INSPECTOR GENERAL OF POLICE & ANOR VS DR PATRICK IFEANYI UBAH & ORS

CORAM

UZO I. NDUKWE-ANYANWU, JUSTICE, CO

JOSEPH SHAGBAOR IKYEGH, JUSTICE, C

PARTIES

1. INSPECTOR GENERAL OF POLICE

2. CP AYODELE OGUNSAKIN

APPELLANTS 

1.DR PATRICK IFEANYI UBAHSA

2. CAPITAL OIL AND GAS LTDS

3. AIGBOJE AIG-IMUOKHUEDE

4. COSMAS MADUKA

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The 1st and 2nd Applicants/Respondents instituted an action for enforcement of their fundamental right under the Fundamental Rights Enforcement Rules 2009 against the Respondents/Appellants at the Federal High Court, Lagos. They claimed for damages against the Appellants/Respondents in the sum of ten Billion Naira for the injury suffered as a result of their unlawful detention by the 1st Applicant/Respondent. The 1st and 2nd Respondents/Appellants and the 3rd and 4th Respondents filed separate notices of preliminary objection. The trial court over-ruled the preliminary objections and granted all the reliefs claimed by the 1st and 2nd Applicants/Respondents, it also awarded ten Million Naira as damages against the Respondents/Appellants. Dissatisfied with the judgment of the trial Court, the Respondents/Appellants appealed to the Court of Appeal.

HELD

APPEAL ALLOWED

ISSUES

1. Whether the lower court in the circumstances of this case can grant order of perpetual injunction restraining the Appellants from arresting, detaining, instituting or continuing any criminal proceedings against the 1st and the 2nd Respondents in connection with any criminal complaint by the 4th Respondent or Presidential Committee on Verification and Reconciliation of Subsidy payments?

2. Whether based on the evidence before the lower court, there was a breach of the 1st Respondent’s fundamental human rights arising from his detention between 9th to 19th October 2012 that will warrant the award of N10 million as damages in favour of the 1st Respondent for the unlawful breach of his fundamental right?

3. Whether the lower court was right to have refused to consider the issue of whether or not Exhibits COG3 and C0G4 were public documents which require certification in accordance with section 105 of the evidence Act 2011 before same can be admissible and relied on by the lower court?

4. Whether the lower court was justified when it set aside the interim investigation report (Exhibits COG3 and COG4) dated 2nd and 3rd November 2012 issued by the 2nd Appellant and addressed to the 1st Appellant when the certified true copies of the said investigation report were not before the lower court.   Whether the lower court was justified to have held that the preliminary objection filed by the Appellants was devoid of any merit even though same was unchallenged?

RATIONES DECIDENDI

RATIONAL FOR MISFEASANCE IN PUBLIC OFFICE- THE RATIONAL FOR MISFEASANCE IN PUBLIC OFFICE IMPLIES THAT THE EXECUTIVE OR ADMINISTRATIVE POWER MAY NOT BE EXERCISED FOR IMPROPER PURPOSES BUT FOR PUBLIC GOOD

“The rational for misfeasance in public office is that executive or administrative power may be exercised only for public good and not for ulterior or improper purposes. (see Jones V Swansea City Council (1990) 1 WLR 54, 85F).”

EFFECT OF PROPER ARREST BY POLICE- PROPER ARREST BY POLICE CANNOT AMOUNT TO A BREACH OF FUNDAMENTAL RIGHT

“An arrest properly made by the police cannot amount to a breach of fundamental rights.” PER IYIZOBA, JCA

PROOF OF PUBLIC DOCUMENT- PUBLIC DOCUMENT SHOULD BE PROVED BY THE PRODUCTION OF A COPY OF THE DOCUMENT CERTIFIED BY THE OFFICER WHO MADE THE PRODUCTION

“By Section 106 (ii) of the Evidence Act, such public document may be proved by the production of a copy of the document certified by the officer who made the production or issued such official communication or section 106 (iii) by the records of the government department concerned certified by the head of the Department.” PER IYIZOBA, JCA

MALICIOUS PROCESS – DEFINITION OF MALICIOUS PROCESS

“Malicious process has been defined as a civil wrong separate from malicious prosecution, which entails instituting a legal process short of prosecution without probable cause and with malice. (See Police Misconduct Legal Remedies by Harrison, Cragg and Williams 4th edition 2005; Clayton Tomlinson, Civil Actions Against the Police, 3rd Edition, Thomson Sweet & Maxwell, 2004 paras 8-083 to 8-089.” PER IYIZOBA, JCA

IMPROPRIETY OF COURT STOPPING INVESTIGATION BY POLICE- APPLICANT CAN SUE FOR THE INFRINGEMENT OF THE FUNDAMENTAL RIGHTS BUT CANNOT SUE TO STOP POLICE INVESTIGATION

“Where there is infringement of the fundamental rights of the applicant, he sues for redress and damages if applicable. He does not sue to stop investigation of an alleged criminal offence or to stop prosecution where there are grounds for such prosecution.” PER IYIZOBA, JCA

