IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE AHIAZU MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU
ON, MONDAY 6TH FEBRUARY, 2017
BEFORE HIS LORDSHIP: HON. JUSTICE I.M.NJAKA
HAM/71/2016
AMAECHI IKECHUKWU BERNARD APPLICANT
V.
- IHEANACHO NWOGU
- MATHEW IRUKE
- EDWIN UGORESPONDENTS
- IYAJI SUNNY
- C.O.P, IMO STATE
JUDGMENT
By Notice of application for an order enforcing fundamental rights under section 46 of the 1999 Constitution of Nigeria (as amended), Order 2 Rules 1, 2, 3 and 4 Fundamental Rights (Enforcement Procedure) Rules, 2009, the Applicant prays for AN ORDR enforcing or securing the enforcement of the Applicant’s fundamental rights to personal liberty, dignity of the human person and right to freedom of movement as guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, hence the following reliefs:
- Declaration that the arrest and detention of the Applicant by the 2nd -4thRespondents from 4am on 11/11/2016 to 6.30pm of 15/11/2016 at the instigation and behest of the 1st Respondent on grounds that the Applicant is the brother of Amaechi Kelechi Bede, who was suspected of having raped a girl, and must know his whereabouts having allegedlybeen seen eating with him on the basis of which the Applicant was detained from 4am on 11/11/2016 to 6:30pm of 15/11/2016 in a bid to compel him to first produce Amaechi Kelechi Bede before being granted the said police bail on 6.30pm of 15/11/2016, constitute a breach of the Applicant’s right to personal liberty, and freedom of movement as guaranteed under section 35(1) and 42(1) of the Constitution of the FRN, 1999 as amended.
- Declaration that the 2nd– 4th Respondents conduct of confining and/or detaining the Applicant in a stinking solitary police cell at Oko-Ovoro Police Division Aboh Mbaise from 4am on 11/11/2016 to 6.30pm of 15/11/2016 after spraying teargas on the Applicant at the instigation of the 1st Respondent , constitute a violation of the Applicant’s right to personal liberty, freedom of movement and dignity of his human person as guaranteed under sections 35(1),41(1) and 34(1) of the Constitution of FRN,1999 as amended.
- N5 million damages against the Respondents jointly and severally for breach of the Applicant’s fundamental rights.
- An order restraining the Respondents from further arrest and/or detention o the Applicant on account of this matter.
The GROUNDS FOR THE RELIEFS SOUGHT are:
(a) The Applicant is a Nigerian citizen entitled to the protection of his fundamental rights as guaranteed under the Constitution of the Federal Republic of Nigeria (FRN) 1999 as amended, being violated by the respondent.
(b) The Applicant has not committed any crime to warrant the Applicant being arrested and detained.
(c) the arrest and detention of the Applicant on the basis that he is that brother of a rape suspect and had been seen eating with him and knows his whereabouts and must first produce him before being released from police custody by 2nd– 4th Respondents is quite unreasonable and very unlawful.
(d) The only sin or crime committed by the Applicant is that he is the brother of a rape suspect, Applicant having not participated in raping any girl.
(e) There is no law in Nigeria which says that criminal liability is transferable to the brother of a suspect neither is it lawful to use the brother of a suspect as a bait for catching the suspect or until such a suspect is produced by his brother.
(f) The Respondents’ attitude towards the applicant was calculated to degrade, dehumanize and punish the Applicant and deprive him of his fundamental rights.
(g) The Applicant has suffered unwarranted humiliation, great loss in his business and means of livelihood and damages resulting from his continuous incarceration from 4.am of 11/11/2016 to 6.30pm of 15/11/2016.
There are 24 paragraphs AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS deposed to by the Applicant, Amaechi Ikechukwu Bernard.
His case as seen from the affidavit evidence is that one Kasarachi, staying with the 1st Respondent and one other girl was allegedly raped by some boys from Umuada Amuzu Aboh Mbaise on 2/11/2016. One of the alleged offenders is Amaechi Kelechi Bede, his junior brother. The 1st Respondent reported the matter to the police at Oko-Ovoro Police Division and they came for the arrest of the boys on 3/11/16 at about 4.am. But the boys fled. His elder brother Amaechi Everest Ndubueze who heard the noise in the night and opened door was arrested and detained for several days. He was among those that went to negotiate for his release from police detention on 4-11-16 but was rebutted by the police. Two days after his senior brother was granted bail, meaning his senior brother was in detention for over five days, the 3rd– 4th Respondents at the direction of the 2nd Respondent and at the instigation of the 1st Respondents arrested and detained him. They came on 11/11/16 at about 5am at his residence and in the presence of his wife and children he was slapped on the face, handcuffed like a common criminal and taken to the police station. He was detained in a very dirty and stinking cell and no person was permitted to see him. His kinsman, Mr. Ejezie Uneze ,who came to take him on bail that day was not allowed to do so. He never resisted arrest.
The reason for his arrest is that he is a brother to one Amaechi Kelechi Bede the alleged culprit and that he was seen eating together with him and therefore knows his whereabouts and should produce him. The 1stRespondent is residing at Umuebi Amuzu Aboh Mbaise. The condition given to him for his release from detention and arrest was the production of Amaechi Kelechi Bede.
While in Police detention, the 1st Respondent came to the cell and threatened him that unless Amaechi Kelechi Bede, his junior brother is produced, he would make sure that he was never granted bail and that he would die in the police cell to avenge for the rape of the girls.
On 13/11/2016, his 3rd day in detention, his senior brother came to negotiate his bail, instead of releasing him on bail, the police got infuriated and on the instruction of the 2nd Respondent, the 3rd Respondent sprayed teargas inside the solitary cell where he was kept. And his senior brother was bundled out of the station.
He was detained on the dirty police cell of the 2nd – 4th Respondents full of human faeces and harmful insects and very stinking. He suffered severe psychological and mental trauma as a result of his unwarranted arrest and detention by the 2nd -4th Respondents and their conduct towards him, all at the instigation of the 1st Respondent. His wife and children also suffered deprivation and the absence of their husband and father and breadwinner of the family while he was incarcerated. He was deprived of the warmth, comfort, company and presence of his family members. He was severely beaten by the 3rd -4th Respondents and handcuffed in the presence of his wife and children before being taking away by the police.
He was only granted bail by 6.30pm on 15/11/2016 by the 2nd -4thRespondents reluctantly while the 1st Respondent remained unrepentant and threatening to report him to the 5th Respondent to arrest and detain him to ensure that he died in police cell.
Up-till date, the police are yet to charge the matter to court having earlier told him that they have concluded investigation in the matter but the 1stRespondent does not want the matter to be charged to court.
Unless this honourable court intervened, the Respondents will continue to harass me with threat of arrest and detention and may even kill me as threatened by the 1st – 4th Respondents.
As required by the Rules there is APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF THE APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS wherein the Applicant formulated an ISSUE FOR DETERMINATION to wit: Whether the applicant has made out a case to be entitled to the reliefs sought.
It is submitted that any person who alleges that his fundamental rights has been breached or is being breached(as in the instant case) or is likely to be breached is entitled to apply to the High Court of a State or Federal High Court where the breach occurred for the enforcement of his fundamental rights. See section 46 of the FRN constitution 1999 as amended.
It is submitted that culpability for commission of a criminal offence by a person is not transferable to another person who has not committed the offence. That it is wrong for the police to have arrested and detained the applicant solely on the basis that the applicant is the brother of Amaechi Kelechi Bede and was seen eating with him. Reliance was placed on Garuba v. State(2011) All FWLR (OPT 584) 148 at 167, paragraph C-D; Abubakar v. Mark(2010) ALL FWLR(Pt 531)1538 at 1602-1603 parks H-E, per Yahaya JCA
It is submitted that the conduct of the 2nd -4th Respondents in arresting, detaining and spraying teargas on the applicant is calculated to dehumanize, torture and degrade the Applicant thereby violating his fundamental rights to personal liberty, freedom of movement and dignity of human person as guaranteed under sections 35(1), 42(1) and 34(1) of the 1999 Constitution of Nigeria (as amended). Relied on Odafe & Ors v. A.G Federation (2005) CHR 309 at p. 322, paragraph B-D; Ibrahim v COP (2008) 1 WRN 22,
Based on the above judicial authorities, the counsel urged the court to hold that the Applicant has suffered mental and psychological trauma having regard to the ill-treatment he received from the 2nd -4th Respondents and their reluctance in granting him bail.
It is submitted that since time does not run against the state in criminal matters, the police should not have detained the Applicant as bait for getting the alleged rapists but should carry out discreet investigation and arrest the suspects. Relied on Orji v. FRN (2007) ALL FWLR (pt 385) 462 at 497, paragraph C.
