ATTORNEY-GENERAL & COMMISSIONER OF JUSTICE, KEBBI STATE v. HRH, ALHAJI AL-MUSTAPHA JOKOLO & ORS
(2013)LCN/6656(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of December, 2013
CA/A/35/2010
RATIO
WHETHER THE ONUS IS ON HE WHO IMPOSES A RESTRICTION TO PROVE OR JUSTIFY THAT THE SAME WAS LAWFUL
Where there is evidence of restriction of movement of a person, in an action for enforcement of fundamental rights application, it is for the Respondent to show that the restriction of freedom of movement is lawful. The onus is on the person who admits the imposition of restriction to another to prove or justify that the restriction is lawful. In THE DIRECTOR, STATE SECURITY SERVICE v OLISA AGBAKOGBA (1993) 3 NWLR (PT.595) 314 at 373 the apex court held –
“In this regard, I must express my full agreement with the court of Appeal that the respondent, having shown by evidence that his right to the possession of his passport had been infringed, the burden was on the appellants to establish that their seizure of the said passport was justified by law.”
See also FRN v IFEGWU (2003) 15 NWLR (PT.843) 113 at 180; EJEFOR v OKEKE (2007) 7 NWLR (PT.665) 373; ONAGORUWA v IGP (1991) 5 NWLR (PT.193) 593. Per TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES:
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
ATTORNEY-GENERAL & COMMISSIONER OF JUSTICE, KEBBI STATE – Appellant(s)
AND
1. HRH, ALHAJI AL-MUSTAPHA JOKOLO
2. ATTORNEY-GENERAL OF THE FEDERATION & MINISTER OF JUSTICE
3. INSPECTOR GENERAL OF POLICE – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): His Royal Highness Al-Mustapha Jokolo (1st respondent) was installed the 19th Emir of Gwandu in Kebbi State of Nigeria some years ago and remained so until the 3rd June, 2005 when the Governor of Kebbi State dethroned him and then banished him to Lafia and subsequently Obi in Nasarawa State of Nigeria. There he took ill and was being medically attended to at the Dalhatu Araf Specialist Hospital, Lafia. His Royal Highness was in due course transferred to the National Hospital, Abuja for further treatment. On Wednesday, 29th March, 2006 at about 1:30am the 1st respondent was forcefully removed presumably by agents of the appellant and the Governor of Kebbi State from his sick bed and handcuffed to Lafia and subsequently Obi in Nasarawa State. On 31st day of March, 2006 G.O. Imhanobe, Esq. sought and was granted an exparte application to enforce the fundamental rights of the Emir.
Upon grant of leave, the learned Counsel filed a motion on Notice supported by affidavit and Exhibits “A”-“F”. The motion was verified by a 20 paragraph affidavit deposed to by Umar Farouk Haliru on 6th April, 2006. The reliefs sought from the Federal High Court were as follows:
“1. AN ORDER of this Honourable Court for the enforcement of the Applicant’s Fundamental Human Rights to human dignity, personal liberty and right to freedom of movement as guaranteed under Section 34(1)(a), 35 and Section 41(1) of the Constitution of the Federal Republic of Nigeria, 1999 which has been and is still being violated by the Respondent.
2. A DECLARATION that the applicant is entitled to seek medical treatment in Nigeria or anywhere in the world.
3. AN ORDER of this Honourable Court directing the Respondents not to restrict, restrain or deprive the Applicant from seeking medical attention at the National Hospital, Abuja.
4. AN ORDER of this Honourable Court directing the Respondents not to restrict, restrain or deprive the Applicant from traveling to the United States to seek medical treatment with his consultant physician at the Howard University Hospital in Washington.
5. AN ORDER of this Honourable Court directing that even if any offence has been committed by the Applicant, the Applicant is entitled to a trial by a Court of competent jurisdiction and within a reasonable time.
6. And for such order or orders as this Honourable Court may deem fit to make in the circumstances.”
The grounds for seeking reliefs are set out on the motion paper at pages at pages 53-54 of printed record as follows:
“1. On the 3rd day of June, 2005 the Government of Kebbi State deposed the Applicant from office as the Emir of Gwandu.
2. On the same day the (3rd day of June, 2005) the Applicant was banished to Obi in Nasarawa State.
3. The Applicant has a medical history of suffering from cardiovascular and prostrate problems.
4. The Applicant was denied medical attention until he complained to the Director-General of State Security Services in a letter dated 27th December, 2005 about his poor state of health.
5. The Applicant was admitted at the Dalhatu Araf Specialist Hospital, Lafia, Nasarawa State but later referred to the National Hospital, Abuja on the 31st January, 2006.
6. At the National Hospital, Abuja the Applicant was been treated by Dr. D.A. Osunkwo, Consultant physician.
7. On the 21st February, 2006, Dr. D.A. Osunkwo of the National Hospital, Abuja referred the Applicant to Howard University Hosptial in Washington, United State for further treatment.
8. On the 23rd day of February, 2006 the Howard University Hospital accepted to treat the Applicant of his illness.
9. While at the National Hospital, Abuja the Applicant was also being examined and attended to by Professor C. U. Abengowe, OON, Professor of Medicine and Cardiology.
10. In the middle of the night, at about 1:30am Wednesday, 29th March, 2006, the Respondents forcefully removed the Applicant from his sick bed at the National Hospital to Lafia, and from there to Obi in Nasarawa State.
11. Arising from the abrupt discontinuance of his treatment and medication at the National Hospital, Abuja the Applicant has suffered serious damage to his health.
12. Professor C.U. Abengowe, OON, has recommended that the Applicant should continue with the medicines he is taking in the ward.
