Fundamental Right Enforcement

SUIT NO: HOW/714/2022-MRS. LUCY NJIDEKA EZE-ANYADIKE V 1. MR. JONATHAN CHUKWUDUBEM MENEKE 2. INSPECTOR PEACE OPARAUGO 3. COMMISSIONER OF POLICE, IMO STATE 4. THE NIGERIA POLICE FORCE – BEFORE HIS LORDSHIP:- HON. JUSTICE I. M. NJAKA – delivered ON WEDNESDAY, THE 15TH DAY OF FEBRUARY 2023For an applicant to be entitled to declaratory relief, they must clearly demonstrate that their rights have been, are being, or are likely to be violated or infringed – The applicant has the duty to provide all necessary facts to enable the court to determine the case, especially in cases where the evidence is primarily based on affidavits- fundamental human rights are not absolute and can be limited by the law, especially in cases where a citizen is facing a criminal trial with serious penalties- citizens have the right to report crimes to the police, and they cannot be held culpable for doing so unless it is proven that the report was made maliciously. any detention, no matter how short, can constitute a breach of fundamental rights if it is found to be unlawful or wrongful- the privacy of Nigerian citizens’ homes and communications is guaranteed by the constitution but its violation can be reasonably justifiable in a democratic society for purposes of defense, public safety, public order, public morality, or public health, as well as for protecting the rights and freedom of others-the police may search a house without a warrant in exceptional cases where evidence is likely to be destroyed, concealed, or in danger of being destroyed. However, such searches must be transparent and conducted in accordance with the rule of law -unless there is clear evidence of a person directing or propelling the activities of the police, they may not be held responsible for the steps taken by the police in the exercise of their constitutional duties- the use of handcuffs during an arrest and the involvement of the police in money recovery, is not justifiable.

Admin Editor

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

ON WEDNESDAY, THE 15TH DAY OF FEBRUARY 2023

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

SUIT NO: HOW/714/2022

IN THE MADER OF APPLICATION BY MRS. LUCY NJIDEKA EZE-ANYADIKE FOR THE ENFORCEMENT OF HER FUNDAMENTAL RIGHTS

IN THE MATTER OF:

MRS. LUCY NJIDEKA EZE-ANYADIKE ……………..APPLICANT

V

  1. MR. JONATHAN CHUKWUDUBEM MENEKE
  2. INSPECTOR PEACE OPARAUGO             RESPONDENTS
  3. COMMISSIONER OF POLICE, IMO STATE
  4. THE NIGERIA POLICE FORCE

JUDGMENT

This is Notice of Application for Enforcement Of Fundamental Right said to be brought pursuant to Order 2 Rule 1 of the Fundamental Right (Enforcement Procedure) Rules 2009; Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended); African Charter On Human and Peoples Right (Ratification And Enforcement) Act, Cap 10 Laws Of Federation Of Nigeria 2004 and under the Inherent Jurisdiction of the Honourable Court, wherein the Applicant prays as follows:

  1. Declaration that the arrest of the Applicant on the 10th of June 2022 by the 2nd Respondent on the instigation of the 1st Respondent, and the detention of the Applicant at the Area Command Owerri Police Station from the said 10th  of June, 2022 till 11th of June, 2022 when Applicant did not commit any known offence or is reasonably suspected of committing any known offence constitutes serious breaches of Applicant’s fundamental rights to dignity of human person, right to personal liberty and right to freedom of movement guaranteed under the constitution of the Federal Republic of Nigeria 1999 (As Amended)
  2. A Declaration that the compulsory seizure by the 2nd Respondent of the following under-listed groceries purchased on the 10th of June, 2022 by the Applicant from Maris Super Market Ikenebu, Owerri and handing same back to the 1st Respondent without the consent and permission of the Applicant constitutes a fragrant violation of the right of the Applicant to own movable properties guaranteed under section 44 (1) of the Constitution of the Federal Republic of Nigeria 1999 As Amended. The groceries are: i. 5 sachets of Peak 456 (400g) ii. 6 sachets of Milo (6 Roles) iii.  1 sachet of Ovaltine (1 Role) iv. 1 sachet of full cream peak milk (1 Role) v. 1 big pack of Golden Morn cereal Hollandia Milk (3 packs) VII.    Hollandia Youghort (1 Pack) viii.    Eva Soap (1 pack by 4) ix. 1 Johnson Baby Soap (USA) x. 1 Sunlight detergent (900g) xi1 milk teeth toothpaste (for kid of 1-6yrs)
  3. A declaration that the searches conducted at the business premises of the Applicant located at 27 Umez-Eronini Street Ikenegbu and a further search of the living home of the Applicant located at No. 16 Enoc Street Umudagu Works Layout, Owerri all on the 10th of June, 2022 by the 2nd Respondents and the 1st Respondents on the instigation of the 1st Respondent and without any search warrant first had and obtained when Applicant did not commit any known offence or is reasonably suspected of committing any offence is a flagrant violation of the right to privacy of Applicant’s home guaranteed under section 37 of the Constitution of the Federal Republic of Nigeria 1999 As Amended.
  4. A declaration that the continuous and continuing invitation of the Applicant and the threat to re-arrest and re-detain the Applicant and or charge him to court if she fails to pay the sum of One Million, Three Hundred Thousand Naira (N1,300,000.00) to the Applicant is unlawful, unconstitutional and constitutes a flagrant breach of the Applicant’s fundamental right.
  5. An order of perpetual injunction restraining all the Respondents either by themselves their agents, servants, subordinates howsoever described or designated from arresting, threatening to arrest, from detaining or threatening to detain the applicant and or harassing by continuous and constant invitation of the Applicant in connection with the facts constituting the subject matter of this suit or instituting any criminal charge against Applicant in any court of law in Nigeria arising from the facts of this case.
  6. An Order of injunction mandating 1st and 2nd Respondents to return forthwith to the Applicant the following items unlawfully seized from Applicant:
  7. sachets of Peak 456 (400g)
  8. sachets of Milo (6 Roles)
  9. 1 sachet of Ovaltine (1 Role)
  10. 1 sachet of full cream peak milk (1 Role)
  11. 1 big pack of Golden Morn cereal
  12. Hollandia Milk (3 packs)
  13. Hollandia Youghort (1 Pack)
  14. Eva Soap (1 pack by 4)
  15. 1 Johnson Baby Soap (USA)
  16. 1 Sunlight detergent (900g)
  17. 1 milk teeth toothpaste (for kid of 1-6yrs)
  18. 7. Order of court mandating that Respondents particularly, the 1st Respondent to apologize in writing to Applicant for inducing the flagrant violation of the Applicant’s fundamental rights.
  19. 8. Ten Million Naira (N10,000,000.00) damages against 1st Respondent for unnecessary breaches of the fundamental rights of the Applicant

Grounds upon which reliefs are sought are stated as:

a. The Applicant has fundamental rights to dignity of human person, right to personal liberty, right to freedom of movement guaranteed and, protected under sections 34, 35, 41 of the Constitution of Federal Republic of Nigeria 1999 (As Amended) and Articles 12, 5 and 6 respectively of the African Charter on Human and Peoples Right as domesticated under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap A 10) Laws of Federation of Nigeria 2004.

b. The Applicant who did not commit any offence or is reasonably suspected of committing any offence was unlawfully and without any lawful cause arrested on the 10th of June, 2022 at Maris Super Market Ikenegbu, Owerri by the 2nd Respondent on the invitation and instigation of the 1st

c. The Applicant who did not commit any offence or is reasonably suspected of committing any offence was at the instigation of the 1st Respondent unlawfully and without any lawful cause detained by the 2nd Respondent at the Area Command Owerri Police Station from the said 10th of June, 2022 till 11th of June, 2022.

d. The groceries purchased by the Applicant from Maris Super Market Ikenegbu worth Twenty-Four Thousand Naira was unlawfully and without lawful cause seized and removed from the Applicant by the 2nd Respondent on the instigation of the 1st Respondent and same returned to the 1st Respondent even when those items were not stolen by the Applicant.

e. Applicant’s business premises located at 27 Umez-Eronini Street Ikenegbu and her living home of the Applicant located at No. 16 Enoc Street Umudagu Works Layout were illegally searched 10th of June, 2022 by the 2nd Respondent on the instigation of the 1st Respondent without any search warrant first had and obtained.

f. The arrest and detention of the Applicant and continuous and constant invitation of Applicants to Area Command Police Station, Owerri, the threat to re-arrest, detain the Applicant and arraign her for prosecution if Applicant fails to settle with 1st Respondent by paying 1st Respondent the sum of Five Hundred Thousand Naira demanded by him even when Applicants did not commit or is reasonably suspected of committing any offence constitute a flagrant breach of Applicant’s fundamental rights to freedom of movement, liberty and dignity of their person under section 34 35, 41 and 46, respectively of Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Articles 12, 5 and 6 respectively of the African Charter on Human and Peoples Right as domesticated under African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A10 Laws  of Federation of Nigeria 2004

Affidavit in support of application is deposed to by Lucy Njideka Eze-Anyadike the Applicant. He deposed: I am very much conversant with the facts and circumstances of this case. My maiden name is Osuagwu while Eze-Anyadike is my husband’s name which I took up immediately after marriage. I know the Respondents. 1st Respondent is the owner of Maris Super Market Ikenegbu, Owerri, Imo State. 2nd Respondent is an Inspector of Police attached to Police Area Command, Owerri, Imo State; she is equally the investigating Police Officer, who led team of other policemen whose name I do not know to arrest me on the 10th of June, 2022. 3rd Respondent is the Commissioner of Police, Imo State Police Command and has disciplinary control over the 2nd Respondent while the 4th Respondent is the Nigeria Police Force.

On the 10th of June, 2022, I went to Maris Super Market Ikenegbu, Owerri Imo State for shopping. The items I picked up from the shelves of the super market are as follows: a.          5 sachets of Peak 456 (400g) b. 6 sachets of Milo (6 Roles) c. 1 sachet of Ovaltine (1 Role) d. 1 sachet of full cream peak milk (1 Role) e. 1 big pack of Golden Morn cereal f. Hollandia Milk (3 packs) g. Hollandia Youghort (1 Pack) h. Eva Soap (1 pack by 4) i. 1 Johnson Baby Soap (USA) j. 1 Sunlight detergent (900g) k. 1 milk teeth toothpaste (for kid of 1-6yrs)

After selecting the items from the shelves, I took the items to the cashier’s desk for assessment and payment. The cashier checked all the items I selected for purchase and the total price was about Twenty-Four Thousand Naira. I then gave the cashier my Zenith Bank Automated Teller Machine (ATM) Card and instructed him to debit only the sum of Nineteen Thousand Naira (N19,000.00) while the balance of Five Thousand Naira should be recorded for me to be settled when next I come shopping. The said Zenith Bank Account is operated in my maiden name of Lucy Njideka Osuagwu. I have been shopping at Maris Super Market for almost five years now and have never stolen any items from the super market, rather whenever I shop at the super market and the value of the items I purchased is in excess of the money I had in my account for payment, I would meet the manager who would instruct that the excess be recorded in the book kept for that purpose to be settled later during my next shopping. The manager of Maris Super Market Mr. Ikeokwu Meneke who is the biological son of the 1st Respondent is a personal friend to me and my husband and was the one who gave the approval that such excess sum be recorded and they have been recording it and I have been settling them subsequently without hitches. This custom has existed between me and Maris Super Market for over some years now. Maris Super Market has a notebook where they keep records of outstanding debt of customers including me. One of the days I came for shopping, I requested to know how much l owed, the Manager brought out the record and showed that I owe about twenty-four thousand Naira which I told him that I will settle it at my next shopping because I had finished the money I had on me that day.

On the 10th of June, 2022, after purchasing the items mentioned in paragraph 4, I gave the cashier who already knows me, my Zenith Bank ATM Card and requested that he debit only Nineteen Thousand Naira (19,000.00) while the excess be recorded as a debt for me. Cashier brought out their POS machine, I slotted my Zenith Bank ATM card and was debited the sum of Nineteen Thousand Naira in favour of Maris Super market. The cashier brought out their book and noted that I owe balance of Five Thousand Naira. A print out of my Statement of Account showing the debit from my account of the sum of Nineteen Thousand Naira in favour of Maris Super Market is hereto attached as Exhibit A. The cashier then packaged the items I bought and handed same to me, I was cleared by the security man at the main entrance to the supermarket and I took the items to my car which was parked at the car park of the supermarket. I was about driving out when another son of 1st Respondent popularly known as Bobby who also works at the super market and knows me very well came to me called me “Mama Ejima”, he said that I should wait, that there was something, he wanted to discuss with me”. I then put off my car and came out and asked him what the matter is all about. He asked me to come inside the supermarket which I did.

