UBADINEKE & ORS v. OBI

CITATION: (2018) LPELR-44473(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON FRIDAY, 18TH MAY, 2018Suit No: CA/OW/45/2015

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA Justice, Court of AppealAYOBODE OLUJIMI LOKULO-SODIPE Justice, Court of AppealITA GEORGE MBABA Justice, Court of Appeal

Between1. MRS. CATHERINE UBADINEKE2. SIR. MATHEW EGBU3. MR. MARCEL ECHEMERE4. MR. IFEANYI EHIDO5. MR. IFEANYI EKWUZIE6. MR. UCHE ONYEMA7. MR. BENNETA OKOLIE

- Appellant(s)

AndMR. NDUBUISI OBI - Respondent(s)

RATIO DECIDENDI

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1. POLICE - POLICE INVESTIGATION: Whether a complainant/informant can be held responsible for the resultof a police investigation"By law, every citizen is entitled to fight crime and to report commission of crime to the Police or any lawenforcement agency or authority, for investigation. And I believe a law enforcement authority includes thevillage or Community Leadership and/or legitimate Vigilante group of the Community, approved to helpmaintain the peace of the Community.A person cannot be held liable for breach of one's fundamental rights, simply because he makes a complaintsto the Police, or apprehends a Criminal or one about to commit offence, and subjects him toquestioning/investigation and/or tries to avert break down of the peace in the Community and/or takes stepsto present him to the Police. See the case of Fajemirokun Vs Commercial Bank of Nigeria Ltd & Anor (2009) 5NWLR (Pt. 1135) 558; Onah Vs Okenwa & Ors (2010) 7 NWLR (Pt. 1194) 512 at 535; Comfort Igbe & Anor VsHenry Okeugo: CA/OW/383/2014,delivered on 8/2/17.In Ogbonna Vs Egbulefu & Ors (2018) LPELR - 43810 CA, this Court considered a similar situation, as in thiscase at hand, where the trial Court went on to determine a fundamental action claims, when a CriminalCharge, over the matter that allegedly gave rise to the fundamental right'sbreaches was pending in the Criminal Court. It was held:"I agree with the submissions of the Appellant's Counsel, that by law every citizen has a right and also a dutyto lodge complaint with the police about any crime or wrong doing committed against him or in his presence,or at all, which would require investigation by the police. And Section 4 of Police Act enjoins the Police toinvestigate such complaint and to prosecute the accused, if the complaint is found to have substance. Thereare many judicial authorities to the effect that, a complainant, for merely making a report to the Police, doesno wrong, and cannot be visited with liabilities, resulting from what the Police did with his complaint. Thecomplainant can only be faulted and held accountable, if the report was made malafide, maliciously or falselyand/or that the complainant sponsored the harassment and/or malicious violation of the fundamental rights ofthe victim out of mischief, using the guise of the petition/complaint to the Police.See the case of Fajemirokun vs Commercial Bank Nigeria Ltd & Anor. (2009) LPELR 1231 SC; (2009) 5 NWLR(Pt. 1135) 588, where my Lord, Ogebe JSC said:"Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police fortheir investigation, and what happens after such report is entirely the responsibility of the Police. The citizenscannot be held culpable for doing their civic duty, unless it is shown that it is done malafide."In the case of Onah vs Okenwa & Ors (2010) 7 NWLR (Pt.1194) 512 at 535, it was held:"Every person in Nigeria who feels an offence has been committed has a right to report to the Nigeria Policeforce. Once that right of complaint to the Police, who are custodians of order in the society, is exercised, theright shifts to the police to exercise their statutory powers under Section 4 of the Police Act."The above Principles were followed by this Court in the recent decision, in the case of Mrs. Comfort Igbe &Anor. Vs. Mr. Henry Okeugo & Ors; CA/OW/383/2014, delivered on 8/12/17, where we said:"The right of the Appellants, as 1st and 2nd Respondents, to report the suspected criminal activities of the 1stRespondent (Applicant) to the Police, is constitutionally guaranteed, and protected by law. They could only befaulted, if the report was false and/or founded on malice.I think that was a bona fide complaint by the 1st Respondent, which required investigation, and to which thePolice (2nd to 4th Respondents) acted on, and believed in, hence the arraignment of the Applicant and othersin the charge No. A/35C/2008. In the circumstances, I cannot see why the trial Court roped in the Appellant inthe liability for the unlawful detention of the Applicant (1st Respondent), especially as the trial Court hadearlier held that the arrest of the Applicant (based on the petition of the 1st Respondent) was lawful.Moreover, the charge against the Applicant was pending at the High Court No. 2 Aba, which justified thecomplaint of the Appellant (as 1st Respondent) to the Police." (Underlining mine)In that case of Mrs. Comfort Igbe & Anor. Vs. Mr. Henry Okeugo: CA/OW/383/2014 (supra), it was further held:"In the case at hand, the complaints of the Appellants, founded on obtaining money by false pretences andthreat to life, had been investigated and a charge preferred against the 1st Respondent, was pending in acompetent (Magistrate's) Court. The truth of the allegations by the Appellants can only be determined at theend of the criminal trial, and I do not think it is a right application of the law, to ignore the criminal trial,and/or absolve the 1st Respondent, and hold the Appellants culpable for making the complaints to thePolice." (Underlining mine).In this case at hand, since the Police after investigation of the Respondent's complaint, relating to what henow claims to have constituted a violation of his fundamental rights, appear to have disbelieved him and aretrying him for giving false information to the Police, the claims of the Respondent at the Lower Court shouldhave been suspended until the determination of the Criminal matter and the Respondent could only sustainthat action after the Criminal trial, if the same ends in his favour. In that circumstance, he would not be suingto enforce fundamental rights but for wrongful and malicious prosecution."Per MBABA, J.C.A. (Pp. 25-29,Paras. A-F) - read in context

