CHIMEBELE & ANOR v. EDEH & ORS

CITATION: (2017) LPELR-42289(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON THURSDAY, 23RD MARCH, 2017Suit No: CA/OW/189/2014

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealTUNDE OYEBANJI AWOTOYE Justice, Court of Appeal

Between1. EZE OKOYE CHIMEBELE2. EL-JOY GLOBAL INVESTMENT LTD - Appellant(s)

And1. MR. TOCHUKWU EDEH2. COMMISSIONER OF POLICE(ABIA STATE)3. SUPOL DONATUS AKPAR(D.P.O. C.P.S., ABA)

- Respondent(s)

RATIO DECIDENDI1. EVIDENCE - AFFIDAVIT EVIDENCE: Effect of uncontroverted facts in an affidavit

"It is instructively significant to note, that in the instant case, the 1st respondentdeposed in Paragraphs 18 - 25 of his affidavit in support of the motion on notice, thatthe 1st appellant personally brought two plain clothed Policemen on a pre-arrangement and somewhat directed them to arrest him. This fact was not denied inthe appellants' counter-affidavit, thus, it is deemed admitted."Per OREDOLA, J.C.A.(Pp. 19-20, Paras. F-A) - read in context

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2. TORT - FALSE IMPRISONMENT: Test to determine whether an arrest is based onreasonable suspicion"The Supreme Court, per Lewis, JSC in the case of Oteri v. Okorodudu & Anor. (1970)ALL N.L.R. 199, (1970) LPELR-2824; succinctly enunciated on the proper procedure fordetermining whether a person was arrested based on reasonable suspicion, whereinthe erudite jurist pronounced at pages 13 -15 as follows:"In our view the test to be applied, with the onus of proof on a defendant seeking tojustify his conduct, was laid down in 1938 by Tindal, C. J. in Allen v. Wright 8 Car. andP. 522 where he said that it must be that of a reasonable person acting withoutpassion and prejudice.The matter must be looked at objectively, and in the light of the facts known to thedefendant at the time, not on subsequent facts that may come to light as is shown byWright v. Sharp (1947) L. T. 308. Lord Wright in McArdle v. Egan (1933) ALL E. R. Rep.611 at 613 showed that the responsibility is ministerial and not judicial when he said:-"It has to be remembered that Police Officers, in determining whether or not to arrest,are not finally to decide the guilt or innocence of the person arrested. Their functionsare not judicial, but ministerial."We would also refer to the judgment of Diplock, L. J. (as he then was) in Dallison v.Caffrey (1965) I Q. B. 348 as to the question of reasonableness in a case involvingboth false imprisonment and malicious prosecution where at page 371 he said:-"One word about the requirement that the arrestor or prosecutor should act honestlyas well as reasonably. In this context it means no more than that he himself at thetime believed that there was reasonable and probable cause, in the sense that I havedefined it above, for the arrest or for the prosecution, as the case may be. The testwhether there was reasonable and probable cause for the arrest or prosecution is anobjective one, namely, whether a reasonable man, assumed to know the law andpossessed of the information which in fact was possessed by the defendant, wouldbelieve that there was reasonable and probable cause. Where that test is satisfied,the onus lies on the person who has been arrested or prosecuted to establish that hisarrestor or prosecutor did not in fact believe what ex hypothesis he would havebelieved had he been reasonable (see Herniman v. Smith (1938) A. C. 305, 316 perLord Atkin). In the nature of things this issue can seldom seriously arise.""The test of what is reasonable suspicion is not as high as establishing a prima facieas Lord Devlin in Shasban Bin Hussain v. Chong Fook Kam (1969) 3 All E. R. 1926 in anappeal from the Federal Court of Malaysia made clear in the Privy Council when hesaid at 1630:-"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof islacking; I suspect but I cannot prove.' Suspicion arises at or near the starting point ofan investigation of which the obtaining of prima facie proof is the end. When suchproof has been obtained, the police case is complete; it is indeed desirable as ageneral rule that an arrest should not be made until the case is complete. But if arrestbefore that were forbidden, it could seriously hamper the Police. To give power toarrest on reasonable suspicion does not mean that it is always or even ordinarily to beexercised. It means that there is an executive discretion. In the exercise of it manyfactors have to be considered besides the strength of the case. The possibility ofescape, the prevention of further crime and the obstruction of Police enquiries areexamples of those factors with which all judges that have had to grant or refuse bailare familiar."Per OREDOLA, J.C.A. (Pp. 14-17, Paras. B-C) - read in context

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3. TORT - FALSE IMPRISONMENT: What a plaintiff must show to succeed in an actionfor false imprisonment"It is also trite that in action for unlawful detention or false imprisonment as it appliesin this case, the plaintiff is required to prove that it was the defendant(s) who wasactively instrumental in setting the law in motion against him. See Okonkwo v.Ogbogu (1996) 5 NWLR (Pt. 449) 420; Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754) 356and Ojo v. Lasisi (2003) 7 NWLR (Pt. 819) 237."Per OREDOLA, J.C.A. (P. 19, Paras. C-E)- read in context

4. TORT - MALICIOUS PROSECUTION: Liability of a defendant who is deemed to haveset the law in motion against a plaintiff"We have stated several times, that a mischief complainant, who lodges complaintwith the police or security agencies, to get even with an opponent over a purelycontractual disagreements, and causes the opponent to be arrested and detainedover such civil disagreements, is liable to pay for damages accruing there-from, oradjudged thereon. See Oceanic Securities International Ltd v. Balogun & Ors (2012)LPELR 9218 (CA); (2013) All FWLR (Pt.677) 633. See also Ogbonna v. Ogbonna (2014)LPELR - 22308 (CA); (2014) 23 WRN 48, where it was held:"Of course, a man who procures the Police to do some illicit duties for him should beready to face the legal consequences of that illegality, and the law is well settled onthis." Udeagha vs. Nwogwugwu (2013) LPELR 21819 CA; Iwununne v. Egbuchulam &Ors (2016) LPELR 40515 CA."Per MBABA, J.C.A. (Pp. 21-22, Paras. E-C) - read incontext

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M A S S O U D A B D U L R A H M A N O R E D O L A ,

J.C.A.(Delivering the Leading Judgment):This is an

appeal against the decision of the High Court of Abia State

of Nigeria, holden at Aba (hereinafter called the lower

Court), delivered on the 15th day of July, 2013 by Hon.

Justice Onuoha A. K. Ogwe, J. The action which culminated

in this appeal was commenced by the applicant/1st

respondent vide a motion on notice dated the 18th day of

March, 2013 and filed on the 21st day of March, 2013 for

the enforcement of his fundamental rights. The

applicant/1st respondent (hereinafter referred to as the 1st

respondent) by the said motion on notice sought for the

following reliefs:

“(a) AN ORDER that the arrests, harassments,

humiliations, molestations, torture and detention of

the Applicant by the agents of the 3rd Respondent at

the investigation of the 1st and 2nd Respondents

without any lawful and justifiable cause is

unconditional wrongful, unlawful, null, void and

therefore an infringement on the Applicant’s Rights

as enshrined in the Constitution of Nigeria, 1999 (as

amended). (sic)

(b) AN ORDER that the continuous threats to arrest,

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humiliate, molest, torture and detain the Applicant by

the agents of the 3rd Respondent is unconstitutional,

wrongful, unlawful, null, void and an infringement on

the Applicant’s Right as enshrined in the Constitution

of Nigeria, 1999 (as amended).

(c) AN ORDER compelling all the Respondents jointly

and severally and particularly the 1st and 2nd

Respondents to pay to the Applicant the sum of

N10,000,000.00 (Ten Million Naira) only being

general and exemplary damages and/or compensation

for the violation of the Applicant’s, Constitutional

Rights aforesaid.

(d) AN ORDER compelling the Respondents to release

to the Applicant the L300 Mitsubishi Bus with

Registration No. ZBL35XA (ANAMBRA) unlawfully

and illegally impounded from the Applicant and kept

at the Central Police Station, Aba.

(e) AN ORDER of perpetual injunction restraining all

the Respondents neither by themselves, their agents,

privies and servant from further arresting, detaining

and/or infringing on the Applicant’s Rights. (sic)

AND FOR SUCH FURTHER ORDER or other Orders as

the Honourable Court may deem lit to make in the

circumstances.”

