MUHAMMADU v. COP, DELTA STATE & ORS (2020)

MUHAMMADU v. COP, DELTA STATE & ORS

(2020)LCN/14712(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AS/344/18

RATIO

FUNDAMENTAL RIGHTS: PROVISIONS FOR SITUATIONS OF NON-COMPLIANCE WITH THE RULES

The rule of fundamental human right though very strict in compliance but are sui generis and has made provision for situations of non-compliance of any of its rules.
In Order ix Rule 1 (1) (ii) of the Fundamental Human Rights Enforcement Rules 2009 therein captioned;
“EFFECT OF NON-COMPLIANCE’’ provides for such situation in line with the preamble in the rules and treats; “…anything done or left undone being failure to comply with the requirements as to time, place or manner or form shall be treated as an irregularity and may not nullify such proceedings except as they relate to mode of commencement of the application the subject matter is not within Chapter iv of the Constitution or African Charter on Human and Peoples Right (ratification and enforcement)act.’’
In UKPAI v OMOREGIE (2019) LPELR – 47206 (CA), Ogunwumiju, J.C.A. held aptly on the position; Whether by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, the Court can treat failure to file a process within the time allowed by the Rules as an irregularity thus;
“…Secondly, the argument of learned 2nd – 5th Respondents/Cross Appellants’ Counsel shows a gross misconception of the provisions of the Fundamental Rights Enforcement Procedure Rules. There is no time limit to file a further affidavit. However, by Order 2 Rule 6, the 2nd – 5th Respondents/Cross Appellants who was Respondent at trial was the one obliged to file a counter-affidavit within 5 days of service of the application. Be that as it may, even if there were an infraction of the Rules, Order 9 of the Fundamental Rights Enforcement Procedure Rules of 2009 provides as follows: “Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to- (i) Mode of commencement of the application; (ii) The subject matter is not within Chapter IV of the Constitution or the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.” Order 9 provides that such infraction may be treated as an irregularity not sufficient to vitiate the proceedings. This is because the 2nd – 5th Respondents at trial had adequate opportunity to file a further counter-affidavit which they failed to do. In Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B, My Learned Brother, Abiru J.C.A. said as follows: “It is not in contest that the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 give a Respondent desirous of filing a response to a Fundamental Right application, either by way of address, counter affidavit or notice of preliminary objection, a period of five days to do so. There is no provision in the Fundamental Rights (Enforcement Procedure) Rules, 2009 for seeking either extension of time to file processes or leave to file processes out of time. It is correct that Order 15 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 says that where in the course of a Human Rights proceedings any situation arises for which there are no adequate provisions in the Rules, the Civil Procedure Rules of the Court shall apply and it is also correct that High Court of Kaduna State Civil Procedure Rules contain, provision requiring leave to file an affidavit out of time and for extension of time to file processes. It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) NWLR (Pt.979) 302. The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to file processes within the time stipulated in the Rules should be. Its Order 9 reads: “Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to: i. Mode of commencement of the application; ii. The subject matter is not within Chapter 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.” In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution. The processes filed by the Appellant, i.e., the written address, the counter affidavit and the notice of preliminary objection, did not relate to the mode of commencement of the application, nor did they relate to a subject matter that is not within Chapter 4 of the Constitution. The lower Court made no reference to the provisions of Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. It is always essential for a Court faced with the interpretation of the provisions of a statute to adopt a holistic approach and to interpret the provisions dealing with a subject matter together to get the true intention of the lawmakers – Abia State University, Uturu vs Otosi (2011) 1 NWLR (Pt.1229) 605, Ayodele vs State (2011) 6 NWLR (Pt.1243) 309 and National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt.1307) 170. Perhaps, if the lower Court had considered the provisions of Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, it would not have declared the processes filed by the Appellant incompetent.” Also, the Supreme Court per Rhodes-Vivour, J.S.C. said in Nwadiogbu & Ors v. Anambra/Imo River Basin Development Authority & Anor (2010) LPELR-2089(SC) at Page 32, Para. A-C as follows: “Time is of the essence/especially where the liberty of anyone is in issue, and so, strict adherence to procedural formalities ought to be put aside when hearing matters on human rights. The Court should rise up and be seen to restore the rights of anyone unjustly detained. Decisions should be delivered if possible, immediately or a few days after hearing arguments.” PER OBASEKI – ADEJUMO, J.C.A.

ARREST: DUTY OF THE COURT WHERE THE POLICE OFFERS EXPLANATION AMOUNTING TO JUSTIFICATION FOR AN ARREST COMPLAINED OF

It is trite that if the 1st and 2nd Respondents which is the police herein offers explanation amounting to justification for an arrest complained about, the Court is duty bound to look into the justification, which is what the lower Court did. See OBIEGUE v AG FEDERATION (2004) 5 NWLR (PT. 1399) 171. PER OBASEKI – ADEJUMO, J.C.A.
RELIEFS: BINDINGNESS OF RELIEF SOUGHT ON THE COURT

A Court is bound by the reliefs sought. See UNITY BANK PLC v JAHSWILL ONWUDIWE & ANOR (2015) LPELR – 24907(CA);
“The Court and the 1st Respondent were bound by the reliefs as framed and it was not the duty of the Court to grant any relief outside what had been claimed.

In the words of Tobi J.S.C. in EAGLE SUPER PACK (NIG) LTD V ACB PLC (2006) 19 NWLR (PT. 1013) 20, ‘’it is elementary law that a Court is bound by the relief or reliefs sought. The generosity of or charity of a Court of law is confined strictly to the reliefs or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court as an unbiased umpire to say cannot claim to know the relief or reliefs better than the party.’’
Per OGAKWU, J.C.A. (PP. 33 – 34, PARA E – D) PER OBASEKI – ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

BELLO MUHAMMADU APPELANT(S)

And

1. COMMISSIONER OF POLICE, DELTA STATE 2. ACP SAGIR MAMMAN 3. MADAM CECELIA OBIAMAKA CHUDE RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the judgment of the Federal High Court sitting at Asaba division, delivered on 20th February, 2018 coram Hon. Justice T. B Adegoke wherein the Appellant’s application under fundamental rights was dismissed.

This case arose from a report of fraudulent conversion of money against the Appellant at the office of the 2nd Respondent alleging that there was an agreement between the 3rd Respondent wherein the Appellant was employed as a caretaker to collect rent from the 3rd Respondent’s tenants and remit same to the 3rd Respondent through a bank account provided by the 3rd Respondent. The Appellant was said not to have remitted the full sum as agreed by parties but fraudulently converted to his own use, hence the police report. The Appellant was arrested and released on bail and after a few days charged to Court.
The application before the Court was;
1. A declaration that the arrest of the Applicant on 26/9/2017 and detention of the Applicant between 26/9/17 and 27/9/17 on the instructions and orders of 1st & 2nd Respondents on the

instigation of the 3rd Respondent and in a civil matter or transaction between the Applicant and 3rd Respondent constitutes a violation of the Applicants fundamental rights guaranteed under Sections 34 (1) (a) and 35 (10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 4, 5 and 6 of the African Charter on Human and People’s Rights (Ratification an Enforcement) ACT Cap 10 LFN 1990.
2. A declaration that the continued threat of arrest and detention of the Applicant by the Respondents in connection with the facts forming the grounds of this application is unconstitutional unlawful and a violation of fundamental human rights of the Applicant as enshrined under Sections 34, 35 and 36 of the 1999 constitution of the Federal Republic of Nigeria (as amended) and under Articles 5, 6 & 7 of African Charter on Human and People’s Right (Ratification and Enforcement) Act cap 10 LFN 1990.
3. An ORDER of this Court restraining the Respondents, their agents, servants or privies by whatever name so called and any other security outfit in Nigeria from further arresting harassing and/or in any way detaining or

threatening to arrest and/or detain the Applicant in respect of this matter without recourse to Court of law or further interfering in the Applicant’s enjoyment of his fundamental rights as guaranteed by the 1999 Constitution of Federal Republic of Nigeria (as amended) and under Articles 5, 6 and 7 of African Charter on Human and Peoples Right (Ratification and Enforcement ) Act Cap LFN 1990
4 An ORDER directing the Respondents to pay to the Applicant, the sum of Two Million Naira (N 2, 000,000) as damages for the wrong and unlawful arrest and detention of the Applicant.
The lower Court dismissed the action.

Dissatisfied with the decision, Appellant filed a Notice of Appeal on 17th May, 2019.

Sequel to the Court of Appeal rules, parties filed and exchanged briefs of argument; the Appellant filed it brief on 10th August, 2018 and reply to 3rd Respondent’s brief on 28th December, 2018. Both briefs were settled by Habeeb Lawal, Esq of A. H. Lawal & Co.
Wherein he distilled two issues for determination thus;
1. Whether the lower Court was right to have considered and relied on the processes filed by the 1st and 2nd

Respondent in arriving at her decision
2. Whether having regard to the far–reaching and specific findings of fact made by the trial Court to the effect that the Appellant was arrested and kept in police custody for more than 24 hours contrary to Section 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the trial Court was right to dismiss the application for lacking in merit.

The 1st and 2nd Respondents on the other hand filed a brief on 5th December, 2018 where they distilled two issues;
1. Whether the trial Court was not right to have considered and relied on the 1st and 2nd Respondents’ counter affidavit.
2. Whether the trial Court was not right to have dismissed the Applicant’s for the offence of fundamental Human Right.
The 3rd Respondent’s brief of argument is filed 7th October, 2018
i. Whether or not the learned trial judge was right to have considered and relied on the processes filed by the 1st and 2nd Respondents in arriving at its decision.
ii. whether from a calm view, the trial Court properly evaluated the evidence placed before it in reaching its judgment dismissing the application.

APPELLANT’S ARGUMENTS
The Appellant’s counsel contend that the lower Court relied heavily on the processes filed by the 1st and 2nd Respondents particularly Exhibit NPF1 – NPF5 attached to the counter affidavit in dismissing the application and that in Order 2 Rule 6 of the Fundamental Right Enforcement Procedure (FREP) Rules, 2009 a Respondent has 5 days to file a response, but that the lower Court granted them 5 days from 19th October, 2017 to file and serve their processes on all parties and the 1st and 2nd Respondents filed on 6th November, 2017 well after the five (5) days granted.

He submitted that the process was not properly before the Court having been filed out of time under the rules. He contended that the preliminary objection filed, ought to be filed along with the counter affidavit which was filed out of time and the Court should have struck out the process he cited;
DR SANDY ONOR & ANOR v RT. HON JOHN N. OWAN ENOR & ORS (2015) LPELR – 25707 (CA); GOVERNOR OF LAGOS STATE v OJUKWU (1992) 2 NWLR (PT 225) 539 AT 556; ADEFEMI v ABEGUNDE (2004) ALL FWLR PT 203 PG 2019 AT 2155;

ONYEKWULUJE v ANIMASHAUN (1996) 3 NWLR (PT 439) 637 AT 644.

He submitted that the Appellant raised the issue of incompetency of the Respondents’ processes. He submitted that the processes ought not be considered by trial Court in arriving at her decision.

On issue ii, the Appellant submitted that he was detained for more than 24 hours even though there are Courts like the Chief Magistrate Court and the Federal High Court within 40km radius of the 2nd Respondent office where he was detained and the Appellant was arrested by the officers of 1st & 2nd Respondents.

It is the submission of the Appellant that the lower Court’s decision is perverse, flowing from its findings and relied on UDENGWU v UZUEGBU (2003) 34 WRN 1; (2003) 34 WRN 13 NWLR (PT. 836) 136 @ 152 PARAGRAPHS B – D; ATOLAGBE v SHORUN (1985) 1 NWLR (PT. 2) 360.

That the justification by the lower Court of the arrest and detention of the Appellant as one made under reasonable suspicion of commission of the crime because the Appellant admitted that that he owes N500, 000 is a misapplication of the law. AFRIBANK (NIG) LTD v ONYIMA (2004) 2 NWLR (PT. 858) 654 was

cited in submitting that the police have no duty to recover debt.

It is the further submission of the Appellant that the lower Court derailed from issues raised and canvassed upon by the respective parties when it found that the police (1st and 2nd Respondents) are not liable because they took all the procedural steps towards the prosecution of the Appellant. That a grant of all or any of the reliefs sought by the Appellant would/could not by any stretch of imagination be a bar against the prosecution of the Appellant. See THE UNIVERSITY OF LAGOS & ANOR v CIO. OLANIYAN & 2 ORS (2005) 4 SCM 189; JOSEPH AMOSHIMA v THE STATE (2011) 6 – 7 SC (PART 111) 1; ANOGWIE & ORS v ODOM & ORS (2016) LPELR – 40214 (CA) were cited in aid.
In conclusion, the Appellant urge the Court to allow this appeal and grant all the reliefs sought by the Appellant.

1ST AND 2ND RESPONDENTS’ ARGUMENTS
Counsel submits that the trial Court was right to have considered and relied on the 1st and 2nd Respondents’ counter affidavit when deciding the application for the enforcement of the Applicant’s fundamental human right.

That failure to do so would amount to a breach of the 1st and 2nd Respondents’ right to fair hearing, which is also a fundamental right which the Court is also enjoined to protect. See ARIJE v ARIJE (2018) VOL. 279 LRCN PG 1 @ PG 7 & 8, RATIO 1 & 2; Order ix Rule 1 (i) & (ii) of Fundamental Human Right Rules were cited in aid. Counsel further submitted that non-compliance with Order II Rule 6 of the Fundamental Human Right Enforcement Procedure Rules 2009 is an irregularity that should not lead to the striking out of the 1st and 2nd Respondents counter affidavit, exhibits and written address.

On issue 2, Counsel submits that the trial Court having not endorsed the reasons for reaching the conclusion that the Applicant was detained for more than 24 hours, it could not be said that it is the decision based on the Court. That the trial Court after reaching a decision fully endorsing the reasons for the application lacked merit, was right to have dismissed the application. He urged the Court to evaluate the documents attached to the application. That the Applicant was never detained for more than 24 hours hence there was no reason for the conclusion.

He relied on AJIBOLA v AJADI (2009) 14 NWLR (PT 892) 14; DOKUBO ASARI v FRN (2007) ALL FWLR (PT 375) 586; ECHAEZU v COMMISSIONER OF POLICE (1974) NMLR 308 AT 314.

In addition, counsel urged that the Fundamental Right application should not be used as a sheath against investigation and prosecution of criminal cases. That the right in Section 35 of the Constitution is not an absolute right, personal right to liberty of an individual, Section 35 (1) (c) permits restriction on the individual liberty in course of judicial inquiring or where in the case a person who was arrested and detained.
Finally, he urged that the appeal be dismissed and the decision of the lower Court be upheld.

3RD RESPONDENT ARGUMENTS
On the question of whether or not the trial judge was right to have considered and relied on the processes filed by the 1st and 2nd Respondent’s counsel submitted that the submissions of the Appellant that processes filed by Respondents be discountenanced having been filed late is misconceived, he relied on Order 9 Rule 1 of Fundamental Right Enforcement Procedure (FREP) Rules, 2009 which regularized anything

undone or left out and he relied further on DUKE v AKPABUYO LOCAL GOVT (2005) 19 NWLR (PT 959) 130; CHIEF EBO v AKPATU (1968) 1 ANLR 220; EZERA v NDUKWE (1961) 1 ANLR 564; UTC LTD v PAMOTEI (1989) 2 NWLR (PT 103) 244; SALAMI v BUNGINIMI & ANOR (1998) 9 NWLR (PT. 565) 235; ATANDA v AJANI 1989 3 NWLR (PT 111) 511; NDUKA v CHIEJINA (2002) FWLR (PT 117) 1178; SPDCN LTD v EGWEAJA (2016) 10 NWLR (PT 1519) 1 @ 10 – 11; UKIRI v GEKO PRAKLA (NIG) LTD 2010 16 NWLR (PT 1220 554); UNITED BANK OF AFRICA LTD v DIKE NWORA1978 11 – 12 SC 1A, to the effect that the submission amount to technical justice and Courts are enjoined to do substantial justice.

Counsel submitted that from pages 184 – 188 of records, it is clear that the Court evaluated the evidence placed before it before coming to its conclusion, he cited in aid; EMORI v ESUKU (2013) 4 WRN PG 110; AGBI v OGBEH 2011 NWLR (PT 990) 65, BASHAYA V STATE (1998) 5 NWLR (PT 550) 351; OJOKOLOBO v ALAMU (1998) 9 NWLR (PT 565) 226; SHA v KWAN (2000) 556 198; ADEBAYO v ADUSEI (2004) 4 NWLR (PT 862) 44A.

The 3rd Respondent submitted that from the records, it is gleaned at pages 1 -129 of records, the complaint that the

Court after having found that the Appellant was arrested and was indebted to 3rd Respondent by virtue of Exhibit NPF 4 and still dismissed the application of the Appellant was not born out of the ratio decidendi of the judgment but a mere observation or passing remarks made by the Court while hearing the preliminary objection of the 1st and 2nd Respondents. That the appeal Court cannot rely on such complaints to upturn or set aside a well considered judgment of the trial Court. He relied on AKIBU v ODUNTAN (2000) 13 NWLR (PT 685) 446; ILOABACHIE v ILOABACHIE (2000) 5 NWLR (PT 656) 178; ERIVOV v OBI (1993) NWLR (PT 315 )60.

In conclusion, he posits that the Appellant has failed to show how the exercise of discretionary power of the trial Court in evaluating evidence, facts and findings was perverse, unreasonable and occasioning miscarriage of justice to the Appellants’ case.
He urged the Court to rule in his favour.

REPLY ARGUMENTS OF THE APPELLANT
Appellant submitted that Respondents failed to indicate from which ground of appeal the issues were formulated and urged that they be struck out, he relied on AKINLAGUN v OSHOBOJA (2000)

ALL FWLR (325) 52; FAWEHINMI v GLOBE MOTORS HOLDINGS (NIG) LTD (2011) 70 LPELR – 42887 (CA).

Secondly, he submitted that issue 2 of the 3rd Respondent’s issue was not related to the grounds of appeal formulated by the Appellant, more so that no cross appeal was filed. He urged that it be struck out and cited ONIAH v ONYIA (1989) 1 NWLR (PT 99) 5214; UGO v OBIEKWE (1989) 1 NWLR (PT 99) 566; AJA v OKORO (1991) 7 NWLR (PT 203) 260.

I have perused the issues distilled by parties and find they are on the same issues but differently phrased, however I will adopt the Appellant’s issues having instigated the appeal.
The two issues flow from each other, therefore, I shall be resolving both together.

RESOLUTION
The complaint of the Appellant is that the lower Court relied fully on the Exhibits NPF1 – 5 in arriving at her decision, on the grounds that the processes, that is, preliminary objection and counter affidavit of the 1st and 2nd Respondents were filed short of the required period and the Court ought not to have relied on such defective process.
The Appellant referred to cases where the High Court and/or

Court of Appeal Rules were applied. It is pertinent to note that where there is no lacuna in the rules, the High Court Rules or any other are inapplicable.
The rule of fundamental human right though very strict in compliance but are sui generis and has made provision for situations of non-compliance of any of its rules.
In Order ix Rule 1 (1) (ii) of the Fundamental Human Rights Enforcement Rules 2009 therein captioned;
“EFFECT OF NON-COMPLIANCE’’ provides for such situation in line with the preamble in the rules and treats; “…anything done or left undone being failure to comply with the requirements as to time, place or manner or form shall be treated as an irregularity and may not nullify such proceedings except as they relate to mode of commencement of the application the subject matter is not within Chapter iv of the Constitution or African Charter on Human and Peoples Right (ratification and enforcement)act.’’
In UKPAI v OMOREGIE (2019) LPELR – 47206 (CA), Ogunwumiju, J.C.A. held aptly on the position; Whether by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, the Court can

treat failure to file a process within the time allowed by the Rules as an irregularity thus;
“…Secondly, the argument of learned 2nd – 5th Respondents/Cross Appellants’ Counsel shows a gross misconception of the provisions of the Fundamental Rights Enforcement Procedure Rules. There is no time limit to file a further affidavit. However, by Order 2 Rule 6, the 2nd – 5th Respondents/Cross Appellants who was Respondent at trial was the one obliged to file a counter-affidavit within 5 days of service of the application. Be that as it may, even if there were an infraction of the Rules, Order 9 of the Fundamental Rights Enforcement Procedure Rules of 2009 provides as follows: “Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to- (i) Mode of commencement of the application; (ii) The subject matter is not within Chapter IV of the Constitution or the African Charter on Human and People’s Rights

(Ratification and Enforcement) Act.” Order 9 provides that such infraction may be treated as an irregularity not sufficient to vitiate the proceedings. This is because the 2nd – 5th Respondents at trial had adequate opportunity to file a further counter-affidavit which they failed to do. In Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B, My Learned Brother, Abiru J.C.A. said as follows: “It is not in contest that the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 give a Respondent desirous of filing a response to a Fundamental Right application, either by way of address, counter affidavit or notice of preliminary objection, a period of five days to do so. There is no provision in the Fundamental Rights (Enforcement Procedure) Rules, 2009 for seeking either extension of time to file processes or leave to file processes out of time. It is correct that Order 15 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 says that where in the course of a Human Rights proceedings any situation arises for which there are no adequate provisions in the Rules, the Civil Procedure Rules of

the Court shall apply and it is also correct that High Court of Kaduna State Civil Procedure Rules contain, provision requiring leave to file an affidavit out of time and for extension of time to file processes. It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) NWLR (Pt.979) 302. The Fundamental Rights (Enforcement Procedure) Rules, 2009 states clearly what the effect of failure to file processes within the time stipulated in the Rules should be. Its Order 9 reads: “Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to: i. Mode of commencement of the application; ii. The subject matter is not within

Chapter 4 of the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.” In other words, by the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a Court is enjoined to treat failure to file a process within the time allowed by the Rules as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution. The processes filed by the Appellant, i.e., the written address, the counter affidavit and the notice of preliminary objection, did not relate to the mode of commencement of the application, nor did they relate to a subject matter that is not within Chapter 4 of the Constitution. The lower Court made no reference to the provisions of Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. It is always essential for a Court faced with the interpretation of the provisions of a statute to adopt a holistic approach and to interpret the provisions dealing with a subject matter together to get the true intention of the lawmakers – Abia State University, Uturu vs Otosi (2011) 1 NWLR (Pt.1229)

605, Ayodele vs State (2011) 6 NWLR (Pt.1243) 309 and National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt.1307) 170. Perhaps, if the lower Court had considered the provisions of Order 9 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, it would not have declared the processes filed by the Appellant incompetent.” Also, the Supreme Court per Rhodes-Vivour, J.S.C. said in Nwadiogbu & Ors v. Anambra/Imo River Basin Development Authority & Anor (2010) LPELR-2089(SC) at Page 32, Para. A-C as follows: “Time is of the essence/especially where the liberty of anyone is in issue, and so, strict adherence to procedural formalities ought to be put aside when hearing matters on human rights. The Court should rise up and be seen to restore the rights of anyone unjustly detained. Decisions should be delivered if possible, immediately or a few days after hearing arguments.” The further affidavit filed by the Appellant/Cross Respondent cannot be said to be incompetent. This is because the process complained of (in this case the further affidavit) does not relate to the mode of commencing the

application or the subject matter is not within the ambit of the provisions of Chapter Four of the Constitution or the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. Competency goes to the admissibility of a document. Thus, having shown that the said affidavit is not incompetent, the argument of the Cross Appellant/2nd – 5th Respondents’ Counsel cannot hold water.” (underlining Mine).
(PP. 15-20, PARAS. D – F).
In line with the above, I am satisfied that the learned trial judge was on firm ground when she considered the preliminary objection together with the 1st and 2nd Respondents’ counter affidavit in the light of the saving provision inserted in the rules thereto. The 1st and 2nd Respondents’ processes are therefore valid and regular.

