OLUTIDE & ORS. v HAMZAT & ORS.

OLUTIDE & ORS. v HAMZAT & ORS.


IN THE COURT OF APPEAL
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE

ON FRIDAY, 8TH JANUARY, 2016


Appeal No: CA/AK/80/2014
CITATION:

Before Their Lordships:

SOTONYE DENTON-WEST, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A.


BETWEEN

BOBADE OLUTIDE

SIJI AKINBOLAWA

GBENGA BOLAWA

(APPELLANTS)

AND

ADAMS HAMZAT

COMMISSIONER OF POLICE

SERGENT ORIMISAN

(Ondo State police Command Headquarters, Akure)

MR. KEHINDE ALADEDUTIRE (Practicing under the name and style of W. A. Aladedutire & Co.)

(RESPONDENTS)


PRONOUNCEMENTS


A. ADMINISTRATIVE LAW
1. Duty of Police – Statutory duty of police to investigate allegations of crime

“It is trite in law that once criminal allegations are made against a citizen, it is a constitutional and statutory duty of police to investigate, as investigation and detection of crime is one of the primary duties assigned to the police under the earlier cited Section 4 of the Police Act.” Per DENTON-WEST, J.C.A. (para 45) read in context

B. CONSTITUTIONAL LAW
2. Fundamental Human Rights – Characteristics of human rights

“Now, I understand, Human Rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable fundamental rights. These rights are based on the belief that everyone is equal and should have the same rights and opportunities. Embedded in these rights are the abilities to understand another person’s feelings, experience and the rule of law. In other words, do unto others what you want done to yourself. Thereby it is safe to say that these rights impose an obligation on all persons as human beings to respect the human rights of others. However, these rights can be taken away though as a result of due process based on certain circumstances.” Per DENTON-WEST, J.C.A. (para 23) read in context

3. Right to Personal Liberty – Limitations to the enjoyment of the right to freedom of liberty

“Let me clarify this, the right to liberty as enshrined in Section 35 of our Constitution and Article 6 of the African charter that nobody shall have their right to liberty taken away, abridged or violated is not absolute, especially when there is reasonable suspicion that a criminal offence had been committed as in this instant case.” Per DENTON-WEST, J.C.A. (para 54) read in context

C. WORDS AND PHRASES
4. Definitions – Meaning of “instigate”

“According to Black’s Law Dictionary 8th Edition, the word instigate means to goad or incite (someone) to take more action or course. Now the word goad means to drive or encourage somebody to do something.

Incite means to encourage someone to do something violent, illegal or unpleasant by making them angry or excited.

In Statoil (Nigeria) Limited & Anor vs. Federal Inland Revenue Service & Anor (2014) LPE R – 23, this Court held on pages 34, 300 and 868 thus “To instigate is to goad or incite someone to make some actions or course of action against another.”

In my opinion it simple means to incite or to lure someone to do something that he may or may not have meant to do.” Per DENTON-WEST, J.C.A. (para 31 – 32) read in context

D. CRIMINAL LAW
5. Issuance of Dud Cheques – Criminality of the issuance of dud cheques

“May I quickly chip in that issuance of dud cheques is a criminal offence under Section 1 of the Dishonored cheques (offences) Act CAP 011 Laws of the Federation of Nigeria 2004. Also see the case of Chief (Dr.) O. Fajemirokun vs. Commercial Bank Nigeria Ltd. & Anor (2009) 2 – 3 sc (pt. 135) 58. In fact His Lordship TABAI, JSC (as he then was) held thus:

“In the first place issuance of Dud Cheque is a criminal offence under Section 1 of the Dishonored Cheques (Offences) Act CAP D 11 Laws of the Federation of Nigeria 2004 and for which the Respondents were entitled to make a report to the Police.’ Per TABAI, JSC (p.40, paras D – F).” Per DENTON-WEST, J.C.A (para 40) read in context

6. Arraignment of Accused Persons – Power of the Court to make orders on the liberty of the accused prior to arraignment

“While I am not holding brief for the Magistrate Court, I am aware that in the case of Stanley Nwadike vs. The State (2015) LPELR – 24550 (CA), His Lordship MBABA had held (pp 19 – 20, paras B-D) thus:

“l also believe that where no criminal trial has commenced, pursuant to a valid arraignment, the Court lacks power to pronounce on the liberty of the accused, to order for the remand of the accused, except perhaps, where he is produced in Court, specifically, under what is usually termed a “holding charge”, usually applicable in Magistrate Courts.” Per DENTON-WEST, J.C.A. (para 49) read in context

E. COURT
7. Duty of Court – Duty of the Court to do justice

“This Court would not compromise justice and in fact no Court should ever be seen to directly or indirectly, advertently nor inadvertently to be a purveyor or conveyor in the subvention of justice. He who seeks equity must do equity, a seeker for enforcement of his fundamental Human Rights with tarnished honesty and truth will only incur deficient credentials in the eye of the law. This Court will not be seen to permit the invocation of human rights to cover up a criminal act.” Per DENTON-WEST, J.C.A. (para 52) read in context

F. LEGAL SYSTEM
8. Judicial Precedents – The rule in Smith v. Selwyn

“It is a matter of trite law that whenever a criminal action is pending in respect of the same party, the said criminal action ought to be disposed off before a civil action can be initiated or embarked upon. See Smith & Anor vs. Selwyn (1914) 1 K.B. 98 (Court of Appeal, England).” Per DENTON-WEST, J.C.A. (para 53) read in context


LEAD JUDGEMENT DELIVERED BY DENTON WEST, J.C.A.


1. This is an appeal by the Appellants against the judgment of Hon. Justice L.M. Sani of the Federal High Court, Akure Judicial Division, Akure delivered on the 24th day of March, 2014.

A SYNOPSIS OF THIS CASE

2. The 1st Respondent who was the Applicant at the lower Court sometimes in June 2012 entered a contractual agreement with the 1st, 2nd and 3rd Appellants who are car dealers to supply two vehicles to the 1st Respondent, who thereafter issued two charges (marked exhibit CH1.and CH2) as part payment. Unknown to them, one was written the sum of one Thousand, Five Hundred Naira (N1,500.00) as against the sum of one Million, Five Hundred thousand Naira (N1,500,000.00) and on the other was written N2,100.000 (Two Thousand, one Hundred Naira) as against the sum of Two Million, One Hundred Thousand Naira (N2,100,000.00). when the Appellants realised they had been seemingly short changed, to part with their properties (a Nissan Pathfinder and sienna Mini Bus), they contacted the 4th Respondent, their lawyer who issued two petitions marked Exhibits CP1 and CP2 to the police against the 1st Respondent, consequent upon which him and his agents were arrested. The 1st Respondent pleaded to settle for the settlement of the matter amicably, subsequent upon which he then issued another cheque marked as Exhibit CH3 where he wrote the sum of N5,327,000.00 (Five Million, Three Hundred and twenty-seven Thousand Naira) purportedly to cover the total indebtedness of the 1st Respondent to all the Appellants. Three Agreements (marked Exhibit A1, A2 and A3) were drawn up between the Appellants, the 1st Respondent and one Mrs. Bola Fayanju as Guarantor to the 1st Respondent. The third issued cheque was eventually dishonored when presented at United Bank of Africa (UBA) as a dud cheque.

3. The Appellants informed their Counsel yet again and a complaint was lodged to the police, the 1st Respondent pleaded for more time, the Appellants conceded and at the chambers of the 4th Respondent, the Appellants met the same fate as previous as the amount on the new cheque was not paid nor the Agreement marked Exhibits B1, B2 and B3, honored.

4. Yet again, the Appellants contacted their Counsel who on complaints to the police went through several efforts to have the 1st Respondent brought down to Akure, where he was eventually charged to Court the following day and on the order of the Magistrate Court ordered to be remanded and properly tried at a Court of jurisdiction.

5. The case file was forwarded to the Ministry of Justice, Ondo State and a Legal Advice was issued directing that the 1st Respondent be charged for the offences of obtaining goods under false pretences and using of dud cheques. These are marked as Exhibits 1A and Exhibit 1F.

