ALHAJI ABDULLAHI AL-HASHIM v. MOHAMMED MAGIRA TOM & ORS
(2019)LCN/13051(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of April, 2019
CA/J/21/2018
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ALHAJI ABDULLAHI AL-HASHIM Appellant(s)
AND
1. MOHAMMED MAGIRA TOM
2. INSPECTOR GENERAL OF POLICE, NIGERIA POLICE FORCE HEADQUARTERS ABUJA (FCT)
3. COMMISSIONER OF POLICE, BORNO STATE COMMAND, MAIDUGURI
4. THE DIRECTOR GENERAL DEPARTMENT OF STATE SECURITY SERVICES (SSS) HEADQUARTERS, ABUJA (FCT)
5. THE DIRECTOR DEPARTMENT OF STATE SECURITY SERVICES (DSS) BORNO STATE COMMAND, MAIDUGURI
6. ASSISTANT COMMISSIONER OF POLICE IN-CHARGE OF CID, MAIDUGURI
7. OFFICER IN CHARGE OF FEDERAL SPECIAL ANTI-ROBBERY SQUAD (F-SARS) DIVISION, MAIDUGURI Respondent(s)
RATIO
DEFINITION OF AN ACADEMIC SUIT
A suit is academic where it is merely theoretical, makes empty sound, of no practical utilitarian value to the Plaintiff even if judgment is given in his favour and it is not related to practical situation of human nature and humanity see Salik Vs Idris(2014) 15 NWLR (Pt. 1429) 36 at 60-61 para G-C; Plateau State Vs A.G Fed. (2006) 3 NWLR (Pt.967) 346; Agbaje Vs INEC (2016) 4 NWLR (Pt. 150) 151 at 157 and Dahiru Vs APC (2017) 14 NWLR (Pt. 1555) 218 at 228. PER HASSAN, J.CA.
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
In order to determine whether reliefs before the Court are recognizable under fundamental Rights (Enforcement Procedure) Rules is to examine the reliefs sought by the Applicant, it is largely a question of facts as disclosed by the affidavit evidence that is usually examined, analysed and evaluated to see if the fundamental rights have been breached as claimed or otherwise dealt with in a manner that is contrary to the constitutional and other provision of the fundamental rights of individual. The law remains that he who asserts must prove. So the onus is on the Applicant to prove by credible affidavit evidence that his fundamental rights were breached. See Onah vs Okenwa (2010) 7 NWLR (Pt. 1194) 512 at 535-536. PER HASSAN, J.CA.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Federal High Court, Maiduguri delivered on the 10th day of July, 2017 in Suit No. FHC/MG/CS/10/15 by Honourable Justice M. T. Salihu.
The 1st Respondent as Applicant at the lower Court, by Originating Motion on Notice brought pursuant to Order II, Rule 2 of the Fundamental Human Right (Enforcement procedure) Rules, 2009 and Chapter Four of the 1999 Constitution (as amended) prayed the Honourable Court for the following reliefs against the Appellant and the Respondents:
1) A declaration that the arrest and detention of the Applicant by 7th Respondent at the instance of 1st Respondent and subsequently release of the Applicant upon producing a reliable surety without any justifiable reason or cause of action is illegal, unconstitutional and violation of the Applicant?s fundamental rights.
2) A declaration that the 5th and 7th Respondents cannot unreasonably without any reasonable suspicion or cause of action, arrest, harass, intimidate or molest the Applicant.
?3) A declaration that the continued harassment,
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intimidation and molestation of the Applicant by the 3rd, 4th, 5th, 6th and 7th Respondents at the instance of the 1st Respondent without any reasonable suspicion or cause of action is illegal, unconstitutional and violation of the Applicant?s fundamental human rights.
4) A declaration that the act of the 1st Respondent by giving the 3rd, 4th, 5th, 6th and 7th Respondents false information against the Applicant by setting machinery on motion against the Applicant is illegal, unconstitutional and violation of his human rights.
5) An order of this Honourable Court ordering the Respondents jointly and severally to tender an unreserved written apology to the Applicant in any of the national dailies.