On the second issue, the complaint is that whether the lower Court was right to have dismissed the application after making findings that the Appellant was arrested and kept in custody for more than 24 hours. I have diligently searched the record particularly the decision of the lower Court and found in the opening of page 184, paragraph 2, the start of

considering the case on its merit;
“From the facts of this case, it is clear that the Applicant was indeed arrested by the officers of 1st and 2nd Respondents upon a petition written by the 3rd Respondent……
The police upon Exhibit NPF 1 arrested the Applicant and kept him in their custody for more than 24 hrs. contrary to Section 35 of 1999 constitution….’’

I have seen the reasons for dismissing at pages 187 – 188 of the record, in resolving the question, the evidence viz a viz the reasons shall be examined.

I have seen the affidavits, counter affidavits, further affidavits filed in the lower Court in aid and against this matter and find that the Appellant in paragraph 19 and 20 of his affidavit stated that he was arrested in the morning of 26th September, 2017 and was detained for over 24 hours. Also, in paragraph 22, he said bail was perfected in the evening of 27th September, 2017.

At page 75, is the affidavit of Bashiru Sanni who stated in paragraph 2 and 3 of his affidavit of 18th October, 2017 that the Applicant was arrested at 9am on 26th September, 2017 and released on 27th September, 2017 at 5pm, he

stood surety for him.

The 1st and 2nd Respondents stated in their counter affidavit that he was arrested on 26th September, 2017 between 5pm and 6pm and was granted bail but his surety showed up on 27th September, 2017 between hours of 8am – 9am and took him on bail.

The 3rd Respondent in paragraph 20 of her affidavit stated that he was arrested at 5.42 pm and was released when his surety came at 8. 20 am the next day. That he invaded invitation till he was arrested at 5.42pm.

In addition, I examined the bail application at page 109 of the records Exhibit NPF 3 it states; that bail was on 27th September, 2017, no time was mentioned.

The consistent fact is that Applicant was arrested in the evening of 26th September, 2017 between 5 – 6pm, this fact is not refuted by any further affidavit by the Appellant and if released at 8am or 5pm on 27th September, 2017, it has not exceeded 24 hours as stipulated. The 1st and 2nd Respondents stated in their counter affidavit that the surety was not available to perfect bail papers as at evening of 26th September, 2017 at page 105 of record and paragraph 4 (n & o), again this was not refuted.

In paragraph 3 of the grounds upon which the reliefs are sought, the Applicant stated that he was detained till 3pm while in other affidavits he stated 5pm, this is self-contradicting.

Even though the learned trial Court stated the affidavit facts that the Appellant was detained for over 24 hours, this in my view was not a far-reaching and specific finding of fact.

I have seen the minutes of Exhibit NPF 2 at page 105 – 106 (wrongly stapled) of the record, it says the suspect be granted bail;
“…The suspect has been arrested and his statement is recorded under caution in page B1. Meanwhile, suspect is in detention, awaiting to be released on bail to a surety. This is for your information and further directives.”

This was signed on 26th September, 2017, the 1st and 2nd Respondents in paragraph 4n – p of their counter affidavit deposed that the surety showed up the following day 27th September, 2017 between the hours of 8am and 9am and took the Appellant on bail. This was not refuted in any further affidavit.

These tallies with the minutes of investigation- NPF2 that the Police had finished with the Appellant and was awaiting the

surety who will stand bail, and until the surety is available to sign bail, he will not be released.

In the light of this, the lower Court found that the 1st and 2nd Respondents acted within the law by arrest and detention; officially he was no longer detained, it is the duty of the Appellant to produce an acceptable surety to stand for his bail. I cannot lay the blame on the feet of the 1 and 2nd Respondents.

Be that as it may, the lower Court was empowered to examine the position of the Respondents if there was any justification for the act. After comments on the affidavit evidence of the Appellant, the Court proceeded to examine the defence offered.
The findings of the lower Court at page 187 – 188 of the records and the relevant portions are at the last paragraphs thus;
“From the avalanche of evidence against the Applicant, particularly Exhibit NPF1 – Exhibit NPF 5, it is in my view that the police have acted within the law by the arrest and detention of the Applicant upon Exhibit NPF1, the police minute sheet which stated that the act of the Applicant is fraudulent conversion/stealing and acts likely to cause breach of peace

…… the police in my view took all the procedural steps towards the prosecution of the Applicant and for which they have power to do.’’
The above is the only area the findings were complained about, but this cannot be read in isolation, when read from the beginning of evaluation of evidence at pages 184 of the records where the lower Court considered the affidavit of the Appellant and his exhibit in Exhibit A and examined the allegation leading to arrest, shows a holistic consideration of the case.
The lower Court found that the Appellants attached Exhibits that were not readable, others were duplicated tellers in the light of having admitted in paragraph 10 of his affidavit owing N500,000 and had paid the sum of N700,000 out of N 1.2Million, and that the Appellant made no attempts to come with clean hands to prove his allegation by the paragraphs 8, 9, 10, 11, 12, 13 and 14 of his affidavit, though this is not a criteria for determining the application, it borders on issue 1 to see the nature of the transaction as the reliefs sought in the light of the submissions of the Appellant.

