Fundamental Right- When is the application competent-Institution of Criminal Action-Whether a hindrance to enforcement of fundamental rights- UCHENNA NWAHIRI V VICTOR O. GODFREY(Commander FSARS Police Headquarters, Owerri) & ORS- delivered by Hon. Justice Innocent M. Njaka

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE MBAISE JUDICIAL DIVISION

HOLDEN AT AHIAZU MBAISE

ON, TUESDAY, 20^TH MAY 2019.

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

SUIT NO: HAM/64/2018

IN THE MATTER OF APPLICATION BY UCHENNA NWAHIRI FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHT.

BETWEEN

UCHENNA NWAHIRI ——————- ————- APPLICANT

AND

MR. VICTOR O. GODFREY

(Commander FSARS Police Headquarters

Owerri) RESPONDENTS

MR. FRIDAY NWAIGWE

(Investigating Police Officer)

COMMISSIONER OF POLICE IMO STATE
OBINNA EMELE
CHIBUIKE EMELE

JUDGMENT

The Applicant filed Motion on Notice for the enforcement of his fundamental right. The reliefs were later amended pursuant to Order VI Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The Applicant prays for the following reliefs:

A declaration that the arrest of the applicant and detention or incarceration from the 17^th day January 2018 to the 12^th day of March 2018 by the Respondents is unlawful, illegal, wrongful, unconstitutional and constitute a breach of the Applicant’s rights as enshrine in Section 34 (1) (a), 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
An Order awarding #5, 000, 000, 00 (Five Million) Naira damages against the 1^st, 2^nd, 4^th and 5^th Respondents severally for the unlawful detention, humiliation, mental torture and agony which the Applicant was subjected to from the 17^th day January 2018 to the 12^th day of March 2018.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:

The Applicant was arrested and was in custody of the 1^st – 3^rd Respondents by the instigation of 4^th-5^th Respondents from the 7^th day January 2018 to the 12^th day of March 2018.
The Applicant’s father went to the said police station severally in order to secure the applicant’s bail to no avail.
The said arrest and detention of the applicant was in gross violation of Article 6 of the AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHT 1981 which Nigeria ratified and incorporated into our domestic law in 1983 vide AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHT (RATIFICATION AND ENFORCEMENT) Act 1983 and which article provides thus: ”Every individual shall the right to liberty and to the security of his person. No one may be deprived of his freedom except for reason and condition previously laid down by law. In particular no one may be arbitrarily arrested and detained”
The beating and brutal assault of the applicant by the 1^st and 2^nd Respondents violated the applicant’s constitutional entitlement to dignity of his person and right not to be tortured or be subjected to inhuman or degrading treatment as guaranteed under Section 34(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (AS AMENDED)

The application is supported by 19 paragraphs deposed to by NWAHIRI PAUL, the Applicant’s father. He deposed that he has visited the applicant at the police cell since his arrest and incarceration severally. He has the oral consent and authority of the applicant to depose to this affidavit and by virtue of his interaction with the applicant, he is conversant with the facts depose herein.

The Applicant is his first son who is preparing for UME (JAMB) Exams coming up soon. On the 27/ 12/2018, at Afor-Umukeze lhitteaforukwu in Ahiazu Mbaise L.G.A Imo State, the youths in their kindred of which the Applicant was among were celebrating wearing of cloth festival. After the festival, the applicant was in the happy mood as he and other youths blocked the road to urge passersby to buy them drinks.

Other road users were complying with the said youths as it is their custom and tradition. However, when the 4^th and 5^thRespondents came to the scene, they refused to stop, instead, sped off so as to injure the applicant and the other youths who blocked the road. Someone threw a bottle from the midst of the youths and the bottle hit Mr. Francis Emele’s screen but no damage was done. He stopped and identified the applicant and left. Later on Mr. Francis Emele together with the 4^th and 5^th respondents who are his brothers and some other persons came to the house of the Applicant and destroyed the Applicant’s window glass. The Applicant went and reported to their Traditional Ruler and their Traditional Ruler called for a meeting but the Respondents did not go for that meeting, however, their father came, only to tell their Traditional Ruler not to handle the matter.

On the 13/1/2018, the Applicant saw one of those who destroyed his window glass and fought with him. After the fight, the 4^th and 5^th Respondents went to their Traditional Ruler and reported the matter; another meeting was fixed on 17/1/2018 at their Traditional Ruler’s palace. Little did the applicant know that it was a set up as he was going for the meeting, 2 soldiers accosted him and started beating him and later abducted him. The 4^th and 5^th Respondents were the people who pointed at the Applicant to those soldiers before they started beating him and ordered for the applicant’s arrest by the soldiers.

The Applicant was not seen until 20/1/2018, when he received his call from FSARS department where he is been held and in custody of the 1^st – 3^rd Respondents. Ever since then he has been there more than 20 times but each time, the 1^st Respondent would say that they are still investigating the matter. One of the days, he visited the Applicant, he was sick and he complained that any day the 4^th and 5^th Respondents came to the police, the 2^nd Respondent would bring him out from their cell and would tire him and he will be beating up in their presence. The 1^st – 3^rd Respondents have not charged the applicant if there is a criminal offence he is alleged to have been committed.

Unless the court orders for his release, the Respondents will not release him.

It is accompanied by a written address wherein the counsel formulated the issue for determination as whether or not this application has merit in law as the applicant has been in detention since the 17^th day of January 2018 and still there as this application is being filed in March 2018.

It is a fact which has not been denied that the applicant was not (sic) arrested and detained without justification in law by the 1^st -3^rd Respondents at the instance of the 4^th and 5^th Respondents.

From the affidavit evidence, it can be deduced that there has been an infringement on the rights of the applicant as protected by the law. The court is urged to hold that it is terrible, cruel, oppressive, dehumanizing and uncivilized to subject a citizen of the Federal Republic of Nigeria to such treatment in the 21^st century.

According to the counsel, the applicant has been in detention since the 17^th day of January without justification of any kind. Even if the 1^st – 3^rd Respondents rush to charge the applicant with any kind of offence, they are still in breach of the provision of the constitution which states that all accused should be brought to court within 48 hours at worse.

It is submitted that section 34 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended states that “Every individual is entitled to respect for the dignity of person…” Also section 35 (1) of same constitution cited states the Every person shall be entitled to his liberty and no person shall be deprived of such liberty —“

It is further submitted that one of the exceptions of the above Sections cited is that a person’s liberty may be deprived for the purpose of bringing him before a Court in execution of order of a Court or upon reasonable suspicious of his having commuted a criminal offence. See Section 35(1)(c). However, Section 35() of the above cited Constitution, states that: “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. The expression “WITHIN A REASONABLE TIME” is defined in subsection (5) of Section 35 (1) to mean, (a) in the case of arrest or detention in any plave where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and (b) in any other case, a period of two days or such longer period in the circumstances may be considered by the court to be reasonable

It is submitted that applicant did not commit any offence known to law to warrant his arrest and detention which violated his fundamental rights as enshrined in the Constitution. Even if there was an offence suspected to have been committed by the applicant, he has not been brought to a court of law within a reasonable time envisaged by the above cited Constitution.

From the affidavit evidence particularly paragraphs 13-17, it is shown that the applicant was unlawfully arrested and detained and Section 35 (1) subsection (6) states that “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology—“

It is submitted that in the light of the foregoing that applicant’s fundamental rights have been violated by the Respondents. It is further submitted that there is no reason which will justify the continued detention of the applicant and even if the 1^st – 3^rd Respondents rush to charge the Applicant to Court upon being served this application, they are still in breach of the Fundamental rights of the Applicant and are to be held liable.

In conclusion, the counsel urged the court in view of the foregoing, to hold that the Applicant is entitled to the reliefs sought by him in this application. The court is urged to grant this application and order for the release of the Applicant forthwith.

1^st – 3^rd Respondents Counter Affidavit.

1^st – 3^rd Respondent filed 31 paragraphs counter affidavit deposed to by Inspr. Sgt Friday Nwaigwe. He stated that he is attached to the surveillance team of Federal FSARS Imo Owerri under the 1^st respondent. He is the investigating Police officer (LP.O) who investigated the case involving the applicant by virtue of which he is very conversant with all the facts deposed hereunder.

He has the consent of 1^st and 2^nd responded to depose to this affidavit. The respondents denied all the facts deposed in paragraph 1 to 19 of the applicant’s affidavit in support of his application.

