HRH EZE (DR) PETER OPARA & ANOR v. DIAMOND BANK PLC & ANOR
(2011)LCN/4355(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2011
CA/PH/166/2007
RATIO
ABUSE OF COURT PROCESS: WHETHER A WRIT ISSUED SOLELY TO PREVENT DISCUSSION OF A MATTER OF PUBLIC INTEREST IS AN ABUSE OF PROCESS.; INSTANCES OF ABUSE OF COURT PROCESS
It has been held that a writ issued solely to prevent discussion of a matter of public interest is an abuse of process. See English cases of R. v. DAILY MAIL, EX PARTE FACTOR (1928) 44 TLR 303; WALLERSTEINER v. MOIR (1974) 3 ALL E.R 217 230. A gagging writ or other process to gag an opponent is an abuse of the process. Here in Nigeria, instances of abuse of process include – i. when a partly improperly uses the issuance of judicial process to the irritation and annoyance of his opponent and not for the efficient and effective administration of justice; ii. multiplicity of actions on the same issue/matter between the same parties. The abuse lies in the multiplicity and manner of the exercise of the right, and not the exercise of the right per se; iii. the abuse consists of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice. See SARAKT v. KOTOYE (1992) 11 – 12 SC 26 at 48; OKORODUDU V. OKORODUDU (1977 3 Sc 21. PER EJEMBI,EKO,J.C.A
DUTY OF THE APPELLATE COURT: WHETHER THE APPELLATE COURT HAS A DUTY TO SET ASIDE JUDGMENT OF A TRIAL COURT THAT IS PERVERSE
Where judgment of a trial court is perverse the appellate court has a duty to set aside such perverse decision. See JOLAYEMI v. ALAOYE (2004) 118 LRCN 3942 at 3970. PER EJEMBI,EKO,J.C.A
FEAR: DEFINITION OF THE WORD “FEAR”
Fear as defined by BLACK’s LAW DICTIONARY 6th ed is- Apprehension of harm; dread; consciousness of approaching danger. Mental response to threat. Profound reverence and awe. PER EJEMBI,EKO,J.C.A
STATUTORY PROVISION: PROVISION OF ORDER 2 RULE 1 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 1979 AS IT RELATES ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS
…order 2 Rule 1 of the Fundamental Rights (Enforcement procedure) Rules, 1979, which says – Any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled, has been, or is likely to be infringed may apply to the court in the state where the infringement occurs or likely to occur, for redress. PER EJEMBI,EKO,J.C.A
REASONABLE: MEANING OF THE WORD ” REASONABLE”
The word reasonable, as an adjective, connotes the doing of a thing that is “fair, practical and sensible” or acceptable and appropriate in a particular situation.” See OXFORD ADAVANCED LEARNER” DICTIONARY. PER EJEMBI,EKO,J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. HRH EZE (DR) PETER OPARA
2. PETRO CONTINENTAL (NIG) LTD Appellant(s)
AND
1. DIAMOND BANK PLC
2. ECONOMIC & FINANCIAL CRIMES COMMISSION Respondent(s)
EJEMBI,EKO,J.C.A: (Delivering the Leading Judgment): The Appellants’ application for enforcement of their fundamental rights, brought pursuant to the Fundamental Rights (Enforcement procedure) Rules, was, on 23rd January, 2007, dismissed by the Federal High court (coram I.N. Buba, J) sitting at port Harcourt. Aggrieved by this dismissal order, in the suit no FHC/PH/CS/5087/2006, the Appellants promptly filed their joint Notice of Appeal containing only one ground of appeal, to wit:
The learned trial Judge erred in law by disregarding order 1, Rule 2 (1) of the Fundamental Rights
(Enforcement Procedure) Rules, 1979 and holding that the applicants’ Exhibit V – the 2nd Respondents invitation letter to the 1st Applicant is (sic) does not show that the Applicants Fundamental Rights are likely to be infringed upon the face of the invitation.
PARTICULARS OF ERROR
1. The court failed to conjunctively consider the initial arrest and detention of the 1st applicant, the fraudulent allegation contained in the petition of the 1st respondent to the 2nd respondent and the invitation letter of the applicant by the 2nd Respondent, but only looked at the invitation letter to hold that there was no likelihood of the violation of the applicant fundamental rights.
