CHIEF (DR.) O. FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD
(2009) LCN/3733(SC)
In the Supreme Court of Nigeria
Friday, February 20, 2009
Case Number: SC. 336/2002
RATIO
APPEAL: DUTY OF THE SUPREME COURT IN RELATION TO CONCURRENT FINDINGS OF FACTS OF TWO LOWER COURTS
It is not the duty of the Supreme Court to interfere with concurrent findings of facts of the High Court and the Court of Appeal unless compelling reasons justify such interference. I see no cause to interfere in the circumstances of this case. See the case of Seven-up Bottling Company Limited v Adewale (2004) 4 NWLR (Pt. 862. 183.) PER O. OGEBE, JSC
DUTY: DUTY OF CITIZENS IN RELATION TO CRIME REPORTING
Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide. PER O. OGEBE, JSC
JUSTICES:
ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE SUPREME COURT
FRANCIS FEDODE TABAI, JUSTICE SUPREME COURT
ALOMA MARIAM MUKHTAR, JUSTICE SUPREME COURT
IBRAHIM TANKO MUHAMMAD, JUSTICE SUPREME COURT
JAMES OGENYI OGEBE (Lead Judgment), JUSTICE SUPREME COURT
BETWEEN
APPELLANTS
CHIEF (DR.) O. FAJEMIROKU
AND
RESPONDENTS
1. COMMERCIAL BANK NIG. LTD
2. MR. DELE ODUNOWO
RATIO
WHEN THE SUPREME COURT WILL INTERFERE IN CONCURRENT FINDINGS OF FACTS
It is not the duty of the Supreme Court to interfere with concurrent findings of facts of the High Court and the Court of Appeal unless compelling reasons justify such interference. Per OGEBE, JSC
- O. OGEBE, JSC (Lead Judgment): The appellant brought an application exparte before the Lagos High Court for the enforcement of his fundamental rights against the respondents. He was granted leave to enforce his fundamental right. When issues were joined between him and the respondents, the trial court listened to the arguments of both sides and struck out the appellant’s application. The appellant appealed to the Court of Appeal and the appeal was dismissed. This is a further appeal to the Supreme Court. The learned counsel for the appellant filed a brief of argument on his behalf and formulated two issues for determination as follows:
- Whether the particulars as contained in the Appellant’s processes have not sufficiently made out a case for the violation of his fundamental human rights.”
- Whether the Appellant was bound to join the Police as a party having identified the Respondents as responsible for the violation of his rights”.
The respondents also filed a brief and identified two issues for determination as follows:
“1. Whether from the facts contained in the processes filed by the applicant/appellant, he ever made out against the Respondents, a case for the violation of his fundamental human rights as to entitle him to an order enforcing his rights in that regard (Grounds 1 and 4).
- Whether from the circumstances surrounding the Applicant/Appellant’s claim, the Appellant’s failure to join the police in the case is fatal to his claim (Grounds 2 and 3)”.
The learned counsel for the appellant submitted that the materials placed before the trial court in the appellant’s affidavit established that his arrest and detention at the instance of the respondents were unconstitutional and a gross violation of his fundamental human rights.
The learned counsel for the respondents submitted that the appellant failed to prove his case before the trial court because his allegation that he was reported to the Police for theft was not established by producing the Police record.
This issue turns entirely on facts. It was the duty of the appellant who alleged in his supporting affidavit that he was reported to the Federal Investigations and Intelligent Bureau, Alagbon Ikoyi for theft to prove it especially as he said that he saw the report in the Police entry book. He failed to produce an extract of the police entry book. He also failed to produce an affidavit from the Police to show the reason for his arrest.
On the other hand, the respondents were able to show from their counter-affidavit that all they did was to report a case of the issuance of dud cheques against Broad Base Mortgage Finance Company Limited which has the appellant as the Chairman of the Board. It was in the course of the investigation that the Police invited the appellant for interrogation.
It is my view that the appellant woefully failed to prove his case before the trial court. The lower court rightly dismissed the appellants appeal and affirmed the findings of facts made by the trial court. It is not the duty of the Supreme Court to interfere with concurrent findings of facts of the High Court and the Court of Appeal unless compelling reasons justify such interference. I see no cause to interfere in the circumstances of this case. See the case of Seven-up Bottling Company Limited v Adewale (2004) 4 NWLR (Pt. 862. 183.)
