FATUNMBI v. EFCC & ANOR (2022)

FATUNMBI v. EFCC & ANOR

(2022)LCN/16558(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/A/725/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

AYODEJI FATUNMBI APPELANT(S)

And

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO:

THE UNLAWFUL AND UNCONSTITUTIONAL INCARCERATION ON THE BALANCE OF PROBABILITY

It was posited that the declaration claimed was for the lower Court to declare the law on the set of facts presented and whether the Appellant’s legal right was violated vide NABORE PROPERTIES LTD vs. PEACE-COVER (NIG.) LTD (2015) 2 NWLR (PT 1443) 286 at 313 and AROWOLO vs. OLOWOOKERE (2011) 18 NWLR (PT 1278) 280 at 304. It was maintained that the Appellant’s arrest was improper and that the 1st Respondent can only exercise its powers of arrest in accordance with the law. The case of OBIEGUE vs. A-G FEDERATION (2014) 5 NWLR (PT. 1399) 171 at 187 was referred to. It was asserted that the detention of the Appellant by the 1st Respondent for more than the stipulated time is a violation of the Appellant’s fundamental rights enshrined in Sections 34, 35, 36 and 41 of the 1999 Constitution (as amended). It was contended that from the affidavit evidence, the Appellant had discharged the onus of proof on him, thereby establishing his case of unlawful and unconstitutional incarceration on the balance of probability or preponderance of evidence. Sections 135 and 136 of the Act and the cases of GE INT’L OPERATIONS (NIG) LTD vs. Q-OIL & GAS SERVICES LTD (2016) 10 NWLR (PT 1520) 304 at 330 and FALEKE vs. INEC (2016) 18 NWLR (PT 1543) 61 at 149 were relied upon. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THEY ARE RIGHTS WHICH EMBRACE AND ENCOMPASS THE CONCEPTS OF LIBERTY AND JUSTICE

Now, fundamental rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights which have been described as the minimum living standard for civilized humanity have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, 1215. They are rights which embrace and encompass the concepts of liberty and justice. The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME-KUTI vs. ATTORNEY-GENERAL OF THE FEDERATION (1985) 7 NWLR (PT 6) 211 at 229-231. It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights. See UZOUKWU vs. EZEONU II (1991) 6 NLWR (PT 200) 708 at 761. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE LAW REMAINS THAT HE WHO ASSERTS MUST PROVE

The law remains that he who asserts must prove, so the Appellant had the onus of proving by credible affidavit evidence that he was detained beyond the constitutional timelines. See ONAH vs. OKENWA(supra) at 535-536. This is clearly established by the affidavit evidence which shows that the Appellant was detained for at least twenty-seven (27) days without being charged to Court (from 12th April 2018 to 8th May 2018). The burden then shifted to the Respondents to justify the detention. It is trite law that in an action for unlawful arrest and detention in breach of a person’s constitutional right of freedom, the onus is on the Respondent to prove that the arrest and detention was justifiable on reasonable grounds. See SKYPOWER AIRWAYS LIMITED vs. OLIMA (2005) 18 NWLR (PT. 957) 224 at 232. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

AT ISSUE NOT TAKEN AT NISI PRIUS AND WHICH IS RAISED ON APPEAL WITHOUT LEAVE OF COURT FIRST HAD AND OBTAINED IS INCOMPETENT

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja Division, Coram Judice: Ojukwu, J., in SUIT NO. FHC/ABJ/CS/487/2018: AYODEJI TEMITAYO FATUNMBI vs. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR., delivered on 18th May, 2018.

The facts of the matter as garnered from the Records disclose that the United States Department of Justice, Federal Bureau of Investigation wrote to the 1st Respondent requesting for assistance with information in respect of the Appellant who was stated to be facing charges of fraud and conspiracy and who they seek to have extradited to the United States.

