Chukwudi Nwanna V. Attorney General Of The Federation & Anor (2010)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A.

This appeal is against the judgment of the Federal High Court Lagos (the lower court) delivered on the 13th December, 2004 by Lewis-Allagoa, J wherein the learned trial Judge dismissed the appellant’s application for enforcement of fundamental right for want of jurisdiction on ground of non-joinder of the Inspector General of Police whom the court viewed as a necessary party. The appellant was aggrieved by that decision and appealed against it on two grounds, which are reproduced hereunder less their particulars:

1)”The lower court erred in law when it held that in the instant case before me the Inspector General of Police is a necessary party whose action is complained of the applicant has not joined him as a necessary party therefore this court has no jurisdiction to grant the applicant the relief he is seeking.

2) The lower court erred in law and in fact when it held that the arrest by the 2nd respondent on 15th July, 1997 was lawful.”

From these two grounds both parties raised the following two common issues for determination:

1) Whether the arrest and detention of the applicant was lawful?

2) Whether the Inspector General of Police is a necessary party to the action and whether his non joinder is fatal to the action?

The first issue for determination seems to contradict the very essence of the proceedings initiated by the appellant before the lower court for enforcement of fundamental right. Unless the violation or breach of the appellant’s fundamental right was allegedly wrongful, the issue of enforcement of such right would have been reduced to a non-starter.

The lower court had already pronounced that the appellant’s arrest and detention was lawful. For the avoidance of doubt the learned trial Judge stated (at page 289 of the record) as follows:

“In the circumstance the court can safely rely on exhibit NDLEA I II wherein the applicant was seriously indicted by the person MESSRS STEPEHN OKEY ONWURAH AND IKEM A. U. NWADIKE as being involved in a drug offence. That to my mind is proper ground for reasonable suspicion though not proof.

What is required for purpose of the arrest is reasonable suspicion and not proof. I therefore hold that the arrest by the 2nd respondent of the applicants on the 15th July, 1997 was lawful.”

The learned counsel for the appellant has a duty to show perversity in the decision of the lower court to justify tempering with it by the Court of Appeal. An appellate court does not ordinarily disturb or temper with findings of the lower court except it is perverse or misconceived or some how over reached the other party thereby occasioning a miscarriage of justice. The Supreme Court per Akintan, JSC in GARUBA VS YAHAYA observed thus:

“An appellate court should not ordinarily disturb or tamper with the findings of facts made by a trial court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising evidence given at a trial is pre eminently that of the trial court that saw and heard the witnesses. But an exception to the above rule is where there is a misdirection by the trial court. A misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised, or considered or misconceived or the law applicable is incorrectly applied by the trial court. As a result, there would be a miscarriage of justice if the decision erroneously reached is allowed to stand.”

The findings of the lower court in this case, are based on reasonable suspicion against the appellant as being involved in drug offences contrary to section 32 of the N.D.L.E.A. Act, Cap. 253 laws of the Federation of Nigeria 1990. An arrest or detention the subject of the Fundamental Rights Enforcement Procedure Rules is only that which violates any provision in the constitution or any Federal or State Law for the time being in force. An arrest or detention under reasonable suspicion is supported by section 35 (1) (c) of the 1999 Constitution which provides thus: