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SUIT NO. SC 291/1976
(1978) NSCC 312
BEFORE THEIR LORDSHIPS
Tort – Unlawful detention – Claim for damages – Party arrested for offence of affray – Detention at police station for 24 hours – Propriety.
Civil Action – Practice and Procedure – Application for order striking our claim – Trial Judge granting application dismissing claim as disclosing no cause of action – Statement of claim clear as to detention for over twenty-four hours – Prima facie, unlawful – Trial Judge’s decision set aside – Re-trial de novo ordered.
Mr. N. P. D. Ngbaronye for the Appellant.
1st Respondent in person.
2nd and 3rd Respondents absent.
FATAI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court): The plaintiff and the defendants are resident in Umuahia Ibeku Township. The first and second defendants are officers of the Nigeria Police. The first defendant was, at all material times, the Provincial Police Officer in charge of Umuahia while the 2nd defendant was the Provincial Crime Officer also in charge of Umuahia. The third defendant is a police constable attached to the Provincial Criminal Investigation Branch of the Nigeria Police at Umuahia. The plaintiff is a professional driver.
In proceedings commenced in the High Court at Umuahia, the plaintiff claimed against the defendants jointly and severally the sum of £1,000,000.00 (N2,000,000.00) as special and general damages for unlawful detention in the police station at Umuahia.
Pleadings were ordered and duly delivered. Paragraphs 5 to 10, and paragraph 35 of the plaintiff’s statement of claim read:-
“5. The plaintiff is a professional driver, who owns a Morris J2 passenger bus. The registration number of the said vehicle is ECU 932. He is married with more than five children. He is also the Chairman of the STAGE CARRIAGE DRIVERS UNION, UMUAHIA, EAST CENTRAL STATE. Members of the said Union include professional drivers, conductors, car, lorry and bus owners. These members load the vehicles of members of the union and are paid commission for this.
Meanwhile on the same day, Mr. Udokwu, who was moving around with the Police at the Aba/Umuahia Motor Park, gave the plaintiff a slap in the Aba/Umuahia Motor Park in the presence of the 2nd defendant and two other constables. The plaintiff gripped Mr. Udokwu. There was a scuffle and they were separated by the two constables. The 2nd defendant ordered that they should be put into the vehicle which he was using and belonged to one of the members of Udokwu Union. They were taken to the police station where the 2nd defendant ordered that both should be locked up. He walked out of the office and immediately came back to change his instructions. Instead of locking up he asked that the plaintiff and the defendant be detained behind the counter in the police charge office, Umuahia Ibeku, within the jurisdiction of this Court. This was at about 9 a.m. in the morning.” (italics ours)
The averments in the other paragraphs which followed, and in particular paragraphs 42 to 49, 53 and 58, show that the plaintiff, after his arrest, was detained by the 2nd and 3rd defendants in the cell of the Umuahia Police Station from about 9 a.m. on 5th October, 1972 to about 9 a.m. on 7th October, 1972. The averments also show that the 1st defendant was a party to this decision. In other words, the plaintiff averred in his pleadings that following his arrest, he was detained by the defendants in the police station at Umuahia for about 48 hours.
Paragraphs 20, 27 to 29 and 33 of the defendants’ joint statement of defence read –
“20. In answer to paragraph 35 of the statement of claim, the second defendant avers that a report reached him at the police station that there was a big fight at the motor park. He drove to the place with some other armed policemen. On their way to the park, he met the plaintiff and Mr. Udokwu being taken to the police station in a police van by two police officers for an alleged affray. After being satisfied that things were calm at the motor park, he then returned to the station where the plaintiff and others were being taken for further investigation.
XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 33. The defendants aver that the plaintiff is not entitled to any of the claims made in paragraph 58 of the statement of claim and aver that the plaintiff’s claims are speculative, frivolous and brought with the intention of frustrating the police in preferring a charge against the plaintiff for the offence he had committed:”
We shall refer to the averments in paragraph 58 of the statement of claim in full later.
