GALADIMA v. COP (PLATEAU STATE COMMAND) & ORS
(2020)LCN/14196(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, May 14, 2020
CA/J/349/18
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
EPHRAIM KAPARA GALADIMA APPELANT(S)
And
- COMMISSIONER OF POLICE (PLATEAU STATE COMMAND) 2. A.M. AUWAL (D.C.O. ‘A’DIVISION, JOS) 3. FIDELIS ODEY (D.P.O. ‘A’ POLICE DIVISION, JOS) 4.AUSTIN OGAH (BRANCH MANAGER, FCMB, JOS) 5. FIRST CITY MONUMENT BANK PLC 6. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT(S)
RATIO
THE PRINCIPLE THAT EVERY PERSON ARRESTED SHALL BE INFORMED IN WRITING WITHIN TWENTY-FOUR HOURS AND IN THE LANGUAGE HE UNDERSTANDS
“Every person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds of his arrest.” (Italics mine).
This provision not only imposes on the arresting authorities a duty to inform every person arrested of the reason for his arrest, it also requires that the information must be ‘in writing’ and made within twenty four (24) hours of such arrest. PER UGO, J.C.A.
FUNDAMENTAL HUMAN RIGHT- RIGHT TO PERSONAL LIBERTY
The right to personal liberty, it is said, is a commodity of inherently high value, accordingly a complaint that it has been breached should not be handled with levity: See First Bank of Nigeria Plc v. Attorney General of the Federation (2018) 7 NWLR (PT 1617) 121 (Augie, J.S.C.). Whenever such a complaint is made, the focus of the Court such complaint is ‘intense and intensive’ and a solution which projects the essence of the constitutional guarantee should be adopted: see F.R.N. v. Ifegwu (2003) 15 NWLR (PT. 842) 113 at 184 (S.C.), Obinna Obiegue v. A.G.F. (2014) 5 NWLR (PT 1399) 120 (C.A.). That is just as a proceeding for enforcement of fundamental rights is sui generis and the laws guiding it also stand above the ordinary laws of the land: see Federal University of Technology Minna v. Olutayo (2018) 7 NWLR (PT. 1617) 176 @ p. 196, 198 (SC). PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Plateau State High Court dismissing the application of the appellant against the Respondents whom he alleged breached his fundamental rights to dignity of his person as a human being, fair hearing and liberty.
Appellant, an account holder with the 5th respondent who described himself as an Aircraft Pilot by training and profession but now a businessman doing Online trading in Bitcoin, filed his application for enforcement of his fundamental rights at the High Court of Plateau State on 23rd October, 2017 claiming against respondents:
1. An order declaring his arrest, handcuffing, assault, torture, humiliation, embarrassment, insult, harassment, and detention of the applicant since 16th October, 2017 till date which is a period of 5 days and still running without just cause by the Respondent as illegal, unlawful and unconstitutional.
2. An order declaring the refusal of the respondent to grant the applicant bail as illegal unlawful and unconstitutional.
3. An order declaring the refusal of the 1st to 3rd Respondent to inform the applicant
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of his offence for which he was detained as illegal, unlawful and unconstitutional.
4. An order declaring the impoundment of his grey BMW Car with registration No. MKA 118 DA by the respondents as illegal, unlawful and violation of the applicant’s right to own movable property.
5. An order releasing him from respondent’s custody.
6. An order releasing his grey BMW Car with registration No. MKA 118 DA.
7. An order of perpetual injunction restraining the respondent either by themselves, servants, privies, or officers from arresting, arrest, handcuffing, assaulting, torturing, humiliating, harassing, threatening and further threatening or detaining him.
8. An order against Respondents to pay him the sum of 10,000,000.00 (Ten Million Naira) jointly and severally as compensation for unlawful arrest, handcuffing, assault, torture, detention, embarrassment, pains and inconvenience caused to him by the respondent and for unlawful seizure and detention of the grey BMW Car with registration No. MKA 118 DA with other properties therein, frustration, denial of usage of the said Car and other properties therein and subjecting the
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applicant to psychological trauma.