That while inside, he started attending to other issue and when I remind him that I had other issue to attend to, Bobby would plead with me to give him a little time to sort out something before we can discuss. That while I was waiting, 1st Respondent came in with two persons, one of whom is the 2nd Respondent. The 1st Respondent then came to me and said “Mama Ejima, I heard that you do buy things here but do not pay completely and you again bought something today but did not complete payment” I told 1st Respondent that there is a record being kept to that effect that in any case, that any outstanding debt I have with the supermarket is done with the knowledge and approval of the manager, Ikeokwu Meneke and that I do defray the debt subsequently. He then instructed the 2nd Respondent who came with another male officer all of whom were in mufti to arrest me. The 2nd officer brought out a handcuff and I was immediately arrested by the 2nd Respondent and her team. I was taken to Police Area Command, Owerri, the bag of items I bought which were already in my car was also forcefully taken from me by the 1st and 2nd Respondent. I know that Maris Super market has Close Circuit Television, CCTV covering both in and out of the premises of the super market, and a review of clips will show all that happened on that 10th of June, 2022. A review of it will show that I was never accused of stealing and that I never stole from the super market.

At the Area Command police station Owerri, I made statement and stated what happened. I also requested that Mr. Ikeokwu Meneke be invited to bear out that I have never stolen from their super market and that any outstanding debt of what I bought from the super market is properly documented before I ever step of the super market and I have defrayed them in the past.

My lawyer Stanley Chukwu Esq informed when I went to brief him after my release on bail that if 2nd Respondent wanted to stop the established custom between me and the super market, the proper thing to do is not to invite the police and have me arrested as a common criminal but to informed me to pay any outstanding debt and leave instruction that henceforth that I should not be allowed to buy thing unless I completely pay for them.

When my husband later came and requested that I be granted bail as the report did not show any acts of stealing or committing any crime against me, 1st Respondent insisted that I shall be detained. The 2nd Respondent then detained me till the very next day being 11th of June, 2022 when I was released very much later in the day. 1st Respondent also informed the police that there is another lady who purchased items from the shop but record showed that she did not pay completely, that the person is my friend and that I was the one who introduced the lady to the shop. He further alleged that all the items taken from his super market are stockpiled in my shop and at my house. The police then took me to my shop and my house where they conducted searches there but did not see any items. I was not shown any search warrant before my house was searched, that I was not asked to sign any document after my house and my shop were searched.

1st Respondent insisted that the only way, he would drop the case is if I agree to sign paper that I will pay him the sum of One Million Three Hundred Thousand Naira (which sum he later reduced to Five Hundred Thousand Naira) which according him is part of the physical cash missing in his supermarket. The 1st Respondent insisted that if I refused to pay, that the police should charge me to court for stealing. I have never stolen any items from Maris Super Market, neither have I ever bought anything from the super market without being properly cleared before leaving the super market. That the report against me is not that I stole any item from maris super market but that I do buy thing from there but do not pay completely. I know that buying an item and not completely paying is not a crime once the balance is properly documented as debt. Till date, those items worth Twenty-Four Thousand Naira I bought from Maris Super Market for which I paid Nine Nineteen Thousand Naira and have debt properly document have not been returned to me. Since 11th of June, 2022 I have been on constant invitation to the police station at the instance of the police who insist that unless I settle with the 1st Respondent by paying him that they will take me to court. Unless this court intervenes and restrains the Respondents, they will continue to harass me by constant invitations and will even charge me to court over something that I do not know.

I was embarrassed, humiliated and treated like a common criminal in the full glare of other customers shopping on the 10TH of June, 2022 and people were looking at me as a thief, who came to the super market, stole and went away without paying or cleared.

There is a WRITTEN ADDRESS OF COUNSEL IN SUPPORT OF MOTION, wherein the counsel submitted issue or determination as  follows:

Whether the arrest and detention of Applicant when Applicant has not committed or is reasonably suspected of having committing any offence were not unjustified, unlawful, unwarranted and so constitute a breach of the fundamental rights of the Applicant

According to the counsel the fundamental right of a citizen of Nigeria is a serious issue. It is for this reason that the law did not leave it at the whims and caprices of over­ zealous individuals and or security agents rather the law prescribed what the citizen’s rights are and also provided permissible circumstances where these rights can be derogated from. One of such circumstance is where there is a report made in good faith by another citizen of Nigeria to the law enforcement agencies that a person has committed or is suspected reasonably of having committed an offence regurgitating. Referred to IBIYEYE V GOLD 2013 ALL FWLR PT 569, 1074 @ 1101 and 1108

It is submitted that the test of good faith is an objective test. What this means is that for any report against any citizen of this country to the law enforcement agencies to be adjudged as one made in good faith, that report must show that there is a reasonable suspicion of an offence being committed by that citizen. It is this reasonable suspicion of an offence being committed that justifies the invitation of the police by the Respondent and would also ultimately justify the arrest and detention of the Applicant. Where there is no reasonable suspicion of the Applicant committing any offence, then the report to the police that Applicant committed an offence is one without good faith and then any infraction of the rights of the Applicant emanating from such report becomes one without any lawful cause and so cannot be justified in law.

It is submitted that lawful cause for arrest and or detention is what justifies every arrest and or detention, that is why any time there is no justification for arrest, the law is that even if the applicants were detained or their movement restricted for just one minute, it will still amount to curtailment of Applicant’s right to liberty and freedom of movement. That is why any time an applicant is arrested without lawful cause, then, the duration of his or her detention is immaterial. Relied on ISENALUMHE V JOYCE AMADI (2001) 1CHR 458 @ 466 PARAS A-C

According to the counsel, the funny thing about this case is that the Applicant was arrested detained; her house and office illegally searched, her moveable properties unlawful seized over what is purely civil in nature. Applicant is a regular customer who does her shopping at Maris Super Market Ikenegbu owned by the 1st Respondent. The Manager of the Market happened to be the son of 1st Respondent called Mr. Ikeokwu Meneke. Mr. Ikeokwu Meneke is a family friend to the Applicant. This friendship culminated into a credit understanding between the super market and the Applicant with the knowledge and approval of the manager, such that whenever Applicants shops at the super market and what she purchased is in excess of the cash she has on hand, she would be allowed to pay what she has and the excess recorded in the book kept by the Supermarket for that purpose.

On the 10th of June, 2022, Applicant went to shop at the super-market, purchased groceries. She took what she collected from the shelves of the Super market to the cashier’s desk for payment. The cashier valued all the items she took to be about Twenty-Four Thousand Naira. The Applicant informed the cashier that she would pay the sum of Nineteen Thousand Naira (N19,000.00) while the balance should be recorded to her credit to be settled later as they had done in the past. She gave the cashier her Zenith Bank ATM card who inserted same into the pas machine of the Maris Super Market and debited the sum of Nineteen Thousand Naira from Applicant’s Zenith account in favour of Maris Super Market. Exhibit A is the Statement of Account showing the payment. The excess of Five Thousand Naira (N5,000.00) was recorded for her in their book as debt to be paid later, The cashier packaged the goods, gave her print out showing the payment she made and allowed her to go. She was cleared at the entrance gate and she went to her car and dropped the items in her car ready to drive out. There was no time Applicant purchased anything from the super market and was not properly cleared before leaving the premises. The act of buying something, paying a part of the fee and reserving some to be paid later so far as it is done with the knowledge of the management of the super market, who even has a book where they record same cannot by any stretch of imagination constitute a crime of stealing or reasonable suspicion of stealing warranting the invitation of the police against the Applicant.