Before evidence was heard from both parties, learned Senior State Counsel, who appeared for the defendants, on 20th August, 1973, applied to the court for an order “dismissing or striking out the plaintiff’s statement of claim on the grounds that –
(a) the claim discloses no cause of action against the defendants/applications;
(b) the claim is misconceived, embarrassing, vexatious and an abuse of the process of this honourable court and;
(c) the claim is bad in that distinct causes of action are joined in a single claim.”
The application was made under Order 33 rule 19 of the Eastern Nigeria High Court Rules (Cap. 61 of the Laws of Eastern Nigeria, 1963) which reads –
“19. The Court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case may be, or on the ground that it is embarrassing, or scandalous, or vexatious, or an abuse of the process of the Court, and the court may either give leave to amend such pleading, or may proceed to give judgment for the plaintiff or defendant, as the case may be or may make such other order, and upon such terms and conditions, as may seem just.”
Learned counsel for the plaintiff objected to the application for reasons which are not relevant to this appeal but he was overruled by the learned trial Judge. When he applied for a stay of the proceedings to enable him to appeal against the ruling, the trial Judge refused. After considering the arguments put forward in sup-port of the application, the learned trial judge, in a reserved judgment, dismissed the plaintiffs claim in its entirety after finding as follows:-
“Having conceded participation in a scuffle in a public place, the plaintiff was entitled to be apprehended and detained by the police for conduct likely to cause a breach of the peace. Police acting in circumstances as the above would be doing their duty and could not be sued unless it is shown that they exceeded their powers. See Woods v. Lyttleton AND Ors. (1909) 25 LTB page 665.
XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XX
For the above reasons I think that it would amount to a waste of Court’s time to allow the hearing of the substantive suit to proceed.
Again the statement of claim alleges at least four different stages of the alleged detention and it is certainly wrong to lump all the stages of the alleged detention into one action. There is clearly a misjoinder of action and under Order 4 Rule 7 of the High Court Rules of Eastern Nigeria the writ ought to be set aside. In the case of Amachree v. Newington 20 N.L.R. page 13 the writ was thought to be bad and struck out accordingly by reason of lumping together damages for separate detentions.
On the whole I am satisfied that not only is there no cause of action disclosed in this case but there is no reasonable prospect of the action succeeding.
See (1) Republic of Peru v. Peruvian Guano Coy. (1667) 36 Ch.P 489.
(2) A.G. of Eastern Nigeria v. A.G. Federation of Nigeria Vol. 1 1964 A.N.L.R. page 224.
In view of the above coupled with the fact that plaintiff/respondent declined further participation in the proceedings, I have no alternative but to dismiss the plaintiff’s claim against the defendants as speculative with costs assessed and fixed at N100 to the defendants/applicants.”
Being dissatisfied with the judgment, the plaintiff has now appealed. The two grounds of appeal argued together before us read –
“(1) The learned trial Judge erred in law by holding that a policeman cannot be sued for any tort he commits;
(2) The learned trial Judge erred in law by dismissing the substantive action without evidence being led by both parties.”
For the plaintiff/appellant, it was submitted that under the provisions of section 17 of the Criminal Procedure Act (Cap. 43 of the Laws of the Federation, referred to hereinafter as the Act), any person arrested for an offence such as an affray cannot be detained in a police station for more that 24 hours, and that if he cannot be brought before a magistrate or a Justice of the Peace before that time, he must be released on bail upon his entering into a recognisance, with or without sureties, to appear before a court. It was further submitted that since the plain-tiff/appellant was detained for about forty-eight hours, his continued detention in the Umuahia Police Station after the statutory period of twenty-four hours is, prima facie, unlawful. If the detention which is longer than twenty-four hours is prima facie unlawful, the statement of claim which set this out in clear terms discloses a cause of action and the learned trial Judge is, therefore, in error in holding, as he did, that it does not.
The question to be decided in this appeal, in our view, comes within a very narrow compass. Succinctly put, it is whether, on the pleadings, there may be a case of unlawful detention of the plaintiff/appellant by the defendants/respondents in the Umuahia Police Station at the material time. It is clear from the pleadings, and this much is admitted by the defendants/respondents, that the plaintiff/appellants and others were suspected by the defendant/respondents of having taken part in an affray and that, as a result, they were arrested (without any warrant) at about 9 a.m. on 5th October, 1972, and taken to the Umuahia Police Station where the plain-tiff/appellant was detained until about 9 a.m. on 7th October, 1972, that is, for about forty-eight hours.
