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.

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

ON THURSDAY, THE 9^TH DAY OF FEBRUARY 2023

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

SUIT NO: HOW/951/2022

IN THE MATTER OF THE APPLICATION BY DR. CHIBUZOR NWANGUMA FOR AN ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS

AND

IN THE MATTER OF FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009, PURSUANT TO SECTION 46 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, (AS AMENDED).

BETWEEN

DR CHIBUZOR NWANGUMA                       APPLICANT

AND

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            RESPONDENTS
6. MRS. J. N. ELEAZU
7. MR. OBINNA ELEAZU
8. DR. CHINEDUM ELEAZU

    (For himself and other members

     of Eleazu Family)

JUDGMENT

By Motion on Notice dated 23^rd day of August 2022 and filed same day, said to be brought Pursuant To Sections 33, 34, 35, 36, 37, 38 and 41 of the Constitution, Order 2 Of The Fundamental Rights (Enforcement Procedure) Rules, 2009 and Inherent Jurisdiction of the Court, the Applicant prays as follows:

1. A DECLARATION that acts of the Respondents in attempting to arrest, detain and humiliate the Applicant at the instance of the 6^th to 8^th Respondents in connection with the death Mrs. Eberechi Ijeoma Nwanguma, the wife of the Applicant, who died in March 2022 on account of cardiovascular issues is unlawful and illegal.
2. A DECLARATION that the persistent invitations by the officers of the Nigerian Police i.e. the 1^st to 5^th Respondents herein at the instance of the 6^th to 8^th Respondents and threats to arrest and detain the Applicant in disregard or the autopsy report from the hospital is an abuse of office by the 1^st to 5^th Respondents and a violation of the Applicant’s right to family life, liberty and freedom of movement.
3. A DECLARATION that the persistent invitation by the officers of the Nigerian Police Zone 9 Umuahia in a matter that happened within Ogun State and Lagos State wherein they lack jurisdiction is unconstitutional and breach of the Fundamental Human Rights of the Applicant.
4. AN ORDER restraining the Respondents whether by themselves, their agents, privies, servants or otherwise from arresting, detaining, inviting, harassing, humiliating, interrogating, intimidating and/ or molesting the Applicant or in any other manner contravene the Applicant’s Fundamental Human Rights unless with an order of this Honourable Court in respect of this matter.
5. AN ORDER restraining the Respondents particularly the 6^th to 8^th Respondents from compelling the Applicant to remarry a dead person, which act is repugnant to natural justice and equity and good conscience.
6. AN ORDER that the Applicant be allowed by the Respondents particularly the 6^th to 8^th Respondents to bury his wife in the Applicant’s home town or any cemetery designated by the Applicant and his family.
7. And for such further orders as this honorable court may deem fit to make in the circumstances.

The grounds upon which the reliefs are predicated are stated as:

1. The Honourable Court has the powers to grant this application.
2. The Applicant, on the instigation of the 6^th to 8^th Respondents and the Eleazu Family, has been under severe threats by the 1st to 5th Respondents of arrest and detention in respect of the death of the Applicant’s wife who died through natural causes and which information was made available to the Respondents who have instead resorted to seeking the arrest and detention of the applicant in violation of the Applicant’s right to human dignity, freedom of movement and privacy.
3. The Applicant has been denied the right and privacy to mourn his wife, Mrs. Nwanguma Eberechi Ijeoma, who died of natural causes and has been hounded by the Respondents who have besieged his house and his family residence with the intention of arresting the Applicant in contravention of the Applicant’s right to human dignity, family life and privacy.
4. In further denial of the Applicant’s rights, the 6^th to 8^th Respondents and the entire Eleazu Family have demanded the Applicant go through a marriage ceremony with the corpse of his late wife, Mrs. Nwanguma Eberechi Ijeoma and other barbaric customs of the Applicant’s late family and has refused the Applicant to bury his late wife with the full cooperation of the 1st to 5th Respondents.
5. That the actions of the Respondents is a violation of the Applicant’s rights as protected under sections 33, 34, 35, 37, 38, and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

Affidavit in support of the application is deposed to by Dr. Chibuzor Nwanguma the Applicant in this case. He deposed:

I am a Pastor in the Mountain of Fire and Miracles Church and currently a lecturer in Theology at the Mountain Top University, Ogun State. I married my late wife, Mrs. Eberechukwu Ijeoma in October 2021 under the Marriage Act after fulfilling the traditional rites of marriage and our marriage certificate is attached herewith as EXHIBIT A. My late wife hails from Umuahia in Abia State but both of us are resident in Arepo in Ogun State. The 6^th to 8^th Respondents herein are relatives of my late wife and are Resident in Abia State.

On the 30^th of March 2022 in the late hours of the night, my late wife began having issues with her breathing immediately after her bath; in the course of choking, she slumped and was rushed to Beachland Specialist Hospital in Arepo where she was pronounced dead by the medical team who attended to her that night. I know for a fact that prior to that night the late wife slumped, she had been hypertensive and we have managed the situation over time. The Doctor who attended to my late wife at the Beachland Specialist Hospital issued a medical certificate stating that though the secondary cause of death was cardiovascular arrest, it also recommended that an autopsy be carried out to know the primary causes of death. Attached herewith as EXHIBIT B is the medical certificate issued by the said hospital.

Prior to the above I was not aware that my late wife had cardiovascular issues as our marriage is still under one year. Thereafter I informed the 4^th to 6^th Respondents of my wife’s death and the recommendation by the doctor for an autopsy; the 6^th – 8^th Respondents thereafter requested that her body be taken to the Lagos State Teaching Hospital for autopsy.

The autopsy was carried out at the Lagos University Teaching Hospital (LUTH) dated 18^th May 2022 on the body of my late wife. The autopsy report from LUTH confirmed the cause of death as stated in the Medical certificate from the Beachland Specialist Hospital that my late wife died from Hypertensive cardiovascular disease. Attached Herewith as EXHIBIT C is the autopsy report from the Lagos University Teaching Hospital. While I was going through seeking the cause of my late wife’s death, the 6^th to 8^th Respondents with other members of my late wife’s family came to my residence in Ogun State and carted away with  my properties under the excuse that same belong to my late wife. When I demanded the return of my property from the 6^th to 8^th Respondents, they instead demanded that I will undergo a marriage ceremony with my dead wife (as was their custom) in spite of the fact that I had concluded all marriage rites under both customary law and the Marriage Act with my late wife and they demanded that I pay N50, 000 for this.

In order to allow peace reign and ensure that I bury my wife in accordance with Christian rites, I was forced to pay the said sum of N50,000 to the 6^th to 8^th Respondents with the belief that I will be allowed to bury my late wife but to my consternation, the 6^th to 8^th Respondents further demanded that I pay another sum of N2, 000, 000. 00 (Two million naira) for the said marriage rites to my late wife before I can be allowed to bury her. When I vehemently opposed the extortion by the 6^th to 8^th Respondents on the grounds that as a Christian along with my wife, I will not be a part of such a practice of remarrying my wife’s corpse or the rites that go along with it. I also informed the 6^th to 8^th Respondents that I had also expended huge sums of money in attending to my late wife’s medical bills and other incidental matters after her untimely death. Attached and Marked EXHIBIT D are receipts for the storage fees, embalmment, autopsy and other services.

When I resisted the attempts by the 6^th to 8^th Respondents to pay the additional N2m they reported me to the police in Abia state, 1^st to 5^th Respondents, who started to invite me to their station in Umuahia, Abia State accusing me of murdering my late wife. Attached herewith as EXHIBIT E and E1 are the invitation letters from the 1^st to 5^th Respondents.

I forwarded copies of the autopsy report and the medical certificates from the Beachland Specialist Hospital and LUTH to the police officers in Umuahia to bring to their attention that my late wife died of natural causes, that there was no foul play and that the petition by the 6^th to 8^th Respondents were done in bad faith. Believing that the police would intervene and advise the 6^th to 8^th Respondents to allow me bury my late wife according to her Christian faith, I was shocked when I received several calls from the police officers demanding that I either accede to the demands of my in-law, the 6^th to 8^th Respondents, or I will be arrested and detained until I paid in full the sum demanded by the 6^th to 8^th  Respondents. Though my late wife resided and died in Ogun state, I have not been charged or invited by the police in Ogun or Lagos state in respect of this issue but by the police in Abia state on the instigation of the 6^th to 8^th Respondents. I have even invited the 1^st to 5^th Respondents from Abia State to investigate the cause of death independently and given them the information of the doctors who attended to my late wife upon her death; informing the police that her body was still at the morgue for their independent autopsy if they so require but all my entreaties to the 1^st to 5^th Respondents proved abortive.

I have since been shuttling from one residence to the other of my friends and colleagues to avoid being arrested by the police who have visited my residence and even gone to my family house in Mbaise to harass my family members to produce me. When the threats and persistence attempts to seek me out to arrest became pervasive that it led to having to be absent from my place of employment, I instructed my solicitors, the law firm of C. J. Jiakponna & Co., to write a letter to the Inspector General of Police about the activities of the Respondents on this matter. Notwithstanding the letter from my solicitors the Respondents have continued in threatening and harassing me through phone calls. I verily believe that the 1^st to 5^th Respondents will not act fairly in this situation as they have instructed that I abide by the unlawful and unconscionable demands of the 6^th to 8^th Respondents in spite of my financial straits and right not to be forced to abide by a custom alien to my beliefs.

The corpse of my late wife is still in the mortuary since March 2022, mounting up expenses in fees since the Respondents have refused me bury her and for fear of arrest if I decide to go ahead to bury her inspite of the 6^th to 8^th Respondents. I have been further informed by my lawyer, Chijioke Joseph Jiakponna. Esq., and I verily believe same to be true that the aforesaid acts of the Respondents are illegal and repugnant to natural justice. It will be in the interest of justice to allow me bury my late wife according the Christian rites that she was fully practicing in before her untimely death. This court has unfettered jurisdiction to grant this application.

The counsel filed written address and formulated issue for determination as:

WHETHER THE APPLICANT IS ENTITLED TO THE RELIEFS SOUGHT.

It is submitted that by virtue’ of Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an Applicant who alleges that his fundamental right 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. It is trite law that a party is at liberty to approach the court for redress in any manner which depicts a violation of a right. Section 35 (1) provide circumstances that would warrant the derogation of the main provision in subsection 1. The circumstance’s as enumerated under section 35, shows the conditions under which an individual may be deprived of his liberty. None of these circumstances has arisen yet the respondents have been intimidating the Applicant and caused him to be apprehensive of his safety.