6) An order of interlocutory injunction restraining the Respondents, their agents, officers or whosoever is claiming through them from further arrest, invitation, detention and or intimidation of the Applicant pending the hearing and determination of this application.
7) An order of perpetual injunction restraining the Respondents, their agents, officers or whosoever is claiming through them from further harassing, intimidating or inviting the
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Applicant pertaining this false allegations except for the purpose of arraigning the Applicant before a Court of law to determine the guilt or otherwise of the Applicant.
8) A declaration that the purported allegations of threat to life and criminal intimidation made against the Applicant is false, baseless and unfounded, same having not established by the 1st Respondent.
9) The sum of One Billion Naira (N1,000,000,000.00) only being general damages suffered by the Applicant against the Respondents jointly and severally.
10) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
The application is supported by 31 paragraph affidavit deposed to by the Applicant with an annexure Exhibit ?A?, Civil summons of Upper Area Court II Maiduguri. The application is also supported by statement of facts, reliefs sought and grounds upon which the reliefs are sought and verifying affidavit. The Originating Motion is also accompanied by a written address.
?Upon being served with the Originating Motion, the 1st Respondent (Appellant) filed a Counter Affidavit on the 8th of May, 2017. The
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2nd, 3rd, 6th and 7th Respondents filed their Counter Affidavit on the 8th of May, 2017, while 4th and 5th Respondents? Counter Affidavit was filed on the 17th of May, 2017. The Applicant, having been served with the Counter Affidavit of the 1st, 2nd, 3rd, 6th and 7th Respondents? Counter Affidavit, he filed a Further Affidavit dated 23rd October, 2017.
The learned trial judge after hearing the parties in the matter entered judgment in favour of the Applicant (1st Respondent) herein and awarded damages of N500,000.00 against the Appellant only. Dissatisfied with the judgment, the Appellant appealed to this Court. The notice of Appeal dated 24th July, 2017 contained three grounds of appeal with their particulars and reliefs sought.
The Appellant?s brief dated 4th day of June, 2018 was filed on the 5th of June, 2018 and deemed properly filed on the 15th of October, 2018. The Appellant?s reply brief to all the Respondents was dated and filed on the 21st of December, 2018.
In the Appellant?s brief three issues were identified for determination.
(a) ?Whether the trial Court was right when it held that the law
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enforcement agents have no right to invite for the purpose of investigating a complaint brought before it on an allegation of crime.?
(b) Whether the trial Court was right when it held that action of the Appellant of filing a complaint before the 2nd 3rd, 4th 5th, and 6th Respondents against the 1st Respondent is illegal, wrong and unconstitutional.?
(c) ?Whether the trial Court was right when it failed to call for oral evidence to resolve the conflict in the affidavits in support.?
Learned Counsel for the Appellant adopted the briefs and urged the Court to allow the appeal.
The 1st Respondent?s brief dated the 14th of November, 2018 was filed on the 15th of November, 2018 with a sole issue distilled for determination.
1. ?Whether or not from the totality of the evidence adduced by the 1st Respondent, he is entitled to the reliefs sought.?
The 1st Respondent?s Counsel was absent on the hearing date despite hearing notice served on him. The brief was deemed argued pursuant to Order 19 Rule 9(4) of Court of Appeal Rules, 2016.
?The brief of the 2nd, 3rd, 6th and 7th Respondents was
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dated 22nd of October, 2018 and filed on 23rd October, 2018. Three issues were formulated therein for determination as follows:
1. ?Whether or not the lower Court was right when it held that the law enforcement agents lack the power to invite the 1st Respondent in this appeal for the purpose of investigating a complaint brought before it on the allegations of crime.?
2. ?Whether the trial Court was right when it held that the action of the Appellant of filing a Complaint before the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents against the 1st Respondent in this appeal is illegal, wrong and unconstitutional.?
3. ?Whether there was conflict between the Appellant?s affidavit and Affidavit of the 1st Respondent in this appeal as contained in the record of the lower Court from pages 16-20 and 37-42 that can warrant the Court call for oral evidence to resolve same.?
