THE STATE SECURITY SERVICE & ANOR v. MALLAM NASIR EL-RUFAI, OFR
(2018)LCN/11994(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/641/2014
RATIO
EVIDENCE: WHERE THERE IS TWO CONFLICTING EVIDENCE
“As correctly submitted by the Appellants’ learned counsel, it is the general principle of law that, where a matter is being tried on affidavit evidence and the Court is confronted with conflicting or contradictory or irreconcilable evidence relied on by the opposing parties on a very material issue placed before the Court for determination, the Court cannot achieve the resolution of such conflict or contradiction by evaluating the conflicting or contradictory evidence. Rather, in order for the Court to arrive at the justice of the matter, it can only resort to the ‘viva voce’ evidence from the deponents of the relevant affidavit/counter affidavit and such other witnesses as the parties may be advised to call. See the cases of: (1) Falobi v. Falobi (supra); (2) Olu-Ibukun v. Olu-Ibukun (1974) NSCC p.51; (3) Akinsete v. Akindutire (1966) 1All NLR p.147; (4) Chairman, National Population Commission v. Chairman, Ikere Local Govt. & Ors. (2001) LPELR-3166 (SC) and (5) Eze v. Unijos (2017) LPELR-42345 (SC).” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
EVIDENCE: AFFIDAVIT EVIDENCE
“Thus, it is the affidavit evidence placed before the Court which the Court must fastidiously evaluate in order to reach a just resolution of the application of an applicant. In short the facts averred in the affidavits placed before the Court by the parties in fundamental rights enforcement proceedings constitute the pleadings, the adduced evidence in the matter. See the cases of: (1) Jack v. University of Agriculture, Makurdi (2004) LPELR-1587 (SC); (2) IGP & Ors. V. Eze (2017) LPELR 42923 (CA); (3) Bamaiyi v. The State (2001) FWLR (Pt.46) p.956 at p.978; (4) ASCO Investment Ltd. & Anor. V. Ezeigbo & Anor. (2015) LPELR-24460 (CA); (5) B. N. Mbang v. W/PC Janet (2015) All FWLR (Pt.767) p.766 at p.784; (6) Ukaobasi v. Ezimora (2016) LPELR -40174 (CA).” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FUNDAMENTAL RIGHT: ENFORCEMENT OF FUNDAMENTAL RIGHT
“The above provisions, that is, Section 46(1) are restricted to the actual violation or threatened violation of any of the provisions of Chapter IV of the Constitution which are labeled as, fundamental human rights provisions. Therefore, Section 46(1) and (2), unambiguously relate to an application for the enforcement of any of the fundamental rights under Chapter IV of the Constitution, that is, Sections 33 to 44 of the Constitution. See the cases of: (1) Gafar v. Government of Kwara State (2007) All FWLR (Pt.360) p.1415; (2) Dongtoe v. Civil Service Commission, Plateau State (2001) 4 SC (Pt.1) p.43 and (3) Borno Radio TV Corporation v. Egbuonu (1991) 2NWLR (Pt.171) p.81.
In the instant matter, the reliefs sought by the Respondent at the trial Court are predicated on Sections 34(1)(a) to (c), 35(1), 38(1), 39(1), 40 and 41(1) of Chapter IV of the Constitution.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. THE STATE SECURITY SERVICE
2. THE ATTORNEY-GENERAL OF THE FEDERATION Appellant(s)
AND
MALLAM NASIR EL-RUFAI, OFR Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Federal High Court, Awka Judicial Division (hereinafter referred to as ‘the trial Court’), in Suit No. FHC/AWK/CS/310/2013 per I. B. Gafai J., delivered on 29th of September, 2014.
At the trial Court, the Respondent as Applicant commenced an application against the Appellants as Respondents vide a motion on notice dated and filed on 19th of December, 2013. The application was commenced pursuant to Order II Rules 1 & 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 as preserved by Section 315 of the Constitution of the Federal Republic of Nigeria, 1999 as amended; Sections 35, 38, 39, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended; Articles 6, 9(2), 10(1), 11 and 12(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004 and the inherent jurisdiction of the trial Court.
The application of the Respondent was for an order for the enforcement of his fundamental rights to personal liberty, freedom of movement, freedom of expression, peaceful assembly and association. In the statement of the Respondent annexed to his motion, he sought the following eleven reliefs (unedited):
i. A DECLARATION that the detention of the Applicant, Mallam Nasir El-Rufai, OFR, without charge, at the premises of Finotel Hotel, Akwa, Anambra State, between the 15th day of November, 2013 and 16th day of November, 2013, by agents of the 1st Respondent, (SSS) or officers, servants, privies of the Respondents and/or of the Federal Government of Nigeria, constitute a gross violation of the Applicant’s right to personal liberty and freedom of movement respectively guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 6 and 12(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004, and is therefore unconstitutional and illegal.
ii. A DECLARATION that the unlawful deprivation of the Applicant, Mallam Nasir EL-Rufai, OFR, from granting/continued granting of interview with an AIT Correspondence, Mr. Obiorah Iloh and other mass media representatives within the premises of Finotel Hotel, Akwa, Anambra State, at about 2pm of 16th day of November, 2013 by agents of the 1st Respondent, (SSS) or officers, servants, privies of the Respondents and/or of the Federal Government of Nigeria, constitute a gross violation of the Applicant’s freedom of expression guaranteed under Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Article 9(2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004, and is accordingly unlawful unconstitutional and illegal.
iii. A DECLARATION that the detention of the Applicant at the premises of Finotel Hotel, Akwa, Anambra State, without charge, on the 15th day of November, 2013 to the 16th day of November, 2013, by agents of the 1st Respondent, (SSS) or officers, servants, agents, privies of the Respondents and/or of the Federal Government of Nigeria with a view to denying the Applicant, Deputy National Secretary and Member/Secretary Electoral Committee, of All Progressives Congress Anambra Governorship Election, 2013, freedom to associate with fellow members of the said All Progressives Congress, at Akwa, Anambra State, is a violation of the Applicant’s Right to Peaceful Assembly and Association guaranteed under Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 10(1) and 11 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004, and is accordingly unconstitutional and illegal.
iv. A DECLARATION that the restriction and prevention of the Applicant from moving out of his room in Finotel Hotel wherein he lodged at Awka in Anambra State to monitor the 16th November, 2013 Anambra State Gubernatorial Election by the Agents of the Respondents, Officers, Servants, Agents or Privies constitutes a gross violation of the Applicant’s constitutional right of freedom of movement as enshrined in Section 41 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).
v. A DECLARATION that the restriction and prevention of the Applicant from moving out of his room in Finotel Hotel wherein he lodged at Awka in Anambra State to observe congregation prayers (salat) on the 16th November, 2013 by the Agents of the Respondents, Officers, Servants, Agents or Privies constitutes a gross violation of the Applicant’s constitutional right of freedom of Religion as enshrined in Section 38 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).
vi. A DECLARATION that the Respondents have no powers under the Constitution of the Federal Republic of Nigeria 1999 (As Amended) or under any Nigerian Law to either impose a general restriction on movement or restrict the Applicant’s constitutional right of freedom of movement as enshrined in Section 34 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) on account of the Anambra State Gubernatorial election that took place on the 16th day of November, 2013 or any other election.
vii. A DECLARATION that the 1st Respondent has no statutory powers under the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) or under any Nigerian Law to detain the Applicant without showing cause to a Court of competent jurisdiction.
viii. AN INJUNCTION restraining the Respondents, whether by themselves or by their officers, agents, servants, privies, or otherwise howsoever from further detaining or in any other manner infringing on the fundamental rights of the Applicant.
ix. AN ORDER for the award of compensation/damages to the Applicant, in the sum of N100,000,000.00 (One Hundred Million Naira only) for the unlawful and unconstitutional detention/violation of his right to personal liberty, freedom of movement, freedom of association and expression.
x. AN ORDER directing the Respondents to publish apologies to the Applicant in three (3) National Dailies, for the unlawful and unconstitutional detention/violation of his right to personal liberty, freedom of movement, freedom of religion, freedom of association and expression guaranteed under the Constitution of Federal Republic of Nigeria, 1999 (As Amended) and Articles 6, 9(2), 10(1), 11 and 12(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004.
xi. AND FOR SUCH FURTHER ORDER or other Orders as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the reliefs were predicated are as follows:
i. By virtue of Sections 35, 38, 39, 40, 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 6, 9(2), 10(1), 11 and 12(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004, the Applicant has constitutional right to personal liberty and freedom of movement, freedom of religion, freedom of expression and right to peaceful assembly and association.
ii. The Respondents have no powers whatsoever to impose curfew or restrict the Applicant’s movement during the 16th day of November, 2013 Governorship Election in Anambra State, or indeed on any other day unless a state of Emergency under Section 305 of the Constitution is proclaimed by the President and approved by the National Assembly.
iii. The Respondents have failed and/or neglected to accord recognitions to the constitutional protection of Applicant’s rights as enshrined in the Constitution particularly Sections 35, 38, 39, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 6, 9(2), 10(1), 11 and 12(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004.
iv. The unlawful detention of the Applicant at the premises of Finotel Hotel, Akwa, Anambra State, without charge, on the 15th day of November, 2013 to the 16th day of November, 2013, by agents of the 1st Respondent, (SSS) or officers, servants, agents, privies of the Respondents and/or of the Federal Government of Nigeria, is a flagrant violation of his fundamental rights guaranteed under Sections 35, 39, 40, 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Articles 6, 9(2), 10(1), 11 and 12(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004.
