IN THE HIGH COURT OF IMO STATE
IN THE MBANO/ETITI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, ETITI
ON THE 25TH DAY OF SEPTEMBER 2017
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO.:- HME/55/2017
BETWEEN
1. SIMEON OBIOHA APPLICANTS
2. OGUNDU ONONUJU
AND
1. MR AUGUATINE ONYI NWAIGWE
2. ANTHONY NWAIGWE
3. MISS SUCCESS IFEOMA KALU IGBO RESPONDENTS
4. COMMISSIONER OF POLICE (IMO STATE)
JUDGMENT
By MOTION ON NOTICE dated 26th day of July 2017 and filed same day said to be brought PURSUANT TO SECTIONS 34(1)(a), 35(1), (4), (5);37; 41(1) & 46(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 CAP C23 LFN 2004; ORDER II RULES 1-5 OF THE FUNDAMENTAL RIGHTS ( ENFORCEMENT PROCEDURE) RULES, 1999; ARTICLES 5;6 & 12 OD THE AFRICAN CHARTER OF HUMAN AND PEOPLES’ RIGHTS ( RATIFICATION & ENFORCEMENT AACT) CAP A9 LFN 2004 and INHERENT POWERS OF THE COURT AS PRESERVED BY SECTION 6(6) A OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999.
The Applicants pray for:
a. AN ORDER of court enforcing the fundamental rights of the applicants to Respect for the dignity of their persons; their personal liberty; their freedom of movement and privacy pursuant to ss. 34(1)(a), 35(1), (4), (5); 37 & 41 (1) of the constitution of the Federal Republic of Nigeria 1999 CAP C23 LFN 2004; and Articles 5; 6 & 12 of the African Charter on Human and Peoples’ Rights (Ratification & Enforcement) Act Cap A9 LFN, 2004.
b. A DECLARATION of the court that the threat by the 1st, 2nd and 3rd Respondents to arrest, detain and further torture the applicants using the office of the 4th Respondent to satisfy their sadistic pleasures constitutes a violation of applicants’ fundamental right to respect for the dignity of their persons as guaranteed y section 34(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 and Article 5 of the African Charter on Human and Peoples’ Rights (Ratification & Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004.
c. A DECLARATION of the court that the threat of the 1st 2nd and 3rd Respondents to use the office of the 4th Respondent to invade the ancestral compound of the applicants at Ochii Ogwa in Mbaitoli LGA of Imo State and damage, desecrate and destroy sanctity of the Applicants’ privacy is a violation of Applicant’s fundamental right protected under ss. 37 and 41 (1) of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 6 & 12 of the African Charter on Human and Peoples’ Rights ( Ratification & Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004.
d. AN ORDER of the court restraining the Respondents by themselves, their privies from continuing to harass, embarrass, intimidate, arrest , detain or torture the applicants howsoever in relation to this case.
It is accompanied by STATEMENT IN SUPPORT OF APPLICATION the reliefs sought and GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT which are stated to be:
i. By virtue of section 34(1)(a). 35(1), (4), (5); 37; 41(1) of the 1999 constitution of the Federal Republic of Nigeria and Articles 5 & 6 of the African Charter on Human and Peoples’ Rights (Enforcement & Enforcement) Act Cap A9 Laws of the Federation 2004, every citizen of Nigeria is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or to inhuman or degrading treatment. S. 35(1) every person shall be entitled to his personal liberty, and no person shall be deprived of such liberty except as provided by law. Section 41(1) Every citizen of Nigeria is entitled to his freedom of movement in Nigeria. Contrary to the above provisions, the respondents’ continue to threaten the applicants with arrest, detention and further torture using the office of the 4th respondent to satisfy their sadistic pleasures by virtue of Section 46(1) & (3) of the Constitution of the Federal Republic of Nigeria 1999 any person who perceives that his fundamental right is or has been or is likely to be infringed is entitled to approach the court for protection or redress.
ii. The applicants have the right to bring this application as their fundamental rights have been violated as stated above.
iii. The respondents have no justification to deny the applicant these rights.
The application is supported by 36 paragraphs AFFIDAVIT deposed to by Mr. Simon Obioha, the 1st Applicant. He deposed that the 2nd Applicant is his 1st cousin and he has his authority to depose to this oath.
The 1st Respondent is the husband of his sister Mrs. Ngozi Obioha Nwaigwa now deceased; the 2nd Respondent is elder brother of 1st Respondent; the 3rd Respondent is 1st Respondent’ s girlfriend, the mastermind of the mysterious death of his sister, and the 4th Respondent is the Commissioner of Police, Imo State. His sister Mrs. Ngozi Obioha Onyi Nwaigwe lives at No 2 Asamu Bakere Close Off karimin Lala Street Egbeda lagos. She was the Supervisor Ticketing and Marketing with the Arik Airline Lagos and her husband lives in South Africa while the 3rd Respondent lives close to his sister at Egbada in Lagos.
That 3rd Respondent parades herself as a nurse and she was the one that brought a house help called Onyinyechi Okigbo to his deceased sister who had no child before her death. His sister Nogozi was not sick. She was hale and hearty, strong energetic and ebullient and she never complained of any ailment to them before her untimely death.
Surprisingly, on 24th May, 2017 at about 9.30 in the morning his other sister Ogadi Obioha called him on the phone that she received a phone call from the 3rd Respondent that their sister Ngozi Obioha Onyi died that morning. He was devastated. While he was in Ogun State for technical training, Ogadi was in Benue State where she is on her National Youth Corp Service from where she called.
He asked the cause of her death and she told him that 3rd Respondent called her that morning and simply told her that Ngozi slumped that morning while getting ready for work and died. He called his younger brother, Tochukwu Obioha who is based in Onitsha to proceed to Lagos to find out what happened. Meanwhile Ogadi had also called their youngest sister Kelechi Obioha who is in Owerri and asked her to proceed to Lagos immediately. She flew into lagos before any of them.
He met Tochukwu at Julius Berger where they were forced to wait for the relations of the 1st Respondent conveying their sister’s corps to the East. Kelechi called him on the phone from the house of his sister to inform him that she met the 3rd Respondent in his sister’s house and that the 3rd Respondent was busy packing valuable properties of his sister including her title documents, cheque books, ATM cards, handsets, car keys and certificates belonging to his sister and that they were having issues over that.
He then asked her to let him speak to the 3rd Respondent and she did. He asked the 3rd Respondent why she was interested in the properties of his deceased sister and she told him that Augustine i.e. 1st Respondent directed her to gather all of that and keep for him. He asked her when Augustine told her so. She replied that it was when she called Augustine to inform him of the death of his wife. That gave him goose pimples!
He asked her what led to his sister’s death, she replied that his sister’s house-help Onyiyechi came to alert her that she did not know what was wrong with his sister and she rushed to the place and certified her dead and started calling his sister’s husband and his younger sister Ogadi.
He told her not to worry that he was already in Lagos heading to his sister’s house. She replied that Augustine’ relations were already about to take his deceased sister’s corpse down to the East for burial. He asked her to let him speak to any of them and she did. He told the man that the corpse should be deposited at any mortuary there in Lagos and not (sic) that he would not subscribe to taking her to the East in a hurry.
