in the high court of the federal capital territory … ruling/2016_rulings/court...similarly, the 2...

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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT COURT NO. 30 WUSE ZONE 2 ABUJA

BEFORE HIS LORDSHIP: HON JUSTICE A. S. ADEPOJU

ON THE 25TH

DAY OF NOVEMBER, 2016.

SUIT NO: FCT/HC/CV/2644

BETWEEN:

MR. AUTA ELIYAH ----------------------------------- APPLICANT

AND

1. S.C.C. (NIGERIA) LIMITED

2. ABEL OLOKOR ----- RESPONDENTS

3. THE NIGERIA POLICE FORCE

S. E. EKEH for the Applicant.

KEHINDE OGUNWUMIJU for the 1st

Respondent appears with MR. TUNDE

ADEJUMO.

TUNDE BABALOLA appears with QUEENETTE AGBE (MISS) and FRANCES

NWOKOLO (MISS) for the 2nd

Respondent.

S. E. EKEH: I seek the indulgence of the court to readopt the arguments on

behalf of the plaintiff.

KEHINDE OGUNWUMIJU: On behalf of the 1st

respondent we adopt all the

counter-affidavit, written address in urging the court to dismiss this action as

well as the oral adumbration.

TUNDE BABALOLA: On behalf of the 2nd

respondent I humbly adopt all the

counter-affidavit and urge the court to strike out the suit for lack of jurisdiction

or dismiss same for lacking in merit.

RULING

The applicant is an employee of the 1st

respondent and has instituted the

instant action for the enforcement of his fundamental rights pursuant to the

provision of Order 2 Rule 3 of the Fundamental Rights Enforcement Procedure

Rules 2009, Section 35(1) of the Constitution of the Federal Republic of Nigeria

1999 as amended and Article 2 and 6 of the African Charter on Human and

Peoples’ Rights (Ratification and Enforcement Act) Cap 9 Laws of the

Federation. In the accompanying statement, the applicant sought for the

following reliefs;

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a. A declaration that the allegation of theft, arrest and handing over of

the applicant to the 3rd

respondent by the 1st

and 2nd

respondents

before any complaint to the 3rd

respondent and without evidence

whatsoever was capricious, unwarranted, wrongful, unconstitutional

and a breach of the applicant’s right to personal liberty.

b. A declaration that the harassment, intimidation, humiliation and arrest

of the applicant by the 1st

and 2nd

respondents on trumped up

allegation of theft without proof was plotted and executed by the 1st

and 2nd

respondents to blackmail the applicant in order to justify the

applicant’s subsequent sack from the 1st

respondents employment and

is therefore unjustifiable, wicked and malicious.

c. A declaration that the detention of the applicant by the 3rd

respondent

for three days (1st

to 3rd

December, 2014) at the Bwari Police Station

without investigation or prosecution is unlawful, unconstitutional,

illegal, unwarranted and violation of the applicant’s right to personal

liberty.

d. A declaration that the act of the 1st

to 3rd

respondents in arresting and

detaining the applicant for three days on the allegation of theft

without charging the applicant to court amounted to false

imprisonment and thus a violation of the applicant’s right to personal

liberty.

e. An Order of this honourable court awarding the sum of N100,000,000

(One Hundred Million Naira) only in favour of the applicant against the

respondents jointly and severally for false imprisonment arising from

the humiliation, embarrassment, intimidation, unsubstantiated

allegation of theft, unlawful arrest and detention of the applicant.

f. An order restraining the 3rd

respondent, its officers, servants, agents or

howsoever named from further violating the applicant’s right to

personal liberty secured and guaranteed under Section 35(1) of the

1999 Constitution of the Federal Republic of Nigeria as amended and

under the African Charter on Human and People’s Rights.

g. Cost of this action.

In support of the application is a 35 paragraph affidavit of the applicant and a

written address of his counsel.

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In opposition, the 1st

respondent filed a counter-affidavit dated 6th

of

November, 2015 and a Notice of Preliminary Objection dated 9th

November,

2015 with a consolidated written argument in support of the Preliminary

Objection and in opposition to the originating motion filed by the applicant.

Similarly, the 2nd

respondent filed a counter-affidavit and notice of preliminary

objection dated 16th

November, 2015; with two separate written addresses

one in support of the preliminary objection, the other in opposition of the

applicant’s originating motion. The written addresses were both dated 16th

November, 2015.

The preliminary objection filed by the 1st

and 2nd

respondents challenged

jurisdiction of the court to entertain this suit. On the 2nd

of January, 2016 the

applicant filed a composite applicant’s joint reply to 1st

and 2nd

respondent’s

written address in support of their Preliminary Objection, applicant’s further

affidavit to the 1st

and 2nd

respondent counter-affidavit and applicant’s joint

reply to the 1st

and 2nd

respondent’s written address.

On the 1st

of March, 2016, the substantive application filed by the applicant

and the Preliminary Objections of the 1st

and 2nd

respondents came up for

hearing with the counsel adopting their respective written address. The 1st

respondent in its notice of preliminary objection prayed the court for an order

striking out the name of the 1st

respondent from the suit and alternatively an

order striking out this suit for want of competence. The grounds upon which

the preliminary objections are brought are;

1. That at all material time to this suit, the relationship between the

applicant and the 1st

respondent was an employer/employee

relationship.

2. That the applicant’s main relief is for a declaration that there was a

breach of his fundamental right to personal liberty arising from his

labour relationship with the 1st

respondent.

3. That this court lacks jurisdiction to entertain this matter as it deals with

the interpretation of Chapter IV of the 1999 Constitution of the Federal

Republic of Nigeria as altered in the employment/labour relationship

between the applicant and the 1st

respondent.