On the second issue the learned counsel for the appellant submitted that the appellant was not bound to join the Police as a party to his suit as he had identified the respondents as being responsible for the violation of his right and the learned counsel submitted that the non-joinder of the police ought not to have defeated his case.
I do not agree with this submission. Since the appellant’s case was that the respondents reported him to the Police who then arrested and detained him, it was necessary for him to join the Police for them to explain the reason for the arrest, to show whether there was a reasonable cause for his arrest. Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.
For all I have said in this judgment, I see no merit in this appeal and I hereby dismiss it and affirm the judgment of the two lower courts. The appellant shall pay the costs of N50.000.00 to the respondents for this appeal.
KATSINA-ALU. JSC: My Lords, I have had the advantage of reading the judgment of my learned brother Ogebe JSC, and for the reasons he gives I also dismiss this appeal with costs as awarded.
M. MUKHTAR, JSC: The process that culminated into this appeal commenced in the High Court of Lagos State where the appellant filed an application for the enforcement of Fundamental Human Rights, seeking the following reliefs :-
“i. A DECLARATION that the arrest of Chief (Dr.) Oladele Fajemirokun the applicant herein on Thursday 20th July, 1995 at his office at No. 90, Awolowo Road, South-West Ikoyi -Lagos, at the instigation and instance of the 2nd Respondent, acting as Agent of the 1st Respondent, who directed and accompanied an Officer of the Nigerian Police Force, Federal Investigation & Intelligence Bureau (FIIB), Alagbon, Ikoyi -Lagos, based on a baseless and false allegation of theft is illegal, unconstitutional and a gross violation of his fundamental rights.
- A DECLARATION that the detention of Chief (Dr) Oladele Fajemirokun following the arrest of Thursday 20th July, 1995 at the instance of the Respondents is unlawful, unconstitutional and a gross violation of his fundamental rights.
iii. N10,000,000.00 (ten million naira) damages for unlawful and unconstitutional arrest of the applicant.
- N10,000,000.00 (ten million naira) damages for unlawful and unconstitutional detention of the applicant.
- Nl0,000,000.00 (ten million naira) damages for loss of participation and attendance of the business dinner at the Chinese Restaurant of Airport Hotel, Ikeja – Lagos in honour of Mr. Gordon Downey by Mobell Holdings Limited which I am the Chairman, Board of Directors and at whose instance the dinner was organized on the fateful Thursday 20th July, 1995.
- Perpetual injunction restraining the Respondents by themselves, Agents, privies or whomsoever acting through them or for them from further interfering with his fundamental human rights in the illegal and unconstitutional manner.
vii. AND for such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances of the case.”
The ground on which the reliefs were sought was stated as follows:-
“i. The manner of his arrest by the Respondents through the instruments of the Police was degrading, inhumane and it amounts to a violation of his person as a Nigerian Citizen, a reputable international businessman and this (arrest) is contrary to his fundamental rights enshrined under Sections 31 and 34 of the Constitution of the Federal Republic of Nigeria, 1979 and also in Article 5 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of Federation of Nigeria, 1990.
- His detention is a breach of his fundamental rights under Section 32 of the Constitution of the Federal Republic of Nigeria, 1979 and also Article 6 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of Federation of Nigeria, 1990.
iii. His arrest and detention caused him a huge business misfortune as he could not attend a Send Off Dinner organized at the Chinese Restaurant of Airport Hotel, Ikeja – Lagos by Mobell Holdings Limited of which he is the Chairman, Board of Directors at whose instance the Dinner was organized in honour of one Mr. G. Downey a business colleague, and the outgoing Managing Director Chief Executive of Original Box Packaging of John Holt.
- The Applicant is entitled to remedy in the form of damages against the Respondents jointly and severally for the violations of his constitutional and legal rights.”
Affidavits were filed together with annexures. Learned counsel to both sides addressed the court, and the learned trial judge after a thorough consideration struck out the application for enforcement of fundamental rights, as follows:-
“The applicant has therefore not established that his fundamental rights had been infringed by the Respondents more so when he did not even sue the Police who actually detained him. Consequently therefore the Applicant has not established that his fundamental rights had been breached by the Respondent as is expected of him under Section 135 of the Evidence Act.”
The applicant appealed to the Court of Appeal, Lagos Division on three grounds of appeal. The appeal was dismissed after Sanusi, J.C.A. had painstakingly evaluated and assessed all the materials before the court.
