Legalpedia Citation: (2024-03) Legalpedia 47463 (CA)

In the Court of Appeal

Holden At KANO

Thu Mar 14, 2024

Suit Number: CA/KN/159/2021

CORAM

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

PARTIES

MUHAMMAD SANI

APPELLANTS

1. ATTORNEY GENERAL OF KANO STATE
2. COMMISSIONER OF POLICE, KANO STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant, a cattle herder, was arrested in 2001 on suspicion of armed robbery. A First Information Report (FIR) was filed, and he was remanded in prison custody by a Chief Magistrates Court. Surprisingly, he remained in custody for the next ten years without being formally arraigned before a Court of competent jurisdiction. It wasn’t until 12th October, 2011, during a prison visit by the Chief Judge of the High Court of Kano State, that the order for the Appellant’s release on bail was issued.

Subsequently, on 30th December 2011, an application was filed to enforce the Appellant’s fundamental rights. However, the trial court dismissed the application, considering it an academic issue. Dissatisfied with this decision, the Appellant has filed the present appeal.

HELD

Appeal allowed

ISSUES

Whether the lower Court was right when his lordship struck out the appellant’s case stating that the parties have abandoned the case and the case was academic and refused to assume jurisdiction to resolve the issues raised by the appellant?

RATIONES DECIDENDI

FUNDAMENTAL RIGHTS – WHEN FUNDAMENTAL RIGHTS ACTONS CAN BE INSTITUTED – THE DUTY OF LAW ENFORCEMENT AGENTS TO ENSURE THE PROTECTION OF FUNDAMENTAL RIGHTS OF THE CITIZENS – CONDUCT OF COURTS WHEN DEALING WITH FUNDAMENTAL RIGHT MATTERS

By the provisions of Section 46 (1) of the 1999 Constitution, as amended, any person who alleges that any of the provisions of Chapter IV of the Constitution has been contravened [past], is being [present], or is likely to be [future] may apply to a High Court for redress. See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, FRN vs. IFEGWU (2003) 8 MJSC 36 at 57 and UZOUKWU vs. EZEONU II(1991) 6 NWLR (PT 200) 708 at 751. So, even if the Appellant had been released on bail before he commenced his action, it does not affect the propriety of the action since by Section 46 (1) of the Constitution, as amended, the application for enforcement can be brought where it is alleged that there has already been a contravention. It is not only where the contravention is continuing that the application can be made.

Undoubtedly, by Section 4 of the Police Act, the Police, as a law enforcement agency, have the statutory power to investigate, arrest, interrogate, search, and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 536. There is, however, a caveat, a qualification, and it is that the power must not be misused or abused. The power must be exercised in accordance with the law. See OBLA vs. EFCC (2017) LPELR (45340) 1 at 15. The crux of this matter is not on the powers of the 2nd Respondent to arrest and detain on reasonable suspicion of the commission of a crime or the prosecutorial powers of the 1st Respondent; rather, what we are required to determine is whether in the diacritical circumstances of this case the fundamental rights of the Appellant were infringed by the actions of the Respondents.

Nigeria has adopted the precepts of constitutionalism; the rule of law is, therefore, the guidepost for all authorities, persons, and institutions under our constitutional democracy. Law enforcement agents and agencies who/which interact with the ordinary citizens on a daily basis have the ineffable and sacrosanct duty to ensure the protection of the rights of the citizens as guaranteed by law. Law enforcement agents and agencies must, therefore, endeavor to observe, enforce, and secure the observance of lex retro juris (the law behind the law). This can only be done by a moral commitment to the laws that they are called upon to administer and/or enforce. Without such a commitment, the in aeternum question: quis custodit custodes (who will guard the guard) and who will police the police persists. See generally: The Principles of Fair Hearing and the Powers of Arrests and Sanctions by Law Enforcement Agencies in Nigeria (2009) 2 NJPL 258. In the discharge of their duties, law enforcement agents and agencies must necessarily keep within the prescribed detention timelines and scrupulously observe procedural safeguards required of them in the discharge of their statutory responsibility in order to maintain the delicate balance between law enforcement on the one hand and according due regard and recognition to fundamental rights on the other hand. See ODOGU vs. A-G FEDERATION (1996) 6 NWLR (PT 456) 508. Any failure or neglect on their part to observe such timelines and safeguards may constitute an infraction of rights guaranteed and protected by the Constitution which is the supreme law of the land: the grundnorm from which other laws derive their validity. See PDP vs. INEC (2001) WRN 1 at 31 and A-G ABIA vs. A-G FEDERATION (2002) 17 WRN 1 at 180.