The man he spoke to refused and insisted that his brother Augustine had instructed that they take the corpse to the East. He argued that the corpse may decompose before they get home and the man countered that the nurse i.e. 3rd Respondent had already embalmed the corpse. He told him that he was with Tochukwu were heading to the house and they should wait a minute. He insisted they should wait for them at Julius Berger. So they helplessly did. It was about 4 pm on that Friday 24th May 2017.
When they finally arrived, he observed the corpse of his sister and managed to control his emotions. He is the eldest of his siblings. So he asked Tochukwu, his younger brother to enter the Volvo Wagon Ambulance vehicle conveying the corpse to the East. He told them to deposit the corpse at Aladimma Mortuary Owerri. The relation of Augustine who he had spoken to earlier and who was in company of the Ambulance driver countered it once again saying Augustine had instructed them not to go to Owerri but to take the corpse straight to Isiala Mbano LGA and deposit her to his brother’s mortuary at Anara.
All 3 of them namely Tochukwu, the Ambulance driver and Augustine’s brother took off and headed to the East while he went back to Ogun State to sign off and also proceed home. The people conveying the corpse had to sleep at Benin in Edo State as according to them, robbers were operating on the road and when that cleared they observed that the headlamps of ambulance vehicle were not bright enough to enable them drive at night.
By the time they took off from Benin on Saturday 25th May, 2017, the corpse had started decomposing. Meanwhile Anthony Nwaigwe, 2nd Respondent, was already at Onitsha waiting to join them home. He joined them and lent his support to the idea of not depositing the corpse at Owerri for any reason. So they went through Orlu and finally got to Anara where they deposited the corpse at a ramshackle mortuary.
After depositing the corpse at Anara they headed to Amaraku and there they ran into his relations who were coming from Owerri to meet them at the mortuary. And they had running confrontations and alterations with them at that place. According to Tochukwu who gave him the information that same evening in the phone while he was in Ogun State, when those his relations challenged 2nd Respondent on why he and his brother Augustine preferred to deposit his sister’s corpse at such a dirty mortuary he replied boastfully that heavens would not fall; and that by the way, that he has a squad that can invade and sack his entire village from their homes if worse comes to shove.
Meanwhile Augustine was in Lagos by Saturday 25th May, 2017 and refused to call to him. Instead, he brought 3rd Respondent into his sister’s home as a live-in-lover sleeping with her on his sister’s matrimonial bed while the corpse of his wife was lying in the mortuary.
His sister’s house-help Onyinyechi, informed him at their home in Ogwa Mbaitoli LGA on 25th July, 2017 at about 10 am and he strongly believed her that 3rd Respondent lives with 1st Respondent in his sister’s house sleeping with him on his sister’s matrimonial bed and that on one occasion 3rd Respondent was taking her bath in his sister’s bathroom and her telephone which she left in the sitting room rang 3rd Respondent ran out from the bathroom stark naked to come and take the call. Onyinyechi Okigbo was in that sitting room then and was embarrassed.
Augustine only called two days after the death of his wife. He stayed in Lagos for over one week before coming home to see the remains of his wife. Up till this moment he has not come to see his father-in-law, his father, to discuss the death of his so called wife. On Thursday 20th July, 2017 when his people went to Augustine’s home at Isiala Mbano LGA to perform the customary “ima mbazu” that is to plant the traditional mbazu at the point the grave of his deceased sister will be dug. Augustine, in the full glare of his people and everybody else, came to welcome his people while holding 3rd Respondent’s hand in his arm like his wife.
His people frowned at this scandalous display by 1st and 3rd Respondents but 3rd Respondent remorselessly retorted that she was free to marry 1st Respondent and that after all she did kill his sister. On the night of 20th July, 2017 when their people went for the wake keep of his sister they numbered up to 70 people but the 1st Respondent and his people did not welcome them. They pretended not to notice them. They left in anger.
Meanwhile when 1st Respondent finally came home after spending one week in Lagos with his live-in-lover, the 3rd Respondent, the 3rd Respondent called him to meet him at Atta junction in Ikeduru for them to go to the mortuary to see his sister’s corpse. He did and they went to the mortuary at Anara.
When they saw the corpse he asked 1st Respondent if he was comfortable with the place the corpse of his wife was deposited and he said no. They agreed and finally took the corpse to the same Aladimma mortuary Owerri he had suggested earlier.
On Friday 21st July, 2017 himself and his people were at the Aladimma mortuary Owerri waiting for 1st Respondent to come with the teller for them to move the corpse for burial he did not show up. About 11am, 2nd Respondent accompanied by 3rd Respondent came to the mortuary with 6 policemen from SARS and attempted to arrest them unprovoked.
The 1st, 2nd and 3rd Respondent threatened them so much with arrest. They humiliated them and insulted their sensibilities to the end of patience –elasticity.
They had no feelings for the pains they had inflicted on them with the inexplicable sudden death of their sister just at her prime at 40 years of age. For graduate of Imo State University with no history of any terminal ailment to die inexplicably only for 3rd Respondent take over her matrimonial bed with unimaginable impunity is terribly hurtful. Copy of her brochure is exhibited herein as Exhibit A.
Piqued by all these insensitivities, his people collected the corpse of their daughter and headed home and buried her in her maiden home on account of the ill treatment meted out to her and her people by the 1st, 2nd and 3rd Respondents. Since then the 1st, 2nd and 3rd Respondents have continued to threaten the Applicants with arrest, detention, torture and the invasion of their ancestral home just to satisfy their sadistic pleasures and to inflict more pains and injuries on the Applicants and their people.
The applicants have not committed any offence known to the law for which the Respondents will be hounding them. As a matter of fact the 1st Respondent told him he had no money to bury his wife, so he bought the casket for him and paid for the production of the brochure which the 1st Respondent had sent to the printer to assist him bury his wife.
There is a WRITTEN ADDRESS OF THE APPLICANT’S COUNSEL IN ARGUMENT OF THE MOTION TO ENFORCE APPLICANT’S FUNDAMENTAL RIGHTS the issue for determination was formulated as:
Whether the threat by the 1st,2md and 3rd respondents to arrest , detain and further torture the applicants using the office of the 4th respondent to satisfy their sadistic pleasures and to invade the ancestral compound of the applicants at Ochii Ogwa in Mbaitoli LGA of Imo State and damage, desecrate and destroy sanctity of the applicants’ constitutes a violation of the Applicants’ fundamental right as guaranteed by sections 34(1)(a), 35(1), (4),(5); 37 & 41(1) the constitution of the Federal Republic of Nigeria, 1999 and Article 5 & 6 of the African Charter on Human and Peoples’ Rights ( Ratification & Enforcement) Act Cap A9 laws of the Federation, 2004 such that the court can grant the reliefs sought.
It was submitted that by section 46 of the 1999 constitution, any person who perceives that his fundamental right is violated or is about to be violated is entitled to take out an action to enforce his fundamental rights. That precisely is what the Applicants have done in the instant case. The reliefs sought in this application are all within the jurisdiction of this court including an order of restraint against the respondents.
The court is urged to look at the reliefs sought by the applicants, the grounds upon which they seek the reliefs and the facts the applicants rely on. It is submitted that the reliefs sought in this application, the grounds upon which they are sought and the facts relied on eloquently expounded infringement of the applicants’ fundamental rights. Refer to Sea Trucks Nig. Ltd v. Panya Anigboro (2001) 1 MJSC 111 at 113 ratios 1 & 3; WAEC V. Adeyanju (2008) 6 MJSC 4.