Therefore can the submission be correct? I am afraid not in entirety, the Court entered the arena of the issues for which he was arrested by trying to ascertain if he was guilty of diverting the rents in his capacity/duty as caretaker which sum ought to have been completely paid in the bank, this has no bases in the determination of a fundamental rights application, though the lower Court rightly complained about the legibility of Exhibits attached to the application. The Applicant who is seeking a remedy from the Court has to lay bare the materials he wants the Court to evaluate as merit of his application but same was not helpful!
The lower Court went further to find that the Appellant wrongly anchored his application on recovery of debt by the police and tenancy arrangement between him and the 3rd Respondent, upon a close study of the processes filed, it is clear that the Appellant was misleading facts of the case in his affidavit in support of the application, in that, it was not a case of landlord and tenancy or recovery of rents but a case of fraudulent conversion by the caretaker of the 3rd Respondent’s shops and stealing coupled with threats to life, see paragraphs 2, 5(a

– i), 11, 14, 17, 18, 19 & 20 of the 3rd Respondent’s counter affidavit which takes the case outside the submission of Appellant’s counsel that Section 4 of Police Act does not include recovery of amount owed.
It is a criminal case which was likely to cause a breach of the peace.
It is trite that if the 1st and 2nd Respondents which is the police herein offers explanation amounting to justification for an arrest complained about, the Court is duty bound to look into the justification, which is what the lower Court did. See OBIEGUE v AG FEDERATION (2004) 5 NWLR (PT. 1399) 171.
In a case like this, sought on breach or infringement of fundamental right, once there is evidence that the victim was detained, the burden now moves to the police or the detaining authority to show the justification for the arrest or detention.
The first burden in my view is on the Applicant (Appellant) to show that he was arrested and detained by the Respondents beyond the time. Also, in E. ENAGBONAMUNA v OSARO OSEWINGIE & ORS (2019) LPELR – 46731 (CA), the Court held that the police have the duty and discretion to receive complaint and

determine who to arrest and prosecute. The police have the duty and discretion by virtue of Section 4, 20, 23 – 30 of the Police Act Cap. 191 LFN to receive complaints and determine who to arrest and prosecute.
The lower Court merely examined the 1st and 2nd Respondents defense of justification which was encapsulated in Exhibits NPF1 – 5 and found that the Appellant was properly arrested upon the complaints, it was the case that he was a caretaker and had refused to remit funds and went behind the 3rd Respondent after termination to collect funds and caused breach of peace to the new tenants and the new caretaker, threatened the 3rd Respondent thereby disturbing the peace in the market, see paragraphs 4 d, e, f, g ,h, I ,j, & k of the Counter affidavit of Inspector Pius Mosindi team leader of investigation and paragraph 2 of the 3rd Respondent’s counter affidavit.
The lower Court was therefore right in dismissing the application in this regard.
This was not denied by the Appellant. See BASHIR BALA NUHU v SHITTU SALEH & ORS (2014) LPELR – 24616 (CA); IGP & ANOR v DR PATRICK IFEANYI UBAH & ORS (2014) LPELR – CA/L/199A/2013.

The Appellant was charged to Court on 5th October, 2017 for stealing and fraudulent conversion of funds, these are criminal acts and not civil nor is it a ‘simple recovery of money’, see pages 105 -114 of the record Exhibits NPF2 & 4 ‘REPORT OF POLICE REPORT’. The Appellant was charged to Court on a 4 count charge, see NPF5, Paragraph q stated that the 1st and 2nd Respondents did not take part in the activities of the investigation.

Therefore, I agree with the lower Court that that it is not the case where a person can escape lawful detention under the canopy of Section 35 of the Constitution. The Appellant has not been unduly detained beyond the time limits in the light of the reliefs sought bearing in mind the nature of the crime. Furthermore, I shall reproduce the reliefs for clarity below:
1. A declaration that the arrest of the Applicant on 26/9/2017 and detention of the Applicant between 26/9/17 and 27/9/17 on the instructions and orders of 1st and 2nd Respondents on the instigation of the 3rd Respondent and in a civil matter or transaction between the Applicant and 3rd Respondent

constitutes a violation of the Applicants fundamental rights guaranteed under Sections 34(1)(a) and 35(10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 4, 5 and 6 of the African Charter on Human and People’s Rights (Ratification an Enforcement ) ACT cap 10 LFN 1990
2. A declaration that the continued threat of arrest and detention of the Applicant by the Respondents in connection with the facts forming the grounds of this application by the Respondents in connection with the facts forming the ground of this application is unconstitutional unlawful and a violation of fundamental human rights of the Applicant as enshrined under Sections 34,35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and under Articles 5, 6 & 7 of African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10 LFN 1990.
3. An order of this Court restraining the Respondents, their agents servants or privies by whatever name so called and any other security outfit in Nigeria from further arresting harassing and/or in any way detaining or threatening to arrest and or/or detain the

Applicant in respect of this matter without recourse to Court of law or further interfering in the Applicant’s enjoyment of his fundamental rights as guaranteed by the 1999 Constitution of Federal Republic of Nigeria (as amended) and under Articles 5, 6 and 7 of African Charter on Human and Peoples Right (ratification and enforcement) Act Cap LFN 1990
4. An ORDER directing the Respondents to pay to the Applicant, the sum of Two–Million Naira (N2,000,000) as damages for the wrong and unlawful arrest and detention of the Applicant. (Underlining mine)

From the reliefs above, the way relief 1 is couched, the lower Court having made findings and held that the matter in the police station was not a civil matter despite the petition written, the reports of investigation throws more light on the issue, the lower Court was right not to have proceeded further.

