Efcc V. Reinl (2020)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
This appeal is against the judgment of the Court of Appeal, Abuja Division delivered on 26/1/2018, affirming the judgment of the High Court of the Federal Capital Territory (FCT) delivered on 20/4/2016.
The respondent sued the appellant vide an Amended originating Motion dated and filed on 7/3/2016 seeking the following reliefs:
A. A Declaration that the arrest and detention of the Applicant by the Respondent since 28th December, 2015 is unlawful, unconstitutional, illegal and violation of the Applicant’s fundamental rights guaranteed by Section 35(1) and (4) of the 1999 Constitution of the Federal Republic of Nigeria.
B. A Declaration that the restriction/confinement placed on the Applicant by the Respondents by keeping him in their custody since December 28, 2015 is unlawful, unconstitutional and direct infraction of the rights of the Applicant to freedom of movement as guaranteed by Section 41 of the Constitution of the Federal Republic of Nigeria, 1999.
C. A Declaration that the continuing detention of the Applicant by the Respondent without informing
him of his offence in writing is unlawful, unconstitutional and an infraction of the Applicant’s right as guaranteed by Section 35(3) of the Constitution of the Federal Republic of Nigeria, 1999.
D. A Declaration that the refusal to release the Applicant until he admits laundering undisclosed amount of money or any sum whatsoever is unlawful, unconstitutional, illegal and a violation of the Applicant’s Fundamental Rights as guaranteed by Section 43 of the Constitution of the Federal Republic of Nigeria, 1999.
E. An Order of injunction restraining the Respondent whether by itself, servants, privies, agents or whosoever purporting to act on its behalf from violating or further violating the fundamental rights of the Applicant as guaranteed by Section 34(1), 35(1) & (4) and 43 of the Constitution of the Federal Republic of Nigeria, 1999.
F. The sum of the sum of Two Billion Naira (2,000,000,000) only as exemplary and aggravated damages for the infraction of the Applicant’s fundamental rights.
G. An Order restraining the Respondent whether by itself, servants, privies, agents or whosoever purporting to act on its behalf from violating or
further violating the Fundamental rights of the Applicant through prolonged detention or upon such terms as this Honourable Court may deem appropriate in the circumstances, pending the determination of this suit.
H. An Order of Court for the release of the Applicant from custody of the Respondent.
I. An Order directing the Respondent to tender a public apology to the Applicant.
J. An Order for the immediate release of the Applicant’s international passport confiscated by the Respondent.
K. And for such further orders as this Honourable Court may deem fit to make in the circumstances.
Upon being served with the process, the Appellant raised a preliminary objection to the hearing of the originating process on the following grounds:
(i) That the original originating motion was not served on it; and
(ii) That the respondent failed to comply with the provisions of the Fundamental Rights (Enforcement procedure) Rules (FREP), 2009 relating to the mode of commencement of an action in that the application did not contain a statement in support setting out the name and description of the applicant, the reliefs sought and the ground upon
which the reliefs are sought.
In defence of the substantive application, the appellant filed a counter affidavit wherein it denied detaining the respondent or confiscating his international passport. The respondent filed a further affidavit in response to the counter affidavit and attached thereto newspaper publications concerning his detention. After listening to the parties, the trial Court, in a reserved judgment delivered on 20/4/2016, dismissed the appellant’s preliminary objections and entered judgment in the substantive suit in the respondent’s favour. It found and held that the appellant unlawfully detained the respondent in its custody from 28/12/2015 until 5/6/2016 and also confiscated his international passport, as alleged. The Court awarded N10 million (Ten Million Naira) as damages in favour of the respondent and against the appellant for unlawful detention.
The appellant was dissatisfied with the judgment and lodged an appeal before the Court of Appeal, Abuja Division (the lower Court). In a considered judgment delivered on 26th January, 2018, the appeal was dismissed and the judgment of the trial Court was affirmed.
The appellant is still dissatisfied and has further appealed to this Court vide its Amended Notice of Appeal deemed filed on 23/10/2019 containing 4 grounds of appeal.
At the hearing of the appeal on 31/10/2019, I. Audu Esq., Legal Officer, EFCC, adopted and relied on the appellant’s brief filed on 9/7/2018 in urging the Court to allow the appeal. Afam Osigwe Esq., adopted and relied on the respondent’s brief filed on 7/8/2018 in urging the Court to dismiss the appeal and affirm the concurrent findings of the two lower Courts.
