NDLEA & ORS v. BWALA (2022)

NDLEA & ORS v. BWALA

(2022)LCN/17193(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/L/393/2018

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. NATIONAL DRUG LAW ENFORCEMENT AGENCY 2. ISA UMAR ADORO 3. ZIRANGEY SUNDAY DIRANBI APPELANT(S)

And

DAHIRU BWALA RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN FORMULATE ISSUES SUO MOTU

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is trite that jurisdiction is a threshold issue. It is the blood that gives life to an action in a Court of law. It is the bedrock of any judicial proceeding and any action heard and decided without jurisdiction is a nullity. The entire proceeding is a nullity no matter how well conducted. See ODUAH VS. OKADIGBO (2019) 3 NWLR (PT. 1660)433, MUSACONI LIMITED VS. ASPINALL (2013) 14 NWLR (PT. 1375) 435 and UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166)166.
The basis of the complaint of the Appellants on the jurisdiction of the lower Court to entertain the action before it is the pendency of a criminal charge against the Respondent at the time of hearing of the application for the enforcement of fundamental rights.
The law is settled that jurisdiction is the authority by a Court to decide matters brought before it and such authority is conferred by the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by statute. Courts guard their jurisdiction jealously and a Court will not readily divest itself of jurisdiction unless expressly stated by legislation.

See ABDULRAHEEM VS. ODULEYE (2019) 8 NWLR (PT. 1674)269, ATTORNEY GENERAL, LAGOS STATE VS. ATTORNEY GENERAL, FEDERATION (2004) 18 NWLR (PT. 904)1. PER OJO, J.C.A.

THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON

It is further settled that the presumption of innocence enures in favour of a Defendant/Accused Person. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484, BOTU VS. STATE (2018) 3 NWLR (PT. 1607) 410, AJAYI VS. STATE (2013) 9 NWLR (PT. 1360)589 and ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539. The fact of a pending criminal charge against a person for which he has not been found guilty would not deny him access to a Court to enforce his fundamental rights where he feels same has been infringed. Whether or not the action would succeed is a different matter entirely. He still enjoys his fundamental right until he is proven guilty. The presumption of innocence enures in his favour until found guilty. The fact that a person has been accused of a crime no matter how serious will not deny him access to Court to enforce his fundamental right if these rights have been violated. See IHIM VS. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 at 616, Paragraphs C-D and DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483)417 at 473-474, Paragraphs G-A. PER OJO, J.C.A.

THE JURISDICTION OF A HIGH COURT TO HEAR AND DETERMINE APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS

Now, the jurisdiction of a High Court to hear and determine application for enforcement of fundamental rights is vested on it be Section 46 of the Constitution (supra). It is neither a supervisory jurisdiction nor the powers of judicial review. It is far beyond that. It is a special jurisdiction conferred for the purpose of enforcing or securing the fundamental rights of a citizen. Section 46(1) and (2) of the Constitution provide as follows:
“46(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”
The Supreme Court in the case of FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (PT. 842) 113 at 178 PARAGRAPHS A-B, per Uwaifo, JSC held as follows:
“The jurisdiction of the Federal High Court to entertain the action does not depend on whether it was empowered, at the relevant time, to try the offences with which the respondent was charged. What is important is the cause of action which he claims to have. If that cause of action comes within the ambit of the enforcement of any fundamental right contained in Chapter IV in the sense that the respondent alleges that any of the provisions of that chapter has been, is being or likely to be contravened in relation to him, then the Federal High Court is eminently conferred with jurisdiction to entertain the action. The respondent has made it abundantly clear from the nature of his claim, and the questions he asked the Federal High Court to refer to the Court of Appeal, that his allegation is that his fundamental right has been contravened.” PER OJO, J.C.A.

THE POSITION OF LAW ON THE FUNDAMENTAL RIGHTS OF A NIGERIAN CITIZEN

The fundamental right of a Nigerian citizen is guaranteed by the Constitution. It is enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. DIAMOND BANK PLC (2018) 8 NWLR (PT. 1626)270, WEST AFRICAN EXAMINATION COUNCIL VS. ADEYANJU (2008) 9 NWLR (PT. 1092)270 and ODOGU VS. ATTORNEY GENERAL FEDERATION (1996) 6 NWLR (PT. 496)508. Section 35(1) of the Constitution (supra) guarantees the right to personal liberty and it provides 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 procedure permitted by law –
(a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him 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;
(d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.”
The rights guaranteed under Section 35(1) (supra) are not absolute. It permits restriction on individual liberty in the course of judicial inquiry or where the Defendant/accused person is arrested and detained upon reasonable suspicion of having committed a felony. The liberty of a citizen can also be curtailed to prevent him from committing further offence(s). See KALU VS. FEDERAL REPUBLIC OF NIGERIA (2016) 9 NWLR (PT. 1516)1, DOKUBO-ASARI VS. FEDERAL REPUBLIC OF NIGERIA (2007) 12 NWLR (PT. 1048)320 and ECHEAZU V. COMMISSIONER OF POLICE (1974) NMLR 308. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal emanated from the judgment of the Federal High Court, in the Federal Judicial Division holden at Lagos in SUIT NOS: FHC/L/CS/421/2016 BETWEEN DAHIRU BWALA …. APPLICANT AND (1) NATIONAL DRUG LAW ENFORCEMENT AGENCY (NDLEA) (2) ISA UMARU ADORO (3) ZIRANGEY SUNDAY DIRANBI delivered on 5th April 2017.

The case of the Respondent who was a Senior Officer in the service of the National Drug Law Enforcement Agency (the 1st Appellant) is that he was arrested and wrongfully detained in the cell of the Appellant. He brought an application before the lower Court to enforce his fundamental rights.

