IBRAHIM v. COP LAGOS STATE & ORS (2020)

IBRAHIM v. COP LAGOS STATE & ORS

(2020)LCN/14587(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/LAG/CV/336/2019

RATIO

PLEADINGS: ADJOURNMENT.

Without a doubt, the Fundamental Rights (Enforcement Procedure) Rules provide for the expeditious determination of fundamental rights cases and makes it an overriding objective. The stipulations of paragraph 3 (f) and (g) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules are relevant. They read:
“3. The overriding objectives of these Rules are as follows:
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realisation of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.”
In order to give teeth to the avowed objective of expeditious hearing of fundamental rights cases, Order IV Rules 1 and 2 of the Fundamental Rights (Enforcement Procedure) Rules provide as follows:
“1. Date for hearing
The application shall be fixed for hearing within 7 days from the day the application was filed.”
“2. Adjournments
The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of applications under these Rules.”
It is important to underscore that the above provision stipulates for a fundamental right application to be fixed for hearing within 7 days of filing. It is not that the application must be heard within 7days of filing. Furthermore, Rule 2 reproduced above preserves the discretion of the Court to adjourn a fundamental rights application where extremely expedient. The Appellant filed his application on 18th July, 2017, but the same was not served on the Respondents until 16th November, 2017, 24th August, 2017 and 18th August, 2017 respectively. The tardiness in serving the process on the Respondents had made it impossible to attain the fixture of the hearing of the application within 7days of filing.
Let me iterate that the Fundamental Rights (Enforcement Procedure) Rules preserves the discretion of a Court to grant an adjournment where extremely expedient. So, the mere fact that the lower Court exercised its discretion by granting an adjournment will not transmogrify into a denial of fair hearing if the grant of the adjournment was a judicial and judicious exercise of judicial discretion.
The law is settled beyond peradventure that the question of adjournment of any matter is strictly within the bounds of the exercise of the discretion of the particular Court concerned. The exercise of that discretion must depend on the facts and circumstances of each case since no one case is authority for another on the manner of exercise of discretion. See OKEKE vs. ORUH (1999) 6 NWLR (PT. 606) 175, ODUSOTE vs. ODUSOTE (1971) 1 ALL NLR 219 or (1971) 1 NMLR 228 and NWADIOGBU vs. ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY (2010) 19 NWLR (PT. 1226) 364. A Court is not bound to grant an adjournment simply because a party has asked for it: GEORGE vs. GEORGE (2000) LPELR (5914) 1 at 7-8 and SOLANKE vs. AJIBOLA (1968) 1 ALL NLR 46.
The question whether an adjournment will be granted by a Court is a matter within the exclusive discretion of the presiding judge. It is however a discretion which must be exercised judiciously and judicially with one view in mind, and that is dispensing justice. Where the refusal of an adjournment would cause or result in a serious injustice to the party requesting it, the adjournment should only be refused if that is the only way to do justice to the other party. See ISHAQ vs. INEC (2008) LPELR (4336) 1 and ADEBOANU MANUFACTURING INDUSTRIES (NIG.) LTD vs. AKIYODE (2000) 13 NWLR (PT. 685) 576. It is trite law that in the exercise of discretion on whether to grant or refuse an adjournment, the Court shall not only give the applicant the opportunity of obtaining substantial justice by hearing or granting him fair hearing but shall also ensure that no injustice is thereby caused to the other party. Where a Court exercises its discretion bona fide, uninfluenced by irrelevant consideration and not arbitrarily, whimsically or illegally, an appellate Court will not interfere with the exercise of that discretion: UDENSI vs. ODUSOTE (2003) 6 NWLR (PT. 817) 547 and LAWRENCE vs. A-G FEDERATION (2007) LPELR (8566) 1 at 28-29. In other words, in order for a discretion to be properly exercised, it must take into account the respective claim of the parties to justice. The paramount consideration is to maintain a balance of justice, due regard being had to the rights of the parties – AJANI vs. GIWA (1986) LPELR (283) 1 at 21; and that it is in the interest of justice to hear a case in a timely manner. In the judicious and judicial exercise of discretion, a Court must be guided by the spirit and principles of law: THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. The exercise has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141.
It is now aphoristic and apothegmatic to state that a discretion properly exercised will not be lightly interfered with by an appellate Court, even where the appellate Court is of the view that it might have exercised the discretion differently. It is only where a Court exercised discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that an appellate Court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice. See SOLANKE vs. AJIBOLA (supra), NGWU vs. ONUIGBO (1999) 13 NWLR (PT 636) 512 at 524-525, OYEKANMI vs. NEPA (2000) 12 SCNJ 75 at 95 and T.S.A. INDUSTRIES LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300.
In other words, and to put it more pungently, the exercise of discretion will only be reversed where the Court exercised its discretion wrongly by failing to give due weight to relevant considerations on which the exercise of judicial discretion is based. Also, it is where the manner of exercise of discretion has been reckless, arbitrary or capricious that an appellate Court can interfere: BAKARE vs. ACB LTD (1986) LPELR (708) 1 at 26 and UNION BANK vs. ASTRA BUILDERS (WEST AFRICA) LTD (2010) 5 NWLR (PT. 1186) 1.
Doubtless, it is overly attractive to have cases disposed of in a timely manner since the usual apothegm is that justice delayed is justice denied. However, the reverse is equally correct as justice rushed is justice crushed. In the words of Karibi-Whyte, JSC (of blessed memory) in NTUKIDEM vs. OKO (1986) 5 NWLR (PT. 45) 909 at 931:
“The Court should not succumb to the temptation of hastily determining a case in limine without hearing the complaint because of the delay which may arise…”
Furthermore, in NEWSWATCH COMMUNICATIONS LTD vs. ATTA (2006) LPELR (1986) 1 at 24-25, Tobi, JSC opined:
“…Fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.”
We turn now to the records to see the adjournments granted by the lower Court and whether it was a proper exercise of judicial discretion in the diacritical circumstances of this matter. From the Records, the matter first came up in Court on 29th January, 2018 when the learned counsel for the Appellant asked “for a date for adoption of Written Addresses.” The lower Court then adjourned the matter to 15th March, 2018 (see page 54 of the Records).
At the proceedings of 15th March, 2018, the lower Court had to adjourn the matter on account of its convenience stating that if it heard the application, it “will not be able to start the 3 months statutory requirement.” It then adjourned the matter to 26th April, 2018 (see page 55 of the Records). On the adjourned date of 26th April, 2018, the learned counsel for the 2nd Respondent appeared for the first time and applied for an adjournment to enable him file his processes. The lower Court granted the application and adjourned the matter to 25th May, 2018, on which date the application was heard. (See pages 56-61 of the Records).
Let me intercalate and state that from the Records, the Appellant applied for an adjournment on one occasion, while the 2nd Respondent equally applied for an adjournment on one occasion. The lower Court having granted the Appellant’s application for adjournment, it would only be even-handed justice for it to have also granted the 2nd Respondent’s application for adjournment to file its processes so that the matter can be heard on the merits. In the words of Olatawura, JSC in USIKARO vs. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR (PT 172) 190:
“Let no man walk out of our Courts disappointed in the administration of justice. He will prefer to lose a case on its merits that to allow his opponent win by default. There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”
It is my considered opinion that the exercise of discretion by the lower Court in the adjournments it granted was a proper exercise of judicial discretion, therefore this Court cannot interfere. The Appellant’s right to fair hearing was not breached and no miscarriage of justice was occasioned thereby. Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

