FIRST BANK OF NIGERIA PLC. & ORS. v. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2013)

FIRST BANK OF NIGERIA PLC. & ORS. v. ATTORNEY-GENERAL OF THE FEDERATION & ORS.

(2013)LCN/5894(CA)

RATIO

APPEAL: BRIEF OF ARGUMENT: EFFECT OF A CROSS APPELLANT FAILING TO FILE A BRIEF OF ARGUMENT IN A CROSS APPEAL

“At this juncture, it is necessary to sort out the status of Cross-Appeals referred to by the two sets of Respondents in their respective Briefs. The first Respondent clearly stated as follows at page 6 of its Brief- The 1st Respondent has also filed a Notice of Cross-Appeal in challenge of some aspects or parts of the decision of the lower Court. These aspects will be fully addressed in the ensuing brief of argument. It did not file any Cross-Appellant’s Brief; it made no mention of the Cross-Appeal at the hearing of the Appeal; and never fully addressed any issues arising there-from in its Brief but made comments like – The lower Court held that the arrest and detention of the Appellants was unjustifiable. The holding, in itself, is a subject matter of Cross-Appeal. It also stated as follows in its conclusions at page 16 of the Brief – (a) In view of the 1st Respondent’s Cross-Appeal, the complaints of the Appellants are not maintainable. The second set of Respondents only filed 3rd -5th Respondents’ brief of Argument; they made no mention of a cross-appeal in the brief or at the hearing of the Appeal. However, they faulted the decision of the Court of Appeal in the brief. The Appellants, in their Reply Brief, referred the Court to the Notice of Cross-Appeal attached to their pending Motion for leave to cross appeal and submitted that they “smuggled in arguments regarding misapprehension of facts” which, is in breach of Order 6 rule 6 (2) of this Court’s Rules that provides – Arguments in respect of a Cross-Appeal or in respect of a Respondent’s Notice may be included by any Party in his brief of the original appeal without special application. Such an inclusive brief shall clearly state that it is filed in respect of both the original appeal and Cross -Appeal or Respondent’s Notice. I went through the main Court File, and discovered that the two sets of Respondents filed Applications for extension of time within which to cross-appeal against the Judgment of the Court of Appeal, etc. The first Appellant’s Motion on Notice was filed on 14/7/2014, the Motion of the third to fifth Respondents was filed on 24/9/2013 However, there is no indication that the Applications had been granted or that the Respondents filed their Notices of Cross Appeal. Be that as it may, even if the Notices of Cross Appeals had been filed, it is settled that an Appeal and a Cross Appeal are separate Appeals, therefore, the two sets of Respondents had to comply with Order 2 Rule 6 (2) of the Rules of this Court by stating clearly that the Briefs they filed in this Appeal covered both the Appeal and Cross Appeal. In this situation, where the Respondents did not file a separate Cross-Appellants’ Briefs and did not state in their Respondents’ Briefs that the brief they filed is in respect of the Appeal and Cross-Appeal, it goes without saying that arguments touching on the Cross-Appeal will be discountenanced, and this Judgment is purely for the Appeal.” Per AUGIE, J.C.A

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHTS: WHETHER ARTIFICIAL PRSONS CAN CLAIM THAT THEIR FUNDAMENTAL RIGHTS HAVE BEEN INFRINGED UPON

“I entirely agree that the 1st appellant, being an artificial person cannot maintain an action for violation of its fundamental human rights because the 1st appellant is incapable of being arrested and detained. The 2nd – 5th appellants, being natural persons are the ones who can institute an action for the enforcement of their fundamental human rights.” Per AKA’AHS, J.S.C.

DAMAGES: FUNDAMENTAL RIGHTS: FACTORS TO BE CONSIDERED IN CALCULATING DAMAGES IN FUNDAMENTAL RIGHTS MATTERS

“It is to be noted that all the appellants as applicants were well captured on record at the Court of trial all laying claims jointly and so the strangeness that when the Court of Appeal made its findings that their fundamental rights were infringed upon by the respondents, they side lined 5th appellants and the explanation is not nearby. The Court of Appeal found that there was breach of the rights of the appellants pursuant to Sections 35(1) and (6) and 46 of the 1999 Constitution (as amended) but it left out 1st appellant as an artificial person on the ground that it cannot suffer the same injuries as the human agents, that is correct but in respect to the human agents the Court below omitted 5th appellant in the damages of N750,000 to each of 2nd -4th appellants even though all the appellants without exception prayed for the aggravated damages. This Court has in a long line of cases stated the policy for award of damages where the infringements of the fundamental rights of a claimant (s) are established. See Jim-Jaja v COP Rivers State (2013) 6 NWLR (Pt. 1350) 225 at 243 – 245 “In the statement of facts in support of his application, the appellant, as applicant in the trial Court, claimed inter alia: “Appellant’s arrest and detention since 23rd September, 2002 without any bail or charge is unlawful, illegal and ultra vires the powers of the respondents” The above facts were not disputed nor can it be said that the appellant was arrested and detained on the allegation of forged certificate of occupancy. His arrest and detention were predicated on his failure to repay the loan he obtained from the 3rd respondent. If the appellant’s arrest and detention resulted from the allegation of forgers, which is a crime, the appellant could not have been released on bail on a mere undertaking to repay the loan, a civil matter. This claim by the 3rd respondent is in conflict with the fact as stated in the 3rd respondent’s brief. The criminal allegation of forgery was a ploy by the respondents to settle a purely civil matter- the recovery of the loan obtained from the 3rd respondent by the appellant. It is unfortunate that the 1st and 2nd respondent at the instance of the 3rd respondent, on the pretext of investigating a case of forgery, converted their office into a debt recovery outfit. There is no appeal against the finding of the lower Court that the appellant’s right was violated by the respondents thereby setting aside the contrary decision of the trial Court. In any case, the 3rd respondent who did not cross-appeal nor did he file a respondent’s notice cannot raise the issue of fraud which did not arise from the ground of appeal. However, the Court below erred when it refused to award damages on the ground that the appellant did not claim damages for two reasons: 1. Appellant claimed the sum of N2 million as damages against the respondents for unlawful arrest and detention. That claim, verified on affidavit evidence was not really contested. It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged, contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Court in the determination of the dispute before it. See Chabasaya v Anwasi (2010) 3 – 5 SC 208, Though the appellant did not specifically ask for exemplary damages for the violation of his right by the respondent, the Court below ought to have awarded him the damages he claimed and proved. 2. Section 46 of the Constitution of the FRN confers on a High Court special jurisdiction to deal with cases of violation of fundamental right of any person within the borders of this country. Section 46(2) provides. – S.46(2) subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this section 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. The Chapter referred to in the provision reproduced above is Chapter IV dealing with fundamental rights. Section 35 (1) guarantees to every person his/her personal liberty. The appellant’s case does not fall within the exceptions numbered (a) – (f) in Section 469 of the Constitution. The respondents did not attempt to bring their case within any of the exception. Section 35(6) provides: “5.35(6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority…” 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 matter 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, the justices of Court 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 N2m 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 5. 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 relating 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 v.12 of the Supreme Court Rules, I order the respondents, jointly and severally to pay to the appellant the sum of N2m as damages/compensation for a violation of his fundamental right in arresting and detaining him unlawfully. No order as to cost.” I have quoted extensively the case of Jim – Jaja (supra) since it is apposite and all forms with what we are grappling with now. I cannot resist the dicta of my learned brother, Muntaka -Coomassie JSC (of blessed memory) in the same Jim-Jaja supra thus: “The lower Court found as follows: per the lead judgment of Eko, JCA at pp 102 – 103 of the record. The appellant apparently was in police custody at the time his application for leave to enforce his fundamental right was filed on 8th October 2002. Even if I believe that appellant was re-arrested on 26th September, 2002 for failing to pay back his debt to 3rd respondent; as the 3rd respondent wants it believed, this admission further corroborates the malicious and capricious harassment of the appellant by the police at the instance of the 3rd respondent to break him down and compel him to pay his debts to the 3rd respondent. The learned trial Judge was clearly in error in holding as he did, that because the appellant suffered detention for less than 24hrs, he was not unlawfully imprisoned. For the monstrous and capricious behavior exemplary damages would have been awarded to demonstrate that the law, indeed the fundamental rights provisions of the constitution cannot be broken with impunity. For this lawless and high-handed conduct of the respondents one would (sic) invoke the principles for award of exemplary damages laid down in Rookers v Barnara (1964) 1 ALL ER 367 at 411 and applied in Drake v Evengelous (1978) 2 ALL ER 437.” I am at one with the appellants that the failure to award damages to the 5th appellant by the Court below is an error of law and a miscarriage of justice needing the clear intervention of this Court. That omission of award of damages to the 5th appellant was a misapplication of the law and a remediation is called for. See Udengwu v Uzuegbu (2003) 13 NWLR (Pt. 836) 136 at 152. Having stated the above, I agree with the findings of the Court below that there was breach of the fundamental human rights of the appellant but our area of departure are with the exclusion of 5th appellant in the award and the award of N750,000.00 is low and so the award of damages to each and every one of the appellants 5th would be set N1,000,000.00 (One Million Naira).” Per PETER-ODILI, J.S.C.

WORDS AND MEANING: “DAMAGES”

“Damages have been defined as “the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another, whether that act or default is a breach of contract or a tort.” It could also be expressed as “the recompense given by process of law to a person for the wrong that another has done him.” (See Halsbury Laws of England: 3rd Edition Vol. 11 at 216); Machine Umudje & Anor v Shell BP Petroleum Development Company Nig. Ltd. (1975) LPELR – 3375(SC), R.O Iyere v. Bendel Feed & Flour Mill Ltd. (2008) 18 NWLR (pt 1119) 300.” Per OKORO, J.S.C.

