ECONOMIC AND FINANCIAL CRIMES COMMISSION v. ABIODUN AGBELE
(2018)LCN/12454(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2018
CA/A/467/M/2016
RATIO
DAMAGES: AGGRAVATED DAMAGES
“I am satisfied in line with the decision of the Apex Court in the case of Odogu vs. AG Federation (1996) 6 NWLR (pt. 456) 511, that:
‘aggravated damages where pleaded and proved, it ought to be borne in mind that exemplary damages are recoverable if the plaintiff is the victim of the punishable behaviour of the defendant…the means of the parties should be considered.'” PER HAMMA AKAWU BARKA, J.C.A.
JURISDICTION: WHETHER THE STATE AND FEDERAL COURT HAS JURISDICTION TO ENTERTAIN FUNDAMENTAL RIGHTS ACTION
“I am inclined to agree with the learned senior counsel that both Courts i.e. State and Federal have concurrent jurisdiction to entertain fundamental rights action under Section 46 (1) of the CFRN 1999 as amended. The cases of Jack vs. Unam (2004) (supra), Adetona vs. Igele General Enterprises Ltd (supra), Seed Vest Microfinance Bank PLC vs. Ogunsina & Ors (2016) LPELR 41346 (CA) and Muse vs. EFCC (supra) remains good law. In essence, the action of the respondent at the Court below, being one founded on the enforcement of his fundamental right does not fall within the enumerated items under Section 251 (1) over which the Federal High Court has exclusive jurisdiction. This issue is resolved against the appellant.” PER HAMMA AKAWU BARKA, J.C.A.
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGOJustice of The Court of Appeal of Nigeria
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSIONAppellant(s)
AND
ABIODUN AGBELERespondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The facts generating the instant appeal as can be gleaned from the records do not appear to be in contest. The appellant, the Economic and Financial Crimes Commission is an agency of the Federal Government established by the EFCC Act of 2004; vested with investigatory and prosecutorial powers with respect to all crimes connected with or related to economic and financial crimes; and presumably acting under such powers, appellant arrested the respondent at the Park View Estate Lagos, on the 27th of June, 2016 on the suspicion of having committed an offence. On being arrested, respondent was taken to the Lagos office of the EFCC (appellants) where he volunteered two statements.
Even though appellants granted the respondent administrative bail, it is evident that the respondent initially failed to meet up with the stringent conditions attached thereto. Further to that, appellants approached the Lagos state Magistrate Court 5, located at Ogba-Ikeja, where it obtained an order permitting it (appellants) to remand the respondent in her custody for 14 days, up to the 14th of July, 2016.
Thereafter, and on the 1st of July, 2016, the respondent was transferred to its head office in Abuja.
The respondent was kept in the custody of the appellants for a period upward of thirteen days, and upon being served the Originating Motion on Notice on the 11/07/2016 and the 12/07/2016 by the respondents, further obtained another remand warrant against the respondent from the Chief Magistrate Court, Wuse ll for the remand of the respondent in their custody to the 1st of August, 2016.
Consequent on the above, respondent initiated an action for the enforcement of his fundamental rights against the appellant in accordance with the provisions of the Constitution of the Federal Republic of Nigeria 1999, (as amended), and the Fundamental Rights Enforcement Procedure Rules, 2009.
By the aforesaid application dated and filed on the 11th of July, 2016, the respondent sought for the following reliefs:
1. A DECLARATION that the arrest, detention and continued detention of the Applicant from 27th June, 2016 till date, by the operatives of the respondent, without being given any reason for the continued detention of the applicant, and without arraigning him before a Court of competent jurisdiction, for any known offence, is illegal, wrongful, unlawful and constitutes a blatant violation of his fundamental rights as enshrined in Sections 35 (1), (3), (4) and 41 (1) of the 1999 Constitution of the Federal Republic of Nigeria as altered, Sections 1 (1), (2) and 30 (1), (2) and (3) of the Administration of Criminal Justice Act, 2015, and Articles 6 and 12 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act Cap A9 Laws of the Federation of Nigeria, 2004.
2. A DECLARATION that the continued detention of the applicant from 27th June, 2016 till date, by the operatives of the respondent, without being given any reason for the continued detention of the applicant, and without arraigning him before a Court of competent jurisdiction for any known offence, is illegal, wrongful, unlawful and constitutes a blatant violation of his fundamental rights as enshrined in Sections 35 (1), (3), (4), and 41 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as altered, Sections 1 (1), (2), and 30 (1), (2), 32 (1), (2) and (3) of the Administration of Criminal Justice Act 2015 and Articles 6 and 12 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act Cap A9 Laws of the Federation of Nigeria, 2004.
3. A DECLARATION that the applicant is entitled to a public apology and adequate compensation from the respondent as provided for in Sections 35 (6) and 46 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as altered, Sections 314 (1) and 323 (1), (2) of the Administration of Criminal Justice Act, 2015, for the blatant violation of the appellant’s fundamental rights without following the due process of law.