Having regard to the state of the pleadings, what the learned trial Judge had to determine when he was considering whether the application made under Order 33 rule 19 of the High Court rules has any merit or not, is whether there is any legal justification for the detention for more than twenty-four hours. In this connection, we refer to the provisions of sections 17 and 18 of the Criminal Procedure Act which read:-
It is also provided in section 9 of the Act that any person who is arrested, whether with or without a warrant, shall be taken with all reasonable dispatch to a police station and while in custody shall be given reasonable facilities for taking steps to furnish bail.
It is common ground in the case in hand that the offence for which the plain-tiff/appellant was arrested is that of taking part in an affray. It is a minor offence, a misdemeanour and carries a maximum penalty of imprisonment for one year under section 83 of the Criminal Code. That being the case, the plaintiff/appellant, in our view, could not be detained in the Umuahia Police Station for more than twenty-four hours. As stated in unambiguous terms in section 17 of the Act, he (the officer in charge of the police station) –
“shall, If it will not be practicable to bring such a person before a magistrate or justice of the peace having jurisdiction with respect to the offence charged within twenty-four hours after he was taken into custody, inquire into his case, and, unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognizance with or without sureties ………………………………………………………………………………..
In other words, the persons arrested can only be “retained in custody’ If the of-fence is of a serious nature and even then, the person –
“shall be brought before a court or justice of the peace having jurisdiction with respect to the offence ………..as soon as practicable whether or not the police inquiries are completed:”
If the offence is not serious, the police offer concerned shall inquire into his case and shall discharge him within twenty-four hours upon his entering Into a recognizance with or without sureties.
By no stretch of the imagination could the scuffle or affray, as pleaded in the case in hand, be regarded as an offence “of a serious nature’ within the meaning of section 17 of the Act. Therefore, the plaintiff/appellant should not have been detained in the Umuahia Police Station for more than twenty-four hours. Having alleged that he was detained for about forty-eight hours, it seems to us, even If this is denied by the defendants, that he has a cause of action in a claim for unlawful detention with respect to the excess. Of course, whether he is able to prove his case or not at the trial is another matter.
As we have pointed out earlier, an application to strike out a statement of claim under Order 33 rule 19, can only be granted if, and only if, –
(a) the claim discloses no cause of action against a defendant/applicant; or (b) the claim is embarrassing, or scandalous or vexatious or an abuse of the process of the court.
In our view, none of these grounds is tenable in the case in hand. Furthermore, the contention that the action is misconceived or that there is a misjoinder of the cause of action could not be ventilated in an application made under Order 33 rule 19 of the High Court Rules which we have set out above. In any case, the claim of the plaintiff/appellant is clearly set out in paragraph 58 of his statement of claim which supercedes the claim in his writ of summons. It complains of only ONE detention and it reads:-
“58. The plaintiff therefore claims from the defendants jointly and severally the sum of £1,000,000 being special and general damages for unlawful detention of the plaintiff by the defendants from 9 a.m. of 5th October, 1972 to 9 a.m. of 7th October, 1972 in the Umuahia Police Station Charge Office cell within the jurisdiction of this honourable court.”
Most reluctantly, and for the reasons stated above, we have come to the conclusion that the learned trial Judge was in error in holding, rather prematurely if we may say so with respect, that –
“not only is there no cause of action disclosed in this case but that there is no reasonable prospect of the action succeeding.”
This appeal, therefore, succeeds and it is allowed. The judgment of the learned trial Judge dismissing the plaintiff/appellant’s claim on 28th September, 1973, including the order made by him as to costs, is set aside. Instead, we hereby order that the case be tried de novo before another judge of the High Court of Imo State, where the parties shall be at liberty to amend their pleadings if they are so advised. The plaintiff/appellant is awarded the costs of this appeal assessed at N460.00 against the defendants/respondents. The costs of the retrial shall abide the result.