ASHIRU & ORS v. ISAH (2022)

ASHIRU & ORS v. ISAH

(2022)LCN/16294(CA)

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, January 21, 2022

CA/K/01/2019

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. ALH. ALI ASHIRU 2. ALH. ABUBAKAR LAWAL 3. WILSON C. ELEBO 4. ALH. NUHU YUSUF 5. ALH. SALISUU BODMAS 6. HASSAN MUHAMMAD DOGO 7. MUSA MURATALA M. 8. OBIORA ANAZODO 9. BABANGIDA KAGARA 10. DSP SUNDAY AIGBOGU DIVISIONAL POLICE OFFICER RAILWAY POLICE STATION, SABON GARI ZARIA 11. EMMANUEL E. ABIOSIO SUPERIOR POLICE OFFICER DIVISIONAL POLICE OFFICER (RAILWAY POLICE STATION) SABON GARI, ZARIA. 12. COMMISSIONER OF POLICE OF KADUNA STATE APPELANT(S)

And

ALHAJI JAMILU ISAH RESPONDENT(S)

RATIO

THE MEANING OF THE TERM “FUNDAMENTAL RIGHTS”

By virtue of the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the term fundamental and human right denotes:
“Any of the rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.”
See OSONDU VS. AG ENUGU STATE(2017) LPELR CA/E/25/2016. PER AKINBAMI, J.C.A

THE POSITION OF LAW ON A BINDING JUDGEMENT

The position of the law now in Nigeria is that –
i. A judgment or order of every law Court remains in force and binding until it has been set aside by a Court of competent jurisdiction.
ii. To hold otherwise is to clothe a party against whom a judgment has been obtained with discretion to decide, in his wisdom, that the judgment is invalid and not binding on him. This is an invitation to anarchy.
iii. A party who is aware that an order is null or invalid should apply to have it set aside.
iv. The dictum of Lord Denning in UAC v. MACFOY (1961) 3 ALL E.R 1169, 1172; (1962) A.C. 152 often quoted to the effect that there is no need to set aside an order which is void because it is a nullity, is not only an obiter but also per incuriam. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal has arisen from the Ruling of the Kaduna State High Court sitting at Kaduna (Coram: M. M. Ladan. J) delivered on 17th October 2018. The Ruling of 17th October 2018, was consequent upon the application filed by the Applicant, now the Respondent in this appeal, on 15th November, 2017 seeking inter alia:
1. An order of perpetual injunction restraining all the Appellants herein by themselves, their Agents, servants, employees, officers and men of the Nigerian Police and privies from violating the applicant’s fundamental right to personal liberty, by harassing, intimidating, arresting and detaining the Applicant, and proceeding with criminal trial on account of civil transaction of the sale, purchase, possession and occupation of a parcel of land situate at Timber Shade, Railways Area, Sabon Gari, Zaria, which is the subject of Suit No KDH/Z/204/2017 between Alh. Jamilu lsah v. Alh. Ali Ashiru & 8 Ors.
2. An Order compelling the Respondents, their agents, servants, employees, privies and any other person acting on their behalf to pay the Applicant the sum of three million naira, as compensation/damages for unlawfully causing the high probability of contravention of the Applicant’s fundamental right to personal liberty by the Respondents, through their wrongful employment of the officers and men of the Nigeria Police to effect forcible arrest and detention of the Applicant on account of civil transaction of the sale, purchase, possession and occupation of a parcel of land situate at Timber Shade, Railways Area, Sabo Gari, Zaria, which is subject of Suit No. KDH/Z/204/2017 between Alhaji. Jamilu lsah v. Alh. Ali Ashiru & 8 Ors; and the applicant is entitled to a public apology from the Respondents.

For better appreciation of the antecedent circumstance of this application. I will go a little into the genesis of the dispute and this appeal.

By his affidavit supporting the application for the enforcement of his fundamental rights to personal liberty guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Respondent claimed that he is a businessman dealing in sales of woods and building materials at the Timber Shade, Sabon Gari, Zaria and that sometime on the 21st September, 2017, he filed an action before High Court No.1, Zaria in suit No. KDH/Z/204/2017 claiming title to a parcel of land situate at Timber Shade, Sabon Gari, Zaria. The action was against the 1st – 9th Appellants.

The Respondent filed suit No. KDH/Z/204/2017 along with an application against the Appellants for maintaining the status quo and injunction. The trial Judge in that suit, No. KDH/Z/204/2017, decided that his Registrar and the parties together with their Counsel would go and inspect the land with the view to determining, who between the parties is actually in possession of the land, in order to determine whether he would grant the application to maintain the status quo and injunction or not. The case of the Respondent is further that as a result of the visit to the land by the Court officials and the parties, the 1st – 9th Appellants were dissatisfied and consequently called Respondent’s tenant one Salida “dankali”, an Hausa word meaning “sweet potato”. They also intimidated him and asked him why he told the Registrar of the trial Court that, the land belongs to the Respondent. The Appellants further threatened that they would use every resource to make sure that the said Salida and the Respondent did not remain in the said land.

On the 9th of November, 2017, Salida called the Applicant at about 7.45 pm, and told him that he had been arrested and detained by the 10th – 12th Appellants consequent upon the inspection, and visit to the land by the Registrar of the Court. It was on the prompting of the 1st – 9th Appellants that the said Salida was arrested and detained. The said Salida was directed by the 10th and 11th Appellants to call the Respondent and bring him to them. When he could not bring the Respondent, the said Salida was detained, by the detention the Appellants breached his fundamental rights to his personal liberty.

On the 9th day of November, 2017, the 11th and 12th Appellants kept calling the Respondent, to come and explain to them why he was in possession of Railway land. He explained to them, that the matter was already before the Court, and that it was a civil case devoid of any form of criminality. The Appellants kept putting pressure on him and this was when it became probable that his fundamental rights to personal liberty was at stake hence the filing of the action for the enforcement of his fundamental rights to personal liberty.

The application was heard and determined by the trial Court in favour of the Applicant/Respondent, in a considered ruling delivered on the 17th October, 2018, the lower Court gave a Ruling in favour of the Respondent prompting the Appellants herein to file a Notice and Grounds of Appeal dated and filed on the 23rd November, 2018.

This is the order that prompted the Appellants to file this appeal on 23rd November, 2018. The Notice of Appeal has six (6) grounds of appeal. The grounds are herein below reproduced as follows –
Ground 1
The trial High Court judge erred in law when he held contrary to the reliefs claimed by the Applicant on the face of his motion paper for the enforcement of his fundamental rights and clear depositions in the affidavit in support that:
“ln the light of the foregoing, it is my view that the arrest and detention of the Applicant by the 10th – 11th Respondent in violation of a subsisting Court order, is unlawful, null and void, especially when there is a pending case by the High Court Zaria between the Applicant and the 1st -9th Respondents. It is very unbecoming for the 1st – 9th Respondents to resort to self-help which they knew that there is a pending case at the High Court Dogarawa, same instituted by the Applicant against them.”
Particulars of Error
1. The Applicant did not state in any of the reliefs that he was claiming on the face of the motion paper and in the statement made pursuant to the Fundamental Rights Rules as well as in his supporting affidavit that he was arrested and/detained by any of the Appellants.
2. Rather, the Applicant/1st Respondent stated in the sole ground upon which his reliefs are anchored that:
“High probability of violation breach and deprivation of the Applicant’s fundamental rights to personal liberty by the 1st -9th Respondent’s gross and serious threats of using the Nigeria Police Force of the 10th, 11th, and 12th Respondents to intimidate, harass, arrest, detain and coerce the Applicant on account of civil transaction of the sale, purchase, possession and occupation of a parcel of land situate at Timber Shade (sic) Railways Area, Sabon Gari, Zaria subject of Suit No. KDH/Z/204/2017 Between Alh. Jamilu Isah v. Alh Ali Ashiru & 8 Ors”.
3. There is nowhere that the Applicant stated that his fundamental rights to personal liberty guaranteed under Section 35 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) had already been infracted rather, he was afraid that same might be infringed.
4. The finding and holding of the trial judge quoted and stated is perverse, same being at variance with the pleadings and affidavit evidence on record.
The date that the Appellant’s rights were violated as found and held by the trial judge is not stated either on the face of the motion paper, in the supporting affidavit and even in the Ruling/Judgment of the trial judge.
Ground 2- Error in Law
The trial judge was in grave error and did not appreciate the facts of this case as well as the laws to which they apply hence he made the following erroneous findings and holding:
“It is my considered view that the action of the Respondents, more especially the 10th – 11th Respondent’s agents of the 12th Respondent is not a reasonable ground to warrant the breach and violation of the Applicant’s fundamental rights to personal liberty notwithstanding the provision of Section 4 of the Police Act. It is my humble view that the power of the Police in Section 4 of the Police Act is subject to any subsisting Court order like the one made on the 28th November, 2017.”
Particulars of Error
1. Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria 1999( as amended) permits the infraction of a person’s fundamental rights to personal liberty when there is a reasonable suspicion of commission of an offence. In the circumstances of this case, the reasonableness in the suspicion of commission of the offence of criminal trespass to land is borne by the 1st Respondent’s depositions in paragraphs 5(a),(c),(d),(g),; 6, 7, 8, and 21 of their counter affidavit.
2. The reasonableness in the suspicion of commission of the offence of criminal trespass can be gleaned from the facts of this case as contained in the 1st Respondent’s supporting affidavit especially deposition in paragraphs 3, 4, and 5, thereof as well as paragraphs 5(a), (c), (d), (g); 6, 7, 8, and 21 of the 2nd – 10th Respondents counter affidavit.
3. Where the 1st Respondent as Applicant before the trial Court claimed that he had a parcel of land sold to him by the past leaders and executive of Timber Dealers Association, Zaria of Timber Shade (sic), Sabon Gari, Zaria and then Vice Chairman of Timber of the Association, Alh Abubakar Musa issued the Plaintiff with a typed written receipt on the letter head of the Association, was invited by the Appellants, and he denied selling the land (which belongs to the Nigerian Railway Corporation) to the 1st Respondent, he was called to clear this denial but he refused.
4. Even in describing the land that he purportedly purchased from the past leaders of the Timber Shade Association, the 1st Respondent/Applicant described the land as being in a railway area hence making the complaint by the leadership of the Nigerian Railway Corporation to the Appellants reasonable by virtue of Section 35 (1) (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Ground 3- Error of Law
The trial High Court judge erred in law when he held that “it is my humble view that the power of the Police in Section 4 of the Police Act is subject to any subsisting Court like the one made on the 28th November, 2017” when the record of the trial Court shows that the said order of 28th November 2017 did not get to the notice of the Appellants until the 7th December, 2017. The evidence of proof of service bears this out.
Particulars of Error
1. The trial judge predicted his finding and Ruling on the fact, that there was a subsisting Court order, when in fact the said Court order was not yet served on the Appellants throughout the period when they were inviting the 1st Respondent. The said Court order was only served on the 7th December, 2017.
2. The position of the law is that criminal trial can go on simultaneously with a civil case on the same set of facts when there are sufficient facts to suggest that a civil wrong and a crime have been committed.
Ground 4- Error of law
The trial High Court erred in law when he held that the 1st – 9th Respondents/2nd – 10th Respondents in this appeal “resorted to self-help, which they knew that there is a pending case at the High Court, Dogarawa, same instituted by the Applicant against them. The action of the 1st – 9th Respondents was in bad faith and shall be condemned.”
Particulars of Error
1. The actions of 1st – 9th Respondents could not amount to self-help, because it was a report of a commission of crime made to a constituted authority (the Police that is established under Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as well as the Police Act under the Laws of the Federation, 2004). The Constitution and Legal duty of the Police is to investigate and prosecute commission of crimes.
2. Mere filing of pendency of a civil action in a Court without more (in terms of a Court order made and duly served) restraining further action cannot restrain the Police from carrying out its legal duty of investigating and prosecuting crimes.
3. The decision of the trial High Court is particularly erroneous when consideration is given to the fact that the case pending before the High Court, Dogarawa, Zaria is a civil case and as at the time investigation by the Appellants commenced up to the time of filing of the application for the enforcement of fundamental rights on the 17th November, 2017, there was no order restraining them to their notice.
Ground 5- Error of Law
The trial High Court judge erred in law when he made “an order awarding the sum of N500,000:00 in favour of the applicant against the Respondents and also a public apology from the Superintendent” when the Appellants were duly carrying out their constitutional duties and had not, in any way infracted upon the 1st Respondent’s fights.
Particulars of Error
1. Damages are awarded to a person who has been injured by the action or inaction of the person who committed the wrong. The facts of this case do not show that the 1st Respondent was wronged in any way to deserve the award of this huge sum of money in damages.
An order for public apology is a wrong use of the judicial instrument to strengthen criminal wrongs and criminality, especially where the facts of this case are carefully perused. This is especially so when there is a reasonable suspicion of the 1st Respondent trespassing into the land of the Nigerian Railway Corporation.
Ground 6- Error of Law
The Ruling of the trial Court of Justice of Kaduna State is against the weight of evidence on record of appeal.
Reliefs Sought From the Court of Appeal
An order allowing the appeal, setting aside the Ruling of the Kaduna State High Court of Justice presided over by Honourable Justice M. M. Ladan and in its place, dismissing the action of the Applicant/1st Respondent for lacking in substance.

From the bundle of facts contained in the supporting affidavit and the record of the Court generally, Appellants distilled the following issues for the determination of this application:
1. Whether the finding and holding of the trial High Court of Kaduna State that the Applicant/Respondent was arrested and detained by the 10th and 11th Respondents/Appellants is not perverse considering that the facts of the case as borne by the affidavit evidence supporting it and the reliefs claimed show otherwise? [Grounds 1 and 6].
2. Whether by the facts of this case and considering that there was no Court order to the notice of the Appellants, especially the 10th, 11th and 12th Appellants, before the invitation extended to the Respondent for the allegation of commission of the crime of criminal trespass, it can be said that the Judgment/Ruling of the trial Court is not perverse when it held that “It is my humble view that the power of the Police in Section 4 of the Police Act is subject to any subsisting Court order like the one made on the 28th November, 2017″? [Grounds 2, 3 and 4].
3. Whether there was any justification for the award of damages of the sum of N500,000.00 or any sum at all and the order for public apology by the Appellants to the Respondent when by the affidavit evidence in the record, no wrong had been done to the Respondent? [Ground 5]

The Appellants argued all three issues together.

The Respondents on their part adopted the three (3) issues for determination as formulated by the Appellants and also argued the three issues together.

It is pertinent that the proceedings of the lower Court were predicated upon on application for enforcement of fundamental rights, which was a special procedure laid by the Constitution of the Federal Republic of Nigeria and the Fundamental Rights Enforcement (Procedure) Rules made by the Chief Justice of Nigeria.
The clear intendment of the law is to provide an urgent remedy for human rights abuses or eminent human rights abuses as the case may. Thus, any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may apply to the Federal High Court or the High Court of a State where the infringement occurs or is likely to occur, for redress.

Appellant’s Counsel in arguing the issues submitted that, the most appropriate starting point in arguing this appeal is to refer the Honourable Court to the finding and holding of the Court below at page 173, of the record of appeal where the Court below held rather pervasively in the second paragraph thus:
“In the light of the foregoing, I hold that the arrest and detention of the applicant by the 10th – 11th Respondents in violation of a subsisting Court order is unlawful, null and void especially when there is a pending case before the High Court, Zaria between the applicant and the 1st – 9th respondents. It is very unbecoming for the 1st – 9th Respondents to resort to self-help when they knew that there is a pending case at the High Court Dogarawa even instituted by the Applicant against them. The action of the 1st – 9th Respondent was done in bad faith and shall be condemned”.

It is submitted by counsel that this holding of the trial Court is perverse because at the time the Applicant/Respondent approached the trial Court for the enforcement of his fundamental rights to personal liberty, there had not yet been an arrest and detention of the Respondent by any of the Respondents/Appellants. This is borne by depositions of the Applicant/Respondent in paragraphs 8, 9, 10, 11, 12 and 13 of the main affidavit in support of the application for the enforcement of the Applicant’s fundamental rights. This main affidavit can be located at pages 5 – 10 of the printed record of appeal.

Besides the depositions of the Applicant/Respondent in the supporting affidavit, the Respondent’s relief No. 5 on the face of the motion paper and even the further and better affidavit clearly shows that there was “high probability of contravention of the applicant’s fundamental right to personal liberty by the Respondents through their wrongful employment of the officers and men of the Nigeria Police”. It also shows that the Respondent was arrested on the 28th November, 2017 and it was only after his arrest that he filed the ex- parte application for the reliefs which the Court below granted on the same day.

The Counsel contended that the holding of the Court below that the Applicant/Respondent had been arrested and detained is certainly not borne by any piece of evidence in the main affidavit supporting. It makes the decision perverse and consequently liable to be set aside by this Honourable Court and we so pray.

Again, the trial Court held that the decision of the Respondents/Appellants to invite the Applicant/Respondent to the Police Station for investigation in a report of crime perpetrated by him was done when there was a subsisting action pending before the High Court, Dogarawa Zaria. The Court below went further to hold that by reporting the conduct of the Applicant/Respondent to the Police, the 1st – 9th Respondents resorted to self-help.

It was submitted that reporting the allegation of crimes to the Police is not and cannot amount to self-help. The Police is an agency of the Federal Government of Nigeria established under Section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as well as the Police Act, empowered to receive complaints of allegations of commission of crimes. If the 1st – 9th Appellants did not resort to the Police when they reasonably suspected that crime had been committed by the Respondent, then where else would they have gone to which would not have been said to be self-help.

It was noted that the holding of the Court below is contrary to the law. He cited the case of KALU VS FRN (2016)1 SCNJ 305 at 324 – 325 paras 20 – 30. Therefore the resort to the law enforcement agencies by the 1st – 9th Respondents/Appellants when they reasonably suspected that a crime had been committed by the Applicant/Respondent cannot be a resort to self-help; rather it was the most appropriate course for them to have taken in the circumstances of this case.

The 1st – 9th Respondents/Appellants would have resorted to using their force to either beat or forcefully removing the Applicant/Respondent’s property from the land which he (Applicant/Respondent clearly described as Railway land). If they had done so, it would have clearly been a resort to self-help which the Court below would have rightly condemned. But in this case, however, they took the most appropriate legitimate course, which is reporting the conduct of the Applicant/Respondent to the law enforcement agents (10th, 11th and 12th Respondents/Appellants).

In Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is provided in clear terms, especially in Subsection 1(c) thereof that:
“for the purpose of bringing him before, a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence.”

Respondent’s Counsel pointed it out that it is only when the Applicant/Respondent honours the invitation of the 10th, 11th and 12th Respondents/Appellants at the time that he was called that it would be ascertained whether the allegation against him is reasonable or not. It is also only if the Respondents had threatened to detain him after he honoured their invitation that he would have established that there is likelihood of his detention as is provided for in Section 46(3) of the Constitution of the Federal Republic of Nigeria 1999, (as amended).

The holding of the lower Court on page 172, of the record of appeal, where the Court below held at paragraph 4, was considered as the Court stated as follows:
“It’s on record that the applicant was invited by the 10th- 11th Respondents to the Police Station despite the pendency of the case. Based on the invitation by the 10th – 11th Respondents, the applicant through his lawyer, Bello Ibrahim Esq rushed to this Court and an order restraining the respondents especially the 10th – 11th from inviting, arresting, detaining was granted on the 28th Nov., 2017. Despite the service of the Court order on the 10th – 11th Respondents, the applicant was arrested and detained at railway Police Station. By this singular act, the respondents have contravened the fundamental rights to personal liberty of the applicant because the arrest and detention was made in contravention of a valid and subsisting order of Court and the applicant should not be arrested or detained until after the determination of the motion of notice”.

The above finding and holding is even self-contradictory and contrary to the affidavit evidence in the record of this Court. The depositions in the paragraphs of the further and better affidavit are to the effect that the Applicant/Respondent was arrested and detained on the 28th November, 2017. They do not show that the Applicant was detained beyond that date. It was noted that the motion ex parte by which the interim order was made is dated and filed on the 28th November, 2017. It was pointed out that in the Ruling on page 172 paragraphs 4, of the record, the Judge of the lower Court contradicted himself by holding thus:
“It’s on record that the applicant was invited by the 10th – 11th Respondents to the Police Station despite the pendency of the case. Based on the invitation by the 10th – 12th Respondents, the applicant through his lawyer, Bello Ibrahim Esq rushed to this Court and an order restraining the respondents especially the 10th – 12th from inviting, arresting, detaining was granted on the 28th Nov., 2017.”

It was argued that even at the time that the lawyer for the Applicant/Respondent approached the Court on the 28th November, 2017, the 10th – 12th Respondents/Appellants had already invited the Applicant/Respondent to the Station. Yet the Counsel prayed that Court to make “an order restraining the respondents especially the 10th – 12th from inviting, arresting, detaining” because they were already completed acts. It was submitted that all the reliefs asked for in the said motion were not grantable because they were already completed acts. In paragraph 17 of the affidavit supporting the said motion ex parte, the Applicant deposed that it is on the said same date of 28th November, 2017 that the Police arrested and detained him. In fact, the 2nd prayer on the motion paper is for an order releasing him from the detention of the Respondents at any police station. It was submitted that the trial Judge was therefore wrong to hold: that the Appellants arrested and detained the Applicant/Respondent with the subsistence of an order of the Court. That the Court could not have rightly held that the Respondents violated the order of the Court made on the 28th November, 2017 because it is the same date of 28th November, 2017 that the Appellants released the Applicant from their detention after he wrote his statement by which he claimed that the land which he has described in his extra-judicial statement and in the writ of summons that he had earlier filed before the High Court as belonging to the Railways was sold to him by one ALHAJI ABUBAKAR MUSA.

It was submitted that the trial Judge is supposed to predicate his judgment/ruling in the entire fundamental rights application on the evidence before him, especially the affidavit evidence of all the parties. In other words, the Applicant was supposed to prove by evidence that he was entitled to judgment by proving his claims according to law. But that the Respondent could not so prove. Sections 131, 132 and 133 of the Evidence Act, 2011 make provisions stipulating the burden of proof. It was submitted that there is need for the Honourable Court to look at the affidavits of all the parties in order to see who between the Applicant/Respondent and the Respondents/Appellants proved their respective cases to be entitled to Judgment/Ruling. He cited the case of TUKUR V. UBA (supra) at page 128 paras E – H. It was submitted that in the course of evaluating the affidavit evidence before him, the trial Judge needed to adopt the procedure stipulated by the Supreme Court in the case of TUKUR V. UBA (supra) at page 129 paras C – D. The supporting affidavit was referred to, wherein the Applicant/Respondent’s application for enforcement of his fundamental rights, he claimed that he purchased the land from one Alhaji Abubakar Musa who was the Vice Chairman of the Timber Dealers Association, Sabon Gari Zaria. This is his claim in the two affidavits that he relied on in this case – the main affidavit in support and the further and better affidavit which can be located in pages 5 – 10 and 145 – 150 respectively. The said Alhaji Abubakar Musa, the former Vice Chairman of the Timber Dealers Association, Sabon Gari Zaria was invited to the Police Station and he volunteered his statement by which he denied vehemently, the claim of the Applicant/Respondent that he was the one who sold the land to him (Applicant). This denial is in sharp contrast to the claim of the Applicant/Respondent in his extra- judicial Statement to the Police under words of caution wherein, he claimed that he purchased the land at the price of Three Hundred Thousand Naira (N300,00.00) from the same said Alhaji Abubakar Musa. The said Alhaji Abubakar Musa stated in his statement to the Police that he does not have any land there, therefore did not transfer title to any such land to anyone. The statement of the Applicant to the Police can be located at pages 121 – 123, while that of Alhaji Abubakar Musa also to the Police can be located at pages 124 – 129 of the record of appeal. It was submitted that the trial Judge did not take into consideration these pieces of evidence in deciding this case. He did not avert his mind to the fact that the Court order was made only after the Applicant/Respondent had been arrested, and was released on the same date after he made his statement. It was submitted that the trial Judge arrived at the erroneous decision that the Applicant proved his case and is entitled to the Judgment/Ruling that he got.

Having shown by the foregoing submission that the judgment/ruling of the trial Court was perverse since it was not predicated on the evidence on record, it was submitted that the award of damages of Five Hundred Thousand Naira (N500,000.00) and order for public apology is not supportable. Counsel prayed the Honourable Court to allow this appeal as same is not supportable by the affidavit evidence on record.

Damages are awarded only after the claimant had proved his case as it is intended to restore the injured person to the position he would have been, had the injury or wrong not been committed. In this case, the Applicant/Respondent, having been unable to prove his case on the preponderance of the affidavit evidence is not entitled to the award of the damages that he claimed or that the Court below awarded to him.

It was submitted that the Appellants have sufficiently argued this appeal with credible facts and the law to be entitled to this appeal being allowed, therefore prayed the Honourable Court to allow this appeal, set aside the Judgment/Ruling of the trial High Court of Justice of Kaduna State and in its stead, dismiss the application for the enforcement of the Applicant/Respondent’s fundamental rights to personal liberty.

The Respondent’s Counsel on his part argued the three issues together, and submitted that the Appellants must not only complain of errors of law against the judgment of the lower Court, they must also go ahead and complain that the errors of law so alleged have not only occasioned a miscarriage of justice but must allege and complain that the errors being complained against did actually occasion substantial miscarriage of justice.

It was submitted that the Respondents have searched all through the six (6) grounds of appeal of the Appellants on pages 182, 183, 184, 185, 186, 187 and 188 of the record of appeal, and have not found anywhere in which the Appellants complained against the judgment of the lower Court on allegations of occasioning miscarriage of justice.

Similarly, the three (3) issues for determinations formulated by the Appellants in their brief of argument have not raised allegations of occasioning miscarriage of justice or substantial miscarriage of justice in the judgment of the lower Court. Through the length and the breadth of the Appellants’ brief of argument, there is nowhere in which the Appellants complained against the judgment of the lower Court on allegations of occasioning miscarriage of justice or substantial miscarriage of justice in the judgment.

It was submitted that the Appellants failed in their basic duty and disregarded the burden placed on them by law to complain of occasioning miscarriage of justice or substantial miscarriage of justice in the judgment and proof of same.

It was submitted further that this Court cannot perform their duty for them as it will amount to descending into the arena to the bidding of one of the parties against the other which this Court greatly abhors.

It was submitted that the entire appeal is lacking in merit and this Court was urged to dismiss it having being brought by the Appellants without a genuine complaint of occasioning miscarriage of justice or substantial miscarriage of justice in the judgment. The Appellants limited their consideration of their case and the appeal only on the basic affidavit in support and refused to consider the whole affidavit evidence placed before the Court by the Applicant (Respondent) upon which the Appellants could have found a solution to their confusion of apparent lack of evidence to base the judgment of the lower Court on.

It was noted that Appellants completely avoided looking into the further and better affidavit of the Respondent (Applicant) and did not consider it in their appeal as part of the evidence that was considered by the lower Court to grant the Application subject of this appeal.

It was submitted that the Appellants have not appealed against the liberty of the lower Court to utilize or rely on the said further and better affidavit of the Applicant (Respondent) and they even plainly refused to refer to it in their appeal. It was that the Appellants appear to be economical with the truth. The case of Jack vs. University of Agriculture Makurdi (2004) 1 SCNJ Page 335 at Page 342 was cited in aid. In that in this case the provisions of Order 2 Rules 1, 2, 3, 4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and Section 46 of the Constitution of Nigeria 1999 (as amended) apply in place of the 1979 Constitution and Rules. Also, Section 35(6) is explicit on this fundamental Rights Enforcement.

It is submitted that in view of the above legal authorities, the affidavit evidence and statement in support of the Application which as a whole along with the further and better affidavit evidence of the Applicant (Respondent), proves that the Applicant is a bona fide Plaintiff in Suit No. KDH/Z/204/2017 against the 1st to 9th Respondents (as Defendants) over a parcel of land situate at Timber Shade, Sabon Gari, Zaria. And upon a visit by the Registrar of the trial High Court No.1 Zaria Abubakar A. Sulaiman, to ascertain the status, of the possession of the land, the Registrar found one Salida having wood cutting Machine on the land, and he confirmed to the Registrar that the land was let to him on rents by the Plaintiff (here the Applicant) for three to four years.

Consequently, the Defendants in Suit No. KDH/Z/204/2017 (the 1st to 9th Respondents (Appellants herein) decided to employ the aid and service of the 10th and 11th Respondents, and the 12th Respondent to contravene the Fundamental Rights to Personal Liberty of the Applicant and his tenant Salida, without commission of any criminal offence and the subject matter of the alleged complaint being to ascertain the title holder of the land in issue and not criminal trespass which actions were orchestrated by these Appellants, so as to get rid of the Applicant out of the land, frustrate the trial and consideration of Suit No. KDH/Z/204/2017 by High Court No. 1 Zaria, and this is not a reasonable ground to warrant the breach and violation of the Applicant’s Fundamental Human Rights to personal liberty, by the 1st to 9th Respondent through employment of the Officers and Men of the 10th, 11th and 12th Respondents to arrest, detain, coerce and intimidate the Applicant. This is also not a ground to pursue the Applicant through a criminal trial or to suffer any intimidation and violations of his fundamental rights to personal liberty at all, but the 1st and 9th Respondents are seriously bent on wrongly using the Police and men of the 10th, 11th and 12th Respondents to arrest, detain, coerce and intimidate the Applicant in breach of his fundamental right to personal liberty.

Counsel referred to the fact that Respondent contended at the lower Court that, the Court had the jurisdiction to grant the application, as the Applicant has proved that in view of the facts of this case, as is contained in the affidavit in support and the statement in support, the further and better affidavit, the Applicant’s application disclosed the likelihood and high probability of the infringement of Respondent’s fundamental human right to personal liberty by the 1st – 9th Respondents/Appellants through threats of use of the Officers and Men of the Nigerian Police, the 10th, 11th and 12th Respondents to warrant approaching this Court for enforcement. The further and better affidavit of the Applicant (Respondent herein) gave evidence of the continued contravention of the Applicant’s (Respondent herein) said Fundamental Rights in the disregard of the pending applications and suit, which clearly supported the judgment of the lower Court. This Court was urged to uphold Respondent’s submissions and resolve the issues for determination against the Appellants in favour of the Respondent and accordingly dismiss the appeal with substantial costs.

I have had the privilege of according a critical albeit dispassionate consideration upon the nature and circumstances surrounding the instant appeal, the argument of the learned Counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, as a whole. Thus, I am of the paramount view that the three issues raised and canvassed by the parties in the respective briefs thereof are very much germane to the Appellant’s grounds of the Notice of Appeal. The three Issues in question are thus hereby adopted by me for the ultimate determination of the appeal.

It is trite that the gravamen of the Appellant’s grouse is predicated upon the fact that there was no unlawful breach of the fundamental rights of the Respondent thereof.

By virtue of the provisions of Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 as amended:
“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 a High Court in that State for redress.”

By virtue of the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the term fundamental and human right denotes:
“Any of the rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.”
See OSONDU VS. AG ENUGU STATE(2017) LPELR CA/E/25/2016.

The vexed ruling of the Court below is contained at pages 167- 175 of the record. From the outset of the argument thereof, the Appellant’s learned Counsel attacked the finding and holding of the Court below at page 173, of the record of appeal where the Court below held in the second paragraph thus:
“In the light of the foregoing, I hold that the arrest and detention of the applicant by the 10th – 11th Respondents in violation of a subsisting Court order is unlawful, null and void especially when there is a pending case before the High Court, Zaria between the applicant and the 1st – 9th respondents. It is very unbecoming for the 1st – 9th Respondents to resort to self-help when they knew that there is a pending case at the High Court Dogarawa even instituted by the Applicant against them. The action of the 1st – 9th Respondent was done in bad faith and shall be condemned.”
I am of the view that, the above holding of the learned trial judge is the correct position of the law. It is on record that the applicant was invited by the 10th and 11th Appellants herein, to the police station despite the pendency of the Respondent’s Civil case. Based on the invitation by the 10th – 11th Appellants herein, the Respondent through his lawyer, Bello Ibrahim Esq. rushed to the lower Court and an order restraining the Appellants especially the 10th-12th from inviting, arresting, detaining the Respondent was granted on the 28th November, 2017. Despite the service of the Court order on the 10th – 12th Appellants, the Respondent was arrested and detained at Railway Police Station. By this singular act, the Appellants have contravened the fundamental right to personal liberty of the Applicant because the arrest and detention was made in contravention of a valid and subsisting order of a Court and the Applicant/Respondent should not be arrested or detained until after the determination of the motion on notice.

The position of the law now in Nigeria is that –
i. A judgment or order of every law Court remains in force and binding until it has been set aside by a Court of competent jurisdiction.
ii. To hold otherwise is to clothe a party against whom a judgment has been obtained with discretion to decide, in his wisdom, that the judgment is invalid and not binding on him. This is an invitation to anarchy.
iii. A party who is aware that an order is null or invalid should apply to have it set aside.
iv. The dictum of Lord Denning in UAC v. MACFOY (1961) 3 ALL E.R 1169, 1172; (1962) A.C. 152 often quoted to the effect that there is no need to set aside an order which is void because it is a nullity, is not only an obiter but also per incuriam.
For as long as that order remains extant it behooves the Appellants to submit to it; just as the trial Court was entitled to rely on it and enforce it.

In the light of the foregoing, l hold that the arrest and detention of the Applicant/Respondent by the 10th – 12th respondents in violation of a subsisting Court order is unlawful, null and void especially when there is a pending case before the High Court, Zaria between the Applicant/Respondent and the 1st-9th Appellants/Respondents. It is very unbecoming for the 1st – 9th Respondents to resort to self-help when they knew that there is a pending case at the High Court Dogarawa, even instituted by the Applicant against them. The action of the 1st – 9th Respondents was done in bad faith and shall be condemned.

In the circumstance, the three issues ought to be, and same are hereby answered in the negative and accordingly resolved against the Appellants.
Consequently, the appeal being unmeritorious, is hereby dismissed.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the advantage of reading in draft, the leading judgment of my learned brother, FATIMA OMORO AKINBAMI, JCA just delivered.
I agree with the conclusions reached therein and the reasons for them which I adopt as mine. The appeal is accordingly dismissed for lacking in merit.