After hearing all the parties, the lower Court in a considered judgment contained at pages 391 to 407 of the Record particularly at pages 406 to 407 thereof found in favour of the Applicant (instant Respondent) and held as follows:
“It is therefore my findings and I so declare that the Respondents violated the Fundamental Rights of the Applicant and he is entitled to damages that would redress the pain and infringement of his personal liberty without legal justification by the Respondents.
In the circumstances, I hereby make the following orders:
1) An order is made that the arrest and detention of the Applicant for 102 days from 22nd and 7th of March, 2016 to 31st of March, 2016 without an order of a competent Court is unlawful, illegal and unconstitutional and a breach of the Applicant’s right to dignity of human person, personal liberty and freedom of movement as guaranteed by the provisions of Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
2) An order is made compelling the Respondents jointly and severally to pay the Applicant the sum of N7 Million (Seven Million Naira) as damages for the wrongful acts of the Respondents violating the Applicant’s fundamental rights.
3) An order for the payment of interest on the said judgment sum awarded in favour of the Applicant at the rate of 21% per annum until the Judgment sum is paid.”

The Appellants who are dissatisfied with the judgment filed a Notice of Appeal containing nine (9) grounds of appeal on the 28th of June, 2017. The Notice of Appeal is at pages 408 to 418 of the Record. The record of appeal transmitted to this Court on the 28th of March, 2018 was deemed as properly transmitted on the 9th of May, 2019.

Parties filed and exchanged their respective briefs of argument. The Appellants’ brief of argument filed on 1st of November, 2019 was deemed as properly filed and served on the 21st of June, 2021.

The following issues were submitted for determination on behalf of the Appellants:
1) Whether having regards to the affidavit evidence and issues canvassed before the trial Court, the Court was right in coming to the conclusion that the Respondent was detained for 102 days from “22nd and 7th of March, 2016 by the Appellants and “without an order of Court” and therefore an abuse and infringement of the Fundamental Human Rights of the Respondent herein.”
(Grounds 1, 3, 5 and 6)
2) Whether the findings of the trial Court based on his application of the case of AJAO VS. ASHIRU (1973) 8 NSCC 525 at 533 per Elias CJN was not prejudicial to the Appellant which occasioned a miscarriage of justice.
(Grounds 2 and 4)
3) Whether the award of 7,000,000 damages against the Appellant and payment of interest on the said Judgment at the rate of 21% per annum were not arbitrary as they did not follow the principles for award of damages and payment of interests in cases of this nature.
(Grounds 7, 8 and 9)
4) Whether the learned trial Judge had jurisdiction to adjudicate on this case while a criminal charge involving the alleged violation of the Fundamental Human Right of the Respondent was pending against the Respondent before his learned brother the Hon. Justice Saliu Seidu of the same Federal High Court.
(Grounds 1, 4 and 5)

For his part, learned Counsel to the Respondent formulated the following sole issue for determination:
“Whether the trial Court was not right to have awarded damages for the unlawful arrest and detention of the Respondent in this appeal.”

At page 7 of Paragraph 4.01 to 4.03 of the Respondent’s Brief of Argument, his Counsel urged us to discountenance the issues formulated on behalf of the Appellants and the arguments thereon on the ground of proliferation of issues. He submitted at paragraph 4.02 as follows:
“Before proceeding to argue the issue on its merit, it is important to urge the Court to discountenance the issues formulated by the Appellants together with the arguments contained thereon. This is because the Appellants proliferated the issues for determination. Both issues 1 and 5 of the Notice of Appeal the same way issues 2 and 4 are formulated from ground 4 of the Notice of Appeal.”

The Appellants’ issue no. 1 was said to have emanated from grounds 1, 3, 5 and 6 while their issue no. 2 was from grounds 2 and 4. Issue 4 was framed from grounds 1, 4 and 5 of the Notice of Appeal. The law is that while one issue can be framed from more than one ground of appeal, two or more issues cannot be formulated from one ground of appeal. It is undesirable to formulate several issues from a single ground of appeal as the instant Appellants have done. It is a breach of the principles governing formulation of issues in an appeal. See NIGERIAN AGRICULTURAL AND COOPERATIVE BANK LTD VS. OZOEMELAM (2016) 9 NWLR (PT. 1517)376, LABIYI VS. ANRETIOLA (1992) 8 NWLR (PT. 258)139, AGU VS. IKEWIBE (1991) 3 NWLR (PT. 180)385 and YISI NIGERIA LTD VS. TRADE BANK PLC (2013) 7 NWLR (PT. 1357)522.

The settled position of the law is that where such situation exists, a Court can on its own take a look at the Grounds of Appeal and the issues formulated and either adopt the issue(s) formulated by the Respondent or formulate its own issues. See YOUNG SHALL GROW MOTORS LIMITED VS. ONALADA (2021) 3 NWLR (PT. 1763)300, AUWALA VS. FEDERAL REPUBLIC OF NIGERIA (2018) 8 NWLR (PT. 1670)1 AND DADA VS. DOSUNMU (2006) 18 NWLR (PT. 1010)134.
In UNITY BANK PLC VS. BOUARI (2008) 7 NWLR (PT. 1086)372 at 401 Paragraphs C-H, the Supreme Court, per Ogbuagu, JSC held thus:
“Of course, it is now firmly settled that a Court can and is entitled to reformulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity. See the cases of OKORO VS. THE STATE (1988) 5 NWLR (PT. 94)255; (1988) 12 SC 191; (1988) 12 SCNJ 191, LATUNDE & ANOR. VS. BELLO LAJINFIN (1989) 3 NWLR (PT.108) 177; (1989) 5 SC59; (1989) 5 SCNJ 59, AWOJUGBAGBE LIGHT INDUSTRIES LTD. VS. P.N. CHINUKWE & ANOR. (1995) 4 NWLR (PT. 390) 379; (1995)4 SCNJ 162, OGUNBIYI VS. ISHOLA (1996) 4 NWLR (PT. 452)12 AT 24; (1996) 5 SCNJ 143; AND LEBILE VS. THE REGISTERED TRUSTEES OF CHERUBIM AND SERAPHIM CHURCH OF ZION OF NIGERIA UGBOBIA & 3 ORS (2003) 2 NWLR (PT. 804) 399; (2003)1 SCNJ 463. It is now firmly settled that the purpose of reframing issue or issues, is to lead to a more judicious and proper determination of an appeal. In other words, the purpose, is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See the case of MUSA SHA (JNR.) & ANOR VS. DA RAP KWAN & 4 ORS (2000) 8NWLR (PT.670) 685; (2000) 5 SCNJ 101.
It need be stressed and this is also settled that as long as the issue or issues re-framed, is/are anchored on the ground or grounds of appeal, the opposite party, cannot complain. See OGBUANYINYA & ORS VS. OKUDO & ORS (NO.2) (1990) 4 NWLR (PT. 146) 551; (1990) 7 SCNJ 29 AND BANKOLE & ORS. VS. PELU & ORS (1991) 8 NWLR (PT. 211) 523; (1991) 11 SCNJ 108. In MUSA SHAR’S case (supra), Uwaifo, JSC, stated that it would be a misconception to argue that a Court, cannot suo motu, re-formulate an issue arising from a ground of appeal if the interest of justice demands this. That a Court, must have the authority to do that when the grounds of appeal and argument canvassed, permit such a reformulation if the issue formulated by the appellant or respondent, appears awkward or not well framed.”