It is submitted that if the 1st Respondent wants to end the custom between the super market and the Applicant, a custom established to the knowledge of the Manager Mr. Ikeokwu Meneke who happened to be the son of the 1st Respondent, all that is required of 1st Respondent as the owner and CEO of the super market is simply to direct that henceforth, Applicant or any other customer should not be allowed to owe any money, then he would demand for settlement of any outstanding credit from Applicant. But did the 1st Respondent do that? No. He merely raised a petition against the Applicant to the Police that Applicant buys things in his super market without paying completely. This led to the arrest, detention, search of the office and house of Applicant.

It is submitted that section 44 (1) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides that No moveable property (or any interest in immovable property) shall be taken possession of compulsorily no right over or interest in nay such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by the law. The items, the Applicant purchased on 10th of June, 2022 are listed in paragraph 4 of the affidavit in support of this application. It is submitted that Applicant having purchased the items and made part payment, the properties in those items passed to her and the 1st Respondent or the Maris Super Market no longer have any property in the groceries. It is therefore a breach of the Applicant’s right to own movable property as guaranteed under the constitution for the 1st and 2nd Respondent to compulsorily take back those items from the Applicant. The court is urged to so hold.

The Applicant’s house and office were searched without any form of search warrant just to satisfy the ego of the 1st Respondent. The law guarantees the privacy of the homes of citizens of this country. What this means is that arbitrary searches of the home and correspondences of citizens of this country without due process of law are frowned upon by the constitution. The court is urged to deprecate the conducts of the Respondent in searching the house of the Applicant without lawful cause. The court has deprecated a situation where citizens use the police to pursue civil vendetta. What happened in this case is nothing but a powerful citizen using the police to intimidate. This becomes obvious where 1st Respondent arbitrarily fixed how much he feel Applicant must pay him otherwise he will ask the 2nd Respondent to charge Applicant to court. If this court fails to intervene, Applicant will be subject to criminal trial over facts which do not disclose any crime. This is totally unacceptable and we urge  My Lord to stop the Respondents.

According to the cunsel, on the facts of this case it is submitted that the arrest and detention of the Applicants, threat to arrest and detain the Applicant, unlawful confiscation of Applicant’s groceries which Applicant has paid for in part and continuous and constant invitation of Applicant by Respondents even when Applicant did not commit or reasonably suspected of committing any offence constitute a flagrant breach of Applicant’s fundamental rights to freedom of movement, liberty and dignity of their person under section 34, 35, 41 44, and 46, respectively of Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Articles 12, 5 and 6 respectively of the African Charter on Human and Peoples Right as domesticated under African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap AI0 Laws of Federation of Nigeria 2004

According to the counsel, this case provides an opportunity for the court to judicially condemn the use of police to harass and intimidate citizens over private matters. That is why the court is being urged to grant all the reliefs sought in this application particularly on the award of damages to act as deterrence to the Respondents. In a society governed by law, everyone even the law enforcement officers must be subject to the law itself. The Respondent must operate under the law and not above the law.

It is submitted that it is the law that once a person is unjustly arrested and detained, then he entitled to apology. It is a constitutional provision. Applicant has been unduly been arrested and detained for no just cause. Under the law she is entitled to apology. The court is urged to so hold. In the final analysis, the court is prayed to grant all these reliefs sought in this application.

COUNTER AFFIDAVIT of the 1st Respondent is deposed to by Mr. Jonathan C. Meneke, the 1st Respondent. He deposed: I am the managing director of Maris Supermarket Limited. I have read the affidavit in support of the application and I state that all are false. I know the Applicant as a customer of Maris Supermarket Limited who frequents the shop. I came to know the 2nd Respondent after the Applicant honoured the invitation of the Police on the 10TH of June, 2022 at Imo State Area Command, who also invited me to their office. On getting to Area Command office of the Nigeria Police, the 2nd Respondent introduced herself as the investigating police officer this case was assigned to. The Applicant came to Maris Supermarket on the 10TH of June, 2022 and picked the items as enumerated in paragraph four of her affidavit.

After picking the items, she went to the pay-point and the cashier, one Maduabuchi Maduabum costed the items which total value was N24,000.00 (Twenty Four Thousand Naira) and she transferred only N19,000.00 (Nineteen Thousand Naira) to the company’s account defrauding the company of the balance of N5,000.00 (Five Thousand Naira) which has become the tradition for more than 3 years.

She transferred N19,000.00 (Nineteen Thousand Naira) as the last money she paid for the items and did not tell the cashier that she will pay the balance when next she will come. She has some time ago collected goods worth N45,000.00 (Fourth Five Thousand Naira) and instructed Maduabuchi the cashier to debit only N10,000.00 (Ten Thousand Naira) and has never told him she will come later to pay the balance. She has shopped from Maris Supermarket for more than 3 years and have been stealing from the supermarket through this type of swindling. Maris Supermarket has a policy of no credit sales as it is impossible for the cashiers to balance their account at the close of work. The then manager cannot on his own change the company’s policy and the company has no book kept for the purpose of recording debtors. Mr Ikokwu Meneke never authorized for the goods to be sold to the Applicant on credit basis. Attached as exhibit 1 is affidavit of the said Mr Ikokwu Meneke in this regard. I am not aware of the alleged relationship of the Applicant and her husband with Mr Ikokwu Meneke. It has nothing to do with supermarket business of Maris Supermarket Limited.

There never existed any custom of buying without paying between the Applicant or any staff of Maris Supermarket Limited. What I do for my personal friends is to give them my personal money to go and pay for what they picked and return my money to me personally. Maris Supermarket Limited does not keep any book for debtors because she does not sell on credit. On the 10th of June, 2022, as above the Applicant only instructed the cashier Maduabuchi to debit only N19,000.00 (Nineteen Thousand Naira) because of her sexual relationship with him as well as their agreement to steal from Maris Supermarket Limited while she still had more than N11,000.00 (Eleven Thousand Naira) credit balance in her account as shown in Exhibit ‘A’ attached to the affidavit in support of the Application. The cashier did not bring out any book nor noted that the Applicant was owing the balance of five thousand naira because such book does not exist. That Maris Supermarket Limited wrote the petition against the Applicant and some the staff of Maris Supermarket Limited to the 3rd Respondent for conspiracy and stealing. The 3rd Respondent on receipt of the said petition conducted independent investigation which shows or discloses a prima facia case against the Applicants and other suspects. The 3rd Respondent took the decision to invite the Applicant which she honoured. I am not aware of the alleged arrest and detention of the Applicant. I did not influence or instigate the 2nd to 4th Respondents in the alleged arrest and detention of the Applicant.