13. Unless he immediately returned to the National Hospital to continue his treatment he may die.”
One Mr. M. J. Agum, a State Counsel in the Chambers of the Attorney-General, Ministry of Justice, Nasarawa State, deposed to a Counter Affidavit on behalf of the Attorney-General and Commissioner of Justice, Nasarawa State admitting the fact that the Emir was deposed by the Governor of Kebbi State in June, 2005 and banished to Obi in Nasarawa State to avert break down of law and order. That the Emir was given adequate medical attention at Dalhatu Araf Specialist Hospital Lafia and at appropriate occasions referred to the National Hospital, Abuja. The respondents intended to continue doing so in the future. The deponent swore that the Emir had not requested for medical treatment outside the country nor had he informed the Nasarawa State Government of any such need. It was also sworn that the fundamental rights of the Emir were never breached as his banishment to Nasarawa State was for overriding reasons of public security, peace, law and order because of his anti-people, anti-government activities and utterances which he was using to heat the polity and incite the people against the government of Kebbi State.
On 28th April, 2006 a notice of preliminary objection was filed on behalf of the Attorney-General of Kebbi State by the Chambers of Rickey Tarfa & Co. challenging the jurisdiction of the Federal High Court, Abuja to entertain the originating summons. The learned Federal Judge heard argument from learned Counsel before dismissing all the objections on 24th November, 2006. Thereafter his Lordship considered the substantive application on the merit before making the following orders in favour of the 1st respondent on 9th March, 2007 to wit:
“From the foregoing and the circumstances of this case therefore, this application is granted in the following terms. I grant reliefs 1 and 3 as prayed. Relief 2 is granted without the words “or anywhere in the World.” For relief 4, the order sought is that Respondents should not restrict, restrain or deprive the applicant from traveling to the United States University Hospital in Washington. The Respondents are Law Officers and law enforcement agents. They have constitutional obligations to safeguard peace and order and prevent or prosecute any breach of the law. Granting the relief 4 will be granting an automotive bar to their reaching the applicant if their duties call for it, that relief not granted. Relief 5 which is presumptuous is not a competent relief. That relief is therefore to be struck out and it is hereby struck out. All in all, the reliefs granted are reliefs 1, 2 and 3 as specified in this ruling.”
Being aggrieved the Attorney-General and Commissioner for Justice, Kebbi State filed a Notice of Appeal against the ruling on 8th April, 2009. The lone ground of appeal reads as follows:
“GROUND ONE:
The learned trial Judge erred in law in granting the 1st respondent unrestricted freedom of movement in spite of the fact that his coming back to Kebbi State and his Emirate in particular from where he was removed would lead to a breach of peace and insecurity.”
A brief of argument was filed on behalf of the appellant by Yunus Ustaz Usman, SAN on 1st March, 2010. The only issue set down for determination by the learned silk appearing on behalf of the appellant and adopted by the learned counsel to the 1st respondent is as follows:
“Whether the trial Court was right in granting the 1st respondent unrestricted freedom of movement despite same threatening the peace and security of Kebbi State.”
The appellant’s brief was deemed properly filed and served on the respondent on 23rd October, 2013. The 1st respondent’s brief of argument filed on 4th June, 2010 was also deemed properly filed and served on the appellant on 23rd October, 2013. When this appeal came up for hearing on 18th November, 2013, Counsel adopted their respective briefs of argument.
The argument by the learned silk is that the right of a citizen under Section 35(4) of the Constitution of the Federal Republic of Nigeria, 1999 as altered can be restricted under Section 45(1)(a) and (b) of the Constitution, citing the case of Dokubo-Asari vs. Federal Republic of Nigeria (2007) All FWLR (Pt.375) 558 at 585; Adinuso vs. Omeire (2006) All FWLR (Pt.310) 1729 at 1768. It was feebly argued that the 1st respondent had not shown how his fundamental rights had been violated or breached as he had not debunked the facts in the counter-affidavit deposed to on behalf of the appellant. The learned silk contended that as no further affidavit was deposed to by the 1st respondent, the facts in the counter-affidavit were deemed admitted, citing Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205 at 221; Forson vs. Calabar Municipal Government (2004) 9 NWLR (Pt.878) 227 at 245; Ikpana vs. R.T.P.C.N. (2002) 3 NWLR (Pt.966) 106 at 132-133; Usman vs. Baba (2005) 5 NWLR (Pt.917) 113 at 135 and a host of other authorities on the same issue. The learned silk urged this Court to set aside the ruling of the lower Court granting the 1st respondent unrestricted movement in Kebbi State.
The learned Counsel to the 1st respondent in reply, referred this Court to Sections 37-41 of the Constitution of the Federal Republic of Nigeria and Article 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap.A9, Laws of the Federation of Nigeria, 2004 which guarantees freedom of movement within and outside Nigeria, and empowers a person to reside in any part thereof. Learned counsel argued that the 1st respondent cannot be deprived of that freedom except as provided under Sections 42(2)(a)(b) and 45(1)(a) and (b) of the 1999 Federal Constitution. Counsel contended that it is for the appellant to justify why the fundamental right of movement and residence of the 1st respondent should be curtailed, citing Director, State Security Services vs. Olisa Agbakoba (1993) NWLR (Pt.595) 314. It was argued that the appellant did not, before the lower Court, and in this Court, refer to any law which authorized the infringement of the fundamental rights of the 1st respondent under Section 41(2)(a)(b) and 45(1)(a) and (b) of the Federal Constitution (supra). Counsel contended that the case of Dokubo-Asari vs. Federal Republic of Nigeria (supra) cited by the learned SAN for the appellant had no application to the facts of this case.
Counsel further referred this Court to the statement of the Inspector-General of Police and the State Security Services at page 181 and 188 of the printed record where they clearly stated that they were not aware that the 1st respondent had been deposed and banished from Gwandu Emirate in Kebbi State to Lafia and subsequently Obi town, in Nasarawa State of Nigeria. Attention was further drawn to Section 10 of the Police Act Cap.P19, and Section 1(c) of the National Security Agencies Act, Cap.N74, Laws of the Federation of Nigeria, 2004. It was argued that it is not possible for the 1st respondent to be a national security risk without the knowledge of the Police and the National Security Agencies. Learned Counsel urged that this appeal should be dismissed.
