MRS. JACINTA OKEKE & ANOR v. PETER IHEAZIE & ORS
(2018)LCN/11858(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/OW/324/2013
RATIO
FUNDAMENTAL RIGHT: RIGHT TO PERSONAL LIBERTY
“It is important at this juncture to refer to the provisions of Section 35(4) of the 1999 Constitution (as amended) on constitutionally guaranteed right to personal liberty.
The section reads thus:
”35 (1)Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law
(a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with order of a court or in order to secure the fulfillment of the any obligation imposed upon him by law;
(c) for the purpose of bring him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing criminal offence;
(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare.
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. MRS. JACINTA OKEKE
2. MR. JOHN IWUJI OKEKE Appellant(s)
AND
1. PETER IHEAZIE
2. MRS. GRACE IHEZIE
3. MR. UCHEONYE (DBB SECTION, CID OWERRI)
4. MR. ROGER (DBB, CID OWERRI)
5. MR. EMEKA (DBB SECTION, CID OWERRI)
6. COMMISSIONER OF POLICE, IMO STATE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal filed by the appellants who were the applicants at the lower Court.
The applicants had filed an application for enforcement of their fundamental rights at Imo State High Court which sat, at Nkwerre, seeking the following reliefs:
1. A declaration that the arrest detention and the inhuman treatment of the 1st applicant and the threat to arrest the 2nd Applicant by the 3rd – 5th Respondents at the behest of the 1st and 2nd Respondents over an alleged offence committed by their ward is unjustifiable in law and amounts to a violation of their fundamental rights to freedom of movement personal liberty human dignity and freedom from torture.
2. An Order enforcing the fundamental rights of the Applicants to freedom of movement personal liberty, dignity of human person and freedom from torture as respectively enshrined in Sections 41, 35 and 34 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
3. An Order mandating the 3rd -6th Respondents to release the 1st Applicant on bail pending her trial or in the alternative to release her unconditionally.
4 An Order awarding the sum of N5,000.000.00 (Five Million Naira) as general and exemplary damages to the Applicants against the Respondents jointly and severally for the breach by the Respondents of their fundamental rights as guaranteed under Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5. An Order directing the Respondents jointly and severally to pay to the 1st Appellant the sum of N49,500 (Forty-Nine Thousand Five Hundred Naira) being the cost of the food prepared by her for the purpose of selling which got sour and wasted whilst she was under detention and the sum of N98,750.00 (Ninety-Eight Thousand Seven Hundred and Fifty Naira) being cost of other perishable food items belonging to the 1st Applicant which deteriorated whilst the 1st Applicant was in detention.
6. An Order of Court restraining the Respondents either by themselves or acting through their servants, agents or privies from either arresting or detaining or further threatening to arrest or detain the Applicants.
The grounds for seeking the said reliefs are:
a. The conduct of the 3rd-6th Respondents in arresting/detaining the 1st Applicant and in threatening to arrest the 2nd applicant over an offence allegedly committed by their son and without any just cause amounts to a violation of their fundamental rights to personal liberty and freedom of movement as guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
b. The inhuman and degrading treatment meted out to the 1st Applicant by the Respondents amounts to a violation of her right to human dignity and freedom from torture as enshrined to Section 34 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
c. The aforesaid conducts of the Respondents towards the Applicants are not justifiable under any law as the Applicants were not involved in any criminal acts in relation to the Respondents or to any other person at all.
The 3rd – 5th Respondents at the lower Court after being served reacted by filing 17 paragraphed affidavit.
Paragraphs 5-15 of the counter affidavit are very pertinent. They read as follows:-
5. That I have read the motion papers.
6. That a petition addressed to the Assistant Inspector General of Police, Zone 9 Umuahia, alleging malicious damage, stealing and threat to life was written by Barrister Theo Nwaigbo on behalf of the 1st respondent.
7. That on the 19th day of April, 2012, the said petition was endorsed by the A10 zone 9 Umuahia to the Commissioner of Police Imo State subsequently, the Commissioner of Police minuted the petition to the Deputy Commissioner of Police in-charge of State C.I.D and the DC State C.I.D thereafter in-charge of D8 to look into the matter and Inspector Emeka Nwachukwu was detailed to investigate the matter. The said petition is annexed as Exhibit JA.
8. The 3rd – 6th are not in the position to admit or deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 17, 21 and 22 of the applicant’s affidavit in support of motion but put it to the applicants to the strictest proof thereof.
9. That paragraph 12 of applicants’ affidavit in support of motion is false and hereby denied. Based on Exhibit JA above, which establishes a prime facie case on its face, the 1st applicant was invited to report at State C.I.D Owerri, which she did.
10. That the facts on paragraph 13 are known to the applicants alone and to add that the 1st applicant was not incarcerated by any of the respondents.
11. That paragraphs 14 is also false and denied. The true position was that the officer in-charge D8 minuted that the applicant should be released on bail to a reliable surety on the same 23/5/2012 she reported to the State C.I.D and the 1st applicant never brought any person to take her on bail as the husband and the sons were on the hiding because of the allegation in Exhibit JA and the applicants’ counsel confirmed in paragraph 14 of affidavit in support of applicants’ motion that he visited the 1st applicant at the police cell on the 25/5/2012. The minute sheet where the O/C D8 directed that 1st applicant should be released on bail to reliable surety on 23/5/2012 is annexed as Exhibit JB.
12. That paragraphs 15 and 16 are false and denied. There are toilet facilities and bathrooms provided for inmates in the cell because they need them.
13. That paragraph 18 is false. The 2nd applicant never came to State C.I.D knowing fully well that he is a suspect in the case that gave rise to the suit but rather 2nd applicant sent someone who came for her bail and the 1st applicant was released promptly on bail.
14. That paragraph 19 is false. The 3rd-5th respondents invited the 2nd applicant to report to State C.I.D based on Exhibit JA attached to our counter affidavit.
15. That paragraph 20 of affidavit in support of applicants’ motion is false and hereby denied. The true facts are as follow:
(a) The mango tree which is an issue in the case that gave rise to this suit was purportedly bought by the 2nd applicant.
(b) The mango tree was cut down by the 2nd applicant and the owner of the tree 1st respondents frown at it and both of them fought.
(c) 2nd applicant reported the incident at Ehime Mbano Police Station and 1st respondent was arrested and detained.
(d) That based on the problem between 2nd applicant and 1st respondent, 1st and 2nd applicants called Temple Iwuji and Gods- power Iwuji their sons on phone to come and deal with the 1st respondent and family while the 1st respondent was still in detention at Ehime Mbano Police Station.
(e) That 1st respondent was still in detention at Ehime Mbano Police Station when Temple Iwuji and Godspower Iwuji were invited back home by the 1st and 2nd applicants.
(f) Temple Iwuji and Godspower Iwuji went to the house of the 1st respondent met no one in the house broke the doors and damaged all the property in the house. I refer the Court to the petition Exhibit JA where the properties damaged are listed and I hereby annexed photographs of the damages properties as Exhibit JC and JD respectively.
(g) The said Temple and Godspower have refused to report at State C.I.D to answer to the allegation against them.
The applicants further filed a further affidavit which provoked the 3rd-5th Respondents into filing further counter-affidavit.
In their further affidavit, the applicants deposed that the 1st applicant was released on bail on 29/5/2012 even though she was arrested by the 3rd and 6th Respondents on 23/5/2012.
These averments were not denied by the 3rd ? 6th Respondents even in their further counter-affidavit.
After hearing the parties the learned trial Judge entered judgment dismissing the applicants’ application in the following terms; Throughout the applicant’s affidavit, there exists no act of the respondents which amounted to a violation of their fundamental rights. The respondent showed that the 2nd applicant was granted bail at the earliest time. See Exhibits JB. The 2nd applicant therefore did not prove that the respondents violated her fundamental right and I so hold. As regards the amount of N49,500.00 and N98,750.00 being the amount spent on food cooked by the 2nd respondent and also purchases made by her. That claim does not fall under the fundamental right and there is no remedy for it therein. The claim cannot be determined without calling evidence and the witness (es) cross examined.