It is for all of the above that I shall consider the grounds of appeal and the issues formulated by the parties and go on to re-formulate the issue that I find apt for the determination of this appeal. This is in the interest of doing substantial justice. I find the following sole issue apt for the determination of this appeal:
“Whether the learned trial Judge was right when he held that the Appellants violated the fundamental rights of the Respondent and entitled to damages.”

Learned Counsel to the Appellants submitted and urged us to hold that based on the affidavit evidence and issues of law canvassed before it, the lower Court arrived at an erroneous decision. He referred us to averments in the affidavit in support of the application and the counter-affidavit and urged us to hold there was evidence to justify the restraint on the Respondent’s movement. He relied on the cases of OLUJINLE VS. ADEAGBO (1988) 4 SCNJ 1, INCAR (NIG.) LTD VS. ADEGBOYE (1985) NWLR (PT. 8) 453 and SAIDU VS. ABUBAKAR (2008) 12 NWLR (PT. 1100) 201 to support his submission.

On the order directing the Appellants to pay 21% interest, Counsel submitted that interest was not sought and pleaded by the Respondent but raised suo motu by the learned trial Judge. This he said occasioned miscarriage of justice to the Appellants. He called in aid of his submissions the cases of OJELEYE VS. REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA (2008) 15 NWLR (PT. 1111) 520 and LEADERS AND CO. LTD VS. BAMAIYI (2010) 18 NWLR (PT. 1225)329.

On the award of damages made by the lower Court, he submitted same was not based on any known principle and there was no justification for the award. He argued that the award is excessive, perverse and unrealistic and called in aid of his submission the cases of ODOGU VS. ATTORNEY-GENERAL OF THE FEDERATION (1996) 6 NWLR (PT. 456)508, ILOUNO VS. CHIEKWE (1991) 2 NWLR (PT. 173)316 AT 318 and WAEC VS. KOROYE (1977) SC AT 45.

He finally urged us to hold that the lower Court lacked jurisdiction to entertain the Respondent’s action and allow the appeal. Arguing per contra, learned Counsel to the Respondent submitted and urged us to hold that the Respondent established by affidavit evidence that his fundamental rights were breached by the Appellants. He referred us to pages 233 to 238 of the record on facts of the arrest and detention of the Respondent by the Appellants. He urged us to note that the affidavit evidence detailing the Respondent’s arrest was neither challenged, discredited nor contradicted and was such that could be relied upon by the lower Court. He craved in aid of his submission the cases of CHABASAYA VS. ANWASI (2010) 10 NWLR (PT. 1201)163 and BALONWU VS. OBI (2007) 5 NWLR (PT. 1028)488.

He further submitted that contrary to the submission of Appellants’ Counsel, the learned trial Judge did a proper evaluation of the affidavit evidence before him and was right when he held that the case exemplified the abuse of power and highhandedness on the part of the Appellants.

The action before the lower Court which is the subject of this appeal is an application for the enforcement of his fundamental rights filed by the instant Respondent as Applicant. The Appellants have challenged the jurisdiction of the lower Court to entertain, hear and determine the application.

It is trite that jurisdiction is a threshold issue. It is the blood that gives life to an action in a Court of law. It is the bedrock of any judicial proceeding and any action heard and decided without jurisdiction is a nullity. The entire proceeding is a nullity no matter how well conducted. See ODUAH VS. OKADIGBO (2019) 3 NWLR (PT. 1660)433, MUSACONI LIMITED VS. ASPINALL (2013) 14 NWLR (PT. 1375) 435 and UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166)166.

The basis of the complaint of the Appellants on the jurisdiction of the lower Court to entertain the action before it is the pendency of a criminal charge against the Respondent at the time of hearing of the application for the enforcement of fundamental rights.

The law is settled that jurisdiction is the authority by a Court to decide matters brought before it and such authority is conferred by the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by statute. Courts guard their jurisdiction jealously and a Court will not readily divest itself of jurisdiction unless expressly stated by legislation.

See ABDULRAHEEM VS. ODULEYE (2019) 8 NWLR (PT. 1674)269, ATTORNEY GENERAL, LAGOS STATE VS. ATTORNEY GENERAL, FEDERATION (2004) 18 NWLR (PT. 904)1.

It is further settled that the presumption of innocence enures in favour of a Defendant/Accused Person. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484, BOTU VS. STATE (2018) 3 NWLR (PT. 1607) 410, AJAYI VS. STATE (2013) 9 NWLR (PT. 1360)589 and ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539. The fact of a pending criminal charge against a person for which he has not been found guilty would not deny him access to a Court to enforce his fundamental rights where he feels same has been infringed. Whether or not the action would succeed is a different matter entirely. He still enjoys his fundamental right until he is proven guilty. The presumption of innocence enures in his favour until found guilty. The fact that a person has been accused of a crime no matter how serious will not deny him access to Court to enforce his fundamental right if these rights have been violated. See IHIM VS. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 at 616, Paragraphs C-D and DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483)417 at 473-474, Paragraphs G-A.

The pendency of a criminal action against a person would not deny him access to a Court to enforce his fundamental rights enshrined in the Constitution and I so hold.

