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C.K. ANYANWU
Secretary YLF,
NBA ABA BRANCH.
MRS. BABY JUSTINA LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS
(2010)LCN/3687(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of April, 2010
CA/PH/216/2004
RATIO
EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE THAT THE REFUSAL OF A TRIAL JUDGE TO DETERMINE AN ISSUE OCCASIONED A MISCARRIAGE OF JUSTICE
That aside, it is now settled beyond paradvanture that the burden is on an Appellant who complains about the refusal of a trial judge to determine an issue, to show that such a refusal occasioned a miscarriage of Justice. PER TIJJANI ABDULLAHI J. C. A.
RELIEF: DUTY OF A COURT TO LIMIT ITSELF TO RELIEFS OF THE PARTIES
Now, it is settled beyond dispute that in granting a relief to a party, a court’s order is circumscribed and restricted by the reliefs as framed by the applicant. This is because the court can grant less but not more than what the claimant claims.
See A.G. EKITI STATE VS. DAMMOLA (2003) FWLR (PT. 169) p. 1121 – 1167 F-G and A.G. FEDERATION v. A.I. C. LTD. (2000) 10 NWLR (PT. 675) P. 293 at 308. PER TIJJANI ABDULLAHI J. C. A.
CONSTITUTIONAL LAW: TO WHAT EXTENT IS POWER OF THE POLICE TO ARREST AND DETAIN?
It is trite that, the power of the 1st and 2nd Respondents to arrest and detain, pending investigation in some cases is constitutional and is derived from sections 214 and 216 of the constitution of the Federal Republic of Nigeria, 1999. I am of the considered view that the mere exercise of that power cannot by virtue of section 35(1) of the 1999 Constitution amount to a breach of the Appellant’s fundamental right, even when such exercise result in the curtailing of her freedom of movement or liberty. I hasten to say that if the contrary is the case, all persons arrested by the Police may as well claim breach of their fundamental rights. It is also to be noted that in exercising this power to arrest, 1st and 2nd Respondents, by virtue of section 4 and 24 of the Police Act Cap 359 LFN, have a discretion upon reasonable suspicion of committing a crime to arrest any person, including the Appellant. It is generally not the business of the courts to fetter this discretion.
See the case of FAWEHINMI VS. I.G.P. (2002) FWLR (PT. 108) p. 1355 at 1376 – 1377.
However, not withstanding the power of the Police as spelt in sections 4 and 24 of the Police Act, where this power is improperly used, the court can stop the use of the power for that improper purpose, as that would no longer be covered by section 35(1) (c) of the Constitution. In other words, an order retraining the Police from arresting on some particular improper occasion or for some particular improper purpose may be made by the court. PER TIJJANI ABDULLAHI J. C. A.
RELIEFS: WHETHER A RELIEF COUCHED IN WIDE AND IMPRECISE TERMS SHOULD BE GRANTED
Let me say at this juncture that it is now trite law that such a relief couched in such wide and imprecise terms should not be granted.
See JOE GOLDAY VS. CAB PLC (2003) FWLR (PT. 153) P. 376 at 389 F and 393 E – H and INEC v. MUSA (2003) FWLR (PT.145) P. 729 at P. 776 – 777 . PER TIJJANI ABDULLAHI J. C. A.
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