Mr. Xavier Saviour Essien V. The Area Commander, Police Headquarters, Ikot Ekpene & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

The Applicant now 3rd Respondent by her motion ex-parte filed on 26/8/05 in the High Court of Akwa Ibom State in the Uyo Judicial Division sought and obtained leave seeking the enforcement of her fundamental rights allegedly infringed upon by the 1st and 2nd Respondents and sought the following reliefs:-

(a) A declaration that arrest and detention of the Applicant by the 2nd Respondent acting on the authority of the 1st Respondent and on the instigation of the 3rd Respondent when the Applicant has not committed any offence is a violation of her fundamental rights to personal liberty and freedom of movement guaranteed under section 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999, therefore illegal, unlawful and unconstitutional.

(b) An order directing the Respondents to jointly and severally pay to the Applicant the sum of N500,000.00 (Five Hundred Thousand Naira) Only damages for the wrongful violation of her rights to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.

(c) An order of injunction restraining the Respondents whether by themselves, their agents, servants or persons however called from further interference in any manner whatsoever with the applicant’s enjoyment for her fundamental right to personal liberty and freedom of movement.

2. An order that the granting of leave operates as a stay of any further action, harassment, arrest, detention, intimidation or invasion of the applicant’s Fundamental Rights.

The motion ex-parte was supported by 20 paragraph affidavit deposed to by the Applicant wherein she exhibited a Medical Report marked Exh. “A”. The application was supported by a Statement describing the applicant and the reliefs sought together with grounds upon which the reliefs were being sought.

The ex-parte motion was heard by Okon J. sitting as a vacation Judge and he granted leave to the Applicant on 29/8/2005 to apply for an order enforcing or securing enforcement of her fundamental rights. She later filed a Motion on Notice pursuant to Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 1979 in the High Court of Akwa Ibom State, Uyo Judicial Division on 1st September, 2005. In the Motion on Notice she sought the following reliefs amongst others:-

(a)…

(b)An order directing the Respondents to jointly and severally pay to the Applicant the sum of N1 million (One Million Naira) damages for the wrongful violation of her rights to personal liberty and freedom of movement guaranteed under Section 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.

(c)…

(d) An order directing the 1st and 2nd Respondents to release to the applicant the applicant’s property to wit:

1 hair wig, 1 hand bag, 1 pair of slippers, 1 umbrella, cash sum of N5,000.00 and applicant’s National ID Card contained in the Applicant’s bag forcefully seized by the 3rd Respondent and handed over to the 1st and 2nd Respondents.

The motion was supported by 8 paragraph affidavit. The 3rd Respondent/Appellant filed a 25 paragraph affidavit in opposition and annexed two documents marked Exhs. 1 and 2 (namely Police Report on case of Assault and a Medical Form D). Arguments were taken after the applicant had filed a further and better affidavit and the trial court delivered its judgment on 31st January, 2008 and awarded the applicant N800.000.00 as damages against the 3rd Respondent for an alleged breach of her fundamental rights. Being dissatisfied with the judgment, the 3rd Respondent appealed and formulated the following five issues for determination:-

1. Whether the proceedings and judgment of the Court below was not a nullity.
2. Whether on consideration of the affidavit evidence before the Court below, the Court below as right or justified in law in awarding the sum of N800,000.00 as damages against the Appellant for the alleged breach of her fundamental rights.
3. Whether the judgment of the Court below was not perverse resulting in a miscarriage of justice.
4. Whether the Court below was justified in invoking suo motu and relying on Section 149(d) of the Evidence Act to give judgment in favour of the Respondent.
5. Whether the judgment of the court below was not tainted with bias.

In the Respondent’s brief filed on 29/4/2009 pursuant to order of court made on 28/4/2009 there are also five issues for determination namely:-