SSS & ORS v. ADAMU
(2020)LCN/15549(CA)
In The Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Monday, July 13, 2020
CA/MK/84/2019
Before Our Lordships:
Adamu Jauro Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
1. STATE SECURITY SERVICES (SSS) 2. DIRECTOR GENERAL STATE SECURITY SERVICES (SSS) 3. THE DIRECTOR STATE SECURITY SERVICES LAFIA, NASARAWA STATE 4. MRS. J.K. DIBLANG APPELANT(S)
And
MOHAMMED YUSHAU ADAMU RESPONDENT(S)
RATIO:
EFFECT OF GOING CONTRARY TO THE RULES OF COURT
Where a statute or rules of Court have provided for the method of doing a thing, it must be done in accordance with the express provisions of the statute or rules. Whatever is done in contravention of those provisions amounts to a nullity and of no effect. See Oyegun V Nzeribe (2010) 5 – 7 SC (Pt. 11) 44 and Mobil Producing (Nig) Unlimited V Johnson (2018) 14 NWLR (Pt. 1639) 329. An objection as to failure to comply with such provisions touches on the competence of the Court and therefore can be raised at any stage of the proceedings including at the appellate stage. JOSEPH EYO EKANEM, J.C.A.
FUNDAMENTAL HUMAN RIGHT
The Constitution of Nigeria, 1999 (as amended) guarantees the fundamental rights of every person in Nigeria in Chapter IV. The rights are so important that they are considered as standing above other laws of the land outside the Constitution. See Badejo V Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15, 41 and Anzaku V Governor of Nasarawa State (2005) 5 NWLR (Pt. 919) 448, 483. Those rights however are not absolute as they may be a derogation from them as provided for in the Constitution. JOSEPH EYO EKANEM, J.C.A.
JSTIFYING THE EXISTENCE OF A REASONABLE SUSPICION
In order to justify the arrest of a person on the basis that he was reasonably suspected of having committed a crime, there must be facts deposed to in the affidavit upon which the Court can reach a conclusion that there was indeed reasonable suspicion that he committed the offence. The test of the existence of reasonable suspicion is that of a reasonable person acting without passion and prejudice. In Oteri V Okorodudu (1970) LPELR – 2824 (SC) – P. 10 the Supreme Court stated as follows:
“In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen V Wright 8 Car. and P. 522 where he said that it must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, and not on subsequent facts that come to light …” JOSEPH EYO EKANEM, J.C.A.
WHEN NO SPECIFIC GROUND OF APPEAL ATTACKS A SPECIFC FINDINGS
There is no specific ground of appeal which attacks the specific finding. The result is that the finding is deemed to have been accepted by the appellants and it remains binding on the parties. See Chudi Verdical Co. Ltd V Ifesinachi Industries (Nig) Ltd (2018) 16 NWLR (Pt. 1646) 520, 537. JOSEPH EYO EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court of Nigeria, Lafia Judicial Division (the lower Court) in suit No. FHC/ABJ/CS/539/2018 delivered on 18/2/2019. In the judgment, the trial Court (coram Y. Bogoro, J.) found the appellants liable for infringement of the respondent’s fundamental rights to personal liberty, freedom of movement and dignity to the human person. It accordingly directed the appellants to pay the sum of N1,000,000:00 (One Million Naira) as exemplary and aggravated damages, and general damages to the respondent. The trial Court also issued a restraining order and an order for a written apology.
Aggrieved by the decision, the appellants appealed to this Court by means of a notice of appeal filed on 8/5/2019. The notice of appeal incorporates nine grounds of appeal.
The facts of the case leading to this appeal, as stated by the respondent, are that the respondent who, at the material time, was a 500 level law student of the Nasarawa State University, Keffi, was on 21/2/2018 arrested and manacled in both his hands and legs without any reason given on the order of the 4th appellant, an officer of the 1st appellant. This happened in the university in the presence of students and staff of the university. He was taken to the office of the 1st appellant in Lafia (Nasarawa State) where he was interrogated and kept naked in a cold cell. He was released on 23/2/2018 from the incarceration. The appellants’ case was that the respondent was arrested on 21/2/2018 on reasonable suspicion of committing the offence of fraud. He was said to have sent a threat message to the (then) Governor of Nasarawa State, Umar Tanko Almakura and the Deputy Governor, Silas Ali Garba, demanding the sum of $200,000:00, failure of which they risked being investigated by EFCC for corruption. He was said to have been released on 22/2/2018 on administrative bail pending the conclusion of investigation.