Furthermore, from the findings of the lower Court, Relief 1 does not reflect the correct state of affairs as couched by the Appellant; it states the detention period to be 26th September, 2017 to 27th September, 2017 which is vague and ordinarily the limit is 24 hours as stated in this judgment, this fact is full of contradictions in the grounds and the affidavit in support of the same application. See pages 184 paragraph 1 and page 188.

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It further states that the purpose is for a civil case or transaction between the Appellant and the 3rd Respondent which has been shown to be false from the counter affidavit and Exhibits NPF 1 – 5. It was more than a transaction, as highlighted in this judgment.

Furthermore, the Appellant having been charged to Court on a four-count charge in Exhibit NPF5 at pages 115 of the record. The absence of any deposition by the Appellant on attempts or actual threat and continuous arrest and detention renders prayers 2 and 3 of the motion on notice, relief 3 has not been proved by the Appellant, thereof spent. In any case, a statutory duty cannot be stopped by way of an injunction where it has been properly exercised. Relief 4 cannot fly in the light of all other reliefs upon which it stands having failed.

Therefore, the lower Court’s conclusion was correct in dismissing the application, when she found the initiative of the police to arrest and detain the Appellant on Exhibit NPF 1 made by the 3rd Respondent could not attract any liability to the 3rd Respondent and also the defence of unclean hands may apply, this referred to avalanche of evidence

adduced against the Appellant based upon the Exhibits NPF 1 – 5.

It is trite that it is not enough to say detention exceeded the 24-hour period, the justification, that is, the defence of the alleged offending Respondents must also be examined and the manner in which the reliefs have been couched in relation to the evidence, that is, Exhibits in any application for fundamental human rights enforcement must be considered together before arriving at a conclusion.

The Court could not have granted the reliefs having been shown not to be grantable.

Inspite of the complaints of the Appellant, I resolve issues 1 and 2 against the Appellant.

In the light of the above, the appeal lacks merit and is dismissed. The judgment of the lower Court is affirmed.
Cost of N200,000 is awarded to the Respondents respectively.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. I agree wholly with the same, and have nothing to add thereto.

MOHAMMED AMBI – USI DANJUMA, J.C.A.: I have read in draft before

now, the lead Judgment in this appeal prepared by my learned brother, ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. and I agree with the reasoning and the conclusion arrived at that the appeal be dismissed as lacking in merit.

The facts of the case and the evidence led clearly depicts an instance where arrest and detention was made of the Appellant upon a complaint relating to the commission of criminal offences. That the offences sprung from a contractual or commercial deal notwithstanding.

From the evidence led, the Appellant did not show that he was detained illegally as it was for purpose of investigation, the breach of peace, being one of the alleged offences being investigated. The duration of the detention was not proved to be beyond 24 hours as limited by the Constitution nor unreasonable. The infraction of the fundamental human rights of the Appellant was rightly held not to have violated.

The performance of a statutory duty and in the manner allowed by law cannot amount to a breach of a fundamental human right of a citizen.
In this regard, therefore, a public authority shall not be prevented by the grant of an

injunction or damages from the due performance of such a duty.
If there is a reasonable suspicion that a person has committed an offence, he may be impaired or temporarily interfered with. See Ekwenugo V. FRN (2001) 6 NWLR (pt708) 171 at 185.
However, where the defendant acted in the performance of public or statutory duty, he will not be liable. See Agunbiade & Anor Vs Ogidan & Ors (2016) Suit No. CA/AK/137/2011 LPELR – 40091 (CA) decided 2nd February, 2016, where this Court per Danjuma, J.C.A. stated in part thus: “The 2nd – 4th Respondents acted in good faith in the performance of their statutory duties and concluded as they were reasonably expected to do by discharging the victims/Appellants upon the discovery that it was purely a civil matter devoid of any proof of criminality.”
In that case, there was no reasonable cause of action, though the police performed their statutory duties and were not liable as there was no detention outside the limited period or for any reason beyond the investigation.

I therefore, for the above and the fuller reasoning of His Lordship in the lead, concur that this appeal be dismissed.

Appearances:

Habeeb Lawal For Appellant(s)

C. Emeka with him R. O. Eze – for 3rd Respondent.
L. O. & N. P. – for 1st and 2nd Respondent. For Respondent(s)