The 1st Respondent rendered the desired assistance and successfully apprehended and arrested the Appellant on 12th April, 2018, when they took him into custody. As the Appellant remained in custody without being charged to Court, he instituted the action at the lower Court for the enforcement of his fundamental rights on 8th May, 2018. The Appellant claimed the following reliefs:
“i. AN ORDER enforcing the Fundamental Rights of Freedom of Movement, Personal Liberty, Fair Hearing and Human Dignity of the Applicant as guaranteed by Chapter IV of the 1999 constitution of the Federal Republic of Nigeria (As Amended).
ii. DECLARATON [sic] that the arrest and detention of the applicant by the 1st Respondent from the 11th April, 2018 till date of filing and subsequently thereafter, first at the 1st Respondent’s office in Ikoyi-Lagos, and later at the Idiagbon House, Wuse II Abuja, is illegal, unconstitutional, oppressive, whimsical, capricious, and violates the provisions of Chapter IV 1999 Constitution of the Federal Republic of Nigeria and the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation of Nigeria 2004 and is therefore illegal, ultra – vires and unconstitutional.
iii. DECLARATON [sic] that the arrest and detention of the Applicant by the 1st Respondent from the 11th April, 2018 till date of filing and subsequently thereafter, first at the 1st Respondent’s office at Ikoyi-Lagos and later at the Idiagbon House, Wuse 2, Abuja without informing him of any allegations or offence made against him nor the identity of the actual complainant is illegal, unconstitutional, and against the provisions of Chapter IV 1999 Constitution of the Federal Republic of Nigeria and the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation of Nigeria 2004 and is therefore illegal, ultra – vires and unconstitutional.
iv. DECLARATON [sic] that the arrest and continued detention of the Applicant by the 1st Respondent from the 11th April, 2018 till date of filing and subsequently thereafter, First at the 1st Respondent’s office at Ikoyi-Lagos and later at the Idiagbon House, Wuse 2, Abuja without arraigning him before any Court of record, is illegal, unconstitutional, and against the provisions of Chapter IV 1999 Constitution of the Federal Republic of Nigeria and the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation of Nigeria 2004 and is therefore illegal, ultra – vires and unconstitutional.
v. AN ORDER for the immediate release of the Applicant and his International Passport from the custody of the 1st Respondent at the Idiagbon House, Wuse 2, Abuja where he has been held illegally and detained from the 11th April, 2018 till the date of filing and beyond for no known offence stated till date nor shown to him.
vi. AN ORDER OF INJUNCTION restraining the 1st Respondent from further harassing, intimidating, arresting, detaining the applicant, confiscating his personal belongings and intruding on his privacy.
vii. DAMAGES of Fifty Million Naira (N50,000,000.00) from the 1st and 2nd Respondents for illegal, unlawful and unconstitutional arrest, detention and inhumane treatment of the Applicant by Officers and men under the command of the 1st and 2nd Respondents.
viii. AN ORDER of this Honourable Court directing the 1st – 2nd Respondents to tender a public apology to the Applicant in addition to the above reliefs.”

The grounds upon which the Appellant sought the said reliefs are as follows:
“a. The Applicant is a Nigerian citizen whose fundamental rights are preserved and guaranteed by the Constitution of the Federal Republic of Nigeria 1999 as amended.
b. The 1st Respondent unlawfully arrested and detained the applicant on allegations not made available to him.
c. That the 1st Respondent arrested and detained the applicant for days above the constitutionally allowed period of 24/48 hours (as the case may be) from 11th April, 2018 till and beyond the time of filing of this application.
d. That the Applicant was never brought before any competent Court of record by the 1st Respondent since been [sic] detained.
e. The Applicant’s constitutional right to dignity of human person, Personal Liberty, right to movement, fair hearing and private life has been breached by the Respondents.
f. Fundamental rights are inalienable and cannot be denied a person under any circumstances.
g. The Fundamental Human Rights of the Applicant have been recklessly breached by the 1st and 2nd Respondents.
h. The Respondents are not in any way justified in the action being taken by them given the circumstances provided and the clandestine manner in which the Applicant has been subjected to, neither has the Respondents acted in accordance with any procedure permitted by law.”

The 1st Respondent filed processes in opposition to the action and the lower Court after hearing the parties held that the Appellant failed to establish the existence of facts which curtailed or tend to curtail his fundamental rights. It consequently dismissed the Appellant’s action. The Appellant, peeved by the decision of the lower Court appealed against the same. The chafed judgment of the lower Court which was delivered on 18th May, 2018 is at pages 79 – 88 of the records, while the Notice of Appeal which was filed on 14th June, 2018 is at pages 89 – 95 of the Records.

Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument. The Appellant filed his brief of argument on 28th January, 2019, but the same was deemed as properly filed on 11th October, 2021. The 1st Respondent’s brief was filed on 9th November, 2021, while the brief of the 2nd Respondent which was filed on 7th January, 2022 was deemed as properly filed on 17th January, 2022. At the hearing of the appeal, the Appellant’s and 2nd Respondent’s Counsel urged the Court to uphold their respective submissions in the determination of the appeal. The learned counsel forthe 1st Respondent who was present in Court when the matter was adjourned for hearing was absent whereupon the Court invoked Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021 and treated the appeal as having been argued by the 1st Respondent.

