NSCDC v. OSHIONYA (2021)

NSCDC v. OSHIONYA

(2021)LCN/15162(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, June 10, 2021

CA/PH/444/2017

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

NIGERIA SECURITY AND CIVIL DEFENCE CORPS APPELANT(S)

And

DARLINGTON OSHIONYA RESPONDENT(S)

RATIO

THE SOLE PURPOSE OF A PRELIMINARY OBJECTION

A preliminary objection against the appeal is a move to terminate the whole appeal and cannot be used to attack only a ground of appeal. Thus, where a Respondent intends to attack one or more out of many grounds of appeal, he ought to file a motion on notice to that effect. The sole purpose of preliminary objection is therefore to terminate the appeal in its entirety, usually on grounds of incompetence. See Ihedioha Vs. Okorocha (2015) LPELR – 25645 (CA) and Mallam & Ors Vs. Registered Trustees of IPMAN (2016) LPELR – 41606 (CA). PER SHUAIBU, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the life blood of adjudication, hence, any decision by a Court that lacks jurisdiction to hear and determine a matter is a nullity no matter how well conducted. In the famous decision of the apex Court in Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341, it was emphatically held that for a Court to have a requisite jurisdiction to hear a matter;
(a) the Court must be properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another.
(b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction, and
(c) the case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to any exercise of jurisdiction. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE NATURE OF A CLAIM DETERMINES THE JURISDICTION OF A COURT

It is settled that, it is the nature of the claim that determines the jurisdiction. Similarly, for a matter to be instituted under the Fundamental Rights (Enforcement Procedure) Rules to enforce the constitutionally guaranteed rights under Chapter IV of the Constitution, 1999 (as amended), the enforcement of such right(s) must be the main or substantive claim before the Court and not an ancillary claim. See Tukur Vs. Govt. of Gongola State (1989) 9 SC 1 at 48 and Nwachukwu Vs. Nwachukwu (2018) 17 NWLR (pt. 1648) 357 at 372. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE COMMON LAW PRINCIPLES OF ASSESSMENT ON AWARD OF DAMAGES APPLIES TO MATTERS BROUGHT UNDER THE FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES

It is to be noted that the common law principles of assessment on award of damages do not apply to matters brought under the Fundamental Right (Enforcement Procedure) Rules. By Provision of Section 35(6) of the 1999 Constitution (as amended), any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person specified by law. Thus, a person who has proved that he was unlawfully arrested and detained is automatically entitled to award of compensation. See Jim-Jaja Vs. C.O.P Rivers State (2013) 6 NWLR (pt. 1350) 225. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. See Muhammad Vs. I.G.P (2019) 4 NWLR (pt. 1663) 492 and Attah Vs. I.G.P & Ors (2015) LPELR – 24656 (CA). PER SHUAIBU, J.C.A.

CONDITIONS AN APPELLANT MUST SHOW TO REVERSE AN AWARD OF DAMAGES

To reverse an award of damages on appeal, the Appellant must show: –
(a) That the trial Judge, acted upon some wrong principles of law.
(b) That the award was an erroneous estimate of damages claimed, or
(c) That the damages awarded was manifestly too high or too low. In Ajayi Vs. A.G Federation (1998) 1 17RLRA 373, it was observed that in fixing an amount for infringement of fundamental right, the following factors amongst others will be taken into consideration: –
(a) The frequency of the type of violation in recent time,
(b) The continually depreciating value of the Naira,

(c) The motivation for the violation,
(d) The status of the Applicant,
(e) The underserved embarrassment meted out to the Applicant including pecuniary losses, and
(f) The conduct of the parties generally, particularly the Respondent. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Rivers State sitting in Port-Harcourt delivered by Hon. Justice J. M. Kobani on the 7th day of March, 2017 in which the Respondent was granted all the declaratory and injunctive reliefs sought. He was in addition granted compensatory relief in the sum of N2,000,000.00 for the impunity inherent in the arrest and detention.

Miffed by the above decision, Appellant appealed to this Court through a notice of appeal filed on 17/05/2017 containing six (6) grounds of appeal at pages 96-102 of the notice of appeal. Appellant’s Amended Notice of Appeal was deemed properly filed on 9/1/2018 and same contain seven grounds of appeal.

Parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument settled by T. A. Ojo, Esq and filed on 13/10/2017. At pages 6-7 of the Appellant’s brief of argument, four issues have been formulated for the determination of this appeal as follows: –
1. In view of the reliefs sought by the Respondent before the lower Court, whether the learned trial Judge erred

in law when he assumed jurisdiction over this case notwithstanding the provisions of Section 251 (r) (v) of the 1999 Constitution as amended and whether the learned trial Judge erred in law when he assumed jurisdiction over this case notwithstanding that the alleged breach arose from a transaction or subject matter within the exclusive jurisdiction of the Federal High Court.
2. Whether the learned trial Judge erred in law when he assumed jurisdiction over this case in the absence of any reasonable cause of action.
3. Whether the judgment of the lower Court in this suit is against the Weight of Evidence and whether the learned trial Judge erred in law when he granted the reliefs sought by the Respondent without the Respondent placing any minimum proof or sufficient credible evidence before the lower Court to show that any of his rights under the Constitution was violated.
4. Whether the learned trial Judge erred in law, and whether he exercised his discretion judiciously and judiciously in awarding the whooping sum of N2,000,000.00 against the Appellant as damages, the Respondent, having placed no evidence before the Court to prove his cases or

show that he is a person of means or reputation, or that he suffered any loss of amenities of life or injury to such reputation.

The Respondent’s brief of argument, settled by Golden Awi, Esq. filed on 04/12/2017 in which 3 issues have been formulated for the determination of this appeal thus: –
1. Whether this appeal is competent.
2. Whether the lower Court had the jurisdiction in the fundamental right action filed at the lower Court.
3. Whether the judgment of the lower Court was right.

Upon careful perusal of the two set of formulations, same are identical except that they are couched differently. However, the three issues formulated on behalf of the Respondents are more concise and quite apposite for the determination of the appeal inclusive of the preliminary objection. I will therefore determine the appeal on the basis of Respondent’s Issue No. 1 in respect of the preliminary objection while issues No. 2 and 3 for the substantive appeal.

PRELIMINARY OBJECTION
The Respondent’s notice of preliminary objection was filed on 30/01/2018 and the argument on same is contained at pages 5-8 of the

Respondent’s brief of argument. The grounds upon which the said objection is predicated are as follows: –
1. The Appellant’s notice of appeal of 17/05/2017 is incompetent because of:
a. Absence of NBA stamp and seal on the notice of appeal
b. The reliefs on the notice of appeal is incompetent.
2. The record of appeal was transmitted out of time; and
3. No leave was sought and obtained to amend the notice of appeal of 11/5/2017.

As stated earlier that the Respondent’s issue No.1 relates to the said preliminary objection and for ease of reference same is hereunder reproduced as follows: –
Whether this appeal is competent

Arguing the preliminary objection, learned counsel for the Respondent submits that by virtue of Rule 10 (1) of the Rules of Professional Conduct, all the Court’s processes and other legal documents must bear the seal and stamp of legal practitioner that sign them. And where a legal practitioner possesses the seal and stamp but failed to affix it on the Court process or other documents signed by him would not satisfy the requirement of the Rule. He referred

to Adewale & Anor Vs. Adeola & Anor (2015) LPELR – 25972 (CA).

It was the contention of the Respondent that, an appeal cannot arise from the decision of the learned trial Judge as the remarks or comments by the learned trial Judge complained of by the Appellant cannot be made the subject of appeal. Counsel cited and relied on the provision of Section 240 of the 1999 Constitution and the cases of Babalola Vs. State (1989) 4 NWLR (pt. 115) 264 and Oredoyin & Ors Vs. Arowolo & Ors (1989) 4 NWLR (pt. 114) 172 to the effect an appeal presupposes the existence of some decision on a point, there cannot be an appeal against what had not been decided against a party.

Still in contention, counsel argued that the Appellant’s relief made reference to Suit No.: OYHC/59/2016. He thus submits that a Court of law must not grant to a party a relief which he has not sought and that the absence of any competent prayer in the notice of appeal renders the said notice of appeal incurably defective. He referred to Adeyemi Vs Ike Oluwa (1992) & NWLR (pt. 309) 27 and 42.

In his response, learned counsel to the Appellant submits that, where as in the instant

case, the Appellant’s counsel has paid for NBA stamp and seal and attaches the receipt to his process as evidence of such payment, the domestic affairs of NBA occasioning tardiness or failure to promptly issue same cannot be visited on the Appellant as all that is required to be done on the part of the Appellant has been done. Counsel cited the case of Today’s Cars Ltd Vs. Lasaco Assurances Plc & Anor (2016) LPELR – 41260 (CA).