A case of armed robbery, attempted murder, cultism, threat to life, conduct likely to cause breach of peace and malicious damage was reported against the applicant and his gang of cultist by the 4^th and 5^th respondents, through a written petition to the 3^rd respondent which was endorsed and referred to his team for investigation, copy of which he annexed and marked exhibit NPF I.

The applicant was arrested by a team of Operatives of the Federal Special Anti Robbery Squad team, led by Inspr Tanko Shazyn on 17/01/2018. An entry was made in the crime diary, the complainants which are the 4^th and 5^th respondents volunteered their statements freely, which they annexed and marked exhibits NPF2, NPF3 and NPF4 respectively.

He recorded the accused/ applicant statement, charged and cautioned him using the judges’ rules. The accused/applicant admitted and confessed his involvement and complicity in the offences alleged against him, the cautionary statement and its attestation by a superior Police officer is hereby annexed and marked as exhibit NPF 5.

On the same date being 17/1/2018 after the arrest of the accused/applicant, his gang members that were at large, mobilized themselves and attacked the 5^th Respondent, younger brother of the 4^th respondent and his nephew Derrick Dede and shoot them with their locally made gun at the public place where they were watching football match with intent to kill them, but they were able the to dodge the bullets/pellets by the Grace of God and they escaped that attack.

The 4^th and 5^th respondent informed him all these facts through their written petition and statements and he verily believed them to be true and correct.

The 4^th respondent was issued with a Police Medical profoma to go to Hospital or doctor for his treatment. Derrick Dede, the nephew to the 4^th and 5^th respondents also volunteered his statement, the police medical report profoma and the voluntary statement of Derrick Dede are hereby annexed and marked exhibit NPF6 and NPF7. The 4^th respondent and his nephew took photograph of the injury inflicted on them by the applicant and his gang of cultist, which is annexed and marked as NPF 8.

Paragraph 1 is false, the truth being that the applicant was arrested for a prima facie case of armed robbery attempted murder; threat to life, cultism and conduct likely to cause breach of peace and malicious damage was violent to the respondent and family and was not incarcerated.

Paragraph 2 are facts only known to the deponent and not applicant to the respondents. Paragraph 3 is false and hereby denied, but in response the respondent states that the applicant is a cultist who belongs to a deadly cult group and not awaiting any JAMB UTME Exams coming up soon.

Paragraph 4 is false, the truth being that the applicant was not among the celebrants of the Iwakwa Cultural festival by mobilizing his gang to block the main road, conducting themselves in manner likely to cause breach of peace, armed themselves with dangerous and offensive weapons robbing extorting and demanding money with violence, from innocent road users including 4^th and 5^th respondents.

Paragraph 5 is a confirmation of the criminal antecedents and allegation against the applicant, the applicant did not blocked any road because he was in a happy mood rather he mobilized the gang of his cultist armed with gun, machetes, bottles irons and woods which are dangerous and offensive weapons, blocked the road users, those who resisted their monetary demand is assaulted and inflicted with injury.

Paragraph 6 is false, No road user complied with the applicant but the 4^th and 5^th respondents informed him in his office at F-SARS Owerri on 20/1/2018, at about 1200hrs and he verily believed them that the applicant and his gang of cultist and robbers ambushed them, waiting for them to pass before they attacked them, robbed and inflicted injury on them.

Paragraph 7 is also false, in response we state that the 4^th and 5^th Respondents came to his office and informed him that it was the applicant who attacked him with bottle and inflicted injury on his head because he resisted his robbery, also hit his car windscreen and it was broken without any justification.

Paragraph 8 is not true the reason being that nobody went to the house of applicant; the applicant went to look for how the applicant and his cohorts will be arrested. Paragraph 9 is false which the respondents denies, in reply, the respondents wish to state that there was no time the applicant reported any matter at the Eze’s Palace nor any time Eze invited them for any judgment.

Paragraph 10 is false and hereby denied but the true position being that the 4^th and 5^th respondents informed him in his office at F-SARS Owerri on 20/1/2018, at about 1200hrs and he verily believed him that after the robbery attack on their elder brother on 27/12/2017 by the applicant, the applicants regrouped and mobilized his cult members and lunched attack on 4^th and 5^th respondents and their relations with gun shoots attempts, threats and armed robbery of Infinix x 507 GSM handset valued (N28,500) from one Derrick Chibuzor on his way and injured him on 11^th day of January 2018, and another attack of the 4^th respondent on the 17^th day of January 2018 by the applicant’s brother Emeka Nwahiri which he escaped for his dear life and there was no fight between the applicants’ relations but a reprisal attacks.

Paragraph 11 is false, the reason why 4^th and 5^th respondents went to their traditional rulers was because his life and lives of his relations were in the grave danger of gun attacks by the applicant and his gang members and also to lure him to his arrest.

Paragraph 12 is false, the truth being that the two naval officers was the closest security officers available to them, they then procured them for the purpose of assistance for the applicants arrested, and after his arrest they handed him over to the police for investigation, applicant was not beaten or tortured by the two naval officers or police, and was not abducted.

Paragraph 13 is a blatant lie, the 4^th and 5^th respondents do not want further break down of Law and order which was the reason he pointed him for the naval officers for identification to assist them for his arrest, as the police have met arrived at the scene, and after his arrest, he was’ immediately handed over to the FSARS Police for investigation.

Paragraphs 14, 15,16,17,18 & 19 are false; in reply they state that C.S.E Ebete (ESQ) a DSP and Legal officer attached at the FSARS Legal Section Owerri informed him in his office at F- SARS Owerri on 18/07/2018 at about 12: hours and he verily believed him that prima facie case of attempted murder conspiracy, cultism, armed robbery and Malicious Damage was substantiated against the applicant; an offence of armed robbery is a high profile felony that attracts capital punishment; neither police nor a Magistrate do not have jurisdiction to grant bail in a case of armed robbery; the police have the discretionary power to arrest, detain, investigation and arraign the applicant for prosecution; if police do not arrest, detain and investigate the applicant it will lead to further break down of Laws and orders with which they are directly charged by Law; the arrest, detention and investigation of the applicant is to forestall peace in the society where the fear of being attacked, molested or shot by the applicant and cohorts that have chosen to go armed with violence as the order of the day; the arrest detention and investigation of the applicant is a procedure permitted by the law and actions of the 1^st – 3^rd respondents is within the frame work of the Law; the 1^st – 3^rd respondents will not be liable for any breach of the applicant’s fundamental right if the allegation against him discloses prima facie case; the applicant cannot hide under the umbrella of fundamental right to escape criminal liability; the police have concluded their investigation and charged the applicant to court of competent jurisdiction that declined jurisdiction to try an offence of armed robbery and have ordered that the original case file be transmitted to the DPP and remanded the applicant at the Prison Custody Owerri. The charge sheet hereby annexed and marked as NPF 9; the applicant’s counsel is also representing the applicant/ accused in the criminal charge against the application(sic); this applicant’s suit is incompetent and lacking in merit; this applicant’s fundamental right suit is ancillary to criminal charges of conspiracy, cultism, armed robbery malicious damage, and act intended to cause grievous harm; there is no cause of action arisen, or accrued to the applicant which is exercisable by him in his favour against the respondents; this honourable court cannot exercise its jurisdiction on incompetent suit; it is their prayer that this honorable court strike out or dismiss this suit in interest of justice.

The applicant was hale and hearty when he was charged to court and did not complained of any health issue or challenge while in detention and nobody touched him. The applicant’s suit and affidavit are not made in good faith.

The counsel to the 1^st – 3^rd Respondents filed written address and formulated issue for determination as:

Whether the Applicant’s suit is competent at the first instance for this Honourable court to exercise its jurisdiction.
Whether the Applicant is entitled to’ damages and his reliefs sought where non of his fundamental right were violated.

On issue 1, the counsel wants the court to take judicial notice of section 214 (2) (b), section 35(1) (c), and section 35 (4) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended ), section 4, 23, 24, 27 and 341 of the Police Act Cap p19 Laws of the Federation of Nigeria 2004, section 10 of the criminal procedure Act Cap p41 Laws of Federation of Nigeria 2004, section 27 of the firearms Act Cap F28 Laws of the Federation of Nigeria 2004 and section 3(1) of the Robbery and’ firearms (Special Provisions) Act Cap RII Laws of Federation of Nigeria 2004, as applicable in Imo State. It is submitted that the police do not only protect life and property, effect lawful arrest, investigate, prosecute offenders’ but also prevent (sic) laws and orders with which they are directly charged and conferred upon them by the law. The court is urged to so hold, and resolve the above issue in favour of the 1^st – 3^rd respondents. Relied on Onah vs Okenwa (2010) 7 NWLR (PT 1194) 512 at 535 PARAS A-B PP 536 PARAS A-C and Gani Fawehinmi vs IGP (2002) 7 NWLR (PT 747)606 at 670 Paras F-G

It is submitted, furthermore, where “the police when invited to investigate an allegation of crime but fails to act, it will lead to a breakdown of law and order. Relied on Okochi Vs Aminkwi (2003) 18 NWLR CPT 851) 131 at page 28 ratio 61.