The Appellant distilled two issues for determination, which issues were adopted by the 2nd Respondent. The said issues are:
“1. Whether the Appellant did not in fact prove on the balance of probability that his fundamental right protected under Sections 34, 35 and 36 of the 1999 Constitution (as amended) were indeed breached by the acts, activities, omission and commission of the Respondents. (Ground 1).
2. Whether the action of the 1st Respondent approaching the FCT High Court for a detention order in an extradition issue as against an application for a provisional warrant of arrest before the Federal High Court coated with jurisdiction by the Extradition Act does not amount to a deliberate abuse of Court process and a violation of the Appellant’s rights to Fair hearing and right not to be detained beyond the constitutionally allowed period of 24/48hrs. (Grounds 2 & 3).”
On its part, the 1st Respondent formulated a sole issue for determination, namely:
“Whether the learned trial Judge was right to dismiss the application of the Appellant for lacking in merit and then refused to make award of damages in favour of the Appellant against the Respondents.”

From the issues as crafted, the 1st Respondent has not nominated any issue which corresponds with the Appellant’s issue number two. It is therefore understandable that as a consequence the 1st Respondent did not proffer any submissions on the said Appellant’s issue number two. Howbeit, it is on the basis of the issues as framed by the Appellant, which I find succinct and apt, that I will consider the submissions of learned counsel and resolve the appeal.

ISSUE NUMBER ONE
Whether the Appellant did not in fact prove on the balance of probability that his fundamental right protected under Sections 34, 35 and 36 of the 1999 Constitution (as amended) were indeed breached by the acts, activities, omission and commission of the Respondents.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant states that the issue questions the evaluation of evidence by the lower Court and submits that from the evidence, the Appellant was lured into an arrest by the 1st Respondent and was detained from 11th April, 2018 till 8th May, 2018 when the action was filed and that the detention continued even after judgment had been entered. It was stated that it was not until 3rd July, 2018 that the 2nd Respondent filed an application for an order for the extradition of the Appellant. It was opined that there is no law which sanctions the action of the Respondent and that the lower Court wrongly held that the Appellant’s fundamental rights were not breached.

It was further stated that the 1st Respondent admitted arresting the Appellant, but that contrary to the 1st Respondent’s contention, Exhibit EFCC 1, which they relied upon, is not a request for extradition and that the Respondent acted unlawfully when they harassed, intimidated and oppressed the Appellant thereby violating his fundamental right. The lower Court, it was posited, correctly stated the law that the1st Respondent had the burden of proving the legality or constitutionality of the arrest, but misapplied the law when it held that the 1st Respondent had justified the arrest and detention. It was further contended that the 1st Respondent’s counter-affidavit admitted the arrest and detention of the Appellant beyond the period stated in the Constitution and that facts admitted need no further proof. The case of OBIEGUE vs. A-G FEDERATION (supra) was cited in support. It was conclusively submitted that when an act is premised or founded on illegality, it would not be cured by the subsequent act of taking the Appellant to Court. The case of WAKILI vs. BUBA (2016) 13 NWLR (PT 1529) 323 at 343 was called in aid.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that the Appellant has the onus to prove that his fundamental rights were breached vide Sections 131, 132, 133 of the Evidence Act and the case of FAJEMIROKUN vs. COMMERCIALBANK (2009) 2 MJSC (PT II) 114 at 140. It was stated that the Appellant failed to show any cogent and verifiable facts that his fundamental rights were breached and the lower Court rightly dismissed his case. It was maintained that the evidence shows that the Appellant was wanted for being a fugitive who fled from United States of America and that his arrest was pursuant to the stipulations of Section 35 of the Constitution, as the right to personal liberty is not absolute and can be curtailed as stipulated in the Constitution. The case of EKWENUGO vs. FRN (2001) 6 NWLR (PT 708) 171 at 185 was referred to.

It was asserted that the arrest of the Appellant by the 1st Respondent is proper since the 1st Respondent is duty bound to offer mutual legal assistance. Sections 6 (k) and 13 (1) (e) of the Economic and Financial Crimes Commission (Establishment) Act and Section 35 (1) (f), (4) and (5) (b) of the 1999 Constitution (as amended) were relied upon. It was stated that the Appellant was informed of the reason for his arrest and he then made an extra-judicial statement. The facts in the 1st Respondent’s Counter-Affidavit were said to have been uncontroverted and unchallenged and therefore deemed admitted. The cases of MATO vs. HEMBER (2017) LPELR – 42765 (SC) and APC vs. INEC (2014) LPELR – 24036 (SC) were called in aid.