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ITA GEORGE MBABA, J.C.A. (Delivering the Leading

Judgment): This appeal is against the judgment of the

High Court of Imo State in Suit No. HOR/161/2013,

delivered on 6/2/2014 by Hon. Justice L.C. Azuama,

wherein his Lordship granted the fundamental rights reliefs

sought by the Respondent herein awarded him the sum of

Five Hundred Thousand Naira (N500,000.00) damages

against the Appellants for the infringement of his

fundamental rights. Appellants were the Respondents at

the Lower Court, while the Respondent herein was the

Applicant at the said Court.

At the Lower Court, as per his statement in support of the

application, Applicant sought the following reliefs against

the Respondents jointly and severally:

(a) An Order for the enforcement of Applicant’s

respective fundamental right to personal liberty, right

to dignity of person, right to fair hearing.

(b) An Order of the (sic) perpetual injunction

restraining the Respondents their servants, agents

and privies from infringing upon the fundamental

right of the Applicant.

(c) An Order of the (sic) perpetual injunction

restraining

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the Respondents by themselves, their respective

servants, associate, agents, privies or other,

howsoever called, described from threatening,

harassing, intimidating, inviting for questioning,

disturbing, curtailing or seek to curtail and or

interrupt the Applicant’s right to personal liberty,

right to dignity of person, and right to fair hearing.

(d) N20 Million Naira (sic) damages.

Grounds:

The ground on which this application is made is

based on the breach of the fundamental rights of the

Applicant by the Respondents.”

Applicant filed an affidavit in support of the motion,

exhibits and a Verifying Affidavit, deposed to by Moses Azu

Mba, litigation clerk in the law office of Applicant’s Counsel

office, and stated as follows:

(1) That I am the Litigation Clerk in the office of the

Solicitor to the Applicant in this matter and by virtue

of my position I am conversant with the facts of this

matter.

(2) That I verify all the facts contained in the

Applicant’s statement of facts and affidavit in support

as being the true position of things.

(3) That I know the Applicants (sic) as a businessman.

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(4) That I know the Applicants (sic) as a person of

utmost integrity.

(5) That I know for a fact that the respondents have

been harassing, intimidating and threatening the life

of the Applicants (sic) all in the attempt to try to

frustrate the Applicants (sic) while at the same (sic)

violating his right to liberty, right to personal dignity

and right to fair hearing.

(6) That it will be in the interest of justice to grant

the prayers sort (sic) by the Applicant in this matter.

(7) That I swear to this affidavit in good faith and in

accordance with the Oath law of Imo State.” (See

pages 8 to 10 of the Records of Appeal).

Applicant filed a written address in the case. See pages 11

to 15 of the Records, wherein he relied on the affidavit in

support of the motion and the exhibits thereto.

The 1st Respondent filed a Counter affidavit to oppose the

application (pages 29 – 34 of the Records), and Counsel for

1st to 7th Respondents, F.I. Echendu Esq., filed a written

address on the matter. The 2nd to 7th Respondents had

filed no Counter-affidavit, claiming that they were not

served with Applicant’s motion on Notice.