From the totality of the above, the 2nd applicant did not prove her case.
In the final analysis, the applicants claim failed and is hereby dismissed with N3,000 cost in favour of the 3rd to 6th respondents.
Miffed by the above decision, the applicants challenged it via their Notice of Appeal on 6 grounds.
The grounds of appeal read thus:
GROUND OF APPEAL
GROUND ONE: ERROR IN LAW
The learned trial judge erred in law when he failed to pronounce on the various submissions made before him on behalf of the Appellants which said failure amounted to a denial of fair hearing and also occasioned a miscarriage of justice against the Appellants.
PARTICULARS OF ERROR
1. The Appellants counsel at the lower Court made the following submissions;
(a) That the documents including Exhibits JA and JB annexed to the counter Affidavit of the 3rd-6th Respondents are inadmissible in evidence.
(b) That the failure of the 3rd-6th Respondents to expressly deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 17, 21 and 22 of the supporting affidavit must be deemed as an admission of same.
(c) That the failure of the 1st and 2nd Respondents to file any counter affidavit in opposition to the Application must be deemed as an admission of the claims against them.
(d) That the averments of the 3rd-6th Respondents at Sub-paragraphs 15(a) (b) (c) (d) (e) (f) and (g) of their counter affidavit amount to hearsay evidence and should therefore be struck out.
(e) That the allegation of facts contained in Sub-paragraphs 12(d) ?(g) of the counter-affidavit made against persons who are not part of the proceedings should be struck out.
2. Surprisingly, the learned trial judge shut his eyes at the above submissions amongst others and refused to pronounce on them which said failure impinges on the Appellants’ right to fair hearing and occasioned a miscarriage of justice against the Appellants.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he admitted in admissible evidence to wit: Exhibits JA and JB in evidence and also relied on them in dismissing the Appellants’ application.
PARTICULARS OF ERROR
1. Exhibits JA and JB upon which the trial judge relied to dismiss the Appellants suit were mere photocopies. They were not in the proper form prescribed by the evidence Act for admissibility.
2. Notwithstanding the objections raised by the Appellants’ counsel to the admissibility of the said documents, the trial judge admitted them in evidence as Exhibits JA and JB and also relied on them to dismiss the Appellants suit.
GROUND THREE: MISDIRECTION
The learned trial judge misdirected himself when he held as follows:
From the totality of the above, it is my view and I so hold that the 2nd Applicant?s fundamental right was not at all threatened.
PARTICULARS OF MISDIRECTION
1. There is ample evidence on record showing that the fundamental rights of the 1st Applicant were under jeopardy.
2. Notwithstanding the said evidence the learned trial judge held that the 2nd Appellant’s Fundamental Right was not at all threatened, which said decision occasioned a miscarriage of justice against the Appellants
GROUND FOUR: ERROR IN LAW
The learned trial judge transgressed in law when he held as follows:
The mere fact that the respondents told the Police to detain all the members of their family does not constitute an offence in Law.
Which said finding influenced the decision of the trial judge to exonerate the 1st and 2nd Respondents from liability to the Appellants claims and thereby dismissed the Appellants’ suit.
PARTICULARS OF ERROR
1. Although Exhibit JA does not disclose a reasonable ground to suspect that any of the Appellants committed any crime, yet the 1st and 2nd Respondents let the 3rd -5th Respondents to the house of the Appellants and insisted on arresting and did instigate the 3rd-5th Respondents to arrest and detain the 1st Appellant.
2. It is therefore surprising that the learned trial judge held that the Appellants failed to show how the 1st and 2nd Respondents violated their Fundamental Rights.
GROUND FIVE: MISDIRECTION
The learned trial judge misdirected himself when he held as follow:
Throughout the Applicants’ affidavit, there exists no act of the Respondents which amounted to violation of their Fundamental Rights.
Which said decision occasioned a miscarriage of justice against the Appellants.