Fundamental rights are rights that stand above the ordinary laws of the land. They are, in fact, antecedent to the political society itself. Fundamental rights, which have been described as the minimum living standard for civilized humanity, have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, 1215, at Runnymead, Surrey, England. They are rights that embrace and encompass the concepts of liberty and justice. The fundamental rights have been enshrined in the Constitution so that the rights could be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME-KUTI vs. ATTORNEY-GENERAL OF THE FEDERATION (1985) 7 NWLR (PT 6) 211 at 229-231. It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights. See UZOUKWU vs. EZEONU II (supra) at 761.

The question of the infringement of fundamental rights is largely a question of fact and does not depend so much on the dexterous submissions from the forensic arsenal of counsel on the law. So, it is the facts of the matter as disclosed in the processes filed that are examined, analyzed, and evaluated to see if the fundamental rights of the Appellant were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The law remains that he who asserts must prove, so the Appellant had the onus of proving by credible affidavit evidence that he was detained beyond the constitutional timelines. See ONAH vs. OKENWA (supra) at 535-536. – Per U. A. Ogakwu, JCA

RIGHT OF FREEDOM – BURDEN OF PROOF IN AN ACTION FOR BREACH OF RIGHT TO FREEDOM

It is trite law that in an action for unlawful arrest and detention in breach of a person’s constitutional right of freedom, the onus is on the Respondent to prove that the arrest and detention was justifiable on reasonable grounds. See SKYPOWER AIRWAYS LIMITED vs. OLIMA (2005) 18 NWLR (PT 957) 224 at 232. – Per U. A. Ogakwu, JCA

PERSONAL LIBERTY – WHETHER THE RIGHT TO PERSONAL LIBERTY IS AN ABSOLUTE RIGHT – CONDUCT OF SECURITY AGENCIES WHEN DEPRIVING RIGHTS TO PERSONAL LIBERTY WITHIN THE CONSTITUTIONALLY PERMITTED BRACKETS – THE IMPORTANCE OF FUNDAMENTAL RIGHTS

It has to be noted that the right to personal liberty enshrined in Section 35 of the Constitution is not an absolute right. By Section 35 (1)(c) of the Constitution, a person can be deprived of his liberty upon reasonable suspicion of his having committed an offence. Where there is such a deprivation of liberty, such a person arrested or detained shall be brought to Court within a reasonable time, within the meaning of Section 35 (5)(a) of the Constitution, that is, one day where there is a Court of competent jurisdiction within a forty-kilometre (40km) radius of the place of detention.

By the above provisions, the Appellant, upon the deprivation of his right to personal liberty upon reasonable suspicion of his having committed a crime as sanctioned by Section 35 (1)(c) of the 1999 Constitution, was to be brought to a Court of competent jurisdiction within a reasonable time as required by Section 35 (4) of the Constitution. The reasonable time in the circumstances of this case, where there is a Court within a forty-kilometre radius of the place of arrest or detention, is one day as stipulated by Section 35 (5)(a) of the 1999 Constitution; or, at the most, two days as provided in Section 35 (5)(b). The stipulation as to such a longer period as in the circumstances may be considered by the Court to be reasonable is inapplicable in the peculiar circumstances of this matter. See ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 23-24.