The 1st Respondent maintained that its actions did not violate the Appellant’s right as the actions were in compliance and within the stipulations of the law as the Appellant was promptly informed of the facts and grounds for his arrest and he made his extra-judicial statement in reaction to the allegations. The case of SAMUEL vs. CONTROLLER OF FEDERAL PRISONS, UYO, AKWA IBOM STATE (2013) LPELR – 20707 (CA) and ISAIAH vs. CONTROLLER OF PRISONS, UYO, AKWA IBOM STATE (2013) LPELR 20702 (CA) were cited in support. It was conclusively submitted that the 1st Respondent acceding to the request in Exhibit EFCC 1, and obtaining the Appellant’s extra-judicial statement in Exhibit EFCC 2 were investigation activities which the 1st Respondent was obliged to render pursuant to Sections 6 (k) and 13 (1) (e) of the Economic and Financial Crimes Commission (Establishment) Act. It was opined that the investigation activities were excusable by virtue of the exceptions provided in Section 35 of the Constitution.

SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
The 2nd Respondent submits that the Appellant failed to establish that the Respondents breached his fundamental rights as the provisions of Chapter IV of the Constitution are not absolute and sacrosanct, but subject to some exceptions vide FORT ROYAL HOMES LTD vs. EFCC (2017) LPELR – 42807 (CA). It was stated that the Appellant was arrested under Section 35 (1) (c) of the Constitution and that an arrest properly carried out and in accordance with the law cannot constitute a breach of fundamental right. It was asserted that the arrest of the Appellant and his detention were in line with the 1st Respondent’s duties under Sections 6 (1) and 13 (1) (b) and (e) of the Economic and Financial Crimes Commission (Establishment) Act. The case of ISAIAH vs. CONTROLLER OF PRISONS, FEDERAL PRISONS, UYO, AKWA IBOM STATE (supra) at 17 – 18 was relied upon.

It was further submitted that the Appellant’s detention was necessary as there was reasonable suspicion that if released, the Appellant would evade the law, thus making it necessary to keep him in custody pending the conclusion of the extradition process. The case of HASSAN vs. EFCC (2013) LPELR 22595 (CA) was referred to. It was opined that the provisions of a statute must be read as a whole in order to get the proper intention and meaning intended by the draftsman. The case of KASSIM vs. ADESEMOWO (2021) LPELR – 55333 (SC) was called in aid. Section 35 (5) (b) of the 1999 Constitution was referred to on the meaning of reasonable time and it was stated that a person may be detained longer than 24 or 48 hours as the Court may deem reasonable in the circumstances of the case.

It was asserted that the lower Court rightly held at pages 85 – 86 of the records that the period that the Appellant was detained was reasonable in the peculiar circumstances of the case. The Appellant, it was maintained, was a flight risk and that it was in the interest of justice to prevent the Appellant escaping further that the 1st Respondent held him in custody. It was conclusively stated that the Appellant’s detention was lawful and not a breach of his fundamental rights.

RESOLUTION OF ISSUE NUMBER ONE
I had at the incipient stage of this judgment given a précis of the background facts of this matter. Even though the parties are not agreed on the date the arrest and detention of the Appellant commenced, whether 11thApril, 2018 as submitted by the Appellant or 12th April, 2018 as contended by the Respondents; it is not confuted that the Appellant had remained in custody without being charged to Court until 8th May, 2018 when he filed this action and remained in detention after the decision of the lower Court dismissing his action until the 2nd Respondent commenced extradition proceedings against him. What is however clear, certain and beyond disputation is that the Appellant was arrested and detained from at least 12th April, 2018 to 8th May, 2018 when he filed this action at the lower Court (a period of twenty-seven [27] days).

