Skypower Express Airways Ltd. V. Ajuma Olima & Anor (2005)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

This is an appeal against the ruling of Kolo, J., sitting at the Federal High Court, Jos, delivered on 15th January, 1997, against the appellant herein, who was the 3rd respondent in the court below. Two others who did not appeal were the 1st and 2nd respondents.

The respondents in this appeal were the applicants in the court below. They were citizens residing at Omutele village of Benue State. They are the relations of one Frank Olima, said to be a staff of the appellant, a company in Lagos. They claimed that at the “instance” of the appellant, the police came to their said village on 27/11/96, arrested them and took them away to Lagos, where they were detained at the Zone II Headquarters C.I.D., Onikan, Lagos. As deposed in the affidavit in support of the respondent’s claim, the reason for their arrest was that their said relation, Frank Olima was alleged to have committed some offence at his place of work as a staff of the appellant and could not be found. The deponent, Mrs. Etum Olima, the mother of Frank swore that she informed the policemen who came to the village, that Frank did not come home and that she was not aware that he had committed any offences as alleged. They arrested her and the respondents, but after some pleading, they left her and took away the respondents who did not commit any offence to warrant their arrest and detention.

By a motion ex parte dated 4th December, 1996, the respondents applied to the Federal High Court for an order to enforce their fundamental rights and for interim reliefs on grounds set out in their statement in support. Their prayers are:-

(i) An order granting leave to the applicants to apply for an order enforcing their fundamental rights against the respondents in terms of the reliefs set out in the statement accompanying this application and on the ground set out therein.

(ii) An order directing the respondents herein to release the applicants forthwith pending the determination of the substantive motion.

(iii) A further order directing the respondents, their servants, or agents to file before this Honourable Court within seven days from the date of the order now sought evidence of the release of the applicants.

On 9/12/96, the court below made an order ex-parte in those terms. A 4th order required that the court’s order and processes, together with the motion on notice be served on the appellant and the other respondents to enable them attend court on 19/12/96 for the hearing of the motion on notice filed by the respondents.

It is common ground that those processes were served on 12/12/96 on the appellant in Lagos.

The motion on notice, prayed the court below as follows:-

(a) A declaration that the arrest of the applicants by the 1st and 2nd respondents’ agents on the 27/11/96, at the instance of the 3rd respondent herein and the continued detention of the applicants at the 2nd respondent’s office in Lagos, since the date of the arrest aforesaid is unconstitutional, illegal and unlawful detention of the applicants amounts to a gross infringement of the applicants fundamental rights guaranteed under sections 32(1) and 38(1) of the 1979 Constitution of the Federal Republic of Nigeria, as amended.

(b) The sum of N2.5 million being exemplary damages for unlawful arrest and detention.

When this motion on notice came up for hearing on the return date of 19/12/96 fixed by the court, notified the appellants and the other parties on 12/12/96, and notwithstanding that all the processes were duly served on them, they neither filed a counter-affidavit nor were they in court. In short, the appellant took no steps to defend the action or make any returns. The learned trial Judge after checking through the court’s records and observing this, permitted O. B. James, Esq., of counsel for the respondents to move the motion. This he did, noting among other things that the respondents were still being detained as at that date and, he urged the court to grant the application.

The court adjourned for ruling to 15th January, 1997.