CHROME INSURANCE BROKERS LIMITED & ORS v. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS
(2018)LCN/11830(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2018
CA/L/1429C/2016
RATIO
INTERPRETATION: WHAT IS FUNDAMENTAL RIGHT
“Fundamental rights are rightwhich stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights which have been described as the minimum living standard for civilized humanity have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, 1215. They are rights which embrace and encompass the concepts of liberty and justice. The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME-KUTI vs. ATTORNEY-GENERAL OF THE FEDERATION (1985) 7 NWLR (PT 6) 211 at 229 231. It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights. See UZOUKWU vs. EZEONU II (1991) 6 NLWR (PT 200) 708 at 761.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. CHROME INSURANCE BROKERS LTD
2. MRS. FOLASHADE ADEDAYO PETERS
3. ADEBIYI ADEMUYIWA
4. MR. KALU UKPAI KALU ANYAORI – Appellant(s)
AND
1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
2. MR. AHMED GHALI
3. MR. NIYI
4. THE INSPECTOR GENERAL OF POLICE
5. THE COMPTROLLER-GENERAL OF CUSTOMS
6. NIGERIAN CUSTOMS SERVICE – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The Appellants, as Applicants before the Federal High Court, Lagos Division in SUIT NO. FHC/L/CS/866/2015: CHROME INSURANCE BROKERS LIMITED & 3 ORS. vs. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 5 ORS, applied for the enforcement of their fundamental rights. The Lower Court could not see its way clear in granting the application. It dismissed the application and ordered that the 2nd Appellant honour the invitation of the 1st Respondent and report at the office of the 1st Respondent within forty-eight (48) hours of the judgment. The judgment of the Lower Court which was delivered on 7th November 2016 is at pages 222-265 of the Records. The Appellants being dissatisfied with the judgment appealed against the same. The Notice of Appeal which was filed on 9th November 2016 is at pages 266 -273 of the Records.
The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged between the Appellants and the 5th and 6th Respondents only. The 1st-4th Respondents did not file any processes in respect of the appeal.
The relevant briefs are the Appellants Brief filed on 21st December 2017 but deemed as properly filed on 15th February 2018, the 5th and 6th Respondents brief filed on 24th March 2018 and the Appellants Reply Brief filed on 10th April 2018. The Respondents Brief and the Appellants Brief were deemed as properly filed on 12th April 2018.
At the hearing of the appeal, the learned counsel for the 1st-3rd Respondents unsuccessfully applied for an adjournment to enable him file a brief of argument. The Court relying on the provisions of Paragraph 8 (6) of the Court of Appeal (Fast Track) Practice Directions, 2014 proceeded with the hearing of the appeal; whereupon the learned counsel for the Appellants and the 5th and 6th Respondents urged the Court to uphold their respective submissions in the determination of the appeal. The 4th Respondent did not file any brief. Hearing notice was duly served on it but it was also not represented at the hearing.
The Appellant distilled two issues for determination, namely:
1. Whether in view of the acts of the Respondents, the Appellants are entitled to the orders of this Honourable Court enforcing their fundamental human rights? (Grounds 1, 2 & 4)
2. Whether a Court can award a relief not sought by parties before it. (Ground 3)
On their part, the 5th and 6th Respondents framed three issues for determination, as follows:
1. Whether the 5th and 6th Respondents in this appeal are competent parties that can sue and be sued?
2. Whether in view of the act of the Respondents the Appellants are entitled to the orders of enforcing their respective fundamental human rights?
3. Whether a Court can award a relief not sought by the parties before it
The Appellants in their Reply Brief challenged the competence of issue number one formulated by the 5th and 6th Respondents on the ground that it did not arise from the grounds of appeal and that the 5th and 6th Respondents neither cross appealed nor filed a Respondents Notice for the Judgment of the Lower Court to be affirmed on other grounds. The cases of D.E.N.R. LTD vs. TRANS INTL BANK LTD (2008) 18 NWLR (PT 1119) 383 and ODEH vs. FRN (2008) 13 NWLR (PT 1103) 1 were relied upon.
