Fundamental Right Enforcement

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – SUIT NO: HOW/386/2023- NZE ANTHONY MGBEMERE & ORS V. PASTOR IKEDI EKWONYE & ORS -In the absence of Counter Affidavit of the Respondents, the onus is still on the Applicants to prove their case- The general position of the law in Nigeria is that parties are expected to file all their evidence and submissions before the final hearing of a matter- However, the courts have also recognized the need for some flexibility, especially in the interest of doing substantial justice

Admin Editor

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

THIS TUESDAY THE 6TH DAY OF NOVEMBER 2024

                                                      SUIT NO: HOW/386/2023

IN THE MATTER OF APPLICATION BY NZE ANTHONY MGBEMERE, TOCHUKWU MGBEMERE, ATHANASIUS NKWOCHA, KENNETH ABARA NKWOCHA, THEOPHILUS NKWOCHA, ANSELEM NKWOCHA, VINCENT OPARA, ONYEKACHI MGBEMERE, ONYEKACHI ODOGWU AND CAJETAN ONYENOBI FOR THE, ENFORCEMENT OF THEIR FUNDAMENTAL RIGHTS

BETWEEN

1 .    NZE ANTHONY MGBEMERE

  1. TOCHUKWU MGBEMERE
  2. ATHANASIUS NKWOCHA
  3. KENNETH ABARA NKWOCHA
  4. THEOPHILUS NKWOCHA                   APPLICANTS
  5. ANSELEM NKWOCHA
  6. VINCENT OPARA
  7. ONYEKACHI MGBEMERE
  8. ONYEKACHI ODOGWU
  9. CAJETAN ONYENOBI

AND

  1. PASTOR IKEDI EKWONYE
  2. SULE,

(INVESTIGATION POLICE OFFICER

C/O QUICK INTERVENTION TEAM

(Q.I.T) UNIT STATE CID OWERRI,

IMO STATE

  1. DSP. ISSAIH GABBA

(O/C QUICK INTERVENTION TEAM             RESPONDENETS

STATE CID OWERRI, IMO STATE

  1. COMMISSIONER OF POLICE, IMO STATE
  2. AIG ZONE 9 POLICE HDQS:

UMUAHIA, ABIA STATE)

  1. INSPECTOR GENERAL OF POLICE

JUDGMENT

By motion on notice dated 20th day of April 2023 and filed on the same day and said to be brought pursuant to sections 34, 35, 41, 46 of the 1999 Constitution of the Federal Republic of Nigeria_(as amended) and Order II Rules 2,3,4,5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and Under the Inherent Jurisdiction of this Honourable Court, the Applicants pray as follows:

  1. A DECLARATION that the arrest and detention of the Applicants by the 2nd and 3rd Respondents at the active connivance and/or instigation of the 1st Respondent for no offence known to law on the 29th day of January 2023 and other dates is unlawful and contrary to sections 35 and 41 respectively of the 1999 constitution of the Federal Republic of Nigeria (As Amended).
  2. A DECLARATION that the continued harassment, embarrassment, threat to re-arrest and further detain the Applicants by the 2nd and 3rd Respondents at the behest of the 1st Respondent for no justification in law is unlawful and contrary to sections 34, 35 and 41 respectively of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).
  3. A DECLARATION that the use of threat and coercion by the 2nd and 3″ Respondents to compel the Applicants to be reporting to the Police thrice in a week at the behest of the 1st Respondent over a spurious allegation is unlawful and contrary to the Applicants’ fundamental right as guaranteed under sections 35 and 41 of the 1999 Constitution of the Federal Republic of. Nigeria (As Amended).
  4. FIFTY MILLION NAIRA (N50, 000, 000.00) damages against the Respondents jointly arid severally for the unlawful and unjustifiable violation or infraction of the Applicants’ Fundamental Rights duly guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (As Amended).
  5. AN ORDER of perpetual injunction restraining the Respondents, their agents, privies or any person acting under their command or directives from arresting, detaining, re-arresting or otherwise interfering with the Fundamental rights of the Applicants.
  6. And for such further Orders as this Honorable court may deem fit to make in the circumstances

