EZIEGBO & ANOR V. ASCO INVESTMENT LTD & ANOR

CORAM

MUSA DATTIJO MUHAMMAD

CHIMA CENTUS NWEZE

UWANI MUSA ABBA AJI

MOHAMMED LAWAL GARBA

HELEN MORONKEJI OGUNWUMIJU

PARTIES

NDUKA EZIEGBO

APPELLANTS

ASCO INVESTMENT LTD

RESPONDENTS

AREA(S) OF LAW

APPEAL, ACTION, FUNDAMENTAL HUMAN RIGHTS, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Appellant was arrested by officer of the 2nd Respondent from Jos, taken to, detained and arraigned before a Magistrate Court in Lagos on allegation of production of adulterated Kiwi Shoe Polish by the 1st Respondent. The Appellants initially approached the trial Court by way of motion on Notice of dated 11th April, 2013 brought pursuant to Orders 2, 3, 4,5, 6 and 7 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and Section 34, 35 and 41 of the 1999 Constitution (as amended) and sought declaratory and injunctive orders as well as damages against the Respondents. Due to the Respondents’ preliminary objection to the competence of the suit, the Appellants filed another motion on notice on the 21st May, 2013 for the same reliefs as the earlier one which was withdrawn and struck out.

The trial Court in its judgment delivered on the 9th of July, 2013, overruled the Respondents’ objection and entered judgment in favour of the Appellants, which resulted in the appeal before the lower Court. At the lower Court, the appeal was allowed and the Appellants’ claims dismissed on the grounds that the suit was premature and failure by the Appellants to prove that the arrest by the 1st Respondent was unlawful under Section 35(6) of the Constitution.

Dissatisfied with the decision of the lower Court, the Appellant filed this appeal before this Court.

HELD

Appeal dismissed

ISSUES

Whether the lower Court is right in law on the grounds that the suit was premature and failure by the Appellants to prove that the arrest by the 1st Respondent was unlawful under Section 35(6) of the Constitution.

RATIONES DECIDENDI

RIGHT TO DIGNITY OF PERSON – NATURE OF THE CONSTITUTIONAL RIGHT TO DIGNITY OF HUMAN PERSON

“… the provisions in Section 34 (1)(a) guarantee respect for the dignity of the person of all persons in Nigeria and that a person shall not be subjected to torture or to inhuman or degrading treatment.

This is one, and in deed the 2nd of the fundamental right provided for and guaranteed by the Grund norm and Fountain of all laws in Nigeria. See Rabiu v. The State (1980) 8 11 SC, 130, A.G., Bendel State v. A.G., Federation (1981) 10 SC, 7 at 132 – 134, (1982) 3 NCLR, 1, under Chapter IV for all persons (Nigerians and others living in Nigeria). Accordingly, no other person/s and/or authority in Nigeria shall subject a person or person to any form of torture; physical, psychological, mental, etc., inhuman or other degrading treatment, but shall accord due respect for the dignity of the person/s. See Fawehinmi v. Abacha (1998) 1 HRLRA, 541, Uzoukwu v. Ezeonu (1991) 6 NWLR (pt. 200) 708.” – Per GARBA, JSC

RIGHT TO PERSONAL LIBERTY – CONSTITUTIONAL RIGHT OF A PERSON TO PERSONAL LIBERTY

On its part, Section 35 provides for and guarantees the personal liberty for every person living in Nigeria and such liberty shall not be deprived, denied or interfered with except as may be provided for in the section.

It is therefore clear that even though the right to personal liberty is a fundamental right, it is not an absolute right since the Constitution itself; the giver and guarantor of the right, recognises and provides for some and specific situations or circumstances which may warrant, allow or permit the limitation, restriction of or derogation from the right, as exceptions to the right.

However, for any derogation, or limitation of the right to be legally and constitutionally excusable and availing, it must strictly fit into any of the enumerated situations or circumstances set out in the Constitution. See Agbakoba v. Director, SSS (1998) 1 HRLRA, 252, Director, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 3 14 (SC), lyere v. Duru (1986) .5 NWLR (pt. 44) 665, Fawehinmi v. Abacha (supra).”- Per GARBA, JSC