Legalpedia Citation: (2023-05) Legalpedia 65329 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Thu May 25, 2023

Suit Number: CA/K/240/C/2022

CORAM

AMINA AUDI WAMBAI JCA

Mohammed Baba Idris JCA

Muslim Sule Hassan JCA

PARTIES

HARRY ERIN AND ANOR

APPELLANTS

SALISSOU DIABAKTE

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, FUNDAMENTAL RIGHT, PRACTICE AND PROCEDURE, TREATY

SUMMARY OF FACTS

The Respondent’s claim at the trial court was that on the 19th of November, 2021 that the 1st Appellant invited the Respondent to his office and proceeded to detain the Respondent in the detention facility of the 2nd Appellant for 17 days on the basis of an alleged petition against the Respondent. That even after his release on bail, he kept reporting at the office of the 1st and 2nd Appellant constantly, which barred the Respondent from visiting his wife, children and ailing Mother in Togo. That despite the complainants withdrawing their complaint against those persons whom they had grievance against as they had settled the issue, the Appellant continued to harass the Respondent while confiscating his International passport, and began to demand the sum of ₦295,000,000 ( two hundred and ninety five million naira) for which there was never any complaint to the Appellant.

The case of the Appellants by their affidavit is that they received a complaint of cheating, and dishonest inducement amounting to N6,000,000 (Six Million Naira) fromo NAMAGIRA NIGERIA LIMITED against Saleh Mohammed, Aliyu Naaba, Bala Ibrahim and Mr. Zamani Joseph Takwale who claimed they are representatives of MHUBULG HOUSING LIMITED.

That investigation into the Directors of MHUBULG HOUSING LIMITED led the 2nd Appellant to one Richard Gbawuan who informed the 2nd Appellant that the contract was financed by CSS. CORP E.M.A VISSION EEIG based in the U.S whose representative happens to be the Respondent herein. That investigation by the Appellants on the Respondent revealed that CSS. CORP E.M. A VISSION EEIG funds contracts and projects in Nigeria.

Further investigation however reveals that the said CSS. CORP E.M.A VISSION EEIG is a fraudulent outlet used to defraud people and that the Respondent does not even have work permit to work in Nigeria. The Appellants denied all allegations made by the Respondent as to denying him bail, maltreating him and demanding for the sum of N295,000,000, and stated that it was when they discovered that he had no work permit that they kept him for further investigation.

The Respondent filed an Application for the Enforcement of His Fundamental Human Rights in the lower court and the trial Court entered judgment in favor of the Respondent and awarded the sum of Five Million Naira as damages to the Respondent against the Appellants for breach of Fundamental Human Rights.

The Appellants were dissatisfied by the decision hence the instant appeal.

HELD

Appeal allowed

ISSUES

Ø Whether the stay in custody by the Respondent having failed to fulfill bail condition for the administrative bail granted him by the Appellants amount to unlawful detention?

Ø Whether the lower court was right when it awarded the sum of Five Million Naira (5,000,000) only as damages against the Appellants in the absence of any act of infringement by not considering the Appellants defense to the Respondent’s application?

Ø Whether the lower court was right when it held that the petition before the Appellants having been withdrawn and the subject matter of the dispute resolved, the Respondent ought not to have been investigated on the ground that his name was not in the petition?

RATIONES DECIDENDI

FUNDAMENTAL RIGHTS RULES – THE MAIN AIM OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES

The main aim of the Fundamental Right (Enforcement Procedure) Rules 2009, the Rules of Court, is to ensure that where infringement of fundamental rights has been complained of or threatened, there is a speedy enforcement of such rights coupled with simplification of procedure for deciding with such complaints. Fundamental Human Rights take precedence over other statutes and the Courts would always uphold them and guard against their being whittled down. However the Fundamental Rights (Enforcement Procedure) Rules are not meant to shield any citizen from criminal investigation or to be used to stultify the investigation of an alleged crime. – Per M. S. Hassan, JCA

 

EFCC – POWERS OF THE EFCC

It is not in doubt that the 2nd Appellant EFCC has the undisputable power to investigate, arrest and detain any person who is suspected of the commission of any offence under the EFCC Act. The 2nd Appellant has all the powers of police See Section 41 of the EFCC Act. The law is trite that the police have general powers of arrest and when properly exercised on a reasonable suspicion of one having committed an offence, it cannot ground a complaint.  – Per M. S. Hassan, JCA