9. Any such further Order(s) as the Court may deem fit to make.
He averred in his application that upon discovering that his Account with 5th Respondent (FCMB) had been frozen, he went to its Jos Branch along British American Junction on 16th October, 2017 to find out why it was frozen. On reaching there, he was directed to 5th Respondent’s staff, one Christiana Agada, who, upon his meeting her, told him she was coming back to meet him only for her to return with a policeman to whom she pointed out him out, whereupon the policeman immediately approached him and handcuffed him in the full glare of everybody and proceeded to parade him in broad daylight along British American Junction. When he sought to know from the Policeman the reason for his arrest, the policeman, he claimed, rather slapped and kicked him in that public place, forced him into a tricycle and took him straight to ‘A’ Division of the Plateau State Police Command where he was detained by officers and men of 1st to 3rd respondent with 2nd respondent directly in charge of his detention. It was after his arrest and detention he said 3rd
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respondent went to 5th Respondent’s premises and drove his BMW car back to his ‘A’ Division Police Station.
Since his arrest on 16/10/2017 and up to the 23rd of October, 2017 when he filed his application while still in detention at ‘A’ Division of the Plateau State Command, he stated, he was not informed of the reason for his arrest nor arraigned before any Court.
While still in detention in the said ‘A’ Division of 1st to 3rd Respondents, he said his lawyer, one Weng Dalyop Esq., on his behalf applied in writing for his bail through Exhibit ‘A’ dated 18/10/2017 attached to his application but 1st to 3rd respondents turned it down.
He swore he is a reputable and respected individual and suffered psychological trauma and untold hardship in the manner he was treated by respondents.
All respondents opposed his application with counter affidavits and written legal submissions which appellant also responded to by way of further affidavits and addresses.
In their joint counter-affidavit, his bank, FCMB, and its Branch Manager (4th and 5th Respondents) admitted pointing appellant out
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to the policeman that arrested him but maintained that they only acted on the written directions of E.F.C.C. contained in a letter dated 5/10/2017 (Exhibit FCMB1) that they flag his account, arrest him and inform it immediately. That, they said, was all they did and did not direct the policeman on how to arrest appellant and neither did they themselves arrest or detain him. They went on to add that when EFCC later wrote back to them exonerating him and directed that they remove the restrictions on his account, they promptly complied. They annexed the said two letters of EFCC dated 5th October, 2017 and 6th November, 2017 respectively to their application as Exhibits FCMB 1 and FCMB 2 and denied breach of his fundamental rights as alleged.
On its part, EFCC, while not denying instructing 4th and 5th Respondents, stated that in its 15-paragraphed counter-affidavit that its actions were based on a petition (Exhibit EFCC 1) it received from one Edoga Chinonso alleging economic fraud against appellant and two others. It went on to state that when appellant was finally brought to its Port-Harcourt office from Jos, it granted him administrative bail on 25/10/2017
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– in support of which it annexed Exhibit EFCC 2 attached to its application. It then went to argue, among others, in its written submission, that it was appellant’s failure to meet the bail conditions set by it that accounted for his continued detention. They said in arresting and detaining him they were only carrying out their statutory duties under the Economic and other Financial Crimes Commission Act and Money Laundering Act and so cannot be accused of breach of his right nor be restrained by way of injunction.
First to third Respondents (the three Policemen) in their 15-paragraphed counter affidavit claimed to have arrested and detained appellant ‘solely’ on the strength of what they described as a ‘Court order’ placed on his account with FCMB by EFCC due to alleged fraud committed by him. They further deposed thus, among others:
(a) That appellant upon his arrest was ‘taken to ‘A’ Division Police Station Headquarters, Jos, where he was detained and or safe-kept awaiting arrival of officer from the 6th Respondent, EFCC.” (Para 6(ii);
(b) That applicant was ‘lawfully arrested and
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detained as (sic) a valid of Court. A copy of the order is hereby annexed and marked as Exhibit A2.’ (Paragraph 8);
(c) That appellant was ‘neither tortured or beaten and was duly informed as to the reason for his arrest and detention; was “arrested and detained unlawfully (sic: lawfully) by the 1st to 3rd respondents’ and that ‘it is not in every circumstance that applicant will be charged to Court within either 24hrs and 48hrs as the case may be, respectively, as applicant was only brought to the custody of the 3rd Respondents for safe-keeping by EFCC, Port-Harcourt.”
