Legalpedia Citation: (2023-06) Legalpedia 92593 (CA)

In the Court of Appeal

Holden at Akure

Thu Jun 15, 2023

Suit Number: CA/AK/264A/2018

CORAM

OYEBISI FOLAYEMI OMOLEYE JUSTICE OF THE COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO JUSTICE OF THE COURT OF APPEAL

YUSUF ALHAJI BASHIR JUSTICE OF THE COURT OF APPEAL

PARTIES

OBATERUN AKINRUTAN (The Olugbo Of Ugbo) APPELANT(S)

APPELLANTS

1. DR. ADEBANJO MAFIMISEBI (Formerly The Olugbo Of Ugbo)
2. PRINCE ADEFEMI MAFIMISEBI
3. PRINCE WEMIMO MAFIMISEBI
4. PRINCE ALFRED OKUN
5. PRINCE OTELO MAFIMISEBI
6. PRINCE ZION LEKE
7. PRINCE ORIOLA AJIMOSUN
8. THE INSPECTOR GENERAL OF POLICE
9. THE COMMISSIONER OF POLICE, ONDO STATE RESPONDENT(S)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, FUNDAMENTAL RIGHTS, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

In a letter dated 6th December 2017 written by the Ogbo Council of Chiefs and elders wrote to the Commissioner of Police alleging conspiracy and malicious damage against the Respondent where the 5th – 6th & 7th Respondents were specifically mentioned as being responsible for vandalizing the palace of the Appellant. Upon receiving this letter, the police commenced investigation and they had the Respondents arrested and detained for questioning.

The claimants at the trial court claimed the arrest was carried out by an act of breaking into their homes between the hours of 3:am-5:am on the 6th of April, 2018 at Ode-Ugbo in Ilaje Local Government Area of Ondo State. That they were picked up amidst heavy gun power and disallowed from wearing their clothes after which they were marched naked to the house of the 3rd Respondent and beat up using logs of wood on before being transported with the vehicle provided by the 3rd Respondent. They also claim that they were prevented from communicating with the 2nd – 4th Applicants which is barbaric, capricous, unconstitutional, unlawful, oppressive, illegal and violative of the constitutional rights of the their freedom of movement, right to personal liberty, right to dignity of the human person, right to private life, and right to own movable and immovable property as a Nigerian Citizen contrary to Sections 34, 35, 36, 37, 40, 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria.

This culminated to the action for the enforcement of 1st–7th Respondents’ fundamental right which they felt they had been denied. The Learned Trial Judge in his judgment granted all reliefs sought by the 1st – 7th Respondents against the Appellant and the 8th – 9th Respondents who were the Defendants at the lower Court

Aggrieved by the above decision the Appellant instituted this appeal.

HELD

Appeal allowed

ISSUES

Ø Whether the Learned Trial Judge was right in holding that the claims of the 2nd to 7th Respondents are cognizable or maintainable under the Fundamental Rights (Enforcement Procedure) Rules, 2009 having regard to the nature of the wrongs complained of by the 2nd to 7th Respondents in their application for the enforcement of their fundamental rights?

Ø Whether the Learned Trial Judge was right in rejecting the submissions of the Appellant that the 1st Respondent’s main relief is in substance a claim for title to or ownership of the landed property situated at the place referred to as Akodi Olugbo in Ude-ugbo, Ondo State in the Appellant’s Counter Affidavit by reason of which the said 1st Respondent’s relief becomes unmaintainable under the Fundamental Human Rights (Enforcement Procedure) Rules 2009?

Ø Whether the Learned Trial Judge was right in rejecting the submission of the Appellant that the 1st Respondent’s fundamental right of movement guaranteed under Section 41 of the Constitution of the Federal Republic of Nigeria 1999, as amended, does not extend to going or entering the parcel of land referred to as the Akodi Olugbo in the Appellant’s counter-affidavit which land is vested in the Appellant by reason of the Appellant’s status as the Olugbo of Ugbo?

Ø Whether the Learned Trial Judge properly evaluated the conflicting evidence before the lower Court before reaching the conclusion that the Appellant employed or used the 8th and 9th Respondents to effects their arrest and detention of the 2nd, 3rd and 4th Respondents?

Ø Whether the Learned Trial Judge was right to have held that the Appellant was liable for the arrest and detention of the 2nd, 3rd, and 4th Respondents having regard to the quality of the evidence placed before the lower Court by the Respondents and the evidence contained in the counter-affidavit filed by the Appellant?

RATIONES DECIDENDI

ACADEMIC EXERCISE – WHEN AN APPEAL IS SAID TO BE AN ACADEMIC EXERCISE

“An appeal is said to be an academic exercise when there is no live issue to be determined or where the question referred to the Appellate Court for determination did not arise from the proceedings of the Court below. The law is trite that Courts have no jurisdiction to deal with hypothetical questions not grounded in reality or facts. It was held in: Plateau State V. A.G, Federation (2006) 1 SC (Pt 1) 1 that suit is said to be academic where it is merely theoretical, makes empty sound and of no utilitarian value to the plaintiff even if judgment is given in his favour. See Dickson V. Sylva (2017) NWLR (Pt. 1573) 299 and Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489. – Per Y. A. Bashir, JCA

 

ISSUE – WHEN AN ISSUE IS NOT TIED TO A GROUND OF APPEAL

…issue 1 (one) formulated by the Appellant, owner of this appeal was not tied to any ground of appeal thereby leaving to the Court to commence an inquiry as it were to determine upon which of the grounds is the issue founded. – Per Y. A. Bashir, JCA

ISSUE – WHEN AN ISSUE IS ARGUED WITH AN INCOMPETENT ISSUE

that issue 1 (one) formulated by the Appellant, owner of this appeal was not tied to any ground of appeal thereby leaving to the Court to commence an inquiry as it were to determine upon which of the grounds is the issue founded. This has vitiated issue 1. Issue (2) two though tied to ground of appeal 5 the learned Appellant’s Counsel argued it together with issue 1 further compounding the already bad situation by making it impossible to separate which argument or submissions of Learned Counsel was rendered in respect of issue 1 and which was for issue 2.

