Patrick Nwangwu & Anor V. Barrister John Duru & Anor (2001)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

This appeal is against the ruling of 19/12/96 delivered by Bioshogun J. of the Federal High Court, Lagos Division. The facts of the matter as against their legal effect are not in controversy.

In that wise, I state the facts as briefly as thus: the applicants (the respondents in this appeal) by an ex parte application have sought three reliefs to enforce their fundamental rights against the respondents. In the light of the thrusts of arguments as will become evident in this matter, I have decided at the onset to identify the respondents at the court below as against the 8th and 9th respondents (the appellants in this case).

The respondents are namely:

1. The Inspector General of Police
2. Commissioner of Police, Lagos State
3. The Attorney General, Lagos State
4. The Area Commander, Barracks Police Station, Surulere – Lagos.
5. The Controller of Prisons, Lagos State
6. The Divisional Police Officer, Bode Thomas Police Station, Surulere-Lagos.
7. Inspector Chukwu
8. Mr. Patrick Nwangwu
9. Mrs. Nonyelum Nwangwu.

The three reliefs that have been claimed in the matters are as follows:

“A. A declaration that the arrest and detention of the applicants at the Barracks Police Station, Surulere, Lagos and the detention of 1st applicant at Bode Thomas Police Station, Surulere, Lagos and Ikoyi Prisons for periods ranging from 2 days to 10 days without justification and the threat of detention or further detention of the applicants is unconstitutional, unlawful, illegal; null and void.

B. An order restraining the respondents their agents or privie from arresting, rearresting or detaining the applicants.

C. An order directing the respondents jointly and severally to pay the applicants damages in the sum of N50,000.000 (Fifty Million Naira.)”

It is the respondent’s (the appellants in this appeal) version of the story that the applicants (the respondents in this appeal) with a court bailiff and some armed policemen broke into the respondents/appellant’s residence for purposes of levying execution of a default judgment in Suit No. LD/4128/93: J.O.O. Investment Company Ltd.and Anor. v.Solace Emams and Securities Ltd. And Anor. Obtained against the 1st appellant. In the process of the execution, some of the respondents/appellant’s properties have to be carted away while some of the properties although carted away have not been manifested on the Inventory of the Execution. Necessary actions have to be taken by the appellants to put further execution on hold. Eventually, the suit No. LD/4128/93 has to be struck out. The 2nd appellant wrote a petition to the Police and applicants/respondents were in consequence arrested and arraigned before the court, charged with house breaking and stealing. The respondents/appellants amongst other persons that is to say all Police Officers and Controller of Prisons having been served an application filed by the applicants/respondents for the enforcement of their fundamental rights have reacted and filed a motion on notice to dismiss or strike out the suit as incompetent on the grounds of want of proper parties to the action that the action has disclosed no cause of action against the appellants and that the court has no jurisdiction to entertain the action as constituted against the appellants.

The court below in a considered ruling held as follows:

“The jurisdiction of this court is as conferred in the statutory provisions enumerated above without exhausting them. Whereas section 42(1) of the 1979 Constitution is more of appropriate provision for the main suit. This conclusion is reinforced by the provision of section 6(1) of the 1979 Constitution. As regards the propriety of parties relating to the 8th and 9th respondents; they are not joined as nominal parties in that the affidavit evidence reflects that there is nexus between the 8th and 9th respondents and the 1st to 7th respondents. This is buttressed by the fact that the melancholy of the applicants is planked on the petition of the 8th and 9th respondents.

On the issue of non-disclosure of cause of action, the averments in the affidavit in support seem to point to the fact that the plaintiffs have a case against the 8m and 9m respondents… In the circumstance, therefore, the preliminary objection is incompetent and it is hereby dismissed… ”

Aggrieved by the decision the respondents/appellants have lodged this appeal having filed 2(two) substantive grounds of appeal to contest the decision. They are set forth as follows:

“1. The learned trial Judge erred in law in holding that he has jurisdiction to entertain the applicant’s action as constituted against the 8th and 9th respondents.