NIGERIAN NAVY & ORS v. LABINJO
(2021)LCN/15064(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 04, 2021
CA/L/LAG/CV/555/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
1. THE NIGERIAN NAVY 2. THE CHIEF OF NAVAL STAFF 3. THE FLAG OFFICER COMMANDING WESTERN NAVAL COMMAND 4. THE COMMANDING OFFICER NNS BEECROFT APPELANT(S)
And
BOLA LABINJO RESPONDENT(S)
RATIO
WHETHER THE DETENTION OF A PERSON OUTSIDE THE PROVISIONS OF SECTION 35(4) AND (5) OF THE CONSTITUTION WILL AMOUNT TO INFRINGEMENT OF SUCH PERSONS’ FUNDAMENTAL RIGHT
… it is not in doubt that the Appellants are empowered to arrest both persons and ships on the Nigerian territorial matters who are reasonably suspected to have committed any maritime offence. However, the Appellants’ power of arrest and detention must be in accordance of the Constitution Nigeria, 1999 as amended. The provisions of Section 35(4) and (5) of the Constitution are clear that the arrest of any person on suspicion of having committed an offence must be taken before a Court of competent jurisdiction with the reasonable time of 24 hours (one day) or 48 hours (two days). Thus any detention outside these days provided by the Constitution will amount to the infringement of such an arrested person’s right guaranteed under section 35. PER BALKISU BELLO ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Federal High Court, holden at Lagos (trial Court) delivered on the 18th February 2019 in respect of suit NO: FHC/L/CS/1556/18 filed by the Respondent being the Plaintiff against the Appellants by which the Respondent sought to enforce her fundamental right vide the suit commenced by originating summons she filed on the 24th September 2018 praying for the following reliefs:
1. A declaration that the arrest and detention of the Applicant by the respondents constitute a violation of the Applicant’s fundamental rights as guaranteed under Sections 35, 41, 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore illegal and unconstitutional.
2. A declaration that the continued detention of the Applicant since 12th and 14th September 2018 respectively by the Respondents constitute a gross violation of the fundamental rights of the Applicant as guaranteed under Sections 35, 41, 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is
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therefore illegal and unconstitutional.
3. An order compelling the Respondents, whether by themselves or by their officers, agents and privies, to forthwith release the applicant.
4. An order compelling the Respondents, whether by themselves or by their officers, agents and privies, to forthwith release the property of the Applicant, MT ADELINE JUMBO.
5. An order restraining the Respondents whether by themselves or by their officers, agents and privies, from further arresting, detaining or in any other manner infringing upon the fundamental rights of the Applicant.
6. An order of N2,000,000.00 (Two million Naira) general damages for the breach of the Applicant’s fundamental human rights.
7. And such further Order or other orders as this Honourable Court may deem fit to make in the circumstance.
The facts that gave rise to the case are stated in the affidavit in support of the originating summons that the Respondent along with two others, namely Benjamin Gageche and MT Adeline Jumbo were arrested by the Appellants and detained since 12th September 2018. The Respondent and Benjamin Gageche claimed to be disponent owners of the
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ship, MT ‘Adeline Jumbo’, that they said was hijacked by unknown persons.
The Appellants denied the claims of the Respondent vide their counter affidavit filed on 5th October 2018 wherein they averred that they received a mail from the IMB Piracy Reporting Centre that MT ‘PANTELENA’ had been hijacked by pirates. Upon receiving this intelligence report, the Respondents’ NNS ‘Beecroft’ of the Nigerian Navy, Apapa, Lagos was directed to locate, arrest and investigate the matter and this led to the arrest of MT ‘ADELINE JUMBO’ as suspect involved in the hijack of the MT ‘PANTELENA’. Further investigation revealed that MT ‘ADELINE JUMBO’ was managed by Labland and Sea Services, a firm in which the Respondent Mrs. Bose Labinjo was the Managing Director. The Appellants averred that the Respondent and one Benjamin Gageche were aware of the presence of some four hefty men on board the MT ADELINE JUMBO, who allegedly participated in the hijack of MT ‘PANTELENA. The Appellants further averred that investigation clearly showed that the allegations against the Respondent were weighty
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and tantamount to economic sabotage against the country and there was need for further investigation which was the reason why they sought and procured a Court order to detain the Respondent, along with Benjamin Gageche and MT ADELINE JUMBO. The remand order obtained on 19th September 2018 permitted the Appellants to detain the Respondent for 30 days only pending conclusion of the investigation.