The 2nd to 4th Respondents also invited me when the Applicant honoured their invitation. It was there that I saw the Applicant. As the Applicant appealed to me for us to settle matter to avoid her being charged to court by the police and I pleaded with her to allow the Police to conclude the investigation before we start discussing settlement of the matter. Mr Ikokwu Meneke never kept any record with the Applicant with regard to the goods of the Maris Supermarket Limited she stole. The Applicant conspired with staffs of Maris Supermarket Limited including Maduabuchi to steal goods of Maris Supermarket Limited. I am not a Police Officer and cannot instruct the police officers on how to perform their duties. The Applicant’s husband came to my office with a Police Officer from the Imo State Police Headquarters, Owerri whom he introduced as his uncle and pleaded with me to tell the police that we want to settle out of police. I told them that I am the complainant that I am not the one to ask the Police for such. It was the Applicant’s husband who went to the Police for such request and the I.P.O turned it down. The Applicant has been stealing from the supermarket through fraudulent means in connivance with the cashier. The petition against her is captioned conspiracy and stealing. It is a crime to buy an item and pay a fraction of the value. The items which were picked by the Applicant had never been documented and those items she picked on the 10th of June, 2022 were not documented. Those items are still with the Police. The Applicant was not embarrassed humiliated nor treated like a common criminal.

The 1st Respondent’s counter affidavit is accompanied by written address wherein he raised issue for determination as:

  1. Whether the present application is competent.
  2. Whether the 3rd Respondent infringed on any of the fundamental rights of the Applicant?

It is submitted that the law is that in fundamental right action, the fundamental right must be the principal claim and not ancillary claim. Where the fundamental right is not the principal claim, the fundamental right action in this regard is incompetent. Relied on Emeka v. Okoroafor (2017) 11 NWLR pt 1577 pg 410 ratio 3

According to the counsel, in the instant case, paragraphs 4,5,6,7,8,9,10,11 and 12 of the affidavit in support of the action coupled with the main prayer of the Applicant in the present action which read:

A Declaration that the compulsory seizure by the 2nd Respondent of the following under-listed groceries purchased on the 10th of June, 2022 by the Applicant from Maris Supermarket Ikenegbu, Owerri and handing same back to the 1st Respondent without the consent and permission of the Applicant to own movable properties guaranteed under section 44 (1) of the Constitution of the Federal Republic of Nigeria 1999 As Amended. The groceries are;

  1. 5 sachets of Peak 456 (400g)
  2. 6 sachets of Milo (6 Roles)
  3. 1 sachet of ovaltine (1 Role)
  4. 1 sachets of full cream peak milk (1 Role)
  5. 1 Big pack of Golden Morn cereal
  6. Hollandia Y ourgort (1 Pack)
  7. Eva soap (1 peak by 4)
  8. Eva Soap (1 pack by 4)
  9. 1 Johnson Baby Soap (USA)
  10. Sunlight detergent (900b)
  11. 1 milk teeth toothpaste (for kid of 1-6 yrs)

An order of injunction mandating 1ST and 2nd Respondents to return forthwith to the Applicant the following items unlawfully seized from Applicant:

  1. 5 sachet of Peak 456 (400g)
  2. 6 sachets of Milo (6 Roles)
  3. 1 sachet of ovaltine (1 Role)
  4. 1 sachet of full cream peak milk (1 Role)
  5. 1 big pack of Golden Morn cereal
  6. Hollandia Milk (3 pack)
  7. Hollandia Youghort (1 pack)
  8. Eva soap (1 pack by 4)
  9. 1 Johnson Baby Soap (USA)
  10. 1Sunlight detergent (900b)
  11. 1 milk teeth toothpaste (for kid of 1-6 yrs)

clearly that the principal claim in this action is Tort of Dentine. Thus, the complainant of the Applicant is centered on the detention of the alleged goods or items she bought from the Maris Supermarket Limited while the alleged arrest and detention is ancillary claim. Following the decision of the apex court in the above case, the present action is incompetent. Hence, it is submitted that the present action is incompetent and the court is urged to so hold and resolve the issue 1 in favour of the 1st Respondent.

On issue 2 as rasied y the 1st Responent, he referred to Section 24 (e) of the 1999 Constitution (as amended) which he said provided: It shall be the duty of every citizen to render assistance to appropriate and lawful agencies in the maintenance of law and order.

According to the counsel, by the above provision, every citizen has the sacred duty to report to the appropriate and lawful agencies any reasonable suspicion of commission of crime. This duty is mandatory. The Court of Appeal in Maduka v Uba (2015) 11 NWLR, (Part 1470), 201(P 228, Paras G-H) on this issue held:

Every citizen has a right or even a duty to report to the Police anyone suspected of committing a crime.

It is submitted that in line with the above, the 1st Respondent reported the Applicant to the 2nd Respondent of his suspicion of the Applicant committing a crime-advanced fee fraud. The 2nd Respondent has the statutory duty to receive such information and how and whether they will investigate or not is entirely the decision of the 2nd and 3rd Respondents not the Applicant. The Court of Appeal in Fawehinmi v I.G.P (2000) 7 NWLR, (Part 665), 481, (Pt 519, Paras C-D) on the duty of the Police to investigate crime held as follows: Under section 4 of the Police Act, the Police has the duty to detect crime, implicit in that duty is the duty to investigate complainant on the commission of crimes”. He also referred to Ezenwaka v Okon (2017) 11 NWLR, (Part 1547),366,(PP;413- 414, Paras H-D)

According to the counsel, upon the receipt of such information, the 2nd – 4th Respondents have the duty to conduct preliminary investigation on the information to ascertain whether a prima facie case has been made out against the Applicant before inviting the suspect. This is so because the law is that, it is the duty of the police and not of the informant to decide whether or not to arrest and/or detain a suspect. Thus, if the Police after the preliminary investigation arrests and/or detains a suspect, any responsibility or liability resulting from such arrest and/or detention rests squarely on the Police and not the informant. Thus, in Sam Vs Commissioner of Police (2009) All FWLR, Part 450, P.760 at 762-763, the Court of Appeal clearly stated the law as follows: Acting on any information, the decision to arrest, detain and prosecute another on a complaint received from an informant is that of police, not that of the informant. If the prosecution is uncertain or unsure, they should never arrest, detain or prosecute an accused person.