It is submitted that the Police acted on facts which has not been shown to be justifiable before arresting and detaining the applicant before granting him bail.
It is submitted that the onus shifts to the police to show that the arrest and detention is lawful once an Applicant establishes the facts of his arrest and detention. Police has not done so here. The police are accountable for their actions. Relied on Onah v. Okenwa (2001) ALL FWLR (pt 565) 357 at p. 336, paragraph E-G
It is submitted that in the instant case, it has been shown that the report to the police was false, fabricated and not made in good faith as well as the arrest and detention of the Applicant and therefore, the Respondents are liable. See: Bayam v. Agana (2013) ALL FWLR (pt 687) 363 at p. 778 779, paragraph G-E
The court is urged to answer the sole issue in favour of the Applicant and grant all the reliefs sought in the instant application.
I have studied the processes filed in this case. I have equally listened to the counsel for the Applicant. It is unfortunate that in most of these fundamental right cases, the major participants, the Nigeria Police are not always represented. One is always left with one side of the story to take a stand. It would be richer for fundamental right enforcement proceedings, if the Nigeria Police, the major actors in most fundamental right proceedings will develop interest and eagerness to be represented and give their own side of the story. Till such a time, the courts have no option but to believe the narration as given by the Applicant as in this case.
It is not the case that the Applicant took the alleged culprit on administrative bail granted by the Police and have failed, neglected or refused to present him on demand. It is not also the case that the Applicant is an accomplice to the alleged crime.
The offence of the Applicant as revealed in the affidavit evidence is being a blood relation of an alleged culprit. It is the Holy Bible that stated in the book of Jeremiah 31: 29-30 thus:
“In those days they will not say again, the fathers have eaten sour grapes, and the children’s teeth are set on edge.’ But everyone will die for his own iniquity; each man who eats the sour grapes, his teeth will be set on edge.”
I would add that now are those days. Any man who eats the sour grapes, his teeth will be set on edge. This is the whole essence of punishment for crime.
It will be counterproductive, a great injustice to punish, arrest or detain any person just because he or she is related in blood/marriage to the alleged offenders; when it is a fact that some persons although related in blood/marriage are not in the true sense of it related in character, beliefs or worldview and have no cordial relationship.
Arrest or punishment by proxy or arrest in lieu, condemned in the Holy Book, is alien to the Constitution of the Federal Republic of Nigeria. It is a violation of human right of the highest order to be punished for another man’s crime. In ACB V OKONKWO (1997) 1 NWLR (PT 480), where the mother of the accused was arrested and detained by the police for the offence of her child, NIKI TOBI JCA (as he then was) stated:
The second area is the arrest of the 1st respondent by the police. I know of no the law which authorizes the police to arrest a mother for an offence committed or purportedly committed by the son. Criminal responsibility is personal and cannot be transferred. While I am aware of cases of vicarious liability in criminal law, the instant case is certainly not one. A police officer who arrests A’ for the offence committed by B’ should realize that he has acted against the law. Such a police officer should, in addition to liability in civil action, be punished by the police authority.
As matter of fact, it bothers us so much for the police operating the law of arrest after three decades of Nigeria’s independence to arrest and detain innocent citizens of this country for offences committed by their relations. That is a most uncivilized conduct and one that any person with a democratic mind should thoroughly detest and condemn. I detest and condemn the uncouth practice”.
It is the seriousness of such sordid act that made the court not only to recommend a civil action against a police officer that engaged on such activity but recommended punishment by the Police authority.
In the same vein, section 7 of the Administration of Justice Act, 2105 states that: ‘No person shall be arrested in lieu of a suspect’. Though this Act is yet to be domesticated in Imo State, it is introduced here to reiterate the universal standard acceptable to all civilized men. It should guide the police.
The decision in Okonkwo (supra) was in 1997, and the erudite jurist said: ‘it bothers us so much for the police operating the law of arrest after three decades of Nigeria’s independence to arrest and detain innocent citizens of this country for offences committed by their relations’, it is now five decades and yet same is still occurring.