Now, the issue number one of the 5th and 6th Respondents which I have already reproduced raises the question of the juristic personality of the 5th and 6th Respondents and whether they are competent parties that can sue and be sued. The 5th and 6th Respondents raised this issue before the Lower Court but the Lower Court did not decide the point. Hear the Lower Court at pages 262-263 of the Records:
I have read however the submissions of counsel to the 5th and 6th respondents Yakubu S.A. on the issue of juristic personality raised in the written addresses. I do not wish to delve into the proprieteness[sic]or otherwise of the arguments made for and against considering the frivolity of this action before the Court.
There is no appeal on the failure of the Lower Court to decide the point, and the 5th and 6th Respondents did not file any Respondents Notice for the decision of the Lower Court to be affirmed on the ground that the 5th and 6th Respondents are not juristic persons.
It is rudimentary law that three options are open to a respondent who did not file a cross appeal or Respondents Notice. The options are: adopt the issues distilled by the appellant, give the issues a slant in favour of his own side of the case, or he may formulate his own issues; provided that the issues he formulates arise from the grounds of appeal. See MKPEDEM vs. UDO (2000) 9 NWLR (PT 673) 631, GEIDAM vs. NEPA (2001) 2 NWLR (PT 696) 45, ONYIA vs. MTN (2015) LPELR (25760) 1 at 7-8 and JOHN vs. THE STATE (2016) LPELR (40103) 1 at 4.
The Appellants four grounds of appeal shorn of their particulars read as follows:
GROUND 1
The Learned Trial Judge erred in law when he refused to grant the Appellants application for the enforcement of their fundamental rights and thereby occasioned a miscarriage of justice. (See Page 267 of the Records)
GROUND 2
The Learned Trial Judge erred in law when he held that the 1st to 3rd Respondents invasion of the Appellants office at Niger Insurance House (1st Floor), 302/304 Ikorodu Road, Lagos and carting away two cartons containing files and other commercial documents of the 1st Appellant without a search warrant was lawful and did not contravene the fundamental rights of the Appellants. (See page 268 of the Records)
GROUND 3
The learned trial Judge erred in law when it ordered the 2nd Appellant to submit herself to the 1st Respondent within forty-eight (48) hours from the delivery of the judgment and thereby occasioned a miscarriage of justice. (See page 269 of the Records)
GROUND 4
The judgment of the Learned Trial Judge is against the weight of evidence placed before the Court. (See Page 270 of the Records)
None of the above grounds complains about the jural capacity of the 5th and 6th Respondents. It is therefore limpid that the 5th and 6th Respondents issue number one has no bearing whatsoever with any of the grounds of appeal. In the circumstances, the said issue is incompetent and must be discountenanced: KOREDE vs. ADEDOKUN (2001) LPELR (1704) 1 at 19, ADELEKAN vs. ECU-LINE NV (2006) LPELR (113) 1 at 15, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 38 -39 and D.E.N.R. LTD vs. TRANS INTL BANK LTD (supra). Accordingly, the 5th and 6th Respondents issue number one which is incompetent and the arguments canvassed thereon are discountenanced and they are hereby struck out. See ODEH vs. F.R.N. (supra), MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (PT 959) 211 and AFOLABI vs. THE STATE (2016) LPELR (40300) 1 at 5-6.
The 5th and 6th Respondents issue numbers two and three are the same as the two issues nominated by the Appellant. The said issues flow from the grounds of appeal and it is on the basis of the said issues as crafted by the Appellants that I will consider the submissions of learned counsel and resolve this appeal.
ISSUE NUMBER ONE
Whether in view of the acts of the Respondents, the Appellants are entitled to the orders of this Honourable Court enforcing their fundamental human rights?
SUBMISSIONS OF LEARNED COUNSEL
The Appellants assert that the conduct of the Respondents violated their fundamental rights as enshrined in Sections 35 (1), (2) & (3), 36, 41 and 43 of the 1999 Constitution and Articles 6, 7, 12 (1) and 14 of the African Charter on Human and Peoples Rights(Ratification and Enforcement) Act. It was stated that the affidavit evidence establishes the harassment, arrest, detention, further threats of arrest and detention which violated the Appellants fundamental rights to dignity of human person, their right to own movable property which shall not be compulsorily taken and carted away without a search warrant. The cases of A-G & COMMISSIONER OF JUSTICE, KEBBI STATE vs. JOKOLO (2013) LPELR -22349 (CA), ENYINNAYA vs. THE STATE (2014) LPELR-22924 (CA), A-G RIVERS STATE vs. A-G AKWA IBOM STATE (2011) 8 NWLR (PT 1248) 31 at 188 and DENCA SERVICES LTD vs. LEO OLEKA & SONS LTD (2015) LPELR 24444 (CA) were relied upon.
It is the contention of the Appellants that the Lower Court instead of making findings of facts on the issues placed before it, delved into extraneous matters instead of focusing on whether the actions of the Respondents breached the Appellants fundamental rights and thereby made findings of facts which resulted in the erroneous judgment of the Court. It was maintained that action for enforcement of fundamental rights is sui generis and that the reliance by the Lower Court on the provisions of the Insurance Act was erroneous. The case of KPORHAROR vs. YEDI (2017) LPELR -42418 (CA) and SKYE BANK vs. NJOKU (2016) LPELR -40447 (CA) were cited in support.
The Appellants submit that the Lower Court having found at page 247 of the Records that the 3rd and 4th Appellants were arrested and detained erred when it proceeded to hold at page 258 of the Records that there was no breach of the right to dignity of human person occasioned in the circumstances of the case. The Appellants consequently asserted that the findings of facts made by the Lower Court were perverse and occasioned a miscarriage of justice which requires an appellate Court to interfere by setting aside the findings and correcting the same in the interest of justice. The cases of IHEWUEZI vs. EKEANYA (1989) 1 NWLR (PT 96) 239, MINI LODGE LTD vs. NGEI (2009) 7 NWLR (PT 1173) 254 at 287, GIWA vs. JEJELOLA (2014) LPELR 22692 (CA) and MUSTAPHA vs. CORPORATE AFFAIRS COMMISSION (2009) 8 NWLR (PT 1142) 43 at 51 were called in aid.
This Court was consequently urged to find that the fundamental rights of the Appellants were breached and to award compensation for the breach. The cases of OBIEGUE vs. A-G FEDERATION (2014) 5 NWLR (PT 1399) 171 at 218-219, IGWE vs. EZEANOCHIE (2010) 7 NWLR (PT 1192) 61 at 94, JIM-JAJA vs. C.O.P. RIVERS STATE (2013) 6 NWLR (PT 1350) 225 at 254 and ODIBA vs. MUEMUE (1999) 10 NWLR (PT 62) 174 at 190 were referred to.
The 5th and 6th Respondents contention is that they did not violate the fundamental rights of the Appellants. It was stated that the 1st Respondent has powers pursuant to Sections 6, 7, 8 (5), 13 and 41 of the Economic and Financial Crimes Commission (Establishment) [EFCC] Act to invite the Appellants for questioning in view of the criminal allegations made by the 5th and 6th Respondents; and that the invitation does not constitute a breach of fundamental rights. The case of ONIANWA vs. POLICE (2007) CHR 69 at 72 was relied upon.
The submissions of the Appellants in the Reply Brief on this issue was a re-argument of the contention in the Appellants Brief. This is not the function of a reply brief. It is pertinent to state that the repetition of an argument by counsel does not improve the quality of the argument or make it acceptable if it were ordinarily unacceptable. See FSB INTL BANK LTD vs. IMANO NIG LTD (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1816) 1 at 43. Consequently, I discountenance the Reply Brief and the submissions therein. See AKAYEPE vs. AKAYEPE (2009) LPELR (326) 1 at 18 -19 and OGUANUHU vs. CHIEGBOKA (2013) LPELRÂ (19980) 1 at 17.
ISSUE NUMBER TWO
Whether a Court can award a relief not sought by the parties before it.
SUBMISSIONS OF LEARNED COUNSEL
The Appellants submission is that a Court is neither a charitable organisation nor Father Christmas and so cannot grant reliefs not sought by the parties. It was posited that the order of the Lower Court that the 2nd Appellant report to the office of the 1st Respondent within 48 hours of the judgment was not sought by the parties and the parties were not heard on it and consequently violated the 2nd Appellants right to fair hearing. The cases of KALIO vs. KALIO (1975) 2 SC 15, OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 61, ABBAS vs. SOLOMON (2001)15 NWLR (PT 735) 483, INEC vs. MUSA (2003) LPELR 1515 (SC) and MBANEFO vs. MOLOKWU (2014) 6 NWLR (PT 1403) 377 at 419 were relied upon.