On the incompetence of the notice of appeal, counsel referred to paragraph 2 of the initial notice of appeal at page 96 of the record to contend that the Appellant clearly describes the decision complained against as “the whole decision and judgment delivered in Suit No. OYHC/59/2016”. Thus, the inadvertence of counsel in the wording of the relief sought in paragraph 4 of the said notice of appeal should not be allowed to defeat the substance of the appeal. He referred to Voro Vs. Votoh (2016) LPELR – 40341 (CA) and FRN Vs. Dakingari (2016) LPELR – 41279 (CA).

Counsel also argued that the notice of appeal filed on 17/5/2017 against the decision delivered on 11/8/2017 is within the 90 days

prescribed by Order 8 Rule 4 of the Court of Appeal Rules, 2016. And that, as soon as the leave of Court and deeming order was granted, the amended notice of appeal was properly filed and served on the adverse party.

The Respondent herein challenges the entire appeal on many fronts, the first being the absence of NBA seal and stamp on the notice of appeal. Rule 10 (1) of the Rules of Professional Conduct mandates legal practitioners signing Court’s process and other legal document to affix NBA stamp and seal. The Appellant in the present case did not affix his NBA seal and stamp on the said notice of

appeal but had, at pages 103-106 of the record of appeal exhibited payment receipt of the NBA stamp and seal and other dues dated 7th March, 2017, which prima facie shows that counsel has done the needful; two months prior to the filing of the notice of appeal.
The rationale behind the requirement for affixing NBA stamp and seal to legal documents is to checkmate quacks and meddlesome interlopers in the legal profession and also ensure that legal practitioners fulfil their financial obligation to the Nigerian Bar Association. That being the case, what is then the effect of the Appellant’s counsel exhibiting the payment receipts showing that he has paid for the NBA stamp and seal. In Today’s Cars Ltd Vs. Lasaco Assurance Plc (supra), Ogakwu, J.C.A. said: –
“Doubtless, there is no Nigerian Bar Association stamp and seal on the Appellant’s brief. The Appellant has however submitted that its counsel has done all on its part to obtain the seal and that the failure by the Nigerian Bar Association to issue the seal should not be visited on the

Appellant …
Now, in the circumstances will, it be in consonance with the dictates of justice for the Appellant’s brief to be said to infringe the provisions of Rule 10 of the Professional Conduct for Legal Practitioners, 2007; given the fact that the Appellant’s counsel has done all that is required of him in order to comply with the stipulation of the Rule. I think not. It is my considered view that having paid for the stamp and seal, all remained was the domestic affairs of the Nigerian Bar Association Secretariat and where like this situation, the Nigerian Bar Association is tardy, such tardiness cannot be visited on the Appellant as all required to be done on the part of the Appellant’s counsel has been done.”
The fact and circumstances of the above are on all fours with the facts and circumstances of the present case as all that is required to be done on the part of the Appellant’s counsel Messrs. Ojo Toluwatope Alex, Esq. has been done two months prior to the filing of the said notice of appeal. And having done

the needful, it should be taken that the payment for the NBA seal, stamp and other dues satisfies the requirement of the Rule. It is thus my considered view that, the Appellant’s notice of appeal filed on 17/5/2017 is competent and proper before this Court.

On the Respondent’s contention that the relief sought from this Court is incompetent, when you read paragraph 2 of the Appellant’s notice of appeal, it becomes very clear that the Appellant is appealing against the whole decision and judgment in Suit No. OYHC/59/2016 as inadvertently stated by counsel. It is my view that, if the appeal is successful and the order sought made; it would have the same effect, irrespective of whether the decision appealed against was made by the trial Judge or the trial Court. Therefore, the errors contain in paragraph 4 of the notice of appeal of stating “learned trial Court” as well as Suit No. OHC/59/2016 instead of OYHC/59/2016 are in the realm of inadvertence of counsel which could not be allowed to defeat the substance of the appeal. It has always been the attitude of the Courts not to punish parties for the inadvertence or negligence or

mistake of counsel. The Courts normally lean over to accommodate such instances in the interest of justice. See Ogbu & Ors Vs. Urum & Anor (1981) LPELR–2290 (SC), Akanbi & Ors Vs. Alao & Anor (1989) LPELR–315 (SC) and Ekpemupolo & Ors Vs. Edremoda & Ors (2009) LPELR – 1089 (SC).

