Categories: Just Decided Cases

Mr. Kenneth Nwadiugwu V Inspector General of Police & 5 Ors

Court of Appeal – July, 2015
Legalpedia Electronic Citation LER[2015]CA/L/179/2014

Areas of Law
APPEAL, CONSTITUTIONAL LAW, FUNDAMENTAL RIGHT, LAW OF CONTRACT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

Summary of Fact
The Appellant and 6th Respondent entered into an agreement wherein the Appellant was contracted to import Mack Engines and their accessories on behalf of the 6th Respondent for sale in Nigeria. The 6th Respondent made an advance payment of the sum of USD50, 000.00 which was equivalent to N7, 804,000.00 and was also requested to pay the sum of N350, 000.00 for clearing the container at the port when it arrived. Upon arrival of the goods, the Appellant sold them and deposited the proceeds of the sale in his account and travelled to the United States. Subsequently the 6th Respondent filed a petition which led to the arrest of the Appellant by the agents of the 2nd Respondent. The Appellant admitted receipt of the sum and he voluntarily issued some cheques which included a post dated cheque to the 6th Respondent. He was afterwards arrested when one of the cheque was dishonoured and upon a plea that the matter be resolved amicably, parties were directed to go home for resolution of same to which a memorandum of understanding was executed by them and three post dated cheques were issued by the Appellant. The Appellant’s Solicitor thereafter wrote to the 6th Respondent requesting him not to present one of the cheques on the maturity date on account of an action instituted by the Appellant for the enforcement of his fundamental rights seeking declarative reliefs, damages and a public apology in two National Dailies. The Respondents filed counter affidavits and trial court at the conclusion of hearing, dismissed the Appellants application hence this appeal.

Held
Appeal Allowed in part

Issue For Determination

  • Whether having regard to the facts and upon a proper application of Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 24 of the Police Act, the decision of the lower Court refusing the declarations sought by the Appellant is right in law.

Rationes
ISSUE FOR DETERMINATION- A PARTY CANNOT STEALTHILY SMUGGLE NEW ISSUES FOR DETERMINATION INTO HIS BRIEF WITHOUT THE LEAVE OF COURT FIRST SOUGHT AND OBTAINED
“The law is that issues for determination must be distilled from the Grounds of Appeal which in turn must be complaints against the ratio decidendi of the judgment appealed against. AT Ltd v ADH Ltd (2007) 15 NWLR Pt 1056 118 R 14. It is also the law as rightly pointed out by the Respondent that a party cannot surreptitiously smuggle into his brief without leave first sought and obtained, any new issue or ground. If that is done, such ground or issue will be struck out. Nwachukwu v State (2007) 17 NWLR Pt 1062 31 Ratio 18; Ogbu v State (2007) 5 NWLR Pt 1028 635 Ratio 10”.PER C.E.IYIZOBA, J.C.A

BRIEF WRITING – A COUNSEL WHO DESIRES TO PRACTICE LAW IN APPELLATE COURTS SHOULD ACQUIRE THE NECESSARY TECHNIQUE ON BRIEF WRITING
“Brief writing technique is such an important tool for any counsel who desires to practice law in the appellate courts. That effort must be made by counsel to acquire the necessary technique. See the observation of Tobi JCA (as he then was) in Amadi v Essien (1994) 7 NWLR (Pt. 354) 91 @ 112.” PER C.E.IYIZOBA, J.C.A

FUNDAMENTAL RIGHT – THE RIGHT TO PERSONAL LIBERTY IS NOT ABSOLUTE

“The right to personal liberty guaranteed under the Constitution of the Federal Republic of Nigeria 1999 is not absolute but is subject to the powers of the police to arrest a person who has committed or is suspected to have committed a crime… See Asari Dokubo V FRN, (2007) WRN, 1 @ 14-15.” PER C.E.IYIZOBA, J.C.A

BURDEN OF PROOF IN CRIMINAL TRIAL – THE ONUS OF PROOF IS ON APPLICANT WHO ALLEGES THAT HE WAS ARRESTED AND DETAINED BY THE RESPONDENT
“The law is that the onus is on an Applicant who alleges that he was arrested and detained to show that the respondent set the law in motion against him and that the respondent was actively instrumental to his arrest and detention. The applicant must also show that the arrest and detention were unlawful. Fajemirokun v C.B. (C.L.) (NIG) Ltd (2002) 10 NWLR (Pt.774) 95 R2; Referred to Ezeadukwa v Maduka (1997) 8 NWLR (Pt 518) 635 CA; Onagoruwa v IGP (1991) 5 NWLR (Pt 195) 593 CA.” PER C.E.IYIZOBA, J.C.A

Statutes Referred To
Constitution of the Federal Republic of Nigeria, 1999 as amended
Fundamental Rights (Enforcement Procedure) Rules 2009
Police Act, 2004

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