After considering the affidavits of both parties and their respective counsel written addresses, the learned trial judge delivered the vexed judgment granting all the reliefs sought by the Respondent against the Appellants, and ordered the Respondents to pay her One million Naira as compensation for the infringement of her fundamental right.
Aggrieved by the judgment, the Appellants challenged same vide their notice of appeal filed on the 15th March 2019 relying on three grounds of appeal to pray this Court to allow the appeal and to set aside the judgment of the trial Court. The Appeal having been duly entered, the Appellants filed their brief of argument on the 5th November 2019 but deemed properly filed and served on the 23rd January 2020.
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Grant Onwuka Esq. settled the Appellants’ brief and he proposed two issues from the grounds of appeal for the determination of the appeal reproduced below:
1. Whether in the circumstances of this case/appeal, the trial Court was entitled to make an order for the release of the vessel MT Adeline Jumbo, which was not a party to the suit?
2. Whether in the circumstances of this case/appeal, and in the light of the evidence presented, the lower Court was right to have upheld the Respondent’s Originating Summons?
In opposing the appeal, the Respondent filed her brief of argument prepared by Vivian Ezeukwu Esq on the 24th December 2019 but deemed properly filed on the 23rd January 2020, wherein she also identified two issues for the determination of the appeal, viz:
1. Whether having regard to the facts and circumstances of this case, it will be in the interest of justice for the Appellants to continue violating the Fundamental Rights of the Respondent?
2. Whether the Respondent is entitled to enjoy the fruits of the judgment delivered in her favour?
The appeal came up for hearing on 9th December, 2020 and counsel on both sides
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adopted and relied on the parties respective argument. The Appellant urged the Court to allow the appeal while the Respondent prayed that the appeal be dismissed and judgment of the trial Court affirmed.
In determining this appeal, I adopt the Appellants’ two issues having observed that they are more apt in capturing their grounds of appeal. The submissions of the parties in their respective briefs are considered below.
APPELLANTS’ SUBMISSIONS
On issue one, the learned counsel argued for the Appellant that the position of the law is that a person who is not a party to an action or proceedings cannot suffer any penalty and by extension any benefit under such proceedings. He submitted that in this case, though the originating summons filed before the trial Court was initially filed by the Respondent, one Benjamin Gageche and MT ‘Adeline Jumbo’ these two filed an application before the trial Court praying that their names be struck out of the case because they did not authorize the filing of the suit in their name. The trial Court granted the applications and their names were struck out from the suit.
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However, in its judgment, the trial Court granted relief 4 sought by the Respondent and ordered the release of the ship, which the Appellants argued ought not have been granted since the vessel was not a party to the suit. They relied on the cases of IWUOHA & ANOR VS. OHAZURUIKE & ORS. (2016) LPELR-40513 (CA), PDP VS. EKEAGBARA & ORS. (2016) LPELR 40849 (CA) and KAYODE & ORS. VS. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2018) LPELR- 44539 (CA) in support of the submissions and to urge the Court strike out issue 4 of the originating summons and to resolve issue one in favour of the Appellants.
With regards to the Appellants’ issue two, learned counsel quoted Section 1(4) of the Armed Forces Act establishing the 1st Appellant with ‘wide’ powers including power to arrest erring ships in respect of the territorial waters of Nigeria. He submitted on that basis that the Respondent as the applicant before the trial Court did not prove that her arrest and detention were without reasonable cause or that the Appellants acted outside their statutory powers. He further argued that the rights guaranteed by
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Section 35 of the 1999 Constitution of Nigeria as amended are not absolute, but may be derogated for the purpose of bringing a person before a Court of law upon suspicion of committing a crime. That this circumstance of derogation applies to the Respondent suspected of crimes of piracy, a serious economic crime. In this case, the Appellants were granted an order to detain the Respondent pending the conclusion of investigation of the case and the Respondent did not establish that her arrest and detention were unlawful. He urged the Court to resolve this issue in favour of the Appellants citing several cases in support of his argument including the cases of DOKUBO-ASARI VS. FRN (2007) 12 NWLR (PT. 1048) 320, LUFADEJU VS. JOHNSON (2007) 8 NWLR (PT. 1037) 535 AND ALAO VS. AKANO (2005) 10 MJSC 137 at 147.