RATIO

PLEADINGS: WHERE THERE IS NON-COMPLIANCE AS TO TIME, PLACE, MANNER OR FORM.

I have carefully considered the provisions of Order IX Rule 1 of the Fundamental Rights Enforcement Procedure Rules on where there is non-compliance as to time, place, manner or form that such failure shall be treated as an irregularity and may not nullify such proceedings. The failure to file serve [sic] the Counter Affidavit is an irregularity which will not nullify the steps taken by the 2nd Respondent.”

Without a doubt, there is no NBA stamp and seal in the processes filed by the 2nd Respondent. But does the absence of the stamp and seal make the processes incompetent as contended by the Appellant’s counsel in paragraph 5.8 of the Appellant’s Brief, such that the lower Court should have discountenanced the same? I think not. Let me interpolate and state that the Appellant has not contended that the law officers who deposed to the 2nd Respondent’s Counter Affidavit and who signed the other processes filed by the 2nd Respondent are not legal practitioners, the Appellant has latched on to the form on account of the fact that the NBA Stamp/Seal were not affixed thereon. In WIKE NYESOM vs. PETERSIDE (2016) LPELR (40036) 1 at 35, Kekere-Ekun, JSC stated:
“With regard to the lack of NBA stamp and seal on the petition, I refer to the recent decision of this Court in: Gen. Bello Sarkin Yaki vs. Senator Abubakar Atiku Bagudu in SC. 722/2015 delivered on 13/11/2015 when this Court held that the failure to affix the approved stamp and seal of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order.”
See also YAKI vs. BAGUDU (2015) 64 NSCQR 93 at 100.
In essence therefore, the legal position is settled that the effect of the failure to affix the stamp/seal does not invalidate the process filed without the stamp/seal. It remains a mere irregularity that should not void the 2nd Respondent’s processes at the lower Court, more so, when it is not confuted that the processes were signed and filed by legal practitioners. See TARZOOR vs. IORAER (2015) LPELR (25975) 1 at 14-25 (per Garba, JCA) and SURU vs. GOMA (2018) LPELR (44650) 1 at 29-30. The rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession. In the light of the settled state of the law that the absence of stamp and seal is an irregularity which does not render the documents void, hearkening to the Appellant’s argument that the processes are incompetent will be turning justice on its head, and it will in fact inculcate injustice. The irregularity as to form arising from the NBA Stamp and Seal not being affixed did not render the processes incompetent. See TODAY’S CARS LTD vs. LASACO ASSURANCE PLC (2016) LPELR (41260) 1 at 5-7 and ODUKOYA vs. OJOOLA (2018) LPELR (43678) 1 at 11-15.
What I have said about the absence of a stamp and seal being an irregularity which will not nullify the process, applies with equal force to a counter affidavit in the fundamental rights application which was not filed within time. Just as the absence of the NBA Stamp and Seal is non-compliance as to form, the late filing of the counter affidavit is non-compliance as to time. The Appellant has not contended that he was prejudiced by the late filing of the 2nd Respondent’s process, he was served in Court and he elected to proceed with the hearing. The Courts are now more concerned with doing substantial justice than clinging to procedural technicalities and therefore concern themselves with the substance and not the form. The Court does not abandon substance to chase shadow that has not occasioned any miscarriage of justice. See JERIC (NIG) LTD vs. UBN PLC (2000) LPELR (1607) 1 at 14, PSYCHIATRIC HOSPITALS MANAGEMENT BOARD vs. EDOSA (2001) LPELR (2931) 1 at 13 and BRITTANIA-U NIG LTD vs. SEPLAT PETROLEUM DEV CO. (2016) LPELR (40007) 1 at 49.
In wrapping up the Appellant’s contention herein on non-compliance as to form (failure to affix stamp and seal), and non-compliance as to time (late filing of the counter affidavit by the 2nd Respondent); it seems to me that the stipulations of Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules is apposite. It provides:
“1.Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to-
(i) Mode of commencement of the application:
(ii) The subject matter is not Chapter IV of the Constitution or the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.”
The processes objected to do not relate to the mode of commencement of the application and there is no question that the subject matter is not a fundamental rights matter. The non-compliance is therefore an irregularity, which does not nullify the proceedings. See DUKE vs. AKPABUYO LOCAL GOVT (2005) LPELR (963) 1 at 22-23, TSOKWA OIL MARKETING CO. NIG LTD vs. BANK OF THE NORTH LTD (2002) LPELR (3268) 1 at 16-17 and NALSA & TEAM ASSOCIATES vs. NNPC (1991) LPELR (1935) 1 at 17. Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

RATIO

PLEADINGS: DOCTRINE OF BURDEN PROOF.

The doctrine of the burden of proof is encapsulated in the Latin maxim eiqui affirmat non ei qui negat incumbit probatio, that is, the burden of proof lies on one who alleges and not on him who denies. See ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189 and MAXIMUM INSURANCE CO. LTD vs. OWONIYI (1994) 3 NWLR (PT. 331) 178 at 192. The related and associated Latinism is expressed as ei incumbit probatio, qui dicit non qui negat,cum perrerum naturam factum negantisprobatio nulla sit, that is, the burden of proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce any proof: AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46. So, what was the evidence produced by the 2nd Respondent to prove its assertion that the Legal Advice had been issued, Information preferred and trial commenced? Zilch. Nada. Not a whit or scintilla of evidence! The 2nd Respondent did not discharge the burden of proof imposed upon it by Section 136 (1) of the Evidence Act. The lower Court erred when it held that the 2nd Respondent had discharged the burden of proof. It did not.