PRESUMPTION OF INNOCENCE – PRESUMPTION OF INNOCENCE ARISES ONLY WHEN THE ACCUSED IS CHARGED TO COURT AND NOT AT THE STAGE OF INVESTIGATION

“For there to be an infringement of the right to be presumed innocent until proved guilty under Section 36 (5), the accused must have been charged to court. Presumption of innocence on the part of the prosecution during investigation does not arise because their business is to ascertain whether there is sufficient evidence to sustain the charges and then to prosecute the offender. Presumption of innocence arises after the accused has been charged to court.” PER IYIZOBA, JCA

RES JUDICATA – ONCE JUDGEMENT HAS BEEN GIVEN IN A CAUSE ONE CANNOT RELITIGATE SAME

“The law is that if a party brings an action against another for a particular cause and judgment is given on it, he cannot institute another suit against the same party for the same cause. However, within one cause of action, there may several issues. Once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See Ladegha V Durosimi (1978) 3 SC 82; BaMISHEBI v Faleye (1987) 2 NWLR (Pt. 54) 51; Adigun V Gov Osun State (1995) 3 NWLR (Pt. 385) 513.” PER IYIZOBA, JCA

NO RIGID PROCEDURE FOR POLICE INVESTIGATIONS – POLICE INVESTIGATIONS ARE CARRIED OUT BY THE DISCRETION OF THE POLICE BASED ON THE STRENGTH OF THE INFORMATION GIVEN TO THEM

“There is no fixed or stipulated order of procedure for Police investigations of crimes. The established position is that criminal investigations are carry out by the Police based on the strength of the information at the disposal of the Police investigator. The Police investigator then uses his discretion to determine how to carry out the investigation. See Olatinwo V State (2013) 8 NWLR (Pt. 1355) 126.” PER IKYEGH, JCA

POLICE- POWER OF POLICE UNDER SECTION 4 OF THE POLICE ACT

Section 4 of the Police Act provides:
“The Police shall be employed for the prevention and detection of crimes, the apprehension of offenders, the preservation of law and order, the protection of life and property and enforcement of laws and regulations which they are directly charged and shall perform such duties within or without Nigeria as may be required by the, or and under the authority of this or any other Act.” PER IYIZOBA, JCA

IMPROPRIETY OF COURT INTERFERING WITH POLICE INVESTIGATION – A COURT DOES NOT HAVE THE POWER TO STOP THE POLICE FROM INVESTIGATING A CRIME

“It is trite that no court has the power to stop the police from investigating a crime and whether to or how it is done is a matter within the discretion of the police. See Fawehinmi V I.G.P (2002) 7nwlr (Pt. 767, 606; Agbi V Ogbe (2005) 8 NWLR (Pt. 926) 40; Christlieb PLC V Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V Okenwa (2010) 7 NWLR; Hassan E.F.C.C (2013) LPELR (CA).” PER IYIZOBA, JCA

ADMISSIBILITY OF PUBLIC DOCUMENT- ONLY A CERTIFIED COPY OF SECONDARY EVIDENCE OF A PUBLIC DOCUMENT IS ADMISSIBLE

“By Section 90 (c) of the Evidence Act 2011 only a certified copy of a public document and no other type of secondary evidence is admissible.” PER IYIZOBA, JCA

ADMISSIBILITY OF SECONDARY EVIDENCE OF A DOCUMENT

Section 89 of the Evidence Act provides:

“Secondary evidence may be given of the existence, condition or contents of a document when-
a. The original is shown or appears to be in the possession or power-
(i) Of the person against whom the document is sought to be proved,
Or
Of any person legally bound to produce it, and when after the notice mentioned in Section 91 such person does not produce it.” PER IYIZOBA, JCA

APPLICABILITY OF ISSUE ESTOPPEL – ISSUE ESTOPPEL APPLIES ONLY WHERE THE PARTIES AND THE SUBJECT MATTER ARE THE SAME.

“The law is that for issue estoppel to apply the parties and the subject matter must be the same.” PER IYIZOBA, JCA

THE RIGHT TO FAIR HEARING OF THE ACCUSED UNDER SECTION 36 OF THE CONSTITUTION – THE RIGHTS OF THE ACCUSED TO FAIR HEARING ARISES IN THE COURT

“Section 36 of the Constitution (right to fair hearing) concerns proceedings before a court or other tribunal. It does not cover the activities of the Police. Their job (the Police) is to investigate and if there is sufficient evidence, to prosecute the suspect. Common sense dictates that it is out of place for a suspect to go to court and seek to stop the investigation of a criminal offence on the ground that the complaints are biased and they influenced the police to proceed on the basis that the suspect is guilty. No matter what the police do, the final decision as to the guilt of the accused is that of the Judge before whom the suspect is brought.” PER IYIZOBA, JCA

CASES CITED

STATUTES REFERRED TO

1.  Police Act

2. Section 89 of the Evidence Act 2011

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