The appellant distilled 4 issues for the determination of the appeal as follows:
i. Whether the learned Justices of the Court of Appeal did not err in law in upholding the decision of the trial Court when they held that the trial Court had jurisdiction to entertain suit number HC/FCT/CV/849/2016.
ii. Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the amended originating motion dated 7th day of March, 2016 was accompanied with a statement as required by FREP Rules, 2009.
iii. Whether the learned Justices of the Court of Appeal were right in
law in upholding the decision of the trial Court when they held that the Appellant detained the Respondent for five weeks from 28/12/2015 till 5/2/2016 when there was no shred of evidence at the trial Court and the lower Court to that effect.
iv. whether the learned trial Judge did not err in law when he acted on the amended originating motion filed on 7th March 2016 which formed the basis of his decision when the said amended originating motion was incompetent having been amended and filed without the leave of the Court.
The respondent also submitted 4 issues for determination thus:
- Does the High Court of FCT have jurisdiction to entertain an application by Respondent for enforcement of fundamental rights against an agency of Federal Government of Nigeria?
- Was Respondent’s amended Originating Motion accompanied by with a Statement as required by the Fundamental Rights (Enforcement) Rules 2009?
- Was the Court below not right in upholding the trial Court’s finding that the Appellant arrested and detained Respondent from 28/12/15 until 05/02/16 (a period of five weeks).
- Was the trial Court not right in relying on the amended
Originating Motion as the basis for its decision?
I shall utilise the issues formulated by the appellant for the resolution of the appeal.
The brief facts of the case, as pleaded by the respondent in his affidavit in support of his originating motion are as follows: That he is an Austrian national married to a Nigerian woman, and has lived in Nigeria for over 20 years. That he has taken up residency in the country and has his businesses investments here. That on 28th December, 2015, five men who identified themselves as operatives of the appellant, stormed his home and with a search warrant and informed him that his presence was required at the appellant’s office in respect of an allegation of money laundering concerning contracts awarded to his companies by the office of the National Security Adviser. He denied any fraudulent dealing and informed the operatives that in fact he had outstanding payments due to him in respect of completed contracts, which had been verified by the office of the National Security Adviser. He averred that inspite of investigations which confirmed that there was no wrong doing on his part, the appellant ordered his
detention at their facility on 28/12/2015, where he remained without being charged to Court until 5/2/2016.
In the course of executing the search warrant in his home various documents belonging to his businesses, his international passport and items belonging to his wife and brother-in-law, such as their mobile phones, were confiscated. He averred that access to his bank accounts was restricted and he was placed on a watch list and no fly list. That the confiscation of his international passport and restriction of access to his bank accounts had damaged his reputation, affected his business and traumatised him.
As stated earlier, the appellant contended that the respondent was merely arrested for questioning following its investigation into the ill-fated arms deal by the office of the National Security Adviser, pursuant to which it was discovered that huge amounts of money were traced to companies in which the respondent is the alter ego. It denied detaining the respondent or confiscating his international passport.
Having stated the facts, I shall proceed to consider the issue for determination, I shall consider issues 1 and 4 first, as they
raise the issue of the jurisdiction of the Court to entertain the originating motion. Issues 2 and 3 will be considered thereafter.
Whether the learned Justices of the Court of Appeal did not err in law upholding the decision of the trial Court when they held that the trial Court had jurisdiction to entertain suit number HC/FCT/CV/849/2016.
It is the appellant’s contention that the appellant, the Economic and Financial Crimes Commission (EFCC) is an agent of the Federal Government, having been created by an Act of the National Assembly via the EFCC (Establishment) Act, 2004 and is charged with the responsibility of investigating all reported cases of economic and financial crimes in Nigeria. He referred to Sections 1(1)and 6(b) and (h) of the Act.
He submitted that by the combined effect of Sections 251 and 257 of the 1999 Constitution, as amended, exclusive jurisdiction is vested in the Federal High Court in the civil causes and matters set out in Section 251(1)(a)to(s) thereof, which includes suits seeking to challenge the administration management and control of the Federal Government or any of its agencies, or the operation and
interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies; or any action or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. He referred to Section 251(1)(p),(q)and(r).