(9(a) that fundamental human rights of citizens are not absolute, inclusive of applicant;
(b) that Court of law, (they) can curtail any citizens fundamental rights;
(c) upon reasonable suspicion of commission of crime;
(d) compensation, public apology or damage can only be awarded upon proven infringement of applicant’s rights;
(e) in the instant action, none of such incidence existed;
(f) it is not in all instances that an applicant (sic: a person arrested) will be informed in writing of the reason for his/her
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arrest by the police or any law enforcement agency.
11. That I know as a fact that applicant’s application is brought malafide in order to scuffle (sic) his investigation and prosecution for alleged criminal offences of criminal conspiracy and obtaining money under false pretence which the applicant is being investigated by EFCC Rivers State Zonal Office.
12. That the Respondent (they) has since handed over applicant to the 6th Respondent for investigation. A copy of the transfer letter evidencing the handing over of the applicant to EFCC Officers from Rivers State Zonal Office is hereby annexed as Exhibit A3.
13. That the 1st to 3rd Respondents did not infringe on the fundamental rights of the applicant at all as they only acted within the ambit of the law.
14. That I know as a fact that the 1st Respondent’s efforts to combat crime and immediately in the State in particular and the nation in general will be jeopardized if this application is granted.
It is worth pointing out that Exhibit A2 attached to their counter-affidavit which they claimed is an Order of Court is not by any means a Court Order but just the same
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written directive of 05/10/2017 (Exhibit FCMB 1 attached to FCMB’s counter-affidavit) from 6th Respondent (EFCC) to FCMB directing the Regional Manager of FCMB, Trans Amadi Branch, Port Harcourt, to flag appellant’s account and arrest him. That letter, I must further point out, was not even copied to 1st to 3rd respondents, the police.
Appellant in three Further Affidavits to these counter-affidavits of respondents, particularly his further-affidavit sworn by one Ritmus Titus Obadiah in response to the counter affidavit of EFCC (6th Respondent), further revealed that officers of EFCC later came to Jos, Plateau State and took him first to Abuja and then to their Zonal office at Port-Harcourt, River State, and continued to detain him there. He confirmed EFCC’s assertion that at Port-Harcourt, EFCC granted him administrative bail but adds that that only happened after he had spent nine days in detention from 16th to 25th October, 2017.
At the end, appellant and EFCC were in agreement that he, appellant, was finally released from EFCC’s custody in Port-Harcourt on 2nd November, 2017 (not 25/102017) without any arraignment. In
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fact, appellant was exonerated by EFCC of the allegation that led to his ordeal, as shown in Exhibit FCMB2 dated 2nd November, 2017 annexed to 4th and 5th Respondent’s counter affidavit.
The Trial Court, in its Ruling of 9/05/2018, relied on Section 38 (1) and (2) of the Economic and Financial Crimes Commission (Establishment) Act 2004 and Section 21 of the Money Laundering (Prohibition) Act to hold, first, that EFCC by reason of the petition it received against appellant, lawfully issued Exhibit FCMB1 to FCMB and its Branch Manager; that since those two are themselves not empowered by law to arrest, lawfully invited the Police (1st to 3rd respondents) to arrest appellant.
It went on to hold not proved appellant’s contentions that he was even assaulted by 1st to 3rd respondents in the course of his arrest. It reasoned that since those allegations were denied by respondents, the burden of their proof was on appellant but he failed to discharge it. Relying on appellant’s deposition in 3(c) of appellant’s Further Affidavit to EFCC’s counter affidavit that “That Paragraph 9 is entirely false as the 1st to 5th
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respondents effected his arrest on the 16th October in Jos on the directive of 6th Respondent (EFCC) the letter written to the 5th Respondent by 6th Respondent on 6th October paragraph iii directed that the applicant be arrested. The letter is the 4th and 5th Respondent’s annexure FCMB 1”, it also held not proved his allegation that he was not informed ‘in writing’ by respondents of the reason for his arrest as required by Section 35 (3) of the 1999 Constitution of this Country.
On the strength of the foregoing and without uttering a word on appellant’s equally serious complaint that he was detained by respondents without arraignment and bail from 16/10/2017 till 25/10/2017, the Trial Court dismissed his entire application.
Appellant by this appeal, questions the correctness of that decision on five grounds and distilled from them the following three issues:
1. Whether by the evidence placed before the Trial Court showing that he was detained for more than five days, it was correct in dismissing his application.
2. Whether he proved that he was not informed of the allegation against him within the time provided
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by law.
