Can a Whistleblower Be Held Responsible for a Police Investigation?

CASE TITLE:  OWIE v. ELAHO & ORS LPELR-83139(CA)

JUDGMENT DATE: 13TH FEBRUARY, 2026

JUSTICES: YUSUF ALHAJI BASHIR, J.C.A.

LATEEF ADEBAYO GANIYU, J.C.A.

ASMAU OJUOLAPE AKANBI, J.C.A.

DIVISION: BENIN

PRACTICE AREA:  CONSTITUTIONAL LAW

FACTS:

This appeal borders constitutional law.

This appeal is against the decision of the High Court of Lagos State (the trial Court) sitting in the Lagos Judicial Division delivered on 23/6/2021 by S. B. A. Candide-Johnson, J. In the decision, the trial Court entered judgment in favour of the respondent.

The respondent entered into an agreement with the Global Fund to fight AIDS, Tuberculosis (TB) and Malaria for Affordable Medicines Facility Malaria (AMFm) which is a financing mechanism of the Global Fund to expand access to affordable Artemisinin-based combination of therapies (ACTs) for malaria.

Forty-six First Line buyers in Nigeria signed undertaking to import subsidised ACTs with the 1st appellant being one of them. The Nigerian subsidiary of the respondent acted as the liaison between the 1st appellant and the respondent. The Global Fund was to pay a major proportion of the cost while first line buyers were to pay only part of the remainder.

The 1st appellant placed an order with the respondent for the supply of pharmaceutical products. The total worth of the products was US$3,000,000 out of which the Global Fund, under the arrangement, paid US$2,910,293.49. The balance, according to the respondent, of US$299,997.00 was due and payable by the appellants to the respondent in fulfilment of its obligation under the arrangement. The respondent only paid US$21,960.00 leaving a balance of US$278,037.00 still owed and due to the respondent from the appellants.

The respondent sued the appellants at the trial Court claiming the sum due, compound interest thereon, and costs of the action.

The appellants denied being indebted to the respondent any sum whatsoever. They further contended that the respondent is indebted to them in the sum of US$ 179,247.3 being money due as reimbursement as promised by the respondent. After taking the final written addresses of the parties, the trial Court found in favour of the respondent. Dissatisfied, the Appellants approached the Court of Appeal.

ISSUES FOR DETERMINATION:

The issues considered were:

1. Having regard to the Constitutional Right of the Appellant to lodge a complaint to the police and the statutory duty of the police to investigate the said complaint which complaint was investigated and found to be true, vide the police investigation report which culminated in the 1st Respondent being charged to Court, whether the 1st Respondent has proved all the ingredients of malicious prosecution.

2. Having regard to the serious contentious nature of the case of the 1st and 2nd Respondents and the conflicting nature of the affidavit evidence of the parties on record, whether the learned trial Judge was right when he failed to call for oral evidence to resolve the conflict arising from the conflicting affidavit evidence of the parties before him.

3. Having regard to the claim of the 1st Respondent which substantially arose after the1st Respondents has been charged to Court by the 5th Respondent and the finding of fact by the trial Court that the claims of the 1st and 2nd Respondents have some elements of civil torts which can only be brought under the relevant rules of Court such as writ of summons, whether the 1st and 2nd Respondents can properly bring their action through a fundamental rights enforcement proceeding which procedure is only limited to affidavit evidence.

4. Having regard to the constitutional right of the Appellant to report a criminal complaint to the police and the statutory duty imposed on the police to investigate same by virtue of Section 4 of the Police Act coupled with the police investigation report thereon, whether the Appellant can be held liable for the charging of the 1st Respondent to Court and the invitation of the 2nd Respondent by the police in course of their investigation.

COUNSEL SUBMISSIONS:

Learned counsel to the Appellant submitted that a Nigerian citizen is vested with the right to lodge a complaint with the police and the police has corresponding duty to decide what action to take on whatever complaint lodged before it by the citizen. On that, he refers this Court to the following cases: (a) GBAJOR V. OGUNREGUI (1961) ANLR-853; (b) FCMB V. ETTE (2008)22 WRN 1; (c) EZEADUKWA V. MADUKA (1997) 8 NWLR (PT.518)635. Learned Counsel submits that it is patently clear that the wife, son and relative of the Appellant’s wife were kidnapped at the residence of the Appellant who was outside the Country and that the 1^st Respondent was the one who broke the news to the Appellant who inquired from the 1st Respondent the source of his information, to which he replied that it was a lawyer who told him and upon enquiry from the lawyer by the Appellant, he was told by the said lawyer that he hadn’t seen the 1st Respondent for quite some time. Hence, the Appellant reported the matter to the S.S.S. who according to the Appellant, did not take concrete step on the matter. Hence, he later reported the matter to the Police command who swung into action by investigating the matter and effected the arrest of suspects who made statements incriminating the 1st Respondent as could be gleaned from page 71, paragraph 4.7-4-8 of the record, as well as the statements of the suspects that were attached to the police Report sent to the Commissioner of police for his directive and having perused same directed that the 1st Respondent be charged to Court along with the other suspects as graphically shown at pages 164-165 of the record.

