EFCC CHAIRMAN v. OSUNDE (2022)

EFCC CHAIRMAN v. OSUNDE

(2022)LCN/16416(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 16, 2022

CA/L/414/2015

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

THE CHAIRMAN ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELANT(S)

And

MR. OSA OSUNDE RESPONDENT(S)

RATIO:

RESOLUTION OF THE ISSUES FOR DETERMINATION IN THE APPEAL

The provision that any arrested or detained person should be taken to Court within a reasonable time as provided in Section 35(4) practically shows the length of time a person may be detained where the person is detained in an area where there is a competent Court within 40km radius the Police or whoever is holding the person must charge him Court within a period of one day and if there is no Court within 50km radius then he must be charged to Court within 48 hours of his arrest and detention. Any arrest and detention inconsistent with the above position of the law amounts to serious violation of the right to personal liberty of the individual as this is a mandatory Constitutional stipulations. In the case of Wike vs. Peterside (2016) 2-3 SC (Pt. IV) page 37, it was held Per Kekere-Ekun (JSC) at page 115 thus: “The golden rule of interpretation of statutes is that where the words used in a statute are clear and unambiguous they must be given their natural and ordinary meaning…..if the words or the statute are precise and unambiguous, no more is required to expound them in their natural and ordinary sense.

IT IS UNLAWFUL TO ARREST A PERSON WITHOUT SUFFICIENT EVIDENCE

In the case of Fawehinmi vs. I.G.P. (2002) 7 NWLR (Pt. 768) 606 at681 Para. H, it was held thus:
“It is unlawful to arrest any person until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect before the Police look for evidence implicating him.”
The Rule of Law which is the substratum of any meaningful society and healthy national life cannot thrive on the neglect of individual’s liberty whatever the magnitude of the alleged offence. The Act of the Appellant in subjecting the Respondent to denial of his liberty for 28 days and treating him like a common criminal when no formal charge was made against him undermined his rights and liberty. In the case ofMITEC vs. AGF (2003) 2 CHR 463 where it was held that the arrest and detention of the Appellant for a period of 5 days was a violation of his right to Fundamental Right to personal liberty. The Powers of the Respondent are confined to law and any of its powers which is inconsistent with the Constitution is to the extent of its inconsistency null and void.

A defendant can be remanded in prison on a remand order issued by a Magistrate particularly where the offence alleged is outside the competence or jurisdiction of the Magistrate to try such a case. A remand order maintains a balance between the two duties of Court by doing away with the tendency of arbitrary and near indefinite Police detention of suspects without order of Court – Lufadeju vs. Johnson (2007) 8 NWLR (Pt. 1037) 535 at 573.

THE PRIMARY OBJECT OF AN AWARD OF DAMAGES IS TO COMPENSATE THE PLAINTIFF

The Supreme Court in the case of ODIBA VS. AZEGE (1998) 7 SC (PT. 1) 79 AT 87, held thus:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding in addition to the normal compensatory damages, damages which go by various names to wit: exemplary, punitive damages, vindictive damages even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and like.”

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The instant appeal emanates from the decision of the Lagos Division of the Federal High Court in Suit No: FHC/L/CS/577/11, wherein the lower Court found in favour of the Respondent as per his claim in the Fundamental Right Enforcement proceedings action. The Respondent, as the Applicant in the lower Court, had filed a Fundamental Rights Enforcement action, vide an originating application dated and filed on 13th May, 2011, and brought pursuant to Sections 34, 35 and 41 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and prayed the lower Court for the following reliefs:
i. A DECLARATION that the detention of OSA OSUNDE (APPLICANT) by the Respondent beyond forty-eight (48) hours without trial is a breach of the Applicant’s Fundamental Right guaranteed under Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 6 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
ii. A DECLARATION that the Remand Order dated 6th May, 2011 signed by theMagistrate of Court 8, Ebute Metta, Lagos is null and void and of no effect.
iii. AN ORDER directing the Respondent, its servants, agents and or privies to immediately and unconditionally release the Applicant from detention, pending the determination of the Applicant’s originating application for the enforcement of the fundamental right filed before the Honourable Court.
ALTERNATIVELY
AN ORDER admitting the Applicant to bail pending the institution of the criminal charges and arraignment of the Applicant before a Court of competent jurisdiction for any offences allegedly committed by the Applicant
iv. AN ORDER STAYING ALL ACTIONS of the Respondent against the Applicant, pending the determination of the Applicant’s originating application for the enforcement of his fundamental rights filed before the Honourable Court.
v. AND FOR SUCH further order or orders as the Court may deem fit to make in the circumstances.

The grounds, upon which the Respondent/Applicant filed the application, as endorsed on the face of the originating application, are as follows:
i. The Applicant’s Fundamental rights as guaranteedunder Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999, and Articles 6 and 12 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act have been and are being breached.
ii. The Applicant was arrested on 3rd May, 2011 and detained by Economic and Financial Crimes Commission detention centre at Okotie-Eboh Street, S.W. Ikoyi Lagos without charge and remains in their custody.
iii. No criminal charge at all has been preferred against the Applicant.
iv. The Remand Order dated 6th May, 2011 signed by a Magistrate sitting Ebute Metta Magistrate Court No. 8 was issued by the Magistrate without jurisdiction.
v. By virtue of Section 19 of Economic and Financial Crimes Commission Act, it is only the High Court of a State or Federal High Court that can entertain matters brought by Economic and Financial Crimes Commission.
vi. By virtue of Sections 6, 14-18 of the Economic and Financial Crimes Commission Act, the Economic and Financial Crimes Commission has no powers to prosecute the offences of stealing, cheating, obtaining by false pretences and receiving stolen property which areoffences created under the Criminal Code.

Other relevant Court’s processes, which included, but not limited to a 9 paragraph affidavit in support of originating application, were filed in furtherance to the Respondent’s application in the lower Court (Pages 1-16 of the record of appeal). The Appellant, who was the Respondent in the lower Court, filed a 28 Paragraph Counter-Affidavit deposed to by one Alhassan Emmanuel, an Assistant Superintendent of Police attached to the EFCC with five (5) documentary exhibits and a written address. The lower Court on 25th April, 2013, granted the reliefs including damages assessed in the sum of N10 Million (Ten Million Naira) only (Pages 144-159 of the record)

Aggrieved by the decision, the Appellant filed the amended Notice of Appeal on 16th September, 2021 deemed as properly filed and served on 30th September, 2021. The grounds upon which the appeal is premised are:
1. The lower Court erred in law when the lower Court held that the Appellant was in breach of the Respondent’s Fundamental Human Rights as guaranteed by Section 35(a) of the Constitution of the Federal Republic of Nigeria 1999(as amended) (“CFRN”)
2. The lower Court erred in law in holding that the Remand Orders dated 06.05.2011 and 20.05.2011 respectively were irregular, null and void and that the Respondent’s arrest and detention between 03.05.2011 and 01.06.2011 was in breach of the Respondent’s Fundamental Rights.
3. The lower Court erred in law when the lower Court held that under the Administrative Criminal Justice Law, 2011 No. 10 of Lagos State (ACJL), an application for Remand Order can only be made to a Magistrate before whom there must be a subsisting case.
4. The lower Court erred in law by awarding damages in favour of the Respondent for the Respondent’s detention which was pursuant to a Remand Order of the Magistrates’ Court.
5. The lower Court erred in law by awarding excessive compensatory damages in favour of the Respondent.

The amended Appellant’s Brief of Argument filed on 16th September, 2021 was deemed as properly filed and served on 30th September, 2021 wherein three (3) issues are formulated for determination:
i. Whether the lower Court was right that the Appellant breached the Respondent’sRight to Personal Liberty
ii. Whether the lower Court was right to have held that the Remand Order dated 06.05.2011 issued by the Magistrates’ Court 8 Ebute Metta, Lagos and Remand Order dated 20.05.2011 from a Magistrates’ Court in Gwagwalada, Federal Capital Territory respectively were irregular, null and void.
iii. Whether the lower Court was right in awarding damages and in the quantum awarded in favour of the Respondent.

The amended Respondent’s Brief of Argument was filed on 29th September, 2021 but deemed on 30th September, 2021 in which three (3) issues are formulated for determination:
1. Whether the lower Court was right in holding that the detention of the Respondent by the Appellant is a breach of his Fundamental Rights as guaranteed under Section 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria and Articles 6 and 12 of the African Charter on Human and People’s Rights.
2. Whether the lower Court was right to have declared the remand order dated 6th May, 2011 issued by the Magistrate Court 8 Ebute Metta Lagos and remand order dated 20th May, 2011 purportedly issued by the Magistrate Court in Gwagwalada, FCTAbuja irregular, null and void and of no effect.
3. Whether the lower Court was right in awarding compensatory damages in the quantum awarded in favour of the Respondent.

On issue one, learned Appellant’s Counsel submitted that the lower Court failed to give due consideration to the interpretation of the provision of Section 35 (4) and (5) of the 1999 Constitution FRN (as amended). That the interpretation given to the phrase reasonable time by the lower Court, not only defeats the intention of the framers of the Constitution, but also failed to countenance the peculiarities of the Appellant and its responsibilities in this regard – Nafi’uRabiu vs. Kano State (1980) 8-11 SC 130.

That the lower Court neglected to consider the statutory functions of the Appellant as provided in Section 7 of the EFCC Act and as decided in Jolly Nyame vs. F.R.N. It was further argued that the lower Court’s finding that, the Respondent’s Constitutional right was breached by detaining him beyond 24 hours, failed to reflect the fact that the Appellant cannot at all time, and for all purposes, conclude every investigation and arraignsuspects in Court within the time stipulated by Section 35 (4) C.F.R.N. It was contended also that, by the provision of Article 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act cited and relied on by the Respondent, is not an absolute right but rather a qualified – A.G. Bendel State vs. A.G. Federation (1981) 10 SC 1.

Counsel stressed that notwithstanding the definition of reasonable time in the Constitution, the provision accommodates a little extension, reasonably incurred within the sphere of an average man’s test – Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678 at 719. That the arrest and detention of the Respondent was reasonable in the circumstances of the case – Section 264 (1) of the Administration of Criminal Justice Law of Lagos State, 2011 and the decision in Lufadeju vs. Johnson (2007) 8 NWLR (Pt. 1037) 535 at 570 were referred to.

On issue 2, the Appellant contended, as being without any basis, the lower Court’s finding to the effect that the Appellant failed to controvert, in its counter-affidavit, the deposition of the Respondent on the Remand Order dated 06.05.2011. It was argued that the said remand order as attached to the Appellant’s affidavit dated 10th June, 2011 stated that it was issued at 9.00 am as against 7.00 pm as contended by the Respondent. Counsel argued vide the provision of Section 128 (1) of the Evidence Act and the decision in Joseph vs. Fajemilehin& Anor (2012) LPELR-9849 (CA) that the deposition of the Respondent ought not to be used to alter the content in the said document as attached.

That the lower Court ought to have taken judicial notice of the seal of the Magistrate Court that issued the Remand Order in line with the provision of Section 122 (2) (e) of the Evidence Act, 2011, that the said remand order was issued by the said Magistrate Court, during normal sitting hours and was therefore validly issued. According to Counsel, in the absence of any certified true copy of Court’s proceeding contradicting the evidence placed on record by the Appellant, the finding of the lower Court that the Magistrate Court sat at 7 pm lacked any evidential value. It was argued that the Respondent placed nothing before the lower Court to question the validity of the remand order –N.B.C. Plc. vs. Okwejiminor (1998) 8 NWLR (Pt. 561) 295 at 309.On issue 3, it was contended that the damages awarded was in the mode of exemplary damages instead of being compensatory as indicated by the lower Court -F.R.A. Williams vs. Daily Times of Nigeria (1990) 1 NWLR (Pt. 124) 1 at 30. counsel submitted that the compensatory damages of an exemplary nature as awarded by the lower Court, was improper. That nothing on record shows that there was a naked, arrogant, arbitrary and oppressive abuse of power by the Appellant, that there was therefore no legal justification for the damages awarded by the lower Court. The Court was urged to so hold, and allow the appeal.

In response to the Appellant’s submissions the Respondent’s Counsel, in the amended Respondent’s Brief of Argument, restated the law, as provided in Section 35 (4) of the Constitution that an arrested and or detained person be taken to Court within a reasonable time, and that any arrest inconsistent with the stipulation of the law amounts to a serious violation of the right to personal liberty of the individual.

That the invitation by the Appellant for the Court tointerpret Section 35 (4) of the Constitution, to the meaning not envisaged by drafters, was absurd. Learned counsel for the Respondent cited the case of Wike vs. Peterside (2016) 2-3 SC (Pt. IV) 37 at 115 and submitted that the wording of the statute is clear and unambiguous. It was contended that the volume of petition received by the Appellant on daily basis as insinuated, could not be a valid basis or justification to detain or deny any citizen of his liberty outside the law. The Appellant reiterated that there was no justification whatsoever for the detention of the Respondent by the Appellant for 28 days without any formal charge. According to Counsel, the lower Court was right to hold that the detention of the Respondent by the Appellant was not valid.

On the propriety or otherwise of the remand orders in the lower Court, the Respondent, cited the decision in Lufadeju vs. Johnson (Supra) and elucidated on the need for a Court to balance the duty of prompt attention to an allegation of crime vis-a-vis the duty to give effect to individual’s liberty and freedom. The Respondent emphasized that the remand order dated 6th May, 2011 was issued by theMagistrate in its sitting held at 7 0’clock on that date. It was argued that the lower Court was right to hold that the remand order was issued at 7.00pm on the 6th May, 2011, same having been deemed admitted by the Appellant.

On the remand order dated 20th May, 2011, the Respondent averred that the offences for which he was being held were allegedly committed in Lagos and that the Appellant failed to rebut the Respondent’s averments in his further affidavit to that effect. While relying on the decision inPius vs. The State (2015) 7 NWLR (Pt. 1459) 628 at 640, learned counsel submitted that the Respondent’s averment were unassailable in this regard and that the lower Court rightly held that it was not placed on record before it that the Respondent was ever taken before a Gwagwalada Magistrate Court. That the lower Court rightly invalidated the said remand order issued on 6th May, 2011 and that of 20th May, 2011. It was contended that the Respondent would still have suffered unlawful detention beyond the period constitutionally allowed for such, even in the event, which was not conceded to by the Respondent, that either or both of theremand orders were validly issued. The Court was urged to so hold.

On whether the lower Court was right to have awarded the damages in favour of the Respondent, Counsel reiterated the essence of the award of damages in this regard, it was argued, while placing reliance on decisions in Odiba vs. Azege (1998) 7 SC (Pt. I) 79 at 87 that the Appellant failed to place before the Court that the award was wrongfully made by the lower Court. Counsel averred that the damages awarded in the instance was compensatory rather than being exemplary. It was submitted that the award of the damages was proper and ought not to be interfered with by the Court. The Court was urged to dismiss the appeal for lacking in merit.

In the reply brief filed on 28th September, 2021 and deemed on 30th September, 2021, the arguments in the Appellant’s brief were rehashed.

RESOLUTION OF THE ISSUES FOR DETERMINATION IN THE APPEAL
The provision that any arrested or detained person should be taken to Court within a reasonable time as provided in Section 35(4) practically shows the length of time a person may be detained where the person is detained in an area where there is a competent Court within 40km radius the Police or whoever is holding the person must charge him Court within a period of one day and if there is no Court within 50km radius then he must be charged to Court within 48 hours of his arrest and detention. Any arrest and detention inconsistent with the above position of the law amounts to serious violation of the right to personal liberty of the individual as this is a mandatory Constitutional stipulations. In the case of Wike vs. Peterside (2016) 2-3 SC (Pt. IV) page 37, it was held Per Kekere-Ekun (JSC) at page 115 thus: “The golden rule of interpretation of statutes is that where the words used in a statute are clear and unambiguous they must be given their natural and ordinary meaning…..if the words or the statute are precise and unambiguous, no more is required to expound them in their natural and ordinary sense. He held further that the words of the statute alone in such circumstances best declare the intention of the Lawmaker.” There is no justification whatsoever to detain or deny any citizen of his liberty outside the law. In the case of Fawehinmi vs. I.G.P. (2002) 7 NWLR (Pt. 768) 606 at681 Para. H, it was held thus:
“It is unlawful to arrest any person until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect before the Police look for evidence implicating him.”
The Rule of Law which is the substratum of any meaningful society and healthy national life cannot thrive on the neglect of individual’s liberty whatever the magnitude of the alleged offence. The Act of the Appellant in subjecting the Respondent to denial of his liberty for 28 days and treating him like a common criminal when no formal charge was made against him undermined his rights and liberty. In the case of MITEC vs. AGF (2003) 2 CHR 463 where it was held that the arrest and detention of the Appellant for a period of 5 days was a violation of his right to Fundamental Right to personal liberty. The Powers of the Respondent are confined to law and any of its powers which is inconsistent with the Constitution is to the extent of its inconsistency null and void. The Appellant’s powers cannot by any stretch of imagination justify an act which tramples on the rights of any person. Any arrest and detention inconsistent with the position of the Constitution amounts to serious violation of the individual’s right to personal liberty.

The offences for which the Respondent herein was being held were alleged to have been committed in Lagos. The Appellant in its Written Address dated 10th of June 2011 in response to the Respondent’s Originating Application (page 80 of the Records) states in paragraph 24 thus: “By virtue of Section 268(1) of the Administration of Criminal Justice Law No. 10 2007 of Lagos State (applicable on the ground that the underlying offences for which the Applicant was arrested and detained are State Offences under the Criminal Code Law of Lagos State.”

The Respondent in paragraph 8 of its further affidavit dated 8th February, 2012 in reply to the Appellants Counter Affidavit – Page 98 of the record stated thus:
a. that the Applicant was never charged for any offence before any Magistrate Court in Abuja or anywhere.
b. That the Applicant does not reside in or carry on business in Abuja and has not committed any offence against the panel code or any laws of the FCT.
The Appellant had the opportunity of rebutting this averment but did not do so for obvious reasons. The Respondent’s averments were therefore not controverted and are therefore unassailable. In the case of Pius vs. State (2015) 7 NWLR (Pt. 1459) 628 at 640, it was held thus: “The Appellant had opportunity to, but did not, challenge the evidence of PW1 when evidence is unchallenged the Court ought to accept same as proof of the issue in contest”.

On the issue of the award of compensatory damages, Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 provides: “Any person who is unlawfully arrested or detained is entitled to compensation and public apology from appropriate authority or person. “It follows therefore that when it has been found by the Court that any person has been unlawfully detained, it necessarily becomes imperative that the person becomes entitled to compensation. Damages is a personal compensation or indemnity which may be recovered in the Court by any person who suffers loss, detriment or injury whether to his person, reputation, business, property or rights through the act or omission of another. The purpose is to place the person in a good position so far as money can do it as if the matter complained of has never happened. The Supreme Court in the case of ODIBA VS. AZEGE (1998) 7 SC (PT. 1) 79 AT 87, held thus:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding in addition to the normal compensatory damages, damages which go by various names to wit: exemplary, punitive damages, vindictive damages even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and like.”

In order to justify a reversal or an interference with the amount of damages awarded by a trial Court some factors are considered by the Court. In the case of African Newspapers Nigeria Plc. vs. Useni (2015) 3 NWLR (Pt. 1447) 464 at 500, it was held thus:
“To justify reversal or interference with the amount of damage awarded by a trial Court, it will be generally necessary for the appellate Court to be convinced that:
a) The trial Court acted upon wrong principle of law
b) The trial Court has acted under misapprehension of facts
c) The trial Court has taken into account irrelevant matter or failed to take into account relevant matters
d) Where injustice will result if the appellate Court does not interfere
e) The amount awarded is either ridiculously too high or very small as to make it in the judgment of the appellate Court an entirely erroneous estimate of the damages to which the plaintiff is entitled.”

The Appellant has not shown that the Court took account of irrelevant matters or failed to take into account relevant matters. The Appellant has not shown that injustice will result if the Court does not interfere or that the amount is ridiculously high the trial Judge was right to award N10,000,000.00 (Ten Million Naira) compensatory damages to the Respondent and the Court herein ought not to interfere with the award. This appeal is unmeritorious and is accordingly dismissed by me. I affirm the judgment of the lower Court in Suit No. FHC/L/CS/577/2011 delivered on 25/04/2013. No cost is awarded. Parties to bear their respective costs they might have incurred in prosecuting the appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Abdullahi Mahmud Bayero, JCA. I agree with the legal reasoning and conclusion in it. l too dismiss the appeal. I abide by the consequential orders decreed in the leading judgment.

PETER OYINKENIMIEMI AFFEN, J.C.A.: My Lord, ABDULAHI M. BAYERO, JCA obliged me with a draft of the leading judgment and I have had the advantage of reading it before now.

I agree with his Lordship’s reasoning and conclusion, which I hereby adopt as mine in dismissing this appeal and affirming the judgment of the Federal High Court delivered on 25th April, 2013.

Appearances:

Dr K.U.K. Ekwueme with him, Felix Emmanuel Esq. For Appellant(s)

J.A. Ugese, Esq. For Respondent(s)