4. That the originating motion filed contained no relief.

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5. And that this court cannot grant an originating motion without any

relief.

The 2nd

respondent also filed a preliminary objection on the same grounds.

Arguments of counsel to both the 1st

and 2nd

respondents are equally not

materially different.

The 1st

respondent’s counsel Mr. Ogunwumiju in his written argument in

support of the Preliminary Objection stated that from the pleadings of the

applicant as embodied in his statement of facts and affidavit before the court,

this matter is for the enforcement of fundamental rights arising and relating to

a labour matter. He referred to paragraph 32 of the applicant’s affidavit and

relief 13 in the statement of facts which he said best exhibited the fact that

this action is one for enforcing fundamental rights relating to a

labour/employment issue. The paragraphs are set out hereunder;

PARAGRAPH 32: “That the malicious allegations of theft and arrest

orchestrated by the 1st

and 2nd

respondents that led to my detention by the

3rd

respondent for three days was totally false and fabricated to blackmail,

humiliate, intimidate, embarrass me and pave the way for my dismissal from

the 1st

respondent’s employment.”

And

RELIEF 13: “A declaration that the harassment, intimidation and humiliation

of the applicant by the 1st

and 2nd

respondents and the subsequent arrest and

handing over of the applicant to the 3rd

respondent by the 1st

and 2nd

respondent on trumped up allegation of theft without proof was plotted and

executed by the 1st

and 2nd

respondents to blackmail the applicant in order to

justify the applicant’s subsequent sack from the 1st

respondent’s employment

and is therefore unjustifiable, wicked and malicious”.

The learned counsel argued that a holistic construction of the above

paragraphs show that this is a fundamental right action arising from or relating

to an employment/employee relationship between the applicant and the 1st

respondent. He anchored his argument on the provision of Section 254 C (1)

(d) of the 1999 Constitution as amended which provides;

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“Notwithstanding the provision of Section 251, 257, 272 and anything

contained in the constitution and in addition to such other jurisdiction as may

be conferred upon it by an Act of the National Assembly, the National

Industrial Court shall have and exercise jurisdiction to the exclusion of any

other court in civil causes or matters;

(d) relating to or connected with any dispute over the interpretation and

application of the provision of Chapter IV of this Constitution as it relates to

any employment, labour, industrial relations, trade unionism, employers’

association or any other matter which has jurisdiction to hear and

determine”.

Mr. Ogunwumiju argued that no matter how liberal Section 254 C (1) (d) of the

Constitution is construed it is the National Industrial Court that has jurisdiction

to entertain any matter relating to or connect with any dispute over

interpretation of Chapter IV of (Fundamental Rights Enforcement) as it relates

to any employment or labour matter. He referred to the authorities of N.U.T

NIGER STATE V COSST, NIGER STATE (2012) 10 NWLR (PT. 1307) 89 @ 111

PARAS E – F, JOHN V IGBO ETITI LGA (2013) 7 NWLR (PT 1352) 1 and COCA-

COLA (NIG) LTD V AKINSANYA (2013) 18 NWLR (PT. 1386) 225.

The Learned counsel submitted that from the wordings of Section 254 (c) of

the 1999 Constitution three crucial phrases are used to wit; “Pertaining to”,

“arising from” and “connected with”. That the effect and meaning of these

phrases were interpreted in the following decisions;

S.B.N V DE LLUCH (2004) 18 NWLR (PT. 905) 341 @ 355 PARAS B – D where

the Supreme Court held;

“Section 251 (1) (d) in its tenor and intendment embraces all possible

conceivable matters touching on banking whether on issue of tort or contract

but not being a point on bank and customer reasonably, possible in quest to

understand the case made out by the respondent that her action was based

purely on negligence and that being the case, it would be wrong to

pigeonhole the case within the framework of Section 251 (1) (d) of the

Constitution. I shall pause here and would not proceed further in my analysis

of the point in negligence.”

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The Learned Counsel also cited the Supreme Court as saying at page 356

PARAS B-E that;

“There was no exhaustive discussion on the import of the expression

‘Connected with or pertaining to banking’ as obviously that point was not

assiduously canvassed before the court. In the first place, in Trade Bank Plc V.

Benilux Ltd. (Supra) case the payee of the cheque was the respondent so,

there was obviously a duty of care. In the present case under consideration

the fraudsters paid the loot into the appellant’s bank but in their names. They

became customers to the bank. How shall we describe the relationship

between the respondent whose ‘stolen money’ was lodged in the appellants.

Could such state of affairs arising out of the spurious transaction between the

two scoundrels and the respondent and tangentially affecting the appellant

give rise to an act on the part of the appellant that can be described as

‘connecting with or pertaining to banking’. The expression ‘connecting with

or pertaining to banking’ when examined synthetically imports transaction

on matters that are related to or show affinity or intertwine or have

semblance or have interrelationship with banking.”

He also referred to the case of SHELL PET. DEV. CO. (NIG) LTD V MAXON

(2001) 9 NWLR (719) 549 @ 553 -554 PARAS C – E. He submitted that one

common feature of this case is that the court while interpreting these phrases

never construed them restrictively. He relied on the use of the words

‘embraces all possible conceivable matters’ in the interpretation by the

appellate court and submitted that once the issue/cause of action in the case is

a conceivable matter arising from employment or labour, the National

Industrial Court is the court with exclusive jurisdiction to entertain same.

He submitted further that a court’s jurisdiction is donated by statute and a

court has no power to exceed the scope of jurisdiction conferred upon it by the

statute. He referred to Section 11 of High Court Act, Cap 510 Laws of the FCT

Abuja, which specifically prohibits this court from exercising jurisdiction over a

matter expressly conferred on other court by the Constitution of the Federal

Republic of Nigeria. He urged the court to strike out the name of the 1st

respondent from this suit that any cause of action arising between the

applicant and his former employer (1st

respondent) falls within the exclusive

jurisdiction of the National Industrial Court.

