MANAJA MANU AND ANOR V. ZUBAIRU AHMADU & ORS

Legalpedia Citation: (2015) Legalpedia (CA) 11833

In the Court of Appeal

HOLDEN AT JOS

Tue Jun 30, 2015

Suit Number: CA/J/133/2012

CORAM

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

SAIDU TANKO HUSAINI JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL JUSTICE, COURT OF APPEAL

PARTIES

1. MANAJA MANU
2. DIMAS MANU

APPELLANTS

1. ZUBAIRU AHMADU
2. JEREMIAH BEDDI

3 ADAMU IDRIS

4 BITRUS DIO

5. COMMISSIONER OF POLICE GOMBE STATE

RESPONDENTS

AREA(S) OF LAW

LAW OF TORTS, CONSTITUTIONAL LAW, LAW OF EVIDENCE, CIVIL PROCEDURAL LAW, CRIMINAL PROCEDURAL LAW, ADMINISTRATIVE LAW, LAND LAW, APPEALS, PRACTICE AND PROCEDURAL LAW

 

SUMMARY OF FACTS

This Appeal is against the Judgment of the High Court of Justice, sitting in Gombe.

 

The facts leading to this case is the construction of a block of building by the defendants who claimed they had the authority and the instruction of Pobawure Community and Billiri Local Government to put that structure. This explanation was not good enough to stop the building and the structure on the land in dispute being demolished or pulled down by the 2nd Plaintiff. A report lodged with the Police led to the arrest and detention of the 2nd Plaintiff who was released only after signing an undertaking to make good the property and losses occasioned by his conduct. But Plaintiffs were not done yet as they took out a writ of summons against all the Defendants, including the Commissioner of Police, the 5th Defendant before the trial Court. The Defence denied the claim. There are two sets of defendants to this case at the trial Court. The first set comprising the 1st -4th defendants filed a joint Statement of Defence on the 2/4/2001 to deny the claim. The 5th defendant, the commissioner of Police filed an application to seek extension of time to file defence out of time, but it does not appear to me on the face of record before us that the application was ever moved let alone granted. The case nevertheless went into trial. Evidence was called by parties on both sides. Some Exhibits were tendered and at the conclusion of hearing, the trial Court delivered Judgment and dismissed Plaintiffs’ case. Visibly disturbed by the outcome of the case at the High Court, Gombe State, the Plaintiffs lodged appeal to this Court.

HELD

Appeal dismissed.

ISSUES

1. Whether from the evidence on record the learned trial Judge was right in dismissing the claims of the Appellants for trespass and injunction (distilled from Grounds 2, 3, 4 and 5).?
2. Whether the learned trial Judge was right in dismissing the claims of the Appellants for wrongful arrest and detention of the Appellants (distilled from ground six).?
3. Whether the Judgment of the trial Court is not a nullity for breach of fair hearing against the Appellants (distilled from Ground one)?

 

RATIONES DECIDENDI

FAIR HEARING – WHETHER OR NOT THE RIGHT TO FAIR HEARING IS SACROSANCT

The right to hearing or fair hearing is sacrosanct. So important is it that any allegation of breach of right to hearing is treated with utmost consideration and examination of facts leading to the allegation being made. This has to be so in view of the pre-eminence and sanctity with which the Constitution has accorded to all rights especially right guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides:

“36 – (1) in the determination of his civil right and obligations, including any question or determination by or against any Government or authority a person shall be entitled to a fair hearing within a reasonable time by  a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”