Now, the jurisdiction of a High Court to hear and determine application for enforcement of fundamental rights is vested on it be Section 46 of the Constitution (supra). It is neither a supervisory jurisdiction nor the powers of judicial review. It is far beyond that. It is a special jurisdiction conferred for the purpose of enforcing or securing the fundamental rights of a citizen. Section 46(1) and (2) of the Constitution provide as follows:
“46(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”
The Supreme Court in the case of FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (PT. 842) 113 at 178 PARAGRAPHS A-B, per Uwaifo, JSC held as follows:
“The jurisdiction of the Federal High Court to entertain the action does not depend on whether it was empowered, at the relevant time, to try the offences with which the respondent was charged. What is important is the cause of action which he claims to have. If that cause of action comes within the ambit of the enforcement of any fundamental right contained in Chapter IV in the sense that the respondent alleges that any of the provisions of that chapter has been, is being or likely to be contravened in relation to him, then the Federal High Court is eminently conferred with jurisdiction to entertain the action. The respondent has made it abundantly clear from the nature of his claim, and the questions he asked the Federal High Court to refer to the Court of Appeal, that his allegation is that his fundamental right has been contravened.”
It is clear from all of the above that the jurisdiction of the lower Court to hear and determine the application to enforce his fundamental right filed by the instant Respondent before it has no connection whatsoever with the pendency of any criminal charge against him before the Court or any other Court of competent jurisdiction. What matters is the principal relief endorsed on the application filed. The Respondent from the relief sought alleged that his fundamental right has been breached by the Appellants. The lower Court was therefore right when it assumed jurisdiction to hear and determine the application filed by the Respondent and I so hold.

Let me recap that that Respondent took out an application to enforce his fundamental rights against the Appellants before the lower Court which found in his favour and awarded damages against the Appellants. The Appellants have argued that the conclusion reached by the trial Judge was erroneous.

The Respondent in the affidavit in support of his application gave the details of his first arrest and detention.

The relevant paragraphs are paragraphs 19 to 23 and 29 to 34 of the affidavit (supra) which I reproduce hereunder:
19. That the Applicant was at his Area Command on 22nd November, 2015 when he received a phone call from his State Commander at Ibadan, Mr. Faboyede Omolade requesting him to come down to Ibadan for a major sting operation.
20. That upon getting to the state command, the Applicant was further informed by the state commander to report at the National Headquarters of the 1st Respondent which the Applicant did without hesitation.
21. That the Applicant immediately without hesitation embarked on a journey to Lagos in order to report at the Headquarters of the 1st Respondent at 4, Shaw (Onigbale) Road, Ikoyi, Lagos.
22. That upon getting to the headquarters, the Applicant was surprised when his mobile handset was seized from him and was immediately placed under arrest and escorted to the cell of the 1st Respondent at 4, Shaw (Onigbale) Road, Ikoyi, Lagos under the direct order of the 2nd Respondent.
23. That the Applicant was arrested on the 22nd November, 2015 and abandoned in detention up until the 8th February, 2016.

29. The Respondents intentionally kept the Appellant on detention while investigations leading to the institution of charge No. FHC/L/519c/15 – FRN VS UBAH HARRIS ALAEKWE & ORS was still going on just to humiliate and embarrass him.
30. That on 7th of December, 2015 the 1st-13th Defendants in Charge No: FHC/L/519c/15- FRN Vs. UBAH HARRIS ALAEKWE & ORS were arraigned before Saidu, J. of the Federal High Court, Lagos.
31. That the Applicant who is the 14th Defendant in Charge No: FHC/L/519c/15 – FRN Vs. UBAH HARRIS ALAEKWE & ORS was not arraigned with the other Defendants as the Respondents refused to release the Applicant from their custody or produce him in Court.
32. That the Applicant was released on bail on the 8th February, 2016 (after seventy-eight (78) days) upon intervention of the Chairman of the 1st Respondent, Mohammed Mustapha Abdullah who was at the cell of the 1st Respondent at detention center Ruxton Road, Ikoyi, Lagos for inspection.
34. That the applicant spent the entire Christmas and New Year holiday/break of 2015 in detention unjustifiably without a valid Court order or a proper charge being brought against the applicant in a competent Court of law.

The Respondent gave details of his second arrest and detention at paragraphs 35 to 40 which read thus:
35. That the Applicant was again surprised on the 7th March, 2016 as he was re-invited to the headquarters and thereafter arrested again by the 3rd Respondent. The 3rd Respondent ordered the Applicant’s arrest and detention and also signed the arrest form.
36. That upon the Applicant’s second arrest and detention, a letter dated 25th February, 2016 with Reference No. NDLEA/CON/24/VIII was served on him on 8th March, 2016. The letter which was headed Notice of Punishment is supposedly a letter terminating the Applicant’s appointment with the 1st Respondent from its content.
A copy of letter dated 25th February, 2016 with Reference No. NDLEA/CON/24/VIII issued and served on the Applicant on the 8th March, 2016 is attached as Exhibit “D”.
37. That subsequent to the Applicant’s second arrest and continued detention, he has not been allowed bail or produced in Court.
38. That the Respondents kept the Applicant in detention from 7th March, 2016 – when he was eventually arraigned before Hon. Justice Saidu in Charge No. FHC/L/519c/15- FRN VS. UBAH HARRIS ALAEKWE & ORS.
39. That the Applicant’s detention has severely affected his health and general well-being and that of the members of his family and dependents as he has been subjected to undue trauma and also made to suffer grave physical and emotional hardship.
40. That the Applicant was harassed and traumatized by the collective acts of the Respondents and by virtue of which effect he continues to suffer both physically and emotionally.

The Respondent deposed to the fact that he was a Senior Officer of the 1st Appellant and that he was still in that capacity when he was invited by the Appellants to its National Headquarters where he was arrested and detained from 22nd November, 2015 to 8th of February, 2016. He was further re-invited on 7th of March, 2016 and detained again. It is trite that a person who admits the detention of another by him has a duty to prove that the detention was lawful. See DIRECTOR STATE SECURITY SERVICES VS. AGBAKOBA (1999) 3 NWLR (PT. 595)314, ABIOLA VS. FEDERAL REPUBLIC OF NIGERIA (1995) 7 NWLR (PT. 405)1 and HASSAN VS. ECONOMIC AND FINANCIAL CRIMES COMMISSION (2014) 1 NWLR (PT. 1389)607.

The Appellants in their Counter-Affidavit filed in opposition to the application at the lower Court did not deny the detention of the Respondent by them. The relevant paragraphs are paragraphs 9, 10, 11, 12, 13, 23, 24, 25, 26 and 27 of their Counter-Affidavit where they deposed as follows:
9. That there is a unit in the 1st Respondent known as the Special Enforcement Team (SET) which specialises in handling complex drug cases of international dimensions.
10. That pursuant to its mandate, the Special Enforcement Team of the Respondent which had been on the trail of this particular Drug Trafficking Organisation one Ubah Harris Alaekwe aka “Etochukwu Alaekwe Ubah”, “Eoth Ubah”, and “Toscani” on 18th day of November, 2016 at the Murtala Muhammed International Airport, Lagos while trying to escape out of the country while exporting 266 Kilogrammes of Methamphetamine a drug similar to Cocaine, Heroin and LSD and 310 Kilogrammes of Epherine a controlled substance for the Drug Trafficking Organization.
11. That several other members of the drug trafficking organisation were also arrested having been closely monitored for over two years.
12. That in the course of the investigation into the case, overwhelming evidence gathered revealed that the Applicant who was also already been closely monitored for involvement in the activities of the Drug Trafficking Organization was deeply involved by facilitating the exportation of hard drugs by the Drug Trafficking Organization.
13. That the accused/Applicant who was a staff of the Respondent was found to have conspired with the other Defendants in the exportation of 310kgs of Ephedrine hydrochloride a controlled substance and 266kgs of Methamphetamine a drug similar to Cocaine, Heroin and LSD.
23. That by its nature, the 1st Respondent is a Para-military Out-fit and therefore a regimented organisation with distinct rules of engagement.
24. That in view of the gravity of the Offence the Applicant was invited to the Head Office of the 1st Respondent in July, 2015 for investigation and thereafter, placed on restricted movement in line with the Terms and Conditions of Service (NDLEA Order) 2001 as amended in 2014 pending the outcome of investigations.

25. That the Applicant had reliable information that the Applicant had made arrangements for escape once he was found out.
26. That he was released on administrative bail when the board of the 1st Respondent was dissolved by the Federal Government since his case could not be concluded without a board being a Senior Officer.
27. That the Applicant was detained again on the 10th of March, 2016 because a formal charge was filed in Court against him and the 1st Respondent were obliged to produce him for arraignment. A copy of the charge is attached herewith and marked as EXHIBIT NDLEA 3.

The Appellants who did not deny the arrest and detention of the Respondent had a duty to prove the arrest and detention was lawful.

The fundamental right of a Nigerian citizen is guaranteed by the Constitution. It is enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. DIAMOND BANK PLC (2018) 8 NWLR (PT. 1626)270, WEST AFRICAN EXAMINATION COUNCIL VS. ADEYANJU (2008) 9 NWLR (PT. 1092)270 and ODOGU VS. ATTORNEY GENERAL FEDERATION (1996) 6 NWLR (PT. 496)508. Section 35(1) of the Constitution (supra) guarantees the right to personal liberty and it provides 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 procedure permitted by law –
(a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him 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;
(d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.”
The rights guaranteed under Section 35(1) (supra) are not absolute. It permits restriction on individual liberty in the course of judicial inquiry or where the Defendant/accused person is arrested and detained upon reasonable suspicion of having committed a felony. The liberty of a citizen can also be curtailed to prevent him from committing further offence(s). See KALU VS. FEDERAL REPUBLIC OF NIGERIA (2016) 9 NWLR (PT. 1516)1, DOKUBO-ASARI VS. FEDERAL REPUBLIC OF NIGERIA (2007) 12 NWLR (PT. 1048)320 and ECHEAZU V. COMMISSIONER OF POLICE (1974) NMLR 308.

The question now is whether the Appellants who admitted the arrest and detention of the Respondent justified their action when they placed reliance on a document called Terms and Conditions of Service (NDLEA Order), 2001 amended in 2014.

The case of the Appellants as contained in the Counter-Affidavit is that the arrest and detention of the Respondent was in line with the Terms and Conditions of Service (NDLEA Order), 2001 as amended and also to prevent him from escaping. They further claim that his detention for the second time was for the purpose of his arraignment before a Court of law.

It is significant to note that the NDLEA order relied on by the Appellants was not produced before the lower Court. The Appellants did not exhibit it to their Counter-Affidavit. It is elementary law that a party who leads evidence of the existence of a document in proof of his case is obliged to present it before the Court. Generally, the law does not allow oral evidence in proof of a document. See ABUBAKAR VS. WAZIRI (2008) 14 NWLR (PT. 1108)507; OFOMAJA VS. COMMISSIONER FOR EDUCATION (1995) 8 NWLR (PT. 411)69.
A Court of law has no business pronouncing on a document which is not before it. In the instant appeal, the Appellants who relied on a document to justify the arrest and detention of the Respondent did not produce it before the Court. The lower Court and indeed this Court has no business pronouncing on it and it cannot place any reliance on it in the determination of the application.

The enabling statute of the 1st Appellant is the National Drug Law Enforcement Agency Act, Laws of the Federation, 2004. A careful perusal of the Act shows that by virtue of Section 41(1)(b)(iii) of the Act, the 1st Appellant possess the power to arrest and detain any person whom it believes has committed an offence under the Act. Such powers must however be exercised within the ambits of the law.

The Appellants in their Counter-Affidavit averred that due to the gravity of the offence committed, the 1st Respondent was invited to the 1st Appellant’s headquarters for investigation and thereafter placed on restricted movement. The Respondent for his part averred at paragraph 23 of the affidavit in support that he was arrested and detained on 22nd November, 2015 and remained in detention until 8th February, 2016.