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On the 2nd

leg of the 1st

respondent’s objection that the originating motion by

which this suit was commenced is incompetent having regard to the fact that it

does not contain any relief, the 1st

respondent’s counsel argued that both the

court and the applicant are only bound by the reliefs as they appear on the

face of the application.

He relied on the Supreme Court decisions in the case of AGIP NIG LTD V AGIP

PETROLI INTERNATIONAL (2010) AFLR (PT 520) 1198 @ 1261 PARAS C – D,

NIGERIAN AIRFORCE V SHEKETE (2002) 18 NWLR (PT. 798) 129 @151 PARAS E

– G and NDIC V SBN PLC (2003) 1 NWLR (PT. 801) 311 @ 367 PARAS A – C.

The 1st

respondent contended that the originating application filed in this suit

has no relief/prayers endorsed on it. That instead of the application setting out

the reliefs on the face of the application, he prayed the court for orders in

terms of the reliefs set out in the statement accompanying the application.

The 1st

respondent’s counsel referred to the provision of Order 11 Rule 1 of the

Fundamental Rights (Enforcement Procedure) Rules. He argued that a perusal

of Form No. 1 referred to in the provision of Order 11 Rule 1 supra will reveal

that the applicant ought to state the specific prayers sought on the motion

paper. He urged the court to hold that it is mandatory for an applicant to state

the Orders/Reliefs he seeks on the face of the motion paper. That this suit

ought to be dismissed as the court can only grant what appears on the face of

the motion paper.

As stated earlier, the written arguments of the 2nd

respondent’s counsel in

support of the notice of preliminary objection is not materially different from

that of the 1st

respondent’s counsel. The learned counsel to the 2nd

respondent

Mr. Babalola submitted that the issue of jurisdiction is so severe that it cannot

be compromised by the parties or the court. He relied on the authorities of

AJUWA V S.P.D.C. (NIG) LTD (2008) 15 NWLR (PT 1094) 64 @ 96 PAR C that in

determining whether or not a court has jurisdiction over a suit, it is guided by

the writ of summons and statements of claim or originating process before it.

He also referred to relief B contained in the statements of facts and the

provision of Section 254 (c) of the Constitution of the Federal Republic of

Nigeria 1999 and argued that the applicant is clearly seeking redress for

alleged wrong done in the cause of his employment particularly at workplace.

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He referred to the judicial interpretation of the Section by the Court of Appeal

in the case of FEDERAL MINISTRY OF HEALTH V THE TRADE UNION MEMBERS

OF JOINT HEALTH SECTOR UNIONS & ORS (2014) LPELR 23546CA, S. S. C.

(NIG) LTD V SEDI (2013) 1 NWLR (PT 1355) 230 @ 247-248 PAR H-C and N.U.T

NIGER STATE V COSST, NIGER STATE Supra. And submitted that from the

above decision the National Industrial Court has exclusive jurisdiction to

entertain all matters relating to or connected with any dispute over the

interpretation of Chapter IV (Fundamental Rights Enforcement) as it relates to

any employment or labour matter.

Furthermore, Mr. Babalola also argued that the originating process by which

this action was commenced is incompetent thereby robbing this court of the

jurisdiction to entertain the suit. He contended that there is no prayer

contained in the motion paper but a reference outside the application to the

prayers in the statement of facts. That the law is settled that a court cannot

grant a prayer that is not contained in a motion paper. He referred to the cases

of CHIEF R. A. OKOYA V SANTILLI & ORS (1990) 2 NWLR (PT. 131) 172 @ 205

PARAS F – G and NIGERIAN AIRFORCE V SHEKETE (2002) 18 NWLR (PT. 798)

129 @151 PARAS E – G. and submitted that this court cannot entertain the suit

since there is no reliefs being sought from the court.

He also placed reliance on the provision of Order 11 Rule 1 of the Fundamental

Rights Enforcement Procedure Rule and urged the court to hold that it is

mandatory for an applicant to state the orders or reliefs he seeks on the face

of the motion paper. That the suit having been commenced by a defective

originating process, robs the court from exercising its jurisdiction and urged

that the suit be struck out for incompetence.

In reply to the objections of the 1st

and 2nd

respondents the applicant posited

that the deposition of the respondents that the facts and cause of action in this

case has nothing to do with employment or labour thereby urging the court to

isolate the paragraphs and declare them irrelevant is an admission on their

part that the subject matter of this suit has nothing to do with employment or

labour matter. That the filing of preliminary objection by the 1st

and 2nd

respondents amounted to approbating and reprobating at the same time.

The applicant contented that by virtue of Section 254 (c) of the 1999

Constitution as amended the National Industrial Court has exclusive

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jurisdiction to determine and hear all civil causes and matter relating to or

connected with or arising from employment, labour, etc. The learned counsel

to the applicant Mr. Eke in his written submission submitted that the

exclusivity of the jurisdiction of the National Industrial Court is not all

encompassing or all embracing but limited to civil causes and matters relating

to, arising from or connected with labour or employment. That where a cause

of action arises from, connects with or relates to criminal complaint, offence or

crime, the National Industrial Court cannot exercise exclusive jurisdiction even

though the crime arose from, connected with or related to employment or

labour because Section 254 (C) (1) specifically mentioned “in civil causes or

matter”. That it is settled principle of interpretation of statute that the express

mention of one thing excludes the other. He supported his argument with the

decisions in the case of DANBAZAU V BOKAR INT’L CO LTD (2011) 14 NWLR

(PT. 1206), PG. 291 @ PG. 344 PARAS E – F, BAGIWAI V GODA (2011) 7 NWLR

(PT. 1245) 28 @ 57 PARA A.