PARTICULARS OF MISDIRECTION
1. Paragraphs 11 and 12 of the supporting affidavit to the Appellants motion contain grave allegation of facts against the 1st and 2nd Respondents who failed to file any counter affidavit to challenge same. Yet, the learned trial judge held that the Appellants failed to show how the 1st and 2nd Respondents violated their right.
2. Paragraphs 11-17 of the supporting affidavit to the Appellants motion contain concrete evidence of the various acts and omissions of all the Respondents which amount to a violation of the Appellants’ Fundamental Rights. Yet, the learned trial judge held that the Appellants failed to prove that the Respondents did violate their rights.
GROUND SIX: ERROR IN LAW
The learned trial judge erred in law when he held as follows:
As regards the amount of N49,500.00 and N98,750.00 being the amount spent on food cooked by the 2nd Respondent and also purchases made by her, that claim, does not fall under the Fundamental Right and there is no remedy for it therein. The claim cannot be determined without calling evidence and the witnesses cross-examined.
PARTICULARS OF ERROR
1 The special damages to wit N49,500.00 and N98,750.00 claimed by the Appellants at the lower Court are merely ancillary to the principal reliefs numbered 1, 2 and 3 as set out in the Appellants originating motion
2. It has been judicially settled that where the principal relief is justifiable under the Fundamental Rights (Enforcement procedure) Rules or Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The ancillary reliefs thereto are sustainable.
3. Contrary to the foregoing settled principle, the learned trial judge discountenanced the Appellants’ reliefs for special damages on the ground that they are not justifiable under the Fundamental Rights (Enforcement Procedure) Rules.?
After transmission of record of appeal to this Court the appellants filed their appellants’ brief of argument which was deemed filed on 30/11/2017.
The said brief was settled by Chief Okey Ehieze (KSC) their counsel.
APPELLANTS BRIEF OF ARGUMENT
The Appellants’ Brief of Argument was filed on 13/08/2016. It was settled by their Counsel Chief OKEY EHIEZE (KSC).
Learned Counsel to the appellants formulated four (4) issues for determination in the instant appeal to wit:
(1) Whether the learned trial Judge did not breach the appellant’s right to fair hearing when he failed to consider and pronounce on the several legal submissions made by the appellants’ counsel before arriving at his decision (distilled from ground 1 of the grounds of appeal).
(2) Whether the learned trial Judge was right in admitting Exhibits JA and JB and relying on them to find against the appellants (distilled from ground 2 of the grounds of appeal).
(3) Whether the appellants did not prove that there was a breach and violation of this fundamental right by the respondents (distilled from grounds 3, 4 & 5 of the grounds of appeal).
(4) Whether the learned trial Judge was right when he held that specific damages cannot be claimed in an application for the enforcement of fundamental rights as to the present case (distilled from grounds 6 of the grounds of appeal.
ISSUE NO: 1
Whether the learned trial Judge did not breach the appellant?s right to fair hearing when he failed to consider and pronounce on the several legal submissions made by the appellants? counsel before arriving at his decision (distilled from ground 1 of the grounds of appeal).
Learned Counsel to the appellants submitted that by the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, right to fair hearing was not only a constitutional right but also a principle of law fundamental to any adjudication and that the bottom line to the doctrine of fair hearing as applicable in the determination of civil and obligation of citizen was a trial conducted according to all the legal rules formulated to ensure that justice was done to all the parties as such it regards the service of the two pillar of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua.
To this end, failure to adhere to it or any breach of the right will automatically render the proceeding in which the breach occurred null and void. He relied on the cases of MILITARY GOV. OF LAGOS STATE V. ADEYIGA (2012) ALL FWLR (PT. 616) p. 396; J.S.C. CROSS RIVER STATE v. YOUNG (2014) ALL FWLR (PT. 714) 40 AT 68 (See pages 49-54 and 86 -92 of the records).
He contended that there was a statutory responsibility on all Courts to consider adequately and properly all issues placed before them and failure to do so would lead to denial of fair hearing which was capable of rendering any proceedings a nullity. He relied on the case of TANKO VS UBA PLC (2011) ALL FWLR (PT. 556) 408 @ 414 – 415.
