IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT MAITAMA ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE JUDE O. OKEKE
ON WEDNESDAY 27th DAY OF MARCH, 2019
SUIT NO: FCT/HC/CV/2082/2018
MR. EJIKE OKORO …….. APPLICANT.
(1) THE COMMISSIONER OF POLICE FCT COMMAND
(2) INSPECTOR BLESSING (APO RESETTLEMENT POLICE
(3) INSPECTOR AHMED (POLICE AREA COMMAND
SOKOTO CENTRAL DIVISION SOKOTO)
(4) THE AREA COMMANDER (POLICE AREA COMMAND
SOKOTO CENTRAL DIVISION SOKOTO)
By an Originating Summons filed on 13/6/20, Applicants sought:
“1. A declaration of this Honourable Court that the arrest and detention of the Applicant from 12th March 2018 to 23rd March 2018 is unlawful and a breach of the Applicants rights to personal liberty and freedom of movements provided for in Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. AN order of this Honourable Court directing the Respondents jointly and severally to tender unreserved public apology to the Applicant in national dailies for the infringement of his fundamental rights to personal liberty and freedom of movement.
3. An order of the Honourable Court directing the Respondents jointly and severally to pay the Applicant general damages of N20,000,000.00 (Twenty Million Naira) only for the harassment, intimidation, arrest and unlawful detention of the Applicant’s person.
4. An order of this Honourable Court restraining the Respondents or any other person or persons acting on their behalf from further unlawfully harassing, intimidating, arresting and detaining the Applicant.
5. And such further order(s) as the Honourable Court may deem fit to make in the circumstance.”
The application is supported by a 38-paragraph affidavit deposed to by the Applicant and the Written Address of his Counsel.
In opposition, the Respondents, on 14/11/2018 filed a 25-paragraph Counter Affidavit deposed to by Albert Danjuma Esq. along with the Written Address of their Counsel. The Applicant in response filed a 16-paragraph Further Affidavit deposed to by the Applicant and Reply on points of law on 28/12/2018.
At the hearing on 20/2/2019, Counsel for the parties adopted their Written Addresses as their oral submissions for and against the application.
Ruling was then reserved for 27/3/2019.
I have carefully read the averments in the affidavits of the parties and submissions of their Learned Counsel. The cardinal issue for determination is whether or not the Applicant has made out a case to justify a grant of the reliefs sought.
In the affidavit in support, he averred inter alia that he deals in animal hides and skin in Sokoto and Kebbi State though he lives in Abuja with his family.
In 2017 he had a business transaction with one Mr. Abdul for the supply of livestock and upon his delivery he paid him in full. The receipt of payment is attached as Exhibit A.
On 18/10/2017, he was invited by the Police in Sokoto on account of a report made against him in the police station. At the station he was informed that one Alhaji Garba and Abu brought a compliant concerning the goods he purchased from Abdul. That Abdul bought the goods he sold to him on credit from Alhaji Garba and refused to pay.
Although he informed the police that he was not indebted to Abdul in any way and that he did not know Alhaji Garba, he was compelled to sign an undertaking to the effect that he will join Alhaji Garba to search for Abdul and that he would pay whatever money he made from the sale of the goods he bought from Abdul into a particular account. A copy of the undertaking is attached as Exhibit B. His friends Mr. Nwobodo and Chibuike Kamah were allowed to take him on bail.
The next day, he was dragged out of the station and ordered to enter a vehicle brought by the said Alhaji Garba. He obeyed without knowing where he was being taken to until they arrived at the Area Command Office where he was interrogated by a female police officer who refused to hear his own side of the story. When they were done he was taken back to the Giwa Police Station and practically forgotten. He was denied access to anyone for days.
He cried day and night over the thought of what his family might be going through as there was no provision made for them before he was forcefully taken away.
In their Counter Affidavit, it was averred inter alia, on behalf of the Respondents that the facts averred in the affidavit in support of the summons are false. On 8/3/2018, a case of criminal conspiracy, criminal breach of trust and cheating was reported vide a Written Petition by one Alhaji Garba Muazu Gwadabawa against the Applicant. A copy of the Petition is attached as Exhibit A. The latter further made a statement to the Criminal Investigation Department (CID) detailing the case between him and the Applicant. A copy of the statement is attached as Exhibit B.
