General

Fundamental Right-Though citizens have the right to report or lay a complaint to the police but such right is abused when it is laced with ulterior drive seeking for oneself collateral advantage-The dedication, fidelity, loyalty and answerability of the police have to be only to the Rule of Law as laid out in the Constitution and other statutes- once parties have submitted their disputes to the court for determination, none of the parties is allowed to do any act or omission that would over-reach the interest of the other pending the determination of the suit- 1.KINGSLEY IJEZIE ATUGHARA 2. MOSES IJEZIE ATUGHARA 3. ADLINE IJEZIE ATUGHARA VS. 1. HRH EZE ISIDORE AZIKIWE IJEZIE ATUGHRA 2. COMMISSIONER OF POLICE, IMO STATE 3. DPO AHAIZU MBAISE POLICE STATION 4. INSPECTOR GODWIN ENYINNAYA-Delivered by Hon. Justice Innocent M. Njaka

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IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE AHIAZU MBAISE JUDICIAL DIVISION

HOLDEN AT AHIAZU

ON, 28TH NOVEMBER 2016.

BEFORE HIS LORDSHIP: HON. JUSTICE I.M.NJAKA.

SUIT NO HAM/66/2016

BETWEEN

  1. KINGSLEY IJEZIE ATUGHARA
  2. MOSES IJEZIE ATUGHARA                                                                   APPLICANTS
  3. ADLINE IJEZIE ATUGHARA

AND

  1. HRH EZE ISIDORE AZIKIWE IJEZIE ATUGHRA
  2. COMMISSIONER OF POLICE, IMO STATE                                               RESPONDENTS
  3. DPO AHAIZU MBAISE POLICE STATION
  4. INSPECTOR GODWIN ENYINNAYA

JUDGMENT

This application is said to be brought under Order II Rules 1,2 and 3 of the Fundamental Rights(Enforcement Procedure) Rules 2009, Sections 34(I)(a), 35(I) and 41(I) of the Constitution of the Federal Republic of Nigeria 1999(as amended), Article 5,6 & 7 of the African Charter on Human and Peoples Rights(Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 and the inherent jurisdiction of the Honourable Court as preserved by Section 6(6)a of the 1999 Constitution (as amended).

It prays this court for an order granting the applicants the reliefs as sought in the statement accompanying this application and such further order or other orders as the court may deem fit to make in the circumstances.

The reliefs sought are:

  1. A declaration of the Honourable Court that the continuous harassment, hounding, arrest and detention, threat of arrest of the Applicants by the 2nd ,3rd and 4th respondents based on the false complaint made to them by the 1st Respondent constitutes a violent infraction of the Applicants’ fundamental rights to personal liberty, freedom of movement and dignity of their human persons as enshrined in sections 34(1),35(1),36 and 41(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended).
  2. A declaration of court that the Applicants did not commit any criminal offence(s) so as to warrant their harassment, arrest and detention and continuous threat of arrest by the 2nd , 3rd and 4th
  3. A declaration of court that the continued harassment, arrest and detention and continuous threat of the Applicants and/or their family members by the Respondents, when the Applicants and/or their family members did not commit any crime is unlawful, unconstitutional and an infringement of the fundamental rights of the Applicants as set out in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  4. An order of court compelling the Respondents jointly and severally to pay to the Applicants the sum of Ten Million (N10, 000,000.00) Naira only as compensation and or exemplary damages for procuring and sustaining the unwarranted infringements of the Applicants fundamental rights.
  5. Perpetual injunction restraining the Respondents howsoever by themselves, their servants, agents and or privies from further violation of the Applicants’ fundamental rights to personal liberty and freedom of

The GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT.

  1. The applicants are law abiding citizen of the federal republic of Nigeria and are therefore entitled to the rights as provided in chapter IV of the 1999 constitution of he federal republic of Nigeria (as amended) and articles 5,6 and 7 of the African chapter on human and peoples rights (ratification and enforcement) act cap 10 laws of the federation 1990.
  2. The applicants did not commit any crime.
  3. The 1st respondent’s action was actuated by malice, hatred, greed, recklessness and calculated to degrade, dehumanize and punish the applicants and deprive them of their personal liberty for no just cause.
  4. The applicants have suffered unwarranted humiliation and great loss as a result of their arrest and detention and continuous threat of arrest and harassment by the respondents.