It is submitted that from the facts of the case, as evidenced in the supporting affidavits, the Respondents are threatening to subject the applicant to immense torture, humiliation and degrading treatment contrary to section 34 (1) of the Constitution of the Federal Republic of Nigeria 1999. Refer to paragraphs 10-35 of Applicant’s supporting affidavit. The Blacks’ Law Dictionary 9th Edition at page 1618 defined the word ‘threat’ as: a communicated intent to inflict harm or loss on another or on another’s property especially one that might diminish a person’s freedom to act voluntarily or with lawful consent: we submit that the applicant has undergone such treatment and is continuing to undergo same at the hands of the respondents.
It is submitted that by the provisions of s. 35(1) of the Constitution 1999. “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 b y law. Article 6 of the African Charter on Human and Peoples Rights has similar provision.
It is submitted that in construing s. 32 of the 1979 constitution, the equivalent of s. 35 of the 1999 constitution, the court in the case of Adewole & 5 Ors. v. Alhaji Lateef Jakande & 2 Ors ( 1981) 1 NCLR 262 @ ratio 2 held that ‘ it would seem that what was contemplated by the reference to personal liberty in that section is a reference to “ privilege” or “ immunity” or “right’ of a personal nature.’
According to the Applicants, it may be more instructive to refer to the definition of the word “liberty” by Mr. justice McReynolds in the case of Meyer v. Nebraska 262 US 390 (1923) where the court held: “while this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration, and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness of free men”.
It is submitted that by this definition of the word, “liberty” by the court and the eminent jurist, personal liberty as used in s. 35(1) of the 1999 constitution is not restricted to physical pr bodily restraint but extends to restraint against the applicants from staying in their ancestral home to mourn the untimely and unexplained sudden death of their sister. The continued threat of the 1st to 3rd Respondents to arrest, detain, torture and invade the ancestral homes of the applicants debars them from carrying on their daily chores and is restriction of the applicants’ fundamental right to movement. The court is urged to so hold.
It is submitted that the Applicants have not committed any offence known to law that the 1st to 3rd Respondents will make it a pastime to continue to inflict pains on their emotions just because Respondents are law abiding citizens and are not violent.
It is submitted that the Respondents are in breach of the fundamental rights of the applicants. The court is urged to hold so and restrain them from any further violation of the applicants’ fundamental rights.
In conclusion, it is submitted that the Applicants have placed before this court sufficient materials to sway this court to exercise its discretion in their favour. See Eronini v. Iheuko (1989) 2NWLR (pt. 101) 36 at 63. See also Osuji v. Ekeocha (2009) 7 MJSC (pt. II) 74.
The 1st – 2nd Respondent filed 52 paragraphs COUNTER AFFIDAVIT deposed to by IKECHUKWU ONYI, who deposed to the effect that his name is Ikechukwu Onyi, but was wrongly sued as Mr Augustine Onyi Nwaigwe, the 1st Respondent. He deposed to this affidavit with the consent of the 2nd Respondent and on his behalf. The 2nd Respondent is his elder brother. The 3rd Respondent is a nurse and friend of his late wife’s younger sister Ogadinma. Paragraphs 2, 4, 10, 13, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 of the supporting affidavit are false and are hereby denied. That he and 2nd Respondent are natives of Umuehim, Umuozu, Ugiri in Isiala Mbano Local Government Area of Imo State.
The Applicants who are the relations of his late wife Mrs. Ngozi Eucharia Obioha Onyi are natives of Umuezeala Ije Ochi Ogwa in Mbaitoli Local Government Area of Imo state.
He and his late wife had their traditional wedding on 30th September, 2013 at Umuezala, Ije Ochi Ogwa in Mbaitoli and their wedding in the registry of the Federal Ministry of Interior, Ikoyi Lagos on 7th January 2016. A Copy of our marriage certificate is annexed hereto and marked Exhibit ‘A’. Some of their wedding photographs are annexed hereto and marked Exhibits B1 and B2’.
He and his wife had no problem whatsoever in their marriage life. He also had no problems with his in laws while his marriage with their daughter lasted.
He was ordinarily resident in South Africa where he does business while his wife resided in Lagos and worked with Air Peace Airline. They exchanged visits.
The action of the Applicants and their other relations who are police men/woman in forcefully and violently seizing the corpse of his wife on the day of her burial and taking same to their compound at Ogwa where they buried her, for no justifiable reason, and then followed same up with this pretentious action, has given him the shock of his life. What the Applicants have done is contrary to the custom and tradition of the people of Isiala Mbano Local Government Area and Ikeduru Local Government Area, and the Ibos in general. The militancy was hatched and executed with the support of the Applicants’ relations Inspector Nnamdi Obioha, Inspector Nwadiuto Obioha and Sergeant Ogechi Obioha all of State CID Owerri, serving Police officers.
On 24th day of May 2017, in the morning hours, he got a call from the 3rd Respondent that his wife was dead. He spoke with his wife the night before and they prayed together.According to the 3rd Respondent, their househelp Onyinyechi told her that his wife collapsed and died after shouting “my head, my head”. He immediately called his wife’s younger sister Ogadimma Confidence Obioha who stays with his wife to find out if the story was true and she confirmed it.
He asked Ogadimma why she did not tell him that his wife was dead; she said her elder brother Chima warned her not to announce his wife’s death until he the elder brother got to Lagos. He decided to travel to Lagos the next day being 25th May 2017. To his surprise, Ogadimma, his wife’s younger sister had instructed his son Chinedu to transfer out N435,000.00 (Four Hundred and Thirty Five Thousand Naira) from his wife’s account, N235,000.00 to one Osborn, Ogadinma’s friend working with Airline and N200,000.00 to Helen Blessing, with instruction that my child should not tell me about the transfer.
Ogadimma, his wife’s younger sister was living with his wife in Lagos but had left for her youth service in Benue. Ogadimma called on phone to tell the 3rd Respondent to park their documents and his wife’s jewelry and keep. The 3rd Respondent left the items with her elder sister Helen Blessing.
When his wife’s elder brother, Chima and her sisters Gloria and Kelechi got to their house in Lagos, they demanded for the documents and jewelry from the 3rd Respondent’s sister Helen Blessing, but she refused to hand over the items to them, demanding to see him first as the husband, even though they had also claimed falsely that he sent them.
When he got to Lagos, Helen handed over to him a bag containing their important documents, his wife’s jewelry and phone in the presence of his wife’s relations. When he opened the phone the debit alert indicated the transfer and those the money was transferred to.
On further enquiry, Ogadinma said his wife owed some people and she decided to transfer the money to pay them. He was surprised that the transfer was made after his wife’s death.
His wife’s body was never deposited at Anara. It was deposited at Kizito Mortuary Amaraku by the 2nd Respondent and he later transferred the corpse to Aladimma Hospital and kept the tally.
He saw his father in law on 30/5/2017 before then, his relations had gone to see his in laws on the 25th and 28th of May 2017 to inform them about their daughter’s death as required by custom. His family planned his wife’s burial with his in-laws. His in-laws came for the Ima Mbazu as tradition demands to choose the site for her grave. During the wake keep, his in-laws also came and were well received. He provided the bus that brought his in-laws to the wake keep, and gave them life kitchen, 3 tubers of yam and N5000.00 as they were going, as required by our custom.