Their brief was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016 due to the absence of Counsel who was duly served with Hearing Notice.
?The 4th and 5th Respondents brief dated and filed on the 15th of
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November, 2018 has a sole issue suggested for determination of this appeal.
?Whether considering the totality of the affidavit evidence placed by all the parties, the lower Court was right to have struck out the names of the 4th and 5th Respondents from the Applicant?s application as parties wrongly sued.? (Ground 3).
?I adopt the sole issue identified by the 1st Respondent as it covered the issues identified by the Appellant, the 2nd 3rd, 6th, and 7th Respondents.
Before I resolve the issue in this appeal, I have to comment on brief filed by the 4th and 5th Respondents and issue two of the Appellant where reference was made to 4th and 5th Respondents. The record of the Court shows that the names of the 4th and 5th Respondents have been struck out on their application, by the lower Court.
The trial Court in its judgment at page 162 of the record stated;
?Learned Counsel for the 4th and 5th Respondents submitted that being law enforcement agency with a mandate of ensuring public peace and maintenance of law and order, it cannot entertain individual(s) cases since the office of the 4th and 5th Respondents is not
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a state office, as the primary service responsibility of the 4th and 5th Respondents is to maintain internal security of Nigeria by the law creating the Agency. It then prayed for the striking out the names of the 4th and 5th Respondents especially that the substantive suit does not relate to the mandate of the Agency of the 4th and 5th Respondents.?
The implication of the foregoing by his Lordship is very clear and simple and need no further interpretation. In other words by striking out of the names of the 4th and 5th Respondents there cannot be re-opening of the case against them in this appeal where the Appellant remains a party. Moreso when the Appellant has not appealed against the judgment of the lower Court striking out the names of the 4th and 5th Respondents as Respondents in the case.
?I will however state and emphasize that the act sought to complain of, against the 4th and 5th Respondents has become academic with no real relevance or effect. A suit is academic where it is merely theoretical, makes empty sound, of no practical utilitarian value to the Plaintiff even if judgment is given in his favour and it is not related to
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practical situation of human nature and humanity see Salik Vs Idris(2014) 15 NWLR (Pt. 1429) 36 at 60-61 para G-C; Plateau State Vs A.G Fed. (2006) 3 NWLR (Pt.967) 346; Agbaje Vs INEC (2016) 4 NWLR (Pt. 150) 151 at 157 and Dahiru Vs APC (2017) 14 NWLR (Pt. 1555) 218 at 228.
?An appeal at the Court of Appeal is a continuation of the initial suit instituted at the lower Court. It is within reason that this Court cannot enter into the merits of this appeal against the 4th and 5th Respondents when the lower Court has conclusively determined by striking out their names as Respondents in the suit. It follows therefore while the judgment of the lower Court is still extant, valid and not set aside, the Appellant cannot validly maintain his appeal against the 4th and 5th Respondents. The submission of Appellant?s Counsel in relation to the 4th and 5th Respondents are discountenanced and struck out. Also the brief filed by the 4th and 5th Respondents on 15th November, 2018 is struck out.
?The appeal will now be resolved on the Appellant?s brief and the briefs of the 1st Respondent and 2nd, 3rd, 6th and 7th Respondents. As earlier indicated, I adopt
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the sole issue identified by the 1st Respondent.
ISSUE ONE
?Whether or not from the totality of the affidavit evidence adduced by the 1st Respondent, he is entitled to the reliefs sought.?
Arguing, learned Counsel for the Appellant submitted that whenever a complaint is brought before any law enforcement agency, it has a constitutional right to invite any person and make investigation against such person for an alleged complaint made against him. That anybody invited for that purpose would not be said to have been deprived of his fundamental right. The Court was referred to Section 35(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the case of Udo Vs Essien (2014) ALL FWLR (Pt. 1745) 1184 at 1186 Ratio I.