6. The 1st Respondents also filed an action for enforcement of his fundamental rights and judgment was given in his favour, against the Appellants which has given rise to this appeal.

7. At the hearing of this appeal on the 1st day of October, 2015, O. l. Aladedutire Esq., Counsel for the Appellants adopted the Appellants’ Brief of Argument dated and filed on the 2nd day of July, 2014. Counsel urged this Honorable Court to set aside the decision of the trial Court.

8. On the part of the 1st Respondents, Femi Emmanuel Emodamori adopted the Respondent’s Brief of Argument dated and filed on 26th day of May, 2015 but deemed properly filed in this Court on the 27th May 2015. Counsel for the Respondent urged this Honorable Court to dismiss the appeal and affirm the judgment of the lower Court. This Court thereafter reserved this appeal for judgment.

9. The Appellants as contained in their Brief of Argument formulated two (2) issues for the determination of this appeal.

(1) Whether or not from all the available evidence before the trial Judge, the trial Judge was right in granting the claims of the 1st Respondent for the violation of his fundamental rights and award damages to him for the violation.

(2) Whether or not the 1st Respondent (Applicant at the trial Court) could validly enforce any right while he is currently facing a criminal trial.

10. On the part of the 1st Respondent, a sole issue was formulated for the determination of this appeal thus:

1. Considering the totality of evidence adduced at the trial whether the learned trial Judge was not right in giving judgment in favour of the 1st Respondent.

11. In my candid view, the two issues as formulated by the Appellants would do justice to this appeal.

ISSUE ONE (1) AND TWO (2)

(1) Whether or not from all the available evidence before the trial Judge, the trial Judge was right in granting the claims of the 1st Respondent for the violation of his fundamental rights and award damages to him for the violation.

(2) Whether or not the 1st Respondent (Applicant at the trial Court) could validly enforce any right while he is currently facing a criminal trial.

12. On this issue, learned Counsel for the Appellants fused the two issues formulated by him in one breadth of argument. The learned Counsel submitted that every citizen has a duty to report to police any alleged criminal act and this was the duty they embarked upon by their petition to the commissioner of police, Ondo State marked Exhibit CP1 and CP2 intimating the 1st Respondent of being induced to part with their goods and the issuance of fraudulent cheques as part payment. Counsel submitted that a person could not therefore in law be found capable of instigating the police to arrest a suspect as the police institution is not a robot but empowered to exercise their discretion within the ambit of the law in carrying out their duties of enforcement. He referred to the case of Fajemirokun vs. Commercial Bank (Nig.) Ltd. (2009) ALL FWLR 487 page 1 @ page 6 paras D – E. where their Lordships held that:

“It is the duty of citizens of this country to report cases of commission of crime to the police for further investigation and what happens after such report is entirely the responsibility of the police. The citizens cannot be held culpable for doing their civic duty unless it is shown that is done mala fide.”

13. Counsel for the Appellants submitted that before a person could be found liable for instigating the police, it must be shown that the person did more than merely reporting/or giving information about the criminal allegation to the police and furtherance he stated that the fundamental right to freedom of personal liberty is not absolute. Section 35(1) (c) of the Constitution of the Federal Republic of Nigeria; Dokubo Asari vs. FRN (2001) 12 NWLR (pt. 1048) page 320 paras B – E. he referred.

14. Counsel stated that in the instant case, the first set of cheques (2) issued to the Appellants which he wrote a far lesser sum as payment after taking possession of the car showed intention to defraud the Appellants by depriving them of the payment, of the vehicles supplied to him.

15. Counsel for the Appellants also contended that the arrest, arraignment and detention of the 1st Respondent was not shown to be unlawful as the detention was done at the instance of the Magistrate Court upon a remand proceeding before it and moreso this Court was asked to note that it was after the legal process of his release were effected that the 1st Respondent approached the Federal High Court seeking to shield himself from prosecution.