According to the counsel, the 1^st 3^rd respondents have deposed in their paragraph 10 and 26 of the counter affidavit that the subject matter of this suit, borders on attempted murder, threat to life, cultism and conduct likely to cause breach of peace and malicious damage, reported by one Francis Emele through a distress call made to Police Control Room Owerri, which fail within the statutory duties of the police and before the F-SARS police responded, the Naval officers had already assisted and arrested the applicant and his gang who Assaulted the 4^th 5^th Respondent’s, use broken bottle to inflict injury in their head, face and other part of their body which caused them harm, escaped to an unknown which the applicant was charged and destination, which the Applicant was charged and cautioned and later arraigned in court of competent jurisdiction, and the court remanded the applicant and transmitted the original case file to the DPP for Legal opinion, yet the applicant still proceeded to this honourable court to file this suit, alleging violation of his fundamental right, Which is an afterthought, and the court is urged to so hold

The legal question now is, will the applicant allege violation or breach of his fundamental right having substantiated prima facie cases of armed robbery attempted murder, cultism etc against the applicant and remanded in prison custody? I will urge this honourable court to resolve in the negative.

Or will an allegation or complaint of criminal cases of armed robbery, attempted murder, cultism threatening, and malicious damage which are prima facie, constitute or amount to a violation or breach of his fundamental right?

The court is urged to answer in the negative and resolve it in favour of the 1^st -3^rd respondents by the plethora of authorities of decided cases and statutes cited above.

It is submitted that where the applicant is invited or arrested, detained and investigated based on a complaint or a petition on such a prevailing crime as in the instant case, it cannot be said that the police being led by the 1^st– 3^rd respondents have violated or infringed on the right of the applicant or person against whom the report was made. See the case of Bassey vs Alfa (2010) ALL FWLR. 1477

It is submitted further that the intervention of the respondents and his men were necessary in time where many innocent citizen are victims of crime in Imo State which demands for invitation, Arrest, and investigation as proactive measures to stop further criminal act as in the instant case, far if such complaint is left unattended to, it would lead to a breakdown of law and order. see Okochi v Aminkwi and Fawehinmi vs IGP (supra).

According to counsel it is also trite that an individual cannot by application for fundamental right shield itself from criminal investigation and prosecution. Referred to A.G Anarnbra State Vs UBA (2005) NWLR (PT 947) P.44 at 66-67. At the stage of investigation of any crime by the police, it is not always proper to terminate same by a judicial process unless it is clearly oppressive of these salient points that the court held in the instant case. The court is urged to so hold. Referred to Okanu vs COP Imo State (2010) I CHR’ 407 at 408 and 411

It is submitted further that assuming but without conceding that the 1^st applicant is arrested, detained, investigated, and prosecuted, in a prima facie criminal cases as in the instant case, 1^st – 3^rd respondents with their men not be liable for any breach of fundamental right. Refer to Afribank Plc vs Ovirne (2004) 2 NWLR (PT858). This implies that some discretion can be applied by the police to forestall further commission of crime.

Relied on Alhaji Atta vs Cop (2003) FELR (Pt185)409 at 418.

According to the counsel, the Naval Officers intervention in arresting the applicant was for the purpose of assistance and synergy between the Naval and Police in cooperation, with other ministry or agency and was not for the purpose of using the military to arrest, intimidate or threatening the life, of the applicant. Furthermore, the arrest investigation and prosecution of the applicant are procedure permitted by law, and also on a reasonable suspicion of having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; see also section 35 (l)(C) of the 1999 constitution (as amended).

According to the counsel, by virtue of section 35 (4) and (7) of the 1999 Constitution of Nigeria (as amended), 1^st – 3^rd respondent will not be liable for the breach of the applicant’s fundamental right, assuming but without conceding that the applicant was detained up to one month in the custody of the 1^st – 3^rd respondent in capital offence of armed robbery.

It is submitted that arrest when properly made, cannot constitute a breach of fundamental right. Referred to Udo v . Essien (2015) 5 NWLR pt 145) 83 at p. 103 paras F-G. In the instant case the, applicant was arrested, detained, investigated and prosecuted by the office of the 1^st -3^rd respondents and therefore not liable for any breach of his fundamental right.

According to the counsel, there are plethora of authorities that states that jurisdiction being radical in nature, the appropriate time at which a party to proceeding should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time proceedings arises. If the party sleeps on that right and allows the proceedings, to continue on the irregularity to finality then the party cannot’ be heard to complain at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings. See CFAO vs. The Onitsha Industries Ltd. 11 N LR 102 at P. 103 and Johnson VS. Aderemi & ors 13 WAC A 297.

It is submitted that the 1^st – 3^rd respondents are also challenging the competence of the applicant’s suit and the jurisdiction of this court to exercise its jurisdiction on the ground that the subject matter of this suit arose from prima facie cases conspiracy, armed robbery, attempted murder, cultism, threat to life malicious damage and conduct likely to cause, breach of peace are serious contentious criminal cases which are ancillary to this suit. And the court has made an order of remand against the applicant and, is functus officio, this has robbed this honourable court the jurisdiction to entertain or adjudicate upon this suit.

It is submitted further that criminal cases of conspiracy, armed robbery, attempted murder, cultism, threat to life, malicious damage and conduct likely to cause breach of peace which resulted this suits are cases which falls within the discretionary powers of the police and men of 1^st– 3^rd respondents to investigate and prosecute as provided by the constitution of Nigeria, and therefore protected by the law, as it is a procedure permitted by the law. Therefore restricting or restraining the 1^st – 3^rd respondents and his men from investigating or prosecuting the applicant will amount to an infringement of their constitutional right of discretion to investigate and prosecute the applicant.

It is submitted that Fundamental right enforcement procedure is unsuitable for contentious action. Referred to Achebe V. Nwosu (2003) 7 NWLR (pt818) page 103 at 131 para B-E. it is submitted further that Assaults, threatening violence and unlawful possession of firearm are a highly contentious matter that 3^rd and 4^th respondents and his men ought to have discretionally dealt with within the framework of the law, or alternatively the applicant should have come by way of writ of summon, instead of fundamental right.

The mere fact that fundamental rights is infringed, does not automatically entitle the applicant to approach the court by fundamental human rights procedure, it must form the main plank of the action, and the court is to determine whether the matter brought before it is really one of the fundamental human rights in spite of the urgency of the applicant or his counsel in crafting the case to so look. Referred to Governor Kwara State vs. Lawal (2006) ALL FWLR(pt336) page 313, at page 346 paras E per Coomasie JCA” (as he then was). Where a breach of fundamental human right is ancillary to the substantive claim, case is not to be filed under the fundamental human rights procedure. Referred to University of Ilorin v. Oluwadare (2006) 6-7 sc page 154 (2006) AFWLR (pt 338) page 747 at page 755 paras A-C per Onu JSC. Where enforcement of fundamental rights is subsidiary, ancillary or incidental to the main claim, action must be instituted by writ of summon see. Achebe v. Nwosu (supra)

It is submitted that a situation where a person who has committed a crime or reasonably suspected to have committed a crime seeks refuge under section 35 of the 1999 constitution to avoid arrest, investigation and possible prosecution, upon such a crime as in the instant case is indeed an affront to the intention of the constitution. Referred to Dokubo Asari vs FRN (2007) 123 NWLR (pt.1048)320 at 360 para B-E. The applicant’s suit is not brought in the dictate or conformity of the fundamental right enforcement procedure rule.

It is further submitted that for any arrest to be unlawful, it must be without any allegation of crime. Relied on Society Generale Bank vs Afekoro (1999) 11 NWLR (pt638) at page 521. The invitation, investigation and intended prosecution of the Applicant were predicated upon the report of criminal act of the applicant to the respondents which their actions are within the frame work of the law.