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT

  1. The Applicants as law abiding citizens are entitled to their fundamental Human Rights duly guaranteed under the 1999 Constitution of the Federal Republic of Nigeria which rights include the right to dignity of Human person as well as Right to freedom of movement.
  2. These rights which belong to them by virtue of their human nature cannot be trampled upon except in exceptional circumstances as provided for in the Constitution of the Federal Republic of Nigeria.
  3. The Applicants at all-time material reside at Umugah Egbelu Obube in the Owerri North LGA of Imo State and have been so resident until the 29th day of January 2023. when the Applicants at the instigation of the 1st Respondent were arrested, detained and extorted by the officers and men of the QUICK INTERVENTION TEAM of the State CID Owerri led by the 2nd Respondent under a-Gorilla like fashion.
  4. The Applicants and in particular the 1st Applicant; a Traditional Nze Title Holder of his Community was totally humiliated like a common criminal, his doors shattered to pieces by the 2nd Respondent.
  5. The Applicants were subsequently released but were warned to be reporting to the office of the 2nd and 3rd Respondents thrice a week.
  6. This, the Applicants continued to do until the 19th day of April 2023 around 7 am when the Respondents and in particular 2nd  Respondent in company of five armed policemen stormed the residence of the 1st  Applicant and warned him to produce all the Applicants on the 20th day of April 2023 or face re-arrest.
  7. The Allegation against the Applicants by the 1st Respondent was a civil spurious and unfounded allegation which has no criminal connotations whatsoever.
  8. The 1st Respondent openly. vaunted that he was going to use his large police connections to ruthlessly deal with the Applicants and this he has perfected when the 2nd Respondent and his cohorts unleashed threats, embarrassment, humiliation and mayhem on the Applicants some of whom are so old to the 1 Respondent’s father.
  9. The actions and conducts of the Respondents and in particular 2nd Respondent with the connivance of the 1st Respondent against the Applicants are all geared towards humiliating, embarrassing and, debasing the Applicants for no just cause.
  10. The 1st Respondent has openly vaunted that the Applicants are poor and wretched and that he will deal with them.
  11. That the Applicants are law abiding citizens who for their numerical strength can ruthlessly deal with the 1st Respondent but have exercised restraint. They have been humiliated, embarrassed, tortured and their dignity debased by the reprehensible conduct of the Respondents and in particular the 2nd and 3rd Respondents at the instigation of the 1st
  12. That Applicants’ right to freedom of movement, liberty and dignity of my human person has been infringed upon by the conducts of the Respondents.

In this affidavit, Nze Anthony Mgbemere, the 1st Applicant, seeks the enforcement of his fundamental rights, detailing incidents of alleged harassment, unlawful detention, and humiliation by the Respondents.

Nze Mgbemere, a respected elder and titled individual in his community, has the consent of other Applicants to submit this affidavit on their behalf.

The 1st Respondent, a resident in the same locality as the Applicant, accused the Applicants of malicious damage and theft related to economic trees on their farm. He reportedly leveraged his influence with the police to harass and intimidate the Applicants.

The 2nd, 3rd, and other Respondents, police officers from the Quick Intervention Team (QIT) of the CID, Owerri, allegedly acted on the 1st Respondent’s claims. They arrested the Applicants in a forceful manner, including breaking down Mgbemere’s door, detaining and extorting him and other Applicants. This harassment reportedly continued, with demands that they report to the CID office thrice a week under the threat of further arrest.

The affidavit emphasizes that the allegations were civil in nature without any criminal basis, and that the 1st Respondent’s actions were aimed at personal vendetta. He allegedly used his “police connections” to orchestrate repeated intimidation and threats against the Applicants, who are elderly and pose no criminal threat.

The Applicants claim that the Respondents’ actions infringed on their rights to dignity, freedom of movement, and liberty. They contend that this was exacerbated by threats and public humiliation, with the 1st Respondent allegedly flaunting his influence and stating that he would use it against the Applicants. The affidavit references past disputes between the parties’ families, including a court case and community mediation efforts led by their traditional ruler, which recommended peaceful coexistence. Despite these resolutions, the 1st Respondent allegedly continues to pursue these grievances through police harassment. Citing the ongoing intimidation, infringement on their rights, and lack of evidence supporting the criminal allegations, the Applicants seek judicial intervention to protect their fundamental rights and end the alleged harassment.

This affidavit frames the Applicant’s case as one of wrongful police involvement and personal harassment, appealing to the court for protection and an end to the Respondents’ actions.

The Applicant’s Counsel’s written address in support of the Motion on Notice for the enforcement of fundamental rights presents a structured legal argument, claiming that the Applicant’s rights under sections 34, 35, and 41 of the 1999 Constitution of Nigeria have been infringed by the Respondents.