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Applicant filed a Reply (further affidavit) to 1st

Respondent’s Counter affidavit. After hearing the

application and considering the addresses of Counsel, the

trial Court held for the Applicant, as follows:

“I have no hesitation in holding that the Applicant

was arrested and detained by the Respondents, and

that the arrest and detention were unlawful and

illegal and consequently a violation of his liberty and

dignity of his human person. All that took place in the

action of the Respondents reeks of gross violation of

human right and degrading treatment. I believe that

the Applicant’s money was taken from him for which

Exhibit D was extracted to cover by means of

intimidation – the track of the money collected from

the Applicant. From the amount admitted by the 1st

Respondent, which is short of what Applicant claimed,

and given that other Respondents who were said to

have collected this money from the Applicant did not

defend and deny this, and given also the incoherent

and incredible nature of the said account of the 1st

Respondent about the money of Applicant, I believe

that the Applicant had with him, the sum of N240,000

at the time relevant to

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this matter. In the final analysis, I come to the

conclusion that the Applicant succeeds, except as

regards the claimed damages which I assess at

N500,000 against all the Respondents jointly and

severally, as the law is that where there is an injury,

there is a remedy. The cost of this application is

assessed at N10,000 against the Respondents.” (Page

106 of the Records)

That is the judgment Appellants appealed against, as per

their Notice of Appeal, filed on 1/4/14 (Pages 98 to 102 of

the Records of Appeal). Appellants filed Amended Notice of

Appeal on 6/6/2017 with the leave of this Court granted on

the same date. They filed their Brief of Arguments on

5/9/2016, which was deemed duly filed on the said 6/6/17.

They filed a Reply Brief on 21/7/17, upon being served with

Respondent’s brief, filed on 6/1/17 and deemed duly filed

on 6/6/2017.

Appellants donated five (5) Issues for the determination of

this Appeal, from five (5) grounds of Appeal, as follows:

(1) Whether the Learned Trial Judge was right

prejudging a subject matter before the Magistrate

Court. (Ground 1).

(2) Whether the Learned Trial Judge was right when

he

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held that the Respondent had with him N240,000.00.

(Ground 2).

(3) Whether the Trial Judge was right when he

awarded the sum of N500,000.00 against the

Appellant (sic). (Ground 3).

(4) Whether the Learned Trial Judge was right when

he held that the invitation of the Respondent by the

Vigilante men (3rd – 7th Appellants) and making of

Exhibit D (Undertaking) amounts to arrest, detention

and dignity of human person. (Ground 4).

(5) Whether the Learned Trial Judge was right in law

when he assumed jurisdiction on this matter.

(Grounds).

The Respondent adopted the above issues for the

determination of the appeal, as distilled by the Appellants.

This appeal was heard on 13/3/18, when Counsel, on behalf

of the parties urged this Court accordingly.

On Issue one, Appellants’ Counsel, Ifeoma G. Ihesie Esq.,

(who settled the brief) said that the trial Judge misdirected

himself when he prejudged the subject matter before the

Magistrate’s Court, i.e. the Criminal matter in charge No.

MOR/123C/2012: C.O.P. Vs NDUBUISI OBI – still

pending, and part heard, at Orlu Magistrate Court, wherein

the

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Respondent was charged on 2 Counts of false information

and stealing. He referred to the Charge on pages 40 – 42 of

the Records. Counsel also submitted that a civil matter in

Su i t No MOR/75/2012: MRS. CATHERINE

UBADINNEKE & 6 ORS VS MR. NDUBUISI OBI, filed

by the Appellants against the Respondent, was also still

pending at the Magistrate’s Court and the case touched on

and related to the infraction of the Respondent against the

Appellants.

Counsel said that the Lower Court scuttled these cases at

the Magistrate’ Court, by pulling the rug off the feet of the

Magistrate’s Courts. He argued that it is trite that where a

subject matter is pending in a Court, parties are prevented

from fraudulently seeking to overreach the decision of the

Courts; that this is the doctrine of Lis pendens. He relied on

the case of Haruna Vs Kogi State House of Assembly

(2010) 7 NWLR (Pt.1194) 604 at 657.

Counsel said that the Respondent claimed that he was

beaten up by the 2nd, 3rd, 5th, 6th and 7th Appellants, and

that they infringed on his fundamental rights, had reported

the matter to the Police; that the Police investigated the

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matter and discovered that the Respondent’s allegation

against Appellants was false, and so charged him to Court

in MOR/123C/2012, for false information and for stealing.

And that Appellants in Suit No. MOR/75/2012, also sued the

Respondent for defamation. But while the two cases were

pending at the various Courts, the Respondent brought this

Suit against Appellants in HOR/161/2013 to enforce his

fundamental rights; that while the Criminal Charge and the

Civil claim for defamation were filed in 2012 against the

Respondent, the Respondent’s fundamental right

application was filed in 2013.

Counsel submitted that, at the point that the Police charged

the Respondent for false information and stealing (after the

Police had investigated the complaints of the Respondent

and found it to be false), the remedy of breach of

fundamental rights and enforcement of same, was not

available to Respondent, as he had to await the outcome of

the criminal case and civil claims, on the matter; that if at

the end, the Police failed to prove the charge, the

Respondent’s remedy can be found on malicious

prosecution, and unlawful detention.