In The Court of Appeal of Nigeria

On Thursday, the 7th day of February, 2013

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): The Appellants as Applicants in the Federal High Court before Hon. Justice B. F. M. Nyako brought an application pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement procedure) Rules, 1979 seeking for nine reliefs against the Respondents after the Appellants had been arrested and detained from the 9th of September, 2004 to 10th September, 2004 at Lugbe Police station, Abuja. The 2nd to 4th Appellants complained that they were only released after they were compelled by the 3rd Respondent, at the instance of the 2nd Respondents to write an undertaking to refund the sum of N600 million to the 2nd Respondent within some number of days. Their application was initiated by a petition written on 5th July 2004 (Exhibit ‘EFCC 1′) by the 2nd Respondent to the 4th Respondent who was the Chairman of the 3rd Respondent upon a complaint that the sum of N2.34 (Two Billion, Thirty-Four million Naira) by the Federal Government of Nigeria as advanced payment through known Guarantors Banks including the 1st Appellant, for dredging of the Lower Niger River in 1998/1999 in which the 2nd Respondent became the beneficiary, was irregularly released by the banks (including 1st Appellant) to the contractors in violation of the terms of the advance payment guarantee entered into by the banks.

The reliefs sought by the Appellants from the lower court at pages 43 – 44 of the Record of Appeal are as follows:-

1. “A declaration that the claim of the 2nd Respondent to a refund of the sum of N500 million for an alleged non-performance by Julius Berger Nigeria Plc and Nigeria Westminister Dredging and Marine Limited of a contract for the dredging of the lower River Niger under an Advance Payment Guarantee issued by the 1st Applicant in spite of disputed claims of Julius Better Plc and Nigerian Westminister Dredging and Marine Ltd against the 2nd Respondent is a dispute referable to the civil court only in accordance with the Constitution.

2. A declaration that the 2nd Respondent having returned the Advance Payment Guarantee issued by the 1st Applicant is no more entitled to ask the 1st Applicant to refund any money.

3. A declaration that the dispute as to who is owing who as between the 2nd Respondent and Julius Berger Nigeria Plc and Nigeria Westminister Dredging and Marine Limited is a civil and not a criminal matter.

4. A declaration that the 3rd – 5th Respondents have no jurisdiction to arrest or detain the 2nd – 5th Applicants over a contractual matter or at all,

5. A declaration that the arrest and detention of the 2nd – 5th Applicants between 9th September and 10th September, 2004 at Lugbe Police Station and the Airport Police Station, Abuja by the 3rd – 5th Respondents at the instance of the 2nd Respondent constitutes a violation of the 2nd – 5th Applicants’ fundamental rights guaranteed under sections 34, 35 and 41 of the 1999 Constitution and Articles 1, 4, 5, 6 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria 1990 and is therefore illegal and unconstitutional.

6. A declaration that the action of the 3rd – 5th Respondents forcing the 2nd Applicant to issue an undertaking to pay the sum of N600 Million within a month as a condition for bail of the 2nd – 5th Applicants after detaining them for two days is unknown to law, irregular, unconstitutional, null and void.

7. An order setting aside the undertaking extracted forcefully and under duress from the 2nd Applicant on the 10th September, 2004 by the 3rd – 5th Respondents as a condition for the bail of the 2nd – 5th Applicants for being unknown to law, unconstitutional, irregular, null and void.

8. An order of injunction restraining the Respondents either by themselves, their agents, privies, assigns or anybody howsoever described from further arresting, detaining, threatening, harassing or molesting the Applicants over the contractual transaction between the 2nd Respondent and the 1st Applicant’s customers or enforcing the undertaking issued by the 2nd Applicant or demanding or further demanding from the 1st Applicant.

9. Aggravated and exemplary damages against the Respondents jointly and/or severally in favour of each of the Applicants for the unlawful and unconstitutional arrest and/or detention of the Applicants as claimed in the statement of facts attached to this application.”

The 2nd Respondent filed a preliminary objection praying the court to strike out its name from the suit on the ground that there was no allegation disclosed by the Applicants that the 2nd Respondent has infringed or about to infringe the Appellants’ fundamental human rights. The learned trial Judge consolidated both the preliminary objection and the main application whereby she struck out the name of the 2nd Respondent from the suit and dismissed the entire application of the Appellants on the 29th of August, 2005.

The Appellants being dissatisfied with the judgment of the court at pages 192 – 206 of the Record of Appeal filed a Notice of Appeal against the whole decision of the court and later an Amended Notice of Appeal pursuant to the order of this Honourable. Court on 16th April 2012, containing six grounds of appeal; to wit:-

1. The learned trial Judge erred in law when he struck out the 2nd Respondent as a party to this suit.

2. The learned trial Judge erred in law when he held that there was no evidence before him showing that the 2nd Respondent did more than merely lodging a complaint against the Appellants to the 3rd – 5th Respondents.

3. The learned trial Judge erred in law when he struck out reliefs 1, 2, 3, 5, 7 and 8 in the Applicants Motion on Notion on the ground that they are not cognizable under the Fundamental Rights Enforcement Procedure Rules.

4. The learned trial Judge erred in law when he held that the 3rd – 4th Respondents have a right to arrest and detain the Appellants in this case.

5. The learned trial Judge erred in law when he held that the case before him borders on a contract scam to warrant the arrest and detention of the Appellants by the Respondents,

6. The learned trial Judge erred in law in dismissing the Appellants case in its entirety.

The learned counsel for the Appellant Oluwale Aladedoye Esq. in Amended Brief of Argument deemed as properly filed and served 19/11/12 formulated four issues for determination namely:-

(i) Whether the learned trial Judge was not wrong to have struck out the 2nd Respondent as a party to this suit having regard to the materials and evidence before the court. (Grounds 1 & 2).

(ii) Whether the learned trial Judge was not wrong to have struck out reliefs 1, 2, 3, 6, 7 and 8 (which are declaratory and injunctive reliefs) in the Appellants’ motion on Notice on the ground that these reliefs are not cognizable under the fundamental rights enforcement procedure rules having regard to the materials before the court. (Ground 3).

(iii) Whether the learned trial Judge was not wrong to have justified the arrest and detention of the Appellants by the Respondents on the ground that the case before him borders on contract scam having regard to the materials and evidence placed before the court. (Grounds 4 & 5).

(iv) Whether the learned trial Judge was not wrong to have dismissed the Appellants’ case having regard to the materials and evidence before the court. (Ground 6).

Folabi Kuti Esq. of learned friend to the 1st Respondent in his Amended Brief of Argument formulated two issues for determination:-

a) Whether in the circumstances of this case the learned trial Judge was right in holding that the declaratory reliefs sought by the Appellants/Applicants were not cognizable under the Fundamental Rights Enforcement Procedure Rules? (Ground 3 of the Notice of Appeal).

b) Whether there was any evidence to support the findings of the learned trial Judge that the instant case borders on a contract scam, thus warranting the arrest and detention of the Appellants by the 3rd – 5th Respondents?

(Ground 4 of the Notice of Appeal),

The 2nd Respondent, by his learned counsel, Teniola Ogudipe Esq. in his Amended Brief of Argument also distilled two issues for determination viz:-

i) Whether the learned trial Judge was right to have upheld the 2nd Respondent’s preliminary objection and strike out the name of the 2nd Respondent as a party to the suit. (Distilled from Grounds 1 & 2),

ii) Whether the Appellants application before the lower court was incompetent in its entirety by combining claims under enforcement of fundamental right with that of contract. (Distilled from Grounds 3, 6).

On the part of the 3rd, 4th and 5th Respondent, in the brief of argument, settled by Chief Godwin Obla (with John O. Ali Esq) also couched two issues for determination thus:

a. Whether or not the Principal Claims of the Appellants before the lower court are cognizable in an action under the fundamental Rights (Enforcement Procedure Rules) 1979.

b. Assuming but not conceding that the Appellants, action was commenced under due process of law, whether there was indeed a violation or infringement of the fundamental rights of the Appellants.

The issues adumbrated by the Appellants in their briefs are more embracing. However, I rather couch them into three as follows:

ISSUE 1

Whether the learned trial Judge was right to have struck out the 2nd Respondent as a party to this suit.

ISSUE II

Whether the learned trial Judge was right to have struck out reliefs 1, 2, 3, 6, 7 and 8 in the Appellants’ motion on Notice on the ground that they are not cognizable in an action under the Fundamental Rights (Enforcement Procedure Rules) 1979.

ISSUE III

Whether the trial Judge was right to have dismissed the Appellants’ case on the ground that there was no violation or infringement of the Appellants’ fundamental rights.

ISSUE I

Whether the learned trial Judge was right to have struck out the 2nd Respondent as a party to this suit

The main plank of Appellants’ counsel’s argument on this issue is that the learned trial Judge ignored the unchallenged uncontradicted evidence before him and limited himself only to Exhibit ‘EFCC 1’ in striking out the 2nd Respondent from the suit. He referred to paragraphs 24, 25, 26 and 27 of the affidavit in support of the Appellants application at pages 49 – 50 of the Record of Appeal) and paragraph 5 (1) of the deposition of the 3rd – 5th Respondents in their counter-affidavit (at page 77 of the Record of Appeal) which were unchallenged because the 2nd Respondent failed to file any counter-affidavit in opposition to the depositions in those affidavits. He submitted, citing, the relevant authorities, that it is settled law that where facts in an affidavit remain unchallenged and uncontroverted, the court is bound to accept those facts as established and deemed to be admitted.

