Elizabeth Monday Sambo & Ors. V. Solomon Etim Okon & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice Calabar, Cross River State, delivered by Hon. Justice Okoi I. Itam on 22nd day of March, 2010 entering judgment in favour of the Respondents wherein the appellants being aggrieved, filed their joint Notice of Appeal on 17th May, 2010 challenging the various awards made in favour of the Respondents. The 1st-3rd appellants filed their joint brief of argument on 18th May, 2012.

When the appeal came up for hearing on 16th January, 2013 the names of the 4th, 5th and 6th appellant’s were struck out on the application of the learned Counsel to the appellants. Learned Counsel to the appellant’s adopted the joint brief of argument urging that the appeal be allowed. The 1st-6th Respondents’ joint brief of argument filed on 22nd June, 2012 was also adopted by their learned Counsel who urged that this appeal should be dismissed.

Learned Counsel to the appellants and set out the issues for determination by this Court. The learned Counsel to the Respondents adopted the same issues.

Learned Counsel to the Respondents adopted the same issues as formulated by the appellants. Before delving into the issues 1 shall set out the facts that led to the institution of this suit and subsequent appeal.

On the 15th April, 2009 a fight ensued between the 1st-3rd appellants and the Respondents at No. 5, Howell Street, Calabar, Cross River State where all the parties reside. Both parties reported to the Police. The Respondents were however arrested but later released on bail. They alleged that while in police detention they were tortured by the police. Upon release the Respondents applied on 15th April, 2009 for leave of the lower Court to enforce their fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 1979. The learned trial Judge granted leave on the 22nd day of April, 2009. Hearing of the substantive motion on notice was fixed on the 4th day of May, 2009. The motion on notice was thereafter filed on 29th April, 2009 where in the Respondents sought the following reliefs:

“(a) A DECLARATION that the arrest, torture, humiliation and detention of the 4th Applicant in Police Cell at Cross River State Police Headquarters (CID, section) Calabar on 19/3/2009 as well as the arrest, torture, humiliation and detention of the 2nd Applicant in police cell at Zone 6 police Headquarters, Calabar from 26/3/2009 to 27/3/2009 respectively by agents of the 4th, 5th, and 6th Respondents at the behest of or request of the 1st – 3rd Respondents is without any particular criminal offence against the said Applicants and therefore illegal and a breach of Applicants fundamental rights as guaranteed under Sections 34, 35, 36, 37 and 41 of the constitution of the Federal Republic of Nigeria, 1999.

(b) A DECLARATION that the incessant harassment of the Applicants by the Respondents and threat by the Respondents to arrest, torture and detain the applicants as well as invasion of Applicants’ privacy and to order the 2nd Applicant to be reporting to the police station on a daily basis without which she will be rearrested is without any particular criminal offence against the said applicants and therefore a breach of the fundamental rights of the Applicants, illegal, unlawful and contrary to Section 34, 35, 36, 37, and 41 of the Constitution of the Federal Republic of Nigeria, 1999.

(c) AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents by themselves, their servants, cohorts, privies or agents from further harassing, threatening to arrest, arresting, torturing, detaining, molesting, blackmailing and/or tampering with the applicants Right as enshrined in sections 34, 35, 36, 37 and 41 and 46(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999.

(d) A CLAIM OF EXEMPLARY DAMAGES in the sum of N5,000,000.00 (Five Million Naira) only against the Respondents jointly and severally for breach of the Fundamental Rights of the Applicants as a result of the aforesaid illegal activities of the Respondents.”

The grounds for seeking relief are as follows:

Sometime in 2007, the 1st Respondent borrowed the sum of N20,000.00 from the 2nd appellant but refused to refund/repay within 6 months as agreed in spite of entreaties. Instead the 1st Respondent picked quarrel with the 2nd appellant calling her a witch. That the money which 2nd appellant lent to her was from the witches world, hence she could not make meaningful profit. The 1st Respondent runs a small food canteen at No. 5, Howell Street, Calabar where the 1st, 2nd, 4th and 6th respondents also reside. The 1st appellant further accused the 1st Respondent of being responsible for bad business she was experiencing.

On 17/3/2009, the 1st appellant went to 1st respondent’s residence at No. 5, Howell Street, Calabar, grabbed her by his trouser accusing the 1st and 2nd Respondents of bewitching her and her family and business. That the respondents wanted to kill 1st appellant through witchcraft. As the large crowd surged, the 1st appellant held the 1st respondent’s dress and continued shouting. As the 2nd Respondent rushed out of the 1st appellant picked up an empty bottle and hit him on the head, causing her grievous injury. The 2nd and 3rd appellants also seized the 6th respondent, a 14 year old boy, and mercilessly beat him that he was a small witch. The crowd dispersed with the 1st-3rd appellants when the 2nd respondent collapsed. The 3rd respondent’s daughter got wind of her mother’s injury and rushed to No. 5, Howell Street, Calabar and took her to Mbukpa police Station.

Thereafter the 2nd Respondent was taken to Mambo Clinic and subsequently to the General Hospital, Calabar for further treatment. The Police at Mbukpa police station appeared slow in effecting the arrest of the 1st-3rd appellant or to investigate the matter, the 2nd respondent wrote a petition to the Commissioner of Police, Cross River State against the appellants on 18th March, 2009. Instead of arresting the 1st-3rd appellants the 4th respondent arrested, tortured and detained the Respondents at Cross River state Police Headquarters, Diamond Hill, Calabar on 19th March, 2009. Again on 26/3/2009 about 12 midnight, police from Zone 6, at the behest of the 1st-3rd appellants arrested the 2nd respondent, from her residence at 5, Howell Street Calabar, tortured and detained her at Zone 6 Police cell. The 2nd and 4th respondents were later released on bail with instruction they should be reporting to Zone 6 Police Headquarters, Calabar on daily basis. The police had been visiting the respondents’ residence and for the purpose of arresting and torturing the others for no just cause except to do the bidding of the 1st-3rd appellants. The 1st-3rd appellants swore to deal ruthlessly with the respondents using their police connection. instead of taking the matter to Court as requested by the respondents, the appellants were bent on making the respondents suspects in the case, taking laws into their hands thereby depriving the respondents of their fundamental rights, from freely engaging and carrying on with their legitimate businesses.