MR. EDMOND ANOLIEFO v. MRS. AGATHA NNEKA ANOLIEFO & ORS (2019)

MR. EDMOND ANOLIEFO v. MRS. AGATHA NNEKA ANOLIEFO & ORS

(2019)LCN/12984(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/E/365/2018

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

MR. EDMOND ANOLIEFO Appellant(s)

AND

1. MRS. AGATHA NNEKA ANOLIEFO
2. THE DIRECTOR-GENERAL STATE SECURITY SERVICES
(a.k.a Department of State Services)
3. MR. KINGSLEY OKEREKE
(Principal Staff Officer (Operations) State Security Service a.k.a Department of state Services, Awka)
4. MR. SANI (DEPUTY DIRECTOR)
State Security Service a.k.a Department of State Services
5. THE DIRECTOR, STATE SECURITY SERVICE ANAMBRA STATE
6. STATE SECURITY SERVICE
(a.k.a Department of State Services) Respondent(s)

RATIO

WHETHER OR NOT FAILUREE TO FILE AN AFFIDAVIT IN SUPPORT OF A MOTION RENDERS THE MOTION INCOMPETENT

The position of this Court and the Supreme Court on failure to file an affidavit in support of a motion where it is required by the rules of Court is that such a motion is incompetent and the Court has no jurisdiction to entertain it. It is liable to be struck out. See MAGNUSSON V. KOIKI & ORS (1993) LPELR ? 1818 (SC) AT 11 ? 12 (G ? A), (NWLR (PT. 317) 287. OPOBIYI & ANOR. V. MUNIRU (2011) LPELR ? 8232 (SC) AT 21 (E ? G). OLATUNJI & ANOR. V. HAMEED (2008) LPELR ? 4511 (CA) AT 3 ? 4 (G ? B). RTD. TRUSTEES OF UGBORODO COMMUNITY & ORS V. OJOGOR & ORS(2014) LPELR ? 23333 (CA) AT 18 ? 20 (E ? A). PER BOLAJI-YUSUFF, J.C.A.

THE BURDEN OF PROOF WHERE A PARTY CLAIMS TO BE UNLAWFULLY ARRESTED AND DETAINED

As rightly stated by the Court below, the law is settled that when a person claims that he has been unlawfully arrested and detained and the fact of arrest and detention is admitted, the burden is on the person who effected the arrest and detention to prove the legality of the arrest and detention. PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT

WHETHER OR NOT ANY PERSON UNLAWFULLY ARRESTED IS ENTITLED TO COMPENSATION

Section 35(6) of the Constitution (as amended) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. See ARULOGUN V. C.O.P, LAGOS STATE & ORS. (2016) LPELR- 40190 (CA) 19-20 (E-A). SKYE BANK V. NJOKU & ORS. (2016) LPELR ? 40447 (CA). PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant and 1st respondent are husband and wife. They had matrimonial dispute which culminated in a petition for a decree of dissolution of their marriage and an order for custody of the children of the marriage. The petition was filed by the appellant at the High Court of Enugu State on 28/11/2012. Cohabitation had ceased between the parties before that day. The children of the marriage were with the 1st respondent. The petition was still pending in Court when the 1st respondent wrote a petition to the 5th respondent wherein she alleged threat to her life and attempt to kidnap the children of the marriage by the appellant. Based on that petition, the appellant was arrested and detained in the office of the 2nd – 5th respondents. The appellant caused his counsel B. C. Ezemeabu to write a letter dated 30/9/2016 to the 2nd respondent to complain about his arrest and detention and a reminder dated 19/12/2016. When he did not receive any reply, he filed a motion on notice at the Federal High Court Awka, Anambra State

pursuant to Section 46(1) of the 1999 Constitution (as amended) and Order 2 Rules 1 ? 5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and the inherent jurisdiction of the Court. He sought for the following reliefs:
(a) ?A declaration that the threat to arrest and detain the applicant at the Department of State Service (DSS) custody Awka at the instance of the 1st respondent by the respondents, their agents or persons acting for or on their behalf without reasonable suspicion of his committing any offence and/or without reasonable cause in civil or matrimonial cause smacking of no crime is wrongful, illegal, unlawful, unconstitutional, null and void.
(b) A declaration that the arrest and detention of appellant on the 26th day of September, 2016 in Custody of the Department of State Service (DSS) Awka by the 2nd to 6th respondents, their agents, servants, and privies on a spurious allegation without committing a crime at the instance of the 1st respondent without any charge against the applicant before any competent Court till date is illegal, unlawful, unconstitutional, null and void.

(c) A declaration that it is not the statutory duty of the Department of State Service to investigate or meddle into Matrimonial Causes or civil matters pending in a competent Court of law or to arrest or detain the applicant based on issues smacking of no crime or act of terrorism.
(d) An Order of injunction restraining the respondents forthwith whether by themselves their servants, agents, privies or person(s) however called acting for or on their behalf from threatening to further arrest the applicant or infringing the applicant?s fundamental rights in whatsoever manner as a result of, relating to or connected with the matter complained of by the applicant and/or arresting him without the prior leave of Court had and obtained.
(e) An Order releasing forthwith to the applicant all documents including his Diamond Bank ATM Card relating to Account No. 0050386197 belonging to the applicant and all other vital documents pertaining to this matter.
(f) An Order that the respondents tender a written apology to the applicant for the breach of the applicant?s fundamental rights to personal liberty and freedom of movement.

(g) N5,000,000.00 general damages against the 1st respondent for violating the applicant?s fundamental rights to personal liberty, and freedom of movement.
(h) N20,000,000.00 punitive and/or aggravated damages against the 2nd, 3rd, 4th, 5th and 6th respondents jointly and severally for violation of the application?s right to personal liberty, movement, to own property, fair hearing, and dignity of the human person.?

Parties filed and exchanged all necessary processes. After hearing all the parties, the Court below in its judgment delivered on 15/12/2017 by I. N. Oweibo J. held that the appellant failed to make out a case for the enforcement of his fundamental right and dismissed the application.

The appellant is dissatisfied with the judgment. He filed a notice of appeal containing four grounds of appeal on 15/3/2018. The grounds of appeal without their particulars are as follows:
GROUND ONE
?The learned trial Court erred in law by granting extension of time to the 2nd to 5th respondents to file their counter-affidavit out of time when their application was not supported by

affidavit evidence setting out the grounds for delay with a written address and no penalty was paid as provided by the Rules of Court.
GROUND TWO
The learned trial judge erred in law when he improperly evaluated the evidence before the Court and erroneously held that the issue of inhuman and degrading treatment is not in any relief or ground for the reliefs in the applicant?s application which occasioned miscarriage of justice on the applicant when the Honourable Court found and held as follows:
?Now with respect to the 4th issue raised by the applicant the inhuman and degrading treatment meted out to the applicant, I would like to point out that this issue is not grounded on any relief or ground for the reliefs.?
GROUND THREE
The learned trial Court misconceived the facts when it found as fact that the complaint lodged against the applicant was the commission of a crime and not a matrimonial cause and thus erred in law in holding that there was a legal foundation for the arrest and detention of the applicant.
GROUND FOUR
The decision is against the weight of evidence.?

The appellant?s brief was filed on 29/6/2018. The 1st respondent?s brief was filed on 29/11/2018. The 2nd ? 6th respondents did not file any brief inspite of service of Court processes on them. The appellant formulated four issues for determination. The issues are:
1. ?Whether the 2nd to 5th respondents? motion on notice for extension of time to file counter-affidavit to the Applicant?s application to enforce fundamental rights was competent to activate His Lordship?s discretionary power to regularize it. (Ground One)
2. Whether the Applicant/Appellant validly raised inhuman and degrading treatment in the application or in any relief or ground for the reliefs. (Ground Two)
3. Whether the learned trial judge was right in finding and holding that there was a legal foundation for the arrest and detention of the applicant/appellant on alleged attempt to kidnap the complainant?s children. (Ground Three)
4. Whether the weight of evidence supports the judgment of the Court below in favour of the 1st to 5th respondents as against

the Applicant/Appellant to result in the dismissal of the application. (Ground Four)

The 4th respondent adopted issues 3 and 4 formulated by the appellants. I have considered the issues formulated by counsel, the grounds of appeal and the judgment of the Court below. The issues thrown up for determination in this appeal are:
(1) Whether non-compliance with the provisions of Order 26 Rules 3 and 4 of the Federal High Court (Civil Procedure) Rules, 2009 renders the counter affidavit of the 2nd ? 5th respondents filed out of time incompetent.
(2) Whether on the entire affidavit evidence before the Court, the Court below was right when it held that the appellant did not make out a case for the enforcement of his fundamental right.

On issue 1, the appellant?s counsel submitted that the decision of the Court below to waive or overlook the non-compliance with the provisions of Order 26 Rules 3 and 4 of the Federal High Court (Civil Procedure) Rules, 2009 was not exercised judicially and judiciously because the provisions of those rules make it mandatory for every motion to be supported by affidavit and written address. He further

submitted that non compliance with the rules violated the appellant?s right to fair hearing by depriving him of his right to file a counter affidavit to contest the motion. He also submitted that the filing of an affidavit in support of a motion and payment of penalty for late filing of counter affidavit to the appellant?s motion are conditions precedent to the exercise of the Court?s jurisdiction which cannot be waived. He also submitted that the Court cannot in its desire to do substantial justice waive compliance with mandatory provisions of a statute. He referred to MENAKAYA V. MENAKAYA (2002) 1 SMC 294 AT 338. C. C. C. T. & C. S LTD & ORS. V. EKPO (2008) ALL FWLR (PT. 418) 198 AT 227 (B ? C). There was no response to the above submissions.

RESOLUTION:
Order 26 Rules 3 and 4 of the Federal High Court (Civil Procedure) Rules, 2009 on which the appellant predicated his complaint provides that:
3. Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely and such motion shall be filed along with a written address.

4. Where service of a motion is required by these rules or directed by the Court or a judge, the motion shall be served together with all affidavits on which the party moving intends to rely, as well as with a written address.
The position of this Court and the Supreme Court on failure to file an affidavit in support of a motion where it is required by the rules of Court is that such a motion is incompetent and the Court has no jurisdiction to entertain it. It is liable to be struck out. See MAGNUSSON V. KOIKI & ORS (1993) LPELR ? 1818 (SC) AT 11 ? 12 (G ? A), (NWLR (PT. 317) 287. OPOBIYI & ANOR. V. MUNIRU (2011) LPELR ? 8232 (SC) AT 21 (E ? G). OLATUNJI & ANOR. V. HAMEED (2008) LPELR ? 4511 (CA) AT 3 ? 4 (G ? B). RTD. TRUSTEES OF UGBORODO COMMUNITY & ORS V. OJOGOR & ORS(2014) LPELR ? 23333 (CA) AT 18 ? 20 (E ? A).
In the instant case, the suit culminating in this appeal is a fundamental right enforcement proceeding. It is a special proceeding governed by its own procedural rules which is Fundamental Rights (Enforcement Procedure) Rules 2009.

Order II Rule 6 thereof provides that:
Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.
However Order IX Rule 1 provides that:
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 African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.”
It is clear from the unambiguous words used in Oder IX Rule 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009 that non-compliance with the rule which prescribed the period for filing a counter affidavit by the respondent shall be treated as an irregularity by the Court. The Court

even has no discretion in the matter as the word ?shall? which denotes a command to the Court is used in that order. The Court below was right to invoke the provisions of Order IX Rule 1(Supra) in this situation. The provisions of Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 which provides for payment of penalty for late filing of Court processes cannot be imported into fundamental right enforcement proceedings. See OPARAOCHA & ANOR. V. OBICHERE & ORS. (2016) LPELR ? 40615 (CA) AT 59 (B ? F). ADUMU V. CONTROLLER OF PRISONS, FEDERAL PRISONS, ABA & ORS. (2013) LPELR ? 22069 (CA) AT 38 ? 39 (E ? A). In any case, the Court did not grant an extension of time to file 2nd ? 6th respondents counter affidavit out of time. I have perused the record of proceedings on pages 109 ? 110 of the record of appeal. The Court below simply invoked the provisions of Order IX Rule 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009 to treat non- compliance with the rules which prescribed the period for filing a counter affidavit and address as

an irregularity. The motion for extension of time was not moved. It was abandoned. The provisions of Order XV Rule 4 which provides that in any situation not covered by the rules, the civil procedure rules of the Court for the time being in force shall apply is not applicable to this case because the rules prescribed the period for filing a counter affidavit and address and Order IX Rule 1 states the effect of non-compliance with the rules. For these reasons. Issue 1 is resolved against the appellant.

On issue 2, counsel submitted that all the parties agreed that the issue of the custody of the children of the marriage between the appellant and 1st respondent was pending before the High Court of Enugu State in suit no. HAGB/25D/2012 and while the matter was yet to be heard, the 1st respondent mischievously created a petition to the 5th respondent. He submitted that DSS has a duty to scrutinize all complaints received by it and should have advise the 1st respondent to seek appropriate lawful means to resolve the dispute between her and the appellant over the custody of the children being a civil matter which DSS is not

constituted to handle. Counsel further submitted that the Court below misconceived the distinction between the power to arrest and the power to investigate commission of a crime. He referred to EFCC V. DIAMOND BANK PLC & ORS. (2018) 8 NWLR (PT. 1620) 61 AT 65 (2). JOGINDER KUMAR V. STATE OF UTTAR PRADESH & ORS. AIR 1994 SC 1349, (1994) (4) SC 260 AT 267 (20). He submitted that the 2nd ? 5th respondents must not exercise their power of arrest capriciously or in a routine manner or on a mere allegation of commission of an offence without an investigation as to the genuineness of the complaint. He referred to AYO OLUGBISI & ORS. v. C. O. P. (1970) ANLR 338 AT 342. He referred to the facts in the affidavits before the Court. He submitted that it was erroneous for the Court below to hold that the complaint against the appellant was about commission of a crime and not a matrimonial cause.

He referred to EBENEZER V. STATE (2014) LPELR ? 23791 (CA). He further submitted that the 2nd ? 5th respondents? power must be exercised within the law and in a manner that

will not constitute abuse of the law and or intervention in a civil case pending before a Court of law. He finally submitted that the Court below did not properly evaluate the evidence before it and wrongly dismissed the appellant?s application when it was obvious that the arrest of the appellant was without reasonable suspicion of his having committed an offence, an abuse of the process of the law and interference in a matrimonial matter pending at the High Court.

In response, the 1st respondent?s counsel referred to paragraph 7(i) of the 1st respondent?s counter affidavit sworn to on 17/7/2017 and exhibit A on page 64 of the record of appeal. He submitted that the petition written against the appellant prompted the investigation of the crime alleged therein. Therefore the Court below was right when it held that there was a legal foundation for the arrest and detention of the applicant on the alleged attempt to kidnap the complainant?s children. He further submitted that it is the constitutional duty of the 2nd ? 6th respondents to investigate allegation of crime. He referred to A.G. ANAMBRA STATE V. U. B. A. (2005) 15 NWLR

(PT. 147) 44. AGBAKOBA V. DSS (1999 ? 2000) 1 ALL NLR ? 110. DODO V. EFCC & ORS. (2013) 1 NWLR (PT. 1336) 468 AT 510 (20).