Learned Counsel to the appellants submitted that the lower Court should not have only considered all the issues properly raised, and heard with an extra step to reflect the result of such an exercise in its judgment and that if the trial Court had listened or considered the appellant’s point of view, he would have arrived at a different conclusion other than dismissing the appellants’ application. Since the appellants’ point of view was not so considered it amounted to a denial of fair hearing. He relied on the case of UCHA V ELECHI (2012) ALL FWLR (PT. 625) 237 @ 252.
Learned Counsel to the appellants urged this Court to resolve this issue in favour of the appellants.
ISSUE NO: 2
Whether the learned trial Judge was right in admitting Exhibit JA & JB and relying on them to find again the appellant (distilled from ground 2 of the grounds of appeal).
Learned Counsel to the appellants submitted that the answer to this issue was obviously in the negative Indeed at the Court below, the 3rd -6th respondents who opposed the appellants’ application relied heavily on Exhibits JA and JB which was a photocopy of the 1st – 2nd respondents purported petition and a minute sheet from the O/CD8 State C.I.D Owerri respectively and that upon receipt of those documents, counsel for the appellants promptly raised an objection in his reply on point of law as to the admissibility of the document having regards to the principle/position of the law, but the trial judge regardless of the objections raised went ahead to admit and rely on the documents.
He further submitted that by the combined effect of Sections 102, 90 and 89 of Evidence Act 2011, Exhibit JA and JB were inadmissible in law for they were public documents which ought to be certified before they could be admitted and relied on by any Court of law. He relied on the cases of OSAYOMI V GOVERNOR OF EKITI STATE (2014) ALL FWLR (PT. 751) 1573 @ 1606; IGORI V IGORI (2014) ALL FWLR (PT. 729) 1154 @ 1165; SECTION 102, 90 and 89 of EVIDENCE ACT, 2011.
Learned Counsel to the appellants submitted that a document that was inadmissible in law was invalid for all intents and purpose and it could not form the basis of any competent finding of a Court of record and where wrongly admitted, the Court had the power and jurisdiction to expunge it.
Learned Counsel to the appellants finally submitted on this issue that since Exhibits JA and JB were public documents, the only legally acceptable means of proving same was by producing a certified true copy and no other and that in the event that an uncertified copy was wrongly admitted in evidence and relied on by the trial Court as in the instant case, it was the duty of the Court of Appeal when challenged to reject the exhibit.
Learned counsel to the appellants urged this Court to resolve this issue in favour of the appellants.
ISSUE NO: 3
Whether the appellants did not prove that there was a breach and violation of this fundamental right by the Respondents (distilled from grounds 3, 4 & 5 of the grounds of appeal).
Learned Counsel to the appellants contended that in an application for the enforcement of fundamental right, the Onus was on the applicant to establish that his rights had been, was being or was likely to be breached or violated and the onus placed on the applicant must be discharged or proved by affidavit evidence in line with the Fundamental Right (Enforcement Procedure) Rules 2009, and that the appellants stated overwhelming facts in the affidavit evidence in support of their application establishing the infringement of their fundamental rights (See paragraphs 9-19 of the appellant’s affidavit in support) See also pages 3- 14 of the records.
He submitted that the 1st appellant having proved that he was detained by the 3rd -6th respondents, whether at the behest of the 1st and 2nd respondents or not, the burden placed on the appellants by law had between discharged and the appellants having discharged the burden of proof, it was the duty of the 3rd-6th Respondents to adduce credible evidence to justify the arrest and detention of the 1st applicant. He relied on the case of OLISA AGBAKOBA V DIRECTOR SSS & ORS (1994) 6 NWLR (PT. 551) 475 @ 495.