On a matter like this which I thought the appellant would have been satisfied and let the matter rest at that stage, the appellant started another process of appeal to this court. Briefs of argument were exchanged, and in the appellant’s brief of argument are the following issues for determination:-
“1. Whether the particulars as contained in the Appellant’s processes have not sufficiently made out a case for the violation of his fundamental human rights
- Whether the Appellant was bound to join the Police as a party having identified the Respondents as responsible for the violation of his rights.”
The issues raised in the respondent’s brief of argument are in pari materia with the above issues.
The learned counsel for the appellant has in proffering argument on issue (1) supra submitted that where the constitution gives a right, and facts have been proved which prima facie show an infringement of that right, it is for the person alleged to have infringed that right to justify the infringement and not for the person whose right has been infringed to exclude all circumstances of justification. Indeed Section 42 of the Constitution of the Federal Republic of Nigeria 1979 Cap. 62 Laws of the Federation of Nigeria has given the
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appellant the right to seek redress in court by the way of the application he moved in the High Court, for sub section (1) of the said section 42 of the Constitution stipulates thus:-
“42(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress”.
The provisions of the chapter contravened in this case is Section 32 (l)(c) of the Constitution supra.
Now, what facts did the appellant prove by way of his affidavit in support of his application? The salient depositions are to my mind as follows:-
“2. That I am the Chairman, Board of Director of Broad Based Mortgage and a licensed Mortgage Finance Institution although the license was not renewed at a screening exercise of mortgage institutions by the governing body sometimes early this year.
- That as a Chairman, Board of Directors, particularly of Broad Based Mortgage Finance Company Limited my participation in the affairs of the company is limited to making major policies at the Board level for management.
- That I did not even know that there was any transaction or relationship between Broad Based Mortgage Finance Company Limited and the 1st Respondent until some times early this year when the 1st Respondent purported to be claiming some money owed by Broad Based Mortgage Finance Company Limited from among others, myself.
- That I did not care to be particular about this claim against me because I considered it as irregular and as an instrument of blackmail since I was never a party to the transaction nor did I guarantee it.
- That surprisingly the Respondents filed a complaint with the Nigeria Police Force at the Federal Investigations & Intelligence Bureau (FIIB) Alagbon, Ikoyi – Lagos for theft against me in respect of their claim, if any, against Broad Based Mortgage Finance Company Limited.
- That on 20th July, 1995 the 2nd Respondent led and directed a plain cloth Police Officer from the Federal Investigations and Intelligence Bureau (FIIB) Alagbon, Ikoyi – Lagos who followed him to my office to arrest me.
- That I was detained for about 4(four) hours at the Federal Investigations and Intelligence Bureau (FIIB) Alagbon, Ikoyi -Lagos.
- That I have perused through the entry book of the Police for the day and I saw that the complaint by the Respondents for which I was arrested was theft.”
In a reply to a letter written by the lawyers to the appellant, annexed to the affidavit, the respondents’ lawyer stated inter alia thus:-
“We are aware that your client was invited several times to clarify issues with the FIIB, which he refused to honour. However, I accompanied one of the officers of FIIB to your client’s office on or about 20 July 1995, with another invitation. On that occasion he was available and was duly notified. Instead of honouring the invitation, peacefully, he decided to overawe the official and intimidate him, so that the invitation could be aborted. This was stoutly resisted……………….. ………………………………….. WE ARE NOT AWARE OF ANY ARREST AND DETENTION ON THE DAY IN QUESTION.
Our position is that your client, as the chairman of the Board of Directors of Broad Based Mortgage Finance Limited, and all other directors are responsible for the proper management of the company, and in the event of insolvency must be held liable to explain and resolve the company’s debt problem until repayment or the company’s liquidation. We therefore will continue to pressurize them for the settlement of the debt”.
In the counter-affidavit of the respondents the following facts were deposed:-
“29. That I know as a fact the 2nd Respondent only reported a case of issuance of Dud cheques against Broad Based Mortgage Finance Company to the Police.
- That apart from laying before the Police the formal report of issuance of Dud cheques by the 2nd Respondent against Broad Finance Company, the 1st and 2nd Respondents did nothing about the invitation and interrogation of the Applicant by the Police or any other person at all.
- That the Respondent did not arrest the Applicant.
- That the Respondents did not detain the Applicant.
- That the Respondents did not instigate, direct or procure the arrest and detention of the Applicant.