Learned counsel noted that the learned trial Judge at pages 201 – 202 of the Records in her findings agreed that the 2nd Respondent’s complaint led to the arrest and detention of the 3rd Respondents and that the onus was on the detaining authority to justify the arrest but that in a dramatic twist at page 204 of the Records, he later held that from the contents of Exhibit ‘EFCC 1′, there is no evidence to show that the 2nd Respondent did more than lodge a complaint and therefore its name was erroneously struck out. Relying on the authorities of NKPA v. MKUME (2001) 6 NWLR [Pt.710] 543 at 560 (para. A) and OKWONKWO v. OGBOGU (1996) 5 NWLR [pt.449] 420 at 433, he submitted that any person, like the 2nd Respondent who sets into motion a ministerial act instead of a judicial one is liable for wrongful act resulting therefrom.

It is counsel’s argument relying on UDENGWU v. UZUEGBU (2003) 13 NWLR [pt.836] 136 at 152 (per Uwaifo JSC) that the conclusion of the learned trial Judge to have struck out the 2nd Respondent despite the unchallenged averments in the affidavit which showed that it instigated the arrest and detention of the Appellants is perverse and ought to be set aside.

The 2nd Respondent on its preliminary objection has argued that there were no facts in the Applicants’ application to sustain a cause of action against her to warrant filing a counter-affidavit as there is no rule that makes it mandatory for filing a counter-affidavit to an application. He relied on EJEFOR v. OKEKE (2000) 7 NWLR [pt.665) 363 at 380 para A – B. He maintained that the mere repetition of the phrase “at the instance of the 2nd Respondent” in paragraphs 26 and 27 of affidavit in support of the Appellants’ motion does not show that the 2nd Respondent went beyond merely lodging a report to the appropriate authority to warrant being liable for the detention and arrest of the Appellants. The 1st and 3rd – 5th Respondents did not re-act to this preliminary objection.

The Appellants’ action in the lower court is predicated upon the complaint in Exhibit ‘EFCC 1′ written by 3rd Respondent complaining about irregular payment of some money by the Appellants to contractors which eventually led to their arrest and detention. As a general rule, an action for false imprisonment would lie against a party instrumental to the incarceration of the plaintiff quite apart and separate from whatever action against such a party who actually physically restrained him. However, it is the principle of law that a person is not ordinarily responsible for the detention of another simply because he makes a complaint to the appropriate law enforcement authorities.

To succeed against a defendant in an action for false imprisonment, the plaintiff must show that the defendant did not only set the law into motion by lodging a complaint to the appropriate authorities, but he was actively instrumental to his arrest and detention. See OKWONKWO v. OGBOGU (1996) 5 NWLR [pt.449] 420 at 433; EJEOFOR v. OKEKE (supra); MCLEANS v. JENNINGS (2003) 3 NWLR [pt.808] 470 at 484 para E – H, 485 – 486 paras G – R.

The onus rests squarely on the party alleging false imprisonment to show that the defendant, that is, the party who lodged a complaint, did more than merely making a report to the authorities, but that he took further overt steps and actively participated and/or directed and influenced the arrest and detention of the plaintiff.

In the case at hand the relevant deposition in the Affidavit of the Appellants in support of their application for the enforcement of their fundamental rights are paragraphs 24, 25, 26, and 27 (at pages 49 – 50 of the Record of Appeal –

“24. Subsequently, the 3rd – 5th Applicants and myself were invited by the 3rd Respondent along with officials of the two contractors based on a complaint by the 2nd Respondent of non-performance of the contract by the contractors.

25. At the meeting held at the 3rd Respondent’s office in Abuja we reiterated their position that the 1st Applicant has no obligation in respect of the Advance Payment Guarantees some of which have been returned and if there must be any obligation, the conflicting claims of the 2nd Respondent on the one hand and the contractors on the other hand must be resolved. We also pointed out that the matter was purely civil arising out of contract.

26. However, the 3rd – 5th Respondents refused to consider our position rather at the instance of the 2nd Respondent; we were detained at the Lugbe Police Station and the Airport Police Station both in Abuja from 9th September, 2004 to 10th September, 2004.

27. That the 3rd – 5th Respondents at the instance of the 2nd Respondent insisted that we admit liability in respect of the 2nd Respondent’s claim and also give an undertaking that we will pay the sum of N600 Million being the sum total of the money paid to the two contractors as a condition for granting us bail.”

It is re-stated that these paragraphs were unchallenged by the 2nd Respondent as they failed to file counter-affidavit.

The general settled principle of law, as rightly submitted by the Appellants’ counsel in his brief is that where evidence is given and some allegations are made against someone who has the opportunity of repudiating same but chooses to ignore them, or treat same with levity, then the court or tribunal or whichever body that is seized of the proceedings would act on what it has in its possession. See the cited case of OKEKE v. LPDC (2005) 15 NWLR [pt.949] 1 at 523 – 533. In such a circumstance where the facts in the said affidavit are unchallenged or uncontroverted, the court is duty bound to accept those facts as established and give full effect and value to such averments as those facts are deemed admitted. See EGBUNA v. EGBUNA (1989) 2 NWLR [pt.106] 773; BOSSA v. JULIUS BERGER PLC (2005) 15 NWIR [pt.948] 409 at 428; UNIBIZ LTD v. CBL (2005) 14 NWLR [pt.944] 47 at 59; THE HONDA PEACE LTD v. GLOBE MOTORS LTD (2005) 4 NWLR [pt.945] 275 at 293-294.

However, it is equally true that there is no rule of law or practice that makes it mandatory for the filing of a counter-affidavit to counter the averments in an affidavit in support of an application. If the facts in an affidavit are presumed to be true, but when taken together are not sufficient to sustain the prayers of the applicant, it would be needless for the respondent to file an affidavit in opposition. See ORUNOLA v. ADEOYE (1995) 6 NWLR [pt.401] 338 at 553 paras A – B; EJEFOR v. OKEKE (supra).In response to paragraphs 24, 25, 26 and 27 of the Appellants’ affidavit already quoted above, the 3rd, 4tn and 5th Respondents, the detaining authorities, filed a joint Counter-Affidavit and a Further Joint Counter-Affidavit in opposition to the Appellants’ Affidavit in support of their application. Paragraph 4(a) of the Further Joint Further Affidavit; deposed to by one Chide Okoroma Esq., the head of the Legal department of EFCC (3rd Respondent) is important. It states –

“That the 2nd, 3rd and 4th Applicants were detained and kept in a known and conducive cell of the 3rd Respondents (sic) for less than 24 hours upon reasonable suspicion of their having committed an economic and financial crime and not at the prompting, instigation or instance of the 2nd Respondent.”

This deposition is a positive, direct and a frontal challenge to the allegation that the Appellants were “at the instance of the 2nd Respondent…..detained” Thus, the 3rd – 5th Respondents categorically denied the averment in the Appellants affidavit in support of their application that the 2nd Respondent instigated the detention of the Appellants. The material averment in the Appellants affidavit concerning the allegation that 2nd Respondent played an active part in the detention of the Appellants has been controverted. It is apt to state at this juncture that it is when in a proceedings, material facts in an affidavit are completely left unchallenged or uncontradicted by way of filing a counter-affidavit in the proceedings that those facts remain undisputed and are thus deemed admitted. The assertion that the 2nd Respondent insisted on the detention of the Appellants is very material and having been disputed, the onus still remains with the Appellants to substantiate the allegation in their affidavit. It then behoves on the Appellants to have filed a Further Affidavit to depose to whatever facts they have, if any, to prove that the 2nd Respondent was actively instrumental or it effectively participated in the detention and subsequent actions against the Appellants. The phrase “at the instance of the 2nd Respondent” simplicita in my view does not conjure any infraction. The mere repetition of the phrase therefore does not discharge the onus of proof placed on the Appellants. More importantly, where the law enforcement authorities, like the 3rd – 5th Respondents herein, stated that whatever action they took was completely on their own initiative without undue influence or coercion, if such action thereafter proved to be detrimental, the complainant cannot be made liable for false imprisonment. See the cited case of IWUNWAH v. IWUNWAH (1999) 13 NWLR [pt.635] 425 at 431 para D – G.

On the issue submitted by the Appellants’ counsel that the 2nd Respondent ought to have set in motion a judicial act instead of a ministered act, it is pertinent to note that by Section 5 (1) (i) of the material EFCC Act; 2002 (now S.6 (b) of EFCC Act 2004) the Commission is responsible for the investigation “for the determination of the extent of financial loss and such other losses by government, private individuals or organization” Section 6 of Act also empower 3rd Respondent to investigate whether any person has committed any offence. A careful perusal of the heading of Exhibit EFCC 1 titled

“COMPLANT

FOR THE RECOVERY OF ADVANCE PAYMENT MADE BY GOVERNMENT TO, CONTRACTORS THROUGH THEIR BANKS/GUARANTORS REGARDING THE LOWER RIVER NIGER DREDGING CONTRACT: 1998/1999”

and the totality of the contents the letter which ended by stating “That the claim or recovery sought by the Authority is now in the sum of N2.34bn (plus accrued interest from the time deposit was made till to date” justifies the report of the Appellants to the 3rd – 5th Respondents. (see pages 81 – 87) It then becomes the duty of the 3rd – 5th Respondents to investigate and determine whether there is any suspicion of commission of any crime to warrant the arrest and detention of the Appellants. In ONYEDINMA v. NNITE (1997) 3 NWLR (pt.493) 363 at 345 the court held that where a respondent lodged a complaint to the police and left them on their own to investigate and conclude and such conclusion resulted in the arrest of the applicant, action against such a respondent was held not to lie.