The respondent, not amused by his experience applied to the lower Court for the enforcement of his fundamental rights. He claimed the followings reliefs against the appellants:
“1. A DECLARATION that the arrest and taking of the Applicant from his school at Faculty of Law, Nasarawa State University, Keffi to the office of the 1st Respondent in Lafia, Nasarawa State with hand and feet cuffs, his detention, confinement, emotional and psychological torture from the hours of 11:30am on the 21st day of February, 2018 to the hours of 18:30pm, 23rd day of February, 2018 without committing any offence, constitutes a breach of the Plaintiff’s right to Liberty and Freedom of movement as enshrined under Sections 35(1),(4) and (5), 41(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. AN ORDER directing the Respondents jointly and severally to deliver a written apology for the unlawful arrest, intimidation, harassment, confinement and detention of the Applicant and publish same in at least three (3) mostly widely read newspaper and in any conspicuous notice board in the faculty of law, Nasarawa State University, Keffi.
3. AN ORDER OF INJUNCTION restraining the 1st – 4th Respondents, their agents, servants, privies, officers or otherwise howsoever called, known or described from further arresting, inviting, phoning, intimidating, harassing, and/or detaining the Applicant on account of his filing this action.
4. AN ORDER directing the Respondents jointly and severally to pay the Plaintiff the sum of N100,000,000.00 (One Hundred Million Naira) only being exemplary, aggravated and general damages for the unlawful harassment, arrest, oppression, and confinement of the Applicant without any justifiable reason”.
The application was supported by an affidavit of 23 paragraphs deposed to by the respondent, to which 2 exhibits were attached. A written address was also filed along with the originating process.
The appellants, in response, filed a notice of preliminary objection, a written address in support of the preliminary objection, a counter – affidavit of 12 paragraphs deposed to by Echika Owete, an employee of the 1st appellant and a written address. The lower Court ruled that the preliminary objection had been overtaken by the event of the transfer of the suit to the appropriate division of that Court. It went on to grant the substantive application.
In furtherance of their appeal, the appellants filed their brief of argument on 13/6/2019 and reply brief on 4/2/2020. The reply brief was deemed duly filed and served on 10/6/2020. Both briefs were settled by T.A. Nurudeen, Esq. The respondent filed his brief of argument on 23/12/2019 and the same was deemed duly filed and served on 10/6/2020. It was settled by Abdulaziz Ibrahim, Esq.
At the hearing of the appeal on 10/6/2020, W.N. Oruigoni, Esq. for the appellants adopted and relied on the briefs of argument filed on behalf of the appellants in urging the Court to allow the appeal and strike out the case of the respondent. A.M. Owuna, Esq. for the respondent adopted and relied on the respondent’s brief of argument in urging the Court to dismiss the appeal and affirm the judgment of the lower Court.
In the appellants’ brief of argument the following issues have been formulated for the determination of the appeal:
“1. Whether the 1st – 4th Appellants have right in law to arrest the Respondent on reasonable suspicions of having committed an offence. (Distilled from Appellants Ground 2, 4 and 5).
2. Whether the Applicant/Respondent’s suit was competent same having not been initiated in compliance with the provisions of Order 2 Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009. (Distilled from Ground 3).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
- Whether the arrest of the Respondent by the Appellants on 21/2/2018 and his release on 22/2/2018 amounts to violation of Respondent’s right to freedom of movement and of (sic) the answer in the negative, was the trial judge right to have awarded One Million Naira against the Appellants. (Distilled from Grounds 7 and 8).
4. Whether the trial Judge was right to have granted Respondent relief No. 3 i.e. restraining the Appellant from discharging their statutory duties. (Distilled from Ground 6)”.
The respondent in his brief of argument has formulated the following issues for the determination of the appeal:
“1. Whether having regards to the totality of affidavit evidence placed before the trial Court, the learned trial Judge was right when he held that the arrest and detention of the Respondent by the Appellants was unlawful. (Distilled from Grounds 2, 4 and 5 of the notice of appeal).
2. Whether the arrest and detention of the Respondent by the Appellants violates Respondent’s Right to Liberty and Freedom of movement to warrant the award of N1,000,000.00 (One Million Naira) damages against the Appellants. (Distilled from Grounds 7 and 8).
3. Whether the Respondent’s suit is competent having regards to the provisions of the Fundamental Right (Enforcement Procedure) Rules, 2009. (Distilled from Ground 3).
4. Whether the trial judge was right to have granted Respondent’s relief No. 3 of the originating application. (Distilled from Appellants from Ground 6)”.
The first point that needs to be made is that no issue is distilled from ground one of the grounds of appeal. It is therefore abandoned and I accordingly strike out the same. The second point is that the two sets of issues are in substance the same. However, for the purpose of conciseness and avoidance of proliferation of issues and arguments, the issues for determination of the appeal may be reduced to the understated:
1. Was the respondent’s suit competent?
2. Was the lower Court right in holding that the respondent’s fundamental rights were violated by the appellants?
3. Was the lower Court right in granting respondent’s relief No. 3?
Issue 1 – Was the respondent’s suit competent?
Appellants’ counsel submitted that where a rule of Court lays down a certain procedure for doing an act, it is only that laid down procedure that must be followed. It was his further submission that the respondent failed to comply with the mandatory requirement of Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 by not stating his description and the reliefs sought. He posited that this failure rendered the application incompetent with the result that the jurisdiction of the lower Court was not successfully ignited.
Respondent’s counsel referred to Order IX of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and contended that the submission of appellants’ counsel carried no weight in the light of the provision. It was further contended, in essence, that the appellants cannot be heard to raise the issue of non – compliance with the rules at this stage having not raised the same in the lower Court. He went on to submit that the appellants did not show how the non – compliance occasioned a miscarriage of justice to them.
In his reply, appellants’ counsel argued that non – compliance with Order II Rule 3 supra. is fundamental as it affects the jurisdiction of the Court and that the issue can be raised at any stage of the proceedings.
Where a statute or rules of Court have provided for the method of doing a thing, it must be done in accordance with the express provisions of the statute or rules. Whatever is done in contravention of those provisions amounts to a nullity and of no effect. See Oyegun V Nzeribe (2010) 5 – 7 SC (Pt. 11) 44 and Mobil Producing (Nig) Unlimited V Johnson (2018) 14 NWLR (Pt. 1639) 329. An objection as to failure to comply with such provisions touches on the competence of the Court and therefore can be raised at any stage of the proceedings including at the appellate stage.
Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 provides:
“An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made”.
The contention of the appellants, it needs be re – stated, is that the respondent in commencing the proceedings did not state his description and the reliefs he sought. In the affidavit in support of the application, the respondent stated his description as male, Nigerian citizen and a 500 Level Law Student of the Nasarawa State University, Keffi. This, in my humble view, was substantial compliance with the rules. The reliefs sought are clearly set out in the body of the motion. Again, that amounted to substantial compliance with rules. Order IX Rule 1(1) of the Rules states:
“1. 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 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 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 Chapter on Human and People’s Right (Ratification and Enforcement) Act”.
The provision supra. is meant to ameliorate the rigidity and hardship that resulted from the near inflexible and rigid provisions of the Fundamental Rights (Enforcement Procedure) Rues, 1979, which resulted in matters being struck on account of failure to comply with the provisions thereof. See Enukeme V Mazi (2015) 17 NWLR (Pt. 1488) 411, 434. The result is that failure to comply with certain technical requirements are now treated as an irregularity provided the mode of commencement of the proceedings is acceptable to the Court and the subject matter of the suit falls within Chapter IV of the Constitution of Nigeria or the African Charter on Human and People’s Right (Ratification and Enforcement) Act.
The phrase “mode” is defined as:
“A manner of doing something” – Black’s Law Dictionary 8th Ed. Page 1025.