2. The court was wrong when it overlooked the Counter Affidavit of the 1st Respondent which from all intents and purposes alluded that the Applicants were owing the 1st Respondent hence, its reason to petition the Applicants and therefore taking a civil matter of simple contract to the 2nd Respondent to enforce when it is not a debt collector viz-a-viz Exhibit EFCC ‘A’ of the 2nd Respondent.
The facts are that the Appellants, as the applicants at the lower court, were customers of the 1st Respondent bank since 1994.
The relationship continued until 2003 when the Appellants suspected some discrepancies in the management of their account with the 1st Respondent. They engaged a banking consultant to investigate, and it was allegedly discovered that the 1st Respondent had illegally over charged the Appellants, in the management of their account, to a tune of N10,776,921.19 which they demanded refund of. The 1st Respondent, though not convinced, mutually agreed with the Appellant’s banking consultant that the matter be referred to the chartered Institute of Bankers’ committee on ethics and professionalism for arbitration. The matter was still pending there for arbitration when the 1st Respondent reported the Appellants to the Financial Malpractices Investigation unit of the Nigeria Police Force C.I.D Annex, Lagos. Consequently, policemen from Lagos came to port Harcourt, and arrested and detained the 1st Appellant on 18th April, 2005. The 1st Appellant was not granted bail until the policemen made him pay N2,000,000.00 in favour of the 1st Respondent. The police further directed the 1st Appellant to appear before them at Lagos on 10th May, 2005. In the mean time the Appellants approached the Federal High court, Port Harcourt in suit no FHC/PH/CS/385/2005 for leave to apply for enforcement of their fundamental rights. Exhibit ‘U’ contains the order granting the leave sought. The Appellants, in their supporting affidavit, aver in this suit –
28. That the matter is still pending in the Federal High court 2 and instead of waiting for the judgment of the court the 1st Respondent, in disregard or the court, petitioned us again to EFCC on spurious claims when it is owing us just to use its might to Intimidate us.
The 2nd Respondent’s letter Exhibit ‘V’, inviting the 1st Appellant’ as Managing Director of the 2nd Appellant, to appear in Lagos before her officer in charge of Bank Fraud Team 3 on 11th December, 2007 states that “the Commission is investigating a case of Bank Fraud/Diversion of depositor’s fund reported by Diamond Bank Plc against you and your company.” The 1st Respondent’s letter of 14th March, 2005 to the Appellants had demanded from the latter payment of the outstanding sum of N44,137,700.76 plus interest thereon due from the latter to the former within 21 days failing which all necessary actions will be taken against the Appellants to recover the sum without further notice. This letter is Exhibit ‘N’. Exhibit ‘T’, the letter from the Nigeria Police Force CID Lagos, inviting the 1st Appellant to appear in Lagos on 10th May, 2005 and the Appellant’s arrest and detention in April, 2005 have some nexus or connection with the 1s Respondent’s letter Exhibit ‘N’.
The 1st Respondent’s Counter Affidavit seems to admit in paragraph 7 thereof that the Appellants “through their agents reported the matter to the Bankers sub committee’ on ethics and professionalism” for arbitration and that “the committee is yet to finally adjudicate on the matter.” Paragraph 6 of the said Counter Affidavit also admits that the 1st Respondent went – to lodge a complaint with the Financial Malpractice Investigation Unit of the 2nd Respondent which has the statutory duty to investigate transactions where Banks are being defrauded or the risk of the same exists. The (Appellants) were merely invited for an interview on routine investigation. No body has threatened to arrest them.
The Counter Affidavit of the 2nd Respondent avers that they (EFCC) are investigating the alleged fraud and obtaining by false pretences, not diversion of depositors’ funds, reported against the Appellants to them through 1st Respondent’s letter of 27th October, 2007, Exhibit “EFCC A.” The 1st Respondent’s letter, Exhibit ‘V’, inviting the 1st Appellant for interview on 11th December, 2006 had triggered the Appellants’ resolve to apply for leave to apply for the enforcement of their fundamental rights. Upon leave granted to the Appellants to bring the application to enforce their fundamental rights, the Appellants filed, vide the originating motion on 6th December, 2006, an application seeking orders enforcing their fundamental rights.
They sought 3 reliefs, namely –
(i) A declaration that the invitation of the 1st Applicant by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violation of his fundamental right to liberty and dignity of his person and a continuation of the harassment of the Applicants by the 1st Respondent in view of a pending action in this Court in suit no FHC/PH/CS/385/2005 between the Applicants and Diamond Bank Limited and 4 ors.
(ii) A declaration that the 2nd Respondent by the enabling Act establishing it, lacks the statutory power to function as a debt collector on behalf of the 1st Respondent or any body for that matter in matters of commercial contract.
(iii) An order of court restraining the Respondents from disturbing or interfering with the right to liberty of the 1st Applicant through further threat of invitation, arrest, detention, intimidation and unnecessary interrogation or in any other way or manner whatsoever.
The parties were heard on the Appellants’ application on 19th January, 2007. The learned trial Judge in his reserved Ruling delivered on 23rd January, 2007 dismissed the application. Hence this appeal, the notice of which was filed on 24th January, 2007. As I earlier stated, the appeal canvassed only one ground of appeal.
Appellants’ Brief of Argument, filed on 17th July, 2007, was by leave of this Court deemed filed and served on 21st January, 2001.
The 2nd Respondent filed respondent’s Brief on 20th February, 2009.
The 1st Respondent’s Brief was filed on 15th April, 2009. The Appellants Reply Brief, filed on 12th May, 2009, was deemed filed and served on 8th February, 2010. The 2nd Respondent’s Notice of preliminary objection filed on 20th February, 2009 was argued in the 2nd Respondent’s brief of argument. The grounds of the objection are that there is proliferation of issues for determination formulated by the Appellants. From the lone ground of appeal the Appellants formulated three issues. The 2nd Respondent also contends that issue 3 formulated by the Appellants did not arise from the tone ground of appeal. Accordingly, we are urged to strike out all the issues formulated by the Appellants for determination.
Appellants, in reply to the objection founded on proliferation of issues, submit on authority of EKE v. OGBONDA (2007) 144 LRCN 391 (SC) that although the courts frown at proliferation of issues, the issues in certain circumstances could be tolerated and treated together. The Supreme Court, on proliferation of issues, held at pages 400 and 401 thus –
This leaves ground (iii) from which the appellant’s issues (i) and (ii) have been formulated. Although framing two issues from a single ground of appeal by the appellant amounts to proliferation of issues the practice of which has been frowned at in several cases by this court such as: ANAEZE v. ANYASO (1993) 5 NWLR [pt.291] 1 at 30; BURAIMOH V. BAMGBOSE (1980) 3 NWLR [pt.109] 352; UTIH v. ONOYIVWE (1991) 1 NWLR [pt.166] 166 at 214; OYEKAN v. AKINRINWA (1996) 7 NWLR [pt.459] 128 at 136 and YUSUF v. AKINDIPE (2000) 8 NWLR (pt.669) 376 at 384, the ground and issues are in my view competent to sustain this appeal and I shall proceed to determine the appeal on the issues together.
what informed this opinion is the fact that the multiple issues formulated from a single ground of appeal are inseperable and could conveniently be argued together.
Now, let us see the issues formulated by the Appellants in this appeal from the single ground of appeal. They are –
(i) whether the court was right to ignore to consider the initial arrest of the 1st Appellant by the agents of the 1st Respondent and which application was pending in the same court to restrain the 1st Respondent and its privies and/or agents from further breach of the Appellants fundamental rights and were the Appellants right to apprehend that their fundamental rights were about to be breached again.
(ii) whether the court failed in its duty to treat the invitation letter from EFCC in isolation with facts of a commercial transaction deposed to in the affidavit of verification and the accompanying Exhibits.
(iii) Whether the 2nd Respondent by virtue of the Act setting it up could be resorted to as a debt collector in a commercial/civil matter.
Appellants offered no answer to the objection that issue (iii) formulated by them has not arisen from the single ground of appeal.