Learned Counsel to the appellant further submitted that the 3rd -6th respondents failed, refused and neglected to discharge the burden placed on them by the law as there was nothing in their counter affidavit sufficient to justify the arrest and detention of the 1st appellant for 7 days without charging her to Court, which was a total contravention of the extant provision of the 1999 Constitution and that the exhibit upon which the 3rd-6th respondents have predicated their defence was in law inherently inadmissible and could not serve any purpose to justify the unlawful detention of the 1st appellant.
He further contended that the 3rd -6th respondents failed woefully to positively deny certain paragraphs of the affidavit in support of the appellants? motion which was fundamental to the appellant’s case and that bare denial amounted to no denial in law and as such the averments were deemed admitted. He relied on the cases of NNPC V. FAMFA OIL LTD (2012) ALL FWLR (PT. 635) 204 @ 833 – 239 OGUNLEYE V. AINA (2013) ALL FWLR (PT. 682) 1681.
Learned Counsel to the appellant contended that the 1st and 2nd respondents who entered appearance on 4/6/2012 and was duly served all the processes in this suit neglected to file any process in challenge of any (all of the averment contended in the appellants affidavit in support of motion.
He further submitted that where evidence adduced was unchallenged, the Court was entitled to rely on it to its decision and facts contained in an affidavit formed part of documentary evidence before the Court and where an affidavit was filed deposing to contain facts and the other party did not file a counter affidavit, the facts deposed to in the affidavit would be deemed challenged, undisputed and admitted, as facts of INEGBEDION V SELO OJEMEN (2013) ALL FWLR (PT. 688) 907 @ 916, DUKKU ISHAYA V THE STATE (2013) ALL FWLR (PT. 588) 589, FIRST MOTORS LTD V ALPHA PROPERTIES LTD (2013) ALL FWLR (PT. 665) 376.
He finally submitted that the appellants had by the facts adduced in their affidavit evidence before the Court showed that their fundamental right to personal liberty, freedom of movement, dignity of person and freedom from torture were infringed upon.
Learned Counsel to the appellants urged this Court to resolve this issue in favour of the appellants.
ISSUE NO: 4
Whether the learned trial judge was right when he held that specific damages could not be claimed in an application for the enforcement of fundamental rights as in the present case (distilled from ground 6 of the grounds of appeal).
Learned Counsel to the appellants answered the above issue in the negative and submitted that a claimant in any civil suit including an application for the enforcement of fundamental rights could approach the Court and seek any type of damages known to our law and this included special damages that who defined as such a loss that would not normally be presumed as the natural consequence of the defendant?s fault, but which depended on the special circumstances of the case, therefore it must be specifically pleaded and strictly proved by evidence and that it also consisted of out of pocket expenses and loss of earning incurred down to the date of trial, and was generally capable of substantially exact calculating. He relied on the cases of ADIM V. N.B.C LTD (2010) ALL FWLR (PT. 527) 690 @ 701. AMC (NIG.) LTD V VOLKSWAGEN OF (NIG) LTD (2011) ALL FWLR (PT. 588) 928.
He submitted that challenged credible evidence in support of special damages could be accepted as proof of the claim and once evidence was adduced on items classified as special damages in line with pleadings and such evidence was not challenged, the evidence should be deemed to have been duly proved. He relied on the case of A.M.C. (NIG) LTD V. VOLKSWAGEN OF (NIG.) LTD (Supra).
Learned Counsel to the appellants submitted that strict proof required for special damages meant no more than such proof that could be readily quantified or assessed and that in the absence of any known law stating that a claim for special damages could not be sustain in an application for the enforcement of fundament rights, the applicants had proved their entitlement to the special damages claimed and as such should be awarded same.
He further submitted that where there had been a proper and adequate pleadings, the unchallenged evidence, without more could constitute sufficient proof of special damage and when a sufficient proof was given, as in the instant case, the duty on the Court was to give adequate consideration to the evidence offered and if the accepted evidence possessed such probative value as preponderated the case in favour of the person claiming, then an award of special damages would be made and justified.
He submitted further that a claim for special damages in an application for the enforcement of fundamental rights could be sustained or determined by affidavit evidence and assuming without conceding there was conflict in the affidavit evidence, the Court could order oral evidence.