The Respondent’s application was supported by an Affidavit of twenty-six paragraphs; Twelve exhibits were annexed to the said Supporting Affidavit and a 2nd Affidavit of seventeen paragraphs. The Supporting Affidavit was personally deposed to by the Respondent.
The exhibits annexed to the Supporting Affidavit are as stated in the relevant paragraphs of the said Affidavit, these are contained in pages 8 to 26 of the record of appeal and marked as Exhibits EL-RUFAI 1 to 12. Specifically, Exhibits EL-RUFAI 1, 2 and 3 are the Respondent’s letters of appointments as, Deputy National Secretary of All Progressives Congress (APC) a registered political party in Nigeria, Member of the APC Gubernatorial Campaign Committee and Member/Secretary of the Electoral Committee, APC Anambra Governorship Election, 2013 respectively. Exhibit EL-RUFAI 4 is the letter of appointment dated 8th of November, 2013, Reference No. APC/NHDQ/NCO/39/013/048 titled ‘APPOINTMENT TO SERVE AS MEMBER/SECRETARY OF THE ELECTORAL COMMITTEE FOR ANAMBRA STATE GUBERNATORIAL ELECTION’.
Exhibit EL-RUFAI 5 is a copy of the list of the appointed members of the Electoral Committee. Exhibits EL-RUFAI 6 & 7 are the copies of the lodgment receipts issued to the Respondent by Finotel Hotel’s Management. Exhibits EL-RUFAI 8, 9, 10 & 11 are, publications of the Sunday Vanguard Newspaper of 17th November, 2013 (page 5); Sunday Trust Newspaper of 17th of November, 2013 (page 4); Sunday edition of THISDAY Newspaper of 17th of November, 2013 (page 6) and Sunday Tribune of 17th of November, 2013 (page 2). Exhibit EL-RUFAI 12 is, a copy of Sunday Punch Newspaper of 17th of November, 2013 (pages 8 & 9).
The 2nd Affidavit in support of the application was deposed to on 19th of December, 2013 by one Senator Osita Izunaso who claimed to be the National Organizing Secretary of the All Progressives Congress (APC). This is contained in pages 27 to 30 of the record of appeal.
In opposition to the Respondent’s application, the Appellants filed a Counter Affidavit of nine paragraphs, without any annexures, contained in pages 54 to 56 of the record of appeal. The Counter Affidavit was deposed to on 3rd of February, 2014 by one Chukwuma Okoye, an employee of the 1st Appellant in its office at Awka, Anambra State.
The Respondent, in reply to the Counter Affidavit of the Appellants, filed a Further Affidavit of five paragraphs on 28th of April, 2014. It was deposed to by one Daniel Igbang, a litigation clerk in the law firm of A. U. Mustapha & Co., handling the suit of the Respondent. The said Further Affidavit of the Respondent is contained in pages 98 to 100 of the record of appeal.
By a notice of Preliminary Objection dated 6th of February, 2014 which was filed on 7th of February, 2014, the Appellants challenged the competence of the Respondent’s application and consequently the jurisdiction of the trial Court to adjudicate upon same, on the grounds that:
(A) Motion on Notice is not an originating process in the matter known to the trial Court.
(B) The claims of the Respondent being tortuous in nature, the trial Court lacked the jurisdiction to entertain same.
(C) The leave of the trial Court was not sought and obtained for the service of the Respondent’s application out of jurisdiction.
The Appellants therefore urged the trial Court to decline jurisdiction to entertain the Respondent’s suit and strike out and or dismiss same.
The written addresses of the parties’ respective counsel to buttress their positions in the main application as well as the preliminary objection were duly filed and exchanged. However, on 29th of April, 2014, the learned counsel for the Appellants, Mr. N. W. Daddy, Assistant Director, Federal Ministry of Justice withdrew the preliminary objection of the Appellants without the opposition of the Respondent’s counsel and same was forthwith struck out.
At the oral hearing of the Respondent’s application at the trial Court on 6th of May, 2014, all the processes filed for the parties by the respective counsel in substantiation of their varied positions on the Respondent’s application were adopted. In the considered judgment of the trial Court delivered on 29th of September, 2014 out of time for the reason stated in page 5 thereof, contained in page 123 of the record of appeal, the application was allowed and granted in the following unedited terms:
It is hereby:
i. Declared that the detention of the Applicant by the officers of the 1st Respondent from the 15th to the evening of the 16th of November 2013 at Finatol Hotel Awka Anambra State constitutes a gross violation of the Applicant’s fundamental rights to personal liberty, freedom of expression, freedom of association and freedom of movement guaranteed under Sections 35(1), 39(1), 40 and 41(1) of the Constitution FRN 1999 as amended.
ii. Ordered that the Respondents are restrained from further detaining (or in any way infringing the fundamental rights of) the Applicant in connection with this suit.
iii. Ordered that damages in the sum of two million naira be paid to the Applicant by the 1st Respondent; and further
iv. Ordered that the 1st Respondent shall cause to be published in the Sun and the Daily Trust newspapers an apology to the Applicant for the adjudged infringements of his fundamental rights.
The Appellants being unhappy with the judgment of the trial Court filed this appeal against it to this Court vide their notice and grounds of appeal of two grounds of appeal, dated 16th of October, 2014 which was filed on 17th of October, 2014. However, pursuant to the permission granted to the Appellants by this Court on 10th of March, 2015, the Amended Notice of appeal, made up of eight grounds of appeal, dated 12th of January, 2015 filed on 28th of January, 2015 was deemed properly filed and served on 10th of March, 2015. For easy referencing and good understanding, the eight grounds of appeal, shy of their particulars, are hereunder reproduced unedited as follows:
GROUND ONE
1. The lower Court erred in law when it refused or failed to consider and or follow the dictum of the Supreme Court of Nigeria in DOKUBO ASARI V. FRN (2007) 12NWLR (Pt.1048) 320 in its consideration of the appellants’ defence, which distinctly raised the issue of National Security as a defence to the claims of the Respondent.
GROUND TWO
2. The lower Court erred in law when at page 139 of the Record of Appeal it held as follows:
‘One thing stands out, and it is that the Constitution is Supreme over all other legislations. Thus to simply ignore it in obvious preference to the National Securities Agencies Act as done by the learned Respondent’s Counsel is with respect a travesty to the entire Nigeria legal system’.
GROUND THREE
3. The lower Court erred in law when it held at page 17 of its judgment that:
‘From the facts and the thrust of the issues formulated for both sides, it is clear that the angle from which they conceive their facts are intensely in the opposites. The duty of the Court here is not to harmonise same but to consider and weigh same on the balance of probabilities in arriving at the ultimate decisive finding for either side.’
GROUND FOUR:
4. The lower Court erred in law when it held at page 22 of its judgment as follows:
‘Upon a calm consideration of the facts, one can not (sic) but fault the contention of the Respondents that the 1st Respondent was merely protecting the Applicant from harm. The graphic facts revealed by the Applicant are too compelling to be dismissed by the mention of the phrase ‘intelligence report’ as the Respondents have done. In my considered view, the 1st Respondent is merely playing to the gallery by invoking sentimental issues of ethnicity because the facts do not accord any credence to such defensive strategy.’
GROUND FIVE:
5. The lower Court erred in law when it held at pages 22 – 23 of its judgment that:
‘The hard facts presented by the Applicant are that he was threatened with arms, restricted within the confines of the Finotel Hotel, menacingly denied access to visiting journalist, denied access to his colleagues all from the 15th to the evening of the 16th of November, 2013. These and other claims of the Applicant have not been distinctly controverted.”
GROUND SIX:
6. The lower Court erred in law when it held at page 24 of its judgment that:
This Court is not a rubber stamp to swallow hook, line and sinker the doubtful facts, shrouded in sentiments as presented for the 1st Respondent. The obvious imputation of the facts as they stand is that the Respondents, more particularly the 1st were, as the Applicant contends, acting on ‘orders from above’, but definitely not orders purposely meant to keep him away from any harm. They were orders purposely meant for another purpose which the 1st Respondent beclouds under the cover of ‘intelligence report’ simplicita.
GROUND SEVEN:
7. The lower Court erred in law when it held at pages 24 – 25 of its judgment that:
The more I consider each of the facts for both sides, the more I find it very difficult to believe those for the Respondents.I am not convinced that the reason for the detention of the Applicant in the manner he described and for the period he stated is anywhere near the reason claimed by the Respondents. Undoubtedly, his fundamental right to personal liberty has been infringed and as a fall out also his fundamental rights to freedom of expression and association have similarly been infringed.
GROUND EIGHT:
8. The lower Court erred in law when it held at page 29 of its judgment as follows:
The detention of the Applicant by the officers of the 1st Respondent from the 16th of November 2013 at Finotel Hotel Awka Anambra State constitutes a gross violation of the Applicant’s fundamental rights to personal liberty, freedom of expression, freedom of association and freedom of movement guaranteed under Sections 35(1), 39(1), 40 and 41(1) of the Constitution FRN 1999 as amended.
The background facts of this matter from the perspective of the Respondent who was the Applicant before the trial Court are that, on Friday, 15th of November, 2013, the Respondent was in Awka, Anambra State as a Member/Secretary of the Electoral Committee of his political party, APC, to monitor the gubernatorial election scheduled to hold on Saturday, 16th of November, 2013 in Anambra State. He checked into Finotel Hotel, Awka.
Shortly after settling in his room, he was confronted by some men armed with assault rifles and automatic pistols. The men introduced themselves as officers of the 1st Appellant and instructed him to remain in his hotel room until he received further instructions to the contrary, thereby detaining him in the said hotel precinct and his movement within Anambra State was restricted.
He demanded for document(s) as evidence of what could have informed his detention and the restriction of his movement but was not shown any document or letter to establish the reason and justification for his detention and restriction of his movement on the said two days. The Appellant although resisted his detention and movement restriction, he was forced into compliance by being confronted with weapons with which the men of the 1st Appellant were armed on the occasion. That particularly on the 16th of November, 2013, even though he was allowed to use the hotel restaurant, he was prevented from leaving the hotel premises as five officers of the 1st Appellant followed him everywhere to ensure that he did not exit the hotel premises. That his said restricted movement was in the full glare of all the people within the hotel premises at the time, including officials of his political party, the APC, Nigeria Bar Association, IRI, AIT, BBC and RFI and captured on video by AIT and other unnamed media outfits.
According to the Respondent, at about 3pm on 16th of November, 2013, he attempted to go out of the hotel premises to observe his religious daily obligatory salat in congregation and also perform his primary assignment of monitoring the election of the day on behalf of his political party but was prevented at gun point by the said officers of the 1st Appellant. That in the course of the incident, one AIT Anchor, Mr. Obiorah Ilo approached him for a telephone interview but one of the officers of the 1st Appellant prevented this exercise, for the recording equipment of the former was seized by the latter. The Respondent also stated that the officers of the 1st Appellant equally made a failed attempt to dispossess him of his Security Detail, a Police Sergeant, in order to leave him vulnerable to attack on the days in question. That indeed, the facts and details of his detention were widely reported in both the print and electronic media in Nigeria and via the internet in the rest of the world.
The Respondent stressed that, at about 6pm on the 16th of November, 2013 after the conclusion of the gubernatorial election exercise that he was expected to have monitored in Anambra State, the said officers of the 1st Appellant left the hotel and were never seen again by him. Thereby, in his estimation, his constitutional rights to personal liberty, privacy, freedom of movement, association and expression were denied him by the activities of the agents of the 1st Appellant without any plausible explanation and legal justification.
Consequent upon the foregoing facts, the Respondent filed the motion on notice, the subject of this appeal, against the Appellants, for the enforcement of his said fundamental rights claiming the reliefs already reproduced above by me earlier on in this judgment.
In deference to the rules of practice of this Court, the learned counsel for the parties on both sides of the divide filed and exchanged briefs of argument to substantiate the positions of their respective clients.
The Appellants’ brief of argument dated 6th of March, 2015 filed on 9th of March, 2015 but deemed properly filed and served on 10th of March, 2015, was settled by their counsel, E. Robert Emukpoeruo Esq. In the brief, the three issues crafted for the determination of the appeal read unedited thus:
1. Whether the lower Court was in error when it failed to consider (or properly consider) the issue of National Security distinctly raised by the Appellants as their defence in the Counter Affidavit and Written Arguments ?
2. Whether having regard to the facts contained in the affidavits of the parties and the finding of the lower Court that the affidavits of the parties were intensely in conflict the Court was in error to find in favour of the Respondent on the facts without oral or documentary evidence to resolve the intensely conflicting affidavits ?
3. Whether from the totality of the facts contained in the affidavits and exhibits the lower Court was in error in accepting the facts in the Appellants’ Counter Affidavit to find that the Respondent?s Fundamental Human Rights were violated by the Appellants ?
An Appellants’ Reply brief of argument dated 16th of April, 2015 filed on the same date was equally filed by the Appellants’ counsel in response to the Respondent’s brief of argument dated 8th of April, 2015. The latter brief was filed and deemed properly filed and served on 13th of April, 2015. The learned counsel for the Respondent, A. U. Mustapha, Esq., in the said Respondent’s brief of argument adopted the three issues crafted for determination in the Appellants’ brief of argument. These, I have already set out above.
At the oral hearing of the appeal on 23rd of June, 2018, the learned counsel for the Appellants, Mr. E. R. Emukpoeruo adopted the two briefs filed for the Appellants in urging upon this Court to allow the appeal, set aside the decision of the trial Court and in its place, enter judgment dismissing the application of the Respondent filed before the trial Court.
On the other part, Mr. Chimezie O. Nwodo holding the brief of Mr. A.U. Mustapha the learned substantive counsel for the Respondent equally adopted the Respondent?s brief in urging upon this Court to dismiss the appeal and affirm the decision of the trial Court in which the Respondent?s application filed thereat was correctly granted.
I believe that the three issues identified by the Appellants’ counsel for determination and adopted by the Respondent’s counsel are apt for the proper resolution of the appeal. However, as rightly noted and argued by the Respondent’s counsel in the Respondent’s brief, issues one and three being intertwined will be taken and resolved together by me. I consider issue two a point of law which is equally preliminary in nature and shall for starters consider and resolve same.
It is equally apposite to state at this juncture that, the citations of some of the legal authorities and statutes relied upon by both counsel in their respective parties’ briefs of argument are either incorrect or incomplete and thus, quite misleading. Therefore, the said cases and laws are hereby jettisoned and discountenanced by me for the purposes of this judgment.
ISSUE TWO
Whether having regard to the facts contained in the affidavits of the parties and the finding of the lower Court that the affidavits of the parties were intensely in conflict the Court was in error to find in favour of the Respondent on the facts without oral or documentary evidence to resolve the intensely conflicting affidavits?
APPELLANTS’ COUNSEL’S SUBMISSIONS:
The contention for the Appellants under this issue is that, the trial Court correctly found that the facts as stated by the parties were intensely in conflict regarding the events of 15th and 16th of November, 2013. Hence, according to learned counsel for the Appellants, the trial Court erred in law in the face of the conflicting affidavit evidence to proceed to hold that, he had a duty to consider and weigh the said evidence of both parties on the balance of probabilities to arrive at the ultimate decisive finding. The learned counsel restated the legal position that, intensely conflicting affidavits cannot be calmly considered and resolved without oral or documentary evidence in aid of the resolution of such conflict.
He referred in this wise to Section 116 of the Evidence Act, 2011 and the cases of: (1) Falobi v. Falobi (1976) 10NSCC p.576 at pgs. 581-582; (2) Uzondu v. Uzondu (1997) 9NWLR (Pt.521) p.466 and (3) Momah v. Vab Petroleum Inc. (2000) 4NWLR (Pt.654) p.534 at pgs. 556-557. He submitted that the law is trite that, where a matter is being tried on affidavit evidence and the Court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the Court, the Court cannot resolve such conflict by evaluating the conflicting evidence, rather, the Court is obliged to call for oral and documentary evidence in order to achieve due resolution of the conflict.
However, oral evidence will only be dispensed with where there are sufficient and authentic documentary evidence at the disposal of the Court while resolving the conflicts in the affidavit evidence of the parties before it.
The learned counsel therefore opined that, the trial Court was clearly in error by evaluating the conflicting affidavits of the parties and thereby rejecting the defence of the Appellants and accepting the narrative of the Respondent.
RESPONDENT’S COUNSEL’S SUBMISSIONS:
The learned counsel for the Respondent considered this issue as formulated for the Appellants as totally misconstrued. According to him, the judgment of the trial Court as it relates to the instant issue has been considered by the Appellants out of its true con and meaning. For the law is trite that judgments are to be read as a whole and not in isolation in order to construe their proper meanings. He relied on the case of: Adebayo v. A.-G., Ogun State (2008) 2-3 SC (Pt.11) p.50 at p.69, that an appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run down the entire judgment. Hence, while an appellate Court can concede to counsel the right to be partisan to the case of his client, the Court will not allow him to construe a judgment parochially since the judgment is available to the Court for proper construction.
Accordingly, a careful reading of the entire judgment under review reveals the absence of the trial Court holding that there was conflict in the affidavit evidence of the parties before it. For the word ‘conflict’ or ‘conflicting’ was not used by the trial Court anywhere in the judgment, rather, the correct opinion expressed therein is that, the parties’ positions were intensely in the opposites. The learned counsel submitted that, all the judicial authorities relied upon by the Appellants in support of their contention under this issue are inapplicable to the circumstances of the instant matter and should thus be discountenanced.
RESOLUTION
As correctly submitted by the Appellants’ learned counsel, it is the general principle of law that, where a matter is being tried on affidavit evidence and the Court is confronted with conflicting or contradictory or irreconcilable evidence relied on by the opposing parties on a very material issue placed before the Court for determination, the Court cannot achieve the resolution of such conflict or contradiction by evaluating the conflicting or contradictory evidence. Rather, in order for the Court to arrive at the justice of the matter, it can only resort to the ‘viva voce’ evidence from the deponents of the relevant affidavit/counter affidavit and such other witnesses as the parties may be advised to call. See the cases of: (1) Falobi v. Falobi (supra); (2) Olu-Ibukun v. Olu-Ibukun (1974) NSCC p.51; (3) Akinsete v. Akindutire (1966) 1All NLR p.147; (4) Chairman, National Population Commission v. Chairman, Ikere Local Govt. & Ors. (2001) LPELR-3166 (SC) and (5) Eze v. Unijos (2017) LPELR-42345 (SC).
However, the Fundamental Rights (Enforcement Procedure) Rules, 2009, under which the application of the Respondent was initiated, specifically stipulate a peculiar procedure for the enforcement of the fundamental rights of an aggrieved person perceived by him to have been infracted.
Therefore for that purpose, the said Rules clearly provide that, the applicant in a fundamental right proceedings must file a verifying affidavit setting out the facts relied upon by him and a written address as accompaniments of his application for the enforcement of the fundamental right allegedly breached. In addition, the applicant may file a further affidavit in conjunction with his reply on point(s) of law. Albeit, the adverse party is not required to file a counter affidavit, he can file a written address in opposition to the application of the applicant. Hence, fundamental right enforcement proceedings are ‘sui generis’ and decided solely on affidavit evidence. To put it in other words, ‘viva voce’ or oral evidence and the keeping with strict compliance with the general position of the law regarding the use of affidavit evidence in civil proceedings are alien to fundamental right enforcement proceedings.
Thus, it is the affidavit evidence placed before the Court which the Court must fastidiously evaluate in order to reach a just resolution of the application of an applicant. In short the facts averred in the affidavits placed before the Court by the parties in fundamental rights enforcement proceedings constitute the pleadings, the adduced evidence in the matter. See the cases of: (1) Jack v. University of Agriculture, Makurdi (2004) LPELR-1587 (SC); (2) IGP & Ors. V. Eze (2017) LPELR 42923 (CA); (3) Bamaiyi v. The State (2001) FWLR (Pt.46) p.956 at p.978; (4) ASCO Investment Ltd. & Anor. V. Ezeigbo & Anor. (2015) LPELR-24460 (CA); (5) B. N. Mbang v. W/PC Janet (2015) All FWLR (Pt.767) p.766 at p.784; (6) Ukaobasi v. Ezimora (2016) LPELR -40174 (CA).
In the case of:Ikudayisi & Ors. V. Oyingbo & Ors. (2015) LPELR-40525, this Court per Abiriyi, J.C.A on this issue pointed stated as follows:
‘The special procedure of the Fundamental Rights (Enforcement Procedure) Rules is not to be equated with the normal procedure in actions tried on pleadings and to which normal rules of pleadings apply. In the procedure under the Fundamental Rights (Enforcement Procedure) Rules, the affidavits constitute the evidence. If the only evidence before the Court or Judge is that of the complainant, that is the material he should consider in order to determine the entitlement of the complainant. The other party is not compelled to file any affidavit. However, notwithstanding that the other party has not filed any affidavit that other party can still be heard on the application to contend that the facts disclosed by the complainant’s affidavit do not point to the existence of a right or of an infringement of any right. See Agbakoba v. Director S.S.S. (1994) 6NWLR (Pt.351) 475 at 500.
In the instant matter, contrary to the misconceived position of the Appellants’ counsel, I am of the humble but firm view and hold that, the procedure under the fundamental Rights (Enforcement Procedure) Rules is ‘sui generis’, it is not akin to the procedure in other civil actions tried on pleadings. Hence, the normal hard and fast rules of pleadings are not applicable thereunder. Therefore, the trial Court’s resolution of the application of the Respondent based on the evaluation of the affidavit evidence placed before it by both parties is the correct legal procedure. Albeit whether the exercise of its discretion in resolving the case in favour of the Respondent is judicial and judicious in accordance to law is a different matter and not the crux of the present issue under consideration. As hereinbefore enunciated above, proceedings under Fundamental Rights (Enforcement Procedure) Rules, as in the instant matter, are determined only on affidavit evidence of parties and not ‘viva voce’ evidence as had been advocated by the Appellants’ counsel. To put it in other words, ‘viva voce’ evidence is a legal sacrilege in the determination of an application under the Fundamental Rights (Enforcement Procedure) Rules.
Consequent upon the foregoing elucidation, this issue must be and is hereby resolved against the Appellants and in favour of the Respondent.
ISSUES ONE AND THREE
Whether the lower Court was in error when it failed to consider (or properly consider) the issue of national security distinctly raised by the Appellants as their defence in the counter affidavit and written arguments?
Whether from the totality of the facts contained in the affidavits and exhibits the lower Court was in error in accepting the facts in the Appellants’ counter affidavit to find that the Respondent’s fundamental human rights were violated by the Appellants ?
APPELLANTS’ COUNSEL’S SUBMISSIONS:
The learned counsel for the Appellants strongly submitted that, the case of: Dokubo-Asari v. F.R.N. (2007) 12NWLR (Pt.1048) p.320 at pgs.358-359 being relevant to the instant matter ought to have been relied on with approval by the learned trial Judge. For the case clearly postulates that in matters of this nature, the issue of national security is superior to the individual human rights. That is, where national security is threatened or there is the real likelihood of it being threatened, human rights or individual rights must be suspended until the national security can be protected or well taken care of. As the corporate existence of the nation as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen’s liberty or right. Hence, once the security of the nation is in jeopardy and its peace is threatened, the individual’s liberty or right may not even exist.
The learned counsel canvassed that the 1st Appellant was created by the National Security Agencies Act, Cap N74, Laws of the Federation of Nigeria 2004 and the 1st Appellant derived its power therefrom as the basis for its actions relating to the Respondent, the subject of this appeal. He reiterated and relied on the facts averred in paragraphs 7(i) to (iv) of the Appellants’ counter affidavit which the Respondent did not controvert at all. The facts are:
i That the 1st Appellant?s Assistant Director Operations Anambra Command, Awka, Mr. Abdul Yusuf Idakworji went with a team of the 1st Appellant’s officers to brief the Respondent of the imminent threat to his life and need to protect him.
ii. That the Respondent declined to be followed about protectively.
iii. That the said officers of the 1st Appellant had no choice than to protect the Respondent at Finotel Hotel where the Respondent lodged until at least the threat around him was assessed.
iv. That the 1st Appellant would have been blamed if they had not forestalled the said threat and if the Respondent, a prominent Northerner, had been harmed, the peace and national security of the Federal Republic of Nigeria would have been disrupted.
He further referred to Section 2(3) of the National Security Agencies Act (supra) which empowers the 1st Appellant inter alia to prevent any crime against the internal security of Nigeria. Hence, the 1st Appellant is obligated to take preemptive action against any threat or likelihood of threat to the internal security of Nigeria. This fact was deposed to in the counter affidavit of the Appellants and according to counsel, the Respondent did not controvert same by way of facts that if he had come to any harm in Awka, Anambra State at the given period, the security and stability of the country as a whole would not have been negatively impacted.
He also referred to Instrument No. SSS1 which was issued by the Head of State and Commander in Chief of the Armed Forces of Nigeria, pursuant to Section 6 of the National Security Agencies Act (supra). Section 1 of the Instrument provides that:
Without prejudice to the generality of the provisions relating to the general duties of the State Security Service set out in Section 2-(3) of the Decree, the objective of the State Security Service shall be the protection and preservation of Nigeria’s internal security and economy against acts of subversion, sabotage and other threats to the stability of Nigeria.
The events which prompted the actions of the 1st Appellant occurred during a very tense political climate of a gubernatorial election in Anambra State. Hence, the 1st Appellant acted appropriately and within its statutory powers to take preemptive action to forestall any threat to national security which could result if the Respondent had been harmed whilst in Awka, Anambra State.
Counsel further submitted that the provisions of the Act and the Instrument referred are not inconsistent with the provisions of the Constitution but could reasonably be justified in a democratic society sequel to Section 45(1) of the Constitution and Articles 6 and 27(2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, upon which the Respondent’s application was indeed predicated.
Section 45(1) of the Constitution provides that, nothing in Sections 37, 38, 39, 40 and 41 of Constitution shall invalidate any law that is reasonably justifiable in a democratic society. Hence, by Section 45(1), the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. While Article 6 provides that, every individual shall have the right to liberty and the security of his person and no one may be deprived of his freedom except for reasons and conditions previously laid down by law. Counsel opined that, the National Security Agencies Act and the Instrument made thereunder qualify as exceptions under Section 45(1) of the Constitution and Articles 6 and 27(2) of the Act. The reason being that, in the face of the security reports and intelligence information received by the 1st Appellant concerning the threat to the life of the Respondent, the 1st Appellant?s unremitting and unyielding statutory responsibility for the preservation of national stability and security behoved it to place a protective security cordon around the person of the Respondent.
The learned counsel further argued that there are serious conflicts between the affidavit evidence of the Respondent and some of the documents annexed thereto. Although the Respondent averred that he was not informed by the officers of the 1st Appellant of the reasons for their action, Exhibit El-Rufai 8 confirmed that from the onset the officers of the 1st Appellant informed the Respondent that their action was meant to protect him. What is more, Exhibits El-Rufai 8 and 12 were significantly consistent with paragraphs 7(iii) and (iv) of the Appellants’ counter affidavit that the Assistant Director Operations, Anambra Command Awka, Mr. Abdul Yusuf Idakworji went with the team of other officers of the 1st Appellant to brief the Respondent of the imminent threat to his life and need to protect him.
The learned counsel argued that, the contradictions in the Respondent’s evidence are fatal to his claims before the trial Court. He referred to the cases of: (1) MOMAH V. VAB PETROLEUM INC. (SUPRA) AND (2) OWENA MASS TRANSPORTATION COMPANY LTD. V. BIDAT VENTURE LIMITED CITATION: (2010) LPELR-8657 (CA) on the legal principle that where a party’s case is plagued by inconsistencies or contradictions, there is no obligation on the Court seized of the matter to arrange for oral evidence to be called for the purposes of resolving the contradictions.
The law frowns on a party who approbates in one breath and reprobates in another and the onus is undoubtedly on the party confronted with self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the Court. As failure to do so is bound to leave an indelible dent on the party’s case. For if a party, in the instance, the Respondent, is inconsistent in his evidence and is caught approbating and reprobating, he will be found to have failed in discharging the burden on him to prove his case on the balance of probabilities.
Counsel opined that in this matter, the trial Court was clearly in error in placing reliance on the evidence of the Respondent. What is more, the claims of the Respondent are entirely declaratory in nature. This portends that he can only succeed on the basis of cogent and compelling evidence. The Respondent’s conflicting evidence is certainly not cogent or compelling evidence adduced by him. The Respondent was also obliged to succeed on the strength of his own evidence to be entitled to any declaratory relief and he cannot rest his claim for declarations on admissions made by the Appellants or on the weakness in the counter affidavit of the Appellants.
The Respondent is bound to stand or collapse on the strength of his own evidence. On this stance, he referred to the cases of: ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS. (2014) LPELR-23683 (CA); (2) MATANMI V. DADA (2013) 2 SCNJ p.616 at p.627; (3) DUMEZ NIG. LTD. V. NWAKHOBA (2008) 18NWLR (Pt. 1119) p.361 at p.378 and (4) NWODIKU V. OKARU (2010) 3NWLR (Pt. 1181) p.362.
Counsel urged this Court to hold that the Respondent having failed to prove his claims was not entitled to the judgment of the trial Court. Hence, the said judgment deserves to be set aside by this Court.
RESPONDENT’S COUNSEL’S SUBMISSIONS
The learned counsel argued that the Counter-Affidavit of the Appellants ought not to have been countenanced in the first instance by the trial Court as a result of the fundamental flaws contained therein. For instance, the deponent did not disclose the circumstances under which he obtained the information contained in paragraph 7 of the said Counter Affidavit, in violation of the provisions of Section 115(1), (3) & (4) of the Evidence Act, 2011. According to counsel, paragraph 7 is the crux of the Appellants’ defence.
He also referred on this point to the cases of: (1) Edu v. Commissioner for Agric (2000) 12NWLR (Pt.681) p.316 at p.333, para. A and (2) Veepee Ind. Ltd. V. Cocoa Ind. Ltd. (2008) All FWLR (Pt.425) p.1667 at pgs.1684-1685, paras. H-B. and opined that the said offending paragraphs ought to have been either struck out or no weight should have been attached to them. This means that the Counter-Affidavit of the Appellants failed rather woefully to disclose any defence cognizable in law to justify the dastardly action of the Appellants in unconstitutionally detaining and restricting the movement of the Respondent during the Anambra State Gubernatorial Election on 16th of November, 2013.
He further referred to paragraphs 5, 7i, v, vi, viii and 8 of the Appellants’ counter-affidavit as being defective. Paragraph 5 is inferential and argumentative. The law is trite that an affidavit is merely to state facts and it is the duty of the Court to make its independent conclusion in respect thereof. On this, he relied on the cases of: (1) General & Aviation Services Ltd. V. Thahal (2004) 4 S. C. p.109 at p.140 and (2) Nigeria LNG Ltd. V. A.D.I.C. (1995) 8NWLR (Pt.416) p.677 at pgs.701 – 702, paras. H-A.
According to learned counsel, paragraph 7v is a reason, conclusion and an explanation. While paragraph 7vi and viii are arguments, inferences and extraneous matters. Also paragraph 8 is manifestly a conclusion and an extraneous matter. Hence, these paragraphs are liable to be struck out. If these offending paragraphs are struck out, there will be no tangible facts left in the Counter-Affidavit of the Appellants to sustain a defence to the Respondent’s action. For the remaining facts in paragraphs 7i to iv and vii to the effect that the 1st Appellant’s officers acted the way they did because they wanted to protect the person of the Respondent remain unsubstantiated.
The learned counsel further contended that the Appellants equally failed to join issues with the Respondent on material averments in his affidavit as required by law as the allegations contained in paragraphs 10 to 17, 19 to 20 and 24 of the Respondent’s affidavit were not specifically denied. Even more instructive is the fact that nothing in the Respondent’s second affidavit was countered by the Appellants. The application of the Respondent was fought on affidavit evidence, hence the facts contained in the various affidavits take the place of pleadings.
The law is settled that, in pleadings, the defendant must specifically deny any allegation of fact in the plaintiff’s pleadings and such denial has to be particularised, pointed, specific and not evasive. On this position, he referred to the cases of: (1) U.B.N. Plc. V. Astra Builders (2010) 2-3 S.C. p.59 at p.85 and (2) Adeleke v. Anike (2006) 16NWLR (Pt.1004) p.131 at p.169, paras. E-H. In the instant matter, counsel noted with approval the finding of the trial Judge that the Appellants chose to remain silent in their counter affidavit on the particular allegations raised by the Respondent in those paragraphs thus unwittingly admitting them. The law is also trite that an admitted fact needs no further proof.
He referred on this legal principle to the case of: P.I.P.C.S. Ltd. Vs. VLACHOS (2008) 4NWLR (Pt.1076) p.1 at p.19, paras. B-C.
The learned counsel argued that the case of: Asari-Dokubo v. F.R.N (supra) does not apply at all in the circumstances of this case. For in that case, the Appellant, Asari-Dokubo, was at the material time the leader of a militant group, the Niger Delta Peoples Volunteer Force. He had signed a communiqu to take up arms against the government of Nigeria and cause civil disorder that would lead to the overthrow of the government. He was arrested and charged with the offences of conspiracy, treasonable felony and forming, managing and assisting in managing an unlawful society. Hence, the threat to national security was real in the case. The case truly came within the exceptions provided under Section 35 of the Constitution, particularly Section 35(1) (c) and (7) (a). While in the instant case the so called threat was an imaginary one.
The phrase ‘national security’ in counsel’s view is neither a magic wand to ward off judicial inquiry into alleged breaches of citizens’ fundamental human rights nor does it elevate, even if temporarily, other laws over the Constitution, the grund norm. The Constitution specifically provides for situations where such rights may not inure. The Respondent’s case does not fall within the stipulated exemptions. Hence, the trial Judge was right to have upheld the provisions of the Constitution over the provisions of the National Securities Agencies Act rested upon by the Appellants.
The learned counsel contended that the issue of conflict in the affidavit and documentary evidence was not canvassed at the trial Court as it was not argued in the Appellants’ Written Address. The law is trite that for any fresh point to be introduced on appeal, the leave of the appellate Court must first be sought and obtained. The Appellants did not comply with this precondition. He relied in this wise on the case of: Obajimi v. Adediji (2008) 3NWLR (Pt.1073) p.1 at pgs.12-13, paras. H-C.
It was further submitted by counsel that the argument of the Appellants on Exhibits E-Rufai 8 and 12 supports the contention of the Respondent that his fundamental rights were violated and thus, amounts to an admission against the interest of the Appellants.
An admission by a party against his interest is best evidence in favour of his adversary in any action. Exhibit El-Rufai 8 confirms the violation, for the key to the Respondent’s room was removed and the officers of the 1st Appellant monitored the movement of the Respondent within the hotel premises and did not allow him to leave the hotel to carry out his assignment in Anambra State.
The learned counsel urged this Court to, dismiss the Appellants’ appeal as it lacks merit and contrariwise affirm the well articulated judgment of the trial Court.
RESOLUTION
As stated at the debut of this judgment, the crux of the Respondent’s case at the trial Court is that, he was at Awka, Anambra State on 15th of November, 2013 to monitor the then gubernatorial election of 16th of November, 2013. The Respondent is a member of one of the political parties in the country, namely, the All Progressives Congress (APC for short) and was a Member and the Secretary of the party’s Gubernatorial Campaign Committee and Electoral Committee, APC Governorship Election, 2013, respectively. The said party understandably fielded a candidate at the said election. According to the Respondent, almost as soon as he arrived in Awka, the officers of the 1st Appellant unlawfully detained him in his hotel room and he was not allowed to venture out of the premises of the hotel until the day after, that is, the evening of 16th of November, 2013 after the said gubernatorial election had been concluded.
The 1st Appellant on the other part claimed to have received some security and intelligence reports that the life of the Respondent, a former Minister of the Federal Capital Territory, Abuja, a former Director General, Bureau of Public Enterprises and an indigene of the Northern part of the country, was in danger, hence it deployed its said officers to protect him and in the process, his movement was concomitantly restricted. Thus, the poser in the circumstances is: Whether the action of the 1st Appellant constituted an infringement of the fundamental rights of the Respondent so as to entitle him to proceed against the Appellants under the Fundamental Rights (Enforcement Procedure) Rules, 2009 (the Rules for short), sequel to Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended (the Constitution for short)
The Rules were made pursuant to Section 46(3) of the Constitution. Section 46(1) to (3) read as follows:
S.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 the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.
(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.
The above provisions, that is, Section 46(1) are restricted to the actual violation or threatened violation of any of the provisions of Chapter IV of the Constitution which are labeled as, fundamental human rights provisions. Therefore, Section 46(1) and (2), unambiguously relate to an application for the enforcement of any of the fundamental rights under Chapter IV of the Constitution, that is, Sections 33 to 44 of the Constitution. See the cases of: (1) Gafar v. Government of Kwara State (2007) All FWLR (Pt.360) p.1415; (2) Dongtoe v. Civil Service Commission, Plateau State (2001) 4 SC (Pt.1) p.43 and (3) Borno Radio TV Corporation v. Egbuonu (1991) 2NWLR (Pt.171) p.81.
In the instant matter, the reliefs sought by the Respondent at the trial Court are predicated on Sections 34(1)(a) to (c), 35(1), 38(1), 39(1), 40 and 41(1) of Chapter IV of the Constitution.
The Sections read as follows respectively:
Section 34. – 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 or 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.
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 the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law;
(c) for the purpose of bringing 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 a 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 the unlawful entry of any person into Nigeria or of effecting the explusion, 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 prescribed for the offence.
38(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief, in worship, teaching, practice and observance.
39(1) Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and import ideas and information without interference.
40 Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.
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.
It is crystal clear from, the above set out provisions, indeed the entirety of the provisions of Chapter IV of the Constitution, the Universal Declaration of Human Rights, 1948 and African Charter on Human and Peoples Rights, 1981, (the last two laws were subscribed to by Nigeria), that the rights of the nation’s citizens to individual personal respect, liberty and freedom of movement, association and religious worship amongst others have become sacrosanct and unassailable.
Hence, the personal liberty and freedom of movement of a citizen having been so guaranteed will generally not be curtailed by another citizen or the government or any of the agencies of the government. The law is however equally settled beyond per adventure of doubt that, the said fundamental rights of freedom and liberty in certain special circumstances can be curtailed but only as permissible under the same Constitution, Universal Declaration of Human Rights and African Charter on Human and Peoples Rights provisions.
The reason for the latter caveat is not implausible, it is because all citizens live in societies where there are bound to be interactions which can result into frictions and conflicts that will entail moderation by the various organs of the State as empowered by law.
Hence, the individual rights to liberty and freedom may be curtailed by an organ or agent of the government duly empowered sequel to the relevant provisions of the applicable laws so as to prevent or limit conflicts and frictions between individual citizens which may negatively impact on the peace, stability and unity of the sovereign State. For without the peace, stability and unity of the sovereign and corporate State, the optimums of the objective benefits of the individual fundamental rights will be a mirage.
Specifically, Sections 35(1) and 45(1) of the Constitution and Articles 6 and 27(2) of the African Charter on Human and Peoples Rights have created exceptions to the general rule of the inviolability of the right to personal liberty of the individual. Section 35(1) has already been reproduced above. Section 45(1), Articles 6 and 27(2) provide respectively as follows:
S.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.
A.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.
A.27(2) the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.
Therefore, from the above set out provisions, the right to personal liberty of the individual may be curtailed in certain specified circumstances and for good reasons. This means that there is still a safeguard against the State or any of its organ using any of the said exceptions as a hideaway. To put it in other words, the said exceptions do not make room for arbitrary choices of the government and its organs.
It is quite patent as can be gleaned from the affidavit evidence of the parties on both sides of the aisle that, between the 15th and 16th of November, 2013 while the Respondent was at Finotel Hotel, Awka, Anambra State to monitor the gubernatorial election of the 16th of November, 2013 in that State, his freedom of movement was curtailed by the agents of the 1st Appellant. This is without minding the coinage or perception of the Appellants that the Respondent was being protected. Albeit, the defence of the Appellants is that, the curtailment was actualized by the need to protect the Respondent from coming to any hurt with concomitant national security problems during and subsequent to the said election in that particular geopolitical zone of the country. According to the Appellants, the 1st Appellant received security report that some undisclosed persons in Anambra State were planning to kill the Respondent. Therefore, the 1st Appellant relied on the exceptions as contained in Section 45(1) of the Constitution and Articles 6 and 27(2) of the African Charter on Human and Peoples Rights as its defence in the curtailment of the freedom of movement of the Respondent on the days in question.
At this juncture, I consider it pertinent to lay to rest the point adverted to by the Respondent’s learned counsel in the Respondent’s brief. The learned counsel submitted that, the Appellants having failed to seek and obtain the prior leave of this Court, the Appellants are legally barred from raising the allegation of contradictions in the affidavit evidence adduced at the trial Court by the Respondent, since the point was not raised by the Appellants at the trial Court and thus, amounts to a new point in the appeal.
My straight forward response to this is that, in my respectful view, the said submission of the Respondent’s learned counsel is totally misconceived in law. There is no ambivalence in the fact that an appeal deals with the complaints of the appellant against the judgment being appealed against. Especially, when a judgment is appealed for being against the weight of evidence, just like ground two of the Appellants’ original ground of appeal herein, which indeed is capable on its own of sustaining a whole appeal, it implies that there is no evidence adduced by the successful party which if accepted, would support the finding of the trial Court.
Hence, in an appeal against such ground, the appellate Court is being called up to make up its own mind on the entire evidence. In the instant matter, the affidavits of the Respondent constitute the entire evidence which the Appellants are urging upon this Court to re-evaluate and conclude that the judgment of the trial Court is wrong. However, if this Court is in doubt, the appeal would be dismissed. The burden is thus on the Appellants to substantiate their grouse about the judgment of the trial Court.
Moreover, the law is now settled beyond any doubt of peradventure that, an appeal is a continuum of the case of the parties that started at the trial Court. To put it in another way, an appeal is a continuation of the case before the lower Court and the proceedings in an appeal is by way of re-hearing to enable the appellate Court evaluate the evidence adduced at the lower Court. The Apex Court in the case of: Sabru Motors Ltd. V. Rajab Ent. (Nig.) Ltd. (2002) LPELR-2971 per Ogwuegbu, J.S.C; (Rtd.) pointedly stated this position in the following words:
An appeal is a rehearing by the appellate Court with regard to all the questions involved in the action…see Section 16 of the Court of Appeal Act and Section 22 of the Supreme Court Act.
Hence, specifically, by Section 15 of the Court of Appeal Act, 2004, this Court generally has full jurisdiction over the whole proceedings of the Court below as if the proceedings had been instituted in this Court as Court of first instance and can rehear the case in whole or in part. Thus, the submission of the learned counsel for the Respondent that the Appellants’ contention that the Respondent’s affidavits are self-contradictory is a new point is untenable and is hereby discountenanced.
Upon the consideration of the affidavit evidence of the Respondent and Appellants, the learned trial Judge at pages 22 to 26 of his judgment contained in pages 140 to 144 of the record of appeal, in granting the application of the Respondent held as follows:
Upon a calm consideration of facts, one can not but fault the contention of the Respondents that the 1st Respondent was merely protecting the Applicant from harm. The graphic facts revealed by the Applicant are too compelling to be dismissed by the mention of the phrase ‘intelligence report’ as the Respondents have done. In my considered view, the 1st Respondent is merely playing to the gallery by invoking sentimental issues of ethnicity because the facts do not accord any credence to such defensive strategy. The hard facts presented by the Applicant are that he was threatened with arms, restricted within the confines of the Finotel hotel, menacingly denied access to a visiting journalist, denied access to his colleagues all from the 15th to the evening of the 16th of November 2013. These and other claims of the Applicant have not been distinctly controverted.
This Court is not a rubber stamp to swallow hook, line and sinker the doubtful facts, shrouded in sentiments as presented for the 1st Respondent. The obvious imputation of the facts as they stand is that the Respondents, more particularly the 1st were, as the Applicant contends, acting on ‘orders from above,’ but definitely not orders purposely meant to keep him away from any harm. They were orders purposely meant for another purpose which the 1st Respondent beclouds under the cover of ‘intelligence report’ simplicita. The more I consider each of the facts for both sides, the more I find it very difficult to believe those for the Respondents.
I am not convinced that the reason for the detention of the Applicant in the manner he described and for the period he stated is anywhere near the reason claimed by the Respondents. Undoubtedly, his fundamental right to personal liberty has been infringed and as a fall out also his fundamental rights to freedom of expression and association have similarly been infringed.
The crux of this appeal is therefore the determination of the correctitudeness of the decision of the trial Court in the given circumstances of this matter. Put in other words, given the defence of the Appellants, can it be said that the Respondent’s rights to freedom of movement and liberty were infringed upon by the Appellants to justify the enforcement of same under the Fundamental Right (Enforcement Procedure) Rules?
The law is fairly settled that, where a party claims in an application under the Rules that he was unlawfully arrested and/or detained by another or an authority, the burden of proving the justification or legality or constitutionality of the arrest and or detention is on the arresting/detaining person or authority where the arrest or detention is not disputed. See the cases of: (1) C.O.P. Ondo State v. Obolo (1989) 5NWLR (Pt.120) p.130; (2) Onagoruwa v. I. G. P. (1991) 5NWLR (Pt.193) p.593; (3) Abiola v. F. R. N. (1995) 7NWLR (Pt.405) p.1; (4) Nwadinobi v. Botu (2000) 9NWLR (Pt.672) p.220 and (5) Madiebo v. Nwankwo (2002) 1NWLR (Pt.746) p.426.
The 1st Appellant, an agency of the Federal Government of Nigeria, was birthed by the National Security Agencies Act, Cap. N74, Laws of the Federation of Nigeria, 2004. The 1st Appellant is principally saddled with the duty of the protection and preservation of Nigeria’s internal security and economy against acts of subversion, sabotage and other threats to the stability of the sovereign State of Nigeria. Therefore, the principal functions of the 1st Appellant include the prevention, detection and investigation of acts capable of causing breakdown of or threats to law and order in the country. The 1st Appellant in this regard is relying on the said Act and the Instrument No. SSS1, thereto. Most importantly, the Appellants have relied on the exceptions to the general provisions of Section 35 as well as Section 45(1) both of the Constitution and Articles 6 and 27(2) of the African Charter on Human and Peoples Rights Act, to justify the curtailment of the free movement of the Respondent on the days in question by them.
The affidavit evidence adduced by the Appellants in substantiation of their defence are contained in paragraph 7(i) to (viii) of their counter affidavit in opposition to the application of the Respondent. For ease of reference and good understanding, paragraph 7(i) to (viii) of the said Appellants? counter affidavit are hereunder reproduced unedited as follows:
7. That paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24, 25, 26 are not correct and in answer to the countered paragraphs, the Respondents wish to state the correct position as follows:
i. That we got intelligence report that some persons were out to harm the applicant Mallam Nasir El- Rufai, OFR of whom is classified as a V.I.P and hails from the northern part of the Federal Republic of Nigeria.
ii. That on the 15th of November, a team of Security Operatives were deployed to Finotel Hotel Awka where he lodged to afford him protection until the threat is assessed.
iii. That the Assistant Director Operations Anambra Command Awka, Mr. Abdul Yusuf Idakworji went with the Team to brief the applicant of the imminent threat to his life and need to protect him.
iv. That the applicant declined to be followed about protectively.
v. That the service had no choice than to protect him at Finotel Hotel where he lodged until at least the threat around him is assessed.
vi That the 1st Respondent would have been blamed if they had not forestalled the said threat which was capable of inciting violence and disrupting the body polity as there could have been ethnic correlation which will ultimately disrupt the peace and national security of the Federal Republic of Nigeria.
vii That the threat to the applicant was fully assessed and forestalled on the 16th and the Security Operatives detained for his protection were thereafter withdrawn.
viii That the Respondents neither restrained nor detained the applicant. He was merely protected from harm which may have degenerated to ethnic or political crises in the country capable of threatening national security.
The response of the Respondent to the defence of the Appellants is contained in paragraph 4 (b) to (j) of the Further Affidavit of the Respondent, which read unedited as follows:
4. That the Applicant, Mallam Nasir El-Rufai, OFR informed me at our office, A.U. Mustapha & Co.,
5, O.P. Fingesi Street, Yoma Place, Utako, Abuja; on the 22nd day of April, 2014 and I verily believed him as follows:
a. ?..
b. That he knows as a fact that paragraphs 7 i, ii, iii, iv, v, vi, vii, viii and paragraph 8 of the Counter-Affidavit are not correct.
c. That with particular reference to paragraph 7 i, and vi-viii, he knows as a fact that being a ‘V.I.P’ and hailing ‘from the north’ do not automatically make one a target of attack.
d. That he knows certain other persons, VIPs also, from the North and from other geopolitical zones of the country apart from the South-East, who were present in Awka at the same time for the same purpose for which he had gone there and who were not harassed or molested or ?protected? by the 1st Respondent or any other security agencies.
e. That he knows as a fact that nobody was arrested and/or prosecuted or even questioned in connection with the alleged threat to his life by the 1st Respondent or by any other security agency.
f. That, with particular reference to 7 ii-v, it was not protection they came to ?afford? him but distress, harassment, violation of his fundamental rights and detention.
g. That an attempt was made to withdraw the orderly assigned to him by the Police by the Respondents which almost succeeded but for the intervention of a Deputy Inspector-General of Police.
h. That in ‘affording him protection’, he knows as a fact that the agents of the 1st Respondent disrupted an interview session he was having with a correspondent of Africa Independent Television (A.I.T), seized the correspondent’s recording device and deleted the recording made already.
i. That he knows as a fact that none of the Security Operatives from the 1st Respondent on the occasion informed him of the reason for their action or ?briefed him of any imminent threat to his life?.
j. That he knows as a fact that when he enquired, all he gruffly told was that they were acting upon ‘orders from above’.
Sequel to the facts contained in paragraphs (ii) and (iii) of the Appellants’ counter affidavit, reproduced above, there is no question in my mind that, officers of the 1st Appellant detained and restricted the Respondent’s movement in Anambra State to his accommodation at the Finotel Hotel on the 15th and 16th of November, 2013. Hence, impliedly, the Appellants are not disputing that fact. Therefore, the burden of proving the justification or legality of the detention and curtailment of the free movement of the Respondent on the said days rests squarely on the Appellants.
Although the Appellants specifically asserted in paragraph 7(iii) of their counter affidavit that the officers of the 1st Appellant were led in the exercise under scrutiny by one Abdul Yusuf Idakworji an Assistant Director of Operations of its Anambra Command, Awka and briefed the Respondent accordingly, the Respondent in paragraphs 11 and 4(i) & (J) of his supporting affidavit and further affidavit respectively maintained that despite repeated demands by him, the said officers did not inform him of the reason for their action. This is a very important issue, the titanium core of the defence of the Appellants requiring a clearhead.
That being the case, it behoved the Appellants’ to have unambiguously applied facts to clear this issue and who better to do this than the said Assistant Director of Operations, Anambra Command of the 1st Appellant, Mr. A. Y. Idakworji who led the team of officers of the 1st Appellant on the very important operation. I have no doubt in my mind that the Respondent was entitled to be informed of the ground(s) for the action of the 1st Appellant. The Respondent being the ‘Res’, the subject of the said action, he had the right to be told in unmistakable terms why his free movement must be curtailed and that his life was actually in danger. The Appellants cannot claim to love the Respondent more than the Respondent loves himself or as the axiom goes: the Appellants are not expected to cry much more than the bereaved. What is more, the Respondent was in Awka, Anambra State on that occasion not for pleasure but on an important mission which of course required him to traverse possibly the entire length and breadth of the State to monitor the then on-going gubernatorial election therein. That was the assignment bestowed on him by the political party he chose to associate with at that point in time.
Another sore point which the Appellants failed to respond to is contained in paragraphs 17 & 20 and 4(g) of the Respondent’s supporting affidavit and further affidavit respectively that, the Police Sergeant assigned to the Respondent by the Nigeria Police Owerri Command as Security Detail would have been withdrawn by the officers of the 1st Appellant but for the ultimate intervention of the Inspector General of Police at the protest of the Respondent. This is quite staggering, for as held out by the officers of the 1st Appellant, if the protection of the Respondent was the lynchpin of their action, they ought to have worked in unison with the said Security Detail already assigned to the Respondent by the Nigeria Police, the Agency of Government constitutionally empowered ‘inter alia’ to protect the lives of the entire citizenry of the country. Moreover, ideally, the activities of the 1st Appellant are expected to be discretely carried out behind the scenes.
Hence, upon receiving the security and intelligence reports that the life of the Respondent might likely be in jeopardy, the Nigeria Police could have been carried along in their decision and exercise to secure the life of the Respondent. It is thus mind-boggling that rather than work in concert with the Police Security Detail already assigned to the Respondent, the officers of the 1st Appellant appeared to have been at cross-purposes with the said representative of the Nigeria Police. One very germane issue that calls for deep consideration is that raised in paragraph 19 of the Respondent’s affidavit in support of his application. It was averred therein by the Respondent that, at about 6pm on the 16th of November, 2013, after the then Anambra State gubernatorial election exercise had been concluded, the officers of the 1st Appellant, who claimed to have been protecting the Respondent, suddenly disappeared, just as they appeared at the inception of their so-called operations, without giving any notice to the Respondent. The said officers of the 1st Appellant led by the Assistant Director, Operations, Mr. A. Y. Idakworji ought to have, at the very least, informed the Respondent that the operation was over.
Afterall, according the Appellants, the Respondent was informed that he was not to venture out of the hotel premises, at the inception of the operations and indeed that instruction was clearly acted out and enforced by them. In my humble but very firm opinion, that singular action or inaction made the held-out motive of the officers of the 1st Appellant very suspect, untidy and indeed ?mala fide?. That singular action created a very big lacunae in the veracity of the intention of the 1st Appellant thereby rendering the entirety of the said operations open to suspicion. The reason advanced by the Appellants’ in paragraph 7 (vii) is that, the threat to the life of the Respondent having been fully assessed and forestalled on the 16th of November, 2013, the concerned officers of the 1st Appellant detailed to protect the Respondent were then withdrawn. Yet, that fact and the decision were not communicated to the Respondent before the officers left. This reason, just like the other reasons advanced particularly in the whole of paragraph 7, which houses the entire defence of the Appellant, can best be described as nebulous.
As claimed by the Respondent and uncontroverted by the Appellants, the Respondent was let off the restraints after the election exercise of the day in question was over, it becomes crystal clear that, the actual reason behind the action of the 1st Appellant was to prevent the Respondent from monitoring the said election and generally exercise his rights to move freely in that part of the country, associate with the interest of his political party, manifest his religion in community with others and express his opinion on contemporary issues contrary to Sections 41, 40, 38(1) and 39(1) of the Constitution respectively on the days in question.