He argued that a fundamental rights action seeking for declaratory reliefs for unlawful arrest and detention against the Federal Government or its agencies is an action “affecting the validity of any executive or administrative action or decision by the Federal Government on any of its agencies.” He argued that the suit falls within the exclusive jurisdiction of the Federal High Court notwithstanding the provisions of Section 46(1)and (2) and Section 272(1) of the Constitution. He submitted that although by Section 46(1) of the Constitution, the State High Courts, the Federal High Court and the High Court of the FCT have concurrent jurisdiction in matters of enforcement of fundamental rights, they do not have concurrent jurisdiction in respect of the subject matter of the enforcement where it fails within the purview of Section 251 of the Constitution.
He submitted that the wide powers conferred on the High Courts vide Sections 46(2) and 272(1) of the Constitution must be read subject to the provisions of Section 251 of the Constitution thereby limiting their powers to matters that do not fall within the purview of matters listed in Section 251 of the Constitution.
He referred to the case of Jack Vs University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 865) 208, wherein this Court held that the Federal High Court and the High Court of a State have concurrent jurisdiction in fundamental right enforcement cases but argued that the issue of the subject matter that led to the alleged breach was not raised or considered in that case. He submitted that in the instant case, the alleged breach, if established, was committed in the exercise of the appellant’s executive or administrative duties. He referred to Adetona V. Igele General Enterprises Ltd. (2011) LPELR-159 (SC), to the effect that when considering issues of jurisdiction, the territorial and subject matter jurisdiction of the Courts are relevant considerations. He relied on Minister of Internal Affairs V. Shugaba (1982) 3 NCLR 915 and
Tukur V. Government of Gongola State (1989) 3 NSCC 256. He submitted that since the subject matter of the investigation that led to the alleged breach is money laundering, by Section 20 of the Money Laundering (prohibition) Act 2011 (as amended), vests exclusive jurisdiction to try the offence on the Federal High Court. Relying on Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 @ 595, he submitted that jurisdiction is a threshhold issue and where the Court lacks jurisdiction, any act done would amount to a nullity. He also submitted that the issue of jurisdiction can be raised at any time. He cited the case of Bronik Motors Vs Wema Bank (1983) 1 SC NLR 296 @ 310 B-C, in support.
Learned counsel for the respondent, in reaction, submitted that the appellant misconceived the effect of Sections 251 and 257 of the Constitution. He submitted that there is nothing in those sections which suggests that being an agency of the Federal Government of Nigeria, the appellant cannot be sued for the enforcement of fundamental rights in the High Court of the Federal capital Territory or the High Court of a state. He noted that the substance of the respondent’s claim was his right to
personal liberty and freedom of movement. He submitted that contrary to the appellant’s contention, what the respondent was challenging was his detention by the appellant from 28/12/2015 to 5/2/2016 and not the administration or management and control of the EFCC; nor the operation and interpretation of the Constitution as it affects the EFCC, nor is it seeking a declaration or injunction affecting the validity of any executive or administrative action or decision by the Commission.
He submitted that the learned appellant’s counsel misconceived the decision of this Court in Jack V. University of Agriculture, Makurdi (supra). He submitted that the Court took a holistic look at the entire Sub-sections of Section 251 of the Constitution before reaching its decision. He submitted that the case of Adetona V. Igele General Enterprises ltd (supra) is not apposite because it dealt with the jurisdiction of the Federal High Court vis a vis the High Court of a State and was not an action for the enforcement of Fundamental Rights. He submitted further that Adetona did not consider or overrule the decision in Jack v. University of Agriculture (supra). He noted that the
appellant’s contention that the provisions of Chapter IV of the Constitution are subject to Section 251 thereof, was considered and resolved in the negative in Jack’s case.
Learned counsel submitted that even if he is wrong in the above submission, the respondent’s suit did not challenge the validity of any executive or administrative action but merely sought to enforce the respondent’s fundamental rights pursuant to Section 46(1) of the 1999 Constitution. He relied on the persuasive authority of the dictum of Affeni, J. in suit No. FCT/HC/CV/2573/20I7: Bartholomew Ononmhen Asuelimen v. FCT delivered on 30/4/2018, wherein similar postulations by the appellant were carefully considered and rejected.
On the contention that the subject matter of the suit is money laundering, learned counsel submitted that the Respondent did not invite the trial Court to consider and determine whether or not he committed the offence of money laundering and no such issue was tried by the Court. He referred to the finding of Agim, JCA on the point at page 305 of the record.
