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NIGERIA PETROLEUM DEVELOPMENT COMPANY LIMITED & ANOR v. MR. ISAAC EFUKO (2019)

NIGERIA PETROLEUM DEVELOPMENT COMPANY LIMITED & ANOR v. MR. ISAAC EFUKO

(2019)LCN/13296(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2019

CA/B/246/2016

 

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. NIGERIA PETROLEUM DEVELOPMENT COMPANY LTD
2. LT. COL. MATTHEW O. OYEKOLA
(COMMANDING OFFICER, 222 BATTALION, NIGERIA ARMY) Appellant(s)

AND

MR. ISAAC EFUKO Respondent(s)

RATIO

WHETHER OR NOT THE FUNDAMENTAL RIGHTS OF A CITIZEN CAN BE INFRINGED BY DUE PROCESS OF THE LAW

The Constitution of the Federal Republic of Nigeria 1999 as amended guarantees the fundamental rights of the Nigeria citizen and these inalienable rights can only be infringed by due process of the law. S. 35(1) of the Constitution reads as follows:
?Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.?
Even from the counter affidavit of the Appellant, it can be deduced that the 2nd Appellant with his soldiers went to the house of the Respondent, arrested him and detained him for 25 days.
This singular action of the Respondent to my mind goes contrary to S.4 of the Police Act which states thus:
?The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within or without Nigeria as may be required by them. PER EKPE, J.C.A.

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): The Respondent/Applicant commenced the action leading to this appeal by a Motion on Notice filed at the Effurun Judicial Division of the High Court of Delta State on the 15th Day of September 2015, in Suit No. EHC/M/43/2015 wherein he claimed the following orders:
1. A DECLARATION that the arrest of the Applicant on the 6/5/2015 by junior military officers under the control and supervision of the 2nd Appellant upon the prompting of the 1st and 2nd Appellants is unconstitutional and illegal.
2. A DECLARATION that the detention of the Applicant in the military cell for a period of Twenty-Five (25) days upon the prompting of the 1st Appellant and by the order of the 2nd Appellant is unconstitutional and illegal.
3. A DECLARATION that the act of torturing the Applicant with horse whip by junior military officers under the control and supervision of the 2nd Appellant upon the order and/or command of the 2nd Appellant is unconstitutional and illegal.
?4. Five Hundred Million Naira (N500,000,000) exemplary damages against the 1st and 2nd Appellants jointly and

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severally being general damages suffered by the Applicant, psychologically, physically and emotionally for the unlawful detention for a period of 25 days and illegal torture meted on him by the junior military officers under the control and supervision of the 2nd Appellant upon the order and/or command of the 2nd Appellant while the Applicant was under the custody of the 2nd Appellant from on the 6/5/15 to 31/5/15 upon the prompting of the 1st Appellant.

It is the Respondent?s claim that he was unlawfully treated in the manner aforementioned because the 2nd Appellant, upon a petition by the 1st Appellant claimed he stole the 1st Appellant?s Oil Well Head Verve which they demanded of him. The Respondent denied stealing such oil well head.

The Applicant also claimed that up till now he has not been prosecuted in a Court of law at the behest of the Appellants.

Attached to the motion is a statement in support, affidavit in support as well as a written address. The Respondent also filed a counter affidavit and a written address.

?A Ruling was delivered by Honourable Justice G.E. Gbemre on the 16th of November, 2015 wherein he found

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the 1st and 2nd Appellants liable for the breach of the Fundamental Human Rights of the Applicant/Respondent. His Lordship held that the 1st Appellant?s action of reporting the matter to the soldiers (which the 2nd Appellant is a part of) and not the duly constituted authority saddled with the responsibilities of investigating, arresting and detaining ? the Nigeria Police Force ? makes the 1st Appellant responsible for the sordid state of affairs in this case.

His Lordship declared that the arrest and detention of the Respondent on the directive of the Appellants was unconstitutional and illegal and ordered the Appellants to pay to the Applicant the sum of One Million, Five Hundred Thousand Naira only (N1,500,000) as damages and Fifty Thousand Naira only (N50,000).

Being dissatisfied with the above decision of the Court below, the Respondents/Appellants filed Notice and Grounds of Appeal to the Court of Appeal in January, 2016.