The learned counsel stated further that the cause of action in this case arose

from the criminal complaint made against the applicants by the 1st

and 2nd

respondents to the 3rd

respondent and therefore has nothing to do with his

employment with the 1st

respondent.

He posited that Section 46 (1) (2) of the 1999 Constitution are general powers

of the High Court to determine any question pertaining to violation of any

provision of Chapter IV of the Constitution. The High Court he said has wide

original jurisdiction to hear and determine application made pursuant to the

provision of Chapter IV of the 1999 Constitution as amended. He submitted

that this court has jurisdiction over all the reliefs sought by the applicant

especially the principal relief. That the applicant has not submitted a dispute

over the interpretation and application of Chapter IV as related to his

employment, labour, industrial relations, trade unionism, but rather the

determination of whether his arrest and detention for a purported criminal

offence without trial violated his right to personal liberty. He urged the court

to find and hold that the cause of action in the suit pertains to crime and

criminal complaint and that it has jurisdiction to entertain same.

On the contention of the respondents that the originating process does not

have on the face of it the relief sought, Mr. Eke argued that the originating

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process in this suit is not a motion on notice. That the fact that the application

opened with the phrase “Take Notice” does not automatically make the

process a motion on notice. That what the applicant filed was a “Notice of an

Application to Enforce his Fundamental Right” and not a motion on notice.

He argued further that a critical look at Form 1 attached to the Fundamental

Rights Enforcement Procedure Rules would reveal the stipulation that the

relief should be stated in the statement accompanying the application and not

on the face of the motion paper as suggested by the respondents.

The applicant also relied on the provision of Order 11 Rule 2 and 3 of

Fundamental Rights Enforcement Procedure Rules. That based on Rule 3

thereof the relief claimed is to be set out on the statement and not on the

motion on notice. That there is no form of commencing an action to enforce

Fundamental Human Rights as long as the court can ascertain from the process

that the reliefs sought are for the enforcement of Fundamental Rights. That

the action can be commenced by way of writ of summons, originating

summons, motion on notice, notice of application or any other form of

commencing an action recognized by that law. He therefore urged the court to

dismiss the objection of the respondents and grant all reliefs claimed by the

applicant.

I have calmly considered the written submissions of learned counsel to all the

parties and the oral arguments in adumbration on the facts contained in the

written address and wish to state that the issue that arose for determination

from the submissions of parties is; Whether this court or National Industrial

Court is the proper forum to entertain the claim of the Applicant.

In order to determine whether a court is imbued with jurisdiction to entertain

an action before it, it must consider the claim and relief as contained on the

writ of summons and the statement of claim or the affidavit in support of the

originating process. Furthermore where powers of the court are donated by

statute such statute must also be examined to determine the extent of the

powers conferred on the court. See ANSA V REGISTERED TRUSTEES OF

PRESBYTERIAN CHURCH OF NIGERIA & ORS (2007) LPELR 4636 CA.

It is not in doubt that Section 254 C of the 1999 Constitution as amended deal

with the civil jurisdiction of the National Industrial Court. The Section confers

exclusive jurisdiction on the National Industrial Court in civil causes and

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matters relating to or connected with any dispute over the interpretation and

application of the provision of Chapter IV as it relates to employment, labour,

e.t.c. In the interpretation of Section 254 C the take off point is whether there

is civil cause or matter, and this can be deduced by examining the claim or the

aggregate of facts deposed to by the applicant in his affidavit in support of the

originating motion.

The applicant in his deposition informed the court that he was at his duty post

on Sunday 30th

November, 2014 and closed from work at about 6:00pm

because he was on morning duty. That shortly after he resumed normal duties

the following day being 1st

December, 2014 one Mr. Chinwe a staff of the 1st

respondent came to his duty post to inform him that the 2nd

respondent

wanted to see me in his office. That when he went to the office of the 2nd

respondent to honor the invitation he met him in company of the 1st

respondent’s Chief Security Officer in charge of Kubwa site, Mr. Uche. Both Mr.

Uche and the 2nd

respondent took him to the office of Mr. Willy a South African

and the production Manager of the 1st

respondent who was his departmental

head. That when he got to Mr. Willy’s office he was asked if he knew anything

about some trucks that were alleged to have entered the premises of the 1st

respondent at night. He denied not knowing anything about it because he was

not on night duty. That satisfied with his explanation, he was asked to go back

to his duty post by Mr. Willy but as soon as he stepped out, the 2nd

respondent

and Mr. Uche snatched his handset from him, seized it and forced him into a

waiting vehicle belonging to the 1st

respondent and drove him to Bwari Police

Station.

That on getting to Bwari Police Station, the 2nd

respondent and Mr. Uche took

him to one plain clothed police officer who introduced himself as Mr.

Okpanachi. The 2nd

respondent told Mr. Okpanachi that he was one of the

thieves. He was asked to explain the role he played and was later detained by

the said Mr. Okpanachi. He claimed he was detained on the 1st

of December,

2014 and was granted bail in the sum of N10,000 (Ten Thousand Naira) on 3rd

December, 2014 after the 3rd

respondent took him and some other staff of the

1st

respondent detained for the same alleged offence of theft to a court in

Bwari but failed to arraign them.

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The applicant stated further that he was not caught on the 1st

respondent’s

site on the night of 30th

November, 2014 or at any other time bringing trucks or

carting away the 1st

respondent’s property. That instead of the 1st

respondent

inviting the 3rd

respondent to investigate the alleged theft and arrest whoever

it may suspect to have been involved in the alleged theft, the 1st

and 2nd

respondents constituted themselves into the accuser and the police by laying

allegations against him and personally arresting and handing him over to the

3rd

respondent for detention.

