The Commissioner of Police V. Alhaji Isa Ibrahim (2016)
LawGlobal-Hub Lead Judgment Report
ISAIAH OLUFEMI AKEJU, J.C.A.
The Respondent, Alhaji Isa Ibrahim as the Applicant in suit No. KDH/KAD/253/2014 commenced through the motion on Notice dated 20th March, 2014 pursuant to Order 11 Rules 2, 3, 4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009; Section 44 of the Constitution of the Federal Republic of Nigeria 1999; African Charter on Peoples and Human Rights as well as the Universal Declaration on Human Rights, praying for the following orders;
1. A Declaration that the arrest and detention of the applicant’s CRV Jeep with Chassis No. JHLRD1859VC044976 red in color since January, 2013 till date by the Respondent for no justifiable reasons amounts to the infraction of the Applicant’s fundamental rights to own and use moveable property guaranteed under Section 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); relevant provisions of the African Chapter on Human peoples’ rights as well as the universal Declaration on Human Rights.
2. AN ORDER unconditionally releasing unto the Applicant his car, a Honda CRV jeep with chassis No.
1
JHLRD1859VC044976, RED in color which was forcefully seized from him since January, 2013 and is being detained till date by the Respondent.
3. AN ORDER of perpetual injunction restraining the Respondent, his agents, representatives, etc from further arresting and detaining the Applicant’s said car, a Honda CRV Jeep with Chassis No. JHLRD1859VC044976, red in color based on facts of this case.
4. ORDER awarding exemplary damages against the Respondent in favour of the Applicant in the sum of Twenty Five Million Naira (N25,000,000.00) for the infraction of the Applicant’s Fundamental Human Rights to own and use the said car.
5. AND for such further order or orders as the Honourable Court may deem fit to make in the circumstances of this case.
By the affidavit in support of the motion deposed to by the applicant himself, Alhaji Isa Ibrahim, it was stated that 15/5/2007, he purchased a Honda CRV Jeep with chassis JHLRD1859VC044976 red in color from divine motors at a price of One Million Two Hundred Thousand Naira (N1,200,000.00) and was issued a receipt No. 503 to that effect and also given the other particulars of the vehicle without
2
any form of challenge until January, 2013 when his wife went to Kaduna with the car and it developed a fault that necessitated its being taken to a mechanic workshop by one Engineer Abbas who later stated that he was arrested with the vehicle by a Police Officer and the vehicle was driven to Barnawa Police Station because the vehicle was claimed by one woman who eventually could not establish the claim; but the vehicle was still taken to the State CID where it was detained upon suspicion of its being stolen, even after he produced the original documents of the vehicle, the police still refused to release the vehicle and same has been detained despite the fact that there was no investigation going on and in spite of the several demands for the release of the vehicle, the absence of which caused serious setback to him in the execution of his business.
The statement of Name and Description of the Applicant, Grounds upon which Reliefs were predicated, as well as the written Address were filed with the application. Documents marked as exhibit A and exhibits B1 – B10 were also attached to the application.
In the Counter affidavit of 10 paragraphs
3
filed by the applicant as the Respondent and deposed to by one Corporal Yakubu Ali, who was among the team of investigators who investigated the case, it was stated that one Mr. Yakassai of Challawa Barnawa Area, Kaduna had reported a case of armed robbery on behalf of Charles Lovey Kato at Barnawa Police Station, on 21/11/2012, and on 8/1/13, one Corporal Pius Markus investigating the case saw the CRV Honda Jeep red color involved in the alleged robbery and same was driven by suspect in an armed robbery case already pending at the State CID Kaduna, and upon suspicion of its being stolen, the vehicle was brought to the Police Station where upon further investigation, Mrs. Amina Lovey who had earlier lodged a complaint confirmed that the vehicle was not her own; while though Bala Sa’eed produced the documents of the vehicle he did not produce one Alhaji Isa Ibrahim who he claimed to be the owner of the vehicle. NIt was further deposed that in compliance with the directive of the Inspector-General of Police dated 17/3/13, that all vehicles in Police Formations should be disposed, the appellant raised a signal to the Chief Magistrate Court for sale of
4
vehicles and other properties including the Honda CRV now in issue. It was also deposed that one Alhaji Sa’eed Bala was using the name Isa Ibrahim as a decoy in this case.
