Ukpong William John V. Chief Akpan Tommy Eneh Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant had written a petition to the police alleging embezzlement of community funds, impersonation and stealing against the Respondents first, at Odot-Nsit Atai Local Government Area and then, at the State Command Headquarters, Uyo.

The Respondents were invited by the police at the two places where they made statements on the allegations against them and after the visit at Uyo, they approached the High Court of Akwa Ibom State, Uyo for the enforcement of their fundamental rights, after obtaining leave to do so. In statement in support of their application, the Respondents sought for the following reliefs from the High Court:

“1. A declaration that the arrest and detention of the Applicants by the Respondents on the 7th May, 2009, at Ikot Akpan Abia and the threat to further arrest the Applicants and be taken to Zone 6, Nigeria Police, Calabar, is unlawful and unconstitutional, unreasonable and violate Applicants’ fundamental rights to dignity of their person, personal liberty and freedom of movement as guaranteed by the constitution of the Federal Republic of Nigeria, 1999.

2. An order that the Respondents shall jointly and severally pay the Applicant the sum of N6,000,000.00 (Six Million Naira only) being compensation for infraction of their fundamental rights.
3. An order that the grant of leave shall operate as stay of action by the Respondents and their agents in respect of this matter.
4. An order of perpetual injunction restraining the Respondents by themselves, their privies from arresting, detaining, inviting and/or harassing the Applicants; and
5. Any further order(s) as the court may deem fit to make in circumstances of this application.”

Affidavits were filed by the Respondents setting out the facts which led to the application, stating that they were arrested and detained at both the Local Government Area and State Command Headquarters of the Nigeria Police, Uyo as well as threatened with further arrest and detention at the Zone 6 Headquarters of the Police at Calabar. The Appellant had filed a counter affidavit denying the claim of the Respondents and after taking written addresses from the learned counsel for the parties, the High Court in its judgment delivered on the 9/8/10, found thus:

“When the 2nd Respondent made his complaint through petition to the DPO, Odot, he was exercising his right of a citizen to lay complaint to the police. Thereafter it was for the police to decide what action to take on the complaint. See the case of Onah v. Okenwa (2010) 7 NWLR (Pt. 1194) p. 512 Held 6. In this case, the DPO did what he thought was proper in the circumstance. There was therefore no basis, other than show of power, for the 2nd Respondent to make the same complaint to the Commissioner of Police. This later complaint to make mala fide for the purpose of annoying and bringing the applicants on their knees to create an office for him in the village council. A citizen has a right to make a complaint to the police. What is preposterous is for the citizen to shop from one police formation to another hoping to get the one that will dance to his music.

The applicants have not shown for how long they were detained at Police Headquarters, Ikot Akpan Abia. They merely said they were arrested and detained. Once a report or complaint is made to the police, the right shifts to the police who have power under Section 4 of the Police Act to arrest, investigate, interrogate, search and detain a suspect. But whatever action the police takes must be based on facts which are reasonable and justifiable. In this case, the Applicants have not shown otherwise against the 1st Respondent. I find the 1st Respondent not liable.

As regards the 2nd Respondent who set the law in motion against the applicant, I hold that he did not make his complaint to the Commissioner of Police in good faith.”

It then declared and ordered as follows:

“It is ordered that judgment be and is hereby entered in favour of the Applicants as follows:

1. I declare that in making a complaint in bad faith to the 1st Respondent against, the Applicants in the circumstances of this case, the 2nd Respondent, Ukpong William John unlawfully caused the violation of the applicant’s rights to personal liberty and freedom of movement guaranteed by the Constitution of the Federal Republic of Nigeria, 1999.
2. It is ordered that the said 2nd Respondent shall pay to the applicants a sum of N300,000.00 (Three Hundred Thousand Naira) as compensation for the violation of their fundamental rights.”

The Appellant being aggrieved by the above decision of the High Court, appeal against it, vide a notice of appeal dated and filed on the 8/9/10. The grounds contained on the notice of appeal are the declaration and order made by the High Court above by which it was said to have erred in law. Let me quickly point out here that in the case of ALADE v. OGUNDOKUN (1992) 5 NWLR (239) 42 at 52, it was held that merely quoting or repeating a passage of the judgment appealed against does not comply with the provisions of Order 3, Rule 2(2) (now Order 6 Rule 2(2) and (3) of the CAR, 2011) which require that where an error of law is alleged in a ground of appeal, it shall be clearly and concisely stated without any narrative.

Undoubtedly, the Appellants’ two (2) grounds of appeal are simply quotation of passages of the High Court judgment in a narrative form which do not concisely and clearly state the error of law alleged thereby. I am inclined to condone the grounds as they are since the Respondents have not given any indication that they do not know or have any doubt about what the complaints are against the decision by the High Court as envisaged by the grounds of the appeal.

Briefs of argument were filed by the learned counsel for the parties to the appeal in line with the practice in the court as follows:

The Appellants’ brief filed on the 6/1/2011 and Respondent’s brief filed on 21/2/2011 but deemed on 12/5/2011. At the oral hearing of the appeal on the 16/10/12, the learned counsel for the Appellant though duly served with the hearing notice was absent from court without any excuse communicated to the court. On application by the learned counsel for the Respondent; Mike Benson Esq., the court, pursuant to the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules, 2011 treated the appeal as having been duly argued by the learned counsel for the Appellant on the aforementioned Appellants’ brief.