IKOTT v. AKPAN & ORS (2021)

IKOTT v. AKPAN & ORS

(2021)LCN/14941(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/C/370/2014

RATIO

CONSTITUTIONAL LAW: EFFECT OF VIOLATION OF A CITIEN’S RIGHT

It is the law that any violation of a citizen’s right guaranteed under the Constitution for however short a period must attract a penalty under the law. See Alaboh v. Boyes (1984) 5 NCLR 830. PER JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: HOW SHOULD EVERY CASE BE ESTABLISHED

It is trite law that every case must be established by credible evidence. PER JAMES SHEHU ABIRIYI, J.C.A.

APPLICATION: NATURE OF APPLICATIONS TO ENFORCE FUNDAMENTAL RIGHTS

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

BARRISTER UDUAKOBONG IKOTT APPELANT(S)

And

1. POLICE OFFICER ANIETIE AKPAN (Police Area Command, Uyo) 2. INSPECTOR ELIJAH ISONG (Police Area Command, Uyo) 3. COMMISSIONER OF POLICE, AKWA IBOM STATE 4. INSPECTOR GENERAL OF POLICE OF NIGERIA 5. NIGERIA POLICE FORCE RESPONDENT(S)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 21st March, 2014 in the High Court of Akwa Ibom State sitting at Uyo. In the High Court (the Court below), the Appellant was the Applicant, the Respondents were the Respondents.

By an originating motion on notice, the Appellant claimed against the Respondents for a declaration that her arrest and detention by the Respondents amounted to a breach of her right to personal liberty. Secondly, a declaration that the inhuman and degrading treatment meted on her by the Respondents amounted to a breach of dignity of human person. Thirdly, an order restraining the Respondents from intimidating, harassing, arresting and detaining her in connection with this matter. Fourthly, an order that the Respondents should render a public apology to the Appellant in a way or manner determined by the Court. And finally an order that the Respondents jointly and severally pay the sum of N30 million (Thirty million Naira) only to the Appellant for violating her fundamental right.

The case of the Appellant on the affidavit evidence in support of her

case is very simple and short. According to the Appellant, she is a legal practitioner. On 9th March, 2013 at about 9.30am she went to the police station where her client had been arrested earlier that day at about 4.00am and was detained to apply for the bail of the client. At the police station, she was detained by the 1st and 2nd Respondents. She was detained for about three hours. That at the time the 1st and 2nd Respondents detained her, she did not commit any offence to warrant her detention.

The defence of the Respondents on the evidence adduced contained in the counter affidavit is that when the Appellant came to the police station, the 1st Respondent advised her to wait in the general office until he finished recording the statement of her client. The Appellant refused and sat close to the 1st Respondent while the 1st Respondent recorded the statement of Appellant’s client. The Appellant told her client not to sign the statement and deny making it since to her it was incriminating. That the Appellant was never detained as there was no criminal complaint against her.

After considering the affidavit evidence and written addresses of

learned counsel for the parties, the Court below dismissed the case of the Appellant.

The Appellant immediately proceeded to this Court by a notice of appeal dated and filed on 9th April, 2014. The notice of appeal contains two grounds of appeal. From the two grounds of appeal, the Appellant presented the following lone issue for determination in an Appellant’s brief filed on 10th October, 2014 but deemed duly filed and served on 22nd May, 2017:
Whether the Appellant by her lone evidence proved that any of her fundamental rights provided for by Chapter IV of the 1999 Constitution of Nigeria (as amended) was breached by the Respondents?

The Respondents did not file any brief. On 24th June, 2020, the Court ordered that the appeal be heard on the brief of the Appellant alone.

Learned counsel for the Appellant submitted on the only issue for determination that on the averments in the affidavit in support of the application, the Appellant proved that her right to personal liberty and dignity of human person were breached by the Respondents. The Court was referred to the evidence of the Appellant. Learned counsel for the Appellant

maintained that from the evidence, the rights of the Appellant to personal liberty and dignity of human person were breached by the Respondents.

It was submitted that the Respondents did not specifically deny the specific averments of the Appellant in paragraphs 6, 7, 8 and 9 of the affidavit in support of the originating motion on notice. The Court was referred particularly to paragraphs 13, 15, 16 and 17 of the counter affidavit of the Respondents.

It was submitted that the only conclusion that can be drawn from paragraphs 16, 17 and 22 of the counter affidavit is that the Appellant was in the custody of the Respondents and that she was given a degrading treatment.

It was the contention of learned counsel for the Appellant that the arrest and detention of the Appellant were not specifically denied by the Respondents.

