CORAM

---

HUSSEIN MUKHTAR

JOSEPH SHAGBAOR IKYEGH JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL JUSTICE, COURT OF APPEAL

JAMILU YAMMAMA TUKUR JUSTICE, COURT OF APPEAL

---

PARTIES

---

1.  NIGERIAN COPYRIGHT COMMISSION2.  DIRECTOR GENERAL, NIGERIAN COPYRIGHT COMMISSION3. MR. AMODU ALEWU AUGUSTINE (ASSISTANT DIRECTOR NCC)4. MR. HENRY NJOKU5. INSPECTOR GENERAL OF POLICE  APPELLANTS

---

1. MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE2. MR. MAYO AYILARAN3. MR. ORITS WILIKI4. MR. LOUIS BASSEY UDOH5. MR. HALIM MOHAMMED  RESPONDENTS

---

AREA(S) OF LAW

---

ACTION, APPEAL, CIVIL LAW AND PROCEDURE, COPYRIGHT, CONSTITUTIONAL LAW, CONSTRUCTION OF STATUTES, COURT, INTELLECTUAL PROPERTY LAW, JUDGEMENT AND ORDERS, PRACTICE AND PROCEDURE, WORDS AND PHRASES

 

---

SUMMARY OF FACTS

The Respondents as Applicants applied to the Federal High Court Lagos Judicial Division for the enforcement of their fundamental rights jointly against the Appellants. The Respondents claimed the following reliefs among other reliefs:

1. A Declaration that the continued threats of detention, harassment and intimidation by the Appellants is unlawful, unwarranted and in breach of their fundamental rights aforesaid.

2. An Order that the 2nd to 5th Respondents shall not be arrested or further arrested or detained by the Respondents or any of its officers or agents unless it is for the purposes of taking them to court within a reasonable time and unless a proper and complete investigation has been carried out and the Respondents are reasonably suspected to be guilty of a criminal offence.

 

The parties filed and exchanged affidavit and counter affidavit evidence. On conclusion of hearing, the trial Court in its ruling delivered on 25/7/2011 found for the Respondents on four out of five of their claims against the Appellants. Dissatisfied and aggrieved with the decision of the trial Court, the Appellants lodged the instant appeal predicated on 9 grounds of appeal as contained in the Notice of Appeal filed on 8/9/2011.

 

---

HELD

---

Appeal allowed.

 

---

ISSUES

---

Whether by virtue of the provisions of Section 39 (1) and 17 of the Copyright Act 2004 which prescribes the approval of the Nigeria Communication Commission for operation by Collecting Society, the 1st Respondent, the Musical Society of Nigeria Ltd/GTE, has the locus standi to institute the proceedings before the court below?

Whether the court below was not right in concluding that in the present circumstances owners, assignees and exclusive licensee such as the 1st Respondent can administer their copyright irrespective of the provisions of Section 39 of the Copyright Act 2004?

Whether the arrest, detention of the 2nd and 5th Respondents and seizure of 1st Respondent’s properties constitute breaches of their Fundamental Rights?

Whether the judgment and award of compensation by the Court below was justifiable in the circumstances of this case?”

 

---

RATIONES DECIDENDI

---

ISSUES FOR DETERMINATION– WHETHER A COURT CAN RAISE AN ISSUE SUO MOTU WITHOUT CALLING ON PARTIES TO ADDRESS IT

---

 

“Now, the law seems well settled that a court of law while retaining the power to raise issue suo motu, if need be, has no power to proceed to resolving such issue raised suo motu without calling on the parties to address it as that would clearly amount to an infringement of the right to fair hearing of the parties as guaranteed by Section 36 (1) of the Constitution of Nigeria 1999 (as amended.) The result of such an infringement is not far to seek. It would render such proceedings or decisions so affected a nullity. See Chief Harold Sodipo V. Emminkainen OY (1986) 1 NWLR (Pt. 8) 547, where the Supreme Court per Obaseki JSC, had succinctly reiterated this position of the law inter alia thus:

“The law is well settled that when a learned trial judge raises an issue suo motu, he must invite addresses from counsel for both sides before pronouncing on the issue. In such circumstances, the addresses delivered by counsel displace the previous addresses as final addresses. This can only be so where the issue raised suo motu is a genuine independent issue which is not in the contemplation of both parties or their counsel and not a sham issue raised with a view to securing an illegal extension of time outside the statutory period in which to deliver his judgment”

And in Dalek Nigeria Ltd. V. OMPADEC (2007) 7 NWLR (Pt. 1033) 402, the Supreme Court per Onnoghen JSC, (as he then was, Now CIN) had opined inter alia thus:

“It is settled law that where a court raises an issue, suo motu, it must afford the parties or their counsel the opportunity of addressing the court on the issue so raised so as to ensure that the rules of fair hearings are adhered to for the purpose of doing justice to the parties.”