The motion

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was supported by affidavit and further affidavit, exhibits

together with written address and reply on points of law.

I n r e p l y t o t h e s a i d m o t i o n , t h e 1 s t & 2 n d

respondents/appellants (hereinafter referred to as the

appellants) filed their counter affidavit, and supported the

said counter-affidavit with several exhibits together with a

written address. After due consideration of the processes

placed before him, the learned trial judge entered

judgment in favour of the 1st respondent herein and

ordered as follows:

“1. A Declaration that the arrest and detention of

Applicant by the Police (3rd and 4th Respondents

over a contract is unconstitutional, wrongful and

unlawful, and a breach of his rights guaranteed by the

Constitution of Nigeria.

2. An Order for Respondents jointly and severally to

pay Applicant 200,000 for the said unlawful arrest

and detention.

3. The Respondents are ordered to release the L.300

Mitsubishi Bus with registration No. ZBL35XA

(Anambra) forthwith to Applicant.

4. The Respondents are restrained either by

themselves or their agents, servants or privies from

further infringing the constitutional rights of

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Applicant or dealing with him in any manner not

provided for by law.”

(See page 69 of the record of appeal.)

It is imperative to point out, that the 3rd and 4th

respondents/2nd & 3rd respondents herein (Commissioner

of Police of Abia State and Supol Donatus Akpar, Divisional

Police Officer of Central Police Station, Aba) neither

entered appearance in this case nor filed any process in

respect thereof. Henceforth, no reference would be made

to them in this judgment, unless it is essentially required.

Howbeit, they would be bound by the outcome of this

appeal.

The appellants were dissatisfied with the above stated

decision of the lower Court. Hence, they appealed against

the same vide a notice of appeal dated and filed on the 17th

day of July, 2013. The grudges nursed by the appellants

against the said judgment are contained in their three

grounds of appeal, which are reproduced below without

their particulars:

“i. ERROR IN LAW

The Learned trial judge erred in law when he entered

judgment in favour of the Applicant without regard to

the affidavit evidence as presented and canvassed

before him.”

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“ii. ERROR IN LAW

The learned trial judge erred in law when he held that

the complaint to the police was based on the hire

purchase contract between the parties.”

“iii. The judgment is against the weight of evidence.”

In prosecution of this appeal, the appellants’ brief of

argument dated the 4th day of November, 2015 was filed in

the 5th day of November, 2015. It was settled by J. Olaiya

Omotiba Esq. Appellants’ reply brief was also filed by the

learned counsel on the 9th day of May, 2016. It was

deemed by the Order of this Court as properly filed and

served on the 20th day of June, 2016. On the other hand,

the 1st respondent’s brief of argument dated the 9th day of

January, 2016 was filed on the 20th day of January, 2016.

The learned counsel for the appellants in the appellants’

brief of argument distilled two issues for the determination

of this appeal. The issues are as follows:

“(i) Whether the trial Court was right to have entered

judgment in favour of the Applicant/1st Respondent

without regard to the Counter-Affidavit and Exhibits

presented by the Appellants?

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(ii) Whether from the totality of facts and evidence

before the Court, it was right to conclude that the

complaint to the Pol ice was based on the

hire–purchase contract inter parties?”

On his own part, the learned counsel for the 1st respondent

simply adopted the issues for the determination of this

appeal as formulated by the learned counsel for the

appellants.

I have carefully analyzed the decision of the lower Court

vis-à-vis the pleadings of the parties; grounds of appeal and

issues formulated therefrom by the parties. I am of the firm

viewpoint, that the core issue that calls for determination in

this appeal is the first issue distilled by the learned counsel

for the appellants. Other matters, especially as regard the

hire-purchase are ancillary and will have little or no impact

with regards to the instant case. However, for clarity, I

would reframe the issue as follows:

On the basis of all the pieces of evidence on record,

whether the lower Court was right to hold that the

appellants together with 2nd & 3rd respondents

herein were in breach of the 1st respondent’s

fundamental rights.

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LEGAL ARGUMENTS.

