EFCC & ORS v. AFOLABI & ORS (2022)

EFCC & ORS v. AFOLABI & ORS

(2022)LCN/16415(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, July 19, 2022

CA/IB/396/2019

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. ECONOMIC & FINANCIAL CRIMES COMMISSION 2. MR. RICHARD (INVESTIGATING OFFICER) 3. MR. BULAMA (INVESTIGATING OFFICER) 4. MR. ASSO (INVESTIGATING OFFICER APPELANT(S)

And

1. ELDER FRANCIS MORAKINYO AFOLABI 2. JCL INVESTMENT NIG LTD 3. KEHINDE R. OLANIYAN (Trading Under The Name And Style Of KEHINDE R. OLANIYAN NIG. ENTERPRISES) 4. FIRST BANK OF NIGERIA PLC RESPONDENT(S)

RATIO:

APPEALS ARE HEARD ON ISSUES AND NOT ON GROUNDS OF APPEAL

it is trite that appeals are heard on issues and not on grounds of appeal. Hence, any ground of appeal from which no issue for determination is formulated is deemed abandoned and same must be struck out from the appeal: AKINSUWA v STATE (2019) LPELR-47621(SC), per Eko, JSC at page 46 paras. D–F; ITOK v UDOYO (2020) LPELR-52524(SC), per Kekere-Ekun, JSC at pages 3–4, paras. E–A; and HUSSENI & ANOR v MOHAMMED & ORS (2014) LPELR-24216(SC), per Ngwuta, JSC at page 24, paras. C–E. Accordingly, ground 4 of the Appellants’ Notice of Appeal from which no issue for determination is formulated is hereby struck out. ABBA BELLO MOHAMMED, J.C.A.

THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY TIME

It is also settled law that issue of jurisdiction can be raised at any time, even viva voce for the first time on appeal to this Court or to the Supreme Court. This is because jurisdiction is the foundation of adjudication without which every adjudicatory proceedings no matter how well conducted is a nullity. See: SOCIO-POLITICAL RESEARCH DEVELOPMENT v MINISTRY OF FCT & ORS (supra), per Ariwoola, JSC at page 37, paras. C–E; and CONTROLLER GENERAL OF PRISONS & ORS v ELEMA & ANOR (2021) LPELR-56219(SC), per Agim, JSC at page 24 paras. D – E. ABBA BELLO MOHAMMED, J.C.A.

THE CONFLICTING DECISIONS OF A SUPERIOR COURT

It is settled law that where there are conflicting decisions of a superior Court on an issue the latter in time takes precedence – judicia posteriora sunt in lege fortiori. See: BELLO & ANOR v IKWUE (2021) LPELR-55652(CA), per Agube, JCA at pages 77–78, paras. C–A; FABUNMI v UI & ANOR (2016) LPELR-41132(CA), per Daniel-Kalio, JCA, at page 17 paras. B–E; and KANU v ASUZU & ANOR (2015) LPELR-24376(CA), per Ige, JCA at pages 51–52, paras. A–F.
In view of this, I am constrained to follow the latter decision of this Court in INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE v NIMC (supra), to the effect that two or more applicants may institute a joint application for enforcement of fundamental rights provided they have a common cause of action. ABBA BELLO MOHAMMED, J.C.A.

FACTS WHICH ARE NOT CONTROVERTED ARE DEEMED ADMITTED

It is settled law that facts which are not controverted are deemed admitted and will require no further proof: O.A.N. OVERSEAS AGENCY (NIG) LTD & ORS v BRONWEN ENERGY TRADING LTD (2022) LPELR-57306(SC), per Eko, JSC at page 51 paras. A–B; and NDUKWE v LPDC & ANOR (2007) LPELR-1978(SC), per Ogbuagu, JSC at page 64 paras. C–D. Before the trial Court therefore, there was no controversy over the juristic status of the 2nd–4th Appellants.

THE IRREGULARITY PROCEEDS TO TAKE STEPS IN A PROCEEDING

In any event, it is also trite law that a party, like the Appellants herein, who despite knowledge of an irregularity proceeds to take steps and fully participate in the proceedings cannot be heard to complain against same: RASAKI & ANOR v AJIJOLA & ANOR (2017) LPELR-47013(SC) per Ogunbiyi, JSC at pages 37–40, paras. F–A; and UMEAKUANA v UMEAKUANA (2019) LPELR-48904(SC), per Peter-Odili, JSC at pages 16–20, paras. D–A. I must confess that I find it preposterous that the Appellants (including the 2nd–4th Appellants) who have filed joint processes and fully participated in the trial at the lower Court will surface challenging the legal status of some of the 2nd–4th Appellants on appeal. ABBA BELLO MOHAMMED, J.C.A.

THE LAW WITH RESPECT TO CONFLICT AFFIDAVIT EVIDENCE RESOLUTION

However, the law with respect to resolution of conflicting affidavit evidence which has become trite, has been clearly stated by the Supreme Court in the case of NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) LPELR-2129(SC) where Nnaemeka-Agu, JSC held at pages 32–33, paras. E–B, as follows:
“Evidence by affidavit is, it must be noted, is a form of evidence. It is entitled to be given weight where there is no conflict, after the conflict has been resolved from appropriate oral or documentary evidence. For true, it is the law that where there is a conflict of affidavit evidence called by both sides, it is necessary to call oral evidence to resolve the conflict see Falobi v. Falobi (1976) 9 and 10 S.C. 1, p. 15; Akinsete v. Akinduture (1966) 1 ALL NLR 14. But I believe that it is not only by calling oral evidence that such a conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting thebalance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be a yardstick with which to assess oral testimony.” ABBA BELLO MOHAMMED, J.C.A.

THE ECONOMIC AND FINANCIAL CRIMES COMMISSION AS AN INVESTIGATIVE AGENCY

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Ibadan (the trial Court), delivered on the 1st of April, 2019. Before the trial Court, the 1st and 2nd Respondents (as Applicants), instituted an action against the Appellants and the 3rd and 4th Respondents (as Respondents), under the Fundamental Rights (Enforcement Procedure) Rules, 2009 wherein they prayed the Court for the reliefs contained in the application which is at pages 1–92 of the Record of Appeal. The 4th Respondent opposed the originating application with a counter affidavit which is at pages 93–102 of the Record, while the Appellants’ counter affidavit is at pages 103–126 of the Record. The 3rd Respondent similarly filed a counter affidavit which is at pages 134–182 of the Record. The 1st and 2nd Respondents filed separate further affidavits to the Respondents’ counter affidavits. The further affidavits are contained at pages 186–274 of the Record. The Appellants also filed a further and better counter affidavit at pages 275– 309 of the Record of Appeal.

After hearing the parties, the learned trial Judge delivered a considered judgment on the 1st of April, 2019 in favour of the 1st and 2nd Respondents. The judgment is at pages 359-399 of the Record of Appeal.

Dissatisfied with the judgment of the trial Court, the Appellants brought this appeal vide Notice of Appeal filed on 8th of May, 2019 which is at pages 400–405 of the Record. The Record of Appeal was compiled and transmitted to this Court on the 31st of October, 2019 and deemed properly transmitted on the 30th of April, 2020.

Parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument settled by Ifeanyi Agwu Esq was filed on 22nd of July, 2020 and deemed properly filed on 30th September, 2021. The 1st and 2nd Respondents’ Brief of Argument settled by J. D. Olaniyan, Esq., was filed on the 17th of December, 2021 and deemed properly filed on the 10th of January, 2022. The Appellants also filed a Reply Brief on the 24th of January, 2022. The 3rd and 4th Respondents neither appeared nor filed any process in response to the appeal despite having been served with the processes and hearing notice.

The 1st and 2nd Respondents also filed a motion on 17th December, 2021 challenging some of the grounds of appeal contained in the Appellants’ Notice of Appeal. At the hearing of the appeal on the 8th of June, 2022, parties adopted their respective processes.

1ST AND 2ND RESPONDENTS’ MOTION ON NOTICE:
In the 1st and 2nd Respondents’ Motion on Notice filed on 17th December, 2021, they sought for an order of this Court striking out grounds 1, 4, 5 and 6 in the Appellants’ Notice of Appeal for the following reasons:
A. This is an appeal challenging the judgment of the Federal High Court sitting in Ibadan delivered on 1st April, 2019.
B. Grounds 1, 4, 5 and 6 of the Notice of Appeal raises new issue.
C. The Appellants did not seek nor obtain leave of the Honourable Court before raising and/or incorporating grounds 1, 4, 5 and 6 in the Notice of Appeal which is an issue raised for the first time on appeal before this Honourable Court.
D. All issues raised on Grounds 1, 4, 5 and 6 of the Grounds of Appeal are incompetent.