Legal literature and indeed our law reports on this subject are plenty and never in short supply on what fair hearing entails, when a hearing is fair or not or when there is total absence of hearing. In Duke Vs. Government of Rivers State (2013) LPELR-1987 (SC) the apex Court speaking on fair trial within the context of Section36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) held that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties. Both sides in a trial must be given the opportunity to present their respective cases. Fair hearing or trial according to the apex Court implies that each side has the right to know what case is framed against it and be given ample opportunity to Respond thereto. See also: Millitary Governor Imo State Vs. Chief Nwa Uwa (1997) LPER-1876 (SC); Olutayo Vs. FUT. Minna (2007) 13 AWLR (Pt. 1051) 274 (CA). Clearly therefore, the right to fair hearing is a fundamental one in line with the Constitution of Federal Republic of Nigeria and any non-compliance by the Courts will render decisions of those Courts a nullity and liable to be set aside. See: Ojengbede Vs. Esan (2001) 18 NWLR (Pt. 746) 771; Orisakere & Sons Ltd V. Afribank PLC (2012) LRELR-20094 (CA). PER – SAIDU TANKO HUSANI, JCA.

TITLE IN LAND – DUTY OF A CLAIMANT TO LEAD EVIDENCE AND PROVE THAT THEY HOLD EXCLUSIVE POSSESSORY TITLE OVER LAND IN DISPUTE

By the very nature of claim at the trial Court which is claim for damages for trespass and injunction and the denial by defence that the land in disputes does belong to the plaintiff, issue of title over the land in dispute inevitably become an issue, and for which parties must advert their mind and address. The duty on the claimants or plaintiffs is for them to lead evidence and prove the fact that they hold exclusive possessory title over the land in dispute. See: (1) Provost, Lacoed. V. Edun (2004) 6 NWLR (Pt. 870) 76 or (2004) 2 SC (Pt. 11) 17. (2) Ayanboye V. Balogun (1990) NWLR (Pt. 151) 392 or (1990) 9-10 SC1. (3) Animashaun V. Olojo (1990) 9-10 SC 103 or NWLR (Pt. 152) 111. (4) Dosumu V. NNPC (2014) 6 NWLR (Pt. 1403) 202, 309. (5) Amakor V. Obiefuna (1974) All NLR (Pt. 1) 119. PER – SAIDU TANKO HUSANI, JCA.

REPRESENTATIVE CAPACITY – THE POSITION OF THE LAW ON REPRESENTATIVE CAPACITY

It is settled after all from a plethora of decided cases that once the pleadings and evidence established conclusively, a representative capacity and that the case has been fought or defended throughout in that capacity a trial or Appellate Court can or will be entitled to enter Judgment or against the party in that capacity even an amendment to reflect that capacity had not been applied for or Obtained. See: Shell Petroleum Development Company Nigeria Ltd. Vs. Edamkue & Ors. (2009) LPELR – 3048 (SC); Wahab Alamo Sepo Vs. Bintu Summonu (supra); NTA Vs. Amigbo (1972) 5 SC 156; Ayeni Vs. Sowemimo (1982) 5 SC 60; Oseni & Ors. Vs. Dawodu & Ors. (1994) 4 SC NJ (Pt. 1) 197, 209 or (1994) 4 NWLR (Pt. 339) 405-406, 411 – 412. PER – SAIDU TANKO HUSANI, JCA.

ACTION ON DAMAGES FOR TRESPASS AND INJUNCTION – THE BURDEN OF THE CLAIMANT TO SATISFY THE COURT THAT HE HAS EXCLUSIVE POSSESSORY RIGHT OVER THE LAND OR PROPERTY

Where an action is founded on damages for trespass and injunction, the Plaintiff or Claimant has by that stance held himself out as having exclusive possession of the land or property to which his action relates such that any interference with that property or land by any other person constitute trespass except such person who can prove better title. On such person lie the initial burden to satisfy the Court that he has exclusive possessory right over the land or property. See: Awoonor-Renner Vs. Annan 2 WACA 258; Lawson Vs. Ajibulu (1997) 6 NWLR (Pt. 107) Fashikun VI & ORS. Vs. Oilronke II & ORS. (1999) 2 NWLR (Pt. 589) 1 or (1999) 1 SC 16. PER – SAIDU TANKO HUSANI, JCA.

