D.S.S.S, KANO & ANOR v. NNADI (2020)

D.S.S.S, KANO & ANOR v. NNADI

(2020)LCN/14779(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, November 23, 2020

CA/KN/360/2019

RATIO

JURISDICTION: DISTINCTION BETWEEN COMPLAINTS THAT ARE MATTERS OF PROCEDURAL JURISDICTION AND THOSE OF SUBSTANTIVE JURISDICTION

In Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, the Supreme Court drew a distinction between complaints that are matters of procedural jurisdiction and those that are matters of substantive jurisdiction. The Supreme Court stated that the procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction and that it is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters before it are matters of procedure regulated by procedural rules. Similar statements had been made by the Courts in Gafari Vs Johnson (1986) 5 NWLR (Pt 36) 66 at 71 and Atolagbe Vs Awuni (1997) 9 NWLR (Pt 552) 536. PER OLUMUYIWA ABIRU, J.C.A.
JURISDICTION: NATURE OF PROCEDURAL JURISDICTION

The law is that matters of procedural jurisdiction do not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at anytime – Odom Vs Peoples Democratic Party (2015) LPELR 24351 (SC), Akahall & Sons Ltd Vs NDIC (2017) 7 NWLR (Pt 1564) 194. It is matters of substantive jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction. Matters of procedural jurisdiction must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the complaint and be foreclosed from raising it again – Kwaa Vs Kwakwa 3 WACA 176, Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency supra, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. PER OLUMUYIWA ABIRU, J.C.A.
FUNDAMENTAL RIGHTS: CONCEPT OF FUNDAMENTAL RIGHTS

Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law – Igwe Vs Ezeanochie (2010) 7 NWLR (Pt 1192) 61. In the words of Jacques Maritain:
“The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. The dignity of the human persons? The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to man because of the very fact that he is a man.” (Jacques Maritain, The Rights of Man and Natural Law 65 (D. Anson trans. 1943)
Calling these guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607.
The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional, civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights – Igwe Vs Ezeanochie supra. PER OLUMUYIWA ABIRU, J.C.A.

FUNDAMENTAL RIGHTS: EFFECT OF INTERFERENCE WITH THE LIBERTY AND FREEDOM OF A PERSON

The law is that interference with the liberty and freedom of a person even for one hour is a clear violation of his fundamental rights – Gusau Vs Umezurike (2012) LPELR 8000(CA), Idjighere Vs Agbinone (2019) LPELR 46428(CA). PER OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: DUTY OF THE DEFENDANT WHERE THE ARREST AND DETENTION OF A CLAIMANT IS ADMITTED BY THE DEFENDANT

Now, the law is that where the arrest and detention of a claimant is admitted by a defendant in a fundamental rights’ action, the burden is on such defendant to justify the lawfulness of the arrest and detention – Ubani Vs Director, State Security Service & Anor (1999) 11 NWLR (Pt 625) 129, Fajemirokun Vs Commercial Bank (Credit Lyonnais) Nig. Ltd (2002) 10 NWLR (Pt 774) 95, Jim-Jaja Vs Commissioner of Police (2011) 2 NWLR (Pt 1231) 375, Obiegue Vs Attorney General, Federation (2014) 5 NWLR (Pt 1399) 120, Salami Vs Olaoye (2018) LPELR 47256(CA). PER OLUMUYIWA ABIRU, J.C.A.

FUNDAMENTAL RIGHTS: WHETHER FUNDAMENTAL RIGHTS ARE ABSOLUTE

It is correct that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342. Section 35 (1)(c) of the 1999 Constitution says that a person’s right to personal liberty can be breached upon a 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. Section 41 (2) (a) states that a person’s right to freedom of movement may be negated by imposing restrictions on his movement where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. PER OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

DEPARTMENT OF STATE SECURITY SERVICE, KANO DIRECTOR, STATE SECURITY SERVICE, KANO APPELANT(S)

And

IFEANYI NNADI RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the judgment of the Federal High Court, Kano Judicial Division in Suit No FHC/KN/CS/38/2019 delivered by Honorable Justice A. L. Allagoa on the 12th of April, 2019.

The Respondent commenced the action in the lower Court by way of a Fundamental Rights Application against one Sunday Ukachukwu Oti and the Appellants as first to the third Respondents respectively and his claims were for:
i. A declaration that the arrest and detention of the Respondent by the officers of Appellants from the 4th to 7th of March, 2019 at the instigation and prompting of the first respondent (Sunday Ukachukwu Oti) without reasonable suspicion of having committed a crime is against the Constitution of the Federal Republic of Nigeria 1999 as amended and is not justified by any law and amounts to a violation of the Respondent’s Fundamental Rights to personal liberty, freedom of movement and the Respondent is therefore entitled to damages.
ii. A declaration that the Respondent is entitled to freedom of movement and liberty and dignity

of the human person as guaranteed under the Constitution of the Federal Republic of Nigeria 1999 as amended without any interference.
iii. A declaration that the subject matter that culminated into the arrest and detention of the Respondent is completely outside the duties, functions, powers of the Appellants.
iv. A declaration that the powers, functions and duties of the Appellants applies strictly to issues of the national security of the Federal Republic of Nigeria.
v. An order of perpetual injunction restraining the Appellants either by themselves, servants, agents, privies or whosoever and howsoever from further arresting, detaining, harassing and/or intimidating the Respondent in respect of the matter.
vi. The sum of N2 Million as damages against the Appellants and Sunday Ukachukwu Oti.

The application was supported by a Statement made pursuant to the Fundamental Rights (Enforcement Procedure) Rules 2009, an affidavit of facts and a written address. The Appellants responded by filing a counter affidavit, supported by a written address.

The case of the Respondent before the lower Court was that following a

dispute between a neighbor in his mechanic shop in Sabon Gari and one Sunday Ukachukwu Oti over a stolen car, he was arrested and handcuffed by the officers of the Appellant on the 4th of March, 2019 and detained until the 7th of March, 2019 and that while in detention, he was denied access to his lawyer who came to see him. It was his case that he knew as a fact that the primary duty, function and responsibility of the Appellants is to address matters of National Security of the Federal Republic of Nigeria and not to delve into an allegation of car theft and that the actions of the officers of the Appellants violently violated his rights to personal liberty, freedom of movement and personal dignity guaranteed under the Constitution of the Federal Republic of Nigeria.

The Appellants denied the entire case of the Respondent and it was their case that they received a complaint of criminal misappropriation of a car and threat to life from one Sunday Ukachukwu Oti and pursuant to which they invited the Respondent for questioning as part of their investigative activities. They denied arresting, handcuffing and/or detaining the Respondent and it was

their case that their operative went to the shop of the Respondent to invite him and that the Respondent came to their office on his own in honor of the invitation on the 5th of March, 2019. It was their case that the Respondent was allowed to go home on bail on the same 5th of March, 2019 after some questioning and that the Respondent spent less than eight hours with them and he was not denied access to his lawyer and the lawyer was only requested to come back after they might have finished questioning the Respondent. It was their case that they only got involved in the matter because of the complaint of threat of life made against the Respondent and that after obtaining his statement and an undertaking from him not to threaten the life of the complainant again, the Respondent was released and that at no time did they get involved in the complaint on misappropriation of vehicle. They exhibited the written complaint, the statement of the Respondent, the bail papers and the undertaking of the Respondent as exhibits.

The lower Court heard the matter on the merits and it entered judgment granting the reliefs claimed by the Respondent, save for the

general damages and in respect of which it awarded the Respondent the sum of N500,000.00, as against the N2 Million claimed. In deliberating on the claims of the Respondent, the lower Court stated in the judgment thus:
“The point here is that the 2nd and 3rd Respondents cannot deny arrest and detention of the Applicant whether initiated by invitation or they went to the Applicant’s office. This is because the prima facie evidence of bail bond Exhibit SU5 is proof of arrest and detention. It also appears that the Applicant spent more than one day in the 2nd and 3rd Respondents’ custody…
In any case, once there is arrest and detention, once it is not justified, it does not matter for how long the person was detained. The question is whether the arrest and detention was lawful in the first instance. By Section 35(1)(c) of the CFRN, 1999 a person’s fundamental right to liberty can be constrained upon reasonable suspicion that a person has committed a criminal offence …
The 2nd and 3rd Respondents claim to be acting under a criminal complaint by the 1st Respondent against the Applicant for threat to life and