The learned counsel for the appellants contended that the

lower Court failed to take proper cognizance and evaluate

the evidence of the appellants as contained in their

counter-affidavit and exhibits attached thereto. He

submitted that once a counter-affidavit has been filed, the

lower Court has the obligation of considering it before

delivering its ruling or judgment. He relied on the case of

Mbang v. Janet (2015) ALL FWLR (Pt. 767) 766 @

776. Thus, he contended that the lower Court (with due

respect) acted erroneously when it found the appellants

liable for unlawful arrest and detention of the 1st

respondent, because the Police (2nd & 3rd Respondents)

failed to justify the arrest and detention and the crime the

1st respondent allegedly committed. He referred as to the

case of Gever v. China (1993) 9 NWLR (Pt. 315) 97.

Also, the learned counsel for the appellants contended that,

“it is the duty of every citizen of Nigeria to report cases of

commission of crime to Police for their investigation and

what happen thereafter is entirely the responsibilities of

the Police. The citizen cannot be held liable for doing their

civic duty,

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unless it is shown that it was done malafide.” He referred

us to the cases of Mbang v. Janet, (supra); Udo v.

Essien (2014) ALL FWLR (Pt. 749) 1184; Totor v.

Philip Aweh (2000) 2 NWLR (Pt. 644) 309; Fawehinmi

v. I. G. P. (2002) 7 NWLR (Pt. 767) 606. The learned

counsel further argued that the appellants merely and out

of good faith reported the suspected illegal activities of the

1st respondent to the 2nd & 3rd respondents for possible

investigation and had no part in the decision to arrest and

detain the 1st respondent. According to the learned

counsel, “they have also not been shown to have interfered

with or otherwise directed the Police investigation.” Thus,

he submitted, that the lower Court (with due respect) acted

wrongly when it held the appellants responsible for the

arrest and detention of the 1st respondent.

In addition, the learned counsel for the appellants after a

lengthy analysis of the affidavit evidence on record,

contended that the lower Court’s decision (with due

respect) is perverse as it was not based on evidence before

it. He further argued that the parties were ad idem that,

the purpose for which the 1st

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respondent was arrested and detained was for oil

bunkering. Thus, he contended that the decision of the

lower Court that the arrest and detention of the 1st

respondent by the 2nd & 3rd respondents was based on the

hire-purchase arrangement between the 1st respondent

and 2nd & 3rd respondents was not borne out of evidence

adduced before it and ought to be set aside by this Court.

He referred us to the cases of Oceanic Securities

International Ltd. v. Balogun (2002) ALL FWLR (Pt.

643) 1880; Bunge v. Governor of River State (2006)

12 NWLR (Pt. 995) 573; Fabunmi v. Agbe (1985)

NWLR (Pt. 2) 299. Therefore, the learned counsel for the

appellants urged this Court to resolve this issue in favour of

the appellants and allow this appeal.

In reply, the learned counsel to the 1st respondent

contended that the contention of the learned counsel for

the appellants that the appellants’ counter-affidavit was not

considered by the lower Court is totally misconceived and

an attempt aimed at misleading this Court. He referred us

to page 69 of the record of proceedings. He also argued

that, “a clear dichotomy must be drawn between failure of

Court to

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consider a process before it which conduces to lack of fair

hearing and failure to apportion probative value to a given

process”. He further contended, “that a party who intend to

contest the record of proceedings must first impeach same

either at the Court of first instance or the appellate Court”.

We were referred to the case of Ogu Oko Memorial

Farms Ltd. v. N. A. C. B. Ltd. (2008) All FWLR (Pt.

419) 400 @ 402. Thus, he submitted that the contention of

the learned counsel for the appellant that the lower Court

failed to consider their counter-affidavit and/or properly

evaluate all the pieces of evidence contained in the

counter-affidavit and the exhibits attached in support

thereof, having not been borne out from records of

proceedings is misconceived and ought to be

discountenanced.