Without a doubt, the 1st Respondent, in discharge of its duties is obligated to render assistance where requested, as in the circumstances of this case, where the United States Federal Bureau of Investigation requested for information about the Appellant to enable them secure the extradition of the Appellant for him to face charges in the United States. See Sections 6 (k) and 13 (1) (e) of the Economic and Financial Crimes Commission (Establishment) Act. In the same way, there is no doubt that by the provisions of Sections 8 (5) and41 of the Economic and Financial Crimes Commission (Establishment) Act, the officers of the 1st Respondent in the discharge of their duties under the Act have the same powers, authorities and privileges as given to members of the Nigeria Police and with all the powers and immunities of a Police Officer under the Police Act: EWULO vs. EFCC (2015) LPELR (40912) 1 at 35,OBIEGUE vs. A-G FEDERATION (supra) and ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 536. This is undoubtedly so, but the paramount qualification is that the power must not be misused or abused. The power must be exercised in accordance with the law. See OBLA vs. EFCC (2017) LPELR (45340) 1 at 15. Howbeit, the crux of this matter is not to ascertain whether the 1st Respondent’s officers have the power to arrest and detain on reasonable suspicion of the commission of a crime. In the same vein, the task before us is not to determine whether the Appellant ought to be extradited to face charges in the United States as stated in Exhibit EFCC 1. No. Rather, what we are required to determine is whether in the diacritical circumstances of this case, the fundamental rights of the Appellant were infringed bythe actions of the Respondents. Nigeria has adopted the precepts of constitutionalism; the rule of law is therefore the guidepost for all authorities, persons and institutions under our constitutional democracy. Law enforcement agents and agencies who/which interact with the ordinary citizens on a daily basis have the ineffable and sacrosanct duty to ensure the protection of the rights of the citizens as guaranteed by law. Law enforcement agents and agencies must therefore endeavour to observe, enforce and secure the observance of lex retro juris (the law behind the law). This can only be done by a moral commitment to the laws that they are called upon to administer and/or enforce. Without such a commitment, the in aeternum question: quis custodit custodes (who will guard the guard) and who will police the police persists. See generally: The Principles of Fair Hearing and the Powers of Arrests and Sanctions by Law Enforcement Agencies in Nigeria (2009) 2 NJPL 258. In the discharge of their duties, law enforcement agents and agencies must necessarily keep within prescribed detention timelines and scrupulously observe procedural safeguards required of them inthe discharge of their statutory responsibility in order to maintain the delicate balance between law enforcement on the one hand, and according to due regard and recognition to human rights on the other hand. See ODOGU vs. A-G FEDERATION (1996) 6 NWLR (PT 456) 508. Any failure or neglect on their part to observe such timelines and safeguards may constitute an infraction of rights guaranteed and protected by the Constitution which is the supreme law of the land: the grundnorm from which other laws derive their validity. See PDP vs. INEC (2001) WRN 1 at 31 and A-G ABIA vs. A-G FEDERATION (2002) 17 WRN 1 at 180.

The question of the infringement of fundamental rights is largely a question of fact and does not depend so much on the dexterous submissions from the forensic arsenal of counsel on the law. So it is the facts of the matter as disclosed in the processes filed that are to be examined, analysed and evaluated to see if the fundamental rights of the Appellant were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual.

It has to be noted that the right to personal liberty enshrined in Section 35 of the Constitution, which the Appellant sought to enforce is not an absolute right. By Section 35 (1) (c) of the Constitution, a person can be deprived of his liberty upon reasonable suspicion of his having committed an offence. Where there is such a deprivation of liberty, such a person arrested or detained shall be brought to Court within a reasonable time, within the meaning of Section 35 (5) (a) of the Constitution, that is, one day where there is a Court of competent jurisdiction within a forty kilometre (40km) radius of the place of detention. The 2nd Respondent has relied on Section 35 (5) (b) of the Constitution to contend that a person may be detained for a period longer than the stated one day in Section 35 (5) (a) or two days in Section 35 (5) (b) as the Court may deem reasonable considering the circumstances of the case. For purposes of clarity, I will set out the stipulations of Section 35 (1) (c), (4) and (5) of the Constitution. They stipulate:
“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;
(4) Any person who is arrested or detained in accordance with Subsection (1) (c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Sub-section (4) of this Section, the expression ‘a reasonable time’ means –
(a) in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.”
(Emphasis supplied)
I am unable to agree with the interpretation which the 2nd Respondent has placed on Section 35 (5) (b) reproduced above. It seems to me that the stipulation as to such longer period as in the circumstances may be considered by the Court to be reasonable will only come into play where there is no Court of competent jurisdiction within a radius of forty kilometres of the place of arrest or detention. The Appellant, from the affidavits filed, was said to have been arrested in Ikeja Lagos State and after being initially detained in the 1st Respondent’s Ikoyi Office, he was transferred to Abuja where he was detained at the 1st Respondent’s Idiagbon House, Wuse II, Abuja Office. It has not been suggested that there are no Courts of competent jurisdiction within forty kilometre radius of the places where the Appellant was detained. So on the peculiar facts of this matter, the Appellant upon the deprivation of his right to personal liberty upon reasonable suspicion of his having committed a crime as sanctioned by Section 35 (1) (c) of the 1999 Constitution (based on Exhibit EFCC 1) was to be brought to Court within a reasonable time as required by Section 35 (4) of the Constitution. The reasonable time in the circumstances of this case, where there is a Court within forty kilometre radius of the place of arrest or detention, is one day as stipulated by Section 35 (5) (a) of the 1999 Constitution; or even given the transfer to Abuja, after his arrest and initial detention in Lagos, then two days as provided in Section 35 (5) (b). The stipulation as to such longer period as in the circumstances may be considered by the Court to be reasonable is inapplicable in the peculiar circumstances of this matter. See ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 23-24.

The 1st Respondent relied on Exhibit EFCC 4 of its counter-affidavit to contend that it had filed an application at the High Court of the Federal Capital Territory for an order remanding the Appellant in its custody for purposes of investigation but that due to the indisposition of the Judge to whom the matter was assigned, that the application could not be argued. By all odds, the 1st Respondent is not to be held responsible for the failure of the Court to hear the application it filed but this reason as a justification for the detention of the Appellant beyond the stipulated timelines falls flat on its face when it is remembered that the said application was only filed on 25th April, 2018, thirteen (13) days after the Appellant had been arrested and detained by the Respondents.

Even if the failure to take the application would justify a detention between 25th April, 2018 (when it was filed) and 8th May, 2018 when the Appellant filed his action, it definitely would not justify the detention from 12th April, 2018 to 25th April, 2018. The lower Court consequently got it wrong when it held that the period that the Appellant was detained was reasonable and that the Appellant did not establish the existence of facts which curtailed his fundamental rights.

In the words of Ogunwumiju, JCA (now JSC) in OKAFOR vs. NTOKA (2017) LPELR (42794) 1 at 20 – 21:
“The importance of fundamental rights to the citizenry cannot be over-emphasized. They are rights that are not only basic to humans, they form the bedrock for a free society devoid of forces of unbridled aggression, oppression, repression, authoritarianism. They have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria (as amended) due to their sacrosanct nature and importance. When applicants approach the Courts for the enforcement of these rights, the Court must within reasonable limits do all that is necessary to ensure that these rights are protected.”
Doubtless, the facts establish that the Appellant’s fundamental rights were eviscerated by the acts, activities, omission and commission of the Respondents. The request from the Federal Bureau of Investigation for the 1st Respondent to assist them with information about the Appellant, with a view to having him extradited to the United States to face charges, was not a licence for the 1st Respondent to trample on the fundamental rights of the Appellant. The lower Court was obligated to within reasonable limits ensure that the Appellant’s fundamental rights were protected. This, it failed to do. This issue number one must ineluctably be resolved in favour of the Appellant.

ISSUE NUMBER TWO
Whether the action of the 1st Respondent approaching the FCT High Court for a detention order in an extradition issue as against an application for a provisional warrant of arrest before the Federal High Court coated with jurisdiction by the Extradition Act does not amount to a deliberate abuse of Court process and a violation of the Appellant’s rights to Fair hearing and right not to be detained beyond the constitutionally allowed period of 24/48hrs.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the Federal High Court has exclusive jurisdiction in extradition matters and that the action of the 1st Respondent applying to the High Court of the Federal Capital Territory for a detention order is an abuse of process, which is tantamount to forum shopping and a breach of the Appellant’s right to fair hearing. Sections 6, 8 (2) and (5) (b) of the Extradition Act and Order III and IV of the Federal High Court (Extradition Proceedings) Rules, 2015 were referred to. It was posited that it is ultra vires and unconstitutional for the 1st Respondent to purport to carry out the duties of the 2nd Respondent in an extradition matter without a fiat, an action that put the Appellant in untold hardship and breached his fundamental rights.

It was asserted that the motion ex parte filed by the 1st Respondent at the High Court of the Federal Capital Territory did not satisfy the definition of an order in law, as the 1st Respondent ought to have obtained a detention order before arresting the Appellant. It was opined that a subsequent application for an order after the arrest cannot cure the illegality and unconstitutionality of the act already done. It was contended that the 1st Respondent did not tell the Appellant the reason for his arrest and furthermore, that Exhibit EFCC 1 does not amount to an extradition request. It was stated that the Appellant did not admit having committed any offence, but that even if he had, it would not preclude the Respondents from complying with the provisions of the Constitution and the Extradition Act. It was conclusively submitted that extradition proceedings are not criminal proceedings which would require admission or proof as in a criminal trial and that Nigerian Courts in extradition proceedings have no adjudicatory powers to determine the guilt or otherwise of the offence allegedly committed vide UDEOZOR vs. FRN (2007) 15 NWLR (PT 1058) 499 at 520.

SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
As already indicated in the course of this judgment, the 1st Respondent did not distil any issue that corresponds with the Appellant’s issue number two, so it did not proffer any submissions thereon. I will therefore proceed to review the submissions of the 2nd Respondent on the said issue. It is the submission of the 2nd Respondent that the issue of whether the 1st Respondent was wrong in approaching the High Court of the Federal Capital Territory for a detention order, instead of the Federal High Court for a provisional warrant of arrest was not raised before or pronounced upon by the lower Court. It was said to be a fresh issue which can only be raised on appeal with leave of Court, which leave the Appellant neither sought nor obtained. The case of KANTIN KWARI MARKET TRADERS ASSOCIATION vs. LABARAN (2016) LPELR – 41329 (CA) at 2 and OFORISHE vs. NIGERIAN GAS CO. LTD (2017) LPELR – 42766 (SC) at 18 were referred to. It was contended that the pronouncement made by the lower Court on when the Respondent made the application for a detention order is an obiter dictum which cannot found an issue for determination. The Court was therefore urged to strike out the Appellant’s issue number two for being incompetent.

Turning to the merits of the issue, the 2nd Respondent submitted that the application for a detention order was not an abuse of process, but was made to bring the detention and further detention of the Appellant within the ambit of the law, in order for the process of extradition to be properly carried out. It was stated that the detention order does not initiate the extradition process so as to clothe the Federal High Court with exclusive jurisdiction, but was merely to secure the presence of the Appellant. It was further submitted that the 1st Respondent did not usurp the powers of the Attorney-General since the said powers are not exercised solely by the Attorney-General, but can be delegated to officers of his Department and officers of other agencies like the 1st Respondent. The case of SHEMA vs. FRN (2018) LPELR – 43723 (SC) at 19 – 32 was relied upon. It was maintained that in consequence, the Appellant’s extradition process can be initiated by the 1st Respondent.

RESOLUTION OF ISSUE NUMBER TWO
The logical starting point in the resolution of this issue would be the 2nd Respondent’s contention that this second issue is incompetent for being a fresh issue which was not raised at the lower Court and in respect of which the Appellant did not obtain leave of Court to raise on appeal.

It is hornbook law that an issue which was not raised and pronounced upon at nisi prius cannot be raised on appeal except with the leave of the Court. This is because appeals are by way of rehearing and, except it is an issue of jurisdiction which can be raised for the first time on appeal without leave of Court, only the issues considered and decided by the trial Court are heard on appeal, save where leave of Court had been granted for a fresh issue to be raised on appeal. An issue not taken at nisi prius and which is raised on appeal without leave of Court first had and obtained is incompetent. See IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT. 1420) 96 at 122, GBADAMOSI vs. DAIRO (2007) 1 SC (PT II) 151 or (2007) All FWLR (PT 357) 812, OFORISHE vs. NIGERIAN GAS COMPANY LTD (supra) and EKWEOZOR vs. REGISTERED TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2020) LPELR (49568) 1 at 22 – 23.
The 1st Respondent in explaining what actions it took with regard to the constitutional timelines for the detention of the Appellant deposed in paragraph 7 (j) – (n) of its counter-affidavit that it filed an application for a detention order before the High Court of the Federal Capital Territory but that the same was not taken because of the indisposition of the Judge to whom the matter was assigned. (See pages 56 – 57 of the Records). The Appellant did not controvert these averments, neither did it raise any issue at the trial that the said application was an abuse of process and/or that the High Court of the Federal Capital Territory was bereft of jurisdiction to entertain the application. Pronouncing on the facts and issue as presented, the lower Court held that the 1st Respondent had done what was required of it by the judicial process and cannot be penalized for the administrative malfunction of the Court. (See page 86 of the Records). So there was never any issue at the lower Court as to whether the said application, Exhibit EFCC 4, was an abuse of process or whether the High Court of the Federal Capital Territory had jurisdiction to entertain the application. The Appellant raising the issue on appeal is evidently a fresh issue which required leave of Court for it to be ventilated on appeal. The Appellant neither sought nor obtained leave to raise the issue number two he distilled thereby rendering the issue incompetent. It must therefore suffer the consequences of its incompetence which is striking out of the issue. See LAGOS STATE BULK PURCHASE CORPORATION vs. PURIFICATION TECHNIQUES (NIG) LTD(2012) LPELR (20617) 1 at 30 – 31, BARBUS & CO. (NIG) LTD vs. OKAFOR-UDEJI (2018) LPELR (44501) 1 at 22 and A-G ADAMAWA STATE vs. WARE (2006) LPELR (609) 1 at 8. On the settled state of the law, since the said issue number two is incompetent, it is hereby discountenanced and struck out accordingly.

This is an intermediate appellate Court. I neither lay claim to infallibility nor to being a repository of knowledge. In the unlikely event that I reached a wrong decision on the competence of the said issue number two, but I still believe that I did not, I will now proceed to consider the issue on the merits.

The Appellant’s contention is that exclusive jurisdiction in extradition matters is vested in the Federal High Court and that it was an abuse of process and forum shopping for the 1st Respondent to file Exhibit EFCC 4 before the High Court of the Federal Capital Territory. For good measure, the Appellant contends that by filing the application, Exhibit EFCC 4, the1st Respondent was carrying out the duties of the 2nd Respondent in extradition matters. I have stated in the course of this judgment, that the cause of action in this matter is not extradition proceedings. In the same vein, the application Exhibit EFCC 4 was not filed pursuant to any extradition proceedings. The facts of this matter as already redacted depict that the United States Federal Bureau of Investigation requested the 1st Respondent to assist it with information about the Appellant. The 1st Respondent in keeping with its statutory responsibilities commenced investigation and apprehended the Appellant and took him into custody. The relief sought on the application, Exhibit EFCC 4, is inter alia, for an order remanding the Appellant in the custody of the 1st Respondent for the purpose of investigation. There is nothing in the order sought which took the matter into the realm of extradition proceedings in order to come within the exclusive jurisdiction of the Federal High Court. The mere fact that the investigation carried out by the 1st Respondent was in respect of the request to have the Appellant apprehended for the purpose of his extradition to face charges in the United States, did not make the application filed or the investigation activities extradition proceedings. The High Court of the Federal Capital Territory therefore had jurisdiction to entertain the application and the filing of the same was not an abuse of process: UGO-NGADI vs. FRN (2018) LPELR (43903) 1 at 10 – 17, FRN vs. NWOSU (2016) 17 NWLR (PT 1541) 226 at 304 – 305 and EZE vs. FRN (1987) 1 NWLR (PT 51) 506.

Furthermore, the Extradition Act and the Federal High Court (Extradition Proceedings) Rules make provisions to govern the conduct of extradition proceedings. The application filed by the 1st Respondent at the High Court of the Federal Capital Territory is not the means of commencing or initiating extradition proceedings; so by no stretch of imagination can it be said that by filing the application, the 1st Respondent was exercising the duties of the 2nd Respondent in extradition proceedings. Definitely not!

It remains to state that I have given due consideration to the Appellant’s contention that the 1st Respondent did not tell the Appellant the reason for his arrest. The Appellant’s extra-judicial statement, Exhibit EFCC 2 (see pages 62 – 63 of the Records) shows that this contention cannot be correct. In the said Exhibit EFCC 2, the Appellant made statement in respect of his activities while he was in the United States. If indeed, as contended, the Appellant was not told the reason for his arrest, then Exhibit EFCC 2 would not have dwelt on his activities in the United States. The concatenation of the foregoing is that this issue number two must perforce be resolved against the Appellant. The application made to the High Court of the Federal Capital Territory in Exhibit EFCC 4 is neither an abuse of process nor a violation of the Appellant’s right to fair hearing and right not to be detained beyond the constitutional timelines.

The harbour looms into sight and it is now the opportune time to berth the vessel that is this judgment at the quays. Notwithstanding the resolution of issue number two against the Appellant, his success in issue number one signifies that this appeal is meritorious. The Respondents failed to proffer justifiable reasons for detaining the Appellant beyond the reasonable period prescribed by the Constitution without bringing him before a Court of law. Having so held, and which action amounts to trampling on the Appellant’s right to personal liberty by the Respondents; the Latinism ubi jus, ibire medium (where there is a right, there is a remedy) remains good law. Undoubtedly, the Appellant is entitled to compensation as stipulated in Section 35 (6) of the 1999 Constitution (as amended). The appeal having succeeded, the decision of the lower Court delivered on 18th May, 2018 is hereby set aside. For the avoidance of doubt, judgment is hereby entered in favour of the Appellant and against the Respondents in the following terms:
1. It is hereby declared that the arrest and detention of the Appellant beyond the period provided for in the Constitution is a violation of the Appellant’s constitutional right to personal liberty.
2. The Respondents shall pay the sum of One Million Naira (N1,000,000.00) to the Appellant as compensation for the violation of his fundamental right to personal liberty.
3. The parties shall bear their respective costs of this appeal.

PETER OLABISI IGE, J.C.A.: I have read in advance the draft judgment of my learned brother, OGAKWU, JCA.

I agree with his reasoning and conclusion that the appeal succeeds and the decision of the trial Court be set aside.

I also abide by all the consequential orders made by my learned brother in the lead judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA just delivered and I agree with the reasoning, findings and conclusion arrived thereat that this appeal has merit and it is allowed by me. The judgment of the Federal High Court sitting in Abuja in suit no. FHC/ABJ/CS/487/2018 delivered on 18th May, 2018 by Ojukwu, J is hereby set aside.

I abide by the consequential orders in the lead judgment and I adopt same as mine.

Appearances:

Alex Akoja, Esq., with him, Mrs. K. T. Sulyman and A. O. Oyediran, Esq. For Appellant(s)

Suleiman Jibril, Esq., with him, Hassan Ndah, Esq. – for 2nd Respondent
1st Respondent absent and not represented by Counsel For Respondent(s)

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