property and Exhibit SU1 was exhibited in their counter affidavit. However, the Applicant’s contention is that the issue of the complaint, first and foremost, relate to a civil transaction and secondly the 2nd and 3rd Respondents are not the appropriate agency to deal with such complaint.
I have looked at the body of Exhibit SU1. Clearly the 1st Respondent’s complaint shows failure to honour a contractual obligation and the 1st Respondent’s remedy will lie in civil law and not criminal law. Also, the 2nd and 3rd Respondents have no business to enforce purely civil transactions … In the light of the above, the 2nd and 3rd Respondents arrest and detention of the Applicant upon the complaint of the 1st Respondent over his vehicle held by the Applicant under a civil arrangement that it should not be sold constitutes a breach of the Applicant’s fundamental rights.
That assuming there was a complaint by the 1st Respondent that the Applicant threatened his life, is it the duty of the 2nd and 3rd Respondents to arrest and detain the Appellant with a view to investigating the matter? Straightaway, the answer is No. That

responsibility to arrest, detain and investigate rests with the Nigeria Police Force … The 2nd and 3rd Respondents – DSS has no business interfering in normal police duties. Even if the complaint relates to threat to life by one citizen to another, the police is the appropriate authority to prosecute not the DSS.
I agree with Counsel to the Applicant that the Act establishing the DSS has their primary responsibility to address issues that relate to National Security of the Federal Republic of Nigeria. The 2nd and 3rd Respondents therefore acted ultra vires their powers and consequently, they are breach of the Applicant’s fundamental right.”

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 27th of May, 2019 and containing nine grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 1st of August, 2019 and Counsel to the Respondent filed a brief of arguments dated the 10th of September, 2019 and the Respondent’s brief of arguments was deemed properly filed and served by

this Court on the 21st of October, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments.

Counsel to the Appellants distilled eight issues for determination in the appeal and these were:
i. Whether the Appellants in this case are juristic persons who can sue or be sued in the names as they appear in this case.
ii. Whether the trial Court was right to have assumed jurisdiction in the suit involving the Appellants in this case.
iii. Whether the Respondent has adduced sufficient evidence to establish his claim of being arrested and detained for three days by the Appellants to be entitled to the judgment that was entered in his favour.
iv. Whether the Appellants have violated the fundamental rights of the Respondent by inviting him to their office upon receipt of a written complaint against him.
v. Whether by the statutory powers of the Appellants they can investigate a petition of threat to life of any citizen of Nigeria.
vi. Whether the power to investigate threat to life of a citizen is exclusively that of the Nigeria Police.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

vii. Whether the entire evidence before the trial Court it was established that what the Appellants engaged in can be termed “debt recovery”.
viii. Whether the judgment of the trial Court was not against the weight of evidence.

On his part, Counsel to the Respondent distilled three issues for determination in the appeal and these are:
i. Whether the trial Court was right when it assumed jurisdiction and granted the reliefs of the Respondent.
ii. Whether the Respondent had established a case of breach of his fundamental rights by the Appellants before the lower Court.
iii. Whether the facts culminating into the arrest and detention of the Respondent was within the function of the Appellants.

Now, the complaint argued by the Appellants in the first two issues for determination formulated by them and responded to by the Respondent in his first issue for determination formulated by him is that they were not sued in their proper names as contained in the statute that set up the State Security Service. This complaint was not raised or argued before the lower Court.

In Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, the Supreme Court drew a distinction between complaints that are matters of procedural jurisdiction and those that are matters of substantive jurisdiction. The Supreme Court stated that the procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction and that it is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters before it are matters of procedure regulated by procedural rules. Similar statements had been made by the Courts in Gafari Vs Johnson (1986) 5 NWLR (Pt 36) 66 at 71 and Atolagbe Vs Awuni (1997) 9 NWLR (Pt 552) 536.
Going by the above distinction, it is obvious that the complaint of the Appellants in the first two issues for determination is a matter touching on

procedural jurisdiction, and not one of substantive jurisdiction, of the lower Court to hear the matter. It is an issue of misnomer that could have been corrected in the lower Court– Maersk Line Vs Addide Investment Ltd (2002) 11 MJSC 157, Agip (Nig) Plc Vs Ossai (2018) LRELR 44712 (CA), Upper Grace Land Vs Ipeh (2019) LPELR 47552(CA), Vik Industries Ltd Vs J. Jumac Group Ltd (2019) LPELR 48840(CA). The law is that matters of procedural jurisdiction do not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at anytime – Odom Vs Peoples Democratic Party (2015) LPELR 24351 (SC), Akahall & Sons Ltd Vs NDIC (2017) 7 NWLR (Pt 1564) 194. It is matters of substantive jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction. Matters of procedural jurisdiction must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the complaint and be foreclosed from raising it again

