Civil Cases Fundamental Right Enforcement

HOW/927/2022- Chima Ohahuna, Chukwuebuka Ohahuna VS Obilobi Boniface Okere, Commissioner of Police Imo State O/C Anti –Kidnapping Squad Department, Imo State Police Command, IPO Bube James – BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT. M. NJAKA- delivered ON THE 3RD DAY OF OCTOBER 2023- Violation of Fundamental Rights and Unlawful Detention- Legality of Arrest and Complaint Validity-Entitlement to Declarations and Compensation-Arrest in lieu

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IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

ON THE   3RD  DAY OF OCTOBER 2023

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

HOW/927/2022

Between

  1. Chima Ohahuna
  2. Chukwuebuka Ohahuna Applicants

And

  1. Obilobi Boniface Okere
  2. Commissioner of Police Imo State
  3. O/C Anti –Kidnapping Squad Respondents
  4. Department, Imo State Police Command
  5. IPO Bube James

JUDGMENT

By Motion on Notice dated and filed on 17th day of August 2022 and said to be brought pursuant to Order 2 rule 1 of the fundamental Right Enforcement Procedure Rules 2009 and under the inherent jurisdiction of the honorable court

The applicants are requesting the following reliefs from the court:

  1. A declaration that their arrest and detention by the respondents from August 1, 2022, to August 9, 2022, at the instigation of the first respondent, exceeds the constitutional limit and is therefore illegal and unconstitutional. This violates their fundamental rights to personal liberty and freedom of movement as guaranteed by the 1999 constitution and the African Charter on Human and People’s Rights (Ratification & Enforcement Act) 2004.
  2. A declaration that their arrest and detention during the same period, based on false allegations related to a land dispute and without reasonable suspicion of any offense, is illegal and unconstitutional. This also violates their fundamental rights to personal liberty and freedom of movement as protected by the law.
  3. A declaration that the physical abuse they suffered during their detention, including being beaten with machetes and wooden objects by the respondents, amounts to torture, inhuman, and degrading treatment. This is illegal and unconstitutional, violating their right to dignity as guaranteed by the 1999 constitution.
  4. An order restraining the respondents or anyone acting on their behalf from further arresting, detaining, harassing, intimidating, or inviting the applicants based on false allegations and without reasonable suspicion of any offense.
  5. An order of compensation in the amount of N10,000,000.00 (Ten Million Naira) to be paid jointly and severally by the respondents for the violation of the applicants’ rights.

The grounds for the reliefs sought in this case are as follows:

  1. Sections 35 and 41 of the 1999 Constitution (as altered) and articles 6 and 12 of the African Charter on Human and People’s Rights (Ratification & Enforcement) Act 2004 protect and guarantee the right to personal liberty and freedom of movement.
  2. Section 46 of the 1999 Constitution (as altered) grants any person whose fundamental rights have been, are being, or are likely to be contravened the right to apply to a high court for redress.
  3. The police do not have the legal authority to arrest and detain, invite, harass, intimidate, or threaten to arrest and detain the applicants based on the instigation of the first respondent in a purely civil matter without reasonable suspicion of the commission of any offense.AFF
  4. The police do not have the legal authority to arrest and detain the applicants beyond the constitutional limit, yet they detained them for a period of 9 days.
  5. Criminal liability is not vicarious, meaning it is unlawful to arrest and detain the applicants in place of their brother.
  6. A land dispute is purely a civil matter and falls outside the scope of the powers of the Police to interfere in.
  7. The continuous harassment, intimidation, invitation, and threats to arrest and detain the applicants by the respondents based on a land dispute without reasonable suspicion of the commission of an offense constitute a gross violation of the applicants’ fundamental rights to personal liberty and freedom of movement.
  8. When a person’s fundamental rights are violated, that person is entitled to a public apology and compensation, as per Section 46 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as altered.