In determining this issue, I deem it necessary to set out the relevant provisions of the 1999
Constitution, as amended, for ease of reference. The Sections are: Sections 46(1), (2) and (3), Section 272(1) and Section 251(1) (p) (q) and (r):
“46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.
272(1) Subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of
a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence by any person.
251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters (relating to) –
p) the administration or the management and control of the Federal Government or any of its agencies;
q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
It is important to note that Chapter IV of the Constitution, which comprises Sections 33-46 sets out the
various fundamental rights guaranteed to every citizen of Nigeria. These include the right to life (Section 33), the right to dignity of the human person (Section 34), the right to personal liberty (Section 35), the right to fair hearing (Section 36); and the right to freedom of movement (Section 41), to name a few. As reproduced above, Section 46(1) provides that any person who alleges that any of the provisions of the Chapter (i.e. Chapter IV) has been, is being or is likely to be contravened in any State in relation to him, may apply to a High Court for redress. The High Courts are established by Section 249 – Federal High Court; 254A (1) – The National Industrial Court; the High Court of the Federal Capital Territory – Section 255 (1); and the High Court of a state – Section 270 (1). These Courts enjoy unlimited jurisdiction subject only to the provisions of Section 251 of the Constitution and any other provision thereof and in addition to such other jurisdiction as many be conferred upon them by law.
The meaning and nature of fundamental rights was explained by this Court in Chief (Mrs.) Olufunmilayo Ransome-Kuti & Ors. V. A.G Federation & Ors
(1985) LPELR-2940 SC) @ 33-34 B-C, where his Lordship Eso, J.S.C stated, inter alia:
“… what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact, is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution since independence… up to the present Constitution… is to have these rights enshrined in the Constitution so that the rights would be “immutable” to the extent of the “non-immutability” of the constitution itself.”
There is no doubt that by virtue of Section 251(1) of the Constitution, the Federal High Court enjoys exclusive jurisdiction to the exclusion of any other Court in respect of the causes and matters enumerated in Sub-paragraphs (a) to (s) respectively. Sub-paragraphs (p),(q) and (r) reproduced earlier are significant in this regard. It is not disputed that the Appellant, by virtue of the EFCC (Establishment) Act 2004 is an agency of the Federal Government.
It is also evident from Section 46(1) of the Constitution that a person seeking to enforce his fundamental rights may seek redress in
any High Court. The question that arises is whether the nature of the respondent’s claim before the trial Court has in any way restricted jurisdiction to hear it to the Federal High Court? It has been argued by learned counsel for the appellant that what should determine the Court’s jurisdiction is the subject matter of the alleged breach, which in his view, relates to the administration or management and control of the appellant.
With the greatest respect to learned counsel, this is an erroneous conception of the import of Section 46(1) of the Constitution. The provisions are clear and should be given their natural and ordinary meaning. At the risk of repetition, it provides that any person who alleges that any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in any state in relation to him, may apply to a High Court for redress.
A careful examination of the respondent’s claim shows clearly that he is not challenging any administrative or executive act or the management and control of the appellant. He is alleging that his unlawful arrest and detention by the appellant constitutes a breach of his
fundamental right to personal liberty guaranteed under Section 35(1) and (4) of the Constitution, his right to be notified in writing of any offence allegedly committed by him, guaranteed by Section 35(3) of the Constitution; his right to dignity guaranteed by Section 34(1) of the Constitution; and his right to property guaranteed by Section 43 of the Constitution.
In the case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112, Section 46(1) of the 1999 Constitution was interpreted by this Court. Reference was made to the interpretation of Section 42(1) of the 1979 Constitution (which is in pari materia with Section 46(1) of the 1999 Constitution, as amended), which was considered in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 AND Tukur V. Government of Gongola State (1989) 9 SC 1; (1989) 4 NWLR (pt.117) 517, to the effect that where both the State High Court and the Federal High Court exist in a State, they have concurrent jurisdiction in matters pertaining to fundamental rights.
His Lordship Uwaifo, J.S.C continued at page 111 Lines 21 to page 112 Lines 3 as follows:
“Section 42(1) is a special provision
which deals with matters of fundamental rights. It confers jurisdiction on any High Court in a State in matters of fundamental rights irrespective of who is affected by an action founded on such rights. On the other hand, Section 230 (1)(s) of the 1979 Constitution(as amended) is a general provision. The law is that where there is a special provision in a statute, a later general provision in a statute, a later general provision in the same statute capable of covering the same the same subject-matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared: See Federal Mortgage Bank of Nigeria V. Olloh (2002) 4 S.C. (Pt. II) 117; (2002) 9 NWLR (773) 475 at 489.