For, if truly, the Respondent’s life was under threat in Anambra State at the said period, the purported protection being offered to him by the 1st Appellant ought to have been extended to cover the period of his sojourn in the State and as I adverted to earlier on above, the Respondent ought to have been carried along by the Officers of the 1st Appellant, from the inception of the purported assessment exercise to its end.
I am at one with the trial Court’s finding that, the very germane assertions in substantiation of the claims of the Respondent as enumerated above were not in any lucid way controverted by the Appellants. The law is very well settled that, an evidence not challenged by the party that had the opportunity to do so would ordinarily be believed, accorded credibility and acted upon by the Court. See amongst an army of judicial authorities, the cases of: (1) Odulaja v. Haddad (1973) 1 All NLR p.191; (2) Obanor v. Obanor (1976) 2 S.C p.1; (3) Omoregbe v. Lawani (1980) LPELR-2655(SC); (4) Incar Nigeria Ltd. V. Adegboye (1985) 2NWLR (Pt.8) p.453; (5) Ayinke v. Lawal (1994) LPELR-680(SC); (6) Pascutto v. Adecentro (Nig.) Ltd. (1997) LPELR-2904(SC); (7) Olohunde v. Adeyoju (2000) LPELR-2586(SC); (8) Owners of M/V Gongola Hope & Anor. V. Smurfit Cases (Nig.) Ltd. & Anor. (2007) LPELR-2849(SC); (9) Cameroon Airlines v. Otutuizu(2011) LPELR-827(SC) and (10) Mabamije v. Otto (2016) LPELR-26058(SC).
In the instant matter, it is my view and I hold that, the evidence enumerated above, deposed to by the Respondent, which were not controverted by the Appellants, being strong, imbued with substance, believable, manifestly reasonable and capable of helping the Court to resolve the controversy between the parties, could not have been ignored by the learned trial Judge. Rather, the learned trial Judge was right to act on same in favour of the Respondent.
As I alluded to earlier on above in this judgment, it is settled law that, what this Court as an appellate Court has to decide in an appeal is whether the decision of the trial Judge was right and not so much whether the reasons advanced by him were right. In the case of: Atanda & Ors. V. Ajani & Ors. (1989) LPELR-589, the Apex Court on this head pointedly stated these tenets as follows:
An appellate Court is only left with a duty to see: (a) whether there was evidence to support the findings and/or the decision of the trial Court. (b) whether the trial Court has made a correct assessment of the evidence before it. (c) whether the trial Court has wrongly accepted or rejected any evidence tendered at the trial. (d) whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.
See also the cases of: (1) Esangbedo v. State(1989) LPELR-1163 (SC) and (2) Oladele & Ors. V. Oba Aromolaran II & Ors. (1996) LPELR-2546 (SC).
In tune with my resolution of issue number 2 in this appeal to the effect that the learned trial Judge was in clear perception of the affidavit evidence adduced by the parties on the two sides of the divide, having put them on the imaginary scale of justice bearing in mind the surrounding circumstances of this case, it is also my firm opinion and I hold that, the learned trial Judge equally properly weighed same and came to a right and just conclusion. I have no legal justification to tamper with the conclusion of the learned trial Judge which flowed naturally from a proper perception and evaluation of the legal evidence adduced by the parties before him at trial. I have earlier on above reiterated the findings and conclusion of the trial Court. See the cases of: (1) Olubode & Ors. V. Salami (1985) LPELR-2607 (SC); (2) Umesie & Ors. V. Onuaguluchi & Ors. (1995) LPELR-3368 (SC); (3) Guardian Newspapers Ltd. & Anor. V. Ajeh (2011) LPELR-1343 (SC) and (4) Skye Bank v. Iwu (2017) LPELR-42595 (SC).
For the avoidance of doubt, I am at one with the learned trial Judge’s conclusion that, the reasons advanced by the Appellants’ for the detention of the Respondent in the manner described and for the period stated by him are implausible. Hence, the Respondents fundamental right to personal liberty was arbitrarily infringed upon by the 1st Appellant and as a fall out of that, his fundamental rights to freedom of movement, expression of thought, association with his political party and manifest his religious worship in community with others were similarly arbitrarily infringed upon on the 15th and 16th of November, 2013 in Akwa, Anambra State.
Consequent upon the circumstances of this matter, it becomes clear as a bell that the Appellants fatally failed to justify or legalise or constitutionalise their said action against the Respondent. Their actions against the Respondent could not be properly justified under the exceptions to either Sections 35(1), 41(1) and 45(1) of the Constitution or Articles 6 and 27(2) of the African Charter on Human and Peoples Rights Act. Concomitantly, the case of: Dokubo-Asari v. F.R. N. (supra) does not in any way advance the case of the Appellants. I am at one with the position of the Respondent that, the facts of the said case differ diametrically from those of the instant case. The Applicant in that case declared himself as an enemy of the sovereign State of Nigeria. He was the leader of a militia and made a public proclamation of the objective of his said group to torpedo the then Government of Nigeria. He was however arrested and charged with the very grave criminal offence of treasonable felony punishable with imprisonment for life.
I am aware that none of the eight grounds of appeal specifically touches on the issues of reliefs (ix) and (x) sought at the trial Court by the Respondent and the orders made by the trial Judge in his judgment in respect thereon.
However, one of the Appellants’ reliefs being sought hereat is the setting aside of the said judgment in its entirety. It is for that reason that I consider it apposite to advert to the position of the law on same. Section 35(6) of the Constitution provides that, 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. What this means is that, once an applicant under the Fundamental Rights (Enforcement Procedure) Rules has succeeded in establishing that his right to personal liberty had been infringed and the Court adjudged his arrest or detention unlawful, no matter how short the period of arrest or detention is, as in the instant case, the awards of damages and apology follow perforce.
There is no requirement that there should be any formal reliefs sought in these regards. That is to say, whether or not an applicant sought these as reliefs, he is automatically entitled once his fundamental right had been adjudged by the Court to have been violated.
This is akin to general damages which need not be strictly pleaded and proved by the litigant but flow directly and naturally from and are recoverable for legal wrongs. They are presumed by the applicable law to be the probable consequence of the defendant’s act and therefore need not be specifically claimed. It follows therefore that the quantum of damages is usually what a reasonable man considers to be fair and just, in his opinion and judgment, in the circumstances of a given case. In the case of: Okonkwo v. Ogbogu (1996) LPELR -2486, the Supreme Court held as follows:
Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injuries substantial damages may be awarded for the injury to the man’s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages are given though he has not suffered any pecuniary damages. It is also not necessary for the plaintiff to give evidence of damages to establish his cause of action or to claim any specific amount of damages.
See also the cases of: (1) Jim-Jaja v. C.O.P., Rivers State (2013) 6NWLR (Pt.1350) p.225 at pgs. 244-245 & 256; (2) Iwununne v. Egbuchulem & Ors. (2016) LPELR-40515 (CA); (3) Okoro v. C.O. P. Enugu State & Anor. (2016) LPELR-41025 (CA) and (4) Igweokolo v. Akpoyibo & Ors. (2017) LPELR-41882 (CA); In the very recent case of: F.B.N. Plc. & Ors. V. A.-G., of the Federation & Ors. (2018) 7NWLR (Pt.1617) p.121 at pgs. 152-153, the Supreme Court restated its position on this issue and referred with approval to its earlier decision in the case of: Jim-Jaja v. C.O.P., Rivers State (supra) in the following words:
As this Court aptly observed in Jim-Jaja v. C.O.P, Rivers State (supra), fundamental rights matters are placed on a higher pedestal than the ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. In that case, Jim-Jaja v. C.O.P (supra) at page 254 paras. C-F, Muntaka- Coomassie, JSC had this to say
The appellant’s claim is in connection with the breach of his fundamental rights to his liberty by the respondents by virtue of the provisions of Section 35(6) of the Constitution, the complainant is entitled to compensation and apology, where no specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of fundamental human rights procedure…………………………………………
The procedure for the enforcement of the fundamental human rights was specifically promulgated to protect the Nigerians’ fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation, even if no specific amount is claimed?.
It is in this vein that I equally find no reason whatsoever to justify any interference with both the award of damages assessed in the sum of Two Million Naira only in favour of the Respondent and the order that the 1st Appellant should cause to be published in the Sun and Daily Trust Newspapers, an apology to the Respondent, both having been properly assessed and reasonably made by the learned trial Judge respectively.
Consequent upon my foregoing enunciations, it is quite vivid that, issues one and three are also totally devoid of merits and are again resolved against the Appellants and in favour of the Respondent.
Sequel to the resolution of all the three issues formulated by the Appellants against them, the appeal is fated for failure, being totally bereft of merits.
I accordingly dismiss the appeal.
Consequently, the judgment of the trial Court delivered on 16th of January, 2014 in Suit No. FHC/AWK/CS/310/2013 is hereby affirmed in its entirety by me.
I make no order for costs.
JAMES SHEHU ABIRIYI, J.C.A.: I AGREE
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my Lord, Oyebisi Folayemi Omoleye, JCA with whom I agree in toto that the appeal lacks merit and same should be dismissed.
My Lord in the lead Judgment has painstakingly addressed all salient points presented in this appeal. I have nothing useful to add but dismiss this appeal.
Appearances:
E. R. Emukpoeruo Esq.For Appellant(s)
Chimezie O. Nwodo Esq. holding the brief of A. U. Mustapha, SANFor Respondent(s)