See also Ugo V. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Kotoye V. CBN & Ors. (1989) 1 NWLR (Pt.98) 419; Odiase V. Agho (1972) All NLR (Pt. 1) 170; Osasona V. Oba Ajayi & Ors. (2004) 4 NWLR (Pt. 894) 527; Malcom Olumolu V. Islam IC Trust of Nigeria (1996) 2 NWLR (Pt. 430)253; African Continental Seaways Ltd. V. Dredging, Roads and General Works Ltd. (1977) 5SC 235; Spasco Vehicle & Plant Hire Co. Ltd V. Alraine (Nig.) Ltd. (1995) 8 NWLR (Pt. 416) 665.” – Per GEORGEWILL, J.C.A.

 

---

FINDINGS OF COURT- WHETHER IT IS A DUTY OF COURT TO MAKE OUT A CASE FOR THE PARTIES OUTSIDE THE EVIDENCE PRESENTED BY PARTIES

---

“In law therefore, it is never the duty of the court to make out a case for the parties outside the evidence of the parties and thus all findings made outside the evidence and cases as presented by the parties are liable to be set aside as being extraneous to the issues in contention between the parties. See Orji V. D.M.T (Nig) Ltd (2009) 18 NWLR (Pt. 1173) 467 @ p. 505. See also Ogundele V. Agiri (2009) 18 NWLR (Pt. 1173) 219 @ p. 249; Skye Bank Pic V. Akinpelu (2010) 9 NWLR (Pt. 1198) 185; Longe V. F.B.N Pic (2010) 6 NWLR (Pt. 1189) 1 @p. 37.” – Per GEORGEWILL, J.C.A.

 

---

EVALUATION OF EVIDENCE- WHETHER A TRIAL COURT CAN EMBARK UPON AN INQUIRY OR INQUISITION INTO A CASE OUTSIDE CASES AS PRESENTED BY PARTIES

---

“Now, while a court of law has the plenitude of power to evaluate, examine and critically appraise evidence, oral or documentary, it must do so within the ambit of the case as presented by the parties and for documents as amply demonstrated before it in evidence. In other words, a trial court cannot on its own embark upon an inquiry or is it inquisition into the case outside the cases as presented by the parties in the recess of its Chambers to make findings of facts on which issues were not joined by the parties in their affidavit evidence. In my view, such a duty is clearly outside the scope of evaluation of evidence and consideration of facts in relation to applicable laws in a given case. It is true a trial is not an investigation and conversely investigation is not the function of the court. A court has no duty doing cloistered justice by making an enquiry into the case outside what was demonstrated in the court by the parties in the recess of his Chamber. See Duriminiya V. COP. (1961) NNLR 70 @ p. 74. See also Saude V Abdullahi (1999) 5 NWLR (Pt. 601) 94 @p. 99; FGN V. AIC Ltd. (2006) 4 NWLR (Pt. 970) 1; Ivienagbor V. Bazuaye (1999) 9 NWLR (Pt. 620) 552; Owe V. Oshinbanjo (1965) 1 All NLR 72; Alhaji Onibudo V. Alhaji Akibu (1982) 7 SC 60; Jalingo V. Nyame (1992) 3 NWLR (PL 231) 538; Ugochukwu V. Co – Operative Bank Ltd. (1996) 7 SCNJ 22; The Queen V. Wilcox (1961) SCNLR 296; Adesoye V. Gardner (1977) NNLR 136; Senator Ibikunle Amosun V. INEC & ORS. (2010) LPELR 4923 CA@p. 172.” – Per GEORGEWILL, J.C.A.

 

---

RIGHT TO FAIR HEARING- EFFECT OF A JUDGEMENT REACHED IN BREACH OF THE RIGHT TO FAIR HEARING

---

“In law any proceedings of a court and the resultant judgement reached in breach of the right to fair hearing as constitutionally guaranteed to the citizens of this Country in the determination of their civil rights and obligations before a court of law is a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. 92010) All FWLR (Pt. 524) 56; Acton Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicila Service Commission of Cross River State % Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.” – Per GEORGEWILL, J.C.A.