16. Arguing that it was not unconstitutional for a Court to remand an accused person pending formal arraignment/ prosecution, Counsel for the Appellants queried why the 1st Respondent failed to immediately approach the High Court for bail rather than wait longer. Counsel posited that as evidenced by Exhibit 1F, the 1st Respondent was about being arraigned at the Ondo State High Court for the offence of obtaining property under false pretences under Section 419 of the Criminal Code and the offence of issuing dud cheques contrary to Section 1(1) (a) of the Dishonored Cheque Act CAP 107; Vol. 7 Laws of the Federation of Nigeria 1996. Counsel urged this Court to set aside the judgment of the lower Court.

17. On the part of the learned Counsel for the 1st Respondent, his submissions are that the learned trial Judge decision was well founded. Reason being that it was never in contention between the parties at the trial Court that the genesis of the dispute was the purchase of two vehicles on credit upon an agreement for a deferred payment in anticipation of money hinged on fulfillment of payment of a contractual debt by the Ondo State Government. The learned Counsel submitted that the learned trial Judge was right when upon the evaluation of the affidavit evidence of the parties he came to the conclusion that the purchase of the vehicle(s) by the 1st Respondent and/or the printing services done for him by the 3rd Appellant, all of the indebtedness to which the 1st Respondent admitted to, does not amount to the criminal offence of obtaining by false pretences and therefore cannot justify the series of arrests and detention of the Applicant/ 1st Respondent.

18. Counsel submitted that a breach of an agreement that has no element of criminality cannot ripen into a criminal offence. Onagoruwa vs. state (1993) 7 NWLR (pt. 303)
49 @97 paragraphs C – D. Counsel submitted that the allegation of obtaining false pretences leveled against the 1st Respondent is a criminal offence under Section 419 of the Criminal Code, CAP 37, Vol. 1, Laws of Ondo State, 2006 and that the Appellants at the trial Court failed to substantiate same with any reasonable or reliable evidence to justify the arrests and detentions of the 1st Respondent bearing in mind that the onus of proof on a party who alleges a criminal offence against another in a civil proceedings is the same as in a criminal trial by virtue of Section 135(1) of the Evidence Act, 2011.

19. Counsel submitted that the trial Court properly held that the police is not a debt collector agency and that the extraction of the cheque of N5, 327,000 from the 1st Respondent by the Appellants through the 4th Respondent (their solicitor) while the 1st Respondent was still under police custody was illegal, contrary to public policy and in fact constitutes the criminal offence of compounding felony under Section 127 of the criminal code, CAP 37, Vol. 1, Laws of Ondo state 2006.

20. Therefore, the Counsel concluded that the purported criminal charge of dishonored cheque leveled against the 1st Respondent after extracting same from him cannot justify the arrest and detention of the 1st Respondent.

RESOLUTION OF CONJOINTLY ARGUED ISSUES 1 AND 2
Both parties having argued the two issues together, this Court shall do same.

21. From all that has been deciphered thus far, it is safe to posit that the heart of this matter is the question of justification or otherwise of the judgment of the lower Court which granted the prayers of the 1st Respondent without due recourse to the totality of allegations leveled against him and unflinching facts and evidence placed before the lower Court.

22. At the lower Court, the 1st Respondent as Applicant vide a motion on notice for his Fundamental Rights dated 11/01/2013 claimed against the Appellants and the 2nd, 3rd and 4th Respondents various reliefs of declaration, damages and injunction alleging series of violations of his Fundamental Rights to personal liberty and freedom of movement as guaranteed by Section 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as well as Article 6 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, CAP A9, volume 1, Laws of the Federation of Nigeria, 2004.

23. Now, I understand, Human Rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable fundamental rights. These rights are based on the belief that everyone is equal and should have the same rights and opportunities. Embedded in these rights are the abilities to understand another person’s feelings, experience and the rule of law. In other words, do unto others what you want done to yourself. Thereby it is safe to say that these rights impose an obligation on all persons as human beings to respect the human rights of others. However, these rights can be taken away though as a result of due process based on certain circumstances. It was the contention of the 1st Respondent that his Rights to personal liberty and his Right to freedom of movement as enshrined in Section 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was breached by the actions of the Appellants and the lower Court so agreed in its judgment thereby spurring the Appellant’s appeal to this Court to determine the justification or non-justification of the grant of the 1st Respondent’s prayers and reliefs sought.