The matter does not end there. The deponent of the 2nd Respondent’s Counter Affidavit is Haroun Adebayo, an Assistant Director in the Directorate of Public Prosecutions. The Counter Affidavit which was deposed to on 21st May, 2018 is at pages 45-46 of the Records. Haroun Adebayo, Esq., the deponent of the counter affidavit is the counsel prosecuting the “Azeez Ibrahim” who he deposed had been arraigned and was already standing trial for manslaughter. The additional documentary evidence filed with leave of Court and embodied in the Additional Record of Appeal is the proceedings at the supposed trial of the Appellant for manslaughter. The proceedings were conducted on 4th April, 2017, more than one year before Haroun Adebayo, Esq., of counsel deposed to the counter affidavit.

While it is rudimentary law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial, an appellate Court will interfere where, like in the circumstances of this matter, the findings made by the trial Court are perverse and not supported by the evidence on record. It is the bounden duty of the appellate Court to properly evaluate the evidence and make the necessary inferences in order to obviate the injustice occasioned by improper evaluation of the evidence by the lower Court.
The Appellant’s application for the enforcement of his fundamental rights was heard on affidavit evidence and does not involve the demeanour and credibility of witnesses. SeeAKPAN vs. BOB (2010) 17 NWLR (PT. 1223) 421 at 479 and JAMES vs. INEC (2015) LPELR (24494) 1. In LAWAL vs. DAWODU (1972) LPELR (1761) 1 at 26, Coker, JSC asseverated:
“A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber-stamp an error however glaring.”
An appellate Court is in as good a stead as the trial Court in the evaluation of documentary evidence: UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49. The analysis of the affidavit and documentary evidence which I have already alluded to is effulgent that the improper evaluation of the affidavit evidence by the lower Court occasioned injustice which is exemplified by its dismissal of the Appellant’s application. This appellate Court is duty bound to obviate the injustice occasioned by the manner of evaluation of evidence by the lower Court. See ADEGOKE vs. ADIBI (1992) LPELR (95) 1 at 29-30. Having mulled over the affidavit and documentary evidence on record and cogitated and excogitated on the same, I have no hesitation whatsoever in holding that the evidence on record undoubtedly established the Appellant’s case of the evisceration of his fundamental rights to personal liberty. It is ineffable that for nine years and counting, an allegation of armed robbery was made against the Appellant on account of which he was thrown into prison (correctional facility) custody without trial. From November 2011, the Appellant has not been arraigned before a Court of competent jurisdiction. He has been in remand at Kirikiri Correctional Centre on a remand order made by the Magistrates Court. This is a gross violation of his constitutionally guaranteed right to personal liberty as enshrined in Section 35 of the 1999 Constitution as amended.
The interference with and the evisceration of the Appellant’s fundamental right to personal liberty and the attendant incarceration without trial for nine years and counting, is an interference with the Appellant’s constitutional right which is of manifest substantial proportions. The personal liberty of the individual is a commodity of an inherently high value and the deprivation is not to be unwittingly trivialised: ODOGU vs. A-G FEDERATION (1996) LPELR (2228) 1 at 15-16. By Section 35 (6) of the 1999 Constitution as amended, the Appellant is entitled to compensation and apology for the trampling of his right to personal liberty by the Appellant. In JIM-JAJA vs. C. O. P. RIVERS STATE (2012) LPELR (20621) 1 at 14-15, the apex Court held as follows:
“A community reading of Section 35(6) and 46(2)of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By Section 35 and 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents damages in form of compensation and even apology should have followed.
In my view and with profound respect to their Lordships, the Justices of Appeal, erred when, having determined that the respondents violated the fundamental right of the appellant, they declined to award damages because none was claimed. I have demonstrated that the appellant claimed N2 million as damages and even if the appellant did not so claim, he is entitled to compensation on proof of violation of his right by the respondent pursuant to S. 35(6) of the Constitution. Having rightly held that the appellant’s fundamental right was violated by the Respondents the Court below was wrong to have denied him damages by relegating him to the status of a panhandler approaching the Court for a handout. Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

AZEEZ IBRAHIM APPELANT(S)

And

1. COMMISSIONER OF POLICE, LAGOS STATE 2. ATTORNEY GENERAL OF LAGOS STATE 3. DEPUTY CONTROLLER OF PRISONS RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of the Appellant’s application before the High Court of Lagos State in SUIT NO. LD/5622MFHR/2017: AZEEZ IBRAHIM vs. COMMISSIONER OF POLICE, LAGOS STATE & ORS., for the enforcement of his fundamental rights. The Appellant claimed the following reliefs against the Respondents:
“1. AN ORDER compelling the 1st and 2nd Respondents to produce in Court and/or prosecute the Applicant for the alleged offences for which he has been remanded in prison custody for a continuous period of five (5) years without trial or charge within seven (7) days from the date of this Order;
2. Or unconditionally release the Applicant from custody within seven (7) days from the date of this Order.
3. Award of Damages in the sum of N10,000,000.00 (ten million naira) for unlawful arrest, detention, torture and for every opportunity and/or benefit lost by the Applicant during this period of confinement.”

The facts of the matter which are easy to understand and amenable to redaction show that the Appellant alleged that he was arrested sometime in November 2011

by policemen for the alleged offence of armed robbery. He was in Police Custody until 15th February, 2012 when he was taken before the Magistrates Court which made an order for his remand in prison (correctional facility) custody. It is his case that since the said 15th February, 2012 he has remained in prison custody and no Information has been filed for his trial for the alleged offence of armed robbery; consequent upon which he now brought the application for the enforcement of his fundamental right to personal liberty.

The 1st and 3rd Respondents did not file any processes at the lower Court. The 2nd Respondent however filed a counter affidavit wherein it was deposed that upon receiving the duplicate case file from the Police, a Legal Advice was issued and an Information filed charging the Appellant for the offence of manslaughter. It was deposed that the trial of the Appellant had commenced at the Ikeja Division of the lower Court and that two witnesses had already testified.