In my view, Section 42(1) is intended to give access to an aggrieved party to any High Court in a State where an alleged contravention of his fundamental right has taken place or is to take place, it is, therefore, a section which should itself be regarded as special and fundamental. The Court below was in error to hold that when a suit in respect of matters of fundamental right was brought against the
Federal Government or any of its agencies, Section 230(1) (s) of the 1979 Constitution (as amended) prevailed over Section 42(1).”
This authority is a direct answer to the appellant’s contention that the Federal High Court has exclusive jurisdiction to entertain the suit. The respondent’s contention in his supporting affidavit is that he was unlawfully detained without being informed in writing of his alleged offence and without being charged before a competent Court. It therefore cannot be correct to contend, as learned counsel for the appellant has done, that the subject matter of the originating motion was money laundering.
I am of the view and I do hold that the decision of this Court in Jack v. University of Agriculture, Makurdi (Supra) and the authorities of Bronik Motors Ltd. v. Wema Bank Ltd and Tukur v. Government of Gongola State (Supra) represent the correct position of the law in this regard.
In a recent decision of this Court in Federal University of Technology Minna, Niger State & Ors v. Bukola Oluwaseun Olutayo (2017) LPELR-43827 (SC) @ 27-32 D-E, I expressed the following opinion:
“it is quite evident that Section 46(1) [of the 1999 Constitution, as amended] above refers to “a High Court of a State” without any restriction. The violation of a citizen’s fundamental right is reviewed so seriously that the framers of the Constitution sought to ensure that no fetters are placed in the path of a citizen seeking to enforce his rights. In other words, the provision ensures that he has access to any High Court as long as it is within the State in which the alleged infraction occurred. Indeed it would negate the principle behind the guarantee if fundamental rights if a citizen were to have any obstacle placed in the path of enforcing those rights. There is no ambiguity in the provisions of the Constitution or of the fundamental rights (Enforcement Procedure) Rules… regarding which Court has jurisdiction to entertain an application for the enforcement of fundamental rights. The decision of this Court in Jack v. University of Agriculture Makurdi (2004) ALL FWLR (pt.200) 1506 @ 1518 B-D has put the matter to rest…”
I adopt the view so expressed in the instant case. So long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an
ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, have concurrent jurisdiction to entertain it. See: Tukur Vs Government of Gongola State (Supra).
In light of all that I have said above, I find no merit in this issue. It is accordingly resolved against the appellant.
Whether the learned trial Judge did not err in law when he acted on the amended originating motion filed on 7th March 2016, which formed the basis of his decision when the said amended originating motion was incompetent, having been amended and filed without the leave of the Court.
I observe that by this issue, learned counsel for the appellant is attacking the decision of the learned trial Judge based on an amended originating motion purportedly filed without the leave of that Court. All the complaints under this issue relate to the proceedings of the trial Court. This Court lacks jurisdiction to entertain complaints arising from the decision of the trial Court. The appellate jurisdiction of this Court is limited by Section 233(1) of the Constitution to hear and determine appeals from the Court of Appeal. In the
circumstances, this issue is incompetent. It is hereby struck out.
Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the amended originating motion dated 7th day of March, 2016 was accompanied with a statement as required by FREP Rules, 2009.
Learned counsel submitted that by Order II Rule 3 of the Fundamental Rights (Enforcement procedure) Rules 2009, it is mandatory that an applicant’s originating motion shall be supported by a statement setting out the name and address of the applicant, the relief sought and the grounds upon which the reliefs are sought. He submitted that the grounds upon which the reliefs are sough are not the same as the facts set out in the affidavit in support of the application and cannot be subsumed or incorporated in an affidavit. He submitted that the requirement for an affidavit in support of an originating motion is quite distinct and is an additional requirement to a statement in support of an originating motion. He submitted that non-compliance with the mandatory provisions of Order II Rule 3 and Order IX of the FREP Rules
renders the suit a nullity or incompetent. He relied on Madukolu V. Nkemdilim (Supra); Drexel Energy and Natural Resources Ltd. & Ors V. Trans International Bank & Ors. (2008) LPELR -962 (SC) @ 40-43 F-C.