The liberty of the Applicant had already been infringed upon by the constant harassment of the Applicant by the respondents and the excessive demands of the 4^th to 6^th Respondents. Most significant is that they have not allowed him to bury his late wife who passed on over 5 months ago. The Applicant has not been allowed to bury his wife. The Police in Ogun and Lagos State where the Applicant resides have not filed any criminal charge against the Applicant. It is the Police in Abia State that are threatening the Applicant and wants to arrest him at the instance of the 4^th to 6^th Respondents. The right of a person to human dignity, liberty, fair hearing, freedom of thought, conscience and religion, and private and family life is so fundamental to our concept of justice that it can never be waived nor taken away by statute, whether expressly or by implication. These are constitutional rights which must be observed not only in judicial proceedings in court but in any proceedings, whether administrative or quasi-judicial, involving the determination of the rights and obligations of a citizen.

The twin pillars of natural justice, audi alteram partem and nemo judex in causa sua was grossly abused by the Respondents when they assumed the role of the judge, jury and executioner. It is, not the place of the police to demand a party to do an act which is to his detriment and to the favour of the other, the police is expected to be an impartial entity. The court is urged this court to hold that their action is unconstitutional. It is obvious from the foregoing that the subject matter of the 4^th to 6^th Respondent’s case against the Applicant is that the 4^th to 6^th Respondent is using the office of the 1^st to 3^rd Respondents to intimidate the Applicant in order to collect the N2m being demanded by the 4^th to 6^th Respondents. In MINISTER OF INTERNAL AFFAIRS V. SHINGABA ABDULRAHMAN DARMAN (1982) 3 NCLR 915, the Court of Appeal slated thus- “It is undoubtedly relevant to bear in mind that the provision was designed to protect the individual against the coercive and oppressive exercise of governmental authority. Also see ADERINTO V. OMOLAJA 1 FHCLR 101.

Similarly where a private citizen like the 4^th to 6^th Respondents uses the machinery of government to violate the rights of another citizen, the provisions of chapter IV of the -1999 constitution can be invoked against the said individual. In SOJI OMOTUNDE V. DIRECTORATE OF MILITARY INTELUGENCE 1 NP1LR 273, the court held that the entrenchment of fundamental rights in the constitution was to prevent dictatorship and enable citizens to assert their rights against arbitrary oppression as well as illegal executive actions. Similarly, in KELVIN PETERSIDE V. INTERNATIONAL MERCHANT BANK L T D (1993) 2 NWLR pt 728, per Niki Tobi stated that the provisions of Chapter IV can also be enforced against private individuals.

In the instant case, the liberty of the Applicant is under threat and the Respondents have been violating the privacy of the Applicant by constant visits and surveillance on his office. All these are being done to extort money from the Applicant before he can be allowed to bury his wife.

Section 38 of the 1999 Constitution (as amended) provides: (1) Every person shall be entitled to freedom of thought, conscience, and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or private) to manifest and propagate his religion or belief in worship, teaching, practice, and observation. The language of section 38 brings out the fact that religion is an attribute of a human being as an individual and. not as a citizen. in MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. OKONKWO (2001) 10 WRN 1 SC AT 41., Ayoola JSC stated: ‘’The right to freedom of thought, conscience and religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not be coerced into acting contrary to one’s religious belief. The limits of these freedoms, as in all cases, are when they impinge on the rights of others or where they put the welfare of the society or public health in jeopardy. Freedom of thought and conscience protects an individual from every coercion or restriction in holding a thought. It could be religious, atheistic or merely philosophical.

The Applicant herein is entitled to his freedom to adhere to his religious beliefs and not to be coerced to accept or adopt the customs or beliefs imposed on him. The Constitution is very dear in respect of circumstances where the freedom as guaranteed under section 38 can be derogated. It is submitted that there is no feature in this case that would permit the Respondents to derogate from the Right guaranteed the Applicant in section 38 of the Constitution.

The Applicant’s counsel filed reply on points of law in response to 1^st– 5^th respondents’ written address. The counsel conceded that it is the duty of the 1^st – 5^th Respondents to investigate any allegation of crime reported to then but this is not an absolute blanket for the subsequent actions carried out by the 1^st – 5^th Respondents in this circumstance.

A thorough examination of the counter affidavit filed by the 1^st – 5^th Respondents would reveal that the 1^st – 5^th Respondents who did not deny or controvert the facts deposed by the Applicant in respect of the death of his late wife, but also were aware of the true intentions of the 6^th – 8^th Respondents to extort money from the Applicant and compel him to abide by their traditions and customs before burying the wife.  Counsel referred paragraphs 6 and 11(a) of the 1^st – 5^th Respondents Counter Affidavit The paragraphs above as facts which in essence admits the facts stated by the Applicant – The 1^st – 5^th Respondents have admitted that the investigation and interrogation into an alleged murder case (a capital offence against the state which the Police can only discontinue when there is no prima facie evidence). Secondly, the 1^st – 5^th Respondents admitted that the Applicant is yet to bury his wife who died since the 30^th of March, 2022 until he observes the tradition, custom, religious and morals which is not repugnant to natural laws, good conscience and equity permits.

In sections 20 and 21(1) of the Evidence Act, 2011 (As amended), admission was defined as … a  statement, oral  or documentary or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of  the persons, and in the circumstances, mentioned in this Act.  (21)(1)- Statements made by a party to the proceeding or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.”

It is submitted that the deponent who deposed to the counter affidavit on behalf of the 1^st to 5^th Respondents, is not only a party to the proceedings but an agent of the 1^st to 5^th Respondents who are also parties in this suit. The admissions made by the Deponent in the above cited paragraphs of the counter affidavit binds the police respondents in this suit and the court is urged to so hold.

It is also submitted that there is nothing in the 1^st to 5^th Respondents counter affidavit showing reasonable suspicion, a term which must be based on a particularized and objective, not subjective basis, premised on specific and articulated facts. Referred to Agundi v. C. O. P. (2013) AFWLR (Pt. 660) 1247.

The 1^st to 5^th Respondents alleged that a petition was made against the Applicant and his daughter for the murder of the Applicant’s wife by poison, yet there was no evidence from the 6^th to 8^th Respondent to show that there was a contrary autopsy report showing that the late Mrs. Eberechukwu Ijeoma Nwanguma died by poisoning or through questionable means; no evidence whatsoever that the autopsy reports showing that the Applicant’s wife died by any other means other than by those stated in the reports attached by the Applicant and which are to the knowledge of the 1^st to 5^th Respondents. The 1^st – 5^th Respondents did not demand further particulars from the 6^th to 8^th Respondents as regards their suspicion that the Applicant’s wife died through an act or omission of the Applicant and his daughter; there was no independent investigation into the claims by the Applicant that the late wife died of natural causes; the police respondents also, failed to show that they demanded for a coroner’s inquest or an independent autopsy into the cause of the death, particularly as the Applicant’s wife was yet to be buried and was available for further inquest.

The court is urged to examine the relevant pieces of documentary Exhibits with a view to using it as required of a Court of law and encouraged by law, to assess the veracity of the Affidavit and Counter – Affidavit evidence led by the parties to determine which of the cases as presented by each of the parties represents the truth of the facts and circumstances of this case and to decide whether or not the 1^st to 5^th Respondents breached the Applicant’s fundamental rights as stated by the Applicant. Referred to Equitorial Trust Bank Ltd V. Agada (2016) LPELR – 40792 (CA); See also Kindey V. Military Governor of Gongola State (1988) 2NWLR (Pt. 77) 445; Owena Bank PIc. V. Olatunji (2002) 12 NWLR (Pt 781) 559; Sky Bank PIc. V. Akinpelu (2010) 42 NSCOR 540.

According to the counsel, it was held in plethora of judicial decisions that once there is a threatened breach of the fundamental right of the citizen, a cause of action arises under the Fundamental Rights Enforcement procedure Rules and the citizen need not tarry or wait until the actual breach before seeking for redress. See Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (pt 865) 208, Olutola v. University of Ilorin (2004) 18 NWLR (pt 905) 416, Zakari v. I.G.P (2000) 8 NWLR (pt 670) 666 and Mbadike & Ors. v. Lagos Int’l Trade Fair Complex Management Board & 01’s. (7017) LPELR – 41968.

It is submitted that the actions of the 1^st to 5^th Respondents was enough to cause a serious apprehension in the Applicant, and it would have been detrimental to him if he had allowed the police to get their hands on him seeing that they were already prejudiced in favour of the 6^th to 8^th Respondents. The court is urged to hold that the actions of the 1^st to 5^th Respondents was in breach of their duties and against the rights of the Applicant.

Applicant also filed Further and Better Affidavit in response to 6^th – 8^th Respondents Counter deposed by Dr. Chibuzor Nwanguma the Applicant. He deposed: I have perused the counter affidavit filed by the 6^th to 8^th Respondents. Paragraph 3 is true to the extent that I am a pastor in the Mountain of Fire and Miracles, that I indeed married my late wife in Dominion City Church with the 7^th Respondent as a witness to the solemnization of the marriage. Marriage certificate is attached as Exhibit CJ1. I deny paragraph 4 of the 6^th to 8^th Respondents’ counter affidavit as totally false; the 7^th Respondent was a witness to the marriage ceremony as I married my late wife as a bachelor. The 7^th Respondent to put to the strictest proof of his averment. I performed the traditional marriage rites with my late wife. Attached as Exhibit CJ2 are pictures of our traditional wedding and the video coverage with the family of my late wife in attendance. I met and married my wife in Umuahia, Abia state with the knowledge and full consent of the 6th to 8th Respondents and other family members of my late wife.

I deny paragraph 7 of the 7^th Respondent’s counter affidavit as the alleged calls were only made when I refused to accede to their demands to pay the N2, 000, 000. 00 (Two million naira) for the burial of my late wife and also to submit myself to their traditions and customs by re-marrying my wife and going through another marriage rites with my late wife. My late wife was indeed rushed to the Beachland Hospital where she died in Ogun state. The 7^th Respondent is put to the strictest proof of his averments in the said paragraph. I deny paragraphs 9 and 10 of the 7^th Respondent’s counter affidavit as fabricated as the 7^th Respondent or any of his family ever visited the hospital or Ogun state except to come to my residence and cart away furniture. The 7^th Respondent is put to the strictest proof.