4. AN ORDER OF THIS HONOURABLE COURT directing the respondent to release forthwith, the applicant, his personal effects, documents and properties which were illegally, wrongfully and unlawfully seized from him without any warrant, during his arrest and continued detention, by operatives of the respondent, since 27th June, 2016, till date.
5. AN ORDER granting bail to the applicant in self-recognizance or in the most liberal terms as this honourable Court may deem fit to make in the peculiar circumstances of this case.
6. AN ORDER OF THIS HONOURABLE COURT directing the respondent to tender a public apology and pay adequate compensation to the applicant for the blatant violation of the applicant’s fundamental rights without following the due process of law.
7. AN ORDER directing the respondent to pay the applicant the sum of N500,000,000.00 (Five Hundred Million Naira) only as exemplary damages for the wanton and grave violation.
8. AN ORDER OF THIS HONOURABLE COURT restraining the respondent, whether itself, its agents, employees, operatives, detectives, servants, privies and investigating officer(s), or howsoever and by whatever name called, from applying to the Magistrate Court or any Court, for extension or renewal of the Remand Order, without first arraigning the Applicant before a Court of competent jurisdiction, for possible trial.
9. AN ORDER of perpetual injunction restraining the respondent, whether by themselves, their agents, employees, operatives, detectives, servants, privies and investigating officer(s), or howsoever and by whatever name called, from further inviting, arresting or detaining and keeping in their custody, the applicant min relation to the same frivolous allegations against the applicant, but which he knows nothing about, or on the same facts of similar facts, or facts to the like effect, without first arraigning him before a Court of competent jurisdiction.
10. AND FOR SUCH FURTHER OR OTHER ORDERS as the honourable Court may deem fit to make in the circumstance.
In support of the application, the applicant filed a statement setting out the facts, the reliefs sought, and the grounds upon which the reliefs were sought, and an affidavit of thirty-three (33) paragraphs, to which one (1) document was attached as exhibit. Also filed alongside the application is an affidavit of Urgency deposed to on 11/07/2016, containing nine (9) paragraphs as well as the applicant?s learned senior counsel?s written address of legal arguments to further support the application.
Upon being served with the application on 12/07/2016, the respondent filed a counter affidavit on 15/07/2016, containing thirty-one (31) main paragraphs, to which some documents were annexed as exhibits. Accompanying the counter affidavit is the respondent’s learned counsel’s written submissions in opposition to the application.
The trial Court considered the affidavit evidence, as well as the written addresses laid before it, and in a considered judgment delivered on the 21st of July, 2016, concluded that:
1. It is hereby declared that the continued detention of the applicant by the respondent in the custody of her Abuja office from 1st July, 2016, till date, without being charged to Court for any criminal offence and without any valid order of court, is illegal, wrongful, unlawful and constitutes a blatant violation of his fundamental right to personal liberty preserved by Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).
2. The respondent is hereby ordered to pay to the applicant the sum of N5,000,000.00 (Five Million Naira) only as token compensation for violation of his fundamental right to personal liberty afore declared.
3. The applicant is hereby admitted to bail in the sum of N50,000,000.00 (Fifty Million Naira) only with one surety in the like sum. The surety shall either be a public officer of at least the cadre of a Director in the employment of the Federal Government of Nigeria or the Federal Capital Territory Administration or any of their agencies; and shall provide verifiable evidence of his/her residence within the Federal Capital Territory; or alternatively the surety shall be a responsible Nigerian ordinarily resident within the Federal Capital Territory, with verifiable evidence of holding of legal title to any landed property with the Abuja Municipal and Metropolitan Area Council; and evidence of payment of tax in the last three years as at when due. Either way, the surety shall depose to an affidavit of means. Furthermore, the applicant shall deposit his international passport and any other international travelling documents with the office of the respondent, which documents shall be released to him in the event that the respondent elects not to charge him to Court within twenty one (21) days from today.
4. The respondent is hereby further ordered to release all personal effects, documents and properties seized from the applicant to him within twenty one (21) days from today, in the event that the he is not charged to Court.
5. Reliefs 1, 8 and 9 are inappropriate and are accordingly refused.?
Dissatisfied with the judgment of the lower Court, appellants appealed the said decision by filing a Notice of Appeal on the 25th of July 2016, predicated on seven grounds.
When the records of appeal were compiled and transmitted to this Court on the 13/11/2017 and deemed duly transmitted on the same date, parties proceeded to file in briefs of argument.
The appellant’s brief dated the 14th of November 2017, was filed on the 16th November, 2017. Upon being served the appellant’s brief, the respondents filed a respondent’s brief dated the 23rd of January, 2018 on the same date.