Relying on Udo Vs Essien (supra), it is submitted that the law is settled that it is a primary duty of every citizen in this Country to report to the relevant security agency any suspected criminal act taking place or likely to take place in the society. It is also submitted that it is not an offence to complain to the law enforcement agency as in the instant case where group of thugs were
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seen, armed with cutlasses and sticks with the insecurity in Nigeria and Maiduguri in particular. That a citizen has a duty to report any suspicious act, including any threat or fear of threat on him or to the community.
It is finally submitted that, where there is a conflict in the affidavit evidence of the parties, the Court should call oral evidence to settle the conflict. Referring to paragraphs 11 and 15 of the 1st Respondent?s affidavit in support, he deposed that the allegation written against him was false without evidence adduced to that effect. That the Appellant in his counter affidavit denied all the depositions of the 1st Respondent and gave the true picture of all that which requires oral evidence in order to resolve such conflict. Counsel referred to PDP Vs Abubakar (2007) 41 WRN 61 at 68-69 Ratio I.
?We are urged to resolve in favour of the Appellant and allow the Appeal.
For his part the 1st Respondent argued that the lower Court eulogized and echoed the powers of the 2nd, 3rd, 6th and 7th Respondents in its judgment at page 170 lines 4-8 of the Record. It is submitted that the Appellant has failed to appreciate the fact
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that you cannot place something on nothing and expect it to stand. That where there is no crime, the 2nd, 3rd, 6th and 7th Respondents cannot act on a vacuum and it is the responsibility of the Appellant to establish the crime committed by tangible and reliable evidence. That the main genesis of this case is the Appellant?s insistence to purchase a house adjacent to his residence after same house was purchased by the 1st Respondent. Counsel referred to the judgment of the trial judge at page 116 of the record and urged us to discountenance the submission of the Appellant.
It is finally submitted that mere assertion and denial does not amount to conflict per se for the Court to call for oral evidence. Relying on the case of Ogunsakin Vs Ajidara (2010) All FWLR (Pt. 507) 109, it is submitted that for the Court to call for oral evidence, such conflict must go to the root of the matter. That the two petitions written by the Appellant against the 1st Respondent are contradictory of one another. The Court was referred to pages 72-76 of the record and Exhibits ?A1 and A2?. Learned Counsel contended that the Exhibits ?A1 and A2?
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suggested that the complaint of the Appellant was orchestrated to deprive the 1st Respondent the exercise of his fundamental right of movement and to own a property of his choice as a citizen of Nigeria.
Submitting further, learned Counsel for the 1st Respondent argued that enforcement of fundamental rights under the 1999 Constitution as provided in Chapter IV is that a citizen who feels that any of his rights is enshrined under Chapter IV would approach the Court to enforce such right. That from the affidavit evidence of the 1st Respondent there was a move by the Appellant to forcefully use instrumentality of the 2nd, 3rd, 6th and 7th Respondents to forcefully deny the 1st Respondent his right to own a property whereby he framed up the 1st Respondent with false allegation of criminal intimidation and threat to life.
Relying on the case of Igwe Vs Eze Anochie (2016) NWLR (Pt. 1192) 61, it is submitted that it is where the affidavit evidence discloses the facts alleged, that the reliefs sought would be granted. Also referred is the case of A.G. Anambra State Vs. A.G. Fed. (2005) 9 NWLR (Pt. 931) 572. We are urged to dismiss the appeal and affirm the
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judgment of the trial Court.
Responding, learned Counsel for the 2nd, 3rd, 6th and 7th Respondents submitted that their invitation of the 1st Respondent was based on the alleged criminal complaint made against him and in the cause of investigation the criminal complaint was found to be baseless and frivolous. That based on the Appellant?s criminal complaint, the 6th and 7th Respondents visited the scene but could not recover any exhibit nor arrest anybody. This forms the basis of the 1st Respondent filing a suit for the enforcement of his fundamental right at the lower Court.