As regards the competency of the record of appeal, there is no doubt that the Appellant’s initial notice of appeal was filed on 17/5/2017 while the record of appeal was transmitted on 11/8/2017, within the three months stipulated in Section 25 (2) (a) of the Court of Appeal Act. It is also pertinent to note that, once there is a valid notice of appeal before the Court as in the present case, it can be amended and the amended notice of appeal takes the place of the initial notice of appeal. See FBN Plc Vs. May Med Clinics & Anor (2003) LPELR – 1282 (SC) and Ikechukwu Vs. Nwoye & Anor (2013) LPELR – 22018 (SC).

In the light of the foregoing, the Respondent’s objection is unmeritorious and it is accordingly overruled.

Having overruled the preliminary objection, I will now proceed to consider the

respective submissions of counsel on the substantive appeal. It is however desirable to restate the facts giving rise to this appeal albeit briefly. On 28th November, 2013, the anti-vandal signed, attached to Rivers State Command of Nigerian Security and Civil Defence Corps (NSCDC) arrested four Accused Persons with illegally refined Automobile Gasoline Oil loaded in cellophane bags and conveyed in their cars. The Accused Persons were granted administrative bail wherein the Respondent stood surety for the 3rd Accused Person (Ikechukwu Anyike) in the sum of N1 million. The said Accused Person jumped bail and refused to attend Court for his arraignment. The Respondent herein was subsequently arrested and detained from the 10th day of March, 2015 for failure to produce the said Ikechukwu Anyike and hence, the Respondent filed an action at the trial Court for the enforcement of his fundamental right to personal liberty under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Proffering argument on issue No. 1, learned counsel for the Appellant contend that considering the nature of the reliefs sought by the Respondent before

the lower Court and also taking into account that the Appellant is an agency of the Federal Government, the Court lacks the requisite jurisdiction to hear and entertain the suit. He submits that the jurisdiction of the Federal High Court is exclusive in any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. In aid, counsel cited Section 251 (1) (i) (p) (q) and (r) of the 1999 Constitution and the cases of NEPA Vs. Edegbero & Ors (2002) 8 NWLR (Pt. 798) 79, N.I.M.R. Vs. Akin-Olugbade (2008) 5 NWLR (Prt.1079) 68 at 91-93 and Isaac Obiuweubi Vs. Central Bank of Nigeria (2011) 7 NWLR (Prt.1247) 465.

Counsel contends further that, by the averment in paragraphs 5-14 of the Appellant’s counter affidavit, the subject matter of the transactions leading to this appeal is illegal dealing in petroleum products for which Mr. Ikechukwu Anyike, who was taken on bail by the Respondent was arrested. And notwithstanding the fact that the Federal High Court had ordered the Respondent to show cause why the recognizance he executed should

not be forfeited, the lower assumed jurisdiction. He submits that since the matter of the forfeiture of the bail bond was already pending before the Federal High Court in connection to an offence of illegal dealing in petroleum product, the State High Court does not have jurisdiction in the matter.

In response to the above, learned counsel for the Respondent submits that the reliefs sought by the Respondent at the lower Court clearly centered on the unlawful arrest and detention of the Respondent by officers of the Appellant in respect of the recognizance entered into by the Respondent to secure the bail of the aforementioned Mr. Ikechukwu Anyike. Thus, the case before the lower Court was not on illegal dealing in petroleum product as the Respondent was never charged before the Federal High Court in relation to the illegal dealing in petroleum product. He referred to Adetona & Ors Vs. I.G. Enterprises Ltd (2011) 7 NWLR (Prt.1247) 535 and Grace Jack Vs. University of Agriculture, Makurdi (2005) 19 NWLR (pt. 959) 238.

Jurisdiction is the life blood of adjudication, hence, any decision by a Court that lacks jurisdiction to hear and determine a

matter is a nullity no matter how well conducted. In the famous decision of the apex Court in Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341, it was emphatically held that for a Court to have a requisite jurisdiction to hear a matter;
(a) the Court must be properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another.
(b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction, and
(c) the case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to any exercise of jurisdiction.

In the instant case, the contention of the Appellant is that the Fundamental Rights (Enforcement Procedure) Rules, 2009, does not provide the Respondent with the platform of presenting his claim at the lower Court and that the lower Court was wrong to have decided otherwise.

It is settled that, it is the nature of the claim that determines the jurisdiction. Similarly, for a matter to be instituted under the Fundamental Rights

(Enforcement Procedure) Rules to enforce the constitutionally guaranteed rights under Chapter IV of the Constitution, 1999 (as amended), the enforcement of such right(s) must be the main or substantive claim before the Court and not an ancillary claim. See Tukur Vs. Govt. of Gongola State (1989) 9 SC 1 at 48 and Nwachukwu Vs. Nwachukwu (2018) 17 NWLR (pt. 1648) 357 at 372.