And in consequence of the above facts the applicant sought for reliefs a-g

already outlined at page 1 of this judgement.

While it is true that the applicant is an employee of the 1st

and 2nd

respondents

the aggregate facts that culminated into the cause of action of unlawful

detention and arrest stemmed from or connected with the allegation of theft

by the by the 1st

and 2nd

respondents. In interpreting the provision of the

Constitution the court must give effect to every word in the Section to be

interpreted and where the words used are clear and not ambiguous, they must

be given their plain ordinary meaning. See DANGANA & ANOR V USMAN &

ORS (2012) LPELR 7820 (SC), GLOBAL EXCELLENCE COMMUNICATION V DUKE

(2007) NWLR (PT 1059) 22 @ 47 – 48 PER H – C, ACTION CONGRESS & ANOR V

INEC (2007) AFWLR (PT 378) 1012 @ 1037. For the National Industrial Court to

exercise exclusive jurisdiction under Section 254 C (1) (D) the cause or matter

must be civil and related to or connected with any dispute over the

interpretation and application of the provision of Chapter IV of the

Constitution as it relates to any employment, labour, e.t.c.

The 3 key phrases in Section 254(c) used are ‘relating to, ‘connected with’ and

‘relates to’. Employment is a contract between an employer and employee; for

an issue to be related to or connected with another, one must be an offshoot

of the other or accessory to, or an integral part of the other. The unlawful

arrest and detention arose from the alleged criminal complaints against the

applicant and has nothing to do with or relates to or connects with his contract

of employment with the 1st

respondent. The fundamental rights issues which

determination requires statutory and constitutional interpretation must be

founded on civil causes and matters arising out of or related to labour,

employment, e.t.c before it could be said that the National Industrial Court has

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exclusive jurisdiction to hear and determine the cause or matter. I am

therefore in agreement with the submissions of learned counsel to the

applicant that this court has wide and original jurisdiction to hear and

determine application made pursuant to the provision of Chapter IV of the

1999 Constitution and the jurisdiction to interpret and apply Chapter IV of the

Constitution could only be ousted where the cause of action relates to

employment, labour, industrial relations, e.t.c.

Since the cause of action in this case is not in any way related to any of the

issues listed in Section 254 C (1) (D) of the Constitution of Nigeria 1999 as

amended, this court is imbued with jurisdiction to hear and determine the

applicant’s claim. The first leg of the objection fails and it is hereby dismissed.

The second leg of the objection that the originating motion did not contain any

prayers also does not hold water. The objection is premised on technicality. It

is a well known fact that our courts have moved away from the era of technical

justice to that of substantial justice.

In any case the reliefs are contained in the accompanying statement of fact in

strict compliance with Provisions of Order 2, Rule 1 of the Fundamental Rights

(Enforcement Procedure) Rules. And the court is bound to consider all the

processes filed before it. It is my holding that the applicant have substantially

complied with the Provision of Order 2, Rule 1 of the Fundamental Rights

(Enforcement Procedure) Rules 2009 in commencing the action. Also on this

point, I wish to stress that the nature of action for enforcement of

fundamental rights abhors technicality in the mode of commencement of the

proceedings. In the case of EKANEM V ASSISTANT I. G. P 2008 CHR 172 @ IG

182 Omage JCA stated; "The civil rights contained in the constitution against

the unjust arrest and detention of a citizen which is protected by the

enforcement of the fundamental right provisions should not be restricted in

any way by technicalities where none is justified by the Constitution. … … … …

… … … … See ADESANYA V PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & ORS

(1981) 5 SC 113". The objection of the learned counsel to the 1st

and 2nd

respondents is as to form and not the substance of the claim.

Furthermore the defect is also cured by the Provision of Order 9 of the

Fundamental Rights (Enforcement Procedure) Rules 2009 which stipulates that

such non-compliance as to form be treated as an irregularity which is precisely

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what I am going to do in this instance. I hold that the omission by the applicant

to state on the face of the originating motion, the reliefs sought is an

irregularity, having explicitly stated it on the accompanying statement of facts;

this objection must also fail for lacking in merit.

And lastly on the contention that the 3rd

respondent is an agency of the

Federal Government thus making the action cognizable by the Federal High

Court. The same respondents, who want this matter tried by the National

Industrial Court, also want the applicant to take this case to the Federal High

Court because one of the parties is a Federal Government Agency. By the

provision of Section 46(1) of the Constitution, both the State and Federal High

Courts have concurrent jurisdiction when the subject matter is an alleged

breach of Fundamental Human Rights. See F.M.C.T V EZE (2006) 2 NWLR PG

221 @ 225 where the Court of Appeal held as follows;

“By virtue of the provision of Section 46 of the 1999 Constitution of the

Federal Republic of Nigeria, jurisdiction is conferred on any High Court in a

state in matters of Fundamental Human Rights enforcement. This means that

where both the State High Court and the Federal High Court exist in a state,

they both have concurrent jurisdiction to deal with an application for

enforcement of fundamental right and the potential Applicant has the option

to approach either of the two sets of Courts with the application for redress”.

See also MINISTER OF INTERNAL AFFAIRS V SHUGABA (1982) 3 NCLR 915;

OYAKIRE V MAR (1998) 3 NWLR (PT 542) 438 and also the case of JACK V

UNIMAID (2004) 5 NWLR (PT 865) PG 208 PG 213 where the Supreme Court

held as follows;

“Both the Federal High Court and High Court of a state have concurrent

jurisdiction in matters of the enforcement of a person’s fundamental rights.