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On Issue 2, Counsel said there was nothing to support the

claim by the Respondent that he had with him

N240,000.00, when he was accorded by Appellants; that

the 1st Appellant stated clearly in her Counter affidavit that

the Respondent only handed the sum of N47,000 to one Mr.

Chibuike Oluisakwe; Counsel said that the trial Court came

to the wrong conclusion. Counsel relied on Section 135 and

151 of the Evidence Act, 2011, on the burden of proof on

the Respondent.

Counsel argued that Exhibits A, B and C were procured by

the Respondent for the purpose of this case, and relied on

the case of Iniama Vs Akpabio (2008) 17 NWLR (Pt.

1116) 225; Lambert Vs Nigeria Navy (2006) 7 NWLR

(Pt. 980) 514 and Haruna Vs Modibo (2004) 16 NWLR

(Pt. 900) 487 on the effect of evidence procured for or in

anticipation of a Suit.

On Issue 3, Counsel said there was no basis for the award

of N500,000.00 against the Appellants; that the Respondent

did not establish violation of his fundamental rights.

On Issue 4, Counsel submitted that the invitation of the

Respondent by the 3rd – 7th Appellants for questioning in

their position of Vigilante members did not amount to

arrest,

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detention and violation of Respondent’s rights, that Exhibit

D did not in any way amount to arrest, detention, trial or

violation of the Respondent’s fundamental rights; that the

Exhibit D was clear and unambiguous, and there was

nothing in it to show it was involuntary or written under

threat or coercion; that the content of the document

showed that 1st Appellant said her son reported the

Respondent to the Vigilante 3rd – 7th Appellants) for

chasing her (1st Appellant) with a cutlass; that the

invitation of Respondent to the office of the 3rd to 7th

Appellants cannot be unlawful, especially as it was meant

to stem commission of a heinous offence – murder. Counsel

relied on Societe Generale Vs Afekoro (1999) 11 NWLR

(Pt. 638) at 521.

Counsel said that in a situation where a person who has

committed a crime or is reasonable suspected to have

committed a crime, seeks refuge under Section 35 of the

1999 Constitution of the Federal Republic of Nigeria to

avoid arrest, investigation and possible prosecution, is an

affront to the judicial proceedings, and the intention of the

Constitution.

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He relied on Asari Dokubo Vs FRN (2007) 123 NWLR

(Pt. 1048) 320 at 360.

Counsel re-stated the facts as presented by the Appellants;

that Respondent was accused of stealing breadfruit

belonging to 1st Appellant and this was reported to their

kinsmen by the 1st Appellant; Respondent was summoned

before the kinsmen and he admitted the offence. After the

adjudication of the matter by the kinsmen, the Respondent

chased 1st Appellant with a cutlass and 1st Appellant’s son,

Chijoke Ubadineke, reported this attack on 1st Appellant to

the Vigilante of the Community, who invited the

Respondent for questioning. The Respondent honored the

invitation of the Vigilante (represented by 3rd to 7th

Respondents). Upon that admission, they decided to take

Respondent to the Police, but Respondent pleaded for

forgiveness, in order to avert going to the Police station;

that he was forgiven and he made Exhibit D, to be of good

behavior; that thereafter, and surprising, the Respondent

lodged complaint at the Police station against Appellants,

but when the Police investigated his claims, found same to

be false and rather charged him for giving the Police false

information and for stealing. (See the Counter affidavit of

1st Appellant on pages 29 – 34 of the Records).

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Counsel said that the trial Court founded it decision on the

fact that 3rd to 7th Appellants did not report any case to

the Police against the Respondent. Counsel wondered what

the Appellants could have reported, after the Respondent

had pleaded for forgiveness and made the Exhibit D, to be

of good behavior!

On Issue 5, Counsel submitted that the trial Court did not

have jurisdiction to adjudicate in the matter, because

Appellants were not served as required by law. Counsel

relied on Order V Rule (2), (7) of the Fundamental Rights

Enforcement Procedure Rules. Counsel said that the 2nd to

7th Respondents were not served with the Originating

Motion, as shown by the affidavit of the 1st Appellant

(paragraph 2 thereof – Page 25 of the Records) who stated

that she was served by the Bailiff of Court on behalf of 2nd

to 7th Respondents (Appellants); Counsel said that by law,

2nd to 7th Appellants were to be served personally; that 1st

Appellant could not be taken as agent of the other

Appellants, for the purpose of the case.