PROOF OF IDENTITY OF LAND – WHETHER OR NOT THE ISSUE OF PROOF OF THE IDENTITY OF LAND CEASES TO BE AN ISSUE WHERE THE LAND IN DISPUTE IS KNOWN TO THE PARTIES

The issue of proof of the identity of land cease to be an issue where the land in dispute is known to the parties hence the claimant would be absolved from the duty of proving some. In Gbadamosi Vs. Dairo (2007) 3 NWLR (Pt. 1021 282, 300, the Apex Court per Mudsdapher, JCA (as he was then) held in very clear terms that:

“The issue of the identity of the land in an action for declaration of title to land is very fundamental. The Onus is on the plaintiff seeking  the declaration to establish the precise identity of the land he is seeking the declaration. See for example Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt. 902) 227; Iyordye Vs. Thyambe (2000) 15 NWLR (Pt. 692) 675. PER – SAIDU TANKO HUSANI, JCA.

PROOF OF IDENTITY OF LAND – WHETHER OR NOT THE QUESTION OF PROOF OF IDENTITY OF LAND ARISES WHERE THE AREA OF LAND IN DISPUTE IS KNOWN TO THE PARTIES

But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise. In such a situation, it cannot be contended that the area claimed of the land in dispute is uncertain. See: Akinterinwa Vs. Oladun Joye (2000) NWLR (Pt. 659) 92. PER – SAIDU TANKO HUSANI, JCA.

TITLE TO LAND – EFFECT OF A CLAIMANT FAILING TO GIVE THE EXACT EXTENT OF THE IDENTITY OF THE LAND HE IS CLAIMING IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It must be emphasized that in an action where the plaintiff claim a declaration of title to land and fails to give the exact extent and identity of the land he is claiming his action should be dismissed, see Rufai Rickerts 2 WACA 95 Udofia V. Alfa 6 WACA 216. See also Arase V. Asanlu (19980) 5-7 SC 8” PER – SAIDU TANKO HUSANI, JCA.

RIGHT TO LIBERTY – THE POSITION OF THE LAW ON THE RIGHT OF AN INDIVIDUAL TO PERSONAL LIBERTY

The issue on hand border on the liberty of the citizen and his right to freedom of movement in the land.

By virtue of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), personal and individual liberty of the citizen is guaranteed and cherished under Section 35 (1) Constitution. Individual or personal liberty cannot be curtailed. But because we live in societies and communities where interaction between persons and individuals are high there is bound to be friction resulting into conflicts some of which may impact negatively on the community or society. Such situation call for timely intervention of the state and the law. The right to personal liberty of the individual may in such circumstances be curtailed for good reasons in circumstances coming under the exceptions created by Section35 (1) of the 1999 Constitution (as amended) that is to say paragraphs (a) – (g) of Section 35 (1) of the Constitution. PER – SAIDU TANKO HUSANI, JCA.

CRIMINAL OFFENDERS – POWERS OF THE POLICE TO ARREST SUSPECTED CRIMINAL OFFENDERS

The Police is invested with general powers to make arrest. Police powers of arrest of suspected criminals or offenders is statutory. I refer to Section 4 of the Police Act. See further Section 29 of Cap 339, LFN, 1990 and Section 26 Criminal Procedure Code. See further decision in: (1) Alameyesiesegha v. Igoniwari (2007) 7 NWLR (Pt….) 524 (2) Shola Abu & Ors V. Commissioner of Police (2006) CHR, 18. Those cases further go to confirm the power invested in the Police to make arrest and to detain suspected offenders. PER – SAIDU TANKO HUSANI, JCA.

