EMODI v. REGD TRUSTEES OF ASABA SPORTS CLUB & ORS (2020)

EMODI v. REGD TRUSTEES OF ASABA SPORTS CLUB & ORS

(2020)LCN/14601(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/AS/371/2014

RATIO

PLEADINGS: THE CONCEPT OF FUNDAMENTAL HUMAN RIGHTS

The concept of Fundamental human rights has been defined by this honorable Court in STATMAK v C.O.P & ANOR (2018) LPELR – 46324 (CA); “Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome – Kuti Vs. Attorney General of the Federation (1985) 2 NWLR (PT. 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental right are rights derived from natural or fundamental law – Igwe Vs Ezeanochie (2010) 7 NWLR (Pt. 1192) 61. The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. Fundamental rights are rights which are owed to man because of the very fact that he is man. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental pre requisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (pt. 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights – IGWE V Ezeanochie supra.”
per ABIRU, JCA (PP. 40 – 42, PARAS. B – A).
The Court also held in BOBADE OLUTIDE & ORS v ADAMS HAMZAT & ORS (2016) LPELR – 26047 (CA); “Now, I understand, Human rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international Law. They are commonly understood as inalienable fundamental rights. These rights are based on the belief that everyone is equal and should have the same abilities and opportunities. Embedded in these rights are the abilities to understand another person’s feelings, experience and the rule of law. In other words, do unto others what you want done to yourself. Thereby it is safe to say that these rights impose an obligation on all persons as human beings to respect the human rights of others. However, these rights can be taken away though as a result of due process based on certain circumstances.”
per DENTON – WEST, JCA (PP. 11 – 12, PARAS C – A)
See also; ALHAJI NOJIYA ISIYAKU & ANOR v COMMISSIONER OF POLICE, YOBE STATE (2017) LPELR – 43439 (CA); WILLIAM & ANOR v USEN & ORS (2018) LPELR – 46163 (CA); NIGERIA CUSTOMS SERVICE BOARD V MOHAMMED (2015) LPELR – 25938 (CA); AGBAI & ORS v OKOGBUE (1991) LPELR – 225 (SC) Now the essence of an application for fundamental human right was held in INSPECTOR GENERAL OF POLICE & ORS v PETER O. IKPILA & ANOR (2015) LPELR – 40630 (CA); to be thus;
“…the true essence or import of the proceedings under the Fundamental Rights Enforcement Procedures Rules for the protection and enforcement of the fundamental rights of the citizen was very recently captured in the pronouncement of the Supreme Court in Jim Jaja V. COP Rivers State (Supra) at p; 66 where His lordship, Muntaka – Coomassie, JSC., had waxed so succinctly thus: “The procedure for the enforcement of the fundamental human right was specially promulgated to protect the Nigerian’s fundamental right from abuse and violation by authorities and persons. When the breach of the right is proved, the person is entitled to compensation even if no specific amount is claimed.” (UNDERLINING MINE)
per GEORGEWILL, JCA (P. 69, PARAS. A – E)
See also; NWEKE & ORS v THE IGP & ORS (2013) LPELR – 21173 (CA), where it was held thus;
“Fundamental Rights are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. Where these rights are to be enforced in Court the Court(sic) within reasonable limits must do all that is necessary to cause a flourishing of these rights” (UNDERLINING MINE)
per ADAH, JCA (P. 17, PARAS. D -G) From a close perusal of the law and prerogative of the Fundamental Human Right Enforcement Rules, it is clear that the above mentioned criminal cases however, does not rob the lower Court of its power or jurisdiction to determine whether as at the 22nd of March, 2013, the action of the 1st – 13th Respondents in respect of which the application to enforce fundamental rights was brought amounted to a breach or infringement of any of the rights of the Appellant as guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999. See; MR OSONDU & ANOR v ATTORNEY GEN OF ENUGU STATE & ANOR (2017) LPELR -43096 (CA); AKINOSUN v COP KWARA STATE & ANOR (2020) LPELR – 49739 (CA).
The reliefs of the application are squarely founded under Chapter IV of the Constitution, and have been described as standing above ordinary laws of the land and a primary condition for civilized existence; KUTI v A.G FED (1996) 41 LRCN 200, ODOGWU v AG FED (1996) 9-10 SCNJ 51.
In IBANGA & ORS v SILAS LINUS AKPAN & ORS (2018) LPELR -46167 (CA), OGBUINYA JCA held;
Thus they occupy a kingly position in the residence of human rights, it allocates to every citizen whose fundamental right is or being harmed, even qua time, to approach the Court to persecute his complaint and obtain redress. See; SEATRUCKS (NIG) V ANIGBORO (2001) 2NWLR (695).”
The lower Court misdirected himself in refusing to consider the application in its decision that a subsequent criminal charge or arraignment would constitute a bar/complete defence to an application to enforce fundamental human right. The lower Court abdicated its responsibility in this regard.
In SAMBO & ORS v SOLOMON ETIM OKON & ORS (2013) LPELR – 20394 (CA), TUR, JCA (of blessed memory) held thus;
“Paragraphs 3(a) – (b), (c), (f) & (g) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are very instructive in the determination of the issues in controversy …They are couched in the preamble as follows; “3. The overriding objective of these rules are as follows: (a) The constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedom contained in them and affording the protections intended by them. (b) for the purpose of advancing but never for the purpose of restricting the Applicants rights and freedom, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions… (c) For the purpose of advancing but never for restricting the Applicants right and freedoms. The Court may make consequential orders as may be just and expedient…”
(PP. 17 – 24, PARAS. B – A) Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: JURISDICTION

Having held that the appeal has merits, the Appellant in its brief urged this Court to invoke the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 3 of the Court of Appeal Rules, 2016 for this Court to rehear the case. See ELEAZER HEMAN DANGOMBE v BITUS ISAH LASSAJANG (2016) LPELR – 40791 (CA), where it was held that; “…This provision vests in the Court of Appeal, a general power: “to make any order necessary for determining the real question in controversy in the Appeal.” By virtue of this provision, this Court has power to make any order to ensure the determination on the merits of the real question in controversy between the parties. It undoubtedly gives the Court full jurisdiction over the whole proceedings of the Lower Court as if the proceedings had been instituted in this Court as a Court of first instance; and so this Court may re-hear the case in whole or in part, or may remit it to the Court below for the purpose of such re-hearing. These general powers vested in the Court of Appeal were designed to enable the Court clear whatever technical mistakes or obstacles which may be in the way of a fair determination of the Appeal on its merit or of determining the real question in controversy in the Appeal. However, one incontestable limiting factor to the power of Court to assume full jurisdiction over the whole proceedings is that such first instance jurisdiction exercised by the Court of Appeal pursuant to Section 15 of the Act does not include what the trial Court could not have done. See Obi V INEC (2007) 11 NWLR (Pt. 1046) 565; Comptoir Ltd V Ogun State Water Corporation (2002) 3 SCNJ 342; AG Anambra State V Okeke (2002) 5 SCNJ 318. The purpose of the provision is, in my view, to obviate delayed justice. Additionally, in interpreting Section 15 of the Court of Appeal Act, 2004, the Supreme Court has, in the cases of: Ezeigwe V Nwawulu (2010) LPELR – 1201 (SC); Amaechi V INEC (2008) 18 NWLR (Pt. 1119) 489; Obi V INEC (2007) 4 NWLR (Pt. 1046) 465; & Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423, stated the extant position of the law explicitly. For the provision to apply, the following conditions must exist: (a) The Lower Court or trial Court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it; (b) That the real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) That all necessary materials must be available to the Court for consideration; (d) That the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” per SANKEY, JCA (PP. 24 – 27, PARAS. E – G). See also; NJIDEKA EZEIGWE v CHIEF BENSON CHUKS NWAWULU & ORS (2010) LPELR – 1201 (SC); ENGINEER EMMANUEL CHUKWUEMEKA OKEKE v NNAMDI AZIKIWE UNIVERSITY (2018) LPELR – 43781 (CA); OKORONKWO v FRN (2013) LPELR – 22564 (CA); VERNER v FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA (2017) LPELR – 43001 (CA); WOODCOTE PROPERTIES LTD v IFEMADAM & ORS (2018) LPELR – 46209 (CA). Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADING: ARREST