In response, learned counsel for the respondent submitted that contrary to the appellant’s contention, the provisions of Order II Rule 3 of the FREP Rules 2009 were duly comprised with. He submitted further that by virtue of Order IX Rule 1 (wrongly stated as Order VI Rule 1), any non-compliance with the requirement as to time, place or manner or form shall be treated as an irregularity and may not nullify such proceedings except as they relate to (i) mode of commencement of the application and (ii) the subject matter is not within Chapter IV of the Constitution or the African Chapter on Human and Peoples Rights, (Ratification and Enforcement) Act. He referred to pages 59-61 of the record where the reliefs sought are set out in the statement under the caption. “Facts upon which the reliefs are sought.” He submitted that the grounds and facts relied on were incorporated by reference. On the principle of incorporation by reference, he referred to
Black’s Law Dictionary 8th edition page 781; Texaco (Nig) Plc V. Kehinde (2001) 6 NWLR (Pt. 781) 244. He submitted that the two lower Courts were right in holding that there was compliance with the provisions of Order II Rule 3 of the FREP, 2009 Rules. He submitted that the reliance by the Court below on the principle of incorporation by reference is in line with the decision of this Court in Okomu Oil Palm Co. Ltd v. Iserhienrhien (2001) 6 NWLR (pt.710) 660 @ 681. Referring to Articles 1 and 3(f) in the preamble to the Rules, learned counsel submitted that the Court is under an obligation to pursue the speedy and efficient enforcement and realisation of human rights in a manner calculated to advance Nigerian democracy, good governance, human rights and culture and that the Rules are for the purpose of advancing rather than restricting an applicant’s rights and freedoms.
Learned counsel submits that the appellant’s arguments are placing reliance on form and technicality to defeat the ends of justice. He cited several authorities in urging the Court to shun technicality in favour of substantial justice.
The finding of the lower Court in respect of this
issue, which affirmed the decision of the trial Court, can be found at pages 317 – 320 of the record. I deem it necessary to reproduce the finding in some detail below:
“Since the affidavit in support of the Originating motion must contain the fact which support the application and the reliefs sought for therein, the facts therein would certainly not be different from the facts stated in the accompanying Statement as the grounds for the reliefs sought. The facts set out in the statement are usually a summary of the relevant facts that gave rise to the application. The said facts are more elaborately deposed to in the affidavits. It is for this reason that some applicants, instead of setting out the summary of the facts in the accompanying Statement, state therein their reliance on the facts in the supporting affidavit as the grounds for the reliefs sought.
I agree that this practice that clearly would not prejudice the respondent in anyway satisfies the requirement of Order 2 Rule 3 of the Fundamental Right Enforcement (procedure) Rules 2009 that the grounds for the reliefs sought be set out in the Statement. By stating in the statement that “facts upon
which the reliefs sought are as elaborately stated in the affidavit in support of the application”, the said facts in the affidavit became incorporated in the said statement as the grounds for the reliefs sought.
Learned counsel for the respondent has correctly argued that this practice of incorporating into the contents of a document that is primarily in issue the contents of another document by simply relying on or referring to the contents of the second document as part of the documents primarily in issue is permitted by law. This practice, variously identified as incorporation by reference, incorporation and adoption by reference is the express inclusion in one document the contents of another document. This practice is restated in the 9th Edition of Black’s Law Dictionary at page 834 thusly – “A method of making a secondary document part of a primary document by including in that primary document a Statement that the secondary document should be treated as if it were contained within the primary one..
The application of this principle in Nigeria is judicially established and approved in a long line of cases including Iwuoha V. NRC (Supra)
Okomu Oil Palm Co. Ltd v. Iserhienrhien (supra) Texaco Nig. Plc. V. Kehinde (supra) East Horizon Gas Co. Ltd & Ors V. Efiok & Ors. (2010) LPELR – 4066 (CA), Obusez & Anor V. Obusez & Anor (2007) 4 SC (Pt. 11) 28 Ekpemupolo & Ors. v. Edremoda & Ors. (2009) LPELR – 1089(SC) NNB Plc V. Owie (2010) LPELR – 4591) (CA) and (Pt 290) 698 at 714 – 715. The Supreme Court in Okomu Oil palm Co. Ltd. v. Iserhienrhien (supra) and in Ekpemupolo & Ors V. Edremoda & Ors. (supra) and this Court in Owena Bank Nig. Ltd. V. NSCC Ltd. (supra) laid down the law that the required content of a particular Court process prescribed by the relevant Rules of Court can be satisfied by incorporating into that process the content of another Court process in the same case. In these cases, the reliefs claimed for were not expressly set out in the Statement of Claim as required by the relevant Rules of Court, rather it was stated therein thusly “where of the plaintiffs claim as per their writ of Summons.” The Supreme Court in Ekpemupolo & Ors V, Edremoda & Ors (Supra) cited and followed its restatement in Okomu Oil palm Co. Ltd. V. Iserhienrhien (supra) that “reference
in a Statement of claim to the writ for the reliefs claimed in the writ of summons makes the statement of claim complete as it incorporates the writ” and approved and adopted the restatement of the Court in Owena Bank Nig, Ltd. V. NSCC thusly: “where the Statement of claim states that the plaintiff claims “as per writ of summons is incorporated in the statement of claim and becomes a part of it. Once there is such incorporation, the Statement of claim is taken to contain the relief stated in the writ which statement of claim would otherwise have been defective and contrary to the requirements of Order 13 Rule 7.”