I state categorically that upon the pronouncement by the doctors that my wife had passed, I informed the 6^th – 8^th Respondents and the immediate family of her passing. It was on the recommendation of the 6^th to 8^th Respondents and other family members that the autopsy was conducted at the Lagos state Teaching Hospital (LUTH). Sequel to the above, 1 have not refused any of the Respondents or any of the relatives to my late wife to carry out an autopsy on my late wife, contrary to the assertion of the 7^th Respondent. Paragraph 12 of the 7^th Respondent’s counter affidavit is entirely false and fabricated. At no time did I undertake or promise to handover any household items, neither was any money sent to me by the 6^th to 8^th Respondents. My household goods were carted away from my home in Ogun state under the guise that they belonged to my late wife. The alleged receipt attached was not signed by me and is unknown to me. I vehemently deny paragraph 13 of the 7^th Respondent’s counter affidavit as nothing but the overactive imagination of the 6^th – 8^th Respondents; my late wife was well aware of my daughter prior to our marriage; the allegations by the said Martins to the 6^th – 8^th Respondents are put to the strictest proof. Paragraph 14 of the 7^th Respondent’s counter affidavit is denied as the Respondents had all the necessary documentations to carry out their own independent inquiry; the 6^th – 8^th Respondents also failed and refused to make available the autopsy reports and the medical certificate to the police, even if it was disprove the contents of the autopsy report and medical certificate. I deny Paragraph 15 of the 7^th Respondent’s counter affidavit and put the 7th Respondent to the strictest proof. Paragraph 16 is true to the extent that I hail from Imo state but do not reside in Mbaise, Imo state. The 7^th Respondent is put to the strictest proof of the other averments. In response to paragraph 17 of the 7^th Respondent’s counter affidavit, I made my request for an independent autopsy by the police known and it is not within my power or knowledge why the 1^st – 5^th Respondents have refused to so do as they have statutory power to so do even without my invitation. I deny paragraph 18 of the 7^th Respondent’s counter affidavit; I work and reside at Arepo, Ogun state, and I have not avoided investigation as 1 have stated to the police that all the event that took place occurred in Ogun state, all the documents sent were made by doctors in Ogun State and Lagos State; that due to the fact that the calls by the police threatening to arrest and detain me unless I give to the demands of the 6^th to 8^th Respondents I was fearful that 1 would not be accorded a fair hearing. I deny paragraphs 19 and 20 of the 7^th Respondent’s counter affidavit as the 6^th to 8^th Respondents have concluded already on my alleged guilt, made life very depressive for me with their unfounded allegation based only on the suspicion of another; I have not been treated fairly by the Respondents since the unfortunate death of my wife: the 6^th to 8^th Respondents, though Christian by religion, have made it very obvious that they still abode by their traditions and customs. In response to paragraph 21 of the 7^th Respondent’s counter affidavit, the proper things as stated in the said paragraph is for me to submit to their objectionable rites before I can bury my late wife; the 6th to 8th Respondents have indeed refused me going ahead to bury my late wife according to our Christian values and principles shared with my wife while she was alive and would only be allowed once I accept to abide their demand. Paragraph 22 of the 7^th Respondent’s counter affidavit is untrue the police are free agents to conduct their investigations from any angle yet they have taken to carry out a manhunt for me while threatening me to given in to the demands of the 6^th to 8^th Respondents. Paragraph 23 is misconceived as the allegations by the 6th to 8th Respondents are baseless as same are founded on the statement of another person. There is no reasonable ground upon which the 6th to 8th Respondent reached the conclusion that I had anything to do with my wife’s death along with my daughter. The 6^th to 8^th Respondents allegations were done only to instigate the police against me when I refused to accede to their extortion of money and submit to the barbaric customs they seek to impose on me.

It is accompanied by reply on points of law in response to 6^th to 8^th Respondents’ written address.

The Applicant is not expected to wait until his is arrested and detained before his rights have been said be breached. Such a position would be contrary to the spirit of the Constitution of the Federal Republic of Nigeria. See Sections 35(1), 35 (6), 46 of the 1999 Constitution. The court has a constitutional duty to protect citizens whose fundamental rights have been infringed or likely to be infringed.

On issue 2 raised by the 6^th to 8^th Respondents, their counter affidavit is bereft of any reasonable grounds for their belief that there was a case to answer by the Applicant in respect of the death of the Applicant’s wife. Paragraph 13 of the 6^th to 8^th Respondents’ counter affidavit is instructive as we reproduce same hereunder- ” ….. we reported to the police the case of conspiracy and murder of Dr. Eberechi Ijeomn Nwanguma, when Martins (aged 17 years) who lived with the deceased returned and informed us that the Applicant has a grown daughter (Amaka) it was Martins who then informed us that Amaka conspired with the Applicant to kill the deceased by poisoning her food. Martins also informed us that the deceased dies in the house hours before her body was taken to Palm Bench Hospital on the strength of Martin’s (sic) information to us, we were constrained to report to the inspector General of Police Abuja and also draw the attention of zone 9 police headquarters, Umuahia.” The 6^th to 8^th Respondents by their admission stated that until the alleged statement of Martins, there had been no issue over the death of the Applicant’s wife.

It is conceded that 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, submitted that the report itself must be grounded on identifiable facts which are objective and not on the imagination of the citizen. Relied on Okafor vs. Abumofuani (2016) LPELR- 40299 (SC).

It is trite law that he who asserts must prove. The 6^th to 8^th Respondents have alleged in the affidavit evidence that the medical reports and autopsy reports are false without any cogent evidence to prove same. It is an elementary principle of law that any allegation of crime in any civil suit must be proved beyond reasonable doubt. This is more so when the allegation against the Applicant is a grievous one and capable of destroying his name, reputation and finally taking his life. We refer this honourable court to section 135(1) and (2) of the Evidence Act, 2011 (as amended).

The affidavit evidence of the 6^th to 8^th Respondent is bereft of any iota of documentary evidence to show that the deceased died from any other means than that stated in the autopsy reports or death certificate. There is also no evidence that the police ever interrogated the said Martins or attached his statement made to the police to ground the belief that there was foul play in the death of the deceased before this honourable court. The 6^th to 8^th Applicants have admitted in paragraph 21 of their counter affidavit that the Applicant cannot bury his late wife until he does the proper things, meaning that the 6^th to 8^th Respondents are only willing to forgo the investigation to the alleged murder of their sister of the Applicant meets their demands. The Applicant has attached documentary evidence in support of his averments while the 6th to 8th Respondents have sought to contradict without any documentary evidence to the contrary. The court is urged to hold that the actions of the 1^st to 5^th Respondents was in breach of their duties and against the rights of the Applicant.

Applicant’s second further affidavit was deposed to by Dr. Chibuzor Nwanguma wherein he frontloaded pictures of traditional wedding, Exhibit CJ3.

CASE OF THE 1^ST – 5^TH RESPONDENTS:

The 1^st to 5^th Respondents filed a Counter Affidavit. The Affidavit was deposed to by Inspr. Kennedy Amadi. He deposed: I am the Investigating Police Officer in this matter and I am working directly under the 3^rd Respondent and by virtue of position, I am conversant with the facts of this case.

I have the consent and authority of the 1^st, 2^nd, 3^rd and 4^th to 5^th Respondents to depose to this Counter Affidavit for myself and on their behalf. Paragraphs 1 to 17 of the Affidavits setting out facts of this case is only within the knowledge of the Applicant and needs not to be investigated. Paragraph 18 of the Affidavit setting out facts is only true to the extent that we invited the Applicant one Miss Amaka Nwanqurna on the 5^th day of September, 2022 on the strength of the petition written by M.C. Nnanna dated the 30^th day of June, 2022 bothering on Conspiracy and Murder of Dr. Eberechi Ijeoma Nwanguma (Nee Eleazu) against Chibuzor Nwanguma (Applicant), and Amaka Nwanguma.

The petition was written to the Inspector General of Police and forwarded to the Assistant Inspector General of Police which was minuted to the Officer in Charge of Crack Squad to investigate. The photocopy of the said petition and attached copy of the memo is hereby annexed and marked Exhibit Ai and A2 respectively.

Paragraph 19 of the Affidavit is deceptive and only fabricated for the purpose of this Application. The Applicant never forwarded any report neither was he ever friendly with the Police to clear the air over an allegation of murder leveled against him and his daughter. He kept enquiring of the jurisdiction of the Zone 9 Police Command to investigate the murder case that occurred in Ogun State. Paragraph 20-21 of the Affidavit setting out facts is denied as we only informed the Applicant that we are acting on the premise of the petition written on behalf of the 6^th to 8^th Respondents which was before us but if he reconsiders (reconciles) with them and we are formally informed by the 6^th to 8^th Respondents, we will relinquish our investigation and interrogation.

Paragraphs 22 – 23 of the Affidavit setting out facts is false. The truth is that the Applicant hardly responds to our calls despite all attempts to urge him to corporate with us. He never invited us to anywhere but kept hiding from his destination and any necessary information to assist us investigate the matter. We equally asked him to bring his daughter who was alleged to have poisoned the food of the deceased but he refused. In further response to paragraph 22 and 23, the Applicant hails from Mbaise and has been residing/hiding in Mbaise since the inception of this matter as soon as we got the information, we went to Mbaise and delivered an invitation letter for him through a man who identified himself as Barr. Ramma Onwumere with phone number 08038933942. Nobody ever harassed either the Applicant nor any member of his family. The photocopy of the invitation letter addressed to the Applicant is hereby annexed and marked as Exhibit B.