In the absence of any evidence to prove the 2nd Respondent went beyond merely lodging a complaint to 3rd Respondent concerning the recovery of the sum of N2.034bn the 2nd Respondent cannot be held responsible for the arrest and detention of the Appellants.

In the circumstances, I hold that the learned trial Judge was right when he upheld the preliminary objection of the 2nd Respondent by striking out its name as a party to the suit on the ground that there was no evidence to show that it actively caused the arrest and detention of the Appellants. The court’s finding in this regard is unassailable and have been found not to be perverse. In such a situation, this Honourable Court cannot interfere with such a finding of facts. See AJAYI v. TEXACO (NIG) LTD (1987) 3 NWLR (Pt.62) 577. Consequently, I resolve issue one in favour of the 2nd Respondent.

ISSUE 2:

Whether the learned trial judge was right to hove struck out reliefs 7, 2, 3, 6, 7 and 8 in the Appellants Motion on Notice on the ground that they are not cognizable in an action under the fundamental Rights (Enforcement Procedure Rules) 1979.

The reliefs sought by the Appellants have been reproduced at the commencement of this judgment.

In the main, it is submitted for the Appellants that the principal claim of the Appellants is for the enforcement of their fundamental human rights and though reliefs 1, 2, 3, 6, 7 and 8 are declaratory and injunctive reliefs, they can be sought and obtained to enforce the fundamental rights of the Appellants. He attacked the findings of the learned trial Judge at pages 205 – 206 of the Records on this issue. He argued that the totality of the grounds for the reliefs sought and the facts relied upon ought to be put into consideration in the determination of whether these reliefs can be sought and obtained through the Fundamental Rights (Enforcement Procedure) Rules 1979. He cited the Supreme Court case of SEA TRUCKS (NIG) LTD v. ANIGBORO (2001) 2 NWLR [pt.696] 159 at 175. It is his conclusion that reliefs 1 -3, 6, 7 and 8 do not have anything to do with contract scam but declaration that the dispute between the Appellants and 2nd Respondent does not qualify as a crime to warrant their arrest and detention and the intervention of 3rd – 5th Respondents.

On his part, Foladu Kuti Esq. for the 1st Respondent on issue one referred to the 35 paragraphed affidavit of the Appellants and the counter-affidavit of the 3rd – 5th Respondents and argued that a community reading of the reliefs sought and the grounds upon which the reliefs are sought show clearly that the Appellants action is founded on contact and that reliefs 4 – 5 are merely ancillary items to the principal reliefs sought in reliefs 1 – 3. He submitted that complaints arising from or principally founded on a breach of contract like the Appellants’ case are not within the purview of Chapter IV of the Constitution which can be entertained under the Fundamental Rights Enforcement Procedure Rules. In support, he cited the following authorities – HOLEC PROJECTS NIG LTD v. DAFESON INTER’L LTD & ANOR (1999) 6 NWLR [pt.607] 490; SOKOTO LOCAL GOVT v. AMATE (2001) 12 WRN 102, (2001) 1 NWLR [pt.714] 224; ALEXANDER MADIEBO v. GODWIN NWANKWO (2001) 29 WRN 137; SEGUN OLU AYEWA v. UNIVERSITY OF JOS (2000) NWLR [Pt.15] 2658, (2000) 6 NWLR [pt.633] 16; JOSEPHIN OGBENI v. HANOBA MEDICAI CENTRE (2000) 2 CHR 67; MOHAMMED v. IBRAHIM (1999) 1 FHCLR 115; EGBE v. BELGORE (2004) 8 NWLR [pt.875] 335.

Termiola Ogundipe (Miss), for the 2nd Respondent also submitted that reliefs 1, 2, 3, 6 and 7 were declarations inviting the court to pronounce on the rights and obligations in connection with a contractual transaction which execution was the subject of a dispute hence such reliefs cannot be accommodated under the FREPR 1979 which Rules are strictly for breach of fundamental rights within the confines of the Chapter 4 of the 1999 Constitution. According to him, also, reliefs 4 and 5 are ancillary to the main and substantive claims and cannot stand alone as reliefs 1, 2, 5, 6 and 7 are liable and were properly struck out by the lower court. He relied mainly on HOTEC PROJECIS NIG LTD v. DAFESON INT’L LTD (1996) 6 NWLR (Pt.607) 490 at 499; EJEFOR v. OKEKE (2000) 7 NWLR (pt.665) 363 at 377 – 378 para G -A.

ISSUE II

ISSUE 2, was argued as issue one in the joint brief of argument of 3rd, 4th and 5th Respondents by their learned counsel. In a similar manner with that of the 2nd Respondent, he submitted that where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil and common law nature like the Appellants case, it is incompetent to constitute the claim as enforcement of a fundamental right, rather the claim ought to have commenced by way of summons. He cited similar authorities in his brief of argument, including GAFAR v. GOVT OF KWARA STATE & 2 ORS (2007) 4 MJSC 96 AT 99 – 100.

The law is settled that for a claim to qualify as falling under Fundamental Rights (Enforcement Procedure) Rules it must be clear that the principal relief sought by the applicant is for the enforcement of a fundamental right and not to redress a grievance that is ancillary to the principal relief which is not itself ipso focto a claim of fundamental right.

Thus when an application is brought under the Fundamental Enforcement Rights rule, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights should be the main claim and not an accessory claim. Where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim, the jurisdiction of the court cannot be properly exercised as it will be incompetent. The court must thus ensure that the enforcement of the fundamental rights under Chapter IV of the Constitution of Federal Republic of Nigeria 1999 is the main claim and not the ancillary claim. Any relief outside the scope of the rights under the provisions of Chapter IV of the Constitution is without jurisdiction, unconstitutional and void. There are plethora of cases to this effect. Some of the apex court classic cited cases are – TUKUR v. GOVT OF GONGOLA STATE (1989) 4 NWLR [pt.117] 517 at 556 – 557; SAUDE v. ABDUILAHI (1989) 4 NWLR [pt.116] 387; DANGOTE v. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (pt.717) 132 at 152; FEDERAL REPUBLIC OF NIGERIA v. IFEGWU (2003) 15 NWLR [Pt.842] 113 at 132 – 135; GAFAR v. GOVT OF KWARA STATE & ORS (1997) 12 NWLR [pt.531] 29.

The pertinent question to be asked at this juncture is what is the principal claim of the Appellants in this action? In other words, what actually is their grievance? What can be said to be the cause of action that made them to go to court to seek for a redress? “Cause of action” has been variously defined as a fact or set of facts which establish or give rise to a right of action; a factual situation which gives a person a right to judicial relief. It is the plaintiff’s case that determines the cause of action.The facts relevant to this case are clear as garnered from the depositions in the affidavit in support of the Appellants’ application.

A cursory look at the 35 paragraph of the affidavit in support of this application shows that the paragraphs can be segmented into three categories. Paragraphs 1 – 11 describe the parties. The depositions in paragraphs 12 – 23 depict the summary of the facts leading to the invitation of the Appellants by the 3rd – 5th Appellants. It is re-stated that the invitation is upon a petition by 2nd Respondent alleging a breach of contract by the 1st Appellant, 2nd Appellant being the Managing Director of 1st Appellant, 3rd Appellant its Legal Adviser, 4th Appellant its General Manager while the 5th Appellant was the Manager and Account Officer of the 1st Appellant. This portion reveals the claims and counter-claims of the parties to a contract as represented by the Appellants. The last segment, paragraphs 24 – 34 represent the grievance of the Appellants. I do not regard it necessary to reproduce the entire affidavit. However, in a bid for understanding, the said paragraphs of the last segment including the preceding paragraph 23 are hereby reproduced –

23. By its letter of 22nd June, 2004 the 1st Applicant denied any entitlement of the 2nd Respondent to any balance on the premise that the advance payment made by the PTF had been duly disbursed to the companies for the performance of the contract.

24. Subsequently, the 3rd – 5th Applicants and myself were invited by the 3rd Respondent along with officials of the two contractors based on a complaint by the 2nd Respondent of non-performance of the contract by the contractors.

25. At the meeting held at the 3rd Respondent’s office in Abuja we reiterated their position that the 1st Applicant has no obligation in respect of the Advance Payment Guarantees some of which have returned and if there must be any obligation, the conflicting claims of the 2nd Respondent on the one hand and the contractors on the other hand must be resolved. We also pointed out that the matter was purely civil arising out of contract.

28. That having being in detention for two days and being apprehensive of further detention, we signed the stated undertaking so that we could regain our liberty.

29.We were thereafter released on bail with a threat of further arrest and detention if the undertaking above is not fulfilled by the end of September 2004.

30. That we were detained under a most dehumanizing condition and subjected to mental and physical torture.

31. That at the Lugbe and Airport / Police stations we were cramped into small cells with no window and were beaten by wild mosquitoes.

32. That we were unable to sleep as there were no beds or mattresses in the cells.

33. That we were made to starve during the detention as our families are not resident in Abuja while the Respondents did not offer us food.

34. That I am informed by our counsel, Chief Afe Babalola, SAN in his Chambers and I verily believe him of the following:

(i) That we have committed no offence to warrant our arrest and or detention:

(ii) That the 3rd Respondent is not a debt recovery agent and can therefore not recover debt if any on behalf of the 2nd Respondent;

(iii) That the complaint of the 2nd Respondent is purely civil matter over which the 3rd Respondent has no power.