The reliefs sought by the Respondent at the lower Court are spelt out at pages 1 and 2 of the record of appeal as follows:
1. A declaration of rights that the arrest and detention of the Applicant by the officers of the Respondent is a gross violation of the fundamental rights of the Applicant.
2. A Declaration of right that the threat of further arrest and detention of the Applicant by the officers of the Respondent without obtaining a lawful order of the Court of competent jurisdiction is a gross violation of the fundamental rights of the Applicant.
3. A Declaration of right that the Applicant by executing the Criminal Form Recognizance (NSCDC Form 001) with the Respondent has not committed any offence within the Nigerian legal system.
4. An Order of Perpetual

Injunction restraining the Respondent from arresting and detaining the Applicant with respect to the allegation of offence against Ikechukwu Anyike wherein the Applicant executed the Criminal Form Recognizance (NCDSC Form 001).
5. An Order that the Applicant be paid compensation of N50,000,000.00 (Fifty million naira) by the Respondent for the arrest, unlawful detention of the Applicant and harassment by the Respondent.
And such further orders as this Honourable Court may make in the circumstance.

In paragraphs 3-8 of the affidavit setting out the facts upon which the application is made, the Respondent deposed thus: –
“3. That a retired teacher, lawyer and friend of mine Barrister E. N. Igwe requested that I assist Mr. Ikechukwu Anyike, who as at 17th day December, 2013 was in the custody of the Respondent, to sign the Criminal Form Recognizance (NSCDC Form 001). A copy of Criminal Form Recognizance (NSCDC Form 001) is herewith attached and marked as Exhibit A.
4. On Exhibit A, I executed thus: –
“I, coach Dalignton Oshionya, hereby declare that I did not receive or pay anything for the bail of Ikechukwu

Anyike either for myself or on behalf of any other person”
5. That apart from executing Exhibit A in respect of the above, I was not invited in respect of any allegation against me.
6. On Tuesday morning at about 7:00am, the 10th day of March, 2015, I was arrested in my house at the teachers’ quarters of the Government Girls Secondary School, Rumuokwuta, Port-Harcourt, Rivers State in the view of the students of the school that I teach by officers of the Respondent and detained at the Respondent’s cell in Rivers State Command of the Respondent at Plot 119 Olu Obasanjo Road, GRA Phase II, Port-Harcourt, Rivers State until Thursday, the 17th day of March, 2015, at about 6:00pm when I was released to Barrister E. N. Igwe.
7. That, I was not informed in writing what was the reason for my arrest or detention by the Respondent.
8. That, I later discovered that the reason I was arrested was because I failed to produce Ikechukwu Anyike in respect of charge No. PH/239c/2013 pending in Court No. 2 of the Port-Harcourt division of the Federal High Court. A copy of the charge sheet No. FHC/PH/239c/2013 is herewith annexed and marked Exhibit B.”

From the above, the nature of the Respondent’s claim before the lower Court shows clearly that he was questioning the basis of his arrest and detention by the Appellant. The claim does not fall within the contemplation of the exclusive jurisdiction of the Federal High Court pursuant to Section 251 (1) (a-s) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It needs to be stressed that the Federal High Court is a special Court with limited but exclusive jurisdiction clearly specified under the aforementioned Section 251 (1) of the Constitution. Thus, even if the Federal Government or one of its agencies is a party to a dispute, it is the nature of the claim or dispute that determines whether the Federal High Court or the State High Court that has jurisdiction to entertain the suit.
In the instant case, the claim being that of enforcement of fundamental right of the Respondent, both the Federal High Court and State High Court has concurrent jurisdiction pursuant to Section 46(1) of the 1999 Constitution (as amended), and the fact that the subject matter is not exclusively for the Federal High Court,

the Rivers State High Court had jurisdiction to hear the Respondent’s claim. Issue No. 1 is therefore resolved against the Appellant.

On issue No. 2, the Appellant’s contention is that the learned trial Judge erred in granting the Respondent’s relief in the absence of sufficient evidence showing that any of his fundamental right has been violated by the Appellant. Counsel relied on the averments in the Appellant’s counter-affidavit to submit that the Respondent’s arrest and detention was as a result of an intelligence that he was conspiring with the absconding felon he took on bail to pervert and defeat the cause of justice.