 

---

REPLY TO RESPONDENT’S NOTICE- CONSEQUENCE OF FAILING TO FILE A REPLY TO A RESPONDENT’S NOTICE

---

“In law, where an Appellant duly served with a Respondent’s Notice refuses or fails or neglects to join issue with the Respondent by way of filing an Appellant’s Reply thereto, any fresh or new issue raised not being covered by the issues canvassed in the Appellant’s brief may be deemed as having been conceded to by the Appellant in a manner akin to the effect of failure to file an Appellant’s Reply brief to new issues raised in a Respondent’s brief or in his Notice of Preliminary objection. See Order 19 Rule 5(1) Court of Appeal Rules 2016. See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.” – Per GEORGEWILL, J.C.A.

 

---

REPLY TO RESPONDENT’S NOTICE- INSTANCES WHERE THERE WOULD BE NO NEED TO FILE AN APPELLANT’S REPLY BRIEF

---

“My lords, in law where a seemingly fresh issue raised in the Respondent’s Notice is one touching on an issue already canvassed in the Appellants’ brief there is no need for the filing of an Appellant’s Reply brief. In such circumstances, the inference that the Appellant has conceded to the fresh issue raised in the Respondent’s brief or Notice does not arise.” – Per GEORGEWILL, J.C.A.

 

---

REPLY TO RESPONDENT’S NOTICE- WHETHER NON FILING OF APPELLANT’S REPLY TO FRESH ISSUE RAISED IN A RESPONDENT’S NOTICE CONFERS MERIT ON SUCH FRESH ISSUE

---

“At any rate, I think I should also point it out at once that the mere non filing of Appellant’s Reply to new or fresh issue raised in a Respondent’s Notice alone does not ipso facto confer merit on such new issues, which will still be considered on its own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Pic. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed.(2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Pic (2014) 9 NWLR (Pt. 1411) 121.” – Per GEORGEWILL, J.C.A.

 

---

RESPONDENT’S NOTICE- PURPOSE OF RESPONDENT’S NOTICE

---

“Now, the purpose of a Respondent’s Notice is that the judgment or decision appealed against should be affirmed on grounds other than those relied upon by the court below in reaching its decision appealed against. It is not a carte blank or an open cheque on which a Respondent could raise every contentions as he so wishes since in law the grounds so relied upon by the Respondent must be apparent on the face of the printed record of appeal, having regards to the facts of the case, the applicable law and the judgment appealed against. See Order 9 Rule 2, Court of Appeal Rules 2016.See also Gwede V. INEC & Ors. (2015) All FWLR (Pt. 767) 615 @ p. 644, where Onnoghen, JSC,(as he then was now CJN) had admirably captured the real essence of a Respondent’s Notice when he stated thus:

“The purposes/subject/intention of a Respondent’s Notice is that the judgment of the lower court be confirmed on grounds other than those relied upon by that court in reaching the decision on appeal. The grounds relied upon in the Respondent’s Notice must be apparent on the record having regards to the facts of the case, the law applicable thereto and the judgment on appeal. A Respondent’s Notice is therefore, not an open cheque….” – Per GEORGEWILL, J.C.A.

 

---

RESPONDENT’S NOTICE-RESPONDENT’S NOTICE NOT BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE

---

“A Respondent’s Notice not based on the facts and circumstances of the case and thus not apparent on the face of the record is one which is not only incompetent but programmed as it were by such a Respondent to fail from the onset. See Gwede V. INEC (Supra) @p. 644.”  – Per GEORGEWILL, J.C.A.

 

---

LOCUS STANDI- HOW TO DETERMINE WHETHER A CLAIMANT HAS LOCUS STANDI

---

“In deciding whether a Claimant or an Applicant has the requisite locus standi is a function of whether the claim he makes has disclosed his sufficient interest in the subject matter and to determine this it is the averments of the Claimant or depositions of the Applicant that the court has to look at and critically examine to see if it discloses his interest sufficient enough to clothe him with the requisite locus standi to sue.” – Per GEORGEWILL, J.C.A.

 

---

CAUSE OF ACTION-MEANING OF CAUSE OF ACTION

---

“What then is a cause of action in law? Simply put a cause of action refers to those facts which show or give life to a right of action. It is the factual situation which gives a person a right of action.” – Per GEORGEWILL, J.C.A.