3. Whether the Trial Court was right when it relied on the provisions of Section 38(1) of the Economic and other Financial Crimes Commission (Establishment) Act 2004 and Section 21 of the Money Laundering (Prohibition) Act to justify the violation of his fundamental right.
Only fourth and fifth respondents (FCMB and its Branch Manager) responded to the appeal, so the appeal, with the leave of this Court, was heard on only appellant’s brief of argument and the joint brief of argument of 4th and 5th respondents.
In their brief of argument, 4th and 5th respondents distilled a single issue relating to their liability thus: Whether the learned trial judge was not right to have held that the 4th and 5th respondents did not violate the fundamental rights of the appellant for carrying out the orders of a constituted authority.
Appellant anchored his issue 1 on the provisions of Section 35 of the Constitution guaranteeing every person right to personal liberty. He took the Court through the relevant provisions of that section starting from Section 35(3) stating that “Every person who is arrested or detained shall be informed
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within twenty-four hours (and in a language that he understands) of the facts and grounds of his arrest”, and then Section 35(4) stating that “Every person arrested or detained in accordance with Section 35 of the Constitution shall be brought before a Court of law within a reasonable time, and finally Section 35(5) defining ‘reasonable time’ as meaning in the case of arrest and detention where there are Courts of competent jurisdiction within a radius of forty kilometers, a period of one day. He argued that all these provisions were breached by the respondents in his arrest and detention as it was, according to him, proved by the evidence before the trial Court that he was arrested and detained by respondents in Jos on 16th October, 2017 until the 25th of October, 2017 when he was granted bail, which is a period of nine days, well above the one day prescribed by the Constitution. Even when his lawyer formally applied for bail as shown by Exhibit A attached to his application, it was denied turned down by 1st to 3rd respondents, he added. These facts, he submitted, where not denied by the respondents, especially the police. He pressed in
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argument the decision of this Court inAssistant Inspector General of Police v. Ezeanya (2016) ALL FWLR (PT. 830) 1371 – 1372 to the effect that the provisions ofSection 35(4) and (5) of the Constitution that every person arrested or detained in accordance with Section 35(1)(c) of the 1999 Constitution of this country shall be brought before a Court of law within a reasonable time as further defined by subsection 5 of that section cannot be expanded, and not even by the fact that there is an ongoing investigation.
He submitted in his issue 2 that the Lower Court was also wrong in rejecting his contention that he was denied his right to be informed in writing of the reason for his arrest as provided by Section 35(3) of the 1999 Constitution of this Country. He faulted the trial judge’s reliance on paragraph 3(c) of his Response to 6th Respondent’s counter affidavit and referred us to Paragraph 9(f) of the counter affidavit of the 1st to 3rd respondents who detained him. He pointed out that what 1st to 3rd respondents simply said there was that it is not in all situations that a person arrested and detained is informed in writing of the
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reason for his arrest. That, argument itself, he submitted, confirms his contention that he was not informed in writing of the reason for his arrest by the Respondents. Since that was admitted and it is settled law that what is admitted needs no proof, it is conclusive against the Respondents contrary to the position of the trial judge. At any rate, he further argued, it was incumbent on the respondents to produce the document by which he was informed of the reason for his arrest; that the fact that no such document was produced by them means it did not exist, and if it existed, its contents would be against them if produced hence it was not produced. He pointed strongly to the fact that his lawyers in his bail application just two days after his arrest made the point that he was yet to be informed of the reason for his arrest yet respondents did not refute it. He urged us to resolve this issue too in his favour.
On issue 3, he faulted the trial Court’s reliance on Sections 21 of the Money Laundering (Prohibition) Act and 38(1) of the Economic and Financial Crimes Commission (Establishment) Act 2004 in justifying his arrest and detention. He
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submitted that the provisions of Section 38(1) of the Economic and other Financial Crimes Commission (Establishment) Act 2004 providing that “The commission shall seek and receive information from any person, authority, corporation or company without let or hindrance in respect of offences it is empowered to enforce under the Act” does not go so far as to empower it to give instructions to such persons, authority, corporation or company to arrest as it did in his case; that all it empowers EFCC is to seek and obtain information and no more. He again cited dictum from Assistant Inspector General of Police v. Ezeanya (2016) ALL FWLR (PT 830) 1371 to submit that arrest and detention pending investigation is even illegal; that in as much as 1st to 5th Respondents acted on an order that was illegal, they were also all liable for violation of his fundamental rights. He pointed out particularly that at the end of the day, he was even exonerated by EFCC and his account unfrozen. In those circumstances and having regards to Section 35(6) of the 1999 Constitution stating that a person unlawfully arrested and detained shall be entitled to compensation and
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public apology from the appropriate authority or persons for violation of right to personal liberty, he urged us to sustain his argument here too, allow his appeal and make the necessary orders as sought in his claims before the Lower Court.