At the end of the hearing, the lower Court dismissed the Appellant’s application holding that the fundamental rights of the Appellant were not infringed. The Appellant

was dissatisfied with the decision of the lower court and appealed against the same. The chafed judgment of the lower Court which was delivered on 4th July, 2008 is at pages 62-67 of the Records, while the Notice of Appeal which was filed on 2nd October, 2018 is at pages 68-75 of the Records.

The Record of Appeal was compiled and transmitted on 22nd March, 2019 and on 9th July, 2020, this Court granted the Appellant leave to adduce additional documentary evidence. The said additional documentary evidence was incorporated in an Additional Record of Appeal received in Court on 15th July, 2020. The Appellant filed his brief of argument on 9th March, 2020 but the same was deemed as properly filed on 9th July, 2020. The said brief was duly served on the Respondents but they failed to file any Respondents Brief and they also did not appear at the hearing of the appeal, notwithstanding the hearing notice served on them. Dr. Charles Mekwunye, learned counsel for the Appellant, adopted and relied on the Appellant’s Brief of Argument at the hearing and he urged the court to allow the appeal.

The Appellant crafted four issues for determination, videlicet:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the refusal of the trial Court to hear the Appellant’s application filed on the 18th July, 2017 until the 31st of May, 2018 was not a breach of the 1999 Constitution (as amended) and the fundamental right enforcement procedure rules 2009 as well as the appellant’s right to fair hearing and a miscarriage of justice? (distilled from ground 1).
2. Whether the decision of the learned trial Judge which countenanced the 2nd Respondent’s Counter Affidavit filed out of time without any application to regularize same and sworn to by a legal practitioner without affixing his Nigerian Bar Association stamp and seal is not perverse and erroneously reached? (distilled from grounds 2 and 4).
3. Whether the decision of the learned trial Judge which dismissed the Appellant’s application of 18th July, 2017 is not perverse and against the weight of evidence presented before the trial Court? (distilled from ground 5).
4. Whether the trial Court erred in law when he failed to hold that the continuous detention of the Appellant for over 8 years without trial is unconstitutional and a breach of the Appellant’s fundamental rights. (Distilled from ground 3).

The Appellant’s submission on the first issue is that the protracted adjournments for the hearing of the Appellant’s application was contrary to the time frame provided by the Fundamental Rights (Enforcement Procedure) Rules, 2009, in consequence of which the Appellant was denied his right to fair hearing; which rendered the whole proceedings and the decision arrived at by the lower Court a nullity. The cases of ATANO vs. A-G BENDEL (1988) 2 NWLR (PT. 75) 132, AUDU vs. FRN (2013) LPELR-19897 (SC), MFA vs. INONGHA (2014) LPELR-22010 (SC), BANK OF THE NORTH LTD vs. ADEGOKE (2006) 10 NWLR (PT. 988) [no page stated] and NEWSWATCH COMMUNICATIONS LTD vs. ATTAH (2006) 12 NWLR (PT 993) 144 were referred to.

The conspectus of the Appellant’s argument on issue number two is that the 2nd Respondent’s counter affidavit was incompetent having been filed outside the limited period and there was no order extending the time for the counter affidavit to be filed. It was further contended that the processes filed by the 2nd Respondent did not bear the stamp and seal of the legal practitioner as required by the

Rules of Professional Conduct for Legal Practitioners, 2007. It was maintained that the lower Court was wrong to have taken cognisance of the defective processes filed by the 2nd Respondent. The cases of NNA vs. AJUZIEOGU (2018) LPELR-44179 (CA), WIKE vs. PETERSIDE (2016) LPELR-40036 (SC), MUSTAPHA vs. SUNTAI (2013) LPELR-22109 at 25-26, AMADU vs. IMMA (2018) LPELR-44927 (CA), YAKI vs. BAGUDU (2015) 18 NWLR (PT. 1491) 300, AFRIBANK vs. AKWARA (2006) 5 NWLR (PT. 974) 619 among other cases were relied upon.

The quiddity of the Appellant’s submission on his issue number three is that the 2nd Respondent did not discharge the burden of proving that any Legal Advice had been issued or Information preferred against the Appellant as no such document was attached to the Counter Affidavit. The lower Court, it was asserted, did not properly evaluate the facts before it held that the 2nd Respondent discharged the burden of proof. This Court was urged to step in and correct the wrongs committed by the lower Court in order to obviate the miscarriage of justice occasioned. The cases of NDUUL vs. WAYO (2018) LPELR-45151 (SC), ISMAILA vs. ADAMU (2008) LPELR-8435 (CA),

EMMANUEL vs. UMANA (2016) LPELR-40037 (SC), EDILCON (NIG) LTD vs. UBA PLC (2017) LPELR-42342 (SC), NNADI vs. THE STATE (2016) LPELR-41032 (CA), ROYAL ADE (NIG) LTD vs. N.O.C.M. CO PLC (2004) 8 NWLR (PT 874) 206 and a host of other cases were called in aid.

The Appellant’s submission on the fourth issue is that if the lower Court had properly evaluated the facts, it would not have held that the Appellant’s fundamental rights were not breached, and that the findings and holding of the lower Court were therefore perverse. It was maintained that the Appellant was entitled to the award of damages for the infringement of his fundamental rights vide ABIOLA vs. ABACHA (1998) 7 HRLRA 458, OGBONNA vs. EGBULEFU (2018) LPELR-43810 (CA), SHAGARI vs. COP (2007) 5 NWLR (PT. 1027) 275 at 302, EFCC vs. DIAMOND BANK PLC (2018) LPELR-44217 (SC) among other cases.

RESOLUTION
The Appellant’s complaint on his issue number one is in respect of the adjournments granted by the lower Court and his perception that the said adjournments affected the expeditious determination of his application contrary to the letters and spirit of the Fundamental Rights

(Enforcement Procedure) Rules, 2009, which enjoins the expeditious determination of fundamental rights cases.
Without a doubt, the Fundamental Rights (Enforcement Procedure) Rules provide for the expeditious determination of fundamental rights cases and makes it an overriding objective. The stipulations of paragraph 3 (f) and (g) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules are relevant. They read:
“3. The overriding objectives of these Rules are as follows:
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realisation of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.”
In order to give teeth to the avowed objective of expeditious hearing of fundamental rights cases, Order IV Rules 1 and 2 of the Fundamental Rights (Enforcement Procedure) Rules provide as follows:
“1. Date for hearing
The application shall be fixed

for hearing within 7 days from the day the application was filed.”
“2. Adjournments
The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of applications under these Rules.”
It is important to underscore that the above provision stipulates for a fundamental right application to be fixed for hearing within 7 days of filing. It is not that the application must be heard within 7days of filing. Furthermore, Rule 2 reproduced above preserves the discretion of the Court to adjourn a fundamental rights application where extremely expedient. The Appellant filed his application on 18th July, 2017, but the same was not served on the Respondents until 16th November, 2017, 24th August, 2017 and 18th August, 2017 respectively. The tardiness in serving the process on the Respondents had made it impossible to attain the fixture of the hearing of the application within 7days of filing.
Let me iterate that the Fundamental Rights (Enforcement

Procedure) Rules preserves the discretion of a Court to grant an adjournment where extremely expedient. So, the mere fact that the lower Court exercised its discretion by granting an adjournment will not transmogrify into a denial of fair hearing if the grant of the adjournment was a judicial and judicious exercise of judicial discretion.
The law is settled beyond peradventure that the question of adjournment of any matter is strictly within the bounds of the exercise of the discretion of the particular Court concerned. The exercise of that discretion must depend on the facts and circumstances of each case since no one case is authority for another on the manner of exercise of discretion. See OKEKE vs. ORUH (1999) 6 NWLR (PT. 606) 175, ODUSOTE vs. ODUSOTE (1971) 1 ALL NLR 219 or (1971) 1 NMLR 228 and NWADIOGBU vs. ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY (2010) 19 NWLR (PT. 1226) 364. A Court is not bound to grant an adjournment simply because a party has asked for it: GEORGE vs. GEORGE (2000) LPELR (5914) 1 at 7-8 and SOLANKE vs. AJIBOLA (1968) 1 ALL NLR 46.
The question whether an adjournment will be granted by a Court is a matter within the

exclusive discretion of the presiding judge. It is however a discretion which must be exercised judiciously and judicially with one view in mind, and that is dispensing justice. Where the refusal of an adjournment would cause or result in a serious injustice to the party requesting it, the adjournment should only be refused if that is the only way to do justice to the other party. See ISHAQ vs. INEC (2008) LPELR (4336) 1 and ADEBOANU MANUFACTURING INDUSTRIES (NIG.) LTD vs. AKIYODE (2000) 13 NWLR (PT. 685) 576. It is trite law that in the exercise of discretion on whether to grant or refuse an adjournment, the Court shall not only give the applicant the opportunity of obtaining substantial justice by hearing or granting him fair hearing but shall also ensure that no injustice is thereby caused to the other party. Where a Court exercises its discretion bona fide, uninfluenced by irrelevant consideration and not arbitrarily, whimsically or illegally, an appellate Court will not interfere with the exercise of that discretion: UDENSI vs. ODUSOTE (2003) 6 NWLR (PT. 817) 547 and LAWRENCE vs. A-G FEDERATION (2007) LPELR (8566) 1 at 28-29. In other words, in order for a

discretion to be properly exercised, it must take into account the respective claim of the parties to justice. The paramount consideration is to maintain a balance of justice, due regard being had to the rights of the parties – AJANI vs. GIWA (1986) LPELR (283) 1 at 21; and that it is in the interest of justice to hear a case in a timely manner. In the judicious and judicial exercise of discretion, a Court must be guided by the spirit and principles of law: THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. The exercise has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141.
It is now aphoristic and apothegmatic to state that a discretion properly exercised will not be lightly interfered with by an appellate Court, even where the appellate Court is of the view that it might have exercised the discretion differently. It is only where a Court exercised discretion under a

wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that an appellate Court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice. See SOLANKE vs. AJIBOLA (supra), NGWU vs. ONUIGBO (1999) 13 NWLR (PT 636) 512 at 524-525, OYEKANMI vs. NEPA (2000) 12 SCNJ 75 at 95 and T.S.A. INDUSTRIES LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300.
In other words, and to put it more pungently, the exercise of discretion will only be reversed where the Court exercised its discretion wrongly by failing to give due weight to relevant considerations on which the exercise of judicial discretion is based. Also, it is where the manner of exercise of discretion has been reckless, arbitrary or capricious that an appellate Court can interfere: BAKARE vs. ACB LTD (1986) LPELR (708) 1 at 26 and UNION BANK vs. ASTRA BUILDERS (WEST AFRICA) LTD (2010) 5 NWLR (PT. 1186) 1.
Doubtless, it is overly attractive to have cases disposed of in a timely manner since the usual

apothegm is that justice delayed is justice denied. However, the reverse is equally correct as justice rushed is justice crushed. In the words of Karibi-Whyte, JSC (of blessed memory) in NTUKIDEM vs. OKO (1986) 5 NWLR (PT. 45) 909 at 931:
“The Court should not succumb to the temptation of hastily determining a case in limine without hearing the complaint because of the delay which may arise…”
Furthermore, in NEWSWATCH COMMUNICATIONS LTD vs. ATTA (2006) LPELR (1986) 1 at 24-25, Tobi, JSC opined:
“…Fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.”
We turn now to the records to see the adjournments granted by the lower Court and whether it was a proper exercise of judicial

discretion in the diacritical circumstances of this matter. From the Records, the matter first came up in Court on 29th January, 2018 when the learned counsel for the Appellant asked “for a date for adoption of Written Addresses.” The lower Court then adjourned the matter to 15th March, 2018 (see page 54 of the Records).
At the proceedings of 15th March, 2018, the lower Court had to adjourn the matter on account of its convenience stating that if it heard the application, it “will not be able to start the 3 months statutory requirement.” It then adjourned the matter to 26th April, 2018 (see page 55 of the Records). On the adjourned date of 26th April, 2018, the learned counsel for the 2nd Respondent appeared for the first time and applied for an adjournment to enable him file his processes. The lower Court granted the application and adjourned the matter to 25th May, 2018, on which date the application was heard. (See pages 56-61 of the Records).
Let me intercalate and state that from the Records, the Appellant applied for an adjournment on one occasion, while the 2nd Respondent equally applied for an adjournment on one occasion.