REASONS FOR JUDGMENT:
Though the 1st respondent founded his cause of action on Sections 34(1)(a); 35 and 41(1) of the Constitution of the Federal Republic of Nigeria, 1999, the lone issue for determination in this appeal is restricted to the question whether the granting of unrestricted freedom of movement by the learned Federal Judge that the 1st respondent should return to Kebbi State, and Gwandu Emirate would not lead to a breach of peace and insecurity.
In my humble opinion, the main issue in controversy in this appeal is what law, power or authority is conferred on the Governor of Kebbi State that after dethroning the 1st respondent as the 19th Emir of Gwandu he could be banished and restricted to Lafia and subsequently Obi in Nasarawa State? Secondly, had the learned Federal Judge in the Court below the powers or authority of granting the 1st respondent unrestricted freedom of movement in Gwandu Emirate and Kebbi State? Lastly is the question whether there was any evidence showing that the granting of unrestricted movement to the 1st respondent threatened the peace and security of Kebbi State.
There is no quarrel or complaint by the 1st respondent that the Governor of Kebbi State had no powers or authority to dethrone him as the 19th Emir of Gwandu Emirate. The validity of the dethronement is not an issue before this Court. This is because Section 11 of the Interpretation Act Cap.123, Laws of the Federation of Nigeria, 2004 provides that:
“(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:-
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend;
(c) power exercisable in the manner and subject to the Limitations and conditions (if any) applicable to the power to appoint:-
(i) to reappoint or reinstate him;
(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”
In Chief P.I. Mokelu vs. Federal Commissioner For Works and Housing (1976) 1 NMLR 329 Madarikan, JSC held at page 333 that:
“…When a statute confers a power or authority on a judge to act in a certain case, it is imperative on him to exercise the power or authority when the case arises and its exercise is duly called for. (See MacDoufall vs. Patterson (1851) 138 E.R. 673).”
Therefore, if the 1st respondent held office as the 19th Emir of Gwandu in Kebbi State, and there arose the need for his dethronement, the executive actions of the Governor will be covered, if done in accordance with due process, by the fact that he who has the power to appoint someone to an office reserved, subject to limitations and conditions if any applicable, the right to remove, suspend, re-appoint or reinstate. The learned silk appearing for the appellant did not however refer to any provision in the Constitution of the Federal Republic of Nigeria, 1999, any Act of the National Assembly or Law of the Kebbi State House of Assembly, which conferred powers or authority on the Governor after dethronement, to restrict the movement of the 1st respondent to Lafia and subsequently, Obi in Nasarawa State of Nigeria. I have not come across any such Act or Law.
Section 4(7) of the Constitution of the Federal Republic of Nigeria, 1999 provides that:
“(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution;
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.”
The executive powers of a Governor of a State shall come into operation, namely, to execute, or maintain laws enacted by a State House of Assembly within that State. The executive powers of the Governor are derived from Section 5(2) of the Constitution which reads as follows:
“(2) Subject to the provisions of this Constitution, the executive powers of a State:-
(a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor or Commissioners of the Government of that State or officers in the State; and
(b) shall extend to the execution and maintenance of this constitution, all laws made by the House of Assembly of that State and to all matters with respect to which the House of Assembly has for the time being power to make laws.
(3) The executive powers vested in a State under subsection (2) of this section, shall be exercised as not to:-
(a) Impede or prejudice the exercise of the executive powers of the Federation;
(b) Endanger any assets or investment of the Government of the Federation in a State; or
(c) Endanger the continuation of a Federal Government in Nigeria.”
The grievances of the 1st respondent in the lower Court were that the actions of the Governor of Kebbi State constituted a violation of his fundamental right to human dignity, personal liberty; and freedom of movement contrary to Section 34(1)(a), 35(1) and 41(1) of the Constitution of Federal Republic of Nigeria, 1999; that this has been and is still being violated by the Governor of Kebbi State. Section 45(1) of the Constitution reads as follows:
“45(1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.”
Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 is titled “Fundamental Rights”. “A fundamental right” is defined as “1. A right derived from Natural or fundamental law. 2. Constitutional law.” That it is “A significant component of liberty, encroachments of which are rigorously tested by Courts to ascertain the soundness of purported governmental justifications. A fundamental right triggers strict scrutiny to determine whether the law violates the Due Process Clause or the Equal Protection Clause of the 14th Amendment…,” writes the learned authors of Blacks Law Dictionary, 9th edition, page 744. Whenever there is a complaint from an individual that any of the fundamental rights enshrined in Chapter IV of the Constitution have been or is being or is likely to be infringed, the validity of such law, executive or administrative decision, etc, has to be tested in a Court of justice under Section 46(1) to (3) of the Constitution of the Federal Republic of Nigeria, 1999. The section and sub-sections are couched as follows:
“46(1) Any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court for redress.
(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 this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 regards “civil rights and obligations” as fundamental rights enshrined under the Constitution. The fathers of the 1999 Federal Constitution envisaged that the power and authority to determine questions arising in administration by any government or authority that may affect the civil rights and obligations of persons shall be in accordance with the provisions of an Act of the National Assembly. This intention is set out in Section 36(2), (3) of the Constitution as follows:
“(2) Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reasons only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.”
The further intention of the Constitution is that restriction or curtailment of the rights of an individual to move freely within and outside Nigeria or reside in any part of the country should be in accordance with the provisions of Section 41 of the Constitution which also reads as follows:
“41(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
(2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) imposing restriction on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) providing for the removal of any person from Nigeria to any other country to:-
(i) be tried outside Nigeria for any criminal offence; or
(ii) undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.”
According to the appellant the 1st respondent was dethroned and banished to Lafia and later Obi in Nasarawa State to, “…avert break down of law and order” in Gwandu Emirate Council, and Kebbi State, and that “…his banishment to Nasarawa State is for overriding reasons of security, peace, law and order in Gwandu and Kebbi State as a whole.” See paragraphs 4 and 8 of the counter-affidavit of M.J. Agum, State Counsel in the Chambers of the office of the Attorney-General, Ministry of Justice, Nasarawa State. The restriction of the movement of the 1st respondent from Kebbi to Nasarawa State is therefore grounded on issues of peace and security, and to avoid breakdown of law and order.