The simple rule is to render issue 2 itself along with the ground from which it was distilled incompetent having been vitiated by being combined with an invalid issue 1. See the decision of this Court per Lokulo-Sodipe (JCA) in Chief Ajike Omoseebi & 4 Ors V. High Chief Sanni Amusa Bakare and 11 Others: Appeal No. CA/AK/248/2018 delivered on 27th day of January 2023. See also Fajebe & Another V. Opanuga (2019) LPELR-46348 (SC) where the Supreme Court held:

“The issues must each be tied to grounds of appeal, were they? Any issue raised not tied to a ground of Appeal is deemed abandoned and must be struck out” – Per Y. A. Bashir, JCA

ISSUE – WHERE NO ISSUE IS DISTILLED IN SUPPORT OF A GROUND OF APPEAL

Where no issue is distilled and canvassed in support of a ground of appeal, such ground will be deemed to have been abandoned and would be struck out. See Aja V. Okoro (1991) 7 NWLR (Pt. 203) 260, Buhari V. Takuma (1994) 2 NWLR (Pt 325) 183. – Per Y. A. Bashir, JCA

FUNDAMENTAL RIGHT – RIGHT OF CITIZENS TO APPROACH THE COURTS FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS

The law nay, the 1999 Constitution has allowed a Nigerian Citizen to always approach the Court for the enforcement of his Fundamental right whenever such right has been or is likely to be infringed upon by any other person or authority Section 46 (1) of the 1999 Constitution. – Per Y. A. Bashir, JCA

POLICE – CONSTITUTIONAL AND STATUTORY DUTY OF THE POLICE TO INVESTIGATE ALLEGATIONS OF CRIMINALITY

It is beyond controversy that by Virtue of Section 4 of the Police Act, the police have a duty to prevent and detect a crime, apprehend the offenders, preserve law and order, protect life and property by virtue of the provision of Section 4 of the Police Act. It must therefore be conceded that the police are under a statutory duty to investigate the allegations of criminality lodged with them against the Respondent. Once the police received the complaint, they are duty bound to investigate it and in carrying out the investigation they are entitled to invite, arrest and detain within the law any person suspected of having committed the offence, see ONAH VS OKENWA (2010) 7 NWLR PT 1194 page 512 at 535 (A-B) where the Court of Appeal held as follows:

”Once criminal allegation are made against a citizen, it is a constitutional and statutory duty of the police to investigate as investigation and detection of crime is one of the primary duties assigned to the police under Section 4 of the Police Act.’’ Section 35(1)(c) of the 1999 Constitution has permitted the arrest and detention of a citizen for

the purpose of bringing him before a Court of Law in execution of the order of the Court. And upon reasonable suspicion of his having committed a criminal offence and to such an extent as may be reasonably necessary to prevent his committing a criminal offence. – Per Y. A. Bashir, JCA

POLICE – POWERS OF THE POLICE TO ARREST AND DETAIN

In I.G.P V UBAH & ORS (2014) LPELR – 23968 (CA) this Court held that ’’The police and indeed the EFCC on the other hand are statutorily empowered by Section 35 (c) of the 1999 Constitution of Nigeria to arrest, Section 24 of the Police Act empowers the police to arrest and detain person upon reasonable suspicion, upon receipt of a criminal complaint made”. See SEED VEST MICRO FINANCE BANK PLC. V PAUL ADEDIGBO OGUNSINA & ORS (2016) LPFLR – 41346 (CA) where it was postulated as follows:

’’In the case of Mrs. Baby Justine Luna vs. Commissioner of Police Rivers State Police Command & Ors. (2010) LRELR – 8642 (CA) it was held that the police has the power to arrest and detain pending investigation in some cases and this power is derived from” Section 214 of the Constitution of the Federal Republic of Nigeria, 1999 and that the mere exercise of that power cannot by virtue of Section 35 (1) of the 1999 Constitution amount to a breach of the 1st

Respondent’s Fundamental Right, even when such exercise result in the curtailing of his freedom of movement. It is also to be noted that in exercising this power to arrest the 2nd, 3rd, and 4th Respondent by virtue of Section 4 & 24 of the Police ACT Cap 359 LFN, have a discretion upon reasonable suspicion of committing a crime to arrest any person, including the 1st Respondent and it is generally not the business of the Courts to fetter this discretion. See: Fawehinmi vs. I.G.P (2002) FWLR (pt. 1355) @ 1376 – 1377. In any case, where the police use their powers improperly, the position of the law is that the Court can stop the use of the power for that improper purpose, in other words, the Court can make an order restraining the police from arresting on some particular improper occasion or for some particular improper purpose but never to restrain the police perpetually from performing its lawful and constitutional duties’’. – Per Y. A. Bashir, JCA

POLICE – POWERS OF THE COURT TO INVESTIGATE CRIMES

By all odds the police have statutory power to investigate, arrest, interrogate, search, and detain any suspect. ONAH V. OKENWA (Supra). The only qualification is that the power must be exercised in accordance with the law. IGWEOKOLO V. AKPOYIBO & ORS (2017) LPELR. – Per Y.A. Bashir, JCA

CASES CITED

STATUTES REFERRED TO

1.  Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Fundamental Rights (Enforcement Procedure) Rules, 2009
3. Police Act

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