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
SUIT NO: HOW/194/2023
IN THE MATTER OF AN APPLICATION BY PROFESSOR BENARD ODOH FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS.
BETWEEN:
PROFESSOR BENARD ODOH APPLICANT
AND
1.INSPECTOR GENERAL OF POLICE
2COMMISSIONER OF POLICE EBONYI STATE RESPONDENTs
3.THE STATE SECURITY SERVICE EBONY! STATE
JUDGMENT
BY NOTICE OF APPLICATION FOR AN ORDER ENFORCING A FUNDAMENTAL RIGHT (ORDER 2 RULE 1) BROUGHT PURSUANT TO SECTIONS 34, 35 AND 41 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), ORDER 11 RULES, 1,2,3,4 AND 5, ORDER Xl OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT, the Applicant prays:
- A declaration of the Honourable Court that the attempted arrest and detention of the Applicant on the 28″ day of February, 2023 at the Applicant’s office, No. 10 Eze Obidike Close, Owerri in Owerri Municipal Council of Imo State and continued threats to arrest, detain the Applicant and subject the Applicant to intimidation, poor environment and torture by the Respondents for running for the Ebonyi State Governorship under the All Progressive Grand Alliance constitutes a gross violation of due process of law, and amounts to an infringement of the Applicant’s fundamental rights as enshrined in sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic Nigeria ( as amended).
- A declaration of the Honourable Court that the further threats of arrest and detention of the Applicant and continued threats to arrest, detain and subject the Applicant to intimidation, poor environment and torture by the Respondents for running for the Ebonyi State Governorship under the All Progressive Grand Alliance constitutes a gross violation of due process of law, and amounts to an infringement of the Applicant’s fundamental rights as enshrined in sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic Nigeria (as amended).
- A perpetual injunction restraining the Respondents either by themselves or through their agents or servants from further attempting to arrest, arresting, detaining, or inviting the Applicant for whatever reason or allegations that cropped up since the Applicant indicated interest to run for the Ebonyi State Governorship under the All Progressive Grand Alliance and for any related matter thereto.
The GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT are:
- That the attempted arrest and detention of the Applicant on the 28″ day of February, 2023 at the Applicant’s office at No. 10 Eze Obidike close Owerri in Owerri Municipal Council of Imo State and continued threats to arrest, detain and subject the Applicant to intimidation, poor environment and torture by the Respondents for running for the Ebonyi State Governorship under the All Progressive Grand Alliance constitutes a gross violation of due process of law, and amounts to an infringement of the Applicant’s fundamental rights as enshrined in sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic Nigeria ( as amended).
- That the further threats of arrest and detention of the Applicant and continued threats to arrest, detain and subject the Applicant to intimidation, poor environment and torture by the Respondents for running for the Ebonyi State Governorship under the All Progressive Grand Alliance constitutes a gross violation of due process of law, and amounts to an infringement of the Applicant’s fundamental rights as enshrined in sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic Nigeria (as amended).
- That it is unlawful to use the machinery of the Nigerian Police Force for the purpose of harassing and intimidating an innocent citizen.
The AFFIDAVIT SETTING OUT THE FACTS is sworn to by Professor Bernard Odoh, the Applicant in this action. He deposed: I am a Professor and former Secretary to the Ebonyi State Government. The 1st Respondent is the Inspector General of Police, in charge of the Nigeria Police Force while the 2nd Respondent is the Commissioner of Police, Ebonyi State. The 3″ Respondent is the Director of the Department of State Services or State Security Service Ebonyi State. I am currently the Ebonyi State Governorship Candidate of the All Progressives Grand Alliance. Upon my emergence as the Governorship Candidate of the All Progressives Grand Alliance, the opposition, the Ruling Party in the Ebonyi State vowed to humiliate subjugate me to all forms of inhuman indignation, all calculated to force me to join them or withdraw from the race.