Section 153(1)(k), (c) and (m) of the Constitution of the Federal Republic of Nigeria, 1999 established what are called “Certain Federal Executive Bodies” such as the National Security Council; Nigeria Police Council and Nigeria Police Service Commission. Subsection (2) of Section 153 further provides that, “The composition and powers of each body established by subsection (1) of this section are as contained in Part I of the Third Schedule to this Constitution.” The 3rd Schedule to Part I of the Constitution specifically sets out what are “Federal Executive Bodies.” Listed as item 25 is the National Security Council. Item 26 then provides that: “The Council shall have power to advise the President on matters relating to public security including matters relating to any organization or agency established by law for ensuring the security of the Federation.”
The preamble to the National Security Agencies Act, Cap. N74, Laws of the Federation of Nigeria, 2004 states that it is, “An Act to disband the Nigeria Security Organization and to create three security agencies, charging each with the conduct of the relevant aspect of the national security, and other related matters.” A preamble is the recital set out in the beginning of a statute showing the reason for enacting the Act or Statute. In Attorney-General vs. H.R.H. Prince Ernest Augustus of Hanover (1957) A.C. 436 Lord Normand held at page 467-468 that:
“When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions…”
See also L.E.D.B. vs. Seid (1966) NMLR 183 at 187 and Okeke vs. Attorney-General of Anambra State (1992) 1 NWLR (Pt.215) 60 at 83.
The purpose of enacting the National Security Agencies Act was to disband, but create for the Federation of Nigeria, three security agencies, namely, (a) the Defence Intelligence Agency; (b) the National Intelligence Agency; and (c) the State Security Service.
Sections 2-7 of the Act reads as follows:
“2. General Duties of the National Security Agencies:
(1) The Defence Intelligence Agency shall be charged with responsibility for:
(a) The protection and preservation of all military classified matters concerning the security of Nigeria, both within outside Nigeria.
(b) Such other responsibilities affecting defence intelligence of a military nature, both within and outside Nigeria, as the President, or the Chief of Defence Staff, as the case may be, may deem necessary.
(2) The National Intelligence Agency shall be charged with responsibility for:
(a) The general maintenance of the security of Nigeria, outside Nigeria, concerning matters that are not related to military issues; and
(b) Such other responsibilities affecting national intelligence outside Nigeria as the National Defence Council or the President, as the case may be, may deem necessary.
(3) The State Security Service shall be charged with responsibility for:-
(a) The prevention and detection within Nigeria of any crime against the internal security of Nigeria.
(b) The protection and preservation of all non-military classified matters concerning the internal security of Nigerian; and
(c) Such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.
(4) The provisions of sub-sections (1), (2) and (3) of this section shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned.
(5) In this section, “classified matter” has the same meaning assigned thereto in Section 9 of the Official Secrets Act.
3. Principal Officers of the Agencies:
(1) There shall be appointed for each of the agencies, a principal officer, who shall be known by such designation as the President may determine.
(2) The principal officers of the agencies shall in the discharge of their functions under this Act:-
(a) In the case of the State Security Service and the National Intelligence Agency, be responsible directly to the President; and
(b) In the case of the Defence Intelligence Agency, be directly responsible to the Chief of Defence Staff.
4. Co-ordinator on National Security:
(1) For the purpose of co-ordinating the intelligence activities of the National Security Agencies set up under Section 1 of this Act, there shall be appointed by the President a Co-ordinator on National Security.
(2) The Co-ordinator on National Security shall be a principal staff officer in the office of the President.
(3) The Co-ordinator on National Security shall be charged with the duty of:-
(a) Advising the President on matters concerning the intelligence activities of the agencies;
(b) Making recommendations in relation to the activities of the agencies to the President, as contingencies may warrant;
(c) Correlating and evaluating intelligence reports relating to the national security and providing the appropriate dissemination of such intelligence within Government, using existing facilities as the President may direct;
(d) Determining the number and level of staff to be employed by each agency established pursuant to Section 1 of this Act and organizing the transfer and posting of staff, especially the transfer and posting of existing staff of the Nigerian Security Organization established pursuant to the Nigerian Security Organization Act, 1976, repealed by Section 7(1) of this Act;
(e) Doing such other things in connection with the foregoing provisions of this Section as the President may, from time to time, determine.
5. Establishment of Advisory Councils:
(1) There shall, in the interest of National Security, be established two advisory councils, that is to say:-
(a) The National Defence Council;
(b) The National Security Council.
(2) The National Security Council shall be charged with responsibility for matters relating:-
(a) To public security; and
(b) Generally to the structure, staff and other matters concerning the agencies set up under this Act.
(3) The National Defence Council shall advise the President on all matters concerning the defence of the sovereignty and territorial integrity of Nigeria.
6. Instruments Relating to the Advisory Councils, the Structure, etc, of the Agencies:
The President may by an instrument under his hand make provisions with respect to the following matters, that is to say:-
(a) The composition, membership and appointment to the advisory councils established by Section 5(1) of this Act;
(b) The structure of each of the agencies set up under this Act (including the designation and the appointment of the principal officers of the agency concerned) and the manner in which each agency is to be administered;
(c) The manner in which the powers of each agency is to be exercised and the conferment on specified officers of the agencies, of the powers of a superior police officer; and
(d) Such other matters concerning or incidental to any of the matters mentioned in this Act as the President may deem fit.
7. Repeal, etc:
(1) The Nigerian Security Organization Act is hereby repealed.
(2) If any other law is inconsistent with the provisions of this Act, the provisions of this Act shall prevail and that other law shall, to the extent of the inconsistency, be void.”