24. In order to diligently perform this duty, I have given a synopsis of my understanding of this all important constitutional and universal principle referred to as Human Rights, but is however necessary to now look into this individual case so firstly, a quick recap of the background facts from the Record of Appeal and Briefs of Argument.

25. The 1st Respondent and the Appellants both agree that sometime in July 2012, there was a transaction between them, in which the 1st Respondent purchased on credit two vehicles (a Toyota Sienna Bus and a Nissan Pathfinder) and issued a cheque as part payment to that effect.

26. Exhibits CH1 and a CH2 however shows that the amount written on the cheques were a far cry to the agreed amount, on Exhibit CH1 rather than write N1,500,000.00 (one Million, Five Hundred thousand Naira) it had on it N1,500.00 (one Thousand, Five Hundred Naira). Could this be a mistake or so intended?

27. Both parties agreed that four (4) months later and as a result of the discrepancy on both cheques marked as Exhibits CP1 and CP2, a petition from the law firm of the 4th Respondent, to the police saw to the arrest of the 1st Respondent by policemen on the allegation that he failed to pay for the purchase of the vehicles bought from them on credit which made them petition the police for the offence of obtaining by false pretences. The result was that the 1st Respondent was detained for one day and the following day on 24/10/2 12. Three (3) Agreements were reached by all concerned parties marked Exhibits A1, A2 and A3 in which the 1st Respondent agreed to pay ail indebtedness and issued a new set of post-dated UBA cheque (marked as Exhibit CH3) to be made cashable on the 19th December, 2012. This subsequent cheque was dishonored by the paying bank and returned as a dud cheque.

28. The Appellants informed the police on this development and the 1st Respondent claimed he was re-arrested and detained for one day (27th – 28th of February, 2013). The Appellants claim that all the parties were taken before the Assistant Commissioner of Police at the State Headquarters where the 1st Respondent pleaded not to be charged to Court but given more time to pay all his indebtedness. This event saw to the production of yet another new set of Agreements marked as Exhibit B1, B2 and B3 and to issuance of a new cheque. However, this cheque was also dishonored as a dud cheque.

29. The Appellants claim that after so much effort and having allegedly jumped bail twice, the police were only able to bring the 1st Respondent down to Akure from lkare on the 29th of April, 2019 and he was charged to the Magistrate Court the next day, 30th April, 2019 where the Magistrate Court ordered his remand pending the issuance of the legal advice from the office of the DPP to face trial at the proper Court, the High Court, the Magistrate Court having tacked the jurisdiction. The 1st Respondent spent 63 days in detention before he sought for bail at the High Court and was granted. Though the Appellants had vehemently argued that nothing stopped him from seeking his bail like he eventually did which made him seek the enforcement of his fundamental Human Rights at the lower Court on grounds that his Right to personal liberty and movement as enshrined in Section 3 and 4 of the Constitution had been trampled upon at the instigation of the Appellants (underlining for emphasis).

30. The question now is, from the background facts of this case as captioned in action filed in the Federal High Court by the 1st Respondent in this Court as Applicant, could it really be said that the 3rd – 6th Appellants instigated the 1st and 2nd Appellants to violate the fundamental human rights of the 1st Respondent?

31. To ascertain the truth, first we must answer the question, what is meant by the word instigate. According to Black’s Law Dictionary 8th Edition, the word instigate means to goad or incite (someone) to take more action or course. Now the word goad means to drive or encourage somebody to do something. Incite means to encourage someone to do something violent, illegal or unpleasant by making them angry or excited. In Statoil (Nigeria) Limited & Anor vs. Federal Inland Revenue Service & Anor (2014) LPELR – 23, this Court held on pages 34, 300 and 868 thus:

“To instigate is to goad or incite someone to make some actions or course of action against another.”

32. In my opinion it simple means to incite or to lure someone to do something that he may or may not have meant to do.

33. Therefore could it be said as alleged, that the police were goaded or incited to carry out the action of investigating the petition of the 3rd – 6th Appellants before them.