The appellant filed the written Address as well as documents marked as Exhibits P1 – P8 with the affidavit, and after hearing the learned Counsel for the parties, the trial Court, in the Ruling delivered on 24th June, 2014 found merit in the application and ordered that the arrest and detention of the applicant’s CRV Jeep by the Respondent amounted to the infraction of the applicant’s fundamental rights to own and use movable property guaranteed under Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights. The Court also ordered the Respondent to release to the Applicant his Honda CRV Jeep unconditionally while the Respondent, his agents, representatives etc were restrained from further arresting and detaining the Applicant’s Honda CRV Jeep. The claim for exemplary damages was not granted.
Aggrieved by the Ruling of the trial
5
Court aforesaid, the Respondent, now called the Appellant commenced the instant appeal through the notice of appeal dated 10th July, 2014 with three grounds of appeal, amended by addition of one ground of appeal, and in line with the relevant Rules of this Court, the parties filed and exchanged their Briefs of Argument. Thus the Appellant’s Brief of Argument prepared by Omo-Osagie M.A. Esq. was filed while the Respondent’s Brief was prepared by Auta Maisamari Esq. and filed, and the Appellant’s Reply on point of Law to the Respondent’s Brief was filed on 17th April, 2016.
The Appellant raised the following issues for determination;
1. Whether or not the lower Court was in error when he entertained the suit bothering on ownership of property vide fundamental rights procedure.
2. Whether the affidavit evidence of the Respondent dated 17th Mach, 2014 particularly of Paragraphs 6 – 7, wherein the Respondent referred to the Armed Robbery suspect as Engineer Abbas at page 5 of the Court’s record is fatal to the uncontroverted counter affidavit of the Appellant dated 31st March, 2014
3 Whether the Judgment of the lower Court is not against the
6
weight of evidence adduced by the Appellant in his counter affidavit dated 31st March, 2014.
4. Whether Order 1 – 4 of the Court below did not run contrary to Sections 214 and Section 44(2) of Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 4 and 31 (1) Police Act Cap. P.39 LFN 2004, SS. 361 – 362 of the Criminal Procedure Code (CPC).
The issues for determination according to the Respondent are the following;
1. Whether from the totality of the facts contained in the Applicant/Respondent’s affidavit in support of the Application for the enforcement of his fundamental Rights and the counter affidavit of the Respondent/Applicant, it can be said that the trial Court misdirected itself in Law or fads in granting the reliefs claimed by the applicant/Respondent
2. Whether there is anything in 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that precludes the Applicant/Respondent from demanding for the release of his personal property that was seized in accordance with Section 44 (2) (k) of the same Constitution and/or from the Court in granting such request.
To
7
ensure that nothing of substance is lost, I will adopt the issues raised by the Appellant for the purpose of the consideration and determination of this appeal which I believe that have covered the two issues raised by the Respondent.
On the first issue, the Appellant argued that any suit commenced under the fundamental Rights procedure Rules must be based on the breach of any of the rights enshrined under Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) but the claim of the Appellant does not fall under any of the known fundamental rights. It was submitted that the claim of the Appellant was directly related to the title over the Honda CRV car which was the main claim and the fundamental rights claim was ancillary to the main claim; WAEC V. AKINKUNMI (2008) 9 NWLR (Pt. 1091) 151. It was submitted that the applicant should have commenced the suit by Writ of summons and not under the Fundamental Rights procedure Rules; TUKUR V. GOV. OF GONGOLA STATE (1997) 6 NWLR (Pt. 510) 549; GRACE JACK V. UNIAGIC (2004) 5 NWLR (Pt. 865) 208; EGBUONU V. BRTCÂ (1997) 12 NWLR (Pt. 531) 1. On the issue of jurisdiction and its being
8
paramount in all proceedings the case of SHELLIM V. GOBANG (2009) 12 NWLR (Pt. 1156) 435 was cited.
The contention of the Appellant is that the claim of the plaintiff dictates the jurisdiction of the Court but the main claim of the Applicant did not fall within the ambit of the fundamental rights. It was submitted that the only process to be considered to determine the jurisdiction of Court is the writ of summons or the originating summons; USMAN V. BABA (2005) 5 NWLR (Pt.917) 115, It was submitted that the instant action which is contentious was commenced by a wrong approach; USUAMA V. EBONYI STATE (2006) 6 NWLR (Pt. 975) 184; TUKUR v. GOV. OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549; SEA TRUCKS NIG. LTD. V. ANIGBORO (2001) 2 NWLR (Pt.696) 569. It was contended that the action ought to have been commenced way of ordinary writ of summons. The case WAEC V. AKINKUNMI (2008) 9 NWLR (Pt. 1091) page 151 was cited to submit that the reliefs sought by the Respondents were not based on Fundamental Human Rights and the suit was therefore incompetent because the main claim is not breach of fundamental human rights and there was no proper invocation of the
9
jurisdiction of the Court to entertain the action. It was also submitted that the fundamental rights are the rights guaranteed under Chapter IV of the Constitution and no other; ODOGU V. A,G. FRN 96 (6 NWLR) (Pt. 456) 508.