(iv) That our arrest and or detention is an infraction of our fundamental rights as enshrined under the Constitution and the African Charter on Human Rights;

(v) That leave of this Honourable Court is required to enforce our fundamental rights.

(vi) That unless this Honourable Court orders a stay of further action by the Respondents in respect of this matter, the Respondents will re-arrest and detain us thereby further infringing on our fundamental rights.

(vii) That court processes are very difficult to serve on all the Respondents because of the tight and heavy security apparatus surrounding their respective offices and that service on the 2nd Respondent by Courier and on the 1st, 3rd, 4th and 5th Respondents by service on any officer in the office of the 1st and 3rd Respondents respectively will be sufficient and adequate service on all the Respondents.

(viii) That the Respondents will not be prejudiced if this application is granted.

(ix) That it is in the interest of justice to grant this application.

(See pages 49 – 51 of the Record of Appeal)

The depositions in the Reply to Joint Counter-Affidavit of 3rd, 4th and 5th Respondents at pages 142 – 145 of the Record of Appeal are also important particularly paragraphs “11” and “12”

“11. That myself and my co-Applicants made full disclosure to 3rd – 5th Respondents on the transactions, supported with documents and as such they knew or were supped to know that there was no element of criminality anywhere in the whole transactions.

12. That the 3rd – 5th Respondents are playing the role of a debt collector/recovery agent at the institution of the 2nd Respondent in a purely civil contractual affair and they know it.”

These are the events that led to the reliefs sought by the Appellants which I had earlier reproduced at the commencement of this judgment. In order to determine whether or not reliefs 1, 2, 3, 6, 7 and 8 struck out by the lower Court are cognizable under the Fundamental Procedure Rules Enforcement Procedure Rules; it is important to examine together the reliefs sought by the Appellants alongside the grounds for such reliefs and the facts relied upon. In my view, the totality of these three elements must be considered together so as to determine the principal relief sought by the Applicant. See AMUSAN v. ABIDEYI (2001) 6 NWLR [pt.710] 647 at 656. In the cited case of SEA TRUCKS (NIG) LTD v. ANIGBORO (2001) 2 NWLR [pt.696] 159 at 175, Ogundare JSC, held as follows: –

“I think the proper approach is to examine the reliefs sought by the Applicant, the grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right in the main …………redress may be sought through the Fundamental Rights (Enforcement Procedure) Rules 1979.”

For purpose of clarification, the grounds upon which the reliefs sought are also reproduced:-

(a) The detention of the Applicants between 9th September, 2004 to 10th September, 2004 at Lugbe Police station and the Airport police station, Abuja by the 3rd – 5th Respondents at the instance of the 2nd Respondent based on the unresolved dispute on the amount due to the contractors from the 2nd Respondent or vice-versa which is a purely contractual matter, constitutes a violation of the Applicants’ fundamental rights guaranteed under Sections 34, 35 and 41 of the 1999 Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act Cap 10 laws of the Federation of Nigeria, 1990 and is therefore unlawful and unconstitutional.

(b) The undertaking forcefully extracted from the 2nd-5th Applicants on the 10th September, 2004 by the 3rd – 5th Respondents at the instance of the 2nd Respondent the sum of N600 Million being the sum total of the money paid to Julius Berger Nigeria Plc and Nigerian Westminister Dredging and Marine limited on the contract for the dredging of the lower River Niger in 1998/99 which payment was guaranteed by the 1st Applicant is an infraction of the Applicants’ fundamental rights guaranteed by Section 38 of the 1999 Constitution in that the undertaking was obtained under duress and therefore unconstitutional, unlawful, illegal, null and void.

(c). The complaint of the 2nd Respondent to the 3rd Respondent and over which the 2nd – 5th Applicants were detained is purely a civil matter arising out of a live dispute on a contract between the 2nd Respondent, Julius Berger Nig Ltd. Nigerian Westminster Dredging and Marine Ltd and the 1st Applicant and is therefore outside the powers and duties of the 3rd Respondent.

(d) The 3rd Respondent is not a debt recovery agent and can therefore not recover any claim if any from the 1st Applicant on behalf of the 2nd Respondent.

(e) The Applicants are entitled to the remedy of injunction to restrain the Respondents jointly and/or severally and with their servants and agents from continuing in the unlawful violation of the Applicants’ constitutional and legal rights.

(f) The Applicants are entitled to remedy by way of damages against the Respondents either jointly or severally for the unlawful violation of their constitutional and legal rights which have resulted in serious injury and will result in more injuries to the Applicants. (pages 69 – 70 of the Records)

A calm consideration of the combination of the reliefs sought, the grounds for the reliefs and the facts relied upon by the Appellants shows clearly that the principal claim of the Appellants is predicated upon the breach of the fundamental right of the Appellants. More important for critical examination is the panoramic reading of the depositions in paragraph 34 (i) – (vi) of the Affidavit of the Appellants in support of the application; paragraphs 11 and 12 of their Further-Affidavit, and the reliefs sought (already reproduced above). The complaint of the Appellants is clear from the facts therein. In my view, the stand of the Appellants is simply that the issue between the parties borders on alleged breach of contract without any criminal connotation whatsoever hence their arrest and detention constitute a breach of their fundamental right. This is the fulcrum of their action in court. Their grievance or grouse is that they were wrongly arrested and detained for a civil matter. The reliefs sought without any doubt whatsoever are declarations seeking for the pronouncement of the court to the effect that the dispute between the Appellants and 2nd Respondent does not qualify as a crime to warrant their arrest and detention, or even any intervention of the 3rd – 5th Respondents because according to them, the issue between them does not have any criminal connotation and it does not border on a contract scam which the 3rd Respondent by Section 6 of the EFCC Act 2002 has power to investigate. I totally disagree with the submission of the learned counsel for the Respondents when they argued severally that the declarations sought by the Appellants were directly inviting the court to pronounce on the rights and obligations in connection with a contractual transaction. The execution of the contract is definitely not the subject of dispute before the lower court. The Appellants’ principal claim was not to enforce the sanctity of a contractual transaction. Rather their complaint, principally is that the relationship between the Appellants and the Respondents borders on a contractual matter and that being a civil matter, which is opposed to a criminal matter, they are not liable to be arrested and detained and thus the action of the 3rd – 5th Respondents constitute a breach of their fundamental right which they approached the court for a redress.

I am conscious of the fact that there was a contractual relationship between the Appellants and the 2nd Respondent, and it was in the bid to enforce the contract that Exhibit EFCC I was written by the 2nd Respondent to the 3rd – 5th Respondents. However, it is a misconception to hold that the principal action of the Appellants in court is found on this contract, as their main action in court is not in respect of the said contract but the complaint that the relationship between them is contractual and not criminal.

It is indeed the law, as rightly submitted by each of the learned counsel for the respondents, that where an alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to institute the claims as one for enforcement of a fundamental right. This truly states the law. However, the cases dealing with contract and civil common law matters heavily relied upon by the respondents in their briefs of argument are not apposite to the case at hand. They do not assist the Respondents hence they cannot derive any solace from them. An analysis of a few of these cases will illuminate my finding.

In TUKUR v. GOVT OF GONGOLA STATE (1989) 4 NWLR [pt.117] 517 at 547 the complaint of the Appellant is that he was deposed as an Emir without first hearing him and he was ordered to be detained. He filed an action in the Federal High Court contesting his deposition and fundamental right of fair hearing. It was held that his deposition as an Emir is a chieftaincy question which the Federal High Court by Section 7 of the Act No 13 of 1973 had no jurisdiction to entertain; and that his being heard in the process of that deposition is incidental. The raison d’etre of the Supreme Court was that his right of fair hearing herein was an accessory and protective right which should not lead its principal complaint about deposition into Federal High Court but rather, should follow the principal relief into the State High Court.

In TUKUR v. GOVT. OF TARABA STATE (1997) 6 NWLR [pt.510] 549 it was held by per Ogundare JSC at pages 575 – 577 thus:

‘”The principal complaint of the appellant in the whole case was his deposition as Emir of Muri, the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely accessory to his principal complaint. The proceedings by way of Fundamental (Enforcement Procedure) Rules are inappropriate in the circumstances…”

In PETERSIDE v. IMB (1993) 2 NWLR [pt.278] 712, the plaintiffs case commenced under the Fundamental Rights (Enforcement Procedure) Rules, 1979 for declaration that the letter dismissing him from the service of the bank was incompetent, void and of no legal effect as it violated the fundamental rights guaranteed to the applicant by Section 33 (1) of the Constitution of the Federal Republic of Nigeria. The court held that the Rules are not meant to enforce common law rights or mere contractual rights unless such common law rights or contractual rights also infringe the contractual rights of a citizen. In this case, it is clear that the applicant’s suit was predicated mainly on the breach of contract of service, which is a matter for the regular High Court.

The facts of SEA TRUCK (NIG) LTD v. ANIGBORO (2001) 2 NWLR (pt.696) 159 is similar. The issue was whether in the circumstance of the case, the summary dismissal and relief for re-instatement of the Respondent by the Appellant was or could be validly challenged by way of an action under the Fundamental Rights (Enforcement Procedure) Rules, 1979 where the Respondent claimed in the application that his purported dismissal from the employment of the appellant constituted a breach of his rights of assembly and association as guaranteed by Section 37 of the Constitution. It was held by the Supreme Court that since the breach of fundamental right is not the main relief but merely incidental or ancillary to the main complaint, which was his unlawful dismissal it is incompetent to proceed under the Rules.