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Counsel relied the case of Ngige Vs Achukwu (No. 1)

2 0 0 5 3 W R N 1 1 4 ; H a b i b N i g . L t d V s

Opomulero (2000) 15 NWLR (Pt. 690) 315 and Joseph

Ali and Ors Vs IGP & Ors, on the need to effect proper

service of originating process to vest the Court with

jurisdiction. He also relied on Obiegwe Vs A.G. Fed

(2014) 5 NWLR (Pt. 1399) 171; Anyanwu Vs Ogunewe

(2014) 8 NWLR (Pt. 1410) 437 SC; Emenike Mbanugo

& C Vs FBN PLC (2014) 16 NWLR (Pt. 1434) 621 CA;

WAEC Vs Akinkunmi (2008) 9 NWLR (Pt. 1091) 151.

Counsel added that the Fundamental Rights Enforcement

Procedure is Sui generis and does not admit of other rules,

like the procedure under writ of summons; that the rules of

the fundamental rights must be followed strictly. He relied

on Effiong Vs Ebong (2007) 23 WRN 63 at 90. He

observed that 1st Appellant did not depose to the Counter

affidavit on behalf of the 2nd to 7th Appellants, but for

herself, alone, and that the trial Court had acknowledged

that 2nd to 7th Appellants did not defend the Suit.

Counsel urged us to resolve the Issues for Appellants and

allow the Appeal.

The Respondent’s Counsel, B.I. Onyekwere Esq, (who

settled the Brief), on Issue one said the trial Court did not

prejudge the matters at the Magistrate Courts; that this

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issue was never raised at the trial Court; that by law

Appellants cannot raise this issue on appeal, having not

been an issue at the trial Court. He relied on Shonekan Vs

Smith (1964) 1 ALL NLR 168; Okuojeror Vs Sagay

(1958) WRN NLR 70; Mogaji Vs Cadbury Nig Ltd

(1985) 7 SC 59.

Counsel admitted that issues of defamation of character

and false information were pending at the Magistrates

Court as at the time the Respondent filed this Suit, to

enforce his fundamental rights, but argued that there is,

certainly, no law that demands that Fundamental Rights

matter must wait for another Civil or Criminal matters

based on same or related facts, to be heard first; that that

will run contrary to the provisions of the preamble to the

Fundamental Rights Rules, 2009, Section 1(9) thereof.

On Issue 2, Counsel said the trial Judge mentioned the

issue of N240,000.00 as obiter, hence he did not order that

Appellants should refund the money, and did not also make

any order based on the issue of the said N240,000.00. He

argued that that ground of appeal was not founded on the

ratio decidendi of the judgment but on obiter dictum and so

incompetent.

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He relied on Lake Vs Lake (1955) 2 ALL ER 538; CPC

VS INEC (2012) ALL FWLR (Pt. 617) 605; Saraki &

Ors Vs Kotoye (1992) 3 NSCC 331.

On Issue 3, Counsel said the trial Court was right to award

the damage of N500,000.00 against the Appellants, having

found that Respondent’s fundamental rights were violated

by the Appellants.

On Issue 4, Counsel said the Judge was right to hold that

3rd to 7th Appellants’ (Vigilante men) invitation to the

Respondent and making him (Respondent) to make Exhibit

D, amounted to arrest, detention and trial of the

Respondent, and violation of his rights; that, as Vigilante,

the 3rd – 7th Appellants had no authority to exercise the

powers of arrest and detention of the Respondent.

On Issue 5, Counsel said the Trial Court was right to

assume jurisdiction in the case; that Appellants (2nd to 7th)

were complaining that they were not served, personally,

not that they were not served at all. He said there is a

difference between being served with the process of Court,

and being served personally; that the reality is that

Appellants were served and were represented by Counsel

in the

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proceedings; that not filing a Counter affidavit is a matter

of choice of the affected Appellants, in a matter they were

represented by a Counsel in Court; that that is not enough

reason to deny the Court jurisdiction.

Counsel urged us to resolve the Issues against the

Appellants and dismiss the Appeal.

In his Reply Brief, Appellants said the Issue of pendency of

the Criminal and Civil Cases at the Magistrates’ Court

(MOR/123C/2012 and MOR/75/2012) was not a fresh issue,

but formed part of the arguments at the lower Court. Thus,

it was not being raised as fresh issue.

RESOLUTION OF THE ISSUES

I think the five Issues distilled by the Appellants for the

determination of this Appeal can be collapsed into one

namely:

Whether the Learned Trial Court was right to

entertain the Application and conclude that the

Respondent’s fundamental rights had been violated

by the Appellants, when it was obvious and

acknowledged by the trial Court, that Charge No.

MOR/123C/2012 and Suit No. MOR/75/2012 were

pending at the Magistrates Court, over the same

subject matter or relating to the same issues raised in

the Fundamental Rights Suit filed

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subsequently, and between the same parties?

A brief facts of this case at the Lower Court, shows that the

Respondent brought this case on 17/10/13, by application

to enforce his fundamental rights, under the Fundamental

Rights (Enforcement Procedure) Rules, 2009 (FREPR),

claiming breaches of his fundamental rights by 1st to 7th

Appellants; that sometime in May 2012, 1st Appellant

accused the Respondent of stealing her breadfruit from her

farm and reported him to her kinsmen, who summoned the

Respondent and he allegedly admitted the offence before

the kinsmen, but thereafter attacked her (1st Appellant) by

chasing her with a cutlass. The complaint of this attack was

lodged at the Vigilante office of the Community, under the

3rd to 7th Appellants, and the Respondent was invited by

the Vigilante office. There, the Respondent was questioned

as to the attack on the 1st Appellant. The 3rd to 7th

Appellants decided to take the Respondent to the Police,

but he pleaded for forgiveness which made the Appellants

to extract an undertaking from him (Exhibit D) to be of

good behavior, as condition for forgiving him. The

Respondent later reported the Appellant to the

Police who after investigation of

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the complaint, turned against the Respondent and charged

him to Magistrate’s Court in MOR/123C/2012, for giving

the Police false information and stealing. That was in 2012,

and the Appellants also sued the Respondent in a Civil Suit

MOR/75/2012 for defamation relating to the said false

information. Despite the pendency of the said Criminal

Charge and the Civil claims at the Magistrates Court, the

Respondent filed this fundamental rights action on the

same issues waiting to be determined at the Criminal Court

and the trial Court gave him hearing and judgment. Was

the trial High Court prejudging the matters at the

Magistrate’s Courts (including the Criminal Charge) and

was it right to do so –entertain the Fundamental rights

matter and determine it in the circumstances?

The Criminal Charge at the Magistrate’s Court in

MOR/123C/2012 was reproduced at pages 41 – 42 of the

Records, as follows:

COMMISSIONER OF POLICE

VS

GABRIEL NDUBUISI OBI ‘M’ AGED 46YRS

That you Gabriel Ndubuisi Obi ‘m’ within the months

of May and July 2012 at Orlu Police Station and

Police

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State Headquarters in the Orlu Magisterial District,

did give false information to the Commissioner of

Police and DPO Orlu Division, persons employed in

the public service of Nigeria, to wit: Nigeria Police

Force, by forwarding to them a report in which you

stated that one Sir Mathew Egbu ‘m’, Mrs. Catherine

Ubadineke ‘f’, Ifeanyi Chido ‘m’ and others, conspired

and robbed you of N240,000, an information you knew

to be false and which caused the Commissioner of

Police and the DPO Orlu to exercise their lawful

power by directing Inspr. Rauni Piradyangakay and

team of State CID, Owerri, to investigate the

complaint to the annoyance and injury of Sir Mathew

Egbu, Catherine Ubadineka, Ifeanyi Chido and

thereby committed an offence punishable under

Section 125A(1) (b) of the Criminal Code Cap “C38”

Laws of the Federation of Nigeria 2004, as application

in Imo State.

COUNT II: That you Gabriel Ndubuisi Obi ‘m’ on the

18th day of May, 2012 at Umuechem Okporo Orlu in

the Orlu Magisterial district did steal one bag of

bread fruit valued N6,000.00 property of one Mrs.

Catherine Ubadineke ‘f’ and you thereby committed

an

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offence under Section 390 of the Criminal Code Cap

“38” Laws of the Federation of Nigeria 2004, as

applicable in Imo State.

Date of Arraignment: 19/12/12.”

As seen above, the foundation of the Charge is the same

N240,000.00, which Respondent (according to the Charge)

claimed he was robbed of by the 2nd Appellant, the 1st

Appellant, the 4th Appellant and others. The same

N240,000.00 is what the Respondent claimed he took to

bank on 23/5/2012, but was attacked and forced to the

office of the 3rd to 7th Appellants. He averred in

paragraphs 4 to 7 of his affidavit, thus (pages 3 to 4 of the

Records):

“(4) That on the 23rd day of May, 2012, I was going to

Okporo Micro Finance Bank to deposit the sum of

N240,000.00…

(5) That on getting to the said bank, the next thing I

heard was a commanding voice saying “do not open

the gate for him, he is a suspect.”

(6) That based on this, I turned back to the direction

of the voice but was ordered by the 3rd, 5th and 6th

Respondents to co-operate; later the 2nd and 7th

Respondent (sic) joined them in ordering me to

Okwubaha.

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(7) That the next thing is that they forced me to their

presumed office at Okwubaha, pulled off and took my

trouser and shirt, which contained N240,000.00,

which I was going to deposit in the bank. They also

collected my sandal and handset from me as well as

seized my bicycle.”

In paragraphs 10 to 12, 14 to 17, of the affidavit,

Respondent further said:

(10) That they forced me to answer the questions, all

the members of the group started beating me. The

beating continue until I fell down and became

unconscious, they all left and disappeared.

(11) That after some hours, they came back, and on

discovering that I regained consciousness, they

brought the first respondent alleging that the woman

accused me of stealing her breadfruit and also that I

used machete to chase her in her farmland.

(12) That they again started beating me to agree to

the allegations against me.

(14) That at this time, the crowd that gathered to

watch them had become angry with the way they were

beating me and they now were saying that if I

committed any offence I should be taken to the Police

or to the Eze of the Community… At this point, they

brought my shirt,

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sandal, phone and bicycle they collected from me and

gave it back to me, when I counted the money which

was originally N240,000.00, what I saw was only

N47,000.00.

I started asking them for the remaining money

totaling N193,000.00.

(15) That as this was going on, they now took me

promising to take me to the Police. As the crowd was

getting more angry against them, on the way, instead

of taking me to the Police… they took me to

Okwudulu to an abandoned building and insisted that

they will kill me unless I signed an undertaking they

prepared and in the undertaken (sic) they made me

promise them that I will be of good behavior (sic) to

save my life, I signed the said undertaking…

(16) That they now said I will not go until I bail

myself.

(17) That it was then that the sum of N2000.00 was

paid to them from the remaining N47,000.00 before

they allowed me to go.” (Pages 4 and 5 of the Records

of Appeal).

In Paragraphs 19 to 25 of the affidavit, Respondents

admitted he lodged complaint with the Police on the matter

at Orlu Police Station, and Appellants were arrested and

later granted bail, but that the Police later turned against

him

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and charged him for giving the Police false information;

that he pleaded not guilty to the charge. He admitted the

Exhibit D as the undertaking he signed. He filed the

fundamental rights action to claim redress over the same

complaints he was standing trial on at the Magistrate’s

Court – giving the Police false information.

Why did the Respondent not reserve all these facts and

evidence for his defence at the Magistrate’s Court, over the

Criminal Charge of giving the Police false information and

for stealing? He claimed the crowd that witnessed the way

Appellants treated or tortured him were sympathetic to him

and expressed their anger against the Appellants. That

means, he would not lack witnesses to prove the truth of

his complaint to the Police. He however, pre-empted the

Criminal trial Court and misled the trial Court to do the

unthinkable, in my opinion, prejudge the Criminal Case at

the Magistrate’s Court!

I think the Learned Trial Judge should have been more

circumspect, having come to know that a Criminal Charge,

filed in 2012, was pending in a competent Court and that

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Respondent was on trial on the falsity of the very

complaints with which he based his claims for infringement

of his fundamental rights. 1st Appellant’s Counter affidavit

had clearly brought out the pendency of the said Criminal

Charge (MOR/123C/2012) against the Respondent, for

giving false information to the Police over the same

complaints of the Respondent upon which the alleged

breach of fundamental rights were predicated. The

Respondent had generously admitted that he was standing

trial over the alleged false information to the Police and for

stealing, which shows that the complaint of 1st Appellant

against the Respondent was believed by the Police, hence

they (Police) initiated his (Respondent’s) trial. It also

shows, in my opinion, that the 2nd to 7th Appellants were

not faulted by the Police in the way they (Appellants)

handled the complaint of 1st Appellant against the

Respondent, when they summoned him for questioning, as

a Vigilante group, and tried to make peace in the

Community, including extracting an undertaking to be of

good behavior – Exhibit D – from the Respondent.

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By law, every citizen is entitled to fight crime and to report

commission of crime to the Police or any law enforcement

agency or authority, for investigation. And I believe a law

enforcement authority includes the village or Community

Leadership and/or legitimate Vigilante group of the

Community, approved to help maintain the peace of the

Community.

A person cannot be held liable for breach of one’s

fundamental rights, simply because he makes a complaints

to the Police, or apprehends a Criminal or one about to

c o m m i t o f f e n c e , a n d s u b j e c t s h i m t o

questioning/investigation and/or tries to avert break down

of the peace in the Community and/or takes steps to

present him to the Police. See the case of Fajemirokun Vs

Commercial Bank of Nigeria Ltd & Anor (2009) 5

NWLR (Pt. 1135) 558; Onah Vs Okenwa & Ors (2010)

7 NWLR (Pt. 1194) 512 at 535; Comfort Igbe & Anor

Vs Henry Okeugo: CA/OW/383/2014,delivered on

8/2/17.