?From their grounds of appeal the Appellants herein formulated three issues for determination to wit:
?1. Whether the evidence on record supports the finding of the lower Court that the Fundamental

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Human Rights of the Respondent was infringed upon by the Appellants.
2. Whether there is evidence on record to support the award of N 1.5 million damages in favour of the Respondent against the Appellants for the breach of his Fundamental Human Rights.
3. Whether the 2nd Respondent had the powers to arrest and detain the Respondent.

The Respondent on his part also raised two issues for determination:
1. Whether the learned trial Judge was wrong to hold that the Appellants infringed the Respondent Fundamental Right.
2. Whether the learned trial Judge acted wrongly to have awarded damages against the Appellants having held that the Appellants infringed the Fundamental Right of the Respondent has guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended).

I have perused the two sets of issues as couched by both parties and it is my view that the salient issue to be used in this discourse for the determination of this appeal is as follows:
Whether the learned trial Judge was wrong to hold that the Appellants infringed the Fundamental Human Right of the Respondent.

?The Appellants? contention

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is that the learned trial Judge erred in law when he held that the Appellants jointly violated the fundamental human rights of the Respondent and are therefore jointly liable to pay him the sum of N1,500,000 and N50,000 respectively for the violation of his fundamental human rights and the cost of the suit.

The Appellants contend the following:
a. That the scope of responsibility of both Appellants are entirely different from the other in that the scope of responsibility of the 1st Appellant is that of crude oil exploration on behalf of NNPC, while that of the 2nd Appellant is among other things, the security and protection of oil installations, oil pipelines and other related activities on behalf of the Federal Government of Nigeria. Appellants argued that the implication of this is that it was not the 1st Appellant that arrested or detained the Respondent, and consequently, it cannot be foisted with liability for the arrest and detention of the Respondent and therefore is not jointly liable with the 2nd Appellant for same.
b. That the 1st Appellant is not the principal of the 2nd Appellant, and the 2nd Appellant is not its agent and therefore

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the 1st Appellant cannot be held liable for the actions of the 2nd Appellant.

Appellants also contend that from the evidence on record, all the 1st Appellant did was to lodge a complaint to the 2nd Appellant that its ?oil wells were stolen? and that it did not even name the Respondent as a suspect. It was during the course of its investigation that the 2nd Appellant arrested the Respondent, and consequently, the 1st Appellant cannot share in the liability of the 2nd Appellant.

Counsel further submitted that the law is that whether the Appellant was actively responsible for the arrest of the Respondent and his illegal detention is a matter of fact and that in determining this, the Court must consider if there was any reasonable and probable cause which led the Appellant to lodge a complaint. Counsel stated that the Court also has to consider the presence or absence of malice in the act of the Appellant. That malice in this form of action is not to be considered in the sense of spite or hatred against the Respondent but of malus animus (actuated by improper and indirect motives). See ARAB CONTRACTORS (O.A.O.) NIGERIA LTD V. UMANAH (2013)

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ALL FWLR, Part 683, Page 1979 at 1999-1991, Paragraphs F-G, per Ogunwumiju JCA.

Counsel stated that the action of reporting the theft to the 2nd Appellant by the 1st Appellant was devoid of malice on the part of the 1st Appellant, who had reasonable and probable cause to lodge a complaint with the 2nd Appellant because its ?oil well heads were stolen.?

Appellants further contended that the Exhibits A1 to A4 as well as Exhibit B relied upon by the learned trial Judge as evidence showing that the fundamental human rights of the Respondent was infringed upon by the Appellants did not comply with the mandatory provisions of Section 84 of the Evidence Act, 2011.

?Exhibits A1 ? A4 are computer-generated photographs of the Respondent purportedly showing hose whip marks administered on him by the 2nd Appellant but that the photos are blurry and do not show horse whip marks, and Counsel urged the Court to hold that the pre-conditions stated in the aforementioned Section for the admissibility of computer-generated evidence were not complied with and as such the Court cannot have any recourse to it or place any reliance on it in making

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any decision. Counsel stated that the provision is that the person seeking to tender such evidence must attach a certificate stating that he has complied with the provisions of Section 84(2) a-d. Furthermore, Exhibit B which is a purported medical report from Galeo Clinic, a private Hospital, can also not be relied upon by the Court according to Counsel because the law is trite that only medical reports from public Hospital can be relied upon by the Court.