Section 214 of the Constitution of the Federal Republic of Nigeria, 1999 also provides that:
“214(1) There shall be a police force for Nigeria, which shall be called the Nigeria Police and, subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.
(2) Subject to the provisions of this constitution:-
(a) The Nigeria Police force shall be organized and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly;
(b) The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law.
(c) The National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and airfields.”
By virtue of the above provisions the National Assembly enacted the Police Act, Cap. P19, Laws of the Federation of Nigeria, 2004. Section 10 of the Act reads as follows:
“10. Public Safety and Public Order:
(1) The President may give to the Inspector-General such directions with respect to the maintaining and security of public safety and public order as he may consider necessary, and the Inspector-General shall comply with those directions or cause them to be complied with.
(2) Subject to the provisions of subsection (1) of this Section, the Commissioner of Police of a State shall comply with the directions of the Governor of the State with respect to the maintaining and securing of public safety and public order within the State, or cause them to be complied with:
Provided that before carrying out any such direction the Commissioner may request that the matter should be referred to the President for his directions.
11. Delegation by Inspector-General:
The Inspector-General may, with the consent of the President by writing under his hand, delegate any of his powers under this Act (except this power of delegation) so that the delegated powers may be exercised by the delegate with respect to the matters or class of matters specified or defined in the instrument of delegation.”
In The State vs. Commissioner of Police For Anambra State, Exparte Governor of Anambra State (1982) 2 NCR 252 the Court of Appeal held at page 257 that:
“First, by sub-section (1) of the above provisions the overall head in command of the Nigeria Police Force is appointed by the President who by virtue of the powers of his appointment may also discipline him. Subsection (2) places the command of the whole of the police force under the said appointee of the President designated the Inspector-General of Police, a Commissioner of Police is in command of the police contingent within a State. In regard to the maintenance and securing of public safety and public order in the whole of the Federation, the President or a minister of the Government of the Federation, as may be authorized by the President in that behalf, may give to the Inspector-General of Police such lawful directions as he may consider necessary, and it seems that the President may also exercise such powers through the Inspector-General of Police to all the Commissioner of Police in the States. The Governor of a State, or a Commissioner of the Government of a State authorized by the Governor, has powers of maintaining and securing public safety and public order within his State, and in the exercise of such powers they may give the Commissioner of Police of their State such lawful directions as they consider necessary for the maintenance of law and order.
While the Inspector-General of Police is by the Constitution bound to carry out without question all lawful orders of the President or the authorized minister, the Commissioner of Police of a State is not so bound. The Constitution gives him a discretion in the exercise of such duty; for he may request a reference of the directions to the President or the minister for approval or for any further direction. The Constitution has, however, made no provision as to what steps the Governor should take where the Commissioner of Police fails or refuses to either comply with his lawful directions or request a reference. In the absence of such a provision, the question is whether the Governor can go to Court to either compel the Commissioner of Police to comply with his directions or request a reference.
The answer to this question, I think is to be found in eh interpretation of subsection (5) of the Section 195 of the Constitution, which provides that the question of whether any, and if so what, directions have been given under the subsection shall not be enquired into in any Court. Applying one of the cardinal rules of construction to the statute, namely, that words used in a statute should be given their ordinary or dictionary meaning, the provisions of the subsection in my view, can only mean that matters or causes involving any enquiry into the question of whether a direction has been given by the Governor, and the nature of such direction, cannot be entertained in any Court of law. In other words, the question of whether the direction of the President to the Inspector-General of Police, or the direction of the Governor to the State Commissioner of Police, is lawful or unlawful cannot be entertained by any Court.”
On the 30th day of May, 2006 the Inspector General of Police (3rd respondent) personally informed the Court below that, “…The applicant is a deposed Emir and I am not aware of any criminal allegation against him for which the police could exercise arrest. I have profound respect for the Court and also the Rule of Law…” On the 9th day of June, 2006 C.I. Osagie, Esq. for Director-General, State Security Service (5th respondent) in the Court below moved an application that the name of the 5th respondent should be struck out from the suit, giving reasons as follows: “…The crux of our application is hatt (sic) although as a responsible security organization, we are aware of the fact that the applicant was deposed and banished to Obo (sic) Town in Nasarawa State. We are only observers. We have no business with the application. We pray that we be struck out of this matter.” See page 181 lines 23 to 26 and 188 lines 22 to 26 of the printed record. The learned Federal Judge granted the application by striking out the name of the 5th respondent from the proceedings on 9th day of June, 2006.
It can be seen that neither of the Intelligence Agencies, the Security Service or the Police ever declared the 1st respondent as having committed any criminal offence or done anything in his domain and in Kebbi State that if not banished to Lafia and Obi in Nasarawa State, would lead to a breakdown of law and order, nor that his acts or conduct were likely to threaten security, peace, law, public order and safety in Gwandu Emirate and in Kebbi State. Furthermore, the Inspector General of Police, saddled with the enforcement of public safety and public order had no hand in the banishment of the 1st respondent to Lafia or Obi in Nasarawa State.
In Eshugbayi Eleko vs. Officer Administering the Government of Nigeria (1931) A.C. 662, the Governor of the Colony gave recognition to the appellant as the successor of the late Chief Oyekan. Due to friction, the elders and members of the family deposed the appellant. Because there was less cordiality between the appellant and the Officer Administering the Government of the Colony, his dethronement was not only affirmed by the Governor, but he was banished and had to leave the Colony and Province of Abeokuta, Ijebu-Ode and Ondo within twenty-four hours of the service of the order, and that he shall not return to any of the said areas without the consent of the officer. If he did, he shall be liable to conviction and sentence to various terms of imprisonment. The order was made on 6th August, 1925 pursuant to the Deposed Chiefs Removal Ordinance of 1917. The appellant contested the validity of his deposition and banishment. The question was whether jurisdiction vested in the law Courts to investigate the validity of the order of deportation in a judicial proceeding. The trial and appellate Courts in Nigeria were divided on the issue. But on appeal to the Privy Council, Lord Atkin held from pages 670-671 of the judgment as follows:
“Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive. The analogy of the powers of the English Home Secretary to deport aliens was invoked in this case. The analogy seems very close. Their Lordships entertain no doubt that under the legislation in question, if the Home Secretary deported a British subject in the belief that he was an alien, the subject would have the right to question the validity of any detention under such order by proceedings in habeas corpus, and that it would be the duty of the Courts to investigate the issue of alien or not…”
Judicial precedent from the Privy Council shows that it is within the province of a deposed Chief or an Emir to question the executive powers and authorities of the Governor or any authority to banish or deport him out of his domain, except such act is in pursuance to powers given by the Constitution, or, a law duly enacted by a competent legislature. No body or authority can interfere with any of the fundamental rights enshrined under Chapter IV of the Constitution of the Federal Republic of Nigeria, except on the condition that can be supported before a Court of justice.