Still in argument, counsel submits that the fact that an application for the forfeiture of bail bond is a remedy in law against a surety does not in any way prevent the lawful arrest of such surety where he is suspected to be conspiring to pervert the cause of justice. He submits further that, when a suspect is granted administrative bail, it is his duty to fulfil the conditions set for his bail. Therefore, his continued detention for failure to fulfil his bail condition will not amount to violation of his

constitutional right to personal liberty. He referred to Augustine Eda Vs. Commissioner of Police (1982) 3 NCLR 219, Eniang Edem Ekpo Ene & Ors v. Bassey (2014) LPELR – 23524 and Daniel Vs. EFCC (2016) LPELR – 42273 (CA).

On the part of the Respondent, it was contended that the Appellant had two options that is, to apply to the Federal High Court for the forfeiture of the bail bond that was on going and or to proceed on the assumption that the Respondent had committed a crime of conspiring to obstruct, prevent and pervert the cause of justice by obtaining a warrant of his arrest. Counsel submits that the arrest of the Respondent on 10th March, 2015, by the Appellant in the full view of his student without waiting for the school authority to produce him nor complying with the law by obtaining a warrant for his arrest is a gross violation of Section 35 of the Constitution. He referred to Fajemirokun Vs. C.B CCI (Nig.) Ltd. (2002) 10 NWLR (pt. 774) 95.

It was further submitted that where the Court, upon evaluation of evidence before it holds that the arrest of the Applicant was unlawful, it is at liberty to grant compensation in favour of the

Applicant. The amount of compensation the Court may grant is at the discretion of the Court. In aid, counsel also referred to Section 35 (6) of the Constitution aforesaid and the case ofN.A.C.B. Ltd Vs. Ozoemelam (2016) 9 NWLR (pt. 1517) 408.

By virtue of Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the cases listed in the Section in accordance with procedure permitted by law. The question here is, was the arrest and subsequent detention of the Respondent by the Appellant from 10th – 12th March, 2015 justified in law? I have elsewhere in this judgment, reproduced the pertinent averment of paragraphs 3-8 of the affidavit setting out the facts upon which the application for enforcement of the Respondent’s fundamental rights was made. The cumulative substance of the said averments is that the Respondent was arrested by the Appellant on 10/3/2015 in the full view of his students and detained at the Appellant’s cell in Port-Harcourt until the 12/3/2015 when he was released to Barrister E.

Igwe for failure to produce Ikechukwu Anyike whom he previously took on bail.The first burden is on the Applicant now Respondent to show that he was arrested and detained by the Respondent now Appellant beyond the time frame stated by law. It is only when the Applicant has discharged this duty as required by law to show how he was detained, that the Respondent will then show justification not only for the arrest but for keeping him beyond 24 hours or 48 hours as the case may be. See EFCC Vs. Oyubu & Ors (2019) LPELR – 47555 (CA) (C).
What Section 35(1) of the 1999 Constitution postulates is that, a person can be deprived of his liberty upon reasonable suspicion of his having committed an offence. Thus, where there is such deprivation of liberty, such a person arrested or detained shall be brought to Court within a reasonable time within the meaning of Section 35(6) of the Constitution that is, one day where there is a Court of competent jurisdiction within a forty kilometer (40 km) radius of the place of detention and in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court

to be reasonable. It is also pertinent to note that the requirement of taking a suspect to Court within a reasonable time would be satisfied by the release of such person on bail or otherwise within a reasonable time of the arrest. See Ade-Ojo & Ors Vs. Makanjuola & Ors (2019) LPELR – 47962 (CA).

In the case at hand, and by the affidavit evidence earlier produced in this judgment, the Respondent has shown that his arrest and detention by officers of the Appellant was unlawful and therefore the burden has shifted to the Appellant to establish justification of their action. In other words, was the arrest and detention of the Respondent by the Appellant properly made? In paragraphs 11 and 12 of the counter-affidavit at page 33 of the record of appeal, Appellant as Respondent before the lower Court averred: –
“11. After the consistent and unflinching refusal of the Applicant to accede the requests to appear in the Respondent’s office or produce the Accused Person as narrated above, the investigation department of the Respondent on or about the 8th day of March, 2015, received intelligence information that the Applicant conspired

with the said Accused Person to prevent, pervert or defeat the cause of justice by refusing to provide the office of the Respondent with necessary information that would lead to re-arrest and subsequent arraignment of the said accused
12. it was upon receipt of the said information amounting to a serious criminal offence that the Respondent directed its men to arrest the Applicant to clear the air on the allegation which was clearly corroborated by his claims of actions.”