34. In the first instance according to the Record of Appeal, the dealings between the 1st Respondent and the 3rd – 5th Appellants should have been a simple contractual relationship, of course if there was a consensus ad idem, the meeting of two minds for same intent and purpose. But according to the 3rd – 5th Appellants, it was on the suspicion that they had been duped into accepting a fraudulently written cheque (see pages 56 and 57 of Record of Appeal) that made them seek the due process of engaging their lawyer (6th Appellant) from whose law firm the petition emanated and led to the involvement of the police (see page 48 of Record of Appeal).

35. It is necessary to note that, the 1st Respondent had held himself out as a man of means in Exhibit D3 wherein inter alia he described himself thus:

“I am native of Arigidi Akoko, Ondo State, Nigeria. I attended the L.G.A. in lkare Akoko. I am a former Personal Assistant to the former Minister of Works and Housing – Alhaji Lateef Jakande. Former National coordinator, P.D.P. youth Vanguard. National coordinator, St. Georges Ambulance Foundation, chairman, Managing Director, Horabb Oil and Gas West Africa Ltd. Chieftain of Labour party. Director General, lroko Youth Liberation Vanguard. I have contribute (sic) to the success of Governor Olusegun Mimiko for his 2012 election.”

Furthermore, the 1st Respondent knew he had sold the same impression of a ‘Big Man’ to the car dealers, this can be gleaned from the Affidavit in Support of the Originating Motion of the 1st Respondent on page 11 of the Record of Appeal paragraph 16 thus:

“Akinpeloye and Abiola knew that my company was expecting payment for a road construction contract from the Government of Ondo State before and during the negotiation for the vehicles.”

36. At this juncture, the pertinent question to ask was whether he took undue advantage of this situation to his benefit and disadvantage of the 3rd – 5th Appellants. As often said in my parlance, “action speaks louder than words”. Therefore the action of the 1st Respondent in the currency of this alleged contractual transaction would determine if indeed this was a mere contract where there exist mutual intent and purpose (consensus ad idem). Or if it was a guise or deceit to obtain goods by false pretences as alleged by the Appellants.

37. The first act of the 1st Respondent after taking possession of the vehicles was to issue two bad cheques, bad in the sense that the sum column and figure column had great discrepancies and ultimately made the cheque invalidated. See: Exhibits CH1 and CH2 on page 56 and 57.

38. Assuming this was an oversight, the next act of the 1st Respondent after the discovery of the discrepancy was to enter into an agreement and he issued another set of bad cheques marked as Exhibit CH3. Please note that this was about three (3) months after having taken possession of the vehicles and one had been rebranded to the colour of a political party, yet not a single dime had been paid.

39. For the third (3rd) time the 1st Respondent issued another cheque and executed agreements to that effect marked as Exhibit 81, 82 and 83. The fate of the cheque was same as previous – a dud cheque, this was about 8 months after!

40. May I quickly chip in that issuance of dud cheques is a criminal offence under Section 1 of the Dishonored cheques (offences) Act CAP 011 Laws of the Federation of Nigeria 2004. Also see the case of Chief (Dr.) O. Fajemirokun vs. Commercial Bank Nigeria Ltd. & Anor (2009) 2 – 3 SC (pt. 135) 58. In fact His Lordship TABAI, JSC (as he then was) held thus:

“In the first place issuance of Dud Cheque is a criminal offence under Section 1 of the Dishonored Cheques (Offences) Act CAP D 11 Laws of the Federation of Nigeria 2004 and for which the Respondents were entitled to make a report to the Police.” Per TABAI, JSC (p.40, paras D – F)

41. From the foregoing, can the action of the 1st Respondent right from the onset be termed as being contractual? To this I answer a resounding NO! The 1st Respondent had been fraudulent. In fact, it is instructive to note paragraph 40 of the 1st Respondent deposed Affidavit on page 13 of the Record of Appeal, where he said thus:

“40 I told the 2nd to 5th Respondents as well as Mrs. Bola Fayanju on the phone several times that it would be impossible for me or my company (Hamzat Adams West Africa Limited) to effect payment for the vehicles through the posted cheques since the vehicles for which the cheques purported to pay for had been taken by the Respondents and were not returned to me even after I and Mrs. Fayanju were made to sign Exhibits Al, A2 and A3.”