The mode of commencement of an action pursuant to the Fundamental Rights (Enforcement Procedure) Rules, 2009, is by an originating process accepted by the Court which shall, subject to the provisions of the Rules, lie without leave of Court. See Order II Rule 2thereof. Rule 1 of Order II of the same Rules provides, in part, that Form No. 1 in the Appendix may be used as appropriate. The originating process filed by the respondent in this matter is in substantial compliance with Form 1 in the Appendix. Therefore in the circumstance of this matter, the complaint of the appellants amounts to a complaint about requirement as to manner or form. It therefore cannot nullify the proceedings or defeat respondent’s case. This is especially so as it has not been shown by the appellants that any miscarriage of justice was occasioned them by the alleged non – compliance.
I therefore enter an affirmative answer to issue 1 and resolve it against the appellants.
Issue 2 – Was the lower Court right in holding that the respondent’s fundamental rights were violated by the appellants?
Appellants’ counsel submitted that by virtue of Sections 35(7), 214 and 216 of the Constitution of Nigeria, 1999, as amended (the Constitution) the appellants have statutory right to arrest the respondent on reasonable suspicion of having committed an offence. Reference was made to Luna V Commissioner of Police, Rivers State (2010) LPELR – 8642 (CA) and Ibe Orkater V Ekpo (2014) LPELR – 23525 (CA). Counsel referred to Paragraph 3 (a)(b), (c)(d) and (e) of the counter – affidavit. He noted that the respondent was arrested on 21/2/2018 and was granted administrative bail on 22/2/2018 due to the inability of the appellants to conclude the investigation within 48 hours, citing the case of Isiyaku V COP, Yobe State (2017) LPELR – 43439 (CA). He soliloquized as to the basis for the grant of respondent’s application since he was released within 24 hours of his arrest in accordance with Section 35(5)(a) and (b) of the Constitution. Thus, he asserted, the action of the appellants cannot amount to a breach of respondent’s fundamental rights.
Respondent’s counsel argued that the appellants woefully failed to show by credible affidavit evidence that the arrest and detention of the respondent was carried out upon reasonable suspicion of crime. He submitted that affidavit evidence must reveal all the necessary facts, particulars and ingredients that would persuade the Court on the issue in controversy. He noted that the appellants simply stated in their counter – affidavit that the respondent was arrested on a “reasonable suspicion” with two other persons. He contented that there was nothing in the counter – affidavit to show that there was reasonable suspicion of the respondent having committed the offence to warrant his arrest and detention. He observed that there was no print out of the text message allegedly sent by the respondent. He argued further that the appellants failed to discharge the burden of justifying the arrest and detention, and so the respondent was entitled to the reliefs he sought.
The reply of the appellant on this issue amounted to a re – argument or improvement of the argument in the appellants’ brief of argument. I shall therefore discountenance the same.
The Constitution of Nigeria, 1999 (as amended) guarantees the fundamental rights of every person in Nigeria in Chapter IV. The rights are so important that they are considered as standing above other laws of the land outside the Constitution. See Badejo V Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15, 41 and Anzaku V Governor of Nasarawa State (2005) 5 NWLR (Pt. 919) 448, 483. Those rights however are not absolute as they may be a derogation from them as provided for in the Constitution.
The fundamental rights in focus in this matter are the rights to personal liberty and dignity of the human person guaranteed in Sections 35 and 34, respectively, of the Constitution. The power of the appellants to arrest and detain a person is traceable to Section 2(3) of the National Security Agencies Act of 2004 and the exceptions provided in Section 35(1) of the Constitution. In particular Section 35(1)(c) of the Constitution provides as follows:
“(1) 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 – …
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence”.
At this stage, I shall take the liberty of setting out the relevant depositions of the parties hereunder:
The respondent deposed in paragraphs 3 – 12 of his affidavit as follows:
“3. That sometime on the 21st day of February, 2018 at about 11:30am I was called through my cell number by the President of the Law Student Association (LAWSA) to come to the school for an undisclosed activity.
4. That on arriving at the school premises, I went straight to the faculty of law to meet the President of the Law Student Association (LAWSA) where I am presently undergoing my undergraduate studies in Law.