RESPONDENT’S SUBMISSIONS
It was submitted on the Respondent’s issue one that circumstances of this case show that the Respondent placed credible evidence before the trial Court that established her fundamental right was infringed by the Appellants. Learned Counsel submitted that the implication of the detention of the Respondent by the Appellants for over one
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year without taking her to Court upon a charge of any criminal offence was contrary to Sections 34, 35, 36 and 41 of the 1999 Constitution of Nigeria as amended and her rights were grossly violated, which rights are ‘absolute’ and for this contention, he relied on the case of COMPTROLLER-GENERAL OF NIGERIAN PRISONS SERVICE & 2 ORS. VS. DR. FEMI ADEKANYE & 26 ORS. (1999) 10 NWLR (PT. 623) 400.
On the Respondent’s issue two, learned counsel relied on Section 35(5) of the Constitution to argue that the Respondent and her agents were illegally detained for about a year and the Appellants failed to charge them to Court or even establish or link them directly or indirectly to the alleged offences. That the order of remand obtained by the Appellants was only for a period of 30 days and that there must be an end to remand. He relied on the case of SUNDAY JIMOH VS. A. G. FEDERATION & ORS. (1998) HRLRA 513 and others for support.
He further argued that the Appellants are not imbued with any power whatsoever to remand or apply to the Court to remand any person in their custody. Such powers are preserved for law enforcement agents
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such as the police, the EFCC or the Nigerian Security and Civil Defence Corps who by their enabling laws are imbued with such powers. He therefore submitted that the Appellants acted beyond their powers when they obtained an order of remand against the Respondent. He referred us to the case of S. O. NTUKS & ORS. VS. N. P. A. (2007) LPELR-2076 (SC) at 29-30 in support of his argument. The Court was urged to discountenance the argument of the Appellants and dismiss this appeal and affirm the judgment of the trial Court.
It is observed that the Respondent failed to address the issue whether relief 4 claimed in the originating summons ought to have been granted by the lower Court.
By way of reply on points of law, the Appellants argued in Appellants’ reply brief that there was nowhere in the judgment of the trial Court where it was found that the Appellant was detained for over a year. The argument of the Respondent to that effect is misleading and should be discountenanced. In response to the Respondent’s argument that human rights are “absolute”, the Appellants relied on Section 35 of the Constitution and the cases of
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EKWENUGO VS. FRN (2001) 6 NWLR (PT. 708) 171 AND HASSAN VS. EFCC & ORS. (2013) LPELR- 22595 (CA) to submit that right to personal liberty of a person can be restricted in line with the provisions of the Constitution.
On the argument of the Respondent that the Appellants are not imbued with any power to arrest and apply to Court for detention of arrested persons, the Appellants submitted, relying on Section 1(4) of the AFA and the Section 263 of AJCL of Lagos State 2015 to submit that the Respondent’s submissions are misconceived because by those provisions, the Appellants acted in accord of the law. Finally on the reliance of the Respondent on the case of Ntuks Vs. NPA (supra) on abuse of Court’s process, the Appellants argued that the issue of their application to the Court for detention of the Respondent being an abuse of Court’s process was not raised in the Appellant’s brief of argument. They urged the Court to discountenance the argument of the Respondent and allow this appeal.