42. The above paints a clear picture that the 1st Respondents knowingly passed bad cheques without any intention ab-initio to pay for the goods in his possession, therefore the argument that he was coerced into making the agreement does not hold any water for a man of his posture in society as acclaimed by him. Neither would this argument of not knowing the other Appellants nor that the vehicles were taken from him. Nor that the payment was hinged on contingency of the Ondo State Government paying for the alleged contract job alone for them. And by the way does the 1st Respondent expect the 3rd – 5th Appellants to wait till perpetuity?

43. Therefore, from these background facts, it would be safe to say that when it dawned on the 3rd – 6th Appellants that the 1st Respondent had deceived them into parting with their vehicles, they sought legal aid from the 6th Appellants law firm who petitioned the police. Therefore where lieth the instigation of the police or the use of police to collect money?

44. Consequently, the argument put forward by the 1st Respondent in his Briefs on page 11 and the cited case of Onagoruwa vs. State (1995) 7 NWLR (pt. 303) 49@97 paragraphs C-D , that a breach of an agreement having no element of criminality as in this case cannot ripen into a criminal charge and conviction is out of place.

45. Also in the very much acclaimed apposite case as alleged by the 1st Respondent on page 12 of Brief of Argument, that is Jim-Jaja vs. C.O.P. Rivers state (2013) 6 NWLR (pt. 1350) 225. It is pertinent to note that it is not in pari-materia with this instant case, in the cited case, the 3rd Respondent made a false allegation of forgery to deceive the police against the defaulter upon which the police acted upon. While in the instant case, the allegations were not falsified but the honest transactions of events backed with facts which the police duly acted upon in the course of their duty of investigation. See: Section 4 of the Police Act. Also Fawehinmi vs. I.G.P. (2002) 7 NWLR (pt. 767) 606, R.V. commissioner of police of the Metropolis ex parte Blackbum (1968). It is trite in law that once criminal allegations are made against a citizen, it is a constitutional and statutory duty of police to investigate, as investigation and detection of crime is one of the primary duties assigned to the police under the earlier cited Section 4 of the Police Act.

46. Having shown in sequence how and what led to the due police involvement which eventually saw to the remand of the 1st Respondent at the order (underlined for emphasis) of the Magistrate Court, would it then be fair to say that the Appellants breached the fundamental human rights of the 1st Respondent as alleged when the 1st Respondents by his fraudulent actions of deceit brought it upon himself! Cause and effect. Remember I posited earlier that Human Rights are egalitarian.

47. In my candid view, I think not, the order that led to the remand was not given by the police nor the 3rd – 6th Appellants but by the Magistrate Court or are we to believe the Court was also instigated? How preposterous!

48. From the record of proceedings at the Magistrate Court found on page 34 of the Record of Appeal, it is glaring that the 1st Respondent was charged for issuance of Dishonored Cheque an offence contrary and punishable under Section 1(i) b(i) of the Dishonored cheque Act, CAP 102, vol. 7, Laws of the Federation of Nigeria, 1996. The last paragraph also reads thus:

“Court:- Plea of the Accused not taken because he was charged under the Federal Law hence this Court lacks jurisdiction. The IPO is ordered to duplicate the case file and forward same to the office of the DPP for legal advice. The Accused person is to be remanded in the prison custody pending when the legal advice will be issued. Case adjourned to 23/5/2013.

49. While I am not holding brief for the Magistrate Court, i am aware that in the case of Stanley Nwadike vs. The state 2015) LPELR – 24550 (CA), His Lordship MBABA had held (pp 19 – 20, paras B-D) thus:

“l also believe that where no criminal trial has commenced, pursuant to a valid arraignment, the Court lacks power to pronounce on the liberty of the accused, to order for the remand of the accused, except perhaps, where he is produced in Court, specifically, under what is usually termed a “holding charge”, usually applicable in Magistrate Courts.”

50. In any case, the order was at the discretion of the Judge and more importantly as argued by the Appellants, the 1st Respondent was not encumbered from seeking his bail like he eventually did.