An application may therefore be made either to the judicial division of the

Federal High Court in the state or the High Court of the State in which a

breach of fundamental right occurred, is occurring or about to occur”.

See also the case of BRONICK MOTORS LTD V WEMA BANK LTD (1983)

ISCNLR 297. Also in GAFA V GOVERNMENT OF KWARA STATE (2007) 4 NWLR

(PT 1024) PG 375 @ 381, the Supreme Court held thus;

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“However, by Order I Rule 2 of the Fundamental Rights (Enforcement

Procedure) Rules, 1979, made by the Chief Justice of Nigeria under Subsection

(3) of Section 42 of the 1979 Constitution in all matters dealing with

enforcement of fundamental rights both the Federal High Court and High

Court of a state within which the violation of the right has been alleged to

occur, have concurrent jurisdiction in the matter. Therefore an application

may be made either to the judicial division of the Federal High Court in the

state or the High Court of the State in which a breach occurred, is occurring or

about to occur. In the instant case, by the complaint of the Appellant of an

alleged breach of his fundamental right in Ilorin within Kwara State, the

Federal High Court has concurrent jurisdiction with the State High Court to

hear and determine the Appellant’s complaint of any alleged breach of such

rights”.

See also the case of ADETONA V I. G. ENTERPRISE LTD (2011) 7NWLR PT 1247

535 an authority that both the State and Federal High Court have concurrent

jurisdiction in relation to action for breach of Fundamental Rights irrespective

of parties. I am in total agreement with the submission of counsel to the

applicant that the fact that an institution is an agency of the Federal

Government does not ipso facto exclude the institution from being sued at the

State High Court except where the subject matter of the suit falls within items

listed in Section 251 of the 1999 Constitution. In line with the provisions of

Section 46(I) of the 1999 Constitution and decided authorities above, I hold

that the 3rd

respondent is properly before this court.

In conclusion, the objections of the respondents fail and are accordingly

dismissed.

Now to the substantive claim:

By virtue of the Provision of Section 26 of the Criminal Procedure Code and

section 4 and 20 of the Administration of Criminal Justice Act 2015, the Police

and other law enforcement agencies and private citizens have the power to

arrest a person who is ‘reasonably suspected’ of having committed an offence.

The case of the applicant as stated in the paragraphs of his affidavit in support

of the application particularly paragraphs 10 to 31 was that he was arrested by

the 1st

and 2nd

respondent without any justifiable reason and was handed over

to the 3rd

respondent who detained him. The 1st

and 2nd

respondents denied all

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these claims stating in defence that they merely reported a case of attempted

theft by their staff. And the Police based on its initiative and confessional

statements of some of its staff which implicated the applicant, effected the

arrest of the applicant. Which of the contracting stories does the court

believe? I believe the story of the applicant that he was arrested by the 1st

and

2nd

respondents.

A careful scrutiny of the exhibits sought to be relied on by the respondents

would reveal that the documents are fraught with contradictions and

inconsistencies and do not support the case of the respondents. I start with

Exhibits A, B, C, D and E and Exhibits 1, 2, 3, 4 and 5. Nowhere in any of the

statements was the name of the applicant mentioned as one of those who

conspired to steal from the 1st

respondent’s factory. Also Exhibit G and Exhibit

7, the Police Investigation Report was produced six (6) months after the

allegation of the attempted theft. In the so called Investigation Report there

was no detail of how the investigation was carried out, who carried out the

investigation and what the nature of the investigations is? The applicant is only

said to be one of those arrested and interrogated by the 3rd

respondent, but

incidentally the 3rd

respondent did not attach his statements as exhibits. So on

what basis was he arrested, detained and charged to court by the 3rd

respondent? Exhibit G is porous, lack substance and cannot be used by this

court as a basis to infer or conclude that the applicant was arrested by the 3rd

respondent. The same goes for Exhibits A, B, C, D and E and Exhibits 1, 2, 3, 4

and 5. The documents are unreliable and cannot be acted upon by this court.

I also mentioned in the sister case the contradictions in the statements of the

Chief Security Officer on behalf of the 1st

respondent and the statements of

Abel Olokor the 2nd

respondent. The two of them gave different versions of the

events they claim they saw together. In Exhibit 1 (Exhibit A), Abel Olokor

claimed that he gave the Policeman that was suspected to be part of the co-

conspirators “a hot chase caught him and handed him over to the police on

guard” while Uche Nwachukwu the Chief Security Officer averred that “We

handed him (referring to the Policeman) and the security men on night duty

to the police for further investigation in the case”; in another breath both the

1st

and 2nd

respondents stated in paragraph 11(n) and 8(c) of their respective

counter-affidavit that “We immediately proceeded with him to Bwari Police

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Station where we reported the incident and we as well as the said Nansel

Netkwap volunteered statements”.

There are material contradictions in the statements of the 1st

and 2nd

respondents to the police and the averments contained in their counter-

affidavits. The law is trite that documentary evidence is the hanger upon which

the veracity of the oral evidence of a witness is tested. See SKYE BANK PLC &

ANOR V AKINPELU (2010) LPELR 3073 SC, MOSES BURGE & ANOR V THE

GOVERNOR OF RIVERS STATE (2006) 12 NWLR (PT. 995) 573. On the effects of

material contradictions in an evidence, the Court of Appeal held in the case of

ANAMBRA STATE GOVERNMENT V GEMEX INTERNATIONAL LTD (2011) LPELR

19733 CA thus; “It is settled that a contradiction in respect of a material fact

would make a court doubt the evidence”. In view of the material

contradictions in the counter-affidavit of the 1st

and 2nd

respondents and the

Exhibits I and J, their statements to the police. I believe the story of the

applicant that he was arrested by the 1st

and 2nd

respondents when he

resumed work in the morning of 1st

December, 2014 and was driven to the

police station where he was handed over to the 3rd

respondent.