In his written address in support of the motion on notice, learned Counsel for the 1st and 2nd Respondent had argued that grounds 1, 4, 5 and 6 of the Appellants’ Notice of Appeal which are fresh issues raised without leave of Court are incompetent. Citing the cases of STATOIL NIG LTD v INDUCON NIG LTD & ANOR (2018) 4 S.C. (PT. II) 53 at 68; OLAIYA v OYEDOKUN & ORS (2009) LPELR-4741(CA) at 9–11, paras. B–D; and LAWAL v APC & 3 ORS (2018) 7 S.C. (PT. IV) 183 at 188, he argued that the failure to obtain leave of Court had rendered grounds 1, 4, 5 and 6 incompetent and robbed this Court of jurisdiction to entertain those grounds.

Learned Counsel also submitted that the Appellants have failed to tie ground 4 to any of the issues formulated for determination. He relied on IBRAHIM v MOHAMMED (2003) 2 S.C. 127 at 140, to contend that the said ground is deemed abandoned. He urged the Court to uphold the objection and strike out grounds 1, 4, 5 and 6 of the Appellants’ Notice of Appeal.

Responding in the Appellants’ Reply Brief, learned Counsel for the Appellants submitted that contrary to the 1st and 2nd Respondents’ contention that the said grounds arenew issues, a cursory look at the grounds especially 1, 4 and 5 shows that they attack the jurisdiction of the trial Court to entertain the 1st and 2nd Respondents’ originating application. He pointed out that even the 1st and 2nd Respondents have conceded this much in their Brief. He contended that it is trite that issues of jurisdiction can be raised at any time and even for the first time on appeal. He relied on ELUGBE v OMOKHAFE (2004) 18 NWLR (Pt. 905) 319 at 334; APGA v OYE & ORS (2018) LPELR-45196(SC);AKINTARO v EGUNGBOHUN (2007) 9 NWLR (Pt. 1038) 103; ALHAJI TAJUDEEN BABATUNDE HAMZAT & ANOR v ALHAJI SALIU IREYEMI SANNI & ORS (2015) LPELR-24302(SC); and SHELL NIG EXP. & PROD. CO. (NIG) LTD v FIRS (2021) 17 NWLR (Pt. 1806) 545.

Learned Counsel also submitted that ground 6 and also the other grounds under attack are by virtue of Section 241(1)(d) of the 1999 Constitution appealable as of right, being grounds bordering on fundamental human rights. He referred to NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR-44057(SC). Counsel however conceded that ground 4 from which no issue was raised had been abandoned. He urged theCourt to dismiss the objection of the 1st and 2nd Respondents as same is legally incompetent.

RESOLUTION OF 1ST AND 2ND RESPONDENTS’ OBJECTION:
From the submissions of the parties, they are at ad idem that no issue has been distilled from ground 4 of the Notice of Appeal. It is trite that appeals are heard on issues and not on grounds of appeal. Hence, any ground of appeal from which no issue for determination is formulated is deemed abandoned and same must be struck out from the appeal: AKINSUWA v STATE (2019) LPELR-47621(SC), per Eko, JSC at page 46 paras. D–F; ITOK v UDOYO (2020) LPELR-52524(SC), per Kekere-Ekun, JSC at pages 3–4, paras. E–A; and HUSSENI & ANOR v MOHAMMED & ORS (2014) LPELR-24216(SC), per Ngwuta, JSC at page 24, paras. C–E. Accordingly, ground 4 of the Appellants’ Notice of Appeal from which no issue for determination is formulated is hereby struck out.

With regards to grounds 1, 5 and 6 which were objected to by the 1st and 2nd Respondents, I have examined the said grounds. As rightly contended by the learned Counsel for the Appellants, grounds 1 and 5 actually challenge the jurisdiction of the trial Court to entertain the suit. Ground 1 challenges the jurisdiction of the trial Court on the ground that action for infringement of fundamental right has to be taken by an individual and not a group, while ground 5 challenges the jurisdiction of the trial Court on the ground that the 2nd–4th Appellants are not juristic personalities. It is trite that a challenge to the legal capacity to sue goes to the jurisdiction of the Court. See: ENEYO & ORS v NGERE & ORS (2022) LPELR-56880(SC), per Aboki, JSC at pages 42–43, paras. B–A; and SOCIO-POLITICAL RESEARCH DEVELOPMENT v MINISTRY OF FCT & ORS (2018) LPELR-45708(SC), per Aka’ahs, JSC.

Thus, an objection that a ground raises new issue without leave of Court does not apply to grounds which challenge the jurisdiction of the Court. Grounds 1 and 5 being challenges to the jurisdiction of the trial Court, are competent and accordingly, I hereby overrule the objection of the 1st and 2nd Respondents to the competence of the said grounds 1 and 5.

As for ground 6, it essentially challenges the trial Court’s evaluation of the evidence as contained in the affidavits of the parties, contending that the trial Court was wrong not to call for oral evidence. First, a ground which questions the evaluation of evidence by the trial Court cannot be regarded as one which has raised on a new issue. See: OBASANJO FARMS (NIG) LTD v MUHAMMAD (2016) LPELR-40199(CA), per Abiru, JCA at pages 15–16, paras. E–D; and ORIEBOSI v ANDY SAM INVESTMENT CO. LTD (2014) LPELR-23607(CA), per Abiru, JCA at page 31 para. A.

Secondly, as rightly contended by the Appellants, the action before the trial Court is one which bothers on fundamental rights enforcement brought under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). By Section 241(1)(d) of the said Constitution, appeals shall lie as of right from decisions of the Federal High Court or a High Court of the State to the Court of Appeal in respect of decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person. See also: FIRST BANK & ORS v A.G. FEDERATION & ORS (2018) LPELR-46084(SC), per Augie, JSC at pages 21–30, paras. B–D; and NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR-44057(SC), per Eko, JSC at pages 5–7, paras. A–C. I therefore have no hesitation in also overruling the 1st and 2nd Respondents’ objection to the competence of ground 6 of the Appellants’ Notice of Appeal.

On the whole, the motion of the 1st and 2nd Respondents succeeds only in relation to ground 4 from which the Appellants have admittedly not distilled any issue and is therefore, deemed abandoned. The other grounds1, 5 and 6 to which the motion relates are competent. I so find and hold.

THE APPEAL:
In this appeal, the Appellants have distilled the following five issues for determination in this appeal:
1. Whether the lower Court has the jurisdiction to entertain the 1st and 2nd Respondents’ application. (Distilled from ground 1 of the Notice of Appeal).
2. Whether the 2nd–4th Appellants are juristic personalities in law (Distilled from ground 5).
3. Whether the Court below was right when he held that 2nd respondent has established that applicants’ acts violated his fundamental rights. (Distilled from grounds 2 and 3).
4. Whether in view of the hostile and conflicting affidavits the Court below was right in not calling oral evidence to resolve same before reaching her decision. (Distilled from ground 6).
5. Whether the award of N500,000.00 (Five Hundred Thousand Naira) in favour of the 1st and 2nd respondents was in line with the principles of law, in view of the facts and circumstances of this case. (Distilled from ground 7).

On their part, the 1st and 2nd Respondents distilled the following five issues for determination:
1. Whether the lower Court had the jurisdiction to entertain the 1st and 2nd Respondents’ application. (Ground 1).
2. Whether the 2nd–4th Appellants are juristic personalities in law. (Ground 5).
3. Whether the Court below was right when it held that 2nd Respondent has established that Appellants’ acts violated his fundamental rights. (Grounds 2 and 3).
4. Whether in view of the hostile and conflicting affidavits, the Court below was right in not calling oral evidence to resolve same before reaching her decision. (Ground 6).
5. Whether the award of N500,000.00 (Five Hundred Thousand Naira) in favour of the 1st and 2nd Respondents was in line with the principles of law, in view of the facts and circumstances of this case. (Ground 7)

Since the 1st and 2nd Respondents basically adopted the five issues formulated by the Appellant, I shall adopt the Appellants’ five issues in determining the appeal.

APPELLANT’S SUBMISSIONS:
Arguing issue 1, the Appellants’ contended that the 1st and 2nd Respondents’ action before the trial Court as constituted was incompetent for misjoinder of persons because a fundamental right enforcement action brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009 does not admit more than one applicant. They argued that it was improper for two or more persons to file one application for the purpose of securing enforcement of their fundamental rights. The Appellants relied on the decisions of this Court in OKECHUKWU v ETUKOKWU (1998) 8 NWLR (Pt. 562) 513 at 532; REGISTERED TRUSTEES OF FAITH TABERNACLE CONGREGATION CHURCH, NIGERIA v ABEL UCHE IKWECHEGH (2000) 13 NWLR (Pt. 683); and UDO v ROBSON & ORS (2018) LPELR-45183(CA), which also followed KPORHAROR & ANOR v YEDI & ORS (2017) LPELR-42418(CA). The Appellants submitted that this Court is bound to follow its decision and must follow same, as decided in AMAECHI v INEC & ORS (No. 3) (2007) 7–10 S.C. 172; and OYEYEMI v IREWOLE LOCAL GOVERNMENT (1993) 1 NWLR (Pt. 270) 462 at 477.

