Mr. Simeon Chijioke Agu V. Emeka Okpoko (2009)

LawGlobal-Hub Lead Judgment Report

REGINA OBIAGELI NWODO J.C.A.

The Applicant in the High Court commenced an action under the Fundamental Rights (Enforcement Procedure) Rules 1979 by Motion on Notice dated 27th July 2005 and filed 28/07/05 he sought the following reliefs set out in the Statement in support of the application.

2(a) A DECLARATION that the arrest of the Applicant on or about the 20th day of May 2005 and his consequent detention, and degrading treatment by the Nigeria Police at the instance of the 5th Respondent herein are gross violation of the Applicant’s Fundamental Rights guarantee under sections 34, 35, 37 and 41 of the Constitution of the Federal Republic of Nigeria 1999 and a violation of Articles 4, 5, 6 and 7 of the African charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990.

(b) A mandatory and perpetual injunction restraining the Respondents whether by themselves or their officials, privies, agents or otherwise howsoever from further arresting, and or threatening to detain and or arraign the applicant herein or in any other manner infringing on the Applicant’s Fundamental rights as guaranteed in the constitution.

(c) The sum of N500,000.00 (Five Hundred Thousand Naira only) as damages for the unlawful, unconstitutional arrest, and detention of the Applicant for sometime by the Police.

Briefly the facts as presented by the Applicant is that the 5th Respondent now the Appellant is the Managing Director of the Computer Systems Association (Nig.) Limited and CSA Investment Limited. Applicant had a retainership with the company and was briefed by them sometime towards the end of 2002 to recover the sum of N1.7million owed to the (5th Respondent) now Appellant, through the sale of a property belonging to their Debtor. The Applicant got a buyer that deposited N3, 000,000.00 (Three million naira) for the property whereof he informed the 5th Respondent who requested for the money to be given to him. The Applicant refused because the transaction had not been concluded. When he received the final payment for the said property, the Isolo Local government invaded the property and marked it “x” because there was no approved building plan. Applicant averred that the crisis as regards the approval and right to the property did not abate until about September 2003. He could not inform the 5th Respondent of the problem because he was engaged in his L.L.M examination at the University of Lagos around that period between September to November 2003.

When he received a letter dated 14th November 2003 from the 5th Respondent accusing him of stealing his money, he replied the letter and issued a cheque for N800, 000.00 after deducting what he termed as the outstanding bill due to him.

The 5th Respondent refused to accept the cheque. Thereafter the Applicant commenced an action in the High Court by writ of summons seeking declaratory reliefs on what is due to the 5th Respondent from the money recovered. He averred that after the suit was commenced the 5th Respondent petitioned to the police alleging stealing of his N1.7milliom by the applicant. Applicant averred he was invited to the Police Station and when he arrived he was detained and made to write a statement. Applicant was later granted bail by the police after he had presented documents on the transaction. He averred that the 5th Respondent in conjunction with the police have conceived to arraign him for trumped up charge of stealing. Applicant proceeded to the High Court, filed a motion exparte seeking leave of court to enforce his fundamental right under the reliefs set out in the statement in support of the application. On grant of leave on 26 July 2005, the Applicant filed a Motion on Notice on 28/07/05 praying for the reliefs earlier set out. The Respondent in response filed a 19 paragraph counter affidavit wherein the deponent averred that the applicant refused to return his money the sum of N1.7million and has fixed the said sum on an interest and thereby converted the 5th Respondent’s money.

The other Respondents did not enter appearance nor defend the action. The 5th Respondent filed a preliminary objection dated 5th of August 2005. Both the Motion on Notice and Notice of Preliminary objection were heard together. The learned trial Judge on 4th of May 2006 in her considered Judgment held that the Federal High Court has jurisdiction to entertain the claim and struck out the Preliminary objection on all grounds on the basis that it lacks merit. In respect of the main reliefs sought, the trial Judge held:

“that the arrest and consequent detention and degrading treatment by the Nigeria Police at the instance of the 5th Respondent are a gross violation of the Applicant’s Fundamental Right and a breach of his right to his freedom, dignity.”

She went further and held:

“I award the sum of N250,00.00 as damages to the applicant against the 5th Respondents”

The 5th Respondent now the Appellant aggrieved and dissatisfied with the decision of the lower court has appealed to this court vides a Notice of Appeal filed on 31/7/06 containing five Grounds of Appeal. In accordance with the Rules of this court Brief of Argument were filed and exchanged between the parties.

At the hearing of the appeal on 10th of March 2009, Mr. Eneonwuta, the learned counsel for the Appellant adopted his brief of argument and filed on 18/12/06 and the Reply Brief filed 9/5/087 and urged the court to allow the appeal and referred to another case UKAEGBU V. NWOLOLO 2007 3 NWLR (PT.1127) 194 PAGE 204.