CRIMINAL OFFENDERS – THE POWERS OF THE POWERS TO EFFECT ARREST SHOULD BE EXERCISED UPON REASONABLE SUSPICION

Those powers vested in the Police to make arrest of suspected offenders and detain them must however be exercised with caution as the Police can effect arrest only upon reasonable suspicion that the person whose arrest was made has committed a criminal offence. See Section 35 (1) (c) of 1999 Constitution of the Federal Republic of Nigeria (as amended). As to what amounts to reasonable suspicion refer to Edwin Ukechukwu Umeli Vs. Kris – Iorge Inu Ltd. (unreported) Suit No. CA/K/242/96 delivered at the Kaduna Division of Court of Appeal on 14/3/2001, where it was held that in considering whether the arrest of the Appellant is illegal, unconstitutional and a violation of  the Applicant’s right to liberty and dignity of his person, the Court is only concerned with whether or not from the facts deposed to in the affidavit and counter affidavit before the Court there was reasonable suspicion that the Applicant had committed a criminal offence at the time he was arrested and detained. See further decision in Oteri Vs. Okorodudu (1970) ALL NLR 199; Holgate – Mohammed Vs. Duke (1984) A. C. 437. PER – SAIDU TANKO HUSANI, JCA .

FAIR HEARING – WHETHER OR NOT THE RIGHT TO FAIR HEARING IS SYNONYMOUS WITH COMMON LAW PRINCIPLES OF NATURAL JUSTICE

The constitutional right to fair hearing is synonymous with the common law principles of natural justice. It is settled law that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted, would be rendered a nullity. See Abubakar Audu V FRN (2013) 53 NSCOR 456 at 459. PER – JUMMAI HANNATU SANKEY. J.C.A.

THE POLICE FORCE – THE ESTABLISHMENT AND RESPONSILITY OF THE NIGERIAN POLICE FORCE

It must be pointed out at once that the Nigeria Police Force as established under Section 214 of the Constitution of Nigeria 1999 as amended is primarily saddled with the enormous responsibility of maintaining law and order in the Society. These functions are more succinctly provided for in Section 4 of the Police Act and in the exercise of which powers the Police upon reasonable suspicion or formal report may arrest and detain a person for the purposes of carrying out their investigation. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

FAIR HEARING – THE APPLICABILITY OF THE PRINCIPLE OF FAIR HEARING CAN ONLY INFLUENCED AND DETERMINED BY THE FACTS OF THE CASE

Litigants these days are in the habit of invoking this provision of the Constitution on fair hearing whenever the slightest opportunity presents itself over any step or procedure the Courts might take which is not favourable with the party making the claim as if the invocation of that principle was the panacea or magic wand the litigant needed to cure all the inadequacies associated with that trial. In the light of the decision in Mogaji vs. Nigerian Army (2008) NWLR (Pt. 1089) 338, the principle of fair hearing is founded on the facts of the case. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing according to the Law Lord, NIKI TOBI, JSC (as he then was) in Mogaji VS. Nigeria Army (supra) is “helpless and completely dead outside the facts of the case…”. This is what I intend to do. To look at the facts as presented on record but not forgetting the principle that the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his narration justice has seen done in the case. See: Okafor Vs. Attorney General & Commissioner for Justice (1991) 6 NWLR (Pt. 200) 659 or (1991) 2 SCNJ 345. PER – SAIDU TANKO HUSANI, JCA.

FAIR HEARING – WHETHER OR NOT A PARTY WHO WAS AFFORDED THE OPPORTUNITY TO PRESENT HIS CASE BUT FAILS TO DO SO CAN COMPLAIN OF THE BREACH OF THE RIGHT TO FAIR HEARING

However, it is equally trite that once a party has been afforded the opportunity to present his case and he fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached. See Pam V Mohammed (2008) 16 NWLR (Pt. 1112) 1 at 48, paras E-G, where the concept of fair hearing was explained by Oguntade, JSC, as follows:

“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances of a particular case. The crucial determinant is the necessity to afford the parties every opportunity to put their case to the court before the court gives judgment… A complaint founded on denial of fair hearing is an invitation to the hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all parties before it.”