An arrest as defined in the Black Law Dictionary, 9th Edition is;
“1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a Court.”
See also; BISHOP NYONG DAVIS AYAKNDUE & ORS v BISHOP E. E. EKPRIEREN & ORS (2012) LPELR – 20071 (CA).
From the definition above, an arrest is not synonymous to being locked behind bar, it entails a restraint of someone’s freedom of movement. The 1st – 4th Respondents have contended that the Appellant was not arrested by the police on the 13th of December, 2011. This contention is negated by Exhibit A1 tendered by the 5th – 13th Respondents which is the photocopy of the Appellant/Applicant’s bail bond. Why would a bail bond be executed if no arrest was made? The Appellant was released on bail on self-recognition.
In MR. TAJUDEEN SHONEYE v THE STATE (2015) LPELR – 25862 (CA), a bail was defined as;
“Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a date and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties and is accounted by law to be in their custody though they may free themselves from further responsibility if they surrender him to the Court before the date assigned. Ojo vs FRN (2006) 9 NWLR (Pt. 984) Pg. 105.”
per NDUKWE – ANYANWU, JCA (PP 4 – 5, PARAS. E – A). See also; STATE v IBRAHIM & ORS (2014) LPELR – 23468 (CA); CALEB OJO & ANOR v FEDERAL REPUBLIC OF NIGERIA (2006) LPELR – 5423 (CA); IBRAHIM BASHIR v FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 45103 (CA). It is common knowledge that a bail is only necessary when an arrest has occurred. The Bail on self-recognizance would have totally been unnecessary if the Appellant was not detained/arrested. Exhibit A1 is a documentary evidence that speaks for itself and it is unwarranted/un-necessary for a judge to assume that it is within his exclusive province to make findings of fact when such findings depend much or entirely on documentary evidence. The existence of Exhibit A1 give credence and credibility to the Appellant/Applicant’s testimony in paragraphs 12 – 18 of the Affidavit setting out the facts upon which the Application is made. See; B. A. ALADE & ORS v MR. AYODELE OGUNDELE & ANOR (2013) LPELR – 21382 (CA); EZE v STATE (2018) LPELR – 43715 (SC); OYEWUSI & ORS v OLAGBAMI & ORS (2018) LPELR – 44906 (SC).
It is safe to therefore deduce that the Appellant was arrested/detained by the Police on the 13th of December, 2011. Now, it is necessary to state that there is no law against an arrest but this is qualified by Section 36 of the 1999 Constitution (as amended) that the person must be released after 24 hours and if not after he must be arraigned before a Court of law, see Section 35 (5) (a) of the 1999 Constitution (as amended). Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

AUGUSTINE O. EMODI, ESQ. APPELANT(S)

And

THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB 2. CHIEF BEN ANAZIA 3. MR. OBI ADIMKPAYA 4. IFEANYI M. O NWABUOKU, ESQ. 5. MR. IKECHUKWU ADUBA (FOR THEMSELVES AND ON BEHALF OF MEMBERS OF ASABA SPORTS CLUB) 6. SERGEANT EMMANUEL ADAMA 7. MR. BOLA ALABI (ASP) 8. BOB COLLEGE, ESQ. (DSP) 9. MR. ALEX GWOZOH 10. MR. DASUKI GALADANCHI (ACP) 11. THE COMMISSIONER OF POLICE DELTA STATE 12. THE ASST. INSPECTOR-GENERAL OF POLICE, NIGERIA POLICE ZONE 5, BENIN CITY 13. THE INSPECTOR- GENERAL OF POLICE 15. NEW MILLENNIUM INVESTMENT LIMITED 16. THE CHIEF REGISTRAR, HIGH COURT OF JUSTICE, DELTA STATE RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the decision of Delta State High Court, Obiaruku Coram Hon. Justice M. N. Obi delivered on 20th February, 2014 dismissing the Appellant’s application on the ground that the application has been overtaken by event.

The Appellant at the lower Court in the Mandatory Amended Statement filed on 22nd January, 2014 sought the following reliefs;
1. A Declaration that the arrest of the Applicant and the forceful invasion of the Applicant’s office on the 13th day of December, 2011 by the 1st – 8th, 11th – 13th Respondents is a breach of the Applicant’s fundamental rights as guaranteed under Sections 34 (1), 35 (1), 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999.
2. A Declaration that the further threats of arrest, attempt to arrest and detain the Applicant in the circumstances of this suit is a breach of Applicant’s fundamental rights as guaranteed under Section 34 (1), 35 (1), 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999.
3. A Declaration that the attempt to abduct,

kidnap and/or arrest the Applicant at about 10.00 am on the 22nd day March, 2013 at the premises of the High Court of Justice, No. 4 Asaba, Delta, in the circumstances of this case and the physical assault and manhandling of the Applicant is barbaric, degrading, inhuman, unlawful and a breach of the Applicant’s fundamental rights as guaranteed under Section 34 (1), 35 (1), (2), (4) (b) and 41 (1) of the Constitution.
4. A Declaration that taking away of the Applicant’s Mitsubishi Montero Jeep, with Registration – No. EJ 787 LSR from the premises of the High Court of Justice No. 4, Asaba, Delta State to an unknown destination is unlawful and a breach of the Applicant’s fundamental rights as guaranteed under Sections 43 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999.
5. A Declaration that any warrant of arrest issued to the 1st – 10th Respondents by any Magistrate, Judge or Judicial Officer of the 16th Respondent to arrest the Applicant is unlawful as the Applicant had been arrested and released on bail for the same offence on the 13th day of December, 2012 is unlawful and a breach of the

Applicant’s fundamental rights as guaranteed under Section 34 (1) (a) and 35(4) (b) of the Constitution of the Federal Republic of Nigeria 1999.
6. An order of injunction restraining the Respondents by themselves, their agents, servants, privies and/or assigns from further arresting, detaining or in other manner whatsoever deprive the Applicant of his fundamental rights as guaranteed by Section 34 (1), 35 (1), 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 in respect of all matters concerning, pertaining to or connected with or relating in anyway whatsoever to ownership and trespass to the property situate at Pinnock’s Beach, Asaba, which is the subject matter of (1) SUIT NO.A/266/2011: THE INCORPORTED TRUSTEE OF ASABA SPORTS CLUB & 5 ORS VS DR. JOHN JIDEONWO & 2 ORS (2) SUIT NO. A/268/2011 NEW MILLENIUM INVESTMENTS LTS VS THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & 12 ORD AND (3) SUIT NO.A/44/2012 UNITED AFRICAN COMPANY (Suing by its attorney New Millennium investments Ltd) Vs THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & 13 ORS.
7. An order compelling the 6th – 13th Respondents to

immediately release (i) the Applicant Mitsubishi Montero Jeep with Registration Number EJ 787 LSR together with Applicant’s (ii) Pilot Suit Case (iii) case files (iv) lawyers’ wig and gown (v) Apple IPAD device to the Applicant.
8. The sum of N40,000,000 (Forty Million Naira) only against the Respondents jointly and severally being compensation for the breach and threatened breach of the Applicant’s fundamental rights as guaranteed.”
See pages 233 – 4 of the Record.

Their statement also had 5 grounds on which the reliefs were sought.
The lower Court dismissed the application of the Appellant and refused the reliefs therein.

Dissatisfied, the Appellant filed his Notice of appeal on 16th May, 2014, and his brief of argument on 29th September, 2014 which was settled by Ogaga Omekeh, Esq and his reply brief filed on 16th September, 2019 was settled by R. O. Okonyia, Esq, both counsel of A. O Akpiroroh & Co, wherein the following issues were formulated for determination;
1. Whether the Learned Trial Judge was right when he refused the Appellant’s application to enforce his fundamental rights on

the ground that the application “has been overtaken by event to wit the criminal proceedings initiated by the 1st – 13th Respondents against the Appellant after being served with the originating processes in the suit the subject matter of this appeal”. This issue is distilled from Grounds 1 and 2 of the Notice and Grounds of Appeal (page 243 of the Record of Appeal).
2. Whether the failure of the Learned Trial Judge to evaluate the evidence presented before him in the application and make findings thereon on the ground that to decide that the Appellant’s right has been violated would(sic) tantamount to a “Non feasance” This issue is covered by Ground 2 and 3 of the Grounds of Appeal at pages 243 – 245 of the Record of Appeal.

The 1st – 4th Respondents in response also filed their brief of argument on 25th July, 2016 and was settled by A. U. Oforlea Esq. of A. U. Orforlea & Co, who also adopted the Appellant’s issues for determination.

The 5th – 13th Respondents did not file any brief in this appeal, in spite of the fact that they were served and are persons affected by this appeal. See pages 242 – 247 of the record.

APPELLANT’S SUBMISSIONS
Appellant submits that the Learned trial judge is bound by the doctrine of stare decisis in the decision of the Court in EFCC v ODIGIE (2013) ALL FWLR PT. 692 1797.

That there is admitted evidence on both sides that at the time the Respondents attempted to re–arrest the Applicant on the 19th/22nd day of March, 2013, the following suits were pending before the High Court of Justice, Asaba;
1. Suit No. A/266/2011: The Incorporated Trustees of Asaba Sports Club & 5 Ors v John Jideonwo & 2 Ors.
2. A/268/2011: New Millenium Investments Ltd v The Registered Trustees of Asaba Sports Club & 12 Ors.
3. Suit No. A/44/2012: United African Company (Suing by its attorney NEW MILLENIUM INESTMENTS LTD) v THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & 13 ORS.
which were to determine various aspect of ownership of the property at Pinnocks Beach, Asaba and damages for trespass to same property of which the Appellant is Counsel for the 14th – 15th Respondents who are the Defendants, Claimants and Claimants respectively in the above three cases with the 1st

– 4thRespondents as Plaintiffs and vice versa.

It is the further submission of the Appellant that the facts in the case of EFCC v ODIGIE (Supra) is virtually on all fours as the Appellant’s case at the lower Court and it was wrong for the trial judge to decline to decide the Appellant’s application before him, on the ground that the 1st – 13th Respondents initiated criminal proceedings against the Appellant
NDILI v AKINSUMADE (2000) FWLR (PT. 5) 750 AT PAGE 804, PARA A was cited.

On issue 2, it is the Appellant’s submission that, it is on record and all parties agree that the Criminal suits/proceeding against the Appellant were only initiated after the 1st – 13th Respondents were served with the Appellant’s originating process in this suit at the lower Court.

That the fact that criminal proceedings were initiated against the Appellant does not rob the lower Court of the power or jurisdiction to determine whether as at the 19th of March, 2013, the actions of the 1st – 13th Respondents amounted to a breach or infringement of any of the alleged rights of the Appellant as guaranteed under

Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999.
The Appellant further submits that Section 46 (1) of the 1999 Constitution (as amended) makes it clear that the Appellant is entitled to apply to enforce the rights enshrined in Chapter IV.
That the trial judge is duty bound to inquire, evaluate and render a decision whether or not from the affidavit evidence before him any of the Appellant’s fundamental rights is, has been, is being or is likely to be infringed or breached in the circumstances of the case.

Appellant contends that the subject matter is over alleged acts of destruction of Pinnock Beach, Asaba which property is the subject matter of Suits since 2011, in which pleadings has been exchanged. That it is also before the Court that the said Warrant of Arrest was not issued by any judge or Magistrate under the Delta State Judiciary represented by the 16th Respondent, NDILI v AKINSUMADE (SUPRA) was cited in aid.

Appellant submits that based on Section 15 of the Court of Appeal Act; Order 4 Rule 3 of the Court of Appeal Rules, 2011; and NDILI v AKINSUMADE (SUPRA) there are certain principles guiding this Court in

exercising its power to re-hear a case and that this Court should consider same on evidence which are all documentary rather than send the case back to the trial Court. Counsel also cited; OTERI v OKORIDUDU (1970) 1 ALL NLR 194; EFCC v ODIGIE (SUPRA).

1st – 4th RESPONDENTS SUBMISSION
Counsel submits that the Appellant was never a party in the three cases at the High Court of Justice, Asaba nor was he connected or affected, but was a counsel to the 14th and 15th Respondents

Counsel disagreed that facts of this case in issue is on all fours with the case of EFCC v ODIGIE (2013) ALL FWLR (PT. 692) 1797 therefore, the lower Court had nothing before him to follow in line with the stare decisis doctrine, and he was therefore right in his ruling. OSAKUE v FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) ALL FWLR (PT. 522) 1601; FAWEHINMI v NBA (2008) ALL FWLR (PT. 448) 205; ONAH v OKENWA (2010) 7 NWLR (PT. 1194) 512 was cited in aid.

It is further submitted that while the judgment was being delivered in this case by the trial Court, there were two pending criminal suits against the Appellant at the Chief Magistrate Court, Asaba.

Counsel contends that 1st – 4th Respondents never initiated any suit against the Appellant, rather as gleaned from the record of proceedings; the Police instituted the suit against the Appellant and another against the Appellant and 14th & 15th Respondents.
Counsel urge the Court to refuse the Appellant’s appeal based on issue 1.

In issue 2, the Counsel relying on FAJEMIROKUN v COMMERCIAL BANK (NIG) LTD (2009) 5 NWLR (PT. 1135) 588 submits that the Police initiated the criminal proceedings against the Appellant and that it is within their discretionary powers to do so. That the police only invited the Appellant to come and make additional statement over the Petition of the 1st and 2nd Defendants against the 14th Respondent, having discovered during their investigation that the car belonged to the Appellant. The Appellant turned down the request.

Counsel opines that the second charge against the Appellant and the 14th Respondent also did not in any way affect the 1st – 4th Respondents as it flowed from the Police discretion.

FAJEMIROKUN v C. B (NIG) LTD (SUPRA); EZEADUKWA v MADUKA (1997) 8 NWLR (PT. 515);

Section 138 (2) of the Evidence Act were relied on in submitting that where an Applicant alleges that he has been arrested and detained by the Police on the instigation of other persons, and the Respondents denies same, the onus lies on the Applicant to prove that the Respondents were instrumental to his arrest and detention.

He cited; NDIKA v CHIEJINA (2002) FWLR (PT. 117) 1178 @ 1204, R. 12 CA; YEKINI AJESEFINI v DPP (2002) FWLR (PT. 122) 88 @ 106, R. 13, CA; STATE v DUKE & ANOR (2003) FWLR (PT. 171) 1654, @ 1689.

Relying on ALHAJI KADIR v ALHAJI YUSUF (2003) FWLR (PT. 151) 1930 @ 1937, R. 6 CA; OHWOVORIOLE (SAN) v FRN (2003) FWLR (PT. 141) 2019, @ 2036, Counsel submits that the learned trial judge exercised its judicial discretion in the evaluation of the evidence. He further cited the cases of AWANI v EREJUWA II (1976) SC 307; ODUSOTE v ODUSOTE (1971) ANLR 219 SC; CBN v OKOJIE (2002) 3 SC 99 @ 104; UNIVERSITY OF LAGOS & ANOR v AIGORO (1984) 1156 – 1520, @ 221 – 22; OLASEINDE v FHA (1999) 9 NWLR, (PT. 619) 448 @ 455.

Counsel submits that the trial Court’s decision in the exercise of her discretion judicially and judiciously and also

none of the exceptions in the case which calls for the intervention of the Appellate Court arose in the trial Court’s exercise of discretion in deciding the trial Court’s case. INTEGRATION (NIG) LTD v ZUMAFON NIG. LTD (2014) ALL FWLR PT. 727, P. 681, @ 689, PARA. C – D, R. 3; AIYEOLA v PEDRO (2014) ALL FWLR (PT. 744) P. 17, @ 38, R. 2. PARA. C – E; SANKAY v ONAYIJEKE 749, P. 1034, @ 1070; SHITTU v OLAWUMI (2014) ALL FWLR (PT. 722) P. 1679 @ 1699, PARA. G – H, R. 2; I. P LTD v RICELAND INT’L LTD (2014) FWLR (PT. 721) 1590; AKINDIPE v STATE (2009) ALL FWLR (PT. 452) P. 1163; MAJUMESEBO v EHUWA (2014) ALL FWLR (PT. 355) P. 362, R. 13, PARA. H. B; OGOLO v OGOLO (2006) ALL FWLR, (PT. 313) P 1, R. 1; OKE v MIMIKO (2014) ALL FWLR (PT. 714) 126, @ 190, R. 5, PARA. A – C; OSMUND ONUOHA & ANOR v STATE (1998) 5 NWLR (PT. 548), P. 118, @ 132, R. 13 were cited in aid.

Counsel urge the Court to dismiss the Appeal as most of the issues contended by the Appellant in his brief are not true and correct and as such denied.

APPELLANT’S REPLY SUBMISSION
It is the submission of the Appellant that arguments

canvassed by the 1st – 4th Respondents in their brief did not relate to the issues raised by the Appellant in his brief. He however addressed issues raised by the 1st – 4th Respondents in their brief.

On the arguments in paragraph 4.1 of the 1st – 4th Respondents’ brief, it is the submission the Appellant that in the decision of EFCC v ODIGIE (2013) ALL FWLR (PT. 692) 1797, the Court held that the Applicant, his members of Staff, family are rightly protected by the Applicant’s application. His lawyer if he was being hounded ought to have been even more protected in the circumstances.

With respect to paragraph 4.3 of the 1st – 4th Respondents’ brief, the Appellant contends that the 1st – 4th Respondents are falsely and maliciously claiming title to the land in the face of title documents; Exhibits A. O. 16 and A. O 17.

In reply to paragraph 5.0 of the 1st – 4th Respondents’ brief, the Appellant contends that the two criminal proceedings were only initiated after the Appellant filed his application to enforce his Fundamental right. He further submits on paragraph 5.0 that there is no

dispute on the fact of the first arrest of the Appellant, as the bail bond is prima facie proof of the Appellant’s arrest and release on bail. Still on paragraph 5, the Appellant contends that there is no issue of identity of the person who allegedly committed the offence and there was no allegation that the Appellant’s car was used to destroy the alleged property.

OZIDE & ORS v EWUZIE & ORS (2015) LPELR – 24482 (CA); OCEANIC SECURITIES INTERNATIONAL LIMITED v ALH. BASHIR OLAIDE BALOGUN & ORS (2012) LPELR – 9218 (CA) were cited in submitting that ONAH v OKENWA (2010) 7 NWLR (PT. 1194) 512 did not apply in this suit when the report made by the 1st – 4th Respondents to the police is false and malicious to the knowledge of the 1st – 13th Respondents.

In response to paragraph 5.3 of the 1st – 4th Respondent’s brief, it is the submission of the Appellant that they failed to draw a distinction between allegations which are public in nature in which the police may charge in the Public interest and cases as in this circumstance which are purely private matters. That the 1st – 4th Respondents

certainly set the law in motion against the Appellant by their false and malicious allegations.

On paragraph 6.3 of the 1st – 4th Respondents’ brief, the Appellant submits that the issues raised by this appeal is not whether the police acted lawfully or unlawfully, the ground of this appeal is that the Learned trial judge dismissed the application without making a finding on any of the above issues which arise for determination in the application.

In response to the arguments canvassed in paragraphs 6. 5, 7.0 – 8. 0 of the Respondents’ brief relating to evaluation of evidence, discretion, it is the submission of the Appellant that the trial judge simply held that since the Appellant has been charged to Court, he ought to wait for the criminal trial to be completed before he can seek to enforce his fundamental rights. EKANEM v I.G.P (2008) ALL FWLR (PT. 420) 775 AT 783, F – H was cited in aid.