When this appeal eventually came up for hearing on the 10/4/18, parties identified and adopted their respective briefs. While appellant’s counsel urged the Court to allow the appeal and to set aside the decision of the lower Court, the respondents are of the opinion that the appeal be dismissed and the trial Court’s decision be affirmed.
In the appellant’s brief settled by Andrew A. Ahoja of learned counsel for the appellants, three issues were identified therein in resolving this appeal in the following manner:
1. Whether the trial Court had jurisdiction to entertain the suit in view of Sections 46 (1) and 251 (1) (r) of the Constitution of the Federal Republic of Nigeria 1999.
2. Whether the trial Court was right when it held that the appellants were in violation of the respondent’s fundamental right to personal liberty, and dignity of his person.
3. Assuming without conceding that the trial Court was right in holding that the appellant was in violation of the respondent’s fundamental right to personal liberty and dignity of his person; whether the award of aggravated damages of N5,000,000.00 (Five Million Naira) against the appellant was not excessive considering the entire circumstances of the case.
For the respondent, and in the brief settled by Chief Mike A. A. Ozekhome (SAN) three issues were also formulated for the determination of the appeal;
1. Whether the trial Court had jurisdiction to entertain the suit in view of Sections 46 (1) and 251 (1) (r) of the Constitution of the Federal Republic of Nigeria 1999.
2. Whether the trial Court was right when it held that the appellants were in violation of the respondent’s fundamental right to personal liberty, and dignity of his person.
3. Assuming without conceding that the trial Court was right in holding that the appellant was in violation of the respondent’s fundamental right to personal liberty and dignity of his person; whether the award of aggravated damages of N5,000,000.00 (Five Million Naira) against the appellant was not excessive considering the entire circumstances of the case.
Apparently and upon close examination of the issues proffered, it is clear that respondents had adopted the issues formulated by the appellants. I therefore adopt the issues formulated by the appellants and adopted by the respondents in the determination of this appeal, considering the issues seriatim.
Issue One
Whether the trial Court had jurisdiction to entertain the suit in view of Sections 46(1) and 251(1) (r) of the Constitution of the Federal Republic of Nigeria 1999.
The contention of the learned counsel for the appellant with regards to this issue is that the lower Court lacked the jurisdiction to try the case leading to this appeal. He made reference to the cases of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341, Galadima vs. Tambai (2000) FWLR (pt. 14) 2369 and Dangana vs. Usman (2012) All FWLR (pt. 627) 612 at 638 on the conditions which must exist in giving a Court the requisite jurisdiction to try a case. He submitted also that in determining whether a Court has jurisdiction or not, it is the demand by the plaintiff in the Originating process that the Court should consider.
He argued that the alleged infringement of the respondent?s fundamental rights is against an agency of the Federal Government, and as such jurisdiction on same is not within the High Court of the F.C.T.
He further referred to Sections 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, and the cases of Jack vs. Unam (2004) 5 NWLR (pt. 865) 208 at 213, and Adetona vs. Igele General Enterprises Ltd. (2011) All FWLR (pt. 569) 1025 at 1052 and argued that though the High Court of a State, High Court of the Federal Capital Territory and the Federal High Court have concurrent jurisdiction on fundamental right matters, their respective jurisdiction thereto is limited to fundamental rights matters arising from civil cases and matters in respect of which jurisdiction has been conferred on them by the Constitution of the Federal Republic of Nigeria 1999.
He submits that the High Court of the F.C.T, not being a Federal High Court lacked the jurisdiction to entertain the respondent’s suit by virtue of Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria although it was an application for the enforcement of fundamental human rights.
He also alluded to the holding in the case of the DG, SSS vs. Ojukwu (2006) 13 NWLR (pt. 998) 575 at 586-587, where the Court held that:
“In the instant case, the Appellant, 2nd and 3rd Respondents are agents of the Federal Government. The reliefs being claimed by the 1st Respondent against the Appellant, 2nd and 3rd respondents are for declarations affecting the administrative actions or decisions of the Federal Government agencies, even though it was called violation of Fundamental Human Right. Therefore the action brought before the lower Court by the 1st Respondent fell squarely within the provision of Section 251 (1) (q), (r) and (s) of the 1999 Constitution of the Federal Republic of Nigeria.
The section has completely taken away the jurisdiction of the State High Court and conferred same exclusively on the Federal High Court in respect of actions in which the Federal Government or any of its agencies is a party.”
He maintains that the appellant being an agency of the Federal Government, and the suit being a challenge to the validity of the actions of the appellant, brings it within the exclusive jurisdiction of the Federal High Court and the High Court of the F.C.T bereft of jurisdiction to hear the suit.
In response, Chief Mike A. A. Ozekhome (SAN) for the respondent, agreed with the conditions enunciated in the case of Madukolu vs. Nkemdilim (supra) giving a Court the jurisdiction to determine a suit before it. He posits that the application by the respondents before the lower Court, met the stated conditions as set out in African Petroleum Plc. vs. Akinnawo (2012) 4 NWLR (pt. 1289) 100 at 103 and the celebrated case of Madukolu vs. Nkemdilim (supra).