The right to fair hearing is thus entrenched in Section 36 (1) of the 1999 Constitution in its first pillar of justice, i.e. audi alterem partem, which means “hear the other party”. The Court has no business pursuing a recalcitrant party in order to hear him. All the court is required to do is to create an enabling environment for the party to present his case and be heard. A party who refuses or fails to take advantage of the fair hearing environment created by the court cannot accuse the court of denying him fair trial. PER – JUMMAI HANNATU SANKEY. J.C.A.

FAIR HEARING – THE PROCESS OF FAIR IS A TWO-EDGED SWORD AND CUTS BOTH WAYS

The process of fair hearing is a two-edged sword and it cuts both ways. The Appellants have a right to a fair hearing, and fair hearing also implies that the Respondent is also entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting the course of justice. See Mfa V Inongha (2014) LPELR-SC.305/2006; Kwara State Ministry of Health V M.I. Electrical Enterprises (2011) ALL FWLR (Pt. 602) 1757. PER – JUMMAI HANNATU SANKEY. J.C.A.

POLICE POWERS OF ARREST – WHETHER OR NOT ANY CITIZEN OF THE COUNTRY IS NOT SUBJECT TO THE POLICE POWERS OF ARREST AND DETENTION

The law is well settled that no citizen of this country no matter is status is above the laws of the land and thus not subject to the Police powers of arrest and detention for the purposes of investigation upon reasonable suspicion of having committed a criminal offence. It is a truism that the Constitution of the Federal Republic of Nigeria 1999 as amended neither intended nor indeed conferred any absolute right on any citizen to freedom from being investigated and for that purpose being arrested and detained on suspicion of having committed a criminal offence or on criminal allegation against them save as provided for by the same Constitution in respect of the holders of the exalted offices of President, Vice President and Governors while in office. If it were otherwise and every citizen were to be entitled to absolute freedom for arrest and detention for the purpose of investigation by the Police and other Security agencies of the State in legally excused circumstances, it seems to me that chaos and anarchy would be let loose on the society. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

POWERS OF THE POLICE – WHETHER OR NOT COURTS INTERFERE WITH THE POWERS OF THE POLICE TO INVESTIGATE MATTERS TO IT AGAINST A PERSON

It is for the above reason amongst other germane reasons that the courts do not make it an habit of interfering unnecessarily and unjustifiably with the powers of the Police to investigate matters reported to it against a person and where there is reasonable grounds to arrest and detain the person under due process of the law as anything otherwise in my view will be an open invitation to anarchy and chaos in the land save in very clear cases of infringement on the rights to personal liberty and other fundamental rights of the citizen. See Fawehinmi V. IGP (2005) 1 NCC 415. See also Aigbadion V. The State (2000) 7 NWLR (Pt. 666) 686.

This explains in my view why the Constitution of Nigeria 1999 as amended while guaranteeing the citizen’s right to personal liberty under Section 35 thereof also provides for circumstances in which the said right may be curtailed by law upon reasonable suspicion that a person has committed a criminal offence. See Section 35 Subsection 1, paragraph C thereof, which provides thus:

“For the purpose of bringing him before a court in execution of the order of court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence”.

See also FRN V. Ekwenugo (2007) 3 NWLR (Pt. 1021) 209. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

THE TEST OF REASONABLENESS – WHETHER OR NOT THE TEST OF REASONABLENESS IS OBJECTIVE OR SUBJECTIVE

However, the test of reasonableness is objective not subjective but being objective does not mean merely to make assurance doubly sure before effecting an arrest. Once there is a reasonable suspicion an arrest by the Police is justified. See COP V. Obolo (1989) 5 NWLR (Pt. 120) 130. See also Chukwuka V. COP. (1964) NNLR 21; Mcadle V. Egan (1933) 156 TLR 412 per Lord Wright. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

CASES CITED

Not available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Evidence Act, 2011

Criminal Procedure Code

Police Act

 

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