5. That at the faculty of law I met with the faculty’s sub – dean, the examination officer, the President (LAWSA) and one DSS Officer named Mrs. J.K. Diblang.
6. That the said Mrs. J.K. Diblang started explaining to me that I am wanted at the Office of the Chief Security Officer of the School (C.S.O.).
7. That pursuant to paragraph 6 above, I then demanded from Mrs. J.K. Diblang to know the reason why I am wanted but was told that I will know when I get there.
8. That upon getting to the office of the chief security officer, the DSS Officer, Mrs. J.K. Diblang after discussions with the chief security officer ordered my arrest.
9. That following the 4th Respondent orders, I was immediately arrested at the Chief Security Officer’s Office (C.S.O) by Four (4) DSS officers without any provocation or reason for my arrest given.
10. That pursuant to paragraph 9 supra. I was handcuffed in both hands and legs before students and staff of Nasarawa State University, Keffi as I was then immediately bundled into a waiting van accompanied by Four (4) heavily armed men from the Department of State Security (DSS) and taken to their office in Lafia.
11. That upon arriving at DSS office in Lafia on the 21st day of February, 2018, at late noon, I was interrogated for hours, striped naked and photographed by the DSS officers.
12. That I was subjected to series of interrogations, humiliation and harassment from the hours of 4:00pm of the 21st February, 2018 to the hours of 18:30pm, 23rd day of February, 2018”.
On the other hand, the appellants deposed in paragraphs 3(a)(b)(c)(d) and (e), and 7 of their counter – affidavit as follows:
“a. That the Applicant was arrested in Keffi, Nasarawa State on reasonable suspicion of committing offence of fraud.
b. That the Applicant in concert with Two (2) persons send a threatening message to the Governor of Nasarawa State, Umar Tanko Almakura and his Deputy Silas Ali Garba, demanding the sum of Two Hundred Thousand United State Dollars ($200,000) or risk being investigated by EFCC for corruption.
c. That the Applicant was arrested on the 21st February, 2018, and was released on the 22nd February, 2018, on administrative bail, pending the conclusion of investigation.
d. That the Applicant release was as a result of the Respondents inability to conclude investigation within 48 hours and in compliance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
e. That the Respondents did not violate the Fundamental rights of the Applicant, as the Applicant was released less than 48 hours of his arrest.
7. That the Respondents did not exhibit any act which may be viewed as prosecutorial misconduct, malicious process or misfeasance in public office against the Applicant which Applicant may consider as infringement or violation of their Fundamental Human Rights as enshrined by the Constitution of the Federal Republic of Nigeria”.
As can be seen above, the appellants admitted the arrest and detention of the respondent by them. The result is that the burden was on the appellants to justify the same. See Sandy V Hotogua 14 WACA 18 and Iyere V Duru (1986) 11 – 12 SC 19, 46.
The justification offered by the appellants is to be found in paragraphs 3(a) and (b) of their counter – affidavit. For ease of reference though at the pain of repetition, I shall again set out the depositions:
“a. That the Applicant was arrested in Keffi, Nasarawa State on reasonable suspicion of committing offence of fraud.
b. That the Applicant in concert with two (2) persons send a threatening message to the Governor of Nasarawa State, Umar Tanko Almakura and His Deputy Silas Ali Garba, demanding the sum of Two Hundred Thousand United State Dollars (sic) ($200,000) or risk being investigated by EFCC for corruption”.
The learned Judge of the lower Court was not impressed with the depositions above and made it very clear in his lordship’s judgment at page 47 of the record of appeal as follows:
“This is an affidavit evidence matter, it behoves on the respondents, to support their defence with credible evidence. The Court will not be a party to a situation where the security agency will just come and tell the Court “upon reasonable suspicion”. The Court must be convinced that there is indeed reasonable suspicion. (Can therefore the arrest be said to be lawful? Where there is no proof of any reasonable suspicion).I doubt much”.