The Application is supported by 37 paragraph affidavit deposed to one Mr Kingsley Ijezie Atughara, the 1st Applicant and stated as follows:

  1. That I am the 1st applicant in this application for enforcement of fundamental rights.
  2. That I swear to this affidavit with the consent, authority and approval of the 2nd and 3rd
  3. That the 2nd applicant is my younger brother.
  4. That the 2nd applicant is my mother.
  5. That on the 7th of April, 2015 the 1st Respondent sued me, the 2nd and 3rd applicants at the customary court of Ahiazu Mbaise Local Government Area, holden at Afor Oru for two (2) parcels of land known as and called ALA IHU EZI ATUGHARA and ALA UKWU UHI, damages for trespass and perpetual injunction.
  6. That the original copy of the Writ of Summons is hereby annexed and marked as “EXHIBIT A”
  7. That plea was taken in the matter on the 1st of June, 2005.
  8. That the matter progressed till 22nd march, 2016.
  9. That consequent upon a question asked to the 1st Respondent by my counsel on 22/3/2016 the 1st Respondent dissatisfied with the question made a spurious allegation against us at the Ahazu Mbaise police station.
  10. That the 1st Respondent accused us of forcible entry and conduct.
  11. That following the 1st Respondent’s report to the Ahiazu Mbaise Police Station invitation was served on us.
  12. That the original copy of the police invitation dated 8/4/2016 is hereby annexed and marked as “EXHIBIT B”.
  13. That our counsel as a result of the police invitation went to the Ahiazu Mbaise Police Station and told the D.P.O that the matter was in court.
  14. That on the 21/4/2016 I, The 2nd and 3rd Applicants went to Customary Court Ahiazu Mbaise holden at Afor Oru to continue our case with the 1st
  15. That after the court session, unknown to us the D.P.O and his men surrounded the court premises to arrest me, the 2nd and 3rd Respondents over a matter that was pending in court.
  16. That not done with the police conduct, the 1st Respondent abused our counsel J.N.Nwawudu,Esq at the court premises beyond reason.
  17. That I, the 2nd and 3rd Respondents were arrested and detained.
  18. That we were granted bail after spending huge sum of money despite the much touted slogan by the police that bail is free.
  19. That shortly after we were granted bail the 1st Respondent failed to establish his case against us after honouring series of invitation by the Ahiazu Mbaise police division.
  20. That we kept all our appointments with the police but the 1st Respondent refused to show up even for a day.
  21. That after judiciary workers strike our case with the 1st Respondent again commenced on the 22/9/2016.
  22. That our counsel J.N. Nwawudu,Esq complained to the Honourable Court on what happened on 22/3/2016 wherein I, the 2nd and 3rd Applicants were arrested at the court premises and our counsel abused by the 1st
  23. That the Chairman of the court V.C Iheonunekwu, Esq advised I, the 2nd ,3rd Applicants and the 1st Respondent to maintain the peace and face the matter to a logical conclusion a and avoid police actions.
  24. That the chairman of the court advised the 1st Respondent to stop abusing our counsel J.N Nwawudu, Esq as he was doing his professional duty to his clients.
  25. That despite the advise given to the 1st Respondent by the chairman of the Customary Court, the 1st Respondent again incidented a frivolous report against I, the 2nd and 3rd Applicants at the Ahiazu Mbaise police station.
  26. That the allegation this time is malicious damage/threat to life.
  27. That consequent upon the new allegation by the 1st Respondent, the Ahiazu Mbaise Police Division served a police invitation on me, the 2nd and 3rd Applicants to appear before them on the 21/10/2016 for an alleged offence we know nothing about. The original copy of the police invitation dated 19/10/201 is also hereby annexed and marked as “EXHIBIT C”
  28. That my counsel told me in his office at Egberede Nguru, Aboh mbaise on Thursday 19/10/2016 at about 4pm and I verily believed him that the 1st Respondent having failed to honor series of police invitations to establish his case, the 3rd and 4th Respondents should have charged the 1st Respondent for false information, this the 3rd and 4th respondents refused to do.
  29. That the so called alleged offence contained in the police invitation (“EXHBITS B and C) which the police purports to investigate ad infinitum is consequent upon our joining issues with the 1st Respondent at the customary court Ahiazu Mbaise holden at Afor Oru which the 1st Respondent never expected.
  30. That the suit filed by the 1st Respondent against me, the 2nd and 3rd Applicants is slated for 24/10/2016 for evidence of P.W.2.
  31. That instead of the 1st Respondent to face his case at the Customary Court Ahiazu Mbaise holden at Afor Oru he has resorted to the use of the police to intimidate us.
  32. That I, he 2nd and 3rd Applicants are law abiding citizens.
  33. That I, the 2nd and 3rd Applicants have never faced any criminal charge before, despite series of police arrests, intimidation and harassment which we have faced before now at the behest of the 1st
  34. That I, the 2nd and 3rd Applicants have never been convicted before by the court.
  35. That the actions of the 1st Respondent are actuated by greed and hatred.
  36. That the 1st Respondent will not stop his reprehensible attitude unless restrained by the Honourbale Court.