Fourth and fifth Respondents denied liability for his arrest and detention. They claimed in their brief of argument that they only carried out the directives of EFCC by flagging his account and simply pointed him out to the police who arrested him. They cited Sections 38 (1) and (2) of the Economic and Financial Crimes Commission (Establishment) Act 2004 and 21 of the Money Laundering (Prohibition) Act to submit that they could only defy the directives of EFCC at the risk of serious punishment to themselves hence they flagged his account and invited the police who themselves arrested him. The fact that they did not themselves arrest or detain him, they submitted, was also conceded by him in his brief of argument. They claimed the lack the power to pick and choose which portion of EFCC’s order to obey and which to disobey. At any rate, they further argued, the Trial Court also made a finding that they did not
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arrest or detain appellant and he did not appeal that finding which means he agrees with it. On that note, they urged us to uphold it and dismiss the appeal as it relates to them.
Appellant in reply on points of law to those submissions denied making the concession referred to by 4th and 5th respondents and submitted that Grounds 1, 2, 3 and 4 of his Notice and Ground of Appeal questioned the said finding of the Lower Court referred to by 4th and 5th respondents. He went on to add even that fourth and fifth respondents’ act of asking him to wait in their banking hall without attending to him also amounts to arresting and detaining him.
As pointed out earlier, 1st to 3rd Respondents (the Policemen) and 6th Respondent (EFCC) elected not to respond to the appeal even though the records reveal that they were served all necessary processes.
Resolution of issue
I wish to tackle the three issues of appellant in reverse order by starting from issue 3.
Issue 3: Whether the Trial Court was right when it relied on the provisions of Section 38(1) of the Economic and other Financial Crimes Commission (Establishment) Act 2004 and Section 21 of the Money Laundering (Prohibition) Act
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to justify the violation of his fundamental right.
The argument of appellant here is that the learned trial judge wrongly interpreted Sections 38 (1) and (2) of the Economic and Financial Crimes Commission (Establishment) Act 2004 and 21 of the Money Laundering (Prohibition) Act when he held that the said provisions empower EFCC to direct other persons to arrest in the course of its investigations, and that 1st to 5th respondents were equally liable for obeying such unlawful orders. Let me first take on the second his submission of the illegality of the order of arrest by EFCC. Whilst Section 38(1) of the Economic and Financial Crimes Commission (Establishment) Act 2004 provides thus:
38(1) The Commission shall seek and receive information from any person, authority, corporation or company without let or hindrance in respect of offence it is empowered to enforce under the Act (Italics mine);
Section 21 of the Money Laundering (Prohibition) Act 2011 on its part states that:
For the purpose of this Act, the Director of Investigation or an officer of the Ministry, Commission, or Agency duly
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authorized in that behalf may demand, obtain and inspect the books and records of the Financial Institution or Designated Non-Financial institution to confirm compliance with the provision of this Act. (Italics mine)
The first and basic rule of interpretation is that words be given their ordinary and literal meaning. Taking cue from that, it is clear that the power specifically vested on EFCC by Section 38(1) of its enabling Act as regards other persons and authority, corporation or company is to “seek and receive information” from them and nothing more. It does not extend to directives to also arrest as EFCC did in its Exhibit EFCC 1 to FCMB. And coming to Section 21 of the Money Laundering (Prohibition) Act 2011, whilst EFCC’s directive to FCMB to flag the account of appellant seems covered by that provision which empowers it to “demand, obtain and inspect the books and records of the Financial Institution or Designated Non-Financial institution to confirm compliance with the provision of this [Money Laundering] Act”, it cannot by any stretch of imagination be also read to mean power to direct such third persons to
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arrest persons under investigation, as it purported to direct FCMB in its Exhibit EFCC 1. The Lower Court was therefore in my humble opinion in error when it held in its ruling that:
“The directive given to the 4th and 5th respondents which was used by the 1st -3rd Respondent in arresting and detaining the applicant is Exhibit FCMB 1. The said directive is issue pursuant to Section 38(1) and (2) of the Economic and Financial Crimes Commission (Establishment) Act 2004 and Section 21 of The Money Laundering (Prohibition) Act 2011. … While Section 21 of the Money Laundering (Prohibition) Act 2011 empowers the EFCC to demand and obtain record from any Ministry, Commission or Agency, by reason of the relevant section of the law just considered above, the 1st to 5th respondents when they arrested the applicant acting on the directive of the 6th respondent, where acting under a lawful directive in compliance with Section 38(1) and (2) of the Economic and Financial Crimes Commission (Establishment) Act 2004. Similarly by reason of the petition received by the 6th respondent while investigating the applicant upon the said petition acted lawfully in
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issuing Exhibit FCMB 1on 4th and 5th respondents in accordance with aforesaid law.”