Paragraph 24 is misconceived. That is the reason the Applicant who lies on documentary evidence did not exhibit such, the Applicant was not threatened in any form but was invited as the law permits as we still presumed him to be innocent until the contrary is proven. Paragraph 25 is denied, the Inspector General of Police whom the Applicant sued alongside the other Defendants never received any letter from the Applicant and would not have asked the other Respondents to withdraw from investigating an alleged murder case. Paragraph 26 is a fiction of imagination of the Applicant who has the same right as the Respondents to have written to even Police Service Commission to transfer the case file to any jurisdiction of his choice for proper and fair investigation of the alleged murder case. The Applicant knew the 6^th to 8^th Respondents more than the 1^st – 5^th Respondents do. We are only acting in the official capacity bestowed on us to protect lives and properties of the citizens which also includes the Applicant. Paragraphs 27 to 31 of the Applicant setting out facts are misconceived and mischievous. The Applicant has never been threatened and has not been refused to bury his late wife as claimed, but must do the right things as the tradition, custom, religious and morals which are not repugnant to natural laws, good conscious and equity permits. The Applicant has not been prevented from enjoying his rights like the other of the Respondents but has refused to be investigated on the cause of the suspicious and mysterious death of his wife which according to the 6^th – 8^th Respondents was full of life before the 30^th day of March, 2022. The 1^st – 5^th  Respondents are yet to perform their constitutional duty and cannot be prevented by mere imagination of the Applicant as he has not shown that his fundamental right is likely or has been violated as enshrined in the 1999 constitution (as amend). Court will not grant the Application but will grant that the Applicant be investigated in order to clear the allegation of murder against him. The tide of justice leans in dismissing this Application having been brought mala-fide.

The counsel filed written address and formulated the issue fro determination as:

Whether it is the duty of the 1^st – 5^th Respondents to investigate the allegation of crime reported to them by the 6^th – 8^th Respondents.

According to the counsel, in this matter before the Court, the Applicant has done nothing more than to report the action of the Police for inviting him for investigation of a case against him. A situation where a clear criminal case has been reported against him for Conspiracy and Murder. Forgetting that the Police are carrying out their statutory duty of investigating the complaint of Conspiracy and Murder of Dr. Eberechi Ijeoma (Nee Eleazu) by Mr. Chibuzor Nwanguma and Miss Amaka Nwanguma.

In the 1999 Constitution of FRN (as Amended) and the Statutory Right to investigate all Criminal allegation leveled by a citizen of the country against a fellow Citizen or the government or an organization. See Section 214 (1) of the 1999 Constitution and Sections 4 and 24 of the Police Act. Where the Police finds out that there is substance in the complainant and there is reasonable suspicion that the person committed a criminal offence, the police is duty bound to investigate the matter thoroughly.

The scope and power of the Police to investigate any alleged criminal complainant has been given Judicial Interpretation in the celebrated case of  FAWEHIMI VS IGP (2002) 98 LRCN 1165 particularly at 1174 28 where the Apex Court per Kalgo JSC stated thus: “where the allegation of crime is made, there i almost always the need to ensure that there is      sufficient evidence to prosecute and this may involve questioning, arrest of even detention where necessary of the person or persons involved” There is no doubt that in all criminal allegation investigation plays an important part and may mark or mar subsequent criminal proceedings.

The law is clear and certain that where there is a serious question of criminal act involving an Applicant as it is in this case, the subsequent invitation, arrest and investigation of the Applicant by the Police for his criminal involvement and actions whether as a Conspirator, Accomplice or Principal Offender cannot by any stretch of investigation amount to infringement of the decision of the Court in the case of JIBARAN GARBA VS ISA JAMIRU MAIGORO (1992) 5 NWLR PE 243 PG 588 AT 597.

Regarding the above, it is evident that the conduct of the Applicant is such that the Police in the exercise of their statutory duties must investigate which said investigation is coterminous with invitation even arrest and detention.

It is submitted that the present Application lacks merit and ought to be dismissed in order to allow the Nigerian police to conduct the pending investigation and probably charge to court if need be.

THE 6^TH – 8^TH RESPONDENTS’ CASE:

The 6^th – 8^th Respondents filed counter affidavit. It is deposed to by OBINNA ELEAZU. He deposed: I am the 7^th Respondent in this suit and by virtue of my position I am conversant with the facts of this case. I have the consent and the authority of the 6^th – 8^th Respondents to depose to this Counter Affidavit for myself and on their behalf. Paragraph 2 of the Affidavit setting out facts is false. The Applicant informed us that he is a Pastor at TREM Church Lagos State, but wedded at Dominion City at Aba, Abia State unless he is now informing the Honourable Court that he was just reconverted to a Pastor at Mountain of Fire and Miracle Church within the period of filing this Application. Paragraph 3 of the Affidavit setting out facts is only true to the extent that the Applicant married the Dr. Eberechi Ijeoma in Dominion City Aba, Abia State in a deceptive and under the false pretence without the victim knowledge that there is still an existing marriage between the Applicant and Amaka’s mother (the 2^nd suspect). The Applicant did not perform any traditional marriage rites as he claimed he just buried the brother whom he spent so much money in the hospital trying to save his life but later died, the 6^th – 8^th Respondents decided to waive their rites. Paragraph 5 of the Affidavit setting out facts is not true as the Applicant’s late wife Dr. Eberechi Ijeoma is a native of Nnono Oboro in Ikwuano L.G.A of Abia State and not Umuahia as alleged by the Applicant. Paragraph 5 of the Affidavit setting out facts is only true to the fact that the deceased Dr. Eberechi Ijeoma was the daughter to the 6^th Respondent and the sister to the 7^th – 8^th Respondents but lies as it is only the 6^th Respondent that resides at Umudike, Abia State; the 7^th – 8^th Respondents are resident in Enugu and Ebonyi State respectively. One would wonder whether the Applicant ever had any consultation of where the wife hails from before the ill-fated marriage.

Paragraph 6 of the Affidavit setting out facts is yet to be ascertained if only the Applicant will avail himself for questioning and investigation because he has refused to honour the invitation by the in-laws despite several calls from the 6^th – 8^th Respondents, the Traditional Village Heads and His Royal Highness, Eze Chukwuemeka Ezeoma of Oha na Ude Oboro in Ikwuano L.G.A, Abia State. In further response to paragraph 6 of the Affidavit, on that fateful day of 30^th March, 2022, the Applicant used the deceased phone to call the deceased’s sister (Chinyere Okonkwo) to inform her that the deceased was sick but unknowingly to the Respondents that the deceased was dead. It is not true that the deceased was rushed to Beachland Specialist Hospital in Arepo alive; she was dead hours before her corpse was taken to the said hospital which was in turn rejected by the hospital.

Paragraph 7 of the Affidavit setting out facts is only true within the knowledge of the Applicant, as Dr. Eberechi Ijeoma has never complained of any sickness of such to any member of the family neither has she ever fainted nor slumped as the case maybe. Paragraph 8 of the Affidavit setting out facts is tainted with falsehood, the true facts is that when the said doctor was consulted to ascertain the true cause of the death. The doctor informed us that the cause of death is still unascertained as there was need to conduct an autopsy to know the actual cause of death because the deceased was foaming from the mouth and nose when the corpse was brought to the said hospital. The said autopsy results presented by the Applicant is fabricated and printed for the purpose of this Application. The autopsy would not have been conducted without the presence of the 6^th – 8^th Respondents who are complaining of the mysterious death of their hale and hearty daughter full of life.

Paragraph 9 of the Affidavit setting out facts is false. All this ailment are within the knowledge of the Applicant, who is yet to be investigated over the mysterious and untimely death of the deceased who has never been diagnosed of any such internal sickness. Paragraphs 10 – 12 of the Affidavit setting out facts are false. That the Applicant only informed us about the death of the deceased on the 23^rd of April, 2022 and we informed him that we will conduct an autopsy on her, we never instructed him to unilaterally conduct the autopsy by himself because he is our suspect for the untimely death. The autopsy results is yet to be verified, the 6^th – 8^th Respondents are yet to conduct the autopsy on the deceased but the Applicant has refused to corporate with the Respondents despite several calls and invitations by the Respondents and other family well-wishers and friends to bring the Tally in his possession.

Paragraph 13 – 17 of the Affidavit setting out facts is misconceived. The Applicant came and informed us about the death of the deceased on the 23^rd day of April 2022, we asked him to bring down the victim’s corpse and all her properties since her death to us is still suspicious. The Applicant informed us that he has already deposited the corpse at Aladinma Mortuary, Owerri, Imo State and promised to convey the properties as soon as he gets to Ogun State. Curiously, he stopped picking his calls, kept giving excuses of financial constraints, the 6^th Respondent sent him the sum of N300,000 (Three Hundred Thousand Naira) through one Hon. Ubani Onuoha to convey the said properties to Umuahia, Abia State which he did sent through a driver on the 30^th day of May, 2022. A photocopy of means of conveyances sent by the Applicant of the said properties is hereby annexed and exhibited as “Exhibit A”. None of the Respondents ever visited nor entered the Applicant’s residence at Ogun State neither do any of them know where the Applicant resides let alone catering away any of his properties as alleged. The 6^th – 8^th Respondents are all Christians and can never engage in any barbaric performance of marriage rites after the death of the deceased and never collected nor demanded for any amount of money from the Applicant as he alleged. Paragraph 18 of the Affidavit setting out facts is tainted with falsehood as we reported to the Police the case of Conspiracy and Murder of Dr. Eberechi Ijeoma Nwanguma, when Martins (aged 17 years) who lived with the deceased returned and informed us that the Applicant has a grown up daughter (Amaka) which the Applicant never informed both the deceased and the 6th – 8^th Respondents before and after the ill-fated marriage.

When the deceased discovered that the Applicant had previously married and has a child without her knowledge before the marriage, she became apprehensive of that fact but was sternly warned by the Applicant not to interfere in anything concerning the daughter. It was Martins who then informed us that Amaka conspired with the Applicant to kill the deceased by poisoning her food. Martins also informed us that the deceased died in the house hours before her body was taken to Palm Beach Hospital whereupon the hospital management rejected her corpse. On the strength of Martin’s information to us, we were constrained to report to the Inspector General of Police Abuja and also drew the attention of Zone 9 Police Headquarters Umuahia. In response to paragraph 19 of the Affidavit setting out facts, the Police would not have interviewed only the documents sent by the Applicant over such a heavy allegation as bad as “Murder” the Zone 9 Police Headquarters Umuahia kept inviting the Applicant after having failed either to bring back the Tally and/or come to conduct a proper autopsy of the deceased whom the 6^th – 8^th Respondents believed to have being murdered.

The Applicant has already deposited the body of the deceased in the Aladinma Mortuary Owerri, Imo State and has remained in Mbaise since the inception of this case; hence a petition was made for his arrest at Zone 9 Police Headquarters, Umuahia which is the Territorial Jurisdiction. The Police never informed us of any document regarding the autopsy or medical reports as to the cause of death of the deceased except the document exhibited for the purpose of this Application which we also need to verify their authenticity. Paragraphs 20 – 21 of the Affidavit setting out facts are denied. The Police has not even seen the Applicant neither has he ever made any effort to make peace with the 6^th – 8^th Respondents who are still alleging that their sister the deceased was murdered. We never made any demand from the Applicant rather than asked him to send back the deceased properties, come for an autopsy to be conducted and also bring the tally so that we will bury the deceased if we are satisfied with the cause of the untimely death. It is unimaginable to suggest that the Police will inform the Applicant that he will be arrested and detained when he has not been seen.