The provision of Section 28 of the C. P. C empowers a private citizen to arrest

any person committing in his presence an offence for which the police are

authorized to arrest without a warrant. The applicant was arrested by the 1st

and 2nd

respondents on the 1st

of December, 2014, after the incidence of

attempted theft had occurred. This now bring to fore whether the arrest and

detention of the applicant was based on reasonable suspicion. The Learned

Counsel on both sides relied on AGUNDI V COMMISSIONER OF POLICE (2013)

AFWLR (PART 660) 1247 @ 1296 -1297 where the court relied on black law’s

dictionary 8th

edition definition of Reasonable Suspicion as “a particularized

and objective basis, supported by specific and articulable facts, for suspecting

a person of criminal activity. A police officer must have a reasonable

suspicion to stop a person in a public place”. The 1st

and 2nd

respondents

relied on the confessions in Exhibits A, B, C, D and E which have earlier held to

be of no probative value. There is also no surrounding or material

circumstance from which this court could infer that there was a reasonable

suspicion. There is no particularized and objective basis for the arrest of the

applicant. The report of Police Investigation, Exhibit G, where the respondents

underlined the name of the applicant as one of the co-conspirators is also

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worthless; the document did not establish any nexus between the applicant

whose name was mentioned therein and the commission or participation in

the alleged attempted theft. See OTERI V OKORODUDU & ANOR (1970) LPELR

2824 (SC), NWANNA V A.G. FEDERATION & ANOR (2010) LPELR 9047 (CA).

For there to be reasonable suspicion to justify an arrest by the police or a

private citizen the test objective is based upon the facts of each case. See also

Section 20 of the Administration of Criminal Justice Act 2015 which deals with

the right of private citizen to arrest upon a reasonable suspicion. It is my

conclusion that in the instant case the 1st

and 2nd

respondents have not

established any reasonable suspicion for the arrest of the applicant.

On whether the applicant was released within a reasonable time, the 1st

and

2nd

respondents relied on Exhibit K the First Information Report to establish

that the applicant was to be charged to court on 3rd

of December, 2014 within

48 hours of his arrest. The counsel to the 1st

and 2nd

respondents submitted

that the arrest and release of the applicant within the period of 48 hours is not

unreasonable having regard to the fact that the 3rd

respondent had to conduct

its investigation and would actually have charged the applicant to court within

48 hours if the 1st

respondent had not withdrawn the charge. The counsel

relied on the case of NDLEA V OMIDINA (2013) 16 NWLR (PART 1381) 589.

Firstly it is necessary to establish whether the applicant was arrested and

detained for 48 hours or 72 hours (3days) as the applicant wanted the court to

believe. From the affidavit in support, the whole episode about the applicant’s

arrest started at about 8:30am when he resumed work on 1st

December, 2014.

Assuming he was taken to the police station by the 1st

and 2nd

respondent

between the hours of 8:30am – 9:30am his 48 hours expired in the morning of

3rd

December, 2014. The next question is whether it was even reasonable to

detain the applicant for 48 hours given the circumstances of this case?

A suspect arrested pursuant to Section 35(1)(c) must be brought to court

within reasonable time, Section 35(4). ‘Reasonable time’ in this context mean

one day where there is a court of competent jurisdiction within a radius of 40

Kilometers Section 35(5)(a) where there is no such court, reasonable time

means two days Section 35(5)(b). Thus under this provision a suspect is to be

charged to court within 48 hours except in a case of capital offence. In this

instance, no particular time was indicated on Exhibit K, when the applicant was

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taken to court, but the date on the First Information Report is 3/12/14, if it was

in the morning then it is within the 48 hours which expired on the morning of

3rd

December 2014. Whatever time it was that the applicant was charged to

court on 3/12/14, it cannot be said that he was detained for 72 hours (3 days).

To further determine whether keeping the applicant in custody for 48 hours by

the 3rd

respondent before charging him to court is reasonable, I have

considered the circumstances of this case, particularly the nature of

investigation which the 3rd

respondent claimed they have carried out in Exhibit

H, The Police Investigation Report. In paragraph 3 of the Exhibit titled “Action

Taken” the D. P. O. stated “Immediately the case was reported, voluntary

statements of the complainants and witnesses were recorded. Scene of crime

was visited and photographs were taken case was charged to Chief

Magistrate Court, Bwari on 3/12/2014… … … …” It is apparent that beyond

taking the statements of the witness, visiting the scene of crime and taking

photographs the 3rd

respondent did nothing more. And the applicant was kept

in their custody since 1st

of December, 2014. There is no evidence that the

statement of the applicant was taken, because none was attached to the

counter-affidavit; no evidence that the alibi of the applicant that he was not at

the scene of crime was investigated.

The case of NDLEA V OMIDINA (Supra) cited by the respondents is not helpful

to the respondent’s case because Omidina was detained for 9 days by the

NDLEA because of the nature of the case and the investigation carried out. The

fact that the applicant was released within 48 hours as the respondents argued

did not relieve the 3rd

respondent of the liability that the applicant was

detained without any just cause in the first instance. The 3rd

respondent did

not carry out proper investigation. The Police Reports apart from being

documentary hearsay are mere fabrications. The proper maker of the

document ought to have been the Investigating Police Officer himself. There

was no case diary to show the sequence of events that led to the action taken

by the 3rd

respondent. The Police Investigation Reports (Exhibit G and H) are

worthless documents that cannot be relied on by respondents to establish that

there was proper and detailed investigation into this matter that warranted

the detention of the applicant by the 3rd

respondent. The 3rd

respondent is

therefore liable for false imprisonment.