He also relied on Fajemirokun Commercial Bank Nig Ltd (2009) LER, SC 336/2002,

It is submitted that such arrest and/or detention of the suspect is an executive action. Thus, the Court of Appeal in UTB (NIG) LTD V Ukpabia (2000) 8 N.W.L.R, Part 670, 570, held as follows:

If the Nigeria Police arrests and detains a suspect, such act is an exercise of the executive action as imbued by the Police Act. In contra­ distinction, if Nigeria Police dismisses one of its officers in line with the Police Act, such an act can be described as administrative action.

According to the counsel applying the above principles in the present case, the act of alleged arrest and detention of the Applicant was done by the 2nd – 4th Respondents after a thorough investigation of the complaint of the Maris Supermarket Ltd, which shows that the Applicant has a prima facia case to answer. It is indeed an executive action which the 2nd – 4th Respondents are in law bound to take full responsibility of any liability resulting from the said act.

Therefore, the 1st Respondent cannot in law take any iota of responsibility arising from executive action. Thus, both in law and morality, the 1st Respondent cannot be held liable over the alleged act of arrest and detention of the Applicant that allegedly infringed her fundamental rights. To hold otherwise, it will amount to making mockery of section 24 (e) of the 1999 Constitution as amended and this is not the intendment of our law-makers. Furthermore, it is noted that the alleged arrest and detention allegedly took place on the 10th day of June 2022 till 11th day of June 2022. From 10th day of June 2022 to the 11th day of June 2022 is one day. By section 35 5(a)(b) of the 1999 Constitution (as amended), the 2nd – 4th Respondents have the powers to arrest/detain the Applicants at least for one day or two days as the case may be. Therefore, it is submitted assuming without conceding that the Applicant was in fact arrested and detained as she alleged, in law that the Applicant’s fundamental right was not breached. The alleged arrest and detention of the Applicant is within the ambit of the law and cannot ground a cause of action.

There is an AFFIDA VIT OF FACTS deposed to by Ikoku Vincent Meneke, former manager of Maris Supermarket Ltd, Owerri, Imo State. He deposed: I know the Applicant who is my friend and I also know her husband Jeff Anyadike. On the 11th of April, 2022, I ceased to be the manager of Maris Supermarket to start my own business. In April, 2020 during the lock-down against Covid 19 pandemic, Mrs. Njideka Eze Anyadike called me with her phone and told me that there was no food in her house to feed her twins. That she was not sure that her family will survive this pandemic and begged me to help them for the sake of her 3 years old twins. I had compassion for the young family and asked her to come. She came and because there was lock-down and because the shop was closed, we let her into the supermarket through the back door and she picked the items they needed in the house. She took those items to the pay-point where the cashier one Mr. Kelechi Okafor calculated the value of the items to be N45,580.00 (Forty Five Thousand Five Hundred and Eighty Naira) only. She had no money at all. Before her I paid the cashier and instructed the cashier to collect, the money from her whenever she brings the money because she promised me that when she and her husband get the money that she would bring it to me in the Supermarket because the managing director does not allow credit sales. After that day I have not discussed anything about credit sale with her but she has been coming to buy from the shop regularly and shopping heavily without paying my money. It was in January, 2022 that I asked the present cashier Onyebuchi to remind her about my money. Then sometime in February, 2022 Onyebuchi gave me N10,000.00 (Ten Thousand Naira) which she gave to him and in December, 2021, the same Onyebuchi gave to me another N10,000.00 (Ten Thousand Naira) from her. The remaining balance ofN25,580.00 (Twenty Five Thousand Five Hundred and Eighty Naira) is still unpaid till now. Whatever she did with the cashier both Kelechi Okafor and Onyebuchi after that first day was not to my knowledge.

RESOLUTION OF MATTER:

This is an application for the enforcement of Fundamental rights. I have considered the affidavit evidence and written address of the counsel. The issue for determination is whether he Applicant has proved her case as to entitle her to the reliefs sought.

The law is well settled that for an Applicant to be entitled to a declaratory relief, the Applicant must clearly show that his rights have been are being or likely to be violated or infringed. It is the duty of an applicant in a fundamental right to lay before the court every fact necessary to enable the court make a finding of unlawful arrest and detention. In suits of this nature where parties cases are basically fought on the basis of affidavit evidence, it behooves the Applicant to furnish the Court with credible proof of acts of torture by the police or at the very least some form of corroborative proof of that allegation. See IGWEOKOLO V. AKPOYIBO & ORS (2017) LPELR-41882(CA) NIGERIA NAVY V GARRICK (2006) 4 NWLR (PT. 969) 69. The Court of Appeal in GOV. BORNO STATE V GARDANGARI (2016) 1 NWLR (PT. 1493) 395 C.A stated:

“By virtue of order 1 Rule 2 (3) (4) and order 2 Rule 1(4) and 2(1) (2) of the fundamental rights (enforcement procedure) rights, an application to enforce the fundamental rights of any person under the fundamental rights (enforcement procedure) Rules is to be provided or disapproved by affidavit and documentary exhibit where the circumstances dictates.

It is to be noted that fundamental rights enforcement can only avail a citizen who has not infracted the law and is not subject to any legal disabilities. Fundamental human right is only fundamental and not absolute. In ETHELBERT ONYEKWUO V. ATTORNEY GENERAL IMO STATE & ANOR (2018) LPELR-45479(CA) it s stated:

“It is instructive to state that a citizen’s right to liberty is not at large, it is curtailed and limited by the provisions of the same Constitution which provided and guaranteed the same fundamental rights. One of such limitations as specified by the Constitution is when the citizen is facing a criminal trial especially when the punishment for the offence he is charged with, carries the ultimate penalty, capital punishment or life imprisonment; and a Court of competent jurisdiction so ordered that he should be kept in prison custody pending the conclusion of his trial or to serve out his term of imprisonment (if found guilty); or pending when he would be executed. See Section 35 (1) (a) (b) and (c) of the Constitution.” Per OREDOLA, J.C.A. (Pp. 16-17, Paras. E-B)

Now, the Applicant alleged the breach of her right as provided in sections 34, 35, 37, 41 and 44 of the constitution. She alleged she was detained from 10th June 2022 me till the very next day being 11th of June, 2022 when she was released very much later in the day.

The 1st Respondent agreed that he made a report to the Police. The basis for the report to the police is that on that 10th day of June 2022, after the Applicant picked the items, she went to the pay-point and the cashier, one Maduabuchi Maduabum costed the items which total value was N24,000.00 (Twenty Four Thousand Naira) and she transferred only N19,000.00 (Nineteen Thousand Naira) to the company’s account defrauding the company of the balance of N5,000.00 (Five Thousand Naira) which has become the tradition for more than 3 years..