RESOLUTION:
As rightly stated by the Court below, the law is settled that when a person claims that he has been unlawfully arrested and detained and the fact of arrest and detention is admitted, the burden is on the person who effected the arrest and detention to prove the legality of the arrest and detention. In the instant case, the 2nd ? 5th respondents admitted the fact that the appellant was arrested. The burden is therefore on the 2nd ? 5th respondents to prove that the appellant?s arrest was lawful. The 2nd ? 5th respondent?s contention that the arrest of the appellant is unlawful is based on the petition written by the 1st respondent. I find it necessary to state the content of that petition. It reads:
Dear Sir,
RE-PETITON AGAINST THREAT TO MY LIFE AND ATTEMPT TO KIDNAP CUM WHISK AWAY MY CHILDREN; CHIAMANDA ANOLIEFO IN HAGB/25D/2012
I am Nneka Ibe Anoliefo, a journalist working with the News and Current Affairs

Department, ABS and also covering the activities of the police on crimes and other related matters.
I wish to notify your good office of threat to my life and attempt to kidnap and whisk away my children to unknown destination by my ex-husband Mr. Ibe Anoliefo, Mr. Okechukwu Anoliefo and Nneoma Anoliefo his brothers? wife contrary to the ruling of an Enugu High Court sitting in Agbani, giving me such ruling right.
I had earlier in 2012 written the Ministry of Women Affairs and Social Development, Anambra State, Coordinator Volunteers against kidnapping and Human Trafficking, Agbani Judicial division and Human Right Commission, Anambra State Branch Office Awka and their move was forestalled.
Four years later, the said Mr. Ibe Anoliefo Phone No. 08035432802, Okechukwu and Nneoma Anoliefo have resumed their nefarious act by repeating the above mentioned threats again, this time, I have noticed two strange young men using Okada to trail and monitor me when am going to the office and when am coming back home they usually drive past me.
Mr. Ibe is cunning by ascertaining the children?s way about and aboard(sic) at the church where we

are worshipping.
My children had also noticed the same movements at the school and constantly at the church where we worship and my children no longer attend church activities as well as the confirmation class, in fact they don?t move freely any longer, my life and that of my children are now in danger.
I humbly plead that you use your good office to address the ugly situation bearing in mind the security implication it poses in my residential home, school premises of my children and the church where we worship.
Looking forward for your intervention in addressing the ugly trend while the Court gives it final ruling.
Thanks.
Yours faithfully,
Nneka Ibe Anoliefo

I also find it necessary to reproduce paragraphs 3 ? 10, 13, 16, 19, 20, 22 and 24 of the 2nd ? 5th respondents? counter affidavit. Those paragraphs read:
3. ?That the fact herein depose are what I have personal knowledge of and what the and(sic) team leader of the unit that arrested the Applicant told me in our office and I verily believe their information to be true and correct.

4. That I have gone through content of the applicant?s Motion on Notice together with our counsel and states as follows in reaction.
5. that paragraph 1 of the affidavit in support of the application is hereby admitted.
6. That paragraph 2 of the affidavit is a fact within the personal knowledge of the applicant.
7. That paragraphs 3, 4, 5 and 6 are admitted only to the extent that the applicant was arrested on the 26th day of September, 2017 by our personel and the rest of the averments in the paragraphs are hereby denied. In reaction to the above mentioned paragraphs of the affidavit, I state as follows:
8. That our personel arrested the applicant because he refused to honour an earlier invitation extended to him when a complaint of kidnapping was lodged against him in our office by the 1st respondent.
9. Upon the arrest of the applicant, after his interrogation, the applicant was released to go the same day he was arrested. The 1st respondent?s petition to our office dated the 31st August, 2016 is hereby attached and marked as exhibit DS1
10. That paragraphs 7 and 8 of the affidavit in support of the Applicant?s application

is hereby denied. In reaction, I state that after the Applicant was arrested on 26th day of September, 2016, he was released to go after he was interrogated wherein he confessed that he committed the crime but pleaded that our office should allow him(sic) since he is making effort to reconcile with the 1st respondent who is his wife.
13. That paragraphs 10, 11, 12 and 13 are hereby denied. In reaction, I state that Applicant was released to go the same day he was arrested after he undertook not to take any step towards taking away the 1st respondent?s children pending the decision of the High Court of Enugu State. There was no further appointment with the applicant.
16. That paragraphs 15 and 16 are hereby denied. In reaction, I state that we do not invite suspect on phone and we don?t know the above-mentioned phone numbers. An officer in charge of that schedule was sent to invite him one on one.
19. That the applicant was cautioned against going after the 1st respondent and her children and the applicant undertook never to go after them.
20. That paragraph 19 is hereby denied. In reaction, I

state that our command decided not to further the case (sic) since the applicant has pleaded and made an undertaking.
22. That paragraph 22 is admitted only to the extent that the applicant was not charged to Court. In further reaction, I state that the reason for not arraigning the applicant in Court is because of his undertaking to stay off the 1st respondent and the children.
24. That the arrest of the applicant was lawful and justified in the circumstances and the applicant was not detain beyond the constitutional limits.?

On the above facts, the Court below held at pages 124 ? 125 of the record) that:
?On the above I find as a fact that the complaint lodged against the applicant was the commission of crime and not a matrimonial cause. In the case of EBENEZER VS. STATE (2014) LPELR ? 23791 (CA), the Court of Appeal considering the provisions of Section 2(3) of the National Security Agencies Act and instrument No. SSS1 of 23/5/1990 held that the laws establishing the SSS have clothed them with powers to investigate a report of kidnapping and threat to human life.

On the above I hold that there was a legal foundation for the arrest and detention of the applicant.?

The law is trite that it is the primary duty of the trial Court to evaluate and ascribe probative value to the evidence led. Where the Court fails to properly perform its duty, the appellate Court has a duty to intervene and evaluate the evidence especially when the evaluation does not involve the credibility of witnesses or their demeanour. In the instant case, the evaluation is on the affidavit evidence before the Court. It is clear on the face of the 1st respondent?s petition that the children the appellant is being alleged of attempting to kidnap are the children of the appellant and the 1st respondent. It is clearly stated in the petition that there was a Court proceeding pending in respect of the custody of the children. Contrary to the finding of the Court below that what was reported to the 2nd respondent was a crime of kidnapping, the allegation contained in the petition is a matrimonial dispute already taken and pending before a Court of law for adjudication. The duties of the State Security

Service are clearly stated in Section 2 (3) of the National Security Agencies Act, Cap. N74, Volume 11, Laws of the Federation of Nigeria as follows:
(3) ?The State Security Service shall be charged with responsibility for-
(a) The prevention and detection within Nigeria of any crime against the internal security of Nigeria.
(b) The protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and
(c) Such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.?

The respondent alleged that the appellant?s attempt or effort to take the children away from her is contrary to the ruling of the Court. That is at worst, a disobedience of Court order. Disobedience of an order of a Court of competent jurisdiction is a quasi-criminal act for which the appellant can be tried following the procedure laid down by the law and certainly not by an arrest and detention by DSS. In any case, no Court order was exhibited. The presumption is that no such order was made by any

Court. The 2nd – 5th respondents even went to the extent of extracting an undertaking from the appellant to stay away from his own children. The action of the 2nd ? 5th respondents is a gross and reckless abuse of power. They allowed themselves to be used to settle matrimonial dispute which was already before a Court of competent jurisdiction for adjudication. The Court below seriously erred when it held that there was a legal foundation for the arrest and detention of the applicant. The action of the 2nd to 5th respondents amount to an illegal intervention in the proceedings before the Court and usurpation of the judicial power vested in the Courts Such reckless abuse and disregard for the Constitution should not be tolerated under any guise.
The 2nd ? 5th respondents stated that the appellant was arrested because he refused to answer their invitation. They stated that they do not use telephone to invite people to their office and that an officer was sent to go and invite the appellant. Even if the appellant was invited, that invitation itself constitutes an abuse of the state power because it is clean and clear on the face of

the 1st respondent?s petition that the matter between the appellant and the 1st respondent is purely a matrimonial matter in respect of which the 2nd ? 5th respondents have no power to interfere more so when the matter was already before the Court. See EFCC V. DIAMOND BANK PLC. & ORS. (2018) 8 NWLR (PT. 1620) 61 AT 80-81 (H-C).
The fact that the 2nd-5th respondents have the power to investigate a crime of kidnapping does not mean that the power can be exercised indiscriminately. The 2nd-5th respondents have a duty to scrutinize any complaint brought before them and be satisfied that there is a reasonable ground to proceed to investigation. If the 2nd ? 5th respondents had performed their duty to securitize the facts in the 1st respondent?s petition, they would have properly advised themselves and the 1st respondent to seek appropriate/lawful means to resolve the dispute between her and the appellant. In EKPU & ORS V. A.G. (FEDERATION) & ORS (1998) 1 HRLRA 391 AT 419-420 the Court held that
?The test as to what is reasonable belief that a person has committed an offence is objective. It is

not what the arresting authority considers reasonable but whether the facts within their knowledge, at the time of the arrest disclosed circumstances from which it could easily have been inferred that the person committed the offence alleged.?
Having considered the entire affidavits of the parties, I do not hesitate to hold that Court below seriously erred when it held that there was a legal foundation for the arrest and detention of the appellant. The holding is perverse. There was no legal foundation for the arrest and detention of the appellant.
Section 35(6) of the Constitution (as amended) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. See ARULOGUN V. C.O.P, LAGOS STATE & ORS. (2016) LPELR- 40190 (CA) 19-20 (E-A). SKYE BANK V. NJOKU & ORS. (2016) LPELR ? 40447 (CA). The respondents stated that the appellant was released on the same day he was arrested. The appellant insisted that he was arrested on 26/9/16 and released the next day, 27/6/16. He stated that he was forced into a 14-

seater bus by five armed men and he initially taught they were kidnappers. According to him, he was mercilessly beaten, stripped naked and made to sit on the floor. He was chained throughout the night and detained in cell. He also stated that the officers on night duty brought him out of the cell to a statement room but one of his legs was chained to a bench and he was deprived of sleep throughout the night but no statement was taken from him. He was not allowed to communicate with anybody as his phone was seized. The Court below held that the issue of whether the treatment meted to the appellant by the respondents amounted to inhuman and degrading treatment is not grounded on any reliefs sought. The Court below seriously erred in law because it is settled by the Constitution and case law that once the arrest and detention of a person is adjudged to be wrongful and unlawful, he is entitled to the remedy stipulated by the Constitution. He needs not specifically ask for it. See SKYE BANK PLC V. NJOKU & ORS. (SUPRA). NEMI V. A. G. LAGOS STATE (1996) 6 NWLR (PT. 452) 42 AT 55 (D ? E). NURSING AND MIDWIFERY COUNCIL OF NIGERIA V.

ADESINA (2016) LPELR ? 40610 (CA) AT 27 (A-E). OKORO V. C. O. P. ENUGU STATE & ANOR. (2016) LPELR ? 41025 (CA) AT 14 ? 15 (F-D). ATT.GEN. OF LAGOS STATE V. KEITA (2016) LPELR- 40163 AT 11(B-E). It is settled law that an unlawful arrest and detention no matter how short entitles the applicant to compensation. See ARULOGUN V. C. O. P. (SUPRA) AT 13 ? 14 (A ? A). IWUNUNNE V. EGBUCHULEM & ORS. (2016) LPELR- 40515 (CA) AT 37 ? 38 (D-F). I have taken into consideration the fact that the arrest and detention of the appellant was on the basis of matrimonial dispute between him and the 1st respondent, the fact that the 2nd ? 5th respondents are not employed to use the coercive powers of the state to intervene in matrimonial dispute such as custody of children, the mode and manner of effecting the arrest of the appellant and the indignity he suffered while in detention. I hereby find that this appeal is meritorious. It is hereby allowed. The judgment of the Federal High Court of Nigeria, Awka Judicial Division delivered in suit no. FHC/AWK/CS/95/2017 by Honourable Justice I. N. Oweibo on 15/12/2017 is

hereby set aside. In its stead, judgment is hereby entered in favour of the appellant as follows:
(1) It is hereby declared that the arrest and detention of the applicant on the 26th day of September, 2016 in the Custody of the Department of State Services (DSS) Awka by the 2nd to 6th respondents, their agents, servants, and privies on a spurious allegation without committing a crime at the instance of the 1st respondent is wrongful, illegal, unlawful, unconstitutional.
(2) It is hereby declared that it is not the statutory duty of the Department of State Services to investigate or meddle into Matrimonial Causes or civil matters pending in a competent Court of law or to arrest or detain the applicant based on issues smacking of no crime or act of terrorism.
(3) The respondents whether by themselves, their servants, agents, privies or person(s) however called acting for or on their behalf are hereby restrained from threatening to further arrest the applicant or infringing on the applicant?s fundamental rights in whatsoever manner in respect of any matter relating to or connected with the

matrimonial dispute between the appellant and the 1st respondent.
(4) The 2nd-6th respondents are hereby ordered to release to the appellant immediately all his documents including his Diamond Bank ATM Card relating to Account No.0050386197.
(5) The respondents are hereby ordered to tender a written apology to the appellant for the breach of his fundament rights to personal liberty, freedom of movement and human dignity.
(6) N500,000.00(Five Hundred Thousand Naira) is awarded as damages against the 1st respondent for violating the appellant?s fundamental rights to personal liberty, freedom of movement and human dignity.
(7) N2,000,000.00(Two Million Naira) is awarded as damages against the 2nd, 3rd, 4th, 5th and 6th respondents jointly and severally for violation of the appellant?s right to personal liberty, freedom of movement and human dignity.

There shall be N50,000.00 costs against the first respondent and N100,000.00 costs against the 2nd ? 6th respondents in favour of the appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the Judgment of my learned

brother MISITURA OMODERE BOLAJI YUSUFF, JCA before now and he has characteristically dealt with the Issues raised in the Appeal with utmost clarity and resolved them in accordance with decided authorities of the Supreme Court and indeed this Court. I agree therefore with his reasoning and conclusion that the Appeal is meritorious and hereby succeeds. The Judgment of the Federal High Court of Nigeria, Awka Judicial Division delivered in Suit No. FHC/AWK/CS/95/2017 by Honourable Justice I.N. Oweibo on 15/12/2017 is hereby set aside.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I agree with the reasoning and conclusion contained therein.

For the detailed reasons adumbrated in the lead judgment, I too, therefore, find merit in this appeal and I accordingly allow it. The judgment of the Court below is hereby set aside. I abide myself by reliefs together with the consequential orders entered in favour of the Appellant.

Appearances:

B.C. Ezeunegbu with him, V.C. Ebuoh and B.C. EkweagaFor Appellant(s)

K.C. Nnawihe holding the brief of Ugwu-EzehFor Respondent(s)

Appearances

B.C. Ezeunegbu with him, V.C. Ebuoh and B.C. EkweagaFor Appellant

AND

K.C. Nnawihe holding the brief of Ugwu-EzehFor Respondent