Legalpedia Citation: (2024-03) Legalpedia 35108 (CA)

In the Court of Appeal

Holden At KANO

Thu Mar 14, 2024

Suit Number: CA/KN/158/2021

CORAM

Ugochukwu Anthony Ogakwu Justice

Boloukuromo Moses Ugo Justice

Usman Alhaji Musale Justice

PARTIES

SHUAIBU HARUNA

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 facts that led to this appeal are simple and straightforward; they are not convoluted. The Appellant was incarcerated for twelve years without trial, prompting him to bring an action for the enforcement of his fundamental rights.

The Respondents did not file any process, and after hearing the application, the lower Court ruled that the Appellant’s remand in prison custody without any formal charge was a violation of his fundamental rights. It ordered the unconditional release of the Appellant from prison custody. However, it failed to make any pronouncement on the Appellant’s claims for damages and a public apology.

The Appellant was dissatisfied with that aspect of the lower Court’s decision wherein it failed to make any order for damages and a public apology, leading to his appeal.

HELD

Appeal allowed

ISSUES

1. Whether in the circumstances of this case, the lower Court was right in its refusal to award damages in favour of the Appellant, grant all the reliefs sought by him and resolve the two issues raised by him?

RATIONES DECIDENDI

GROUND OF APPEAL – WHETHER MORE THAN ONE ISSUE CAN BE FORMULATED FROM ONE GROUND OF APPEAL

“It is settled law that while an issue can be distilled from several grounds of appeal, more than one issue cannot be formulated from one ground of appeal (see OKWUAGBALA vs. IKWUEME (2010) LPELR (2538) 1 at 5-6, MFA vs. INOGHA (2014) LPELR (22010) I at 26, and NUP vs. INEC (2021) LPELR (58407) 1 at 8-9). Given that the Respondent has undoubtedly proliferated the issues for determination, the said issues are incompetent and are to be avoided.” – Per U. A. Ogakwu, JCA

APPEAL – WHERE A FINDING OF A LOWER COURT IS UNCHALLENGED

“The Respondents did not appeal against the finding of the lower Court that the fundamental rights of the Appellant were violated. The said finding and decision, not having been challenged on the appeal, remain valid, subsisting, and binding (see DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 7-8, PDP vs. INEC (2023) LPELR (60457) 1 at 39, and HARUNA vs. ABUJA INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2021) LPELR (58383) 1 at 20-21).” – Per U. A. Ogakwu, JCA

COURTS – DUTY OF COURTS TO CONSIDER ALL ISSUES BEFORE THEM

“It is abecedarian law that a Court must give full and dispassionate consideration to all the issues raised and canvassed before it (see C. N. OKPALA & SONS LTD vs. NIGERIAN BREWERIES PLC (2017) LPELR (43826) 1 at 17, BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) 6 SCNJ 508 at 522, and SIFAX NIGERIA LTD vs MIGFO NIG LTD (2018) LPELR (49735) 1 at 56-57).

The pertinent question in the diacritical circumstances of this matter is the effect of the failure by the lower Court to pronounce on the issue of the Appellant’s entitlement to the damages claimed. In ORIANWO vs. OKENE (2002) 14 NWLR (PT 786) 156 at 182-183, Ogundare, JSC asseverated:

“If the issue was vital to the resolution of the dispute between the parties, they would be expected to either order a retrial or resolve the issue themselves upon the evidence available if the question of credibility of witnesses would not arise.”