APPLICANTS’ AFFIDAVIT

Application is supported by affidavit deposed to by Mr. Chima Ohahuna, the first applicant in the case, provides the following information in support of the application:He has the consent and authority of the second applicant, his biological brother, to depose to this affidavit on his behalf. The first respondent is a native of the same community as the applicants and instigated the arrest and detention of the applicants by the second, third, and fourth respondents. The respondents have been continuously inviting, harassing, intimidating, and threatening further arrest and detention. The second respondent is responsible for police affairs in Imo State, the third respondent is the officer in charge of the Anti-Kidnapping Department in the Imo State Police Command, and the fourth respondent is the investigating police officer in the Anti-Kidnapping Department.

On August 1, 2022, the police, led by the fourth respondent, stormed the applicants’ house at 4 a.m. demanding the whereabouts of their eldest brother, Mr. Chidi Ohahunwa. When they couldn’t find him, the police arrested the first and second applicants and took them to the Anti-Kidnapping Unit of the Imo State Police Command. At the Anti-Kidnapping Unit, the applicants were shown a petition written by the first respondent regarding a land dispute with their eldest brother, Mr. Chidi Ohahunwa.

The land dispute had been previously arbitrated upon by the traditional ruler of their community, and a decision had been made against the first respondent. The arbitration decision is attached as Exhibit A. The police informed the applicants that they would be detained until Mr. Chidi Ohahunwa reported to the police based on a police invitation. The police invitation is attached as Exhibit B.

Neither of the applicants was mentioned in Exhibit B, and they were not connected with any investigation related to the offense mentioned in Exhibit B. The first and second applicants were detained in the cell of the Anti-Kidnapping Unit from August 1, 2022, to August 9, 2022, during which they were physically assaulted with woods and machetes. They were detained in unsanitary conditions alongside individuals with gunshot injuries and occasional dead bodies.

The applicants were granted bail on August 9, 2022, after nine days of detention and were instructed to report again on August 12, 2022. They complied with the reporting requirement on August 12, 2022, and were later instructed to report again on August 16, 2022. Due to the torture and maltreatment suffered during detention, the applicants sought medical treatment at the Nigeria Police Medical Services in Owerri. The medical report is attached as Exhibit C.

The first respondent’s petition is deemed false, contrived, and based on the land dispute with their brother. The second, third, and fourth respondents continued to invite, intimidate, harass, and threaten arrest and detention without reasonable suspicion of any offense. The applicants consulted their solicitor, Chima Onumajulu Esq, who provided legal advice regarding the unlawfulness of their arrest and detention, the inhuman treatment they endured, and the illegality of their arrest in lieu of their brother. The applicants believe that it is in the interest of justice to grant the application.

COUNSEL WRITTEN ADDRESS:

In this written address, the Applicants frame a single issue for determination, which is whether their fundamental rights were violated.

The Applicants assert that under the Constitution and the African Charter on Human and Peoples’ Rights, their fundamental rights to personal liberty and freedom of movement are guaranteed by Sections 35 and 41 and Articles 6 and 13, respectively. They highlight in their affidavit that they were detained for a period of 9 days, which exceeds the constitutional limit, and that the Respondents have continuously harassed, intimidated, invited, and threatened to arrest and detain them without legal justification. This, they argue, constitutes a clear infringement of their fundamental rights.

Section 46 of the 1999 Constitution empowers individuals whose fundamental rights are violated to approach the court for enforcement. The Applicants maintain that their application falls within the provisions of Section 35(6) CFRN 1999 and Order 10 of the Fundamental Rights (Enforcement Procedure) Rules. They contend that the reliefs sought in their statement in support are within the inherent jurisdiction of the court to dispense justice. The court has both legal and equitable jurisdiction, and the reliefs sought are consistent with these principles.

The Applicants conclude by urging the court to recognize that their fundamental rights to personal liberty and freedom of movement were violated without legal justification. They request the court to grant the reliefs sought in their application.

FURTHER AFFIDAVIT IN RESPONSE TO THE 1ST RESPONDENT’S COUNTER AFFIDAVIT

In this further affidavit in response to the 1st Respondent’s counter affidavit, Chima Ohahunna, reaffirms her position as the 1st Applicant in the application and states that she is familiar with the facts and circumstances of the case.