In Ogbonna Vs Egbulefu & Ors (2018) LPELR – 43810

CA, this Court considered a similar situation, as in this case

at hand, where the trial Court went on to determine a

fundamental action claims, when a Criminal Charge, over

the matter that allegedly gave rise to the fundamental

right’s

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breaches was pending in the Criminal Court. It was held:

“I agree with the submissions of the Appellant’s

Counsel, that by law every citizen has a right and also

a duty to lodge complaint with the police about any

crime or wrong doing committed against him or in his

presence, or at all, which would require investigation

by the police. And Section 4 of Police Act enjoins the

Police to investigate such complaint and to prosecute

the accused, if the complaint is found to have

substance. There are many judicial authorities to the

effect that, a complainant, for merely making a report

to the Police, does no wrong, and cannot be visited

with liabilities, resulting from what the Police did

with his complaint. The complainant can only be

faulted and held accountable, if the report was made

malafide, maliciously or falsely and/or that the

complainant sponsored the harassment and/or

malicious violation of the fundamental rights of the

victim out of mischief, using the guise of the

petition/complaint to the Police.

See the case of Fajemirokun vs Commercial Bank

Nigeria Ltd & Anor. (2009) LPELR 1231 SC; (2009) 5

NWLR (Pt. 1135) 588, where my

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Lord, Ogebe JSC said:

“Generally, it is the duty of citizens of this country to

report cases of commission of crime to the Police for

their investigation, and what happens after such

report is entirely the responsibility of the Police. The

citizens cannot be held culpable for doing their civic

duty, unless it is shown that it is done malafide.”

In the case of Onah vs Okenwa & Ors (2010) 7 NWLR

(Pt.1194) 512 at 535, it was held:

“Every person in Nigeria who feels an offence has

been committed has a right to report to the Nigeria

Police force. Once that right of complaint to the

Police, who are custodians of order in the society, is

exercised, the right shifts to the police to exercise

their statutory powers under Section 4 of the Police

Act.”

The above Principles were followed by this Court in

the recent decision, in the case of Mrs. Comfort Igbe

& A n o r . V s . M r . H e n r y O k e u g o & O r s ;

CA/OW/383/2014, delivered on 8/12/17, where we

said:

“The right of the Appellants, as 1st and 2nd

Respondents, to report the suspected criminal

activities of the 1st Respondent (Applicant) to the

Police,

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is constitutionally guaranteed, and protected by law.

They could only be faulted, if the report was false

and/or founded on malice.

I think that was a bona fide complaint by the 1st

Respondent, which required investigation, and to

which the Police (2nd to 4th Respondents) acted on,

and believed in, hence the arraignment of the

Applicant and others in the charge No. A/35C/2008. In

the circumstances, I cannot see why the trial Court

roped in the Appellant in the liability for the unlawful

detention of the Applicant (1st Respondent),

especially as the trial Court had earlier held that the

arrest of the Applicant (based on the petition of the

1st Respondent) was lawful. Moreover, the charge

against the Applicant was pending at the High Court

No. 2 Aba, which justified the complaint of the

Appellant (as 1st Respondent) to the Police.”

(Underlining mine)

In that case of Mrs. Comfort Igbe & Anor. Vs. Mr.

Henry Okeugo: CA/OW/383/2014 (supra), it was further

held:

“In the case at hand, the complaints of the

Appellants, founded on obtaining money by false

pretences and threat to life, had been investigated

and a charge

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preferred against the 1st Respondent, was pending in

a competent (Magistrate’s) Court. The truth of the

allegations by the Appellants can only be determined

at the end of the criminal trial, and I do not think it is

a right application of the law, to ignore the criminal

trial, and/or absolve the 1st Respondent, and hold the

Appellants culpable for making the complaints to the

Police.” (Underlining mine)

In this case at hand, since the Police after investigation of

the Respondent’s complaint, relating to what he now claims

to have constituted a violation of his fundamental rights,

appear to have disbelieved him and are trying him for

giving false information to the Police, the claims of the

Respondent at the Lower Court should have been

suspended until the determination of the Criminal matter

and the Respondent could only sustain that action after the

Criminal trial, if the same ends in his favour. In that

circumstance, he would not be suing to enforce

fundamental rights but for wrongful and malicious

prosecution.

I see merit in this appeal and so resolve the Issue(s) for the

Appellants and allow the Appeal.

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I set aside the decision of the trial Court and dismiss the

Suit of the Appellant in HOR/161/2013, delivered on 6/2/14.

The Respondent shall pay cost of N50,000.00 to the

Appellants.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have

had the opportunity of reading before now the lead

judgment just delivered by my learned brother, Hon. Justice

Ita George Mbaba, JCA. Having duly perused the same, I

agree with his reasoning and conclusion that the appeal

should be allowed. I accordingly hereby allow it. I also

abide by the consequential orders made therein, including

the order made with regard to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

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Appearances:

IFEOMA G. IHESIE ESQ. For Appellant(s)

B.I. ONYEKWERE ESQ. For Respondent(s)

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