The applicants filed a written address and formulated two issues as follows:

  1. Whether the incessant harassment, arrest and detention and continuous threat of arrest of the Applicants by the 1st , 3rd and 4th Respondent when the Applicants have not committed any offence amount to a breach of the Applicant’s Fundamental Rights of personal liberty, dignity of human person, freedom of movement and fair hearing.
  2. Whether the Applicants are entitled to monetary compensation for violation of their Fundamental Rights.

Arguing issue 1 the Applicants submitted that every Nigerian is entitled to the enjoyment of the Fundamental Rights as guaranteed under the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999(as amended) and no one else be it government, functionary or private individual (including the respondents) have the right to infringe on it. They relied on  NKPA V. NKUME (2010)6 NWLR(PT 710)543 AT 560 PARAS. F-H.

They went o to say that they have clearly shown prima facie that their fundamental rights have been violated it is therefore left for the respondents to justify the violation. They relied on AGBAKOBA V. STATE SECURITY SERVICE 1998 HRLRA 252. G.O.K AJAYI V THE A.G OF THE FEDERATION (1998) I HRLA 381-388. They submitted that the action of the respondents towards them cannot be justified in law. And that once the applicants prove breach of any of their fundamental rights, they are entitled to the reliefs sought. SEE RAY IKPU V THE A.G OF THE FEDERATION (1998) I HRLRA  PG. 391 AT 421. UZOUKWU V EZEONU II (1991) 6 NWLR (PT 200-708 AT 78). They urge the court in view of the above submission to resolve Issue No 1 in their favour

On Issue 2, the Applicants submitted that any violation of a person’s fundamental rights attracts compensatory damages. SEE SHUGABA V. MINISTER OF NATIONAL AFFIARS (1981) 3 NCLR 459. ALELE WILLIAMS V. SAGEY 91995) 5 NWLR (PT. 396) 44 AT 454 RANSOME KUTI V. A.G FEDERATION (2001) FWLR (PT.80) 1637 AT 1681 PARA D. According to them payment of compensatory damages to them will checkmate the excesses of the police and cushion the effect of their psychological trauma and medical expenses. They equally urge the Honourable Court to resolve issue No 2 in their favour.