The lower Court having granted the Appellant’s application for adjournment, it would only be even-handed justice for it to have also granted the 2nd Respondent’s application for adjournment to file its processes so that the matter can be heard on the merits. In the words of Olatawura, JSC in USIKARO vs. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR (PT 172) 190:
“Let no man walk out of our Courts disappointed in the administration of justice. He will prefer to lose a case on its merits that to allow his opponent win by default. There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”
It is my considered opinion that the exercise of discretion by the lower Court in the adjournments it granted was a proper exercise of judicial discretion, therefore this Court cannot interfere. The Appellant’s right to fair hearing was not breached and no miscarriage of justice was occasioned thereby.

The Appellant’s complaint with respect to the 2nd Respondent’s processes is that it was filed out of time without any

order of Court regularising the same; and that the legal practitioners stamp and seal was not affixed on the processes. The Appellant maintained that consequent upon these flaws, the lower Court should not countenance the said processes. In resolving this question which was raised before it, the lower Court stated as follows at page 63 of the Records:
“I have considered the submissions of both Learned Counsel; it is my view that the failure of the Respondent/Applicant to affix the Association seal to a legal process does not render the process null and void, it is an irregularity that can be cured by an application for extension of time and a deeming order.”
It continued and stated as follows at page 64 of the Records:
“Learned Counsel to the Applicant submitted that the 2nd Respondent has not complied with the provisions of Order 6 Rule 2 of the Fundamental Rights Enforcement Procedure Rules, that the Counter Affidavit is not competent that there is no Motion to regularize. I have carefully considered the provisions of Order IX Rule 1 of the Fundamental Rights Enforcement Procedure Rules on where there is non-compliance as to

time, place, manner or form that such failure shall be treated as an irregularity and may not nullify such proceedings. The failure to file serve [sic] the Counter Affidavit is an irregularity which will not nullify the steps taken by the 2nd Respondent.”

Gen. Bello Sarkin Yaki vs. Senator Abubakar Atiku Bagudu in SC. 722/2015 delivered on 13/11/2015 when this Court held that the failure to affix the approved stamp and seal of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order.”
See also YAKI vs. BAGUDU (2015) 64 NSCQR 93 at 100.
In essence therefore, the legal position is settled that the effect of the failure to affix the stamp/seal does not invalidate the process filed without the stamp/seal. It remains a mere irregularity that should not void the 2nd Respondent’s processes at the lower Court, more so, when it is not confuted that the processes were signed and filed by legal practitioners. See TARZOOR vs. IORAER (2015) LPELR (25975) 1 at 14-25 (per Garba, JCA) and SURU vs. GOMA (2018) LPELR (44650) 1 at 29-30. The rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession. In the light of the settled state of the law that the absence of stamp and seal is an irregularity which does not render the documents

void, hearkening to the Appellant’s argument that the processes are incompetent will be turning justice on its head, and it will in fact inculcate injustice. The irregularity as to form arising from the NBA Stamp and Seal not being affixed did not render the processes incompetent. See TODAY’S CARS LTD vs. LASACO ASSURANCE PLC (2016) LPELR (41260) 1 at 5-7 and ODUKOYA vs. OJOOLA (2018) LPELR (43678) 1 at 11-15.
What I have said about the absence of a stamp and seal being an irregularity which will not nullify the process, applies with equal force to a counter affidavit in the fundamental rights application which was not filed within time. Just as the absence of the NBA Stamp and Seal is non-compliance as to form, the late filing of the counter affidavit is non-compliance as to time. The Appellant has not contended that he was prejudiced by the late filing of the 2nd Respondent’s process, he was served in Court and he elected to proceed with the hearing. The Courts are now more concerned with doing substantial justice than clinging to procedural technicalities and therefore concern themselves with the substance and not the form. The Court

does not abandon substance to chase shadow that has not occasioned any miscarriage of justice. See JERIC (NIG) LTD vs. UBN PLC (2000) LPELR (1607) 1 at 14, PSYCHIATRIC HOSPITALS MANAGEMENT BOARD vs. EDOSA (2001) LPELR (2931) 1 at 13 and BRITTANIA-U NIG LTD vs. SEPLAT PETROLEUM DEV CO. (2016) LPELR (40007) 1 at 49.
In wrapping up the Appellant’s contention herein on non-compliance as to form (failure to affix stamp and seal), and non-compliance as to time (late filing of the counter affidavit by the 2nd Respondent); it seems to me that the stipulations of Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules is apposite. It provides:
“1.Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to-
(i) Mode of commencement of the application:
(ii) The subject matter is not Chapter IV of the Constitution or the African Charter on Human and Peoples Rights

(Ratification and Enforcement) Act.”
The processes objected to do not relate to the mode of commencement of the application and there is no question that the subject matter is not a fundamental rights matter. The non-compliance is therefore an irregularity, which does not nullify the proceedings. See DUKE vs. AKPABUYO LOCAL GOVT (2005) LPELR (963) 1 at 22-23, TSOKWA OIL MARKETING CO. NIG LTD vs. BANK OF THE NORTH LTD (2002) LPELR (3268) 1 at 16-17 and NALSA & TEAM ASSOCIATES vs. NNPC (1991) LPELR (1935) 1 at 17.

The Appellant’s dissatisfaction with the decision of the lower Court as articulated in his issue numbers three and four are in the realm or sphere of evaluation of evidence. I will set out verbatim ac literatim the reasoning of the lower Court which informed its decision that the fundamental rights of the Appellant were not infringed. Hear the lower Court at pages 66-67 of the Records:
“In this instant case, I have perused the exhibits attached to this application. I have considered the averments of the 2nd Respondent in its Counter Affidavit to the effect that it checked into its records and data system and it

discovered that it received the duplicate case file in respect of the Applicant from the Nigerian police, that a Legal Advice was issued wherein it stated that the Applicant will be prosecuted for the offence of manslaughter, that it filed information papers at the High Court Registry, Ikeja, Lagos against the Applicant for the above offence, that the matter is before Justice Ogunsanya, that the 2nd Respondent had opened its case by calling two witnesses, that the 2nd Respondent is not involved or responsible for the continued detention without trial of the Applicant.
It is therefore my view that sufficient materials have been placed before this Honourable Court to show that the arrest and detention of the Applicant is Legal and Constitutional.
The 2nd Respondent has discharged the burden of proof as required by law, from the process before me there was a legal advice issued, information papers also and the trial is ongoing before Honourable Justice Ogunsanya at the Ikeja High Court, with 2 witnesses called, the 2nd Respondent has successfully challenged the averments in the Applicant’s affidavit.
No sufficient materials have been placed

before me to show that the act or acts of the 2nd Respondent is aimed at curtailing the Applicant Rights, no particulars of the infringement, I am in agreement with the submissions of Learned Counsel to the 2nd Respondent that the Applicant never applied for bail within the ample opportunity he had at the lower Court. His trial is ongoing at Ikeja High Court; I therefore find and hold that the 2nd Respondent is absorbed [sic] from any liability, compensation and damages from any alleged infringement.
Accordingly this application is hereby refused and dismissed.”