However, the Respondent in paragraphs 7-10 of the further affidavit on page 56 of the record of appeal averred that: –
7. On 1st of June, 2016, at our office, I was informed by the Applicant that paragraph 11 of the counter affidavit is false. Applicant was never informed that the Accused Person was required by the Respondent or that the Accused Person jumped bail.
8. On 1st of June, 2016, at our office, I was informed by the Applicant that paragraph 14 of the counter-affidavit is false. The Applicant was never served with Exhibit F of the Counter-Affidavit.
9. Paragraph 17 of the Counter-Affidavit is false. There exists no warrant of arrest for the compensation

of the Applicant. The relief for warrant of arrest of the Applicant was refused because, the Federal High Court found that the Applicant has not been given sufficient and enough time to be fairly heard. Hence, gave the warrant for the apprehension of the Accused Person reliefs for forfeiture of the bond failed. A certified true copy of the ruling of the Federal High Court is herewith annexed and marked Exhibit NEOI.
10. the Applicant was arrested by the Respondent, detained by the Respondent from the 10th day of March, 2015, to the 12th day of March, 2015, before the Applicant was released to Barrister E. N. Igwe but the Respondent did not have any warrant of arrest for the Applicant.

It is clear from the above that the Respondent’s grouse is centered on his arrest without warrant and also failure to afford him opportunity to produce the suspect he took on bail. Section 10(1) of the Criminal Procedure Law for instance states that a person may be arrested without a warrant who is suspected upon reasonable ground of having committed an indictable offence against the Federal Law or against the law of a State unless the law creating the offence

provides that the offender cannot be arrested without a warrant. Similarly, Section 24 of the Police Act empowers the police to arrest without warrant any person whom any other person charges with having committed a felony to misdemeanor. Furthermore, Section 27 of the Police Act provides that a person so arrested without warrant shall be taken before a magistrate within a reasonable time or granted bail with or without sureties at the police station. Amalgamating these provisions of the Police Act with Section 35(1)(c) of the Constitution, where it is shown that the police or any Law Enforcement Agency has acted reasonably within its powers in the investigation of a criminal complaint, the curtailment of the fundamental rights of such person cannot amount to a breach of that person’s fundamental rights. See Onah Vs Okenwa (2010) 7 NWLR (pt. 1194) 512, Hassan Vs. EFCC (2014) 1 NWLR (pt. 1389) 607 and Isiyaku & Anor Vs. C.O.P Yobe State & Ors (2017) LPELR 43439 (CA).

From the facts before the lower Court, there was no reasonable suspicion of the Respondent of committing any criminal offence and I agree entirely with the trial Judge that the

only remedy open to the Appellant in the circumstance of this case is the forfeiture of the bail bond. At pages 94-95 of the record of appeal, learned trial Judge observed: –
“In the instant case, there is no suggestion or at least no evidence on record that the Applicant made himself inaccessible. That is why I am appalled by the endorsement on Exhibit E attached to the Respondent’s counter-affidavit, i.e. the letter of invitation to the Executive Chairman Rivers State Post Primary School Board dated 5th March, 2015 to direct the Applicant to report at the State Headquarters of the NSCDC. The endorsement reads:-
“Pls., don’t wait till you get a reply from the schools Board as this may take some time. Rather place a surveillance on them and get them arrested latest by 10/3/15.”
In obedience to that directives, the Applicant was indeed arrested on 10th March, 2015 right on schedule as directed. So when the Applicant deposes in paragraph 5 of his affidavit in support that apart from executing Exhibit A, the bail bond, he was not invited in respect of any allegation against him, how can I doubt him? The Respondent

wrote a letter inviting the Applicant and followed it up with a directive not to wait for a reply but to arrest and he was promptly arrested….”

In the instant case, the arrest and the detention of the Respondent by the Appellant was clearly not justified in law and therefore breached the fundamental right of the Respondent to personal liberty as enshrined in Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The Appellant also challenged the award of N2,000,000.00 being compensation for the impunity inherent in the arrest and detention without giving the Respondent an opportunity to honour their own invitation. The contention of the Appellant is that there is no shred of evidence showing that the Respondent is a person of reputation or that he suffered any loss or injury.

apology from the appropriate authority or person specified by law. Thus, a person who has proved that he was unlawfully arrested and detained is automatically entitled to award of compensation. See Jim-Jaja Vs. C.O.P Rivers State (2013) 6 NWLR (pt. 1350) 225. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. See Muhammad Vs. I.G.P (2019) 4 NWLR (pt. 1663) 492 and Attah Vs. I.G.P & Ors (2015) LPELR – 24656 (CA).