See also OVUNWO vs. WOKO (2011) LPELR (2841) 1 at 19, ONIFADE vs. OLAYIWOLA (1990) LPELR (2680) 1 at 25, and OGUNDARE vs. ALAO (2013) LPELR (21845) 1 at 39-42.” – Per U. A. Ogakwu, JCA

COURT OF APPEAL – POWERS OF THE COURT OF APPEAL TO MAKE ORDERS NECESSARY TO ENSURE DETERMINATION OF THE ISSUES IN CONTROVERSY – CONDITIONS FOR THE APPLICATION OF SECTION 15 OF THE COURT OF APPEAL ACT

“Section 15 of the Court of Appeal Act provides the Court of Appeal with a general power: ‘to make any order necessary for determining the real question in controversy in the appeal.’ The purpose of this provision seems to be to expedite justice. By virtue of this provision, the Court has the power to make any order to ensure the determination of the merits of the real question in controversy between the parties. It undoubtedly grants the Court full jurisdiction over the entire proceedings of the lower Court as if the proceedings had been initiated in this Court as a Court of first instance; thus, the Court may rehear the case in whole or in part or remit it to the Court below for such rehearing. These general powers vested in the Court of Appeal were designed to enable the Court to clear whatever technical mistakes or obstacles may impede a fair determination of the appeal on its merit or 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) The real issue raised by the claim of the Appellant at the lower Court or trial Court must be capable of being distilled from the grounds of appeal;

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

(d) 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) 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

LAW ENFORCEMENT AGENCIES – DUTY OF THE LAW ENFORCEMENT AGENCIES IN INTERFACING WITH THE LAW

“Law enforcement agents and agencies must endeavor to observe, enforce, and secure the observance of lex retro juris (the law behind the law). The facts of this matter, as borne out by the cold printed records, once again raise the in aeternum question: quis custodiet ipsos custodes (who will guard the guards) and who will police the police. See generally: The Principles of Fair Hearing and the Powers of Arrests and Sanctions by Law Enforcement Agencies in Nigeria (2009) 2 NJPL 258.” – Per U. A. Ogakwu, JCA

PERSONAL LIBERTY – WHETHER AN INDIVIDUAL WHOSE PERSONAL LIBERTY HAS BEEN TRAMPLED IS ENTITLED TO COMPENSATION

“The personal liberty of the individual is a commodity of inherently high value, and its deprivation is not to be unwittingly trivialized (ODOGU vs. A-G FEDERATION (1996) LPELR (2228) 1 at 15-16). By Section 35(6) of the 1999 Constitution as amended, the Appellant is entitled to compensation for the trampling of his right to personal liberty by the Respondents. 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 the 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 Section 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 Section 22 of the Supreme Court Act and Order 8 Rule 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.”

I know to the reasoning of the apex Court. 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

DAMAGES – WHETHER A PERSON WHOSE FUNDAMENTAL RIGHT HAS BEEN ESTABLISED TO BE ABUSED NEEDS TO PROVE DAMAGES

By the constitutional provisions, the Appellant need not prove the damages claimed. 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

PERSONAL LIBERTY – THE IMPORTANCE OF PERSONAL LIBERTY

Personal liberty of an individual is a commodity of an inherently high value see ODOGU V. ATTORNEY GENERAL OF THE FEDERATION & ORS (1996) LPELR-2228 (SC) p. 10. – Per B. M. Ugo, JCA

COMPENSATION – WHETHER A PERSON UNLAWFULLY ARRESTED OR DETAINED IS ENTITLED TO COMPENSATION

Section 35(6) of the 1999 Constitution of this country stating that "any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person" ought to have been activated and compensation, at least, ought to been awarded the appellant, as was done in ODOGU V. ATTORNEY GENERAL of the Federation (supra). – Per B. M. Ugo, JCA

COURTS – CONDUCT OF COURT AFTER ESTABLISHING THAT A PERSON WAS UNLAWFULLY ARRESTED OR DETAINED

“Section 35(6) of the 1999 Constitution provides:

“Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.”

For a person to be entitled to the remedies, he must have been unlawfully arrested or detained. The lower Court found that the appellant was detained for 12 years without trial. Having made this finding, the next step for the lower Court, even when not asked, is to invoke Section 35(6) of the Constitution and award compensation to the appellant. That is a right given to him by the Constitution.” – Per U. A. Musale, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Fundamental Rights (Enforcement Procedure) Rules, 2009
3. Court of Appeal Act
4. Court of Appeal Rules, 2021
   

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