MBAEYI v. EFCC & ORS
(2022)LCN/17079(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, April 26, 2022
CA/L/88/19
Before Our Lordships:
Abubakar Sadiq Umar Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
LIVISTER CHIJIOKE MBAEYI APPELANT(S)
And
ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. OLAPADE ADARAN 3. MRS. MARY SANKAWI RESPONDENT(S)
RATIO
WHETHER OR NOT THERE IS AN AGENCY RELATIONSHIP BETWEEN A PRIVATE CITIZEN AND A POLICE OFFICER
In the case of ENE & ORS. V. BASSEY & ORS (2014) LPELR–23524 (CA), this Court held that:
“The trial Judge failed to advert his mind to the fact that the 1st Respondent was offered bail and that he could not find a suitable surety to take him on bail.
There is no agency relationship between a private citizen and a police officer in the performance of his police duties, under Section 4 of the Police Act or any other enabling law to the same effect.” See Ezeadukwa v. Maduka (supra). The Police are statutorily empowered by Section 35(c) of the 1999 Constitution of Nigeria and Section 24 of the Police Act to arrest and detain persons upon reasonable suspicion let alone upon receipt of a criminal complaint made officially as in the instant case. Until and unless a substantial surety for the bail of the applicant or detainee is provided as per Section 27 of the Police Act, there exist no breach of fundamental right of the applicants or detainee..,
In this case, since the respondents offered bail to the applicants on April 10th, 1994, then their continued detention after that date cannot be said to be unlawful.” Per NDUKWE-ANYANWU, J.C.A (Pp. 26-27 paras. A) (Underlining mine for emphasis).
My Lords, CHIMA CENTUS NWEZE, JCA (as he then was) and ONYEKACHI AJA OTISI, JCA, concurred with the position taken by NDUKWE-ANYANWU, J.C.A in ENE & ORS. V. BASSEY & ORS (supra). This Court shared similar views in the case of EFCC & ORS V. CHUKWURAH (2018) LPELR–43972 (CA) wherein my learned brother, OWOADE, JCA, held that:
“It seems to me that the learned Counsel for the Appellants was right in relation to Issue Three that the Appellants could not have been held to violate the Respondent’s right to liberty, when the Respondent was in fact granted administrative bail by the Appellants 1st December, 2015 when he was first invited by the Appellants but failed to meet the bail conditions until 3rd day of December, 2015.” PER UMAR, JCA.
WHETHER OR NOT THE COURT OF LAW HAS THE POWER TO STOP THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) FROM INVESTIGATING A CRIME
In case of Ken Nwafor vs. EFCC (2021) (NWLR) 13 Pg. 600 Pare H-A per Georgewill, JCA, held,
Whilst performing its legitimate duties, no Court of law has the power to stop the Economic and Financial Crimes Commission (EFCC) from investigating a crime and, therefore, no person against whom there is a reasonable suspicion of having committed an offence or likely to commit an offence would be granted any relief capable of shielding him against criminal investigation and prosecution, since no citizen has any right to be an outlaw under the laws of this country. [Atakpa v. Ebetor (2015) 3- NWLR (Pt. 1447) 549; I. G. P. v. Ubah (2015) 11 NWLR (Pt. 1472) 405; Nzewi v. C.O.P. (2000) 2 HRLR 156; Badejo v. Minister of Education (1996) 8 NWLR (Pt. 464) 15; Hassan v. EFCC (2014) 1 NWLR (Pt. 1389) 607; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606; A-G Anambra State v. Uba (2005) 15 NWLR (Pt. 947) 44; Christlieb Plc v. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to.](Pp. 600-601, paras. H-C)”. PER UMAR, JCA.
THE POSITION OF LAW ON WHAT CONSTITUTES A RELEASE
The question to be asked is what constitutes a release? Once a prosecutorial agency realizes that an arraignment before a Court of law must be effected within twenty four hours of detention, and once they also realize the fact that an investigation ought to be completed before an arraignment in Court, they ought to release him on administrative bail pending the completion of their investigation. The question is did they do so? Had they fulfilled all righteousness? This aspect is important because they had to have concluded that the Defendant committed an offence worthy to be charged to Court in the first place. also had the option of presenting him before a Magistrate for a Remand Order OR the Option to grant him an Administrative bail, and both options are valid courses of action to take in the circumstance.
It is clear that Prosecutorial Agencies have an enormous responsibility to be thorough in their investigation before bringing a suspect to Court. The rush to charge a suspect to Court has sometimes led to a Miscarriage of justice, with hasty investigations conducted as a result of which, vital witnesses may not be called at the trial. Alibi’s and Defences may not be investigated properly and there could be omissions by the Investigators when gathering evidence to justify the ingredients connecting the suspect to the offence. Whilst in certain instances an investigation may take time, it is clear that the trial must be conducted within a reasonable time after the accused has been charged. See ASAKITIKPI vs STATE (1993) LPELR-572(SC). PER UMAR, JCA.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Lagos in Suit No. FHC/L/CS/250/2018 delivered on 23rd May 2018 by I.N. BUBA J. wherein the learned trial Judge dismissed the Appellant’s application for the enforcement of his fundamental rights.
BRIEF STATEMENT OF FACTS
The case of the Appellant as can be gleaned from his affidavit in support of his originating summons is that the 3rd Respondent invested in his business of small money remittance services in the United Kingdom with the agreement that the 3rd Respondent would be paid a monthly sum as returns/profits on the investment sum. That the 3rd Respondent paid a total of £40,000 (Forty Thousand Pounds Sterling) to him over a period of three years commencing from 2012. According to the Appellant’s narrative, his business temporarily shut down sometime in 2015 due to heavy losses recorded as a result of the exchange rate problem. The Appellant stated that he informed the 3rd Respondent about this issue and further informed her that in the meantime he was going to Nigeria to further his education at the Nigeria Law School. That in the process of registering for a resit exam in Abuja, he got an invitation from the office of the 1st and 2nd Respondents which invitation he honoured on 12th February 2017 and there he was informed of the 3rd Respondent’s petition against him.
The Appellant stated that he was interrogated in respect of the 3rd Respondent’s petition wherein she alleged that he defrauded her in respect of the business transaction in the United Kingdom. It was the Appellant’s case that he gave a detailed explanation of the business transaction entered into between himself and the 3rd Respondent and the outcome of the transaction.
At the end of the interrogation, the Appellant deposed in his affidavit that he was detained for two weeks by the 1st and 2nd Respondents without being charged to Court for any offence. That while in detention, he pleaded that he be released on bail but his request was refused until he was subsequently released on administrative bail on 23rd February 2017.
The Appellant deposited his Nigerian and British passports with the 1st and 2nd Respondents as one of the conditions for his bail which he considered stringent. He stated that he was asked to report to the office of the 1st and 2nd Respondents on a weekly basis which instruction he complied with despite the fact that at that time he had not been charged to Court for any offence or informed of the outcome of the 1st and 2nd Respondents findings on the petition despite repeated demands. The Appellant stated that due to the lack of response on the part of the 1st and 2nd Respondents, he requested for the release of his passports, but his request was denied. That he suffered untold emotional and financial hardship and humiliation as a result of his inability to return to the United Kingdom hence the institution of the suit which is the subject of the instant appeal.
The Respondents on the other hand in their counter affidavit stated that the Petition received from the 3rd Respondent bordered on a criminal case of obtaining money under false pretence. The 2nd Respondent stated that the Petition alleged that the Appellant had duped innocent citizens and that the Appellant was parading himself as a Managing Partner of an established law firm. The 3rd Respondent stated that after she had given the Appellant money, she discovered that the Appellant was not a registered money transferor in the United Kingdom and was not called to the Bar. The Respondent stated that the Appellant was granted bail on the same day he reported at their office but was only able to fulfill the bail conditions on 23rd February 2017 when he was released. According to the Respondents, the Appellant demanded for his international passports and he was told that investigation was still ongoing, with analysis of the bundle of documentary evidence submitted by the parties and awaiting response from different organizations which letters had been written to, to assist investigations. That during this period, 1st and 2nd respondents received a process from the Appellant alleging infringement of their fundamental rights; thereby putting a halt to the investigation.
On the face of his originating motion, the Appellant sought the following reliefs jointly and severally against the Respondents:
a. “A DECLARATION that the 1st and 2nd Respondents’ detention of the Applicant for two weeks without being charged to Court for any criminal offence is in contravention of the Applicant’s right to personal liberty and freedom of movement as guaranteed by Section 35 and Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
b. A DECLARATION that the 1st and 2nd Respondents’ threat to further arrest and detain the Applicant until the Applicant submits to the desire of the 1st, 2nd and 3rd Respondents is in contravention of the Applicant’s right to personal liberty as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria (as amended).
c. A DECLARATION that the 1st and 2nd Respondents’ continuous refusal to release and deliver up possession to the Applicant his Nigerian and British International Passports is in contravention of the Applicant’s right to freedom of movement as guaranteed by Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
d. AN ORDER directing the 1st and 2nd Respondents to immediately deliver up possession and release the Applicant’s Nigerian and British International Passports with passport numbers NGR A06371061 and GBR 518639520 respectively to the Applicant.
e. A DECLARATION that the 1st and 2nd Respondents do not have territorial jurisdiction to investigate, prosecute or intervene in a commercial transaction entered into and performed in the United Kingdom between the Applicant and the 3rd Respondent who were both resident in the United Kingdom at the time.
f. AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents by themselves, their offices, agents and/or representatives from further arresting, detaining, harassing, intimidating or otherwise depriving the Applicant in any manner whatsoever of his rights to personal liberty and freedom of movement in connection with the transaction carried out in the United Kingdom between the Applicant and the 3rd Respondent.
g. AN ORDER directing the Respondents jointly and/or severally to pay to the Applicant the sum of One Hundred and Fifty Million Naira (N150,000,000.00) as damages for the unlawful detention, humiliation and losses suffered by the Applicant.
Upon being served with the Originating motion, the Respondents filed a counter-affidavit with exhibits and written address in support. The counter-affidavit and exhibits are at pages 98-112; and the written address is at pages 113-120. The Appellant in turn filed a further affidavit and reply on points of law on 17th May 2020. See pages 126-134 of the records.
The processes were adopted on 22nd May 2018 and in a considered judgment delivered on 23rd May 2018, the trial Court dismissed the Appellant’s application for the enforcement of his fundamental rights. See pages 137-165 of the records.
Dissatisfied by the decision of the trial Court, the Appellant invoked the appellate jurisdiction of this Court via an amended notice of appeal containing six grounds of appeal filed on 10-02-2021.
In due observance of the rules and practice of this Court, parties filed and exchanged their respective briefs of argument. S.C. NDUDIM, ESQ settled the Appellant’s brief of argument filed on 18th November, 2021 and for the determination of the appeal, the following issues were distilled:
a. “Whether the lower Court considered all the facts and evidence placed before it in coming to its decision (Grounds 1, 4, 5 and 6)
b. Whether the trial Judge erred in facts and law when he held that the 1st and 2nd Respondents did not infringe on the Appellant’s right to personal liberty contrary to the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 1999, as amended (Ground 2)
c. Whether the trial Judge erred in facts and law when he failed to make a finding on the 1st and 2nd Respondents’ detention of the Appellant’s Nigerian and British International Passports contrary to the provisions of Section 41 of the Constitution of the Federal Republic of Nigeria 1999 as amended (Ground 3)”
On issue no.1, counsel for the Appellant submitted that the lower Court failed to consider and examine certain facts in coming to its decision. That on one hand, the facts before the lower Court showed that the 3rd Respondent’s petition against the Appellant was in relation to a business transaction which originated and was performed between the Appellant and the 3rd Respondent in the United Kingdom. Counsel submitted further that as at the time the transaction was performed by the Appellant and the 3rd Respondent, they were both residing in the United Kingdom. That there is no connection between the transaction performed and the Federal Republic of Nigeria and any issue arising from the contract ought to have been channelled to the appropriate authority in the United Kingdom. Reliance was placed on ARJAY LTD & ORS V. A.M.S LTD (2003) LPELR-555 (SC) PER ONU JSC (P.24, PARAS E-F); MATTARADONA V. AHU (1995) 8 NWLR (PT. 412) 225 AT 236 TO 237. Counsel thereafter submitted that the trial Court failed to give a valid reason as to why it came to the conclusion that the mere fact that the transaction occurred in London was immaterial.
It was also the submission of counsel that the trial Court also failed to consider the fact the Respondents used the detention of the Appellant as a means to recover the 3rd Respondent’s money from the Appellant. Relying on the case of DIAMOND BANK PLC V. OPARA (2018) 7 NWLR (PT. 1617) 92 AT (P. 114, PARAS B-C), counsel submitted that the powers conferred on the 1st Respondent does not extend to investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions.
On issue no.2, counsel submitted that the trial Judge failed to consider the essential elements involved in infringement of the Appellant’s right to personal liberty. Reliance was placed on Section 35(1) (c) & 35(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It was the submission of counsel that after the Appellant’s interrogation, he ought to be brought before a Court of law within reasonable time as defined by Section 35(5). That the Appellant was detained at the 1st Respondent’s office for two weeks and was not brought before any Court despite the fact that there were several Courts within forty kilometres radius of the 1st Respondent’s office. The Court was referred to the case of EKANEM V. A.I.G.P (2008) 5 NWLR (PT. 1079) 97 (P.109-110, PARAS. E-A.
Further to the above, counsel submitted that before and after the fundamental rights application was filed and subsequently determined by the trial Court, no charge was proferred against the Appellant. According to the submission of learned counsel for the Appellant, all these amounted to an infringement of the Appellant’s right to personal liberty. It was the contention of counsel that the petition that led to the detention of the Appellant stems from a contractual agreement between the Appellant and the 3rd Respondent and that from the provision of Section 35(1) (c) of the Constitution, it is evident that for a person to be deprived of his personal liberty, there has to be a reasonable suspicion of a criminal offence. That there was no valid ground whatsoever for the 1st Respondent to have reasonable suspicion that the Appellant committed a crime. According to the Appellant’s counsel, the trial Judge based his decision on the fact that the Appellant was granted bail but could not fulfil the bail conditions. That this however is not enough reason to conclude that the Appellant’s right to personal liberty has not been infringed upon and that the trial Judge ought to have considered the fact that the bail conditions given to the Appellant were stringent in the present circumstances. Reliance was placed on OKORONKWO V. FRN (2014) 11 WRN 127; AKILA V. DIRECTOR GENERAL SSS (2014) 2NWLR (PT 1392) 443 (P. 480, PARAS. G-H).
On issue no.3, counsel for the Appellant submitted that the trial Judge erred in facts and law when he failed to make a finding on the 1st and 2nd Respondents detention of the Appellant’s Nigerian and British International Passports. On the duty of a Court to pronounce on all issues placed before it, reliance was placed on OBASI V. STATE (2012) LPELR-19950 (CA) PER LOKULO-SODIPE JCA (PP 38-39, PARAS F-A; OLAGUNJU V. ADESOYE (2012) 33 WRN 1 AT 36.
Counsel submitted that the trial Judge found in error that the Appellant was a Cameroonian by nationality based on his surname and his possession of a Cameroon passport without more, and which according to counsel was not the issue before the Court. The Court was referred to Section 41(1) & 41 (2) (a) of the Constitution Federal Republic of Nigeria, 1999, as amended. Counsel further submitted that going by the provision of the Constitution, the 1st and 2nd Respondents, as a result of their holding onto the Appellant’s passports, have deprived him of freely moving out of the Country and as such have infringed on his right to movement. Counsel further referred to the case of SSS V. OLISA AGBAKOBA (1999) 3 NWLR (PT. 595) 314 and submitted that the Respondents have infringed on the Appellant’s right to movement and the lower Court failed to make findings in this regard.
In the final analysis, counsel urged this Court to allow this appeal and to consequently set aside the decision of the lower Court in its entirety.
B.O.A. SONOIKI, ESQ. settled the 1st and 2nd Respondents’ brief of argument filed on 23rd December, 2021. For the determination of the instant appeal, the Respondent’s counsel formulated a sole issue as follows:
“Whether the Court below was right in dismissing appellants’ application having regard to the evidence before the Court?”
In arguing the sole issue, counsel for the Respondent submitted that by virtue of the EFCC Act 2004, the 1st Respondent is assigned the responsibility of investigating all financial crimes. The Court was referred to Section 6(b), 7, 8, 13, 38 and 41 of the EFCC Act and the cases of ONYEKWERE V STATE (1973) 8 NSCC 250 AT 255; DIFA V THE STATE (1977) 1 NNLR 224 AT 227; FAWEHINMI V. IGP (2000) 7 NWLR (PT. 665) 481 AT 528, PARAS E-G; JOSHUA V. STATE (2009) ALL FWLR (Pt. 475) 1626 at 1651, Paras A-B
Counsel submitted that duty to investigate is only a preliminary process which invitation for an interview and subsequent arrest is part of the process of verifying the authenticity or otherwise of the allegations against the Appellant. That the 1st and 2nd Respondents displayed professionalism in investigations, when they allowed Appellant go after fulfilling his bail condition.
On the contention by the Appellant that the transaction happened in the United Kingdom (UK) and that all grievances ought to have been channeled to the appropriate authorities in the United Kingdom, counsel for the 1st and 2nd Respondents submitted that by virtue of Section 93 of the Administration of Criminal Justice Act (ACJA), any Law enforcement agency who received any compliant/petition (consequence of the offence) of fraud be it committed within Nigeria (ensued) or outside the shores of Nigerian, such law enforcement agency can investigate and prosecute such allegation as in the instant case.
Counsel submitted further that the Appellant has been charged to Court in Charge No ID/7764/2017 based on the petition contained in PP. 105-109 of the record and Prosecution has closed its case, that the Appellant was arraigned on the 23rd day of October 2018 and granted bail on the 1st of November 2018 and that he never raised any objection before his arraignment as to the venue of crime. Counsel submitted that the Appellant is yet to meet the Court’s bail condition till date.
On the contention of the Appellant that the transaction between him and the 3rd Respondent was contractual, counsel for the 1st and 2nd Respondent submitted that it is a known fact that most economic and financial crimes arise from transactions that have the semblance of contractual transactions. That the fact that the Complainant was naturally desirous of getting her money refunded does not mean the Appellant did not commit a crime. It was the contention of the Respondent’s counsel that notwithstanding the fact that the offence against the Appellant emanated from a commercial transaction does not give the Appellant immunity against investigation and possible prosecution as held in loads of judicial authorities. Reliance was placed on OBOMANU V. GEORGEWILL (supra); BRILLA ENERGY LTD V. FRN (2018) 16 NWLR (PT. 1645)305 AT 348-349.
It was the Respondent’s submission that counsel for the Appellant misconstrued the constitutional provisions in Sections 35 (1) (C), S. 35(4) and S.35 (5) (a) of the 1999 Constitution. That the said constitutional provisions envisage a situation where it becomes practically impossible to admit the suspect on bail. That in the instant case, the Appellant was released and granted provisional bail within the statutory required 24 hours but was unable to fulfil the condition of his bail. Reference was made to paragraph 18 of the 1st and 2nd Respondents’ counter-affidavit at page 102 of the record.
It was the contention of the Respondent’s counsel that the Appellant’s fundamental right to personal liberty is not an absolute right. Reliance was placed on DOKUBO-ASARI V. FRN (2007) 12 NWLR (PT. 1048) 320 AT 360; EKWENUGO V. FRN (2001) 6 NWLR (Pt. 708) 171 at 186-187.
On the failure of a suspect to fulfill the conditions of bail, this Court was referred to AUGUSTINE EDA V. COMMISSIONER OF POLICE BENDEL STATE (1982) 3 NWLR (pt. 228), where it was held that once a suspect is offered bail, his inability to fulfil the conditions of the bail would not be tantamount to unlawfully detainment.
In the final analysis, counsel urged this Court to dismiss this appeal and to affirm the judgment of the Court below.
In his reply brief, counsel for the Appellant committed pages 1–5 of his reply brief in addressing some of the issues raised in the Respondent’s brief. Although the salient issues in this appeal have been enumerated in the preceding part of this judgment, hence I shall proceed with the resolution of the appeal.
RESOLUTION
I have carefully perused the issues raised by the parties in this appeal. In the determination of the said issues, I shall adopt the issues distilled by the Appellant’s counsel. However in the resolution, these issues shall be considered as a single unit.
An understanding of the Appellant’s issue no.1 would reveal that he is challenging the territorial jurisdictional competence of the 1st Respondent to arrest, detain and interrogate him on the basis of a petition predicated on a transaction that was entered into by the Appellant and the 3rd Respondent in the United Kingdom. It is not in dispute that the 3rd Respondent invested thousands of Pounds Sterling in the Appellant’s business of small money remittance services in the United Kingdom with the agreement that the 3rd Respondent would be paid a monthly sum as returns/profits on the investment sum. By the Appellant’s own admission in paragraph 7 of the affidavit in support of the Application for the enforcement of his fundamental right, there was a stoppage of the monthly returns/profits to the 3rd Respondent as promised causing the latter to petition the 1st Respondent. Acting upon the petition of the 3rd Respondent, the 1st Respondent arrested, detained and interrogated the Appellant.
Without dissipating scare judicial energy on this issue, I am of the view that the provision of Section 1 of the Advance Fee Fraud contains the answer to the Appellant’s contention under issue no.1. My Lords, for ease of reference, permit me to reproduce the said Section of the Advance Fee Fraud as follows:
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intent to defraud……..
a. Obtains from any other person, in Nigeria or in any other country, for himself or any other person, or
b. Induces any other person, in Nigeria or in any other country, to deliver to any person, any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under this Act.” (Underlining mine for emphasis).
Going by the above provision, vis-a-vis the powers of the 1st Respondent under Section 41 of the Economic and Financial Crimes Commission Establishment Act, it would not be out of place to state that the 1st Respondent is imbued with the powers to arrest, detain and interrogate the Appellant notwithstanding the fact that the transaction between himself and the 3rd Respondent was entered into in the United Kingdom.