Issue (iii) is at best a sub-issue in support of the main issue in the ground of appeal. The complaint in the single ground of appeal is that the learned trial Judge erred in not holding that the 2nd Respondent’s letter, Exhibit ‘V’, viewed in the light of the totality of the 1st Respondent’s conduct in the circumstances of this case, constituted an act of harassment or further harassment tantamounting to violation of the Applicants/Appellants fundamental rights to liberty. The issue therefore is whether the Appellants, as the applicants, proved that Exhibit ‘V’ together with the totality of the facts forming the circumstances in which it was issued constitute the violation of the fundamental rights of the Appellants. This is not too far from the single issue respectively formulated from the lone ground of appeal by the Respondents. The 1st Respondent has postulated thus –
whether the mere report of the alleged criminal conduct of the Appellants to the 2nd Respondent which has the statutory duty or power to investigate the alleged criminal conduct constitutes an infraction of the fundamental right of the Appellant.
The 2nd Respondent, on the other hand asks – whether a mere letter of invitation sent to the Appellants by the 2nd Respondent based on criminal allegations reported to it by the 1st Respondent constitutes a breach or a threat to breach of further breach of their fundamental rights by the 2nd Respondent.
The case of the Appellants is that the 1st Respondent is using the law enforcement agencies, the police and EFCC, the 2nd Respondent, to harass them for a dispute that is purely civil or commercial and that upon the discovery of their banking consultants that the 1st Respondent was making them lose money through illegal charges they petitioned the Bankers committee on ethics and professionalism for arbitration on the alleged illegal charges. And that the 1st Respondent, who submitted to the arbitration, instead of allowing the body to adjudicate on the matter and in utter disregard of the sub-committee’s letter urging the parties to exercise restraint reported the Appellants to the police. The 1st appellant was arrested and his payment of N2,000,000.00 was made a pre-condition for his bail, which he paid. Appellants further submit that the suit for enforcement of their fundamental rights against the 1st Respondent and others was pending at the Federal High Court 2 when the 1st Respondent wrote another petition, Exhibit ‘EFCC A’, to the 2nd Respondent and that the 2nd Respondent acting on Exhibit ‘EFCC A’ caused the letter Exhibit ‘V’ to be written to the Appellants whereby they were invited to Lagos for interrogation. Appellants, though acknowledging the statutory power of the 2nd Respondent to investigate any complaint of any alleged crime, insist, however, that their transaction with the 1st Respondent and the dispute arising therefrom disclose nothing criminal. They further submit that the 2nd Respondent is not a debt recovering outfit, and that the 1st Respondent is using the police and the 2nd Respondent to harass them to pay a disputed or controversial debt to the 1st Respondent. Relying on AKULEGA v. BSCSC (2001) 12 NWLR (pt.725) 524 at 577; JACK v. UNIVERSITY OF AGRICULTURE, MAKURDI, (2004) 117 LRCN 3784 Appellants submit that their apprehension that their liberty is likely to be infringed again entitles them to come to court to seek protection.
The case of the Appellants against the Respondents is founded on the allegation that the 1st Respondent is harassing them to pay spurious debt which included illegal charges and that the 1st
Respondent is using the 2nd Respondent for that purpose. Against the 2nd Respondent it is a case of abuse of power.
The 2nd Respondent says it has power conferred by its enabling statute to invite any person against whom there is a complaint of a criminal nature. And that it is particularly empowered by section 6(b) of the EFCC Act 2004 to investigate all cases of economic and financial crimes with the view of identifying the individuals involved. Relying on EL RUFIA v. HOUSE OF REPRESENTATIVES (2003) FWLR [pt. 173] 162; SADIQ v. STATE (1982) 2 NCR 142 the 2nd Respondent submits that a mere invitation to appear in order to answer a petition does not affect the fundamental right of the invitee. None of these cases involve multiplicity of complaints over the same issue by the same complainant against the same invitee as in this case.
Before I go to the submissions of the 1st Respondent, let me quickly dispose of one issue the 2nd Respondent alluded to in its brief.
That is the finding or conclusion of the learned trial Judge at pages 186 – 189 of the Record; part of which is that –
It is my considered opinion that from the facts before me there is only one live issue i.e. whether there is a likelihood of the breach of the Applicants fundamental rights. I have read the facts in support of this application itemized (a) – c and 2 (a) – (d), alt the facts relate to acts that occurred in 2005 i.e. April, 2005, are not relevant for the purposes of the matter before me. 1st they are acts that occurred for more than 12 months before the present suit was initiated.
Secondly, from the ipsit dixit of the Applicants there is a suit pending before court II. I have seen the enrolled order of my learned brother, A.O. Faji, J. The parties are not the same…as I stated elsewhere those matters that occurred more than 12 months, which is subject of another proceedings can not be lamped (sic) together with this suit.
The foregoing has emboldened the 2nd Respondent to submit that
By virtue of order 1 Rule 3(1) of the Fundamental Right (Enforcement procedure) Rules leave to enforce fundamental rights will not be granted except the application is made within 11 months of the happening of the event, matter or act complained of.
The acts of the arrest complained of by the Appellants occurred sometime in April, 2005. My Lords, the period between the arrest of the appellants in April, 2005, and the period of the invitation issued by the 2nd Respondent was well over the 12 months period prescribed by the rules.
Limitation is not an issue in this appeal. Order 1 Rule 3(1) of the Fundamental Rights (Enforcement Procedure) Rules is intended to be a “statute of limitation” to bar any application for enforcement of any fundamental right in respect of act, event or matter that occurred more than 12 months before the presentation of the application. Both the learned trial Judge and the 2nd Respondent seem to have misconceived the allusions of the Appellants to those previous events or matters. They were pleaded to show the mala fide of the 1st Respondent in their letter Exhibit ‘EFCC A’ which prompted the 2nd Respondent to issue Exhibit ‘V’. Let me leave this for now. The 1st Respondent submits that the mere report of the alleged criminal conduct of the Appellants to the 2nd Respondent, which has the statutory duty or power to investigate the alleged criminal conduct does not itself constitute the infraction of the fundamental rights of the Appellant. The legal position, 1st Respondent further submits, is that the person who reports a suspected crime to the police and the police in exercise of their constitutional duties decide to investigate the alleged crime and in the process arrest and detain the culprits within the parameters of the law, such person can not be held liable for the arrest or detention without more. The cases of EZEADUKA v. MADUKA (1997) 8 NWLR [pt.518] 635; ADEFUNMILAYO v. ODUNTAN (1958) WNLR 31 and GBAYOR v. OGUNBUREGI were referred to. A capricious use of statutory power for a purpose other than that for which the power is vested is certainly an abuse of power, if I may quickly chip in.
The Appellants in this case do not deny the powers or duty of the 2nd Respondent to receive complaints that economic and financial crime has been allegedly committed. They also do not deny to the 1st Respondent the right to report a crime. The Appellant, at the trial court, had complained that the 1st Respondent is renting and using law enforcement agencies, the police and EFCC, to harass them and that the 1s Respondent’s petition, on which the 2nd Respondent acted to issue the letter of invitation Exhibit ‘V’, was done with ulterior purpose of further harassing them. The 1st Respondent has no right to pervert the course of justice and abuse the process of complaining to a statutory body like the police or EFCC. A partly who initiates or starts and continues his action with ulterior motive/purpose of seeking for himself collateral advantage beyond the legal remedy for the grievance, and but for the ulterior purpose he would not have started the action is said to have abused the process of the law. See AGUDA: PRACTICE & PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL & HIGH COURTS OF NIGERIA (1980 ed) page 260 para. 19 – 67.
The circumstances or facts that can regarded as abuse of process are many. It has been held that a writ issued solely to prevent discussion of a matter of public interest is an abuse of process. See English cases of R. v. DAILY MAIL, EX PARTE FACTOR (1928) 44 TLR 303; WALLERSTEINER v. MOIR (1974) 3 ALL E.R 217 230. A gagging writ or other process to gag an opponent is an abuse of the process. Here in Nigeria, instances of abuse of process include –
i. when a partly improperly uses the issuance of judicial process to the irritation and annoyance of his opponent and not for the efficient and effective administration of justice;
ii. multiplicity of actions on the same issue/matter between the same parties. The abuse lies in the multiplicity and manner of the exercise of the right, and not the exercise of the right per se;
iii. the abuse consists of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice.
See SARAKT v. KOTOYE (1992) 11 – 12 SC 26 at 48; OKORODUDU V. OKORODUDU (1977 3 Sc 21.
The complaint of the Appellants, which unfortunately learned trial misconceived, is that the 1st Respondent is resorting to multiplicity of the complaints against them over the same issue to law enforcement agencies purposely to harass and emasculate them from complaining about the fraud of the 1st Respondent subjecting their account to illegal charges to its benefit and to the detriment of the Appellants. A banking consultant employed by the Appellants detected the fraud. Thereafter the Appellants and the 1st Respondent mutually agreed and the matter was referred to the Bankers Committee (sub-committee) on ethics and professionalism for arbitration. The 1st Respondent admits this fact and avers in the Counter Affidavit that the “committee – is yet to finally adjudicate on the matter.” While the matter is yet to be finally adjudicated upon by the committee the 1st Respondent reported the Appellants to the police. The 1st Appellant was arrested and detained, and had to unwillingly pay N2,000,000.00 to the 1st Respondent in order to be granted bail. Nobody has charged the matter to any court of law for any offence Appellants may have committed. Paragraph 18 verifying the Appellants claims which has not been effectively denied, says it all-
18. That in spite of the matter before the bankers Committee the 1st Respondent’s staff kept on harassing the (Appellants) to abandon their claim or else they will frame him (i.e. 1st Appellant) and drag him to the E.F.C.C. that he is a “419.”
The 1st Respondent also was mischievously silent on the Appellants, allegations in paragraphs 30 and 31 of the supporting affidavit that it is using its powers to ensure that “the Bankers committee (did not) intervene in the matter” and
31. That the 1st Respondent is using its connection with the Law Enforcement Agencies (Police & EFCC) to intimidate and harass (the Appellant) into abandoning our claims of excess bank charges which (1st Respondent) is owing us.
The learned trial Judge, in my view, failed to judiciously consider the totality of the evidential materials presented before him in support of the Appellants’ case. I agree with the Appellants that the learned trial Judge did not properly evaluate, if ever he did, the evidence of the Appellants before he dismissed it. Where judgment of a trial court is perverse the appellate court has a duty to set aside such perverse decision. See JOLAYEMI v. ALAOYE (2004) 118 LRCN 3942 at 3970.
The end Respondent has not made available the result of its preliminary investigation, if any, into the complaint or petition, Exhibit ‘EFCC A’, against the Appellants. It is not evident that the 1st Respondent had made available to the 2nd Respondent any other materials, apart from Exhibit ‘EFCC A’ to facilitate the alleged investigation. As it is, it will be utterly unreasonable for the 2nd
Respondent to insist that they can only commence the investigation only after the 1st Appellant honoured the invitation in Exhibit ‘V’. Has time not come in this country for the law enforcement agencies to invite persons against whom there are complaints for questioning only after they had satisfied themselves, upon preliminary investigations, that a prime facie case against the suspects had been disclosed? The practice of perfunctory invitation of the person against whom there is a complaint, without preliminary investigation, has invariably resulted in unnecessary interference with the person’s liberty especially when eventually the complaint is found to be fanciful and merely actuated by malice. The 2nd Respondent, from available facts, resorted to this perfunctory practice and invited the Appellants in Exhibit ‘V’ for interrogation without being satisfied, upon preliminary investigation, that the 1st Respondent’s complaint has some substance prima facie. I am satisfied from the totality of the evidence that the Appellants had shown that, in prodding the 2nd Respondent to action against them, the 1st Respondent was merely acting maliciously to cover up its own fraud against the Appellants.
In view of the antecedents of the 1st Respondent the apprehension of the Appellants, particularly the to Appellant that the Respondents were harassing them is real. The fear that the personal liberty of the 1st Appellant was likely to be infringed is very rear. Fear as defined by BLACK’s LAW DICTIONARY 6th ed is-
Apprehension of harm; dread; consciousness of approaching danger. Mental response to threat. Profound reverence and awe.
All that the Appellants need to show to sustain this action are the facts or conditions enumerated in order 2 Rule 1 of the Fundamental Rights (Enforcement procedure) Rules, 1979, which says –
Any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled, has been, or is likely to be infringed may apply to the court in the state where the infringement occurs or likely to occur, for redress.
The fundamental right the Appellants are seeking to enforce is the right to personal liberty guaranteed by section 35(1) of the Constitution, which states that –
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 the procedure permitted by law.
I am aware that under sub-section (1) (c) of this said section 35 the liberty of an individual can be deprived “upon reasonable suspicion” that he has committed a criminal offence. What is reasonable is a matter of fact. The word reasonable, as an adjective, connotes the doing of a thing that is “fair, practical and sensible” or acceptable and appropriate in a particular situation.” See OXFORD ADAVANCED LEARNER” DICTIONARY. It is therefore not enough for the 2nd Respondent to say glibly that they have statutory power to deprive any person of his liberty, or to merely invite him for interrogation, upon a petition, without going further to show how they came to reasonable suspicion that what was alleged against that person in the petition has indeed and infact aroused their fair, practical or sensible suspicion. The Appellants have shown that the 1st Respondent uses Law enforcement agencies, as his attacking spinnels, to harass them, particularly the 1st Appellant, to pay dubious debts.
I have juxtaposed all the facts in the statement of facts, verified by the supporting affidavit in the application, an exercise the learned trial Judge refused or declined to do under the false pre that those facts were statute barred; and the inescapable conclusion, from the totality of the facts, is that 1st Respondent’s petition, Exhibit ‘EFCC A’, which set the 2nd Respondent in action to issue Exhibit ‘V’, is unfair, unreasonable and inappropriate in the circumstances. It is completely unacceptable. I hereby allow the appeal.
The application ought to have been granted. I hereby grant it.
Accordingly, it is hereby declared that the invitation of the 1st Applicant/appellant, vide Exhibit ‘V’, by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violation of the fundamental right of the 1st Applicant/Appellant to personal liberty and a continuation of the harassment of the Applicants/Appellants by the 1st Respondent in relation to the disputed or dubious debt allegedly owed by the Appellants to the 1st Respondent. The 1st Respondent can not, under the enabling statute establishing the 2nd Respondent, improperly use the 2nd Respondent as their debt collectors in transactions that are completely civil and contractual.
The Respondents, jointly and/or severally, are hereby restrained from disturbing, harassing and/or howsoever interfering with the personal liberty of the 1st Applicant/Appellant through intimidation, threats of invitation for interrogation, arrest, detention or in any other way or manner. Those shall be the declarations and order of the trial court.
The Ruling dismissing the application no FHC/PH/CS/5087/2006, the subject of this appeal, is hereby set aside.
Costs at N50,000.00 are hereby awarded in favour of the Appellants against the is Respondent.
DATTIJO MUHAMMAD (OFR) J.C.A: I read in draft the read judgment in this appeal prepared by learned my brother Eko JCA. I agree with his reasonings and conclusion therein that the appeal has merit and so do hereby allow same.
I must emphasize the point that applications for the enforcement of fundamental Rights are granted once the rights of the applicants are shown to have been breached or threatened. Courts rely on the facts contained in the affidavits for and against the application in determining these applications. The affidavits in the instant matter show clearly that the lower court’s conclusion that Appellant’s liberty was not being threatened is perverse. My learned brother has in the lead judgment painstakingly demonstrated why a conclusion other than the one arrived at by the lower court is necessary. I therefore allow the appeal and make the very consequential orders his lordship decreed in the read judgment including those on costs.
T.O. AWOTOYE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother EJEMBI EKO JCA. I agree with his reasoning and conclusions.
I also allow the appeal. I endorse the consequential order made in the lead judgment including the order as to costs.
Appearances
K.O. UzoukwuFor Appellant
AND
E.B. Ukiri with O. Iyayi (Miss) for 1st Respondent.
I. Agwu for 2nd Respondent.For Respondent