Without a doubt, detention without trial for ten (10) years is a gross violation of the constitutionally guaranteed fundamental rights provisions. In the words of Ogunwumiju, JCA (now JSC) in OKAFOR vs. NTOKA (2017) LPELR (42794) 1 at 20-21:

“The importance of Fundamental Rights to the citizenry cannot be over-emphasized. They are rights that are not only basic to humans, they form the bedrock for a free society devoid of forces of unbridled aggression, oppression, repression, authoritarianism. They have been entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) due to their sacrosanct nature and importance. When applicants approach the Courts for the enforcement of these rights, the Court must within reasonable limits do all that is necessary to ensure that these rights are protected.” – Per U. A. Ogakwu, JCA

FUNDAMENTAL RIGHTS – WHEN AN APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS CAN BE BROUGHT

Let me iterate that an application for the enforcement of fundamental rights can be brought where there has been an evisceration of the applicant’s fundamental rights. As the facts show, the Appellant had been released on bail on the order of the Honourable Chief Judge of the High Court of Kano State after ten (10) years in custody without trial before he filed his action. It is therefore choppy sense and logic to argue that he had lost interest in the matter because he had been released. No, it cannot be. He had already been released before he commenced the action for the enforcement of his rights that had been infringed.

In any event, the Fundamental Rights (Enforcement Procedure) Rules recognize and provide for public sector litigation, where an application for the enforcement of fundamental rights can be brought on behalf of an applicant. So, quite apart from there being no prescriptive order made by the lower Court, by the reigning adjectival law, the Appellant need not attend Court. – Per U. A. Ogakwu, JCA

COURT OF APPEAL – POWERS OF THE COURT OF APPEAL TO MAKE ORDERS NECESSARY FOR THE PROPER DETERMINATION OF AN APPEAL – CONDITIONS FOR THE COURT OF APPEAL TO EXERCISE ITS APPELLATE POWER

Section 15 of the Court of Appeal Act…

This provision vests in the Court of Appeal a general power: “to make any order necessary for determining the real question in controversy in the appeal.” The purpose of the provision seems to be to obviate delayed justice. By virtue of the provision, this Court has the power to make any order to ensure the determination on the merits of the real question in controversy between the parties. It undoubtedly gives the Court full jurisdiction over the whole proceedings of the lower Court as if the proceedings had been instituted in this Court as a Court of first instance; and so this Court may rehear the case in whole or in part, or may remit it to the Court below for the purpose of such rehearing. These general powers vested in the Court of Appeal were designed to enable the Court to clear whatever technical mistakes or obstacles which may be in the way of a fair determination of the appeal on its merit or of determining the real question in controversy in the appeal. See ADAMS vs. UMAR (2008) LPELR (3591) 1 at 22.

For the provision to apply, the following conditions must exist:

(a) The lower Court or trial Court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it;

(b) That the real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;

(c) That all necessary materials must be available to the Court for consideration;

(d) That the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and

(e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.

See generally EZEIGWE vs. NWAWULU (2010) LPELR (1201) 1 at 48-50, AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227, AGBAKOBA vs. INEC (2008) 18 NWLR (PT 1119) 489, INAKOJU vs. ADELEKE (2007) 4 NWLR (PT 1025) 423, and DANGOMBE vs. LASSANJANG (2016) LPELR (40791) 1 at 24-27. – Per U. A. Ogakwu, JCA

FUNDAMENTAL RIGHTS – WHETHER THE PROCEDURE FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS MADE PROVISIONS FOR THE AWARD OF SPECIAL, GENERAL, AND EXEMPLARY DAMAGES – CONDUCT OF COURTS WHEN A BREACH OF FUNDAMENTAL RIGHT IS ESTABLISHED

The specialized procedure for the enforcement of fundamental rights does not seem to have made provision for the award of damages expressed as specific or special damages, general and exemplary damages, and loss of earnings. Such awards seem rightly to belong to the realm of civil actions in tort brought under the general jurisdiction of the Court and not within the specialized jurisdiction conferred upon the High Court under Section 46 of the 1999 Constitution, as amended. See RANSOME-KUTI vs. A-G FEDERATION (supra). The Constitution provides in Section 35 (6) that any person who is unlawfully arrested or detained shall be entitled to compensation and a public apology. It is predicated on this provision that the Appellant can be afforded a salve for the violation of his fundamental rights.

The personal liberty of the individual is a commodity of inherently high value, and the deprivation is not to be unwittingly trivialized: ODOGU vs. A-G FEDERATION (1996) LPELR (2228) 1 at 15-16. The undisputed facts disclose that the Appellant was in unlawful detention for ten (10) years. In JIM-JAJA vs. C. O. P. RIVERS STATE (2012) LPELR (20621) 1 at 14-15, the apex Court held as follows:

“A community reading of Section 35(6) and 46(2) of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By Section 35 and 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents, damages in form of compensation and even apology should have followed.