In the Zamora (1916) 2 A.C. 77 Lord Parker stated at page 107 that, “Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.”
Indeed, in Chandler vs. Director of Public Prosecutions (1964) A.C. 763 Lord Reid said at page 791 that:
“I am prepared to start from the position that, when an Act requires certain things to be established against an accused person to constitute an offence, all of these things must be proved by evidence which the jury accepts, unless parliament has otherwise provided. But normally, such things are facts and where questions of opinion arise they are on limited technical matters on which expert evidence can be called…”
Similarly, in Burma Oil Co. Ltd. vs. Lord Advocate (1965) A.C. 75, Lord Reid held at page 99 to 100 that:
“I think we should beware of looking at older authorities through modern spectacles. We ought not to ignore the many changes in constitutional law and theory which culminated in the Revolution Settlement of 1688-89, and there is practically no authority between that date and 1915. I am no historian but I would suppose that Maitland is as good a guide as any. In his Constitutional History he says: “I do not wish you to think that a definite theory to the effect that while legislative power resides in King and parliament, the so-called executive power is in the king alone, was a guiding theory of mediaeval politics. On the contrary, the line between what the king could do without a parliament, and what he could only do with the aid of parliament, was only drawn very gradually, and it fluctuated from time to time.” (p.196). And again: “Where is sovereignty? I have before now given my reasons why we should not ask this question when studying the Middle Age – why we should understand that no answer can be given.” (p.297). So it appears to me that we must try to see what the position was after it had become clear that sovereignty resided in the King in Parliament. Any right thereafter exercised by the King (or the executive) alone must be regarded as a part of sovereignty which Parliament chose to leave in his hands.”
We ought not to ignore the constitutional and legal changes that have occurred since the Privy Council determined Eshugbayi Eleko vs. Officer Administering the Government of Nigeria on 24th March, 1931. We must realize that Nigeria is operating a democracy.
The Governor of Kebbi State should have directed the Security Agencies and the Police to take action if it became evident that the conduct and utterances of the 1st respondent as an Emir were likely to lead to a breach of public order, public safety, law and order, though they were not bound to act. But it did not lie within the embryo of the Governor to enter into an exercise that he had no powers or authority of doing. Nigeria has moved from the medieval era and gone beyond the era when British Administrative officers appointed to administer Colonial Territories and Protectorates could at the shout of Jack Robinson, dethrone and deport native chiefs or emirs, restricting their movement to certain geographical locations within or beyond their domain in the name of the Queen of England. That practice was successfully challenged by Eshugbayi Eleko in the Privy Council on 24th day of March, 1931. We have journeyed from that era and are at the moment, practicing democracy which is founded on the rule of law and respect for the civil rights and obligations of persons residing in this country. This is enshrined under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999.
From 24th day of March, 1931 when Eshugbayi Eleko’s appeal was determined by the Privy Council to 3rd June, 2005 when the 1st respondent was deposed in Kebbi State and banished to Lafia and Obi in Nasarawa State is more than seventy years. For over seventy years the degrading practice of disrespecting the traditional institution has continued unabated notwithstanding the Privy Council judgment in Eshugbayi Eleko’s appeal. The Privy Council gave clear indication that the banishment of native Chiefs or Emirs as the case may be, could only be upheld by the Courts if there is a law enacted by a competent legislature to support such an executive action. Authorities that banish or deport traditional rulers have the obligation to show that they act according to Section 41(2) of the Constitution, namely, that such a law is “…reasonably justifiable in a democratic society.” Imposing restrictions on the residence or movement of any person is confined to persons who have committed or are reasonably suspected to have committed a criminal offence in order to prevent them from leaving Nigeria etc.
Even if there was a criminal allegation against the 1st respondent, it is not within the province of the Governor to execute or enforce criminal laws in Kebbi State. That is the prerogative of the Security Agencies and the Police, who in this case, denied knowledge of the grounds upon which the 1st respondent was not only dethroned, but banished from his residence in Kebbi State to Nasarawa State. I would not have hesitated in declaring as invalid, if my attention had been drawn to any law that authorized the banishment or restriction of the movement of the 1st respondent from Kebbi State to Nasarawa State, on the grounds that the Kebbi State House of Assembly had no powers to legislate on issues of National or State Security relating to defence, public safety, public order, etc, under Section 45(1)(a) or (b) of the Constitution of the Federal Republic of Nigeria, 1999. I would have held that such a law was not reasonably justifiable in a democratic society. See Sections 41(1)(2) and 45(1)(a) of the Constitution.
Furthermore, the forceful removal and handcuffing of the 1st respondent from the National Hospital Abuja was to ensure that he did not travel to the United States of America for further medical attention. But Section 41(1) of the Constitution does not confer such powers on the Governor. I think his conduct was calculated to endanger the life of the 1st respondent contrary to the provisions of section 33(1) of the Constitution which provides that “Every person has a right to life and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.” Furthermore, Section 34(1) of the Constitution provides that, “Every individual is entitled to respect for the dignity of his person, and accordingly (a) no person shall be subjected to torture or to inhuman degrading treatment; (b) no person shall be held in slavery or servitude; and (c) no person shall be required to perform forced or compulsory labour.”
