Amos Akila & Ors. V. Director General State Security Services & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

The facts leading to this Appeal are that the Appellants, Amos Akila, Daniel Gyang and Yakubu Sule, were arrested on the 30th July, 2010 by officers and men of the State Security Services, (agents of the 1st and 2nd Respondents), at a house in Maiduguri. Upon the execution of a search warrant in the premises, they were found to be in possession of a variety and quantity of arms and ammunition. They were promptly arrested and detained without bail.

Sometime during the period of their incarceration, specifically on the 19th August, 2010, they were paraded before members of the public and media. As a result, the 3rd and 4th Respondents, Media Trust Nigeria Ltd and Isa Umaru Gusau, who were present and watched the public spectacle, featured the story with photographs, in their Daily Trust newspaper of 19th August, 2010.

On the 8th October, 2010, while still in detention and having not been arraigned before any Court of law for trial, one Auta Maisamari Esq., of Counsel, on the instruction of the Appellants, filed a motion on notice seeking the enforcement of their fundamental rights pursuant to Sections 35 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therein, they prayed the lower court for the following reliefs:

1. A DECLARATION that the arrest of the applicants in the house of the 1st Applicant on 30th July, 2010 at Maiduguri and their continued detention since that date for more than two (2) months by the 1st and 2nd Respondents without charging them to a court of competent jurisdiction even when there are courts within a radius of 1 kilometre from the place of their incarceration amounts to an infringement of their fundamental rights to personal liberty guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 and the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights.
2. A DECLARATION that the arrest and detention of the Applicants by the 1st and 2nd Respondents without informing them in writing of the facts and grounds of their arrest and detention amounts to an infringement of their fundamental rights to personal liberty guaranteed under Section 35(3) of the Constitution of the Federal Republic of Nigeria 1999 and the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights.
3. A DECLARATION that the public parade of the Applicants on page 3 of the “Daily Trust” a newspaper owned by the 3rd Respondent by the Respondents (sic) and making insinuations that the Applicants are criminals even when they have not yet been tried and convicted by a court of competent jurisdiction amounts to prejudging them and consequently an infringement of their fundamental rights to fair hearing guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 and the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights.
4. An ORDER of the Honourable Court releasing the Applicants either unconditionally or upon such conditions as the Honourable Court may deem fit to make in the circumstances of this case.
5. An ORDER releasing unto the Applicants their money, the sum of four Million, Eight Hundred Thousand Naira (N4,800,000.00) seized from them without justification by the Respondents.
6. AWARD of exemplary damages in the sum of Twenty Million Naira (N20,000,000.00) in favour of the Applicants against all the Respondents severally and collectively for the infringement of the Applicants fundamental rights.
7. And for such further order or orders as Honourable Court may deem fit to make in the circumstances of this case.”

In support of the application were an affidavit and a further and better affidavit, attached to which were documentary exhibits. In response to the main affidavit, the 1st and 2nd Respondents filed a Counter affidavit and also annexed several documents in support thereof. At the hearing of the application, oral arguments were made by both learned Counsel for the Applicants and for the 1st and 2nd Respondents. The 3rd and 4th Respondents neither filed a Counter affidavit in reaction to the Applicants’ affidavit nor were they represented by any Counsel before the lower Court. As such, they did not in any way participate in the proceedings there. In a considered Ruling delivered on 15th December, 2010, the learned trial judge refused all the reliefs in the motion paper and dismissed the application. Coming under the omnibus prayer however, for any such order or orders as the court may deem fit to make in the circumstances, he made an order for accelerated hearing of the substantive suit No FHC/MG/CR/32/10, then filed before the Court.

Dissatisfied with the decision of the lower Court, the Applicants appealed to this Court via a Notice and Grounds of Appeal filed on 21st December, 2010. Therein, they complained on three (3) grounds. The grounds, shorn of their particulars, are reproduced hereunder as follows:

Ground 1- Error of law:

The Honourable Federal High Court Judge erred in law and abdicated in his judicial responsibility to safeguard the provisions of the Constitution when he dismissed the action of the appellants for the enforcement of their fundamental rights to personal liberty when there is evidence that the appellants were detained by the 1st and 2nd Respondents for more than two months without being tried contrary to the provisions of Section 35(4) of the Constitution of the Federal Republic of Nigeria and without giving any explanation for the inordinate length of time of detention.

Ground 2 – Error of law:

The Honourable Federal High Court judge erred in law when he held that the Fundamental rights of the Appellants to personal liberty was not infringed when they (appellants) were arrested and detained for more than 24 hours without being informed in writing of the facts and grounds of the arrest and detention.

Ground 3 – Error of law:

The trial Federal High Court judge erred in law when he dismissed the suit of the Appellants for the enforcement of their fundamental rights to fair hearing when without their first being convicted, they were displayed to the world as common criminals on the pages of “Daily Trust”, a newspaper published by the 3rd Respondent and without offering any justification for so doing.”

The Applicants therefore sought an order of this Court allowing the Appeal, setting aside the Ruling of the Federal High Court, Maiduguri and granting the reliefs sought by the Appellants in terms of the prayers in the motion paper.

On the 3rd December, 2012, when the Appeal was called up for hearing, the Appellants were represented by Mr. A. Maisamari, while the 1st and 2nd Respondents, as well as the 3rd and 4th Respondents, even though duly notified by the Registry of this Court through their respective Counsel, were not in Court and not represented by Counsel. Mr. Maisamari argued the Appeal. He adopted and relied on the Appellants’ Brief of argument filed on 17-05-11, (but deemed properly filed and served on 26-05-12), as well as the Appellants’ Reply Brief of argument in response to the 3rd and 4th Respondents’ Brief of argument, filed on 27-09-12, as the Appellants’ arguments in this Appeal. Counsel argued that the 1st and 2nd respondents do not contest the Appeal, having filed no brief of argument even when they had been duly served all the processes in the Appeal. In further adumbration of the arguments in the Appellants’ Briefs, Mr. Maisamari submits that the Chief Magistrate Court is not a court of competent jurisdiction by virtue of Section 3 of the Firearms Act, Cap F 28 of 2004 and Section 35(4) (a) of the 1999 Constitution. He accordingly urged the Court to allow the Appeal and grant the application for the enforcement of the fundamental rights of the Appellants.