The Appellants opine that it is a nullity where a Court grants a relief not asked for and that the relief a Court can grant in exercise of its inherent power is a relief a party is entitled to in the circumstances of the case. It was stated that the Respondents did not have a claim before the Lower Court and therefore a consequential order could not be made as flowing from their claim. It was conclusively asserted that the Lower Court lacked the jurisdiction to make the order. The cases of AKINRIMISI vs. MAERSK (NIG) LTD (2013) 10 NWLR (PT 1361) 73 at 85, FUNDUK ENGINEERING LTD vs. MacARTHUR (1990) 4 NWLR (PT 143) 266, REGD TRUSTEES, APOSTOLIC CHURCH vs. OLOWOLENI (1990)6 NWLR (PT 158) 516, GEORGE vs. DOMINION FLOUR MILLS LTD (1963) 11 SCNR 117, OSUJI vs. EKEOCHA (supra), MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 342 and PDP vs. EZEONWUKA (2017) LPELR- 42563 (SC) were cited in support.
The quiddity of the submission of the 5th and 6th Respondents is that a Court cannot grant a relief not sought except where such a relief is ancillary or incidental to the main relief claimed. The case of NZENWATA vs. NZENWATA (2016) LPELR 41089 (CA) was called in aid. It was then stated that the order made for the 2nd Appellant to report to the 1st Respondent was a consequential order as the facts disclosed that she had failed to honour the invitation by the 1st Respondent for her to appear to be interviewed in the investigation into alleged criminal diversion of fund by the 1st Appellant. It was asserted that the order did not infringe the 2nd Appellants right to fair hearing as the Appellants had sought to use the instrumentality of the Court to shield themselves from the alleged criminality.
The submissions in the Reply Brief on this issue was not a refutation of the arguments of the 5th and 6th Respondents, which is the purpose or function of a Reply Brief. The Appellants merely re-emphasised and reargued the points already taken in the Appellants Brief, referring again to the same authorities. I consequently discountenance the submissions in the Reply Brief on this issue. See ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13, ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 42 and EROMOSELE vs. FRN (2018) LPELR (4385) 1 at 11.
RESOLUTION
The facts of this matter are simple and straightforward. The 1st Appellant is the insurance broker for the 5th and 6th Respondents in respect of their Staff Group Life Assurance and Group Personal Accidents Insurance Scheme. The 2nd Appellant is the Managing Director and alter ego of the 1st Appellant, while the 3rd and 4th Appellants are the Marketing Manager and Head, Technical of the 1st Appellant respectively.
Following a report to the 1st Respondent that the 1st Appellant did not remit the premium paid by the staff of the 6th Respondent to the insurance underwriting companies, the 1st Respondent, as part of its investigations, wrote inviting the 2nd Appellant. The 2nd Appellant did not honour the invitation and a reminder was written, followed by the 2nd and 3rd Respondents visiting the office of the 1st Appellant in search of the 2nd Appellant. The 3rd Appellant was arrested and he volunteered a statement after which he was released on bail on self-recognisance after about three hours. The 2nd Appellant still did not honour the invitation by the 1st Respondent and on a subsequent visit to the office of the 1st Appellant, the 4th Appellant was arrested, he volunteered a statement and was released on bail on self-recognisance after about three hours.
In the statements volunteered by the 3rd and 4th Appellants, they stated that they had no knowledge of details of the brokerage of the 6th Respondent as it was an account exclusively handled by the 2nd Appellant and that only the 2nd Appellant could answer the inquiries being made by the 1st Respondent (see the statements on page 96-99 of the Records). With the 2nd Appellant yet to honour the invitation, the Appellants commenced the action for enforcement of their fundamental rights at the Lower Court. It is effulgent from the affidavit evidence that the 3rd and 4th Appellants were indeed arrested, detained and released on bail the same day, after about three hours. The reliefs claimed by the Appellants are as follows:
A. AN ORDER enforcing the Applicants fundamental rights to privacy, personal liberty, fair hearing, freedom of movement and freedom to acquire and own immovable property anywhere in Nigeria, pursuant to Sections 35 (1), (2) AND (3) 36,41 and 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and Articles 6, 7, 12(1) and 14 of the African Charter on Human and Peoples Rights (Ratification & Enforcement) Act Cap. A9 LFN, 2004.