It is submitted that the use of declaratory reliefs in relief 2 (a) and (b) of the reliefs sought by the applicant under fundamental right which is against the rules as evidence is by affidavit and not by pleading which has rendered the applicant’s suit invalid. Referred to Olisa Agbakoba vs Director State security Services (1994) 6 NWLR (pt 351) at pg 475. The position was also reaffirmed by the Supreme Court in Director state security Vs Olisa Aqbakoba (1999) 3 NWLR (pt 695) 314 at 354 . The above position of declaratory reliefs renders applicant’s suit invalid and as such ought to have been thrown overboard.

According to the counsel where a procedure is provided any departure is fatal as in the instant case. See Inakoju Vs Adeleke Rashid Ladoja and others (2000) 29 NSQR (pt 11) 958 at 998 ratio 59. Where jurisdiction is in issue no matter how good the proceedings, it is. a nullity see Gafar vs govt. of kwara State (2007) ALL FWLR (pt 360) 1415- 1440 para F-G.

It is submitted that the onus is still on the applicant to prove or show that the 1^st -3^rd respondents have violated his fundamental right, having failed to prove same the law will not avail him as the 1^st – 3^rd respondents have not violated the applicant’s fundamental right.

On whether the applicant is entitled to damages and his reliefs sought where non of his fundamental rights were violated, it is submitted that the court or judge is empowered to make any order that may be considered just and appropriate once it is proved that a fundamental right has been violated in relation to any person. But the question is, have the applicant substantiated in his claim that his fundamental right have been violated by the 1^st – 3^rd respondents? The court is urged to answer in the negative and resolve it in favor of the 1^st – 3^rd respondents, as there is no iota of proof of any Violation of the applicant’s fundamental right in his suit.

According to the counsel, the common law principles on the award of damages do not apply to matters brought under fundamental rights procedure. The procedure for the enforcement of the fundamental was specifically promulgated to protect fundamental rights from abuse and violation by authorities and persons, when a breach of the proved, the victim is entitled to compensation apology but not damages. But if the victim fails to prove that his fundamental right was violated, he is not entitled to any compensation or apology in any guise. It is submitted that issues of damages are not found in chapter 4 of the 1999 constitution.

In conclusion, it is submitted that the applicant’s suit is incompetent, lacking in merit, this court have no jurisdiction to entertain same. It is only intended to prevent the course of justice, distort investigation and prosecution which this court should vehemently refuse. It is therefore, the counsel’s prayer, that this Court should strike out, dismiss or set aside the proceeding with substantial cost.

Counter Affidavit in Opposition to the Preliminary Objection dated 24/9/2018 and filed same date.

The Applicant filed a counter affidavit to the Preliminary objection of the 1^st – 3^rd Respondents. It is a 6 paragraphs counter affidavit deposed to by MR. PAUL NWAHIRI, the Applicant’s father. He stated that he his consent and that of his Counsel to depose to this affidavit. He is conversant with the facts of this application as he met and discussed with the Applicant at the Police before he was charged to Court.

He has seen and read the Preliminary Objection in this application as shown to him by the Applicant’s Counsel G. Killiwe-Nwachukwu Esq who informed him on the 4/10/2018 at his Chambers at Egbu at about 2 pm and he verily believed him that it is not true that the application bordered on the case of conspiracy or any other offence as alleged in paragraph 4 of the Affidavit in support of the Preliminary Objection, rather the matter is Fundamental Right APPUCATION; it is not true as alleged in paragraph 5 of the Affidavit in support of the Preliminary Objection, that the Applicant was arrested after a petition was written and referred to FSARS for discreet investigation. The said petition was written on the 18/1/2018 and was referred to the 2^nd Respondent (Sgt Friday Nwaigwe) on the 23/1/2018 for investigation, whereas the 4^th – 5^th Respondents had arrested the Applicant on the 17/1/2018 and brought him to the police station before the petition was written; this Court has jurisdiction to entertain the application. The Applicant was arrested on the 17/1/2018 and was charged on the 13/3/2018, a day after the 1^st – 3^rd Respondents were served with this application which was about two Months after his arrests and this is the cause of action against the Respondents; that it is not true as alleged in paragraph 6 of the Affidavit in support of the Preliminary Objection that the Applicant is challenging the arrests or the investigation of the police but the exercise of his Fundamental Rights; Fundamental Right is SUI GENERIS’ and there is no ancillary or incidental claim by the Applicant and all the Respondents were duly served in accordance with the rules of Court.

Paragraph 7 of the Affidavit in support of the Preliminary Objection is false. The Respondents violated the Fundamental Right of the Applicant for keeping him in their custody from 17/1/2018 to 13/3/2018. The Applicant’s application is not challenging the constitutional right of the 4^th – 5^th Respondents to make a report to the police but his continued detention or incarceration from the 17/1/2018 to the 13/3/2018 when he was charged.

Counsel filed a Written Address in opposition to the Preliminary Objection. The counsel started by saying that this Preliminary Objection is incompetent in that Order 11 Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009 states that,” Where the Respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit” The 1^st 3^rd Respondent were served with the said application on the 12^th day of March 2018 and they decided to go to sleep only to wake up after 6 months to react. Let me still respond to the issue herein

The counsel adopted issue Number ONE as formulated by the 1^st – 3^rd Counsel and opined that issue Number TWO formulated on damages is what the Court will determine during substantive application.

According to the counsel, the Applicant was arrested by Naval Officers engaged by the family of Emeles (the 4^th -5^th Respondents) on the 17/1/2018. He referred to paragraph 5 of the Affidavit in support of Motion and exhibit “NPF1″ annexed to the Counter Affidavit filed along with this Preliminary Objection dated 24/9/2018 and file same date.

It is submitted that, “A trial Court is at liberty to look into the case file which otherwise forms part of the record and make use of materials therein in dealing with matters irrespective of whether or not any facts are in controversy and as always in the interest of justice of the case.” See M & B ELECTRICAL CO LTD v GOVT CROSS RIVER STATE (2005) ALL FWLR (pt. 284) Pg 350 ratio 10.

According to the counsel, when the Applicant was arrested on the 17/1/2018, he was handed over to the Police same day. The following day being the 18/1/2018, one Ogbonnaya Alama Esq. was engaged to write a petition against the Applicant which he immediately wrote. Part of the content of the said petition read:

“That yesterday the 17^th day of January, our client decided to engage the services of Naval Officers at Awaka to arrest Uchenna Nwahiri at the village and he was arrested and brought to the Anti Robbery Squad (SARS) Owerri later on last night”

According to counsel, the said letter was referred to the 2^nd Respondent to investigate on the 23/1/2018. In other words, before the 2^nd Respondent (who takes instructions from the 1^st and 3^rd Respondents) could begin the said investigation, the Applicant has been detained for 6 days unlawfully in their custody at the instigation of the 4^th – 5^th Respondents. After the 2^ndRespondent concluded his investigation, the Applicant was not released or charged to Court about two Months later when the Applicant through his Counsel brought this application and served the Respondents, the next day, the Applicant was then charged to Court. This is the cause of action. The 1^st – 3^rd Respondents cannot say that there is no cause of action or no infringement of the Fundamental right of the Applicant by them.

The counsel is of the view that the 1^st – 3^rd Respondents through their Counsel cited some authorities which ought to be cited and argued during the substantive application, however, he will explain them. He went on and stated that Section 214 (2) (b) of the 1999 Constitution of the Federal Republic of Nigeria which states: “The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law” according to him, this Section is not applicable in this matter as the Applicant is not challenging the powers and duties of the 1^st – 3^rd Respondents. The issue before this Court is the detention of the Applicant more than the time allowed by the law.

Again, Counsel to the 1^st – 3^rd Respondents also cited Section 35 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria This Section is one of the exceptions that every person shall be entitled to his liberty and no person shall be deprived of such liberty. It states that a person’s liberty may be deprived for the purpose of bringing him before a Court in execution of order of a Court or upon reasonable suspicious of his having committed a criminal offence. However, the 1^st – 3^rd Respondents cannot hide under this section to detain the Applicant from the 17^th day of January 2018 to the 12^th day of March 2018 before charging him to a Magistrate Court on charge of Arm Robbery knowing too well that Magistrates Courts do not have jurisdiction to try arm robbery cases.

Assuming but not conceding that the Applicant committed a criminal offence, Section 35 (4) of same Constitution, states that, “A 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 … Could there be said that the said reasonable time accommodated the number of days the Applicant was detained? The answer is no. However, the expression WITHIN A REASONABLE TIME is defined in subsection (5) of Section 35(1) to mean, (a) in the case of arrest or detention in any place where is a court of competent jurisdiction within a radius of forty kilometers, a period of one day and (b) in any other case, a period of two days or such longer period in the circumstances may be considered by the court to be reasonable.

It is only this court that can say whether the period between the 17^th day of January 2018 to the 12^th day of March 2018 was not reasonable or otherwise for the Applicant not to have been taken to the Court. He is of the view that this issue should be determined during the main application.

According to the counsel, the 1^st – 3^rd Respondents at paragraph 7(f) of the affidavit in support of motion alleged that they were not personally served with the processes but failed to state how they were served or how the processes got to them. Order V Rule (2) of the Fundamental Rights (Enforcement Procedure) Rules 2009 states that,” the application must be served on all parties directly, so long as a service on the Respondent’s agent will amounts to personal service on the Respondent”. Was there service effected on the 1^st – 3^rd Respondents via their agent? The answer is yes. He referred to the affidavit of service in the Court’s file.

The counsel urged the Court to resolve this issue in favour of the Applicant and hold that this Preliminary Objection is without merit.

According to the counsel the ISSUE number two formulated by the Respondents is incompetent as it is not at this stage that the Court will consider whether or not the Applicant is entitled to damages. The court is urged to dismiss the Preliminary Objection.

COUNTER AFFIDAVIT OF 4-5 RESPONDENTS

The 4^th – 5^th deposed to a joint counter affidavit of 25 paragraphs deposed to by Mr. Obinna Emele, the 4^th respondent in this application. He stated that he is conversant with the facts of this case and he has the oral consent and permission of the 5^th respondent to depose to this counter affidavit.

The fifth respondent is his brother. He has read the affidavit in support of this application for the enforcement of the applicant’s fundamental rights. Most of the paragraphs which concern the 4-5 respondents are bundle of lies and half truth. It is true, that the applicant attacked his elder brother, Mr. Francis Emele at Afor- Umukeze Ihitteaforukwu in Ahiazu Mbaise Local Government Area of lmo State during their native ceremony of wearing clothes (iwa akwa) on the 27/12/2017.

He was in his own car with his family and his elder brother Mr. Francis Emele was in his own car too and they were driving towards lhitteaforukwu market, suddenly he looked through my side mirror, he saw a group of boys on top of his elder brother’s car and others were throwing stones on the wheel (sic) screen.

He came down to inquire why and Uchenna (the applicant) in this case ordered his gangs to beat him up and he managed to dodge the bottle that he threw on him Then he drove off with the car to inform his family members. Ever since that time Uchenna has been threatening and terrorizing his life and that of his entire family with weapons.

Before he could come back to the scene of the incident, the applicant has already broken his elder brother’s head with bottle and destroyed the wind screen of his (Honda IV. Tech/End of Discussion) Model.

As if that was not enough, on the 11^th day of January, 2018, he attacked his nephew Derrick Dede Chibuzor on his way to Ekeahiara junction while accompanying his friend Chukwuebuka Ogu with a motor cycle, he double crossed them with his gang and ordered Derrick Chibuzor to come down from the motorcycle with an offensive weapon, he attacked and hit him with a broken bottle which made him to sustain serious injuries, and robbed him of his Infinix x 507 GSM handset valued N28,500.00.

When his nephew regained consciousness, he asked him to give his phone back, he started beating him, even to the extent of stabbing him on the left side of his head, he fainted and was rushed to the hospital for treatment.

On the 17^th January, 2018, Emeka Nwahiri (the brother to the applicant) attacked Chibuike Emele(the 5^th respondent in this application) and himself with a gun and before they could know what was going on, there was a gun shot at the direction where they were, he ran for his life and his brother Chibuike escaped too.

There was no personal service on the 4 -5^th respondents. At the first time the court bailiff came to serve them, he met their father (Chief Emele) at home, the bailiff told him that he was looking for Obinna and Chibuike Emele to serve them papers from the court.

Their father, told him to hand over the papers to him, that his children, were not around, and they do not live in the village but Owerri city to enable him communicate to them but he refused that it would not be a personal service and the court bailiff left.

He later came back for the 2^nd time and met the father of the 4-5^th respondents at the drinking bar, the father of the 4^th – 5^th respondents requested for the papers at the 2^nd time but he refused, he now told him to go since he did not want to hand over the papers to him and he left. The 4 -5^th respondents came home and their father told them that someone came from Ahiazu High Court to serve them papers and he told him to give him the papers and he refused. The 4^th respondent went to the court and collected the processes from the Former Registrar Obi on the 15^th of March. The processes were not pasted at the gate in the compound as ordered by the court, but there was an affidavit of service to that effect.

Paragraphs 5,6,7,8,12,15,16, and 17 are false, the applicant and his gang were not in any happy mood. They reported the case to Imo state Police Command and the case was assigned to Federal SARS Owerri

All efforts to arrest the applicant and his gang proved abortive and that was why, on one of the occasions when they were carrying out their nefarious activities on the 4-5^th respondents and their relation, the naval officers who were passing by noticed it, stopped and helped to apprehend him and immediately handed him over to the police.

They are not in control of the police and the way they carry out their duties. They did not infringe on the fundamental human right of the applicant. They did their duty as responsible citizens and should be commended and therefore not liable to pay for any damages

The interest of justice will be better served, if this application is refused as the grant of same would encourage anarchy in the society. They will be greatly prejudiced if this application is granted.

Counsel to the 4^th – 5^th Respondents filed written address, wherein the counsel stated he will nominate one issue for determination and adopt two issues of the Applicant.

WHETHER THIS APPLICATION IS COMPETENT

It is submitted that this application is incompetent in that it does not come within the purview of chapter 4 of the 1999 constitution as amended. The principal issue in this application can be ascertained from 1 and 2 of the grounds upon which reliefs are sought and paragraphs 5-18 of the 4^th – 5^th respondents counter affidavit for a claim to qualify or fallen under fundamental rights, it must be clear that the principal relief is for enforcement or for securing the enforcement of fundamental right and not to redress a grievance that is ancillary to the principal relief which itself are not known to fundamental right which renders the application incompetent. See: THE REGISTERED TRUSTEES FAITH TABANACLE CONGREGATION CHURCH V. IKWECHEGH (2000) 13 NWLR (PT 683) PAGE 1.

The issue of incompetence touches on the jurisdiction of the court, once an application is incompetent, then the court lacks jurisdiction to hear it and the court is urged to so hold.

It is submitted that where the main claim before the court is not on fundamental right as in this case the procedure is inappropriate, conspiracy, arm robbery, attempted murder, cultism, threat to lives, conduct likely to cause breach to peace and malicious damage to property on the respondents is not a fundamental right issue.

On issue 2, it is submitted that for an application alleging infringement of the fundamental right to succeed, the applicant must place before the court all, until evidence regarding the infringement or breach of such rights. SEE: FAJEMROKUN V. CB (NIG.) LTD (2002) 10 NWLR (PT.774) 95. According to the counsel, in the instance case, the applicants told unsubstantiated stories of how he was detained. The law is very clear that he who alleges must and in this case prove allegations against the 4^th – 5^th respondents. It has not been shown in any way that the applicant was detained for longer than necessary or dehumanized in any manner. The court is therefore, urged to resolve the issues in favour of the respondents.

On whether the Applicant is entitled to the reliefs sought, it is submitted that the applicant has not been able to prove that any of their fundamental rights as protected by the constitution of the federal Republic of Nigeria 1999 has been breached or is likely to be breached or being breached. If the court takes a drastic look at the facts and papers before the court, it will be very clear that the applicant has been charged to court and court of competent jurisdiction has made an order remanding the applicant at the Owerri Federal Prisons custody and no win court. It is now functus officio.

There has (sic) conspiracy, arm robbery, attempted murder, threat to life and conduct likely to cause breach of peace of the applicant to the 4^th – 5^th respondents. This is not a case of breach of fundamental rights.

The court is urged to hold that the applicant is not entitled to any damages and to dismiss same with substantial cost for being frivolous

The Applicant filed a further affidavit to the Counter Affidavit of the 4^th – 5^th Respondents. It was sworn to by NWAHIRI PAUL, the Applicant’s father who is still in custody though not in the 1^st – 3^rd Respondents’ custody for now

He has the consent of the Applicant and that of his Counsel to depose to this further-affidavit

The Counter-Affidavit of the 4^th – 5^th Respondents was showed to the Applicant in his presence by his Lawyer at the Federal Prisons Owerri on the 4/12/2018 by 2.30 PM and by virtue of the conversations between the Applicant and his lawyer and interaction with the Applicant about the matter, he is conversant with the fact of the matter.