On the Appellant’s contention that the 1st Respondent was wrong to have arrested, detained or interrogated him on a transaction that was purely civil, I am of the view that considering the Respondents’ counter-affidavit in opposition to the Appellant’s application, a case of criminal infraction arising from a civil transaction has been made out. The Respondent in paragraphs 6–17 of the counter-affidavit at pages 98–104 of the record of appeal stated as follows:
6.
“That the petition alleged that Applicant has in different capacity duped innocent citizens of their hard earned money of which the petitioner herein is a victim.
7. That the petition further alleged that the Applicant who paraded himself as a Managing Partner of an established Law Firm P.O Bajowa & Co. in Lagos, Nigeria when in fact he has not been called to the Nigerian Bar.
8. That the petition further alleged that the Applicant in other (sic) to obtain money by false pretence approached her that she should invest in his company Small Money Remittance Service.
9. That base on the above the petitioner invested the sum of £70,000 (Seventy Thousand Pounds) in the business and that the Applicant promised to pay interest to her every month and that she can demand for the capital at any time.
10. That it was after the Applicant had fraudulently obtained the money from the petitioner that she discovered that the Applicant does not any registered Money Transfer Company in the United Kingdom neither was he called to the Bar in the United Kingdom as claimed by the Applicant.
11. The petition further alleged that as soon as the Applicant received the monies he filed for bankruptcy in United Kingdom and bolted to Nigeria and that she could not reach him.
12. That in order to determine the veracity of the allegations in the petition and line with of right to fair hearing under the Constitution of Federal Republic of Nigeria 1999 as amended both the petitioner and applicants were invited to enable the Commission hear their own side of the story.
13. That based on the deposition in paragraph above, the Applicant reported to the Commission on the 12th day of February, 2017.
14. That contrary to the depositions in paragraphs 4, 5 6, 7 and 8 of the Applicant’s affidavit in support and in specific reaction to the said paragraphs I know as a fact that investigation revealed that it was the applicant who falsely represented to the petitioner that she has a Money Transfer Company and that after receiving the monies he decided to leave the United Kingdom for Nigeria under the pretence that his company had problem.
15. That further to the above, I know as a fact in the course of investigation that the petitioner invested £70,000 (Seventy Thousand Pounds) contrary to the applicant’s claim in paragraph 6 of the affidavit in support of the Applicant’s motion on notice.
16. That contrary to the depositions in paragraphs 8 and 9 of the affidavit in support of Applicant’s Motion on notice and in specific reaction to the said paragraphs, I know as a fact that he did not inform the petitioner of his intention to travel to Nigerian but rather he became incommunicado.
17. That contrary to the depositions in paragraph 12 and 13 of the affidavit in support of the Applicant’s motion on notice and in specific reaction to the said depositions I know as a fact that when the applicant was shown the petition he made statements and he claimed that before the business was shut down he had been making monthly payment to the petitioner and he was asked to provide evidence of such payment which he had refused up till date. (Underlining mine for emphasis).”
Flowing from the above deposition of facts, it is evident that a case of criminal infraction arising from a civil transaction was made out by the Respondents hence the need to arrest and interrogate the Appellant on the veracity of the allegations contained in the petition written by the 3rd Respondent. The trial Court was therefore on a right footing when it held that page 163 of the record of appeal that:
“In the instant case, it is naïve to argue that the transaction is civil having regards to the deposition in the Counter-Affidavit and the Exhibits attached. Indeed, there is allegation of duping fraud, that is being investigated.”
Flowing from the hills of the foregoing, I find no merit in issue no.1 distilled by the Appellant, same is hereby resolved against him.
On the Appellant’s issue no. 2, the Appellant contended that after his interrogation, he ought to be brought before a Court of law within a reasonable time as defined by Section 35(5). He further contended that he was detained at the 1st Respondent’s office for two weeks and was not brought before any Court despite the fact that there were several Courts within forty kilometres radius of the 1st Respondent’s office.
In response to the Appellant’s deposition regarding his detainment, the 1st Respondent stated at paragraph 21 of the counter-affidavit at page 103 of the record of appeal that Appellant was granted bail immediately he reported to its office but that he failed to meet the bail conditions and that he was informed that part of his bail conditions is for him to deposit his international passport and that he has not applied that the conditions be reduced till the date of filing the counter-affidavit.
The question that arises is whether the 1st and 2nd Respondents will be liable for unlawful detention after the Appellant was granted bail and considering his inability to meet the said bail conditions and his failure to apply for variation of the said conditions upon finding them stringent?
In the case of ENE & ORS. V. BASSEY & ORS (2014) LPELR–23524 (CA), this Court held that:
“The trial Judge failed to advert his mind to the fact that the 1st Respondent was offered bail and that he could not find a suitable surety to take him on bail.
There is no agency relationship between a private citizen and a police officer in the performance of his police duties, under Section 4 of the Police Act or any other enabling law to the same effect.” See Ezeadukwa v. Maduka (supra). The Police are statutorily empowered by Section 35(c) of the 1999 Constitution of Nigeria and Section 24 of the Police Act to arrest and detain persons upon reasonable suspicion let alone upon receipt of a criminal complaint made officially as in the instant case. Until and unless a substantial surety for the bail of the applicant or detainee is provided as per Section 27 of the Police Act, there exist no breach of fundamental right of the applicants or detainee..,
In this case, since the respondents offered bail to the applicants on April 10th, 1994, then their continued detention after that date cannot be said to be unlawful.” Per NDUKWE-ANYANWU, J.C.A (Pp. 26-27 paras. A) (Underlining mine for emphasis).
My Lords, CHIMA CENTUS NWEZE, JCA (as he then was) and ONYEKACHI AJA OTISI, JCA, concurred with the position taken by NDUKWE-ANYANWU, J.C.A in ENE & ORS. V. BASSEY & ORS (supra). This Court shared similar views in the case of EFCC & ORS V. CHUKWURAH (2018) LPELR–43972 (CA) wherein my learned brother, OWOADE, JCA, held that:
“It seems to me that the learned Counsel for the Appellants was right in relation to Issue Three that the Appellants could not have been held to violate the Respondent’s right to liberty, when the Respondent was in fact granted administrative bail by the Appellants 1st December, 2015 when he was first invited by the Appellants but failed to meet the bail conditions until 3rd day of December, 2015.”
From the facts and circumstances of this case, the Appellant has not contended that he was not granted bail. According to his depositions, he was granted administrative bail by the 1st Respondent but he failed to meet the bail conditions which he considered stringent. Standing on the above decisions of this Court, I am of the view that the 1st Respondent was extinguished from liability upon the timeous grant of bail to the Appellant. Failure to meet the bail conditions and the Appellant’s further stay in detention will not constitute a breach of the Appellant’s fundamental right to liberty as contended by the Appellant’s counsel. Consequently, this issue is resolved against the Appellant and in favour of the Respondents.
On the last issue, which is predicated on the failure of the trial Court to make a finding on the 1st and 2nd Respondents’ detention of the Appellant’s Nigerian and British International Passports contrary to the provisions of Section 41 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. Failure to consider all issues would amount to a denial of fair hearing where the parties have not been heard. OKONJI V. NJOKANMA (1999) 14 NWLR (PT. 638) 250 @ 270 E-F, A.G. LEVENTIS NIG. PLC. V. AKPU (2007) 17 NWLR (PT. 1063) 416: ODETAYO V. BAMIDELE (2007) 17 NWLR (Pt. 1062) 77; KOTOYE v. CBN (1989) 1 NWLR (98) 419.
From all indications, it is clear that the trial Court did not make any pronouncement on the legality or otherwise of the 1st Respondent’s act of withholding both the British and Nigerian Passports of the Appellant despite repeated demands. The Appellant in his affidavit in support of his fundamental right application stated at paragraph 15 at page 15 of the record of appeal that:
15. One of the conditions for my bail was to deposit my Nigerian and British International Passports with passport numbers NGR A06371061 and GBR 518639520 respectively which I complied with……
17. That due to the lack of response from the 1st and 2nd Respondents to my inquiries about the report of the investigations on the 3rd Respondent’s petition, I requested the 1st and 2nd Respondents to release to me, my Nigerian and International Passports. My request was denied.”
A close perusal of the Respondents’ counter affidavit reveals a cogent reason why the Appellant’s request for the release of his passports was denied. It was stated at paragraphs 19 and 20 of the counter-affidavit at page 102 of the record of appeal as follows:
“19. That contrary to the depositions in paragraphs 16 and 17 of the affidavit in support of the applicant’s motion on notice and in specific reaction to the said deposition I know as a fact that investigation in this matter is still ongoing as the legal opinion asked the investigation team to write to the United Kingdom authorities to confirm if the Applicant had licence to operate Money Transfer Company and we still await their response. A copy of the said letter is hereby attached and marked as Exhibit EFCC 3.
20. That further to the above, I know as a fact that when the applicant applied for his international passport he was informed that investigation is still ongoing and that applicant did not at any time ask for the report of investigation.”
In paragraph 11 of his further affidavit, the Appellant in specific response to paragraph 19 and 20 of the Respondents’ counter-affidavit stated as follows:
“11. That contrary to paragraphs 19, 20, 21, 22, 24 and 25 of the 1st and 2nd Respondents’ counter-affidavit, no further investigations were carried out by the 1st and 2nd Respondents since my release from the EFCC detention. I had on several occasions asked the 2nd Respondent of the outcome of the investigation and he informed me that his team was awaiting the advice of the legal department. That since my release on 23rd February, 2017, the 1st and 2nd Respondents deemed it necessary by a letter dated 12th February 2018 to the British Deputy High Commission (Exhibit EFCC3) to request for details of my small remittance business in the United Kingdom; about one year ager my release from the EFCC detention.”
From the Respondents’ counter affidavit in opposition to the Appellant’s affidavit in support of the Application for the enforcement of fundamental rights, the 1st and 2nd Respondents stated that the reason for failing to release the Appellant’s international passports was because of the ongoing investigation being carried out by the commission. The Appellant on the other hand stated that no investigation was being carried out since his release from the custody of the 1st Respondent on 23rd February, 2017 save for the 1st Respondent’s letter dated 12th February, 2018 to the British Deputy High Commission (Exhibit EFCC3) requesting for details of his small remittance business in the United Kingdom.
Contrary to the Appellant’s depositions that no investigation was carried out by the 1st Respondent save for the letter addressed to the British Deputy High Commission in Exhibit EFCC 3, I discovered from the depositions of the parties vis-à-vis the exhibits attached thereto that the 1st Respondent made concerted efforts to investigate the veracity of the Appellant’s defence to the 3rd Respondent’s petition against him.
To start with, the Appellant at paragraphs 9–11 of the affidavit in support his application deposed to the following facts:
9. That I further informed the 3rd Respondent that while the business was shut down I was going to use the opportunity to further my education by attending the Nigerian Law School which, I had applied to and was granted admission for the 2015/2016 school session. Annexed and marked Exhibit L4 is a copy of the Applicant’s identification card issued by the Council of Legal Education Nigerian Law School for the 2015/2016 school year.
