General Sani Abacha & Ors V. Chief Gani Fawehinmi (2000)

LAWGLOBAL HUB Lead Judgment Report

MICHAEL EKUNDAYO OGUNDARE, J.S.C. 

The facts of this case are simple enough. The respondent, a legal practitioner, was arrested without warrant at his residence on Tuesday January 30, 1996 at about 6 a.m., by six men who identified themselves as operatives of the State Security Service (hereinafter is referred to as SSS) and policemen, and taken away to the office of the SSS at Shangisha where he was detained. At the time of his arrest the respondent was not informed of, nor charged with, any offence. He was later detained at the Bauchi prisons. In consequence, he applied ex-parte through his counsel, to the Federal High Court, Lagos pursuant to the Fundamental Rights (Enforcement Procedure) Rules 1979 for the following reliefs against the 4 respondents who are now appellants before us and shall hereinafter be referred to as appellants:-

1. A declaration that the arrest of the applicant, Chief Gani Fawehinmi at his residence at 9A Ademola Close GRA, Ikeja, Lagos on Tuesday, January 30, 1996, by the State Security Service (SSS) or officers, servants, agents, privies of the respondents and/or of

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the Federal Military Government constitutes a violation of the applicant’s fundamental rights guaranteed under Sections 31, 32 and 38 of the 1979 Constitution and Articles 4, 5, 6 and 12 of the African Charter on Human & Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of Federation of Nigeria 1990 and is therefore illegal and unconstitutional.

2. A declaration that the detention and the continued detention of the applicant without charge since Tuesday January 30, 1996 when the applicant was arrested by the officers, servants, agents, privies of the respondents at his residence 9A Ademola Close GRA, Ikeja, Lagos constitutes a gross violation of the applicant’s fundamental rights guaranteed under Sections 31, 32 and 38 of the 1979 Constitution and Articles 5, 6 and 12 of the African Charter on Human & Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of Federation of Nigeria 1990 and is therefore illegal and unconstitutional.
3. A mandatory Order compelling the respondents, whether by themselves or by their officers, agents, servants privies or otherwise howsoever to

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forthwith release the applicant.

ALTERNATIVELY

An Order of mandamus compelling the respondents to forthwith arraign the applicant before a properly constituted Court or Tribunal as required by Section 33 of the Constitution of the Federal Republic of Nigeria 1979 as preserved by Decree 107 of 1993 and Article 7 of the African Charter on Human and Peoples Rights’ (Ratification and Enforcement) Act Cap.10 Laws of the Federation, 1990.

An injunction restraining the respondents, whether by themselves or by their officers, agents, servants, privies or otherwise howsoever from further arresting, detaining or in any other manner infringing on the fundamental rights of the applicant. N10,000,000.00 (Ten Million Naira) damages for the unlawful and unconstitutional arrest and/or detention of the applicant Chief Gani Fawehinmi.

Leave having been granted, he applied by motion on notice for the said reliefs. On being served with the motion papers learned counsel for the appellants filed a preliminary objection to the effect that the respondent could not maintain the action against the

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appellants on the ground that the Court lacked competence to entertain it. The reasons given for the objection were:

(i) By a subsidiary legislation made by the Inspector-General of Police in exercise or the powers conferred on him by State Security (Detention of Persons) Decree No.2 of 1984 (as amended) and further by Section 4 of the aforementioned Decree No.2 of 1984 (as amended), the respondent/applicants are immuned to any legal liabilities in respect of any action done pursuant to the Decree.

(ii) The Federal Military Government (Supremacy and Enforcement) of Powers Decree No. 12 of 1994 and Constitution (Suspension and Modification) Decree No. 107 oust the jurisdiction of this Honourable Court to entertain any civil proceedings that arise from anything done pursuant to the provisions of any Decree.