In Ajayi Vs. A.G Federation (1998) 1 17RLRA 373, it was observed that in fixing an amount for infringement of fundamental right, the following factors amongst others will be taken into consideration: –
(a) The frequency of the type of violation in recent time,
(b) The continually depreciating value of the Naira,

The Respondent has deposed to the fact that he is a public servant in the employ of the Rivers State Post Primary School Board teaching at Community Secondary School, Rumuopara in Rivers State. That he was arrested in the full view of the student of the school he teaches which averments was nowhere controverted by the Appellant. The Respondent had prayed for N50,000,000.00 but the learned trial Judge while exercising his discretion granted him N2,000,000.00 which in my view is proportionate to his status as well as adequate for the undeserved embarrassment meted out to a teacher in the full view of the student. This issue is also resolved against the Appellant.

In the result, the appeal is unmeritorious and it is accordingly dismissed. The ruling of the lower Court delivered on 7/3/2017 is hereby affirmed. Parties shall bear their respective costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have

been privileged to have read before now, the lead judgment of my learned brother MUHAMMED L. SHUAIBU, J.C.A. For the reasons which have been lucidly and elaborately stated in the judgment, I agree that the appeal is unmeritorious. I too dismiss the appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The dissertation in this matter, inter alia, is on the perennial jurisdictional contest between the Federal High Court and the High Court of a State. In ONUORAH vs. KRPC LIMITED (2005) 6 MJ.S.C. 137 Tobi, J.S.C. alluded to this contest when he stated as follows at page 150:
“This appeal once more brings into the fore the jurisdictional struggle between the Federal High Court and the High Court of a State. The more the Courts interpret the issue, the more cases come before the Courts. And they will continue to come before the Courts as long as lawyers disagree as to the real purport of the constitutional provisions in respect of the two Courts.”
The jurisdiction of a Court or Tribunal is not something you employ a searchlight to discover. It must be plain for all to see. See OBI vs. INEC (2007) 11 NWLR (pt. 1046) 565 at 669. The Federal High Court,

even though it now enjoys an enlarged jurisdiction under the 1999 Constitution (as amended), is still a Court of limited jurisdiction. Its jurisdiction is severely circumscribed and limited to the specific matters contained in Section 251 (1) of the Constitution: OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (2009) 12 NWLR (pt. 1156) 563 at 585. On the other hand, the State High Court, subject to the provisions of the Constitution, is a Court of unlimited jurisdiction. Save for the special jurisdiction conferred on both Courts under Section 46 (1) of the 1999 Constitution, in respect of actions for the enforcement of Fundamental Rights and the concurrent jurisdiction exercised by them in respect of disputes arising from ordinary banker/customer relationships [see FMBN vs. NDIC (1997) 2 NWLR (pt. 490) 735 and FMBN vs. OLLOH (2002) 2 NWLR (pt. 773) 475 at 488]; their jurisdictions do not mix.

Howbeit, it is rudimentary law that the jurisdiction of a Court to entertain a matter is determined by the claim endorsed on the writ of summons. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9-10 SC 31, TUKUR vs. GOVT OF GONGOLA STATE

(1989) 4 NWLR (pt. 117) 517 and JAMES vs. INEC (2015) ALL FWLR (pt. 787) 652 at 704. In ONUORAH vs. KRPC LTD (supra), Tobi, J.S.C. stated:
“The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because, only the claims or reliefs donate jurisdiction to the Court.”

As demonstrated in the leading judgment of my learned brother, Muhammed Lawal Shuaibu, J.C.A., which I was privileged to read in draft, it cannot be confuted that the Respondent’s claim at the lower Court is in respect of the violation of his fundamental rights arising from his arrest and detention by the Appellant. The claim does not fall within the purview of the exclusive jurisdiction of the Federal High Court. Accordingly, the High Court of Rivers State is immanently imbued with jurisdiction to entertain the Respondent’s action.

Indubitably, I entirely agree with the reasoning and conclusion in the leading judgment that the appeal is devoid of merit. Accordingly, I also dismiss the appeal on the same terms as set out in the leading judgment.

Appearances:

A. Ojo, Esq. For Appellant(s)

Respondent not represented. For Respondent(s)