?Referring to paragraph 39 of the Appellant?s Affidavit, and the Appellant?s witness statement at pp. 56-61 of the record, Counsel contended that the Appellant did not disclose therein any criminal intimidation and threat to life as alleged in the letter written to the 3rd Respondent. That on 1st April, 2017 the Appellant through his Counsel wrote a letter of complaint to the 6th Respondent as contained in page 66 paragraphs A-B and page 72 of the record that the 1st Respondent was tempering with the subject matter while the case was before the Sharia Court 2,
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Maiduguri. That on 21st April the Appellant through his Counsel wrote a letter of complaint to the 3rd Respondent on the allegation that the 1st Respondent criminally intimidated and threatened his life over the same house, the basis of this case as reflected at page 66 paragraphs 5-6 and page 73 of the record which letter of complaint was referred by the 3rd Respondent to the 7th Respondent for investigation. That the 7th Respondent on investigation did not find any criminal intimidation or threat to life made against the Appellant. That the complaint of the Appellant has no substance as it did not disclose the crime alleged.
Counsel contended that from pages 16-20 and 37-42 the affidavits did not conflict each other to warrant the call for oral evidence to resolve same. That the content of paragraph 10 at page 67 of the record shows the bond of contention is not the facts in issue before the trial Court but the case before the Upper Sharia Court 2 Maiduguri, yet to be determined, in which case the lower Court cannot call for oral evidence.
We are urged to dismiss the appeal.
?The essence of a reply brief is to give response to new issues raised in the
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Respondents? brief but not an avenue for the Appellant to re-argue his case. The Appellant?s reply brief to the Respondents? briefs is discountenanced.
In order to determine whether reliefs before the Court are recognizable under fundamental Rights (Enforcement Procedure) Rules is to examine the reliefs sought by the Applicant, it is largely a question of facts as disclosed by the affidavit evidence that is usually examined, analysed and evaluated to see if the fundamental rights have been breached as claimed or otherwise dealt with in a manner that is contrary to the constitutional and other provision of the fundamental rights of individual. The law remains that he who asserts must prove. So the onus is on the Applicant to prove by credible affidavit evidence that his fundamental rights were breached. See Onah vs Okenwa (2010) 7 NWLR (Pt. 1194) 512 at 535-536.
?The dispute between the Appellant and the 1st Respondent borders on the purchased of a house by the 1st Respondent which house is adjacent to the Appellant?s house. Under the power of pre-emption (shufa) in Islamic law, the Appellant filed a suit at the Sharia Court that
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he is the rightful purchaser as against the 1st Respondent in this appeal. The 1st Respondent engaged the services of labourers to work on the purchased house by fixing a gate when the Appellant, on the 1st of April, 2017 reported to the 6th Respondent that the 1st Respondent is tempering with the house when the subject matter is already before the Court. The 6th Respondent advised the parties to maintain status quo.
The Appellant on the other hand said the 1st Respondent upon being served with the summon from Sharia Court he became aggrieved and brought thugs to the said house adjacent to the Appellant?s house and the Appellant made a complaint to the 3rd Respondent for maintenance of peace and order. That the thugs were armed with cutlasses and sticks.
?The 1st Respondent also alleged that the Appellant was aggrieved with the purchase of the house that is why he instituted an action at the Upper Sharia Court II Maiduguri. That while the suit was pending the Appellant wrote a petition against the 1st Respondent to the 3rd and 6th Respondents that the 1st Respondent is threatening his life. Upon the petition of the Appellant, the 1st Respondent
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claimed to have been invited, detained, harassed by the Police, hence the application for enforcement of his fundamental right before the lower Court.
A calm view of the reliefs sought and the facts relied upon by the 1st Respondent shows that the claim of the 1st Respondent is predicated upon the breach of his fundamental right, most especially paragraphs 12, 13, 14, 15, 16 and 17 of the affidavit in support and 2(f), (g) of his further affidavit.
The 1st Respondent as Applicant at the lower Court deposed in the above paragraphs of the affidavit in support as follows:
Paragraph 12- ?That surprisingly, on the 24th day of April, 2017 a team of police officers from the office of the 7th Respondent went to my house while I was away and drop a note that I should report to the office of the 7th Respondent unfailingly.?
Paragraph 13 – ?That on the 25th of April, 2017, I reported to the office of the 7th Respondent then I was confronted with an allegation that I have criminally intimated the 1st Respondent (Appellant herein) and threatened to kill him.?
Paragraph 14 – ?That I was interrogated, harassed,
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intimidated and detained and later released on the production of a reliable and reasonable surety.?
Paragraph 15 – ?That the purported allegations against me are false, baseless, unfounded, vexations and malicious.?
Paragraph 16 – ?The 1st Respondent was not happy with me simply because I purchased a house beside him and he is making all allegations to force me to surrender the house to him.?
Paragraph 17 – ?That as a result of the complaint before the 6th and 7th Respondents, I was made to shuttle in between the two offices every day without any reasonable or tangible evidence against me.?
Paragraph 2(f) of the further affidavit reads:
?That contrary to paragraph 3(1) of the Counter Affidavit of 1st Respondent, Appellant (herein), I was invited by the 7th Respondent, interrogated and detained, later I was released upon production of a reliable surety by name Musa Abubakar.?
Paragraph 2(g) ?That further to paragraph (f) above, I was subjected to all sorts of maltreatment, intimidation, molestation and harassment.?
?The 1st Respondent (Appellant herein) in his
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counter affidavit deposed in paragraphs 3(f), (g), (h), (l), (n), (q) as follows:
Paragraph 3(f) ?That the Applicant when served with the summons he went and mobilized thugs and placed them in front of the 1st Respondent?s house armed with axes and cutlasses to deal with anybody that might attempt to stop the labourers from fixing the gate to the House in dispute.?
3(g) ?That consequent to the above, the 1st Respondent immediately instructed his Counsel in the person of Y. Ishaq Esq. to lodge a complaint to the 3rd Respondent to intervene with a view to prevent any public disturbance in the area.?
3(h) ?That consequent to the report to the 3rd Respondent, a team of Police men were sent to the scene and on seeing the Police coming the thugs ran away and left their two cutlasses which the team leader intercepted and took to C.I.D. office Maiduguri.?
3(l) ?That in response to paragraphs 7, 8, 9, 10, 11 and 12 of the affidavit the Applicant was never arrested or detained by the Respondents.?
3(n) ?That the Applicant visited the 3rd, 6th and 7th Respondents on a simple invitation
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without being arrested, harassed or molested.?
3(q) ?That in response to paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of the affidavit the 1st Respondent states that the 1st Respondent had produced 3 witnesses who made statement to the Police in respect of the commission of the crime against the 1st Respondent by the Applicant, attached herewith and marked as Exhibit AB1, AB2 and AB3 dated 26/4/2017 respectively.?
The 2nd, 3rd, 6th and 7th Respondents deposed in their Counter Affidavit in paragraphs 4(a)(b)(c)(d) and (e), 5, 6, 7, 8, 9, 11 thus:
Paragraph 4 ? ?That contrary to the entire applicant?s deposition in his supporting affidavit, especially paragraphs 2-31, does not represent the true facts in this matter and the truth is as follows:
(a) ?On 1st April, 2017, the 1st Respondent through his Counsel wrote a complain letter to the 6th Respondent against the Applicant.?
(b) That the Applicant is interfering with the subject matter pending before the Upper Sharia Court No. 2.
(c) ?That there is breach of peace likely to occur if the Appellant is not stopped from
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destroying the subject matter, copy of the complaint letter is Exhibit ?A1?
(d) ?That sequel to his complaint 6th Respondent intervened between the parties and asked both to maintain peace and order for status quo pending when the Court will give its injunction order.?
(e) ?Apart from this the 6th Respondent did not arrest, harass, detain or infringe any of the Applicant?s fundamental rights as enshrined under chapter IV of the 1999 Constitution.? (as amended)
Paragraph 5 ? ?That on 21st April, 2017 the 1st Respondent through his Counsel wrote a complaint letter against the Applicant to the 3rd Respondent.?
Paragraph 6 ? ?That the Applicant criminally intimidated and threatened his life. The letter of complaint is Exhibit A2?
Paragraph 7 – ?That the 3rd Respondent referred the letter to the 7th Respondent for investigation.
Paragraph 8 ? ?And base on this complaint letter, the 7th Respondent swung into action for investigation.?
?Paragraph 9 ? ?The 7th Respondent invited the Appellant to its FSARS office for
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questioning and without much delay he asked the Applicant to go on self-recognisance bail pending the determination of the case.
Paragraph 11 – ?That during the course of its investigation, the 7th Respondent did not detain, harass or breach any of the Applicant?s fundamental rights as enshrined in Chapter IV of the 1999 Constitution? (as amended)
It is noted that in the further affidavit of the Applicant at the lower Court, he only made a general denial on the allegations against him. In paragraph 16 of the affidavit in support of the application the 1st Respondent/Applicant, his averment therein was that the Appellant was not happy with him simply because he purchased a house from the heirs of late Alhaji Yusuf Muhammed, which house is adjacent to the house of the Appellant. The Appellant in paragraph 3(d) of his Counter Affidavit as 1st Respondent before the lower Court also deposed to the fact that the house purchased by the 1st Respondent/Applicant was sold to him by the heirs of late Alhaji Yusuf Mohammed when the 1st Respondent/Applicant interrupted the transaction and purportedly purchased the house.
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When the depositions of both parties are read together, it is clear that the dispute between them border on purchase of property of late Alhaji Yusuf Mohammed from the heirs and which the Appellant instituted an action at Upper Sharia Court II, Maiduguri, on the claim of being entitled to right of pre-emption, the house being adjacent to his house. The suit was pending at the Sharia Court when the parties engaged in making allegations against one another which resulted into the application for enforcement of fundamental right by the 1st Respondent at the lower Court. The question that comes to my mind in this case is whether or not the 1st Respondent?s action is for enforcement of his fundamental rights under the Constitution of the Federal Republic of Nigeria 1999 (as amended).
?The heading of the Originating Motion on Notice and the reliefs at pp. 12-14 of the record of appeal, clearly claim that the action is for enforcement of the 1st Respondent?s fundamental rights because the Appellant and 2nd, 3rd, 6th and 7th Respondents have breached his fundamental rights. In an Originating Motion on Notice, the affidavit in support of the motion should be
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considered together with the relief indicated in the motion which is akin to Statement of Claim filed with a Writ of Summons. However in the reliefs sought by the 1st Respondent/Applicant at the lower Court there is no where it is indicated that the application was founded on the right to acquire property guaranteed under Section 44 of the 1999 Constitution (as amended), as held by the trial Court at page 168 of the record. The reliefs sought were in respect of the arrest, detention, harassment, intimidation and maltreatment by the 2nd, 3rd, 6th and 7th Respondents alleged to be on the instigation of the Appellant which the lower Court at page 168 of the record in its judgment held thus:
?I am unable to find in the affidavit evidence of the Applicant in support of his application, verifying affidavit or his further affidavit such sufficient materials showing any harassment or inhuman degradation meted on him.?
This finding of the lower Court is supported by the deposition of the 2nd, 3rd, 6th and 7th Respondents in paragraphs 9 and 11 of their counter affidavit reproduced above.
?Section 44(1) of the Constitution of Nigeria 1999 (as
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amended) provides:
?No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by law?
There is nowhere in the affidavit of the 1st Respondent/Applicant at the lower Court where he deposed to the fact that the Appellant wants to compulsorily take possession of the property he purchased from the heirs of late Alhaji Yusuf Mohammed. All the 1st Respondent/Applicant said in paragraph 16 of his affidavit in support is that the Appellant was not happy with him because he purchased a house beside the house of the Appellant and that the Appellant is making allegations to him so as to surrender the house to him.
?It is my view that this is not a breach of the 1st Respondent/Applicant?s right to own the house. The mere allegation of crime and institution of the action before the Sharia Court cannot be said to amount to a breach of the 1st Respondent?s right to own the house. Moreso when the 1st Respondent in paragraph 2(d) of his
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Further Affidavit before the lower Court deposed to the fact that the 3rd, 6th and 7th Respondents found the allegation made against him by the Appellant to be baseless.
Police officers are empowered to investigate any criminal allegation or complaint made. They may arrest, detain and even prosecute by virtue of Section 4 of the Police Act. In the legitimate discharge of their duties they cannot be sued in Court for breach of fundamental rights. Such breach does not cover cases where a Respondent has made a legitimate complaint to the Police or cases where the Police investigate and act on complaints made to them. See Okanu Vs COP, Imo State (2001) 1 cases on Human Rights page 407 and Atakpa Vs Ebetor (2015) 3 NWLR (Pt. 1447) 549 at 558, see also Section 35(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
?In the instant case, I can say that the Appellant was justified to have complained to the Police as was reasonably necessary, to defend himself and his property against the thugs alleged to have been brought by the 1st Respondent to the house he purchased which is adjacent to the house of the Appellant. Exhibits
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?AB1?, ?AB2? and AB3? reflected at pages 56-61 of the record are statements of witnesses to the Police made in respect of the thugs brought by the 1st Respondent/Applicant. The 1st Respondent in paragraph 2(b) of his Further Affidavit only made a general denial on mobilizing thugs in the area. The effect of general denial is that it is completely ineffectual as a challenge to averments of specific details made on oath. In respect of essential and material allegation, such a general denial ought not to be adopted as the 1st Respondent ought to have specifically countered also on oath. See Macaulay Vs NAL Merchant Banks Plc. (1990)4 NWLR (Pt. 144) 283; CC.B (Nig.) Ltd Plc. Ozobu (1998) 3 NWLR (Pt. 541) 290 and Emeka Vs Okoroafor (2017) 11 NWLR (Pt. 1577) 410.
By virtue of Section 46(1) of the 1999 Constitution of Nigeria (as amended) and Order I Rule 2(1) of the Fundamental Rights (Enforcement procedure) Rules, 2009, any person who alleged that any of the provisions of Chapter IV of the Constitution to which he is entitled to has been, is being or likely to be contravened in any state in relation to him may apply to the High
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Court in that state for redress.
There are provisions which entitled a person to enforce his fundamental rights where he feels his right is contravened or being or likely to be contravened. See Lekwot Vs. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410 Saude Vs Abdullahi (1989) 4 NWLR (Pt. 116) 387; Uzoukwu Vs Ezeonu II (1991) 6 NWLR (Pt. 200) 708 and Emeka Vs Okoroafor (supra).
Clearly this is not a case of breach of right to immovable property provided for by Section 44(1) of the Constitution of the Federal Republic of Nigeria (as amended) as held by the trial Court. The procedure for enforcement of fundamental rights in not the appropriate procedure here, having regard to the facts and circumstances of this case. A dispute to the right of pre-emption in the purchase of a property cannot be equated to infringement of Fundamental Rights. The 1st Respondent?s claim, in the guise of enforcement of his Fundamental Right is actually to enforce the purchase of the property in dispute. This will not be allowed and it is for this reason, the sole issue is resolved in favour of the Appellant. The appeal has merit and it is allowed. The judgment of the
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Federal High Court, Maiduguri, delivered on the 10th day of July, 2017 in suit No. FHC/MG/CS/10/15 is hereby set aside. The suit is struck out.
Parties to bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the judgment of my learned brother, Hassan J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat. I have nothing useful to add. I too allow the appeal and abide by the consequential orders contained in the lead judgment, costs inclusive.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the judgment of my learned brother T.Y. HASSAN, J.C.A. and I am in agreement that the appeal is meritorious and should be allowed.
I also abide the order as to costs.
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Appearances:
M. S. Aliyu, Esq.For Appellant(s)
K.U. Usendu, Esq. for 4th and 5th Respondents holding the brief of M.H. Modibbo, Esq.For Respondent(s)
Appearances
M. S. Aliyu, Esq.For Appellant
AND
K.U. Usendu, Esq. for 4th and 5th Respondents holding the brief of M.H. Modibbo, Esq.For Respondent