The said Counter-Affidavit was filed out of time. Paragraph 5 of the Counter-Affidavit is false as there was no time the Applicant attacked anybody, that day because it is a sacrilege in our custom to cause trouble during Iwa Akwa ceremony.

Paragraph 6 of the Counter-Affidavit is partly true to the extent that some youths blocked the road to urge the passersby to buy them drinks which is compulsory. It was a merriment occasion.

Paragraph 7 of the Counter-Affidavit is false. The Applicant has no gang and he never ordered anybody to beat up the 4th Respondent and never threw a bottle at him. The 4^th Respondent is put to the strictest prove of the fact stated in paragraph 8 of the Counter-Affidavit as the Applicant never threatened and/or terrorize the life of the 4^th Respondent and his entire family as there was no previous quarrel between the Applicant and the 4^th -5^th Respondents prior to the 27/12./2017.

Paragraphs 11 and 12 of the Counter-Affidavit are false, the said Derrick Chibuzor has given evidence in sister case on 2/10/2018 in a criminal case and he did not say that the Applicant attacked him with anybody let alone a gang. The Applicant only had fight with the said Derrick Chibuzor in which the later alleged that his handset was collected by the Applicant.

Paragraph 13 of the Counter-Affidavit is false. The said Emeka Nwahiri is based in Calabar, he was not at home on the 17/1/2018. He only visited home during Christmas (2017) and left for calabar on the 3/1/2018 where he based.

Paragraphs 14, 15, 16 and 17 of the Counter-Affidavit are false, except to say that there was no personal service but a substituted service. He was the person who acted as a pointer the first time the Bailiff went to serve the 4^th – 5^th Respondents at their house but they were not at home. Their father asked whether he could receive the court’s processes for his sons but the Bailiff refused and told him that it was personal service, he would not give the court’s processes to him. This happened on the 15/3/2018.

When they came back and informed the Applicant’s Counsel that the Bailiff was unable to serve the 4^th – 5^th Respondents because they were not at home, he said he knew what to do and later applied for substituted service and the Court granted the application.

Himself and the Bailiff went again and he pasted the court’s processes at the gate of the 4^th – 5^th Respondents, As he was pasting them, the 4^th – 5^th Respondents’ father shouted from a bar behind, “What are you doing at my gate?” and started coming to meet them. When he got closer, the Bailiff was through and the man chased the Bailiff away with his walking stick.

Paragraphs 19 and 20 of the Counter-Affidavit are false. The 1^st– 3^rd Respondents had filed their own Counter-Affidavit on 24/9/2018 and on it they attached a document exhibited as NPF1 in paragraph 6. The said exhibit is a petition against the Applicant and which shows that the Applicant had been arrested by the 4^th -5^th Respondents family and handed over to the 1^st – 3^rd Respondent a day before the petition was written. The Applicant was arrested on the 17/1/2018 whereas the said petition was written on the 18/1/2018. The Applicant was being held from 17/1/2018 to 23/1/2018 before the 3^rd Respondent referred the petition to the 2^nd Respondent for investigation.

Paragraph 21 of the Counter-Affidavit is true but in this case the

4^th – 5^th Respondents including one Dr. Francis Emele the eldest son of the 4^th – 5^th Respondents family who is now in United States of America were telling the police what to do and not to grant the Applicant bail. The Applicant was tortured by the 2^nd

Respondent whenever the 4^th – 5^th Respondents visited the station with Dr. Francis Emele. This is because the Applicant refused to sign a document they brought for him if he wanted to be freed. The Applicant was detained from 17/1/2018 to 12/3/2018 when the 1^st -3^rd Respondents were served with this Fundamental Right application, the police rushed and charged him for armed robbery.

Paragraph 22 of the Counter-Affidavit is not correct, as it is only the Court that will decide whether the Applicant’s Fundamental

Human Right was breached or infringed. Paragraph 23 of the Counter-Affidavit is also not correct; rather the granting of the application will serve as a deterrent to the police arbitrary arrest and unlawful detention of a Nigerian citizen.

Paragraph 24 of the Counter-Affidavit is false. The Applicant is the person who will be prejudiced if the application is refused. The court is said to be the hope of a common man. The Applicant was charged on a hookup charge of armed robbery but the main complainant Derrick Chibuzor gave evidence as PW1 on 2/10/2018 in charge Nos; HAM/52C/2018 & HAM53C/2018 consolidated in which he exonerated the Applicant from the allegation of armed robbery.

The further affidavit is accompanied by a written address of counsel wherein he formulated issue for determination as:”Whether the Counter-Affidavit of the 4^th -5^th Respondents dated and filed on the 30^th day of November 2018 Competent Argument

It is submitted that by the provision of Order 11 Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009, a Respondent served with an application for the Enforcement of the Fundamental Right of an Applicant has 5 days to file his Counter-Affidavit if he intends to oppose same. Fundamental Right Enforcement application is a sui generis and time is of essence in filing counter-Affidavit or preliminary objection against the application.

According to the counsel, the 4^th – 5^th Respondents were served by order of this Court and affidavit of service is before Your Lordship. The 4^th – 5^th Respondents stated that there was no personal service on them of the application in paragraph 14 of their Counter-Affidavit. There was no personal service but a substituted service as ordered by the Court. The 4^th Respondent stated that he went to the court and collected a copy of the application. The counsel queried how the 4^th Respondent got the suit number and parties name when he got to the said Ahiazu High Court Registry? The essence of service of Court’s process is to bring the pendency of a matter to the knowledge of the party involved. If we believe that he got a copy of the application on the 15/3/2018 as alleged, he filed his first Counter-Affidavit on the 4/7/2018 and later filed another one on the 30/11/2018.

It is submitted that whenever a party denies service of a court’s process where there is an affidavit of service on him in the Court’s file, the law requires him to file a Counter-Affidavit opposing the affidavit of service by the Bailiff otherwise the Court is bound to act on the affidavit of service of its official.

It cannot be true that the Bailiff could go to the 4^th – 5^th Respondents house the second time without pasting the process on their gate as ordered by the Court.

The counsel relied on JAMIU v AYINLA (2010) Vol 9 WRN Pg 72, Ratio 8, it was held that, “Where a process is to be filed within a specific time prescribed by law and the process is filed outside the prescribed time, that process is incompetent .. ” , we submit that to this end the Counter Affidavit of the 4^th – 5^th Respondents having been filed out of time is not properly placed before this Honorable Court.

Finally, by this further-Affidavit of the Applicant together with the affidavit and the Amended Statement pursuant to Order VI, Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, the Applicant proved that he was detained by the 1^st -3^rd Respondents by the instigation of the 4^th – 5^th Respondents from the 17^th day of January 2018 to the 12^th day of March 2018 contrary to the provision of the 1999 Constitution of the Federal

Republic of Nigeria as amended; which infringement entitles him compensation.

According to the counsel, in SHUGABA DARMAN v FEDERAL MINISTER OF INTERNAL AFFAIRS (1981) 2 NCLR 459, the Court awarded compensatory damages for interference with the Applicant’s freedom and right to personal liberty. Also the Supreme Court awarded damages for incarceration in JOSEPH ODOGWU v A.G & 6 ORS (1996) 6 NWLR (pt. 456) 508. have earlier stated in the Written Address in support of the main

application that any person who is arrested or detained in accordance with bsection (1) (C) of the section shall be brought before a Court of law within a reasonable time. We expect the Respondents to justify the detention of the Applicant more than the days allowed by the law assuming the Applicant committed any offence that warrant his arrest.

The court is urged to ignore the Counter-Affidavit of the 4^th – 5^th Respondents as well as the Counter-Affidavit of the 1^st – 3^rd Respondents same filed out of time without leave of this Court.

The 1^st – 3^rd Respondents filed Notice of Preliminary Objection brought pursuant to Order VIII Rule 1& 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Section 35(1) of the 1999 Constitution of Nigeria (As Amended), Section 10 of the Criminal Procedure Act Cap C41 Laws of the Federation of Nigeria 2004 and Inherent Jurisdiction of the Court. They pray the court for:

AN ORDER striking out the Application’s suit or setting aside the proceeding for being incompetent and for want of jurisdiction.
AND ANY OTHER ORDER OR ORDERS this Honourable Court may deem fit to make in the circumstance.