 

---

CLAIM – WHEN WOULD A CLAIM BE TERMINATED IN LIMINE

---

“It is only where the claim of the Claimant or an Applicant does not disclose his sufficient interest in the subject matter that it must be terminated in limine by the court if so moved by the Defendant or Respondent. See Thomas V. Olufosoye (1986) 1 NSCC 321. See also AG. Federation V. AG. Abia State & Ors. ( 2001) FWLR (Pt. 64) 202 @p. 264; Ndamzu V. Namson Fishing Enterprises (2000) FWLR (Pt. 7) 1064 @p. 1072.” – Per GEORGEWILL, J.C.A.

 

---

LOCUS STANDI- MEANING AND ESSENCE OF LOCUS STANDI

---

 LOCUS STANDI- MEANING AND ESSENCE OF LOCUS STANDI

“In law, locus standi denotes the right standing of a person to sue over a wrong allegedly done to him. It is the totality of the right conferred on a person who approaches a court to seek remedy to have the right standing to seek particular remedy. It is for this reason that in law a person without the requisite locus standi, no matter the colossal nature of the injury or damages allegedly done or suffered, cannot sue or have the right standing in a court of law to seek redress over such an alleged injury or damage done in which he has no or cannot show his locus standi to sue. Such a person can simply or safely be described as a meddlesome interloper. See Owundunni V. Regd. Trustees, Celetial Church Of Christ (2009) FWLR (Pt. 9) 1488. See also Ikeja Hotels Pic V. LSBIR. (2005) All FWLR (Pt. 279) 1260; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) All FWLR (Pt.362) 1855; NPA Pic. V. Lotus Plastics Ltd. (2006) All FWLR (Pt. 297) 1023; Taiwo V. Adeboro (2011)All FWLR (Pt. 584) 53; Adesanya V. President, Federal Republic of Nigeria (2001) FWLR (Pt. 46) 859; Amah V. Nwankwo (2008) All FWLR (Pt. 411) 479.” – Per GEORGEWILL, J.C.A.

So crucial and of utmost importance is the issue of locus standi that it has over the years attained the level of a jurisdictional status in the litigation battlefield and thus can be raised at any stage of the proceedings. It can also be raised suo motu by the court, so far as the parties are called upon to address the court on it, to ensure that whilst the door of the hallowed halls of the courts in the land are open to persons with genuine grievances resulting from wrongful acts or omissions of others affecting them to approach the court to seek redress from the temple of justice, that same door would be shut against persons who are mere busy bodies or meddlesome interlopers, without any real or genuine grievance affecting them from inundating the courts with frivolous claims without any foundational or factual basis. See Ikeja Hotels Pic. V. LSBIR (Supra) @ pp. 1274 – 1275. See also Adesanya V. President, Federal Republic of Nigeria (Supra) @ p. 854; Owodunni V. Regd. Trustees, Celestial Church of Christ (Supra) @ p. 1815.” – Per GEORGEWILL, J.C.A.

 

---

COPYRIGHT ACT 2004-PURPOSE OF THE COPYRIGHT ACT 2004

---

Now, the general purpose of the Copyright Act 2004, CAP C28, Laws of the Federation 2004, is as stated in the long title, which describes the Act as an:

“Act to make provisions for the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters.” – Per GEORGEWILL, J.C.A.

 

---

COPYRIGHT ACT 2004-CATEGORIES OF PERSONS WHO CAN SUE UNDER THE PROVISIONS OF THE COPYRIGHT ACT 2004

---

“Having painstakingly read through the above provisions of the Copyright Act 2004, it does appear to me that by virtue of Sections 16, 17 and 39 thereof, the Copyright Act 2004 made provisions for five categories of persons who could sue under and by virtue of the provisions of the Copyright Act 2004. These five categories of persons or bodies include the following, namely: 1: An owner; 2: An Assignee; 3: An Exclusive Licensee; 4: A person carrying on the business of negotiating, granting of licenses, collection and distribution of royalties for not more than fifty owners of copyright in any category of works; and 5: An Association of Copyright Owners, referred to as Collecting Society, which may be formed upon the satisfaction of the conditions provided for under the Act. See MCSN Ltd/Gte V. Adeokin Records Ltd (2007) 13 NWLR (Pt. 1052) 616.” – Per GEORGEWILL, J.C.A.