See DANGOTE v. CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 9 NWLR [pt.717] 132 at 153; paras C – D.The Appellant herein was a permanent and pensionable employee of Plateau State when his appointment was terminated sequel to a query issued to him formally demanding for explanation for commission of certain criminal offences. Dissatisfied with the action of his employers, he instituted an action for unlawful dismissal, re-instatement and for fair hearing under the Fundamental Rights (Enforcement Procedure) Rules, 1979. It was held by the Supreme Court that none of the principal claims which the appellant sought to enforce before the trial court could be brought within the provisions of Chapter IV of the Constitution.

The case of BASIL EGBUONU v. BORNO RADIO TELEVISION CORPORATION (1993) 4 NWLR [pt.285] 13 is similar. The appellant had challenged his dismissal from employment of the respondent in an action brought under the Fundamental Rights Enforcement Procedure Rules. The Supreme Court upheld the decision of the lower courts on the ground that the principal claim of the Appellant was for unlawful dismissal and that the breach of fundamental right was merely incidental and therefore an incompetent action.

In GAFAR v. GOVT OF KWARA STATE & 2 ORS (2007) 4 MJSC 96 at 111 para G, 112 para F – G, 113 para A – B, a commission of Inquiry was set up to examine the case of N76 Million and N120 Million Naira grants by Federal Government to Kwara State. The Appellant, who was the Secretary to Kwara State Government, was indicted. The appellant dissatisfied with the directive in the white paper for his refund of N2 Million to Kwara State or forfeiture of his personal assets filed his action under the Fundamental Rights (Enforcement Procedure Rules) 1979 claiming some declaratory and injunctive reliefs which included his fundamental right of fair hearing. It was held by the Supreme Court that the Appellants fundamental rights of fair hearing complained of cannot be satisfactorily enforced without the determination of the Appellant’s main complaint against his indictment by the Report of the Commission of Inquiry and the white paper issue for the refund of some money and therefore upheld the decision of the court below that the Federal High Court had no jurisdiction to entertain the matter.

In WAEC v. AKINKUMI (2008) 9 NWLR [pt.1091] 151 at 169 – 170, the Respondent’s main claim was for an order of reversal of his cancelled results of the examination he took in May/June 1992, which the Appellant conducted. The Supreme Court held that a careful consideration of the three reliefs shows clearly that although the first relief claims a declaration that the cancellation of Respondent’s result was a breach of his right of fair hearing and therefore unconstitutional, the main claim is the order for restoration of the cancelled result and making same available to the University of Ilorin for his graduation and therefore the Respondent’s suit was not principally for the enforcement for any fundamental right consequently the action was wrongly commenced under the Fundamental Rights (Enforcement Procedure) Rules.

The case of HOLEC PROJECTS NIGERIAN LTD v. DAFESON INT’L LTD (1996) 6 NWIR [PT.507] 490 at 499 – 450 is of note. The respondents sued the Appellants claiming damages for breach of contract as well as order for specific performance of the said contract and exemplary damages for assault and unlawful detention. In this case, in a bid to avoid payment of the contractual liability of the 1st Appellant, the 2nd Appellant intimidated, harassed, assaulted and placed the 2nd Respondent under false imprisonment. The Court of Appeal held that having regard to the averment contained in the statement of claim, writ of summons, the Respondents claim is mainly for breach of contract of civil engineering and cannot be brought under the procedure established under the Fundamental Rights (Enforcement Procedure) Rules.

In all the cases analyzed above, it is crystal clear that the alleged breach of the fundamental rights of the Applicants are ancillary and incidental to the substantive claims which from the nature of the claims are mainly of the ordinary civil law or common law nature and therefore incompetent to constitute claim as for the enforcement of a fundamental right.

However, the case of FRN v. IFEGWU (2003) 15 NWLR [pt.842] 113 180 paras A – H is different. In this case, the Respondent filed an action, seeking for declarations under the Fundamental Rights provision. He complained that the Failed Bank Tribunal and the Special Appeal Tribunal which heard his case for financial malpractices acted in breach of his fundamental rights guaranteed under Section 33 (8) of 1979 Constitution of Nigeria, then applicable, being without jurisdiction to try, convict and sentence him in respect of counts laid against him because the acts for which he was charged did not constitute an offence at the time they were done. He also sought for reliefs for an order setting aside the conviction and sentence. The Supreme Court held that the reliefs sought by the respondent are entirely to enforce fundamental right and were thus granted. The case of FRN v. IFEGWU (supra) is somewhat similar to the instant case. Just like IFEGWU’s case (supra), the sum total of the Appellants’ case is that they could not be made to suffer for arrest and detention attendant to commission or suspicion of any criminal offence when it was implicitly clear that the relationship they had with the 2nd Respondent was simply contractual and their complaint, from all the evidence before the court, was for an alleged breach of contract whereas there was no imputation of the commission of any criminal offence and none was referred to all through the proceedings, to clothe the 3rd – 5th Respondents powers to arrest and detain them.

I hold therefore, that the principal reliefs sought by the Appellants are mainly for the enforcement of their fundamental rights. Thus reliefs 4, 5 and 9, which are not contested as reliefs for the enforcement of fundamental human rights are the principal reliefs in this suit while reliefs 1, 2, 3, 6, 7 and 8 are ancillary reliefs.

It has been established through a long line of cases, that if the principal claim is for the enforcement of fundamental right, other ancillary claims can be taken together in the same proceedings. See EGBUNA v. BTRC (1997) 12 NWLR [pt.531] 29 at 40. FRN v. IFEGWU (supra) at 179.

Thus in my view, reliefs 1, 3, 6, 7 and 8 can safely be taken along with reliefs 4, 5 and 9. The learned trial Judge was therefore, wrong to have struck out reliefs 1, 3, 7, 6 and 8 of the Appellants’ motion on notice on the ground that these reliefs are not cognizable under the Fundamental Right Procedure.

Issue 2, subject to relief 2 is hereby determined in favour of the Appellants.

However, relief 2, in my view is not a claim under the fundamental right and it is not ancillary to the reliefs for protection of any fundamental right. This is a relief seeking for declaration that the 2nd Respondent having returned the advanced payment currently issued by the 1st Applicant is no more entitled to ask the 1st Applicant to refund any money. I regard it as a declaratory relief that is premised on the determination of rights and obligations arising out of the contract between the 2nd Respondent and the Appellants. This is not cognizable under the Fundamental Enforcement Procedure Rules as it is a claim of the ordinary civil and common law nature. It is incompetent to constitute this relief as one for the enforcement of fundament right. This relief is, particularly in view of the claims and counter-claims in the affidavit, counter -affidavit and reply to the counter-affidavit ought to be a claim initiated by writ of summons and heard on pleadings and not affidavit evidence. See FRN v. IFEGWU (supra) at 180. When the principal reliefs cognizable under the Fundamental Enforcement Procedure Rules filed along with incompetent reliefs under the Rules can be safely determined without consideration of the incompetent reliefs, then the incompetent reliefs can safely be struck out. See A-G FEDERATION v. ABULE (2005) 11 NWLR [pt.936] 369 at 390 paras D – G. In the instant case, it is possible to determine the Appellants’ claim that their fundamental rights have been breached by the Respondents without necessarily wading into relief 2 which can safely be struck out.

Accordingly, relief 2 hereby remains struck out.

ISSUE 3

Whether the trial Judge was right to have dismissed the Appellants, case on the ground that there was no violation or infringement of the Appellants’ fundamental rights.

The Appellants’ issues 3 and 4 of the Brief of Argument are subsumed into this issue. It is appellants’ contention that having regard to the evidence before the court, it was wrong for the learned trial Judge to have justified the arrest and detention of the Appellants. Mr. Oluwole Afadedoye of learned counsel to the Appellants referred to Exhibit ‘EFCC 1′, the basis of the complaint and submitted that the issues therein were based on alleged breach of contract and that the mandate of 3rd – 5th Respondents was to recover N2.034 billion plus accrued interest being payment made to the contractors by the banks without certificate of Performance in accordance with the contract agreement. He submitted that none of the parties made out a case of contract scam to warrant the conclusion of the learned trial Judge at pages 204 and 206 of the Records to that effect. Learned counsel further stated the principle of law that the onus is on the person who admits detention of another to prove that the detention was lawful.

The learned trial Judge having arrived at a wrong conclusion, it is his submission that the judgment is perverse and ought to be set aside. He cited UDENGWU v. UZUEGBU (2003) 13 NWLR [pt.836] 136 at 152. He submitted, passionately, that the Constitution, being the organic law of our country, it is the duty of the judiciary to ensure its observance in the protection of the fundamental human rights of its citizens. Learned counsel, having argued that the trial Judge was wrong to have dismissed the Appellants’ reliefs prayed this Honourable Court to exercise its powers pursuant to Section 16 of the Court of Appeal Act to grant all the reliefs sought by the Appellants including relief 9 for N50,000,000.00 being aggravated and exemplary damages against the Respondents jointly and severally.

Mr. Folabi Kuti, in his brief re-action on this issue treated as issue No 2 in his Brief of Argument submitted that a joint reading of the averments contained in the counter affidavit and supporting exhibits showed that the 2nd – 5th Appellants were arrested and detained over an alleged breach of the terms of an advance payment bond in fraudulent violation of the terms and conditions of the Advance Payment Guarantee bond as initiated by 2nd Respondent Exhibit ‘EFCC 1′. It is his submission that the learned trial Judge critically evaluated the reliefs sought and came to a right conclusion that the case borders on contract scam while by the EFCC Act, the 3rd – 5th Respondents had power to investigate, arrest and detain the Appellants.

