ITEH v. EFCC
(2022)LCN/16917(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, April 12, 2022
CA/ABJ/CV/316/2020
Before Our Lordships:
Hamma Akawu Barka Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
PAUL ITEH APPELANT(S)
And
ECONOMIC AND FINANCIAL CRIMES COMMISION (EFCC) RESPONDENT(S)
RATIO
FACTOR TO BE ESTABLISHED BY A PARTY TO SUCCEED UPON A COMPLAINT OF UNLAWFUL DETENTION
Section 35 of the Constitution is very clear, and for the appellant to succeed upon any complaint of breach, he must establish that he was unlawfully detained beyond the period allowed by the section, dehumanized or deprived of any of the freedoms enumerated by the Constitution. In the absence of proof on any of the areas so enumerated, appellant cannot successfully maintain any action founded on the breach of his fundamental right. See Ransome-Kuti & Ors vs. AG Federation & Ors (1985) LPELR – 2940 (SC), Fajemirokun vs. Commercial Bank (Nig) Ltd & Anor (2009) LPELR – 1231 (SC), Dasuki vs. The Director SSS (2019) LPELR – 49182 (CA).
The length of investigation on its own does not confer on the appellant a fundamental right, where as shown that he has been released on bail. It is right for the lower Court to deprecate the length of time taken in the investigation of the matter, but that on its own without more does not confer nor constitute a breach of the appellant’s Fundamental Right enshrined in the Constitution. PER BARKA, J.C.A.
DEFINITION OF THE TERM FUNDAMENTAL HUMAN RIGHTS
That having been said, the term Fundamental Human Right has been defined variously by the superior Courts of the land. In particular, the term fundamental rights have been rightly defined as:
“A fundamental right is a right guaranteed in the Nigerian Constitution and it is a right which every person is entitled, when he is not subject to the disabilities enumerated in the Constitution, to enjoy by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the Constitution.” See Odogun vs. AG of the Federation (1996) 6 NWLR (pt. 455) 5. PER BARKA, J.C.A.
THE POSITION OF LAW ON WHEN MATTERS ARE DECIDED BY AFFIDAVIT EVIDENCE
The position of the law is that in matters decided by affidavit evidence such as the application filed before the lower Court, the depositions in the affidavit take the place of oral evidence. See Nwosu Uche vs. INEC (2019) LPELR – 48396. It is entitled to be given weight where there is no conflict, and where there is conflict after the conflict had been resolved through oral or documentary evidence. See Shitta – Bey vs. AG of the Federation (1998) LPELR – 3055 (SC). Where the respondent contests the claim of the applicant, the proper thing to do is to file a counter-affidavit. See Chanchangi Airlines (Nig.) Ltd vs. African Petroleum Plc (2014) LPELR – 22922 (CA). PER BARKA, J.C.A.
The position of the law is that in matters decided by affidavit evidence such as the application filed before the lower Court, the depositions in the affidavit take the place of oral evidence. See Nwosu Uche vs. INEC (2019) LPELR – 48396. It is entitled to be given weight where there is no conflict, and where there is conflict after the conflict had been resolved through oral or documentary evidence. See Shitta – Bey vs. AG of the Federation (1998) LPELR – 3055 (SC). Where the respondent contests the claim of the applicant, the proper thing to do is to file a counter-affidavit. See Chanchangi Airlines (Nig.) Ltd vs. African Petroleum Plc (2014) LPELR – 22922 (CA).
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against the final ruling of the High Court of the Federal Capital Territory in suit with No. M/2587/12: Paul Iteh vs. Economic and Financial Crime Commission (EFCC) delivered on the 17th of May, 2013; coram Hon. Justice A.U. Musale as he then was. The lower Court in its ruling concluded that:
“Since the matter is now before the Federal High Court, it is not for this Court to continue to exercise jurisdiction on the matter. For this reason, I rule that the matter is incompetent and the best to do in the circumstance is to strike out the matter per Kokoorin vs. Patigi L.G (2009) 15 NWLR (pt. 1164) 205. The matter is strike out. The applicant shall pursue this matter before the Federal High Court, Abuja Division.”
Peeved by the said ruling appellant on the 23rd of February, 2017 filed a Notice of Appeal predicated on five grounds, urging the Court to set aside the ruling of the lower Court, grant the reliefs sought by the appellant and or any such order or orders that the Court may deem fit to make in the circumstance.
In brief, appellant on the 10th of December, 2012 filed a motion pursuant to Order 2 Rule 1, 2 and 3 of the Fundamental Rights (Enforcement) Rules 2009 praying for the following orders:
i. A declaration that the order of the respondent commanding the applicant to report daily to the Respondent’s office since 2009 amounts to torture and inhuman or degrading treatment under Section 34 of the Constitution of the Federal Republic of Nigeria 1999 as amended, hence unconstitutional null and void.
ii. A declaration that the indefinite or unending investigation of the allegations of crime against the Applicant since October, 2009, when the Applicant was arrested till date is unconstitutional and unlawful.
iii. An order of Court mandating the Respondent to withdraw the letter ref. CR3000/X/EFCC/ABJ/BF3/VOL.43/344, dated the 21st day of October, 2009, addressed to the Applicant’s employer, resulting in his indefinite suspension forthwith.
iv. An injunction restraining the respondent from further harassing, detaining, intimidating or arresting the Appellant in respect of complaint relating to the same complaint except by leave of this honorable Court.
v. The sum of N50 million only as general damages for breach of the fundamental human rights of the Applicants.
vi. The sum of N1 million only as cost of litigations.
vii. And for such order or orders that this honourable Court may deem fit make in the circumstances.
In support thereof is an affidavit of 41 paragraphs, deposed to by the applicant in person, a statement in support of the application and two exhibits titled letter of suspension dated the 30th of November, 2009 addressed to Mr. Iteh P.S, the applicant, the summary content of which is that applicant was suspended from his official duty without salary under PSR 030406, based on a report received from the respondents vide a letter of the 21st of October, 2009 with ref. No. CR: 3000/X/EFCC/ABJ/BF3/V01. 43/344, also hinged on the motion papers is another letter addressed to the Director Human Resources Management office of the SGF, dated the 21st day of July, 2010, being an appeal by the appellant for his recall as well as a sister letter from the appellant dated the 6th of October, 2010 requesting that his suspension from duty be lifted. A written address was also filed along with the motion and sundry applications filed and countered. When on the 7th day of March, 2013, the applicants application was heard, the lower Court struck it out as aforestated.
As stated by the appellant, applicant a senior staff in the office of the Secretary to the Government of the Federation was said to have received an alert indicating that certain sums of money was paid into his account with the Access Bank Plc. That he was invited by the bank on the 14th of October, 2009 where he was arrested by the respondents, and remained under arrest to the 24th of October, 2009, a period of 10 days before he was admitted to administrative bail. That no withstanding, the respondent was said to have written a letter to the employers of the appellant based upon which he was suspended from his official duty indefinitely. That up to the 8th day of February, 2013 when the charge against him was filed, respondent did not report back so as to enable his employers rescind his suspension and thereby suffered for that period without job or salary, hence his application seeking to enforce his fundamental right.
The records having been compiled and transmitted to this Court on the 22nd of May, 2020, but duly regularized on the 7th day of December, 2021, Appellant proceeded to file in a brief of argument on the 29th of May, 2020, consequentially deemed filed on the 7th day of December, 2021. In opposing the appeal, the respondent filed respondent’s brief on the 8th of December, 2020, also consequentially deemed filed on the same 7th day of December, 2021. On the 23rd day of March, 2022, the appeal having been called up for hearing, parties identified the processes filed, adopted the same and urged the Court to grant their respective prayers. Whereas the Appellant is urging upon the Court to allow the appeal, set aside the decision of the learned trial Court, and to grant the reliefs sought by the applicant now appellant, the respondent urged the Court to dismiss the appeal for being frivolous, vexatious and baseless.
In the brief settled by Festus Akpoghalino, three issues were identified for the resolution of the appeal. They are as follows:-
i. Whether the High Court of Abuja is divested of its jurisdiction to hear the application for the enforcement of the Fundamental Rights of the Appellant as a result of the commencement of the criminal trial at the Federal High Court.
ii. Whether the learned trial Court was right when having found that “It took the respondent three years plus four months to finish investigation and to charge the applicant to Court is to say the least arbitrary and unfortunate” ought not to resolve the issue in favor of the Appellant.
iii. Whether on the strength of the affidavit evidence and the admission by the Appellant the learned trial judge ought not to have granted the reliefs sought instead of striking out the case.
For the respondent and in the brief settled by S. A. Ugwuegbulem all the three issues formulated for determination by the appellant were adopted and responded to by the learned counsel for the respondent seriatim. I agree with the learned counsel on both sides that the issues identified are apt in the determination of the appeal, and also adopt the same in the resolution of this appeal. In doing so, it is my intention to look at the arguments of the appellant as a whole and simultaneously.
The learned counsel argued issue one from pages 3 – 7 of the brief, wherein it was contended that since the decision of the lower Court was not founded on any known law or legal principle, that decision ought to be set aside in the interest of justice. Alluding to the provisions of Section 46 of the CFRN 1999 as amended, counsel argued that the High Court of the FCT, and that of the FHC are imbued with the necessary jurisdiction to try cases of breach of Fundamental Rights, and referred the Court to its decision in Adumu vs. The Comptroller of Prisons, Federal Prisons Aba & Ors (2013) LPELR – 22069(CA), Seed vest Microfinance Bank Plc vs. Ogunsina & Ors (2016) LPELR – 41346 (CA), Loveday vs. The Comptroller of Prisons Federal Prisons Aba & Ors (2013) LPELR – 22072 (CA) and Jack vs. University of Agriculture, Makurdi (2004) 5 NWLR (pt. 865) 208 (SC). While positing that the Courts should guide their jurisdiction jealously as exposed in Ogaga vs. Umukoro & Ors (2011) LPELR – 8229 (SC), counsel argued that the Court had no basis refusing the hearing of the application for the enforcement of Fundamental Rights of the Applicant on the ground that charges had now been filed before the Federal High Court. He continued to argue that there is no law in support of the decision of the lower Court, citing Adekunle vs. AG Ogun State (2014) LPELR – 22569 (CA) per Tsammani JCA, and maintained that the law does not forbid the hearing of a criminal case during the pendency of an action challenging the breach of the Fundamental Rights of the same defendant and relied on Olawoye vs. COP (2006) 2NWLR (pt. 965) 427. He urged the Court to hold that the extant rules for the enforcement of Fundamental Right breaches, does not include any consolidation of a criminal complaint, hence the directive of the lower Court unfounded in law.
With respect to the second issue argued from pages 8 – 15 of the brief, learned counsel argued that the trial Court having found that that the action of the respondent had been arbitrary and unfortunate ought to have proceeded to grant the applicants reliefs, as against striking out the application. He argued also that there was no contention as to the arrest and detention of the applicant having been admitted by the respondents in their counter-affidavit, made reference to sections of the Constitution, particularly Sections 46 and 34 and 35, as well as the decision of this Court in Nweke & Ors vs. The IG of Police (2013) LPELR – 21173 (CA) per Adah JCA on the importance of Fundamental Rights further contending that the Constitution has given the Courts the power to protect the rights of the individual. Learned counsel still on Section 35 (4) of the Constitution argued that respondent was not granted unbridled power to arrest and detain arbitrarily, but that same must conform with the law and cited Olawoye vs. Cop (2006) 2 NWLR (pt. 965) 427. He maintained that the trial Court had no basis refusing to entertain the appellant’s application before it, as there was no law supporting such a decision maintaining that the facts founding the application are very clear, on the contention that where there is any complaint relating to a breach of the Fundamental Rights of an individual or group of individuals, it is the respondent that has the burden of proving the legality of its action and not the applicant relying on Madiebo vs. Nwankwo (2002) 1 NWLR (pt. 748) 283. On that premise, learned counsel is of the view that the holding of the lower Court at page 109 of the record expressing regrets at the written address of the counsel for the applicant as acting outside the ambit of the law and judicial precedence. He argued that the trial Court having held that the action of the respondent was arbitrary and unfortunate upon which the breach of the applicant was anchored, the trial Court ought to at least grant the 1st and 2nd reliefs based on such findings which the Court failed to do. He contended that the trial Court having failed to act on its findings, this Court is in a good position to do so by granting the reliefs sought, and the case of Obineche & Ors vs. Akusobi & Ors (2010) 12NWLR (pt. 1208) 383 SC relied upon.
Lastly, learned counsel on whether based on the strength of the affidavit evidence and the admission of the respondents, the learned trial Court ought not to have granted the reliefs sought, argued on the strength of the case of Madiebo vs. Nwankwo (supra), that the burden of proving the legality or constitutionality of the arrest and detention is on the party who affected the arrest, and the trial Court therefore wrong in striking out the application of the applicants on the simple premise that charges have been filed during the pendency of the application for the enforcement of the Fundamental Rights of the applicant.
On the whole, appellant urge this Court to allow the appeal and to grant the reliefs sought by the applicant.
Mr. Ugwuegbulam, the learned counsel for the respondent in response to the first issue, conceded to the fact that the commencement of criminal proceedings against the applicant before the Federal High Court or any Court at all does not void or nullify or abate an application for the enforcement of the Fundamental Right of the applicant, but goes on to argue that the mere fact that the Judge did strike out the application does not translate to the fact that appellant had established the breach, since it is the law that the applicant must succeed on the strength of the case made by him and not on the weakness of the defense case. He argued that the trial Court evidently did not evaluate the evidence adduced, but merely struck out the application positing that in such a situation, this Court is empowered under Section 16 of the Court of Appeal Act 2004 to perform such judicial act in the interest of justice and to evaluate the evidence adduced with a view to determining the real question in controversy. Analyzing the evidence adduced in the affidavit in support of the application and the counter-affidavit filed, counsel posed the question whether the respondent breached the appellant’s Fundamental Rights in the course of investigation of the allegations made. He drew the Court’s attention that appellant was handed over to the EFCC on the 15th day of October, 2009 and granted bail on the same date, but was unable to meet the terms of bail until on the 24th of October, 2009. He argued that once an accused person is offered bail, the police or prosecution has no further duty helping the accused find a surety or meet the conditions for bail imposed. Reliance was placed on the cases of Eda vs. COP Bendel State (1982) 3NCLR 219 AT 228, Ene vs. Bassey (2014) LPELR – 23524(CA) and Ekpu vs. AG of the Federation (1998) IHRLRA. It was the contention of the respondent that appellant having been offered bail, his continued detention through no fault of the respondent cannot be said to be unlawful. While urging the Court to resolve the issue in its favor, learned counsel for the respondent made reference to the provisions of Section 4 of the Police Act and Section 41 of the EFCC Act 2004, which gave the agencies the power of arrest, investigation and detention, submitting that Courts should not allow itself to be used to stultify such statutory powers granted the agencies, and referred to the cases of Fawehinmi vs. IGP (2000) 7 NWLR (pt. 665) 481, AG Anambra State vs. UBA (2005) 15 NWLR (pt. 947) 44. He maintained that the respondents were right to have arrested and investigated the appellant sequel to a petition received from the Skye Bank Plc which substantially disclosed the commission of an offence. Further on the issue of his being asked to report daily to the office of the respondent, learned counsel denied the assertion, and argued that even if that were to be so, that could not have amounted to breaching any fundamental right of the appellant.
Also submitting on the second issue dealing with whether the lower Courts finding to the effect that it took the respondents three years plus four months to finish investigation and to charge the appellant to Court is to say the least arbitrary and unfortunate resolves the issue in favor of the appellant, argued that there is no fundamental right known as the right to be charged to Court timeously, and further that a protracted investigation and or delay in filing a criminal charge does not give rise to a cause of action under our jurisprudence.
He argued that supposing there is such a right in our statute books, the issue canvassed under issue two is incompetent being that it did not attack the ratio of the case, but a passing remark, orbiter dicta. Learned counsel alluded to the statement of the lower Court at page 111 of the record, which he pointed out was the ratio of the case as against the observation of the Court made in passing. He reiterated that an appeal against the decision of the Court is anchored on the ratio as determined in a number of cases including Duke vs. Ephraim & Anor (2009) LPELR – 8064 (CA), and not against an obiter; Saude vs. Abdullahi (1989) 4NWLR (pt. 116)387, amongst others. He concluded by stating that the deprecation by the lower Court of the protracted investigation was not a finding of fact as the appellants would want the Court to believe, but a passing remark which has no bearing on the ratio of the case.
Also responding to the third and last issue, it was the contention of learned counsel for the respondent that reliefs in any suit can only be granted where the facts unearthed through evidence support the grant of such reliefs and argued that throughout the entire gamut of the appellant’s affidavit evidence, it was not shown that his fundamental right was breached and or threatened also positing that the provision of Section 35 of the Constitution is not absolute as the purpose of the section as to taking an accused person to Court within a reasonable time is satisfied where the accused is released on bail. Even then counsel argued the appellant’s claim being declaratory in nature, the reliefs are only granted when credible evidence is led by the applicant or plaintiff as the case may be, and not on the weakness of the defendant’s case. The cases of Anyanru vs. Mandilas Ltd (2007) 4SCNJ 288, Chukwumah vs. SPDC (Nig) Ltd (1993) LPELR – 864 (SC), Matanmi & Ors vs. Dada & Ors (2013) LPELR – 19929 (SC) and Akinboni & Ors vs. Akintope & Ors (2016) LPELR – 40184 were cited in support. He finally urged the Court to dismiss the appeal.
I understand the thrust of this appeal as being the refusal of the lower Court entertaining the appellant’s application brought pursuant to Order 2 Rules 1, 2 and 3 of the Fundamental Rights Enforcement Rules 2009 on the simple reasoning that a criminal case had already been instituted against the appellant.
The provision of Order 2 Rule 1 of the Fundamental Rights Enforcement Procedure Rules 2009 under which appellant brought his application provided that:
“any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being or is likely to be infringed, may apply to the High Court in the state where the infringement occurs or likely to occur for redress.”
The fulcrum of the appellant’s complaint before the lower Court is hinged on his contention that his fundamental right enshrined in the Constitution had been breached and thereby infringed upon, leading to the filing of the application before the lower Court praying for the reliefs earlier captured in the judgment. Appellant as applicant filed the necessary affidavit in support as well as all other sundry processes upon which to convince the Court that his Fundamental Right had indeed been infringed upon. it is also on record that the respondents stoutly in wishing to defend the allegation of infringement of the applicant’s Fundamental Rights had filed a counter-affidavit denying all the material assertions therein.
Ogakwu JCA in the case of AG of the Federation vs. Kashamu (no. 1) (2020) 3 NWLR (pt. 1711) 209 AT 279 did state and rightly too, that:
“The question of infringement of fundamental rights is largely a question of fact and does not so much depend on the dexterous submissions from the forensic arsenal of learned counsel on the law. It is the facts as disclosed by the affidavit evidence that is usually examined, analyzed and evaluated to see if the fundamental rights have been eviscerated or are likely to be eviscerated as alleged or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The onus remains on the applicant to prove by credible affidavit evidence that there has been a breach or that there is a likely hood of a breach of his fundamental rights. See Onah vs. Okenwa (2010) 7 NWLR (pt. 1194) 512 AT 535 and Okafor vs. Lagos State Government (2016) LPELR — 41066.”
I have therefore carefully examined the affidavits filed by the parties, and it seems to me that the germane facts generating the instant appeal are not altogether in dispute, excepting that whereas the appellant did depose that he was locked up in a squalid cell and tortured by the respondents for upward of nine days before he was admitted to bail, aside the respondents writing a damaging and devastating letter to his employers which led to his indefinite suspension without pay, the respondent denied the averment in their counter-affidavit, rather contending that appellant was released on bail immediately and on the same date, but could not be released having failed to fulfill the conditions for bail until after nine days. There is the other assertion by way of affidavit evidence that appellant was dehumanized having been asked to report to the respondent’s office daily, which he was compelled to do for fear of being re-arrested. This the respondents also denied in the counter-affidavit. These contentious areas appear to be the area joined upon by the parties. The question arising is where do the combatants go to, for the resolution of the dispute. The case of Adumu vs. The Comptroller of Prisons, Federal Prisons, Aba & Ors (2013) LPELR – 22069 (CA) in interpreting Order 1 Rule 2 of the Fundamental Rights (Enforcement Rules) 2009, per Augie JCA as he then was, held that:
“The provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules defined Court to mean the Federal High Court or the High Court of a State. What this means is that both the Federal High Court and the High Court of a State have concurrent jurisdiction in matter of the Enforcement of Fundamental right.”
This being so, the learned counsel for the appellant would be correct, in his submission that no law supports the decision of the lower Court directing that appellant go to the Federal High Court wherein he was being charged with a criminal allegation to ventilate his application founded on the infringement of his fundamental rights. This Court in the case of Adekunle vs. AG Ogun State (2014) LPELR – 22569 (CA) per Tsammani JCA, elaborated on the position thus:-
“This matter was initiated under the Fundamental Rights (Enforcement Procedure) RuIes 1979. It is not in doubt that the Fundamental Rights (Enforcement Procedure) Rules have been made as a special procedure for a speedy enforcement of the fundamental rights of the citizens. In other words, an action under the Fundamental Rights (Enforcement Procedure) Rules is a peculiar action. It is a kind of action which may be considered as sui generis i.e. it is a case in a class of its own though with a closer affinity to a civil action than a criminal action the remedy available by this procedure is to enforce the constitutional rights available to citizens which has been contravened by another or others.
Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights may have some criminal connotation, but will not raise the allegations of breach of fundamental rights to the level or pedestal of a criminal allegation. I am therefore of the view that to raise the standard of proof in an action for the enforcement of fundamental rights to that required in criminal allegation merely because the facts giving rise to the breach or contravention have semblance of criminal acts, will defeat the purpose of Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria, which seeks a simple easy to attain and thus effective judicial process for the enforcement of fundamental rights available to citizens under Chapter 4 of the 1999 Constitution of the Federal republic of Nigeria…”
I am therefore swayed by the submission of the learned counsel for the appellant, that the law does not preclude nor forbid the hearing of a criminal case filed against an individual during the pendency of any action brought by the said accused person challenging the breach of his fundamental rights, as both can be heard at the same time either before the same High Court or a different High Court at the same time. See Adekunle vs. AG Ogun State (supra). I therefore agree with the learned counsel for the appellant that the lower Court was indeed wrong to have declined the hearing of the appellant’s application. This issue is resolved in favor of the appellant.
Issue two poses the question whether the lower Court was right having asserted that; it took the respondent three full years plus four months to finish investigation and to charge the applicant to Court is to say the least unfortunate ought not to have resolved that issue in favor of the appellant. The argument of the learned counsel is that, that finding is a propelling force and basis for any decision, and the Court having so found ought to have granted the reliefs sought by the appellant. The resolution of this issue rests forcefully on the assumption that the finding by the lower Court formed the ratio for the Court’s decision. It is the law that an appeal against the decision of a Court must of necessity be founded against the ratio decidendi of the Court, the reason for the decision. In the recent case of ATS & Sons vs. Ben Electronics Co. Ltd (2019) ALL FWLR (pt. 986) 567 AT 618, Okoro JSC reiterated the legal position:
“The law is trite that a comment or statement of the Court as the one in issue which is not necessary for the determination of the issue joined in the parties pleadings, is an obiter dictum. It has no binding authority and cannot be the subject of an appeal. It is a statement or remark made in passing which does not reflect the ratio decidendi, that is the reasoning or ground upon which a case is decided. A ground of appeal can only challenge the ratio decidendi of a judgment. See Odunukwe vs. Ofomata & Anor (2010) 18 NWLR (pt. 1225) 404, Afro-continental Nig Ltd vs. Ayantuyi & Ors (1995) 9 NWLR (pt. 420) 411 amongst many others.”
I have been referred to page 111 of the record and I do agree that the ratio of the judgment by the lower Court is the conclusion therein to the effect that since the matter is before the Federal High Court, it is not for the Court to continue to exercise jurisdiction on the matter. For this reason, I rule that the matter is incompetent and the best to do in the circumstance is to strike out the matter. This I believe is the ratio of the decision as against the remark by the learned judge in passing. The learned counsel for the respondent is therefore right submitting that the deprecation by the learned trial judge of the protracted investigation is not a finding of fact, but a passing remark which had no bearing on the decision taken by the trial Court.
That notwithstanding, even the remark by the trial Judge taken from the appellant’s affidavit though admitted by the respondents in the counter-affidavit, does not on its own form a fundamental right upon which this Court or any Court may declare in favor of the appellant. Section 35 of the Constitution is very clear, and for the appellant to succeed upon any complaint of breach, he must establish that he was unlawfully detained beyond the period allowed by the section, dehumanized or deprived of any of the freedoms enumerated by the Constitution. In the absence of proof on any of the areas so enumerated, appellant cannot successfully maintain any action founded on the breach of his fundamental right. SeeRansome-Kuti & Ors vs. AG Federation & Ors (1985) LPELR – 2940 (SC), Fajemirokun vs. Commercial Bank (Nig) Ltd & Anor (2009) LPELR – 1231 (SC), Dasuki vs. The Director SSS (2019) LPELR – 49182 (CA).
The length of investigation on its own does not confer on the appellant a fundamental right, where as shown that he has been released on bail. It is right for the lower Court to deprecate the length of time taken in the investigation of the matter, but that on its own without more does not confer nor constitute a breach of the appellant’s Fundamental Right enshrined in the Constitution.
This issue is resolved against the appellant. Finally, it had been argued whether on the strength of the affidavit evidence, appellant ought to have been granted the reliefs sought.
Regrettably, the lower Court felt it was not its duty to appropriately consider whether appellant’s Fundamental Right has been infringed in the circumstance. All the affidavit evidence for and against the grant of the application having been placed before the Court, this Court is left with no choice, than to invoke the provisions of Section 15 of the Court of Appeal Act 2004 as amended, and to re-hear the application as a Court of first instance. This undertaking is to forestall waste of time and also in the interest of justice.
That having been said, the term Fundamental Human Right has been defined variously by the superior Courts of the land. In particular, the term fundamental rights have been rightly defined as:
“A fundamental right is a right guaranteed in the Nigerian Constitution and it is a right which every person is entitled, when he is not subject to the disabilities enumerated in the Constitution, to enjoy by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the Constitution.” See Odogun vs. AG of the Federation (1996) 6 NWLR (pt. 455) 5.
The position of the law is that in matters decided by affidavit evidence such as the application filed before the lower Court, the depositions in the affidavit take the place of oral evidence. See Nwosu Uche vs. INEC (2019) LPELR – 48396. It is entitled to be given weight where there is no conflict, and where there is conflict after the conflict had been resolved through oral or documentary evidence. See Shitta – Bey vs. AG of the Federation (1998) LPELR – 3055 (SC). Where the respondent contests the claim of the applicant, the proper thing to do is to file a counter-affidavit. See Chanchangi Airlines (Nig.) Ltd vs. African Petroleum Plc (2014) LPELR – 22922 (CA). Evident from the record, applicant filed a 41 paragraph affidavit, the relevant paragraphs amongst others being paragraphs 15 and 16 which reads as follows:
15. that Respondent detained me from 15th day of October, 2009 till 24th day of October, 2009 when I was eventually released on bail with the onerous condition of reporting daily to the office of the EFCC instead of my place of work.
16. that the respondent then wrote to my office a damaging and devastating letter ref. CR/3000/X/EFCC/ABJ/BF3/VOL. 43/344 which was dated the 21st day of October, 2009 which resulted into my indefinite suspension from my office till date.
The respondents countered those depositions specifically by their paragraphs 3c – h, which also reads as follows:
3c the applicant was handed over to the respondent by Skye Bank officials on the 15th of October, 2009 and granted bail immediately, which conditions he was unable to fulfill until 24th of October, 2009.
3d He was released on bail after he made statements at the commission asked to report to the commission from time to time.
3e that because investigation is still on going, he had to report in to the respondent regularly in order to respond to new issues that may arise in the course of further investigation. He was never asked to report to the respondent daily.
3f that the allegation against him indicate that he had cloned a cheque belonging to Lagos State Ministry of Establishment and paid the sum of N23, 830, 192.00 via a Skye Bank cheque into the account belonging to his company, Itelo Enterprises at Access Bank.
3g The Commission acted within its statutory powers to investigate the applicant.
The applicants after reading the counter affidavit filed, decided to file a reply, and in the deposition of Richard Ebie, one of the Solicitors handling the case for the applicant, deposed from paragraphs 4a – 4b as follows.
4a. that paragraph 3 is true only to the extent that he was handed over to the respondent by the Sky Bank Plc, but denies all other averment and states further that the respondent refused to release the applicant on bail despite his innocence.
4b. that no terms or conditions for bail was ever served on the applicant or shown to him till 24th day of October, 2009 when the applicant was granted administrative bail with onerous conditions.
Appellants now argue that the power of arrest and detention, which the respondents claim to have, is not absolute, but subjected to the limits imposed by the constitution, and in particular Section 35 thereof.
On whether appellant was admitted to bail on the same date of his arrest as asserted by the respondents, it was argued that no such materials were presented to the Court by the respondent, and therefore the Court bound to believe the affidavit of the applicant in that regard, and the case of FBN vs. Ndarake & Sons Ltd (2009) 15NWLR (pt. 1164) 406 AT 414 relied upon. In further argument, it was contended that where a party claims that he was unlawfully arrested, or detained or tortured by another, the burden of proving the legality or constitutionality of the allegation is on the party who effected the arrest or detention. The case of Madiebo vs. Nwankwo (2002) INWLR (pt. 748) 428 was cited and relied upon.
The other argument propelled by the respondent is that appellant having been released on bail immediately upon his arrest, but owing to the fact that he could not satisfy the bail conditions attached, remained in detention for the period of nine days, and the respondent can’t be held responsible for that period of his detention. In other words, the respondent is not admitting to any illegality in the arrest and or detention of the appellant. The provision of Section 131 of the Evidence Act, 2011 is explicit. It provides that whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts shall prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. It is incumbent on the appellant as applicant therefore to place before the Court, by way of acceptable and convincing affidavit evidence, establishing those facts upon which his claim is based. Evidently, the facts the appellant as applicant wishes to rely upon are those facts deposed to in the affidavit in support of the application, which the respondent duly countered. Not only that learned counsel for the applicant prayed the Court to be guided by the decisions of the cases just cited in arriving at the decision that applicant had proved his case as required. Now how does the cases cited by the appellant’s counsel have application? I say so because the case of FBN vs. Ndarake (Supra) cited, deals principally with the effect of unchallenged or uncontroverted evidence, which invariably is not the case here, and even though it has always been the state of the law that where evidence given by a party to any proceedings, and such evidence remains unchallenged by the opposite party who had the opportunity of doing so, it is always open to the Court seised of the matter to act on that unchallenged evidence. See Omoregbe vs. Lawani (1980) LPELR – 2655 (SC), Odulaja vs. Haddad (1973) 11 SC 35, my humble view is that appellant, having asserted that he was detained by the respondent beyond the time admitted by the respondents, which is less than the 24 hours period allowed by Section 35 of the Constitution of the Federal Republic of Nigeria 1999, must still go further to discharge that evidential burden of proving the assertion. This is because the process by which the existence of facts is established to the satisfaction of the Court rests on that party that relies on that assertion. That is the hallmark of Section 121 of the Evidence Act 2011. See also Awuse vs. Odili (2005) 16 NWLR (pt. 952) 416. The general rule on the issue is that the burden of proof rests on the party whether plaintiff or defendant who asserts the affirmative of the issue. Akande vs. Adisa (2012) 15 NWLR (pt. 1324) 538. The law further strengthens the position that in all civil cases the plaintiff relies on the strength of the case made out by him and not on the weakness of the defense case, unless and until where the plaintiff finds in the evidence adduced by the defense facts that strengthen his own case. See Akande vs. Adisa (supra), and Ayorinde vs. Sogunro (2012) IINWLR (pt. 1312) 460 (SC).
Indeed, the crux of the appellant’s case before the lower Court was that he was unlawfully arrested, detained tortured and directed to be reporting to the offices of the respondents on a daily basis. This assertion was stoutly denied by the respondents in their counter-affidavit, wherein it was deposed amongst others that respondents acted upon a petition received from Skye bank against the appellant. That appellant was granted bail, but failed to meet up with the bail conditions, and further denied asking appellant to be reporting to its offices on a daily basis. In other words, respondent denied breaching any fundamental right of the appellant.
Rhodes – Vivour Jsc, in Akiti vs. Oyekunle (2018) LPELR – 43721 (SC), clarified the position of the law with regards to affidavit evidence thus:
“I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine. Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to. See Akinsete vs. Akindutire (1966) 4 NSCC 157, Eboh vs. Oki (1974) 9 NSCC 29, National Bank Ltd vs. The Are Brothers Nig. Ltd (1977) 11 NSCC 382.
Whereas, the respondent are agreed that appellant spent nine days in their custody, argued that it was not their business to scout for a surety for the appellant having admitted him to bail, and his stay with the respondent cannot be termed unlawful. I agree with the learned counsel that where a suspect has been offered bail, and could not find a surety and or fulfill the bail conditions. This Court in Eniang Edem Ekpo Ene & Ors vs. Elder Bassey A. Bassey & Ors (2014) LPELR – 23524 (CA), guided by the decision of the Apex Court in Ekpu vs. AG of the Federation (1998) IHRLRA (Human Rights Law Report of Africa) did state that the police in the exercise of their duties are empowered by Section 35c of the Constitution of the Federal Republic of Nigeria and Section 24 of the Police Act to arrest and to detain persons upon reasonable suspicion, and unless a substantial surety for the bail of the detainee is provided as per Section 27 of the Police Act, there exists no breach of the fundamental right of the detainee. They cannot also be held liable for failure to scout for a surety for the detainee. If the appellant wanted the lower Court and indeed this Court to believe that he was detained for a period of nine days, that he was tortured and commanded to be visiting the respondents on a daily basis, this much appellants failed to establish in their reply affidavit. No further and better affidavit in that regard was filed, and the submissions in the written address by the learned counsel cannot take the place of affidavit evidence no matter how brilliantly made. I am swayed and do agree that agencies such as the respondents and similar agencies vested with statutory powers of investigating crimes, cannot ordinarily be impeded, restrained and or arm twisted in the rightful performance of their duties. Having been imbued with the powers of arrest and or detention within the law, as well as the prevention of crime, once exercised according to law, the Fundamental Rights granted to a litigant which are not absolute must bow to the general good.
From the entire scenario painted by the affidavit evidence before the Court, the respondent cannot be said to have unlawfully arrested the appellant, and or wrongly detained and or had him tortured and debased, but that respondents acted within the confines of their statutory duty upon the complaint reasonable received.. in any case, even though the period taken by the respondents in the investigation of the case alleged against appellant, and the attendant letter written to his employees leading to his indefinite suspension could be said to be unreasonable, that on its own does not add up to a breach of the fundamental rights of the appellant. This issue is accordingly resolved against the appellant.
Hence issues 2 and 3 having been resolved against the appellant, and even though issue one is resolved in his favor, the determinant issue being issue three, this appeal can be said to have partly succeeded. The appellant’s claim having not been proved as required by law is hereby dismissed. I make no order on costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Hamma Akawu Barka, JCA, which has just been delivered was made available to me in draft. I am allegiant to the reasoning and conclusion in the said leading judgment.
The Special Purpose Vehicle in respect of applications for enforcement of fundamental rights is the Fundamental Rights (Enforcement Procedure) Rules, 2009. The mere fact that an applicant for the enforcement of his fundamental rights has been subsequently charged to Court would not obviate or annul the fact that his fundamental rights may have been breached before he was arraigned in Court. In the circumstances, the lower Court was not correct when it struck out the Appellant’s application for enforcement of fundamental rights on the ground that having had charges brought against him at the Federal High Court, that he should therefore ventilate his grievance at the Federal High Court.
By Section 46 (1) of the 1999 Constitution, any person who alleges that his fundamental rights has been, is being, or is likely to be contravened in any State may apply to a High Court in that State for redress. See UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT. 200) 708. Furthermore, Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 also makes a similar provision and Order I Rule 1 of the said Rules then defines Court to mean Federal High Court or High Court of a State: ADUMU vs. COMPTROLLER OF PRISONS, FEDERAL PRISONS, ABA (2013) LPELR (22069) 1. The Appellant’s complaint was in respect of alleged violation of his fundamental rights in Abuja; so the High Court of the Federal Capital Territory, Abuja (the lower Court) was imbued with jurisdiction to entertain the matter. Its jurisdiction remained intact; notwithstanding the arraignment of the Appellant on criminal charges before the Federal High Court.
The matter does not end there. The Appellant has the evidential burden of establishing that his fundamental rights were in fact eviscerated and not mere huffing and puffing from the sabre-rattling submissions of the learned counsel. See A-G FEDERATION vs. KASHAMU (NO. 1) (2020) 3 NWLR (PT 1711) 209 at 279. As has been admirably demonstrated in the leading judgment of my learned broth , the affidavit evidence when conscientiously examined, evaluated and analysed does not establish any violation of the fundamental rights of the Appellant entitling him to redress.
Accordingly, it is predicated on the foregoing and the more detailed reasoning and conclusion articulated in the leading judgment that I avow my concurrence with the orders made in the leading judgment.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother, Barka, JCA. I am in agreement with his erudite reasonings and the conclusion he reached on this appeal. I adopt those reasoning as rnine.
As observed by my lord in the lead judgment, the partial success of this appeal in terms of the Appellant’s first issue for determination does not mitigate the final abode of the appeal as unmeritorious.
By way of emphasis only, I will add that the Appellant’s second issue for determination, in the manner couched, seeks to validate the Appellant’s claims before the lower Court. Unfortunately, however, the Appellant seems to have lost sight of the wide distinction between a ratio and obiterdictum.
It is the ratio of the decision that is appealable, not some passing remark or opinion expressed in the course of the treatment of the ratio. The remarks expressed by the Court below about the inordinate length and delay of the investigation in the case was not the ratio of the Court’s ruling and therefore not appellable. See Omisore & Anor vs. Aregbesola & Ors (2015) LPELR -24803 (SC); Oleksandr & Ors vs. Lonestar Drilling Co. Ltd & Anor (2015) LPELR 24614 (SC).
Thus, the argument canvassed for the Appellant under the issue cannot add any value to his appeal because the subject of the issue is not one that is generally appellable.
For the fuller reasons expressed by my Lord in the lead judgment, I too dismiss this appeal.
Appearances:
…For Appellant(s)
…For Respondent(s)