Also, the learned counsel for the 1st respondent contended

that the appellants having failed to adduce credible

evidence to establish that the allegation made against the

1st respondent was based on reasonable suspicion or based

on credible evidence are liable for the wrongful and

unlawful arrest and detention of the 1st respondent. He

relied on the cases

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of Anosihile v. Soyombo (1986) 3 NWLR (Pt. 27) 471

@ 487; Abah v. Owei (2015) All FWLR (Pt. 780) 1343

@ 1351 and Arabambi v. Advance Beverages

Industries Ltd. (2005) 24 NSCQR 520 @ 525 & 526.

In addition, the learned counsel for the 1st respondent

contended, that contrary to the argument of the learned

counsel for the appellants, that the 1st appellant merely

reported the suspected criminal activities of the 1st

respondent to the 2nd & 3rd respondents and took no

further part in the arrest and detention of the 1st

respondent; that the 1st appellant’s deposition in

Paragraph 16 (1) of the appellants’ counter-affidavit shows

clearly that the appellant “did not only make the infamous

complaint but also participated actively in ensuring the

arrest of the Respondent by enticing and ensnaring him to

the Police vide telling him that he want to visit his wife and

new baby.” According to the learned counsel, “this cannot

under any guise qualify for just making a report or

complaint or indicating a person suspected of crime to the

Police but also actively participating in the act of arrest and

investigation which ordinarily

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should be left to the Police.”

Furthermore, the learned counsel for the 1st respondent

contended that the appellants were illegally using the 2nd

& 3rd respondents as a conduit to wrongfully achieve their

personal agenda of enforcing the hire-purchase contract

entered into between the 1st respondent and the

appellants; which practice is highly frowned at by law. He

relied on the cases of Onyima v. Afribank Plc. (2004) 2

NWLR (Pt. 858) 654 and NDA v. Obot (2009) 10 CHR

192.

In conclusion the learned counsel for the 1st respondent

after highlighting all the pieces of affidavit evidence on

record as can be gleaned from the parties’ affidavits and

exhibits attached thereto; submitted that the appellants

have failed to establish their reasonable suspicion which

informed their decision to put the instrument of law in

motion against the 1st respondent. Thus, he urged this

Court to resolve this issue in favour of the 1st respondent

and dismiss this appeal.

At this point, it is necessary to put the facts of this case

straight. The 1st respondent herein and the appellants

entered into a hire-purchase agreement, whereby the 1st

respondent

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was by the terms of the contract expected to make a

payment of N30,000.00 weekly for a total of 62 weeks.

During the subsistence of the hire-purchase agreement, the

1st respondent was arrested and the vehicle which forms

the subject matter of the hire-purchase agreement was

impounded by the 2nd & 3rd respondents. The arrest and

detention of the 1st respondent together with the

impoundment of the vehicle were based on the allegation

or complaint made by the appellants against the 1st

respondent that the 1st respondent was using the vehicle

for oil bunkering business.

The 1st respondent denied this allegation and stated that

the appellants were trying to utilize the services of the 2nd

& 3rd respondents in enforcing the terms of the hire-

purchase contract. The appellants on their own part

rebutted the 1st respondent’s contention and restated their

earlier allegation that the 1st respondent was engaged in

illegal business with the vehicle and since the vehicle was

registered in their names, it is proper for them to make the

report to the Police in order to avoid the consequence that

may follow, if the 1st respondent is caught in the bunkering

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business with the vehicle.

At this stage, the pertinent question to be asked; is whether

the appellants’ allegation against the 1st respondent, which

prompted his arrest and detention by the 2nd & 3rd

respondents was based on “reasonable suspicion” or

“reasonable or probable cause”.

The Supreme Court, per Lewis, JSC in the case of Oteri v.

Okorodudu & Anor. (1970) ALL N.L.R. 199, (1970)

LPELR-2824; succinctly enunciated on the proper

procedure for determining whether a person was arrested

based on reasonable suspicion, wherein the erudite jurist

pronounced at pages 13 -15 as follows:

“In our view the test to be applied, with the onus of

proof on a defendant seeking to justify his conduct,

was laid down in 1938 by Tindal, C. J. in Allen v.

Wright 8 Car. and P. 522 where he said that it must

be that of a reasonable person acting without passion

and prejudice.