On many occasions, I have been assaulted, humiliated and disgraced in Owerri Imo State by the Imo State policemen under the control of the Respondents. On the 28th day of February, 2023 some Policemen under the control and directive of the Respondents invaded my residence at No. 10 Eze Obidike Close, Owerri in Owerri Municipal Council of Imo State and attempted to arrest and detain me. They entered into Imo State without necessary clearance for the purpose of arresting me and whisking me out to an unknown designation probably to kill me so that my political ambition will be destroyed. The Respondents are being used by some people in the Ruling Party in the Ebonyi State. The said Policemen prevented me from going out of my house after blocking some of the entrances for exit. It took God’s intervention for me to escape from them as they were not familiar with terrain of the neighborhood. Since then I have received calls from hidden numbers that threatened to arrest and detained me at all cost.
My investigation shows that they are still in Owerri, Imo State hunting to get me and I cannot go back to Ebonyi State to continue my preparation for the Governorship Election. The Respondents have leveled all kinds of false and frivolous allegations against me so that they would rely on same to arrest and detain me. The only alleged offence I committed is that I am running for the Ebonyi State Governorship under the All Progressives Grand Alliance. My life is at risk and my family has embarked on sudden exile for safety. My children cannot go to school because of the threats to kill them by the unknown men working for the Respondents. My life is at risk of being terminated by the Respondents who are rich and have the capacity to subject me to more humiliation. I have planned to embark on sudden exile until the Honourable Court rescues me from the hands of the Respondents who are out to disgrace me.
The Respondents have breached my fundamental rights.
Application is accompanied by the counsel written address wherein the counsel raised issue for determination as:
Whether the Respondents breached the fundamental right of the applicant.
According to the counsel, sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria as amended guaranteed right to dignity of human person, right to personal liberty and right to freedom of movement respectively. Section 34 (1) provides: Every individual 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. It is submitted that the above right cannot be derogated by any person(s) or institution, as the right is sacrosanct and brings meaning to existence.
It is further submitted that by virtue of section 35 of the said Constitution, the applicant has the right to personal liberty and this right cannot be deprived of except as provided by the said section. Right to freedom of movement is guaranteed under section 41 and same can only be derogated from in accordance with the provision of section 45 of the said Constitution.
It is submitted that from the affidavit evidence in support of this action, it is clear that the only offence the Applicant committed according to the Respondents is for running for the Ebonyi State Governorship under the All Progressives Grand Alliance. Thus, there is no justification in law for the Respondents to attempt to arrest, detain and further threaten to arrest the Applicant for the purpose satisfying certain persons in Ruling Party in Ebonyi State who want the applicant to stop running for Ebonyi State Governorship. Furthermore, affidavit evidence in support of the action clearly shows that the Respondents attempted to arrest and detain the Applicant on the 28th day of February, 2023 when some Policemen under the control and directive of the Respondents invaded his residence at No. 10 Eze Obidike Close, Owerri in Owerri Municipal Council of Imo State. They curtailed his free movement and subjected him mental torture, ridicule and disgrace before his neighbouhood. The Applicant cannot move freely anywhere in Nigeria as the Respondents are monitoring him to arrest him. As if that was not enough, they continued to issue threats to arrest and detain the Applicant.
Since then, the Applicant has been in permanent mental torture and agony as a result of the conduct of the Respondents. The most painful of the situation is that there is no justification for this abuse of power and humiliation of the Applicant. Their grouse against the Applicant is that the Applicant rendered professional service and followed same up to avoid perversion of justice to the detriment of the 1st and 2nd Respondents. Incidentally this is not a crime under Nigerian law. The Applicant, who is professor and teacher, does not deserve these ill- treatments and subjugations. No citizen of Nigeria deserves this. The Respondents are using their contact and influence to pervert the cause of justice and benefit from their wrongs. The Applicant is under duty to stop them as a minster in the temple of justice, and he should not be ridiculed for exercising his constitutional rights.
Therefore, it is submitted that the above incidents constitute a breach of the fundamental rights of the applicant as provided by the Constitution and we urge the Honourable Court to so hold and grant the application. This is more so as the Respondents have no justification in law to attempt to arrest and detain the applicant.