In order to justify the arrest of a person on the basis that he was reasonably suspected of having committed a crime, there must be facts deposed to in the affidavit upon which the Court can reach a conclusion that there was indeed reasonable suspicion that he committed the offence. The test of the existence of reasonable suspicion is that of a reasonable person acting without passion and prejudice. In Oteri V Okorodudu (1970) LPELR – 2824 (SC) – P. 10 the Supreme Court stated as follows:
“In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen V Wright 8 Car. and P. 522 where he said that it must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, and not on subsequent facts that come to light …”
The deposition of the appellants were bare assertions with no iota of supporting facts, materials or evidence to prop up the assertions. By what means was the threat message sent? Was it oral, documentary, by GSM text message or by Whatsapp? If it was by document, why was a copy of it not attached to the affidavit? If it was by GSM text message or Whatsapp or any other internet platform why was the call log or a transcript of it not attached to the counter – affidavit as an exhibit? It was not deposed by the appellants that there was any preliminary investigation to ground their belief or assertion that there was reasonable suspicion that the respondent committed the offence to warrant the Court to reach such a conclusion. An imperious and magisterial declaration that the respondent was arrested on reasonable suspicion of committing the offence of fraud and that he sent a threat message will not suffice. It must be remembered that the power of the 1st appellant is subject to judicial control and that those who feel called upon to deprive others of their fundamental rights must be prepared to justify their actions with facts and not magisterial or imperious declarations.
The appellants approached the matter as Humpty – Dumpty who asserted that:
“When I say this it must be so” – And why? “Because I say so and consider it to be in the interest of justice”,
as quoted by Eso, JSC, though in a slightly different context, in Willoughby V International Merchant Bank (Nig.) Limited (1987) LPELR – (SC) Page 22.
Again, there is absolutely nothing to show that a report of any kind was made against the respondent or, as I have already stated, any preliminary investigation was made by the appellants to ascertain that grounds existed to reasonably suspect that the respondent committed the offence. In Fawehinmi V Inspector – General of Police (2002) 7 NWLR (Pt. 367) 606, 681, Uwaifo, JSC, opined as follows:
“I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence implicating him”.
The lower Court was therefore right in holding that the arrest of the respondent by the appellants was not lawful.
Appellants’ counsel harped on the point that the respondent was released within 48 hours of his arrest and so liability cannot attach to the appellants as they complied with Section 35(4) and (5) of the Constitution. Before one proceeds to consider the length of incarceration, where a person says that he was unlawfully arrested, the Court must first consider the constitutionality or lawfulness of the arrest. If his arrest in the first place was unconstitutional or unlawful, the speed of his release cannot avail the party who arrested him; liability st ill attaches to that party for the wrongful arrest. The length of detention will be relevant only to the issue of the amount of damages to be awarded. The speed of the victim’s release cannot cure the unlawfulness of the arrest.
Apart from finding that the arrest of the respondent was wrongful, the trial Court found that the respondent was treated in a degrading manner. See page 49 of the record of appeal. I have perused the grounds of appeal in the notice of appeal at pages 36 – 41 of the record. There is no specific ground of appeal which attacks the specific finding. The result is that the finding is deemed to have been accepted by the appellants and it remains binding on the parties. See Chudi Verdical Co. Ltd V Ifesinachi Industries (Nig) Ltd (2018) 16 NWLR (Pt. 1646) 520, 537.
I therefore answer issue 2 in the affirmative and resolve it against the appellants.
Issue 3 –Was the lower Court right in granting respondent’s relief No. 3?
Appellants’ counsel submitted that the provision of Section 3(a) of the National Security Agencies Act, empowers the appellants to arrest and detect within the country any crime against the internal security of Nigeria. He further submitted that the trial Court lacked the power to issue declaratory and injunctive reliefs with a view to impeding the result of investigation made pursuant to the statutory duty of the appellants. It was posited by him that the Court lacked the power to restrain the appellants by injunction from investigation of criminal complaints. Counsel cited in aid Inspector – General of Police V Ubah (2014) LPELR – 23968 (CA).
Counsel contended that relief number 3 granted by the lower Court against the appellants is an order of perpetual injunction restraining the appellants from arresting and detaining the respondent. This, he further contended, was beyond the powers of the trial Court. He cited and relied on Oguejiofor V Ibeabuchi (2017) LPELR – 43590 (CA).