Neither provision of these statutes vests powers on EFCC to direct FCMB to arrest. Incidentally, the Lower Court itself also seems to have recognized the limitations of FCMB in exercising powers of arrest under the said provisions, for it proceeded to say immediately after that statement that:
It is common knowledge that the 4th and 5th respondents are not empowered by law to effect an arrest, thus the 4th and 5th respondents, in bringing the 1st and 3rd respondents who are empowered by law to effect the arrest of the applicant in compliance with the directive in exhibit FCMB acted lawfully.”
But that does not completely resolve the issue of whether 4th and 5th respondents also arrested appellant or were jointly liable for his arrest, an assertion they have vehemently. On the evidence before that Court, I am afraid I am not also convinced that by simply pointing appellant out to the police, 4th and 5th respondents made themselves jointly responsible for his arrest. Yes, they may have been wrong in their interpretation of Exhibit FCMB 1 and EFCC1 from
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EFCC in pointing appellant out to the Police but that fact alone without more does not constitute a directive to the police to arrest him; after all it has been held that even reporting commission of crime against another to the police does not render the reporter liable if the police use their discretion to arrest; that it does not even matter that the suspect gets acquitted by the Court at the end of the day: see Isheno v. Julius Berger (Nig.) Plc (2008) ALL FWLR (PT 415) 1632 @ 1643 (S.C.); Afribank (Nig.) Plc v. Onyima (2004) 2 NWLR (PT 858) 645 @ 673 – 674 para H-A. Appellant, it appears was also conscious of this position of the law hence his shift in position in his Reply on Points of law (see Para. 2.03 therein) when he argued rather ridiculously that even the mere fact that 4th respondent kept him waiting in the banking hall while it went to bring the policeman also amounted to unlawful arrest and detention. At any rate, given the sanctions spelt out in Section 38(2) and (3) of the Economic and Financial Crimes Commission (Establishment) Act 2004 for disobedience by any person of lawful enquiries or requirements made by EFCC, 4th and 5th
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Respondents can be hardly blamed for inviting the police, the main authority statutorily vested with powers of arrest, to do the arresting. That is even assuming that it is they who invited the police, for there is even no evidence to that effect. The police could well have come to the bank on its own and only needed 4th and 5th respondent to identify appellant for it to arrest him, after all they did not in their counter affidavit try to shift responsibility for the arrest to the 4th and 5th respondents. On the contrary, they maintained strongly that they arrested appellant based on the same directive from EFCC, which directive they also separately attached to their counter affidavit as Exhibit A2. For all the forgoing reasons, I am in agreement with 4th and 5th respondents that the evidence on the records did not prove that they arrested appellant or were jointly responsible for his arrest. On that ground, I hereby uphold the order of the Lower Court dismissing his application against them.
In summary, the appeal as it relates against 4th and 5th respondents fails and is here dismissed.
Issue 2: Whether appellant proved that he was not
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informed of the allegation against him in writing within the time provided by law.
Section 35(3) of the 1999 Constitution of this country states that:
“Every person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds of his arrest.” (Italics mine).