B. A DECLARATION that the insurance brokerage contract (and all renewals thereto) between the 1st Applicant and the 6th Respondent, for the benefit of the 6th Respondents officers and men, is a purely commercial transaction between the said parties and well within their rights of freedom of contract and that any breaches thereof including breach by default to pay claims as purported by the 1st, 2nd, 3rd, 5th and 6th Respondents, are wholly and exclusively contractual, and therefore, civil in nature, within the exclusive jurisdiction of the civil Courts and disclose or involve no crime or criminal elements whatsoever, such as to invoke or justify the invocation of the law enforcement powers of the 1st-4th Respondents.
C. A DECLARATION that the 1st-3rd Respondents constant invasion of, and/or trespass to, the offices and business premises of the 1st Applicant at 1st Floor, Niger Insurance House, 302/304 Ikorodu Road Anthony Bus Stop Lagos (and anywhere else situated), and their on-going harassment and constant threats of arrest and prosecution of the 1st Applicants officials, including without limitation, the 2nd, 3rd and 4th Applicants hereof, at the instance of and pursuant to a purported, but undisclosed petition to the 1st Respondent by the 5th and 6th Respondents, against the 1st and 2nd Applicants, alleging failure by the 1st Applicant to pay insurance claims to certain beneficiaries under the insurance brokerage contract between the 1st Applicant and the 6th Respondent, the same being a purely contractual matter, are ultra vires the statutory powers of the said Respondents, unlawful and a breach of the fundamental rights of the Applicants to privacy, freedom to own immovable property anywhere in Nigeria, personal liberty and freedom of movement contrary to Sections 35 (1), (2) AND (3), 36, 41 and 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and Articles 6, 7, 12 and 14 of the African Charter on Human and Peoples Rights (Ratification & Enforcement) Act, Cap. A9 LFN, 2004.
D. AN ORDER of Perpetual Injunction restraining the Respondents, whether by themselves, officers, agents, servants. privies or any other persons acting or purporting to act on the Respondents instructions from invading or trespassing, or further invading or trespassing the offices and business premises of the 1st Applicant; and arresting or further arresting, detaining (including conditional release by bail) of the 1st Applicants staff, including, without limitation, the 2nd, 3rd, and 4th Applicants; and harassing, intimidating, whether by means of constant telephone calls or letters of invitation without lawful course; or otherwise, howsoever, violating the Applicants aforementioned fundamental rights, whether on the basis of an alleged breach of the contracts of insurance brokerage between the 1st Applicant and the 6th Respondent, or at all.
E. The sum of N5,000,000.00 (five million naira) damages against the 1st, 2nd, 3rd, 5th, and 6th Respondents for the breach of the Applicants fundamental rights, as details in the affidavits in support of this application.
F. Cost of this action.
The crux of this matter is whether the fundamental rights of the Appellants were infringed by the actions of the Respondents. It is only where a finding is made that the fundamental rights of the Appellants were eviscerated that they will be entitled to the reliefs claimed.
The rule of law serves as the guidepost for all authorities, persons and institutions under our constitutional democracy. Law enforcement agents and agencies which interact with the ordinary citizens on a daily basis have the unalloyed and sacrosanct duty to ensure the protection of the rights of the citizens as guaranteed by law. Law enforcement agents and agencies must therefore endeavour to observe, enforce and secure the observance of lex retro juris (the law behind the law). This can only be done by a moral commitment to the laws that they are called upon to administer and/or enforce. Without such a commitment, the in aeternum question: quis custodit custodes (who will guard the guard) and who will police the police persists. See generally: The Principles of Fair Hearing and the Powers of Arrests and Sanctions by Law Enforcement Agencies in Nigeria (2009) 2 NJPL 258.