– Kwaa Vs Kwakwa 3 WACA 176, Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency supra, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488.
The records show that upon being served with the processes of the Respondent, the Appellants filed their response to it and they argued the matter on the merits without hinting or in any way raising the complaint of their not having been sued in their proper names. The Appellants effectively waived the complaint – Duke Vs Akpabuyo (2005) 19 NWLR (Pt 959) 130, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA). The Appellants cannot be heard to raise it in this appeal. This Court will thus discountenance the arguments of the Counsel to the parties

thereon. The first and second issues for determination formulated by Counsel to the Appellants and the first issue for determination formulated by Counsel to the Respondent together with arguments canvassed thereon are hereby struck out.

Reading through the records of appeal, particularly the processes filed by the parties before the lower Court and the records of proceedings before the lower Court, including the judgment appealed against, as well as the notice of appeal of the Appellants and the arguments contained in the briefs of arguments of the parties, it is the view of this Court that there is only one issue for determination in this appeal. It is:
Whether, on the strength of the facts and the law applicable in the circumstances of this case, the lower Court was correct when it found that the Respondent made out a credible case to entitle him to the reliefs sought and granted in his favour.

This appeal will be resolved on this sole issue for determination and all the arguments of the Counsel to the parties will be considered there under.

In arguing the issue for determination, Counsel to the Appellants stated that,

apart from making bare assertions, the Respondent failed to provide sufficient evidence to show that he was arrested and detained for three days and that, in contrast, the Appellants were categorical that the Respondent was invited to their office and that he attended on his own on the 5th of March, 2019 and was released the same day after he was questioned and that the Appellants attached documents in support of their assertions. Counsel stated that the Respondent did not say the way and manner of the purported arrest and how he was conveyed to the office of the Appellants and he did not file a further affidavit to contend the assertions of the Appellants, which were backed up with documents. Counsel stated that the Appellant had the onus of proving the fact of his arrest and detention for three days and that he failed to discharge the onus.

Counsel stated that the Appellants did not violate the fundamental rights of the Respondent by inviting him to their office to answer a written complaint against him and that Section 35(1)(c) of Constitution of the Federal Republic of Nigeria empowers the Appellant, and indeed other security agencies, to not only

invite, but also to arrest any person upon reasonable suspicion that such a person has committed a criminal offence, even in the absence of a petition. Counsel stated that where an allegation of a crime is made, a crucial part of the investigation is the invitation extended to the alleged offender to ascertain whether the allegation against him is true or not and that this was what happened in this case.

Counsel reproduced the provision the National Security Agencies Act which stipulated the responsibilities of the Appellants and the SSS Instrument No 1 of 1999 made pursuant thereto by the then Head of State and stated that the power given to the Appellants to prevent, detect and investigate threat to law and order included the power to investigate all complaints to threat to life of every Nigerian citizen. Counsel stated that the term “internal security” with which the Appellants are charged to maintain encompasses any complaint of violation of any law of the country and that the Appellants have the duty to protect life and property and provide a peaceful atmosphere for nationals of this country to pursue their lawful activities.

Counsel stated that it was not the exclusive preserve of the Nigerian Police Force to investigate allegations of threats to life and that as such the Appellants were acting within their powers when they invited the Respondents upon the complaint of threat to life. Counsel stated that the evidence before the lower Court showed that the Appellants did not investigate the complaint of a missing car and that the judgment of the lower Court was against the weight of evidence presented by the parties.
Counsel concluded his submissions by urging the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.

In his response arguments, Counsel to the Respondent reiterated the findings of the lower Court that the bail bond, Exhibit SU5, attached to the counter affidavit of the Appellants was evidence of arrest and detention of the Respondent and that the complaint in the letter, SU1, was essentially a civil complaint and which was outside the purview of the powers of the Appellants and stated that, from these, the affidavit evidence before the lower Court supported the case of the Respondent on breach of fundamental

rights and he referred to the cases of Onah Vs Okenwa (2010) 7 NWLR (Pt 1194) 512, Mbang Vs Janet (2014) LPELR 22656(CA), Oceanic Securities Ltd Vs Balogun (2012) All FWLR (Pt 643) 1913. Counsel re-asserted that the letter of complaint, Exhibit SU1, though headed “Threat to Life”, did not contain any allegation of threat to life and that, even if did, it is the Nigerian Police that is empowered to treat such an allegation and not the Appellants. Counsel referred to and reproduced the provisions of the National Security Agencies Act and stated that the powers and responsibilities of the Appellants did not include delving into the complaints between Nigerian citizens on threat to life.
Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

As stated earlier, this action was commenced in the lower Court by an application for the enforcement of the fundamental rights of the Respondent.

Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In

Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law – Igwe Vs Ezeanochie (2010) 7 NWLR (Pt 1192) 61. In the words of Jacques Maritain:
“The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. The dignity of the human persons? The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to man because of the very fact that he is a man.” (Jacques Maritain, The Rights of Man and Natural Law 65 (D. Anson trans. 1943)
Calling these guarantees “rights” suggests that they

attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607.
The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it

enshrines are largely the traditional, civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights – Igwe Vs Ezeanochie supra. The Appellant predicated his application before the lower Court on his rights to personal liberty, personal dignity and freedom of movement which are guaranteed under the provisions of Sections 35 and 41 of the 1999 Constitution.

From the affidavit of the parties, and as rightly found by the lower Court, it was not in doubt that the Appellants arrested and detained the Respondent; this was the reason why the Respondent had to be granted bail in order for him to leave the custody of the Appellants. Thus, it was not in contest between the parties that the Appellants interfered with the personal liberty and freedom of movement of the Respondent. This point was succinctly made by this Court in the case of Anufi Vs Economic and Financial Crimes Commission (2018) LPELR 43521(CA) when it stated thus:
“…the same 1st respondent admitted; at least, that after appellant’s interrogation, he was granted bail and, upon his failure to meet the terms of his bail, detained

overnight. The appellant on his part denied it and rather claims that he was denied bail by 1st respondent on the day of his arrest and was only granted it a day after. The point I am trying to make is that there is consensus among parties, at least, that upon appellant’s invitation and interrogation in its office by 1st respondent, it deemed it necessary to impose bail conditions for his release and he was detained overnight; their disagreement being only as to the reason for appellant’s detention overnight in 1st respondent’s custody.
Now, the fact that there was need to talk about bail and for same to be granted only upon conditions, which conditions they also claim appellant could not even meet till the following day, suggests on its own that appellant’s liberty was restrained by 1st respondent … Bail, after all, is ‘the release from custody of officers of the law or the Court of an accused or convicted person, who undertakes to subsequently surrender to custody.’ … So the deprivation of appellant’s liberty is settled, at least.”
It is irrelevant whether the arrest and detention of the Respondent was for three days, as

alleged by the Respondent or eight hours, as asserted by the Appellants. The law is that interference with the liberty and freedom of a person even for one hour is a clear violation of his fundamental rights – Gusau Vs Umezurike (2012) LPELR 8000(CA), Idjighere Vs Agbinone (2019) LPELR 46428(CA).

there are grounds for doing so – Dokubo Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342. Section 35 (1)(c) of the 1999 Constitution says that a person’s right to personal liberty can be breached upon a 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. Section 41 (2) (a) states that a person’s right to freedom of movement may be negated by imposing restrictions on his movement where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.

The Appellants sought to justify the arrest and detention of the Respondent under the provisions of Section 35(1)(c) of the 1999 Constitution. Looking at the provisions of Section 35(1)(c) of the Constitution, it is clear that for a

justification of arrest and detention of a person to fly it must have been done (a) for the purpose of bringing him before a Court, or (b) upon reasonable suspicion of his having committed a criminal offence, or (c) when it is reasonably necessary to prevent his committing a criminal offence – Jim Jaja Vs Commissioner of Police supra, Anufi Vs Economic and Financial Crimes Commission supra. The Appellants contended that they arrested and detained the Respondent upon reasonable suspicion of his having committed a criminal offence and/or that it was reasonably necessary to prevent his committing a criminal offence. It was their case that they acted on the strength of a written complaint against the Respondent received from one Sunday Ukachukwu Oti alleging threat to his life and in the exercise of their power of investigation.
The lower Court rejected the contention of the Appellants on the grounds that there was not reasonable ground for suspecting that the Respondent committed an offence and that the Appellants did not possess the power of investigation, in the circumstances of this case. The first question of reasonable grounds for suspicion

must turn on the meaning and intent of the written complaint upon which the Appellants based their action. The written complaint was attached as Exhibit SU1 to the processes filed by the Appellants and it read, in its main parts, thus:
“THREAT TO MY LIFE OVER PROPERTY
I am Ukachukwu I. Oti, the general manager of the above mentioned enterprises write to lodge a complaint on threat to my life by Ifeanyi, a mechanic at Enugu Road by Court Road, Kano over my property (Toyota Corolla LE 2003 Model).
However, on 28 December, 2018, I gave Ambrus, also a mechanic my car to handover to Ifeanyi Nnadi in order to sell for me at the cost of One Million Three Hundred Thousand Naira Only (N1,300,000.00). Ambrus called me on 1st January, 2019 that someone price the car One Million, One Hundred Thousand Naira Only (N1,100,000.00) but I refused with such price and also asked him to give the car to Ifeanyi to sale the car for me.
On coming back from journey on 15th January, 2019, I asked Ambrus of the whereabout of my car, he claimed to give it to Ifeanyi while Ifeanyi did not agree receiving the car from Ambrus.

Furthermore, both of them are threatening to deal with me if I dare asked them about the car again.
I am please urging your respectful organization to question them for such threat and also to collect my car back from them …”
The law is that in determining whether the contents of a petition are criminal in nature, the Court does not rely on the interpretation placed on the contents of the petition by the parties but on the contents of the petition itself – Nnamdi Azikiwe University Vs Nwafor (1999) 1 NWLR (Pt 585) 116. Further, it is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them – The Northern Assurance Co. Ltd Vs Wuraola (1969) LPELR 25562(SC), Ogbunyiya Vs Okudo (1979) 6-9 SC 32, Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385.
A suspicion of commission of a crime will be reasonable where it is not whimsical but based on sound judgment and it is fair and

sensible. Reasonable suspicion has been defined as a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity – Enanuga Vs Sampson (2012) LPELR 8487(CA), Director of State Security Service Vs Ibrahim (2016) LPELR 41618(CA). In Ubochi Vs Ekpo (2014) LPELR 23523(CA), this Court held that “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective mind that the person concerned may have committed an offence or is likely to commit an offence.” Looking at the contents of the written complaint, it is clear to anyone with sound judgment and fair and sensible mind that it does not contain any coordinated allegation of facts on commission of a crime or attempt to commit a crime. Unless to a clueless and demented mind, it cannot generate a reasonable suspicion of the commission of a crime and it cannot make the arrest and detention of a person a reasonable option to prevent the commission of a crime. It was not a valid complaint of threat to life and it was, at best, a complaint about a commercial transaction on sale of a car that

went sour. The finding of the lower Court that there was no criminal allegation in the complaint was on sound and firm ground.

Going forward and assuming that there was indeed a valid complaint of threat to life, the next question is whether the Appellant possessed the jurisdiction and power to investigate the complaint. The answer to this question must turn on the statutes governing the operations of the Appellants. Section 2(3) of the National Security Agencies Act, Cap N74, Laws of the Federation of Nigeria 2004 provides:
“The State Security Service shall be charged with responsibility for:
a. The prevention and detection within Nigeria of any crime against the internal security of Nigeria.
b. The protection and preservation of all non-military classified matters concerning the internal security of Nigeria.
c. Such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.”
The Act proceeds in its Section 6 to say that “the President may by an instrument under his hand make provisions” regarding

the functions of the State Security Service. In the exercise of this power, the then Head of State, General AbdulSalami Alhaji Abubakar, issued the SSS Instrument No 1 of 1999 which provide, in part, thus:
“1. Without prejudice to the generality of the provisions relating to the general duties of the State Security Service set out in Section 2(3) of the Act, the objective of the State Security Service shall be the protection and preservation of Nigeria’s internal security and economy against acts of subversion, sabotage and other threats to the stability of Nigeria.
2(1) The State Security Service shall in pursuance of its objective set out in Section 1 of this Instrument, perform the following functions:
i. Prevention, detection and investigation of
a. Threat of espionage
b. Threat of subversion
c. Threat of sabotage
d. Economic crimes of national security dimension
e. Terrorist activities
f. Separatist agitations and inter-group conflicts
g. Threats to law and order.”
These provisions vis-à-vis the power of the Appellant to detect and investigate criminal

offences have been the subject of interpretation by this Court and the position of the Court is that the provisions empower the Appellants to investigate reports of armed robbery, kidnapping and threat to life, and that they exercise the power in conjunction with the Police and other relevant security agencies – Ebenezer Vs The State (2014) LPELR 23791(CA) and Haruna Vs State (2015) LPELR 45742(CA). These decisions are binding on this Court under the principle of stare decisis and this Court cannot depart from them without just cause. The Respondent has not given this Court any reason or basis to depart from the decisions. Thus, the finding of the lower Court that the Appellants did not have the power to investigate a report of threat to life is incorrect and it is hereby set aside.
With the finding of the Court that the complaint upon which the Appellants acted in arresting and detaining the Respondent did not contain an articulated allegation of threat to life to elicit a reasonable suspicion of commission of a crime, the arrest and detention of the Respondent was unjustified and this appeal must fail. It is hereby dismissed. The judgment of the

Federal High Court, Kano Judicial Division in Suit No FHC/KN/CS/38/2019 delivered by Honorable Justice A. L. Allagoa on the 12th of April, 2019 is hereby affirmed. The parties shall bear their respective costs of the Appeal. These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered and I agree with his reasoning and conclusion. In the Judgment of the trial Court, at page 58 of the record, the Judge stated that “The question is whether the arrest and detention was lawful in the 1st instance. By Section of the Constitution of the Federal Republic of Nigeria 1999, a person’s fundamental Right to liberty can be constrained upon reasonable suspicion that a person has committed a criminal offence…” He went on at page 59 of the record to state that “The 2nd and 3rd Respondents claim to be acting under a criminal complaint by the 1st Respondent against the Applicant for threat to life and property and Exhibit SU1 was exhibited in their counter affidavit”. Then he made a finding that –
“I have looked at the body of Exhibit SU1.

Clearly the 1st Respondent’s complain shows failure to honour a contractual obligation and the 1st Respondent’s remedy will lie in civil law and not criminal law. Also the 2nd and Respondents have no business to enforce purely civil transaction…”

These are specific findings of facts by the trial Court. I have looked at the grounds of appeal. None of them challenges the finding that it was a civil complaint, not a criminal complaint regarding threat to life. So even though the Appellants have the power to investigate complaints of threat to life, in this instant, the complaint was not that of threat to life. Without a ground of appeal challenging this finding, the Appellants cannot be heard to argue that the arrest and detention of the Respondent was lawful. They are deemed to have conceded the findings which binds them and this Court – SENATOR ANYANWU VS. OGUNEWE (2014) LPELR – 22184 (SC); UNITY BANK VS. BOUARI (2008) 7 NWLR (PT. 1086) 372 AT 400; OPARA VS. DOWEL SCHLUMBERGER (NIG.) LTD. (2006) LPELR-2746 SC AND NDIWE VS. OKOCHA (1992) 7 NWLR (PT. 52) 129 AT 139 -140, which also held that finding of fact on a specific issue can only be challenged by a specific

ground of appeal as an Omnibus ground cannot suffice.

In the premise, and on the fuller and well articulated reasoning in the leading Judgment, I also find no merit in this appeal and I dismiss it. I affirm the Judgment of the Federal High Court Kano delivered on 12th April 2019 in FHC/KN/CS/38/2019.

AMINA AUDI WAMBAI, J.C.A.: My learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA obliged me a copy of the draft judgment. I have read through the reasoning therein and agree absolutely that the Appellant does not possess the power to investigate the nature of the complaint lodged against the Respondent. The lower Court was therefore right in holding that the arrest and detention of the Respondent was unjustified.

I too dismiss this appeal as lacking in merit and affirm the judgment of the lower Court in Suit No. FHC/KN/CS/38/2019 delivered on 12/04/2019 by Hon. Justice A.I Allagoa.

Appearances:

B. Bulus For Appellant(s)

Ibrahim Isah Wangida For Respondent(s)