When they got there they overheard members of the Applicants’ family issuing threats that they must bury his wife in their home. Amazed by the threat and not knowing what to do, they decided to report the matter to the police. 3 policemen on patrol were signaled to come to the mortuary for security.
It is totally false that he brought 6 policemen from SARS to the mortuary to arrest the applicants. It is totally false that they ever threatened the applicants with arrest. They never humiliated the Applicants nor ever insulted them. The Applicants took his wife to their home at Ogwa where they buried her inflicting more serious pain and anguish on them. Being helpless, they decided to write a petition to the police. A copy of petition to the Inspector General of Police dated 22/7/2017 is annexed hereto and marked Exhibit C.
Knowing that they have made a report to the police, the Applicants have brought this motion to block or stop possible police arrest, investigation and prosecution. He is very surprised that the Applicants will heap this level of falsehood against him.
His wife died on 24/5/2017 and he flew into Lagos on 25/5/2017 and had to sort out the 3 people living with his wife i.e. his son, his wife’s sister and their house-help, before he came down to Owerri on the 28/5/2017.
He saw his father in-law on 30/5/2017 but before then, their family members had gone to his in-laws on 25/5/2017 and 28/5/2017 to inform them of the death of their daughter, his wife. His in-laws who came for the wake keep were about 18 people and not 70 people. He provided the bus with which they came and gave them one fowl, 3 yams, N5000.00 as they were going back as tradition demands.
The 3rd Respondent is not and could not have been his girl friend as misrepresented by the Applicants. He could not have slept with the 3rd Respondent on their matrimonial bed nor ever held her hands the day his in-laws came to their house, as the Applicants have misrepresented. There was no time any member of his family had any exchange of words or misunderstanding with the Applicants, his in-laws.
It is totally false that the mortuary at Amaraku where the corpse was kept was dirty as misrepresented. He chose to transfer her corpse to Aladinma Mortuary Owerri because of people coming from Lagos who may want to see her or join the convoy.
There is a WRITTEN ADDRESS OF THE 1ST AND 2ND RESPONDENTS IN OPPOSITION TO THE APPLICANTS MOTION FOR THE ENFORCEMENT OF THEIR FUNDAMENTAL RIGHTS” wherein ISSUE FOR DETERMINATION is stated as:
‘Whether or not there is merit in the Applicants motion.
It is argued that reading in between the lines, it is very obvious that the Applicants, knowing or suspecting that the 1st and 2nd Respondents have reported them to the police for their acts of militancy and / or brigandage in forcefully and violently taking the corpse of the wife of the 1st Respondent and burying her in the Applicants home, the maiden home of the deceased wife, have brought this application to forestall police arrest, police investigation and possible prosecution. Referred to 1st and 2nd Respondents’ petition to the Inspector General of Police; Exhibit c.
For avoidance of doubt, the Applicants reliefs are reproduced. And it was stated that the gravamen of this case can be seen from paragraph 32 of the Applicants affidavit which reads thus: “32 that piqued by all these insensitivities my people collected the corpse of their daughter and headed home and buried her in her maiden home on account of the ill treatment meted out to her and her people by the 1st, 2nd and 3rd Respondents.”
It is submitted that the above averments is most bizarre and cannot find any support under any norm, culture, tradition or law. The deceased and the 1st Respondent wedded in the Registry of the Federal Ministry of Interior. See Exhibit A. The deceased and the 1st Respondent lived together happily as husband and wife. They were never divorced. It is therefore unheard of that the Applicants and members of their family will exhibit such show of shame, utter recklessness and high handedness and then turn around to approach the court dangling enforcement of their fundamental right as a cover up.
It is submitted that the 4th prayer sought by the Applicants are very instructive. It shows clearly what the applicants aim at which is to avoid police arrest, investigate and possible prosecution for their criminal act already reported to the police authority.
It is submitted that granting the Applicants prayers particularly the injunctive relief in paragraph D of their reliefs, is to shield the applicants from investigation and possible prosecution or arraignment if found culpable. That is not what the courts are there for. Cited AG ANAMBRA STATE V. CHIEF CHRIS UBA (2005) 15 NWLR (part 947) 44 at 67-68 to the effect that for a person, therefore to go to court to be shielded against criminal investigation and prosecution is an interference with the powers given by the constitution to law officers in control of criminal investigation.
See also PETER V. OKOYE (2002) 3 NWLR (part 755) 529 at 537
It is submitted that in NZEWI V. COP IMO STATE (2000) 2 HRLRA 186 at 258 the court of Appeal held thus:
“ A court’s Order cannot forbid the police from performing their normal duties and no court will do that as that can lead to a state of general breakdown of law and order. No court of law can make an order capable of turning a citizen into an outlaw”
It is submitted that obviously, the Applicants who have not shown any respect for custom and tradition, want to turn themselves into outlaw by this application. Referred to AGF V. DAWODU (1995) NWLR (part 380) 712 at 714 to the effect that ‘Public policy demands that criminal suspects be brought to Justice’.
It is submitted that Section 4 of the Police Act Cap. P 19 Laws of the Federation of Nigeria 2004, gives the police the powers to prevent and detect crime, apprehend offenders, preserves law and order, protect life and property and enforce all laws and regulations with which they are directly charged.
Also cited and quoted Section 24(1) (a) of the Police Act and stated that it obviously shows the powers of the police or any other person to arrest. See also s. 10 (1) (a) of the criminal procedure Act. Relied on FAWEHINMI V. IGP (2000) FWLR (part 12) 2005 at 2031.
It is submitted that by virtue of s. 35 (1) (c) of the 1999 Constitution (as amended) a person may be deprived of his liberty upon reasonable suspicion of his having committed a criminal offence. It is therefore submitted that the Applicants, having committed a crime or having been reasonably suspected of committing a crime, can be deprived of their liberty.
It is submitted that granting the Applicants’ motion will be tantamount to encouraging them to take benefit from their wrong doing and making an ass of the law or judicial process. Relied on ADETORO V. UBN PLC (2007) ALL FWLR (part 396) 590 at 628 to the effect “it is settled that a man cannot take advantage or reap benefit form his own wrong. It will be making an ass of the law or judicial process. This will result to injustice and not justice which the courts are enjoined to do.” Also ARCHIBONG V, STATE (2006) ALL FWLR (part 323) 174 at 1288 paragraph E
It is submitted that the Applicants have offended custom and tradition by using violence or force to take the corpse of the wife of the 1st Respondent and buried her in her maiden home. They cannot turn round to take cover under the law.
It is submitted, may that day not come, when police men as in this case, will ride rough shod of the law and go scot free just because they handle firearms.
It is submitted that the issue formulated by the Applicants does not arise whatsoever because the 1st and 2nd Respondents never threatened to arrest, detain and torture or further torture the applicants, using the 4th Respondent, or to invade, damage, desecrate and destroy anything belonging to the Applicants.
It is submitted that the cases cited by the Applicants are of no moment and thus not relevant.
It is further submitted and the court is urged to hold that the Applicants have failed to show how the 1st and 2nd Respondents breached their fundamental right to Respect for their human dignity, personal liberty, freedom of movement and privacy. The Applicants also failed to show that the 1st and 2nd Respondents ever threatened to arrest or detain them.