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Furthermore the 1st

and 2nd

respondents set in motion the machinery for the

unlawful detention of the applicant by handing over the applicant to the 3rd

respondent without a just cause. There acts went beyond mere reporting of

the allegations to the 3rd

respondent. It is a trespass to person and false

imprisonment. See BARAU V LEHABA (1995) NWLR (PT 71) 357 @ 361 where

the court held that; “False imprisonment is the instigation of the arrest and

detention of a citizen of Nigeria without reasonable or probable cause”. The

acts of the 1st

and 2nd

respondent constitute trespass to person and false

imprisonment. The arrest and detention of the applicant by the 1st

– 3rd

respondents is unlawful, unconstitutional and a gross violation of the Provision

of Section 35(1)(c) of the 1999 Constitution as amended.

With respect to relief B, the applicant claims that “the harassment,

intimidation, humiliation and arrest of the applicant by the 1st

and 2nd

respondents on trumped up allegation of theft without proof was planned

and executed by the 1st

and 2nd

respondents to blackmail the applicant in

order to justify the applicant’s subsequent sack from the 1st

respondent’s

employment and therefore unjustifiable, wicked and malicious”. The claim of

the applicant that the allegation of theft against him was plotted and executed

by the 1st

and 2nd

respondents to blackmail him is speculative; and was not

made an issue before the court. The issue that came into fore in this matter is

the arbitrary arrest and shoddy investigation of the allegation of attempted

theft against the applicant with the attendant detention by the 3rd

respondent.

There is no doubt that the allegation of theft against the applicant was without

proof and unjustifiable, but it cannot be said that it was plotted and executed

by the 1st

and 2nd

respondents to blackmail or justify his sack by the 1st

respondent. The applicant have not told the court that there was bad blood

between him and the 2nd

respondent.

This claim under this head for declaration succeeds to the extent that the

harassment, intimidation, humiliation and arrest of the applicant by the 1st

and

2nd

respondents on trumped up allegation of theft was unjustifiable and

wicked.

The applicant has also urged the court to award him the sum of N100,000,000

(One Hundred Million Naira) as damages for false imprisonment arising from

the humiliation, embarrassment, intimidation, unsubstantiated allegation of

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theft, unlawful arrest and detention. The Court of Appeal in the case of

AFRIBANK NIG PLC V ONYIMA & OR (2004) 2 NWLR (PT 858) 654 posited on

what constitutes false imprisonment and what a party who claims to have

suffered false imprisonment must prove thus; “A claim in false imprisonment

lies at the suit of the person unlawfully imprisoned against the person who

causes the imprisonment – HALSBURY’S LAWS OF ENGLAND 3RD

EDITION P764

PAR 1266 – 1267, INWUNWAH V INWUNWAH (1999) 13 NWLR (PT 635) 425.

What a party who claims to have suffered false imprisonment must prove to

succeed has become well established by the courts over the years one of the

well known principle is that in order to succeed in an action for false

imprisonment, the plaintiff must show that it was the defendant that was

actually instrumental in setting the in motion against him… … … …

MANDILLAS & KARABERL LTD V APENA (1996) 1 NWLR Per Lewis JSC. Such an

action lies not only against the party who physically does the arrest and

detention, but also the person who directly and actually instigates or is

instrumental to the commission of the act of false imprisonment.

ONYENDINMA V NWITE (1999) 3 NWLR (PT 493) 333 @ 346 D – E, ABDULLAHI

KEYI (1998) 1 NWLR (PT. 534) 481 @ 492 PAR D – F”.

The court further held; “It has been well established that an action for false

imprisonment is said to be one for Injuria Sine Damno. Therefore it is not

even necessary for the plaintiff to give evidence of damage to establish his

cause of action or to claim of specific amount of damages. See KADIRI AMAO

V AMODU ORUIRE (1964) NNLR 130, OKONKWO V OGBOGU (1996) 5 NWLR

(PT 449) 420 @ 43 JSC.” In this later case Ogwuegbu JSC stated the principles

thus; “Any trespass to the person, however sought gives a right of action to

recover at any rate nominal damages. Even where there has been no physical

injury substantial damage may be awarded for the injury to the man’s dignity

or for discomfort or inconveniences.

Where liberty has been interfered with damages are given to vindicate the

Plaintiff’s right even though he has not suffered any primary damage. It is

also not necessary for the plaintiff to give evidence of damage to establish his

cause of action or to claim any specific amount of damage”.

It is the evidence of the applicant in paragraph 10 of his affidavit that after

honoring the invitation of Mr. Willy the Production Manager and came out of

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his office the 2nd

respondent and Mr. Uche snatched his hand set from him and

forced him into a vehicle belonging to the 1st

respondent and was taken to the

Bwari Police Station where he was detained for 3 days by one Mr Okpanachi.

It is on record that the 3rd

respondent did not contradict or challenge any of

the allegation leveled against it by the applicant in the instant case and the

sister cases. The law is well settled that evidence unchallenged and

uncontradicted is deemed admitted and ought to be accepted by the court.

See ABI V CBN 2011 LPELR 4192 (CA), EZEANAYA & ORS V OKEKE & ORS 1995

LPELR 1199 (SC), OMOREGBE V LAWANI (1980) 3 – 4 (SC) 108 @ 117. The 1st

–

3rd

respondents are all liable for false imprisonment.

The applicant is entitled to damages for psychological trauma, discomfort and

inconveniences he must have suffered as a result of the acts of the

respondents. In the circumstance, the sum of N5,000,000 (Five Million Naira)

is hereby awarded jointly and severally against the respondents.

Signed

Hon. Judge

25/11/2016

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