PRINCE PHILIPS ADE-OJO & ORS v. GOKE MAKANJUOLA & ORS
(2019)LCN/13609(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of July, 2019
CA/L/499/2014
RATIO
FUNDAMENTAL RIGHTS MATTERS: HOW TO DETERMINE WHETHER A MATTER WILL COME UNDER FUNDAMENTAL RIGHTS PROCEDURE
It is abecedarian that for a claim to qualify as one for enforcement of fundamental rights, the principal relief claimed must be for the enforcement or securing the enforcement of a fundamental right. Where this is not evidently so, or where the alleged breach of fundamental right is ancillary or incidental to the substantive claim, then the action would not be cognisable under the specialised procedure for the enforcement of fundamental rights: TUKUR vs. GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549, SEA TRUCKS (NIG) LTD vs. ANIGBORO (2001) 2 NWLR (PT 696) 159, FRN vs. IFEGWU (2003) 15 NWLR (PT 842) 113 at 180, WAEC vs. ADEYANJU (supra) and ABDULHAMID vs. AKAR (2006) LPELR (24) 1 at 24. The key to whether the action is cognisable under the fundamental rights enforcement procedure will therefore be a product of whether the principal reliefs claimed are for the enforcement of fundamental rights.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FUNDAMENTAL RIGHTS: THE ESSENCE OF LIABILITY UNDER FUNDAMENTAL RIGHTS
Let me start by saying that the essence of liability in an action for the enforcement of fundamental rights is where it is proved that the said fundamental right has been breached, infringed or eviscerated.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE: BURDEN OF PROOF: HE WHO ASSERTS MUST PROVE
The law remains that he who asserts must prove, so the 1st Respondent had the onus of proving by credible affidavit evidence that his fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535 – 536. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RIGHT TO PERSONAL LIBERTY: IS NOT AN ABSOLUTE RIGHT
It has to be noted that the right to personal liberty enshrined in Section 35 of the Constitution, which the 1st Respondent sought to enforce is not an absolute right. By Section 35 (1) (c) of the Constitution, a person can be deprived of his liberty upon reasonable suspicion of his having committed an offence. Where there is such a deprivation of liberty, such a person arrested or detained shall be brought to Court within a reasonable time, within the meaning of Section 35 (5) of the Constitution, that is, one day where there is a Court of competent jurisdiction within a forty kilometre (40km) radius of the place of detention.
The Constitution is the organic law; it is to be given purposive interpretation: see NAFIU RABIU vs. KANO STATE (1981) 2 NCLR 293 at 326, PDP vs. INEC (2001) 1 WRN 1 at 32 – 33 and DIRECTOR OF SSS vs. AGBAKOBA (2003) 10 WRN 93 at 153-154.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WHEN A LAW ENFORCEMENT AGENCY IS FACED WITH A COMPLAINT, WHAT SHOULD IT DO?
It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 at 856, IWUNWAH vs. IWUNWAH (1999) LPELR (12962) 1 at 7-8 and FCMB vs. ETTE (2008) 22 WRN 1. Any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (supra) at 536 and Section 4 of the Police Act. For the Appellants to be held to have violated the 1st Respondents fundamental rights, it has to be shown that they did more than lodge a formal report with the Police. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WHETHER A PERSON WHO GIVES INFORMATION THE POLICE WITHOUT MORE, CAN BE CHARGED FOR UNLAWFUL ARREST
There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (2004) 2 NWLR (PT 858) 654. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
A PERSON WHO IS UNLAWFULLY ARRESTED AND DETAINED SHALL BE ENTITLED TO COMPENSATION
Section 35 (6) of the Constitution stipulates that any person who is unlawfully arrested and detained shall be entitled to compensation. It was on the strength of the decision of the lower Court that the Appellants infringed the fundamental rights of the 1st Respondent that it awarded damages of N200, 000.00 against them. Having held that the lower Court was wrong in so holding, the damages awarded cannot stand. The legal principle being sublato principali tollitur adjunctum (co. Litt. 389) [the principal being taken away, the adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. PRINCE PHILIPS ADE-OJO
2. MRS. ALICE ADE-OJO
3. MR. ADESUYI – Appellant(s)
AND
1. GOKE MAKANJUOLA
2. THE COMMISSIONER OF POLICE, LAGOS STATE POLICE COMMAND
3. THE AREA COMMANDER, AREA H COMMAND, OGUDU
4. MR. AJAYI (IPO) – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the application by the 1st Respondent for the enforcement of his fundamental rights before the High Court of Lagos State in SUIT NO. M/490/2012: GOKE MAKANJUOLA vs. THE COMMISSIONER OF POLICE, LAGOS STATE COMMAND & ORS. The 1st Respondent herein was the Applicant before the lower Court while the Appellants were the 4th-6th Respondents and the 2nd, 3rd and 4th Respondents herein were the 1st-3rd Respondents at the lower Court. The reliefs claimed by the 1st Respondent at the lower Court are as follows:
a. A DECLARATION that the continual arrest and detention of the applicant without trial is in contravention of the Applicants right to personal liberty.
b. A DECLARATION that the continual threat to arrest and detain the Applicant without trial until they submit to the desire of the 4th and 5th Respondent by the officers and agents of the 1st 2nd and 3rd Respondents is in contravention of the Applicants right to personal liberty as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria, 1999
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c. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st, 3rd Respondents whether by themselves, their officers, Agents and or Representatives from further arresting, detaining, harassing, intimidating or otherwise depriving in any manner whatsoever the Applicant of his personal liberty and freedom in connection with the transaction use and work in the property located at No.4 Jossy Castro Street Bariga Lagos.
d. AN INTERIM ORDER restraining the 1st – 3rd Respondents whether by themselves, their officers, Agents and or Representatives from further arresting, detaining, harassing, intimidating or otherwise depriving in any manner whatsoever the Applicant of his personal liberty and freedom in connection with the transaction, use and work in the property located at No. 4 Jossy Castro Street Bariga Lagos.
e. AN ORDER directing the Respondents jointly and or severally to pay to the Applicant the sum of Two Million Naira (N2,000,000) as damages for the continued threat of detention and or a violation of the Applicants right to freedom of movement and right to personal dignity.
The grounds upon which the reliefs were
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sought are:
1. By virtue of Section 35 of the Constitution of the Federal Republic of Nigeria 1999 every person shall be entitled to his personal liberty and no person shall be deprived of such liberty.
2. By virtue of Article 6 of African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 LFN 2004
3. The detention and continued threat of detention of the Applicant on the 4th of April, 2nd of May, without bringing the applicant employees before any Court of competent jurisdiction despite the fact that there are numerous Courts within 40km radius from the Respondents office is an indication of threat and/or likelihood of infringement by the Respondents of the Applicants rights as protected in Section 35 of the 1999 Constitution and Article 6 of the African Charter on Peoples and Human Rights (Ratification and Enforcement) Act CAP A9 LFN 2004.
4. That the 4th Respondents intention is to use the 1st to 3rd Respondents officers to sit as an appeal over the judgement in suit No.ID. 3699/96 delivered by Hon. Justice Y.O. Idowu (Mrs) on the 23rd day of September 2005.
The parties filed and
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exchanged processes at the lower Court and the application was heard on their affidavit evidence. In its judgment which was delivered on 21st March, 2014, the lower Court held that the 2nd-4th Respondents (the Police officials) exercised their discretion properly in investigating the allegations made against the 1st Respondent and therefore did not infringe the 1st Respondents fundamental right to personal liberty. It further held that it was the Appellants that infringed the 1st Respondents fundamental right to personal liberty by instigating and prompting the Police to arrest and detain the 1st Respondent. It consequently entered judgment in favour of the 1st Respondent against the Appellants only.
Piqued by the decision of the lower Court, the Appellants appealed against the same. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 5th February 2015 but deemed as properly field on 19th March 2015. The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged between the Appellants and the 1st Respondent only. The 2nd, 4th Respondents did not
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file any brief and also did not appear at the hearing. The Appellants raised a preliminary objection in their Appellants brief, but upon seeing the futility of such a process for not being in conformity with the provisions of Order 10 of the Court of Appeal Rules, 2016, the learned counsel for the Appellants urged the Court to discountenance the same. The learned counsel for the Appellants and the 1st Respondent then urged the Court to uphold their respective submissions on the merits of the appeal in the determination of the appeal.
The Appellants Brief was filed on 7th April 2015, wherein four issues were distilled for determination as follows:
(1) Whether the learned trial Judge properly evaluated the evidence before the Court in arriving at the decision that by virtue of the Judgment in Suit No ID/3699/96 the 1st Appellant has no right to invite the Police to arrest and detain the 1st Respondent and others who unlawfully encroached upon the landed property known as No.2/4 Jossy Castro Street, Bariga Lagos? (Grounds One and Four)
(2) Whether in an action under the Fundamental Rights (Enforcement Procedure) Rules, 2009 the
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lower Court has the jurisdiction to entertain issues relating to possession and ownership of landed property? (Ground Three).
(3) Whether upon the facts before the lower Court, the Appellants have the constitutional and legal duty to report cases of commission of crime upon their property to the Police? (Ground Two).
(4) Whether upon the decision of the learned trial Judge that the Police have not infringed the fundamental rights of the 1st Respondent herein by merely arresting and asking him to make a statement, the learned trial Judge was justified in awarding N200,000 (Two Hundred Thousand Naira) as damages against the Appellants? (Ground Five)
The Appellants further filed a Reply Brief on 2nd April, 2019, but deemed as properly filed on 23rd May 2019.
In the 1st Respondents brief which was filed on 11th February, 2019, two issues were formulated for determination, namely:
1. Whether the judgment of the lower Court was proper in the circumstances of the case.
2. Whether the award of damages by the lower Court was appropriate in the circumstances.
It is settled law that a Court can and is entitled
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to re-formulate the issues formulated by the parties or counsel in order to give the issues precision and clarity. The