The Counsel asserts that the application is based on specific constitutional provisions ensuring personal liberty, freedom of movement, and dignity of the human person. The application includes an affidavit of facts, a statement with applicants’ names and descriptions, reliefs sought, and the grounds for those reliefs.

Counsel briefly references the affidavit which outlines that the Applicants were unjustly arrested, detained, humiliated, and tortured without legal justification by the Respondents, who acted at the instigation of the 1st Respondent.

The primary issue for the court is whether, based on the affidavit, the Applicants’ fundamental rights were violated, entitling them to the reliefs they seek. The counsel citing sections 35(1) and 41 of the Constitution, the Counsel argues that the Applicants’ arrest, detention, and humiliation constitute a breach of constitutional protections. References to case law (e.g., Lasaki v. The State) affirm that personal liberty should only be restricted with lawful justification.

The counsel citing Isiyaku & Anor v. COP Yobe State & 2 Ors, argues that the Respondents cannot legally justify the Applicants’ treatment as they violated constitutional protections.

Counsel addresses the unfounded allegations related to destruction of crops, invoking the legal maxim “quicquid plantatur solo, solo cedit” (what is planted on the land belongs to the landowner) to argue that the Applicants have rights over the crops.

The Counsel contends that the 1st Respondent used police connections to maliciously target the Applicants without any real evidence of a crime, which led to continued threats and humiliation. The argument includes definitions from notable case law and dictionaries to describe the high-handed and vindictive conduct by the Respondents.

Given the malicious treatment of the Applicants, Counsel argues for exemplary damages based on the principle that every wrong must have a remedy, citing G.K.F. Investment Nig Ltd v. NITEL Plc.

In conclusion, the Counsel urges the court to recognize the violation of the Applicants’ rights and award damages for the trauma and humiliation experienced, especially as the Applicants were forced to report regularly to the police without cause.

The Counsel requests that the court grant the reliefs sought, including damages, to uphold the fundamental rights of the Applicants.

In his counter affidavit, Pastor Ikedi Ekwonye, the 1st Respondent, presents arguments opposing the enforcement of the Applicants’ fundamental rights application. He claims ownership of “Mbaji farm land” as inherited from his late father, Mr. Chukwuemeka Ekwonye, and denies that the Applicants have any legitimate rights to this land. He alleges that the Applicants have been encroaching on the property, damaging economic trees, and attempting to seize his inheritance through unlawful means.

He references a 1993 local government arbitration judgment and a more recent 2022 decision by HRH Eze Jude Chidi Nwaogu, both of which he claims affirmed his family’s ownership of the disputed land. He includes these as evidence (Exhibits A and B) to support his case. He asserts that the Applicants, especially the 1st and 3rd Applicants, have repeatedly threatened his life during arbitration proceedings. He claims the threats were made publicly and recorded by community officials. Due to these threats, he filed a petition with the police (the 4th Respondent) alleging threats, malicious damage, and conduct likely to cause a breach of peace. He denies that the Applicants were unlawfully detained or extorted, arguing that their police invitation and subsequent detention were lawful responses to his petition about the threats and property damage. Ekwonye denies various accusations by the Applicants, including that he insulted them or disparaged their financial status. Instead, he alleges that the Applicants have used their social positions to intimidate him.

Ekwonye expresses dissatisfaction with the actions of HRH Eze Jude Chidi Nwaogu, the local traditional ruler, accusing him of improperly attempting to reinvolve himself in the dispute and influence matters in favor of the Applicants. Ekwonye believes this behavior undermines the previous rulings in his favor. Ekwonye asserts that the application for enforcement of fundamental rights lacks merit, is frivolous, and was filed in bad faith. He requests that the court dismiss the application, arguing that granting it would not serve the interest of justice due to the Applicants’ alleged unlawful and disruptive actions regarding the land dispute.

Overall, Ekwonye’s affidavit presents a detailed denial of the Applicants’ allegations and defends his actions as legitimate, seeking to demonstrate that he is the rightful landowner and that the Applicants are attempting to usurp his inheritance through intimidation and false claims.

According to the 1st Respondent’s counsel, in this written address, the 1st Respondent files a 28-paragraph affidavit with attached exhibits to oppose the Applicants’ claim, arguing it lacks merit. The dispute involves ownership of farmland in Owerri North LGA, Imo State, which the 1st Respondent claims to have inherited. Following a history of legal victories and perceived threats by the Applicants, the 1st Respondent sought police intervention, which the Applicants aim to counter by claiming a violation of their rights.