It is my considered view that the arrest and detention of the Applicant from the 11th November 2016 to 15th November 2016 on no other ground other than that he is a brother to the alleged culprit is unconstitutional. It is arbitrary and oppressive. It is trite that time does not run against crime. SeeORJI V. F.R.N. (2007) 13 NWLR (PT. 1050) 55 AT 94 PARAS A – C;YABUGBE V. C.O.P. (1992) NWLR (PT. 234) 152, (1992) 4 SCNJ 116. It is equally trite that liability of an offender for a statutory offence committed while in force is preserved, notwithstanding the repeal of the statute after the commission of the offence and before the charge. See AG LAGOS STATE V DOSUNMU (1989) 2 SC (PT.1) 522. Therefore, another person should not be made to suffer for the crime allegedly committed by another person in an effort to apprehend that other person.
Now, in this case, not only was the Applicant detained for an offence he did not commit, the Respondents, as the evidence showed, engaged in acts purposely to mentally and physically torment and humiliate the accused person.
As I said earlier, the Respondents decided to stay away. Depositions in an affidavit are facts which the deponent believes to be true, and so where facts deposed to in an affidavit have not been controverted such fact must be taken as true. See ALAGBE V. ABIMBOLA (1978) 2 SC 39. Affidavit evidence in support of an application not denied by a respondent is deemed admitted and conceded by the respondent. See EJIDE V. OGUNYEMI (1990) 3 NWLR (PT.141)758; LIJADU V. LIJADU (1990) 1 NWLR (PT.169)627.
Having found that the Applicant’s fundamental right has been violated then damages must follow. In SKYE BANK v. NJOKU & ORS (2016) LPELR-40447(CA) the court stated:
“In fundamental rights action, damages automatically accrue, once the Respondent has been adjudged to have violated the Applicants fundamental rights. See Ozide & Ors vs Ewuzie & Ors (2015) LPELR 24482 (CA); Ejirofor vs Okeke (2000) 7 NWLR (pt 665); Onogwie & Ors vs Odom & Ors (supra).” Per MBABA, J.C.A. (P. 31, Paras. D-E).
It could be compensatory or exemplary damages. Thus in ARULOGUN v. C.O.P LAGOS & ORS: (2016) LPELR-40190(CA) the court held:
“The Preamble to the Fundamental Right Enforcement Rules, 2009 requires that for the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. An applicant seeking redress for the infringement of this fundamental right is entitled to, in addition to the relief as to declarative and injunctive, award of damages. It is therefore safe to conclude that a finding that a fundamental right of a Nigerian citizen has been infringed upon attracts compensatory damages and in some cases, exemplary damages. See: ABIOLA v ABACHA [1998] 1 HRLRA 447; PUNCH (NIG) LTD v A-G FEDERATION [1998] 1 HRLRA 448.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 20-21, Paras. D-B).
On when exemplary damages could be awarded, the Court in ODOGU V. A.G. FED (1996) 6 NWLR (PT.456)508 held:
Exemplary damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.” PER OGUNDARE, J.S.C. (P. 12, Paras. A-C) –
I think the conduct of the Respondents as revealed in the affidavit evidence is sufficiently outrageous.
In the whole, the application of the Applicant succeeds and it is hereby:
- Declared that the arrest and detention of the applicant by the 2nd -4thRespondents from 4am on 11/11/2016 to 6.30pm of 15/11/2016 at the instigation and behest of the 1st Respondent on grounds that the applicant is the brother of Amaechi Kelechi Bede, who was suspected of having raped a girl, constitute a breach of the applicant’s right to personal liberty, and freedom of movement as guaranteed under section 35(1) and 42(1) of the constitution of the FRN, 1999 as amended.
- Declared that the 2nd– 4th Respondents conduct of confining and/or detaining the Applicant in a stinking solitary police cell at Oko-Ovoro Police Division Aboh Mbaise from 4am on 11/11/2016 to 6.30pm of 15/11/2016 after spraying teargas on the Applicant at the instigation of the 1st Respondent , constitute a violation of the Applicant’s right to personal liberty, freedom of movement and dignity of his human person as guaranteed under sections 35(1),41(1) and 34(1) of the Constitution of FRN,1999 as amended.
- Ordered that N500, 000.00 as damages be jointly and severally paid by the Respondents to the Applicant for the breach of the Applicant’s fundamental rights.
- Ordered that the Respondents are restrained from further arrest and/or detention of the applicant on account of this matter.
I so hold.
Hon. Justice I. M. Njaka
6th February 2017
Appearances:
- J. Mbachu Esq. for the Applicant
Respondents not represented.