The Statement that accompanied the Originating motion, having incorporated into it the facts contained in the affidavit in support of the said motion as the grounds for the reliefs sought, clearly complied with the requirements of Order 2 Rule 3 of the Fundamental Rights Enforcement (Procedure) Rules 2009.”
The above findings are unmissable. I endorse them in toto. The appellant has not shown that it has suffered a miscarriage of justice by the incorporation of the facts contained in the affidavit in support of the originating motion as grounds
for the relief sought. This issue is accordingly resolved against the appellant.
Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the appellant detained the respondent for five weeks from 28/12/2015 till 5/2/2016 when there was no shred of evidence at the trial Court and the lower Court to that effect.
Learned counsel for the appellant argued that while the appellant did not deny arresting the respondent on 28/12/2015 in connection with a case of money laundering, he was never detained. He submitted that notwithstanding its denial in its counter affidavit, the two lower Courts found and held that it unlawfully detained him without any evidence to that effect. He submitted that the onus was on the respondent to prove not only that it was the five operatives who went to his house that detained him but also that he was detained for the period alleged by CSPs Sharu and Madaki. He submitted further that there is no evidence that the respondent’s international passport was confiscated. He submitted that there is no burden on the appellant to prove the
negative and that it is only after the respondent has proved his allegation that the burden would shift to the appellant to prove otherwise. He referred to the case of Ohochukwu Vs A.G. Rivers State & Ors. (2012) LPELR -7849 (SC) @ 37E. He submitted that the two lower Courts wrongly placed the burden on the appellant to prove that it did not detain the respondent.
Learned counsel for the respondent submitted that there was sufficient evidence in the respondent’s supporting affidavit to prove that his fundamental rights were breached by the appellant. He noted that the respondent filed a Reply to the appellant’s counter affidavit wherein he deposed to the fact that his detention was widely reported in the print and news media and copies of the publications were attached thereto as exhibits. He submitted that the averments were not challenged. Similarly, the averment that it was not until his lawyer signed a bail bond for his release on 5/2/2016 that he was eventually released was also not denied. He submitted that inspite of being served with notice to produce, the appellant failed to produce the bail bond. He referred to other documents exhibited to
the application which further established the fact of his detention.
Learned counsel noted that the lower could held that having admitted that it arrested the respondent on 28/12/2015, the burden shifted to the appellant to show when he was released. He submitted that the weighty averments in the respondent’s affidavit, not materially denied or challenged by the appellant, are deemed admitted.