The word “dignity” means “1. The state of being noble; the state of being dignified. 2. An elevated title or position. 3. A person holding an elevated title; a dignitary. 4. A right to hold a title or nobility, which may be hereditary or for life.” See Black’s Law Dictionary, 9th Edition, page 522.
The 1st respondent was until 3rd June, 2005 the Emir and traditional ruler of Gwandu Emirate Council. He deserved respect from the Governor of Kebbi State even if he was dethroned. “Respect” depending on usage, means inter-alia, polite behaviour exhibited towards somebody or something that you think is important. See Oxford Advanced Learner’s Dictionary, 7th edition, page 1245.
“Torture” is the infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure. In Torture and English Law, 1982 by James Heath, the learned author stated at page 3 that:
“By torture I mean the infliction of physically founded suffering or the threat immediately to inflict it, where such infliction or threat is intended to elicit, or such infliction is incidental to means adopted to elicit, matter of intelligence or forensic proof and the motive is one of military, civil, or ecclesiastical interest.”
Not only was the 1st respondent tortured by the Governor’s agents but inhuman and degrading treatment was meted to him through handcuffing him to Obi in Nasarawa State. If an “inhuman treatment or conduct” is meted to a person, it means it is extremely cruel; that the treatment or conduct exhibited to that person is strange or bad because they do not seem human in some way. See Collins Cobuild Advanced Learner’s English Dictionary, New Edition, page 746.
The learned authors of Black’s Law Dictionary, 9th edition, page 854 also define “Inhuman treatment” as “Physical or mental cruelty so severe that it endangers life or health.” A degrading treatment is to do unpleasant things to someone and to make him lose self respect. Thus “degradation” is “1. A reduction in rank, degree, or dignity… a lessening of a person’s or thing’s character or quality… A wearing down of something, as by erosion.” See Black’s Law Dictionary (supra), page 488.
The sum total of it is that the Governor was not only satisfied in dethroning the 1st respondent as the 19th Emir of Gwandu, but showed no respect to his dignity as an individual by inhuman and degrading treatment, where he was held like a slave, contrary to Section 34(1)(a)-(b) of the Constitution of the Federal Republic of Nigeria, 1999. What the Governor’s agents did constituted slavery. Slavery is a situation in which one person has absolute power over the life, fortune, and liberty of another. It is the practice of keeping individuals in such a state of bondage or servitude, outlawed by the 13th Amendment to the United States Constitution since 1865. The 13th Amendment reads as follows:
“Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2: Congress shall have power to enforce this Article by appropriate legislation.”
The National Assembly abolished slavery and servitude under Section 34(1)(a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999. Indeed, Articles 4, 5 and 6 of the African Charter on Human and People’s Rights, Cap.A9, Laws of the Federation of Nigeria, 2004 reads as follows:
“4. Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
5. Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
6. Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular no one may be arbitrarily arrested or detained.”
If those entrusted with the power to govern or rule Nigeria have no respect to the traditional institution or the citizens, how could these personalities be respected abroad? That will not be possible. Charity must begin at home. In Rev. Polycarp Mathew Odiong a.k.a Odiong Mathew vs. Assistant Inspector General of Police Zone “6”, Calabar (Unreported Appeal No.CA/C/149/2010) delivered on 22nd May, 2013 by Calabar Division of the Court of Appeal, the appellant was a Reverend, the founder of Inner Life Church and also a community leader. The appellant was accused of having stolen two electricity transformers belonging to the Akwa Ibom State Government. Though he denied the allegation the agents of the respondent arrested and detained him for twenty-six days beyond what Section 34(1)(a) and 35(1)(a) and (b) of the Constitution sanctions. I considered this a contravention of the fundamental rights of the appellant and awarded him five Million Naira damages for reasons similar in this appeal.
The executive powers of the Governor of any State must be exercised in accordance with law else the Courts will not shy from holding as invalid any law, an executive or administrative action that is not reasonably justifiable in a democratic society, be it in the interest of defence, public safety, public order, public morality, or public health, or that it is not for the purpose of protecting the rights and freedoms of persons in any part of the Federation. The Courts shall intervene to curtail or nullify abuse of powers and authority not supported by law. See Governor of Lagos State vs. Ojukwu (1989) 3 NWLR (Pt.18) 621, and Obeya Memorial Specialist Hospital vs. Attorney-General of the Federation & Ors. (1987) 3 NWLR (Pt.60) 325.
Matters relating to defence is listed under Item 17; Immigration and Emigration are Item 30 under the Exclusive Legislative List, Second Schedule to the Constitution. By virtue of Section 4(1)-(3), (4)(a) and (b) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 only the National Assembly can validly legislate over those items.
My answer to the lone issue is that the learned Federal Judge in the Court below had constitutional authority and power to have granted the 1st respondent unrestricted freedom of movement in Kebbi State and indeed, in any State of the Federation as there was no iota of evidence that his free movement threatened or would threaten the peace and security of Kebbi State. This appeal lacks merit and is dismissed. I award N100,000.00 cost in favour of the 1st respondent.
MOORE A. A. ADUMEIN, J.C.A.: I read the draft of the judgment of my learned brother, Joseph Tine Tur, JCA. I completely agree with the reasoning and conclusion of my learned brother dismissing this appeal.
The Governor of Kebbi State has no right to act outside the clear and unambiguous provisions of the Constitution of the Federal Republic of Nigeria, 1999 (applicable to this case). Section 35 (1) of the said Constitution provides that every citizen of Nigeria is “entitled to his personal liberty and no person shall be deprived of such liberty” except in the circumstances set out in subsections (a) to (f) thereof. Section 40 of the same Constitution provides that “every person is entitled to assemble freely and associate with other persons”. On the issue at hand, Section 41(1) of the Constitution is germane and it provides thus:
“41 – (1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
(2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society –
(a) imposing restrictions on the residence or movement of any person who has committed or is reasonable suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) providing for the removal of any person from Nigeria to any other country to –
(i) be tried outside Nigeria for any criminal offence, or
(ii) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigerian and such other country in relation to such matter.