This matter first came up for hearing on the 28th October 2016 and despite the fact that the 1st and 3rd – 4th  Respondents were served with the processes on the 21st October 2016 and the 2nd Respondent on the 24th October 2016 none of them filed any processes or were represented. Consequently the matter was adjourned to the 8th November 2016 and hearing notice ordered to be served on them. The 2nd – 4th Defendants from the Affidavit of service sworn to by the bailiff were served on the 4th November 2016. None of the Respondents were in court on the 8th November 2016 when this matter was heard despite the opportunity given to them to so do. It is trite that where a party is given an opportunity to be heard but fails to take up the opportunity the Court cannot compel him to do so and will not wait for him indefinitely. See MOHAMMED V. KPALEI (2001) 6 NWLR (PT 710) 700; EKEREBE VS. EFEIZOMOR (1993) 7 NWLR (PT. 307) 588

Now the case of the Applicants is that the 1st Respondent has sued them over a land in Suit No CC/AH/5/2015 at the Customary Court of Ahiazu Mbaise holden at Afor Oru. Attached to the Affidavit is exhibit “A”. I have looked at exhibit “A” the Claim. The 1st Respondent is the Plaintiff while the Applicants are the Defendants. The Claim is dated 2nd April 215 and was filed on 7th April 2015. The number 3 relief on the Claim is “Perpetual injunction restraining the Defendants and or their privies and or their agents and or their workmen and or any person claiming through them from further trespass to the lands”. The civil summon accompanying the Claim demanded that the Applicants appear in the court on the 19th May 2016. It appears from Exhibit B that a year after filing the Claim on the 7th April 2015, a police invitation was extended to the Applicants on the 8th April 2016 requesting them to appear at the Ahiazu Police Station on the 11th April 2016. They were to appear at the Station on the allegation of Forcible Entry/Conduct. The Applicants allege that their counsel went to the Station and informed the police that the matter is pending in the Court. It seems that the Police waited for the Applicants on the next adjourned date for the civil matter at the Customary Court. So on that day, according to the Applicants, unknown to them the 2nd and 3rd Respondents laid siege at the Court premises, arrested and detained them. The Applicants alleged that they spent huge sum of money before they were granted bail. They also stated that they visited the police station severally and the 1st Respondent never appeared and never established his allegation against them.

From that April 2016 nothing was heard until September 2016. The Applicants stated that on the 22nd September 2016 when the Civil Matter came up, their counsel informed the court about their arrest and detention in the month of April upon which the Chairman of the Customary Court advice the parties to maintain the peace. Despite the advice of the Court, the Respondent made another report to the police which warranted the invitation by the police dated 19th October 2016 requesting the Applicants to appear on the 21st October 2016. This time around, it was on the allegation of Malicious Damage/Threat to life. Nothing was said about the invitation of 8th April 2016.

One cannot but wonder if the Police have concluded the investigation on the Forcible Entry/Conduct or it was the Forcible Entry/Conduct that metamorphosed into the Malicious Damage/Threat of Life

After the industrial action that was embarked upon by the judiciary workers, the civil matter commenced on the 22nd September 2016 and slated for 24th October 2016. The second invitation came on the 19th October 2016 requesting the Applicants to come to the Police Station on the 21st October 2016 (a Friday) while the case was to come up on 24th October 2016 (a Monday).

The trite position of the law is that the Police have powers to invite or arrest any person upon reasonable suspicion of having committed a crime. See FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606 at 670, ONAGORUWA v THE STATE (1993) 7 NWLR (Pt. 303) 28 and OKAWU v IMO STATE COMMISSIONER OF POLICE (2001) 1 CHR 407. In REV. PAUL ENANUGA & ORS v. HON. NSEABASI (CORNELIUS) SAMPSON (2012) LPELR-8487(CA) the Court stated: “The learned authors of Black’s Law Dictionary, 8th edition page 1487 define the term “reasonable suspicion” as “A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. A police officer must have a reasonable suspicion to stop a person in a public place.” Per TUR, J.C.A. (P. 23, paras. E-G)

On the complaint or petition to the Police, the Police have to show how they came to reasonable suspicion that what was alleged against the person in the petition has indeed and in fact aroused their fair, practical or sensible suspicion. See HRH EZE (DR) PETER OPARA & ANOR v. DIAMOND BANK PLC & ANOR (2011) LPELR-4268(CA) The law, as stated in FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606 at 670, is that the Police have a discretion whether or not to conduct an investigation into any allegation of crime made to them and once the discretion is properly exercised, the court will not interfere. In the instance case there are grounds to doubt the propriety of the exercise of the discretion of the police. Here there is a matter in court. The complainant is the claimant in the pending matter civil matter. His earlier complaint leading to the arrest and detention of the Applicants could not be sustained yet he has brought another complaint. There is no report on the earlier complaint neither were the Applicants charged to court for any crime based on the earlier allegation. Again each police invitation is sent close to the date slated for the civil matter in court.