According the counsel, the issue is whether the Applicants’ rights were violated based on the evidence presented in the 1st Respondent’s affidavit and the documents attached, warranting the Applicants’ requested reliefs.

Counsel argues that enforcement of fundamental rights requires clear proof. Citing Agunbiade v Ogidan and other cases, they contend that a reasonable suspicion of a crime justifies interference with liberty. The Applicants’ alleged threats and other criminal actions, evidenced by exhibits, support the 1st Respondent’s petition to the police and any resulting detentions.

Counsel further argues that the Applicants’ claim of personal liberty violation under Section 35 of the Constitution is unfounded, as the alleged offenses (malicious damage, theft, and threats) justify temporary detention for police investigation. They assert that the police acted within their rights, as delineated by Section 4 of the Police Act, to investigate alleged crimes reported by private citizens.

The 1st Respondent’s counsel highlights the 1st Respondent’s lawful right to report criminal suspicions, as he did via a formal petition (Exhibit C) that was lawfully investigated by the police. This investigation, they argue, does not equate to an infringement on the Applicants’ rights.

Counsel asserts that the Applicants’ approach to the court lacks good faith, suggesting that their claims are dubious and self-serving. Given their alleged “unclean hands,” the Applicants are argued to be unfit for equitable relief from the court.

The address concludes that the Applicants have not substantiated their claims of unlawful detention or rights violations. Given the evidence and legal precedence, counsel urges the court to view the application as frivolous and dismiss it for lack of merit, denying the Applicants any compensation or damages.

The 2nd–6th Respondents’ counter affidavit, sworn by Inspector Ossai Ndubuisi, provides a response to the Applicants’ Motion on Notice and affidavit. It primarily refutes the Applicants’ claims and presents the investigation findings against them.

Inspector Ossai, who led the investigation team, received a petition from the 1st Respondent on January 9, 2023. This petition alleged forcible entry and threats to life by the Applicants against the 1st Respondent and his family concerning a disputed property, the Mbaji farmland, which was inherited by the 1st Respondent and his siblings.

The 1st Respondent, Pastor Ikedi Ekwonye, claimed that the Applicants attempted to sell the Mbaji farmland, prompting threats against him and his family. He alleged that after intervening to stop a potential sale, the Applicants continued to issue threats, including death threats, and ignored a ruling from their traditional ruler, who had favored the 1st Respondent. The 1st and 2nd Applicants were arrested and denied all allegations in their statements. They asserted that the land belonged to their kindred and claimed that the 1st Respondent was the one attempting to sell the property. They also denied any threats to kill the 1st Respondent.

Following invitations, other Applicants appeared and also denied the allegations. They insisted that the land belonged to their kindred and reiterated that the 1st Respondent was attempting to sell it illegally. After the investigation, a prima facie case of forcible entry and threat to life was established against several Applicants. However, upon learning they would be charged in court, the Applicants failed to return to the police station, instead filing this suit. The counter affidavit disputes several paragraphs in the Applicants’ affidavit, specifically denying any mistreatment, humiliation, extortion, or threats. Inspector Ossai asserts that the investigation was conducted within legal boundaries and that the Applicants’ accusations are unfounded and misleading.

The 2nd–6th Respondents’ counsel submitted a written address opposing the Applicants’ motion for enforcement of their fundamental rights. The Respondents’ counsel relies on an 18-paragraph counter affidavit with 14 attached exhibits, asserting that the Applicants’ rights were not violated.

The counsel frames a single issue for the court’s consideration: whether the Police, including the 2nd–6th Respondents, have the authority to prevent crime and investigate crime allegations or confessions. The counsel asserts that this power is constitutionally and statutorily granted.

Referring to Section 214(1) of the 1999 Nigerian Constitution (as amended) and the Police Act 2020, the counsel highlights the Police’s legal duties to prevent crime, protect individual rights, maintain public safety, and investigate allegations. This includes detecting and investigating crime, a responsibility owed to all persons within Nigeria. Counsel cites precedents such as Chief Oladele Fajemirokun v. CBCI Nigeria Ltd. and Fawehinni v. IGP, which support the notion that fundamental rights protections do not shield individuals from legitimate investigations or prosecutions.