It is limpid that the decision of the lower Court is anchored on the fact that a Legal Advice had been written by the 2nd Respondent and that the Appellant had already been charged to Court and the trial was already part-heard. The Appellant’s case is a denial that he has not been charged to Court, while the 2nd Respondent’s case is the positive assertion that a Legal Advice had been issued, Information preferred and trial of the Appellant commenced. As rightly submitted by the Appellant’s counsel, there is only the ipse dixit of the deponent of the Counter Affidavit in

this regard. The 2nd Respondent neither exhibited the Legal Advice, the Information preferred nor the Court proceedings at the alleged part-heard trial of the Appellant for manslaughter.

scintilla of evidence! The 2nd Respondent did not discharge the burden of proof imposed upon it by Section 136 (1) of the Evidence Act. The lower Court erred when it held that the 2nd Respondent had discharged the burden of proof. It did not.

The proceedings at page 1 of the Additional Records shows Haroun Adebayo Esq., as prosecuting counsel informing the Court as follows:

“Haroun
It is for counsel to address the Court on the identity of the Defendant. We have since confirmed that the Defendant in ID/1196C/15 was granted bail by Magistrate Court. We made contact with one of the sureties and he confirmed that the Defendant resides in Ikorodu.
Our prayer is that the person in the dock be sent back to custody whilst we make attempts to get the proper Defendant.”

Upon this application being made the presiding Judge made the following order:
“COURT
In view of the submission of Prosecution Counsel that the person in the dock is not the Defendant in ID/119C/15, Mr. Azeez Ibrahim is hereby returned to prison custody pending the time the Azeez Ibrahim in charge No.ID/119C/15 is ascertained.”

This lays to rest any doubts there might be as to whether the Appellant was standing trial for manslaughter. It is translucent that he is not and it lends credence to his case, which is that he is not standing trial before any Court and has been languishing in custody since November 2011.

While it is rudimentary law that the evaluation of evidence and ascription of probative

value thereto is the primary duty of the Court of trial, an appellate Court will interfere where, like in the circumstances of this matter, the findings made by the trial Court are perverse and not supported by the evidence on record. It is the bounden duty of the appellate Court to properly evaluate the evidence and make the necessary inferences in order to obviate the injustice occasioned by improper evaluation of the evidence by the lower Court.
The Appellant’s application for the enforcement of his fundamental rights was heard on affidavit evidence and does not involve the demeanour and credibility of witnesses. SeeAKPAN vs. BOB (2010) 17 NWLR (PT. 1223) 421 at 479 and JAMES vs. INEC (2015) LPELR (24494) 1. In LAWAL vs. DAWODU (1972) LPELR (1761) 1 at 26, Coker, JSC asseverated:
“A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own

responsibility and rubber-stamp an error however glaring.”
An appellate Court is in as good a stead as the trial Court in the evaluation of documentary evidence: UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49. The analysis of the affidavit and documentary evidence which I have already alluded to is effulgent that the improper evaluation of the affidavit evidence by the lower Court occasioned injustice which is exemplified by its dismissal of the Appellant’s application. This appellate Court is duty bound to obviate the injustice occasioned by the manner of evaluation of evidence by the lower Court. See ADEGOKE vs. ADIBI (1992) LPELR (95) 1 at 29-30.

Having mulled over the affidavit and documentary evidence on record and cogitated and excogitated on the same, I have no hesitation whatsoever in holding that the evidence on record undoubtedly established the Appellant’s case of the evisceration of his fundamental rights to personal liberty.

It is ineffable that for nine years and counting, an allegation of armed robbery was made against the Appellant on account of which he was thrown into prison (correctional facility) custody without trial. From November 2011, the Appellant has not been arraigned before a Court of competent jurisdiction. He has been in remand at Kirikiri Correctional Centre on a remand order made by the Magistrates Court. This is a gross violation of his constitutionally guaranteed right to personal liberty as enshrined in Section 35 of the 1999 Constitution as amended.
The interference with and the evisceration of the Appellant’s fundamental right to personal liberty and the attendant incarceration without trial for nine years and counting, is an interference with the Appellant’s constitutional right which is of manifest substantial proportions. The personal liberty of the individual is a commodity of an inherently high value and the deprivation is not to be unwittingly trivialised: ODOGU vs. A-G FEDERATION (1996) LPELR (2228) 1 at 15-16. By Section 35 (6) of the 1999 Constitution as amended, the Appellant is entitled to compensation and apology for the trampling of

his right to personal liberty by the Appellant. In JIM-JAJA vs. C. O. P. RIVERS STATE (2012) LPELR (20621) 1 at 14-15, the apex Court held as follows:
“A community reading of Section 35(6) and 46(2)of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By Section 35 and 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents damages in form of compensation and even apology should have followed.
In my view and with profound respect to their Lordships, the Justices of Appeal, erred when, having determined that the respondents violated the fundamental right of the appellant, they declined to award damages because none was claimed. I have demonstrated that the appellant claimed N2 million as damages and even if the appellant did not so claim, he is entitled to compensation on proof of violation of his right by the respondent pursuant to S. 35(6) of the Constitution.

Having rightly held that the appellant’s fundamental right was violated by the Respondents the Court below was wrong to have denied him damages by relegating him to the status of a panhandler approaching the Court for a handout.
In conclusion, I allow the appeal and pursuant to S.22 of the Supreme Court Act and Order 8 R.12 of the Supreme Court Rules, I order the Respondents, jointly and severally to pay to the appellant the sum of N2 Million as damages/compensation for a violation of his fundamental right in arresting and detaining him unlawfully.”
I kowtow to the reasoning of the apex Court.