It has been settled in a line of judicial authorities that it is unlawful to arrest a person until there is sufficient evidence to charge and caution him and that it is unconstitutional to arrest a person pending investigation. In other words, it is unlawful to arrest a person when investigation of the alleged crime is still on and there is no prima facie evidence that the suspect has committed the offence or reasonable suspicion that he has done so. Arrest and detention before investigation is unconstitutional. See FAWEHINMI VS. INSPECTOR-GENERAL OF POLICE (2002) 7 NWLR (PT. 767)606, DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483) 417 AND OGOR VS. ROLAND & COMMISSIONER OF POLICE (1983) 1 NCR 343.

The Appellants in their Counter-Affidavit filed at the lower Court admitted unequivocally that the Respondent was detained. There is a limit to the power of arrest granted to the 1st Appellant. Such power must be exercised in accordance with the law. They cannot arrest pending investigation. To do so is in violation of the law. The Appellants in paragraph 24 of their Counter-Affidavit deposed as follows:
“That in view of the gravity of the offence, the Applicant was invited to the Head Office of the 1st Respondent in July 2015 for investigation and thereafter placed on restricted movement in line with the Terms and Conditions of Service (NDLEA Order) 2001, as amended in 2014.”

It is evident from the above deposition that the Appellants admitted restricting the movement of the Respondent pending investigation. The Appellants did not deny allegation that they arrested and detained the Respondent from 22nd November, 2015 to 8th February, 2016. All this talk about restriction of Respondent’s movement from July 2015 as deposed to by the Appellants cannot be a justification for his arrest and detention. To my mind, it is all a cock and bull story. The facts contained in the affidavit in support of the application are clear and unambiguous. He gave dates of his arrest and detention. In the circumstance, the Appellants had a duty to present evidence to justify their act but they failed to do.

The Appellants further claim that the second arrest and detention of the Respondent was for the purpose of bringing him before a Court of law. The law allows the detention of a person for a reasonable time for the purpose of his arraignment. See Section 35(4) and (5) of the Constitution (supra) which provides as follows:
(4) Any person who is arrested or detained in accordance with Subsection (1)(c) of this Section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail.
He shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In Subsection (4) of this section, the expression “a reasonable time” means-
(a) in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.

By the above constitutional provision, where a person’s liberty is restrained for the purpose of bringing him before a Court upon reasonable suspicion of his having committed a criminal offence, this shall be done within a reasonable time. Reasonable time in the case of where the Court is within forty Kilometers radius is twenty-four hours. See AKILA VS. DIRECTOR GENERAL, STATE SECURITY SERVICES (2014) 2 NWLR (PT. 1392)443.
From the affidavit evidence before the lower Court, the Respondent was detained at the Appellants’ Office situate at Ruxton Road, Ikoyi, Lagos. It is a fact of common knowledge that Ikoyi is within the Lagos metropolis and there are Courts within forty Kilometres radius of the place where the office of the 1st Appellant is situate. The Appellants in their Counter-Affidavit deposed that the Respondent who was to have been arraigned on the 21st of March, 2016 could not be arraigned until 19th of April, 2016. He was detained within this period without any valid Court Order. The detention of the Respondent by the Appellant was done in gross violation of the provisions of Section 35(4) and (5) of the 1999 Constitution (supra).

From all of the above, it is my considered view that the Appellants were unable to justify the arrest and detention of the Respondent and I so hold.

The Appellants have also made a heavy weather of the findings made by the learned trial Judge that the Respondent was unlawfully detained for 102 days from 22nd and 7th March, 2016. Appellants’ Counsel submitted the learned trial Judge in arriving at his decision did not take into cognizance the fact that the Appellants may by law detain the Respondent for 48 hours. It is for this reason that he argued that the lower Court was wrong when it held that the arrest and detention of the Respondent for 102 days without an Order of Court is unlawful, illegal and unconstitutional.

I agree that the lower Court ought to have taken into cognizance the number of days for which the Appellant could detain the Respondent under the law before concluding his arrest and detention was unlawful. It is however not in doubt that from the undisputed affidavit before the Court, the Appellants detained the Respondent longer than the time allowed by law without an Order of Court.
The law is settled that it is not every error or mistake by a Court that would warrant the reversal of the decision reached in the proceedings. Such decision would be reversed only where there is a miscarriage of justice. See ETIM VS. AKPAN (2019) 1 NWLR (PT. 1654)451, ONTARIO OIL AND GAS LIMITED VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1636)197, AIYEOLA VS. PEDRO (2014) 13 NWLR (PT. 1424)409, UKIRI VS. GECO PRAKLA NIGERIA LIMITED (2010) 16 NWLR (PT. 1220)544.

The mistake made by the learned trial Judge did not occasion a miscarriage of justice and I so hold. His decision would therefore not be set aside because he failed to take into consideration the number of days the Appellants could keep the Respondent without taking him before a Court of law. I am in complete agreement with the learned trial Judge when he held at page 406 of the Record as follows:
“In instances of abuse of power and highhandedness by the Police, the Supreme Court in the case of AJAO VS. ASHIRU (1973) 8 NSCC 525 at 533, per Elias CJN (as he then was) comes to mind, wherein he stated:
“It cannot be over-emphasised in both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The Courts will frown upon any manifestation of arbitrary power assumed by anyone over the life or property of another even if that other is suspected of having breached some law or regulation.
I agree with the submission of the Applicant’s Counsel that there is no provision of the law that empowers the Respondents to arrest and detain the Applicant in a manner contrary to Section 35 of the 1999 Constitution of the Federal Republic of Nigeria as amended and where there is an excess violation of the constitutional provision by the Respondents, the Applicant is entitled to enforce his rights under the Fundamental Rights (Enforcement Procedure) Rules 2009.”

I do not have any reason to interfere with the above finding of the learned trial Judge.

On the award of damages made by the learned trial Judge, learned Counsel to the Appellants have argued that the award of Seven Million Naira and payment of interest thereon is arbitrary. He argued that the trial Judge did not follow the principles for award of damages and payment of interests.