It is submission that this is a case where the applicants have breached the fundamental rights of the 1st and 2nd respondents and have turned round to cry wolf.
In CONCLUSION, It is submitted and court is urged to hold that the Applicants have failed to show or establish that the Respondents breached their fundamental right. The court is urged to hold that there is no merit in the applicants’ motion.
The Applicants filed FURTHER AFFIDAVIT IN SUPPORT deposed by Mr. Ogundun Ononuju, he stated that paragraphs 1, 4, 6, 9, 10, 11, 12,13,14,15 and 16 of the Counter Affidavit are false, half-truths and hereby challenged. 3rd Respondent was a friend of the deceased’s younger sister but she is presently cohabiting with the 1st Respondent.
The 1st Respondent did not pay any bride price nor did he perform any traditional marriage rites of their late sister. Such marriages are celebrated and mementoes made of it no matter how low-keyed. The deceased had a decent job and a decent living before she ever met 1st Respondent. The 1st Respondent did not perform any traditional wedding at all at Umuelezelaije Ochii Ogwa, with their late sister.
They are not aware of any wedding at the Registry of the Federal Ministry of Interior, Ikoyi Lagos on the 7th January 2016. The family of the deceased never knew about it. They never witnessed any such marriage neither did they consent to any such wedding. 1st Applicant or his father should have been present or be represented if any such event ever took place.
They have problems with 1st Respondent over his refusal to perform customary marriage rites to the parents and kindred of their deceased sister as required by custom and tradition. The 1st Respondent’s refusal to perform the traditional rites of their late sister, the insults, disregard and spite he held for them made their relationship with him go sour.
The corpse of their late sister was taken to Ochii Ogwa for burial because, 1st Respondent did not marry her since he did not perform any traditional marriage rites to enjoy the perquisites of a customary marriage. Above all, that was the wish of their sister. She constantly requested that she should not be buried outside their home if ever she died childless in this relationship with 1st Respondent since he always taunted her with it.
It is the custom of people that when a daughter whose traditional marriage rites were nor performed dies and she has no child with any person she lived in concubinage or cohabited with, the body of such daughter shall be buried in her maiden home unless her parents for some genuine reasons decide otherwise.
What they did is not against their custom and the relevant custom here is not the custom and tradition of Isiala Mbano people or that of Ikeduru, rather their own custom. There is nothing sacrilegious about it.
What they did is in tandem with their custom and tradition, especially when it involves their first daughter (Ada Ezealaije). The Applicants relations Inspector Nnamdi Obioaha, Inspector Nwadiuto Obioah and Sergeant Ogechi Obioha never hatched, or executed any military or trouble howsoever. The 2nd Respondent was the person who invited about six (6) police men to arrest the people unprovoked. The 3rd Respondent administered undisclosed injections on their late sister consecutively for days before she died. Their late sister died in the hands of the nurse according to their late sister’s house help, Onyinyechi and the nurse was the person who confirmed her dead before bringing the doctor.
When the nurse was satisfied that their sister was dead she preferred to call 1st Respondent who was in south Africa rather than to call her supposed friend Ogadinma the younger sister of the deceased lives in Lagos but on NYSC programme in Benue state. The 1st Respondent never spoke nor prayed together with the deceased the day before she died.
Paragraphs 17, 18, 20, 23, 24, 25, 26, 27, 28, 29 and 30 are false and challenged hereby. It is the wealth of the deceased that the 1st Respondent was after in their relationship on the first instance and when he arrived Lagos his first preoccupation was to go after the wealth of the deceased which is what he had engaged 3rd Respondent to achieve to enhance their amorous relationship. 1st Applicant never asked Ogadinma not to tell 1st Respondent about the death of their sister.
Even the 1st Respondent never called anybody except his girl friend the 3rd Respondent, even 1st Applicant or any of us. The day his late sister died, Ogadi had already traveled to Benue State for her NYSC three days before her death.
Ogadi never instructed Chinedu not to tell anyone about the transfer. The deceased had already pulled her own turn of the monthly contribution and is obligated also to contribute for other persons that are yet to take theirs from the common till. The person the money was transferred into their account is fellow staffs of their late sister who are also participating in the monthly contribution.
Ogadi never called the 3rd Respondent to pack any jewelry and documents from our late sister’s house; rather it was the 1st Respondent that called the 3rd Respondent to pack the jewelries and documents from our late sister’s house. 1st Applicant never went to their late sister’s house on Lagos; he was at Ogun state on a course when he learnt of our sister’s death.
It is not true that 1st Respondent and our deceased sister ever exchanged visits. Paragraphs 32,33,34,35 to 50 are false and challenged hereby. Neither 1st Respondent nor any of his sibling was there when the documents, jewelry and phone was handed them over to the 1st respondent. It is immaterial however. He would gladly hand them over to his live-in –over 3rd respondent.
The transfer was made for the sole reason to satisfy the charge of the monthly contribution. The body was deposited at a mortuary at Isiala Mbano, but later transferred to Aladinma Mortuary when 1st applicant insisted. The 1st Respondent never saw the corpse of my sister after returning back to Nigeria. He spent over twelve (12) days in Lagos before coming back to Imo State to see the corpse. The 1st Respondent never came to see 1st Applicant or father at the village before or after the burial of our late sister.
When 3rd Respondent came back to Imo State for the burial she did not care to visit or stay with her supposedly avowed friend Ogadi in Ogwa instead she preferred to stay with the 1st respondent having achieved her heart’s desire.
They wrote a petition to the Commissioner of Police Imo State accordingly. Copy of the letter dated 27th July, 2017 is hereby attached as Exhibit AA. The burial was not planned with their family, rather the 1st Respondent informed us of the burial date of our sister.
His elders went for the Ima Mbazu’ and the 1st Respondent came out to greet his people holding the hand of the 3rd Respondent as his fiancée in utter affront. His people did not demand for any rites and were not given any. Their people took the opportunity of the wake- keep to confirm the information that the 1st Respondent came back with the 3rd Respondent which we confirmed and left without sitting down or testing anything.
The 1st Respondent never hired any bus or grave N5, 000.00; they did not even see him. He was enjoying with the 3rd Respondent, his newly found love. The 3rd Respondent is not just the girl friend of the 1st Respondent rather she is his fiancée living like husband and wife. The 1st Respondent did it, held the hand of the 3rd Respondent to greet his in-laws on the burial day, that was why she didn’t follow Ogadinmma her friend to her house rather she stayed with you her newly found love.
The mortuary at Amaraku was dirty that was the reason 1st Respondent agreed with 1st Applicant to remove the body from there to Aladinma mortuary Owerri and not because of his friends coming from Lagos.
The APPLICANTS’ COUNSEL filed a REPLY TO THE WRITTEN ADDRESS OF COUNSEL TO THE 1ST AND 2ND RESPONDENTS and distilled a single issue which is: Whether the court can grant this application.
It is submitted that the court can grant this application. It is meritorious. The 1st and 2nd Respondents have made a heavy weather of a non-existent circumstance they referred variously as “dastardly act”, “crime” without stating any offence allegedly committed by the police to harass, embarrass and intimidate the applicants. The law is settled that no citizen of Nigeria can be punished unless in accordance with a written law. Our prescriptions as to crime are codified. The respondents never referred to any breach of the criminal code for which the applicants are being hounded.
It is submitted that the court granting this application will not amount to the court forbidding the police from performing their normal duties nor would it mean the court shielding the Applicants from criminal investigation. There being no crime committed the Respondents have not justification to use the instrumentality of the police to intimidate, or hound and torture the Applicants who have merely applied the tenets of their customary law to fulfill the dying wish of their sister. It is neither criminal nor dastardly. They have not thus constituted themselves into outlaw. Therefore the line of cases of AG Anambra state v. Vhief Chris Uba (2005) 15 NWLR (pt. 947) 44; peter v. okoye (2002) 3 NWLR (pt. 755) 529; Nzewi v. C.O.P Imo state (2000) 2 HRLR 186 as well as Fawehimi v. IGP (2000) FWLR (pt. 12) 2005: AGF V. Dawodu (1995) 2 NWLR (pt. 380) 712 together with all the reference to the Police Act are irrelevant and inapplicable here. The court is urged to so hold and disregard them as they cannot be invoked in the instant case.
It is submitted that the deceased died intestate. The 1st Respondent has complained of the relations of the deceased paying out some moneys from the estate of the deceased. That again is not a crime. As siblings of the deceased who died intestate they are entitled to collect in the assets of the deceased estate to meet debts and liabilities of the deceased. She died unmarried under the custom and tradition of Umuezealaije Ochii Ogwa in Mbaitoli LGA of Imo State and the full compliments of the customary law of the people has full and undiluted application thereto. It is no crime either under our customary law jurisprudence or under English Jurisprudence to bury a deceased according to her instructions. The court is referred to Atuanya v. Atunanya (1994) 1 NWLR (pt. 322) 5572; Ugu v. Tabi (1997) 7 NWLR (pt. 518) see also Onuoha R.A., Basic issues on law of Equity. Trust and administration of Estate in Nigerua, (ANON publishers, (2012) 472.
It is submitted that the learned counsel for the 1st and 2nd Respondents was right that by virtue of s. 35(1) (c) of the 1999 Constitution a person may be deprived of his liberty upon reasonable suspicion of his having committed offence. The suspicion cannot be that of the learned counsel who came into the picture only after he was briefed after this application was brought to his knowledge. Such does not translate to “reasonable suspicion” envisaged by s. 35(1) (c) of the 1999 Constitution of the Federal Republic of Nigeria. It is submitted that by no stretch of imagination can the suspicion of a legal practitioner, even at the highest pinnacle of erudition, briefed to conduct the defence of a defendant in an application to enforce the Applicant’s fundamental rights be the reasonable suspicion required by s. 35 (1) (c) of the 1999 Constitution to warrant the deprivation of the liberty of a citizen of this country. Relied on Kuti v. IGP (citation not provided) to the effect that the fundamental rights protected by Chapter IV of the 1999 Constitution are immutable. They are not to be toyed with or be wished away with the wave of the hand. Liberty of a person is precious.
It is submitted that the reference to the decisions of the court in the cases of Adetoro v. UBN (2007) All FWLR (pt. 396)590 Archibong v. state (2006) ALL FWLR (pt. 323) 174 do not add up in the instant case. It compares to pouring water on a hard stone and expecting it to penetrate. It would not.
In CONCLUSION, the court is urged to discountenance the argument of the 1st and 2nd Respondents in this matter and grant the application of the Applicants. They have placed sufficient materials before the court to sway it to exercise its discretion in their favour.
RESOLUTION OF MATTER.
I have carefully studied the processes filed in respect of this application by the Applicants and the 1st – 2nd Respondents. I have equally listened to the counsel move for and against the application. The 3rd – 4th Respondents did not file any processes and were not represented though served with the application.
From my on point of view, the issue that calls for determination here is:
“Whether in the circumstances of this case, it could be said that the fundamental right of the Applicants has been, is being or is likely to be violated by the Respondents as to entitle them to the reliefs sought”.
In IGWEOKOLO v. AKPOYIBO & ORS (2017) LPELR-41882(CA), the Hon Court of Appeal per OGAKWU, J.C.A. (Pp. 13-14, Paras. F-C) stated:
“The question of the infringement of fundamental rights is largely a question of fact and does not so much depend on the dexterous submission from the forensic arsenal of counsel on the law. So it is the facts of the matter as disclosed in the processes filed that are examined, analyzed and evaluated to see if the fundamental rights of the Appellant were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The law remains that he who asserts must prove, so the Appellant had the onus of proving by credible affidavit evidence that his fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535 – 536.”
So it is the facts as disclosed in the affidavit and document thereto annexed that will guide the court in determining the issue before it.
What has happened is quite unfortunate. In such circumstances, temper is bound to rise high but civility dictates that nobody should take the law into his hand. In SPIESS v. ONI (2016) LPELR-40502(SC) it was stated: “Resort to self-help can lead to a breach of the peace and so is condemnable as was done by Obaseki, JSC in Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 at 636 or what Aniagolu, JSC stated in Eliochin (Nig.) Ltd. & Ors v. Mbadiwe (1986) SC 99 at 130 to be that “the laws of civilized nations have always frowned at self-help if for no other reason than that they engender breaches of peace”
I am very careful to observe that the Applicants did not state prior hostility or disagreement reported to them that existed between their deceased sister, late wife of the 1st Respondent and the 1st Respondent. The 1st Respondent stated that they conducted traditional marriage on the 30th September 2013 and marriage certificate annexed by the 1st Respondent shows the marriage was conducted under the Marriage Act on the 7th January 2016. In paragraph 5 the Applicants deposed: ‘That my sister Ngozi was not sick. She was hale and hearty, strong energetic and ebullient and she never complained of any ailment to us before her untimely death’. So there was no complaint whatsoever before the unfortunate incident of 24th May 2017.
Now on her death, which from all indications was sudden, according to the 1st Respondent they spoke and prayed over the phone the on 23rd night of May 2017, I observe that at no point did any of the parties state that there was autopsy conducted. And I really cannot understand the essence of the hurriedness with which the body was moved or conveyed out of Lagos. That even the corpse had to stop over or spent the night at Benin in Edo State. This is coupled with the fact that the burial did not take place until 21st July 2017 almost 2 months. So what was the hurry in the first place?
I do not understand also why the 1st Respondent who instructed that the corpse be moved immediately had to stay for days on getting to Lagos and left the informing of the father in –law and arrangement of burial in the hands of his people. The 1st Respondent stated: That I saw my father in law on 30/5/2017 but before then, our family members had gone to my in-law on 25/5/2017 and 28/5/2017 to inform them of the death of their daughter’.
I was thinking that the husband should have been at the forefront. I cannot equally comprehend why the corpse was not deposited at Owerri in the 1st place only to be brought back again to the same Owerri. The reason given by the 1st Respondent for taking the corpse back to Owerri has been there from the beginning. The 1st Respondent stated: That I chose to transfer her corpse to Aladinma Morturay Owerri because of people coming from Lagos who may want to see her or joined the convoy.” The Respondent and the deceased had lived all long in Lagos, so people coming from Lagos who may want to see her or join the convoy has always been there.
The 1st Respondent said he called Ogadinma his late wife’s younger sister, who he acknowledged had left for Benue State, to confirm his wife’s death but he never said he called the Applicants who are supposedly older than Ogadinma. His paragraphs 19, and 23 are anything but convincing. I do not believe the 1st Respondent when he deposed that Ogadinma informed him that her elder brother Chima warned her not to announce his wife death until he got to Lagos. The 1st Respondent never called the Elder Chima. Till the 30th May 2017 when the 1st Respondent said he saw his father in law, he never said he called the father in law or the Applicants, the elder brother of the late wife.