The counsel argues that the Applicants were lawfully invited and detained briefly as part of an investigation into forcible entry and threats to life. Bail was granted within 24 hours, showing due adherence to legal standards. Notably, the 3rd and 5th Applicants, who failed to respond to invitations, were not even arrested, further undermining any claim of rights violations.

The Respondents’ counsel contends that the Applicants cannot invoke fundamental rights protections to halt a lawful investigation and prosecution of a prima facie case. The court is urged not to let the Applicants evade the investigative proc

ss under the guise of fundamental rights enforcement.

The counsel argues that the Applicants failed to demonstrate a violation of their fundamental rights. Given the evidence and legal framework, the Respondents request the court to dismiss the Applicants’ motion as lacking merit and to award substantial costs against the Applicants.

In sum, the Respondents’ counsel asserts that the Applicants’ rights were duly respected and that the Police acted within their legal mandate to investigate serious allegations, justifying the Applicants’ brief detainment and release.

Resolution of matter:

This application for the enforcement of fundamental rights arises from a protracted dispute over the ownership of a farmland, known as the “Mbaji farmland,” between the Applicants and the 1st Respondent, Pastor Ikedi Ekwonye. The Applicants, led by Nze Anthony Mgbemere, allege that the 1st Respondent, with the active connivance of the 2nd-6th Respondents, who are police officers, have unlawfully arrested, detained, and harassed them in violation of their fundamental rights under Sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

In considering the merits of this application, I have meticulously examined the facts presented by all parties, the applicable law, and the principles governing the protection of fundamental rights and the legitimate exercise of law enforcement powers.

The central dispute revolves around the ownership of the Mbaji farmland. The 1st Respondent claims that the land was inherited from his late father, Mr. Chukwuemeka Ekwonye, and that the Applicants have been unlawfully encroaching on the property, damaging economic trees, and attempting to seize it. The 1st Respondent asserts that he has obtained previous judgments and rulings from local government arbitration and the traditional ruler, HRH Eze Jude Chidi Nwaogu, affirming his family’s ownership of the land.

In contrast, the Applicants contend that the land belongs to their kindred and that the 1st Respondent is the one attempting to illegally sell the property. They deny the 1st Respondent’s allegations of threats, malicious damage, and conduct likely to cause a breach of the peace.

The 2nd-6th Respondents, the police officers, claim that they received a petition from the 1st Respondent alleging the Applicants’ criminal actions, which prompted an investigation. They assert that the Applicants were briefly arrested and invited for questioning as part of this lawful investigation, but were released on bail within 24 hours.

The key legal provisions at the center of this dispute are Sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which enshrine the fundamental rights to dignity of the human person, personal liberty, and freedom of movement, respectively.

It is well-established in Nigerian law that these fundamental rights are not absolute and can be subject to lawful restrictions. The Supreme Court has consistently held that the right to personal liberty under Section 35 can be legitimately curtailed if there is a reasonable suspicion of the commission of a crime, as long as the detention is carried out in accordance with due process.

Furthermore, the Nigerian Constitution (Section 214) and the Police Act 2020 grant the Nigeria Police Force the statutory duty and authority to prevent and investigate crime, as well as to protect the rights and safety of all persons within the country.

Having carefully considered the facts and the applicable law, this court makes the following findings:

  1. Ownership of the Mbaji Farmland: The court notes the conflicting claims over the ownership of the Mbaji farmland. While the 1st Respondent has presented evidence of previous rulings and judgments in his favor, the Applicants maintain that the land belongs to their kindred. This property dispute appears to be the underlying cause of the ongoing tensions and allegations between the parties.
  2. Arrest and Detention of the Applicants: The court finds that the Applicants were briefly arrested and detained by the 2nd-6th Respondents (the police officers) as part of an investigation into the 1st Respondent’s allegations of criminal acts, such as forcible entry and threats to life. The Respondents have provided evidence of the 1st Respondent’s formal petition and the investigative steps taken.
  3. Violation of Fundamental Rights: While the Applicants have alleged violations of their fundamental rights, the court is not convinced that the evidence presented sufficiently establishes such violations. The Respondents have demonstrated that the Applicants’ detention was within the lawful powers of the police to investigate alleged criminal activities, as permitted by the Constitution and the Police Act. The court notes that the Applicants were released on bail within 24 hours, suggesting that the detention was not unduly prolonged or disproportionate to the investigative needs. Furthermore, the court finds no clear evidence of the Applicants being subjected to undue humiliation, extortion, or other forms of mistreatment that would amount to a violation of their rights to dignity and freedom of movement.
  4. Equity and Clean Hands: The court also takes into account the principles of equity and the doctrine of “clean hands.” The evidence suggests a history of disputes and allegations between the parties, with the 1st Respondent claiming that the Applicants have threatened his life and attempted to unlawfully seize his inherited property. While the Applicants deny these allegations, the court is not satisfied that they have approached the court with entirely clean hands, given the unresolved property dispute and the potential for criminal allegations.