He submits that the respondent?s action against the appellant was strictly for the enforcement of fundamental right and the argument of the appellant in that regard misleading, and misconceived.
He argued that both the High Court and the Federal High Court as well as the High Court of the F.C.T have equal rights to entertain fundamental rights’ enforcement application. Notwithstanding that the fundamental rights’ action is against an agency of the Federal Government. He alluded to the provisions of Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria, submitting that fundamental rights’ actions can be challenged in both the State High Court and the Federal High Court by virtue of Section 46 (1) of the Constitution. He also called in aid the decisions of Jack vs. Unam (supra) and Adetona vs. Igele General Enterprises Ltd. (2011) All FWLR (pt. 569) 1025 at 1052 earlier cited by the appellant.
He also referred to the case of Seed Vest Microfinance Bank Plc. vs. Ogunsina & Ors. (2016) LPELR-41346 CA and further commended to this Court the decision in Muse vs. EFCC (2015) 2 NWLR (pt. 1443) 237 CA, which endorsed the position that both the Federal High Court and the State High Courts have concurrent jurisdiction to hear and determine fundamental rights issue by virtue of Section 46 (1) of the 1999 Constitution.
He also argued that there are no features in the case ousting the jurisdiction of the High Court of the F.C.T from hearing and determining the action against the appellant.
The learned silk also referred to the provisions of Section 251 (1) (r) of 1999 Constitution of the Federal Republic of Nigeria as altered and submitted that the action before the Court below was initiated strictly to secure the respondent’s fundamental rights to his personal liberty and dignity of his person which does not fall within Section 251 (1) (r) (supra) maintaining that the pith and substance of the respondent’s action before the lower Court was the enforcement of the respondent’s fundamental rights pursuant to Section 41 (2) of Constitution of the Federal Republic of Nigeria 1999 as altered and Section 46 (1) of the same Constitution. He also referred to the case of Wema Securities and Finance Plc. vs. Nigeria Agricultural Insurance Corp. (2015) LPELR-SC 177/2006, and drew the Court’s attention to its holding to the effect that:
‘In my humble view, while it rightly found that the respondent is an agency of the Federal Government, FMBN v Olloh (supra) Idoniboye-Obu v N.N.P.C. (supra); its conclusion that the mere presence of that agency of the Federal Government robbed the trial Court of jurisdiction must rankle all liberal constitutional jurisprudents and judicial exegetes.’
He posits that the decision of the Supreme Court in Wema Securities and Finance Plc. vs. Nigeria Agricultural Insurance Corp. (supra) is the recent decision on the issue, and thereby enjoined the Court to follow the decision.
My understanding of the grouse of the appellant, is that the trial High Court of the Federal Capital Territory Abuja, lacked the jurisdictional competence to hear and to determine the respondents suit filed before it, and thereby gave its decision without jurisdiction.
Understandably, the appeal calls to question the proper interpretation or meaning of Section 251 (1) vis a vis the provisions of Section 46 (1) of the Constitution of the Federal Republic of Nigeria. There is no dispute as to the status of the appellant being a federal government agency, nor are the facts generating the appeal in dispute.
It has been asked before whether in the circumstance of the present case, the High Court, and in our case the FCT High Court had the vires to entertain the claim before it. In Muse vs. EFCC (2015) 2 NWLR (pt. 1443) 237 @ 263, this Court agreed with the appellant therein that the High Court of Lagos State had the jurisdiction to entertain the action for the enforcement of the appellants fundamental right to fair hearing against the respondents, thus setting aside the lower Court’s ruling declining jurisdiction. In the more recent case of John Shoy Int?l Ltd vs. FHA (2017) ALL FWLR (pt. 892) 984, the Apex Court further endorsed its decision on the issue in the case of Wema Securities & Finance Plc vs. NAIC (supra). Therein, Kekere-Ekun JSC, opined that:
‘…the Court below placed considerable reliance on the decision of this Court in NEPA vs. Edegbero (2002) 18 NWLR (pt. 798) 79 @ 95 to the effect that where the Court below placed considerable reliance on the decision of this Court in NEPA vs. Edegbero (2002) 18 NWLR (Pt. 798) 79 at 95 E-F to the effect that where the Federal Government or any of its agencies is a party in a cause or matter, only the Federal High Court by virtue of Section 230(1)(p), (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1979 now Section 251(1)(p), (q) and (r) of the Constitution of the Federal Republic, 1999 (as amended) would have jurisdiction to hear the case, notwithstanding the nature of the claim in the action.”
However, as observed by my learned, Nweze JSC in a recent decision of this Court in WEMA Securities & Finance Plc. vs. Nigeria Agricultural Insurance Corporation (2015) 6-7 SC (Pt. IV) 163 at 200-210, the position of the law is that when considering the jurisdiction of the Federal High Court where an agency of the Federal Government is a party, both the status of the parties and the nature of the subject matter in dispute would be considered. See also Obiuweubi vs. C.B.N. (2011) All FWLR (Pt. 575) 208 (2011) 17 NWLR (Pt. 1247) 465, 515 B-C; Kakih vs. P.D.P. (2014) 15 NWLR (Pt. 1430) 374 at 414 F-G. In Oloruntoba-Oju vs. Abdul-Raheem (2009) All FWLR (Pt. 497) 1 (2009) 5-6 SC (Pt. II) 57 at 88 lines 23-29.
And reemphasizing the position taken by the apex Court in the case Wema Securities (supra, Nweze JSC, reiterated the point that:
‘The Court of Appeal (hereinafter referred to as the lower Court) evidence took a narrow view of the provisions of Section 230(1)(p), (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1979 (now, Section (251)(1)(p), (q) and (r) of the extant Constitution. In its view, irrespective of the subject matter, once one of the parties in an action is the Federal Government or any of its agencies, the matter falls within the exclusive jurisdiction of the Federal High Court.
My Lords, I need not belabour this issue any longer Speaking for this Court, in the unanimous decision inWema Securities & Finance Plc vs. NAIC (2015) 6-7 SC (Pt. IV) 16, 200-210, I explained that:
Section 251(1) (supra) now delineates the jurisdiction of that Court (that is, the Federal High Court), I.N.E.C vs. Musa (2003) FWLR (Pt. 145) 729, (2003) 3 NWLR (Pt. 806) 72; N.N.P.C vs. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211, (2013) LPELR 2034 (SC) 14-19, paragraphs E-G; Ladoja vs. Independent National Electoral Commission (2007) All FWLR (Pt. 377) 934, (2007) 40 WRN 1; and circumscribes it (the said jurisdiction) to only eighteen (18) items, Adetona vs. Igele General Ent. Ltd. (2011) All FWLR (Pt. 569) 1025. (2011) LPELR – 159 (SC) 47-53, paragraphs G-B; Onuorah vs. KRPC Co. Ltd; Gafar vs. Government of Kwara State (2007) All FWLR (Pt. 360) 1415, (2007) 4 NWLR (Pt. 1024) 375; P & C.H.S. Co Ltd. vs. MIGFO (Nig.) Ltd. (2012) All FWLR (Pt. 642) 1615, (2012) All FWLR (Pt. 1333) 555, (2012) LPELR ? 9725 (SC); Olutola vs. University of Ilorin (2004) 18 NWLR (Pt. 905) 416, 462, (2005) All FWLR (Pt. 245) 1151. Such matters are exclusively reserved for the Federal High Court, Adetona & Ors. Vs. Igele Gen. Ent.
In effect, the draft person deliberately itemised the matter which are intended to be under the exclusive jurisdiction of that Court, Onuorah vs. K.P.R.C Ltd. at 1364. Simple put therefore, that Court is a Court of enumerated jurisdiction and a fortiori, its exclusive jurisdiction is expressly tied to those items enumerated thereunder, NNPC and Ors. vs. Orhiowasele & Ors. at 14-19, paragraphs E-G; Onuorah vs. K.P.R.C. Ltd. As such in the exercise of its said exclusive jurisdiction, that Court (the Federal High Court) can only orbit within the universe of those enumerated issues and to other as may be conferred upon it by an Act of the National Assembly, Gassol vs. Tutare (2013) LPELR 20232 (SC) 39, paragraph B-F; Omnia Nigeria Ltd. vs. Dyktrade Ltd. (2007) All FWLR (Pt. 394) 201, (2007) 15 NWLR (Pt. 1058) 576, 603-604.
Now, from a conspectus of recent decisions it would be correct to assert that this Court has now taken the position that in considering the issue of the jurisdiction of the Federal High Court under Section 251(1)(supra), both the status of the parties (that is, whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in the said section) have to be looked at, Obiuweubi vs. CBN (2011) LPELR 2185(SC) 20 paragraphs C-F, citing Oloruntoba-Oju vs. Abdul-Raheem & Ors. (2009) 5-6 SC. (Pt. 11) 57; (2009) 6 MJSC (Pt. 1) 1; NURTW & Anor. vs. RTEAN & Ors. (2012) LPELR 7840 (SC) 47, paragraphs C-G; NNPC & Ors. vs. Orhiowasele & Ors.; P.D.P vs. Sylva (2012) All FWLR (Pt. 637) 606, (2012) LPELR 7814 (SC) 52-53 paragraphs G-E.
From the stated position of the law, I am inclined to agree with the learned senior counsel that both Courts i.e. State and Federal have concurrent jurisdiction to entertain fundamental rights action under Section 46 (1) of the CFRN 1999 as amended. The cases of Jack vs. Unam (2004) (supra), Adetona vs. Igele General Enterprises Ltd (supra), Seed Vest Microfinance Bank PLC vs. Ogunsina & Ors (2016) LPELR 41346 (CA) and Muse vs. EFCC (supra) remains good law. In essence, the action of the respondent at the Court below, being one founded on the enforcement of his fundamental right does not fall within the enumerated items under Section 251 (1) over which the Federal High Court has exclusive jurisdiction. This issue is resolved against the appellant.
ISSUE TWO.
Whether the trial Court was right when it held that the Appellant was in violation of the Respondent?s Fundamental Right to Personal liberty and dignity of his person.
It is the contention of the learned counsel for the Appellant, that Sections 7 (1) (a) and (b) of the EFCC Act and Section 13 (1) and (2) of the same Act, provides for the duties and powers of the appellant.
He contended also that by Section 41 of the Act, an officer of the EFCC is vested with all the powers and immunity of a Police officer.
Further to that is the provisions of Section 35 (1) (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999.
He argued that from the provisions cited empowering the appellants to arrest, detain and prosecute any person, and that the right to personal liberty is not absolute, and can be curtailed for the purposes of bringing him to Court or upon reasonable suspicion of him having committed an offence.
He submits that appellant having received an intelligence report showing that Zenith Bank Plc., was in the custody of 1,299,490,000, laundered from the office of the National Security Adviser, then occupied by Col. M. S. Dasuki (RTD), and further that the former Minister of Defence Mr. Musiliu Obanikoro, and one Ayodele Fayose (Governor of Ekiti State) and one Mr Alade Oluseye of Zenith Bank Plc., conspired and laundered the said sums of over 1.2 billion naira, showed that there was reasonable suspicion that the respondent committed an offence for which he was arrested.
On whether the respondent was released on bail, learned counsel argued that the respondent was immediately upon his arrest in Lagos admitted to bail as indicated by Exhibit AF and paragraph 11 of the appellant?s counter affidavit, though respondent could not immediately meet up with the bail conditions.
He argued that the respondent having been lawfully arrested, detained and granted bail, it cannot be said that his fundamental right to personal liberty was violated. On this counsel relied on the case of Augustine Eda vs. C.O.P Bendel State (1982) 3 NCLR (pt. 219) 228.
On the question how did the remand warrants come into play, it was contended for the appellant that while investigations were on going, further facts emerged necessitating its application before the Magistrate Court which was granted. He stressed that the alleged crime stretched across states, necessitating the investigation reached to the Federal Capital Territory, from where the money moved, and respondent had to be flown to Abuja and to be remanded in the custody of the appellants for continuous investigation. He referred to the holding of the lower Court at page 31 of the judgment, and submitted that considering the fact that the offence for which the respondent was being investigated was trans-jurisdictional, and the appellant, an agency of the Federal Government mandated to investigate economic and financial crimes all over the country with its head office at Abuja can act. Reliance was made to the case of AG Ondo State vs. AG Federation & 36 Ors (2002) 9 NWLR (pt. 772) 222 @ 309, 310, 344, 420 and 473.
It was contended also that the holding of the respondent in the appellants office and further applying before a magistrate Court just before the expiration of the 14 days granted cannot be said to be illegal. He urged the Court to hold that the action of the appellant was lawful and within its ambit of its powers and scope as sanctioned by Courts of competent jurisdiction.
In response, the learned counsel for the respondent holds a contrary view, arguing that though the duties and functions of the appellant were not in doubt as provided for by Section 7(1) (a) and (b) of the EFCC Act, 2004, the provision is subject to the overriding powers of the 1999 Constitution of the Federal Republic of Nigeria 1999 as altered. He goes further to argue that even though Section 13 of the EFCC Act has enumerated some duties and powers to the appellant, such powers must also conform with the provisions of the Constitution. Going back memory lane, learned senior counsel referred to the case of Aqua vs. Archibong (2012) LPELR 9293 (CA) to the effect that the personal liberty of a person is sacrosanct. He challenged the continued detention of the respondent in flagrant abuse of Section 35 of the Constitution, insisting that though a person?s right to personal liberty is not absolute, it can only be curtailed as provided under Paragraphs (a) ? (f) of Section 35 (1) of the same Constitution. He submits that the appellant bluntly denied bail to the respondent. On the warrant issued by the magistrate Court in Lagos State, it was the contention of the Learned Silk, that the efficacy of the said warrant, expired upon the transfer of the respondent outside its area of jurisdiction, where he was held for 13 days illegally, which constituted a violent violation of the respondents right to his personal liberty.
I do agree with the Learned silk, that the law is certain as stated by my brother Nimpar JCA, that:
‘From the wordings of Section 1 of the CFRN, 1999, the supremacy of the Constitution above all other laws in the country is not in doubt. The Constitution of the Federal Republic of Nigeria is therefore the ground norm and all other legislations are subservient to it.’
In clear words, all legislations made in respect of the Nigerian Nation, owe their existence to the collective will of the people embodied in the extant Constitution. It goes without saying that any legislation which is in conflict or inconsistent with the Constitution is null to the extent of the inconsistency. Of equal importance with regards to this case is the provisions of Section 35 (1) of the CFRN 1999, which provides;
(a) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.
(b) By reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him by law.
(c) For the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
Thus as rightly pointed out by this Court in the case of Aqua vs. Archibong (2012) LPELR 9293(CA) per Mohammed Lawal Garba, JCA, ‘Every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the Constitution itself or a law made pursuant thereto’. The essence of the above provisions is that persons, officers or agents of the state who in the ordinary cause or discharge of their official duties or functions for instance the police and other security agencies in the country, may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of Subsection (1) ‘ (5) of the same Constitution.”
It is common ground that the appellant, (EFCC) is a creation of the Economic and Financial Crimes Commission (establishment) Act, 2004. By the provisions of Section 7(1) (a) and (b) it is vested with the power to:
a. Cause investigation to be conducted as to whether any person, corporate body or organisation has committed an offence under this act or other law relating to economic and financial crimes;
b. Cause investigations to be conducted into properties of any person if it appears to the commission that the persons lifestyle and extent of the properties are not justified by his source of income.
By the further provisions of Section 13 (1) and 2 of the Act, the appellant in the discharge of its onerous duties is charged and empowered with responsibilities to:
a. The prevention and detention of offences in violation of the provision of this act.
b. The arrest and apprehension of economic and financial crimes perpetrators;
c. The investigation of assets and properties of persons arrested for committing any offence under this act.
d. The identification and tracing of proceeds and properties involved in any offence under this act and the forfeiture of such proceeds and properties to the Federal government, and
e. Dealing with matters connected with extradition and mutual legal assistance in criminal matters involving economic and financial offences.
The Act by its provision under Section 41 of the same Act, clothe any of the officers of the commission in the course of investigation with all the rights, powers and immunity of a police officer under the Police Act. All these defined provisions of the Act are meant to facilitate the smooth workings of the EFCC operatives in the discharge of their duties, but in no way excused them from the superior and binding stipulations of the Constitution. It is right therefore to say that any provision or act of the operatives of the appellant, which runs contrary to the provisions of the Constitution will be rendered void and or unconstitutional to the extent of the inconsistency.
?The facts founding the instant appeal as earlier stated are not in dispute. At the risk of being repetitive, the respondent was said to have been arrested on the 27th of June, 2016 upon the allegations that he committed a criminal offence based on intelligence report. He was taken to their office in the Lagos State and later admitted to administrative bail. Incidentally, respondent was unable to enjoy the bail granted.
There is the issue that appellants thereafter informed the respondent that he could not be allowed to be admitted to the bail earlier granted, as a remand warrant had been obtained from a magistrate Court in Lagos State, for further investigation. On the 1st of July, 2016, appellant transferred the respondent to its head office in Abuja and kept him in detention up to the 12th of July, when the respondent served on the appellant the originating motion filed on the 11th of July, 2016 for the enforcement of his fundamental right to liberty. On the next day being the 13th of July, 2016, appellant obtained a remand warrant from an Abuja Magistrate Court for the further remand of the respondent.
It has been argued which argument the lower Court rightly accepted that by the appellant?s action of transferring the respondent from Lagos in Lagos State to Abuja, the Federal Capital Territory, the warrant issued by the Magistrate Court, a State Court whose jurisdiction is limited to Lagos State, the remand warrant issued by it lost its potency and efficacy. I have no doubt about that. The powers of a Magistrate Court is limited territorially to the warrant establishing it, and in this case, Lagos State, and does not extend to territories (Federal Capital Territory) in which it has no jurisdiction. It follows therefore as reasoned by the lower Court, that the continued remand of the respondent from the 1st of July, 2016, to the 13th of the same month, when appellant procured a remand warrant from Wuse Magistrate Court, appellant did so in violent disregard of Section 35 of the Constitution.
There was no Court order subsisting to warrant the detention of the respondent, and appellant having failed to admit the respondent to bail, the lucid and inevitable finding by the lower Court that respondent’s right to his fundamental right to personal liberty was breached is unassailable. I fully agree with the respondents counsel as well as the lower Court, that the appellant acted arbitrarily, pompous of its powers of arrest and detention without regard to the entrenched rights of a citizen of the country protected by the Constitution. Sadly, appellant is also the creation of the same Constitution it wilfully disobeyed, which action is not tenable in any civilized norm. We do appreciate the enormous duty imposed on the appellant in the state in which we find ourselves, but must caution and re-state that, that duty must be conducted with decorum and in strict compliance of the law, otherwise they must stand to be sanctioned by the same law that it violated. I must and do resolve this issue against the appellant and in favour of the respondent.
ISSUE THREE
Assuming without conceding that the trial Court was right in holding that the appellant was in violation of the Respondents fundamental right to personal liberty and dignity of his person; whether the award of aggravated damages of N5, 000, 000.00 (Five Million Naira) against the Appellant was not excessive considering the entire circumstance of the case.
The Appellant organisation with regards to this issue is complaining about the award of damages made against it, contending that it was excessive, and not emanating from a judicial and judicious consideration. He wants the Court to take into consideration the fact that respondent was admitted to bail, but failed to fulfil the conditions imposed, and further that his remand was consequent upon a remand warrant issued by a Court of competent jurisdiction.
Relying on the cases of Okafor vs. Okitiakpe (1973) NSCC 70 @ 73 and Oke vs. Kaja (2013) 1 ? 2 SC (pt. 1V) 73 @ 103, to the effect that a Court of Appeal can interfere with an award of damages where it is shown to be manifestly high or too low or that the assessment was based on some wrong legal principles. He urged the Court to hold that the trial Court ought not to have awarded damages due to the reality of the case, and urging this Court to review the same.
The respondent in his response on the issue is of the view that the lower Court exercised its discretion in the award of damages, judicially and judiciously and the right principles of the law applied in making the award. He urged the Court therefore to uphold the award made.
The starting point is the provision of Section 35 (6) of the Constitution which provides that:
Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person, and in this subsection, the appropriate authority or person, means an authority or person specified by law. It has been held that once an applicant has proved that his right to liberty had been infringed upon, the Court is entitled to award compensation on liberal terms to the injured party against the party at fault without recourse to common law principles on award of damages. See Akinde vs. Access Bank Plc & Anor (2014) LPELR 22857 CA per Ikyegh JCA. See lso Jim Jaja vs. Commissioner of Police, Rivers State (2013) 6 NWLR (pt. 1350) 225.
I have earlier in the resolution of the second issue in the appeal determined that the respondent was indeed wrongly detained, the consequence of which is that he is entitled to compensation and apology by the appellants. Appellants now complain that the award of five million naira awarded against it was excessive and unjustifiable going by the realities of the case. I have observed that the lower Court in awarding the sums of Five Million Naira to the respondent, at pages 392 – 397 of the records, reasoned that by the stipulations of Section 35 (6) of the Constitution and Order XI of the FREP rules, the Court is empowered to make orders that are just and appropriate for the purpose of securing the enforcement of the fundamental rights of the respondent.
He also took into account the principle established in the case of Odogu vs. AG of Federation (1996) 6 NWLR (pt. 456) 511 per Onu JSC, to the effect that the means of the parties is a determining factor, and the case of AG of Federation vs. GOK Ajayi (2002) WRN 105 as to the measure of exemplary and aggravated damages in fundamental right enforcement suits, and the further cases of Williams vs. Daily Times (1990) 1 NWLR (pt. 124) 1, Eloichin (Nig). Ltd vs. Mbadiwe (1986) 1 NWLR (pt. 14) 47, where the conduct of the defendant where outrageous, disclosing malice, fraud, cruelty, insolence, and flagrant violation of the law is shown. It equally considered the established facts in the case in arriving at the damages awarded.
I am satisfied in line with the decision of the Apex Court in the case of Odogu vs. AG Federation (1996) 6 NWLR (pt. 456) 511, that:
‘aggravated damages where pleaded and proved, it ought to be borne in mind that exemplary damages are recoverable if the plaintiff is the victim of the punishable behaviour of the defendant…the means of the parties should be considered.”
Further also is the decision in AG Kwara State vs. Olawale (1993) 1 NWLR (pt. 272) 647 that; “That it is not normally the business of the appellate Court to interfere with the exercise of discretion by a trial Court even if it would have decided the matter in some other way if it was to exercise in discretion. An appellate Court would however interfere where the trial Court proceeded on a wrong principle of law in making the award.”
In conclusion, I am at one with the learned counsel for the respondent that the lower Court premised his exercise of discretion on judicial and judicious considerations in making the award, and thereby resolve the issue against the appellant.
All the three issues having been resolved against the appellant, the inevitable conclusion is that this appeal is wanting in merit. I find no reason to disturb the well – articulated and reasoned decision of the trial Court, hence my decision to dismiss this appeal. The judgment of O. A. Adeniyi J. in suit No. FCT/HC/CV/2137/2016, between Abiodun Agbele vs. Economic and Financial Crimes Commission, delivered on the 21st July, 2016, wherein the Court granted some declaratory reliefs and awarded damages of Five Million Naira to the respondent against the appellant is hereby affirmed.
APPEAL DISMISSED.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother Hamma Akawu Barka JCA, and I agree with his reasoning that this appeal lacks merit; accordingly, I also dismiss it and affirm the decision of the lower Court.
Appearances:
Andrew Akoja Legal Officer, EFCCFor Appellant(s)
Godwin IyinborFor Respondent(s)