The appropriate remedy to redress violation of fundamental rights of a citizen is provided for under Section 35(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It provides as follows:
“Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person and in this subsection, “the appropriate authority or person” means an authority or person specified by law.”
By the above provision, once it is established that a person has been unlawfully arrested or detained, he is entitled to compensation and public apology. The award of damages in such circumstance is at the discretion of the Judge. The fundamental rights enforcement proceeding is a special procedure different from ordinary civil matters where a claim for damages resulting from a proven injury has to be specifically pleaded and proved. The consideration is that whatever compensation is awarded should reflect not only the pecuniary loss of the victim but also the abhorrence of society and the law for such gross violation of human rights. See MUHAMMAD VS. INSPECTOR GENERAL OF POLICE (2019) 4 NWLR (PT. 1663)492, FIRST BANK OF NIGERIA PLC VS. ATTORNEY-GENERAL OF THE FEDERATION (2018) 7 NWLR (PT. 1617)121, JIM-JAJA VS. COMMISSIONER OF POLICE (2013) 6 NWLR (PT. 1350)225.
In FIRST BANK OF NIGERIA PLC VS. ATTORNEY-GENERAL OF THE FEDERATION (SUPRA) Augie, JSC at Pages 162 to 163, Paragraphs E-A held as follows:
“In the final analysis, the decision of the Court of Appeal stands, but the award of N750,000 as damages must be reviewed upwards. What is the appropriate amount in the circumstances of this case?
In fixing an amount for the infringement of fundamental rights, the following factors inter alia may be taken into consideration – see Arulogun v. C.O.P., Lagos State & Ors (2016) LPELR-40190 (CA) –
(a) The frequency of the type of violation in recent times;
(b) The continually depreciating value of the naira;
(c) The motivation for the violation;
(d) The status of the applicant;
(e) The undeserved embarrassment meted out to the applicant including pecuniary losses; and
(f) The conduct of the parties generally, particularly the respondent.
In this case, the second to fifth appellants, who are chief key officers of the first appellant, were arrested and detained for over 24 hours. There is nothing extraordinary to justify imposing a very high amount but the award of damages made by the Court below is much too low. I take a middle ground and increase the amount to one million naira each to the second, third, fourth, and fifth appellants, and I so order.”

It is very significant at this stage to consider the conduct of the parties particularly the Appellants who were the Respondents at the lower Court. The Appellants not only admitted arresting and detaining the Respondent on the dates contained in the affidavit in support of the motion, they further stated that they started restricting his movement prior to his arrest and detention. I find the totality of the conduct of the Appellants reprehensible moreso that the Respondent was a serving Senior Officer of the 1st Appellant at the time of his ordeal. A person is presumed innocent until proved guilty by a Court of law. The Appellants took the law into their hands and their action is a gross abuse of power. I do not find any reason to disturb the award of seven million Naira made by the lower Court.

The Appellants further complained about the 21% post-judgment interest awarded by the trial Court. The lower Court made an order for the payment of interest on the judgment sum at the rate of 21% per annum until the judgment sum is fully liquidated in favour of the Respondent. While I agree that an award of post-judgment interest by a trial Court is discretionary, the Rules of Court however provide for the limit of such interest. Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019 which is applicable to the lower Court provides as follows:
“5. The Judge at the time of making any judgment or order or at any time afterwards may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order or from same after point of time, as the Judge deems fit and may order interest at a rate not exceeding ten percent per annum to be paid upon any judgment.”
By the rules of the lower Court, award of 21% post-judgment interest made by the learned trial Judge is ultra vires his powers. The maximum he could award is 10%. I find merit in the complaint of the Appellants on the post-judgment interest of 21% awarded by the trial Court. See EKWUNIFE VS. WAYNE WEST AFRICA LTD (1989) 5 NWLR (PT. 122)422 and HIMMA MERCHANTS LTD VS. ALIYU (1994) 5 NWLR (PT. 347)667. The award of 21% post-judgment interest made by the trial Judge is hereby set aside. I have however considered the continued depreciation of the Naira and agree that the Respondent is entitled to interest on the damages awarded. I therefore make an order that the Appellant shall pay to the Respondent 10% interest per annum on the damages of Seven Million Naira awarded in his favour with effect from 5th April, 2017 until same is fully liquidated.

In conclusion, I set aside the award of 21% interest made by the lower Court and order that the Appellant pay to the Respondent 10% interest per annum on the damages of Seven Million Naira awarded in favour of the Respondent with effect from 5th April, 2017 until the judgment sum is fully liquidated. I affirm the judgment of the lower Court and all orders made by it except the award of 21% post-judgment interest.

The appeal succeeds in part.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead judgment of my learned brother, FOLASADE AYODEJI OJO, JCA just delivered. I agree with my Lord’s analysis and conclusion on the issues in the appeal.

I will also emphasise that Nigeria is under a democratic rule and not a military regime. A situation where Law Enforcement Agencies detain Nigerian citizens or even Non-Nigerians with impunity can no longer be tolerated.

In this case, the Appellants in their Counter-Affidavit filed in opposition to the application at the trial Court did not deny the detention of the Respondent. The relevant paragraphs are 9, 10, 11, 12, 13, 23, 24, 25, 26 and 27 of their counter-affidavit.

A careful reading of the counter-affidavit would reveal that the Appellants did not deny the arrest and detention of the Respondent and they were unable to prove that the detention was lawful. Section 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees the right to personal liberty of all Nigerians.

In my view, the Respondent made out a case for the infringement of his fundamental rights to liberty at the trial Court and he is entitled to compensation.
See Jim-Jaja vs. C. O. P. (2013) 6 NWLR Part 1350 Page 225(SC).

Consequent upon the foregoing and in view of the detailed reasons contained in the lead judgment, I am of the view that this appeal lacks merit and it is hereby dismissed.

ABBA BELLO MOHAMMED, J.C.A.: I have read a draft of the lead judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA. I am in full agreement with the reasoning and conclusions stated therein.