The grounds upon which our application was made are as follows:-

That the subject matter that resulted the alleged violation of the application’s fundamental right is conspiracy, armed robbery, attempted murder, cultism; threat to life, conduct likely to cause breach of peace and malicious damage which fall within the statutory duties of the police to investigate and prosecute.
That the applicant is challenging the statutory powers of the police.
That the alleged violation of the application’s (sic) fundamental right is merely incidental or ancillary to the principal claim or reliefs which are conspiracy armed robbery, attempted murder, cultism, threat to life, conduct likely to cause breach of peace and malicious damage which are prima facie.
That the applicant’s suit is incompetent and the honourable court cannot exercise its jurisdiction to adjudicate upon it.
That the applicants’ claim or alleged violation of his fundamental right is without proof.
That there was no personal service of the originating process on the 1^st, 2^nd and 3^rd
That 1^st, 2^nd and 3^rd respondents did not violate the fundamental right of the applicant.
That the police Act provides for an individual or personal liability for misuse of power.
That there is no cause of action which has accrued and which has become exercisable in favour of the Applicant against the 1^st, 2^nd and 3^rd
That the Applicant’s suit is seeking to challenge the constitutional rights of the 4^TH and 5^TH respondents to lay complaint to the 1^st, 2^nd and 3^rd respondents who are police institution and the statutory power of the police to investigate this complaint.
That jurisdiction is fundamental and when it is lacking, the proceeding no matter how well conducted is an exercise in futility.
That party cannot by connivance and acquiescence confer jurisdiction upon the honourable court.
That relief 1 and 2 of the applicants reliefs sought are declaratory reliefs which are not known to fundamental rights enforcement procedure rules, when evidence is by affidavit.
That applicant’s suit not brought in the dictate or conformity of the fundamental right enforcement procedure rule.
That parties or applicant cannot shield itself under the umbrella of fundamental right to perpetrate its criminal tendencies.
That the applicant cannot also hide under the fundamental right to escape criminal responsibility.
That the applicant’s suit is an affront and incompetent which have denied this honourable court exercise its jurisdiction.
That the applicant have(sic) been charged to court and court of competent jurisdiction have (Sic) made an order remanding the applicant at the Owerri Federal prisons custody and court is now functus-officio.

The preliminary objection is supported by 10 paragraphs affidavit sworn to by Sgt Friday Nwaigwe. He deposed that is attached at the Federal Special Anti Robbery Squad, Imo State and the investigating police officer under the 1^st and 3^rd Respondents on the record by virtue of which he is conversant with all the facts deposed hereunder. He has the consent and authority of the 1^st and 3^rd Respondents to depose to this affidavit.

The subject matter of this suit borders on the cases of conspiracy, attempted murder, cultism, threat to life, conduct likely to cause breach of peace and malicious damage reported by the 4^th and 5^th respondents against the applicant, to the 1^st – 3^rd respondents which falls within the statutory duties of the police to investigate and prosecute. The 3^rd respondent endorsed the petition and referred same to the Federal Special Anti Robbery Squad (FSARS) later referred to the 2^nd respondent for a discreet investigation, and the applicant was arrested through the help of two Naval officers before the arrival of the police, that handed them over to the police.

It is in respect of the police arrest, investigation and detention that the applicant is now challenging the statutory power of the police to investigate the complaint or report of the 4^th and 5^th respondent to the police. C.S.E Ebete (ESQ) Deputy Superintendent of Police and a legal officer attached at the FSARS Legal Section under the 1^st respondent informed him in his office at the FSARS Section, State Headquarters Owerri, on 20/1/2018, at about 1200 hrs and he verily believed his counsel that this suit is incompetent and the honourable Court have no jurisdiction to entertain same; there is no cause of action, which has accrued and which has become exercisable in favour of the Applicant against the 1^st – 3^rd respondents; that the alleged violation of the applicants fundamental right is merely incidental or ancillary to the principal claim which are conspiracy, attempted murder, cultism, threat to life, conduct likely to cause breach of peace and malicious damage which fall within the statutory duties of the police to investigate and prosecute, that the applicant’s claim or alleged violations of his fundamental right are without proof; that Where enforcement of fundamental right is subsidiary, ancillary or incidental to the main claim the action must be instituted by writ of summon and not by fundamental right; that there was no personal service of the originating process on the 1^st – 3^rd respondents; the 1^st – 3^rd respondents did not violated the fundamental right of the applicant for merely arresting, investigating, detaining and” possible prosecution of the applicant to react to the complaint of the 4^th – 5^th respondents; the applicant’s suit is seeking to challenge the constitutional right of the 4^th and 5^th respondents to lay complaint to the 1^st – 3^rd Respondents who are police institution and the statutory power of the police to investigate this complaint; reliefs 2 (a) and (b) of the applicants relief sought are declaratory reliefs which are not known to fundamental right procedure rule; jurisdiction is fundamental and when it is lacking the proceeding no matter, how well conducted is an exercise in futility; party cannot by connivance and acquiescence confer jurisdiction upon the court, jurisdiction and the power of the honourable court is inherent and the applicant have been charged to court and court of competent jurisdiction have made an order remanding the applicant at the Owerri Federal prisons custody and court is now functus-officio.

It is their prayer that this honourable court should strike out or set aside its proceedings for being incompetent and for want of jurisdiction.

The Preliminary Objection is accompanied with the counsel’s written address wherein he formulated issue for determination as:

Whether the Applicant’s suit is competent at the first instance for this Honourable court to exercise its jurisdiction.
Whether the Applicant is entitled to damages and his reliefs sought where none of his fundamental rights were violated.

The same issues submitted and argued by the 1^st – 3^rd Respondents in this preliminary objection is the same with the issues submitted and argued accompanying the Counter Affidavit. That being the case one can safely say that the preliminary objection and the defence of the 1^st – 3^rd Respondent are one and the same. The disposal of one is the disposal of the other.

RESOLUTION OF MATTER.

I have considered painstakingly the application before me. The affidavit evidence, the oral and written submissions of the counsel for and against the application as well as the preliminary objection are considered. It is my view that the issues that call for determination are:

Whether the application is competent.
Whether in the circumstances of this case, the fundamental rights of the Applicant was violated by the Respondents as to entitle him to the relief sought.

The respondents argued that since the arrest and detention of the applicant has culminated in a criminal charge and arraignment, the court ought to defer to the criminal proceedings that has already commenced. To the best of my knowledge, the law as it is today is that there is no restriction on civil proceedings progressing along with or in advance of criminal proceedings concerning the same subject matter. Even a convict has fundamental right. In ADEKUNLE v. A-G OF OGUN STATE (2014) LPELR-22569(CA) it is stated:

“Now, the Supreme Court has held in the case of Kalu v. State (1998) 13 NWLR (pt.583) p.531 that, if after the death sentence has been passed and the convict is in prison custody, if anything arises outside the normal custody that amounts to “torture or inhuman or degrading treatment”, that will be cause of action under the fundamental rights, but not militating against the death sentence. That in such a case, the death sentence stands but a new cause of action has arisen which can be separately enforced and remedied. In other words, that the “inhuman and degrading treatment” outside the inevitable confinement in death row will not make illegal the death row sentence, rather it only gives ground for enforceable right under the constitution. In the instant case, the Appellant has complained of inhuman and degrading treatment while in custody awaiting the execution of the death sentence. I have held that the learned trial judge was right when he held that the Appellant failed to prove or lead evidence on material facts establishing his claims before it. I need not say more on that. What remains solid is that the complaints of the Appellant do not derogate from the death sentence passed on him as to make illegal such sentence which was affirmed by the Supreme Court.” Per TSAMMANI, J.C.A. (Pp. 46-47, paras. D-B)

The Applicant’s complaint on the Counter Affidavit of the Respondents has an answer in Order 1X of the Fundamental Rights Enforcement Procedure Rules, 2009.provides as follows:

“Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceeding.”

See B.O.I.LTD. V ADEWALE-ADEDIRAN (2015) 17 NWLR (PT.1487) 114 AT 118, ENUKEME VS. MAZI (2015) 17 NWLR (PT.1488) 411 AT 417.

It is my view that the application of the Applicant is competent. It is not defeated by the drafting of charge against the Applicant. Also the counter affidavits of the 1^st – 3^rd and 4^th – 5^th Respondents respectively are not incompetent.

This application is hinged on section 34 and 35 of the Constitution of the Federal Republic of Nigeria (as amended)

Section 34.(1) Every individual is entitled to respect for the dignity of his person, and accordingly –

(a) no person shall be subject to torture or to inhuman or degrading treatment;

(b) no person shall he held in slavery or servitude; and

Section 35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law

(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;

(4) Any person who is arrested or detained in accordance with subsection (1)(c) 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 the circumstances may be considered by the court to be reasonable .