- That the Police only invited and interrogated the Applicant and the Applicant was never arrested or detained by the Police to the knowledge of the Respondents.
- That the Respondents have no power to arrest or detain the Applicant or any person at all.
- That I know as a fact that after the Police have interrogated the Applicant about the issuance of Dud cheques by Broad Based Finance Limited and the Applicant has admitted knowledge of same and undertook to ensure that the sums on the Dud cheques are redeemed, he left the office of the Police, FIIB Alagbon Close, Lagos”.
Considering the above reproduced facts deposed by both sides to the Litigation, what are the facts that have been proved in support of the application, or that have shown infringement of the applicant’s right? None, I think. In the first place the claim of the applicant/appellant was premised on unlawful arrest and detention by the police not the respondents (although at the instance of the respondents). Secondly, the assertion that the applicant was alleged to have been detained for theft was not proved, as the applicant did not exhibit any document to that effect. Thirdly there was admission of the allegation of indebtedness, which was the cause and root of the whole problem which triggered of the application at the Lagos High Court. It is very clear that series of cheques that bounced were issued by the appellant’s company, (acts which were criminal in nature), for which the respondents were at liberty to resort to the police for their intervention, by reporting the matter to them. As citizens of Nigeria they have the choice to exercise their legal rights of placing their grievance before the police, being custodians of law and order, and that is where their own impute stops. Whatever action the police take thereafter is not solely their responsibility and they are not solely liable. In this vein, the reliefs sought by the applicants against the respondents should not be against them alone if at all they instigated the action. If at all there was ‘arrest’ and detention, it was not done by the respondents, but the police who had the authority to do so. At most the police should have been joined. The ‘arrest’, ‘invitation’, and or detention may have been caused by the steps taken by the respondents, but as I have said earlier on the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere suspicion, but Dud cheques were actually given, as was proved by the annexure to the counter-affidavit. In this regard, I am of the view that the case of Dumbell v. Roberts 1944 1 A.E.R. 326 is of assistance. In the circumstances, I resolve the above issues in favour of the respondents, and dismiss the related grounds of appeal.
I have had the opportunity of reading in advance the lead judgment delivered by my learned brother Ogebe, JSC. I agree with him that the appeal is devoid of merit and deserves to be dismissed. I also dismiss it, and abide by the orders made in the lead judgment.
- F.TABAI, JSC: This suit was commenced at the High Court of Lagos State by way of an application for the ENFORCEMENT of the Applicant/Appellant’s Fundamental Rights under Section 42(3) of the Constitution of the Federal Republic of Nigeria 1979. The reliefs claimed include one for a declaration that his arrest and detention on the 20th of July 1995 was unlawful, unconstitutional and a gross violation of his fundamental rights, NI0,000,000.00 (ten million naira) damages for the unlawful and unconstitutional detention and N10,000,000.00) (ten million naira) damages for loss of participation and attendance at a business dinner on same date organised by and at his instance. He also claims a perpetual injunction.
The application was supported by a 31 paragraph affidavit. The relevant facts deposed to in the affidavit are that the Applicant was the Chairman of the Board of Directors Broad Based Mortgage Finance Company Ltd and his participation in the company was limited to making major policy decisions of the company. That he was not even aware of any transaction or business relationship between his said company and the 1st Respondent until sometime early 1996 when the 1st Respondent made some money demand on his said company. That he never cared about the money claim because he was neither a party nor a guarantor to any transaction. That surprisingly the Respondents filed a complaint of theft against him in respect of their claim, if any, against Broad Based Mortgage Finance Company Ltd. That on the 20th July 1995 he was arrested under the direction of the 2nd Respondent and was detained for about four hours. He emphasised that he perused, through the Police Entry Book and saw that the report to the Police for -which he was arrested and detained was theft. And that because of the arrest and detention he could not attend and participate at the business dinner on that day.