All I can see from the 1st Respondent’s action as deposed in the unchallenged affidavit is an attempt to intimidate, browbeat and subjugate the Applicants through the machinery and instrumentality of the Nigerian Police. I will think that the 1st Respondent who has submitted his case to the Court for determination should be patient enough to wait for the outcome of the case. It is trite law that once parties have submitted their disputes to the court for determination, none of the parties is allowed to do any act or omission that would over-reach the interest of the other pending the determination of the suit. See ABIODUN VS. C. J. KWARA STATE (2007) 18 NWLR (PT.1065) 109 AT 139. PARAS. C-F; 140-141. PARAS. A-B; REGISTERED TRUSTEES, APOSTOLIC CHURCH VS. OLOWOLENI (1990) 6 NWLR (PT.158) 514.

The Applicants were arrested and detained. And according to them they spent huge sum of money before they were released on bail. It is my finding that there are no legal bases for the arrest and detention of the Applicants.  It does not matter for how along the arrest or detention. It is a breach of the fundamental rights of the Applicants once it is without any legal bases. See ALHAJI BALA GUSAU & ORS v. EMEKA UMEZURIKE & ANOR (2012) LPELR-8000(CA).

I am satisfied from the totality of the evidence that the Applicants have shown that the 1st Respondent propelled the 2nd – 4th Respondents to achieve some goals other than the lawful goals of investigation or prevention of crime. Though citizens have the right to report or lay a complaint to the police but such right is abused when it is laced with ulterior drive seeking for oneself collateral advantage. I found it to be so in this case. The intention is to dishevel the Applicants and put them in a state of affair where they will not be able to stand up to the 1st Respondent and defend the claim against them at the Customary Court. I must state that the dedication, fidelity, loyalty and answerability of the police have to be only to the Rule of Law as laid out in the Constitution and other statutes. It must not lend itself to the whim and caprice of few individuals whose sole purpose is protecting their egoistic and inconsiderate tendencies.

Having found that the arrest and detention of the Applicants and the circumstances surrounding the invitation by the Police is a violation of their fundamental rights, it follows that they are entitled to damage. In OZIDE & ORS v. EWUZIE & ORS (2015) LPELR-24482(CA) it was that damages, in compensation, legally and naturally follow every act of violation of a citizen’s fundamental right. See Section 35 (6) of the 1999 Constitution, as amended.

The case of the Applicants succeeds and it is ordered as follows:

  1. It is hereby declared that the continuous harassment, hounding, arrest and detention, threat of arrest of the Applicants by the 2nd, 3rd and 4th Respondents based on the false complaint made to them by the 1st Respondent constitutes a violent infraction of the Applicants’ fundamental rights to personal liberty, freedom of movement and dignity of their human persons as enshrined in sections 34(1).35(1), 36 and 41(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended).
  2. It is hereby declared that the continued harassment, arrest and detention and continuous threat of the Applicants and/or their family members by the Respondents, when the Applicants and/or their family members have not been shown to have committed any crime is unlawful, unconstitutional and an infringement of the fundamental rights of the applicants as set out in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  3. It is hereby ordered that the Respondents jointly and severally pay to the Applicants the sum of Two Hundred Thousand Naira Only (N200, 000:00) as damages.
  4. Order of perpetual injunction is hereby given, restraining the 2nd – 4th Respondents howsoever by themselves, their servants, agents and or privies from further violation of the Applicants’ fundamental rights to personal liberty and freedom of movement based on any unfounded complaint by the 1st

I so hold.

Hon. Justice I. M. Njaka

28th November 2016

Appearances:

  1. N. Nwanwodu Esq. for the Applicant

Respondents not represented

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