10. That sometime in June 2016 during an academic break in the Nigerian Law School I briefly went to the UK and returned to Nigeria to conclude my studies in the Nigerian Law School and to take my exams. I had a resit in my bar final exams and I was supposed to register to re-sit the said exam.
11. I was in the process of registering for the resit exam in Abuja, prior to traveling briefly to the UK, when I was informed by a family friend that I had an invitation from the 1st and 2nd Respondents in Lagos. I made enquiries to ascertain the authenticity of the invitation and I confirmed that the letter originated from the office of the 1st and 2nd Respondents. I honoured the invitation by visiting the office of the 1st and 2nd Respondents on 12th February 2017 where I was informed by the 2nd Respondent and other Officers of Forex team B of the 3rd Respondent’s Petition.”
According to the 3rd Respondent in her petition to the 1st Respondent, the Appellant relocated from the United Kingdom shutting down all companies he established in the United Kingdom. It should be noted that the Appellant’s reason for leaving the United Kingdom as stated in paragraph 9 of his affidavit in support of his application, was for him to enroll at the Nigerian Law School.
To show that it made concerted efforts to investigate the Appellant’s deposition regarding his reasons for leaving the United Kingdom, the 1st Respondent wrote to the Council of Legal Education in order to verify the Appellant’s studentship at the Nigeria Law School. In paragraph 22 of their counter-affidavit, the Respondents deposed that:
“22. That further to the above I know as a fact that as part of investigation activities we also wrote to the council of Legal Education to confirm if the applicant was a student of the Nigerian Law School and reply was received that the applicant is not a student of the school. A copy of the response is hereby attached and marked exhibit EFF4.”
Considering the importance of this issue, the reproduction of the contents of Exhibit EFF4 is imperative. In response to the 1st Respondent’s letter requesting for the details of the Appellant’s studentship with the Nigerian Law School, the Council of Legal Education replied in Exhibit EFF4 as follows:
“Our Ref: No NLS/LG/30/VOL.1 Date: April 12, 2017
Head of Operations,
Economic and Financial Crimes Commission,
15A, Awolowo Road,
Ikoyi,
Lagos.
Attention: Baba Mallam Alhaji
RE: INVESTIGATION ACTIVITIES: LETTER OF REMINDER CHIJIOKE LIVISTER MBAEYI
I write to acknowledge receipt of your letter dated January 20, 2017, received on 28 March, 2017, on the above captioned subject matter.
I am directed to inform you that CHIJIOKE LIVISTER MHAEYI’s name is not on the Students’ Nominal Roll in any of the six campuses of the Nigerian Law School, please.
T.J. Akomolede [Mrs]
For Deputy Director General.”
In response to the weighty findings steming from the 1st Respondent’s investigation, in denial of the deposition of fact contained in paragraph 22 of the Respondents’ counter-affidavit, the Appellant rather made a watery and lame denial in paragraph 11 of his further affidavit at page 128 of the record of appeal as follows:
11. That contrary to paragraphs 19, 20, 21, 22, 24 and 25 of the 1st and 2nd Respondents Counter Affidavit, no further investigations were carried out by the 1st and 2nd Respondent since my release from the EFCC detention. I had on several occasions asked the 2nd Respondent of the outcome of the investigation and he informed me that his team was awaiting the advice of the legal department. That since my release on 23rd February 2017, the 1st and 2nd Respondent deemed it necessary by a letter dated 12th February 2018 to the British Deputy High Commission (Exhibit EFCC 3) to request for details on my small remittance business in the United Kingdom; about one year after my release from the EFCC detention.”
From paragraph 22 of the counter affidavit vis-à-vis Exhibit EFF4, can it be said that the 1st Respondent did not carry out any investigations prior to the letter dated 12th February 2018 addressed to the British Deputy High Commission (Exhibit EFCC 3) requesting for details on the Appellant’s small remittance business in the United Kingdom as alleged by the Appellant? My answer is in the negative.
Looking at the uncontroverted fact that the 1st Respondent wrote a letter to the Nigerian Law School on January 20th, 2017, the letter which was received on 28th March, 2017, I am inclined to disagree with the Appellant that no investigation was carried out by the 1st Respondent. On the contrary, I agree with the 1st Respondent, in the light of Exhibit EFF4, that investigations were still ongoing. It was on the basis of this ongoing investigation that the Appellant’s application for the release of his international passports was refused.
From all that have been said, taking into account the 3rd Respondent’s petition and the letter written by the Council of Legal Education in Exhibit EFF4 denying the Appellant’s studentship at the Nigerian Law School, I am of the view that there exist a reasonable suspicion of crime against the Appellant.
Notwithstanding the fact that the trial Court abdicated its duty by not pronouncing on the legality or otherwise of the withheld passports, this Court is on a proper wicket, as rightly done above, to evaluate the evidence on the record and in coming to a conclusion that the relief sought by the Appellant in this regard must fail.
I must add that in considering applications predicated on the enforcement of fundamental rights, the Courts must be weary of granting reliefs that will invariable hinder the powers of the law enforcement agencies in carrying out their statutory duties. In as much as the Courts will be inclined to lean towards the side of the Applicant and to grant reliefs where such breach of fundamental right is made out, the Courts must strike a balance between the parties, considering the depositions of facts contained in the affidavit evidence placed before it. Even though the Respondent’s counsel has stated in his brief of argument that the Appellant has been charged to Court and prosecution has closed its case, I cannot rely without more on that assertion more especially brief of argument, are like the address of counsel which cannot replace evidence.
Albeit, it is my unflinching view that considering the fact that investigation was still ongoing as at the time of filing the application, the Appellant was being mischievous and unscrupulous by wanting the trial Court to grant him an order of perpetual injunction restraining the 1st Respondent from further arresting and detaining him. On the contrary, if in the course of its investigation, the 1st Respondent has reasonable grounds to re-arrest and detain the Appellant, then it would be unreasonable to grant an order restraining the 1st Respondent from carrying out its statutorily empowered duty. The 1st Respondent cannot be restrained from performing its statutorily empowered duties under the guise of fundamental human rights. See EFCC V. IIGBOERUCHE & ORS (2019) LPELR- 47268 (CA).
In case of Ken Nwafor vs. EFCC (2021) (NWLR) 13 Pg. 600 Pare H-A per Georgewill, JCA, held,
Whilst performing its legitimate duties, no Court of law has the power to stop the Economic and Financial Crimes Commission (EFCC) from investigating a crime and, therefore, no person against whom there is a reasonable suspicion of having committed an offence or likely to commit an offence would be granted any relief capable of shielding him against criminal investigation and prosecution, since no citizen has any right to be an outlaw under the laws of this country.[Atakpa v. Ebetor (2015) 3- NWLR (Pt. 1447) 549; I. G. P. v. Ubah (2015) 11 NWLR (Pt. 1472) 405; Nzewi v. C.O.P. (2000) 2 HRLR 156; Badejo v. Minister of Education (1996) 8 NWLR (Pt. 464) 15; Hassan v. EFCC (2014) 1 NWLR (Pt. 1389) 607; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606; A-G Anambra State v. Uba (2005) 15 NWLR (Pt. 947) 44; Christlieb Plc v. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to.](Pp. 600-601, paras. H-C)”
The trial Court was able to see through the Application by refusing to grant the Appellant unjustifiable judicial protection from investigation regarding the allegations contained in the 3rd Respondent’s petition.
In my final analysis, I resolve all the issues in favour of the Respondents and against the Appellant. On the whole, this appeal is bereft of merit, same is accordingly dismissed. The decision of the trial Court in Suit No. FHC/L/CS/250/2018 delivered on 23rd May 2018 by I.N. BUBA J. wherein the Appellant’s application for the enforcement of his fundamental rights was dismissed is hereby affirmed.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have had the privilege of reading the draft copy of the judgment written by my learned Brother. HON JUSTICE ABURAKAR SADIQ UMAR (JCA) and I find that His lordship rightly resolved all the Issues involved in this appeal and I am in complete tandem with his reasoning and resolution therefrom.
The Major Contention in this appeal is whether the fundamental Human Rights of the Appellant has been infringed upon by the Respondents in not taking the Appellant to a competent Court within a reasonable time prescribed by Section 35(4) & (5) of the Constitution of Federal Republic of Nigeria (as amended).
These Sections referred to. provides as follows: –
(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 Subsection (4) 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 Forts Kilometers, a period or 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.
From the above provisions, a Defendant must be arraigned in Court within twenty-four (24) hours of arrest. and in the event that he is not so arraigned, must be released either unconditionally or upon such conditions as are necessary to ensure his attendance at trial at a later date. It must be noted that the Consequences provided by the Constitution for failure to arraign the Defendant before a Court of competent jurisdiction, is a release either unconditionally or conditionally upon such conditions as are necessary to ensure attendance.
The question to be asked is what constitutes a release? Once a prosecutorial agency realizes that an arraignment before a Court of law must be effected within twenty four hours of detention, and once they also realize the fact that an investigation ought to be completed before an arraignment in Court, they ought to release him on administrative bail pending the completion of their investigation. The question is did they do so? Had they fulfilled all righteousness? This aspect is important because they had to have concluded that the Defendant committed an offence worthy to be charged to Court in the first place. also had the option of presenting him before a Magistrate for a Remand Order OR the Option to grant him an Administrative bail, and both options are valid courses of action to take in the circumstance.
It is clear that Prosecutorial Agencies have an enormous responsibility to be thorough in their investigation before bringing a suspect to Court. The rush to charge a suspect to Court has sometimes led to a Miscarriage of justice, with hasty investigations conducted as a result of which, vital witnesses may not be called at the trial. Alibi’s and Defences may not be investigated properly and there could be omissions by the Investigators when gathering evidence to justify the ingredients connecting the suspect to the offence. Whilst in certain instances an investigation may take time, it is clear that the trial must be conducted within a reasonable time after the accused has been charged. See ASAKITIKPI vs STATE (1993) LPELR-572(SC).
In this instant case, the Appellant claimed that he was detained at the 1st Respondent’s office for weeks. However, the 1st Respondent in its counter affidavit stated that the Appellant was granted bail immediately he reported to its office but he failed to meet the bail conditions and one of the conditions was for him to deposit his International Passport.
It is noteworthy to state that the Appellant never contended that he was NOT granted bail. He in fact confirmed that he was granted administrative bail but only contended that the conditions imposed on him were stringent. Having admitted that he was granted administrative bail by the 1st respondent, but failed to meet up with the bail conditions, could the 1st Respondent be held liable to the Appellant for any perceived breach of his fundamental human right under the provision of Section 35 of the Constitution of the Federal Republic of Nigeria.
In the case authorities DANIEL VS EFCC (2016) LPELR-41173 (CA); CHINWOKO VS OKEKE-IGBOKWE & ORS (2018) LPELR-50894 (CA): NWAKAMA VS STATE OF LAGOS (2020) LPELR-50107 (CA), it held that it is not the responsibility of the 1st Respondent to assist the Appellant to meet up with his bail conditions.
