Christopher Igbo & Ors V. Gabinus Durueke & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court, Owerri delivered on the 12th day of November, 2008 in favour of the Applicants/Appellants. On the 28th day of June, 2006, the Appellant as applicants filed a motion ex parte against the Respondents for leave to enforce their fundamental rights as enshrined in Section 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 and all other laws in that behalf. The Appellants/Applicants also prayed for six reliefs as stated in their motion ex parte and the reliefs sought by the Appellant/Applicants were as follows:

“1. A declaration that the arrest and detention of the Applicants at Divisional Police Headquarters, Nwaorieubi, Mbaitoli Local Government Area, Imo State, on 26th day of May 2006 by the 2nd and 3rd Respondent at the behest of the 1st Respondent is unlawful and unconstitutional.

2. A declaration that the arrest and detention of the Applicants in Police cell on 13th June, 2006 to 14th June, 2006 of State CID Owerri, Imo State Police Command by the 4th and 5th Respondents at the behest of the 1st Respondent for the same matter reported earlier at Divisional Police Headquarters Nwaorieubi, Mbaitoli Local Government Area, Imo State by the 1st Respondent is unlawful and unconstitutional.
3. A declaration that the arrest and detention of the Applicants in police cell at Zonal Police Headquarters,

Zone 9, Umuahia, Abia State on 22nd -23rd day of June, 2006 to 23 day of June 2006 by the 6th and 7th

Respondents at the behest of the 1st Respondent for the same matter previously reported at the offices of the 3rd and 5th Respondents by the 1st Respondent is unlawful and unconstitutional.

4. An order for the Respondents to pay the Appellants jointly and severally the sum of N5,000,000.00 (Five Million Naira) being damages or compensation for their unlawful violation of the Applicant’s rights to dignity of their human persons and personal liberty as guaranteed under Section 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999.
5. An order for the Respondents to render to the applicants a public apology published in any of the National Newspapers circulating within jurisdiction for their unlawful violation of the Applicant’s rights aforesaid.
6. Perpetual injunction restraining the Respondents howsoever, by themselves, their servants, agents, workmen and or privies from further violation of the Applicants’ rights aforesaid.”

Upon service of the motion on notice on all the Respondents, the 1st Respondent filed a 28 paragraphs counter affidavit on the 3rd day of November, 2006 for himself and on behalf of the 6th to 8th Respondents (See pages 47 – 51 of the Record).

Learned counsel for the Appellants raised an objection on the competence of the 1st Respondent, Gabinus Durueke to depose to the said counter affidavit on behalf of the 2nd – 8th Respondents who are public servants and without the fiat of the Attorney General. Thereafter, on the 16th day of November, 2006 the 2nd to 8th Respondents filed their separate counter affidavit of 14 paragraphs (see pages 47 – 59 of the record)

The Applicants/Appellants again filed a 14 paragraphs affidavit on the 13th day of December 2006 and a further affidavit of 12 paragraphs on 2nd day of July, 2008, (see pages 63 – 71 of the record).

In compliance with the order of the Federal High Court, the Appellants and the 1st Respondent filed and exchanged written addresses while no address was filed by the 2nd – 7th Respondents. The 8th Respondent had been withdrawn and his name struck out on the 6th of June 2008. See pages 75 – 90 of the record.

In his judgment the learned trial Judge granted reliefs 1, 2 and 3 of the applicant/Appellants prayers as they affect the 2nd to 7th Respondents only. The trial court however, refused relief 4 of the Applicants prayers for monetary compensation while prayer 5 though granted was modified by the court in its judgment. Relief 6 was however completely ignored by the trial court. (See pages 126 to 145 of the record.)

The facts that culminated in this appeal and the gravamen of the Appellant’s complaints are that the Appellants were arrested and detained in various police cells in Imo State and Zone 9 Police Headquarters, Umuahia, Abia State on three different occasions allegedly at the instigation of the 1st Respondent, Gabinus Durueke for alleged offences of malicious damage and threat to life by the 2nd to 7th Respondents who are serving policemen and officers within the Nigeria Police Force.

The Appellants claimed that they were first arrested and detained in police cell on the 26th day of May 2006 at the Divisional Police Headquarters, Nwaorieubi in Mbaitoli Local Government Area of Imo State by the 2nd – 3rd Respondents at the instigation of the 1st Respondent. Again from the 13th day of June 2006 to 14th June 2006, the Appellants/Applicants were arrested and detained in Police cell at the State Criminal Investigation Department, Owerri, Imo State by the 4th and 5th Respondents, also at the behest and instigation of the 1st Respondent for the same offences of malicious damage and threat to life reported earlier still by the 1st Respondent.

Subsequently, in a third petition written by the 1st Respondent to the 7th Respondent at Zone 9 Police Headquarters, Umuiahia in Abia State, the 1st Respondent lodged the same complaint of malicious damage and threat to life. The Appellant/Applicants were again allegedly arrested and detained in Police cell Zone 9, Umuahia by the 6th and 7th Respondents from the 2nd day of June, 2000 to the 23rd day of June 2006.

The Respondents however, made attempts at refuting these incessant arrests and detention of the Appellants in police cells on three different occasions and in so doing made contradictory statements in their counter affidavits. See the following: