IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON TUESDAY, THE 13TH DAY OF DECEMBER, 2022
BEFORE THEIR LORDSHIPS:
ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL
ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/L/201/2018
BETWEEN:
AND
SPECIAL FRAUD UNIT (SFU) LAGOS
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
By an Originating Motion dated and filed on 19th December, 2016, the Appellants as Applicants prayed for the following orders:
The grounds upon which the Application was brought are as follows:
In support of the Originating Application, the Appellants filed a statement and affidavit in support as well as a written address. The 1st – 3rd Respondents and the 4th Respondents filed their respective counter affidavit and written addresses denying the allegation of breach of the Appellants’ fundamental rights. In a well-considered judgment delivered by Honourable Justice S. A. Onigbanjo of the High Court of Lagos State (the “lower court”) on 23rd January, 2018, the cower court found no merit in the Appellants’ suit and dismissed same in limine.
Dissatisfied with the judgment, the Appellants initiated the present appeal vide a Notice of Appeal dated and filed on 5th February, 2018 containing three (3) grounds of appeal. In compliance with the provisions of the extant Rules of this Honourable Court, parties filed and exchanged their respective Briefs of Argument. In the Appellant’s Brief of Argument dated and filed on 24th August, 2018 but deemed properly filed on 23rd March, 2022, two issues were distilled for the determination of the appeal as follows:
In the 1st – 3rd Respondents Brief of Argument dated 21st March, 2022 and filed 22nd March, 2022 but deemed properly filed on 23rd March, 2022, two issues were also formulated for determination, thus:
In the 4th Respondent’s Brief of Argument dated 14th April, 2022 and filed on 20th April, 2022, two similar issues were nominated as follows:
At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal. Meanwhile, the 1st – 3rd Respondents incorporated a notice of preliminary objection in their Brief of Argument, challenging the competence of the appeal. The contention of the 1st – 3rd Respondents’ counsel is that the pith and thrust of the Appellants’ complaints are against the finding of fact, and therefore having filed grounds of mixed law and facts, the Appellants ought to have obtained the requisite leave of this court, before initiating this appeal. He cited Agumadu vs. Agumadu (2022) 2 NWLR (Pt 1813) 127 at 148, paras E – G; Hassan vs. Atanyi (2002) 8 NWLR (Pt 770) 581. It is also counsel’s contention that the Appellants failed to indicate the grounds of appeal from which each of the two issues was formulated, citing Akinlagun vs. Oshoboja (2006) 12 NWLR (Pt 993) 60.
I have carefully considered the submissions made by the 1st – 3rd Respondents above and I must say that the objection is misplaced. In the first place, the decision being appealed against is a final decision, which the Appellants are permitted to appeal against, as of right, and do not require the leave of court to initiate the appeal. The provision of Section 241 (1) (a) and (d) of the Constitution provides that an appeal shall lie as of right from the final decisions of the Federal High Court or a High Court or decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person. The present appeal emanates from a final decision the High Court of Lagos State, bordering on the question as to whether the Appellants’ fundamental rights guaranteed under Chapter IV of the Constitution has been breached. Therefore, leave of court is not required in this case. See Anachebe vs. Ijeoma & Ors (2014) LPELR-23181 (SC).
On the second complaint, it is indeed true that there is always the need that issues formulated for determination are tied to specific grounds of appeal from which they have been formulated. They serve as guides in the event that the competence of the issues is challenged by the adversary. An issue which is not tied to or predicated on any ground of appeal is incompetent and liable to be struck out at the request of the adversary. However, in the instant appeal before us, the competence of the two issues formulated by the Appellants have not been brought to question by the Respondent, the 1st – 3rd Respondents’ complaint on this ground therefore has no leg upon which to stand. See Oko vs. Ntukidem (1993) LPELR-2452 (SC); OMO vs. Judicial Service Commission, Delta State (2000) LPELR-2642 (SC); Odeh vs. FRN (2008) LPELR-2205 (SC); Nsirim vs. Amadi (2016) LPELR-26053 (SC). I therefore find no merit in the 1st – 3rd Respondents’ preliminary objection, same is hereby dismissed.
Curiously, the 4th Respondent also canvassed arguments on the competence of the appeal, under what he labelled “preliminary point”, which obviously is in contravention of Order 10 Rule 1 of the Court of Appeal, Rules, 2021, which prescribes the modalities for the filing of an objection to the hearing of an appeal, and this includes the filing of a notice to that effect. This was not done in this appeal. By Order 10 Rule 2, where a Respondent fails to comply with the Order, the Court is at liberty to refuse the entertain the objection. Therefore, I shall discountenance the arguments canvassed on the competence of the appeal and proceed to determine the appeal on its merit.
I have carefully perused the Record of Appeal compiled and transmitted to this Court in connection with this appeal. I have also considered the issues formulated and arguments canvassed by both counsel in the Briefs of Argument and I am of the firm view that the two issues formulated by the respective parties can be aptly resolved under a sole issue thus:
Whether the lower court was right to have held that the Appellants failed to prove the allegations of infringement of their fundamental rights against the Respondents.
I shall therefore adopt this issue formulated by me as the sole issue to resolve in the determination of this appeal.
Arguing the two issues formulated together, Appellants’ counsel relied on the case of Chief Mrs. Olufunmilayo Ransome-Kuti & Ors. vs. Attorney-General of the Federation (1985) 5 NWLR (Pt 10) 211 at 229 – 230, before submitting that the exercise of statutory powers of the 3rd Respondent is not at large and must be discharged only in such manner as to preserve the fundamental rights of every citizen. It is the submission of counsel that the manhandling, pushing and forceful entry into the 2nd Appellant’s premises on 14th December, 2017 without prior invitation of the 2nd Appellant by the officers of the 1st – 3rd Respondents is without lawful justification, and tantamount to an abuse of statutorily donated investigative powers and a breach of the 2nd Appellant’s rights to personal liberty. He cited sections 34(1) and 36(5) of the Constitution of the Federal Republic of Nigeria (the “Constitution”); Uzochukwu & Ors. vs. Igwe Ezom II (1991) 6 NWLR (Pt 200) 708 at 763 – 778; Alhaja Mogaji & Ors. vs. Board of Customs & Excise (1982) 2 NCLR 552 at 560.
Submitting further on the first issue, Appellants’ counsel argued that at the time of the 2nd Appellant’s arrest on 14th December, 2017, there was no objective basis for the supposition that the 2nd Appellant had committed a crime, as the only facts available to the 3rd Respondent was the complaint the 4th Respondent has selfishly relayed to the 3rd Respondent and no further effort had been made to investigate the allegations of financial crimes alleged against the 2nd Appellant. He relied on the cases of Fawehinmi vs. IGP (2002) 7 NWLR (Pt. 767) 606; and Dr. Patrick Nwangwu & Anor. vs. Barrister John Duru & Anor (2002) 2 NWLR (Pt 751) 265 – 283 in support of his submission. Counsel contended that the relationship between the Appellants and the 4th Respondent is purely a civil transaction and the 4th Respondent decided to use the instrumentality of the Police to enforce the performance of the Appellants’ obligation under the contract, which act, he argues, the law frowns at, relying on the case of Jacob Omman vs. Ekpe (1999) LPELR – 6663; Kenneth Nwadiugwu vs. Inspector General of Police (Unreported Appeal No. CA/L/179/2014). Finally, Appellants’ counsel urged the court to resolve the issues in the appeal in the Appellants’ favour and allow the appeal.
For the 1st – 3rd Respondents, counsel submitted that since the Appellants admitted at paragraph 26 of the supporting affidavit that the 2nd Appellant was not at home when the Police visited his house on December 14, 2016, the Appellants cannot therefore allege that the Police breached the 2nd Appellants’ right to dignity, personal liberty, fair hearing and freedom from compulsory acquisition of property, through the mere dropping of letter of invitation with his wife by the Police. Counsel contended that in the entire averments contained in the supporting affidavit, the Appellants did not identify how the 1st Appellant’s right was breached and that the 1st Appellant, being an incorporated entity cannot be arrested, detained, tortured or have its movement restricted. The case of FBN vs. AG Federation (2018) 7 NWLR (part 1617) 121 at 170, paras A – G was relied upon in support of the contention.
It is also the submission of counsel that the burden of proving a violation of fundamental right guaranteed under the Constitution lies with an applicant who alleges same. See Fajemirokun vs. CBCL Nigeria Limtied (2002) 10 NWLR (Pt 774) 95 SC. He stated that the Appellants failed to provide evidence show how their right to human dignity and personal liberty were breached by the Respondent, citing Onwo vs. Oko (1996) 6 NWLR (Pt 456) 587; Ezechukwu vs. Maduka (1997) 8 NWLR (Pt 518) 635 at 671; Gani vs. IGP (2000) 7 NWLR (Pt 665) 481 at 528; Atakpa vs. Ebetor (2015) 3 NWLR (Pt 1447) 549 at 559. Counsel further contended, relying on the decision in Nnamdi Azikwe University vs. Nwafor (1999) 1 NWLR (Pt 585) 16 at 121, that in determining whether a case reported to the Police was civil or criminal in nature, it is the allegation or complaint lodged against a person that the court has to examine and not the explanations offered by the person the complaint was lodged against. Counsel also submitted that an invitation by the police does not constitute a breach of any fundamental rights guaranteed under the Constitution, citing Seriki vs. Chairman EFCC (2019) LPELR – 47229 (CA); Oniawa vs. AIG Benin City (2007) CHR 69 at 72; Tony Momoh vs. Senate (1982) FRNLR 304 (CA); Governor of Kwara State vs. Lawal (2006) ALL FWLR (Pt 336) 313.
1st – 3rd Respondents’ counsel also submitted that the Appellants did not establish by evidence how their right to fair hearing, freedom of movement, and freedom from compulsory acquisition of property, were curtailed by the Respondents. Counsel noted that the Respondents’ action in relation to this case is justified, as the Respondents’ officers acted within the boundaries of the statutory obligations, citing Hassan vs. EFCC (2014) 1 NWLR (Pt 1389) 607; AG Ondo State vs. AG Federation (2002) 9 NWLR (Pt 772) 222. It is the final submission of counsel that the Lower Court was right to have relied on the correct position of the law to the effect that the court cannot interfere to stop the Police from performing their statutory investigating duties.
For the 4th Respondent, while reiterating similar submissions made on behalf of the 1st – 3rd Respondents above, counsel submitted that the Appellants failed to place sufficient evidence before the lower court. Counsel further said that the 4th Respondent by his counter affidavit controverted the contents of the Appellants’ supporting affidavit and the Appellants did not file any reply to contradict the said denial. He further contended that the Appellants’ allegation that the 2nd Appellant was harassed, intimidated or threatened by the 1st – 3rd Respondents is a bare allegation which is not supported by any evidence, relying on Chairman EFCC vs. Littlechild (2016) 3 NWLR (Pt 1498) 95. He consequently urged this court to affirm the decision of the lower court and dismiss this appeal.
Resolution
Indeed, under Nigerian law, juristic and natural persons can invoke the fundamental rights provisions in the Constitution. However, the general position of the law is that in an action founded on the breach of a fundamental right, an applicant must succeed on the strength of his own case and not on the weakness of the defence. See Jolayemi & Ors vs. Olaoye & Anor (2004) LPELR-1625 (SC). When a person alleges that his/her fundamental right to dignity is breached or likely to be breached, he or she must solidly put before the court evidence to prove his allegation of such an infraction or likely infraction from the affidavit before the court. See Omame vs. NPF & Ors (2021) LPELR - 54747 (CA). Accordingly, the onus of proof is on an applicant to establish by credible and cogent evidence that he is entitled to the reliefs endorsed in the originating process – to wit, that his fundamental rights has been breached or is likely to be breached; and unless the applicant discharges this burden of proof on a balance of probabilities, the burden does not shift to the respondent. See Elegushi & Ors v. Oseni & Ors (2005) LPELR-1111 (SC).
In the instant appeal, the case of the Appellants as deducible from the affidavit filed in support of the Originating Motion is that sometime in 2015, the 4th Respondent being an in-law to the 2nd Appellant, approached the 2nd Appellant requesting to invest in an ongoing dredging and land reclamation being undertaken by the Appellants. The 4th Respondent subsequently paid the sum of N12,000,000.00 (Twelve Million Naira) as part payment for two (2) plots of the waterlogged land. While the reclamation process was ongoing, the Appellants encountered some problem which allegedly occasioned delay in executing the project and delivering the purchased plots of land to the 4th Respondent. It is the Appellants’ case that the 4th Respondent later demanded for a refund of the sums earlier advanced to the Appellants owing to the Appellants’ failure to deliver the plots paid for by the Respondents, and when the Appellants refused to make the refund, the 4th Respondent deployed several means to harass the Appellants. Sometime in 2016, at the behest of the 4th Respondent, the 2nd Appellant was invited by operatives of the Force CID, Nigeria Police, Panti, Yaba, Lagos to answer to a petition submitted by the 4th Respondent for obtaining money under false pretences from the 4th Respondent. Upon honoring the invitation, the 2nd Appellant was made to undertake that he would pay the outstanding sums due to the 4th Respondent in instalments before he was released at Panti, Yaba. While he was making effort to defray the indebtedness, the 4th Respondent caused another petition to be written to the office of the Capital Market Fraud Section of the Special Fraud Unit, Ikoyi, on the same subject matter alleging similar case of obtaining by false pretences. Purportedly acting on the said petition, on 14th December, 2016, operatives of the 3rd Respondent allegedly stormed the residence of the 2nd Appellant in his absence, with a view to arresting the 2nd Appellant. The Appellants claim that unless the Respondents are restrained, the Respondents will detain the 2nd Appellant in respect of a purely civil transaction.
However, in the counter affidavit deposed to by one Bolaji Ayodeji, an Investigating Police Officer under the 3rd Respondent, on 8th December, 2016, the allegations contained in the Appellants’ supporting affidavit were denied. The 1st – 3rd Respondents contended that they are justified in their action in this case; that they had acted within their statutory bounds on the petition written by the 4th Respondent to the 3rd Respondent alleging a case of obtaining by false pretence against the Appellants. It is stated that after studying the Petition, it was discovered that even though the Appellants failed to deliver the agreed plots of land to the 4th Respondent after payment, it was also discovered that the land the Appellants represented to the 4th Respondent as their property did not belong to them and no document of title to the said land was produced. Since there is reasonable ground to suspect that the Appellants have obtained money from the 4th Respondent by false pretence, the 3rd Respondent invited the Appellants to its office.
In its judgment, after evaluating the case of the Appellants, the lower court held that courts do not make it the habit of interfering with law enforcement officers in the exercise of their statutory duties carried out within the ambit of the law. The lower court opined that the Appellants failed to adduce evidence to suggest that the 1st – 3rd Respondents exceeded their statutory authority. The lower court also held that the petition against the Appellants by the 4th Respondent is premised on alleged fraudulent conducts of the Appellants in convincing the 4th Respondent to pay for parcels of land, which never belonged to the Appellants.
It has severally been stressed by the Apex Court over the years in a plethora of cases that Law enforcement agents ought not to be used to recover debts. A case of indebtedness cannot properly translate into a case of stealing and obtaining by false pretence. Where there is a clear case of indebtedness, law enforcement agencies, not being a debt recovery agency have no business to dabble into assisting a creditor in a contractual dispute to recover money owed to him, which is a purely civil transaction. No doubt, the powers of the Police going by the combined effect of the succinct provisions of section 214 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 4 of the Police Act 2004 and all other laws enabling the Police to act, are indeed very enormous but not left at large, and in my view does not cover intermeddling or interfering with the judicial powers of a court of law. See Obiakor vs. FRN (2021) LPELR-54671 (CA).
From the case put forward in their Originating Motion, the Appellants believe that the 1st – 3rd Respondents are being used by the 4th Respondent to settle contractual scores. But the relevant questions here is whether, from the affidavit and documentary evidence provided, it is established that the Appellants’ fundamental rights to personal liberty, dignity, freedom of movement and freedom from compulsory acquisition of property guaranteed under the Constitution, was breached by the Respondents. I must say, having combed through the facts elicited in the Appellants’ supporting affidavit, and the documents annexed thereto, I am unable to accept the Appellants’ claim and contention that their fundamental rights were breached, particularly by the 1st – 3rd Respondents.
The undisputed fact on record shows that the 2nd Appellant had merely been invited to present himself at the office of the 3rd Respondent to answer a case bordering on alleged obtaining by false pretences. Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the Police to carry out an investigation as investigation and detection of crime is one of the primary duties assigned to the Police under the Police Act. See Onah vs. Okenwa (2011) ALL FWLR 337 at 375. In this case, the 1st – 3rd Respondents stated in their counter affidavit, that they had merely acted in line with their statutory duties, upon receipt of a petition alleging that the 2nd Appellant has obtained money by false pretence from the 4th Respondent, written to the Appellants for them to attend the 3rd Respondent’s office to respond to the allegations contained in the petition. I do not think it can be reasonably contended that the invitation of the Appellants by the 3rd Respondent in the exercise of its investigative powers, is unjustified.
Beyond the mere ipse dixit of the 2nd Appellants contained in the supporting affidavit, there is no credible evidence to support a case of harassment, intimidation and threats alleged against the 1st – 3rd Respondents. As a matter of fact, the 2nd Appellant stated in the supporting affidavit that on 14th December, 2016, when the operatives under the 3rd Respondent allegedly stormed his residence, he was not present. In addition, there is nothing on record to suggest any inference that the 2nd Appellant was in fact unlawfully detained by the 1st – 3rd Respondents. Rather, the facts on record which remains undisputed is that the 2nd Appellants is yet to honour the 3rd Respondent’s invitation and had immediately initiated the action leading to this appeal on 19th December, 2016, few days after he was served with the letter of invitation. It is my firm view, which I believe to be the correct one, that the lower court properly evaluated and considered the state of the evidence before it and reached the right conclusion that the Appellants did not adduce sufficient evidence to sustain a case that their fundamental rights to personal liberty, dignity, freedom of movement and freedom from compulsory acquisition of property guaranteed under sections 34, 35, 41 and 44 of the Constitution, were breached or are likely to breached by the 1st – 3rd Respondents. Instructively, the 1st – 3rd Respondents herein cannot be said to have acted beyond their statutory responsibilities. Indeed, I agree that the jurisdiction of the court does not extend to interfering with law enforcement officers in the exercise of their constitutional and statutory duties carried out within the ambit of the law.
Be that as it may, even though the Appellants have not established any unlawful act on the part of the 1st – 3rd Respondents, I must however sound a note of warning to the parties in this case, particularly the 4th Respondent whose conduct in this case is not necessarily unlawful but is capable of setting in motion the process that may result in breach of the Appellants’ rights. It is in evidence, and a fact admitted by the 4th Respondent that he had earlier made a complaint against the Appellants for allegedly obtaining money from him by false pretence at the Force Criminal Investigation Department, Panti, Yaba, Lagos. It was at the Force CID that the 2nd Appellant was allegedly made to undertake to repay the sum of N12.50 Million to the 4th Respondent within three months. The relevant depositions contained in the counter affidavit deposed to on 17th May, 2017 by the 4th Respondent are reproduced as follows:
“9. All efforts were made to reach and persuade Mr. Dapo Shonibare to perform the proposed sale of land but he remained evasive. In September 2015, I had to lodge a report at the Panti Police Station for the fraud.
10. Mr. Dapo Shonibare was invited to the station he owned up to the allegation of taking N12.50million from me to sell the land to me whom he could not deliver. He wrote undertaking to pay up the owed amount within 3 months up to December 2016 but he renege up on his promises. He has strong contact with some of the police officer who were foot dragging on filing charges on him.
11. By December 2016 I had to approach the Special Fraud Unit which is a specialized unit for financial fraud to assist in recovering my money. He was invited to appear and state his own side of the case but he just resorted to frivolous litigation to frustrate the efforts of the police at carrying out their duties….”
It is clear as daylight that it is the intention of the 4th Respondent to use the instrumentality of law enforcement agencies to recover the money due to him from the Appellants and when the 4th Respondent could not achieve his aim with a department of the Nigeria Police under the 1st Respondent, he authored another complaint to another unit under the 1st Respondent on the same subject matter. As a matter of fact, a closer look at the petition dated 8th December, 2016, shows that the 4th Respondent was merely interested in the refund of the money he paid to the Appellants and had failed to disclose the fact that he had previously reported the same matter to the Force CID. This is evidence of bad faith on the part of the 4th Respondent. It is the law that if the report made to the police is made malafide, it takes the report from the angle of an innocent person to that of an interested party who wants to undo or oppress the other person. See Maduka vs. Ubah & Ors (2014) LPELR-23966 (CA). Considering the fact that the Appellants have not shown that 1st – 3rd Respondents’ conduct in this case has transcend beyond their statutory boundary, I will leave the discourse in this appeal here.
Ultimately, the sole issue adopted is resolved against the Appellants. I find no merit in the appeal and it is accordingly dismissed in its entirety. The judgment of the lower court is hereby affirmed. Parties shall bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES
Idoko Kadiri for the Appellant
Daniel Apochi for the 1st – 3rd Respondents
Olukunle Oyewole for the 4th Respondent.
CA/L/201/2018 M. I. SIRAJO, JCA