Learned Counsel to the appellants urged this Court to resolve this issue in favour of the appellants and allow this appeal.
The Respondents despite having been served with requisite Court processes failed to file their respective briefs of argument as required by the rules. I shall therefore determine this appeal based on appellants brief of argument.
I have carefully considered the issue donated by learned counsel. I am of the respectful view that issues 3 and 4 of the issues are apt and wide enough for the just determination of this appeal. I therefore adopt them;
Whether the Appellants did not prove that there was a breach and violation of their fundamental right by the Respondents.
From the record of proceedings the following are clear:
(1) The 1st appellant was arrested and detained by the 3rd -6th Respondents on 23/05/2012.
(2) The arrest and detention were not in connection with the commission of a capital offence.
(3) The 1st appellant was released on bail on 29/5/2012 without having been charged to Court.
(4) Between 23/5/2012 and 29/5/2012 the 1st appellant was in police custody.
(5) It is not the defence of the 3rd – 6th Respondents that the police station was too far from the Court where the 1st appellant could have been charged to.
It is important at this juncture to refer to the provisions of Section 35(4) of the 1999 Constitution (as amended) on constitutionally guaranteed right to personal liberty.
The section reads thus:
”35 (1)Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law
(a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with order of a court or in order to secure the fulfillment of the any obligation imposed upon him by law;
(c) for the purpose of bring him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing criminal offence;
(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare.
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribe for the offence.
(2) any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person or his own choice.
(3) any person who is arrested or detained shall be informed in writing within twenty four hours and in a language that he understands of the facts and grounds for his arrest or detention.
(4) Any person who is arrested or detained in accordance with Sub-section (1) (c) of this section shall be brought before a Court of law within a reasonable time and if he is not tried within a period of ?
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against (him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section the expression ?a reasonable time means-
(a) in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometers a period of one day; and
(b) in any other case, a period of two days or such longer period in the circumstances may be considered by the Court to be reasonable.
(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person and in the subsection, the appropriate authority or person means an authority or person specified by law.
(7) Nothing in this section shall be construed.
(a) in relation to Subsection (4) of this section as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) as invalidating any law by reason only that it authorizes the detention for a period not exceeding three months of a member of the armed forces of the Federation or a member of the Nigeria Police Force in execution of a sentence improved by an officer of the armed forces of the Federation or of the Nigeria Police Force in respect of an offence punishable by such detention of which he has been found guilty.
The grundnorm of this country does not allow a person to be removed from the comfort of his home and kept in police cell for unreasonable period and for no reasonable case.
SEE SECTION 35 (4) & (5) OF THE 1999 Constitution (as amended)
S.35(6) of the said section also provides for –
”any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.”
It is in the light of the above that I shall view the facts of this appeal. I find it very difficult to understand why the learned trial Judge held that no act of the respondents amounted to a violation of the fundamental rights of the respondents. What about the detention of the 1st appellant? If there was nobody to stand as surety for her why was she not charged to Court? Was she a murder suspect/accused? After the 1st appellant had shown that she was detained in police custody for more than 24 hours, it became the duty of the 3rd – 6th Respondent to justify the detention. This they failed to do. They neither presented the entry in the crime diary at the police station before the Court nor produce the statement of the 1st appellant not even the statement of those who allegedly reported the case incriminating the 1st appellant was produced in Court.
It is true that the appellants can be arrested by the police upon reasonable suspicion of having committed criminal offence but the powers of the police in this regard are statutorily defined. The Court has a duty to enforce the provisions of the laws validly made-
See AMAECHI V INEC & ORS (No. 3) (2007) 18 NWLR (PT 1065) p.105.
To my mind, the arrest and detention of the 1st appellant was contrary to the provision of S. 35 of the 1999 Constitution (as amended).
The case of the 2nd Appellant is different however this is on the alleged threat to arrest him by the 3rd-6th Respondents. One finds it difficult to understand why the 3rd-6th Respondents would want to arrest the 2nd appellant if the basis of the arrest was on the letter written by I. J. NWUGBO Esq. on page 35 of the record of appeal. The 3rd – 6th Respondents have not produced any document or evidence to warrant the threatened arrests. I therefore resolve this issue in favour of the appellants.