The 2nd Respondent did not re-act to this issue in his brief.

The 3rd – 5th Respondents also treated this as their issue No 2 in their joint Brief of Argument. It is the submission of their learned counsel that 3rd, 4th and 5th Respondents have statutory powers under Sections 6 and 7 of the Economic and Financial Crimes Commission Act (EFCC) 2002 to investigate and prosecute any financial crimes and by Section 45 of the Act such crimes have been described to include fraud and contract scam which according to him formed the crux of the allegations made against the Appellants, and thus they were lawfully and constitutionally arrested upon reasonable suspicion of having committed a criminal offence pursuant to Section 35 (f) (c) of the Constitution of Federal Republic of Nigeria. It is his further submission that the court cannot make any order to restrain the performance of statutory duties of investigation and prosecution of crimes as that will be ultra vires the jurisdiction of the court. He cited in support – FAWEHINMI v. IGP (2002) 7 NWLR [pt.767] at 606 ESP. 686 – 687; BAMIDELE v. COMMISSIONER FOR LOCAL GOVT (1994) 2 NWIR [pt.329] at 583; NNEWI & SONS v. COP (2000) HRLR at 156 ESP 164; ATTORNEY GENERAL OF ANAMBRA STATE v. CHIEF CHRIS UBA (2005)33 WRN at 191.

It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt. 193] 593.

The main complaint of the 2nd Respondent by its Exhibit EFCC 1 upon which the Appellants were arrested and detained can be gleaned from paragraphs 7 (iii) – (vi) at pages 86 – 87 of the Records –

7(iii) National Inland Waterways Authority has secured a formal legal transfer as the Authorized Representative of the erstwhile Petroleum Trust (special Fund for the purposes of executing all rights and prerogative under the said Advance Payment Guarantee. (see attached as Annexure (VII).

(iv) That all purported payments to the Contractors by the Banks should have only be made upon receipt by the Banks of Certificate of Performance from its Clients or its Authorized Representatives in the execution of the contract. Therefore, any payment made to the contractors by the Banks without such Certificate from PTF or NIWA in evidence was most irregular and a breach of the Terms and conditions of the Advance Payment Guarantee/Bond. Furthermore, all payments released by the Banks to the Contractors, therefore, for procurement purposes or idle Time Claims, were not within the purview of the Government contemplation and or Mr. President’s directive, and therefore, liability still undischarged.

(v) That the contract hadn’t commenced until the revocation directive this year. Further preparatory efforts are still intensified for its commencement by the end of this year {after seven (7) years of award).

(vi) That the claim or recovery sought by the Authority is now in the sum of N2.034bn (plus all accrued interest from the time deposit was made to-date).

For purposes of clarification, it is pertinent to reproduce some of the material deposition in the various affidavits; concerning this complaint. Paragraphs 12-26 of the Affidavit in support of the Appellants’ application at pages 6 – 9 of the Record of Appeal state –

12. Sometimes in 1999, Julius Berger Nigeria Plc and the Nigerian Westminister Dredging and Marine Limited hereinafter referred to as the Contractors approached the 1st Applicant for Advance Payment Guarantees in favour of the Petroleum (Special) Trust Fund for the sum of N289,825,205.00 and N420,838,016.00 respectively in respect of the contract for the dredging of the lower River Niger awarded to the companies.

13. In 2003 sequel to the scrapping of the Petroleum (Special) Trust Fund hereafter referred to as PTF, the above mentioned project was transferred to the 2nd Respondent.

14. By a letter dated 10th April, 2003, Julius Berger Nigeria Plc returned to the 1st Applicant Advance Payment Guarantee issued to the PTF for the above stated contract and two other payment guarantees issued in respect of other projects, stating that the projects including the one mentioned above had been performed and the 1st Applicant discharged from any liabilities on the guarantees. A copy of the letter is herewith attached and marked Exhibit A.

15. That upon further enquiries by the 1st Applicant Julius Berger Nigeria Plc through its letter of 15th December, 2003 assured the 1st Applicant of its performance of the contract and consequently the PTF released the original Guarantee for cancellation, Attached herewith is a copy of the letter marked Exhibit B.

16. However, by letters dated 7th January, 2004, the 2nd Respondent purportedly terminated the contract stated in paragraph 12 above and demanded for a refund of all payments advanced to the contractors. Copies of the letters are attached herewith as Exhibits C – C1.

17. The Nigerian Westminster Dredging and Marine Ltd reacted the termination of the contract through its letter of 20th January, 2004 by which it informed the 2nd Respondent of the outstanding amount due to it on invoice No: W3391/01/1038 of 8th May, 2000 for N576,337,764.18 and Invoice No: NW41003/02/1065 of 4th August, 2000 for N213,709,111.71 totaling N790,046,875.89 which were submitted to the PTF for works already performed on the project having earlier made a similar demand by its letter of 5th December, 2000. Copies of the letters are attached herewith and marked Exhibits D – D1.

18. That the sum of N790,045,875,89 being claimed by Westminister Dredging and Marine ltd stated above is far more than the sum of N420,838,016.00 being demanded by the 2nd Respondent.

19. That by its letter of 23rd January, 2004, the 2nd Respondent demanded from the 1st Applicant a refund of the sums advanced to the two contractors based on the Advance Payment Guarantee issued by the 1st Applicant. Attached herewith is a copy of the letter marked Exhibit E.

20. That upon a reference of the aforesaid letter of the 2nd Respondent to Julius Berger, the contractor insisted that it had performed the said contract, hence the 1st Applicant has no existing obligations to the 2nd Respondent and that it has outstanding claims due to it from the 2nd Respondent.

21. The above claims and counter-claims of the companies and the 2nd Respondent led to a meeting of all parties and the 1st Applicant with the Minister of Transport who directed that contractors represent their invoices.

22. Consequent upon compliance with the above directive, the 22nd Respondent by letters dated 3rd June, 2004 admitted the claims of N119,975,000.00 for Julius Berger Nigeria Plc and N105,888,950.00 for Nigeria Westminister dredging and Marine Ltd while requesting the 15r Applicant to place the net balances of the sums already advanced to the companies on deposit in favour of the 2nd Respondent at the “prevailing interest rate.”

23. By its fetter of 22nd June, 2004 the 1st Applicant denied any entitlement of the 2nd Respondent to any balance on the premise that the advance payment made by the PTF had been duly disbursed to the companies for the performance of the contract.

26. However, the 3rd – 5th Respondents refused to consider our position rather at the instance of the 2nd Respondent, we were detained at the Lugbe Police station and the Airport police station both in Abuja from 9th September, 2004 to 10th September, 2004.

In response, the 3rd – 5th Respondents filed joint counter-affidavit. See paragraphs 5(i), (ii), (v), (vi), (vii), (viii) and 9 at pages 77 – 79. See also paragraphs 3, 4, 5, 6, 7, 8, 11, 12 of the Reply to Joint Counter-Affidavit of 3rd – 5th Respondents at page 142 – 147 of the Record of Appeal –

3. That the sums advanced as mobilization to Julius Berger Nigeria Plc and Westminster Dredging and Marine Ltd (hereafter referred to as contractors) were paid by PTF vide cheques issued in favour of the contractors and lodged directly into the accounts of the contractors with the 1st Applicant.

4. That the contractors’ accounts with the 1st applicant are not escrow accounts over which the 1st Applicant has special control.

5. That contrary to paragraphs 5(v) to (ix) of the joint counter-affidavit of 3rd, 4th and 5th Respondents, the correct positions are as follows:

(a) That the advance payments paid to the contractors were to facilitate commencement of execution of the contractors by the contractors.

(b) That sole execution of the contracts was yet to commence at the time of PTF’s payment of the sums advanced, it could not have been expected or practicable that Certificate of Performance would have to be joined by PTF before the advance payments could be utilized by the contractors.

(c) That the 1st Applicant could not possibly have exercised custody or control over payments which were not made to it or in its favour.

(d) That the contractors proceeded to withdraw the proceeds as they requested for the contractors.

(e) THAT paragraph 4 of the Guarantee instrument which stipulated “certifying documents approved and authenticated by the PTF or its authorized representatives” sought only to address the mechanism by which the liability of the 1st Applicant under the Guarantee was to reduce progressively. The provision did not regulate the release of the advance payments by the 1st Applicant to the contractors and there is no provision in the Guarantee which purports to regulate the release of the advance payment to the contractors.

(f) That the realization of the above paragraph (e) was what made PTF pay the initial advance/mobilization directly into the accounts of the contractors.

6. That in a letter dated 16th September, 2004 which the 1st Applicant wrote to Julius Berger (Nig) Plc informing it of the demand which the respondents were making from them concerning the APG and the underlying contract, Julius Berger Nigeria Plc responded with a letter dated 22nd September, 2004 by writing the 1st Applicant that any undertaking or agreement which it may enter into with any other third party over the APG is for the convenience of the 1st Applicant alone, Attached herewith and marked Exhibits ‘F’ & ‘G’ are a copy each of the letters.

7. That contrary to paragraphs 8 & 9 of the Joint Counter Affidavit of 3rd, 4th and 5th Respondents the contractors had fully withdrawn the advance payments from their accounts with the 1st Applicant between 7/4/99 and 17/5/99 (Julius Berger Nigeria Plc) and between 13/4/99 and 18/10/99 (Westminster Dredging Nigeria Limited). Attached and marked Exhibits ‘H’ & ‘I’.