On issue two, the Appellants submitted that the 2nd–4th Appellants who were Respondents at the lower Court, are not proper parties because they are not legal personalities that are capable in law. They argued that Mr. Richard, Mr. Bulama and Mr. Asso (investigating officers) are not distinct identification or their real names to make them juristic persons that can sue and be sued in law, because the names ascribed to them are vague and not known or tied to any particular individual and therefore are not juristic persons. Citing and relying on AGBONMAGBE BANK LTD v GENERAL MANAGER, G.B. OLLIVANT LTD (1961) All NLR (Pt. 1) 116; PRINCIPAL, GOVT. SEC. SCH. IKACHI v IGBUDU (2006) All FWLR (Pt. 229) 1420 at 1441, paras. C–D; CBN v EDET (2015) All FWLR (Pt. 768) 879; SOCIO-POLITICAL RESEARCH DEV. v MIN. FCT (2019) 1 NWLR (Pt. 1653) 313; and THE ADMIN./EXECUTORS OF THE ESTATE OF SANI ABACHA v SAMUEL DAVID EKE-SPIFF (2009) 2–3 S.C. (Pt. II) 93, the Appellants argued that although the 2nd–4th Appellants were described as natural persons, their names do not distinguish them from others. Counsel argued that the proper order to make is to strike out the names of the 2nd–4th Appellants from this appeal.

Turning to issue 3, the Appellants submitted that by virtue of Sections 6(b), 7, 8, 13, 38 and 41 of the Economic and Financial Crimes Commission Act, 2004 (EFCC Act), the 1st Appellant is empowered to investigate all cases of economic and financial crimes reported to it, including the instant case. They also referred to Section 4 of the Police Act and relied on the judicial decisions in ONYEKWERE v STATE (1973) 8 NSCC 250 at 255; DIFA v THE STATE (1977) 1 NNLR 224 at 227; FAWEHINMI v IGP (2000) 7 NWLR (Pt. 665) 481 at 528, paras. E–G; JOSHUA v STATE (2009) All FWLR (Pt. 475) 1651, paras. A–B; and ATEZE v MOMO (1958) NRNLR 127. Appellants submitted that the Appellants’ invitation extended to the 1st and 2nd Respondents is part of their pre-trial investigation and that such as interview cannot be elevated to an infringement of the 1st and 2nd Respondents’ fundamental rights, especially in view of the huge criminal allegations made against them.

The Appellants also referred this Court to EL-RUFAI v HOUSE OF REPRESENTATIVES (2003) FWLR (Pt. 173) 162; AJAYI v STATE (2013) 2–3 MJSC (PT. 1) 59 at 72–37; OBOMANU v GEORGEWILL (2018) All FWLR (Pt. 957) 867; OTERI v OKORODUDU (1970) LPELR-2824(SC), the Appellants submitted that their duty to investigate is only a preliminary process by which invitation for an interview or arrest is part of the process of verifying the authenticity or otherwise of the allegations against the 1st and 2nd Respondents. They pointed out that the 1st and 2nd Respondents who promised to furnish documents to the Appellants to back up the statements they volunteered to assist the investigations, instead jettisoned their promise and resorted to seeking judicial fiat against the investigation.

The Appellants argued that they displayed professionalism in the investigations by allowing the 1st and 2nd Respondents to go same day (6/6/2018), despite not meeting the bail conditions given to them, with the understanding that they will report back with some documents to support their defence, instead the Appellants got Court processes from the 1st and 2nd Respondents. Appellants also argued that they never claimed to be debt recovery agents or collectors but merely invited the 1st and 2nd Respondents in the course of investigations which the 1st and 2nd Respondents honoured. They added that the 1st and 2nd Respondents never placed any material before the Court to show that the Appellants were acting as debt collectors.

On the purported freezing of the 2nd Respondent’s account by the 4th Respondent based on the Appellants’ letter, the Appellants submitted that the said “stop order” is sanctioned by Section 6(5)(b) of the Money Laundering (Prohibition) Act, 2011 (as amended) and it was meant to last 72 hours after which it expires if no Court order is obtained by the law enforcement agency.

On the finding of the trial Court that it was a commercial transaction, the Appellants contended that the finding does not reflect what is contained in the printed record. Quoting paragraphs 12, 20, 35–38 of the 3rd Respondent’s Counter Affidavit at pages 135, 136 and 139 of the Record of Appeal, the Appellants submitted that those facts were not challenged and are therefore deemed admitted. They added that even as it is conceded that the alleged offence emanated from a commercial transaction, it does not give the 1st and 2nd Respondents immunity against investigation and possible prosecution. They cited Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 which provides for the offence of obtaining by false pretence. Relying on the decision of this Court in MR. STEVE ISOKARIARI v EFCC & ANOR, APPEAL NO. CA/PH/FHR/151/2018 delivered on 10th December, 2018, per Lamido, JCA; as well as the decision of the Supreme Court in OYEBANJI v STATE (supra), the Appellants submitted that the allegations of obtaining by false pretence and money laundering against the 1st and 2nd Respondents are financial crimes which the Appellants have the authority to investigate. They referred to Section 7(2)(a) – (f) of the EFCC Act and to several decisions of this Court, the Appellants submitted that the 1st and 2nd Respondents failed to prove that they were arrested and detained by the Appellants in contravention of constitutional provisions.

Arguing issue 4, learned Counsel for the Appellants contended that Section 116 of the Evidence Act provides that the Court before which there are irreconcilably conflicting affidavits on crucial facts shall resolve same by calling for the parties to proffer oral evidence as to such facts in order to resolve the conflict. He argued that this will enable the affidavits of the parties to be subjected to cross-examination in openCourt, and cited EBOHAN v A.G. OF EDO STATE (1997) 5 SCNJ 163. He highlighted some of the areas which according to him constitute material conflicts in the affidavits of the parties. He submitted that it was erroneous for the trial Court to pick and choose from the said affidavit evidence in breach of the decisions in BOY MUKA & ORS v STATE (1976) 9–10 SC 193 at 205; and YUSUF v OBASANJO (2006) All FWLR (Pt. 294) 387 at 483. Further relying on F.S.B. INT’L BANK LTD v IMANO NIG LTD (2000) FWLR (Pt. 19) 392 at 408; MARK v EKE (2004) All FWLR (Pt. 200) 1455 at 1479; and IKEDIGWE v FAI (2012) 10 NWLR (Pt. 1308) 375 at 402, he urged this Court to allow the appeal of the Appellants under this issue.

On issue 5, the learned Counsel for the Appellants argued that the award of N500,000.00 damages jointly and severally against the Appellants and the 3rd and 4th Respondents by the trial Court is at variance with established principles of law. He submitted that before exemplary damages can be awarded, it must be specifically claimed and pleaded and cited ELIOCHIN (NIG) LTD v MBADIWE (1986) 1 NWLR (Pt. 14) 47 and ODOGU v A.G. FEDERATION (1996) 6 NWLR(Pt. 456) 508. Counsel argued that the facts and circumstances of the case do not support the findings of the trial Court, as it was abundantly clear that the 1st Respondent honoured the invitation of the Appellants on 6th June, 2018 and volunteered his statements and was subsequently allowed to go the same day, within the constitutionally guaranteed time. He added that the 1st Respondent was allowed to go with his counsel against the bail conditions given to him which were not met. He referred this Court to pages 299–301 of the record and pointed out that this was admitted though with mischief by the 1st Respondent in paragraph 60 of their affidavit at page 16 of the Record. He argued that the action of the Appellants was well within the confines of the Constitution and Sections 30 and 31 of the Administration of Criminal Justice Act, 2015.

Relying on FAJEMIROKUN v. COMMERCIAL BANK (C.L.) NIG. LTD (2009) 5 NWLR (Pt. 1135) 588; and GUSAU v UMEZURIKE (2012) All FWLR (Pt. 655) 291 at 319, he submitted that the trial Court applied the wrong principle of law in awarding damages of N500,000.00 in favour of the 1st and 2nd Respondents. Further relying on AFRIBANK (NIG) PLC v A.I. INVESTMENTS LTD (2002) 7 NWLR (Pt. 765) 40, he urged this Court to interfere with the said award and allow the appeal by setting aside the judgment of the trial Court.

RESPONDENTS’ SUBMISSIONS:
In his counter submission on issue one, learned Counsel for the 1st and 2nd Respondents submitted that the settled law is that multiple applicants can apply for enforcement of fundamental rights. He relied on the decision of this Court in ALHAJI MAITAGARAN v DANKOLI, APPEAL No. CA/KN/389/2019, delivered on 27th October, 2020; and IHEJIOBI & ORS v IHEJIOBI & ANOR (2013) LPELR-21957(CA), per Nimpar, JCA at pages 9–10, para. F. He submitted that where there are conflicting decisions the latter in time takes precedence. He relied on MUJAKPERUO & ORS v AJOBENA & ORS (2014) LPELR-23264(CA), per Ogakwu, JCA at page 25, paras. B–E; GOVT OF ENUGU STATE v ONYA (2021) LPELR-52688(CA); and INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE & ORS v NIMC (2021) LPELR-55623(CA), per Ogakwu, JCA at pages 67–70, paras. E–D, and urged this Court to resolve this issue in favour of the Respondents.

On issue 2, learned Counsel for the 1st and 2nd Respondents submitted that the argument of the Appellants that the names ascribed to the 2nd-4th Appellants are not their real names is quite astonishing since the 2nd–4th Appellants are human beings and officers of the 1st Appellant. He added that the 2nd–4th Appellants were responsible for the detention and freezing of the 1st and 2nd Respondents’ account and they were so described in paragraphs 5, 6 and 7 of the affidavit in support of the 1st and 2nd Respondents’ originating application at page 10 of the Record of Appeal. He pointed out that these paragraphs were not denied in the counter affidavit of the Appellants and referred particularly to paragraphs 8, 9 and 10 of the Appellants’ Further Affidavit at page 276 of the Record. Counsel drew the attention of this Court that all the Appellants were represented by Counsel, O. A. Owodunni, Esq., and no objection was raised as to the status of the 2nd–4th Appellants as officers of the 1st Appellant. He referred the Court to paragraph 1 of the Appellants’ Written Address before the lower Court at page 109 of the Record.

Learned Counsel for the 1st and 2nd Respondents also submitted that the 4th Appellant had deposed to various counter-affidavits in respect of this case and he presented himself as Asso Haruna Safiyanu, an investigating officer with the 1st Appellant, and the Appellants have admitted their personality in paragraphs 5, 6, 12, 13, 14, 15, 16, 18, 19 and 20 of their counter affidavit at pages 103–106 of the Record. Citing CHEMIRON (INT’L) LTD v STABILINI VISINONI LTD (2018) LPELR-44353(SC), per Eko, JSC at pages 29–30, paras. E–B, he submitted that unchallenged facts require no further proof. He further argued that having approbated by admitting their status, the Appellants cannot now reprobate by denying same. He relied on R.A. OLIYIDE & SONS LTD v OAU, ILE-IFE (2018) 1–2 SC (Pt. VII) 110 at 112–114; and ASABORO v PAN OCEAN OIL (2017) LPELR-41558(SC). He added that address of counsel no matter how elegant can never take the place of evidence, and cited OMISORE v AREGBESOLA & ORS (2015) 5–6 SC (Pt. III) 1 at 119, para. 15.

Learned Counsel further submitted that even asthe 2nd–4th Appellants were properly joined as necessary parties, the non-joinder or misjoinder of parties cannot defeat a fundamental right enforcement action. He cited CHINEDO & ORS v IREKA (2016) LPELR-40510(CA) at pages 27–28, paras. A–E, and urged the Court to hold that the 2nd–4th Appellants were properly joined.

Turning to issue 3, learned Counsel for the 1st and 2nd Respondents in investigating complaints, the 1st Appellant, the EFCC, is bound to observe the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in relation to arrest and detention. He cited DANFULANI v EFCC (2016) 1 NWLR (Pt. 1493) 223 at 246–247.

Learned Counsel submitted that the conduct of the Appellants in which they tried to use the 1st Appellant to recover debt has been deprecated by the Nigerian Courts. He explained that the Appellants caused a lot of financial crises and damage to the 1st and 2nd Respondents who are poultry farmers as their account was frozen by the Appellants upon instigation of the 3rd Respondent on a mere commercial transaction which did not carry any criminal content. Citing and relying on KURE v COP(2020) 1 SC (Pt. IV) 102 at 129–130; ALHAJI YUSUF UMAR v ALHAJI ABDUSALAMI & ORS (2001) CHR 413; and JIM JAJA v COP & ORS (2011) 2 NWLR (Pt. 123) 375 at 392, paras. B–D, Counsel argued that even if it is assumed that the 3rd Respondent was not intending to ruin the 1st and 2nd Respondents’ farm which was clearly his intention, the contractual relationship between the 1st–2nd Respondents and the 3rd Respondent could not have ripened to criminality and the Appellants had not power to interfere with anything relating to commercial transaction which does not carry any criminal ingredient. He relied on KEN MCLAREN & ORS v JAMES LLYOD JENNINGS (2003) 2 NWLR (Pt. 808) 420; ONAGORUWA v STATE (1998) 1 ACLR 435 at 483; and DIAMOND BANK PLC v HRH EZE (DR) PETER OPARA & ORS (2018) LPELR-43907(SC), per Bage, JSC at pages 18–30.

It was also submitted that the 1st and 2nd Respondents being law abiding citizens, upon confirmation that the account of the 2nd Respondent with the 4th Respondent was frozen by the 1st Appellant, had gone to verify the reason forthe freezing of the account and on getting there, despite the presence of their counsel, the 1st Respondent was humiliated, harassed, assaulted and detained in the office of the 1st Appellant from 10 a.m. to 7 p.m. by the 2nd, 3rd and 4th Appellants upon instigation of the 3rd Respondent. It was posited that the trial Court rightly found at page 393 that the detention of the 1st Respondent whether for one day or half a day is unjustifiable given the civil nature of the transaction and the length of time the 1st Respondent was detained is immaterial on the authority of ADEGBOLA v IGP 1 NPILR 285. He urged the Court to so hold and resolve this issue in favour of the 1st and 2nd Respondents.

Arguing issue 4, learned Counsel for the 1st and 2nd Respondents submitted that the affidavits of the 1st and 2nd Respondents and the Appellants were not in any way contradictory. He argued that the lower Court had looked at both affidavits vis a vis the documentary evidence before the Court and came to a just decision. He submitted that even if it is assumed without conceding that the affidavits were conflicting, the Appellants have waived their right to complain sincethey never raised the issue before the trial Court and had fully participated in the hearing of the application by adopting their processes without raising issue of conflict in the affidavits. He referred to the proceedings of the trial Court at pages 344–352 of the Record and relied on the cases of AYOADE v GOVERNOR OF OSUN STATE & ORS(2015) LPELR-24274(CA), per Owoade, JCA at pages 46–47, paras. A–C; ANIE & ORS v UZORKA & ORS(1993) LPELR-490(SC), per Onu. JSC at pages 33–34, paras. D–A; and BAKARE v LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR-711(SC), per Nnaemeka-Agu, JSC at page 95, paras. C–D.

Learned Counsel submitted that it is not in all situations where there is conflict in affidavit evidence that oral evidence must be called. He cited the cases of LSDPC v ADOLD STAMM INT’L (NIG) & ANOR (2005) LPELR-1746(SC), per Akintan, JSC at page 16, paras. B–E; and UNION BANK OF NIGERIA v AWMAR PROPERTIES LTD (2018) LPELR-44376(SC), per Peter-Odili, JSC at pages 47–48, para. D, and urged the Court to resolve this issue in favour of the 1st and 2ndRespondents.

As for issue 5, it was submitted on behalf of the 1st and 2nd Respondents that where there is an infringement, there must be damages. Reference was made to the finding of the trial Court at pages 398–399 where after finding that the Applicants’ (1st and 2nd Respondents’) fundamental rights were infringed, relied on Section 35(6) of the 1999 Constitution to award damages of N500,000.00 against the Respondents (Appellants and the 4th Respondent herein) and order the 5th Respondent (4th Respondent herein) to publish a letter of apology.

Learned Counsel submitted that the 1st and 2nd Respondents are entitled to damages as rightly awarded by the trial Court. He pointed out that the 1st Respondent had averred that he is a poultry farmer that rears various types of livestock, i.e. layers that need special monetary attention in form of feeds in order to survive and lay appropriately, and that he had narrated the ordeal he went through as a result of the instigation of the Appellants by the 3rd Respondent to freeze the account meant for running the farm and this run down the farm to 20% in the egg production. Citing theSupreme Court decisions in OKONKWO V OGBOGU (1996) 5 NWLR (Pt. 499) 420; ODIBA v MUEMUE (1999) 10 NWLR (Pt. 622) 174; and ELIOCHIN v MBADIWE (1986) NWLR (Pt. 14) 47 at 62, he submitted that the 1st Respondent who was unlawfully detained by the Appellants upon instigation of the 3rd Respondent is entitled to damages. He added that it was held that a Court can award damages for infringement of rights of a citizen as would serve as deterrent to arbitrary and oppressive abuse of power such as in this case. He relied on FEDERAL MINISTRY OF INTERNAL AFFAIRS v SHUGABA DARMAN (1982) 3 NCLR 915; ODOGU v A.G. FEDERATION (1996) 6 NWLR (Pt. 456) 508 at 522; UZOUKWU & ORS v EZEONU II (supra) at 764–765, and urged the Court to resolve this issue in favour of the 1st and 2nd Respondents. Finally, learned Counsel urged the Court to dismiss the appeal and uphold the judgment of the trial Court.