Fundamental rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights which have been described as the minimum living standard for civilized humanity have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, 1215. They are rights which embrace and encompass the concepts of liberty and justice. The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME-KUTI vs. ATTORNEY-GENERAL OF THE FEDERATION (1985) 7 NWLR (PT 6) 211 at 229 231. It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights. See UZOUKWU vs. EZEONU II (1991) 6 NLWR (PT 200) 708 at 761.
The question of the infringement of fundamental rights is largely a question of fact and does not depend so much on the dexterous submissions from the forensic arsenal of learned counsel on the law. So it is the facts of the matter as disclosed in the processes filed that are examined, analysed and evaluated to see if the fundamental rights of the Appellants were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The law remains that he who asserts must prove, so the Appellants had the onus of proving by credible affidavit evidence that their fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535 536.
The principal relief claimed by the Appellants is the alleged violation of their fundamental rights to privacy, personal liberty, fair hearing, freedom of movement and freedom to acquire and own immovable [movable] property. The Lower Court dismissed the Appellants action on the grounds that there was no such evisceration of their rights disclosed by the evidence. I have already redacted the salient facts of this matter. By the provisions of Sections 6, 7, and 13 of the EFCC Act, the 1st Respondent has the statutory power to investigate, arrest, interrogate, search and detain any suspect: OBIEGUE vs. A-G FEDERATION (supra) and ONAH vs. OKENWA (supra) at 536. This is undoubtedly so. The only qualification, and a very important one at that, is that the power must not be misused or abused. The power must be exercised in accordance with the law.
It has to be noted that the right to personal liberty enshrined in Section 35 of the Constitution, which is one of the rights the Appellants sought to enforce is not an absolute right. By Section 35 (1) (c) of the Constitution, a person can be deprived of his liberty upon reasonable suspicion of his having committed an offence. Where there is such a deprivation of liberty, such a person arrested or detained shall be brought to Court within a reasonable time, within the meaning of Section 35 (5) of the Constitution, that is, one day where there is a Court of competent jurisdiction within a forty kilometre (40km)radius of the place of detention.
It was on the suspicion that a crime had been committed, as it relates to the allegation of criminal diversion on remittance of the premium paid in respect of the 6th Respondents Staff Group Life Assurance and Group Personal Accidents Insurance scheme, that the 1st Respondent launched its investigation and invited the 2nd Appellant for questioning. The 2nd Appellant did not honour the invitation. It was in the course of this investigation that the 3rd and 4th Appellants were arrested, detained and released on bail after they had volunteered their statement. The facts are lucent that they were detained for only about three hours and then released on bail.
The Constitution is the organic law; it is to be given purposive interpretation: see NAFIU RABIU vs. KANO STATE (1981) 2 NCLR 293 at 326, PDP vs. INEC (2001) 1 WRN 1 at 32 33 and DIRECTOR OF SSS vs. AGBAKOBA (2003) 10 WRN 93 at 153 154. This being so, it would appear that the purpose of Section 35 (5) of the Constitution and the requirement of taking a suspect to Court within a reasonable time is equally satisfied by the release of such person on bail or otherwise within a reasonable time of the arrest. I am not in any doubt whatsoever that the constitutional requirement was satisfied in this matter since the 3rd and 4th Appellants were released on bail on self-recognizance after about three hours of their arrest and detention. Since the facts before the Lower Court showed that the 3rd and 4th Appellants were released on bail within a reasonable time of their arrest and detention, I agree with the Lower Court that their fundamental rights were not breached.
The Appellants complaint of the breach of the right to privacy arises from their aversion to the alleged invasion, trespass, harassment and threat to arrest and prosecute them. Let me iterate that the 1st 3rd Respondents invited the 2nd Appellant for an interview in the course of their investigations.
The invitation was not honoured. A reminder letter was sent (See pages 93 and 94 of the Records). The 2nd Appellant did not report. In a situation which I would liken to the mountain moving to Mohammed, the 2nd and 3rd Respondents then went to the office of the 1st Appellant in search of the 2nd Appellant.
It seems to me that on the facts the complaint of trespass, invasion and harassment arise from the failure by the 2nd Appellant to respond to the invitation sent to her; what is more the 3rd and 4th Appellants who volunteered statements clearly stated that the subject of the investigation was only known to the 2nd Appellant. If the 2nd Appellant had responded to the invitation, it may not have been necessary for the 1st -3rd Respondents to go to the 1st Appellants office. Consequently the facts do not bear out any evisceration of the Appellants right to privacy. It has to be remembered that Section 7(1) (a) of the EFCC Act gives the 1st Respondent the power to investigate whether any person has committed an offence. The visit to the 1st Appellants office in the course of such investigation, without more, cannot be a violation of any fundamental right.