The Respondents also filed a counter-affidavit of 43 paragraphs wherein some 25 paragraphs of the supporting affidavit were not only denied but categorically stated to be false. They deposed that Broad Based Mortgage Finance Ltd of which the Applicant/Appellant was the Chairman was, to the knowledge of the Applicant, indebted to the 1st Respondent in the sum of N2 million. That for the settlement of the aforesaid debt Broad Based Mortgage Finance Ltd issued two cheques Exhibits “A” and “B” which were however returned unpaid. This was in November 1993. Again in January 1994 two cheques Exhibits “C” and “D” were issued for the same purpose and which were also returned unpaid. Following the failure of Broad Based Mortgage Finance Ltd to redeem the debt, the 1st Respondent appointed, the 2nd Respondent as its agent to recover the debt which, had then risen to N2.4 million. Pursuant: thereto the 2nd Respondent lodged a complaint about the issuance of Dud cheques to the F.L.I.B. That in the course of its investigations the Police invited both the Managing Director of Broad Based Mortgage Finance Ltd and the Applicant/Appellant its Chairman. That the invitation of the Applicant by the Police was entirely at Police discretion. That apart from making a formal report about the issuance of Dud cheques against Broad Based Mortgage Finance, the Respondents did nothing about the invitation and interrogation of the Applicant or any other person.
The above represents the salient facts in the application. In his ruling the learned trial Judge held, in substance, that the issuance of Dud Cheques was a criminal offence for which a report was rightly made to the Police and following which report, the Police had the authority, under Sections 20 and 24 of the Police Act, to arrest, search and detain any suspect. The court held, in conclusion that the arrest and interrogation of the Applicant did not infringe his fundamental rights and the application was accordingly dismissed.
The appeal before the court below was dismissed. In its view there was nothing in the affidavit to justify a finding that the Applicant/Appellant’s fundamental rights were infringed.
In the first place issuance of Dud Cheques is a criminal offence under Section 1 of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 and for which the Respondents were entitled to make a report to the Police. To substantiate their allegation they exhibited the alleged Dud Cheques as Exhibit “A”, “B”, “C” and “D”. The Appellant on the other hand alleged that the report made by the 2nd Respondent and for which, he was arrested and detained was that of “theft” ‘which allegation, he further asserted, was recorded in the Police Diary, The said Police Diary was not produced in evidence.
The concurrent decision of the two courts below is that the assertion by the Appellant about his arrest and detention for theft was not proved. I have no cause to interfere with this concurrent finding. Section 2 of the Dishonoured Cheques (offences) act provides:
“Where any offence under this Act by a body corporate Is proved to have been committed with the consent of, or connivance of, or to be attributable to any neglect on the part of a director, manager, secretary or other similar officer, servant or agent of the body corporate (or any person purporting to act in any such capacity) he, as well as the body corporate shall be deemed to be guilty of offence and may be proceeded against and punished in the same manner as an individual.”
Paragraphs 2 5 (a) (b) and (c) of the counter affidavit which were not denied shows that the Appellant had held out himself as a person with the capacity to act for and on behalf of Broad Based Mortgage Finance Ltd and could, at the discretion of the Police, be proceeded against.
On the whole therefore I do not see any reason for any interference with the decisions of the two courts below. I fully agree with the reasoning and conclusion of Ogebe JSC that this appeal lacks merit and I also dismiss it I abide by the costs as assessed in the lead judgment.
- T. MUHAMMAD, JSC: After having been granted leave by the trial court (Lagos State High Court of Justice) to enforce his fundamental rights, the appellant herein and applicant at the trial court, filed on 11th March, 1996, a motion on notice which prayed for the following reliefs:
“i. A DELCARATION that the arrest of Chief (Dr) Oladele Fajemirokun the applicant herein on Thursday 20th July, 1995 at his office at No. 90, Awolowo Road, South-West, Ikoyi – Lagos, at the instigation and instance of the 2nd Respondent, acting as Agent of the 1st Respondent, who directed and accompanied an Officer of the Nigeria, Police Force, Federal Investigations & Intelligence Bureau (FIIB), Alagbon, Ikoyi – Lagos, based on a baseless and false allegation of theft is illegal, unconstitutional and a gross violation of his fundamental rights.
- A DECLARATION that the detention of Chief (Dr.) Oladele Fajemirokun following the arrest of Thursday 20th July, 1995 at the instance of the Respondents is unlawful, unconstitutional and a gross violation of his fundamental rights.
iii. N10,000,000.00 (ten million naira) damages for unlawful and unconstitutional arrest of the applicant.
- N10,000,000.00 (ten million naira) damages for unlawful and unconstitutional detention of the applicant.
- N10,000,000.00 (ten million naira) damages for loss of participation and attendance of the business dinner at the Chinese Restaurant of Airport hotel, Ikeja -Lagos in honour of Mr. Gordon Downey by Mobell Holdings Limited in which the Applicant is the Chairman, Board of Directors and at whose instance the dinner was organized on the fateful Thursday 20th July, 1995.