Further Affidavit of Applicant:
Professor Benard Odoh, the Applicant in this case, has submitted a further affidavit in response to the counter-affidavit of the 3rd Respondent. In his affidavit, he addresses and denies the allegations made by the 3rd Respondent while providing additional information: Professor Odoh confirms that he is the Applicant in this legal action. He categorically states that all the paragraphs of the 3rd Respondent’s counter-affidavit are false and denies them. In response to the denied paragraphs of the counter-affidavit, he provides the following details: He asserts that the 3rd Respondent does not have the authority to investigate murder cases. This responsibility falls within the jurisdiction of the 1st Respondent (the Inspector General of Police). He explains that the 1st Respondent has indeed conducted an investigation into the murder of Late Eze Christopher Igbokwe Ewa and has found that certain individuals, namely Nnabuike Emmanuel Egede, Chukwudi Aliewa, Obinna Igwe, and Okechukwu Nwamgbebu, have a case to answer. Furthermore, he mentions that the 1st Respondent has formally charged these individuals and initiated legal proceedings against them for the death of Late Eze Christopher Igbokwe Ewa, providing an attached exhibit as evidence. Professor Odoh emphasizes that the case is currently ongoing, and the 3rd Respondent is aware of these developments. He presents a disclaimer from the family of Late Eze Christopher Igbokwe Ewa, asserting his innocence in the murder case. An exhibit is attached to support this claim. Professor Odoh reiterates his belief that the Respondents have violated his fundamental rights.
In summary, Professor Odoh refutes the claims made by the 3rd Respondent, asserting that the 3rd Respondent lacks the authority to investigate murder cases, while the 1st Respondent (the Inspector General of Police) has initiated legal proceedings against individuals implicated in the murder of Late Eze Christopher Igbokwe Ewa. Additionally, he provides evidence in the form of a family disclaimer to assert his innocence in the case.
3rd Respondent’s Counter Affidavit:
The 3rd Respondent filed Counter Affidavit sworn to by Udechukwu Chijoke. He deposed: I am personnel of the State Security Service (SSS), Ebonyi State Command by virtue of this fact I am familiar with the facts of these case. I have the consent and authority of the 3rd Respondent to depose to this affidavit. The 3rd Respondent is a security and intelligence service saddled with the statutory responsibility of combating threats to internal security of Nigeria and sundry crimes of law and order. I have read the affidavit in support of the Applicant’s motion filed on 1 March, 2023 and same is filled with half-truths regarding the role of the 3″ Respondent. Paragraphs, 2, 3 and 4 are admitted. Paragraphs 5, 6, 7, 8, 10 11, 12, 13 and 15 are within the knowledge of the deponent. They are neither denied nor admitted.
Paragraph 9, 14, 16, 17, 18 and 19 are false and are denied.
The true position of the matter is that on 1 March, 2023, the 3rd Respondent received a petition from the law firm of St. Sen Solicitors dated 28th February, 2023, alleging the murder of late Eze Christopher Igboke Ewa (HRH), the traditional ruler of Umuezeokoha community of Ezaa North LGA, by the Applicant and requested for an investigation of the matter.
The 3″ Respondent after due diligence invited the Applicant for interview which he is yet to honour. In addition to paragraph 7, despite the fact that the Applicant is yet to honour its invitation the 3″ Respondent has not carried out any operation to arrest the Applicant. Contrary to paragraph 9 of the Applicant’s affidavit, the 3rd Respondent is a responsible security organization and cannot be used by anybody to perpetrate sinister assignments.
The invitation of the Applicant is sequel to a petition on allegation of murder. In specific reply to paragraph 16, 17 and 18, the 3rd Respondent upon the request of the Applicant assigned security details to him to address security threats and vulnerabilities associated with the political season and could not have constituted a threat to the Applicant.
The 3″ Respondent has not breached the Applicant’s rights to warrant being joined in this suit as there is no nexus between the 3rd Respondent and the allegations made. What the 3rd Respondent did was to invite the Applicant for interview and he would have been accorded his rights if he has honoured same.
The suit is aimed at embarrassing the 3rd Respondent and to portray it in a bad light before the Court. It is in the interest of justice that this suit is dismissed.