The Appellant urge that the appeal be allowed and that jurisdiction under Section 15 of the Court of Appeal Act, to decide the application instead of sending it back to the lower Court, as all materials/facts required to determine

the application on the merits are before My Lords.

The 15th Respondent had no allegations leveled against her by the Appellant and filed nothing, therefore, I shall deal with the implication in the resolution.

RESOLUTION
Before resolving the issues herein it is pertinent to state that the 14th Respondent was reported dead and name was struck out, while the 15th Respondent was represented by G. O Uyanna, and Agbakwu (D.D.D.A) with M. U. Dibia (A.C.S.C) and O. Eyisio (S.S.C) all of Delta State Ministry of Justice appeared for the 16th Respondent and informed the Court on the 1st of July, 2020 that they did not file any brief.

The 5th – 11th Respondents were served on 29th June, 2020 but were not represented by counsel in Court and did not file any brief.

Both parties are ad idem on the issues for determination, issue 1 and 2 are linked together, they would be resolved together. Without further ado, I would dive into the resolution of the appeal.

It is important to note that this is a fundamental human rights procedure application brought under the 2009 rules in 26th March 2013 but was transferred to Obiaruku division before it was

finally disposed of in 16th May, 2014. An amended statement was filed in January, 2014; addresses were adopted on 27th January, 2014.

The facts of this Fundamental Human Right Enforcement application are events building up to a year before, on contentions of other parties over ownership and possession of Pinnock’s beach Asaba, in which the Applicant was counsel to 14 & 15th Respondents in those actions and due to actions of Applicant in the conduct of his clients case which the Plaintiffs (who are also the 1st – 4th Respondents herein) in those cases termed extra counsel’s work, their allegations in this case became an off shoot of the criminal action filed. This is deduced from the maze of affidavits, counters affidavits and attached exhibits in the record of appeal.

The bone of contention in issue 1 therefore is; “whether the trial judge was right in refusing the application of the Appellant in light of the Criminal proceedings initiated against the Appellant’’.

The learned trial judge in refusing the Appellant’s application held thus;
“The fact that there was an encounter between the

Applicant and 6th and 7th Respondents on the 22nd day of March, 2013 is not in dispute. While the Applicant contends that the attempted arrest and seizure of his vehicle was a gross violation of his Fundamental Rights as enshrined in the 1999 Constitution as amended, it was the contention of the 1st to 13th Respondents that the Applicant was evading lawful arrest and that he has since been charged to Court in charge No: CMA/272C/2013 which, suit is still pending. It is contended that the vehicle was released on a bond. The Applicant does not dispute the existence of the said Criminal charges against him and that the charges are related to the same facts that gave rise to this Application. Clearly this suit has been overtaken by event. This Application cannot be determined in the light of the subsisting Criminal suits against the Applicant. This Court cannot in the face of the said Criminal Suits make a finding, one way or the other on the alleged arrest of the Applicant and seizure of the Applicant vehicle. To decide that his rights have been violated would be tantamount to pre judging the pending Criminal Suits. The parties raised several issues in their

Affidavit evidence and Address before his Court that have been bearing in subject matter of:
1. Suit No. A/266/2011: The Incorporated Trustees of Asaba Sports Club & 5 Ors vs John Jideonwo & 2 Ors.
2. A/268/2011: New Millenium Investments Ltd vs The Registered Trustees of Asaba Sports Club & 12 Ors.
3. Suit No. A/44/2012: United African Company (Suing by its attorney NEW MILLENIUM INESTMENTS LTD) vs THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & 13 ORS.
I shall resist the temptation in delving into the issues. In circumstances, this Application fails and reliefs sought REFUSED…” (UNDERLINING MINE)

The rationale behind the above decision of the learned trial judge can be summed as the trial judge refusing to hear the application/make a finding on the ground that the Appellant has been charged to Court and until the criminal trial(s) have been completed, the Appellant cannot seek to enforce his fundamental rights. This is the complaint of the Appellant in this appeal.

The concept of Fundamental human rights has been defined by this honorable Court in STATMAK v C.O.P & ANOR (2018) LPELR – 46324 (CA);

“Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome – Kuti Vs. Attorney General of the Federation (1985) 2 NWLR (PT. 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental right are rights derived from natural or fundamental law – Igwe Vs Ezeanochie (2010) 7 NWLR (Pt. 1192) 61. The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. Fundamental rights are rights which are owed to man because of the very fact that he is man. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and

criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental pre requisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (pt. 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights – IGWE V Ezeanochie supra.”
per ABIRU, JCA (PP. 40 – 42, PARAS. B – A).
The Court also held in BOBADE OLUTIDE & ORS v ADAMS HAMZAT & ORS (2016) LPELR – 26047 (CA);

“Now, I understand, Human rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international Law. They are commonly understood as inalienable fundamental rights. These rights are based on the belief that everyone is equal and should have the same abilities and opportunities. Embedded in these rights are the abilities to understand another person’s feelings, experience and the rule of law. In other words, do unto others what you want done to yourself. Thereby it is safe to say that these rights impose an obligation on all persons as human beings to respect the human rights of others. However, these rights can be taken away though as a result of due process based on certain circumstances.”
per DENTON – WEST, JCA (PP. 11 – 12, PARAS C – A)
See also; ALHAJI NOJIYA ISIYAKU & ANOR v COMMISSIONER OF POLICE, YOBE STATE (2017) LPELR – 43439 (CA); WILLIAM & ANOR v USEN & ORS (2018) LPELR – 46163 (CA); NIGERIA CUSTOMS SERVICE BOARD V MOHAMMED (2015) LPELR – 25938 (CA); AGBAI & ORS v OKOGBUE (1991) LPELR – 225 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant in his submissions on issue 1 heavily relied on the case of E.F.C.C v ODIGIE (SUPRA). In this case, the Respondent along with his company – Philovia & Jason Engineering Co. Ltd, had filed an action against Nassartex Brothers and Sons Ltd & Anor for the trespass on the former’s plot of land at Abuja, at the Federal Capital Territory High Court of Justice, Abuja. Another company – Gastex Enterprises Ltd. was joined later as a party in the said action which had started to hearing. However, while the suit was pending at the Court aforementioned, the Appellants, at the instance of Gastex Enterprises Ltd, arrested the Respondent and detained him in Benin City from 24th November, 2004 to 25th November, 2004 before taking him to Abuja where he continued in the detention cell of the Appellants up to 8th December, 2004 when he was released by the Appellants.

The Respondent filed an application at the Federal High Court, Benin City, alleging a breach of his fundamental rights in respect of his above arrest. He claimed the sum of N1, 000, 000. 00 only as general, special and exemplary damages for the infraction of his

constitutionally guaranteed rights aforementioned.

The trial Court, after hearing both parties, entered judgment for the Respondent and awarded the sum of N100,000,000.00 only to the Respondent. He further ordered that neither the Respondent nor any member of his family and staff should be arrested again by the Appellants, in respect of this matter, pending at the determination of the civil land matter at the Federal Capital Territory High Court, Abuja.

The distinguishing factor in this case is that the Appellant in this instant suit is not a party to either of the three suits pending at the High Court of Justice, Asaba but a counsel to the 14th & 15th Respondents unlike in the Odigie’s case, it was the party who filed and who was being detained in the light of pending suits.

Though he has complained that his chamber staffs were being harassed and this would very well be classified under the heading of staffs that ought to have been exempted from incessant arrests. This was sadly not the case in this instant suit. See paragraphs 12 – 15, 20 – 21 of the Appellant/Applicant’s Affidavit;

“12. On the 12th day of December, 2012, the 14th Respondent informed me that Mr. Tsafe – the Commissioner of the Police, Delta State (CP) had convened a meeting between the 14th Respondent and the 1st – 5th Respondents at the Nigeria Police, Delta State Command Headquarters, Okapanam Road, Asaba relating to the various acts of trespass and cross – allegations by the 11th Respondent and the 1st – 5th Respondents.
13. That I left it was an opportunity to get the bailiff of Court to serve the writ on the 1st – 3rd Respondents who are Defendants in the case. I then drove in my car to the Nigeria Police, Delta State Command, Headquarters, Asaba venue of the proposed meeting to enable the Bailiff serve the writ of summons and for the 14th Respondent to act as pointer.
15. That all attempts to explain to them that as Solicitor to the 14th and 15th Respondents in the pending suits at the High Court of Justice, Asaba over the subject matter, it will compromise my professional duties to the 14th and 15th Respondents to request me to do so fell on deaf ears.
20. That as a notorious modus of the police, after I made my statement, the said

policemen now initiated process to detain me in their police cell. When the fact to the knowledge of the 10th Respondent who was then Assistant Commissioner of Police in charge of the State Criminal Investigation Department (AC SCID), went through the case file and directed that I be released on bail on self recognizance and my car released to me on bond.
21. That I go back to my Chambers that evening to discover that 6th – 13th Respondent’s policemen had forcefully invaded my Chambers and physically manhandled my staff. I also found out that on the same day, the 14th Respondent was also arrested questioned and asked to write a police statement over the same allegation of destroying the 1st – 5th Respondents property.”
See also pages 8 – 9 of the record.

Now the essence of an application for fundamental human right was held in INSPECTOR GENERAL OF POLICE & ORS v PETER O. IKPILA & ANOR (2015) LPELR – 40630 (CA); to be thus;
“…the true essence or import of the proceedings under the Fundamental Rights Enforcement Procedures Rules for the protection and enforcement of the fundamental rights of the

citizen was very recently captured in the pronouncement of the Supreme Court in Jim Jaja V. COP Rivers State (Supra) at p; 66 where His lordship, Muntaka – Coomassie, JSC., had waxed so succinctly thus: “The procedure for the enforcement of the fundamental human right was specially promulgated to protect the Nigerian’s fundamental right from abuse and violation by authorities and persons. When the breach of the right is proved, the person is entitled to compensation even if no specific amount is claimed.” (UNDERLINING MINE)
per GEORGEWILL, JCA (P. 69, PARAS. A – E)
See also; NWEKE & ORS v THE IGP & ORS (2013) LPELR – 21173 (CA), where it was held thus;
“Fundamental Rights are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. Where these rights are to be enforced in

Court the Court(sic) within reasonable limits must do all that is necessary to cause a flourishing of these rights” (UNDERLINING MINE)
per ADAH, JCA (P. 17, PARAS. D -G)

It is pertinent to note that the Appellant’s application which is the basis for this appeal was brought on the 26th of March, 2013 this application was brought before any of the criminal charges against the Appellant were instituted. See pages 1 – 5 of the record. Therefore, the lower Court was wrong when he held thus;
“…it was the contention of the 1st to 13th Respondents that the Applicant was evading lawful arrest and that he has since been charged to Court in charge No: CMA/272C/2013 which, suit is still pending…”

Again, the lower Court did not make any finding of having evaded arrest and attempts to arrest.

The lower Court judge failed to avert his mind to the very essence of an application for the enforcement of fundamental human rights, which occurred before the arraignment/amendment of the charge and therefore allowed criminal matters; CMA/272C/2013 and CMA/436C/2013 brought against the Appellant on the 24th April, 2013

and the Appellant and 14th Respondent on 11th July, 2013 respectively.
See pages 82 and148 of the record

It is trite that time does not run against the State in respect of criminal offences; see PAUL YABUGBE v COMMISSIONER OF POLICE (1992) LPELR SC 162/90; (1992) NWLR (PT234)152.

The Fundamental Rights Procedure was specially couched and enacted for the preservation of fundamental rights of any person within the shores of Nigeria, which rights are deeply entrenched in the Federal Constitution of Nigeria, 1999.
The application was so couched and cannot be stayed or put down for another procedure, it amounted to a Court refusing to give a judicial hand of reprieve or stop the hot pursuit of a citizen in order to protect the breach or intending breach of his rights.
Section 35 of the 1999 Constitution (as amended) is clear; the right to liberty is not absolute but in the act of such procedures of preserving, the rights of a citizen must be ensured.
It is this sacred duty that the lower Court threw to the wind and refused to act, even to consider the allegations of the Applicant that the breaches were before the arraignment or that

several suits had emanated and brewed so much bad blood that the Counsel in both parties had been dragged into the arena so much so that the noble profession is being dragged in the mud and the security agencies have joined the fray.
From a close perusal of the law and prerogative of the Fundamental Human Right Enforcement Rules, it is clear that the above mentioned criminal cases however, does not rob the lower Court of its power or jurisdiction to determine whether as at the 22nd of March, 2013, the action of the 1st – 13th Respondents in respect of which the application to enforce fundamental rights was brought amounted to a breach or infringement of any of the rights of the Appellant as guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999. See; MR OSONDU & ANOR v ATTORNEY GEN OF ENUGU STATE & ANOR (2017) LPELR -43096 (CA); AKINOSUN v COP KWARA STATE & ANOR (2020) LPELR – 49739 (CA).
The reliefs of the application are squarely founded under Chapter IV of the Constitution, and have been described as standing above ordinary laws of the land and a primary condition for civilized existence;

KUTI v A.G FED (1996) 41 LRCN 200, ODOGWU v AG FED (1996) 9-10 SCNJ 51.
In IBANGA & ORS v SILAS LINUS AKPAN & ORS (2018) LPELR -46167 (CA), OGBUINYA JCA held;
Thus they occupy a kingly position in the residence of human rights, it allocates to every citizen whose fundamental right is or being harmed, even qua time, to approach the Court to persecute his complaint and obtain redress. See; SEATRUCKS (NIG) V ANIGBORO (2001) 2NWLR (695).”
The lower Court misdirected himself in refusing to consider the application in its decision that a subsequent criminal charge or arraignment would constitute a bar/complete defence to an application to enforce fundamental human right. The lower Court abdicated its responsibility in this regard.
In SAMBO & ORS v SOLOMON ETIM OKON & ORS (2013) LPELR – 20394 (CA), TUR, JCA (of blessed memory) held thus;
“Paragraphs 3(a) – (b), (c), (f) & (g) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are very instructive in the determination of the issues in controversy …They are couched in the preamble as follows; “3. The overriding objective of these rules are as

follows: (a) The constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedom contained in them and affording the protections intended by them. (b) for the purpose of advancing but never for the purpose of restricting the Applicants rights and freedom, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions… (c) For the purpose of advancing but never for restricting the Applicants right and freedoms. The Court may make consequential orders as may be just and expedient…”
(PP. 17 – 24, PARAS. B – A)

In the light of the above, I resolve issue 1 in favour of the Appellant.

On issue 2; whether the learned trial judge’s failure to evaluate the evidence before him in the application and make findings thereon on the ground that to decide that the Appellant’s right has been violated would

amount to pre judging the pending criminal suit is not erroneous and amount to a non-feasance?
Flowing from my above postulations in issue 1, whether or not the Appellant was guilty of the offences he has been charged with was not in play in deciding the application before the lower Court. The lower Court was meant to decide whether or not the Appellant’s rights leading to his arrest had been violated. I cannot and would not succumb to the school of thought or idea that subsequent criminal proceedings prevent one from enforcing their fundamental human rights. Especially when the criminal charges filed against the Appellant seem more like an afterthought when placed in light of the facts deposed to in the affidavit attached to the application of the Appellant found at page 4 – 5 of the record. The facts of the case culminating and the charge therein differ from the facts of the enforcement of Fundamental Human Rights and the distilled facts in the affidavit evidence was sufficient for the lower Court to have resolved the issues. The facts of the case in EFCC v ODIGIE SUPRA is sufficient to the extent for the Court to have been

persuaded to make findings on the rights complained of and would never amount to pre judging the criminal case, which has to go through oral evidence and cross examination and burden of proof beyond reasonable doubt, the application is heard on affidavit evidence.

On that ground, I resolve issue 2 in favour of the Applicant.
The appeal has merit and therefore is allowed.

instituted in this Court as a Court of first instance; and so this Court may re-hear the case in whole or in part, or may remit it to the Court below for the purpose of such re-hearing. These general powers vested in the Court of Appeal were designed to enable the Court clear whatever technical mistakes or obstacles which may be in the way of a fair determination of the Appeal on its merit or of determining the real question in controversy in the Appeal. However, one incontestable limiting factor to the power of Court to assume full jurisdiction over the whole proceedings is that such first instance jurisdiction exercised by the Court of Appeal pursuant to Section 15 of the Act does not include what the trial Court could not have done. See Obi V INEC (2007) 11 NWLR (Pt. 1046) 565; Comptoir Ltd V Ogun State Water Corporation (2002) 3 SCNJ 342; AG Anambra State V Okeke (2002) 5 SCNJ 318. The purpose of the provision is, in my view, to obviate delayed justice. Additionally, in interpreting Section 15 of the Court of Appeal Act, 2004, the Supreme Court has, in the cases of: Ezeigwe V Nwawulu (2010) LPELR – 1201 (SC); Amaechi V INEC (2008) 18 NWLR (Pt. 1119) 489; Obi V INEC (2007) 4 NWLR (Pt. 1046) 465; & Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423, stated the extant position of the law explicitly. For the provision to apply, the following conditions must exist: (a) The Lower Court or trial Court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it; (b) That the real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;

(c) That all necessary materials must be available to the Court for consideration; (d) That the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” per SANKEY, JCA (PP. 24 – 27, PARAS. E – G). See also; NJIDEKA EZEIGWE v CHIEF BENSON CHUKS NWAWULU & ORS (2010) LPELR – 1201 (SC); ENGINEER EMMANUEL CHUKWUEMEKA OKEKE v NNAMDI AZIKIWE UNIVERSITY (2018) LPELR – 43781 (CA); OKORONKWO v FRN (2013) LPELR – 22564 (CA); VERNER v FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA (2017) LPELR – 43001 (CA); WOODCOTE PROPERTIES LTD v IFEMADAM & ORS (2018) LPELR – 46209 (CA). This is an enforcement of Fundamental Human Rights Procedure application filed in 2013 under the 2009 rules, which requires speedy dispensation of such applications, having spent a year at the lower Court and additional years in the Appeal Court; be that as it may, I find that the lower Court did not make any consideration of the materials before him. In this regard, I am of the opinion that if the case file is sent back to the lower Court, it will trigger another bout of delays which will make nonsense of the intendment

of the 2009 Fundamental Human Rights Enforcement Rules.
In the interest of justice and the light of the objectives of the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 in its preamble;
“3(c) For the purpose of advancing but never for the purpose of restricting the applicant rights and freedoms, the Courts may make consequential orders as may be just and expedient.
(d) The Court shall proactively pursue enhanced access to justice for all cases of litigants…’’
In the light of these considerations, this Court shall proceed, as all materials are present.