When the 1st Respondents said the jewelries were handed over to him by the 3rd Respondent’s elder sister in the presence of the late wife relations, was it when he flew in on the 25th of May 2017. That means the wife’s corpse was hurriedly evacuated on the 24th May 2017, the relatives waited for him to witness the handover of jewelries. I agree with the deposition in paragraphs 29 of the Applicants’ Further Affidavit.
On the issue of transfer of money alleged by the 1st Respondent, the 1st Respondent said the transfer was done by his son. He did not state any were that the son is a minor. I am inclined to agree with the Applicants’ deposition in paragraph 21- 24 of their Further Affidavit.
The Applicants made an allegation regarding the relationship existing between the 1st Respondent and the 3rd Respondent. I observed that there was no categorical denial that the 3rd Respondent is not in the house of the 1st Respondent. Unfortunately the 3rd Respondent is not in court to defend this suit.
However, the fact remains that the deceased was the wife of the 1st Respondent. I am unable to reconcile the Applicants’ averment in their further affidavit with the founding affidavit as regard whether their late sister was married to the 1st Respondent. They have stated that they took their sister for burial in her maiden home because she was not married to the 1st Respondent. According to them they are not in the know or aware of the marriage between their sister and the 1st Respondent. Again they took her because it was her wish that she should be buried in her maiden home if eventually there was no child because the 1st Respondent has always taunted her with that. Again that she was ‘Ada’ – first daughter. These reasons cannot stand when compared with the earlier depositions of the Applicants. The Applicants by themselves said that they went for ima mbazu that is to indicate where the grave will be dug in the husband’s compound. Does it mean that at this point the Applicants forgot that she was not married properly or they did not remember her wish not be buried in the husband’s house if she dies without a child or the custom that the first daughter is buried in her maiden home. Again the Applicants went for a wake keep in honour of their sister in the 1st Respondent’s house. If they regarded their sister as not married why did they go for a wake keep in the 1st Respondent’s house? And if her wish was to be buried in her father’s house, why should the wake keep be done in the 1st Respondent’s house.
Moreover, paragraphs 2 and 3 of the Applicants founding affidavit clearly stated the relationship that existed between the 1st Respondent and the sister as that of husband and wife. Going further on this at paragraph 20 of the Further Affidavit the Applicants stated that “That the day my late sister died Ogadi had already traveled to Benue State for her NYSC three days before her death. This corroborates the 1st Respondent’s averment that “Ogadinma, my wife’s younger sister was living with my wife in Lagos but had left for her youth service in Benue.’ This to me is further evidence that the Applicants are aware of the relationship between the 1st Respondent and their late sister. They approved of it and that was why their younger sister had to stay with them.
In cases fought on affidavit evidence, the affidavit takes the place of pleadings. And just as pleadings must be consistent, affidavit in support or against an application must be consistent. In OLIVER O. AMUZIE ESQ V. ARCH. CHRIS O. ASONYE (2010) LPELR-4758(CA) the court stated:
In fact, the law is sacrosanct that pleadings must be sufficiently set out, comprehensively and accurately stated. Prevarication is an anathema to good pleadings, it depicts double talk. See Aderemi JCA (as he then was) in BASHORUN v. OGUNLEWE (2000) 1 NWLR Pt.640 Pg221 at Pg.234. In ABUBAKAR v. WAZIRI & ORS. (2008) 6 SCNJ 81 at 91, the Supreme Court held per Aderemi JSC that-
“It has been a long standing principle of our law that pleadings must not be evasive. It must be cogent and pungent. One of the objects of pleadings is to settle the issues to be tried and it must be taken as established law that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded or not clearly pleaded.” (Underlining mine)
Now on this issue of where a married woman is buried on her death, both sides have what they called customs. According to the 1st – 2nd Respondents what the Applicants have done is contrary to the custom and tradition of the people of Isiala Mbano Local Government Area and Ikeduru Local Government Area, and the Ibos in general. To the Applicant, what they did is not against their custom and the relevant custom here is not the custom and tradition of Isiala mbano people or that of Ikeduru, rather their own custom. There is not sacrilegious about it. That what they did is in tandem with their custom and tradition, especially when it involves their first daughter (Ada Ezealaije)
Though to me where a married woman is buried is not core issue here. I find this in my little research on where a dead married woman is buried:
But life is a reality, so also is death, and both happens even to the best of us. The death of a married woman isn’t taken lightly in Igbo land, as everyone, indeed families who ever contributed in one way or the other to who she was and ultimately became will play important roles in her burial and funeral. Following the death of such a woman, regardless of whether her “maiden” family have been made aware of her demise or not, the husband and his family will have to go to her ancestral home in Nigeria’s southeast (Igboland) to inform them of her (untimely) demise, as the case may be. In most Igbo cultures, the breaking of this news is somewhat theatrical, involving two stages. The widower and his kin are made to present themselves to his late wife’s kin with “Kola” (kolanut, garden eggs and peanut butter), to inform them that their daughter has taken ill (the specifics aren’t important at this time) and she is currently under care at a hospital, her family’s response will be that they wish her well, and hope she gets well soon.
The widower and members of his kindred will thereafter leave the gathering to confer, then return to inform his late wife’s people that she’d died while on treatment at the hospital, to which her people will respond with shock and sadness, acknowledge the information and invite them fully to talk. At this point the man’s people will present before their hosts, drinks, usually spirit(s), beer, malt and soft drinks, before digging into the crux of the matter, which includes the manner of her illness and death. Once the late woman’s paternal family are convinced that there’s no evidence of foul play, from sources even beyond the widower and his kin, they’d go ahead to discuss the nature of the burial and funeral, their entitlements and what’s required of the man in terms of mourning for his late wife. The bereaved man and his family will leave after an agreement has been reached as regards all that would’ve been discussed, to relay the date of the wake keeping and burial to their in-laws when they eventually arrive at the date.
“There’s a particular matter I wish to address before going any further. It concerns the lying-in-state for the late woman. In most Igbo culture the widower brings the body for a lying-in-state in her ancestral home, for her people to see and pay her her last respect, which includes “Ipu-Akwa” literally “covering/clothing the body”, where those who come, present to her family a piece of unsewn fabric (about six yards), some money in an envelope and drinks. Sometimes older women may be buried in her ancestral/father’s home, such a right can also be accorded the body of a daughter whose death is considered controversial, although the man may not be told of their intention, until he brings her body for a lying-in-state, and they detain the body in a bid to bury “their daughter” in her father’s house. In a few cases however it is by mutual understanding, but what is prevalent is that the body lies in state in her ancestral home, before onward movement to her husband’s home to be interred. These days when marriages are contracted from one end of the earth to the other, sometimes compromises are reached that allow the widower not bring the body of his late wife to her ancestral home before going on to bury her in his home town.
THE IGBO AND FUNERALS (6)
THE IGBO AND FUNERALS (6)
Another writer has this to say:
In some cans in Igbo land the bodies of married women death are taken to their families of origin and buried among their kinsmen as failure to this would seem as if they are estranged from their kith and kin.
Chinua Achebe builds up a picture of this tradition with the burial of Okonkwo’s mother. She had been brought home from Umuofia to be buried with her people in Mbata”
Fostering Christian Faith in Schools and Christian Communities, Michael Okoli
What gave rise to this application climaxed on the 21st July 2017, the date fixed for the burial of the 1st Respondent’s wife? This can be seen from the affidavit evidence and the two letters of complaint addressed to the Commissioner of Police and annexed as exhibits.
I have looked at exhibit ‘AA’ Petition written to the Commissioner of Police dated 27th July, 2017 by the Applicants. It is an unpaged letter. It is titled: ‘Conspiracy and Murder of late Mrs. Ngozi Obioha Onyi Nwaigwe and threat to kill and maim Messrs Chima Obioha and Ogundu Ononuju by Messrs Augustine Onyi Nwaigwe, Anthony Nwaigwe and Success Ifeoma Kalu Igbo’. It was there stated: Our Client’s people frowned at his scandalous display by Augustine but Miss Success Ifeoma Kalu Igbo remorselessly retorted that she was free to marry Augustine and that after all she did kill the deceased. The letter further alleged “That on Friday 21st July 2017 while waiting at Alanimma Mortuary Owerri, the 2nd and 3rd Respondents came to the mortuary with 6 policemen from SARS and attempted to arrest 1st Applicant his people. The Applicants collected the corpse of their daughter and headed home and buried her in her maiden home. Before the letter of the Applicants dated 27th July 2017, the Respondents had on the 22nd July 2017 written a letter titled Threat to life, conduct likely to cause a breach of peace, and abuse of Authority by:…”, to the Commissioner of Police, where they alleged that as soon as the corpse was released to the 1st Respondent, the Applicants and some other people mentioned in the letter in what seemed like a commando/war front, swooped on the 1st Respondent, shooting sporadically in the air, forcefully broke down the gate of Aladimma Hospital and hijacked the corpse of the 1st Respondent’s wife from the ambulance, took same away in a sienna car driven by Inspector Nnamdi Anthony Obioha of State CID Owerri, Imo State Command and buried her at Ogwa her maiden home’.
Now the Applicants said they were waiting for the Respondents to come with Teller for them to move the Corpse. When they said ‘piqued by all these insensitivities they collected the corpse of their daughter and headed home and buried her in her maiden home on account of the ill treatment meted out to her and her people by Augustine, Anthony and Miss Success Ifeoma Kalu Igbo’, does it mean that the teller was handed over to them by the 1st Respondent to collect the corpse. I doubt. By the scenario created or described by the Applicant, the 1st Respondent couldn’t have just handed over the teller to them. And if the Applicants alleged that 6 police men from SARS were brought to arrest them, did they resist arrest and overpowered the 6 police men brought to arrest them. Agree there must have been some exaggeration on the complaint of the 1st Respondent about shooting sporadically but the fact remains that, there must have been some sort of skirmishes before the corpse was taken away. This must, definitely, have caused apprehension on both sides.
I observe that the Applicant made serious criminal allegations both in their complaint to the police and their affidavit evidence before this court. On the last page of the unpaged letter Exhibit “AA”, it was said “our client and his people strongly believe that Mr. Augustine Onyi Nwaigwe, and Miss Success Ifeoma Kalu Igbo have hand in the sudden death of the deceased person. They were cohabiting even before the deceased was laid to rest’. In the Further Affidavit paragraphs 12 and 13 it was stated: “That the 3rd Respondent administered undisclosed injections on our late sister consecutively for days before she died. That our late sister died in the hands of the nurse according to my late sister’s house help, Onyinyechi and the nurse was the person who confirmed her dead before bringing the doctor”. The 1st Respondent also made his own allegation that he cannot safely go about or be left to mourn his wife he traditionally and legally married in peace due to the constant threat to his life by the Applicants. He can no longer sleep with his two eye closed.
I believe from the event of the 21st July 2017, the 1st Respondent, is justified to have made a complaint to the police. And as long as the 1st Respondent stops at mere complaint to the Police, no one will accuse him of misapplication of law and the Applicants need not be apprehensive. In the same vein the Applicant are also justified to have written a complaint to the police regarding their misgivings over the circumstances surrounding the death of their late sister. In all this, it is left for the Police represented in this suit by the 4th Respondent to do the needful.
The complaint of the 1st Respondent as contained in exhibit C, to me, does not amount to threat by the 1st, 2nd and 3rd Respondents to arrest, detain and further torture the Applicants using the office of the 4th Respondent to satisfy their sadistic pleasures neither is it a threat of the 1st 2nd and 3rd Respondents to use the office of the 4th Respondent to invade the ancestral compound of the Applicants at Ochii Ogwa in Mbaitoli LGA of Imo State and damage, desecrate and destroy sanctity of the Applicants’ privacy. The exhibit C did not state so. Apart from the complaint to the Police, the Applicants have not shown any other threatening or oppressive step taken or being taking by the 1st – 2nd Respondents against them.
Each side has made its own allegation. There is a difference between allegation which every citizen is entitled to and the investigation which is the sole duty of the police. Hence in LIMAN v. STATE (2016) LPELR-40260(CA) the Hon Court of Appeal stated:
“There is a wide difference between allegation of crime and investigation of crime – Dodo Vs Economic and Financial Crimes Commission (2013) 1 NWLR (Pt.1336) 468, Ajayi Vs State (2013) 9 NWLR (Pt.1360) 589. Allegation is the making of the complaint of commission of a crime, with its details, while investigation is the process of undertaking a careful search, study, close inquiry, scrutiny, detailed examination of the allegation to ascertain the true facts of the crime – Dangabar Vs Federal Republic of Nigeria (2014) 12 NWLR (Pt.1422) 575. Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the police to investigate it – Onah Vs Okenwa (2010) 7 NWLR (Pt 1194) 512.”Per ABIRU, J.C.A. (Pp. 24-25, Paras. E-C.
Since the parties have passed their suspicion to the appropriate authority, the Police, the law demands that they should corporate with the Police and await the outcome of the police investigation. In NZEWI V. COP IMO STATE (2000) 2 HRLRA 186 at 258 the court of Appeal held thus:
“ A court’s Order cannot forbid the police from performing their normal duties and no court will do that as that can lead to a state of general breakdown of law and order. No court of law can make an order capable of turning a citizen into an outlaw”
The door of the court is open to the applicants if in the course of the investigation of the petitions from the both sides the 4th Respondent exercises its powers improperly. Where the police use their powers improperly, the position of the law is that the Court can stop the use of the power for that improper purpose, in other words, the Court can make an order restraining the police from arresting on some particular improper occasion or for some particular improper purpose but never to restrain the police perpetually from performing its lawful and constitutional duties. See LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS(2010) LPELR-8642(CA)SEED VEST MICROFINANCE BANK PLC & ANOR v. OGUNSINA & ORS (2016) LPELR-41346(CA); UKATA & ORS v. AKPANOWO & ORS (2016) LPELR-41249(CA)
Parties in this application should consider what is in the best interest of the memory of Late Mrs. Ngozi Obioha-Nwaigwe. I will advice the parties not to engage in activities that will further desecrate the memory of late Mrs. Ngozi Obioha-Nwaigwe.
This application fails. It is hereby dismissed.
I so hold.
I.M.NJAKA
JUDGE
25-9-17