Paragraph 21 of the Affidavit setting out facts is mischievous, the Applicant is only interested of where he should be investigated over a case of murder forgetting the fact that the deceased hails from Abia State, resides in Aba and has not resigned her appointment as a lecturer at Abia State Polytechnic, Aba, while the Applicant hails from Mbaise, Imo State and has remained in Mbaise till date. Paragraph 22 of the Affidavit setting out facts is not true. If so, the Police would have been prompt to honour such invitation by the Applicant to conduct the Autopsy without delay which has equally been a priority of all the Respondents as to ascertain the actual cause of death of the deceased. Paragraph 23 – 24 of the Affidavit setting out facts is fallacious the Applicant has been in Mbaise but has neglected/ avoided investigation of the alleged offence against him despite several attempts by the Respondents to have an understanding with him. The Applicant never wrote any letter to the Inspector General of Police and if so he would have exhibited same. Paragraph 25 of the Affidavit setting out facts is not true. The Applicant has a case of murder to answer and needs to do same timeously as life is precious and needs to be protected including that of the Applicant.

Paragraph 26 of the Affidavit setting out facts is only misconstrued. The Applicant has a right to be treated justly if actually he is innocent. It is not true that the Applicant is being forced to abide by any custom or tradition alien to his belief as the 6^th – 8^th Respondents are equally Christians. Paragraphs 27 – 28 of the Affidavit setting out facts are unjustifiable. The 6^th – 8^th Respondents are bloodily relatives to the deceased and have lived with her for years with much affection being the last child of the family thus, needs to be pitied more than the Applicant who has only lived with the deceased for few months before her mysterious death. The 6^th – 8^th Respondents are desirous to bury their relative if the proper things are done by the Applicant. Paragraphs 29 – 30 of the Affidavit setting out facts are only done to attract self-pity and also to prevent and obstruct the investigation to be conducted if the Applicant had submitted himself to the police earlier before now. The Applicant would have been allowed to bury the deceased if the autopsy yet to be conducted shows that the deceased died a natural death.

The Honourable Court will not fetter or alter an investigation of a criminal conduct reported in good faith just as the present case.

The counter affidavit is accompanied by counsel written address. He formulated issues for determination as follows:

1. Whether the Applicant has successfully establish in any convincing manner that his fundamental rights is or has been breached by the Respondents in a manner to entitle him to the reliefs claimed.
2. Whether a legitimate compliant made to the Police in good faith amounts to breach of fundamental rights of the Applicant.

On issue 1, it is submitted that regarding the facts of this case as highlighted in the 24 paragraphs Counter Affidavit of the 6^th – 8^th Respondents deposed by the 7^th Respondent, the court will find out that it was the criminal conduct of the Applicant acting in concert with his daughter Miss Amaka Nwanguma as stated in the Petition that led to his alleged invitation by the 3^rd Respondent working under the control and the instruction of the 1^st – 2^nd & 4^th – 5^th Respondents in their efforts to investigate the criminal allegation against the Applicant.

It is submitted that the Fundamental Rights provisions cannot be used as enclaves and hideouts for deviants and criminals. The provisions are intended to protect existing “Rights” from arbitrary and/or oppressive violations by persons or authorities which the Applicant is inclusive. In Fundamental Rights Application, the onus of proving by credible evidence to the satisfaction of the Court that one’s Fundamental Rights has been breached is on the party that alleges so. Relied on OKAFOR V. LAGOS STATE GOVERNMENT (2017) 4 NWLR (PT. 1556) 404 AT 433 PARA H-A., ONAH V. OKENWA (2010) 7 NWLR (PT. 1194) 512 AT 532 AT 535 – 536.

The Counsel to the Applicant in his efforts to establish his case expanded the relevant Sections of the law in isolation to appreciate the purport of the Sections and Authorities relating to Fundamental Rights and circumstances under which a person is said to have rights to enforce same. The said Sections and Authorities are not without qualifications as Sections 35 (1) (c) provides exceptions where a person’s liberty may be deprived. Such exceptions applies in the present case. Referred to Section 35(1) (C) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); EKENEM VS. ASS. IGP (2008) ALFWLR PT 420 AT PG. 779.

According to the counsel, if such interpretation or construction made by the Applicant’s Counsel in this present case is the intendment of Chapter 4 of the 1999 Constitution and African Charter, then no citizen no matter the heinous nature of offence or crime committed will ever be invited, arrested or detained by the Law Enforcement Agents and in the same vein any citizen who in the slightest opportunity reports to the Police the commission of any crime stands the risk of being sued for infringed on the Fundamental Rights of the other citizen. This can never in the least be within the contemplation of those Sections and Authorities of the law relating to Fundamental Rights Application.

It is fact  without contention that the Applicant who was invited by the 3^rd Respondent working under the control and the instruction of the 1^st ­ & 4^th – 5^th Respondents on the 5^th day of September, 2022 but neglected and refused to honour the said invitation despite several calls by the Traditional Ruler of the 6^th – 8^th Respondents’ Autonomous Community HRH, Eze Chukwuemeka Ezeoma, The Traditional Prime Minister Chibuzor Ezeonye, host of other in-laws of the Applicant and the 5^th Respondent and his team will turn back to complain that his Rights was infringed against all the Respondents who merely want the Applicant to be investigated over the allegation of murder.

The alleged invitation of the Applicant did not contravene the Provisions of Section 35(5) of the 1999 Constitution as he has not even made any effort to honour the invitation despite the heinous allegation of crime leveled against him and it was on reasonable suspicion that he committed a criminal offence.

It is submitted that the intention of the Applicant in this Application is to use the Processes of Fundamental Rights Application to frustrate, jeopardize and obstruct the investigation of criminal allegation leveled against him and pervert justice. The Applicant came to Equity with a soiled hands.

On issue 2, it is submitted that sometime in July io”, 2021, the Applicant who hails from Mbaise, Imo State came to the families of late Ibeabuchi Eleazu in Nnono Oboro Ikwuano L.G.A of Abia State to seek the hand of Dr. Eberechi Ijeoma (deceased) for marriage. The necessary marriage rites was not performed as the 6^th – 8^th Respondents waved their rites considering that the Applicant alleged that he just buried his brother of late. Consequently, on the 9^th day of October, 2021, the Applicant immediately contracted an ill-fated church marriage at Dominion City in Aba, Abia State having earlier on informed the Respondents that he is a pastor at TREM Church Lagos State.

For sinister reasons, especially those on greed, covetousness and wickedness, the Applicant with the daughter arranged for the relocation of the deceased to Ogun State. Before the ill-fated marriage arrangement, the deceased and the 6^th – 8^th Respondents were not informed that the Applicant had previously married. Curiously, when the deceased covered this, she became apprehensive and reported same to her maiden home but could not do any otherwise as the marriage was still barely four (4) months old. Before this period, the Applicant for inordinate reasons to acquire and convert the properties of the deceased, conspired with the daughter and moved the properties of the deceased to Ogun State. Unfortunately, sometime in February during the ASUU strike, the deceased left for Ogun State to stay with the husband but unfortunately was poisoned after eating a plate of rice she cooked and left for while in her room.

The deceased after screaming and shouting for a while, slumped in the house and died without immediate attention to be taken to the hospital inspite of the fact that the Applicant was at home. The Applicant having discovered that the deceased has passed on, took her to Palm Beach Hospital in pretence of not being away of her death. The medical director informed the Respondents that the deceased was brought to the hospital dead after some hours and refused/rejected the corpse of the deceased.

Strangely, the Applicant never informed the 6^th – 8^th Respondents that their daughter was dead up until 23^rd day of April, 2022 been almost a month after. The 6^th – 8^th Respondents insisted that an autopsy will be carried out and also informed the Applicant to bring back their daughter’s properties from Ogun State. The Applicant escaped to the thin air framing up frivolous claims against the 6^th – 8^th Respondents. When the 6^th Respondent called the Applicant concerning the arrangements to bring back the deceased properties, he alleged that he had no money which prompted the 6^th Respondent the cash of Three Hundred Thousand Naira (N300,000.00) to the Applicant through one of their brothers Hon. Onuoha Ubani.

Since then, the Applicant refused to show up neither did he make further arrangements in burying the deceased. The 6^th – 8^th Respondents reported to their kinsmen, the village heads and also the traditional ruler of their autonomous community who made all efforts to call the Applicant to order but to no avail.

The 6^th – 8^th Respondents were constrained to petition the Applicant to the Inspector General of Police and signaling the Zone 9 Police Headquarters, Umuahia to conduct a thorough investigation and interrogation over the allegation of murder against the Applicant and the daughter hence the continuous invitation of the Applicant to Nnono Oboro in Ikwuano L.G.A of Abia State the maiden home of the deceased and the Zone 9 Police Headquarters Umuahia, Abia State. In reaction to the unexpected turn of event, the Applicant whose matter was reported to the Zone 9 Police Headquarters Umuahia, Abia State on the 30^th day of June, 2022 and was invited on the 5^th day of September, 2022, refused/neglected to honour the said invitation of murder made against him and resorted to file this Application on the 23^rd day of September, 2022 in order to frustrate and disrupt the investigation of the criminal allegation leveled against him.

The 6^th – 8^th Respondents only made a legitimate complaint to the 1^st – 5^th Respondents for investigation and nothing more. Relied on OMEREONYE VS. ASS. INPST. GENERAL OF POLICE ZONE II AND ORS (2019) LPELR – 50690 (CA); ONAH V. OKENWA (SUPRA); AFRI£ANK VS. ONOYIMA (2004) 2 NWLR (PT. 858) 654 In other words it is our submission that for one to successfully maintain an action for the violation of his Fundamental Human Rights consequent upon an invitation, arrest and detention, it is not enough to merely establish that a report was made to the Police wherein he was named as the suspect, he needs to also establish that the report was totally false, malicious and without foundation, see NWADIRI OBI VS BOTU (2000) 15 WRN 32 AT 40. This principle has firmly been established in the case of IGBOSONU VS. ONAYAGHA (2015) LPELR (42870) 1 AT 54-55

The court is urged to hold that the Applicant ought to be investigated which is conterminous with invitation, arrest and detention in the circumstances in line with Section 35(1) (C) of the 1999 Constitution of Federal Republic of Nigeria as amended.