Counsel stated that the rationale behind this was that such form of evidence could be procured but medical reports from public hospitals cannot easily be procured.

Finally counsel stated that the reliance on the affidavit of Mr. Duke Ojarife by the learned trial Judge in finding for the Respondent that his fundamental human rights were infringed upon by the Appellants occasioned a miscarriage of justice. Counsel stated that Order II Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 provides that the affidavit in support of an application to enforce Fundamental Human Rights shall be sworn to by the applicant, but where the applicant is in custody or if for any reason is unable to

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swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the applicants, stating that the applicant is unable to depose personally to the affidavit.

Counsel concluded that there was no evidence on record to show that the Respondent was in custody as at the time he filed his application to enforce his Fundamental Human Rights and no reason whatsoever was advanced by the Respondent in the said affidavit of Mr. Duke Ojarife to show that the Respondent was unable to depose to same.

He then urged the Court to resolve the issue in favour of the Appellant.

The Respondent on the other hand submitted that since it was upon the prompting of the 1st Appellant that the 2nd Appellant detained the Respondent beyond the constitutional timeframe, the 1st Appellant is jointly liable for the infringement of the fundamental human rights of the Respondent.

?Counsel however stated that it is the statutory duty of the Nigeria Police Force to investigate and detect crime and also to apprehend suspected offender(s) etc.

?He averred that the Appellants did not deny

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that the Respondent was arrested and detained for a period of 25 days by the 2nd Appellant upon the prompting of the 1st Appellant, and that he was never handed over to the police for possible prosecution over the alleged crime.

Respondent stated that it was the bounden duty of the Appellants to show that the arrest and detention was lawful. See FAJEMIROKUN V. C.B. (C.I) NIG. LTD (2002) 10 NWLR (Part 774) 95 Ratio 1.

RESOLUTION:
I have gone through the gamut of the submissions proferred by both learned counsel on this issue. It is however on record that the 1st Appellant reported the theft of its oil well head verve to the military and follow up to that report was that the Respondent was subsequently arrested and detained by the 2nd Appellant for a period of 25 days. For purposes of clarity and emphasis, I shall reproduce excerpts of the Respondent?s affidavit hereunder as follows:
?4. That on the 6/5/2015 within the hour of 3.00 pm I was in my house when Captain Onanipor who is a military officer under the control and supervision of the 2nd Respondent stormed into my apartment in company of five (5) military officers. Wherein

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the Captain Onanipor told me that the 2nd Respondent commanded him to arrest me to the barracks. And I then inquired the reason for the arrest. The said Captain Onanipor then asked me to obey before complaint.
5. That Captain Onanipor immediately ordered his junior military officers to handcuff me and to put me into their military Hilux Van and Captain Onanipor also entered the Hilux Van alongside with me.
6. That Captain Onanipor took me before the 2nd Respondent wherein the 2nd Respondent demanded of me to produce a missing Oil Well Head Verve which belongs to the 1st Respondent stating that he has it on good authority that I stole the Oil Well Head Verve. I then replied the 2nd Respondent that I am not a thief and I have never stole (sic) anything from anybody at any given time.
7. The 2nd Respondent then informed me that there is a petition before him written by the 1st Respondent staff stating that I stole an Oil Well Head Verve which belongs to the 1st Respondent. I then replied the 2nd Respondent again that I am innocent of the allegation on theft that I have been accused by the staff of the 1st Respondent.
8. The 2nd Respondent then

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ordered four (4) junior military officers to ensure that they subject me to severe torture till I admit the truth that I stole the Oil Well Head Verve which belongs to the 1st Respondent. And also ensure that they lock me up in the military cell and nobody should be granted access to meet with me.
9. That the junior military officer ordered by the 2nd Respondent consistently subjected me to severe torture by hand cuffing me to a suspended pole and flogging me all over my body with a horse whip. Hereto attached are photographs I snapped on the 31/5/15 marked as Exhibits A1, A2, A3 & A4 revealing the horse whip marks all over my body and the marks of the handcuff placed in my wrist.
10. That after I was freed from detention and custody of the 2nd Respondent on the 31/5/15 at about 4.00 pm and I was never arraigned before any Court of law for the alleged offence leveled against me by the 1st Respondent. I then hurriedly went to my house to freshen up and headed to the hospital for medical check up wherein I was admitted. Hereto attached is a copy of the medical report of the hospital marked as Exhibit ?B?.?