 

---

INFRINGEMENT OF COPYRIGHT-WHETHER THE APPROVAL OF THE NIGERIAN COPYRIGHT COMISSION IS REQUIRED BY A COLLECTING SOCIETY TO INSTITUTE AN ACTION FOR INFRINGEMENT OF COPYRIGHT

---

So is the approval of the Nigerian Copyright Commission required by a body of persons carrying on the functions of a colleting society to institute an action in court for the enforcement of infringement of copy right and matters incidental thereto? Upon a calm but holistic scrutiny of the above provisions of the Copyright Act and all other relevant provisions of the said Act and regulations made under and pursuant to it, I think so. In my finding the 1st Respondent and its Officers, Staff and or Agent, undoubtedly carrying on the functions of a collecting society required the approval of the 1st Appellant to so operate as a collecting society in Nigeria, failing which their activities thereto are illegal. See Sections 16,17 and 39 of the Copyright Act 2004.

In law therefore, an Association of Copyright Owners, referred to as Collecting Society, which may be formed upon the satisfaction of the conditions provided for under the Act, require by law by virtue of Sections 17 and 39 of the Copyright Act the approval of the Copyright Commission to operate as Collecting Society in the first place, in which capacity only they could sue under the Copy Right Act and therefore, the approval of the Nigeria Copyright Commission is a condition precedent to their operation as Collecting Society and without which they would lack the legal standing to sue under the Copy Right Act 2004, of which the 1st Respondent is undoubtedly a collecting society. See Section 39 of the Copyright Act 2004. See also See Compact Disc Technologies Ltd v. MCSN Ltd/Gte (2010) LPELR (CA).” – Per GEORGEWILL, J.C.A.

 

---

CONSTRUCTION OF STATUTES- WHETHER THE PROVISIONS OF AN ENACTMENT MUST BE GIVEN THEIR ORDINARY GRAMMATICAL MEANING

---

“In construing the provisions of an Enactment it must be constantly borne in mind that the words as used in an Enactment, if they are not ambiguous, must be given their ordinary grammatical meaning to the end that effect is given to the intention of the makers of the law. Thus, once the words are clear, a court of law has to business importing into the Enactment things or meanings not within it or not intended by the law makers.” – Per GEORGEWILL, J.C.A.

 

---

CAUSE OF ACTION- WHETHER A CAUSE OF ACTION CAN ARISE FROM AN ILLEGAL CAUSE OF ACTION

---

“It does appear to me that the 1st Respondent being a Collecting Society, its Officers, Staff and or Agents, require in law by virtue of the combined provisions of Sections 17 and 39 of the Copy Rights Act 2004 the approval of the Nigerian Copyrights Commission to operate in the first place as a Collecting Society and to confer on it the legitimacy that would clothe it with the requisite locus standi to sue. In the circumstances therefore, as the law stands in Sections 17 and 39 of the Copyright Act 2004, in the event of a failure to obtain or lack of such approval by a Collecting Society, its operations are illegal and it will be left without any legal standing, the locus standi, to sue. This is so because, in law out of an illegal cause of action, no cause of action can arise. The Latin maxim goes thus: “Ex turpi causa non oritur action.” Thus no court is obliged in law to give its aid or assist a cause tainted with a crime. See Soyinka V. Oni & Ors (2011) 13 NWLR (Pt. 1264) 294; See also Solanke V. Abed & Anor (1962) WRNLR 92; Kasunmu V. Baba Egbe 14 WACA 444; Nebelung Isensee KG. V. UBA Pic (2012) LPELR – 8028(CA)”. – Per GEORGEWILL, J.C.A.

 

---

CONSTRUCTION OF STATUTES- WHETHER AN ENACTMENT MUST BE READ AND CONSTRUED HOLISTICALLY

---

“An enactment must be read and construed holistically not in isolation.” – Per GEORGEWILL, J.C.A.

 

---

PERVERSE DECISION-WHEN WOULD A DECISION BE SAID TO BE PERVERSE

---

“See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, where it was emphatically pronounced thus:

“A decision is said to be perverse when it is speculative not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate court can interfere with a decision of the trial court that is perverse.”

See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @pp. 1820-1821. )”. – Per GEORGEWILL, J.C.A.