The matter must be looked at objectively, and in the

light of the facts known to the defendant at the time,

not on subsequent facts that may come to light as is

shown by Wright v. Sharp (1947) L. T. 308. Lord

Wright in McArdle v. Egan (1933)

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ALL E. R. Rep. 611 at 613 showed that the

responsibility is ministerial and not judicial when he

said:-

“It has to be remembered that Police Officers, in

determining whether or not to arrest, are not finally

to decide the guilt or innocence of the person

arrested. Their functions are not judicial, but

ministerial.”

We would also refer to the judgment of Diplock, L. J.

(as he then was) in Dallison v. Caffrey (1965) I Q. B.

348 as to the question of reasonableness in a case

involving both false imprisonment and malicious

prosecution where at page 371 he said:-

“One word about the requirement that the arrestor or

prosecutor should act honestly as well as reasonably.

In this context it means no more than that he himself

at the time believed that there was reasonable and

probable cause, in the sense that I have defined it

above, for the arrest or for the prosecution, as the

case may be. The test whether there was reasonable

and probable cause for the arrest or prosecution is an

objective one, namely, whether a reasonable man,

assumed to know the law and possessed of the

information which in fact was possessed by the

defendant,

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would believe that there was reasonable and probable

cause. Where that test is satisfied, the onus lies on

the person who has been arrested or prosecuted to

establish that his arrestor or prosecutor did not in

fact believe what ex hypothesis he would have

believed had he been reasonable (see Herniman v.

Smith (1938) A. C. 305, 316 per Lord Atkin). In the

nature of things this issue can seldom seriously

arise.”

“The test of what is reasonable suspicion is not as

high as establishing a prima facie as Lord Devlin in

Shasban Bin Hussain v. Chong Fook Kam (1969) 3 All

E. R. 1926 in an appeal from the Federal Court of

Malaysia made clear in the Privy Council when he said

at 1630:-

“Suspicion in its ordinary meaning is a state of

conjecture or surmise where proof is lacking; I

suspect but I cannot prove.’ Suspicion arises at or

near the starting point of an investigation of which

the obtaining of prima facie proof is the end. When

such proof has been obtained, the police case is

complete; it is indeed desirable as a general rule that

an arrest should not be made until the case is

complete. But if arrest before that were forbidden, it

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could seriously hamper the Police. To give power to

arrest on reasonable suspicion does not mean that it

is always or even ordinarily to be exercised. It means

that there is an executive discretion. In the exercise

of it many factors have to be considered besides the

strength of the case. The possibility of escape, the

prevention of further crime and the obstruction of

Police enquiries are examples of those factors with

which all judges that have had to grant or refuse bail

are familiar.”

In the instant case, the appellants failed to state the

grounds or facts supporting their allegation, before the 1st

respondent was arrested and detained by the 2nd & 3rd

respondents. I have also carefully gone through the

affidavits deposed to and filed by the parties at the lower

Court and I observed that the offence in respect of which

the 1st appellant reported the 1st respondent to the Police

was based on mere allegations of some unnamed persons.

To make my observation clear enough, I hereby undertake

to reproduce Paragraph 17 and 18 of the appellants

counter-affidavit below:

“17. That the basis of 1st Respondent’s (the 1st

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appellant’s) complaint to the Police was based on

several allegations and complaint against the

Applicant that he was using the vehicle for bunkering

business which is criminal in nature more so that the

registration particulars of the vehicle still carries the

particulars of the 1st & 2nd Respondents (the

appellants), Paragraph 18 -30 of the affidavit in

support are hereby denied. (Brackets mine for

clarification).

18. That when the Applicant eventually brought the

vehicle, it was noticed that all the seats inside has

been removed to allow him load Jerry cans inside the

vehicle and that the spare tyre pot was replaced with

a big tank and bore a hole on the floor of the vehicle

leading to the tank under from where he fills the

tank. The copies of photographs, taken by the Police

and given to me are annexed herewith and marked

Exhibit “B1.”