APPELLANTS’ REPLY:
In reply to the submissions of the 1st and 2nd Respondents on issue 1, the Appellants pointed out the conflict in the decisions of this Court on whether or not multiple applicants can bring an action for enforcement of fundamental rights.They acknowledged the decisions of this Court in ALHAJI MAITAGARAN v DANKOLI (supra); INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE & ORS v NIMC (supra), cited by the 1st and 2nd Respondents to the effect that multiple applicants can bring such action, but countered by citing other decisions of this Court in KURAMA TRADITIONAL COUNCIL v YANI(2021) All FWLR (Pt. 1086) 104; CHIEF OF NAVAL STAFF, ABUJA & ORS v ARCHIBONG & ANOR (2020) LPELR-51845(CA); and EFCC v ENERGY PROPERTY DEV. LTD & ORS (2021) LPELR-55068(CA), where this Court had held otherwise. For that reason, the Appellants submitted that the 1st and 2nd Respondents’ application was tainted with jurisdictional virus and was therefore incompetent.

On the 1st and 2nd Respondents’ submissions in issue 2, the Appellants replied that even if it is assumed but not conceded that the Appellants have admitted the personalities of the 2nd–4th Appellants that cannot solve the inherent defect on the legal personalities of the 2nd–4th Appellants as it is trite that parties cannot confer jurisdiction on a Court where there is none. The case of OKOLO v UBN LTD(2004) 3 NWLR (Pt. 859) 87 at 108 was cited.

Counsel for the Appellants also submitted that the case against the 1st and 2nd Respondents was investigated by the Appellants within their statutory mandate and this eventually gave birth to a charge filed before a Court of competent jurisdiction as shown at pages 417–418 of the Record. He added that a civil transaction can undoubtedly ripen or generate a crime as in the instant appeal and that contrary to the submissions of the 1st and 2nd Respondents in issue 3, the Appellants never arrested or detained the 1st Respondent who arrived at the office on 6/6/2018 and was allowed to go home that same day without meeting his bail conditions. He cited KEHINDE v FRN (2020) LPELR-50291(CA); ISOKARIARI v EFCC (supra); and NWAFOR v EFCC (2021) LPELR-52949(CA), on the essence of investigations.

On the 1st and 2nd Respondents’ contention in issue 4, the Appellants argued that once there are material contradictions in affidavits of the parties the Court is mandated to order oral evidence in order to resolve same, placing reliance on the case of F.S.B. INT’L BANK v IMANO NIG LTD (supra). As forthe contention under issue 5, the Appellants submitted that in this case where the 1st Respondent was allowed to go home the same day there is no legal justification for the award of N500,000.00 especially as the 2nd Respondent, being a corporate body, cannot be arrested and cannot even institute action for infringement of fundamental rights. He cited FIRST BANK OF NIGERIA PLC & ORS v A.G. FEDERATION & ORS (2018) 7 NWLR (Pt. 1617) 121 at 155; and EFCC v ENERGY PROPERTY DEV. LTD & ORS (supra), and urged the Court to allow the appeal and set aside the judgment of the trial Court.

RESOLUTION OF ISSUES FOR DETERMINATION:
RESOLUTION OF ISSUE 1:
Whether the lower Court has the jurisdiction to entertain the 1st and 2nd Respondents’ application.

Under this issue which was distilled from ground 1, the essential argument of the Appellants is that the trial Court lacked jurisdiction to entertain the originating application of the 1st and 2nd Respondents because the Fundamental Rights enforcement procedure does not admit joint applicants. The Appellants have conceded that there are conflicting decisions of this Court on thisissue and urged this Court to apply the cases they cited, instead of the cases cited by the 1st and 2nd Respondents.
It is pertinent to observe that all the decisions of this Court cited by the Appellants in support of their argument that fundamental rights enforcement action does not admit multiple applicants were delivered before the latter decisions cited by the 1st and 2nd Respondents, especially the case of INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE & ORS v NIMC (supra). Even as some of the decisions relied upon by the Appellants were decided in 2021, they were decided earlier than INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE v NIMC (supra), which was decided by this Court on 24th September, 2021. In that case, (which I had the privilege of delivering the lead judgment), this Court thoroughly examined the provision of Section 46(1) of the 1999 Constitution and the extant Fundamental Rights (Enforcement Procedure) Rules, 2009, particularly the provision of its preamble in the light of Section 46 of the Interpretation Act. The conflicting decisions of this Court, especially those in UDO v ROBSON & ORS (supra); andKPORHAROR & ANOR v YEDI & ORS (supra), cited by the Appellants herein on the one hand, and the latter decision of this Court in OLUMIDE BABALOLA v AGF (2018) LPELR-43808(CA), on the other hand, was also considered, in the light of decisions of the Supreme Court in DIAMOND BANK PLC v OPARA & 2 ORS (2018) LPELR-43907(SC); and FBN PLC & 4 ORS v A.G FEDERATION (2018) 7 NWLR (Pt. 1617) 121, wherein the Supreme Court had upheld the judgment of this Court and granted the prayers of multiple Applicants.
In the said INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE v NIMC (supra), this Court had relied on its then most recent decision in BABALOLA v AGF (supra), after thoroughly examining the right of action for enforcement of fundamental rights provided in Section 46(1) of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to Subsection (3) of that Section. In that case, this Court, per Mohammed, JCA particularly held as follows:
There is no doubt that in Section 46(1) of the 1999 Constitution which grants right of action in fundamental rights enforcement used the singular language. The Sectionused the words “Any person who alleges…” However, it is trite law of interpretation of statutes that words in the singular which are used in a statute are interpreted to include the plural and words in the plural to include the singular. In interpreting Section 215 of the Criminal Procedure Act, the Supreme Court applied Section 14 of the Interpretation Act in the case of UDEH v THE STATE(1999) LPELR-3292(SC), and the Court, per His Lordship Iguh, JSC, held at pages 16–17, paras. F–A, as follows:
…Section 14 of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 which stipulates as follows “In an enactment – (a) …. (b) words in the singular include the plural and words in the plural include the singular.” It is thus clear, on the application of Section 14(b) of the Interpretation Act, that no violence can be done to the provisions of Section 215 of the Criminal Procedure Act if the word “persons” is read into the word “person” therein used.”
Specifically, for fundamental rights proceedings, the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009 which is the Rules madepursuant to Section 46(3) of the 1999 Constitution, had taken into consideration these basic rules of interpretation and had provided in Paragraph 3(c) of the Preamble that:
(c) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:
(i) Anyone acting in his own interest;
(ii) Anyone acting on behalf of another person;
(iii) Anyone acting as a member of, or in the interest of a group or class of persons;
(iv) Anyone acting in the public interest; and
(v) Association acting in the interest of its members or other individuals or groups.
From the above provisions of the 2009 FREP Rules and the Supreme Court decision on interpretation of statutes in UDEH v THE STATE (supra), it is expressly clear that it is not only individuals that can institute an action forenforcement of fundamental rights. As rightly contended by the learned Counsel for the Applicants, the approach of the Courts has generally been to give vent to the intendment of the Fundamental Rights (Enforcement Procedure) Rules, 2009, to the effect that several parties may institute fundamental rights proceedings provided the basis of the complaint arose from the same cause of action.
It is settled law that where there are conflicting decisions of a superior Court on an issue the latter in time takes precedence – judicia posteriora sunt in lege fortiori. See: BELLO & ANOR v IKWUE (2021) LPELR-55652(CA), per Agube, JCA at pages 77–78, paras. C–A; FABUNMI v UI & ANOR (2016) LPELR-41132(CA), per Daniel-Kalio, JCA, at page 17 paras. B–E; and KANU v ASUZU & ANOR (2015) LPELR-24376(CA), per Ige, JCA at pages 51–52, paras. A–F.
In view of this, I am constrained to follow the latter decision of this Court in INCORPORATED TRUSTEES OF DIGITAL LAWYERS INITIATIVE v NIMC (supra), to the effect that two or more applicants may institute a joint application for enforcement of fundamental rights providedthey have a common cause of action. In consequence, I resolve this issue against the Appellants.

RESOLUTION OF ISSUE 2:
Whether the 2nd–4th Appellants are juristic personalities in law.

The face of the Originating Motion of the 1st and 2nd Respondents before the trial Court which is at page 1 of the Record of Appeal shows that the 2nd–4th Appellants (who were the 2nd–4th Respondents at the trial Court) were named as follows:
2. MR. RICHARD (INVESTIGATING OFFICER)
3. MR. BULAMA (INVESTIGATING OFFICER)
4. MR. ASSO (INVESTIGATING OFFICER)

Apart from naming the 2nd–4th Appellants as aforementioned, they were described in paragraphs 5, 6 and 7 of the 1st and 2nd Respondents’ affidavit in support of the Originating Motion as follows:
5. That the 2nd Respondent is an officer of the 1st Respondent and he was the team leader of one of its investigating team in its Ibadan Zonal Office, the team or department that is investigating the complaint of the 5th Respondent.
6. That the 3rd Respondent is also an officer of the 1st Respondent and presently attached to its Ibadan Zonal Office and heis a member of the team that is currently investigating the complaint of the 5th Respondent against me and the 2nd Applicant.
7. That the 4th Respondent is also an officer of the 1st Respondent presently attached to its Ibadan Zonal Office and a member of the team currently investigating the complaint of the 5th Respondent.

Interestingly, the Appellants who were served with the 1st and 2nd Respondents’ Originating Motion and supporting affidavit never raised objection to the juristic personality of the 2nd–4th Respondents (the 2nd–4th Appellants herein). They instead responded to that originating application by filing their counter affidavit at pages 103–108 of the Record which was titled: 1ST, 2ND, 3RD AND 4TH RESPONDENTS COUNTER AFFIDAVIT TO APPLICANTS MOTION ON NOTICE DATED 11TH JUNE, 2018. Apart from the fact that the Appellants had in several paragraphs of the counter affidavit confirmed their status as investigating police officers of the 1st Appellant, the Appellants never raised any issue as to the juristic personality of the 2nd–4th Appellants in the said counter affidavit. It is in fact instructive, that the said counter affidavit was deposed to by Asso Haruna Safiyanu who described himself as an investigating officer with the 1st Appellant, just as described by the 1st and 2nd Respondents in paragraphs 5, 6 and 7 of their supporting affidavit of the 1st and 2nd Respondents quoted above. Therefore, the Appellants, (including the 2nd–4th Appellants) not only joined issues with the 1st and 2nd Respondents before the trial Court, they proceeded to fully participate in the proceedings to its conclusion.

Given the circumstance of this case as highlighted above, I have no hesitation in resolving issue 2 against the Appellants. I hold that as admitted by them both in their joint deposition and in their action in participating at the trial, the 2nd–4th Appellants were, as 2nd–4th Respondents, juristic personalities before the trial Court.

Given that issues 3 and 4 essentially relate to the trial Court’s evaluation of the affidavit evidence of the parties, I intend to start by first resolving issue 4 relating to whether there are material conflicts in the affidavits necessitating the trial Court to call for oral evidence in order to resolve same, before resolving issue 3 relating to whether the trial Court was right to hold that the 1st and 2nd Respondents have established infringement of their fundamental rights.

RESOLUTION OF ISSUE 4:
Whether in view of the hostile and conflicting affidavits, the Court below was right in not calling oral evidence to resolve same before reaching her decision.

I must start by stating that conflicts in affidavit evidence is expected in adversarial litigations, since parties to adversarial litigations have opposing positions on the issues in respect of which they are joined. It is therefore most likely that each party will produce evidence that tends to support his case against the case of his adversary, whether that evidence is in form of affidavit, oral or material evidence. In most cases, however, a trial Court is afforded the opportunity of being able to resolve conflicts in oral evidence either when such seemingly conflicting oral evidence is discredited through cross-examination by the adverse party, or by testing the veracity of such oral evidence against any documentary evidence that may have been tendered in the proceedings.
However, the law with respect to resolution of conflicting affidavit evidence which has become trite, has been clearly stated by the Supreme Court in the case of NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) LPELR-2129(SC) where Nnaemeka-Agu, JSC held at pages 32–33, paras. E–B, as follows:
“Evidence by affidavit is, it must be noted, is a form of evidence. It is entitled to be given weight where there is no conflict, after the conflict has been resolved from appropriate oral or documentary evidence. For true, it is the law that where there is a conflict of affidavit evidence called by both sides, it is necessary to call oral evidence to resolve the conflict see Falobi v. Falobi (1976) 9 and 10 S.C. 1, p. 15; Akinsete v. Akinduture (1966) 1 ALL NLR 14. But I believe that it is not only by calling oral evidence that such a conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be a yardstick with which to assess oral testimony.”
It is therefore important to state that it is not in all cases where there is conflict in affidavit evidence that oral evidence must be called. See: ONWUBUYA & ORS v IKEGBUNAM (2019) LPELR-49373(SC), per Abba-Aji, JSC at pages 15–16, paras. C–D; and UNION BANK OF NIGERIA v AWMAR PROPERTIES LTD (2018) LPELR-44376(SC), per Peter-Odili, JSC at pages 47–48, paras. D–D.

The Appellants have highlighted some areas in paragraph 4.28 of their Brief of Argument in a bid to show material conflicts in the affidavits of the parties. However, it is pertinent to observe that the areas highlighted are merely averments and counter averments made by the parties which the trial Court duly considered and resolved same having reference to the documentary exhibits attached by the parties. In fact, the record of appeal shows at pages 383–389 that the trial Court had not only evaluated the depositions in the respective affidavits of the parties, but also referred to the documentary exhibits attached thereto.

For instance, at pages 383–384, the trial Court started by referring to the contents of Exhibit EFCCA attached to the 1st–4th Respondents’ (Appellants’) Further and Better Affidavit, which is the Petition that was made to the Appellants by the 5th Respondent (Mr. Kehinde R. Olaniyan). The learned trial Judge then examined the same against the depositions in the 1st Applicant’s (1st Respondent’s) affidavit, especially paragraphs 13, 16, 21, 22, 25, 30, 32, 37 and 38 wherein as 1st Applicant, the 1st Respondent herein had deposed that sometimes in 2011, the 5th Respondent, Kehinde R. Olaniyan, had approached him for enrolment as supplier, to supply the 1st and 2nd Applicants (1st and 2nd Respondents herein) with maize, soya meal and groundnut cake for the preparation of poultry feed. That pursuant to the said business relationship, the 5th Respondent was supplying maize, soya meal and groundnut cake to the 2nd Applicant and their business was flourishing as shown in Exhibits JD2 and JD3 which exposed the business relationship between the Applicants and the 5th Respondent, as stated on the 5th Respondent’s business letterheaded paper for the years 2013, 2014 and 2015. That in August, 2015, the 5th Respondent had supplied another consignment of maize, soya meal and groundnut cake worth N14,611,820.00, but the soya meal supplied was of poor quality which led to the serious decline in egg production and motality rate and the Appellants’ farm was plucked in serious crisis. That in the presence of the 5th Respondent, test was carried out on the soya meal and the 5th Respondent confirmed the poor quality of the soya meal supplied and appealed to the Appellants, as a result of which it was resolved that the 5th Respondent should change his routes and continue supplying so that the Appellants will pay for each new supply and liquidate part of the sum outstanding in respect of the bad one that ruined the farm. That with the intervention of Mr. Yinka Ogundiran and the 1st Respondent’s wife, the 1st Respondent then agreed and paid the 5th Respondent N2,200,000.00, but the 5th Respondent failed to comply so and to continue with the relationship and revive the farm.

The learned trial Judge then observed at page 385 of the Record that in paragraphs 7 and 8 of his counter affidavit, the 5th Respondent conceded that he started supplying the Applicants (1st and 2nd Respondents herein) with maize, soya meal and groundnut cake since 2011. That between 11th March, 2014 to 24th August, 2015 he had supplied maize, soya meal and groundnut cake to them worth N199,320,523.00 of which the 1st and 2nd Respondents had paid N184,708,703:00.

Upon the analysis of the depositions of the parties and the exhibits attached, the learned trial Judge then concluded at page 387 of the record as follows:
The above extracts from the affidavit in support and the 5th Respondent’s Counter Affidavit reveals without a doubt, that the Applicants and the 5th Respondent had a business relationship. Therefore, there is in simple terms, the contract of supply agricultural produce herein maize, soya meal and groundnut cake to Applicants for the poultry business. The dispute arose from inability, or refusal of the Applicants to pay the sum of N14,611,820.00 for the produce supplied between 11th to 24th of August, 2015. Thus, the petition.

From my careful consideration of the depositions in the affidavit of the parties and the exhibits attached thereto on record, I find that no unresolved material conflict which would necessitate calling oral evidence. In my view, the learned trial Judge rightly resolved the contention as to the nature of the transaction between the 1st and 2nd Respondents and the 5th Respondent and found same to be purely civil, and this finding was basically crux upon which the case before the trial Court for enforcement of fundamental rights was decided. Therefore, the conflicting averments referred to by the Appellants in paragraph 4.28 of their Brief of Argument are, in my respectful view, not material as to require a resolution by oral evidence: ONWUBUYA & ORS v IKEGBUNAM (supra); and UNION BANK OF NIGERIA v AWMAR PROPERTIES LTD (supra). In consequence, I also resolve this issue 4 against the Appellants.

RESOLUTION OF ISSUE 3:
Whether the Court below was right when it held that 2nd Respondent has established that Appellants’ acts violated his fundamental rights.

It is trite that as an investigative agency, the Economic and Financial Crimes Commission has the powers to invite any person who may assist in investigations of any offence and/or to arrest and detain any person upon reasonable suspicion of his committing an offence. Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 states that:
35(1) 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 – …
(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.
In addition to the above constitutional provision, Sections 6, 7, 13, 38 and 41 of the Economic and Financial Crimes Commission Act, 2004 confers upon the EFCC and its officers all the policing powers and immunities of an investigative agency with a mandate to examine and investigate all reported cases of economic and financial crimes and to arrest, apprehend and prosecute offenders. By Section 35(1)(c) of the 1999 Constitution quoted above, the Commission and indeed all investigative agencies have been granted power to curtail liberties of any person upon reasonable suspicion of his committing a crime. It is this constitutional power that has indeed been reflected in the powers of arrest, detention and investigations provided in the statutes establishing the investigative institutions such as 1st Appellant herein.
The above trite position of law to the effect that the Police and other statutory investigative agencies have powers to invite, arrest and detain any person upon reasonable suspicion has been restated in several judicial decisions. See: FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606 at 670; ONAGORUWA v THE STATE (1993) 7 NWLR (Pt. 303) 28; OKAWU v IMO STATE COMMISSIONER OF POLICE (2001) 1 CHR 407; ONAH v OKENWA & ORS (2010) LPELR-4781(CA), per Jauro, JCA (as he then was) at pages 25–26, paras. F–A; and ASCO INVESTMENTS LTD & ANOR v EZEIGBO & ANOR (2015) LPELR-24460(CA), per Tur, JCA at pages 43–44, paras. F–A.
It is pertinent however, for me to state that Section 35(1)(c) of the 1999 Constitution which grants investigativeagencies the powers of arrest and detention upon reasonable suspicion of commission of a crime places a duty upon the investigative agencies to act only upon reasonable suspicion and avoid arbitrary arrest and detention. Needless to state that those powers of arrest and detention conferred on police officers are by virtue of Section 6(6)(b) of the same Constitution subject to the supervisory powers of the Courts. See: MUSA & ORS v ADAM & ANOR (2021) LPELR-56151(CA), per Sankey, JCA at pages 32–33, paras. E–D; and OKWUDIBA & ORS v NWANKWO & ORS (2018) LPELR-46074(CA), per Iyizoba, JCA at pages 35–37, paras. C–C. As shown while resolving issue 4, the trial Court had after evaluating the respective affidavits evidence and exhibits of the parties at pages 383–386 of the Record, had found at page 387 that the transaction between the 1st and 2nd Respondents and the 5th Respondent for which the Appellants arrested the 1st Respondent was purely civil and contractual. I observe that in their Brief of Argument, the Appellants have made copious argument trying the skew and criminalize the nature of the transaction between the 1st and 2nd Respondents and the 5th Respondent. Try as they did however, the law is that submissions of counsel no matter how erudite, cannot be a substitute for evidence: BFI GROUP CORPORATION v BPE (2012) LPELR-9339(SC), per Fabiyi, JSC at page 34, paras. B–E; and AUTO IMPORT EXPORT v ADEBAYO & ORS (2005) LPELR-642(SC), per Onu, JSC at pages 56–57, paras. D–E.
From the state of the affidavit evidence on record, as well as the documentary exhibits attached, it is clear that the 1st and 2nd Respondents have had a long standing contractual relationship with the 5th Respondent in which the 5th Respondent used to supply the 1st and 2nd Respondents with maize, soya meal and groundnut cake for their poultry farm and the 5th Respondent had admitted in paragraphs 7 and 8 of his Counter Affidavit that he had so supplied for some years to the tune of N199,320,523.00 of which the 1st and 2nd Respondents have paid N184,708,703.00.
Now, the Apex Court and this Court have in several decisions deprecated the misuse by investigative agencies of their constitutional and statutory powers of arrest upon reasonable suspicion to arrest persons for purely civil or contractual transactions.
In ONAGORUWA v STATE (1993) LPELR-43436(CA), this Court, per Tobi, JCA (as he then was) held at pages 67–68, paras. F–B as follows:
“There is no law known to me where a breach of an agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish.”
See also decisions of this Court in MUSA & ORS v ADAM & ANOR (supra), ANUBALU v STATE (2019) LPELR-48088(CA), per Umar, JCA at pages 45–49, paras. C–C; ASSENE (NIG) LTD v MIVERO PHARMA LTD & ANOR (2021) LPELR-56247(CA), per Banjoko, JCA at pages 46–47, paras. A–A; and JIMEN v STATE(2021) LPELR-56470(CA), per Adumein, JCA at pages 25–26, paras. C–C.
In KURE v C.O.P. (2020) LPELR-49378(SC), the learned Justices of the Apex Court took turns to stress the legal position that in the exercise of their constitutional and statutory functions, the police have no powers to delve into purely civil and contractual transactions. At pages 22–25, paras, A–E, Galinje, JSC delivering the lead judgment held that:
“Having considered the evidence at the trial Court, I am of the firm view that the transactions involved in this case were based on contractual agreement, as there is no evidence of criminal breach of trust. In Onagoruwa v. State (1993) LPELR-43436(CA) at pages 67-68 Paras, F-B, Niki Tobi, JCA (as he then was) said:- “There is no law known to me where a breach of agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish…The remedy in my view lies in civil litigation.”
In his concurring judgment, Kekere-Ekun, JSC also stated thus:
“The crux of this appeal is whether the facts narrated above gave rise to a civil claim or whether the commission of criminal offences was disclosed. My learned brother has given a thorough consideration of this issue in the lead judgment. I am incomplete agreement with him that what the facts disclose is a civil complaint of breach of contract. The sum of N3.5m was paid to the appellant in furtherance of the contract between the parties. The failure to deliver the calf giraffe meant that the consideration for the contract wholly failed. The remedy of the nominal complainant was in a civil suit for damages for breach of contract or for an order for specific performance, It was the duty of the Police to advise her accordingly and to decline to proceed with the complaint. The role of the Police is clearly spelt out in Section 4 of the Police Act Cap. P19 Laws of the Federation of Nigeria 2004, to wit: “4. The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. As stated earlier, the complaint was purely civil with no element of criminality. The police ought to have referred the Appellant to the Court to pursue a civil claim.”
Also concurring, Abba-Aji, JSC held at pages 32–33, paras. A–E, thus:
“As I went through the facts of this case, I was wondering how a purely civil matter could easily metamorphose and transubstantiate into a purely criminal case. The end result now is that the Appellant has suffered irreparable damage, disgrace, shame, odiousness and untold hardship in the hand of the Police that is constitutionally and legally saddled with prosecution of criminal offences. The police have muzzled the rights and freedom of Nigerians even where cases are clearly outside their jurisdiction, power or corridor. If this is not curbed, everybody including the judicial officers will suffer always from floodgates of civil matters being hijacked by the police and transmuted into crimes. If this is not tackled, everybody would have suffered in the merciless hand of the police who has become a law unto itself in this country. The primary duty of the Police by Section 4 of the Police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders. See IBIYEYE V. GOLD(2012) ALL FWLR (PT 659) 1074. The Police is not a debt recovery agency and has no business to dabble into contractual disputesbetween parties arising from purely civil transactions. See MCLAREN V. JENNINGS (2003) FWLR (PT 154) 528. When, as in the circumstances of this action, a purely civil matter is reported to the Police, such a person cannot go scot-free as the report ought not to have been made at all since it is not within the purview of Police duties. It is a report made mala fide and he will be equally liable for the action taken by the Police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place. Such conduct which portrays disregard of the law and is aimed at using the coercive powers of the State to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages. See OKAFOR & ANOR V. AIG POLICE ZONE II ONIKAN & ORS (2019) LPELR-46505.”
It needs to be stated that Section 35(1) which grants power to the investigative agencies to arrest and detain upon reasonable suspicion does not only confer enormous powers of arrest and detention on those agencies, but also imposes upon them a duty to ensure the reasonableness of their suspicion beforeembarking on arrest or detention of their subjects. They have a duty to carefully scrutinize every complaint made to them and determine whether there is reasonable grounds for proceedings against the subject(s) of those complaints. This duty is more pronounced where such complaints relate civil, contractual or commercial transactions. They must make sure there are elements of criminality upon which a reasonable suspicion of commission of a crime can be hinged before embarking on arrest and detention of their subjects. This is because apart from granting those enormous powers of arrest and detention to the investigative agencies, the Constitution has not only granted a right of action for enforcement of fundamental rights in its Section 46, but it has in its Section 6(6)(b) also subordinated the exercise of those powers of arrest and detention to the supervision of the Courts.

In the instant case, after finding as he did, that the dispute between the 1st and 2nd Respondents and the 5th Respondent was purely civil and contractual, the learned trial Judge also held at pages 392–394 as follows:
“There is Exhibit EFCC B, which comprisesof the condition of bail granted the Applicants by the 1st to 4th Respondents, the application for bail by learned counsel for the Applicant to the 1st Respondent and the bail bond exhibited. These Exhibits by the 1st–4th Respondents has clearly extinguished the learned counsel for the 5th Respondent’s submission to wit, that the 1st Applicant did not prove he was arrested. Having adjudged that the dispute reported to the 1st to 4th Respondents is civil in nature which has no element of criminality, I find that the arrest of the Applicant, whether for one day or half a day, is unjustifiable. There would definitely have been nothing amiss, it the 1st to 4th Respondents had just informed the Applicant of the petition rather than requesting a debit freeze on his bank account on the 28th day of May, 2018 and detaining him when his (sic) reported at their office. The allegation of huge sums of monies owed, always makes our security agencies’ ears to tingle. That should not be the case, because it is not every instance where large sums of monies are in disputes that presents elements of crime. In that wise, in answer to the 1st issue raised by 5thRespondent, I find that the Applicants who has the onus of proof in a case of infringement of his fundamental right has proffered weighty evidence before the Court to show that, indeed this was a case of dispute as to payment of a debt owed or a breach of contract to pay for goods supplied to the Applicant by the 5th Respondent and no more. See Athanisius Vs Ewa and Ors (2015) LPELR-40589 (Court of Appeal). In that wise, the 1st–4th Respondents were not clothed with the vires to even entertain the report at a glance thereof, since ex facie, the Exhibit EFCC A speaks volumes of a civil case in commercial dealings between the Applicants and the 5th Respondent.”

Given my careful review of the evaluation of the affidavit evidence and exhibits on record, I hold the considered view that the trial Court was right to hold, as it did above, that the 1st Respondent had established that Appellants’ acts violated his fundamental rights. In consequence, I also resolve this issue against the Appellants.

RESOLUTION OF ISSUE 5:
Whether the award of N500,000.00 (Five Hundred Thousand Naira) in favour of the 1st and 2nd respondents was in line withthe principles of law, in view of the facts and circumstances of this case.

The Constitution of the Federal Republic of Nigeria, 1999 which has made provision for fundamental right to personal liberty in Section 35(1) of its Chapter IV and granted a right of action in Section 46 thereof has also provided remedy where there is an infringement of the fundamental right to personal liberty. Subsection (6) of the said Section 35 of the Constitution provides as follows:
(6) 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.
The right to damages and public apology for unlawful arrest and detention is therefore constitutionally guaranteed as shown above.

It is trite that damages are generally presumed by law, and the assessment and award of damages is generally within the discretion of the trial Court. The principles under which an appellate Court can interfere with the award of damages by a trial Court have become legion, having beenseverally restated by the appellate Courts. These principles can be summarized as follows:
(i) That an appellate Court will not interfere to substitute a figure of its own for that awarded by the lower Court simply because it would have awarded a different figure if it had tried the case at first instance.
(ii) That an appellate Court will interfere if it is satisfied that in assessing the damage, the Judge had applied wrong principles of law or taken into account some irrelevant facts or left out some relevant facts.
(iii) That an appellate Court will also interfere where the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage.
See: OBERE v BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (1978) LPELR-2162(SC), per Fatayi-Williams, JSC (as he then was) at page 14, paras. A–E; WILLIAMS v DAILY TIMES OF NIG LTD (1990) LPELR-3487(SC), per Uwais, JSC (as he then was) at pages 99–100, paras. D–D; UWA PRINTERS (NIG) LTD v INVESTMENT TRUST CO. LTD (1988) LPELR-3441(SC), per Wali, JSC at pages 21–22, paras. D–A;STIRLING CIVIL ENGINEERING (NIG) LTD v YAHAYA (2005) LPELR-3118(SC), per Ejiwunmi, JSC at pages 29–30, paras. D–C; IBEKENDU v IKE (1993) LPELR-1390(SC), per Omo, JSC at page 26, paras. A–D; andUBA v OGUNSANYA & ANOR (supra).

The Appellants in this appeal tried to argue that the trial Court acted on wrong principle by arguing that they acted in accordance with their investigative powers and that the 1st Respondent was never arrested and detained by the Appellants. But as shown above, the trial Court had, based on what is a proper evaluation of the evidence before it, found that the 1st Respondent was unlawfully arrested and detained by the Appellants and his bank account unlawfully frozen as a result of which the 1st and 2nd Respondents suffered loss in the sense that their farm was run down to 20% of egg production.

It is settled that aggravated damages may be awarded in fundamental rights enforcement proceedings. In FEDERAL MINISTRY OF INTERNAL AFFAIRS v SHUGABA DARMAN (1982) 3 NCLR 915, it was held that “a Court can award damages for infringement of rights of a citizen, the Court ought to award such damages as would serve asdeterrent to naked arbitrary and oppressive abuse of power in this case.” Also in ODOGU v A.G. FEDERATION & ORS (1996) LPELR-2228(SC), the Supreme Court, per Ogundare, JSC had held at page 12 paras. B–C, that “Exemplary damages are usually awarded 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 the like.”
In the circumstance of this case, the Appellants have by arresting and detaining the 1st Respondent and freezing the bank account of the 1st and 2nd Respondents for a purely civil and contractual dispute have shown a flagrant disregard of the law meriting the award of the damages of N500,000.00 granted by the trial Court. In consequence, I also resolve this issue against the Appellants.

On the whole, having resolved all five issues against the Appellants, the appeal is clearly devoid of merit. Accordingly, I dismiss same for being unmeritorious and affirm the judgment of the trial Court delivered by Hon. Justice A. O Abdulmalik on the 1st of April, 2019 in Suit No. FHC/IB/CS/77/2018: ELDER FRANCISMORAKINYO AFOLABI & ANOR. v ECONOMIC & FINANCIAL CRIMES COMMISSION & 5 ORS. Cost of N100,000.00 (One Hundred Thousand Naira only) is hereby awarded in favour of the 1st and 2nd Respondents against the Appellants.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the rare advantage of reading the draft of the judgment just delivered by my learned brother, Abba Bello Mohammed, JCA.

On the objection of the 1st and 2nd Respondents, the learned counsel for the Appellants rightly admitted, and should be commended for doing so, that no issue was distilled from ground 4. It is trite law that a ground of appeal from which no issue has been formulated, framed or raised is deemed abandoned and it is liable to be struck out.

In respect of the substantive appeal, it is also settled law that security agencies, such as the Nigeria Police Force and the 1st Appellant, have no business in excavating or digging into purely civil or contractual transactions such as the Appellants did in this case.

It is for the foregoing reason and the fuller reasons given by my learned brother that I also dismiss this appeal for being bereft of any merit.

I abideby the consequential orders made by my learned brother.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the benefit of reading in advance, the draft judgment of my learned brother, ABBA BELLO MOHAMMED, JCA. My Lord has analyzed the facts in the appeal and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. Just for purpose of emphasis, the law is trite that once it is adjudged that the fundamental rights of an Applicant has been violated, damages is inferred and activated, as the Applicant is entitled to compensation in damages. The quantum of damages awardable is always at the discretion of the trial Court, depending on the gravity of the violation and claims/parties affected. See the case of IWUNUNNE VS EGBUCHULEM & ORS (2016) 40515 CA, SECTION 35(6) OF THE 1999 CONSTITUTION, OZIDE & ORS VS EWUZIE & ORS (2015) LPELR-24482 CA and IGWEOKOLO VS AKPOYIBO & ORS (2017) LPELR-41882 CA. Therefore, the award of N500,000.00 by the trial Court is justified.

I agree with the reasoning and conclusion of my learned brother, and abide by the consequential orders contained therein.

Appearances:

Ifeanyi Agwu, Esq. with him, O. Oyediran, Esq. For Appellant(s)

J. D. Olaniyan, Esq. with him, E. O. Ajala-Adeoye, Esq. for the 1st and 2nd Respondents. For Respondent(s)