It was submitted that the averments in paragraphs 21 and 22 of the counter affidavit are acts of inhuman and degrading treatment. That the Respondents have admitted that the Appellant could not render the legal services for which she was engaged and that there cannot be any more dehumanizing treatment of a legal practitioner

than this act of the Respondents. It was submitted that when a person is arrested and detained unlawfully, the right to dignity of the human person of the detainee is also breached in the circumstance. The person need not be beaten up, tortured physically or given corporal punishment, it was contended. The Court was referred to Ekpu v. A. G. Federation (1998) 1 HRLR 391 at 421. It was submitted that arrest and detention amount to inhuman and degrading treatment. The Court was urged to hold that the unlawful arrest and detention of the Appellant amounts to inhuman and degrading treatment.

Learned counsel for the Appellant dwelt at length on the statement referred to by the Respondents in the counter affidavit, particularly on the none production of the document which she submitted amounted to withholding evidence.

It was submitted that the preponderance of evidence and balance of probabilities were all in favour of the Appellant because the Respondents did not specifically deny the breach of the Appellant’s rights to personal liberty and dignity of the human person.

It is the law that any violation of a citizen’s right guaranteed

under the Constitution for however short a period must attract a penalty under the law. See Alaboh v. Boyes (1984) 5 NCLR 830.

It is trite law that every case must be established by credible evidence. Paragraphs 4, 9, 11 and 15 of the affidavit in support of the motion reproduced immediately hereunder read as follows:
4. That in the course of my professional legal practice, one Albert Bernard Effiong hereinafter referred to as my client, on the 9th of March, 2013, employed my legal services to apply for his bail in respect of an alleged case of conduct likely to cause breach of the peace lodged against him and two others by one Martina Mac Inem. Sequel to the complaint of Martina Mac Inem, my client, Albert Bernard Effiong was arrested at about 4.00am on 9th March, 2013 by the 1st and 2nd Respondents who took him to Police Area Command, Uyo, Wellington Bassey Way, Uyo, Akwa Ibom State, where he was detained.
9. That before I could explain myself to the 1st and 2nd Respondents, they arrested me and dragged me by my hand and the waist and took me away from the charge room where my client was to another office within the Area Command, where I was

detained until the 1st and 2nd Respondents were through with my client. When the 1st and 2nd Respondents took me to the office where they forcefully detained me, they held my shoulders and forced me to sit on a bench with a warning that I should not come out and that I am a suspect though they did not tell me the nature of my offence.
11. That the Respondents detained me for about three hours in their office and thereafter forced me to leave the Police Area Command, Uyo, without rendering my legal service to my client without just cause. The Respondents used their position to frustrate me.
15. That due to the harassment, humiliation, intimidation, arrest and detention and the inhuman and degrading treatment meted on me by the 1st and 2nd Respondents, I made an official complaint vide a letter dated 28th May, 2013 through my counsel, Etim Offiong, Esq. of A Ekong Bassey & Associates, 225 Oron Road, Uyo to the 3rd Respondent and copied the Uyo Police Area Commander, Wellington Bassey Way, Uyo, but the 3rd Respondent refused to accede to our demands therein. A copy of the letter is hereto attached and marked Exhibit “A”.

Paragraphs 10 – 17, 20 and 21 of the counter affidavit reproduced immediately hereunder read thus:
10. That midway into Albert Bernard Effiong’s statement, the Applicant came in to my office and introduced herself to me as a lawyer who was interested in taking Albert Bernard Effiong on bail.
11. That I advised the Appellant to wait at the general office pending when I shall have finished recording the said statement.
12. That the Applicant declined and requested to take a seat in my office. I obliged the Applicant and she took a seat on a chair near where I was recording the statement.
13. That when I finished recording the said statement, I read it over to the maker (Albert Bernard Effiong) and as soon as I got to the point where Albert Bernard Effiong stated that he had never threatened the complainant through text messages but that he had done so through verbal calls, the applicant jumped up and told Albert Bernard Effiong not to sign that type of a statement as same was an indictment.
14. That I told the Applicant that she is not supposed to tell the suspect what to say in my presence and that she should allow the suspect to

state the story as he knows it.
15. That the Applicant continued telling the suspect to deny the entire statement and to make another one.
16. That at this point, I collected the case including the unsigned statement of Albert Bernard Effiong and went to my immediate boss, the 2nd Respondent (sic) office where I relayed the conduct of the applicant to him.
17. That the 2nd Respondent followed me to my office and asked the Applicant to leave and she left after she stated that she was going to show us that she is a lawyer.
20. The applicant was never arrested nor detained as there was no criminal complaint against her.
21. That paragraph 10 is false. Applicant was never humiliated, arrested or detained apart from that she was told to leave my office.
A perusal of the affidavit in support of the Appellant’s application will show that the Appellant voluntarily went to the Police Area Command, Uyo, Wellington Bassey Way, Uyo, Akwa Ibom State to apply for the bail of her client. This was at about 9.30am. She did not depose to the exact time the voluntary visit turned into any arrest. She did not state what time the arrest occurred