From the above, it is quite clear that the appellant have no

concrete or reasonable or probable cause to establish

prima facie proof that the 1st respondent was involved in

criminal activities (oil bunkering). Also, the purported

evidence (Exhibit B1) to which the appellants placed their

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reasonable belief were obtained subsequent to the 1st

respondent’s arrest. I refer to Paragraph 18 of the 1st

respondent’s affidavit in support of the motion, wherein he

stated clearly that he was arrested on the 4th day of March,

2013, while the said Exhibit B1 bore 27th day of March,

2013. (See pages 8 and 44 -46 of the record of appeal.) In

the light of the above findings and in line with the

authorities cited above, I am of the firm viewpoint that the

report made by the 1st appellant in respect of the 1st

respondent to the Police was made malafide and without

reasonable or probable cause. It is also trite that in action

for unlawful detention or false imprisonment as it applies in

this case, the plaintiff is required to prove that it was the

defendant(s) who was actively instrumental in setting the

law in motion against him. See Okonkwo v. Ogbogu

(1996) 5 NWLR (Pt. 449) 420; Ejikeme v. Nwosu

(2002) 3 NWLR (Pt. 754) 356 and Ojo v. Lasisi (2003)

7 NWLR (Pt. 819) 237.

It is instructively significant to note, that in the instant

case, the 1st respondent deposed in Paragraphs 18 - 25 of

his affidavit in support of the motion on notice,

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that the 1st appellant personally brought two plain clothed

Policemen on a pre-arrangement and somewhat directed

them to arrest him. This fact was not denied in the

appellants’ counter-affidavit, thus, it is deemed admitted.

Also, in corroboration of the above stated fact, the 1st

appellant admitted in Paragraph 16 (1) of his counter-

affidavit as follows:

“i. That the Applicant (1st Respondent) did not

willingly honour the invitation or was coming to pay

his installment but rather came because the 1st

Respondent informed him that he want to visit his

wife and new born baby.” (Bracket mine for

clarification).

The above admission must have impinged on and

demolished every contention of the appellants’ counsel that

the appellants were not instrumental to the arrest and

detention of the 1st respondent. What a subterfuge and

display of subterranean influence, engendered to ensnare

and or entrap the 1st respondent !

Based on all that have been said above, I have no difficulty

in agreeing with the learned trial judge that the 1st

respondent has successfully proved his case and thus

entitled to the reliefs granted to him by the

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lower Court. Hence, this issue is resolved in favour of the

1st respondent. Having resolved the sole issue formulated

for the determination of this appeal in the manner stated

above, this appeal is adjudged by me to have lacked merit

and it is accordingly dismissed. Consequently, I affirm the

decision of the Abia State High Court, delivered on the 15th

day of July, 2013 by Hon. Justice Onuoha A. K. Ogwe, J. in

respect of Suit No. A/M54/2013. Costs in the sum of

N50,000.00 is hereby awarded in favour of the 1st

respondent herein.

ITA GEORGE MBABA, J.C.A.:I had the privilege of

reading the draft of the judgment just delivered by my

learned brother, M. A. Oredola JCA and I agree with his

reasoning and conclusions, that the appeal lacks merit.

We have stated several times, that a mischief complainant,

who lodges complaint with the police or security agencies,

to get even with an opponent over a purely contractual

disagreements, and causes the opponent to be arrested and

detained over such civil disagreements, is liable to pay for

damages accruing there-from, or adjudged thereon. See

Oceanic Securities International Ltd v.

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Balogun & Ors (2012) LPELR 9218 (CA); (2013) All

FWLR (Pt.677) 633. See also Ogbonna v. Ogbonna

(2014) LPELR – 22308 (CA); (2014) 23 WRN 48, where

it was held:

“Of course, a man who procures the Police to do some illicit

duties for him should be ready to face the legal

consequences of that illegality, and the law is well settled

on this.” Udeagha vs. Nwogwugwu (2013) LPELR

21819 CA; Iwununne v. Egbuchulam & Ors (2016)

LPELR 40515 CA.

I too dismiss the appeal and I abide by the consequential

orders in the lead judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.:I had the privilege

of reading the draft of the judgment just delivered by my

learned brother MASSOUD ABDULRAHMAN OREDOLA

(JCA). I am in full agreement with the reasoning and

conclusion therein. This appeal lacks merit I also dismiss it.

I abide by the consequential orders in the leading judgment

(including costs).

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