ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS v. MR. DUBEM CHUKWURAH
(2018)LCN/12393(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of March, 2018
CA/A/715/2016
RATIO
FUNDAMENTAL RIGHT: FOR A CLAIM TO QUALIFY AS FUNDAMENTAL RIGHT
“It is also established that for a Claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right. In other words, where the alleged breached of a fundamental right is ancillary or incidental to the substantive Claim of the ordinary Civil or Common Law nature, it is incompetent to constitute the Claim as one for the enforcement of a fundamental right.
See:TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 at 556-557;EGBUONU VS. B.R.T.C. (1997) 12 NWLR (PT. 531) 29; WAEC VS. AKINKUNMI (2008) 4 S.C. 1, (2008) LPELR 3468 (SC);SEA TRUCKS LTD VS. ANIGBORO (2001) 1 S.C (P.T 1) 45, (2001) LPELR 3025; FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (P.T 842) 113, (2003) LPELR 3173 (SC); UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (P.T 1000) 751, 2006 LPELR 3417 (SC) and GAFAR VS. GOVERNMENT OF KWARA STATE (2007) 1-2 SC 189, (2007) LPELR 807 (SC).” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JURISDICTION: TO DETERMINE JURISDICTION OF THE COURT
“The Court of Appeal led by OTISI JCA in a unanimous Judgment by the five Justices in the panel reversed the decision of the Federal High Court adopted the position of the law as stated by the Supreme Court inTUKUR VS. GOV. OF GONGOLA STATE (Supra) and reiterated the position of the law that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the Plaintiff or Applicant i.e the Writ of Summons and Statement of Claim, or the Originating Summons and its supporting affidavit. See also:OHAKIM VS. AGBASO (2010) LPELR 2359 (SC); APGA VS. ANYANWU (2014) LPELR 21282 (SC); GOLDMARK NIGERIA LTD VS. IBAFON COMPANY LTD (2012) LPELR ? 9349 (SC);A-G RIVERS STATE VS. A-G AKWA IBOM STATE (2011) LPELR 633 (SC) and FAITH ENTERPRISES LTD VS. B. A. S. F. (NIG) LTD (2010) 4 NWLR (PT. 1183) 104 S. C.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
2. CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION
3. MARIAM SULEIMAN Appellant(s)
AND
MR. DUBEM CHUKWURAH Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the decision of the Federal High Court sitting at Abuja presided over by Honourable Justice J.T. Tsoho delivered on 27th May 2016 on an Originating Motion dated and filed by the Respondent along with three other persons.
The reliefs sought in the Originating Motion by the Respondent and three other persons more particularly as it concerned the Respondent are reproduced below:
VII. A DECLARATION that the Arrest of the 1st Applicant on the 1st of December, 2015 at the 1st, 2nd, and 4th Respondents Abuja office at No. 5, Fomella street, Off Ademola Adetokunbo Crescent, Wuse II, FCT , Abuja is illegal, inimical, unlawful, unconstitutional, null and void and a gross violation of the Applicants fundamental Rights to dignity of a person, personal liberty, freedom of movement as preserved and protected under the 1999 Constitution of the Federal Republic of Nigeria (as Amended).
VIII. A DECLARATION that the further detention of the 1st Applicant from the 1st of December, 2015 till the 6pm, the 3rd of December, 2015 at the 1st , 2nd, and 4th Respondents Abuja office at No. 5, Fomella Street, Off Ademola Adetokunbo Cresent, Wuse II, FCT ? Abuja; despite the fact that the 1st Applicant provided the 3rd Applicant has his surety to 1st, 2nd, and 4th Respondents since the 1st of December, 2015 is illegal, inimical, unlawful, unconstitutional, null and void and a gross violation of the Applicants fundamental Rights to dignity of person, personal liberty, freedom of movement as preserved and protected under the 1999 Constitution of the Federal Republic of Nigeria (as amended).
X. A DECLARATION that the Diamond Bank draft in the sum of One Million Naira only (?1,000,000.00) in favour of DANYREGO RESOURCES NIG. LTD. dated 02 December 2015 which the 1st Applicant was compelled without an Order of a competent Court of jurisdiction by the 1st and 2nd Respondents to provide as part payment for debt which the 1st Applicant is indebted to DANYREGO RESOURCES NIG. LTD as a condition for releasing the first Applicant on bail by the 1st, 2nd, and 4th Respondents’ despite providing the 3rd Applicant who is a level 15 officer (a Deputy Director) in the Federal Ministry of Environment since on the 1st of December, 2015 as surety is illegal, inimical, unlawful, unconstitutional, null and void and a gross violation of the fundamental rights to dignity of person, personal liberty, freedom of movement of the Applicant.
XI. A DECLARATION that the Respondents jointly and severally by law are not debt recovery agents under the extant laws to recover debt or enforce payment of debt for and on behalf of any individual, body and agency in Nigeria.
XII. AN ORDER OF PERPETUAL INJUNCTION prohibiting, restraining, commanding the Respondents, jointly and severally, whether by themselves or their agents, servants, privies or by whosoever acting for, or through them, from further acting as debt recovery agents against the Applicants, from further harassment, intimidating, invitation, arrest, threat to arrest, detain and arraignment of the Applicants on a Civil Commercial transaction which the Respondents are now acting as debt recovery agent in violation of their constitutional function, or interfering in any manner whatsoever with the Applicant’s Fundamental rights, and from committing further infractions on the fundamental rights of the Applicant as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as Amended)
XIV. AN ORDER mandating the 1st, 2nd and 4th Respondents to refund the sum of One Million Naira only (N1,000,000.00) only to the 1st Applicant through the law firm of Counsel AGALA AND AGALA CHAMBERS, being the sum forcefully recovered from the 1st Applicant without an order of a competent Court of jurisdiction.
XV. The sum Fifty Million Naira only (N 50,000,000.00) as exemplary damages/compensation for the unlawful detention, harassment, inhuman and degrading treatment and untold hardship caused to the 1st, 2nd, 3rd and 4th Applicants by the Respondents jointly and severally.
XVI. A WRITTEN APOLOGY by the Respondents to the Applicant to be published in Five (5) national daily Newspapers for the unwarranted infringement of the fundamental rights of the 1st, 2nd, 3rd and 4th Applicants.
XVII. COST OF THIS ACTION as accessed by the Honourable Court.
The Grounds upon which the application of the Respondent and others were brought are also reproduced below:
a. Section 34 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended entitles the Applicants Respect for the dignity of their person.
b. Section 34 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria as amended prohibits the Respondent from subjecting the Applicants to torture or to inhuman or degrading treatment.
c. Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended guarantees the Applicants rights to their personal liberty.
d. Section 41 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended guarantees every person the right to move freely.
e. The Respondents jointly and severally cannot be permitted to violate the Fundamental Rights of the Applicants.
f. The Respondents jointly and severally are not permitted by law to act as debt recovery agent(s) for any person(s).
g. The Respondents jointly and severally are acting as debt recovery agents against the Applicants.
h. The Applicants has not in any way committed any offence against the Federal Republic of Nigeria to warrant the Respondents jointly and severally harassing the Applicants.
i. In law, an invitation under whatever guise does gives (sic) any legal right to the Respondents to grossly violate the fundamental human rights of the Applicants.
j. That unless this Honuorable Court intervenes, the Respondents are threatening the Applicant on a daily basis with further arrest, detention thereby violating and infringing on his rights.
k. That the Applicants’ complaint is that as true citizens of Nigeria, they are entitled to enter into a business transaction with any person and that the arrest, detention, intimidation, harassment and further threat to arrest and arraign the Applicants on a trump up charge is not justifiable in fact and in law in a purely civil transaction.
l. That by virtue of Order 2 Rule 1 of the Fundamental Rights (Enforce Procedure) Rules (sic) 2009, any person who alleges that any of the fundamental rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled has been, is being or likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur for redress.
m. That the Respondents cannot act as a debt collector in a purely civil transaction.
The learned trial Judge found for the Respondent as 1st Applicant at Pages 212 to 213 of the Record as follows:
The same cannot however be said in the case of the 1st Applicant. The Respondents by their own admission stated that he was admitted to administrative bail on 01/12/2015, but he could not meet the terms until 03/12/2015.
The Respondents fell into the error of thinking that by admitting the 1st Applicant to bail on the same day of his arrest, they had complied with the dictates of the law. However, the plain language of Section 35 (4) of the 1999 Constitution is that any person who is arrested or detained ?Shall be brought before a Court of law within a reasonable time?. This provision does not give the Respondents the option of resorting to granting bail, no matter how attractive that would appear. The provisions of the Constitution which is the supreme law must be strictly complied with. Therefore, the failure of the Respondents to comply with the letters of Section 35 (4) rendered the detention of the 1st Applicant beyond 1 day, unconstitutional.
It is not disputed that the 1st Applicant was detained in Abuja, which has Courts of competent jurisdiction within a radius of 40 Kilometers, and so he should have been taken to a Court of Law within one day in keeping with Section 35 (4) read with Subsection (5) of the Constitution. Having detained the 1st Applicant beyond one day amounted to a violation of Constitutional provisions and a breach of his fundamental rights.
This entitles the 1st Applicant to remedy. It is trite that when liberty of a person has been interfered with, damages are given to vindicate the Applicant’s right, even though he has not suffered any pecuniary damage.
See: N.D.A. V. Obot (2009 – 10) CHR 190 at 208. See also: Section 35 (6) of the CFRN 1999 (as amended) which entitles any person who is unlawfully arrested or detained to compensation.
Considering the entire facts and circumstances of this case, I award to the 1st Applicant compensatory damages assessed at #1,000, 000.00 (One Million Naira) against the 1st, 2nd and 4th Respondents.
Dissatisfied with this decision the Appellants filed a Notice of Appeal containing Six Grounds of Appeal in this Court on 10th August 2016.
Learned Counsel for the Appellants filed a Brief of Argument on behalf of the 1st, 2nd and 3rd Appellants on 12th April 2017 but the said Appellants Brief of Argument was deemed filed on 7th December 2017. The Respondent to this Appeal did not file any Brief of Argument. The Respondent was also not present and was not represented by Counsel when this Appeal was heard on 24th January, 2018 despite service of hearing notice.
Learned Counsel for the Appellants nominated Four Issues for determination of the Appeal. They are:
1. Whether the trial Court had jurisdiction to entertain the suit in view of the provisions of Sections 251 and 272 of the Constitution Federal Republic of Nigeria, 1999 (as amended); Section 3 of the Dishonoured Cheques (Offences) Act Cap D11 LFN 2004 and the authority of NDLEA VS. OMIDINA (2013) 16 NWLR (Pt. 1381) 589. (Distilled from grounds 1&2 of the Notice of Appeal).
2. Whether the affidavit of the Respondent deposed to by his Counsel Innocent Ugbede Agala was competent. (Distilled from ground 6 of the Notice of Appeal).
3. Whether the learned trial judge was right when he held that the Appellants were in violation of Constitutional provisions and breached the Respondent’s fundamental rights. (Distilled from ground 3 of the Notice of Appeal).
4. Whether the award of compensatory damages of One Million Naira (#1,000,000.00) against the Appellants in favour of the Respondent was not excessive in the entire circumstances of this case. (Distilled from ground 5 of Notice of Appeal).
On Issue One, Learned Counsel for the Appellants submitted that the law is settled that for a Court to exercise jurisdiction the following conditions must be satisfied, namely:
1. The subject matter of the case must be within its jurisdiction.
2. There should be no feature in the case which prevents it from exercising its jurisdiction.
3. It should be properly constituted as regards members and qualifications of the members of the bench and no member should be disqualified for one reason or another.
Counsel referred to the cases of:MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; GALADIMA VS. TAMBAI (2000) FWLR (Pt. 14) 2369; DANGANA VS. USMAN (2012) ALL FWLR (PT. 627) 612 at 638
and submitted that where any of the conditions is lacking, the Court is devoid of jurisdiction over the matter.
Appellants Counsel also submitted that it is also settled that in order to determine jurisdiction it is principal or main reliefs Claimed by the Plaintiff in the Writ of Summons and Statement of Claim that the Court has to consider. That where the application is by Originating Summons, or Motion on Notice and Affidavit, the Court considers the Claims in the Originating Summons and Motion on Notice.
He referred on the above to the cases of:
TUKUR VS. GOVERNMENT OF GONGOLA STATE (NO. 2) (1989) 4 NWLR (PART 117);
TANAREWA (NIG.) LTD VS. PLASTIFARM LTD (2003) 14 NWLR (PART 840) 355 at 373,
INAKOJU VS. ADELEKE (2007) 4 NWLR (PART. 1025) 423.
Appellants Counsel further reproduced the Provision of Section 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and submitted that ‘High Court’ under the said Provision means the High Court of a State, High Court of the Federal capital Territory, or Federal High Court.
After referring on the above to the case of: JACK VS. UNA (2004) 5 NWLR (PART 365) 208 at 213,
Counsel submitted that though the High Court of a State, the High Court of the Federal Capital Territory and the Federal High Court have concurrent jurisdiction on fundamental rights, their respective jurisdiction thereto is limited to fundamental right matters arising from civil causes and matters in respect of which jurisdiction has been conferred on them by the Constitution of the Federal Republic of Nigeria.
He submitted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which the Court has jurisdiction.
Thus, said Counsel, Fundamental Rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court. Equally, a High Court of a State lacks jurisdiction to entertain matters of Fundamental Rights, although brought pursuant to Section 46 (2) CFRN, where the alleged breach of such matters arose from a transaction or subject matter falls within the exclusive jurisdiction of the Federal High Court.
He referred to Section 3 of Dishonored Cheques (Offences) Act Cap. D11 LFN 2004 which gives summary jurisdiction to try offences under the enactment to the High Court of the State and submitted on the authority of NDLEA VS. OMIDINA (2013) 16 NWLR (PART 1381) 589 that a Court which has no jurisdiction to try an offence shall not have the jurisdiction to determine any incidental matter to that offence including proceedings for the enforcement of fundamental rights arising from investigation of such an offence.
In the instant case, said Counsel, the Federal High Court lacked the jurisdiction to entertain the Respondent?s Suit since that Court has no Jurisdiction to try the offence the commission of which the Respondent was being investigated for.
He submitted that the Respondent?s case falls within the exclusive jurisdiction of the High Court of Lagos State because Exhibit EFCC 2 was executed in Lagos, the goods were received in Lagos and the two dud cheques were issued to the nominal complainant by the Respondent in Lagos.
He urged us to hold that the Federal High Court (whether sitting in Abuja or anywhere) lacked jurisdiction to entertain the Respondent’s case.
In deciding Issue One, learned Counsel for the Appellant’s himself seem to have noted that where the State High Court and the Federal High Court exist in a State both have concurrent jurisdiction in matters pertaining to Fundamental Rights
BRONIK MOTORS LTD & ANOR VS. WEMA BANK LTD (1983) 1 S.C.N.L.R. 296; JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) LPELR 1587 (SC); ADETONA VS. IGELE GENERAL ENTERPRISES LTD (2011) LPELR 159 (SC).
It is also established that for a Claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right. In other words, where the alleged breached of a fundamental right is ancillary or incidental to the substantive Claim of the ordinary Civil or Common Law nature, it is incompetent to constitute the Claim as one for the enforcement of a fundamental right.
See:TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 at 556-557;EGBUONU VS. B.R.T.C. (1997) 12 NWLR (PT. 531) 29; WAEC VS. AKINKUNMI (2008) 4 S.C. 1, (2008) LPELR 3468 (SC);SEA TRUCKS LTD VS. ANIGBORO (2001) 1 S.C (P.T 1) 45, (2001) LPELR 3025; FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (P.T 842) 113, (2003) LPELR 3173 (SC); UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (P.T 1000) 751, 2006 LPELR 3417 (SC) and GAFAR VS. GOVERNMENT OF KWARA STATE (2007) 1-2 SC 189, (2007) LPELR 807 (SC).
Many of the above cases also establish that the Court must ensure that the reliefs claimed are predicated on the Fundamental Rights provided under Chapter Four of the Constitution of the Federal Republic of Nigeria 1999 and are made the main Claims and not the ancillary Claims in the motion paper. Usually any relief claimed outside the scope of the rights provided under Chapter Four of the Constitution will be one made without jurisdiction and would be unconstitutional and void.
In the instant case, there is no question that the main and the ancillary reliefs of the Respondent are squarely predicated on the fundamental rights under Chapter Four of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned Counsel for the Appellants however introduced another dimension to the established position of the law on the authority of the case of: NDLEA VS. OMIDINA (2013) 16 NWLR (PART 1381) 589 that a Court which has no jurisdiction to try an offence shall not have the jurisdiction to determine any incidental matter to that offence including proceedings for the enforcement of Fundamental Rights arising from investigation of such an offence.
To put the ratio of the decision of the Court of Appeal (LAGOS DIVISION) in NDLEA VS. OMIDINA (Supra) in proper perspective, it is pertinent to quote from Page 606 of the Law Report, that is lead Judgment of Pemu J.C.A.
I agree with the submission of the Appellant that it is the Federal High Court which should have entertained the application for breach of fundamental human rights and not the High Court as in the instant circumstance, particularly as it relates to the ‘subject matter’ of drug trafficking. The ‘Subject matter’ is what has to be put into consideration in determining whether the Court has jurisdiction or not. Moreso, Section 26 of the National Drug Law Enforcement Agency Act Cap. 30 LFN stipulates that: ‘The Federal High Court shall have exclusive jurisdiction to try offenders under this Act.’
Perhaps it suffices to say that the decision of the Court of Appeal (Lagos Division) in the NDLEA VS. OMIDINA?S CASE (Supra) was reached on its own peculiar facts and should not be regarded as authority intended to expand the scope of the decision of the Supreme Court in:TUKUR VS. GONGOLA STATE (Supra);SAUDE VS. ABDULLAHI (1989) 4 NWLR (PT. 116) 387 and DONGTOE VS. CIVIL SERVICE COMMISSION PLATEAU STATE (2011) 9 NWLR (PT. 717) 132.
And a host of others that have held that the determinant factor in finding jurisdiction of a Court for the purpose of the application of the Provision of Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the principal reliefs of the applicant under the provision.
It would be recalled that the intention of the draftsman of the Provision of Section 42 of the Constitution is to create special concurrent jurisdiction for the High Court in cases concerning breaches of fundamental rights of the citizens of Nigeria. It may therefore be contradictory to create a ‘subject matter’ jurisdiction in terms of Criminal Offences to limit the operation of the Provision of Section 46 of the Constitution.
Indeed if the draftsman of Section 46 of the Constitution wanted such specie of ‘subject matter’ jurisdiction under the Section, he would have said so.
Rather, Sections 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) read:
46 (1) any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to High Court in that state 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 order, 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.
Meanwhile, it has been held that the ‘High Court’ stated above means the High Court of a State, High Court of the Federal Capital Territory, or Federal High Court.
See: Jack VS. UNA (2004) 5 NWLR (PT. 865) 208 at 213.
Again, the ‘subject matter’ jurisdiction which was introduced in the decision of the Court of Appeal (Lagos Division) tends to limit the expansive spirit of the Provision of Section 46 of the Constitution and clearly is not in line with the views of the Supreme Court inTUKUR VS. GOV. OF GONGOLA STATE (Supra)
Preamble No. 3 under the fundamental rights (Enforcement Procedure) Rules, 2009 strengthings the above position when it states thus:
The overriding objectives of these rules are as follows:
a) That the Constitution especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protection intended by them.
b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills, constitute instruments in themselves or form parts of larger documents like constitutions?
Quite recently, in the case of: MRS COMFORT ALABA KOLO VS. NIGERIA POLICE FORCE & 3 ORS. (Appeal No. CA/L/1246/2015 – unreported delivered on 9th February, 2018) a full panel of the Court of Appeal had the opportunity of considering a case which is quite similar to the instant case. The Appellant who had a matrimonial crisis with her husband left the matrimonial home with her two children. The husband reported a case of abduction against her. When she was invited by the Police with an attached Court Summons in her maiden name, she feared that she could be detained and tortured and therefore approached the Federal High Court by Originating Motion to enforce her fundamental rights. The Federal High Court declined jurisdiction and viewed the matter as a matrimonial cause.
The Court of Appeal led by OTISI JCA in a unanimous Judgment by the five Justices in the panel reversed the decision of the Federal High Court adopted the position of the law as stated by the Supreme Court inTUKUR VS. GOV. OF GONGOLA STATE (Supra) and reiterated the position of the law that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the Plaintiff or Applicant i.e the Writ of Summons and Statement of Claim, or the Originating Summons and its supporting affidavit. See also:OHAKIM VS. AGBASO (2010) LPELR 2359 (SC); APGA VS. ANYANWU (2014) LPELR 21282 (SC); GOLDMARK NIGERIA LTD VS. IBAFON COMPANY LTD (2012) LPELR ? 9349 (SC);A-G RIVERS STATE VS. A-G AKWA IBOM STATE (2011) LPELR 633 (SC) and FAITH ENTERPRISES LTD VS. B. A. S. F. (NIG) LTD (2010) 4 NWLR (PT. 1183) 104 S. C.
Incidentally, in the instant case, the reliefs and depositions of the Respondent as Applicant pictures an attempt by the Appellants to forcefully collect a civil debt by using the instrumentality of the State to harass, intimidate and eventually to detain the Respondent. It was only in the counter-affidavit of the Appellants that the suggestion arose that the Respondent and others were being investigated for issuing Dud cheques and offences related to false pretences.
In conclusion on Issue One, having regards to the fact that the principal and ancillary reliefs in this case concern the enforcement of the fundamental rights of the Respondent coupled with the weight of established authorities on the application of the Provision of Section 46 of the Constitution including the cases of:
TUKUR VS. GOV. OF GONGOLA STATE (Supra) COP; ABIA STATE VS. OKARA (2014) LPELR ? 23532 (CA); ABBA VS. JAMB (2014) LPELR ? 24205 (CA); FEDERAL UNIVERSITY OF TECHNOLOGY YOLA VS. FUTULESS (2004) LPELR 5629 (CA) (2005) 12 NWLR (PT. 938) 175 and NIMASA VS. IHEANACHO (2016) LPELR ? 40565 (CA).
the Federal High Court was right to have entertained jurisdiction in the instant case.
Appellants Issue One is answered in the positive and the said Issue is resolved against the Appellants.
On Issue Two, learned Counsel for the Appellants submitted that the affidavit in support of the Respondent’s Originating Summons is incompetent because it was deposed to by Respondent’s Counsel Innocent Ugbede Agala Esq. This, Counsel, said contravenes the Provision of Order 2 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and that the anomaly cannot be cured by Order 9 of the Enforcement Procedure Rules.
He submitted that the supporting affidavit of the Respondent’s Originating motion deposed to by his Counsel relates to mode of commencement of the application and it cannot therefore ‘pass as mere irregularities that are not fatal to the Affidavit in Support of Applicants Application’ as held by the learned trial Judge at Page 190 of the Record.
Appellants Counsel submitted further that the refuge sought by His Lordship in Paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which enjoins the Court to encourage and welcome Public interest litigations in human rights litigation does not avail the trial Court in upholding the Affidavit in Support filed on behalf of the Respondent. Respondent’s action was not public interest litigation.
He submitted that the Respondent was not the Applicant in the suit. Rather, the suit was filed in the personal name of the Respondent.
Furthermore, said Counsel, the Affidavit in Support failed to state that the Applicant (Respondent) was unable to depose to the affidavit let alone state the reason for his inability, in clear disregard of the Provision of Order 2 Rule 4 of the Rules.
Learned Counsel for the Appellants then referred to the decision of the Supreme Court in: EKPETO VS. WANOGHO (2004) 18 NWLR (PT. 905) 394 at 413, where the Court also decried the practice of Counsel in a matter deposing to an affidavit.
He concluded on Issue Two that the affidavit of the Respondent deposed to by his Counsel I. U. Agala Esq. is incurably defective and urge us to resolve the Issue in favour of the Appellants.
On Issue Two, I agree with the learned trial Judge when he held at Page 189 of the Record that ‘while the practice of Counsel deposing to affidavit on behalf of his Clients is condemned, that act by itself does not make an affidavit incompetent…’
Similarly, the combined reading and application of the Provision of Order 2 Rule 4 and Order 9 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 renders the failure of the deponent to state that the Applicant is unable to depose personally to the affidavit a mere irregularity which does not render the deponent?s affidavit incompetent.
Oder 2 Rule 4 states that:
4. The affidavit shall be made by the applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.
Order 9 Rule 1 further states:
1. Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to…
i. Mode of commencement of the application.
ii. The subject matter is not Chapter IV of the Constitution or the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
The Provision of Order 9 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 sub-titled ‘Effect of Non-compliance’ is indeed a saving provision as to non-compliance with requirement as to time, place or manner or form of anything done or left undone in the course of or in connection with any proceedings. I do agree with the learned trial Judge that anomalies such as the failure to state why the Respondent Applicant has not personally sworn the affidavit may be cured by the Provision of Order 9 Rule 1 of the FREPR, 2009.
ISSUE Two is resolved against the Appellants.
On Issue Three, learned Counsel for the Appellant referred to the Provision of Section 35(1) (b) (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 6, 7, 8 (5) 12(1) 13 (1) 41 and 46 EFCC Act, 2004 and the case of: Fawehinmi VS. I.G.P. (2000) NWLR (PT. 665) 481 at 519 and submitted that the Appellants are vested with power to arrest, detain and prosecute any person in the course of their investigation.
He submitted that the right to personal liberty is not absolute, and can therefore be curtailed for the purpose of bringing a person before a Court in execution of the Order of 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 crime. After referring to the case of: EKWENUGO VS. F.R.N. (2001) 6 NWLR (PT. 708) 171 at 185, he submitted further that a person?s liberty may also be tampered with so as to prevent him from committing an offence. In other words, said Counsel, it is clear that no citizen?s freedom or liberty is absolute.
The freedom or liberty of a citizen ends where that of another man starts. Furthermore, that in: AGF VS. DAWODU (1995) 2 NWLR (PT. 380) 712 at 714, it was held that public policy demands that criminal suspects be brought to justice.
He submitted that in the instant case, the Respondent on 1st December, 2015 was informed of the reason for his invitation. That he was granted administrative bail but failed to meet the bail conditions until 3rd day of December, 2015 when he was taken on bail.
He submitted that the Respondent having been granted bail and detained upon failure to meet the bail conditions, the Appellants could not be said to have violated his constitutional rights.
He referred to the case of: AUGUSTINE EDA VS. C.O.P. BENDEL (1982) N.C.L.R. 19 and submitted that to hold the Appellant liable for the failure of the Respondent to secure a surety/meet his bail conditions and get released within the stipulated period, is, to set a dangerous precedent.
He submitted that no person ought to take benefit from his own wrong – commodum ex injuria sua non habere debet (The wrong doer should not derive any benefit from his own wrong).
He submitted that the learned trial Judge was in error when he held at Page 212 of the Record that ‘the Respondents fell into the error of thinking that by admitting the 1st Applicant to bail on the same day of his arrest, they had complied with the dictates of the law’ and concluded by saying that the Appellants violated the Respondent’s constitutional rights.
Appellants Counsel submitted further that in arriving at its Judgment that the Appellants have violated the fundamental right of the Respondent by detaining him beyond one day, the trial Court assumed that there was a Court of competent jurisdiction in Abuja where the Respondent was detained.
He submitted that what is palpable from this is that the trial Court interpreted the phrase ‘Court ofcompetent jurisdiction’ in its abstract form without conualizing it to the case at hand.
He submitted that a ‘Court of competent jurisdiction’ must be read in the con of each given case. That in the instant case, ‘The Court of competent jurisdiction’ for the purpose of the offence in respect of which the Respondent was arrested and detained is the High Court of Lagos State. The Appellants, said Counsel, could not be held to have violated constitutional provisions for not taking the Appellant to Court within one day as there was no Court of competent jurisdiction within a radius of 40 Kilometers as was held by the learned trial Judge.
It seems to me that the learned Counsel for the Appellants was right in relation to Issue Three that the Appellants could not have been held to violate the Respondent’s right to liberty, when the Respondent was in fact granted administrative bail by the Appellants 1st December, 2015 when he was first invited by the Appellants but failed to meet the bail conditions until 3rd day of December, 2015.
In AUGUSTINE EDA VS. C.O.P. BENDEL (1982) N.C.L.R. 19 it was held that in appropriate cases once the Police have offered bail to an arrested or detained person any further stay in the custody by that person until, he satisfies the conditions for bail and is taken up by someone on bail cannot properly be regarded as unlawful detention under the Constitution.
The rational for the above decision is clear. The 7th Edition of the Black’s Law Dictionary Says ‘bail’ is 1. To obtain the release of (oneself or another) by providing security for future appearance.
In the instant case, the Respondent could not have been said to have been detained or further detained having secured his release from the Appellants on the same 1st December, 2015.
The learned trial Judge was wrong to have held at Page 212 of the Record that
‘The Respondents fell into the error of thinking that by admitting the 1st Applicant to bail on the same day of his arrest, they had complied with the dictates of the law.’
Considering the entire facts and circumstances, the Appellants could not be held to have unlawfully arrested or detained the Respondent as there was in law no violation of the Respondent’s constitutional right to liberty by the Appellants.
Issue Three is resolved in favour of the Appellants.
Appellants Issue Four is on the award of excessive damages. Having found that the Appellant were not liable or in breach of the Respondent’s right to liberty under Issue Three, I do not have to consider Appellants Issue Four any longer.
In this Appeal, Issues One and two were resolved against the Appellants.
Issue Three was however resolved in favour of the Appellants.
Having resolved Issue Three in favour of the Appellants, the Appeal is allowed in part.
Issue Three in this Appeal is a determinant Issue since it touches on the liability or otherwise of the Appellants in respect of the subject matter of the suit.
Consequently, the decision/Ruling of Honourable Justice J. T. Tsoho in Suit No. FHC/ABJ/CS/1014/2015 delivered on 27th May, 2016 is hereby set aside as it affects the Respondent in this Appeal.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I am at one with the decision of my learned brother that the Ruling of the trial court as concerns the Respondent in suit No. FHC/ABJ/CS/1014/2015 delivered on 27/5/16 be and is also set aside by me.
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances:
Fatsuma Mohammed Esq. (Snr. Detective Sup. EFCC)For Appellant(s)
The Respondent’s Counsel was duly served but was absent.For Respondent(s)