RESOLUTION OF MATTER

The fact as revealed from the affidavit evidence is that the Applicant got married to Dr Eberechi sometime on 29^th October 2021. The 6^th – 8^th Respondents admitted there was a wedding but denied there was a traditional marriage rite. The Applicant countered that he performed traditional marriage rites and in his 2^nd Further Affidavit uploaded what he called pictures of the traditional marriage rites.

The immediate cause of the contention in this court is that on the 30^th day of March 2022 in the late hours of the night, the wife of the Applicant Dr. Eberechi Ijeoma Nwanguma (nee Eleazu) died.

It would appear that the 6^th – 8^th Respondents suspect there was a foul play somewhere. They involved the police. The 6^th – 8^th Respondent deposed in paragraph 7 thus:

“In further response to paragraph 6 of the Affidavit, on that fateful day of 30^th March, 2022, the Applicant used the deceased phone to call the deceased’s sister (Chinyere Okonkwo) to inform her that the deceased was sick but unknowingly to the Respondents that the deceased was dead. It is not true that the deceased was rushed to Beachland Specialist Hospital in Arepo alive; she was dead hours before her corpse was taken to the said hospital which was in turn rejected by the hospital.

The deponent at this point did not disclose his source of this information since it is clear that the deponent was not present at the scene. But further in paragraph 13, the 6^th – 8^th Respondents stated:

Paragraph 18 of the Affidavit setting out facts is tainted with falsehood as we reported to the Police the case of Conspiracy and Murder of Dr. Eberechi Ijeoma Nwanguma, when Martins (aged 17 years) who lived with the deceased returned and informed us that the Applicant has a grown up daughter (Amaka) which the Applicant never informed both the deceased and the 6th – 8^th Respondents before and after the ill-fated marriage. When the deceased discovered that the Applicant had previously married and has a child without her knowledge before the marriage, she became apprehensive of that fact but was sternly warned by the Applicant not to interfere in anything concerning the daughter. It was Martins who then informed us that Amaka conspired with the Applicant to kill the deceased by poisoning her food. Martins also informed us that the deceased died in the house hours before her body was taken to Palm Beach Hospital whereupon the hospital management rejected her corpse. On the strength of Martin’s information to us, we were constrained to report to the Inspector General of Police Abuja and also drew the attention of Zone 9 Police Headquarters Umuahia.

So from paragraph 13 of the Counter Affidavit of 6^th – 8^th Respondents, that the informant is one 17years old Martin. He is a minor. In Okwueze v. Okwueze (1989) 3NWLR (Pt.109) Pg321 at 346-347 Para.H – A it is stated: “Every legal system including native law and custom recognises the status of a minor i.e. the status of a person who has not attained the age of manhood or womanhood. Having attained the latter age, the legal system says a minor attains his or her majority and loses the status of a minor”. Per Agbaje JSC. Section 29(4) of the 1999 Constitution of the Federal Republic of Nigeria (FRN) defines a minor as anyone below the age of 18 years. The question one may ask here is how long was Martins with the Applicant and late Dr . Eberechi? The said martins did not inform the 6^th – 8^th Respondents about the grwn up daughter (Amaka) of the Applicant. It appears as can be inferred from the affidavit of the 6^th – 8^th Respondents that it was on the death of Dr Eberechi and the return of the said Martin that he informed them about the existence of the grownup daughter. And it was what he told them that prompted them to make a report of conspiracy and murder of Dr. Eberechi Ijeoma Nwanguma. It is not disclosed if Martin made any statement to the Police.

At paragraph 9 the 6^th – 8^th Respondents stated:

“The doctor informed us that the cause of death is still unascertained as there was need to conduct an autopsy to know the actual cause of death because the deceased was foaming from the mouth and nose when the corpse was brought to the said hospital. The said autopsy results presented by the Applicant is fabricated and printed for the purpose of this Application. The autopsy would not have been conducted without the presence of the 6^th – 8^th Respondents who are complaining of the mysterious death of their hale and hearty daughter full of life.”

I understand the doctor here to mean the doctor at Beachland Hospital because it confirmed what the Applicant said that the doctor said which is that the secondary cause is known but there is need for an autopsy. It does mean that the 6^th – 8^th Respondents had direct contact with the doctor for him to have informed them about that. If this doctor is the same doctor, it follows the line of what the 6^th – 8^th Respondent said was told them by the martins that late Dr. Eberechi actually died at home. So it was her corpse that was taken to the Hospital.

On the other hand the Applicant believes that the 6^th – 8^th Respondents involved police only because he refused and resisted the excruciating demands made by the 6^th – 8^th Respondents on him. He maintained that his wife died a natural death and this was attested to by the doctor that confirmed her death and the autopsy conducted at the LUTH.

What triggered this application are EXHIBITS E and E1. The exhibit E is dated 5-8-2022 and addressed to Dr Chibuzor Nwanguma Aboh Mbiase LGA. It is titled: “Police Invitations”. It says: “This office is investigating a case of conspiracy and suspected murder. You are hereby required to report at Zone 9 Headquarters, Umuahia on the Wednesday 17^th day of August 2022 at about 1000hrs. It is a fact finding invitation ad your cooperation will be appreciated. You will bring with you the following persons: (1) Miss Amaka Nwanguma” Exhibit E1 is dated 4^th August 2022 and addressed to Barrister kaama Onyekwere, President General of Nriukwu Amaimo in Aboh Mbaise LGA Imo State. The letter is titled “Investigation Activities Re: case of conspiracy and suspected murder a call for justice”. The paragraph 2 of exhibit E 1 stated: “You are respectfully requested to use your good office to prevail on your subject to expeditiously respond to the invitation letter attached herein”.

The letter of invitation written on 5^th August 2022 was ver 4 months after the demise of Dr. Eberechi Ijeoma Nwanguma. This application was filed on 23-8-2022 about 17 days after the police letter of invitation.

Lets look at some of the dispositions: When the Applicant said:

“I forwarded copies of the autopsy report and the medical certificates from the Beachland Specialist Hospital and LUTH to the police officers in Umuahia to bring to their attention that my late wife died of natural causes, that there was no foul play and that the petition by the 6^th to 8^th Respondents were done in bad faith”.

He did not state the means of the forwarding, what time day and month. Between the invitation and the filing of this application was 18days. The Applicant did not disclose when he had his fisrt encounter with this police. When the Applicant stated:

“I was shocked when I received several calls from the police officers demanding that I either accede to the demands of my in-law, the 6^th to 8^th Respondents, or I will be arrested and detained until I paid in full the sum demanded by the 6^th to 8^th Respondents.”

The Applicant did not state when he was called, who called him and what number called him. This information would have given the persistent, irritating and nauseating call scenario created by the Applicant more credibility. In the same vein the Applicant deposed:

“Though my late wife resided and died in Ogun state, I have not been charged or invited by the police in Ogun or Lagos state in respect of this issue but by the police in Abia state on the instigation of the 6^th to 8^th Respondents. I have even invited the 1^st to 5^th Respondents from Abia State to investigate the cause of death independently and given them the information of the doctors who attended to my late wife upon her death; informing the police that her body was still at the morgue for their independent autopsy if they so require but all my entreaties to the 1^st to 5^th Respondents proved abortive”.

The Applicant did not state the means of the invitation he extended to the 1^st – 5^th Respondents to investigate the cause of death independently.  It is not on record that the Applicant reported the action of the 6^th -8^th Respondents coming to his residence at Ogun State to carte away his properties. That alleged crime at least was committed within Ogun State Police Command’s jurisdiction. Bearing a mind that he Applicant advocates strict adherence to territorial circumscription of jurisdiction of Police. Neither is it on record that the Applicant reported to the Police in Ogun State of the pressure on him or false accusation of murder by the 6^th -8^th Respondents or even the harassment by the Police outside jurisdiction.

It is not on record that the Applicant has reached out to any member of the late Dr Eberechi’s family outside the 6^th – 8^th Respondents. The Applicant alleged that he performed traditional rites and customs. I can take judicial notice of the fact that in this part of the world traditional marriage rites are not done privately or solely to the immediate family of the maiden, but in the presence of the extended families and the kindred. Activities or actions as mentioned above, to my mind, would have gone a long way to show availability, openness and readiness to get to the root of the problem or ward off the lingering accusation.

The Applicant went further to aver:

“When the threats and persistence attempts to seek me out to arrest became pervasive that it led to having to be absent from my place of employment, I instructed my solicitors, the law firm of C. J. Jiakponna & Co., to write a letter to the Inspector General of Police about the activities of the Respondents on this matter. Notwithstanding the letter from my solicitors the Respondents have continued in threatening and harassing me through phone calls. I verily believe that the 1^st to 5^th Respondents will not act fairly in this situation as they have instructed that I abide by the unlawful and unconscionable demands of the 6^th to 8^th Respondents in spite of my financial straits and right not to be forced to abide by a custom alien to my beliefs”.

Here the Applicant did not make available the said letter to the Inspector General of Police. In a circumstance of this nature, one would have expected that the said letter would have been copied to the Assistant Inspector General of the Police Zone 9 or at least a letter forwarding same to him. I also observed that in the whole saga, the Applicant did not cause his lawyer to write a letter to the Police – especially to the Assistant Inspector General of Police Zone 9 attention to the DCP Edem Ita Sellong psc from whom the invitation of 5-8-2022 emanated. The 6^th -8^th Respondents may be right when they countered that:

“the Applicant never wrote any letter to the Inspector General of Police and if so he would have exhibited same”.

Again the Applicant mentioned continued threatening and harassing through phone call and did not drop any phone number or name of a person called him. Are the callers anonymous and phones numbers unknown?  It is left to our assumption. The Applicant chose shuttling from one residence to the other of his friends and colleagues to avoid being arrested instead of making formal report to the police in his neighbourhood. Probably the Ogun State Command would have seen reason with him and advice the Zonal Command Enugu to stay off the case.

Devoid of any undisclosed aforethought malice against the Applicant, it is normal that the mother and siblings of the late Dr. Eberechi are concerned about the sudden death of their daughter and sister. It is normal that they are at the forefront of finding out or knowing what led to Dr Eberechi death. It is heart-rending to see ones healthy and promising loved one leave without a goodbye. But in all of it, we remain human. There is a limit to what we can discern or comprehend.