 

BAIL – DUTY OF THE POLICE TO OFFER BAIL TO A DETAINED CITIZEN

The Supreme Court in the case of Ekpu v. Attorney-General of the Federation (1998) 1 HRLRA (Human Rights Law Report of Africa) held: ‘’The law is that the police should provide bail for a detained citizen but they are not further enjoined to help the citizen find the person to take him on bail. Thus if the police offer an arrested person bail, there is no further obligation on them beyond the simple offer. They have no duty to help the person find a surety or meet the conditions of bail, and any further stay in detention by the person until he meets the conditions will not be unlawful.’’ – Per M. S. Hassan, JCA

EFCC – POWERS OF EFCC TO INVESTIGATE ANY CRIMINAL ALLEGATION OF FINANCIAL CRIME

…the 2nd Appellant is empowered to investigate any criminal allegation of financial crime, they may take any action they deem fit to take upon investigation. They may arrest, detain and prosecute an alleged offender. In the legitimate discharge of their duties they cannot be sued in Court for breach of Fundamental Rights. See ATAKPA V. EBEFOR (2015) 3 NWLR (Pt. 1447) Page 549 at 574 paragraphs F-H. In the instant case the Appellants were acting within their statutory powers of arrest it cannot be said to have breach the fundamental right of the Respondent as he was granted bail the same date he was arrested, his inability to fulfill the liberal bail conditions granted in Exhibit EFCC 2 cannot be said to be the fault of the Appellants. I agree with the Appellants that no breach was found to have occurred and that the issue of damages cannot arise. The legal principle is damnum sine injuria, id est, where there is no breach or wrong there can be no damages. – Per M. S. Hassan, JCA

LAW ENFROCEMENT AGENCY – DUTY OF LAW ENFORCEMENT AGENCIES WHEN THEY RECEIVE REPORTS OF CRIMES

The law clearly supports a person who had good reasons to make a report to the law enforcement agency about an offence as long as he leaves them to use their own discretion to investigate, arrest, interrogate, search and detain any suspect. – Per M. S. Hassan, JCA

WITHDRAWAL OF PETITIONS – WHETHER WITHRAWAL OF PETITIONS/COMPLAINTS PUTS A STOP TO THE WORK OF THE POLICE

As rightly pointed out by the Appellants’ Counsel the fact that the petition was later withdrawn does not invalidate the investigation and findings of the Appellants and the Appellants are not bound by the letter of withdrawal as they can still go ahead and file charges against the suspects if they so wish. The position of the Appellants’ Counsel was fortified by the decision of this Court in the case of MR. TAJUDEEN SHONEYE V. THE STATE (2015) LPELR-25862 (CA) Page 9, paragraphs A-B where per NDUKWE-ANYANWU, JCA Said ‘’Once someone or a victim reports a crime to the police, his task ends there. The victim has no right to withdraw. A crime has been committed, the victim’s family can no longer withdraw their complaint.’’ – Per M. S. Hassan,JCA

FREEDOM OF MOVEMENT – RIGHT TO FREEDOM OF MOVEMENT IS NOT ABSOLUTE

I must mention that the right to freedom of movement as guaranteed under the constitution has never been absolute. There exists exceptions, and from the nature of this matter, it is one that the facts did not deviate from the guarantees enshrined in the constitution. – Per M. B. Idris, JCA

ECOWAS CITIZEN – DUTIES AND RIGHTS OF AN ECOWAS CITIZEN IN A MEMBER STATE

There is no doubt that the Respondent herein is an ECOWAS citizen. Being an ECOWAS National only meant that he did not require a visa to enter into Nigeria. However, he is required to register with the Nigerian Immigration Service (NIS). This registration is satisfied by obtaining the ECOWAS Residence Card. It must be mentioned that the ECOWAS treaty only allows free entry into any ECOWAS member state and stay for 90 days. There is no doubt that during this period an ECOWAS national can be employed in Nigeria. The Residence card is only valid for 2 years, and has to be renewed upon expiration. The Respondent as Applicant before the trial court had the duty to prove beyond doubt the existence of these documents in line with the dictates of the law. – Per M. B. Idris, JCA

CASES CITED

NIL

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Fundamental Rights (Enforcement Procedure Rules) 2009
3. African Charter on Human and Peoples’ Rights
4. Economic and Financial Crimes Commission Act
5. Court of Appeal Rules

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