It is important I state at this point that my view would still have been the same even if the Respondents were not allowed in.

The general position of the law in Nigeria is that parties are expected to file all their evidence and submissions before the final hearing of a matter. This is to ensure fairness and to prevent unnecessary delays or ambushes during the proceedings. In our adversarial system after the close of a case, no further evidence ought to ordinarily be given by any of the parties. See CHUKWUMA V. F.R.N. (2011) 13 NWLR (PT. 1264) 391(P. 413, PARAS. E-G) referring to DENLOYE V. M.D.P.D.C. (1968) SCNLR 452; HAVOT V. POLICE 20 NLR 53

However, the courts have also recognized the need for some flexibility, especially in the interest of doing substantial justice. The court has the discretion to allow the filing of further affidavits after the close of pleadings, if it is in the interest of justice to do so.

In GEOFREY UCHENNA MBA & ORS V. MRS. R. N. MBA (1999) 10 NWLR (Pt. 623) 503 at 514 – 515, it is stated:

“There is another aspect of this matter. Assuming that the Court used the counter-affidavit in arriving at its decision, the mere fact that learned counsel did not address on it is not sufficient to set aside the ruling unless it can be shown that injustice is caused thereby. Order 10 Rule 25 of the High Court Rules of Anambra State 1988 provides:

“Parties may file additional affidavits without leave, and upon the hearing of any motion the court may, on such terms as it may deem fit, allow any affidavit to be used, although such affidavit has not been filed, and although a copy thereof has not been served on the other parties.”

Thus, on the provision of the above rule, the court was perfectly entitled to use the counter-affidavit whether filed or not, whether served or not. In Stephen Nweke v.Eze V.E.D. Orji (supra) at page 489 the Court of Appeal held that an affidavit filed in such circumstance as the above may be used depending on the circumstance of the case and the discretion of the judge. Said Uwaifo J.C.A. (as he then was) while interpreting Order 35 Rule 27 of the then High Court Rules of Anambra State which is substantially in pari materia with order 10 Rule 25 of the Rules of 1988.

“The applicable rule 27 reproduced earlier does not say an affidavit filed after argument of the motion has commenced will not be allowed to be used. I think it must be left to the discretion, in deserving circumstances, of the Judge. If a party who intends to use such affidavit is still arguing his motion and the affidavit contains facts that will assist his case or the course of justice, there is hardly any reason, in my view, why it should not be allowed to be used.”

The learned jurist went on at page 492 as follows:

“The undeniable point of agreement, however is that the discretion whether to allow any affidavit rests with the court as occasion demands to enable him to dispense justice. In addition, I hold the view that since the court may regulate its own proceedings, it can in any particular case fix a time limit within which affidavits to be used in respect of any particular motion should be, in so that the parties do not have a field day filing affidavits at any stage. But even at that 1 should make it quite plain that at the discretion of the Court in special Circumstances, affidavit filed thereafter may be allowed for use.”

See also Chijferiel v. Watson (1888)58 L.T. 877; East Lancashire Railway Co. v. Hatterley (1849) E.R. 278.

 

The overriding principle is the need to ensure that the court arrives at a just and fair determination of the matter. It is on this bases that the Counter affidavits of the 1st Respondent and 2nd – 6th Respondents are considered.

In the absence of Counter Affidavit of the Respondents, the onus is still on the Applicants to prove their case. In fundamental rights enforcement cases, mere allegations of arrest are insufficient to prove an infringement. Specific facts, including details and duration of detention, must be substantiated with credible evidence. As established in ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC & ORS V AKAIRO & ORS LPELR-54212(CA the burden of proof lies with the Applicants, requiring them to present compelling and credible evidence to substantiate their claims.

In this case, the Applicants claimed they were arrested on January 29, 2023, but did not provide specific details of their release. Evidence shows that the 1st Respondent simply filed a petition with the police (Exhibit C), which led the police to act independently, exercising their statutory duties to investigate and possibly prosecute suspected crimes. Under Nigerian law, including Section 4 of the Police Act, the police are empowered to investigate criminal complaints filed by individuals, which may involve arrest and detention.