This provision not only imposes on the arresting authorities a duty to inform every person arrested of the reason for his arrest, it also requires that the information must be ‘in writing’ and made within twenty four (24) hours of such arrest. Was appellant so informed? He says he was not while the respondents particularly 1st to 3rd respondents simply asserted that it is not in all cases that they have to do that. They did not direct the Court to any provision of the Constitution that provides for the exception they alluded to in their address, it was rather the Lower Court that on its own made a recourse to appellant’s Further Affidavit filed on 24th January, 2018 – more than three months after his detention and about two months after his release – where he only stated that
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EFCC acted on its directive to FCMB to arrest him, to hold that Section 35(3) of the Constitution was complied with by Respondents in his arrest. Again it does not appear to me that it was correct. In the first place, none of the respondents denied his assertion that they did not inform him in writing let alone within 24 hours of the reason for his arrest. That being the case, that point is taken as proved, same having been admitted or deemed so: see Federal University of Technology Minna v. Olutayo (2018) 7 NWLR (PT. 1617) 176 @ p. 196, 189 (SC). In any event, appellant’s lawyers raised the issue of respondent’s omission to comply with Section 35(3) of the Constitution in their letter to the Police marked Exhibit A to his application but the Police to whom it was addressed did not refute it. The fact that the police or EFCC may have later informed him of the reason for his arrest is not also compliance with the strict provisions of Section 35(3) of the Constitution. Where the law requires a duty to be performed in a certain way, that way and no other one is acceptable. In the event, I agree with appellant that the Lower Court was wrong in its
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conclusion on this issue and 1st, 2nd, 3rd and 6th Respondents did not comply with Section 35(3) of the 1999 Constitution of this country in his arrest. I therefore also resolve this issue in favour of appellant and against 1st, 2nd, 3rd and 6th Respondents.
Issue 3: Whether appellant’s right to personal liberty of appellant guaranteed by Section 35 of the 1999 Constitution of the Federal Republic of Nigeria was breached by the respondents in his arrest and detention from 16/10/2017 to 25/10/2017.
The right to personal liberty, it is said, is a commodity of inherently high value, accordingly a complaint that it has been breached should not be handled with levity: See First Bank of Nigeria Plc v. Attorney General of the Federation (2018) 7 NWLR (PT 1617) 121 (Augie, J.S.C.). Whenever such a complaint is made, the focus of the Court such complaint is ‘intense and intensive’ and a solution which projects the essence of the constitutional guarantee should be adopted: see F.R.N. v. Ifegwu (2003) 15 NWLR (PT. 842) 113 at 184 (S.C.), Obinna Obiegue v. A.G.F. (2014) 5 NWLR (PT 1399) 120 (C.A.). That is just as a proceeding for
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enforcement of fundamental rights is sui generis and the laws guiding it also stand above the ordinary laws of the land: see Federal University of Technology Minna v. Olutayo (2018) 7 NWLR (PT. 1617) 176 @ p. 196, 198 (SC).
Now, while there is no doubt that EFCC is vested with powers of arrest and even to detain where necessary in the course of that investigation, I find it rather difficult to agree with the Lower Court’s silence on, and endorsement of, appellant’s detention from 16/1/10/2017 to 25/10/2017 by the Police and EFCC by dismissing his application for enforcement of his fundamental right to personal liberty in its entirety even in the face of the uncontestable fact that there were and are competent Courts of jurisdiction within 24 kilometer radius of his places of his detention, Jos and Port-Harcourt. The relevant provision of the 1999 Constitution of the Federal Republic of Nigeria dealing with right to personal liberty is Section 35. It states that every person shall be entitled to his personal liberty and on no account shall a person be deprived of such liberty save in cases well spelt out there and in accordance with procedure
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permitted by law. One of the exceptions, where a person can be deprived his personal liberty, is ‘for the purpose of bringing such a person 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 Section 35(1)(c) of the Constitution. Suspicion of committing economic or financial crime, which is a bail-able offence, was the reason put forward by 1st to 3rd and 6th respondents for appellant’s arrest and detention. But EFCC and the Police are both set up by law and bound to operate within the ambit of the laws of the land. On that, the 1999 Constitution of this country in its Section 35 states that:
(4) Any person who is arrested or detained in accordance with Subsection (1(c) of this section shall be brought before a Court of law within a reasonable time and if he is not tried within a period of –
(a) two months from the date of his arrest and detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date
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of his arrest and detention in the case of a person who has been released on bail; he shall (without prejudice to any further proceeding that may be brought against him) be released either unconditionally or upon such conditions as is reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section, the expression ‘reasonable time’ means –
(a) in the case of in the case of arrest and detention where there are Courts of competent jurisdiction within a radius of forty kilometers, a period of one day; and
(b) in any other case, a period of two days or such longer period as the circumstances may be considered by the Court to be reasonable.
