CHAIRMAN ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR v. DAVID LITTLECHILD & ANOR
(2015)LCN/7962(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of July, 2015
CA/L/778/2011
RATIO
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT; ORDERS AND AWARD OF DAMAGES THAT A PARTY SEEKING REDRESS FOR THE INFRINGEMENT OF HIS FUNDAMENTAL RIGHT IS ENTITLED TO
The latin maxim Ubi Jus, Ibi Remedium (where there is a right, there is a remedy) still stands firm and further strengthened by the provisions of Section 35 (6) of the 1999 Constitution as amended which provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority etc. Thus in ABIOLA VS ABACHA (1998) 1 HRLRA 447 it was held that an applicant seeking redress for the infringement of his fundamental right is in addition to a declaratory and injunctive orders, also entitled to an award of damages. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE CHAIRMAN EFCC CAN BE SUED AS A JURISTIC PERSON
On the issue whether the Chairman EFCC can be sued as a juristic person as was done in the instant case. This indeed is an area of law that sounded recondite but there is however a reference point in a judgment of this court delivered by AYOOLA JCA (as he then was) in the case of AFRICAN IVORY INSURANCE CO. LTD VS COMMISSIONER FOR INSURANCE (1998) 1 NWLR (PT 532) 50. In the said case this court consisting of a panel of eminent and respected jurists in this Country, to wit DAHIRU MUSDAPHER, SAMSON O. UWAIFO AND E.O. AYOOLA JJCA (as they were then) observed and noted that the Commissioner for Insurance was vested with enormous powers and functions which may affect insurance companies. The plaintiffs had alleged in that case that the Commissioner threatened to penalise them as provided by Section 8 of the Insurance Decree and such penalty would cause irreparable damage to the insurers concerned. There lordships then held that in the circumstance it would be unjust to hold that the commissioner could not be sue eco nomine. It was further held that the holder of the office may change but as long as the Decree Stood as it was the office of Commissioner established by it with powers and functions that may be operated detrimentally against the interest of the plaintiffs remained. The express view of His lordships per AYOOLA JCA (as he then was) at page 57 of the report is herein below set out.
Of more relevance to the present case, as far as statement of principle is concerned, is the case of Fawehinmi v. N.B.A (supra) which contained illuminating discussion of several of the relevant authorities both local and foreign. The proposition applicable to the case at hand that can be distilled from the authorities can be shortly stated. Where a body or (office) is created by statue notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the statute after a careful and close reading of the provisions of the relevant statute. To infer a right to sue the officer or body eonomine regard may well be had to the nature of the powers and functions vested in the office or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from unavailability of means of redress should the office exercise such powers or performing such function not be subject to any kind of proceedings. On the other hand, if inability to sue in order to enforce the powers and functions ineffective a right to sue eonomine would readily be inferred. The proposition shortly stated above can be seen in operation in such cases as Kpebimoh v. The Board of Governor Western Ijaw Teachers Training College (1966) 1 NMLW 130; Thomas v. Local Government Service Board (1965) 1 ALL NLR 168 and Solicitor General Western Nigeria v. Adedoyin (1973) UILR 143 all of which have been discussed in Fawehinmi v. NBA (no.2) (supra).That proposition can no doubt be more readily applicable when the action is one such as the present one, to protect rights claimed in public law from threaten infringement. The realistic view in such a case is to make the office vested with powers and functions which may in their exercise and performance lead to such infringement amenable to legal proceedings eononime. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES:
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. CHAIRMAN ECONOMIC AND FINANCIAL CRIMES COMMISSION
2. MUAZU ZUBAIR – Appellant(s)
AND
1. DAVID LITTLECHILD
2. BUSINESS MART NIGERIA LIMITED – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Lagos Division delivered by M.B. IDRIS J. on the 12th day of July, 2010.
The Appellants’ case is that sometime in June 2010 the 1st Appellant received a petition written by one Mr. John Fashanu alleging that the 1st Respondent defrauded him of a total sum of 287,000 which was to be used to establish a Duty Free Shop at the Murtala Mohammed International Airport in Nigeria on the understanding that the said John Fashanu will be given a stake in the business, but unfortunately the 1st Respondent converted the said sum of ?287,000 to his own personal use.
The Economic and Financial Crimes Commission (EFCC) acting on the said petition commenced investigation into the case and the 1st Respondent was invited for interrogation during which he was granted bail on certain conditions, but instead of perfecting the terms of the bail the 1st Respondent through his counsel applied to the Lower Court for his release and on 7-7-2010 the Lower Court directed that the 1st Respondent be released on bail on the conditions given by the Appellants pending the Judgment fixed for 12-7-10.
However, in the said judgment delivered on 12-7-10, the Lower Court held that the 1st Respondent’s detention was unlawful, null and void and awarded N10 Million damages against the Appellant for unlawful detention of the 1st Respondent and sealing of the Duty Free Shop at Murtala Mohammed International Airport, Lagos. Their grouse is that the Lower Court had earlier on 7-7-10 ruled that the bail earlier granted to the 1st Respondent by the Appellants on 23-6-10 suffices and he should fulfill the conditions given to him. There is also no evidence that the Appellants were involved in the sealing of the Respondents shop.
The process that gave rise to the said judgment of the Lower Court was an application for enforcement of fundamental rights brought by way of originating motion by the Respondents and dated and filed on 1st July, 2010. Wherein they sought the following reliefs against the Appellants:-
i. A DECLARATION that the arrest and detention of the 1st Application on the 23rd June, 2010 till date by the 1st – 3rd Respondents upon the active instigation of the 4th Respondent is illegal, unconstitutional, null and void and a breach of the 1st Applicant’s rights to freedom of movement and personal liberty as guaranteed by the provisions of Sections 34, 35, 44 and 46 of the Constitution of the Federal Republic of Nigeria 1999.
ii. A DECLARATION that the continued harassment, intimidation of the Applicants by the 1st – 3rd Respondents upon the active instigation of the 4th Respondent from 23rd June, 2010 to date is illegal, unlawful, unconstitutional, null and void which act is contrary to the fundamental rights of the Applicants as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999.
iii. A DECLARATION that the claimed transaction between Business Mart UK Limited and the 4th Respondent which is the complaint and subject matter of this application is at best a commercial/civil transaction and ultra vires the powers of the 1st – 3rd Respondents. It is unlawful for them to harass, arrest and detain the 1st Applicant for the purpose of recovering debts or securing performance of any claimed commercial/civil obligations to the 4th Respondent, or any other persons.
iv. A DECLARATION that it is unlawful and an abuse of office for the 1st – 3rd Respondents to recover any alleged debt or enforce any alleged obligation arising from a commercial/civil matter on behalf of the 4th Respondent against the Applicants or any person whatsoever.
v. AN ORDER enforcing the 1st Applicant’s right to personal liberty and freedom of movement by restraining the Respondents, their agents and privies from further harassing or detaining the 1st Applicant based on any allegations made by the 4th Respondent.
vi. AN ORDER OF PERPETUAL INJUNCTION restraining all the Respondents, their agents, privies, servants etc from harassing, arresting, detaining the 1st Applicant or seizing the 1st Applicant’s passport and/or interfering in any way with the personal liberty of the 1st Applicant and or locking up the Applicants Duty Free Shop at the Murtala Mohammed International Airport, Ikeja, Lagos, Nigeria.
vii. The sum of N100, 000,000.00(One Hundred Million Naira Only) being damages payable by the Respondents jointly and severally for the unlawful arrest, detention, harassment, intimidation of the Applicants and locking up of the Applicants Duty Free Shop, at Murtala Mohammed International Airport, Ikeja, Lagos by the 1st, 2nd, 3rd and 5th Respondents upon the active instigations of the 4th Respondent.
viii. And for such further Order or Orders as this Honourable Court may deem fit to make in the circumstances of this application.
The grounds for the application are as set out in the statement accompanying the application. There is also a 33 paragraph affidavit in support deposed to by one OLATUNDE OLADELE. A legal practitioner in the firm of RICKY TAFA & CO.
The Appellants as Respondents reacted by filing a 25 paragraph counter affidavit deposed to by one OFEN-IMU SUNDAY, Investigating Officer with the EFCC.
The Respondent also filed a further affidavit of 11 paragraphs.
The parties also filed and served their written submissions which they adopted at the hearing of the application on 7-7-2010.
In a judgment delivered on 12-7-2010 the Lower Court entered the following reliefs in favour of the Applicants (now Respondents):-
i. A DECLARATION is made that the arrest and detention of the 1st Applicant on the 23rd June, 2010 till date by the Respondents is illegal, unconstitutional, null and void and a breach of the 1st Applicant’s right to freedom of movement and personal liberty as guaranteed by the provisions of Sections 34, 35, 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999.
ii. A DECLARATION is also made that the continued harassment, intimidation of the Applicants by the Respondents from 23rd June, 2010 to date is illegal, unlawful, unconstitutional, null and void which act is contrary to the fundamental rights of the Applicants as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999.
iii. The sum of 10,000,000.00(Ten Million Naira) is hereby awarded as damages payable by the Respondents jointly and severally for the unlawful arrest, detention, harassment, intimidation of the Applicants and the locking up of the Applicant’s Duty Free Shop, at Murtala Mohammed International Airport, Ikeja, Lagos.
The Appellants being dissatisfied with the outcome of the said judgment filed a Notice of Appeal on 5-8-2010. It contains six grounds of appeal.
In a brief of argument filed on 17-5-2012 the Appeals formulated 4 issues for determination to wit:
1. Whether the Applicants at the Lower Court (Respondents herein) was not deemed to have admitted all the facts in the counter affidavit of the Appellants having failed to file a reply to the said counter affidavit and whether the Learned Trial Judge was right in solely relying on the Applicant’s affidavit in support in arriving at its judgment.
2. Whether it was right of the Learned Trial Judge to hold that the arrest and detention of the 1st till date – date of judgment on the 12th of June, 2010 was unconstitutional, null and void having been granted bail at the instance of the court on the 7th of July, 2011.
3. Whether the Learned Trial Judge was right in awarding damages of N1000,000 against the Respondents (Appellant, jointly and severally.)
4. Whether the office of the Chairman Economic and Financial Crimes Commission is a juristic person that can sue and be sued.
The Respondents in their brief of argument filed on 30-4-14 but deemed properly filed on 17-3-15 also formulated 4 issues for determination as follows:-
1. Whether it is in all circumstances when a reply to a counter affidavit is not filed as was in the present case at the Lower Court meant all the facts in the counter affidavits are deemed admitted and whether the trial judge was right to have delivered its judgment based on the Respondent’s affidavit in support and Appellant’s counter affidavit at the Lower Court.
2. Whether the detention of the 1st Respondent by the Appellants from 23rd June, 2010 until the date of judgment of the Lower Court on the 12th July, 2010 was unconstitutional, null and void?
3. Whether the Respondents are entitled to the N1000, 000.000 damages awarded to them by the Lower Court and also whether the N1000,000 is enough to compensate the Respondents for the injustice suffered in the hands of the Appellants?
4. In the view of Issue 4 of the Appellants, issue for determination and ground 6 of their Notice of Appeal, whether this court would allow the issue of technicality to override the purity of justice.
The Appellants also filed a reply to the Respondents brief of argument. It is dated and filed on 13-6-2014 and deemed properly filed on 17-3-2015.
At the hearing of the appeal on 4-6-2015 both parties duly adopted their respective briefs of argument.
A close reading of the issues raised in the parties briefs of argument reveal substantial similarity in their context and the difference being grammatical presentation. I will however adopt the four issues as formulated by the Appellants in the consideration of this appeal.
ISSUE ONE
Learned counsel for the Appellants, herein submitted inter alia, that the Learned Trial Judge did not evaluate the totality of the evidence before him before arriving at its decision.
He then referred to the finding of the Learned Trial Judge at page 274 line 17 of the Record; paragraph 12-14 of the Respondent’s affidavit in support of their originating motion and paragraphs 3 to 9 of the Appellants counter affidavit at page 153-156 of the Record.
Learned counsel contended that the Respondents did not file any reply to challenge the Appellants depositions in their counter affidavit as to the facts that triggered investigations on the matter but only filed a further affidavit on the state of health of the 1st Respondent.
Further reference was made to the holding of the Learned Trial Judge at page 171 lines 25 to 29 and page 172 lines 1-6 of the Record to submit that the 1st Respondent did not in any part of their affidavit depose that he informed the Appellant about any pending Suit in his statement to warrant the finding of the Learned Trial Judge that the said statement ought to have been attached to the Appellants’ counter affidavit as an exhibit.
Learned counsel further asserted that since the Respondent did not file any affidavit in reply to challenge the Appellants counter affidavit they are deemed to have admitted the facts deposed therein. He cited the following cases in support. DOKUBO ASARI VS FRN (2007) 5-6 SC 150; ADESINA VS OSOGBO (1996) 4 SCNJ 111; A.G ANAMBRA STATE VS OKEKE (2002) 5 SC (PT 11) 58; STEPHEN LAWSON-JACK VS SPDC (NIG) LTD (2002) 7 SC (PT 11) 112; H. S. ENGINEERING LTD VS S. A. YAKUBU (NIG) Ltd (2009) 10 NWLR (PT 1149) 223; NWANGANGA VS MILITARY GOVERNOR IMO STATE (1981) 3 NWLR (PT 59) 185, A. G. PLATEAU STATE VS A.G. NASSARAWA STATE (2005) 9 NWLR (PT 930) 421 at 424.
Learned counsel also picked holes with the manner the Learned Trial Judge evaluated the evidence as shown at page 180 to 181 of the Record which it was contended goes contrary to the affidavit evidence before the court and more particularly as relates to the sealing of the shop at the Murtala Mohammed International Airport, Lagos.
Learned counsel for the Respondents, in his reply submitted that it is not in all circumstances that failure to file a reply affidavit will justify the presumption of correctness of depositions in a counter affidavit. Vide UKET VS FRN (2008) ALL FWLR (PT 411) 923 at 937. It was further argued that all the paragraphs of the counter affidavit did not comply with the provisions of Section 115 (1) (3) and (4) of the Evidence Act 2011 hence the Lower Court could not act on it. Moreso, given that the said counter affidavit did not disclose the source of the Appellants’ information and belief and contains legal arguments and conclusions instead of facts learned counsel justified the holding of the Lower Court at pages 171 to 172 of the Record to the effect that the Appellants did not attach the 1st Respondent’s statement to their counter affidavit to show whether or not it was stated therein that the Appellants were informed about a pending civil matter in the Federal High Court – and referred to paragraph 14 and 15 of the Respondents’ affidavit in support where the issue was deposed to with Exhibits DL1 – DL3 attached.
It was also submitted that deposition in an affidavit may be rejected or there would be no need to controvert them by way of counter affidavit or reply affidavit where in a deserving case there are no supporting exhibits. Reliance was placed on the following cases:- UKET VS FRN (2008) ALL FWLR (PT 411) 923 at 937, REAN LTD VS ASWANI TEXTILE LTD(1992) 2 SCJN (PT 11) 346; OGOEJEOFO VS OGOEJEOFO (2006) ALL FWLR (PT 301) 1792 LAWRENCE VS A.G. FEFERATION (2008) ALL FWLR (PT 426) 1901 at 1925-1926.
Furthermore, it was submitted that all the authorities cited by the Appellant in support of the issue did not apply or are wrongly cited because it is not in all cases where an affidavit is not countered or a reply deposed to that will engender a finding that the averment therein are admitted.
In their reply brief, the Appellants counsel submitted that issue (1) as raised in the Respondents’ brief of argument is a fresh issue being raised before this court for the first time. Therefore, having not obtained the leave of this court to raise same it should be discountenanced.
ISSUE TWO
Herein, learned counsel for the Appellants submitted that the 1st Respondent’s detention till the date of judgment was at the instance of the Lower Court and not the making of the Appellants as shown in the proceedings of the court on 7-7-2010. He added that having approved the grant of bail to the 1st Respondent by the Appellants upon fulfillment of conditions imposed by the said Appellants, it was wrong for the Lower Court to have come to the conclusion that the Appellants were responsible for his detention from 23-6-10 to 12-7-10, the date of the judgment.
It was further contended that the Appellants did what was required under the law by granting bail to the 1st Respondent and has no further duty to help him perfect the terms of the bail and as such does not warrant the damages awarded against the Appellants.
For the Respondents it was submitted by their counsel that the 1st respondent was arrested on 23-6-2010 and detained at the office of the Appellants at 15A Awolowo Road, Ikoyi, Lagos until 12-7-2010 when the Lower Court delivered its judgment. Reference was made to Section 35(1) and (4) of the 1999 Constitution (as amended) to contend that the Appellants in the circumstance was in the breach of its provisions. Moreso that it imposed stringent conditions for the bail and also seized the 1st Respondent’s British Passport thereby denying him the opportunity to travel out of Nigeria being a British Citizen. He relied on the case of IBORI VS FRN (2009) 3 NWLR (PT 1127) 94 at 106.
It was further contended that the Appellant violated the Fundamental Rights of the 1st Respondent by not charging him to a court of competent jurisdiction in accordance with Section 35 (5) (a) of the 1999 Constitution despite the nearness of their office to the Federal High Court, Ikoyi.
In their reply brief, it was submitted by the Appellant’s counsel that even if the conditions for the bail granted by the Appellants were found to be stringent, by requesting for a level 16 officer or owner of a property in Lagos as a surety, the 1st Respondent was free to have applied to vary the said conditions either to the Appellants or to any court but he failed or neglected to do so. He urged this court to discountenance the case cited by the Appellant.
Dealing with the Appellant’s issue 1 and 2, it must be borne in mind that affidavit evidence is not pleadings but in considering whether to grant a relief sought or not to do so. It follows therefore that while in this case of pleadings, averments therein, unless admitted constitute no evidence, affidavits are by law evidence upon which the court of law will in appropriate cases act.
See CENTRAL BANK OF NIGERIA VS AMAO (2010) 5-7 SC (PT 1) Page 1 and B.V MAGNUSSON VS KOIKI (1993) 12 SCJN 114.
It is also the law that facts contained in an affidavit form part of the documentary evidence before the court. Thus, where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or a reply affidavit, the facts deposed to in the affidavit or counter affidavit would be deemed unchallenged and undisputed. Simply put, paragraphs of affidavit not denied or controverted are deemed admitted. See BADEJO VS MINISTER OF EDUCATION (1996) 9-10 SCJN 51; LAWSON JACK VS SPDC (NIG) LTD (2002) 12 SCM 131; OGOEJEOFO VS OGOEJEOFO (2006) 1 SCNJ 6.
The Appellants’ grouse here is that the Learned Trial Judge did not evaluate the totality of the affidavit evidence before the court but had virtual reliance on the Respondents’ affidavit in reaching his decision notwithstanding the fact that the Respondents did not file any reply to the counter affidavit which depositions therein ought to be deemed admitted.
It must be pointed out however that it is not in every situation that failure to file a counter affidavit or reply to a counter affidavit will result in the unchallenged or uncontradicted facts being deemed admitted as true and correct.
Therefore, if an affidavit is self contradictory or if the facts contained therein are presumed to be true and when taken together are still not sufficient to sustain the prayers of the applicant, it will be needless for a Respondent to file a counter affidavit. The same principle applies in the case of failure to file a reply to a counter affidavit.
See ROYAL EXCHANGE ASSURANCE (NIG) LTD VS ASWANI TEXTILE INDUSTRIES LTD (1992) 3 NWLR (PT 221) Page 1.
I have carefully perused the judgment of the Lower Court with particular emphasis on the pages referred to by the Appellant, as well as the parties affidavit evidence.
The bottom-line here is whether the Learned Trial Judge properly evaluated the affidavit evidence before the court as presented by the parties to the dispute. He had held in the judgment at pages 170 to 172 as follows:-
From the affidavit evidence before me, it appears not to be in dispute that the 1st applicant was arrested by the Respondent on the 23rd of June, 2010, based on a petition written by one John Fashanu in respect of a financial transaction which involved the purchase of shares in a Company known as Business Mart UK Limited up till the date of the hearing of this application, the 1st application was being detained by the Respondents.
It also appears that the 1st Applicant volunteered his statement to the Respondents, he was served with the conditions for the grant of bail, but these conditions could not be met by the 1st Applicant. The said Applicant was directed to deposit his International Passport with the 1st Respondent.
From the facts, it appears clear to me that the subject matter of the transaction leading to the arrest of the 1st applicant was the subject matter of Suit No. FHC/CS/103/07, FEDERAL REPUBLIC OF NIGERIA VS. DAVID LITTLECHILD & ORS, wherein the 1st Respondent obtained the orders of this court to freeze the account of the 1st applicant. It is clear that the orders obtained were set aside by the Court of Appeal No. CA/L/328/07.