She asserts that she has the consent of the 2nd Applicant to depose to this affidavit on his behalf. Chima Ohahunna acknowledges that the 1st Respondent filed a counter affidavit on September 21, 2022. She specifically addresses certain points from the 1st Respondent’s counter affidavit: She denies the truth of paragraph 9 of the counter affidavit and reiterates that it was indeed the 1st Respondent who led the 4th Respondent to their home at 4 am and arrested them. She points out a contradiction between paragraph 15 and paragraph 14 of the 1st Respondent’s counter affidavit. She denies the accuracy of paragraphs 24 and 25 of the 1st Respondent’s counter affidavit, stating that it was at the insistence of the 1st Respondent that they were detained for nine days under the condition that they provide information about their brother, with whom the 1st Respondent had issues.

RESPONSE TO THE 2ND – 4TH RESPONDENTS’ COUNTER AFFIDAVIT

In this further affidavit in response to the 2nd to 4th Respondents’ counter affidavit, Chima Ohahunna, reaffirms her position as the 1st Applicant in the application and asserts that she is well-acquainted with the facts and circumstances of the case. She confirms that she has the consent of the 2nd Applicant to depose to this affidavit on his behalf. She notes that the 2nd to 4th Respondents filed a counter affidavit on November 25, 2022. Chima Ohahunna specifically addresses certain points from the 2nd to 4th Respondents’ counter affidavit. She denies the accuracy of paragraph 6 of the counter affidavit and states that they were never mentioned as suspects or as having any dealings with the 1st Respondent in Exhibit NPF1 and NPF2.

She explains that the 1st Respondent, who led the 4th Respondent to their home at 4 am and did not find their brother, insisted that they be arrested in place of their brother, Chidi Ohahuna, until he reported to the police station. She refutes the claims made in paragraph 11 of the counter affidavit, emphasizing that there is nothing in Exhibit NPF4 suggesting any connection to or admission of any offense. She further states that Exhibit NPF4 shows that the applicants were not connected to the allegations raised in Exhibit NPF1.

She denies the accuracy of paragraph 12 of the counter affidavit and clarifies that they had provided reasonable sureties to secure their release from detention on the first day but were denied bail and were continuously detained for nine days on the condition that they provide their brother, who had issues with the Respondents.

COUNTER AFFIDAVIT OF 1ST RESPONDENT

In this counter affidavit filed by the 1st Respondent, Obilobi Boniface Okere identifies himself as the 1st Respondent and clarifies that “Obilobi” is his traditional title, not his name.

He states that he is the Head of the Ohahuna extended family, to which the Applicants belong. He asserts that they are his nephews. Obilobi Boniface Okere explains that there are several older individuals in their extended family who respect him, and the Applicants are not among them. He claims that the Applicants insult him without cause. He denies all allegations made in the Applicants’ affidavit, suggesting that he breached their fundamental rights.

Obilobi Boniface Okere denies accompanying any police officers to the Applicants’ home at 4 am on the specified date. He asserts that there was no issue or report against the Applicants and that they had no dispute with him. He refutes the relevance of Exhibit A to the case and argues that he had no involvement in the allegations raised in Exhibit NPF1.

Obilobi Boniface Okere claims that the police invitation and other evidence show that he had no knowledge or connection to the allegations made by the Applicants. He states that the Applicants’ elder brother, Chidi Ohahuna, destroyed his property by damaging his fence and blocks. Obilobi Boniface Okere experienced a nervous shock and lost consciousness during the incident, leading to his admission to the Federal Medical Centre in Owerri. He continues to receive medical treatment for high blood pressure aggravated by the damage to his property. He explains that the arbitration mentioned in the Applicants’ affidavit was unrelated to the breach of their fundamental rights but rather concerned a land dispute.

The Oha Alaenyi Council of Elders found irregularities in the judgment of the Naze Traditional Ruler’s Cabinet and set it aside, advising Obilobi Boniface Okere to seek remedy elsewhere. He reported the damage to his property to the police, and the matter involved other individuals besides the Applicants. Obilobi Boniface Okere denies any knowledge of the Applicants being detained for nine days and subjected to brutality in police custody.

He asserts that he did not breach the Applicants’ fundamental rights and that their involvement in the matter is known only to them and the police. The police identified others who aided the Applicants’ brother in the destruction of his property. Obilobi Boniface Okere requests that the Applicants’ motion be struck out with substantial costs against them.

In summary, the 1st Respondent denies all allegations made by the Applicants and provides his perspective on the events surrounding the case

COUNSEL’S ADDRESS

In this written address presented by counsel for the 1st Respondent in opposition to the Applicants’ application for the enforcement of their fundamental rights, several key points are highlighted: The 1st Respondent is identified as the head of the Ohahuna extended family, to which both the Applicants and the 1st Respondent belong. The counsel refers to the counter affidavit and the four exhibits submitted in support of the 1st Respondent’s position.

The counsel emphasizes the importance of understanding the traditional leadership structure, where leadership is typically held by older individuals. This structure is known as gerontocracy. It is pointed out that the affidavit in support of the Applicants’ application did not disclose certain facts about the 1st Respondent’s role and position in the family, potentially misleading the court.

The counsel argues that counsel has a duty not to mislead the court and quotes a case to support this point. The 1st Respondent is not connected to the police and cannot be held liable for any alleged wrongdoing by the police, as indicated in paragraphs 8 to 11 of the 1st Respondent’s counter affidavit.

Exhibit A, referenced in the Applicants’ affidavit, is deemed irrelevant to the case as the Applicants were not parties to the arbitration it pertained to. The counsel suggests that the Applicants’ suit should be dismissed with substantial costs.

The counsel refers to medical reports and photographic evidence (Exhibits C3, Cl, and C2) to support the claim that the 1st Respondent suffered damage to his property and personal health due to the actions of the Applicants’ elder brother.

The counsel concludes by placing the 1st Respondent’s case before the court’s justice.

In summary, the counsel argues that the 1st Respondent should not be held responsible for the actions of the police, highlights the traditional leadership structure, and disputes the relevance of certain evidence and claims made by the Applicants. The counsel ultimately calls for the dismissal of the Applicants’ suit with substantial costs

COUNTER AFFIDAVIT OF 2ND – 4TH RESPONDENTS

In this counter-affidavit submitted by Insp. Esther Nze, a police officer attached to the State CID in Owerri, Imo State, several key points are raised in response to the Applicants’ application for the enforcement of their fundamental rights:

The 1st Respondent, Obilobi Boniface Okere, submitted a petition to the Commissioner of Police, Imo State, on July 18, 2022, alleging malicious damage, conduct likely to cause a breach of the peace, and threats to life by Chidi Ohahuna and others. This petition was the basis for the police investigation, and the petition is attached as Exhibit NPF1. The 1st Respondent was invited to the police station and volunteered a statement, which is marked as Exhibit NPF2. In his statement, he alleged that the Applicants maliciously damaged his property, blocked an access road, and reported the matter to the Oha Alaenyi Council of Elders, which passed judgment in his favor (Exhibit NPF3).

The counter-affidavit disputes several paragraphs of the Applicants’ affidavit as false, including their claims of harassment, torture, and extortion by the police. The 2nd and 3rd Respondents (police officers) informed the Applicants of their right to administrative police bail and provided them with the opportunity to produce a reliable surety. The Applicants were detained because they couldn’t provide a surety until August 9, 2022, when they were finally released on bail. The counter-affidavit asserts that the police acted with decorum and within the scope of their duty during the investigation.

It is argued that the suit is an attempt to blackmail the 1st Respondent and validate the alleged crimes of malicious damage, conduct likely to cause a breach of the peace, and threats to life perpetrated by the Applicants. The counter-affidavit contends that the Applicants are not entitled to the reliefs sought and that their motion lacks merit, should be dismissed, and costs awarded to the Respondents.

It is emphasized that a fundamental rights action should not serve as a means for those alleged to have committed a crime to evade prosecution.