ISSUE II
Whether the learned trial Judge was right when it held that specific damages cannot be claimed in an application for the enforcement of fundamental rights as in the present case.
The provision of Section 35(6) of the 1999 Constitution are very clear on the entitlement of a person unlawfully detained to compensation and public apology by the appropriate authority. There are also several cases where damages have been awarded in fundamental rights actions. See OZIDE & ORS V. EWUZIE & ORS (2015) LPELR 24482, IGBOKWE V C.O.P EDO STATE & ORS (2017) L.P.E.L.R-42072 (C.A.), OKONKWO V OGBOGU (1996) 5 NWLR (PT. 499) P. 420.
I therefore respectfully disagree with his Lordship that damages cannot be claimed in an application for enforcement of fundamental rights.
There is no doubt that the 1st appellant is entitled to compensation for her unlawful detention from 23/5/2012 to 29/3/2012. To be forcefully uprooted from the comfort of one?s home and put in a police cell contrary to the provisions of the Constitution is an act deserving of every form of condemnation in a decent society. It definitely was a very traumatic experience for the 1st appellant.
I resolve this issue also in favour of the appellants.
I shall invoke the provision of Section 15 of the Court of Appeal Act to award the sum of N300,000.00 (Three Hundred Thousand) as compensation to be paid by the 3rd ? 6th Respondents to the 1st appellant for her unlawful detention.
As regards the 1st and 2nd Respondents, I am unable to see any fault on their side concerning this application. In exercise of this rights as citizens they reported the incident to the police (the 3rd – 6th respondents). How the 3rd – 6th Respondents went about to effect the arrest and detain the 1st appellant is entirely the discretion of the 3rd – 6th Respondents.
(a) Appeal is allowed.
(b) The decision of the lower Court as it effects the 3rd – 6th Respondents is hereby set aside.
(c) The 3rd-6th Respondents are hereby ordered to pay the sum of N300,000.00 (Three Hundred Thousand) as compensation to the 1st Appellant for her unlawful detention.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, T.O. Awotoye, JCA, in the lead judgment, just delivered. I too allow the Appeal and abide by the consequential orders in the lead judgment.
I think it smacks of serious error of judgment for the trial Court to have said:
”Throughout the Applicant’s affidavit, there exist no act of the Respondents which amounted to a violation of their fundamental rights. The Respondent showed that the 2nd Applicant was granted bail at the earliest Opportunity. The 2nd Appellant therefore did not prove that the Respondents violated her fundamental rights and I so hold.”
That findings and holding were strange and perverse in the face of evidence, even from the Respondents, that 1st Appellant was arrested and detained by 3rd-6th Respondents, at the behest of the 1st and 2nd Respondents and the 2nd Appellant threatened with arrest. Releasing Appellant on bail, after a wrongful arrest, even goes to establish that she had been detained, depriving her of her liberty, and subjecting her to the associated indignities. The Court cannot gloss over any violation of one’s rights. And by law, detention, when wrongly done, is actionable and condemnable, no matter how short. See Ogbonna Vs Egbulefu & Ors (2018) LPELR – 43810 CA,
where it was held:
”It is however correct to hold that detention, no matter how short, can lie a breach of fundamental rights. But that can only be so if the detention is adjudged wrongful and unlawful in the first place; that is, if there is no legal foundation to base the arrest and/or detention of the Appellant See Okonkwo Vs Ogbogu (1996) 5 NWLR (Pt. 499) 420; lsenahmbe Vs Amadin (2001) CHR 458; Nemi Vs A.G.Lagos State (1996) 6 NWLR (Pt.452).
I have already said that I too allow the appeal, agreeing with my learned brother Awotoye JCA. I still abide by the consequential orders in the lead judgment.
Appearances:
Chief Okey Ehieze, Esq. (KSC)For Appellant(s)
For Respondent(s)
