLAREN v. JENNINGS (2003) 3 NWLR (Pt.
MCFOY v. UAC LTD (1962) AC 152
A.G., ADAMAWA STATE v. A.G. FEDERATION
(2006) 135 LRCN 911
v. UMEZURIKE (2012) All FWLR (Pt. 655) 291
v. MHWUN (2010) 2 NSCR 101
OLALOMI v. NIDB LTD (2010) 1 NSCR 1
SOAPS & DETERGENT IND. LTD v. NAFDAC (2011)
All FWLR (Pt. 599) 1025
INAKOJU v. ADELEKE (2007) 4 NWLR (PT.
1025) 423 SC
OSUNBADE v. OYEWUNMI (2007) ALL FWLR (PT.
368) 1004 SC
DAPIALONG v. LALONG (2007) 5 NWLR (PT.
FALOBI v. FALOBI (1976) 9-10 SC 1
v. FBN PLC (2006) 3 NWLR (PT. 967) 228
v. NNPC (1993) (PT. 538) 355
v. POTISKUN (1998) 3 NWLR (PT. 540) 1
v. ABASI (1998) 13 NWLR (PT. 581) 167
NDUKWE-ANYANWU, J.C.A. (Delivering the Leading
This is an
appeal against the judgment of the High Court of Akwa
Ibom State sitting in Uyo delivered on the 16th of
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:
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.
failure of the learned trial judge to evaluate the
evidence before the court properly has occasioned a
miscarriage of justice.
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.
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.
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.
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.
based on Exhibit A above, the 1st and 2nd Applicants
use(s) other Applicants to cause breach of peace in the
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.
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.
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.
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:
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
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."
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
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 rule of law
must remain the guide and protector of all persons in
Nigeria and not the rule of arbitrariness and
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:
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.
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:
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
NWANGWU (2006) 5 SCNJ 394 @ 402.
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
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
See BASSEY v. AFIA (2010) All FWLR (Pt. 531) 1477 @
1500-1501 H.5, EZEADUKWA v. MADUKA (1997) 8 NWLR (Pt.
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.
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.
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.
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
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
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.
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.
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
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
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.
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 Applicant’s
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.
N2,000,000.00 (Two Million) Naira damages against
the Respondents jointly and severally for infringing on
the Fundamental Rights of the Applicant.
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.
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.
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,
Mr. Joseph Jones
Mr. Eno Elija
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
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
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.
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
This suit was commenced by an originating summons.
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
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.
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
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
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
I abide by the Orders made in the lead Judgment,
including the order as to costs.
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