- Perpetual injunction restraining the Respondents by themselves, Agents, privies, or whomsoever acting through them or for them from further interfering with his fundamental human rights in the illegal and unconstitutional manner.
AND for such further order or other Orders as this Honourable court may deem fit to make in the circumstances of the case.
The motion was supported by a 31 paragraph affidavit. The respondents filed a counter affidavit of 43 paragraphs. Arguments were proffered by the parties. At the end of hearing, the learned trial judge found as follows:
From the above, the following are established, that the applicant was chairman of Broad Based Mortgage Finance Company Limited, that the said company was indebted to the respondent for some N2 million that the Company was, unable to pay its indebtedness, that the said company had issued some dud cheques, that the applicant was invited by the Police and interrogated.”
The learned trial judge held that the applicant had not established that his fundamental rights had been breached by the respondents. He found the motion on notice lacking in merit and he struck it out.
The appellant appealed against the trial court’s decision to the court below. The court below affirmed the trial court’s decision.
This is a further appeal by the appellant to this court. Briefs were filed and exchanged by the parties. Learned counsel for the appellant formulated two issues, vis:
“1. Whether the particulars as contained in the Appellant’s processes have not sufficiently made out a case for the violation of his fundamental rights.
- Whether the Applicant was bound to join the Police as a party having identified the Respondent as responsible for violation of his rights”
I think it is pertinent to remind ourselves that chapter four of the 1979 constitution (under which this matter was determined) dealt with provisions relating to fundamental rights. These provisions are now contained in chapter four of the 1999 constitution. Section 42 of the 1979 constitution and now section 46 of the 1999 constitution confers special jurisdiction on a State High Court to have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section where any person alleges that any of the provisions of this chapter, that is, chapter five, has been, is being or likely to be contravened. The High Court has been empowered under the same section to make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter. Neither the constitution of 1979 nor that of 1999 has defined the term “fundamental rights”. The Fundamental Rights (Enforcement Procedure) Rules, (The Rules for short), which the Chief Justice of the Federation made, pursuant to the powers conferred upon him by section 42 (3) of 1979 and section 46 (3) of the 1999, assign the following interpretation to the term “Fundamental right”, to mean
“any of the Fundamental Rights provided for in chapter five of the constitution”.
See: Order 1, section 1(2) of the rules. These rules came into force on 1st January, 1980. The new rules which came into force on May, 29, 2008, abrogated the 1979 Rules. These rules expand the interpretation of fundamental Rights to include any of the rights stipulated in the African Charter. See: Order 1(1) (b) thereof.
Thus, the fundamental rights provided by the constitution, to my mind, and upon careful examination, can be classified into two categories for the purpose of their observance and enforcement. Firstly, there are rights which must be observed whenever the occasion for their observance has arisen. They are intrinsic to the occasion and cannot be divorced from the occasion. They are generally procedural rights and are embodiment of a fair trial in courts or tribunals of democratic society, for example right of an accused to defend himself in person or through a legal practitioner of his choice; the right to an interpreter where the accused does not understand the language of the court. These are intrinsic to the trial and failure to observe such rights is a valid ground of appeal. See: Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NSCC 988. The second category of the fundamental rights comprises of those rights that are enforceable by the High. Court under section 42 of the constitution. The contention of the appellant before the trial court was that there was infraction on his rights as provided by the 1979 constitution that he was invited by the Police, that is FIIB, Alagbon, Lagos, at the instance of the respondents; that he was arrested and detained on 20th of July, 1995 and that he missed a business dinner, that he was unaware of any transaction between his company that is Broad Based Mortgage Finance company Ltd. of which he was chairman and 1st respondent, that the 2nd respondent led Policemen to his office on 20th July, 1995, and that he was detained for four hours at the FIIB, Alagbon, Ikoyi, Lagos and that the entry in the Police record showed that he was arrested for theft.
The respondents’ version is that the appellant was chairman of Broad Based Mortgage Finance Limited, that the said company was indebted to the respondents for the sum of N2 million that the said company issued series of cheques to pay up the debt but the cheques were returned unpaid. That the 1st respondent appointed the 2nd respondent as
COUNSELS
Mr. J. O. Odubela for the appellant,
with him: Yemi Petan.
Mrs. J. O. Adesina for the respondents,
with her: I. Musa
Esq.; G. Baiye Esq.,
and S. Oladipo Esq.