The court also reviewed the relevant provisions in Section 35(1)(c) of the Constitution, which empowers the Nigeria Police to arrest individuals “reasonably suspected of having committed a criminal offense.” Consequently, the arrest and detention by the police, based on a complaint and subsequent investigation, do not constitute a violation of the Applicants’ fundamental rights.

Based on the available evidence and applicable legal standards, the court finds that the Applicants have not proven an infringement of their fundamental rights. The actions of the police were lawful, and there was no unlawful detention or violation of the Applicants’ rights.

In light of the above findings, the court concludes that the Applicants have not sufficiently demonstrated a violation of their fundamental rights by the Respondents. The evidence shows that the police acted within the scope of their lawful investigative powers in responding to the 1st Respondent’s allegations, and the Applicants’ detention was not unduly prolonged or disproportionate.

Accordingly, the court makes the following orders:

  1. The Applicants’ motion for the enforcement of their fundamental rights is hereby dismissed.
  2. Each party shall bear their own costs.
  3. The parties are encouraged to pursue the resolution of the underlying property dispute through appropriate legal and community-based channels, in a manner that upholds the principles of justice, fairness, and respect for the rule of law.

I so hold

I.M.Njaka

Judge

6-11-2024

Appearances:

I.N. Iwanger Esq., for the Applicants

K E Ejiofor Esq., for the 1st Respondent

I.S. Onwochei Esq., for the 2nd – 6th Respondents

 

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SUIT NO: HOW/194/2023- PROFESSOR BENARD ODOH VS. 1. INSPECTOR GENERAL OF POLICE 2. COMMISSIONER OF POLICE EBONYI STATE 3. THE STATE SECURITY SERVICE EBONYI STATE – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 3RD DAY OF OCTOBER 2023- the importance of protecting fundamental rights, especially in cases involving political persecution-Duty of the party alleging violation of fundamental rights to present material facts before the Court.-principles related to arrests and detentions-arrests should be based on sufficient evidence -the Court to protect individuals’ rights when they are violated-duties and responsibilities of the Nigeria Police and the Department of State Services (DSS) in maintaining law and order and safeguarding national security-The importance of cooperation and coordination between law enforcement and security agencies and underscores the need to respect and protect human rights.

October 8, 2023

SUIT NO: HOW/ 977/2022 -MISS. EMMANUELLA ONYINVECHI ONUOHA VS. FINCA MICROFINANCE BANK LTD, AMARA BLOSSOM- BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT M. NJAKA – delivered ON THE 3RD DAY OF OCTOBER 2023- Fundamental Rights and Debt Recovery- Burden of Proof- Requirement for Substantiating Claims- Lack of Specific Evidence- Credibility of Allegations- Balancing Rights- Protecting Both Parties’ Interests- Encouragement of Mediation- Promoting Amicable Resolution-Constitutional Rights- Reminder of Guaranteed Protection- Establishing a Fair Payment Plan- Ensuring Repayment without Hardship

October 3, 2023

SUIT NO: HOW/653 /2022 HON. JOHN NWAIGBO VS 1. MR. NORBERT OGONNA 2.MR. MARCEL NWOSU & 12Ors- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THURSDAY, THE 9TH DAY OF FEBRUARY 2023- in appropriate circumstances, rights can be enforced against private individuals. This principle is supported by various legal precedents, including the case of AKWA SAVINGS AND LOANS LTD. V. UDOUMANA & ORS, which established that the provisions in Chapter IV of the Constitution are enforceable not only against the State but also against artificial persons, such as private companies – citizens have a legal duty to report crimes they witness and to assist the police in investigations. This duty is imposed by law and is not subject to personal discretion. Failure to report a crime is considered an offense- the age-long rule and custom of Umuezealaopi Progressive Union, which requires members to seek the union’s resolution before involving the police or taking a matter to court – while such a rule may be acceptable in civil matters, it contradicts the law when it comes to criminal matters- Reporting a crime to the police is a civic duty, and any action taken against an individual for reporting a crime is considered illegal- right to freedom of association works both ways, meaning that individuals have the right to associate freely with others, but this does not obligate others to associate with them.- it is not the court’s role to interfere with the rules and regulations of voluntary associations, except when they violate the law or principles of natural justice.

September 27, 2023