⦿ CASE SUMMARY OF:
Otuekong Raphael Bassey & Anor v. Mr. Dominic Jessey Akpan & Ors (2018) – CA
1. OTUEKONG RAPHAEL BASSEY;
2. MR. PETER OKON EFFIONG;
1. MR. DOMINIC JESSEY AKPAN;
2. MS ARIT PETER AKPAN;
3. MR. MFON AKIKPOK;
4. CHIEF IBOK ESHIET;
5. MR. SAMUEL UDOEKONG;
6. MR. DOMINIC OKON EDET;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Stephen Jonah Adah, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Obot E. Obot;
* FOR THE RESPONDENT
– Mr. Mike Benson;
⦿ FACT (as relating to the issues)
The 1st and 2nd Appellants were the 1st and 2nd Respondents respectively before the Lower Court. The 1st to 6th Respondents in this appeal were the Applicants at the Lower Court.
The 3rd Respondent who was the 3rd Applicant at the Court below was alleged to have committed adultery and impregnated the wife of one Okon Nyong Udoinyang (named Mr. Ifa Mmayen 3rd Respondent at the Lower Court). The said Okon Nyong Udoinyang now reported the matter to the Police. The 1st Respondent in this appeal went to the 1st Appellant their community leader asking him to intervene in the matter. The 1st Appellant approached the Police and requested that he be allowed to take the complaint back home for settlement. A customary mediation panel comprising seven (7) elders was said to be set up to look into the matter. The panel resolved the matter and asked the 3rd Respondent to pay fine. The 3rd Respondent allegedly agreed and paid N20,000 which was a part payment of the fine with a promise to pay the balance later. It was when the balance of the fine was not paid that the matter got out to the Court where the Respondents filed this action. The matter was originated by way of an application for the enforcement of fundamental rights.
In the motion on notice filed on the 19th day of December, 2011 at the Lower Court, Applicants sought for five(5) main reliefs which borders on injunction and damages from harassment, in regards to the unpaid money, from the respondents.
The Appellants joined issues with the Respondents at the Court below. The Court heard the application and awarded a sum of N100,000.00 to each of the Applicants to be paid by the Appellants in this case.
Aggrieved by this decision, the Appellants filed a notice of appeal on 15th day of May, 2013.
1. Whether in the light of the facts of the case, the learned trial Judge was right to hold that the Appellants had violated the Fundamental Rights of the Respondents.
2. Whether it was right, correct and proper for the trial Judge to award the sum of N100,000.00 against all the Respondents in that suit jointly and severally and in favour of each of the Applicants.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: SUCCEEDS IN PART]
1. FOR ISSUE 1, THE COURT OF APPEAL HELD AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENTS.
i. Under Section 35(1)(c) of the Constitution it is provided that no person shall be deprived of his personal liberty except among others for the purpose of bringing him before a Court in execution of the order of a 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. The window created by the Constitution to temporarily deprive someone of his personal liberty is further regulated in Section 35(3), (4) and (5). There is no provision made in any of our laws for the Police to arrest any person arbitrarily.
ii. In law, it is a clear violation of an Applicant’s rights for him to be arrested at all when he has not committed any offence known to law. In this case, the Respondents have failed to establish that the Applicants committed any offence known to law. Consequently, the arrest and detention of the 1st, 2nd and 4th Applicants and the threat to re-arrest them not having been justified by the Respondents are unlawful and unconstitutional and therefore a violation of their fundamental rights to the dignity of their human persons and personal liberty preserved and protected by Sections 34 and 35 of the Constitution.
2. FOR ISSUE 2, THE COURT HELD AGAINST THE RESPONDENTS AND IN FAVOUR OF THE APPELLANT.
i. A little consideration by the Lower Court of the fact that it was not all the Respondents that were arrested and the fact that the Respondents were not detained beyond reasonable time and the fact that one of the Respondents was the victim of the adultery, would have been taken into consideration by the Lower Court in awarding damages. The damages awarded here are not justifiable.
S.46 (1 & 2) of the CFRN 1999;
S. 34 CFRN 1999;
Order 2 of the Fundamental rights (Enforcement Procedure) Rules 2009;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
Sea Trucks (Nig.) Ltd. v. Panya Anigboro (2001) LPELR-3025 (SC), Karibi-Whyte, JSC held that: “The correct approach in a claim for the enforcement of fundamental rights is to examine the relief sought, the grounds to such relief, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the Applicant as the basis of the claim, where there is a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with her substantive claim which is the subject-matter of the action. Enforcement of the right per se cannot resolve the substantive claim which is in any case different.”
⦿ NOTABLE DICTA
I believe it is not in all cases counsel for the parties will indulge in prolixity or explosive expose of every issue found in a judgment. Briefs should help the Court to resolve issues in contention with ease and in the spirit of ensuring that substantial justice is done. A good brief should aim highly at addressing issues in a brisk and precise manner with clarity and accuracy as the baseline. – Jonah Adah, JCA. Basset v. Akpan (2018)
It is our norm of adjudication that sentiments, or flimsy and fanciful wrangling are not allowed. If a person comes to Court he must have a cause of action. In the same way when one alleges that his fundamental right to dignity is breached he must solidly put before the Court evidence to prove his allegation of such an infraction from the affidavit before the Court. – Jonah Adah, JCA. Basset v. Akpan (2018)
The question before this Court is whether the said reasons are a justification to the said arrest and threats of arrest. This Court is not aware of when adultery became a criminal offence in Akwa Ibom State. I do, however, know that the duties imposed on the Police by the Police Act or any other law in force in this country does not include collection of debts. Collection of fines imposed by a native arbitration on a person for adultery or for any other reason cannot therefore be the business of the Police. – Jonah Adah, JCA. Basset v. Akpan (2018)
The Police under Section 4 of the Police Act have the statutory duty to prevent and detect crime. The Police are also to carry out duties relating to the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. The task before the Police is onerous and serious. The Police therefore cannot endeavour to engage in settlement of civil disputes or collection of customary debts. In the light of our present security challenges the Police must wean itself from this attitude of meddling with issues bothering settling private scores and civil disputes that have no bearing with maintenance of law and order. – Jonah Adah, JCA. Basset v. Akpan (2018)
In the instant case, the Police took the report of adultery. Adultery itself is a reprehensible conduct and each society abhors it. If it occurs and for any reason, the Police are invited, the Police must not derail and enter into the arena to start arresting people anyhow. – Jonah Adah, JCA. Basset v. Akpan (2018)