The Appellants complaint on the alleged evisceration of their right to own moveable property is premised on the deposition that the 1st -3rd Respondents carted away two cartons containing files and other documents relating to the 1st Appellants relationship with the 6th Respondent (see paragraph 14 of the Appellants affidavit on page 35 of the Records). The investigation being conducted by the 1st Respondent was on allegation of commission of offence in respect of the relationship between the 1st Appellant and the 6th Respondent. This is in exercise of the 1st Respondents power under Section 7 (1) (a) of the EFCC Act. By all odds, Section 43 of the 1999 Constitution guarantees the right to own moveable property. Furthermore, Section 44 (1) of the Constitution provides that no moveable property shall be taken possession of compulsorily except in accordance with law which provides for payment of compensation. However, Section 44 (2) (k) of the Constitution then stipulates thus:
(2) Nothing in Subsection (1) of this section shall be construed as affecting any general law-
(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry.
It was in the course of investigations under the EFCC Act, a general law; that the files and documents were taken away. Accordingly, the facts do not bear out any breach of the Appellants rights to own movable property.
The Appellants complain about breach of their right to freedom of movement. There is nothing on record which bears out any such infringement. The 2nd Appellant who was invited is yet to respond to the invitation so no one has hindered her movement. The 3rd and 4th Appellants who were arrested were on their own deposition released after about three hours. Be that as it may, Section 41 (2) of the Constitution recognizes that the freedom of movement of a person may be restricted where there is reasonable suspicion of a crime having been committed. Therefore the arrest of the 3rd and 4th Appellants and the restoration of their liberty within a reasonable time as required by Section 35 of the Constitution is not an evisceration of their right to freedom of movement.
The complaint on the breach of the right to fair hearing is anchored on the deposition that the 1st -3rd Respondents refused to show the Appellants the alleged Petition written against the 1st Appellant. Now, the invitation for interview was directed at the 2nd Appellant. The 2nd Appellant has not responded to the invitation. This complaint would have had substance if the 2nd Appellant had reported as required, demanded to see the Petition and it was refused. As it relates to the 3rd and 4th Appellants, their statements at pages 96-99 of the Records give the lie to any claims of infringement of their right to fair hearing as they made statements in respect of the relationship between the 1st Appellant and 6th Respondent stating that it was a relationship exclusively within the purview of the 2nd Appellant only. The facts do not disclose any infringement of the right to fair hearing.
There are no facts in the affidavits filed substantiating any infringement of the right of the Appellants to the dignity of human person guaranteed under Section 34 of the Constitution. There is no allegation of the Appellants having been subjected to torture, inhuman or degrading treatment, slavery, servitude, forced or compulsory labour.
In all, the Lower Court was on very strong wicket which it held as follows at pages 258 of the Records:
From the circumstances of this case I cannot view the arrest or invitation of the 1st to 4th applicants for the purpose of investigations by the respondents herein as a breach of rights to privacy, personal liberty or fair hearing. Nor is there any breach of the right to free movement or to acquire any immovable property.
There is as well no breach of any right to dignity of human person occasioned in the circumstance of this action.
The Appellants hanker after the award of compensation for the infringement of the fundamental rights and complain about the refusal of the Lower Court to award compensation as claimed by them. Doubtless, Section 35 (6) of the Constitution stipulates that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology. The thrust of this constitutional provision is that the entitlement to compensation arises where the arrest or detention is unlawful in the sense that a Court has found that the fundamental rights of a person have been infringed upon.
I have already held in the course of this judgment that the decision of the Lower Court that the Appellants fundamental rights was not breached is the correct decision. This being so, the lower Court was equally right in refusing to award them any compensation as their fundamental rights were not breached.
