Alhaji Lawwani Zakari V. Inspector-general of Police & Anor (2000)

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MUNTAKA-COOMASSIE,J.C.A.

This is an appeal against the ruling of Oniyangi J. of the High Court of Justice F.C.T., Abuja – now lower court – dismissing the plaintiff/applicant’s application for leave to enforce his Fundamental Rights. The applicant before that court is henceforth referred to as the appellant.

Facts leading to the above application appeared to be straight forward. The appellant, a business man, was alleged to have been arrested on 10/3/97 by men of the Criminal Investigation Department Force Headquarters of the Nigerian Police Force, Abuja and subsequently detained. The arrest was sequel to a formal complaint, by one Wale Opeyemi from Lagos in 1995. The complainant claimed to be the appellant’s business partner to whom the appellant was indebted to the tune of N922,000.00 and had paid N200,000.00 before the said Opeyemi used the Police to collect the balance.

The appellant then filed a motion Exparte before the lower court to enforce his Fundamental Rights pursuant to the Fundamental Rights Enforcement Rules Cap 62, Laws of the Federation of Nigeria 1990 seeking for the following orders:

1. An order for leave of this Honourable Court to enforce the Fundamental Rights of the applicant.
2. An order for the absolute release of the applicant or in the alternative an order for the release of the applicant on bail.

The appellant filed a seven-paragraph affidavit in support, sworn to by one Haruna Mustapha. He relied on all the paragraphs especially paragraphs 3, 4, 5 and 6 thereof. He also filed statement, grounds and affidavit of urgency. I reproduce paragraphs 3 – 6 thus:-

3. That I was informed by the application on 28/3/97 at about 1 p.m. at the Force Headquarters, Abuja and I verily believe same as follow:-
4. That the appellant was arrested on 10/3/97 by C.I.D men from C.I.D. Force Head Quarters, Abuja.
5. That since his arrest, he has been detained at the Force Headquarters from 10/3/97 up to today 23/10/97, the day of making this application a period of 226 good days.

iii. That the relations and counsel for the applicant have made several frantic and systematic efforts to get him released on bail but the police have refused to co-operate or grant same.

1. That the police appear to have no interest in releasing the applicant on bail or charging him to any competent court of jurisdiction.
2. That the police intend to keep him (applicant) in custody for a very long time unless the applicant agree to do what they want him to do.
3. That it is only this Honourable court who can intervene in this matter to save the applicant from the shackles of police brutality, inhumanily and prejudicial indiscretion.
4. That I was informed by the applicant on the date and the time first above mentioned and I verily believed same to be true that:-

(a) The applicant formed a business partnership with one Mr. Wale Opeyemi at Lagos in 1995.

(b) That Mr. Wale Opeyemi contributed the sum of N922,000.00 towards the partnership.

(c) That for no good reason, Mr. Wale Opeyemi decided to pull out of the partnership unilaterally and demanded the refund of his (Wale’s) contribution at a very short notice.

(d) That the applicant refunded to Wale the sum of N200,000.00 (Two Hundred Thousand Naira) and made further arrangements to refund the rest since Wale Opeyemi’s sudden “U Turn” was not expected.

5. That I was informed by the applicant at the date and time mentioned above and I verily believed same to be true that the applicant had travelled to Abuja from Kano in order to transact business of contract with the Federal Government when Mr. Wale Opeyemi, his former partner caused his arrest by men of the Force Headquaters, C.I.D. Zone 10 Abuja.
6. That I was informed by the applicant and I verily believed same to be true that the Police from Force Headquarters, Abuja since his arrest have grossly trampled upon his fundamental rights and that there is the need to enforce same before this Honourable Court.

According to the affidavit in support, the applicant was detained for a period of 226 days. The Appellant’s therefore sought the following reliefs as follows:-

1. An order for the leave of the Honourable Court to enforce the fundamental rights of the applicant.
2. An order for the absolute release of the applicant or in the alternative an order for the release of the applicant on bail.
3. An order restraining the respondents, their agents and servants from harassing, threatening by any means, embarrassing the applicant or forcing the applicant to enter into any contract or payment proposal to one Wale Opeyemi.
4. The sum of N10 Million being damages for the unlawful arrest and detention of the applicant.
5. An order releasing the applicant’s motor vehicles seized and detained by the respondents without any cause or lawful justification Mercedes Benz 200. Registration No. Lagos AE 209 Ikorodu. The motion Ex parte was about to be moved on 26/1/97 when the learned judge of the lower court Oniyangi J. raised suo motu the issue of jurisdiction, as to whether his court would have power to entertain the issue of enforcement of the Fundamental Rights of a citizen in view of the provisions of Decree No. 107 of 1993. He then, rightly in my view, directed that the appellant shall put the other party on Notice so that both counsel can address him on that issue. Before the counsel to both parties could comply with the courts order, the respondents filed a Notice of preliminary objection challenging that the court has no jurisdiction to entertain the application in view of the combined effect of the provisions of Section 230 (1) (S) of Decree No. 107 and Section 42 of the 1979 Constitution as amended. That the jurisdiction to entertain application for leave to enforce the Fundamental Rights of individual has been exclusively vested on the Federal High Court.

Consequently, the lower court heard arguments on the preliminary objection on 3/12/97 where both counsel addressed the court. In a considered ruling delivered on 8/12/97, Oniyangi J. held that his court, High Court of Justice FCT Abuja, has no jurisdiction to entertain the matter. Its power to so entertain has already been taken away and vested in the Federal High Court. He then proceeded to dismiss the application before him. Aggrieved by the decision of the lower court the appellant lodged an appeal in this court and filed a Notice of Appeal containing the following three grounds of appeal:-

Ground 1

The trial Judge misdirected himself in law when he held that by virtue of Section 230(1)(s) of Decree 107 of 1993, the power of the High Court of a State which the High Court FCT, Abuja also shares under Section 42 of the 1979 constitution as it concerns the Enforcement of Fundamental Rights has been taken away and vested exclusively on the Federal High Court.