The concatenation and conflating of the foregoing is that the appeal is meritorious. It succeeds and it is hereby allowed. The decision of the lower Court is hereby set aside and, in its stead, judgment is hereby entered for the Appellant in the following terms:
1. The 1st and 2nd Respondents are hereby ordered to, within seven (7) days from today, produce and arraign the Appellant in Court and prosecute him for the alleged offences for which he has been remanded since November 2011.
2. Where the Respondents fail to commence prosecution within

seven (7) days from today, the Appellant is to be unconditionally released from custody forthwith.
3. The Appellant is awarded the sum of N5,000,000.00 as damages for the unlawful arrest, detention and for every opportunity and/or benefit lost by the Appellant during the period of his confinement.
The Appellant is entitled to the costs of this appeal which I assess and fix at N100,000.00.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Ugochukwu Anthony Ogakwu JCA, has lucidly considered and dealt with the issues raised by the Appellant in this uncontested appeal and I agree with the views expressed and conclusions reached in the lead judgment, a draft of which I read.

I must say that it is rather quite unfortunate that the Appellant has been kept in continuous illegal and unconstitutional detention or remand since the year 2011 without being arraigned/charged before a Court of competent jurisdiction for any alleged offence and that the Respondents after being duly served with all the material

processes of the appeal, failed, neglected and/or refused to respond or react to them. More unfortunate, was the refusal by all the Respondents to appear or be represented at the hearing of the appeal before the Court after the records of the Court showed they were, again, duly served, with the Hearing Notice.

The attitude of the Respondents in arresting and getting the Appellant detained/remanded for more than nine (9) years without a charge as well as in this appeal, readily shows one of the many reasons why our prisons (correctional facilities) would remain endemically congested.
I join the lead judgment in allowing the appeal in the terms set out therein.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the incisive judgment prepared by my learned brethren, Ugwochukwu Anthony Ogakwu, J.C.A., and I wish to add by way of emphasis that any official correspondence from the office of the Attorney-General or the Ministry of Justice such as legal advice can only be legal evidence upon presenting or attaching to the Court process a certified true copy thereof which was not the case here vide Araka v. Egbue (2003) FWLR (pt.175) 507,

Kwara State Water Corporation v. AIC (Nig.) Ltd. (2009) All FWLR (pt.485) 1738 at 1768.
Similarly, the facts constituting whether the appellant was facing trial in a part-heard case of manslaughter on the strength of legal advice at the High Court of Justice, Lagos State, presided over by His Lordship, Ogunsanya, J., alluded to by the Court below in part of its decision contained in pages 66 – 67 of the record of appeal (the record) which were garnered from the counter affidavit of the 2nd respondent at the Court below would not be legal evidence for the Court below to have acted upon.
Because the alleged facts were not contained in the record of the Court below for it to take judicial notice of; and, also, the alleged facts were not available in the record in the present appeal for the Court to be assured that such facts are indeed in existence. These are matters allegedly before another learned Judge of the High Court of Lagos State and appear to be contained in a file different from the one before the Court below. There is also no evidence in the record that the Court below called for the file of the case of manslaughter against the appellant

before Ogunsanya, J., to peruse and be assured that such case is pending in that Court.
Affidavit evidence or the say-so of one of the parties would not do to establish that such case was at all material times pending before another learned Judge of the High Court of Lagos State. The only admissible and legal evidence in the circumstances should have been certified true copy of the criminal process and proceedings to the effect that a case of manslaughter had been filed at the High Court of Lagos State and was pending before His Lordship, Ogunsanya, J., as a part heard matter vide Ogbu v. Ani (1994) 7 – 8 SCNJ (pt.11) 363, Nzekwu and Ors. v. Nzekwu and Ors (1989) 2 NWLR (pt.104) 373 at 404.
Accordingly and with deference to the Court below, there was no legal and admissible evidence before it to warrant the holding made by it that there was pending before His Lordship, Ogunsanya, J., part-heard case of manslaughter against the appellant upon legal advice from the Ministry of Justice Lagos State. Breach of the appellant’s fundamental right to personal liberty was therefore established by the papers filed and moved on behalf of the

appellant at the Court below. The Court below was, accordingly, wrong to hold that the appellant’s fundamental right to personal liberty had not been breached as the state of the evidence which would have been bettered had the respondents by minimum effort put in evidence before the Court below whatever certified true copies of the alleged legal advice and the alleged pendency of the criminal charge of manslaughter against the appellant before another learned Judge of the High Court of Lagos State might have met the legal requirements in proof of the alleged pendency of the case of manslaughter against the appellant before another learned Judge of the High Court of Lagos State to defeat the appellant’s case at the Court below.

Fundamental right to personal liberty is a prized asset. I should say it is next in rank to the right to life. It is a free gift from God. Unless there is reasonable suspicion of having committed a capital offence by an accused person before the said right to personal liberty may be held in abeyance pending the prosecution of the capital offence. Of course a capital offence is one that attracts the death penalty, not one

that attracts any term of imprisonment up to life imprisonment. The offence of manslaughter which ordinarily attracts maximum mandatory sentence of imprisonment for life vide Section 229 of the Criminal Law of Lagos State (Ch.C17) 2011 would not bear the appellation of a capital offence. The liberty of an accused should not therefore be curtailed even upon reasonable suspicion of his having committed the office of manslaughter, in my modest.
The award of compensation for breach of fundamental right is at large vide Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) read with the case of Jim-Jaja v. C.O.P. Rivers State (2013) 6 NWLR (pt.1350) 225. And in the case of First Bank of Nigeria Plc and Ors. v. A.-G., Federation and Ors. (2018) 7 NWLR (pt.617) 121, the Supreme Court per the lead judgment prepared by the great Jurist, His Lordship, Augie, J.S.C., deservedly awarded N1 Million compensation for the wrongful detention of the appellants, the natural persons, in that case for 24 hours.
Considering the established facts that the appellant has been in wrongful detention for upward of 9 years and the value of

the naira has been in sharp depreciation as well as the prized asset of personal liberty together with the motivation for the violation as well as the frequency of the violation of such rights in recent times and the undeserved embarrassment the appellant was bound to suffer during the wrongful detention, the award of compensation of N5 Million is modest and moderate in the circumstances of the case and I so hold.

It is for these reasons and coupled with the compelling reasons contained in the judgment prepared by my learned brother, with which I earlier agreed, that I too find the appeal meritorious and hereby allow it in the terms ably stated in the said thorough lead judgment.

I commend Dr. Mekwunye of learned counsel for the appellant for the well thought out brief which eased my appreciation of the issues ventilated in the appeal.

Appearances:

Dr. Charles Mekwunye For Appellant(s)

Respondents duly served but absent and not represented by Counsel. For Respondent(s)