WRITTEN ADDRESS OF THE 2ND – 4TH RESPONDENTS

This written address by the 2nd, 3rd, and 4th Respondents’ counsel presents arguments against the Applicants’ fundamental rights enforcement application. Here are some key points made in the address:

This written address supports the Counter Affidavit of the 2nd, 3rd, and 4th Respondents against the Applicants’ application. The Respondents argue that the Applicants have not presented sufficient evidence of the infringement of their fundamental rights.

The Respondents raise three issues for the determination of the court:

  1. Whether the Applicants have provided evidence of the infringement of their fundamental rights.
  2. Whether the Respondents acted in accordance with statutory provisions in arresting the Applicants for investigation.
  3. Whether the Applicants are entitled to the declarations they seek from the court.

Issue No. 1 The Respondents argue that the Applicants have not provided sufficient evidence of the infringement of their fundamental rights. They contend that the Applicants have failed to establish that their rights were violated by the Respondents. The Respondents cite legal precedents, such as the case of FAJEMIROKUN v C.B(C.T) NIG. LTD, to support their argument that for a fundamental rights case to succeed, the Applicants must present material facts demonstrating the infringement of their rights.

The Respondents assert that the police have the statutory duty to investigate complaints and reports of crimes. They argue that the 1st Respondent, in this case, acted within the law by reporting the alleged theft of his tractor to the police.

The Respondents highlight that the right to personal liberty is not absolute and can be derogated in certain circumstances. They argue that the Applicants entered the Respondents’ compound without consent, and therefore, their fundamental rights were not breached.

In conclusions, the Respondents suggest that the Applicants’ application is an attempt to intimidate them, shield themselves from investigation, and avoid potential prosecution. They argue that the police have the discretion to conduct investigations into complaints without judicial intervention.

Overall, the Respondents’ counsel contends that the Applicants have not provided sufficient evidence to support their claim of a fundamental rights violation, and therefore, the application should be dismissed

RESOLUTION OF MATTER:

Based on the evidence and submissions of the parties in the case, the following issues for determination can be distilled:

  1. Whether the Applicants have demonstrated an infringement of their fundamental rights by the Respondents.
  2. Whether the 2nd, 3rd, and 4th Respondents acted in accordance with statutory provisions when inviting/arresting the Applicants for investigation of criminal complaints.
  3. Whether the Applicants are entitled to the declarations they seek from the Honourable Court.

Issue 1: Whether the Applicants have demonstrated an infringement of their fundamental rights by the Respondents. The Applicants claim they were detained for nine days without justification, alleging a breach of their fundamental rights. The Respondents argue that the Applicants have not provided sufficient evidence of the infringement of their rights and that their actions were within the bounds of the law. The court will assess whether the Applicants have provided sufficient evidence to support their claim that their fundamental rights were violated. Is there is clear evidence of unlawful detention or violation of their rights?

In ISIYAKU & ANOR V. COP YOBE STATE & ORS (2017) LPELR-. 43439(CA), (2017)LCN/9387(CA) it is stated that 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 the instance case the Applicant stated that they were arrested on the 1st day of August and were ‘detained at the cell of the Anti kidnapping unit from 1st day of August, 2022 to the 9th day of August 2022 during which they were hit and beaten with woods and matchets’. Now it is not contested that they were arrested on the 1st of August and released on 9th August 2022.

Issue 2: Whether the 2nd, 3rd, and 4th Respondents acted in accordance with statutory provisions when inviting/arresting the Applicants for investigation of criminal complaints.

The Respondents assert that they received a complaint of malicious damage and threat to life from the 1st Respondent, leading to the arrest of the Applicants. The Respondents contend that their actions were in line with their statutory duty to investigate crimes and that the 1st Respondent acted within his rights by reporting the alleged destruction to the police. The court should examine whether the actions taken by the 2nd, 3rd, and 4th Respondents in arresting and detaining the Applicants were in accordance with statutory provisions and their duties as law enforcement officers. If the actions were within the bounds of the law and their responsibilities, this should be considered in the decision. Sequel this, the court should determine whether the 1st Respondent’s complaint of malicious damage and threat to life, which led to the arrest of the Applicants, was valid and whether it warranted investigation. Are the complaint legitimate and the Respondents acted in response to a potential criminal offense?

