IKONNE V. C.O.P. IMO STATE & ANOR.

• Pages: 1130-1154

1130



NIGERIAN SUPREME COURT CASES

[1986] 2 N.S.C.C.

IKONNE V. C.O.P. IMO STATE & ANOR.

5

DICKSON DINNE IKONNE

V

1.

C.O.P. IMO STATE

2.

HON. JUSTICE NNANNA

NWA-WACHUKWU

SUPREME COURT OF NIGERIA

IRIKEFE,



C.J.N.

BELLO,



J.S.C.

ESO,



J.S.C.

ANIAGOLU,



J.S.C.

UWAIS,



J.S.C.

COKER,



J.S.C.

KARI BI -WHYTE,



J.S.C.

11th July, 1986

APPELLANT

RESPONDENTS

SUIT NO. SC 253/1986

10

15

20

Criminal Law and Procedure - Arrest - Arrest and prosecution of offenders -

Powers of police - Right of accused to know cause of arrest - Whether police



25

can be protected under section 101 of the Criminal Procedure Law - Warrant

of Arrest - Section 21 Criminal Procedure Law Eastern Nigeria - Warrant

based on complaint of 3rd party - Where no pbwer of arrest without warrant

- Need for statement to be on oath.

30

Constitutional Law - Protection of rights of citizens - Constitutional duty of judges

to protect citizens

Tort - Trespass to person - Improper arrest - Liability of tortfeasor.

35

ISSUES:

1.

Whether in issuing a warrant of arrest against a person under section 23 of the

Criminal Procedure Law of Eastern Nigeria 1963, a Judge is bound to give valid

legal reasons for so doing.

2.

Whether "a person interested" (as to right of appeal) within the intendment of



40

section 222(a) of the 1979 Constitution, includes a person in whom there is a

likelihood of bias or malice.

3.

Whether an improper arrest of a person can amount to the tort of trespass

against that person

FACTS:



45

The respondent, a High Court Judge, was appointed as Chairman of a Com-

mission of Inquiry into contracts awarded on behalf of Imo State Government.

While conducting the said inquiry, the respondent received a letter alerting him of

imminent danger of a charm being planted in the hall the venue of the Commission

of Inquiry, in order to get rid of the respondent and dissolve the commission. The



50

appellant was alleged to have been the one preparing to do the deed. The re-

spondent on receipt of the letter, without investigation of its origins or contents is-

sued a warrant of arrest for the apprehension of the appellant. The warrant

contained some ficticious allegations by the judge including a statement that the

IKONNE V. C.O.P. IMO STATE & ANOR.



1111

appellant had been summoned to appear in the High Court in respect of a crimi-

nal matter and had failed to do so, and that an oath had been made that the ap-

pellant was duly served with the summons but failed to appear and the warrant

was in respect of that failure. The warrant was never executed on the appellant,

5





but he had nevertheless become apprehensive and sensed danger from the acti-

vities of the respondent; he thereupon applied under Order 1 Rule 2 of the Fun-

damental Rights (Enforcement Procedure) Rules 1979 for leave to apply for an

order setting aside the warrant of arrest or preventing the execution of the warrant.

This was supported by an affidavit disclosing various disputes between the appel-

10





lant and respondent which would lead to a likelihood of bias. The learned trial

judge heard the motion

ex-parte

and following Order 2 Rule 5 of the Fundamen-

tal Rules ordered the motion papers to be served on the respondent. These were

served but the respondent did not reply in any manner. The trial judge granted the

application and set aside the warrant of arrest.

15





The respondent applied to the High Court for leave to appeal against the rul-

ing. The High Court dismissed the application and in the process castigated the

respondent for having acted

mala fide

and in a manner that amounted to an abuse

of legal process. The respondent then applied to the Court of Appeal for exten-

sion of time within which to apply for leave to appeal against the order. The appli-

20





cation was granted by the Court of Appeal. The Appellant thus appealed to the

Supreme Court, contending that the respondent did show that he was a party hav-

ing an interest in the matter as to a right of appeal under section 222(a) of the 1979

Constitution and the Court of Appeal erred in granting the relief sought.

HELD:

25





1. The law assumes that a judge, who is looked upon as the respository of justice

will act properly in the protection of the rights of the citizens and not oppress

or harass them. Thus where it is found, in the absence of valid legal reasons,

that a judge issued a warrant of arrest upon fictitious grounds such issue will

amount to an abuse of legal process - an abuse of judicial authority and will

30



consequently be set aside.

2.

The respondent had power to issue a warrant of arrest as a Judge of a High

Court and the circumstances of the exercise of such power are contained in

sections 21 and 23 of the Criminal Procedure Law, Laws of Eastern Nigeria

1963 which applies to Imo State. Under 21 of the Law, where there is power

35





under any written law to arrest a person without warrant, a warrant for his arrest

may be issued. Barring this, ordinarily no warrant of arrest should be issued

in the first instance in respect of any complaint or statement (as in this case)

unless such complaint or statement

be on oath

either by the complainant or a

material witness. This is the requirement of section 23 of the law. The learned

40





trial judge had found as a fact that the letter complained of was neither verified

as to its source of origin nor were its contents investigated by the police before

the respondent issued his warrant of arrest and so section 23 was not complied

with.

3.

The "interest" envisaged under section 222(a) of the 1979 Constitution is a legally

45





recognisable interest. The spirit of the provisions of this section cannot

accomodate the "interest" of a person where such "interest" is found to be

malicious in nature. The malice destroys the legality of such "interest" which

interest, upon public policy, cannot be recognised by the courts. It follows that

a judge who issues a warrant of arrest

mala fide

will not be recognised as a

50





person interested by the Courts. Thus the Conduct of the respondent has

barred any claim he might have had to appeal as a person interested under

s.222(a) of the Constitution.

4.