Was the deceased deceived into believing that Applicant has no wife? At what point was it discover that there is another woman- Amaka’s mother. The marriage was said to have taken place in October 2021. She died on 30^th March 2022. Barely five months into the marriage. It is quite unfortunate. At what point was the discovery of the earlier and subsisting marriage discovered? The Applicant deposed in paragraph 2(vii) of his Further Affidavit in response to the 6^th – 8^th Respondents counter affidavit that “my late wife was well aware of my daughter prior to our marriage”. Earlier in paragraph 2(i) & (ii), he deposed to the effect that he married his wife in Dominion City Church as a bachelor and the 7^th Respondent endorsed the marriage papers as a witness.  I believe it was love that brought the Applicant and his late wife together in the first place. I am certain regarding her status; she was convinced before taken the step to be with the Applicant as his wife. On the face of the documentary evidence before the court, one can say that they are lawfully and legally married.

Having said that, I will still not fault any genuine intention of the 6^th – 8^th Respondents aimed at unraveling the circumstances surrounding the death of Dr Eberechi. I will go with them all the way but only to that extent of their unadulterated desire or intention of ascertaining the cause of the sudden death. If there is suspicion of foul play over the dead of Dr Eberechi, the Police is entitled and indeed empowered by law to investigate such suspicion of foul play by anybody.

The 6^th – 8^th Respondents did not deny making a report to the police. It is trite and now settled that it is a civic responsibility of every law abiding citizen of this country to report every crime or suspected crime to the police whose statutory duty and responsibility it is to curb crime or prevent crime.

Once the report is made bona fide, the motive for such report is of no moment. Even where the report is out of or motivated by revenge for the past offence, as long as there is a reasonable suspicious of such crime, the party who reported shall bear no burden. The Police on the receipt of the petition or complaint is empowered in law to detect whether the action of the Applicant amounts to crime. See SCHLUMBERGET NIG. LTD VS. ONAH (2007) ALL FWRL (PT 389) 1327 AT 1375 PARAS, C – E.

The case of the Applicant appears to be that there is no reasonable suspicious of crime and ought not to be. There is an ulterior motive, malice aforethought. And the sole aim is to harass him, intimidate him and financially exploit him.

There is a petition or allegation of murder. Nevertheless, an allegation remains an allegation and nothing more. The accused is deemed innocent until proved guilty. In Nigeria, the courts operate an adversarial system and not inquisitorial system. In the former the accused is presumed innocent in the later the accused is presumed guilty. Likewise, here the Nigerian police work on the presumption that allegation no matter how heavy or weighty, the accused is still innocent. In that wise the constitution has put safety valves and limits that must not be exceeded in the course of any investigation by the investigating officers. A criminal investigation may take place upon a report by a public officer, information provided by the general public or a complaint by an injured party. An investigation may also take place if a person is caught in the act of committing a crime.

There is report or complaint by injured parties in this situation. The 1^st – 5^th Respondents annexed a letter dated 30^th June 2022 and addressed to the Inspector General of Police and shown to have been received in that office on the 6^th day of July 2022. It is titled Conspiracy and the Murder of Dr Eberechi Ijeoma Nwanguma (nee Eleazu) by the duo of Chibuzor Nwanguma and Amaka Nwaguma. A clarion call for justice and the avoidance of an impending communal war. By the a letter dated 6^th July, 2022 it was minuted to Assistant Inspector General of Police Zone 9 who by letter dated 18^th July 2022 minuted it the Officer in Charge of Crakc Squad Zone Umuahia. This culminated in the Police Invitation extended to the Applicant on 5^th day of August 2022.

Talking about allegation and investigation the court in LIMAN V. STATE (2016) LPELR-40260(CA) stated:

“I agree with his reasoning and conclusion that there is a world of difference between allegation of crime and investigation of crime. An allegation is a mere statement stating that someone has done something wrong or illegal. It is an assertion by a party to a legal action of what the party undertakes to prove. In relation to criminal investigation and trial, it is a positive assertion or statement made by a person to the police against another, accusing the other of the commission of a crime and for the purpose of having the statement investigated by the Police. The word “Investigation” has been defined as a careful examination, study, inspection, exploration, analysis or appraisal or search in order to discover facts or gain information. It is that process of collecting information, inquiry into the information and a detailed examination of the allegation in order to reach the goal of ascertaining the truth of the allegation. A criminal investigation thus, refers to the process of collecting information (or evidence) about a crime in order to, (1) Determine if the crime has been committed (2) Identify the perpetrator (3) Apprehend the perpetrator (4) Provide evidence to support a conviction on it. According to Willmer on information theory, the criminal investigation process resembles a battle between the Police and the perpetrator over crime related information. The more information the police is able to gather from the signals emitted or information left behind by the perpetrator of the crime, the more successful the prosecution becomes in winning the battle. According to Bryan A. Garner Black’s Law Dictionary, 9th Edition, Thomas Reuters USA at page 902, to investigate means:- 1. To inquire into (a matter) systematically; to make (a criminal) subject of a Criminal inquiry. 2. To make an official inquiry.See Eyonaowa v. Commissioner of Police (2014) LPELR-22339 (CA) Per OGUNWUMIJU, JCA (P. 61, Paras C-E) and Chedi & Anor v. A.G.F. (2006) LPELR-11806 (CA) per Muhammad JCA. Criminal investigation therefore denotes the act of systematic enquiry into a matter, or to make a suspect the subject of a criminal inquiry. See also Black’s Law Dictionary 8th Edition.” Per WAMBAI, J.C.A. (Pp. 28-30, Paras. F-F)

It is correct to say that at this stage, there is an allegation. There is need to determine if indeed a crime is committed. It can be safely assumed that the main purpose of police officers in inviting a person to the police station is to ask questions concerning an alleged crime. Viewed in this light, the invitation is made in connection with the mandate and duty of police authorities to investigate a crime

It is not the mandate of the police to enforce any religious or traditional belief and the police must not be used to coerce any citizen to perform any rite and or tradition inconsistent with his or belief. Any police who engages in such activities or allow himself or herself to be used as such should know that he is going contrary to his oath of office and allegiance to the law of this land. Freedom of conscience and religion is well protected in this country.

Invitation itself is not illegal. Invitation to me is an integral part of investigation and it must not lead to arrest and detention. I do not have a problem with the police investigating and pushing for information in order to solve crimes but it must not be done in a manner whereby the civil rights of a citizen will be trampled. Our police must do more investigating and rely on forensics in order to gain success and stop relying on locking up persons in the hope of getting information and confessions. In MR. ARIAN K. MIRCHANDI v. INSPECTOR GENERAL OF POLICE & ORS (2021) LPELR-54016(CA) it is stated:

“It has been serially and consistently held that the mere invitation of a person by the Police, without more, is within the powers of the Police. And except it can be shown that the Police misused their powers, no Court will interfere with Police action in the performance of their constitutional duties and responsibilities to investigate crime. Thus, the power of the Police to investigate crime and to invite persons to be interviewed/questioned simpliciter, cannot amount to the breach of the fundamental rights of such persons. Per SANKEY ,JCA (Pp. 21-22, paras. B-F)

It has to be noted that a mere invitation of a person by the police without more, is within their powers; except where it can be shown that the police misused their powers. Thus, the exercise of the powers of the police to invite and investigate crimes simpliciter cannot amount to a breach of fundamental rights. See HRH EZE (ENGR) PETER C. IHUA-MADUENYI (JP) v. HM, EZE ROBINSON O. ROBINSON JP & ORS (2019) LPELR-47252(CA)

To my mind it is the investigating that will give rise to the reasonable suspicion that a crime has been committed. It is only in this context that paragraph “C” of Section 35 (1) of the Constitution 1999 (as amended) that an arrest will be recognized as lawful only if it was made upon reasonable suspicion that the person whose arrest was made has committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence wills have meaning. Reasonable suspicion deals with possibilities, rather than probabilities. See R. V. CHEHIL, 2013 SCC 49, [2013] 3 S.C.R. 220.

The court has consistently condemned arrest before investigation. Generally, an arrest should not be made until the police have concluded their investigation unless there is proven instance of the person under investigation hindering or preventing or destroying evidence. See the case of FAWEHINMI VS. IGP & ORS (2002) 7 NWLR (PT.767) 606, (2002) 5 S.C (PT.I) 63; (2002) ALL N.L.R 357 (2002) LPELR-1258 (SC) where the apex Court per UWAIFO, JSC had this to say on the subject:

“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 implication…”

Even as to that, if the fear of preventing or hindering evidence is so strong the court would not have held that a sitting Governor or President with immunity can be investigated despite section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) but cannot be arrested. These are persons that are more in a position to hinder or prevent thorough investigation and yet the law permits that they can be investigated without arrest. In FAWEHINMI V. I.G.P.(supra) it is stated:

“Investigation of a Criminal complaint by the police against any of the office holders mentioned in section 308(3) of the 1999 Constitution is not tantamount to laying a criminal complaint before a Court. Investigation of a criminal complaint by the police is in my view a preliminary course which may or may not result in a criminal prosecution.” Per Wali, JSC (Pp.49-50, paras. F-A)

In ISHENGE v. COP & ANOR (2019) LPELR-48390(CA),the cout stated:

“The correct procedure is for investigation to come first in the police’s duty of arrest, detention and prosecution. The trend amongst the security agencies in Nigeria of arrest before investigation is condemnable as unconstitutional. While the power of the Police to investigate an allegation of crime against a suspect is unfettered, the police which is established by Section 214 of the Constitution must carry out their duty in accordance with the dictates of the Constitution as without the Constitution there will be no Police Force.”

There is only one Police Force in Nigeria. I do not think in the exercise of investigatory powers of the police they are geographically bound. I am of the view that any police in Nigeria can investigate any crime in any part of the country if the logistic supports it knowing full well that there is always cooperation between police formations in investigation of crime.  Where the applicant is not comfortable with the way and manner an investigation is going, he has right to call on the higher authority to intervene. In ALHAJA KUDIRAT IJAIYA IBIYEYE & ANOR. V. ABDULLAHI GOLD & ORS.(2011) LPELR-8778(CA) (2013) ALL FWLR (PT.659) 1074 it is stated:

“There is one Nigeria Police, whether at Divisional Level, State, Zonal or Force Headquarters Commands, and investigation done at one level should be seen and taken as the act of the Police as a whole, to be supplemented or improved upon. Thus, where the Police at the substation or divisional level have arrested and detained an Applicant for more than 24 hours, or beyond the period Constitutionally allowed, and later released him on bail… the Police from another unit to whom an aggrieved party further complained, should not take pleasure in further harassment or incarceration of the Applicant (person complained against), if it has cause to conduct fresh investigation.” In the instant case it appears that the Applicant has not come into contact with the Police.