​Furthermore, learned counsel submit that in the trial Court’s judgment in controversy, there is nowhere that the trial Court consider or make reference to the statements that indicted the 1st Respondent whereas, according to him, the law is trite that document attached to affidavit evidence ought to be considered along with the said affidavit evidence. On that, Learned Senior Counsel refers this Court to the cases of RT. HON. ETE MBORA v. AKIBA BASSEY EKPENYONG & ANOR. (2019) LPELR-48169(CA) and NATIONAL ELECTORAL COMMISSION & ORS. V. SUNDAY OGONDA WODI (1989) LPELR (CA). Besides, Learned Senior counsel submits that the mere fact the 1st Respondent was discharged does not amount to a successful claim of malicious prosecution against the Appellant, he relies on the case of ALHAJI HASSAN ALABURA V. ALHAJI SALEH DANLADI MAINA & ORS. (2015) LPELR- 41653 (CA). In addition, counsel submits that the record of proceedings where the 1st and 2nd Respondents testified was never attached as Exhibit by the 1st and 2nd Respondents on whose shoulders the burden of prove lie. See EJIKEME V. NWOSU (2001) LPELR-5494(CA), Per OBADINA, JCA. Learned senior counsel submits that no evidence was placed before the trial Court that the Appellant influenced or instigated the police, that’s the 3rd -5th Respondents to carry out their statutory duty, performance of which cannot be made a subject matter of action for malicious prosecution. See ADEBOWALE V. ROBINSON (2018) LPELR-44424(CA), ONAH V. OKENWA (2010)7 NWLR (PT. 1194) PG. 512 @ 517 RATIO 6; OGUOMA & ORS. V. C.O.P, IMO STATE & ORS (2018) LPELR-46252; BASSEY V. AFIA (2010) ALL FWLR (PT. 531) 1477 @ 1500-1501, PARAHS. H-A, Per OWOADE, JCA.

Furthermore, learned silk submits that the report of the 1st Respondent to the police disclosed prima facie case against him as through investigation conducted by the police, the police arrested the person that bought the gold stolen from the Appellant’s house.

Learned counsel to the 1st and 2nd Respondents submits that in view of the fact that the 1st and 2nd Respondents have been exonerated of the allegation of their involvement in the armed robbery and kidnapping of the Appellant’s wife and son lodged with the State Security Service, the Appellant have no justification for involving the 3rd -5th Respondents in the arrest and prosecution of the 1st and 2nd Respondents in respect of the complaint earlier lodged with the S.S.S. which had been resolved in favour of the 1st and 2nd Respondents.

​Again, learned Counsel submits that the Appellant who set machinery of law in motion against the 1st and 2nd Respondents bear the burden of proving same and that upon failure by the Appellant to prove same both himself and the police will be liable for violation of their fundamental Rights. See JIM-JAJA V. C.O.P. (2011) 2 NWLR (PT. 1231) 375 @ Pages 392-393, paras. G-A, Ratio 5. Furthermore, counsel submits that the arrest and detention of the 1st and 2nd Respondents was not justifiably carried out. According to the learned counsel, the 1st and 2nd Respondents having been exonerated of allegation levelled against them by the Appellant, their subsequent arrest and detention by the police at the instance of the Appellant was done maliciously. Hence, counsel submits that the complaint of the Appellant to the police against the 1st and 2nd Respondents lacks justification.

On failure of the Appellant to deny the 1st Respondent averments in his counter affidavit that he has been exonerated from allegation levelled against him by the State Security Service which implies that the Appellant has admitted the 1st Respondent’s averments. See OBUMSELI V. UWAKWE (2019) 11 NWLR (PT.1683) 205 @ 224, Para. B. Therefore, counsel submits that the trial Court properly accepted the fact of exoneration of the 1st Respondent. On alleged malicious prosecution of the 1st Respondent, learned counsel submits that the consequence of unjustified arrest and detention of the 1st Respondent is the trumped up charge of kidnapping and armed robbery that he was charged and prosecuted for by the Appellant who facilitated the procurement of Fiat of the 5th Respondent to arraign him before the Court and that this forms the basis of Relief 7 of the 1st Respondent’s reliefs sought before the trial Court vide his originating Motion which is contained at page 1-3 of the Record of Appeal.