The Appellants have challenged the jurisdiction of the trial Court to entertain the Respondent’s fundamental rights enforcement suit on the ground that there was a pending criminal charge against him. On this, I hasten to state that the pendency of a criminal charge does not prevent the pursuit of a civil remedy where such a remedy exists. See NWAOBOSHI & ORS v FRN (2018) LPELR-45107(CA) per Ogakwu. JCA at pages 20 – 23. para. A and FRN v LALWANI (2013) LPELR-20376(CA) per Mbaba, JCA at pages 16 -19. para. F. Indeed, it is in line with this trite principle that the Evidence Act, 2011 has provided different standards of proof for criminal and civil causes. By Section 134 the standard of proof in civil proceedings is on the balance of probabilities and the burden of such proof oscillates between parties depending upon the one who alleges a particular fact and who will fail if no evidence is adduced in proof of that fact. See INTERDRILL (NIG) LTD & ANOR v UBA PLC(2017) LPELR-41907(SC) per Rhodes-Vivour JSC at page 26 para. C. As for criminal causes, Section 135 of the Evidence Act, 2011 imposes a standard of proof that is beyond reasonable doubt, and the burden is statically on the prosecution because the defendant is constitutionally presumed innocent until proven guilty by the prosecution. See UGBOJI v STATE(2017) LPELR-43427(SC) per Sanusi JSC at page 28. para. C.
For a fundamental rights enforcement suit, Section 46 of the 1999 Constitution specifically provides that any person who alleges that any of his fundamental rights provided in Chapter IV of the Constitution has been, is being or is likely to be contravened in any State, may apply to a High Court in that State for redress. Hence, the pendency of a criminal charge against the Respondent NEITHER bars the Respondent from pursuing his fundamental rights enforcement suit NOR robs to the trial Court, the Federal High Court of jurisdiction to entertain the suit.

As for the substance of the appeal, the Respondent’s essential complaint before the trial Court was that his rights to dignity of human person, personal liberty and freedom of movement as guaranteed by Section 35 and 41 of the 1999 Constitution were infringed by the Appellants when they arrested and detained him for 102 days.

It is beyond doubt that by Section 35(1)(c) of the 1999 Constitution investigative agencies which are statutorily conferred with powers of arrest may arrest and detain any person upon reasonable suspicion of his committing a crime. This constitutional power has indeed been re-echoed and restated in several judicial decisions: FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606 at 670, ONAGORUWA v THE STATE (1993) 7 NWLR (Pt. 303) 28, OKAWU v IMO STATE COMMISSIONER OF POLICE (2001) 1 CHR 407 AND ASCO INVESTMENTS LTD & ANOR v EZEIGBO & ANOR (2015) LPELR-24460(CA) per Tur, JCA at pages 43-44. paras. F – A. It is however pertinent for me to state that the power of arrest and detention of persons upon reasonable suspicion expressly conferred under Section 35(1)(c) is not absolute, as it is limited by the procedure outlined in Subsections (4) and (5) of Section 35 of the 1999 Constitution. By Section 35(4) of the 1999 Constitution, any person so arrested shall be brought to a Court of law within reasonable time. Subsection (5) of the same Section then defines ‘reasonable time’ to mean, “in the case of an arrest and detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day, and in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.”
By the procedure under Subsection (4) and (5) of Section 35 of the Constitution, the power of the investigative agencies to arrest and detain upon reasonable suspicion is therefore, limited to a period of one day where there is a Court of competent jurisdiction within forty kilometres, or in any other case, two days or such longer period considered reasonable by the Court.

In the instant appeal, the Record of Appeal, particularly the affidavit evidence of the parties before the trial Court, which was succinctly reproduced and analyzed in the lead judgment just delivered, shows that the Appellants NEITHER controverted the fact that the Respondent was detained by them for the said period NOR advanced any legal justification for detaining the Respondent beyond the constitutionally allowed period and blatant contravention of the Respondent’s rights to dignity of human person, personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the 1999 Constitution. As held by this Court in FAJEMIROKUN v C.B. (C. l.) NIG. LTD. (2002) 10 NWLR (Pt. 744) 94, per Sanusi JCA (as he then was), where the Applicant has placed evidence of infringement of his fundamental rights, the burden then shifts to the Respondent to provide legal justification.
In the instant appeal, the Appellants have not provided any legal justification for detaining the Respondent beyond the constitutionally allowed period. By Section 35(6) of the 1999 Constitution, the Respondent is entitled to compensation and for public apology from the Respondents. I therefore join in holding that the trial Court was right to have found for the Respondent and awarded the damages in his favour.

On the order by the trial Court for payment of 21% post-judgment interest, it is trite to state that discretion of the Court to award post-judgment interest, though discretionary, it is circumscribed by statute or rules of Court. In other words, the discretion of the Court to award post-judgment interest is limited to the maximum percentage allowed by the statute of rules of Court. In the instant case, the trial Court is the Federal High Court sitting in Lagos. Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules, both of 2009 and of 2019 provides that:
5. The judge at the time of making any Judgment or order or at any time afterwards, may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order or from some other point of time, as the judge deems fit and order interest at rate not exceeding ten percent per annum to be paid upon any judgment.
By the rules of the trial Court therefore, the learned trial judge could only award post-judgment interest to the limit of 10% per annum of the judgment sum. In CHURCHGATE (NIG.) LTD v UZU (2005) LPELR-11404(CA), this Court, per Aka’ahs, JCA (as he then was) similarly held that the learned trial judge was in error when he awarded post-judgment interest of per annum beyond the maximum interest of allowed by Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994.
See also N.I.D.B. v DE-EASY LIFE ELECTRONICS (1999) 4 NWLR (Pt. 597) 8, BERLIET NIGERIA LIMTED v KACHALLA (1995) 9 NWLR (Pt. 420) 478, HIMMA MERCHANTS LIMITED v ALIYU (1994) 5 NWLR (Pt.347) 667, EKWUNIFE V. WAYNE (WEST AFRICA) LIMITED (1989) 5 NWLR (Pt. 122) 422 and JOSCO AG. GLOBAL RESOURCES LTD & ANOR v AMCON (2018) LPELR-45637(CA), per Abiru. JCA at pages 64 – 65. para. B.

In the circumstance, I concur with the elaborate reasoning and conclusions in the lead judgment of my learned brother FOLASADE AYODEJI OJO, JCA, to the effect that this appeal partially succeeds only in relation to the award of post-judgment interest. Thus, while affirming the judgment of the trial Court, I also set aside the award of 21% post-judgment interest by the learned trial judge and substitute same with an award of post-judgment interest of 10% per annum of the judgment sum, from the of April, 2017, the date of the judgment, until same is fully liquidated.