51. It is now clear that the action of the 1st Respondent that precipitated a sojourn or sporadic detention has to do with criminality engendered by the issue of dud cheques by the several continuous issuance of dud cheques and by fraudulent conversion of their properties i.e.’ the vehicles collected from the Appellants when there was no seeming intention to pay for it. These are issues for which he cannot infer that his liberty has been breached/strangled upon. consequently, his resort to invocation of FHR is indeed an abuse of Court process and any judgment granted in his favour will ordinarily not stay (cloak injustice with garb of legality) for he should not gain from his criminal act. It is a ploy on his part to ingenuously use the provision of the law which he is in breach of to his advantage.

52. In the totality of all I have said, conjoined issues 1 and 2 hereby resolved in favour of the Appellants and against the 1st Respondent. This Court would not compromise justice and in fact no Court should ever be seen to directly or indirectly, advertently nor inadvertently to be a purveyor or conveyor in the subvention of justice. He who seeks equity must do equity, a seeker for enforcement of his fundamental Human Rights with tarnished honesty and truth will only incur deficient credentials in the eye of the law. This Court will not be seen to permit the invocation of human rights to cover up a criminal act.

53. It is a matter of trite law that whenever a criminal action is pending in respect of the same party, the said criminal action ought to be disposed of before a civil action can be initiated or embarked upon. See Smith & Anor vs. Selwyn (1914) 1 K.B. 98 (Court of Appeal, England). In this wise, the Respondent even though it is an acclaimed fact that you presumed innocent until proven guilty, nevertheless, he is adorned for now with the criminal garb from which he is yet to unrobe, and so for this reason and more, the basis of a fundamental human Rights application would be unjustified at this point in time.

54. The 1st Respondent did not part with a single penny and yet converted the two vehicles to his use for several months, and he expects the Appellants to simply fold their arms and wait in perpetuity what may have been a simple transaction. Let me clarify this, the right to liberty as enshrined in Section 35 of our Constitution and Article 6 of the African charter that nobody shall have right to liberty taken away, abridged or violated is not absolute, especially when there is reasonable suspicion that a criminal offence had been committed as in this instant case. It is rather sad that indigent/ ordinary people are sent to jail everyday by the Magistrate and Area Courts but when it comes to the so called ‘big men’ it is violation of their human rights!

55. It is about time that the Courts key into the zero tolerance stance of the present government and bring an end to such scenarios of injustice. One cannot eat his cake and have it, therefore the Court must not be seen in any shade to be tolerating any form of corruptible or fraudulent acts under the form or guise of a breach of a right, for any right to exist there must be a duty, the issuance of dud cheques is not part of the duty, after all it takes two to tangle or the Appellants would not have resorted to the police. However the police should not seize this type of situations to indulge in taking over the functions as if they are now a Court to sit in judgment. It has become the trend for the Nigeria police to sometimes use their good offices to usurp the power of the Court in a very melodramatic way, although in this instant appeal, I must say they were concerned with and preoccupy themselves with ensuring that an accused person is brought to book in accordance with the law and in this wise I am obliged to endorse their actions as taken in this appeal as proper.

56. One cannot also but congratulate the 5th Respondent who as Counsel to the Appellants fought and petitioned the police on behalf of his clients so that justice may be done, and this fact was elaborately discerned by the lower Court when it did not include or order the 5th Respondent to be affected in the judgment negatively.

57. Therefore I am constrained despite the elucidation in the lower Court judgments not to uphold same especially in view of the foregoing and more particularly in my honest opinion this it would be leaving a scar in the conscience of our justice system and this Court will not permit that. In essence this appeal is not lacking in merit, it ought to be granted and it is hereby granted as a warning to men of shady character like the 1st Respondent’s act seem to engender in the circumstance of the facts before the Court.

58. I thereby set aside the judgment of His Lordship Justice l. M. Sani of the Federal High Court, Akure Judicial Division, Akure, delivered on the 24th day of March, 2014 in suit No. FHC /AK/CS/73/13. I award the sum of N250, 000.00 as cost.

DANJUMA, J.C.A.

I agree.

ABIRIYI, J.C.A.

I agree.