(7) Nothing in this section shall be construed-

(a) in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and

(b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the Federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the Armed forces of the Federation or of the Nigeria Police Force, in respect of an offence punishable by such detention of which he has been found guilty.

The applicant alleged that he was arrested, detained and tortured. In AYAKNDUE & ORS. v. EKPRIEREN & ORS (2012) LPELR-20071(CA) it is stated:

“”Arrest” means “1. A seizure or forcible restraint.

The taking or keeping of a person in custody by legal authority, especially in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law, especially of bringing that person before a Court” See Black’s Law Dictionary, 9th edition, p.124.” Per TUR, J.C.A. (Pp.26-27, Paras.F-A)

On torture, on the other hand, the Court of Appeal in IGWEOKOLO V. AKPOYIBO & ORS (2017) LPELR-41882(CA) stated:

“The online electronic dictionary, Dictionary.com defines the noun torture, inter alia , as the act of inflicting excruciating pains, as punishment or revenge, as a means of getting a confession to information or for sheer cruelty. The English Dictionary Wiktionary org. defines the verb torture as To intentionally inflict severe pain or suffering. The Blacks Law Dictionary, 8^th Edition, defines torture as The infliction of intense pain to the body or mind to punish, to extract a confession or information, or obtain sadistic pleasure.

From the provisions of the Constitution it is obvious that 1^st hurdle every arresting officer must surmount/scale in the process of apprehending and bring a suspect to court is the test of reasonableness. In UBOCHI V. EKPO & ORS (2014) LPELR-23523(CA) it is stated:

“Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or likely to commit the offence.” Per NDUKWE-ANYANWU ,J.C.A ( Pp. 20-21, paras. F-C )

Also in DIRECTOR, S.S.S V. IBRAHIM (2016) LPELR-41618(CA) it was stated:

In the case of Rev. Paul Onanuga & Ors v Hon. Nseobasi (Cornelius) Sampson (2012) LPELR-8487(CA) the Court of Appeal, per Joseph Tine Tur JCA held as follows:

“The learned authors of Blacks Law Dictionary, 8th Edition, page 1487 define the term “reasonable suspicion” as “A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. A police officer must have a reasonable suspicion to stop a person in a public place.” In my humble view for there to be reasonable suspicion to justify an arrest by the police the test is objective based upon the facts of each case”.

The moment the suspect is arrested, the Constitution provides time limit for the next action to start. If the arrest is illegal ab initio, the period of times becomes of no moment. It is the law that any violation of a citizen’s guaranteed fundamental right however short a period must attract penalty under the law. See ALABOH V. BOYES (1984) 5 NCLR 830 AND JIMOH V. A-G, FED. (1998) 7 HRLR A 513. Also in IGP & ANOR v. AGBINONE & ORS (2019) LPELR-46431(CA) it is stated:

“It is important to add that detention no matter how short can still qualify as a breach of fundamental right, as long as such detention is adjudged unlawful. See Gusau v. Umezurike (2012) LPELR -8000; Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 499 Pg. 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458;

In compliance with the provisions of the Constitution the arresting officer is expected to release the suspect on bail or produce him before a court of competent jurisdiction. In ASSISTANT INSPECTOR GENERAL OF POLICE V. EZEANYA (2016) ALL FWLR (PT. 830) 1349 AT 1371 – 1372, PARAGRAPHS C – D, it is stated

“It is the Law that when a person is arrested or detained by Police in connection with an allegation of reasonable suspicion of a crime and they are actively pursuing investigation of the matter, the duty of the Police in the appropriate case is to offer bail to the suspect and/or bring him before a law Court within a one day or two days as the case may be, no matter under whatever section of the Law he ought have been charged”.

In EKANEM V. A.I.G.P. (2008) 5 NWLR (PT. 1079) 97 AT P. 111, PARAS. D-F” it is stated:

“The Constitution allows for arrest on reasonable suspicion. However, such suspicion does not amount to detention in anticipation of a charge of murder where there is no reasonable suspicion on which a charge may be made against the person. As in a case of crime, such suspicion must be one beyond reasonable doubt. In the instant case, the suspicion relied on by the respondent was uncertain.” Per Omage JCA.

Furthermore, in OLAWOYE V. C.O.P.(2006) 2 NWLR (PT. 965) 427 AT 445 – 446 (CA);PARAS. C-D it is stated:

“It is pertinent to state at this juncture that it is not in dispute that the appellants have been in detention since 17^th August, 2004,a period of over nine months without being charged to court for trial. This, needless to say, is a flagrant violation of the Rights of the Appellants as provided under the provisions of the Constitution of the Federal Republic of Nigeria 1999.Without much ado, the appellants are entitled to be released unconditionally or upon such as are reasonably necessary to ensure that they appear for trial at a later date. Per. Abdullahi JCA.

In this case what constitutes the violation of the Applicant’s right is not the arrest on reasonable suspicion of having committed a crime but the excessiveness in the length of days of his detention. The Applicant was arrested on the 17^th January 2018 and detained till 13^th March 2018. He was taken to the Magistrate Court for further remand without trial knowing full well that the Magistrate is not a court of competent jurisdiction. In ISIYAKU & ANOR v. COP YOBE STATE & ORS (2017) LPELR-43439(CA) it is stated:

“…it must be appreciated that it is not the arrest and detention of a person on a reasonable suspicion of his having committed an offence that constitutes the violation of his fundamental right to personal liberty. It is the unreasonableness of the length of his period of detention. Section 35 (a) states that any person who is arrested and detained on a reasonable suspicion of having committed an offence shall be brought before a Court of law within a “reasonable time” while Section 35 (5) provides that the expression reasonable time meant, in case of an arrest or detention in any place within a forty kilometers radius of a competent Court, within a period of one day and in any other case, a period of two days or such longer period as may be considered by the Court to be reasonable in the circumstances. Thus, it is incumbent on a person alleging breach of his right to personal liberty, by reason of arrest and detention by the Police on an allegation of commission of a crime, to state in clear terms the date and time of his arrest and the length of his period of detention. Where he fails to provide such facts, it will be impossible for a Court to determine his allegation and his case must be treated as being bereft of necessary facts and must fail. Affidavit evidence must reveal all the necessary facts, particulars and ingredients that would enable the Court to be persuaded on the issue in controversy and failure to do so would amount to lack of proof – Mokwe Vs Ezeuko (2000) 14 NWLR (Pt. 686) 143”.

In OGBONNA v. EGBULEFU & ORS. (2018) LPELR-43810(CA) it is stated:

I therefore hold that, whereas the 1^st Respondents was unlawfully detained by 2nd to 4th Respondent, beyond the period allowed by law, when he was arrested on 17/6/08 and kept in the custody of the police up 23/6/08, before being arraigned at the Magistrate’s Court for further remand in the Prisons, Appellant could not be held liable, jointly with the 2^nd to 4^th Respondents, for that unlawful detention, and for violation of his (1^st Respondent’s) rights, just for lodging complaint with the Police, which led to the arrest of the 1^st Respondent.”Per MBABA, J.C.A. (Pp. 21-32, Paras. A-A) –

It does appear that where the arrest and detention of a person are unlawful and unconstitutional any subsequent arraignment of that person before a Court of law cannot and would not cure the illegality or unconstitutionality. See ABIOLA V. ABACHA (1998) 7 HRLRA 458. AYAKNDUE & ORS. V. EKPRIEREN & ORS (2012) LPELR-20071(CA).

From all I have so far said, I am convinced that the arrest and detention of the Applicant from the 17^th day of January 2018 to 13^th March 2018 (minus the first two days) is in violation of the constitutional right of the Applicant to be brought before court of competent jurisdiction within a day or two after arrest. It is the responsibility of the Police, whom I agree arrested the Applicant on reasonable suspicion of crime, to bring him before the court of competent jurisdiction within the constitutionally stipulated time.

Consequently it is:

Declared that the arrest of the applicant and detention or incarceration from the 17^th day January 2018 to the 12^th day of March 2018 (minus the first two days) by the Respondents is unlawful, illegal, wrongful, unconstitutional and constitute a breach of the Applicant’s rights as enshrined in Section 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Ordered the sum of N100, 000.00 as damages against the 1^st and 2^nd, Respondents severally for the unlawful detention of the Applicant from the 19^th day January 2018 to the 12^th day of March 2018.

I so hold

I.M.NJAKA

Judge

20-5-19