The 1st Respondent states that he made a report to the police so this is not in contention. He alleged that the Applicants’ elder brother Chidi Ohahuna destroyed his fence wall and blocks on 24th July 2022. He made reference to the decision of Oha Alaenyi Council of Elders which he annexed as exhibit C4. It is dated 1st July 2022. Paragraph 6 of the exhibit stated: “The issue of malicious damage clearly exhibited in the photographs by Obilobi Boniface Ohahunna Okeredinma being a criminal offence does not fall within te powers of this Council to handle, however, he is advised to seek remedy from any source he may deem fit” The 1st Respondent made reference to his paragraph ‘holding’ in paragraph 22 of his counter affidavit.

Now exhibit NPF 01 of the 2nd – 4th defendants is a petition supposed to have been written after the alleged destruction of the fence and the blocks on the 24-7-2022.  But it is dated 18th July 2022. He made statement on the 24th July to the Police. It does appear that exhibit NPF 01 has dated 18th July 2022 has no link with the alleged damage or destruction of fence that took place on the 24-7-2022

In paragraph 23 the 1st respondent stated that he made a report of the malicious damage of his fence and blocks to the Police against the Applicants’ elder brother. And he annexed exhibit C2 as evidence of damaged block.  Looking at exhibits NPF -01 and NPF -02 they made no mention of damaging blocks.

Also in exhibits NPF -01 and NPF -02 the 1st respondent was always mentioning Chidi Ohahunna and others. Chidi Ohahuna and his syndicate, One Chidi Oluigbo Ohahuna and his brothers. And in paragraph 11 of his counter affidavit stated: “That paragraph 5 of the Applicants’ affidavit shows that I had no issue with the Applicants and did not make any report against them to the police.” Here he is referring to paragraph 5 of the Applicants’ affidavit I support: “That on arriving the Anti-kidnapping Unit of the Imo state police Command, we were shown a petition written by the 1st Respondent to the 2nd Respondent over a land dispute with our eldest aforesaid”

He continued in this exculpation excursion in his paragraphs 24, 25 26 and 27 wherein he stated as follows:

  1. That I am not aware that the Applicants were detained for 9 days in the police cell and that they were brutalized therein
  2. That I have not and did nt breach the Applicants’ fundamental rights
  3. That it is only the Applicants and the police that know how the Applicants entangled themselves in a matter that was not reported absent them
  4. That the police found that other person aided the Applicants’ brother in destroying my properties

The Applicants responded in their further affidavit paragraph

6: That paragraphs 24 and 25 of the 1st Respondent’s counter affidavit is false and is denied. In reaction, I state that it ws at the behest and insistence of the 1st Respondent tht we were detained for the period of nine days on the condition that we provide our brother who according to the 1st Respondent, he had some issues with.”

Now who served as pointer to the police on the 1st day of August when the Defendants were arrested? The 2nd – 4th Respondent in their paragraph 10 denied paragraph 4 of the Applicants’ Affidavit in support wherein they stated that the 1st respondent led the 2nd – 4th respondent at 4am on 1st August to arrest them. However the 2nd – 4th Respondents did not state at what time of the day and how they were arrested. It is a general denial.  The 2nd – 4th Respondent sought to show that the 1st and 2nd Applicants admitted that the allegation of malicious damage, conduct likely to cause breach of and threat to life  via exhibit NPF 4. I do not agree. Our law abhors arrest in ieu. The courts have stated so very clear terms. In EMEKA & ORS V. NWANKWO & ORS (2002)2 HRLNA 165 @ 175 the curt stated that the arrest and detention of suspect’s wife and child in place of a suspect is anti-social and barbaric, abysmally despicable and insult shameful. In EZWAKA & ORS V. NWANKWO & ORS (2002) 2 HRLRA 165 the court declares that it is a gross violation and infraction of human rights for a person to be arrested and detained for the act allegedly committed by another, notwithstanding the degree of affinity.

The 1st respondent has constitutional right to report a crime.