8. That during the meeting 9/9/04 with the 3rd Respondent’s officers, the 2 contractors named and confirmed that the advance payments were made directly to the accounts and that they had fully withdrawn and utilized the sums received.

11. That myself and my co-applicants made full disclosure to 3rd – 5th Respondents on the transactions, supported with documents and as such they knew or were supposed to know that there was no element of criminality anywhere in the whole transactions.

12. That the 3rd – 5th Respondents are playing the role of a debt collector/recovery agent at the instigation of the 2nd Respondent in a purely civil contractual affair and they know it.

A critical examination of the presentation of the points in re-action to the complaint of the 2nd Respondent’s complaint show glaringly that the issue at stake was in respect of an alleged breach of contract namely, Advance Payment Guarantee and recovery of the said sum of N2.034 billion plus the accrued interest. In fact the heading of EFCC 1 at page 81 of the Record of Appeal, earlier reproduced bears testimony to this fact. Curiously, Mr. Kuti of learned counsel to the 1st Respondent in paragraph 5:3 of his brief of argument agreed with this point. He submitted thus –

“A community reading of the averments contained in the aforesaid counter-affidavit and the supporting exhibits will show that the 2nd – 5th Appellants were arrested and detained over on alleged breach of terms of an advance payment bond.” I agree with his submission in this respect intoto. Even though the 3rd – 5th Respondents in paragraph 1 of their joint counter-affidavit stated that investigations revealed violations of EFCC legislation, none of such violation was mentioned. In fact, throughout gamut of the depositions in the counter affidavit of the 3rd – 5th Respondents before the lower court and submission of learned counsel to the Respondents here before us, there was no where the section of the EFCC Act that was impugned that warranted the arrest of the Appellants was mentioned. With due, respect, I do not perceive any such violation of the Act. It is not in doubt as rightly held by the trial Judge at page 204 of the Record of Appeal that –

“By the EFCC Act they have power to investigate contract scam………and to investigate any offence under the EFCC Act.”

However, the Respondents totally failed to prove that there was any such contract scam, to justify the arrest and detention of the Appellants. The Respondents merely paraded the case like that of contract scam without making any reference whatsoever to the violation of any law. Rather, from all the facts before the court, the mission of the 3rd – 5th Respondents was to recover the said sum of N2.034 billion being the alleged breach of Advance Payment Guarantee. I am therefore in agreement with the learned counsel for the Appellants that this led to the extraction from the Appellant by the Respondents of an undertaking to pay N600 million which was subject to their release from detention. Recovery of debt is definitely not the mandate of the 3rd – 5th Respondents as there is no such provisions in the EFCC Act. The arrest and detention of the Appellants are therefore totally unjustifiable. It is wrongful and unconstitutional. The 3rd – 5th Respondents are liable for the unlawful arrest and detention of the Appellants. The cited case of MCLAREN v. JENNINGS (2003) 3 NWLR [pt.808] 470 is very apt to the case at hand. Salami JCA at pages 483 – 485 had this to say

“This arrest, in the circumstance, was wrongful, it was wrongful on the appellants’ showing, it is apt to narrate relevant portion of the circumstances leading to this appeal. NICON-Noga Hilton Hotels Limited awarded, on 1lth April, 1995, a contract of supply of hotel equipment to a company, Sotra Nigeria Limited. Respondent is the Managing Director of the company which received an Advanced Payment of N1,628,428.27. Due to some reasons the company could not supply those goods within the agreed time. The Appellants demanded the refund of the deposit. It was in pursuance of this demand that the respondent was arrested in Kano and brought for remand in NICON-Noga Hilton Hotel, Abuja until the said sum of money was refunded.

Firstly, section 4 of the Police Act, Cap.359 of the laws of the Federation, 1990, upon which appellants predicated their case does not avail the appellants………..

I have scrutinized the provisions of the section and am unable to see any provision providing for or empowering Police to enforce contract or collect common debts. The Appellants and the Policemen they pressed into duty were not in Kano to prevent or detect a crime nor was the respondent an offender. It is equally not the case of the appellant that there was a breakdown of law and order, the preservation of which took them to Kano. The court has also not been told of the laws or regulations the group went to enforce in Kano. In short, the appellants and the Policemen they took to Kano were there to collect debt which is not one of the several duties assigned to the police under the provisions of the Police Act to which the court was directed and the court has not been able to find another provision of the Act empowering or constituting the Nigeria Police Force to one of a debt or rent collector. It follows that the Policemen who accompanied the appellants to Kano and assisted them in the arrest of the respondent were on the frolics of their own. The arrest was not authorized by the Act and was consequently unlawful, wrongful and illegal and cannot afford the appellants a shield……

The Appellants laid no charge of felony against the respondent but they expressly directed that the respondent be taken into custody for owing their principal a sum of money, the arrest of the respondent in Kano is inexcusable as the appellants are unable to bring themselves within the protection of the law which have just been enunciated.”

Having regard to the circumstances of this case, the learned trial Judge was therefore in grave error when he concluded at page 204 and 206 of the Records of Appeal thus

“By the Police Act, they have the power to investigate complaints. By the EFCC Act, they have the powers of the Police by Section 6 (6) and Section 7 they have the power to investigate contract scam which the complaint is alleging and to investigate any offence under the EFCC Act.”

“On claims 4 and 5, I find that the 3 – 5 (sic) have the power to arrest and investigate contract scam and as the arrest has not been shown to be unconstitutional, the 4 and 5 claims of the applicants fail and the action is accordingly dismissed.”

The trial Judge by this finding totally misconceived the facts of this case and came to a wrong conclusion and thereby occasioned a miscarriage of justice. A perverse decision of a lower court is liable to be set aside. See UDENGWU v. UZUEGBU (supra).

The importance of protection of the constitutionally guaranteed rights of individuals in this country cannot be over-emphasized. This warranted the promulgation of special rules in the Fundamental Rights (Enforcement Procedure) Rules 1979 for recourse to court to protect such rights when there is perceived violation or the imminence of violation of any such rights entrenched in Section 42 of the Constitution of Federal Republic of Nigeria 1999 as amended.

It is indisputable that the EFCC Act, like the EFCC, the Police, has the right to investigate, arrest and detain any person who is suspected of the commission of any offence under the EFCC Act. Any proved detention however must be justified in law; and must be exercised in good faith in the light of the important right of each individual. This is what is at stake in this case. The power of EFCC is therefore, subject to judicial control. In my humble view the court must not shy away from such sacred responsibility.

In F.R.N v. IFEGWU (supra) Uwaifo JSC at page 1844 held thus:

“If I may say so, as far as this Court is concerned whenever an aspect of personal liberty is properly raised in any proceedings the focus on the constitutional question is intense and intensive, and a solution which projects the essence of the constitutional guarantee is preferred.”

“The action of 3rd – 5th Respondents has, in my view, been validly impugned in this action. Issue No 3 is therefore resolved in favour of the Appellant.

Now, relief 9 for N50,000,000.00 being aggravated and exemplary damage against the Respondents s a consequential relief which was understandably abandoned by the trial court because of his erroneous conclusion that the arrest and detention of the Appellants are constitutional. The Appellants relying on ELIOCHIM (NIGERIA) LTD v. MBADIWE (1986) NWLR (Pt.14) 47 have urged this Honourable Court to award exemplary damages because the conduct of the Respondents discloses malice, fraud, cruelty, insolence and flagrant disregard of the law. With due respect to the Appellants, I do not agree that the action of the Respondents amount to such exaggerated description. In my view, the 3rd – 5th Respondents acted out of misapprehension of the facts to the effect that there was a contract scam. I will rather describe their action as executive exuberance.

For a party to be entitled to exemplary damages, it is his duty to prove that the action of respondent is outrageously reprehensible; which has not been so proved in this case. However, the Appellants are entitled to damages for their unlawful arrest and detention.

By virtue of Section 15 of the Court of Appeal Act, the Court of Appeal is empowered to exercise the powers and functions of the lower court which includes the award of damages. In the circumstance, I hereby invoke the said power and award damages against the Respondents jointly and severally in the sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira ) in favour of the 2nd – 4th Appellants who were unlawfully arrested and detained. The 1st Appellant being a bank, is an artificial person, who cannot physically be arrested and detained.

In the sum this appeal succeeds, save for relief 2 and it is hereby allowed. Accordingly, reliefs 1, 3, 6, 7, 8 struck out by the lower court are hereby restored and granted. I award N30,000.00 (Thirty Thousand Naira) as cost against the 1st, 3rd – 5th Respondents, and in favour of the Appellants.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of o preview of the judgment of my learned brother T. Akomolafe-Wilson, JCA just delivered with which I am in full agreement. All the issues raised in the appeal have been admirably covered in the meticulous judgment. I have nothing more to add to the reasons given for allowing the appeal.

I too allow the appeal and abide by the consequential orders in the judgment inclusive of the one on costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the lead judgment of my learned brother TINUADE AKOMOLAFE-WILSON JCA, just delivered. I agree with the conclusion contained thereat that this appeal succeeds save for relief 2 and it is hereby allowed.

I also abide by the order as to cost.

Appearances

Tunde Afe Babalola Esq. with him Abdusalam Belgore Esq. and Sunday Omubi Esq.For Appellant

AND

Folabi Kuti Esq. for 1st Respondent, with him Gospel Adams Esq. and Oladipupo Abodunrin Esq.

Munachiso Michael Esq with him Temiola Ogundipe (Miss) for 2nd Respondent

Godwin Obla Esq. for 3rd, 4th and 5th Respondents with him, Maryam Hussein and Segun Fiki Esq.For Respondent

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