It is also clear from the facts before me that the 1st Applicant thereafter commenced an action against the complaint/petitioner (Mr. John Fashanu) in Suit No LD/145/07 on the subject matter that lead to his arrest on 23rd June, 2010, and the Suit is pending before the Lagos High Court.
From exhibit DL8 attached to the further affidavit, it is clear that the 1st applicant is sick and in need of medical treatment.
While the applicants contend that the petition is spurious and unfounded and that it is being used to intimidate, harass and frustrate the applicant’s business activities, the Respondents contend that the petition is not frivolous. The petition upon which the Respondents acted and seem to justify the arrest and continued detention of the 1st applicant was not attached to the counter-affidavit filed by the Respondents.
The Respondents have also denied being aware of any Suit pending against Mr. John Fashanu and they were never served with the said court process. The Respondents failed to attach to the counter affidavit filed statement made by the 1st applicant to them after his arrest to controvert his assertion that he informed the Respondents that he had instituted an action against John Fashanu on the same subject matter at the Lagos High Court and that the said John Fashanu had not filed any defence to the Suit, neither had he entered any appearance despite evidence of service of court processes on him.
From the above set out portion of the judgment I am minded to observe that the Learned Trial Judge cannot be accused of relying only on the Respondent’s affidavit in reaching his decision because it is quite clear from the findings that reference was made to the deposition of both parties.
The fact that he opted to rely more on the affidavit evidence of the Respondents is a matter within the powers of the Learned Trial Judge. Whether it was judiciously or perversely done is a different issue.
It is however not in dispute that the 1st Respondent was arrested on 23-7-2-10 and was admitted to bail that same day upon fulfillment of the bail conditions which includes the provision of a surety or salary Grade Level 16 or the owner of a house in any part of Lagos. The Respondent did not fulfill the terms of the conditions for bail but opted to apply to the Lower Court for the enforcement of his fundamental rights. Thus, on 7-7-2010 when the application came up for hearing the Lower Court granted bail to the 1st Respondent on the terms prescribed by the Appellants pending the judgment fixed for 12-7-2020. The said ruling on 7-7-2010 reads thus:-
“In the interest of justice and pursuant to the provision of Order XI of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the Respondents are hereby directed to release the 1st Applicant on bail upon the fulfillment of the (sic) any of the conditions imposed by the said Respondents for the grant of provisional bail. The bail shall be granted by the Respondents pending judgment in this Suit. Matter, is adjourned to 12-7-2010 for judgment.”
However in the judgment delivered by the judge on 12-7-2010, five days later Reliefs (i) was granted as follows:-
“A declaration is made that the arrest and detention of the 1st Applicant on the 23rd June, 2010 till date by the Respondents is illegal, unconstitutional, null and void and a breach of 1st Applicant’s right to freedom of movement and personal liberty as guaranteed by the provisions of Section 34, 35, 44 and 46 of the Constitution of the Federal Republic of Nigeria 1999.”
As much at it may sound contradictory in terms given that the same court had on 7-7-2010 admitted the 1st Respondent to bail on the conditions as prescribed by the Appellants. It must however be noted that the totality of the finding of the Lower Court was that the arrest and detention of the 1st Respondent was illegal and unconstitutional ab initio given that there was no basis for same. Part of the said finding is at page 171 of the Record where it was held thus:-
“The petition upon which the Respondents acted and seem to justify the arrest and continued detention of the 1st Applicant was not attached to the counter affidavit filed by the Respondents.”
To my mind the age long principle of law that he who asserts must prove is sacrosanct in our jurisprudence. The Appellants had deposed in paragraphs 4 and 5, 10 and 11 of their counter affidavit that the arrest of the 1st Respondent was based on a petition received from on JOHN FASHANU.
The said petition heavily relied on to justify their action against the 1st Respondent was not attached to their affidavit evidence before the Lower Court. This no doubt is fundamental flaw which the Learned Trial Judge observed to hold inter alia that the 1st Respondent was unnecessarily harassed and detained.
Affidavit evidence which are clearly and bare allegations and or conclusions but not supported with facts and/or documents needed to establish them are omissions which are fatal to any application or assertion before the court. Thus where cases are tried upon affidavit evidence, the facts or depositions in such affidavits have to be proved like averments in pleadings. See GENERAL & AVIATION SERVICES LTD VS THALIAL (2004) 4 SC M 52; UNION BANK OF NIGERIA PLC VS ASTRA BUILDERS (WA) LTD (2010) 2-3 SC (PT 1) Page 60.
In the instant case, the failure of the Appellants to produce or attach the petition upon which they acted in arresting the 1st Respondent in order to justify their action before the Lower Court is no doubt fatal to their defence.
I am not unmindful of their statutory empowerment to arrest anybody upon reasonable suspicion of having committed any financial crime as prescribed in Section 7 of the EFCC Act 2004 but in the instant case, having premised and relied on a petition as their defence to the arrest and detention of the 1st Respondent, it behoves them to satisfy the court that their act was done within the ambit of the law given that the fundamental rights of every citizen of this country and even strangers under the umbrella of the sovereign protection of this country is jealously preserved and guaranteed by the 1999 Constitution.
In this regard, the issue whether the Lower Court was right in holding that the arrest and detention of the 1st Respondent from 23-6-10 till judgment on 12-7-10 was illegal though irregular becomes a moot point given the finding of the Lower Court that the arrest was wrong ab initio in the absence of any proof to the contrary. The matter is even made worse by the fact that between the arrest of the 1st Respondent on 23-6-2010 the 1st Respondent has not been charged to any competent court for any offence.
The 2nd applicant has contended that it was sealed on the 24th June, 2010, and has lost profit of N1, 000,000 each day. The Respondents contend that it merely took steps to secure vital exhibits that would be required in the course of trial. The Respondents have failed to say what steps they took. What were these steps taken in order to secure these vital exhibits required in the course of trial? It is now settled law that denial in affidavit must be precise, concise and exact. A denial must give no room for conjecture or speculation. A denial of a rigmarole and vague nature is in law and in fact not a denial. In the circumstances, I hold that paragraph 20 of the Counter Affidavit does not constitute a denial of the specific deposition in the affidavit in support.
The Appellants in paragraph 20 of their counter affidavit challenged it as follows:-
“That contrary to the averment in paragraph 25 of the affidavit in support, the 1st Respondent has not sealed up the 2nd Applicant shop at Murtala Mohammed International Airport as averred, rather it merely took steps to secure vital exhibits that would be required in the course of trial and aver that the steps taken by the 1st Respondent did not occasion any loss whatsoever.”
However, the Respondent had deposed in paragraph 25(ii) & (iii) of their affidavit in support of the application as follows:-
(ii) “on the 24th of June, 2010 the 4th Respondent sealed the 2nd Applicant’s Duty Free Shop at the Murtala Mohammed International Airport Ikeja Lagos.
(iii) the 2nd Applicant is losing profit of N1,000,000(One Million Naira) per day.”
The facts are very clear from the above deposition that it was the 4th Respondent at the Lower Court that sealed the Duty Free Shop.
Incidentally, the name of the said 4th Respondent in the application at the Lower Court was struck out following an application to withdraw against him by the Applicants (now respondents) counsel at the proceedings of 7-7-2010 which went thus:-
COURT = There is no proof of service of the originating processes on the 2nd, 4th and 5th Respondents.
ODUBELA = if the 2nd, 4th and 5th Respondents have not been served, they are nominal Respondents. In order for us to proceed I withdraw against the 2nd, 4th and 5th Respondents.
YUSUF = No objection.
COURT = The names of the 2nd, 4th and 5th Respondents are hereby struck out.”
In the light of the withdrawal of the Suit against the 4th Respondent JOHN FASHANU who was alleged in the affidavit to have sealed the Duty Free Shop, the Responsibility or liability for his action cannot be shifted to the Appellants in the absence of any proof that he acted as their servant or agent. In the circumstance I hold the view that the Appellants ought to be exonerated from the liability of wrongful sealing of the shop given that the Applicant specifically mentioned the 4th Respondent (JOHN FASHANU) as having carried out the sealing.
In the circumstance, Issue I is partly resolved in favour of the Appellant while Issue 2 is resolved against them.
ISSUE THREE:
Dwelling on this issue, learned counsel for the Appellants raised complaint about the finding of the Lower Court at page 180-181 and 183-184 of the record to submit that the conclusion therein was reached by the Learned Trial Judge without considering the preponderance of evidence which was in favour of the Appellants given the deposition of the Respondents in paragraph 25 of their affidavit in support of the application as regards the sealing up of the Duty Free Shop by the 4th Respondent whose name was earlier struck out of the suit on the application of the Respondents’ counsel.
He also referred to paragraph 20 of the Appellants counter affidavit to submit that the Respondents did not file a reply affidavit to contradict same and as such it was deemed admitted. But the said paragraph was the import of the deposition in the said paragraph 20.
It was further contended that the Learned Trial Judge did not follow the laid down principles in awarding damages and ought to limit himself to the materials placed before the court by the parties. He then urge His court to intervene and reverse the damages awarded against the Appellants.
For the Respondents, it was submitted by learned counsel that the 1st Respondent was arrested on 23-6-2010 by the Appellants who also sealed the duty free shop of the 2nd Respondent on 24-6-2010, which act of sealing the Appellants admitted in paragraph 20 of their counter affidavit. He added that such acts constitute infringement of the fundamental right of the Respondents by virtue of Section 35(6) of the 1999 Constitution and as such the Lower Court was justified in awarding N10,000,000 damages. Vide NEMI VS. A.G. LAGOS STATE (1996) 6 NWLR (PT 452) 42; MINISTER OF INTERNAL AFFAIRS VS SHUGABA (1982) 3 NCLR(?). F.R.N. VS IFEGWU (2003)15 NWLR (PT 842) 113.
This court was urged to discountenance the arguments of the Appellants in paragraphs 6.10 – 6.11 of their brief of argument and the cases cited in support and to hold that the Respondents are entitled to the N10,000,000 damages awarded and deserves even more.
Given the resolution of issues 1 and 2 partly against the Appellants and having affirmed that the Learned Trial Judge properly evaluated the affidavit evidence presented before the court by the parties except as to sealing of the shop I believe that the answer to issue 3, whether the Learned Trial Judge was right in awarding damages of N10 Million against the Respondents jointly and severally cannot be in the negative.
The latin maxim Ubi Jus, Ibi Remedium (where there is a right, there is a remedy) still stands firm and further strengthened by the provisions of Section 35 (6) of the 1999 Constitution as amended which provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority etc. Thus in ABIOLA VS ABACHA (1998) 1 HRLRA 447 it was held that an applicant seeking redress for the infringement of his fundamental right is in addition to a declaratory and injunctive orders, also entitled to an award of damages.
In the instant case having held that the Lower Court was right in coming to the conclusion that the arrest and detention of the 1st Respondent was illegal, null and void there is no doubt that damages will normally be awarded, such having been claimed by the Respondents. The award of the sum of N10 Million was jointly and severally for the unlawful arrest and detention, harassment, intimidation of the 1st Respondent and the locking up of their Duty Free Shop at Murtala Mohammed International Airport, Ikeja, Lagos. However, given that the allegation of sealing the Duty Free Shop was not proved against the Appellants and going by the deposition of the Respondents in paragraph 25 of their affidavit in support to the affect that the 4th Respondent whose name was struck out of the suit in the Lower Court sealed the said Duty Free Shop. It will to my mind be out of place to sustain the award of N10 Million damages. In the circumstance, I hereby invoke the powers conferred on this court by Section 15 of the Court of Appeal Act 2004 to inter alia, make any order necessary for determining the real question in controversy in the Appeal. Consequently the award of the sum of N10 Million by the Lower Court is hereby set aside and in its place I make an award of the sum of N5 Million as damages against the Appellants jointly and severally for the on unlawful arrest, detention, harassment, and intimidation of the 1st Respondent.
This issue is therefore partly resolved in favour of the Appellants.
ISSUE FOUR
Dwelling on this issue learned counsel for the Appellant acknowledged that the issue was not canvassed at the Lower Court but is being raised for the first time before this court. He then contended that for an office to be Juristic, it must not only be recognized or created by statute, but must also be conferred with the powers to sue and be sued. He added that the “Chairman of Economic and Financial Crimes Commission (EFCC) is not a juristic person. Reference was made to Section 1 of the EFCC Act as well as the case of AG FEDERATION VS ANPP (2003) 18 NWLR (PT 851) 208 to submit inter alia that only natural persons, that is human beings and juristic artificial persons such as bodies corporate are competent to sue and be sued and where none is a legal person the action should be struck out. He cited the following cases in support SHITTA VS LIGALI (1941) 16 NLR 23; A.B. OLLIVANT LTD. (1961) 1 ALL NLR 116; FAWEHIMI VS NBA (NO 2) (1989) 2 NWLR (PT 105) 558; ICNIGHT & SEARLE VS DOVE (1964) 2 ALL ER 307; CARLEN (NIG) LTD VS UNIJOS (1994) 1 NWLR (PT 323)631.
The Respondents’ reply on this issue 4 is that the ground 6 of the Appellants notice of Appeal as well as the issue 4 formulated therefrom was not in anyway canvassed in the Lower Court neither did it form part of the ratio decidendi of the judgment delivered on 12-7-2010.
Learned counsel then referred to the case of AGROCHEMICALS (NIG) LTD VS KUDU HOLD LTD (2000) 15 NWLR (PT 691) 493 AT 505 where Supreme Court held that:-
“For an issue for the determination of an appeal to be sustained, it must satisfy two conditions:-
(a) It must be formulated within the parameters of the ground of appeal and,
(b) The ground of appeal must be against the judgment of the Court against which the appeal is lodged.”
See also ZAKARI VS NIGERIAN ARMY (2012) NWLR (PT 1294) 478 AT 507) BANKOLE VS PELU (1991) 8 NWLR (PT 2110 523; SARAKI VS KOTOYE (1990) 4 NWLR (PT 143) 144; GOMWALIC VS MILITARY ADMINISTRATOR PLATEAU STATE (1998) 6 NWLR (PT 555) 640; WEMA BANK PLC VS OSILARU (2008) 10 NWLR (PT 1094) 150 AT 162.
Alternatively, the case of CARLEN (NIG) LTD VS UNIJOS (1994) 1 NWLR (PT 323)631 was relied on to submit that the said decision of the Supreme Court can be interpreted to the effect that by virtue of Section 2(1) (a)(i) (ii) and (iii), (Part ii) of the EFCC Act 2004 the Chairman EFCC may not have been conferred with the right to sue or be sued economine, but considering the nature of its functions and powers, duties and responsibilities conferred on the Chairman by the Act, the Chairman EFCC is deemed to have been given the power to sue and be sued. He also cited the cases of THOMAS VS LOCAL GOVERNMENT SERVICE BOARD (1965) 1 NMLR 310 AND WILLIS & ANOR VS ASSOCIATION OF UNIVERSITIES OF THE BRITISH COMMONWEALTH (1964) 2 ALL ER 39. PROVOST, AICE VS AMUNEKE (1991) 9 NWLR (PT 213) 49 and AFRICAN IVORY INSURANCE CO. LTD. VS COMMISSIONER FOR INSURANCE (1998) 1 NWLR (PT 532) 50 AT 57.
Furthermore, this court was urged not to allow itself to sacrifice the purity of justice on the altar of technical subterfuge because the Appellants’ argument in issue 4 is an attempt to deny the Respondents justice by challenging the inferred powers of the Chairman EFCC to sue and be sued.
In their reply brief, the Appellants counsel drew the attention of the Respondents to the fact that they applied to this court to raise and argue fresh issues on appeal and this was granted on 15-1-2014. Therefore the Respondents stance on the issue is of no moment. The record of this court indeed show that the Appellants filed a motion on notice dated and filed on 18th May, 2012 for leave of this court to raise and argue a fresh issue on Appeal and the said application was duly granted by this court on the 15th January, 2014. This put paid to the contention of the Respondents that no leave was sought and obtained before issue 4 was raised in the Appellants brief of argument as derived from ground 6 of the Notice of Appeal.
On the issue whether the Chairman EFCC can be sued as a juristic person as was done in the instant case. This indeed is an area of law that sounded recondite but there is however a reference point in a judgment of this court delivered by AYOOLA JCA (as he then was) in the case of AFRICAN IVORY INSURANCE CO. LTD VS COMMISSIONER FOR INSURANCE (1998) 1 NWLR (PT 532) 50. In the said case this court consisting of a panel of eminent and respected jurists in this Country, to wit DAHIRU MUSDAPHER, SAMSON O. UWAIFO AND E.O. AYOOLA JJCA (as they were then) observed and noted that the Commissioner for Insurance was vested with enormous powers and functions which may affect insurance companies. The plaintiffs had alleged in that case that the Commissioner threatened to penalise them as provided by Section 8 of the Insurance Decree and such penalty would cause irreparable damage to the insurers concerned. There lordships then held that in the circumstance it would be unjust to hold that the commissioner could not be sue eco nomine. It was further held that the holder of the office may change but as long as the Decree Stood as it was the office of Commissioner established by it with powers and functions that may be operated detrimentally against the interest of the plaintiffs remained. The express view of His lordships per AYOOLA JCA (as he then was) at page 57 of the report is herein below set out.
Of more relevance to the present case, as far as statement of principle is concerned, is the case of Fawehinmi v. N.B.A (supra) which contained illuminating discussion of several of the relevant authorities both local and foreign. The proposition applicable to the case at hand that can be distilled from the authorities can be shortly stated. Where a body or (office) is created by statue notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the statute after a careful and close reading of the provisions of the relevant statute. To infer a right to sue the officer or body eonomine regard may well be had to the nature of the powers and functions vested in the office or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from unavailability of means of redress should the office exercise such powers or performing such function not be subject to any kind of proceedings. On the other hand, if inability to sue in order to enforce the powers and functions ineffective a right to sue eonomine would readily be inferred. The proposition shortly stated above can be seen in operation in such cases as Kpebimoh v. The Board of Governor Western Ijaw Teachers Training College (1966) 1 NMLW 130; Thomas v. Local Government Service Board (1965) 1 ALL NLR 168 and Solicitor General Western Nigeria v. Adedoyin (1973) UILR 143 all of which have been discussed in Fawehinmi v. NBA (no.2) (supra).That proposition can no doubt be more readily applicable when the action is one such as the present one, to protect rights claimed in public law from threaten infringement. The realistic view in such a case is to make the office vested with powers and functions which may in their exercise and performance lead to such infringement amenable to legal proceedings eononime.
Flowing from the above decision, there is no doubt that the chairman EFCC is vested with enormous powers even more than that of the Commissioner referred to in the above cited case in the sense that the chairman EFCC not only has powers to determine whether a person should be arrested and detained but also whether his property should be sequestered. The powers conferred on the chairman of EFCC under the EFCC Act is not only enormous and intimidating but is constantly in direct confrontation with the fundamental human rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and this no doubt engenders every justification to hold that he can be sued eo nomine as was done in this case. In this regard I agree with the submission of the Respondents’ counsel that due to the functions, duties and powers of the chairman EFCC, under the EFCC Act 2004, this court cannot ignore the necessity of the occupier of said office being sued eo nomine. It does not however preclude the reality of the fact that it is most acceptable and realistic to sue EFCC directly.
Nonetheless I resolve this issue against the Appellant.
On the whole, this appeal succeeds in part and it is accordingly allowed in part.
Except for the award of N10 Million damages which is hereby reduced to N5 Million the judgment of the Federal High Court delivered by N.B Idris J. on 12-7-2010 is hereby affirmed. Parties to bear their costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree entirely with the judgment. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal.
By failing to attach to their counter affidavit the petition upon which the Appellants acted, Section 149(d) of the Old Evidence Act now Section 167(d) of the 2011 Act came into play. Under the subsection, the court may presume that evidence which could be and is not produced would, if produced be unfavourable to the party who withholds it. MUSA V. YERIMA (1997) 7 NWLR (Pt.511) 27 @ 49 G – H. The Appellants cannot claim that the petition against the Appellant contained allegations of the commission of a crime justifying his arrest without making available to the court the petition as an annexure to their counter affidavit to enable the court determine the issue.
I agree that the appeal succeeds in part only in respect of the amount of damages awarded. I abide by the consequential orders in the lead judgment including the order as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother Samuel Chukwudumebi Oseji JCA, afforded me the opportunity of reading the draft judgment just delivered. I agree with the reasoning and conclusion contained therein.
I also allow the appeal in part and abide by the consequential orders made therein.
Appearances
Aliyu M. Yusuf Deputy Director Prosecution EFCC with T. Arabi and T.J. Banjo For Appellant
AND
Anthony Nwogbe with A. Audu (Miss) For Respondent