On the effect of a successful plea of No Case Submission, learned counsel submits that contrary to the learned counsel to the Appellant’s submission that the effect of a successful “No Case Submission” is a mere discharge, learned counsel to the 1st Respondent submits that it is a discharge on the merits. See UBANATU V. C.O.P. (2000) 2 NWLR (PT. 643)115 @ 137, Paras. A-B Ratio 11.

​On propriety of the trial Court’s finding that the Appellant is liable for the violation of the Fundamental Rights of the 1st and 2nd Respondents, on this, learned counsel to the 1st Respondent refers this Court to the findings of the trial Court and submits that the case of violation of the 1st Respondent’s fundamental right was made out by him. Hence, the trial Court’s judgment in this regard and that the cases of GBAJORU V. OGUNBUREGUI; F.C.M.B V. ETTE; EZEADUKWA V. MADUKA; OGBONNA V. EGBULEFU & ORS; ONAH V. OKENWA; NWADINOBI V. BOTU; IGBOSONU V. OHAYAGHA cited by the Appellant’s counsel are distinguishable from the facts of the present appeal.

On conclusiveness of the judgment of Court acquitting the 1st Respondent of an issue. Learned counsel refers this Court to pages 1-3, 5, 6, 22, 23 and 26 of the Appellant’s Brief where it was argued that the Respondent was guilty of the charge of kidnapping and for that reason his fundamental rights were not violated as to entitle him to damages. However, learned counsel to the 1st Respondent submitted that once a Court hears a matter and pronounces judgment, the decision of the Court remains binding. See The HONDA PLACE LTD. V. GLOBE MOTORS LTD. (2005)14 NWLR (PT. 945)273 @ Pages 296, paras. E-F;305-306, Paras. H-C, Ratios 1 and 2. Therefore, learned counsel submits that once the 1st Respondent has been exonerated, it is no longer ideal for the Appellant’s counsel to make reference to his extra judicial statement as doing so is aiming at tarnishing his image.

DECISION/HELD:

In the final analysis, the appeal was allowed.

RATIO:

POLICE – POLICE INVESTIGATION: Right of a citizen to report cases of commission of crime to the Police and duty of Police to investigate such; whether a complainant/informant can be held responsible for the result of a Police investigation

“needless to say that by virtue of the provision of Section 35(1) (C) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) quoted hereunder, every citizen of this Country has the right to lodge complain to the police or any security agency upon reasonable ground(s), whenever his right is being threatened or is likely to be threatened and whenever such complaint is lodged, the police in conformity with its statutory duty to prevent commission of crime, investigate same and arrest suspect(s) reasonably believed to have committed crime is obligated to investigate the complaint, that may be so lodged. The said provision of Section 35(1) (C) is hereunder reproduced as follows:

“35. (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-

(c) 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”

See LIVING MITIN v. THE CP BAYELSA STATE COMMAND, YENGOA (2022) LPELR-59029(SC)Per KEKERE-EKUN, JSC (now CJN) held thus:

“I deem it appropriate to commence to determination of these issues with a consideration of the statutory and Constitutional provisions relevant to the subject matter, to wit: Sections 214, 34, 35 and 41 of the 1999 Constitution, as amended and Section 4 of the Police Act Cap P19 LFN 2004. Section 214(1) of the 1999 Constitution, as amended (hereinafter referred to as the Constitution) provides: “214(1) There shall be a Police Force for Nigeria, which shall be called the Nigeria Police Force and subject to the provisions of this section, no other police force shall be established for the Federation or any part thereof.” Section 4 of the Police Act sets out the general duties of the Police as follows: “4. The Police shall be employed for the prevention and detection of crime, 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 …” In Fawehinmi Vs I.G.P. (2002) LPELR-1258 (SC) @ 20 D; (2002) 5 SC (Pt.1) 63, this Court referred to the definition of Police power as contained in Black’s Law Dictionary 5th Edition at page 1041 thus: “Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals and general welfare within Constitutional limits and as an essential attribute of government.” The duties and powers of the Police are not in doubt. The issue that often raises questions is the manner in which the duties are performed or the powers exercised. Sections 35(1) (c) and 41 of the Constitution provide: “35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – (c) 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. 35(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person, and in this subsection, “the appropriate authority or person means an authority or person specified by law.” 41(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom. (2) Nothing in Subsection (1) of this Section shall invalidate any law that is reasonably justifiable in a democratic society – (a) imposing restrictions or the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria. (b) … (i) … (ii) … Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.” The relevant constitutional provision for the purpose of the appellant’s application before the trial Court is Section 35(1) of the Constitution and not Section 41. Thereof, Section 41 of the Constitution relates to the deportation of a citizen from Nigeria or the prevention of a citizen of Nigeria from leaving Nigeria or residing in any part of Nigeria. In any event, it is settled law that the right to personal liberty guaranteed in Section 35 of the Constitution and the rights guaranteed in Section 37 (right to private and family – life), 38 (right to freedom of thought), 39 (right to freedom of expression and the press), 40 (right to peaceful assembly and association and 41(right to freedom of movement) are not absolute. By Section 45 of the Constitution, the rights guaranteed under Sections 37-41 can be derogated from or limited by an Act of the National Assembly. See A.G. Anambra State Vs Chief Chris Uba & Ors (2005) 15 NWLR (Pt.947) 44. Conversely, the Police is not given carte blanche to exercise its powers willy-nilly without due regard to these fundamental rights. The onus is on the applicant to establish by credible evidence that his fundamental rights have been violated. In the case of Jim-Jaja Vs C.O.P. (supra), heavily relied upon by the appellant, the issue before this Court was whether the Court of Appeal, having found and held that the appellant’s fundamental rights were violated, was right to have refused to award damages on the ground that none was claimed. It was held that by virtue of Section 35(6) of the Constitution, any person unlawfully arrested or detained is entitled to compensation and a public apology from the appropriate authority or person specified by law, whether specifically claimed or not. Emphasis was placed on the fact that the applicant must first satisfy the Court that he was unlawfully arrested/detained before his entitlement to compensation and public apology would arise. The authority of F.B.N. Vs A.G. Federation (supra), also relied upon by learned counsel, follows the decision in Jim-Jaja’s case to the extent that the applicant bears the burden of proof of the violation of his rights. Having regard to the facts and circumstances of the instant case, the applicant had the initial burden of establishing his arrest and/or detention. The burden would then shift to the respondent to show that the said arrest and detention were lawful. It was held in Fajemirokun Vs Commercial Bank Nig. Ltd & Anor (2009) LPELR – 1231 (SC) @ 4 C – E: “Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their 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 it is done mala fide…” Per KEKERE-EKUN, JSC (Pp. 16-21, para. D-D). Also, in PROJECT ARCADE LTD.&; ANOR V. I.G.P. (2022) LPELR-59127 (CA) where it was held that:

“The law is well defined on this, that every citizen has a right to make or lodge honest complaint with the Police or any law enforcement agency against any wrongdoing or crime, committed by the accused/suspect and the person lodging the complaint is not liable for the wrong committed by the police (law enforcement agency) in the course of handling the complaint, while exercising their (Police) Independent decision/judgment in the handling of the complaint. See OSIL Vs Balogun (2012) LPELR-9218 CA, (2013) ALL FWLR (Pt. 677) 633; (2012) 38 WRW 143 which held: any complaints made or information given to those interested in investigating a matter (the police) will, in the interest of the society be privileged, once there is a reasonable belief that a crime has been committed. In the case of Fajemirokun vs Commercial Bank (Credia Lynnnais) Nig Ltd (2009) 5 NWLR (pt.1135) 558 at 600, it was held: generally, it is the duty of citizens of the country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizen cannot be held culpable for doing their duties, unless it is shown that it is done mala fide in the case of Duru Vs Nwagwu (2006) 5 SCNJ 394 at 402, the Supreme Court held: it is settled law, that where an individual has lodged the facts of his complaint to the Police, as in this case, by way of petition, and the Police have thereupon, on their own proceeded to carry out arrest and detention, then the act of imprisonment is that of the Police. See also PGSS Ikachi vs Igbudu (2005) 12 NWLR (2005) 12 NWLR (Pt.940) 543 at 574. Of course, there is a proviso to the above principle. Where the complaint was lodged falsely against the victim or the complainant procured the Police to harass and attack the victim, for ulterior motives, or over a purely civil matter, with the intent of using the police or law enforcement agency to settle private scores, the complainant cannot wash off his hands from the evil visited on the victim of the malicious complaints. The authorities on this are replete, see the case of OSIL Vs Balogun (supra), Ogbonna Vs Ogbonna (2014) 23 WRN 48; (2014) LPELR-22308 (CA), Agbakoba Vs SSS (1994) 6 NWLR (Pt.351) 475, Udeagha Vs Nwogwugwu (2013) LPELR-21819 CA.” Per BAYERO, JCA (Pp. 26-28, para. B-B).” Per GANIYU, J.C.A.

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