and what time she was released from the detention. It was not enough for her to merely depose as she did that she was arrested and detained for three hours. She ought to have deposed to the time of day she was arrested. This she did not do. She also ought to have deposed to the time of day she was released from detention. She ought to have even deposed to why she was released barely three hours after the arrest and detention. That is not all. She also ought to have deposed to the terms of her release and if none why there were no terms for her release from detention. The Appellant also did not depose to the type of office in which she was detained. Did the office not belong to any officer or officers of the Area Command? If the office did not belong to any officer or officers of the command why 1st and 2nd Respondents merely left her in that office and told her not to come out. She did not depose to why she did not come out. She did not depose to why she did not alert anybody even by phone call that she was under police detention. She did not depose to why she did not complain to any superior police officer that she was illegally detained by the 1st and 2nd

Respondents for three hours. In paragraph 15 of the affidavit in support of the application, she claimed to have made an official complaint by a letter of complaint Exhibit A annexed to the affidavit in support. That was over two months after the purported arrest and detention. The appellant could not have been dumb to her illegal arrest and detention for over two months if the arrest and detention were true.
It is not surprising therefore that the Respondents deposed to the fact that Exhibit A was made in contemplation of the Appellant’s application for enforcement of her fundamental rights. I agree. Exhibit A attached to the affidavit in support of the application is therefore no reliable evidence. I also agree with the Respondents that the Appellant was not arrested or detained on the affidavit evidence in support of the application. The application of the Appellant was not supported by any reliable affidavit evidence.
Learned counsel for the Appellant tried to hunt for evidence of her arrest and detention from the counter affidavit of the Respondents. I do not agree with her that paragraphs 16, 17 and 22 of the counter affidavit of the

Respondents is such evidence. Paragraphs 16 and 17 of the counter affidavit have been reproduced elsewhere in this judgment and they speak for themselves. In paragraph 16 of the counter affidavit, the Respondents deposed to the fact that the 1st Respondent went to the office of the 2nd Respondent with the unsigned statement of the Appellant’s client. I cannot understand how learned counsel for the Appellant will translate that to mean that she was arrested and detained. In paragraph 17, the Respondents deposed that the 2nd Respondent asked the Appellant to leave and she left. Surely there is a world of difference between asking the Appellant to leave and arresting and detaining her. Paragraph 22 of the counter affidavit of the Respondents cannot also be construed to mean that it was evidence that the Appellant was arrested and detained. If anything it showed quite the opposite. The said paragraph reads thus:
“That paragraph 11 is false. I know as a fact that asking a lawyer to leave the police station without rendering legal services to a client does not amount to a violation of human right.”
It is clear from the foregoing that the

search for evidence of Appellant’s arrest and detention from the counter affidavit of the Respondents is a futile exercise.
As I have shown earlier in the judgment, the Appellant’s affidavit in support of the application did not support the application.

In the circumstances, the only issue for determination is resolved against the Appellant and in favour of the Respondents and the appeal dismissed for lacking in merit.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother J. S. Abiriyi, JCA

I agree with the reasoning and conclusion reached in the said judgment, in particular that the Appellant as Applicant in the Court below did not make out a case for the breach of her Fundamental Right by the Respondents.

In the circumstance, I join my learned brother Abiriyi, JCA to say that the appeal lacks merit and it is accordingly dismissed.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother James S. Abiriyi, JCA. I am in complete agreement with his reasoning and conclusion in

dismissing the unmeritorious appeal.

I also need to restate the legal position that applications to enforce fundamental rights are by their nature determined by the affidavit evidence of the parties. Thus, it is the affidavit evidence before the trial Court that should be relied upon in determining such applications.
In the instant case, the learned trial judge having evaluated the affidavit evidence placed before him found that the appellant’s affidavit did not support of the application and rightly dismissed the said application.
Furthermore, by the averments in the respondent’s counter affidavit, the appellant was neither arrested nor detained and the allegation against the respondents was a smokescreen meant to obtain justice through the back door.

For these reasons and for the more comprehensive reasons given in the lead judgment, I also dismiss this appeal.

Appearances:

ETIM OFFIONG, ESQ. For Appellant(s)

Respondents not represented though served For Respondent(s)