The Counter affidavit is accompanied by counsel written address wherein he formulated issue for determination:
- Whether given the circumstances of this case, the Applicant’s case discloses any course of action against the 3rd
- Whether the Applicant is entitled to the reliefs being sought.
On issue 1, it is submitted that the Applicant’s action discloses no cause of action against the 3rd Respondent. For an action to lie under the fundamental rights enforcement rules, there must be a violation of the rights of the Applicant or an impending violation of same by the Respondent which must be factual. Accrding to cuounsel, painstaking perusal of the Applicant’s affidavit indicates that nowhere was the 3rd Respondent or her operatives alleged to have done anything to jeopardize the fundamental rights of the Applicant. The 3rd Respondent has also in paragraphs 9, 10, 11, 12 and 13 debunked the allegations made against it in paragraphs 9, 14, 16, 17, 18 arid 19 wherein all the Respondents were portrayed as violating the rights of the Applicant without being specific. Furthermore, the 3rd Respondent has averred in paragraphs 8 and 9 of its counter affidavit that it only invited the Applicant for interview in pursuance of an investigation and he is still being awaited. The court is urged to hold that there is no nexus between the 3rd Respondent and the breaches complained about and therefore the 3rd Respondent did not in any way violate the fundamental rights of the Applicant.
On issue 2 it is submitted that the Applicant is not entitled to the reliefs being sought as against the 3rd Respondent. This based on the fact that the alleged violation of his rights by the 3rd has not been established.
In conclusion flowing from the above, the court is prayed to discountenance the submissions of the Applicant’s counsel as the allegations against the 3rd Respondents are mere insinuations. The court is prayed to strike out the name of the 3rd Respondent for misjoinder.
RESOLUTION OF MATTER:
I have considered the affidavit evidence before me and the written submission of the counsel. I am of the view that the issues that called for determination are:
- Did the Respondents breach the fundamental rights of the Applicant, Professor Benard Odoh, as guaranteed by the 1999 Constitution of Nigeria?
- Is there a valid cause of action against the 3rd Respondent in this case?
- Is the Applicant entitled to the reliefs sought?
Issue 1: Did the Respondents breach the fundamental rights of the Applicant, Professor Benard Odoh, as guaranteed by the 1999 Constitution of Nigeria? Professor Benard Odoh, the Applicant, alleges that his fundamental rights as enshrined in the Nigerian Constitution have been violated by the Respondents. Specifically, he invokes sections 34, 35, and 41 of the Constitution, which guarantee the right to dignity of human person, right to personal liberty, and right to freedom of movement, respectively. He claims that the Respondents’ actions, including attempted arrest, invasion of his residence, and restrictions on his movement, constitute a violation of these rights. The Respondents, on the other hand, deny these allegations and argue that they merely invited the Applicant for an interview as part of an ongoing investigation into a murder case.
The court is to determine whether there is sufficient evidence to establish that the Respondents’ actions indeed violated the Applicant’s fundamental rights. This would require an examination of the circumstances surrounding the alleged violations, the legality of the Respondents’ actions, and whether there is a direct link between their actions and the alleged breaches of the Applicant’s rights.
The right to file an application for enforcement of fundamental rights as enshrined under Chapter Four of the Constitution is preserved by section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) This provides thus:
‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.’
The Fundamental Rights (Enforcement Procedure) Rule, 2009 under Order II Rule 1 also provides thus:
‘Any person who alleges that any of the fundamental rights provided for in the Constitution or African charter on Human and People’s Rights (Ratification and enforcement) Act and to which he is entitled, has been, is being or is likely to be infringed, may apply to the court in the State where the infringement occurs or is likely to occur for redress:
Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction.’
See ADETONA VS. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (PT. 1247) PG 542
In HASSAN V. E.F.C.C (2014) 1 NWLR {PT. 1389} PAGE 607 AT 610 RATIO1, the Court of Appeal define Fundamental Rights as;
‘’a right which stand above the ordinary laws of the land and which are in fact antecedent to the political society itself and it is a primary condition to civilized existence.’’
Here the Applicant is complaining about violation of his rights as secured by sections 34, 35 and 41 of the 1999 Constitution as amended.
Right to dignity of human person: By virtue of Section 34(1) of the CFRN, every individual is entitled to respect for the dignity of his person. However, a person shall not be subjected to slavery, torture or to degrading treatment.
Right to personal liberty: By virtue of section 35(1) of the 1999 constitution, “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.” Lord Denning observe that the right to personal liberty means: “the freedom of every law abiding citizen to think what he will, to say what he will on his lawful occasions, without let or hindrance from any other person.”
Right to freedom of movement: As it is stipulated in section 41(1) of the CFRN, every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit there from. Notwithstanding section 41(2) (a) of the CFRN one who has committed or is suspected to have committed a criminal offence is restricted/prevented from leaving is country.
It is the duty of the party alleging violation of his fundamental rights to place material facts before the Court to make such findings. See FAJEMIROKUN V.COMMERCIAL BANK (NIG.) LTD & ANOR. (2009) 5 NWLR (PT.1135) 588
The Applicant claims that the invasion of his residence and threats to his life have forced him into exile, which suggests that his right to personal liberty and freedom of movement have been violated. The Applicant has presented allegations of invasion, harassment, and threats, which should be taken seriously The Applicant claims that on February 28, 2023, policemen under the control and directive of the Respondents invaded his residence in Owerri, Imo State, in an attempt to arrest and detain him. This allegation is supported by his affidavit and the assertion that his rights were violated. The Applicant asserts that he has received threatening calls from hidden numbers and that his life is at risk. He claims that he and his family have been subjected to harassment, and his children cannot attend school due to safety concerns. The Applicant has presented legal documents, including a charge sheet and a family disclaimer, to support his claim that he is not involved in the alleged murder case. He argues that his political aspirations have been a source of conflict with the Respondents.
The Applicant by his affidavit evidence appears to link his alleged ordeal to political persecution though he made no reference to any section of Constitution to that effect. Punishing, intimidating, or otherwise injuring a person or group because of their political thoughts or beliefs is known as political persecution. It violates international human rights legislation and is prohibited by the Universal Declaration of Human Rights. Political persecution includes, but is not limited to, imprisonment, torture, and other types of physical and mental pain. Exclusion from housing, employment, education, and other opportunities because of one’s political beliefs or viewpoints is another example of political discrimination. The International Covenant on Civil and Political Rights also prohibits political persecution. Article 25 of the International Covenant on Civil and Political Rights (ICCPR), provides:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
In a related manner, SECTION 40 OF THE 1999 CONSTITUTION specifies that:
Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. This constitutional provision emphasizes that everyone has the right to join a political party and participate in governmental affairs.
A look at these sections it is clear that they are not in the absolute terms; however the Court shall not fail to protect these rights when they are breached or likely to be breached. In LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVERNOR OF NASARAWA STATE & ORS (2012) LPELR-20602 (SC) the court held thus:
“Courts should assume an activist role on issues that touch or concern the rights of the individual and rise as the occasion demands to review with dispatch acts of Government or its agencies and ensure that the rights of the individual guaranteed by the fundamental rights provisions in the Constitution are never trampled on.”
The Police Act stipulates the powers of the police. The Constitution of the Federal Republic of Nigeria acknowledges the power of the law enforcement agencies to arrest and detain as well as the right of the citizens not be subjected to an arbitrary arrest and indefinite detention hence the provision for “reasonableness” suspicion and “reasonable time’. By the provision of the laws stated above, everyone deprived of his or her liberty has the right to challenge the lawfulness of his or her arrest or detention before a court so that the court may decide without delay and speedily on the lawfulness of the detention or order the person’s release if the detention is not lawful. In Fawehinmi Vs. I.G. P [2002] 7 NWLR (Pt. 767) 606, (2002) 5 S.C (Pt.I) 63; (2002) All N.L.R 357, the Court per Uwaifo JSC. Stated: “I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence implicating him”.
In HRH EZE (DR) PETER OPARA & ANOR v. DIAMOND BANK PLC & ANOR (2011) LPELR-4268(CA) the court stated:
As it is, it will be utterly unreasonable for the 2nd Respondent to insist that they can only commence the investigation only after the 1st Appellant honoured the invitation in Exhibit ‘V’. Has time not come in this country for the law enforcement agencies to invite persons against whom there are complaints for questioning only after they had satisfied themselves, upon preliminary investigations, that a prime facie case against the suspects had been disclosed? The practice of perfunctory invitation of the person against whom there is a complaint, without preliminary investigation, has invariably resulted in unnecessary interference with the person’s liberty especially when eventually the complaint is found to be fanciful and merely actuated by malice.
The Applicant has laid before the court facts upon which to find his favour.
Issue 2: Is there a valid cause of action against the 3rd Respondent in this case?
The 3rd Respondent contends that the Applicant’s case fails to establish a cause of action against them. To invoke the fundamental rights enforcement rules, there must be a factual violation or impending violation of the Applicant’s rights by the Respondent. The 3rd Respondent argues that a careful review of the Applicant’s affidavit reveals no specific actions by them or their operatives that jeopardize the Applicant’s fundamental rights. They maintain that the invitation extended to the Applicant was part of a legitimate investigation and that the Applicant’s failure to respond has no connection to a breach of his rights. The 3rd Respondent states that they received a petition from a law firm alleging the murder of a traditional ruler by the Applicant and requested an investigation. They maintain that the investigation is ongoing and that the Applicant has been invited for an interview but has not complied.
The court will determine whether the actions of the 3rd Respondent, as presented in the evidence, amount to a violation or impending violation of the Applicant’s fundamental rights and whether there is a valid cause of action against the 3rd Respondent.
The Nigerian Police and the Department State Security are Federal Government agencies established by law and operates and functions within the bounds set by the law establishing them.
The Nigeria Police Act 2020 outlines the duties and responsibilities of the police force in Nigeria. Section 4 of the Nigeria Police Act 2020 states that the police force is primarily responsible for the maintenance of law and order. Section 5 of the Act empowers the police to prevent and detect crimes. Section 6 mandates the police to protect the lives and property of all persons in Nigeria. Section 7 gives the police the authority to maintain public safety and public order. Section 10 requires the police to provide assistance to other law enforcement agencies when necessary. Section 11 emphasizes the duty of the police to respect and protect the human rights of all persons. Section 21 lays out the powers of the police to investigate and gather evidence in criminal cases. The State Security Service (SSS), now known as the Department of State Services (DSS), operates under the National Security Agencies Act 1986 in Nigeria. Section 2(a) of the National Security Agencies Act 1986 empowers the DSS to ensure the protection and preservation of national security. Section 2(b) grants the DSS the authority to gather intelligence within and outside Nigeria as necessary for national security. Section 2(e) allows the DSS to investigate any matter that is relevant to the internal security of Nigeria. Section 6 enables the DSS to provide support to other law enforcement agencies in matters related to national security. Section 7 emphasizes that the DSS must respect and protect the human rights of individuals during the performance of its duties
It appears from the provisions of the law that the Nigeria Police primarily focus on maintaining law and order, preventing and detecting crimes, enforcing laws and regulations, and ensuring the safety and security of the public while the DSS is primarily responsible for safeguarding national security. This includes intelligence gathering, counterintelligence, and protecting the country from internal and external threats. While both agencies have their own areas of focus, there can be situations where their roles intersect, such as in matters involving national security and criminal investigations. In such cases, coordination and cooperation between the two agencies are essential to ensure effective law enforcement and national security efforts.
Cooperation and coordination between law enforcement agencies like the Nigeria Police and security agencies like the DSS is crucial to ensure the safety and security of the country and its citizens. In this cooperation and coordination, it is also important to note that in the exercise of their duties, their various establishing law emphasis on the respect and protection of the people’s fundamental human rights.
In the cooperation and coordination there are still core responsibilities touching to the marrow of the existence of each of the agencies. I think the alleged crime should be within the domain of the Nigeria police while the DSS at the periphery is giving the needed assistance.
The Applicant alleged that his home at Owerri was invaded by the Respondents. I should at this point note that the 1st – 2nd Respondents did not file any process while the 3rd Respondents filed after the application has been heard and set down for ruling. I refer to Order 11, Rules 6 and 7 of the 2009 Rules which provide thus:
Order 11, Rule 6: Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.
Order 11, Rule 7: The applicant may on being served with the Respondent’s Written Address, file and serve an address on point of law within 5 days of being served, and may accompany it with a further affidavit.
Order IX, Rule 1 of the 2009 Rules provides that anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, such failure shall be treated as an irregularity and may not nullify such proceedings.
The 1st – 2nd Respondents were served but did not deem it necessary to file processes. This court always considers it important to hear all the parties and was why it bent backwards to hear the 3rd Respondent. But where a party decides to stay away after several services, there is not much left for this court to do.
The processes in the court file show that the 1st and the 2nd respondent were served with the Originating Processes on the 3rd day of March 2023. A party who fails to file a counter affidavit is by operation of law deemed to have accepted the facts deposed in the affidavit and such unchallenged facts are treated as having been established before the court. Likewise, where the supporting affidavit to an application is not countered, it must be deemed to be true and correct. However, for such unchallenged evidence to be accepted and relied upon by the court, it must be both credible and reliable.
The 3rd respondent stated that the received letter alleging involvement of the applicant in a murder case and they extended invitation to the Applicant which he has refused to honour. The 3rd respondent did not go further to state the mode of this invitation. Was it through voice call, sms or letter of invitation? The 3rd Respondent did not clearly extricate itself from the allegations of the Applicant. There is also document of disclaimer and the fact the Police has charged some persons to court in respect of the matter.
Is the Applicant entitled to the reliefs sought?
The 3rd Respondent argues that the alleged violations of the Applicant’s rights have not been substantiated and, therefore, he is not entitled to the reliefs sought. The court have assessed the evidence and arguments presented by both parties to and it is clear to me that the Applicant’s claims are supported by sufficient evidence to warrant the granting of the reliefs sought.
It is trite law that the decision of the police to investigate any crime cannot be interfered with by this Court. See GANI FAWEHIMI V. IGP & ORS (2003) 1 NCC 414 AT 416; A. G. ANAMBRA STATE V UBA (2005) 33 WRN 191. But the court must condemn Gestapo method of arrest especially for non- dangerous or non-fleeing defendant.
I have carefully considered the evidence presented by both the Applicant and the 3rd Respondent to determine whether there has been a breach or threatened breach of the Applicant’s fundamental rights and whether there is a valid cause of action against the 3rd Respondent. This application succeeds and it is:
- Declared that the attempted arrest and detention of the Applicant on the 28″ day of February, 2023 at the Applicant’s office, No. 10 Eze Obidike Close, Owerri in Owerri Municipal Council of Imo State and continued threats to arrest, detain the Applicant and subject the Applicant to intimidation, poor environment and torture by the Respondents for running for the Ebonyi State Governorship under the All Progressive Grand Alliance constitutes a gross violation of due process of law, and amounts to an infringement of the Applicant’s fundamental rights as enshrined in sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic Nigeria ( as amended).
- Declared that the further threats of arrest and detention of the Applicant and continued threats to arrest, detain and subject the Applicant to intimidation, poor environment and torture by the Respondents for running for the Ebonyi State Governorship under the All Progressive Grand Alliance constitutes a gross violation of due process of law, and amounts to an infringement of the Applicant’s fundamental rights as enshrined in sections 34, 35, and 41 of the 1999 Constitution of the Federal Republic Nigeria (as amended).
- A perpetual injunction restraining the Respondents either by themselves or through their agents or servants from further attempting to arrest, arresting, detaining, or inviting the Applicant for whatever reason or allegations that cropped up since the Applicant indicated interest to run for the Ebonyi State Governorship under the All Progressive Grand Alliance and for any related matter thereto in manner likely to infringe on his fundamental human rights.
I so hold
I.M.Njaka
Judge
3-10-2023
Appearances:
Stella Chidozie Esq., holding the brief of Prof CK Okorie SAN for the Applicant
SC Nwangele Esq., holding the brief of EE Daubry for the 3rd Respondent