Alhaja Kudirat Ijaiya Ibiyeye & Anor. V. Abdullahi Gold & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, JCA: (Delivering the leading Judgment)

The appeal is in reaction to the judgment of the Federal High Court of Justice (court below) Ilorin, in Kwara State, declaring wrongful the detention of the respondents by the 2nd appellant acting on reports lodged to 2nd appellant’s agents by the 1st appellant and awarding assorted damages to the respondents against the 1st appellant for infringing the respondents’ fundamental right to personal liberty.

The court below also ordered the 1st appellant to tender public apology in two publications of any local newspaper circulating within Kwara State to the respondents for infringing their fundamental right to personal liberty. Assorted damages were further awarded to the respondents against the 1st appellant for the disruption of the quiet enjoyment of his moveable property (two motor vehicles):

In outline, a written report was made by the 1st appellant to 2nd appellant against the respondents for issuing post-dated dud cheques to the 1st appellant, a money-lender, as security for loan transaction and for threatening to kill the 1st appellant and to destroy her property.

The agents of the 2nd appellant acted on the written report. They arrested and detained the respondents for the purpose of investigation of the complaints. The respondents were eventually released from police detention by the agents of the 2nd appellant. They were not charged to court, 2nd appellants’ agents advised peaceful settlement of the dispute by the parties. .

The court below assessed the affidavit evidence before it. It reached the confusion that the relationship between the 1st, appellant and the respondents was contractual. It held further that the arrest and detention of the respondents and their chattel (two motor-vehicles) were not based on reasonable grounds suggesting they had committed criminal offence(s). The court below proceeded to enter judgment for the respondents in the terms afore stated.

A joint notice of appeal with seven grounds of appeal dated 15/11/2010, but filed on 18/11/2010, signed by Sheni Ibiwoye Esq and Taiye Oniyide Esq. (mistakenly described as “1st and 2nd respondent’s counsel)”, disclosed the gist of the appeal.

Appellants’ bulky brief of argument of 46 pages dated and filed on 14/03/2011, was prepared by their learned counsel, Sheni Ibiwoye Esq and Taiye Oniyide Esq to anchor the appeal. Three issues for determination were derived therefrom to wit:-

1. “Whether the learned trial judge was right when he failed to consider, appraise, refer to and evaluate all the exhibits tendered and relied upon by the 1st appellant in defence of the case made against her before arriving at his decision. If the answer to this issue is in the negative, whether the Appellants’ right to fair hearing has not been violated in the circumstance.
2. Whether the learned trial judge was right to have copiously cited and relied on exhibit “B” being a document clearly marked ‘WITHOUT PREJUDICE’, in entering judgment for the Respondents.
3. Whether from the totality of the evidence available at the lower court, the lower court was right to have held that the Appellants violated the Respondents’ fundamental right”.

Issue 1 was related to ground 1 of the notice of appeal, issue 2 to ground 2 thereof and issue 3 to grounds 3, 4, 5, 6 and 7 of the said notice of appeal.

The appellants canvassed on issue 1 that the documentary evidence of the 1st appellant sustaining her case in the court below that respondents issued dud cheques to her in Exhibits 3(1) – (9) pursuant to the debts credit safes transaction secured by written loan agreement and deed of guarantee in Exhibits 1(1) – (11) as well a letter of acknowledgement and undertaking in Exhibit 2 together with the letter of instruction, Exhibits 4(1) – (5), by the respondents for the transfer of fund to the 1st appellant to defray their indebtedness to her and the letter of harmonization of the indebtedness, Exhibit 5, were not evaluated by the court below; Exhibit 6, the petition written by 1st appellant against the respondents to the 2nd appellant dated 04/01/2010, alleging “criminal cheating, breach of trust, deceit, fraud, issuing of dud cheques, harassment, intimidation and threat of life and properties of the 1st appellant by the respondents” and the 1st to 2nd respondents’ written additional undertaking to the 2nd appellant in Exhibit 7 dated 20/01/2010, admitting issuing post- dated dud cheques to the 1st appellant together with the written additional statement of 1st respondent to the 2nd appellant in Exhibit 8, dated on 19/01/2010 and the 2nd respondent’s additional statement to the 2nd appellant in Exhibit 9 dated 19/01/2010, were equally not considered by the court below, as it did to the respondents’ documentary evidence in Exhibits A -A2- letter of instruction to transfer fund to 1st appellant maintained at oceanic Bank Plc, Exhibit B letter marked “WITHOUT PREJUDICE” containing several proposals, Exhibit C- letter of acknowledgement and undertaking to 1st appellant, Exhibit D- letter by respondents’ learned counsel to the 1st appellant dated 28/01/2010, and 1st appellant’s solicitors’ reply in exhibit D1 dated 10/02/2010, and another letter from the respondents’ solicitors in Exhibit E dated 10/02/2010.