It needs to be pointed out that the Rights provided for and guaranteed under the above provision and indeed all other Fundamental Rights provided under Chapter IV or the 1999 Constitution are not absolute or sacrosanct, but rather qualified.
His Lordship, CHUKUNDIFU AKUNNE OPUTA, JSC (of blesses memory) dealt with the Provisions of 34, 35, 37 and 38 1979 Constitution, which were part of the Fundamental Rights under Chapter IV of that Constitution, in the case of OSAWE & 2 ORS VS REGISTRAR OF TRADE UNIONS (1985) 3 NWLR (PART 7) 127 when he stated that:
“One has to bear in mind that the Rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are “Qualified Rights” They are subject to any law that is reasonably justifiable in a democratic society. (a) in the interest of defence, public safety, public order, public morality or public health: or (b) for the purpose of protecting the rights and freedom of other people.”
(Underline Mine) See also EZIEGBO & ANOR VS ASCO INVESTMENT LTD ANOR (2022) LPELR-56864(SC); DIRECTOR. SSS VS AGBAKOBA; DOKUBO ASARI VS FRN (2007) 5 6 SC. 150. (2007) ALL FWLR (PART 375) 558 AT 586-587, UKEGBU VS NATIONAL BROADCASTING CORP (2007) NWLR (PART 1055) 551, ONYIRIOHA VS IGP (2009) 3 NWLR (PART 1 128) 342.
The 1st Respondent attributed the reason for the delay in arraigning the Appellant in Court to the ongoing investigation of the Appellant which is based on the documentary evidence made available to them that has a reasonable bearing on the allegation made by the Complainant. The 1st Respondent was able to furnish this Court with some evidence to establish this. There was a letter written to British Deputy High Commission in (Exhibit EFCC 3) requesting for details of the Appellant’s Small Remittance Business in the United Kingdom as alleged by the Appellant and the letter written to the Nigerian Law School on January 20th, 2017, which was received on 28th March, 2017, and these show that the 1st Respondent is in the process of investigating the allegations made against the Appellant. By their affidavit, it was stated that the investigation was paused as a result of this suit.
The power of the 1st Respondent to investigate offences related to Economic and Financial Crimes can be gleaned from the combined Provisions of Sections 6(b); 7(1)(a) & (2)(f) and of the EFCC (Establishment) Act, and all these leave no doubt that the 1st Respondent has the power to investigate, enforce and prosecute offenders for any offence whether under the Act or any other Statute, in so far as the offence relates to the commission of Economic and Financial Crimes.
Further, under the Provisions of Section 1(1) of the Advance Fee Fraud Act 2006, the Offence of Obtaining by False Pretence is also applicable to transactions carried out outside Nigeria Reference is made to the Case Authorities ELVIS EZEANI VS FRN (2019) LPELR- 46800 SC: IJUAKA VS COP (1976) LPELR – 1466 SC.
Thus, by the Provisions of the Advance Fee Fraud Act, and under Section 41 or the Economic and Financial Crimes Commission Act, the 1st Respondent has the Power to arrest and interrogate the Appellant. notwithstanding the fact that the Transaction between the Appellant and the 3rd Respondent look place in the United Kingdom.
I am also in agreement with the findings of His lordship on the fact that in Paragraphs 6— 17 of the Counter-Affidavit of the 1st Respondent, a case or a Criminal Infraction has been established, notwithstanding the fact that it was a Civil Transaction. The 1st Respondent is entitled to arrest and interrogate the Appellant provided that there is a Case of Criminal Infraction alleged against the Appellant. Thus, argument of the Appellant that the 1st Respondent wrong to have arrested, detained or interrogated him in a purely civil matter is inapposite to this case.
Having stated above that the Fundamental Human Rights in the Chapter IV of our Constitution is not absolute. the defence of the Respondents is therefore in line with this qualification. Based on the foregoing, the Appellant’s right under Section 35(4) of the Constitution has not been trampled upon since the 1st Respondent has been to establish that there is still an ongoing investigation in respect of the allegation.
Finally, the Appellant has submitted that by making the deposit of his International Passports a condition for bail, his freedom of movement had been tampered with and therefore his Fundamental Human Right has been infringed. It needs to be stated that the sole target of every bail condition whether Administrative or Judicial, is to ensure that the suspect is available for investigation or trial whenever necessary. Bail is never a discharge of the suspect. The Investigating Agency or the trial Court has discretionary power to impose a condition which will guarantee the availability of the suspect during his trial while granting the bail.
I am also in agreement with the reasoning of His Lordship regarding the refusal or the 1st Respondent to release the Appellant’s International Passport. The Appellant was under investigation by the 1st Respondent and from the depositions of the Respondents in their Counter Affidavits in Opposition to the Appellant’s Application for the Enforcement of his Fundamental Human Rights, it is clear that there was a reasonable suspicion of crime against the Appellant. Releasing the Appellant’s International Passports while there is an ongoing investigation against him could constitute a flight risk and will inevitably jeopardize the investigative duties or the 1st Respondent.
Consequently, it will be unreasonable for this Court to grant the Application of the Appellant to release his International Passport and further prevent the 1st Respondent from further arresting and detaining him. The Courts are duty bound to strike a balance between the Parties by considering the depositions of fact as contained in the Affidavit Evidence as well as the ensuing societal impact. Thus if this Court is to grant the reliefs sought by the Appellant, it will result in the opening of floodgates as far as Fundamental Human Rights Enforcement is concerned. Furthermore. it will be unreasonable for this Court to restrain the Respondent from discharging its statutorily empowered duties. Consequently, the 1st Respondent cannot be restrained from carrying out its duties as provided in the Economic and Financial Crimes Commission Act under the guise of Enforcement of Fundamental Human Rights.
Thus, for these reasons, and the fuller reasons given by His Lordship in the lead judgment. I abide with the of His Lordship to dismiss this appeal for being unmeritorious. Consequently, I also consider the appeal as lacking in merit and the decision of the lower Court, being the Federal High Court in suit No. FHC/L/CS/250/18 delivered on the 23rd May 2018 by Hon Justice I. N. Buba wherein the Appellant’s application for the Enforcement of his Fundamental Rights dismissed, is hereby affirmed.
PETER OYINKENIMIEMI AFFEN, J.C.A.: (DISSENTING)
Introduction
I have had the rich privilege of reading in draft, the leading judgment just delivered by my Learned Brother, Abubakar Sadiq Umar, JCA and concurred in by my Noble Lord, Adebukunola l. Banjoko, JCA. It is my misfortune that I am not persuaded by the judicial reasoning and eventual verdict reached by the majority, and I am constrained to register a formal dissent as hereunder contained. I do so with full awareness that the leading judgment embodies the decision of this Court in the case at hand, whilst this dissenting judgment is merely “an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting opinion believes the Court to have been betrayed” (see C. E. Hughes. The Supreme Court of the United States, cited in J. B. Grossman, “Dissenting Blocks of the Warren Supreme Court: Study in Judicial Role Behaviour”, Journal of Politics, Vol. 30 (1968) 4 —referenced in PHARMATEK INDUSTRIAL PROJECTS LTD v TRADE BANK NIGERIA PLC & ORS (2009) 13 NWLR (PT. 1159) 5771.
The undisputed facts of this case (as can be gleaned from the records) are that the Appellant (Livister Chijioke Mbaeyi), who is ordinarily resident in the United Kingdom, visited Nigeria and was arrested/detained by the 1st and 2nd Respondents on 12/2/17 based on a petition by the 3rd Respondent dated 10/8/16 alleging that he defrauded her of Seventy Thousand Pounds in London, United Kingdom sometime in 2013. In obedience to an invitation extended to him, the Appellant visited the 1st Respondent’s Lagos office on 12/02/17. He was interrogated by officers led by the 2nd Respondent and granted administrative bail on the conditions stipulated in a document titled “Grant of Provisional Bail” dated 13/03/27 and signed by one Baba Manam Alhaji for Head of Operations (copied at page 110 of the records). The Appellant indicated to the 1st and 2nd Respondents that the terms were stringent and he could not readily fulfil them, given the fact that he does not ordinarily reside in Nigeria. He remained in custody for two weeks from 12/2/17 until 23/2/17.
When he was released upon eventually satisfying the conditions of bail and turning in his Nigerian and British International Passports as he was required to do. By a letter dated 13/12/17 (copied at p. 27 of the records), the Appellant requested for the release of his International Passports to enable him “undergo treatment abroad within a period of 3 months”, which request was declined by the 1st and 2nd Respondents who conceded that the Appellant “applied for the release of his international passport” but insisted that “he was informed that investigation is still ongoing and that applicant did not at any time ask for the report of investigation”.
No charge was preferred at all material times against the Appellant who alleged that his fundamental rights to personal liberty and freedom of movement have been trampled upon or otherwise dealt with in a manner inconsistent with constitutional guarantees. He consequently initiated enforcement proceedings at the Lagos Division of the Federal High Court (“lower Court”) in Suit No. FHC/L/CS/250/2018: Chijioke Mbaeyi v. EFCC & 2 Ors vide an originating motion dated and filed on 19/2/18, claiming the following reliefs:
1. A DECLARATION that the 1st and 2nd respondents’ detention of the applicant for two weeks without being charged to Court for any criminal offence is in contravention of the applicant’s right to personal liberty and freedom of movement as guaranteed by Section 35 and Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. A DECLARATION that the 1st and 2nd respondents’ threat to further arrest and detain the applicant until the applicant submits to the desire of the 1st, 2nd and 3rd Respondents is in contravention of the applicant’s right to personal liberty as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria (as amended).
3. A DECLARATION that the 1st and 2nd Respondents continuous refusal to release and deliver up possession to the Applicant his Nigerian and British International Passports is in contravention of the Applicant’s right to freedom of movement as guaranteed by Section 41 Of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
4. AN ORDER directing the 1st and 2nd Respondents to immediately deliver up possession and release the applicant’s Nigerian and British International Passports with passport numbers NGR A06371061 and GBR 518639520 respectively to the Applicant.
5. A DECLARATION that the 1st and 2nd Respondents do not have territorial jurisdiction to investigate, prosecute or intervene in a commercial transaction entered into and performed in the United Kingdom between the Applicant and the 3rd Respondent who were both residents in the United Kingdom at the time.
6. AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents by themselves, their Offices, agents and/or representatives from further arresting, detaining, harassing, intimidating or otherwise depriving the Applicant in any manner whatsoever of his rights to personal liberty and freedom of movement in connection with the transaction carried out in the United Kingdom between the Applicant and the 3rd Respondent.
7. AN ORDER directing the Respondents jointly and/or severally to pay to the Applicant the sum of One Hundred and Fifty Million Naira (N150,000,000.00) as damages for the unlawful detention, humiliation and losses suffered by the Applicant.”
The lower Court was not persuaded that the Appellant made out a veritable case of infraction of his fundamental rights and dismissed the application. This present appeal is an expression of the Appellant’s discontent with the judgment delivered on 23/5/18, (which lies at pp. 137—165 of the record of appeal), wherein his Lordship, l. N. Buba, J. held thus:
“In the instant case, it is naive to argue that the transaction is civil having regards (sic) to the deposition in the Counter Affidavit and the Exhibits attached. Indeed, there is allegation of duping, fraud that is being investigated.
Therefore, this Court is unable to agree with the Applicant that it is a civil transaction. The process of investigation should be allowed to go through. The Court should not be used as a shield to stop investigation. On the issue of detention for two weeks. it is clear that the Applicant was timeously granted bail, if he could not perfect it. the Respondent could not have been said to breach the Applicant’s Fundamental Rights. The mere fact that it occurred in London is immaterial. See the cases (sic) of GANI FAWEHINMI v INSPECTOR GENERAL OF POLICE (2002) 7 NWLR (PT. 767) AT P 645″.
(underlining supplied)
Whereas the lone issue formulated in the Respondent’s Brief is:
“Whether the Court below was right in dismissing appellants application having regard to the evidence before the Court”, the following three (3) issues are distilled in the Amended Appellant’s Brief:
(i) Whether the lower Court considered all the facts and evidence placed before it in coming to its decision (Grounds 1, 4, 5 and 6)
(ii) Whether the trial Judge erred in facts and law when he held that the 1st and 2nd Respondents did not infringe on the Appellant’s right to personal liberty contrary to the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended (Ground 2)
(iii) Whether the trial Judge erred in facts and law when he failed to make a finding on the 1st and 2nd Respondents’ detention of the Appellant’s Nigerian and British International Passports contrary to the provisions of Section 41 of the Constitution of the Federal Republic of Nigeria 1999, as amended (Ground 3)
The central issue crying for resolution in this appeal is whether the lower Court was right in dismissing the Appellant’s application for enforcement of fundamental rights in the peculiar facts and circumstances before it; and the Respondents’ lone issue encompasses and subsumes the Appellant’s three (3) issues.
Fundamental human rights are rights which stand above the ordinary laws of the land. The factum of their enshrinement in the Constitution of the Federal Republic of Nigeria, 1999 (“CFRN”) which is the supreme law of the land, confers on them a preeminent status over and above other human rights. See UZOUKWU & ORS v EZEONU Il & ORS. [1991] 6 NWLR (PT. 200) 700 at 761. Although the origin of fundamental rights is said to date back to the Magna Carta of 19th June 1215, these rights are in fact antecedent to the political society itself: they are “inherent in man because they are part of man”. See F.R.N. v IFEGWU (20031 8 MJSC 36 at 701-102 (per Niki Tobi, JSC). In the words of Lord Cooke of Thorndon, they are “rights that are inherent and fundamental to democratic civilised society, (and) conventions, constitutions, bills of rights and the like merely respond by recognising rather than creating them”. See REGINA v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE DALY (2007) 3 All ER 433, (2007) 1 AC 532. Thus, fundamental rights constitute ‘the basic minimum standard for civilised humanity’ enshrined in the Constitution so that they could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME KUTI v A-G, FEDERATION (1985) 7 NWLR (PT. 6) 211 at 231 —per Eso JSC.
The infringement of a fundamental right is largely a question of fact and an Applicant alleging that his fundamental right has been, is being or is likely to be contravened must present facts which eloquently disclose the alleged infringement. It is the facts that will disclose if the Applicant’s fundamental rights have been contravened or otherwise dealt with in a manner inconsistent with constitutional guarantees. See OYEWOLE SUNDAY v ADAMU SHEHU (1995) 8 NWLR (PT. 474) 484 and DONGTOE v CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 9 NWLR (PT. 717) 132.
The Appellant contends that his detention for two weeks from 12/2/17 till 23/2/17 without being brought before a Court of law constitutes a violation of his fundamental right to personal liberty guaranteed under S. 35(1) CFRN contrary to the judgment of the lower Court; and that the continued detention or withholding of his Nigerian and British passports by the 1st and 2nd Respondents without preferring any criminal charges against him violated his freedom of movement enshrined in S.41 of the 1999 Constitution. On their part, the 1st and 2nd Respondents insist that their duty stopped when they promptly granted administrative bail to the Applicant on 13/2/17 within 24 hours on conditions that included the deposit of his Nigerian and British passports, and his continued stay in detention beyond that date is not attributable to any wrongdoing on their part, citing AUGUSTINE EDA v C O. P., BENDEL STATE supra in drumming up support for the decision of the lower Court dismissing the Appellant’s application for enforcement of fundamental right.
In affirming the judgment of the lower Court, and holding that “the 1st Respondent was extinguished from liability upon the timeous grant of bail to the Appellant” and “failure to meet the bail conditions and the Appellant’s further stay in detention will not constitute a breach of the Appellant’s fundamental right to liberty contended Appellant’s counsel”, the leading judgment “stood on” previous decisions of this Court in ENE & ORS v BASSEY (2014) LPELR.23524(CA) and EFCC v CHUKWURAH (2018) LPELR -43972(CA). I have read, once and again, these decisions, as well as the kindred decision in DANIEL v EFCC (2016) LPELR-41173(CA) which followed ENE & ORS v BASSEY supra. It cannot escape notice that EFCC & ORS v CHUKWURAH supra at 29-30 cited and relied on AUGUSTINE EDA v C. O. P., BENDEL supra, whilst ENE & ORS v BASSEY & ORS supra at 26-30 relied on RAY EKPU & ORS v ATTORNEY-GENERAL, FEDERATION & ORS (1998) 1 HRLRA (Human Rights Law Reports of Africa) 397: a first instance judgment delivered on 9/12/94 by Jinadu, J. of the Federal High Court, which in turn cited and relied (at p. 420) on AUGUSTINE EDA v c. O. P., BENDEL supra. Since all the decisions cited as authority for the proposition that ‘once administrative bail is offered to a person arrested or detained upon suspicion of crime, his/her continued detention after that date cannot be said to be unlawful’ trace their ancestry to AUGUSTINE EDA v C. O. P., BENDEL supra, which was a reference from the then High Court of Bendel State holden at Benin City, the relevant enquiry is as to what the Federal Court of Appeal actually decided in that case.
The facts of AUGUSTINE EDA v C.O.P., BENDEL supra (as can be gleaned from the Law Report) are that the Applicant was suspected of complicity in the loss of funds belonging to a Social Club of which he was the General Secretary. At about 5 pm on 22/8/80 (being a Friday), the Applicant was arrested in Benin City by the police which launched investigation into the matter. On Saturday 23/8/80, he was taken to his office and residence in Benin City for search to be conducted thereat. The police claimed to have received information on Sunday 24/8/80 about another residence of the Applicant in Benin City, whereupon he was taken to that other residence on Monday 25/8/80 and thereafter to his hometown of Emotu in Ughelli Local Government Area for further searches, before returning to Benin City at about 10 pm that same day; and he was taken on bail on Tuesday 26/8/80. The applicant sued the Respondent, claiming compensation for unlawful detention and public apology for breach of his constitutional right under S. 32(1)(c) of the 1979 Constitution (in pari materia with S. 35(1) CFRN).
The trial High Court of Bendel State took evidence and referred questions of law to the then Federal Court of Appeal (including “Whether the said Sections 17 and 18 of the Criminal Procedure Act and Sections 23 and 25 of the Police Act can operate so as to be inconsistent with Section 32 (5) of the 1979 Constitution, even though the police are actively, in the process, pursuing the investigation of a particular case before them” and “Whether or not a person arrested and detained by the police is able to procure a surety to take him on bail, if is in breach of Section 32(5) of the 1979 Constitution and therefore unconstitutional to retain him in custody in any event without bringing him before a Court of competent jurisdiction within the periods stated in the said Section 32(5) of the 1989 Constitution”). His Lordship Eboh, JCA (with whom Ete, Agbaje, Okagbue and Mohammed, JJCA concurred) held (at p. 226) that: “l have given careful consideration to all the submissions made before this Court in this matter and I am satisfied that the state of the law in this country now is that a person arrested or detained ‘…upon reasonable suspicion of his having committed a criminal offence ..„. must be brought before a Court of law within a reasonable time —‘ to wit — one day (i.e. 24 hours) or 2 days (i.e. 24 hours) as the case may be. As the applicant in this case was arrested in Benin City wherein exist Courts of competent jurisdiction, I agree and uphold the submission of learned counsel to the applicant that he (applicant) should have been brought before a Court Of Law Within one day (i.e. 24 hours) and not Within two days (i.e. 48 hours)”.
11. After calling attention to the peculiar facts and circumstances of the case under reference, namely. the applicant was arrested on Friday 22nd Of August — at a time When the Courts had closed sitting; the following two days were Saturday and Sunday — 23rd August 1980 and August 1980 respectively — which are non-days, being days when the Courts do not sit in Nigeria; (iii) on Monday 25th August 1980, the applicant and the police were at Warri to which investigations in the matter had taken them for the purpose of conducting search for the money alleged stolen and they never returned to Benin until late at night that day; the police said applicant was offered bail from time to time after his arrest there was no one to take him on bail; (v) there is no suggestion the police detained the applicant without cause, or unduly or beyond reasonable time during sitting period of the Courts in Benin city as they could not have brought the Applicant before the Court in Warri on Monday 25th of August 1980 where they had taken Applicant on the investigation; and Applicant was taken out on bail on 26th August 1980 when one Efim Okon Okopor appeared to stand as surety for him”, his Lordship proceeded to opine (at pp. 227-228) thusly:
“Whenever the police have arrested or detained a person in connection with an allegation or reasonable suspicion of crime, and are actively pursuing investigation of the matter, their duty is now to offer bail to the suspect and/or bring him to a Court of law within 1 or 2 days as the case may be no matter under whatever Sections of the Criminal Procedure Act (Cap. 43) or Police Act 1967 (Cap. they may purport to be acting. I must add that whether the police grant a person under arrest or detention bail or not. it is still their duty to bring any such person in their custody before a Court within 1 or 2 days as the case may be in compliance with the relevant constitutional provision” (underlining supplied).
As can be gleaned from the foregoing, the celebrated case of AUGUSTINE EDA v COMMISSIONER OF POLICE, BENDEL STATE supra (which is the fons et origo of the decisions relied upon by the majority) did not decide that the police (and other law enforcing agencies) are spared the obligation of bringing a person arrested and detained upon suspicion of crime before a Court of competent jurisdiction within a reasonable time as prescribed in the Constitution (and therefore absolved from liability for detaining a suspect beyond the constitutional timelines) once bail is offered to him/her. If that were the case, then the police would simply offer bail to suspects on extremely stringent conditions that are impossible to fulfil and then go to sleep under the pretext of carrying on investigation. Thankfully that is not the law, and cannot be the law. Quite the contrary, the case underscored the bounden duty to bring a person arrested or detained before a Court of competent jurisdiction within one or two days as the case may be irrespective of “whether the police grant a person under arrest or detention bail or not”. It therefore seems to me disingenuous for the 1st and 2nd Respondents to quote and rely on an incomplete excerpt of AUGUSTINE EDA v COMMISSIONER OF POLICE, BENDEL STATE supra and thereby cite that well-reasoned decision out of context, even as some decisions reveal a ‘judicial subsidisation’ of liability in relation to executive actions or inactions that are not quite consistent with constitutional or legal prescriptions. See generally Benedict Bakwaph Kanyip, Consumer Protection in Nigeria: Law, Theory and policy, (Rekon Books Ltd., Abuja: 20051, p. 368—369.
The law, as I have always understood it, is that in an action for unlawful arrest or detention in breach of a person’s constitutional right to personal liberty, the onus is on the arresting/detaining authority to establish that the arrest or detention was justifiable on reasonable grounds. See SKYPOWER AIRWAYS LIMITED v OLIMA (2005) 18 NWLR (PT. 957) 224 at 232, IYERE v DURU [1988] 5 NWLR (PT. 44) 665, ABIOLA v ABACHA (1998) 1 HRLRA 453, EJEOFOR v OKEKE (2000) 7 NWLR (PT. 665) 365 at 379, IGWE v EZEANOCHIE (2010) 7 NWLR (PT. 1192) 61 and COMMISSIONER OF POLICE, ONDO STATE & ANOR v OBOLO (1989) 5 NWLR (PT. 120) 130 at 131. The arresting or detaining authority must not only show that the arrest and/or detention can be justified, they must actually justify the arrest and/or detention.
See EFCC v OYUBU & ORS (2019) LPELR-47555(CA) 1 at 14 -per Ebiowei Tobi, JCA. The Court’s preoccupation in an action for enforcement of fundamental right is not to determine whether the Applicant is guilty of the offence(s) alleged against him, which gave rise to the alleged breach. The Court is also not concerned with the nature or gravity of the allegation(s) levelled against him. The combined effect of Ss. 35(4) and 36(5) CFRN is that the liberty of citizens is guarded jealously and zealously in the scheme of things. The Court’s duty is simply to ascertain whether the procedure prescribed by law for handling a person suspected to have committed an offence was complied with by the police or other arresting/detaining authority.
Against this backdrop, it does not seem to me that the lower Court is standing on a strong wicket, if it is standing at all, in holding that: “On the issue of detention for two weeks, if is clear that the Applicant was timeously granted bail, if he could not perfect it, the Respondent(s) could not have been said to breach the Applicant’s Fundamental Rights”. It bears emphasising that offering bail to a person arrested and detained does not relieve the police of its constitutional obligation to bring him/her before a Court of competent jurisdiction within one day (i.e. 24 hours) or two days (i.e. 48 hours) as the case may be. If anything, I reckon that inability to satisfy conditions of administrative bail makes a compelling case for the police to urgently bring a person arrested/detained to Court rather than keep him/her in custody on that score. Thus, even though the duty of the police, in an appropriate case, ends when they offer bail to a person held in custody in connection with an allegation of crime since their duty does not extend to providing the suspect with a surety to enable him realise or effectuate the bail granted to him, it is still their bounden duty to bring any person in their custody before a Court of competent jurisdiction within one or two days as the case may be in compliance with the relevant constitutional provisions irrespective of whether or not bail is offered to that person. In AUGUSTINE EDA v COP, BENDEL supra, the entire duration of the applicant’s arrest/detention did not exceed three days — inclusive of Saturday and Sunday which are non-juridical days — such that a scenario (such as the present) where a suspect would be detained for a longer period without being taken to Court under the guise of failure to fulfil bail conditions was not contemplated at all.
The case that generated the instant appeal is therefore not an appropriate case in which it can be said that the duty of the 1st and 2nd Respondents stopped upon offering bail to the Appellant. I am not aware of any provision in the Constitution or any other law that gives the 1st and 2nd Respondents “safe landing” to keep suspect in custody for more than one or two days as the case may be without bringing him/her before a Court of competent jurisdiction, or obtaining an order for his remand on the ground that he could not meet the conditions of bail offered to him. The power to grant administrative bail is certainly not a substitute for complying with the constitutional injunction of bringing a suspect before a Court of law within a reasonable time as defined in the Constitution. See EFCC v OYUBU & ORS supra at 20—22. It equally occurs to me that the Constitution did not impose any burden on a person offered administrative bail to apply to the police or the Court for review of bail conditions: rather, the constitutional obligation to bring a person arrested or detained before a Court of competent jurisdiction within a reasonable time lies squarely on the shoulders of the arresting/detaining authority. The obligation to bring a person before a Court of law within a reasonable time as stipulated in the constitution arises the moment he is arrested on suspicion of crime. That is why the law frowns upon effecting arrest and detaining a suspect before conducting investigation. See FAWEHINMI v INSPECTOR GENERAL OF POLICE (2002) 7 NWLR (PT. 767) 606 and DURUAKU v NWOKE (2015) 15 NWLR (PT. 1483) 417. What is more, this Court observed in ENE & ORS v BASSEY supra that continued detention upon prescribing excessive bail sum or difficult conditions will be unreasonable and amount to deprivation of liberty if a lesser sum would have achieved the same objective, citing BOLAKALA v STATE (2006) NWLR (PT. 962) 507 and OKEAHIALAM v NWAMARA (2003) 12 NWLR (PT. 835) 597, but noted that there was no allegation in the case that bail conditions were stringent. In the instant case however, the Applicant complained that the bail conditions were stringent in that he could not readily procure a level 14 officer or holder of landed property with certificate of occupancy in Lagos to stand as surety for him as he is not ordinarily resident in Nigeria.
I take the considered view that the 1st and 2nd Respondents failed to dislodge the Appellant’s assertion that he was detained beyond the constitutionally stipulated reasonable time without being brought to Court in breach of his fundamental right to personal liberty guaranteed under S.35(1) CFRN (see UBANI v DIRECTOR STATE SECURITY SERVICES (1999) 11 NWLR (PT. 625) 129, of the lower Court got it amiss in holding that the Appellant’s fundamental rights were not contravened in the peculiar facts and circumstances placed before it. Quite the contrary, the Appellant’s fundamental right to personal liberty enshrined in S. 35(1) CFRN was unmistakably undermined the by 1st and 2nd Respondents who kept him in their custody from 12/2/17 to 23/2/17 without bringing him before a Court of competent jurisdiction within a reasonable time as enjoined by S. 35(4) CFRN under the pretence that he could not meet bail conditions offered to him. It hardly bears mention that there are more than enough Courts competent with jurisdiction within 40km radius of the 1st Respondent office at No. 15A Awolowo Road, Ikoyi, Lagos where the Appellant was detained at all material times.
The Appellant equally faults the lower Court for failing and neglecting to consider and/or pronounce upon the second limb of his application bordering on freedom of movement. The relief sought by the Appellant in the originating motion dated 19/2/17 are set out hereinbefore. Relief 3 is for a DECLARATION that the 1st and 2nd Respondents’ continuous refusal to release and deliver up possession to the Applicant his Nigerian and British International Passports is in contravention of the Applicant’s right to freedom of movement as guaranteed by Section 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”, whilst prays for “AN ORDER directing the 1st and 2nd Respondents to immediately deliver up possession and release the Applicant’s Nigerian and British International Passports with passport numbers NGR A06371061 and GBR 518639520 respectively to the Applicant”. The records reveal that the Appellant made depositions in support of these reliefs in paragraphs 15 and 18 of his supporting affidavit, as well as in the Statement made pursuant to Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009. The 1st and 2nd Respondents equally made depositions touching upon the Appellant’s passports in paragraphs 20 and 21 of the counter affidavit. However, an examination of the judgment of the lower Court vindicates the Appellant’s insistence that no pronouncement was made on the continued detention or withholding of his international passports and the alleged curtailment of his freedom of movement.
There is no gainsaying that Courts of law, which are equally Courts of equity, are enjoined ex debito justiciae to consider and pronounce on all issues properly placed before them. This duty is not optional. The judgment of any Court must exude a complete and proper consideration of every material issue raised and canvassed before it. Justice cannot be said to have been done to a party whose case has not been given adequate and full consideration. Failure or neglect to pronounce on every material issue properly placed before a Court for consideration often undermines the right to fair hearing and occasions a miscarriage of justice. This is a notorious proposition of law for which citation of authorities is needless. But for reasons of completeness, I will refer to the decisions of the Supreme Court in BAYOL v AHEMBA (1999) 10 NWLR (PT. 623) 381 and OVUNWO & ANOR v WOKO & 2 ORS (2011) 6-7 SC (PT. 1) 1.
The trial Court is a peculiar adjudicator upon whose shoulder the heaviest burden of adjudication lies. Generally, evaluation of evidence and ascription of probative value to it fall within the province of a trial Court, and an appellate Court will not lightly interfere with the same. But where the evidence has nothing to do with demeanour of witnesses or credibility of witnesses, or where the evidence involves affidavit evidence, or relates to interpretation or construction of documents, an appellate Court is in as good a position as the trial Court to undertake the evaluation. See GONZEE NIG LTD v NERDC (2005) 13 NWLR (PT. 943) 634, EBBA v OGODO (1984) 1 SCNLR 372, BALOGUN v AGBOOLA (1974) 1 ALL NLR 266, BFI GROUP CORPORATION v BPE(2012) 18 NWLR (PT. 1332) 209 and RAB OIL NIGERIA LIMITED & ANOR v MR SIKIRU OLUWAFEMI OBILEYE & ORS (2021) LPELR-53467 (CA) 1 at 36-38 —per Ogakwu JCA. Fortunately, the matter that generated this appeal is a fundamental rights enforcement proceedings conducted and determined on the basis of affidavit evidence only. See AFRIBANK (NIG) PLC v ADIGUN & ANOR (2009) 11 NWLR (PT. 1152) 329 at 350. This Court is therefore in as vantage a position as the trial Court to evaluate the depositions in the supporting and counter-affidavits relating to the alleged violation of the Appellant’s freedom of movement, which the lower Court failed or neglected to consider and pronounce upon.
Now, the 3rd and 4th reliefs sought by the Appellant border on alleged breach of freedom of movement. The Appellant averred that his Nigerian and British international passports with Numbers NGR A06371061 and GBR 518639520 respectively were deposited with the 1st and 2nd Defendant as they required him to do; that the unavailability of his international passports prevented him from travelling to the UK where he resides and he has suffered untold hardship and humiliation by reason thereof; and that his eyesight deteriorated whilst in detention and his request for the release of the British passport to enable him seek medical attention in the UK where he has medical insurance was rebuffed by the 1st and 2nd Respondents notwithstanding that the request was backed by a medical report. Particulars of alleged hardship and humiliation are deposed in paragraph 18 of the supporting affidavit (at pp. 75 — 77 of the records), whilst the Appellant’s letter dated 13/12/17 requesting the release of passports to enable him undergo medical treatment in the UK is copied at p. 17 of the records.
The reaction of the 1st and 2nd Respondents (as contained in paragraphs 20, 21 and 23 of the counter affidavit deposed by the 2nd Respondent, Olopade Adaran at pp. 102—103 of the records) is that “when the Applicant applied for the release of his international passport, he was informed that investigation is still ongoing and that Applicant did not at any time ask for the report of investigation”; “that contrary to the depositions in paragraph 18 of affidavit in support of motion on notice and in specific reaction to the said depositions the (sic), I know as a fact that the 1st and 2nd Respondents did grant bail immediately he reported but he failed to meet the bail conditions and that he was informed that part of his bail conditions is for him to deposit his international passports and he has not apply (sic) that the conditions be reduced till today”; and that ” the Applicant did not complain of any eyesight problem or any medical condition while he was in custody due to his failure to perfect his bail”.
At page 110 of the records lies the document titled “Grant of Provisional Bail”, which reads thus:
“1. Take note that you have been granted bail on the following conditions:
A. A surety who must be a civil servant of Grade Level 14 and must provide the following documents:
(i) His/her letter of first appointment
(ii) Letter of introduction from his/her employer
(iii) Letter of last promotion to his/her present grade level
(iv) Last payslip
(v) Two passport photographs each of the suspect and surety.
OR
B. A surety who must be a property owner located within Lagos State and must provide the following documents:
i. The original C of O of the propertywhich may be verified by the commission before granting bail.
ii. TWO passport photographs each of the suspect and sureTy.
2. The surety is to report to the O/C FOREX TB at the commission on 13/2/17 at ISA Awolowo Road Ikoyi-Lagos.
The foregoing are the conditions of the administrative bail granted to the Appellant on 13/2/17. It cannot escape notice that deposit of the Appellant’s Nigerian and British International Passports is not one of the conditions stated therein. The Appellant was arrested on 12/2/17 and released from custody on 23/2/17. No charges were preferred against him at all material times. By a letter dated 13/12/17 (copied at p. 27 of the records), the Appellant prayed for the release of his International Passports to enable him “undergo treatment abroad within a period of 3 months”, Which request was declined by the 1st and 2nd Respondents who conceded that the Appellant “applied for the release of his international passport” but insisted that “he was informed that investigation is still ongoing and that applicant did not at any time ask for the report of investigation”. Reliance is placed on Exhibit EFCC 4 annexed to the counter-affidavit, which is a letter dated 12/4/17 written by the Council of Legal Education in response to an enquiry to confirm the Appellant’s alleged studentship at Nigerian Law School in 2015/2016 session. Exhibit EFCC 4 however reveals that the enquiry was made vide a letter dated 13/1/17 even before the Appellant was arrested/detained on 12/2/17 and released from detention on 23/2/17. The 1st and 2nd Respondents have equally relied on EFCC 3 (annexed to their counter-affidavit), being an enquiry letter dated 12/2/18 made to the British High Commission to confirm the Appellant’s business in the UK. But what this shows is that nothing tangible was done in furtherance of the purported investigation until the first year anniversary of the Appellant’s arrest and detention on 12/2/18, which lends some credence to the Appellant’s assertion that he kept requesting for the outcome of investigation for over one year to no avail. The 1st and 2nd respondents cannot therefore be said to be actively investigating the case.
The fundamental rights enforcement proceedings that generated the instant appeal was filed on 19/2/18: four days shy of one year since the Appellant’s release from custody on 23/2/17. Yet the 1st and 2nd Respondents have continued to detain or withhold his Nigerian and British International passports under the guise of conducting investigation without preferring charges against him. The case of DIRECTOR SSS v AGBAKOBA supra at 357-358 donates the proposition that [t]he right of free movement, particularly, not to be refused entry to or exit from Nigeria will be empty without a concomitant right not to be deprived of the document which makes such movement possible. It will be affront to all known human rights norms were the right to freedom of exit specifically guaranteed by our Constitution to be drained of all effect by arrogating to the Government a discretionary and almost arbitrary power to withhold, withdraw or revoke a passport”. I reckon that if the 1st and 2nd Respondents reasonably suspected the Appellant to have committed an offence, one year is more than enough time for them to file criminal charges against him rather than continue to detain and hold on to his Nigerian and British passports ad infinitum. It therefore seems to me that the continued detention/withholding of the Appellant’s Nigerian and British international passports constitutes an infraction of his freedom of movement, which encompasses the right of ingress and egress from Nigeria for which passports (as instruments of international travel) are sine qua non.
As it relates to the 3rd Respondent, it has not been demonstrated in the least that she did anything beyond lodging a complaint with the public Complaints Commission, which forwarded her petition to the 1st Respondent for investigation. Every citizen owes a civic duty to report incidences of commission of crime to the police or other law enforcing agencies, and the mere fact of lodging a report with, or giving information to the police, which leads to the arrest and detention of a suspect by the police acting within their mandate and responsibility, does not ipso facto amount to infringement of a fundamental human right nor give rise to liability in an action for unlawful arrest or detention. See FAJEMIROKUN v CB NIG. LTD (2009) 5 NWLR (PT. 1135) 558 and AFRIBANK v ONYIMA (2004) 2 NWLR (PT 858) 654. But whilst merely making a report to a policeman who on his own volition takes the person into custody does not constitute arrest or detention by the person who made the report, where the person orders or instigates a policeman to arrest another person without lawful justification, it constitutes imprisonment by the person ordering the imprisonment as well as by the policeman: they are joint tort feasors and their conduct can ground an action in unlawful arrest and detention. In such a case, the party alleging unlawful arrest and detention by the police at the instance or instigation of another is required to establish, for example, that the police did not act on their own volition or that the report was willfully or corruptly false, malicious and without foundation. See NWADINOBI v BOTU (2000) 15 WRN 32 at 40. That is not the scenario here, and the 3rd Respondent cannot be said to have violated the Appellant’s fundamental rights by merely lodging a complaint against him.
Law enforcement is no doubt a very onerous responsibility, and law enforcing agencies deserve all the cooperation they can get from individuals and other organs or agencies of government (including the Courts) within the ambit of the law. That is why the Courts do not ordinarily make orders restraining the exercise of their statutory powers or shield suspected offenders from criminal prosecution. See ATTORNEY-GENERAL OF ANAMBRA STATE v UBA (2005) 15 NWLR (PT. 947) 44 at 67. That also underpins the substantial margin of discretion conceded to law enforcement agencies as to the appropriate methodology of enforcement, the freedom to formulate and implement general policies and to decide what actions to take in particular cases without incurring the risk of judicial intervention. See FAWEHINMI v INSPECTOR-GENERAL OF POLICE (2002) 8 MJSC 1, (2002) 7 NWLR (PT. 665) 481. However, in discharging its statutory responsibilities, the 1st Respondent (and other law enforcing agencies) must necessarily keep within the detention timelines prescribed by law as well as scrupulously observe the procedural safeguards required of them in order to maintain the delicate balance between law enforcement on the one hand, and according due regard and recognition to human rights on the other hand. See ODOGU v ATTORNEY-GENERAL, FEDERATION (1996) 6 NWLR (PT. 456) 508 at 522 —per JSC. It cannot be over-emphasised that law enforcing agencies must operate within the confines of the laws they are required to enforce in order to make law enforcement more effective and effectual. That is to say, law enforcers must observe and ensure the observance of “the law behind the law’ by demonstrating a moral commitment to the very laws they are required to enforce, for without such moral commitment to the law, ‘who will guard the guard, and who will police the police’. See P. O. Affen, The Principles of Fair Hearing and Powers of Arrest and Sanctions by Law Enforcing Agencies in Nigeria, (2009) 2 NJPL 258. Any failure or neglect 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 v INEC (2001) WRN 1 at 31 and ATTORNEY-GENERAL, ABIA v ATTORNEY-GENERAL, FEDERATION (2002) 17 WRN 1 at 780.
Conclusion
I accordingly resolve the issues arising for determination in this appeal in favour of the Appellant against the 1st and 2nd Respondents. I have already held that the detention of the Appellant for a period of two weeks from 12/2/17 till 23/2/17 without bringing him before a Court of competent jurisdiction within a reasonable time as stipulated in S. 35(4) CFRN constitutes an infraction of his fundamental right to personal liberty. As demonstrated above, offering bail to a suspect is not a substitute for complying with the emphatic dictates of the Constitution. A fundamental right cannot be subordinated to the whims of law enforcing agencies. I have equally held that detaining and holding on to the Appellant’s Nigerian and British passports since 23/2/17 without preferring any criminal charges against him, and rebuffing his request for their release to enable him undertake medical treatment in the United Kingdom constitutes an infraction of his freedom of movement enshrined in S. 41 CFRN. The Applicant is therefore entitled to relief against the 1st and 2nd Respondents, for where there is a wrong, there is a remedy: ubi ibi remedium. See ODOGU v A-G, FEDERATION supra. By S. 35(6) of the 1999 Constitution (as amended), any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and the Supreme Court held in JIM-JAJA v C. O. P., RIVERS STATE (2073) 6 NWLR (PT. 1350) 225 at 254 that a person who establishes unlawful arrest or detention is automatically entitled to compensation by operation of law and does not have to specifically seek for compensation before it can be awarded by the Court.
However, the Appellant herein specifically claims N150m as “damages compensation for his unlawful detention, humiliation and losses suffered…”, particulars of which are set out in Para. 18 of the supporting affidavit. Notably, the Appellant deposed inter alia that he was unable to register for the Bar Final Examinations, which said registration was ongoing at the time of his detention; that he lost his job and accommodation in the UK and currently has no source of income and reduced to living with his aged parents at Umunwachukwu Village in Oguta LGA of Imo State whom he had hitherto supported. These are factors to be considered in determining the quantum of damages.
This appeal ought to be allowed, and I hereby allow it. The judgment of the Federal High Court delivered on 23/5/18 is hereby set aside. In its stead, it is ordered as follows:
(i) It is declared that the detention of the Applicant by the and 2nd Respondents for two weeks from 12/2/17 to 23/2/17 without bringing him before a Court of competent jurisdiction constitutes a violation of the Applicant’s fundamental right to personal liberty enshrined in and guaranteed by the Constitution of the Federal Republic of Nigeria, 1999.
(ii) It is equally declared that continued detention and withholding of the Appellant’s Nigerian and British International Passports Numbers NGR A06371061 and GBR 518639520 respectively contravenes his freedom of movement as guaranteed by S. 41 of the Constitution of the Federal Republic of Nigeria, 1999.
(iii) The 1st and 2nd Respondents’ shall forthwith deliver up possession and release to the Appellant his Nigerian and British International Passports Numbers NGR A06371061 and GBR 518639520 respectively.
(iv) The 1st and 2nd Respondents shall forthwith pay to the Appellant the sum of N5,000,000.00 (Five Million Naira) only as compensation for the violation of his fundamental rights.
(v) The costs of this appeal are assessed at N500,000.00 (Five Hundred Thousand Naira) only in favour of the Appellant against the 1st and 2nd Respondents.
Appearances:
S. C. Ndudim, Esq. For Appellant(s)
B. O. A. Sonoiki, Esq. with him, C. M. Uzodinma -for 1st and 2nd Respondent
3rd Respondent absent and unrepresented by counsel. For Respondent(s)