No doubt that every citizen of this country has the duty to report crime to the police. Hence it is trite that every private individual has the right to report a crime or a suspected crime to the police. see ISHENO VS JULIUS BERGER (NIG.) PLC (2008) 6 NWLR (PT. 1084) 582, ARAB CONTRACTORS (O.A.O.) NIGERIA LTD VS UMANAH (2013) 4 NMLR (PT. 1344) 323.

However Parties must be discouraged from giving purely civil matters criminal colouration with the sole purpose of engaging the services of the police to arm-twist the alleged opponent. In IWUNUNNE v. EGBUCHULEM & ORS (2016) LPELR-40515(CA) the Court of Appeal stated the exception to exoneration of liability on right to report crime to crime and held thus:

“Of course, there is a proviso to the above principle. Where the complaint was lodged, falsely, against the victim or the complainant procured the Police to harass and attack the victim, for ulterior motives, or over a purely civil matter, with the intent of using the Police or law enforcement agency to settle private scores, the complainant cannot wash off his hands from the evil visited on the victim of the malicious complaints. The authorities on this are replete. See the case of OSIL. vs Balogun (supra), Ogbonna vs Ogbonna (2014) 23 WRN 48; (2014) LPELR- 22308 (CA); Agbakoba vs SSS (1994) 6 NWLR (pt 351) 475, Udeagha vs Nwogwugwu (2013) LPELR- 21819 CA.”Per MBABA, J.C.A.

The court went further to hold:

“In the case of Anogwie & Ors. Vs Odom & Ors (2016) LPELR 40214 CA, it was held that: a party that employs the Police or any enforcement agency to violate the fundamental rights of a citizen should be ready to face the consequences, either alone or with the misguided agency’ Ogbonna Vs Ogbonna (2014) 23 WRN 48.”Per MBABA, J.C.A. (P. 33, Paras. B-D)

In the instance case, the report is against one Chidi Ohahuna. It is never the Applicants. This is further shown by exhibit “A” of the Applicants. It is a Police invitation dated 20-7-2022 and addressed to Chidi Ohauna to report at Anti-Kidnapping Unit on the 21st day of July 2022. There is no displayed Police invitation by any of the parties for the Applicant.

Since the Chidi Ohahuna is not before this court, I am not in position to comment on whether the report against him is in good faith or out of malice.  So I cannot decide on the appropriateness or otherwise of the petition against him. I agree with the 1st respondent that the petition has nothing to do with the Applicants.

Issue 3: Whether the Applicants are entitled to the declarations they seek from the Honourable Court. The Applicants seek declarations related to the alleged violation of their fundamental rights. The Respondents argue that the Applicants are not entitled to these declarations and that the application is an attempt to evade investigation and prosecution. If it is found that the Applicants filed the application as a means to avoid investigation and prosecution for a genuine criminal complaint, then they will not be entitled to reliefs sought.

It has been held in ALABOH V. BOYES (1984) 5 NCLR 830 AND JIMOH V. A-G, FED. (1998) 7 HRLR A 513 that any violation of a citizen’s guaranteed fundamental right for however short a period, must attract penalty under the law. It is only the authority arresting and detaining that has the burden of proving the legality or constitutionality of an arrest. See MADIEBO V. NWANKWO (2002) 1 NWLR (PT.748) 426, ABIOLA V. FRN (1995) 7 NWLR (PT.405) IYERE VS DURU  1986) 5 NWLR (PT.44) PG.665,1, ABIOLA V.ABACHA (1998) 1 HRLRA 453, JIMOH V. AGF(1988) 1 H.R.L.R.A.513.