The appellants canvassed further on issue 1 that the documentary Exhibits referred to above formed integral part of the case before the court below and the said court was bound to assess or evaluate them, as it they had bearing on the 1st appellant’s grouse against the respondents with emphasis on Exhibits 8 – 9 where the 1st and 2nd respondents respectively admitted their indebtedness of N24,730,000.00 (Twenty Four Million, Seven and Thirty Thousand Only) to the 1st appellant following the cases of Muhammed v. Abdulkadir (2008) NWLR (Pt. 1076) 111 @ 156, Omega Bank (Nig) Plc v O.B.C. Ltd (2002) 16 NWLR (Pt. 794) 483 @ 521, Karibo v Grend (1992) 3 NWLR (Pt,230) 426 @ 422 to 423 (?), Alao vs Kure (2000) 9 NWLR (Pt.672) 423 @ 432 UBA Plc v. BTN Ind. Ltd. (2006) 19 NWLR (Pt.1013) 61 @ 1137; and that the failure of the court below to consider the appellants’ documentary Exhibits in the same way it considered the respondents’ documentary Exhibits amounted to “biased” adjudication and deprived the appellants of fair hearing following the cases of Saidu v. Abubakar (2008) 12 NWLR (Pt.1106) 201 @ 252, Edet v. The State (2008) 14 NWLR (Pt.1106) 52 @ 67, New Res Int’l Ltd. v. Oranusi (2011) 2 NWLR (Pt.1230) 102 @ 118.

The appellants canvassed on issue 2 that the letter, Exhibit B, was for the exploration of avenues for the amicable settlement of the disputed indebtedness of the respondents to the 1st appellant written on 22/12/2009, by the respondent’s solicitor, after the arrest of the respondents, and marked “WITHOUT PREJUDICE” cutting down the level of the indebtedness to N7,300,000.00 ( Seven Million, Three Hundred Thousand only) and making some proposals to the 1st appellant to liquidate the indebtedness together with the accrued interest thereon by the respondents, which was yet to materialize in a concluded agreement, as the respondents had by Exhibit C, admitted the indebtedness of N24,730,000.00, higher than the proposal of N7,300,000.00 in Exhibit B, consequently the court below was wrong to rely heavily on Exhibit B to resolve the case against the 1st appellant contrary to the decisions in the cases of Evuleocha v ACB Plc (2001) 5 NWLR (Pt 707) 672 @ 684 – 685, Fawehinmi v N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 at 622 – 623.

The appellants canvassed on issue 3 that the court below found there existed a contractual relationship by way of loan agreements, supplemental agreements and deeds of guarantee between the respondents and the 1st appellant from which background rights and obligations between the parties were created entitling the 1st appellant to report the dispute to 2nd appellant on reasonable grounds of the respondents having on committed crime(s) against the 1st appellant, consequently sections 41(2)(a) and 44(2)(c) and (k) of the Constitution of Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) supported with the case Ikem v Nwagwugwu (1999) 13 NWLR (Pt. 633) 140 @ 149 to 150 availed the appellants. Further submissions on issue 3 stated that the evidence before the court below established respondent had knowingly issued dud cheques to the 1st appellant followed later by life threatening messages on the life and properties of the 1st appellant after respondent refused to do equity by making good the indebtedness, therefore the 1st appellant was right to report the alleged criminal acts to the 2nd appellant who rightly exercised his statutory power to investigate the complaints vide the cases of Anuruba v ECB Ltd (2005) 10 NWLR (Pt. 933) 321 @ 345, Allied Bank (Nig) Plc v Bravo W/A Ltd (1996) 3 NWLR (Pt. 439) 710 @ 731 (both on the maxim that he who seeks equity must do equity), Fawahemini v IGP (2002) 7 NWLR (Pt.767) 606 @ 670 (on the power of the 2nd appellant to apprehend suspects and to investigate the alleged commission of crimes), Fajemirokun v C.B (C.L) (Nig) Ltd (2002) 10 NWLR (Pt.774) 75 @ 110, 112 – 114 (on the failure of the respondents to establish their arrest and detention by the 2nd appellant acting on the alleged instigation of the 1st appellant), Ejefor v Okeke (2000) 7 NWLR (Pt 665) 363 @ 381 (on the court taking judicial notice of section 4 of the Police Act) and the string of cases of Adike v Obiareri (2002) 4 NWLR (Pt. 758) 537 @ 582 – 583, Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 @ 736 Onuoha v. The State (2002) 1 NWLR (Pt 748) 406 @ 424, Issa v The State (2007) 12 NWLR (Pt.1049) 582 @ 614, Ezembe v. Ibeneme (2004) 14 NWLR (Pt.894) 617 @ 689 (on the court below acting on speculation, unsubstantiated and extraneous matters to find the appellants liable for infringing the respondents’ fundamental rights to personal liberty and quiet enjoyment of their movables).

The respondents’ joint brief of argument dated and filed on 13/04/2011, was settled by their learned counsel, Mr. Gold. Two issues for determination were formulated in said brief as follows: