Mr. Niyi Aluko & Anor V. Commissioner of Police & Ors (2016)

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SOTONYE DENTON-WEST, J.C.A. 

This is an appeal against the judgment of the Ondo State High Court of Justice, Akure Division, presided over by Hon. Justice A. O. Odusola, delivered on 4th day of March, 2013.

The Applicants/Appellants claims were for the following:
(a) A declaration that invasion of the 1st Applicant’s residence and the forceful removal of his wife’s Toyota Camry Car with Reg. No. AT 889 AKR on the 11th day of October, 2011 is unlawful, inoperative, illegal, unconstitutional, and constitutes violation of his right to private and family life.
(b) A declaration that the threat to arrest and detain the Applicants on a civil action which does not constitute offence is unlawful, illegal and unconstitutional and a violation of fundamental right to liberty and freedom of movement.
(c) A declaration that the equitable mortgage transactions between the Applicants and the 3rd Respondent does not constitute a criminal offence under the Criminal Code Law of Ondo State or any other law to warrant the violation of the Fundamental Rights of the Applicants to personal liberty and

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freedom of movement by Section 35 of the 1999 Constitution (as amended) and Article 6 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act CAP A9 Laws of Federation of Nigeria 2004.
(d) An order directing the Respondents to release the 1st Applicant’s wife’s Toyota Camry Car with Registration No. AT 889 AKR seized at the residential premises of the Applicant.
(e) A perpetual injunction restraining the 1st, 2nd and 3rd Respondents, including their servants, agents, privies and officers from further infringement of the Applicants Fundamental Rights to private and family life, personal liberty and freedom of movement.
(f) An order for the payment of Twenty Million Naira (N20,000,000) to the Applicants for the atonement of violation of his Fundamental Rights to private and family life.

RELEVANT FACTS
The 1st Appellant obtained a loan facility from and entered into a mortgage transaction with the 3rd Respondent and deposited his title deeds. He was paid the sum of Four Hundred Thousand Naira (N400,000) out of Eight Hundred Thousand Naira loan.

?The Appellants alleged that on 11/01/2011, the 3rd

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Respondent in company of some hoodlums invaded the residence of the Appellants and drove away the 1st Appellant wife’s Toyota Camry Car with Reg. No. AT 889 AKR to the 3rd Respondent’s premises at Alagbaka, Akure. And that the impounded car belong to 1st Applicant’s wife, who has not entered into any transaction with the 3rd Respondent. Appellants stated further, that the 3rd Respondent instigated the 2nd Respondent to invite the 1st Appellant for questioning at the Police Headquarters, Akure and thereby violated his fundamental human right.

The Respondents however denied impounding the 1st Appellant wife’s car. They stated that it was the 1st Appellant that drove the car to the premises of the 3rd Respondent and after meeting with some staffers of the 3rd Respondent, parked the car at the 3rd Respondent premises to show his willingness to repay the loan facility within 2 weeks. And that since then neither the 1st Appellant nor anybody else has come for the car and was prevented from taking same. The 3rd Respondent denied instigating the 2nd Respondent to invite and question the 1st Appellant. The Appellants brought the action that culminated

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into this appeal to enforce their fundamental human right under Order 11 Rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The application was dismissed on 4/3/2009. Dissatisfied, the Applicants/Appellants filed a Notice of Appeal on 23/4/2013, containing four Grounds of Appeal.

In compliance with the rules of this Court, parties filed their respective briefs. The Appellants’ brief was settled by T. A. Oladimeji, Esq., dated 14/5/20145 but filed on 23/4/2014. T. A. Oladimeji Esq. formulated three issues for the determination of this appeal, thus:
1. Having regard to the findings of the trial Judge that the 1st Appellant wife’s Fundamental Rights were breached, whether or not the trial Court was right to deny the Applicants judgment.
2. Having regard to conflicting depositions in the affidavit evidence of both parties in respect of how the vehicle got to the Respondents’ office, (sic) whether or not the trial Court is wrong in not calling oral evidence to resolve the conflicts in the affidavit evidence of both the Appellants and 3rd Respondent – (Ground Two).
3. Whether or not the trial Court is (sic) right in

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