The 2nd – 4th respondents made effort to explain why the Applicants stayed longer than the 48 hours in their custody. The explanation did not add up. The constitutional requirement is: release within time or charge to court.  It is necessary to state that under the Nigerian legal system, commission of a crime, arraignment or trial for criminal offence is not a justification for violation of individual fundamental rights. Apart from rights that are constitutionally circumscribed, fundamental rights are not necessarily lost due to commission of a crime. This was well articulated by the Court in the case of AWAL V. NDLEA    (2020) LPELR – 50160 (CA)where the Court of Appeal postulated thus: After holding that the detention of the Appellant beyond the time stipulated under Section 35 (4) & (5) of the Constitution (supra) was unlawful and unconstitutional, it follows therefore that the Appellant is entitled to compensation and public apology. This doesn’t have to do with whether the Appellant would eventually be acquitted or convicted of the offence charged. This Court sitting on an application for the enforcement of the Appellant’s fundamental right is only concerned as to whether the application has merits thus entitling the Appellant to the reliefs sought. Section 36 (6) of the Constitution (supra) provides that “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, ‘the appropriate authority or person means any authority or person specified by law.” It is evident in this instant case that the Applicants committed no offence. It is rather a case of the fathers have eaten sour grapes, and the children’s teeth are set on edge. See JEREMIAH 31: 29

Let me say that the rate of family squabble over property is so alarming. Parties should try and see the ephemeral nature of all these and value human relationship more.

The Applicants have provided sufficient evidence to support their claim that their fundamental rights were violated. There is clear evidence of unlawful detention or violation of their rights. The actions taken by the 2nd, 3rd, and 4th Respondents in arresting and detaining the Applicants were not in accordance with statutory provisions and their duties as law enforcement officers. The actions were not within the bounds of the law and their responsibilities. I do not agree that the Applicants filed the application as a means to avoid investigation and prosecution for a genuine criminal complaint.

The application succeeds and I make the following orders:

  1. It is declared that their arrest and detention by the respondents from August 1, 2022, to August 9, 2022, at the instigation of the first respondent, exceeds the constitutional limit and is therefore illegal and unconstitutional. This violates their fundamental rights to personal liberty and freedom of movement as guaranteed by the 1999 constitution and the African Charter on Human and People’s Rights (Ratification & Enforcement Act) 2004.
  2. It is declared that their arrest and detention during the same period, based on false allegations related to a land dispute and without reasonable suspicion of any offense, is illegal and unconstitutional. This also violates their fundamental rights to personal liberty and freedom of movement as protected by the law.
  3. It is declared that the physical abuse they suffered during their detention, including being beaten with machetes and wooden objects by the respondents, amounts to torture, inhuman, and degrading treatment. This is illegal and unconstitutional, violating their right to dignity as guaranteed by the 1999 constitution.
  4. An order is made restraining the respondents or anyone acting on their behalf from further arresting, detaining, harassing, intimidating, or inviting the applicants based on false allegations and without reasonable suspicion of any offense.
  5. An order of compensation in the amount of N5, 000,000.00 (Five Million Naira) is made to be paid jointly and severally by the respondents for the violation of the applicants’ rights.

I so hold.

I.M.Njaka

Judge

3-10-2023

Appearances:     Chima P Onumajulu Esq. for the Applicants

Austine O Azuike Esq. for the 1st Respondents

C.P Okplaeke Esq. for the 2nd – 4th Respondents

Previous post SUIT NO: HOW/ 496/2018 -INNOCENT IHEANYI IHEANAKWE VS. FIRST BANK OF NIGERIA PLC – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 28TH DAY OF SEPTEMBER 2023 – Statute of Limitations and its Applicability- Defendant’s Obligation to Send Money Return Warrants-Plaintiff’s Derivation of Value from Money Return Warrants- Discrepancies in Legal Interpretation on the Defense of Limitation Law- Specific Pleadings and Evidence in Limitation Law Cases- Admittance of Facts and Burden of Proof in the Absence of Challenge- Money Had and Received vs. Breach of Contract- Applicability of Money Had and Received- Sections 125 and 126 of the Companies and Allied Matters Act (CAMA)- Breach of Contract- Proof of Delivery- Bank Records: Banks and financial institutions are expected to keep records of their incoming and outgoing mail- Nature of Registered Post Services – Legal Obligations Regarding Registered Mail -Burden of Proof and the Use of Registered Post -Handling of Financial Documents and Bank Drafts -Importance of Documenting Financial Transactions – Examination of Exhibits and Documentation -Determining the Statute of Limitations -Award of Damages and Costs -Legal Principles on Special Damages- Solicitor’s Fees as Special Damages- Statutory Basis for Interest Claims – Interpretation of Statutory Provisions.
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