These time limits set by the Constitution do not admit of any discretion on the part of the authorities; not even the fact that an investigation is ongoing affects them. That much is not only clear from the said provisions but was so settled by this Court in Assistant Inspector General of Police v. Ezeanya (2016) ALL FWLR (PT 830) 1371 – 1372, a point further confirmed recently by the Apex Court in First Bank of Nigeria Plc v. Attorney General of the Federation (2018) 7 NWLR (PT. 1617) 121 (SC).
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In this case, the Police and the EFCC not only kept appellant in their detention for a whole nine days from 16/10/2017 to 25/10/2017 without bail, they moved him first from Jos, Plateau State to Abuja and finally to Port-Harcourt, River State, all without bail and arraignment. Even when an application for his bail was made by appellant two days after his arrest, they turned it down yet the Lower Court which is duty bound to uphold the Constitution and appellant’s fundamental right to personal liberty saw anything wrong with it. It was in my opinion in error in dismissing his application. That error that was made worse by the fact that appellant was at the end of the day even exonerated of the allegation that led to his arrest and that information was before the Court at the time it ruled on his application. It is to avoid the likelihood injustice of this kind by law enforcement agencies that the framers of our Constitution inserted into it the provisions presuming every accused of crime, person innocent and made further necessary safeguards for its protection with the provisions of
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Section 35(4) and (5) of the Constitution reproduced above, which provisions 1st, 2nd, 3rd and 6th respondents blatantly breached. In First Bank of Nigeria Plc v. Attorney General of the Federation (supra), the detention of 2nd to 5th appellants’ therein by EFCC for only over 24 hours without the further ignominy and inconvenience of being moved all over the country like EFCC did to appellant was adjudged worthy of compensation of One million Naira (₦1m) to each of them by the Apex Court as against the sum of ₦750,000.00 this Court awarded all of them, an amount the apex Court described as meagre, wrong exercise of discretion and subsequently set aside. Given that guide, I consider compensation of ₦5,000,000.00 (Five Million Naira) for the Nine days’ unlawful detention without bail appellant suffered in the hands of 1st, 2nd, 3rd and 6th Respondents modest. I note that even when administrative bail was granted appellant on 25/10/2017, it was granted on rather stringent conditions (see shown on page 81 of the records) such that appellant seems to have only managed to have met those conditions seven (7) days later on 02/11/2017
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when 6th respondent finally released him from detention.
In summary, this appeal has merit and ought to be allowed and is here allowed and the decision of the High Court of Plateau State dismissing appellant’s application is set aside. In its place an order is here made granting appellant’s application and the following orders are made:
1. It is hereby declared that the detention of the appellant Mr. Ephraim Kapara Galadima without bail from 16th October 2017 till 25th October 2017 by 1st, 2nd 3rd and 6th Respondents is illegal, unlawful and unconstitutional and amounts to breach of his right to personal liberty.
2. It is further declared that the refusal of the 1st to 3rd Respondent to inform appellant in writing within 24 hours of his arrest of the offence for which he was detained is illegal, unlawful and unconstitutional.
3. The sum of Five Million Naira (₦5,000,000.00) is awarded to appellant as compensation payable by 1st, 2nd, 3rd and 6th respondents for their breach of his fundamental right to personal liberty.
Appellant having been made to throw away costs in prosecuting this case, and taking cue from another
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example set by the Apex Court in the similar fundamental rights enforcement appeal of F.U.T. MInna v. Olutayo (supra) p. 196, para E-F, I assess cost to appellant, against 1st, 2nd, 3rd and 6th Respondents very modestly (the Apex Court awarded far higher costs in Olutayo’s case) at N200,000 for the proceeding at the Court below and another N200,000 for this appeal.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO JCA. I agree with the conclusion reached therein. I abide by the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and conclusion that the appeal is meritorious and should be allowed.
I also allow the appeal and I abide by the orders contained thereat in the lead judgment.
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Appearances:
Gyang Zi, Esq., with him, R.T. Yilwatda, Esq. and Miss Y.C. Ayuba For Appellant(s)
O. Shaibu Esq., with him, B. P. Daken, Esq. – for 4th and 5th Respondents.
First, second, third and sixth Respondents were unrepresented For Respondent(s)