RESOLUTION
In the originating summons filed before the trial Court dated 24th September 2018, there were three applicants, including MT
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Adeline Jumboas the 3rd Applicant therein. See pp.4-13 of the Record of Appeal. However, by a motion dated 6th November 2018, the owners of MT Adeline Jumbo, Amador Energy Services Limited applied vide a motion on notice filed on the 6th November 2018 praying the trial Court to strike out the name of the MT Adeline Jumbo from the suit. On the grounds that the 1st Applicant (now Respondent) and 2nd Applicant are not the disponent owners of MT Adeline Jumbo and that the owner did not have any complaints against the Respondents (now Appellants) (pp. 95-128 of the record of Appeal). The Respondent’s learned counsel acceded to the application as shown on page 194 of the record in the proceedings of the trial Court of 15th January 2019. In effect the Respondent conceded that she was not the owner of the vessel. In the Court’s ruling on the application delivered on the same 15th January 2019, the application was granted and the name of MT Adeline Jumbo was struck out of the case.
Therefore, having so conceded could not be entitled to relief four of the originating summons seeking the release the vessel as her property. Therefore, the learned trial
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Judge erred when he granted the relief 4 in favour of the Respondent. Issue one is resolved in favour of the Appellants.
On issue two, it is not in doubt that the Appellants are empowered to arrest both persons and ships on the Nigerian territorial matters who are reasonably suspected to have committed any maritime offence. However, the Appellants’ power of arrest and detention must be in accordance of the Constitution Nigeria, 1999 as amended. The provisions of Section 35(4) and (5) of the Constitution are clear that the arrest of any person on suspicion of having committed an offence must be taken before a Court of competent jurisdiction with the reasonable time of 24 hours (one day) or 48 hours (two days). Thus any detention outside these days provided by the Constitution will amount to the infringement of such an arrested person’s right guaranteed under section 35.
In this case, the Appellants claimed that they had an order of Court to detain the Respondent pending conclusion of investigation. Though the Appellant in paragraph 4.27 referred the Court to pages 23 to 35 to locate the Court’s order, which it obtained to detain
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the Respondent, the said order is not attached to the record. The Appellants also omitted to tell this Court in their briefs for how long the Court ordered them to detain the Respondent. What is on record is the finding of the learned trial Judge at page 220 to 221 of the record thus:
The position maintained by the Respondents is that the Applicant has been detained to enable the Respondents carry out further investigation upon which exhibit B attached to the counter affidavit of the Respondents, that is, the Remand order of the 19th day of September, 2018 was obtained permitting the Respondents to remand the Appellant for 30 days pending their investigation. On or by the 20th day of October 2018 exhibit B the remand order of the 19th day of September 2018 has effectively expired and there is nothing before this Court showing that the said remand order was renewed for the continued detention of the Applicant by the Respondents.
There was no order mentioned by the Appellants in this appeal either entitling them to detain the Respondent after the expiration of that order. The circumstances of this case shows that the Respondent was detained for a
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period of time allowed by the order of Court. In that regard the detention was unlawful and the trial Court was right to so hold. This issue is resolved against the Appellants.
Consequently, this appeal partly succeeds on issue one alone. Relief 4 of the originating summons is struck out.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the Leading Judgment of my learned brother, HON. JUSTICE BALKISU BELLO ALIYU, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat. My Lord has dutifully and adequately analyzed the facts of this case, the issues raised by the learned Counsel for the Parties in their Arguments in support and has rightly held that on the authority of Kuwiba Shipping Hong Kong Ltd. vs. Prima Shipping Company Ltd. & Anor (AC47/2010) (2013) ZAWCHC 17 (28 January, 2013), the Respondent not being a Disponent Owner of MT Adeline Jumbo, should not have been entitled to the Relief granted him for the release of MT Adeline Jumbo.
On Issue Number 2 (Two) I also agree with my learned brother that the detention of the Respondent was unlawful and that the Trial Court was right to
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so hold. Accordingly, I also agree that the Appeal succeeds in part on Issue Number One (1) and Relief 4 of the Originating Summons struck out.
SAIDU TANKO HUSSAINI, J.C.A.: My lord, Balkisu Bello Aliyu, JCA has availed me of a copy of the judgment just delivered. I am in complete agreement with the reasoning and conclusion of my lord in the lead judgment. I abide by the consequential orders contained in the lead judgment.
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Appearances:
GRANT ONWUKA,ESQ. WITH HIM, OLUWADAMILOLA AWOYOMI, ESQ. For Appellant(s)
VIVIEN EZEUKWU, ESQ. WITH HIM, CHUKWUDI NWADIKE, ESQ. For Respondent(s)