From the record before the Court, both parties have given contrary testimonies of the facts of the case, this has led to the necessity of critically going through the processes and exhibits before the Court with a view to ascertain the precise circumstances of things that led to the application and indeed if there was a breach of the Appellant/Applicant’s fundamental human right.

It is pertinent to state further that the 1st – 4th Respondents filed their counter affidavit to the Appellant/Applicant’s

application accompanied by a written address. The 5th – 13th Respondents also filed their counter affidavit deposed to by Sergeant Emmanuel Adama, the 6th Respondent accompanied by a written address.

The 16th Respondent also filed a counter affidavit on 6th December, 2013 and in the entire 14 paragraph denied knowledge and participation and liability of the allegations, in fact the 16th Respondent contended that there was no specific allegation directed against it and urged that the name of the 16th Respondent be struck out.

At this stage, I shall quickly deal with the application of the 16th Respondent. I have searched the affidavit, the only allegation is in relief 5 which relates to the warrant of arrest issued by any Magistrate, Judge or Judicial officer of the 16th Respondent sought to be declared unlawful having being arrested and released on bail for the same offence.

The 16th Respondent on record is the Chief Registrar of Delta State, the administrative head of the High Court. I do not believe the officer had judicial powers, disciplinary or administrative powers over a Magistrate or Judicial officer. It is at the discretion of a

judicial officer to issue or decline a warrant of arrest. There is no disclosure of the identity of the judicial officer that signed the warrant, no copy was attached, therefore this is vague and, in any case, there is no wrong doing against issuance of such a warrant of arrest.

There is no disclosure of any allegation of an exercise of wrong discretion or lack of power to issue same in the affidavits filed. Furthermore, their presence is not needed to deal with the said warrant. Therefore, I am compelled to agree that the name of the 16th Respondent be struck out, and it’s accordingly struck out.
The name of the 15th Respondent is also struck out, having found nothing alleged against it.

In determining the application before the Court, the necessary questions that need to be answered and would be the determining factor/pointer if the alleged breach occurred are;
i. Whether or not the Appellant was arrested and his office forcefully invaded on the 13th day of December, 2011?
ii. Whether there were further threats of arrests, attempts to arrest and detain the Applicant?
iii. Whether there were attempts to abduct, kidnap

and/or arrest the Applicant on the 22nd of March, 2013?

As to the first question raised above, it is before the Court as gleaned from the record that there was a meeting between the 14th Respondent and the 1st – 5th Respondents held by the Commissioner of Police, Delta State (CP) on the 13th of December, 2012 relating to the various acts of trespass and cross – allegation by the 14th Respondent and the 1st – 4th Respondents. This is not disputed by the parties, what is however in dispute is the manner and modus operandi of the subsequent arrest of the Appellant on the same day.

locked behind bar, it entails a restraint of someone’s freedom of movement. The 1st – 4th Respondents have contended that the Appellant was not arrested by the police on the 13th of December, 2011. This contention is negated by Exhibit A1 tendered by the 5th – 13th Respondents which is the photocopy of the Appellant/Applicant’s bail bond. Why would a bail bond be executed if no arrest was made? The Appellant was released on bail on self-recognition.
In MR. TAJUDEEN SHONEYE v THE STATE (2015) LPELR – 25862 (CA), a bail was defined as;
“Bail is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a date and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties and is accounted by law to be in their custody though they may free themselves from further responsibility if they surrender him to the Court before the date assigned. Ojo vs FRN (2006) 9 NWLR (Pt. 984) Pg. 105.”
per NDUKWE – ANYANWU, JCA (PP 4 – 5, PARAS. E – A).

See also; STATE v IBRAHIM & ORS (2014) LPELR – 23468 (CA); CALEB OJO & ANOR v FEDERAL REPUBLIC OF NIGERIA (2006) LPELR – 5423 (CA); IBRAHIM BASHIR v FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 45103 (CA).
It is common knowledge that a bail is only necessary when an arrest has occurred. The Bail on self-recognizance would have totally been unnecessary if the Appellant was not detained/arrested. Exhibit A1 is a documentary evidence that speaks for itself and it is unwarranted/un-necessary for a judge to assume that it is within his exclusive province to make findings of fact when such findings depend much or entirely on documentary evidence. The existence of Exhibit A1 give credence and credibility to the Appellant/Applicant’s testimony in paragraphs 12 – 18 of the Affidavit setting out the facts upon which the Application is made. See; B. A. ALADE & ORS v MR. AYODELE OGUNDELE & ANOR (2013) LPELR – 21382 (CA); EZE v STATE (2018) LPELR – 43715 (SC); OYEWUSI & ORS v OLAGBAMI & ORS (2018) LPELR – 44906 (SC).
It is safe to therefore deduce that the Appellant was arrested/detained by the Police on the

13th of December, 2011.

Now, it is necessary to state that there is no law against an arrest but this is qualified by Section 36 of the 1999 Constitution (as amended) that the person must be released after 24 hours and if not after he must be arraigned before a Court of law, see Section 35 (5) (a) of the 1999 Constitution (as amended).

On whether there were further threats of arrests, attempts to arrest and detain the Applicant and whether there were attempts to abduct kidnap and/or arrest the Applicant on the 22nd of March, 2013?

The Appellant/Applicant in his Affidavit setting out the facts upon which Application deposed to the following facts;
“39). That in the late hours of the evening of Friday, the 17th day of August 2012, the 6th, 8th Respondents and a team of angry looking policemen, stormed my residence with force of arms to arrest me. Luckily for me, I had left Asaba on a short vacation enroute Abuja for the Annual General Conference of the Nigerian Bar Association. They then left Exhibit AO4
47). That on the 20th day of March, 2013, the 1st – 10th Respondent sent plain clothes policemen to my Chambers who

claimed to be potential clients but on being questioned by my colleagues in chambers gave conflicting reasons for wanting to see me.
48). On the 22nd day of March 2013, I went to the High Court of Justice, No. 4 Asaba to conduct SUIT NO. A/194/2012: IFEANYI OKOYE V. APOLLOS IKPOBE & ORS. As I left the Court hall and was about to enter my car which was parked by the door of the Court, a rascally looking man who was later identified to me as the 6th Respondent approached me with a corky smile on his face.
49). That wondering where I had met him, I greeted him and asked him if we have met before. He replied that “I am here for you”. My mind immediately went to kidnappers. He them(sic) continued that I was wanted in their office. On asking him what office it is? He said it is the Police Headquarters.
50). As he was not in police uniform. I asked for his I. d Card but he could not produce any. I then asked if he has a warrant of arrest. He flashed a document which is a photocopy. I asked to see the original copy and he replied that when I get to their office, he will show it to me.
51). That I told him that (i) I am a lawyer,

(ii) I am not common criminal, (iii) that he cannot arrest me with the photocopy of a purported warrant of arrest.
52). That as I opened my car to put Pilot brief case which contained my Apple IPAD, my case files, my Apple Ipad device etc and my Court robes (wig and gown) which I had in my hands, the 6th Respondent grabbed me. My car key, my said Pilot Brief case and my robes fell on the ground.
53). That immediately, about four other men in mufti one of whom was later identified to me as the 7th Respondent appeared and surrounded me.
54). That I insisted that I will not follow them unless they produce the original warrant of arrest. When they insisted that I will see it when I get to their office, I told them that I will have to inform the Hon. Judge of the High Court that I was being taken away from the Court premises.
55). That at this time, the action of the 6th and 7th Respondent et al and our arguments had attracted both lawyers and Court officials.
56). That as I tried to edge through them into the Court hall as we were at this time at the door of the Court, the 6th – 7th Respondents and the other men with them grabbed my trousers, my

hands, my jacket and started to drag me away.
57). That apparently being affronted, lawyers and Court officials also held me and I became the rope in a tug of war. The last thing I remember was the 6th– 7th Respondents et al dragging me away from the Court door while the Lawyers and Court officials were dragging me into the Court before I passed out.”
See paragraphs 39, 47 – 57, pages 11 – 13 of the Record.

The 1st – 4th Respondents to the application filed a counter affidavit together with an attachment deposed to by Chief Ben Anazia, the 2nd Respondent, where he deposed in paragraphs 7 (1), 8, 9, 10, 11 (1) – ix, 14i-vii,15 (a-o) practically denying all allegations and stated that they wrote a petition; EXHIBIT A dated 5th November, 2011 against the 14th Respondent to the Commissioner of Police of Delta State and did not mention the Applicant there in, and that the Applicant was never arrested at any time or harassed without more, see page 62 of record.

The 5th -13th Respondents also filed a counter affidavit on 7th May, 2013 deposed to by Investigating Officer- Sergent E Adama of legal department SCID Asaba

wherein in paragraph 6a; he denied invading the chambers nor manhandled the staff there, and that the 11th Respondent is not a member of the club and conceded that they were a team sent to invite the Applicant at the High Court premises and the Applicant refused upon the warrant – Exhibit A3 shown to him and a scuffle ensued amongst the parties including sympathetic lawyers, and the result of which the Applicant escaped through the Court.
He agreed that the Applicant’s car was impounded and lawyers had intervened in the matter.

At this stage, I want to state that it’s a long practice that arrest cannot be made within the Court premises as it sends out wrong signals to the business of the Court and its stake holders, and arouses suspicion over such exercise.
Amongst their exhibits are; charge dated 19th March, 2013, bond on car dated 13th December, 2011, charge CMA/272c/13 which was not dated, arraigned on 24th April, 2013 but is clearly after the incident at the High Court premises.

The Applicant filed a reply to the 1st – 4th Respondents’ counter affidavit deposed to by him, and alleged a vendetta by the 4th

Respondent who had in the past had series of bad blood between them, as the Applicant represents the 14th & 15th Respondents as Counsel in the pending suits in respect of Pinnock beach properties while the 4th Respondent is a counsel for the Plaintiffs contending ownership of the place, and catalogue events and use of the police to get him off the case of his clients. He alleged that after an unfavorable ruling in his favor that the 4th Respondent concocted the scheme to embarrass him, see paragraphs 8 -18 thereof.

The 1st – 4th Respondents in reaction filed a reply to the Applicant’s Further affidavit in which they denied all allegations and kicked against the record of proceedings of the criminal case against the Applicant attached to his reply affidavit and largely made depositions for and on behalf of the 4th Respondent who is alive and a legal practitioner in paragraph 23a – q, and denied all allegations against him.

The depositions of the Police show a series of invitation from the residence to chambers and finally trailing him to the Court where he practices, definitely it was for attempted arrest for the same allegation of

conspiracy, stealing, malicious damages and threat to lives and properties of Asaba Sports club, Asaba. This was the same allegation that led to the Appellant/Applicant being detained on the 13th of December, 2011 and his giving of his statement, where his car was released on bond

The 1st – 4th Respondents averred that the Appellant/Applicant was invited by the 8th Respondent to make further statement and a civil suit doesn’t preclude the police from investigating any criminal aspect if she reasonably thinks it fit. While, the 5th – 13th Respondents averred in their counter affidavit that fresh facts emerged and as such there was need for the additional statement; that the Appellant/Applicant refusal and neglect to honor the Police invitation led to the procurement of Exhibit A3- the warrant of arrest.

From the Affidavit and Counter affidavits before this Court, it is crystal clear that the 5th – 13th Respondents were not ignorant of the Suits already head way at the High Court, neither were they ignorant of the position of the Appellant/Applicant in the above suits as the Counsel representing the 14th Respondent and also of

the earlier petition of the 14th & 15th Respondents. The petition filed by the 1st – 4th Respondents led to the investigation of the 14th Respondent and the Appellant/Applicant even though the 1st – 4th Respondents in paragraph 11 of their counter affidavit stated that the petition was not against the Applicant, neither did it accuse the Applicant of destroying the 1st Respondent’s properties or use of the vehicle.

The 5th – 13th Respondents’ counter affidavit in paragraph 6 stated that they merely acted on the petition of 5th November, 2011 attached wherein only the Applicant’s client; DR JIDEOWU was mentioned. The 5th – 13th Respondents failed to link the Applicant to justify the attempted arrest, furthermore, they did not deny paragraph 39 of the Appellant/Applicant’s affidavit of visiting the residence with fierce looking police team demanding his where about but denied having any team of angry looking policemen in Delta State police command.

The harassment of the Applicant who is a counsel in the matters was unwarranted; the Police investigations should have been tempered bearing in mind that

the suits at the lower Court dealt with ownership, trespass and the damaging of the property. The above knowledge known to the police and the involvement of the Appellant/Applicant in the suits would have made any further statement given at the time when the Suits were being heard at the lower Court prejudiced against the 14th & 15th Respondents’ suits. The High Court was already seized of the issues raised in the petition and would ultimately give its decision.
The 1st – 4th Respondents contended that the police have the discretion to arrest and institute a criminal matter. This contention is correct as provided in Section 24 (c) (i) of the Police Act and Section 10 of the Criminal Procedure Act, however, this investigation and further invitation for further statement was done pending the determination of Suit No. A/266/2011: The Incorporated Trustee of Asaba Sports Club & 5 Ors v Dr. John Jideonwo & 2 Ors and Suit No. A/268/2011: New Millenium Investments Ltd v The Registered Trustees of Asaba Sports Club & 12 Ors, which subject matter was the ownership of Pinnock’s Beach, Asaba, the damages and trespass which deals

with the demolition of the property. The investigation should have been stayed till after the determination of the Suits at the lower Court, as there is no allegation against the Applicant in writing; in addition the alleged owner cannot be arrested for demolition of his building or any supposed restructuring. This owner was yet to be determined in the above suits, as stated above time does not run against the state in a criminal offence. Therefore, the incessant arrest and invitations doesn’t fall under a proper investigation process considering the fact that they were aware of the pending suits but can rather be construed as a means of harassing and coercing the Appellant and the 14th & 15th Respondents during the pendency of the suits. At best the attention of the Court ought to have being drawn to the overt acts and injunctive orders sought for.
At this juncture, it is necessary for me to reiterate the admonitions of the Apex Court in AJAO v ASHIRU (1973) N. S. C. C. 525 at 533 thus;
“It cannot be over – emphasized to both high and low that every person resident in this country has a right to go about his or her lawful

business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The Court will frown upon any manifestation of arbitrary power assumed by anyone over the life or property of another even if that other is suspected of having breached some law or regulation. People must not take the law into their own hands by attempting to enforce what they consider to be their right or entitlement… Police officers must therefore, be wary of being inveigled into a situation in which they find themselves becoming partisan agents of wrong – doers in the pursuit of a private vendetta. This kind of a show of power which is becoming too frequent in our society today must be discouraged by all those who set any store by civilized values…”

It appears that there has been a long battle which spilled over and now involved their Counsel in the ownership contest over the property, this cumulated in the use of underhand business of dragging the police into the matter to the extent that they followed the Appellant to the Court premises and laid siege to arrest him like a common criminal, definitely the police could have

exercised restrains in arresting him instead of making a whole lot of hassle in the premises and ended in a free for all fight with lawyers and Court staff joining in. Surely, there was a civilized manner in arresting the Applicant.

Furthermore, the 5th – 13th Respondents in proof of previous attempts did not show the copies of invitation dropped in his office and residence, the query herein is; what has his wig and gown got to do with the issue on ground? I am of the view that the police over reacted, it became “at all cost’’.

The question of infringement of fundamental rights is largely a question of fact and does not so much depend on dexterous submission of counsel on law. So it is the facts as disclosed by the affidavit evidence that that is usually examined, analysed and evaluated to see if the fundamental rights have been eviscerated as claimed. See CHIEF MARIUCE EBO & ANOR v MR CHINEDU OKEKE & ORS (2019) LPELR – 48090 (CA).

The 5th -13th Respondents obtained a warrant of arrest after being released on bail, I do not find attached or any mention of an earlier invitation by them to the Applicant dropped at

his house or office to report at the police station, this smacks of a commando style, citizens should not be held hostage by the fear of the unknown in this days of different manners of kidnapping going on in Nigeria, of which I must take judicial notice of an ambush in the Court premises is sufficient to drive fear into any citizen including judicial officers especially when they appeared in Mufti.

Furthermore, is the act of impounding of the vehicle together with his case files, pilot suit case and wig and gown from a legal practitioner within the Court precincts, in my view is like taking a gun from a police officer. These are the tools of office of a legal practitioner to say the least.
It’s on record that the same vehicle was detained when he went to serve the police some processes with a sheriff of the Court, this vehicle was also released before, if it was indeed needed, there is nothing on record to prove this.

Again, in the reply to the counter affidavit of 5th – 13th Respondents, the Applicant deposed of an arrest on 17th March, 2013 after which one of the cases in respect of ownership of the property came up, one of his solicitors

O Konyia Esq in the High Court premises under the mistaken belief that he is the Applicant, this is paragraph 11 & 12 therein on.Paragraph 15 – 20 therein shows the magnitude of the harassment by the 5th -13th Respondents and the fear it created in the Bar.It is trite that where an Applicant shows that his fundamental right was breached or to be breached, the burden moves to the Respondent to show justification, that their acts were lawful. See; BABA v ODIMEGWU & ORS (2019) LPELR – 48105 (CA); AGBAKOBA v S.S.S (1994) NWLR (PT 351)4 75; OHANEDUM & ORS v COP IMO STATE & ORS (2015) LPELR – 24318 (CA). This from the maze of counter affidavits falls short of a valid defence.
The 1st – 4th Respondents put up a spirited defence for the 5th – 13th Respondents in its counter and further counter affidavit together with reply to further affidavit, but unfortunately they cannot hold fort for the police who are the arresting authority and that have not denied same, they are limited to facts and events within their knowledge, they cannot be heard to join issues as they have done,

Most of their depositions are not derived from credible source but mere assertions and conclusions.

I must say that the manner in which the Court abdicated leaves a lot to be desired and puts fear into the reasonable man (especially with the memories of how his client allegedly was put through inhuman treatment) if their Counsel is being manhandled like a common criminal in the hallowed premises of a Court of law. The 5th – 13th Respondents have deposed that the Court was not sitting but forgot that the chambers and judicial officers and the premises make up the Court, I do not accept this excuse.

I agree that the Applicant was subjected to barbaric, degrading inhuman unlawful treatment which amounted to a breach of his fundamental right guaranteed by Sections 34(1), 35(1) – (2), 4(b) and 41(1) of the 1999 Constitution (as amended).
Definitely there was more that meets the eye in action meted out.

On the issue whether the 1st – 4th contributed to these complaints, I recall the case of FAJEMIROKUN v CBN SUPRA and find from the facts put forward by the 1st – 4th Respondents, they maintain that only a authorized petition dated 5th November, 2011 – Exhibit A, see pages

23-25 of record, on the Pinnock beach issue but only mentioned the 14th Respondent and did not accuse the Applicant over destruction of the 1st Respondent’s club, see paragraphs 11(ii) of counter affidavit at page 57 of record. Also, 1st – 4th Respondents reply to Applicant’s further affidavit, paragraphs 12 – 16, they deny doing more and hung same at the door of the 5th – 13th Respondents who were the investigating authority.

The 1st – 4th Respondents alleged in paragraphs 7(iv) – 9(i-ii) of their counter affidavit, that the Applicant did more than being a counsel for the parties in the pending cases but did not expatiate on this, therefore having not supplied particulars, I cannot deal with speculations let alone conjectures, I shall discountenance same; see MARTINS v STATE (2019) LPELR – 48889 (SC); IKENTA BEST (NIGERIA) LTD v AG RIVERS STATE (2008)LPELR – 1476 (SC).

As an aside, it is part of the duties of a counsel to have the grasp of the real facts in his hands and if his client is not on ground, if need be, to build up a case which is the reason given by the Applicant for being there. This angle was what the police

moved in attempting to re-arrest the Applicant, who is the counsel for the 14th – 15th Respondents in all the cases against/for the 1st -4th Respondents.

It is pertinent to know that these cases were pending when these events occurred and one would have expected that it would be brought to the attention of the Court. It is also confirms and raises a palpable fear of a clandestine way of frightening the Applicant from the cases but in this 21st century. I believe this is not the case, if so then the standard of the bar in Delta state needs to be examined again.

I have perused the CTC record of proceedings at page 153 attached to the reply to counter affidavit of the 1st – 4thRespondents in the ongoing criminal case, and I find that the main reason for the attempted arrested was just a speculation, the police officer who deposed to the affidavit retracted his statement that the warrant was torn, even the deponent to the counter affidavit, see page 162 of record stated under oath that the Applicant was not involved in the destruction except the petition to the police, therefore, the reason for the second and persistent harassment to arrest did not

arise from the petition and there is no viable reason proffered.

I am afraid, I cannot find any evidence of more than writing a petition which is a civic duty of the 1st – 4th Respondents, but one must say that the 5th -13th Respondents were not acting on their own but were instigated, but by whom? This is the missing link, it is the hand of Esau but the voice of Isaac, I say no more.

On the whole, I find that actions of the 5th – 13th Respondents amounted to an infringement of the Appellant/Applicant’s fundamental human rights and herein grant the reliefs sought by the Appellant/Applicant.

For clarity purposes, I grant the following reliefs hereunder reproduced;
1. I Declare that the arrest of the Applicant and the forceful invasion of the Applicant’s office on the 13th day of December, 2011 by the 5th -13th Respondents is a breach of the Applicant’s fundamental rights as guaranteed under Sections 34 (1), 35 (1), 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999.
2. I Declare that the further threats of arrest, attempt to arrest and detain the Applicant in the circumstances of this suit

is a breach of Applicant’s fundamental rights as guaranteed under Section 34 (1), 35 (1), 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999.
3. I Declare that the attempt to abduct, kidnap and/or arrest the Applicant at about 10.00 am on the 22nd day March, 2013 at the premises of the High Court of Justice, No. 4 Asaba, Delta, in the circumstances of this case and the physical assault and manhandling of the Applicant is barbaric, degrading, inhuman, unlawful and a breach of the Applicant’s fundamental rights as guaranteed under Section 34 (1), 35 (1), (2), (4) (b) and 41 (1) of the Constitution.
4. I Declare that taking away of the Applicant’s Mitsubishi Montero Jeep, with Registration – No.EJ 787 LSR from the premises of the High Court of Justice No. 4, Asaba, Delta State to an unknown destination is unlawful and a breach of the Applicant’s fundamental rights as guaranteed under Sections 43 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999.
5. I Declare that any warrant of arrest issued to the 5th – 13th Respondents by any Magistrate, Judge or Judicial Officer of the

16th Respondent to arrest the Applicant is unlawful as the Applicant had been arrested and released on bail for the same offence on the 13th day of December, 2012 is unlawful and a breach of the Applicant’s fundamental rights as guaranteed under Section 34 (1) (a) and 35(4) (b) of the Constitution of the Federal Republic of Nigeria 1999.
6. An order of injunction restraining the Respondents by themselves, their agents, servants, privies and/or assigns from further arresting, detaining or in other manner whatsoever deprive the Applicant of his fundamental rights as guaranteed by Section 34 (1), 35 (1), 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 in respect of all matters concerning, pertaining to or connected with or relating in anyway whatsoever to ownership and trespass to the property situate at Pinnock’s Beach, Asaba, which is the subject matter of (1) SUIT NO.A/266/2011: THE INCORPORTED TRUSTEE OF ASABA SPORTS CLUB & 5 ORS VS DR. JOHN JIDEONWO & 2 ORS (2) SUIT NO. A/268/2011 NEW MILLENIUM INVESTMENTS LTS VS THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & 12 ORD AND (3) SUIT NO.A/44/2012 UNITED

AFRICAN COMPANY (Suing by its attorney New Millennium Investments Ltd) Vs THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & 13 ORS.
7. An order compelling the 6th – 13th Respondents to immediately release (i) the Applicant Mitsubishi Montero Jeep with Registration Number EJ 787 LSR together with Applicant’s (ii) Pilot Suit Case (iii) case files (iv) lawyers’ wig and gown (v) Apple IPAD device to the Applicant.

The relevant factors in fixing an amount for the infringements of fundamental rights are; a) Frequency of type of violation in recent times b) the continually depreciating value of the naira c) motivation for the violation d) the status of the Applicant e) the undeserved embarrassment meted out to the Applicant including pecuniary loses; and f) conduct of parties generally, particularly the Respondent. See; ATTAH v IGP & ORS (2015) LPELR-24656 (CA); AJAYI v A. G. FEDERATION (1998) 373.

Taking into consideration the evidence on grounds and the above facts in this matter, I take consideration of the profession of the Applicant, a very senior lawyer, the embarrassment meted out, palpable fear of going to Court and fear of

invasion in the chambers, resident hunting of staff, impounding of vehicle with no reasonable cause, seizing his tools of his profession, and these culminates in the feeling of being hunted unjustifiably. The law is that, every breach attracts redress in form of damages.

The object of the award of damages to a claimant is to compensate him for damages, loss or injury he has suffered as a result of the action or default of defendant, he is being compensated for the injury or loss on the maxim – restitutio in integrum, see; NEPA v ALLI (1992) 1 NWLR PT 259; JAURO SHUKKA & ORS v ALHAJI ABUBAKAR (2021) 4 NWLR (PT 1291). 497 AT 525.

In light of the above, finally I grant relief 8 in the following terms; I award the sum of N5,000,000 (Five Million Naira) only against the 5th – 13th Respondents jointly and severally being compensation for the breached and threatened breach of the Applicant’s fundamental rights as guaranteed.
Cost of N200,000 is awarded to the Appellant against the 5th – 13th Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared in

the instant appeal by my learned brother, Obaseki-Adejumo, JCA; and I cannot but agree with his reasoning and conclusion therein.
Accordingly, I too allow the appeal and abide by all consequential orders in the said leading judgment.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft before now the lead Judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA allowing the instant appeal.

I agree entirely that the trial Court had abdicated its duty to entertain the suit and to dispense justice expeditiously by not hearing the suit filed for the enforcement of the Appellant’s fundamental rights under the Constitution of the Federal Republic of Nigeria 1999 and the procedure thereof for its enforcement, as provided.
The Court had an obligation to so do. The Courts cannot whittle or bring down the hearing and determination of fundamental rights issue to the lowly position of a second fiddle, as after all, time does not run against the state in criminal prosecution.
The suit, the subject of this appeal, ought to have been heard on its merit upon the Affidavits as filed.
This Court can rightly hear same as the

materials are extant the record of Appeal as transmitted.

I agree entirely with my Lord, Abimbola Osarugue Obaseki-Adejumo, JCA in the lead that this appeal be allowed and Judgment be entered for the Appellant upon the Affidavit Evidence and Exhibits.
I abide by the Judgment as entered and all the consequential orders therein, as made.

Appearances:

O. Okonyia For Appellant(s)

A.U. Oforlea – for 1st – 4th Respondent
G. O. Uyanna – for 15th Respondent
C. O. Agbakwu, DDDA, with him, Mudiabia ACSC and O. Eyesio SSC -for 16th Respondent For Respondent(s)

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