At the outset, I stated that the allegation of infringement of fundamental rights was a question of fact and was not dependent on the sabre-rattling from the forensic arsenal of learned counsel. The affidavit evidence did not disclose any evisceration of the Appellants fundamental rights. It seems that the object of the Appellants action and the perpetual injunction they sought was to shield themselves from the investigation of the criminal allegation against them. In A-G ANAMBRA STATE vs. UBA (2005) 15 NWLR (PT947) 44, Bulkachuwa, JCA (now PCA)held:
For a person, therefore to go to Court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in control of criminal investigation. The plaintiff has no legally recognisable right to which a Court can come to his aid…The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional power.
Put simply, a Court cannot stop a law enforcement agency from investigating a crime; and whether to or how it is done is a matter within the discretion of the law enforcement agency. See IGP vs. UBAH (2014) LPELR (23968) 1 at 27-28, FAWEHINMI vs. IGP (2002) 7 NWLR (PT 767) 606, HASSAN vs. EFCC (2013) LPELR (22595) 1 at 29 and SALIHU vs. GANA (2014) LPELR (23069) 1 at 34.
In a coda, I will answer issue number one in the negative. In view of the acts of the Respondents, the Appellants are not entitled to an order enforcing their fundamental rights since there was no infringement of their fundamental rights. The issue is resolved in favour of the Respondents.
The Appellants have made a foofaraw of the order made by the Lower Court for the 2nd Appellant to report to the 1st Respondent within 48 hours of the judgment, contending that the relief was not claimed and that the parties were not given a hearing on the terms of the said order before it was made.
The law as I know it is that the Court and the parties are bound by the reliefs claimed in an action as framed by the claimant and it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…
See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92.
The Respondents who wear the shoes knew where it pinched them; they did not counterclaim for any order of Court to compel the 2nd Appellant to honour the invitation for her to report for interview. It was therefore not the business of the Lower Court to consider how to get the 2nd Appellant to honour the invitation of the 1st Respondent. In defining the meaning of claim in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:
A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly.
Just as it is elementary that the claimant cannot present a case different from his claim, so also can a Court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:
The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.
It is hornbook law that a Court is not Santa Claus or a charitable institution and cannot award to a party what it has not claimed. A Court cannot award a party what he has not asked for as that would be an unusual charity and goodwill which a Court of law, qua judex, has no jurisdiction and is incompetent to do. If a party does not ask for a particular relief, it is not the business of a Court to award such a relief. Parties in a contested litigation know what they want and ask for it in Court. If it is proved, so be it. Judgment will be entered in favour of a party only to the extent of what has been asked for. See EKPENYONG vs. NYONG (1975) 2 SC 65 at 7374 and AJIKAWO vs. ANSALDO NIG. LTD (1991) 2 NWLR (PT 173) 359 at 372 BD.
Consequently, it was unsolicited and unusual charity for the Lower Court to order the 2nd Appellant to produce herself at the 1st Respondents office within the next 48 hours from the delivery of the judgment when there was no such relief claimed. It was definitely not a consequential order as it did not flow from the decision of the Lower Court that there was no breach of the Appellants fundamental rights.
I therefore resolve issue number two against the Respondents and hold that a Court cannot award a relief not sought by the parties as the chafed order in this matter was not a consequential order.
To put a wrap on this judgment, the second issue having been resolved in favour of the Appellants, the appeal succeeds in part. The parties are to bear their respective costs. The decision of the Lower Court dismissing the Appellants action for enforcement of their fundamental rights is affirmed while the order of the Lower Court for the 2nd Appellant to produce herself at the office of the 1st Respondent is set aside.
TIJJANI ABUBAKAR, J.C.A.: I had a preview of the leading judgment rendered in this appeal by my learned brother Ugochukwu Anthony Ogakwu JCA. I am in agreement with the entire reasoning and conclusion and adopt the judgment as my own, I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have been afforded the opportunity of reading in advance the judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with his reasoning and conclusion and align myself with same.
I too allow the appeal in part.
I also abide by the consequential orders made in the leading judgment including the order as to costs.
Appearances:
G.C. Ugochukwu, Esq. with him, F. I. Okike, Esq. & Ms.O. Odumade For Appellant(s)
T.J. Banjo,Esq. – for 1st – 3rd Respondents.
Mrs. S.A. Yakubu – for 5th & 6th Respondents
4th Respondent absent and not represented by counsel. For Respondent(s)