On 11/6/2017, the Applicant and one Abdul (now at large) presented themselves to the Complainant in llela, Sokoto State as buyers and 80 donkeys were sold to them by the complainant in the sum of N3,600,000.00. The Applicant and Abdul could not pay the money in cash but opted to transfer the money into the Complainant’s bank account through mobile banking in which a bank deposit alert was received instantly and shown to the Applicant to indicate the transaction was successful but the Complainant did not receive a credit alert on his part.
The donkeys were handed over to the Applicant and his cohort and the Complainant instructed them not to leave with the animals until he makes a confirmation of the transaction from his bank the following day being Monday.
In night of same day, the Applicant and his cohort secretly loaded the donkeys in a vehicle and transported them to Zoro in Kebbi State instead of Enugu as negotiated by the parties.
On 12/6/2017, the Complainant discovered from his bank that the mobile banking transaction was not genuine as the bank alert he received was fake hence he reported the matter to the police.
In the course of investigation, the Applicant was traced and arrested in Abuja and brought to Sokoto State where the transaction took place while his cohort Abdul could not be traced.
I have carefully read and digested the Reply on points of law. Essentially, it is a re-argument of the Applicant’s case and not a response to issues of law raised in the Respondents’ Counsel Written Address. This ought not to be so.
I have given due consideration to the totality of the averments in the affidavits of the parties and submissions of their Counsel. The Applicant’s claim in this application is for enforcement of his fundamental rights to personal liberty and freedom of movement in terms of Section 35(1) and 41 of the 1999 Constitution of Nigeria. He also seeks for grant of damages and consequential injunctive reliefs against the Respondents. The settled position of the law in our adversarial legal jurisprudence is that where a party asserts a state of affair and seeks the Courts favourable finding and declaration in that regard, the burden of proof first lies on him to lead preponderance of evidence in proof of it lest he fails.
The burden of proof is not static but shift from party to party until the issue in contention is resolved. Evidential burden is always on the party who will fail where no further evidence (if necessary) is not adduced. See:- Sections 131 to 133 of the Evidence Act 2011.
. I am satisfied that Exhibits A and B attached to the Respondents’ counter affidavit disclosed a reasonable ground for the Respondents to 14 suspect the Applicant of having engaged in criminal wrong doing. Section 35 (1) (c) of the 1999 Constitution of Nigeria provides that a person’s right to personal liberty can be curtailed upon reasonable suspicion of his having committed a criminal offence.
In the light of this provision and given the contents of Exhibits A and B attached to the Respondents’ counter affidavit, the Court holds that the Respondents acted within the ambits of their duties under Section 4 of the Police Act (which empowers them, inter alia to detect crime and investigate criminal wrong doing, apprehend offenders, etc) were justified by the exception created by Section 35 (1) (c) of the 1999 Constitution in arresting the Applicant in arresting the Applicant in connection with the complaint of defrauding Alhaji Muazu Gwadabawa of his donkeys as ably submitted by the Respondents’ Counsel the Court holds that given the circumstances of Exhibits A and B attached to the Respondents’ counter affidavit their arrest of the Applicant was justified under Section 35(1) of the 1999 Constitution of Nigeria. This however is not the end of the matter.
The Applicant’s contention is that his detention from 12/3/2018 to 23/3/2018 when he was arraigned in Court was in violation of his fundamental right to personal liberty as guaranteed under Section 35(1) and freedom of movement as guaranteed under Section 41 of the 1999 Constitution of Nigeria.
In this case, the Court having found that the Applicant was unlawfully detained by the respondents who are authorities created under Section 214 of the 1999 Constitution, the Applicant is entitled to not only public apology but also damages by way of compensation from the Respondents for their violation of his fundamental right to personal liberty.
Placing reliance on this section as well as Section 46 (2) of the Constitution the Respondents are directed jointly and severally to publish a public apology to the Applicant in a newspaper circulating in Nigeria for the violation of his fundamental right to personal liberty. By way of compensation too, the Respondents are ordered to pay damages assessed and fixed at, not the N20,000,000.00 claimed by the Applicant but N2,000,000.00 for the violation of his fundamental right to personal liberty.
With respect to relief No.4, the Court having found that the detention of the Applicant in the circumstances was unconstitutional and given too that the Respondents have concluded their investigations and arraigned the Applicant in Court, there is need to protect him from further detention by the Respondents. By reason of this, relief No.4 of the summons is granted. A perpetual order of injunction is granted restraining the Respondents by themselves, agents, servants or privies from further arresting or detaining the Applicant on account of the transaction subjectmatter of this suit. Finally, the Applicant having succeeded shall be paid cost assessed and fixed at N50,000.00 by the Respondents.