 

---

INFRINGMENT OF FUNDAMENTAL RIGHTS-DUTY ON THE PERSON ALLEGING A BREACH OF HIS FUNDAMENTAL RIGHT

---

“My lords, in determining whether there has been an actual or threatened infringement of any of the fundamental rights guaranteed by the provisions of Chapter IV of the Constitution of Nigeria 1999 as amended, it must be borne in mind that whilst it is the duty on the person alleged to have infringed the fundamental right of the citizen to show justification for such infringement, the primary duty is on the person alleging a breach of his fundamental right to place before the court such cogent and sufficient materials to establish the alleged infringement before the duty to justify the proved infringement would shift unto the other party. In other words, it not merely enough to allege an infringement of fundamental right without any proof thereof and then fold his hand to watch and see how the other party justifies an infringement that has not even been established since in law the rights as guaranteed under the Constitution of Nigeria 1999 as amended under Chapter IV thereof as fundamental rights, though sacrosanct, are not absolute. See Section 35(l)(c) of the Constitution of Nigeria 1999 as amended. See also Fajemirokun V. CIJ (Nig.) Ltd (2002) 10 NWLR (Pt. 774) 95 @@. 110; Ekwenugo V. FRN (Supra) @p. 185; Skypower Airways Limited V. Olima (2008) 18 NWLR (Pt. 957) 224 @p. 255; COP Ondo State V. Oboio (1989) 5 NWLR (Pt. 120) 130 @pp. 137-138.” – Per GEORGEWILL, J.C.A.

 

---

BREACH OF FUNDAMENTAL RIGHTS- WHEN WOULD AN ARREST AND DETENTION BE SAID TO BE UNLAWFUL

---

“In law, an arrest and detention will be illegal and or unlawful if done against the requirements of the rule of law and in breach of procedural guarantees in the relevant and applicable laws. I had cause to examine and pronounce on what in law would amount to unlawful arrest and detention in Emonena & Anor V. IGP & Ors. (2016) LPELER – 41489(CA) @ p. 19, I reiterated, which still holds true to me, inter alia thus:

“In law an arrest and detention is said to be unlawful when it is done against the requirements of the rule of law in breach of the right of the citizen to liberty and any person responsible for putting he law in motion leading to such an arrest would…be liable once it is shown that it was done…without reasonable cause..” – Per GEORGEWILL, J.C.A.

 

---

RIGHT TO PERSONAL LIBERTY- LAWFUL DEGORATION FROM THE RIGHT TO PERSONAL LIBERTY

---

“It is trite that no citizen is immune from being investigated for criminal offences alleged against them. The right to personal liberty is not absolute. It is principally for this reason, in my view, more than anything else that the Constitution of Nigeria 1999 as amended while guaranteeing the right to personal liberty of the citizen also clearly provided for lawful derogation there from upon reasonable suspicion of the person having committed a criminal offence. See Ekwenugo V.FRN (Supra) @ p. 171. See also Ude V. FRN (2001) 5 NWLR (Pi. 706) 312.

The law is now well settled that reasonable suspicion is not and cannot be equated with prima facie proof of guilt before a person can be arrested for the purposes of his being investigated for alleged commission of a criminal offence. In other words, an investigating authority need not establish a prima facie case before a person can be arrested once there appears to the investigating authority a reasonable suspicion of his having committed a criminal offence. An arrest in such circumstances is justified by law and thus cannot be regarded as unlawful or unconstitutional. See Section 35 (l)(c) of the Constitution of Nigeria 1999 as amended. See also Mcadle V. Egan (1933) 156 TLR 412 where it was stated so poignantly as to what would constitute reasonable suspicion inter alia thus:

“Once there is what appears to be a reasonable suspicion against a particular individual, the Police Officer is not bound……to fold his hand in order to make further inquiries if all that is involved is to make assurance double sure…..”

In Ekwenugo V. FRN (supra) @ p. 185, Fabiyi JCA (as he then was but later JSC) puts this issue was so succinctly inter alia thus:

“No citizen’s freedom or liberty is absolute. A citizen’s right of liberty may be impaired temporarily in order to prevent him from committing an offence or if there is reasonable suspicion that he has committed an offence”

It is my view therefore, the overriding considerations in matter of this nature is that at all times the two sided interest of the public must be taken into consideration, namely: the protection afforded by the law to the personal liberty of the person on the one hand and the public policy requirement of ensuring the performance of the primary duties of investigating authorities for the prevention, detection and prosecution for crime for the protection of the generality of the citizenry. Generally therefore, facts imputing or constituting crime is outside the purview of fundamental right enforcement. See WAEC V. Adeyanju (2008) 9 NWLR (Pt. 1092) 270 @p. 304.” – Per GEORGEWILL, J.C.A.

 

---

CASES CITED

---

NONE

 

---

STATUTES REFERRED TO

---

Amendment Decrees of 1992

Amendment Decrees of 1999

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Copyright Act Cap 28 Laws of the Federation 2004

Copyright Decree 1988

Court of Appeal Rules 2016.

Criminal Procedure Act

Police Act

 

 

---

CLICK HERE TO READ FULL JUDGMENT