?In the counter

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affidavit of the Appellants, it was not denied that the Respondent was arrested by the 2nd Appellant and kept in the military cell for 25 days. Whatever treatment that was meted out to the Respondent during his period of detention in a military camp can be presumed even outside the Respondent?s specific claims in his affidavit.
However, the pertinent question here is: whether the 2nd Appellant is saddled with the Responsibility of investigating crime wherein the 1st Appellant lodged a criminal complaint against the Respondent upon which the Respondent was arrested and detained under the custody of the 2nd Appellant for 25 days upon the dictates of the 1st Appellant?
The Appellants on the other hand claimed that no Fundamental Human Rights of the Respondent had been breached by their actions. By their counter affidavit, they have not denied the fact that the Respondent was arrested and detained for 25 days without resort to any police investigation.
The Constitution of the Federal Republic of Nigeria 1999 as amended guarantees the fundamental rights of the Nigeria citizen and these inalienable rights can only be infringed by due process of

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the law. S. 35(1) of the Constitution reads as follows:
?Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.?
Even from the counter affidavit of the Appellant, it can be deduced that the 2nd Appellant with his soldiers went to the house of the Respondent, arrested him and detained him for 25 days.
This singular action of the Respondent to my mind goes contrary to S.4 of the Police Act which states thus:
?The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within or without Nigeria as may be required by them
?The Joint Task Force which apprehended and investigated the Respondent is an unknown entity in law and could merely serve as an agency without the clearly defined functions of the Nigeria Police. The Respondent ought to have

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been handed over to the Police which is the appropriate agency to deal with crime and investigation.
Like I stated earlier in this judgment, the Respondent would have presumably suffered indignities and maltreatment in the hands of the soldiers. The Respondent who was arrested and detained by the soldiers was never prosecuted for any crime by the police. I am in agreement with the reasoning of the lower Court that the 1st Appellant?s action in reporting the matter to the soldiers is responsible for his subsequent maltreatment in their hands as the 1st Appellant ought to have handed the Respondent over to the police or asked the soldiers to effect the handing over to the police. The action of the Appellants is therefore a clear breach of the fundamental rights of the Respondent.
From the totality of all of the above summation, it is therefore my ardent view as also held by the lower Court that the arrest of the Respondent on the 6th day of May 2015 by military officers under the control and supervision of the Appellant is illegal and unconstitutional and thereby breached the Fundamental Human Rights of the Respondent. I also hold that the arrest

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and detention of the Respondent in a military cell for 25 days by the 2nd Appellant upon the prompting of the 1st Appellant is unconstitutional and illegal.

In sum, it is my ardent view that this appeal is adjudged unmeritorious; it fails and is hereby dismissed.

Accordingly, the judgment of the lower Court delivered on the 16th Day of November 2015 by Hon. Justice G.E. Gbemre is affirmed.

Cost of N200,000.00 (Two Hundred Thousand Naira only) is hereby awarded in favour of the Respondent against the Appellants.

?Appeal Dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the Judgment just delivered by my learned brother PHILOMENA MBUA EKPE, JCA.

I agree with the reasoning and conclusion that this appeal is completely bereft of merit and should be dismissed with substantial costs.

There is no room in a country where ostensibly the rule of law reigns for some people to contribute themselves into kangaroo arresting, remanding and prosecutorial authorities culminating in the unlawful arrest of fellow citizens. The learned trial Judge properly evaluated the evidence at trial and in my humble view came to

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the correct findings of fact.

The Judgment of the trial Court delivered on 16/11/15 by Hon.Justice G.E. Gbemre is hereby affirmed. Appeal Dismissed. I abide by the order as to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.

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Appearances:

James OnojaFor Appellant(s)

C. U. UmodeFor Respondent(s)

 

Appearances

James OnojaFor Appellant

 

AND

C. U. UmodeFor Respondent