Every person in Nigeria who feels an offence has been committed has a right to report to the Nigerian Police force. In CHIEF (DR.) O. FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD. & ANOR (2009) LPELR-1231(SC), (2009) 2-3 SC (PT. I135) 588 S.C., (2009) 5 NWLR 588 S.C. it is stated:

“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.” Per OGEBE, J.S.C (Pp. 9-10, paras. F-G)

It is well settled, that mere report of a crime to the police which lead the police on their own initiative to arrest or investigate a suspect cannot place any criminal responsibility on the party. To place any criminal liability on the reporter it must be shown that it was done maliciously. Before a person who makes a report to the police, no matter the nature of the report, can be said to be liable for infraction of right arising out of the string of his report, it must be proved beyond reasonable doubt that his report was actuated by malice and that he had an actual intent to cause that particular harm which is produced or the doing of an act which is intended to cause such harm. There must be clear evidence that his report to the Police had no element of justification. In EBAK & ORS V. EBEY & ORS(2013) LPELR-21947(CA)

“The complaint which the 3rd Appellant made to the police was not conclusively shown to have been frivolous or to have been made without foundation or out of malice. I do not see how the 3rd Appellant can be indicted or faulted for his report to the police. See: Owomero vs. Flour Mills (Nig) Ltd (1995) 9 NWLR (PT 421) 622 at 629: Ezeadukwa vs. Maduka (1997) 8 NWLR (PT 518) 635 at 667. The law supports a person who brings a report or complaint before the police, so long as he leaves the police to use their discretion in taking further steps.”

Per OTISI ,J.C.A ( Pp. 21-22, paras. F-B )

Where the report is found to be without cause and the arrest unlawful, the period of detention becomes immaterial and of no moment. In GUSAU & ORS v. UMEZURIKE & ANOR (2012) LPELR-8000(CA) it is stated:

“It is, however correct to hold that detention, no matter how short, can lie a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful, in the first place; that is, if there is no legal foundation to base the arrest and/or detention of the applicant. See the case of Okonkwo v. Ogbogu (1996) 5 NWLR (pt 499) 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458; NEMI v. A.G LAGOS (1996) 6 NWLR (pt 452) held 2.”PER MBABA, J.C.A.(P. 36, Paras. C-E)

And in NNORUGA & ORS V. ENIOWO & ORS (2015) LPELR-24273(CA) it I stated:

“Any violation of a citizen’s guaranteed fundamental right however short a period must attract penalty under the law. See Alaboh v. Boyes (1984) 5 NCLR 830 and Jimoh v. A-G, Fed . (1998) 7 HRLR A 513 .

Where the arrest and detention of a person are unlawful and unconstitutional any subsequent arraignment of that person before a Court of law cannot and would not cure the illegality or unconstitutionality. See Abiola v. Abacha (1998) 7 HRLRA 458.

I have juxtaposed the allegation of the 1st Respondent that the Applicant picked goods worth 24,000 and only transferred the sum of 19,000 with the averment of the Applicant that after selecting the items from the shelves, she took the items to the cashier’s desk for assessment and payment. The cashier checked all the items she selected for purchase and the total price was about Twenty-Four Thousand Naira. She then gave the cashier her Zenith Bank Automated Teller Machine (ATM) Card and instructed him to debit only the sum of Nineteen Thousand Naira (N19,000.00) while the balance of Five Thousand Naira should be recorded for her to be settled when next she comes shopping. She told 1st Respondent that there is a record being kept to that effect that in any case, that any outstanding debt she has with the supermarket is done with the knowledge and approval of the manager, Ikeokwu Meneke and that she does defray the debt subsequently”.

The Applicant also said: “I have been shopping at Maris Super Market for almost five years now and have never stolen any items from the super market, rather whenever I shop at the super market and the value of the items I purchased is in excess of the money I had in my account for payment, I would meet the manager who would instruct that the excess be recorded in the book kept for that purpose to be settled later during my next shopping. The manager of Maris Super Market Mr. Ikeokwu Meneke who is the biological son of the 1st Respondent is a personal friend to me and my husband and was the one who gave the approval that such excess sum be recorded and they have been recording it and I have been settling them subsequently without hitches”.

She also said: “This custom has existed between me and Maris Super Market for over some years now. Maris Super Market has a notebook where they keep records of outstanding debt of customers including me”

The party, who asserts a claim, must prove it. The party that cites specific facts for the substantiation of its claim also has the burden of producing the evidence to prove these facts. See AGBOOLA V. U.B.A. PLC (2011) 11 NWLR (PT. 1258) 375, 402, SHERIFF & ANOR V. PDP & ORS (2017) LPELR-41805(CA). And I am of the view that if the arrangement alluded to by the Applicant exists; the Applicant is expected to keep her own copy of the record for easy and smooth reconciliation whenever the need arises. The Applicant did not exhibit any document of past transaction where such arrangement was followed.

Again, the person the Applicant alleged is in the know or gave the approval of the arrangement denied it in an affidavit. Also the Note Book allegedly kept by Maris Stores was not produced. In CHIEF (DR.) O. FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD. & ANOR (2009) LPELR-1231(SC), (2009) 2-3 SC (PT. I135) 588 S.C., (2009) 5 NWLR 588 S.C. it is stated:

“It was the duty of the appellant who alleged in his supporting affidavit that he was reported to the Federal Investigations and Intelligent Bureau, Alagbon Ikoyi for theft to prove it especially as he said that he saw the report in the Police entry book. He failed to produce an extract of the police entry book. He also failed to produce an affidavit from the Police to show the reason for his arrest.” Per OGEBE J.S.C (P. 8, paras. D-F) –

“It is not the duty of the Police to tender the extract of the record book where appellant saw the complaint of theft written against his name. It is the duty of the appellant to tender such extract in evidence. Throughout the affidavit evidence, that was never exhibited. I believe this burden will not shift from the appellant to the respondent who flatly denied the allegation, except where the appellant had led evidence which reasonably satisfied the trial court that those sets of facts sought to be proved were actually proved. This, the appellant failed to do and the failure deprived him of the right to shift the burden on the respondents… This first issue lacks substance and it fails.” Per MUHHAMED J.S.C (P. 28, paras. A-E)

In the absence of proof of the existence of the custom or practice of buying and paying later as well a production of the note book, I will say that the report to the police was without malice.

On the alleged seized items, it is agreed by both parties that the total cost of the items was N24, 000.00 and the Applicant paid N19, 000.00. I had earlier stated that there is nothing to show that there exist custom or business relationship where the Applicant buys and pays later. The order to return the goods is not tenable without sorting out the goods worth the 19,000.00 that was paid.

On the search of the home and business premises of the Applicant, indisputably, by virtue of the provision of section 37 of the 1999 constitution, the privacy of every Nigerian Citizen, the home, correspondence, telephonic and other telegraphic communications are cherishingly guaranteed and protected. However, notwithstanding the provision of section 37, section 45(1) of the 1999 constitution has provided in unequivocal terms that nothing in sections 37, 38, 39, 40 and 41 thereof shall invalidate what appears to be reasonably justifiable in a democratic society – (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons

Furthermore, no moveable property or interest in such property may be compulsorily acquired or taken possession in any part of Nigeria except as provided under Section 44 of the constitution, particularly subsection (k) for the purpose of any examination, investigation or enquiry. See BONIFACE EZEADUKWA V. PETER MADUKA & ANOR.(1997) LPELR-8062(CA), (1997) 8 NWLR (PT.518)635. I agree with the view that Police may search a house without a warrant in some exceptional occasions when evidence is about or likely to be destroyed, concealed, degraded and or in danger of being destroyed. Police can forcibly enter a house if it is probable that evidence is been destroyed, if a fleeing suspect escapes or hide in another person’s house or has taken shelter in a house or when a gunshot sound is heard or where someone is being injured.

In the instance case the police is not represented and no processes was filed on her behalf to explain or justify the search conducted at the Applicant’s residence and business premises

The Applicant said: “He then instructed the 2nd Respondent who came with another male officer all of whom were in mufti to arrest me. The 2nd officer brought out a handcuff and I was immediately arrested by the 2nd Respondent and her team” Again the Police is not here to refute this allegation. Unless the Applicant resisted arrest there will be no need to use a handcuff.

Again, the Police is not expected to be involved in money recovery.

In as much as the court cannot stop Police investigation, the investigation must be transparent. Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they consider their duty should strictly observe the terms and rule of law. See SUNDAY JIMOH VS. ATTN-GEN. OF THE FED. & 2 ORS (1998) HRLRA 513 AT 515. They are enjoined to conduct their investigations in line with the principles of the rule of law and they must act judiciously and judicially. See  IGBO & ORS V. DURUEKE & ORS (2014) LPELR-22816(CA) Per EKPE, J.C.A (Pp. 19-20, paras. D-A). If the police are exposed to have stepped out of line in the discharge of their duties, then an action for the enforcement of fundamental rights can be sustained against them

On the demand for compensation and apology, the Applicant focused on 1st Respondent. Unless there is a clear evidence of the 1st Respondent propelling or directing the activities of the Police in regards, he may not be hold responsible for the steps taken by the Police in their exercise of their Constitutional duties. I have found ab initio that the report made t the police is not without basis. In SALIHU v. GANA & ORS (2014) LPELR-23069(CA) it is stated:

“It has been held that the Fundamental Rights provisions cannot be used, and should not be used, by a person to shield himself from criminal investigation and prosecution – Attorney General, Anambra State Vs Uba (2005) 15 NWLR (Pt.947) 44.” Per ABIRU, J.C.A. (P. 34, paras. A-B)

From what I have said so far I am of the view that thus application is successful only to the extent that it is:

  1. Declared that the searches conducted at the business premises of the Applicant located at 27 Umez-Eronini Street Ikenegbu and a further search of the living home of the Applicant located at No. 16 Enoc Street Umudagu Works Layout, Owerri all on the 10th of June, 2022 by the 2nd Respondents without any search warrant first had and obtained is a flagrant violation of the right to privacy of Applicant’s home guaranteed under section 37 of the Constitution of the Federal Republic of Nigeria 1999 As Amended.
  2. Declared that the continuous and continuing invitation of the Applicant and the threat to re-arrest and re-detain the Applicant and or charge him to court if she fails to pay the sum of One Million, Three Hundred Thousand Naira (N1,300,000.00) to the Applicant is unlawful, unconstitutional and constitutes a flagrant breach of the Applicant’s fundamental right.
  3. I award a cost of N200,000 against the 2nd – 4th Respondents in favour of the Applicant

I so hold

I.M.Njaka

Judge

15-2-2023

Appearance: ET Okolie Esq. for the Applicant

CK Okorie SAN with  A.E OKorie (Miss) For the 1st Respondent

Previous post SUIT NO: HOW /792/2021 – 1.MR IKECHUKWU U. KAMKPAS NWANUFORO 2.MR CHIDOZIE A. KAMKPAS NWANUFORO 3.MR ONYINYECHUKWU O. KAMKPAS NWANUFORO 4.MR NNAMDI C. KAMKPAS NWANUFORO 5. MISS NNENNA IHUOMA KAMKPAS NWANUFORO VS. 1. SENIOR MAGISTARTE GD 1 (COURT 6, OWERRI) HIS WORSHIP, O. J. UZOECHI ESQ. 2.CHUKWUDI HILLARY ANOKAM – BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT.M. NJAKA -delivered ON THE 7TH DAY OF MARCH, 2023
Next post SUIT NO: HOW/951/2022 – DR CHIBUZOR NWANGUMA VS. 1. INSPECTOR GENERAL OF POLICE 2. THE AlG ZONE 9 UMUAHIA 3. OIC CRACK SQUAD, ZONE 9 UMUAHIA 4. DCP EDEM ITA SELONG, ZONE 9 UMUAHIA 5. COMMISSIONER OF POLICE ABIA STATE 6. MRS. J. N. ELEAZU 7. MR. OBINNA ELEAZU 8. DR. CHINEDUM ELEAZU (For himself and other members of Eleazu Family) – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA -delivered ON THURSDAY, THE 9TH DAY OF FEBRUARY 2023 – the need for a fair investigation, adherence to the law, and protection of individual rights during the investigative process- importance of freedom of conscience and religion and the need to respect individuals’ beliefs and customs- in cases involving the alleged violation of fundamental rights, the burden of proof lies with the applicant. The applicant must provide concrete, cogent, and credible evidence to support their allegations of an imminent breach of their rights- Mere allegations or depositions in an affidavit are not sufficient to convince the court that there is a likelihood of an infringement of fundamental rights- The court cannot restrain the performance of a constitutional duty by the police, such as conducting an investigation. However, police investigations must be transparent and conducted in accordance with the principles of the rule of law. If the police are found to have acted outside the bounds of the law, an action for the enforcement of fundamental rights can be sustained against them- The court’s role in fundamental rights enforcement suits is to determine from the affidavits and documentary evidence whether the applicant’s rights have been breached, are being breached, or are likely to be breached. If the court cannot discern a breach or imminent breach of the applicant’s rights, it has a duty to dismiss the action or make appropriate orders as justice requires.
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