Respondent’s counsel submitted that appellants grossly misconceived relief No. 3 which was granted by the trial Court. He stated that the trial Court did not grant an order of perpetual injunction. It was his position that the restraint sought by the respondent was in respect of the allegation of committing the offence of fraud by sending a threat message to the Governor of Nasarawa State and the Deputy Governor. He stated that the appellant woefully failed to lead any evidence to indict the respondent or link him with the allegation. Thus, he posited, the trial Court was right in granting relief No. 3.
It is no doubt the law that the Court ought not to issue an order restraining a constitutional or statutory body as the 1st appellant or its officers from carrying out their constitutional or statutory duties. In Attorney – General of Anambra State V Ubah (2005) 15 NWLR (Pt. 947) 44, 67 Bulkachuwa, JCA (later PCA) held that:
“For a person, therefore, to go to Court to be shielded against criminal investigation and prosecution is an interference of powers given by the constitution to law officers in the control of criminal investigation … The plaintiff cannot expect a judicial fiat preventing a law officer in the execution of his constitutional power”.
In this instance, the respondent prayed in relief No. 3 as follows:
“AN ORDER OF INJUNCTION restraining the 1st – 4th Respondents, their agents, servants, privies, officers or otherwise however called, known or described from further arresting, inviting, phoning, intimidating, harassing, and/or detaining the Applicant on account of his filing this action”, (Italicization is mine for clarity).
The trial Court granted the prayer in the following terms:
“2. An order of injunction is hereby made restraining the 1st – 4th respondents, their agents, servants, privies, officers or otherwise how so ever called from further arresting, inviting, phoning, intimidating, harassing and or detaining the applicant on account of filing this action”,(Italicization is mine again for clarity).
The order granted by the trial Court is simple. The trial Court did not by any stretch of imagination issue an order of perpetual injunction restraining the appellants from inviting or arresting the respondent upon reasonable suspicion of having committed the alleged offence or any other offence. The order of restraint was against inviting, arresting etc the respondent “on account of filing this action”. In other words, the appellants were restrained from inviting, arresting etc the respondent because of his filing the suit. This has nothing to do with and is different from inviting, arresting, etc the respondent on account of existence of reasonable suspicion that he committed the offence alleged against him. The appellants distorted the meaning of the order and gave it a coloration beyond its terms.
In Dasuki V Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 320, 337, it was held that:
“A party is not permitted to read into an order of Court what the order does not infact contain”.
Since the argument of appellants’ counsel is based on a faulty premise his argument goes to no issue and must be discountenanced.
I therefore resolve issue 3 against the appellants.
On the whole, I see no merit in the appeal. It therefore fails and I accordingly dismiss the same. I affirm the judgment of the lower Court.
I assess the costs of this appeal at N100,000.00 in favour of the respondent against the appellants.
ADAMU JAURO, J.C.A.: I have read before now a copy of the judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA. I am in agreement with the reasoning and conclusion therein to the effect that the appeal is lacking in merit and substance.
I adopt the judgment as mine in dismissing the appeal. I abide by all consequential orders made, including that on costs.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem, JCA, made available to me in advance a draft copy of the Judgment just delivered in which this appeal has been dismissed. The issues arising for determination have been comprehensively resolved, and, I adopt these resolutions as mine. I will only make few comments in support.
It has long been settled that where the Constitution gives a right and facts have been proved which prima facie show an infringement, it is for the person alleged to have infringed that right to justify the infringement and not the person whose right has been infringed to exclude all circumstances of justification, per Ayoola, J.C.A. (as he then was), and approved in Director of SSS & Anor v. Agbakoba (1999) LPELR-954(SC) at page 63. The Appellants did not justify the infringement of the rights of the Respondent by his arrest and subsequent degrading treatment. The fact that the Respondent was released speedily is absolutely immaterial in absolving the Appellants of liability for the ab initio infringement of his constitutionally guaranteed rights.
I therefore also dismiss this appeal and abide by the orders made in the lead Judgment, including the order as to costs.
Appearances:
W.N. Oruigoni, Esq. For Appellant(s)
A.M. Owuna, Esq. (holding the brief of Abdulazeez Ibrahim, Esq.) For Respondent(s)