The finding of the lower Court on this issue is at pages 328-332 of the record. Having regard to the soundness of the reasoning, I shall again reproduce same in detail hereunder:
“Learned counsel for the appellant has submitted that the appellant did not deny that it arrested the respondent and expressly admitted in the appellant’s brief that the appellant arrested the respondent on 28/12/2015 in connection with a case of money laundering but was not detained from 28/12/2015 to 5/2/2016 or at all and that the respondent volunteered his Statement and was never detained. The primary legal duty of the respondent to prove his arrest and detention by the appellant became discharged upon the appellant’s admission that it arrested the respondent on 28/12/2015 in
his residence, searched same and took him to its office. Upon that admission, to the evidential burden shifted to the appellant to show when it released the respondent after arresting and taking him to their office on 28/12/2015. A suspect is detained immediately he or she is arrested and extends to his being taken into police or prison custody. This is because the arrest restrains his freedom of movement in any direction and freedom of choice of where to be and subjects him to the custody of those arresting him. S. 4 of the Administration of Criminal Justice Act 2015 which provides for how an arrest is to be effected states that “In making an arrest, the police officer or other persons making the arrest shall actually touch or confine the body of the suspect, unless there is a submission to the custody by word or action.” So an admission that suspect was arrested, carries with it an admission that he was detained from the moment of the arrest and those who arrested him cannot validity argue that they did not detain him. What should be considered at this juncture is whether the appellants released the respondent and when the respondent was released. As I had
held herein, the appellant who arrested him has the burden to prove that it released him and that it did so on a particular date. The appellant adduced no evidence to show the date he released the respondent after it arrested him. It did not in its counter-affidavit answer the deposition in paragraphs of 22 and 23 of the affidavits in support of the originating motion that the appellant continued to detain the respondent from 28/12/2015, when it arrested him till 5/2/2016, when it released the respondent. Since the appellant did not adduce evidence of when it released the respondent, the respondent’s deposition that after his arrest on 28/12/2015, the appellant continued to detain him till 5/2/2016 when it released him, remained unchallenged and uncontradicted and thereby admitted. It clearly failed to discharge the burden on it to show when the respondent was released and did not contradict or [challenged] the respondent’s deposition of that fact. When a party fails to contradict the evidence of the adverse party on a fact, he is deemed to have admitted such fact. Also uncontradicted evidence of a fact if credible must be accepted by the Court as establishing the truth of the
fact alleged therein…
The respondent deposed in paragraph 7 of his further affidavit filed on 21-3-2016 that “I was not released by the respondent until my lawyer signed a bail bond for my release on Friday, February 5, 2016. The Respondent is hereby given notice to produce the bail bond signed by [my] lawyer, Mazi Afam Osigwe” the appellant did not file a further counter affidavit to deny this deposition and thereby admitted it failed to produce the said bail bond to show when it released the respondent on bail. The respondent in paragraphs 30, 31, 32, 33, 34, 35 of the affidavits in support of the originating motion deposed that-
“30. Against all internationally acceptable best practice, the respondent’s operatives refused to record all the items, like the two phones confiscated from my brother-in law were not recorded so that a proper record of the same will be signed and kept in the file.
- The respondent wrote to my bank and restricted my access to my banks accounts.
- The officials of the respondent who met with me only a few times were only interested in forcing me to admit that I laundered money and therefore agree to refund money
to the Federal Government of Nigeria.
- The respondent is still holding on to my international passport which its operatives confiscated when they came to my house, despite all requests and entreaties for the release of the same.
- The confiscation of my international passport has made it extremely difficult for me to carry on my business which entails extensive international travels to attend meetings with business partners, conclude international and supervise and or co-ordinate projects in different cities of the world.
- The respondent has placed me on a watch- list and on a no-fly list without justification. I any have lived consistently in Nigeria for over twenty years and have in fact taken up residency here.
- I am ready to face any charge that may ever be brought against me as i have committed no crime in respect of which I would live in fear or seek to abscond from Nigeria.”
The appellant’s counter-affidavit did not respond to the above depositions that its officials who arrested the respondent confiscated and detained his international passport and other documents and have placed him on watch list and no fly list.
The counter affidavit is silent in the face of the said depositions. By not denying the said depositions, the appellant admitted them as true and correct. See Adesina v. The Commission, Ifon/Ilobu Boundary Commission & Anor. (supra) Okoebor V. Police Council & Ors. (supra) and A.G Plateau State V. A.G Nasarawa State (2005) 4 SC 58. So the respondent proved that appellant’s officials confiscated his International passport and other documents and placed him on a watch-list and no-fly-list.
For the above reasons, I hold that the trial Court was right when it held that the appellant detained the respondent from 28-12-2015 to 5-2-2016, seized his International passport and other documents and placed him on a watch-list and no-fly-list.”
I cannot fault the above reasoning. The appellant has failed to satisfy me that the reasoning is perverse or that any special circumstances exist to warrant interference with the concurrent findings of the two lower Courts. This issue is accordingly resolved against the appellant.
Having resolved issues 1, 2 and 3 against the appellant and having struck out issue 4 for incompetence, I find no merit whatsoever in the appeal. It is
hereby dismissed. The judgment of the lower Court is affirmed.
The respondent is entitled to the costs of the appeal, which I assess at N300,000 against the appellant.