When it comes to trial, the court in THE STATE V. FRANCIS C. OKOYE & ORS. (2007) LPELR-8298(CA) (2007) 16 NWLR (PT. 1061) 607 AT 660, PARAS. B – C (CA) stated:

“In the case of Patrick Njovens v. State and Adeniji v. State, it was held that mere entry of the accused to the jurisdiction of the court where they were eventually arraigned conferred jurisdiction on the court whether or not the crime was committed within such jurisdiction. In these cases, it was specified that how an accused entered into jurisdiction is immaterial even the entry may not have been voluntary. Where a person is alleged to have committed an offence, if the initial elements of the alleged offence occurred in one state and the subsequent elements occurred elsewhere, the State where the initial elements of the offence occurred can try the offender, as if the subsequent elements also occurred within that State. This was even stretched further by the Supreme Court in the case of Njovens v. The State (supra) relied upon by the appellant.” Per ADEKEYE, J.C.A (Pp. 49-50, paras. E-B) –

He is only apprehensive that the investigation will not be fair to him. He did not give reasons for that apprehension. It appears that the only contact he had with the 1^st – 5^th Respondents is the letter of invitation. That is the only one documented. The other ones are the alleged phone calls from unknown persons and unknown phone numbers on unknown times, days or months. There is no evidence of any other correspondences that the Applicant allegedly had with the 1^st – 5^th Respondents. See CHIEF (DR.) O. FAJEMIROKUN v. COMMERCIAL BANK NIGERIA LIMITED & ANOR (2009) LPELR-1231(SC)

Nevertheless, the constitution covers a situation where a citizen is apprehensive of his rights being trampled. Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has three major limbs. The first limb is that the fundamental right in chapter 4 has been physically contravened. In other words, the act of contravention is completed and the plaintiff goes to Court to seek redress. The second limb is that the fundamental right is being contravened. Here, the acts of contravention may or may not be completed. But in the case of the later. There is sufficient overt act on the part of the respondent that the process of contravention is physically on the hands of the respondent and that the act of contravention is in existence substantially. In the third limb, there is likelihood that the respondent will contravene the fundamental right of the plaintiff. While the first and second arm may ripen together in certain situations, the third limb of the subsection is entirely together in certain situations, the third limb of the subsection is entirely different. By the third limb the applicant need not wait for the completion or last act of contravention. It might be too late to salvage the already damaged condition. Therefore the third limb gives him the power to move to Court to seek for redress immediately he sense some move on the part of the respondent to contravene his fundamental rights. But before a plaintiff can or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the respondent without more cannot ground an action under the third limb. See UZOUKWU V. EZEONU II (1991) 6 NWLR (PT. 200) 708.

This application falls squarely under the third limb. It bears restating that the burden is on the Applicant to prove that the breach of his rights is imminent. This burden remains on him to discharge irrespective of whether the Respondents filed any processes. Even if the Applicant perceives that the Respondents’ affidavit evidence is irrelevant or inconsistent, the law remains that the Applicant is to succeed on the strength of his case. See MR. UGOCHUKWU AMADI-WALI V. PHEDC (2021) LEGALPEDIA (CA) 61715

Where there is allegation of imminent violation of fundamental rights, the person alleging such looming violation has a duty to advance concrete, cogent and credible evidence in support of such allegation of anticipated infraction. The law is also trite that he who asserts must prove. Whenever a person is bound to prove the existence of any facts it is said that the burden of proof lies on that person.

The Court will not be satisfied based on a mere allegation or deposition in an affidavit that there is a likelihood of infringement. There must be enough acts on the part of the respondent to prove that the fundamental right of the applicant is likely to be infringed. An applicant coming before a Court must show the existence of a breach or likelihood of a breach by the respondent. He must show that he is not only running from his own shadow but that he is a victim of a threat of breach of his fundamental right. Thus, where a person anticipate that his right will be in breach with quite a great amount of certainty, same spelt out in factual circumstance, the court can come to his aid and grant the reliefs as sought. See HABILA KAURA JATAU v. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, KADUNA STATE & ANOR (2021) LPELR-55758(CA) Per ABUBAKAR MAHMUD TALBA.

A Court of law cannot restrain the performance of a constitutional duty. See MALLAM ABDULLAHI HASSAN & ORS V. ECONOMIC AND FINANCIAL CRIMES COMMISION (2013) LPELR-22595 (CA), A.G. ANAMBRA STATE V. UBA (2005) 15 NWLR (PT. 947) 44.  In as much as the court cannot stop Police investigation, the investigation must be transparent. Government machineries must not be initiated or mobilized for worthless cause or to perpetrate injustice on harmless citizens. 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

The police should focus on finding whether there was any foul play on the death of Dr Eberechi and not on performance of marriage rites, religious or traditional activities. Nobody should b compelled to go contrary to his conscience. The duty of the police is to make sure that nobody is compelled to or stopped from practicing his or her own religion or compelled to practice any religion not acceptable to him or her. The police is to hold the balance. The 1^st – 5^th Respondents did aver: “The Applicant has never been threatened and has not been refused to bury his late wife as claimed, but must do the right things as the tradition, custom, religious and morals which are not repugnant to natural laws, good conscious and equity permits”. Also, the counsel to the Applicant, referred to the deposition of the 6^th – 8^th Respondents to the effect that the 6^th to 8^th Respondents have admitted in paragraph 21 of their counter affidavit that the Applicant cannot bury his late wife until he does the proper things, meaning that the 6^th to 8^th Respondents are only willing to forgo the investigation to the alleged murder of their sister of the Applicant meets their demands. To my mind the only lawful and legitimate demand her whether the death of Dr Eberechi Ijeoma Nwanguma was natural or unnatural. An autopsy report will answer this. It is not the duty of the 1^st – 5^th Defendants to enforce any tradition, custom, religious or moral belief. Rather they are empowered to protect and enforce law that permits every citizen to practice any tradition, custom, religion or moral without infringing on the right of orders to so do. A man’s right to swing his hands must stop where the right of another starts to defend his nose. By section 38 of Constitution of the Federal Republic of Nigeria 1999 (as amended) the provision of this section, every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. While the Government of the Federation or of a State shall not adopt any religion as a state religion, every person has a right to practice his religion in Nigeria. See OKAFOR & ORS v. NTOKA & ORS (2017) LPELR-42794(CA) Per OGUNWUMIJU, J.C.A. (P. 27, Paras. A-C

Now, where is the remains of Dr Eberechi? Is it at the LUTH morgue as alleged by the Applicant or at the Aladimma Owerri Morgue as alleged by the 6^th – 7^th Respondents? The 6^th – 8^th Respondents alleged that the Applicant has already deposited the body of the deceased in the Aladinma Mortuary Owerri, Imo State and has remained in Mbaise since the inception of this case; hence a petition was made for his arrest at Zone 9 Police Headquarters, Umuahia which is the Territorial Jurisdiction. In response, the Applicant stated: “Paragraph 14 of the 7^th Respondent’s counter affidavit is denied as the Respondents had all the necessary documentations to carry out their own independent inquiry; the 6^th – 8^th Respondents also failed and refused to make available the autopsy reports and the medical certificate to the police, even if it was disprove the contents of the autopsy report and medical certificate”. There is no specific denial of the allegation that the remains of Dr. Eberechi, is at the Aladimma Mortuary and the Applicant himself has remained at Mbaise since the inception of this case. It follows that if the Applicant has deposited the remains of Dr. Eberechi at Aladimma, nobody can have access to it without the tally.

Where it is obvious that there is no foul play in the sudden demise of Dr. Eberechi Ijeoma Nwanguma, parties should lay the matter to rest and her body to be lowered to the earth.

The task on the Court in fundamental right enforcement suits is to decipher from the affidavits and documentary evidence whether the Applicant’s rights were breached is being breached or likely to be breached. Once the Court cannot discern the elements of breach or imminent breach on the Applicant’s right, it has a duty to dismiss the action or make appropriate orders as the justice of the case demands. See MR. PAUL EZEILO & ANOR v. ANTHONY OKWUCHUKWU EZEONU (2019) LPELR-48336(CA) “Per ABUBAKAR SADIQ UMAR, JCA (Pp. 19-20, paras. D-A)

A court hearing fundamental right application is empowered irrespective of his findings on the application to make appropriate orders as the justice of the case demands. ORDER XI – Fundamental Right Enforcement Procedure Rues 2009 provides:

“At the hearing of any application, under these Rules, the Court may make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act to which the applicant may be entitled.

The import of this Rules has been explained in the cases likes: ALUKO & ANOR V. C.O.P & ORS (2016) LPELR-41342(CA), OSONDU & ANOR V. A-G ENUGU STATE & ORS (2017) LPELR-43096(CA), ALIYU MOHAMMED V. ATTORNEY-GENERAL IMO STATE (2022) LPELR-56972(CA)

In view of all I have stated in this matter, I am of the view, as the justice of this case demands, the following orders are appropriate:

1. The Police are ordered to be fair, untainted and unbiased in their investigation of this matter devoid of any humiliation, intimidation and/or molestation of the Applicant or in any other manner contravening the Applicant’s Fundamental Human Rights unless with an order of this Honourable Court in respect of this matter.
2. ORDER is made restraining the Respondents particularly the 6^th to 8^th Respondents from compelling the Applicant to remarry a dead person, which act is repugnant to natural justice and equity and good conscience.
3. ORDER is made that the Applicant be allowed by the Respondents, particularly the 6^th to 8^th Respondents, to bury his wife in the Applicant’s home town or any cemetery designated by the Applicant and his family.

I so hold

I.M.Njaka

Judge

9-2-2023

Appearance:  C.J Jiakponna Esq., for the Applicant

S.E Onyemauche Esq., O/C Legal Zone 9 for the 1^st – 5^th Respondents

Udo T.M Okezie Esq., for the 6^th – 8^th Respondents