The appellant has not been able to show that the banishment of the 1st respondent from Gwandu Emirate in Kebbi State and his deportation to Obi in Nasarawa State were in accordance with the clear provisions of Section 41 of the Constitution of the Federal Republic of Nigeria, 1999. The banishment and deportation from Kebbi State by the Governor of Kebbi State, on or about the 3rd of June, 2005 of the 1st respondent to Lafia in Nasarawa State and later to Obi, also in Nasarawa State, is most unconstitutional, and illegal. By the said banishment and deportation, the 1st respondent has been, unduly and wrongfully denied his constitutional rights “to respect for the dignity of his person”; “to assemble freely and associate other persons” – including the people of Gwandu Emirate of Kebbi State; and to “move freely throughout Nigeria and to reside in any part thereof” as respectively provided in the Constitution of the Federal Republic of Nigeria, 1999.
It is for these reasons and the more elaborate reasons given by my learned brother that I also dismiss this appeal for lacking merit.
This appeal is hereby dismissed with N100,000.00 (One Hundred Thousand Naira only) costs in favour of the 1st respondent against the appellant.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Tur, JCA. I agree with the conclusion. I would like to add a few words, just for emphasis.
The sole issue for determination adopted by both parties is –
“WHETHER THE TRIAL COURT WAS RIGHT IN GRANTING THE IST RESPONDENT UNRESTRICTED FREEDOM OF MOVEMENT DESPITE SAME THREATENING THE PEACE AND SECURITY OF KEBBI STATE”.
This was distilled from the lone ground of appeal which states that: –
“The learned trial Judge erred in law in granting the 1st Respondent unrestricted freedom of movement in spite of the fact that this coming back to Kebbi State and his Emirate in particular from where he was removed would led to a breach of peace and in Security.”
This appeal is sequel to the reliefs granted 1st Respondent by the learned trial Judge principally for order of the enforcement of the 1st Respondent’s fundamental human rights to freedom of movement as guaranteed by Section 41(1) of the 1999 Constitution of Federal Republic of Nigeria as amended. S. 41(1) provides –
“41 (1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.”
However Sections 41(2)(a)(b) and 45(1)(a)(b) of the Constitution stipulates the circumstances of restriction on and derogation from fundamental human rights of an individual. They provide thus –
“S.41 (2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society –
(a) Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) Providing for the removal of any person from Nigeria to any other country to Right to freedom from discrimination
(i) Be tried outside Nigeria for any criminal offence, or
(ii) Undergo imprisonment outside Nigeria in execution of the sentence of o court of law in respect of a criminal offence of which he has been found guilty.”
“45(1) Nothing is sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) In the interest of defence, public safely, public order public morality or public health; or
(b) For the purpose of protecting the rights and freedom of other persons.”
By virtue of the provisions above, everyone has the right to freedom of movement except the circumstances prescribed in Sections 41(2) (a)(b) and 45(2) (a)(b) of the Constitution.
Where there is evidence of restriction of movement of a person, in an action for enforcement of fundamental rights application, it is for the Respondent to show that the restriction of freedom of movement is lawful. The onus is on the person who admits the imposition of restriction to another to prove or justify that the restriction is lawful. In THE DIRECTOR, STATE SECURITY SERVICE v OLISA AGBAKOGBA (1993) 3 NWLR (PT.595) 314 at 373 the apex court held –
“In this regard, I must express my full agreement with the court of Appeal that the respondent, having shown by evidence that his right to the possession of his passport had been infringed, the burden was on the appellants to establish that their seizure of the said passport was justified by law.”
See also FRN v IFEGWU (2003) 15 NWLR (PT.843) 113 at 180; EJEFOR v OKEKE (2007) 7 NWLR (PT.665) 373; ONAGORUWA v IGP (1991) 5 NWLR (PT.193) 593.
In this case, the Appellant admits the imposition of the restriction on the Respondent. However, there is no evidence before the court to justify the said restriction; as envisaged under Sections 41(2) (a) (b) and 45(2) (a) (b). Rather, the security agents viz, the Police and the State Security Services who are responsible for the security of the State, to ensure public safety and public order specifically denied the awareness of any criminal allegation against the respondent. See page 181 of the Record of Appeal.
There was therefore no justification for the restriction of the respondent by the State Governor.
By virtue of the provisions of Section 41 of the 1999 Constitution and Chapter 12(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A-G, Laws of the Federation, 2004 (which has the force of law in Nigeria by virtue of Section 1 of that Act), freedom of movement of every Nigerian consists of freedom within Nigeria and freedom of exit from Nigeria. See THE DIRECTOR, STATE SECURITY SERVICE v. OLISA AGBAKOGBA (supra) at page 354 para H, 355 para B, 358 para G, 362 para F, 369 para 9.
The State Governor therefore did not also have the power to prevent the appellant from going abroad for medical treatment. The learned trial Judge rightly granted the reliefs which ensured the unrestricted movement of the respondent.
It is the duty of courts in this country to safeguard the fundamental rights of each individual. Human rights are usually described as inalienable and constitute birthright. The importance of these rights in this country is obvious by the entrenchment of such rights in our constitution. In F.R.N v IFEGWU (2003) (supra) Uwaifo JSC at p.1844 stated thus –
“If I may say so, as for 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.”
For the above adumbrated reasons and more detailed reasons expounded by my learned brother in the lead judgment, I also dismiss this appeal. I also abide by the order as to cost.
Appearances
J. J. Usman, Esq. with A.O. Philip, Esq. and Mrs. D. A. Nnanta, Esq. For Appellant
AND
S. O. Imhanobe, Esq. with Harrison Anachuna, Esq. and Alhassan Ahmadu, Esq. – For the 1st Respondent.
No Counsel represented the 2nd and 3rd respondents though they were served notices on 14th November, 2013. For Respondent