In my view and with profound respect to their Lordships, the Justices of Appeal erred when, having determined that the respondents violated the fundamental right of the appellant, they declined to award damages because none was claimed. I have demonstrated that the appellant claimed N2 million as damages and even if the appellant did not so claim, he is entitled to compensation on proof of violation of his right by the respondent pursuant to S. 35(6) of the Constitution.

Having rightly held that the appellant’s fundamental right was violated by the Respondents, the Court below was wrong to have denied him damages by relegating him to the status of a panhandler approaching the Court for a handout.

In conclusion, I allow the appeal, and pursuant to S.22 of the Supreme Court Act and Order 8 r.12 of the Supreme Court Rules, I order the Respondents, jointly and severally, to pay to the appellant the sum of N2 million as damages/compensation for a violation of his fundamental right in arresting and detaining him unlawfully.”

See also OGUJI vs. THE DIVISIONAL POLICE OFFICER C/O OJO POLICE STATION, OJO, LAGOS STATE (2021) LPELR (56044) 1 at 34-36 and KEDCO vs. SINTILMAWA (2022) LPELR (57427) 1 at 52-53. – Per U. A. Ogakwu, JCA

FUNDAMENTAL RIGHTS – CONDUCT OF COURTS WHERE BREACH OF FUNDAMENTAL RIGHT IS ESTABLISHED

In the circumstances and based on the settled state of the law, the Appellant is entitled to compensation by way of damages for the evisceration of his fundamental rights. The Constitution enjoins that compensation by way of damages be awarded once the evisceration of the fundamental rights is established. – Per U. A. Ogakwu, JCA

HOLDING CHARGE – WHETHER A HOLDING CHARGE IS KNOWN TO LAW

The Appellant was arrested and arraigned before the Chief Magistrate Court on a First Information Report (FIR) alleging armed robbery. For ten years, the Appellant has been in custody on the orders of a Court that is “holding charge.” This Court had in JIMOH V. C.O.P. (2004) LPELR – 11262 (CA) per Onnoghen, JCA (as he then was) held as follows:

“In the case of Enwere v. C.O.P. (1993) 6 NWLR (Pt. 229) 333 at 341, this Court held that a “holding charge” is unknown to Nigerian Law and that an accused person detained thereunder is entitled to be released on bail within a reasonable time before trial.” – Per U. A. Musale, JCA

FUNDAMENTAL RIGHT – WHERE IT IS ADJUDGED THAT FUNDAMENTAL RIGHTS HAVE BEEN BREACHED

The law is trite, that once it is adjudged that the fundamental rights of an Applicant have been violated, damages are inferred and activated, as the Applicant is entitled to compensation in damages. The quantum of damages awardable is always at the discretion of the trial Court, depending on the gravity of the violation and the claims/parties affected. See the case of IWUNUNNE V. EGBUCHULEM & ORS (2016) LPELR – 40515 (CA), where it was held:

“On the allegation that the damages were not proved by credible evidence and that the person who, in fact, caused the damages must be established, Appellants’ Counsel appeared to have forgotten that general damages need not be specifically pleaded or proved, as the same tends to flow from the act/conduct of the defendant complained against. And in fundamental rights matters, damages automatically accrue, once there is evidence of breach or violation of the Applicant’s fundamental right(s). See Section 35(6) of the 1999 Constitution and the case of Ozide & Ors Vs Ewuzie & Ors (2015) LPELR-24482 CA.”

In IGWEOKOLO V. AKPOYIBO & ORS (2017) LPELR – 41882 CA, my Lord, Ikyegh, JCA held that once violation of a fundamental right is proved, the award of meaningful damages in the form of compensation must automatically follow whether asked for or not by the Claimant. – Per U. A. Musale, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. African Charter on Human and Peoples Rights (RATIFICATION AND ENFORCEMENT ACT) Cap 10 Laws of the FRN 1999
3. Court of Appeal Act
4. Police Regulation
5. Fundamental Rights (Enforcement Procedure) Rules 2009
6. Police Act
7. Court of Appeal Rules, 2021
   

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