The learned Counsel submitted that since the main relief sought by the applicant bothered on the Honda CRV, the claim ought to have been initiated by ordinary writ of summons so as to put the Court in a position to adjudicate thereon; WAEC V. ADEYANU (Supra). It was submitted that the case of the nature brought by the Respondent could have been brought by both writ of summons and originating motions; TUKUR V. GOV. GONGOLA STATE 89 4 NWLR (Pt. 117) 510; EGBUONU v. BRTCÂ 97 12 NWLR (Pt. 531) PAGE 29; OKECHUKWU V. EFCC (2015) 18 NWLR (Pt. 1490) 1.
The learned Counsel for the Respondent argued that the Respondent relied on Sections 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to approach the Court when he perceived that his right to own and enjoy his car had been infracted by the Appellant through the arrest of same in January , 2013 and its continued detention, and the assertion of the Respondent
10
that he purchased the car for N1,200,000.00 on 15th May, 2007 was not controverted by the Appellant and the person who allegedly lodged a complaint could not identify the vehicle as his or her own and nobody laid claim to – the vehicle. It was further contended that it was not shown that Sa’eed Bala who was said to be an armed robbery suspect was convicted for offence relating to the car and was not even charged to Court in respect of the vehicle.
The two sections of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) on which the Respondent had relied for his claim before the trial Court are Section 44 and 46 under Chapter IV of the Constitution which respectively provide as follows:-
“44 Compulsory acquisition of property.
1. No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things-
a. Require the prompt payment of compensation therefore and
b. Gives to any person claiming such
11
compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.
46. Special jurisdiction of High Court and legal aid-
1. Any person who alleges that any of the provisions of this chapter has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.
These provisions are written in clear, plain, simple and unambiguous words, and the law as to interpretation of statute is that where the words of a statute are very clear and unambiguous, effect must be given to those plain words. See OKOTIE-EBOH V. MANAGER (2004) 18 NWLR (Pt. 905) 242; GANKON V. UGOCHUKWU CHEM. INDUS. LTD. (1993) 6 SCNJ 263; OMOIJAHE v. UMORU (1999) 8 NWLR (Pt. 614) 178. The whole essence of the exercise of interpretation of a statute is to ensure that the purpose set by the makers of the statute is achieved and it is incumbent on the Court to ensure that the aim is achieved. See OBOMHENSE V. ERHAHON (1993) 7 SCNJ 479; FAWEHINMI v. IGP (2002) 7 NWLR (Pt. 767) 606; AMADI V.
12
NNPC (2000) 10 NWLR (Pt. 674) 76.
In its clear and unambiguous provision, Section 44(1) provides against compulsorily taking possession of any movable or any interest in immovable property or compulsory acquisition of any interest in any such property in any part of Nigeria except in the manner and for the purposes prescribed by a law that requires prompt compensation and gives the person claiming compensation a right of access to Court or tribunal having jurisdiction while Section 46 empowers any person alleging a breach of any of the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or likelihood of such breach in any State to apply to a High Court in that State.
As correctly stated by the learned Counsel for the Appellant, the clear position of the law is that a claim can only qualify for initiation under the fundamental rights where it is clear that the principal relief sought by the claimant is for the enforcement of a fundamental right or securing such a right, and not for the purpose of seeking a redress of a grievance that is ancillary to the principal relief which is not a claim for
13
enforcement of fundamental right. See ABDULHAMID V. AKAR (2006) 13 NWLR (Pt. 996) 127; WAEC V. AKINKUNMI (2008) 4 SC 1; The correct approach as stated by IGRIBI-WHYLE JSC in the case of SEA TRUCKS (NIG.) LTD. V. ANIGBORO (2001) 3 NWLR (Pt. 696) 159 is to examine the relief sought, the grounds for such relief and the facts relied upon and where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is a redress of the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules.
I have had a calm study of the reliefs sought by the Respondent as well as the grounds for the reliefs and the facts relied upon, I am convinced that the principal as well as the ancillary reliefs of the Respondent are centered on the arrest and detention of the Honda CRV Jeep which he claimed to belong to him but was illegally arrested and detained by the Appellant thereby depriving him of his right to use and enjoy the car.
In the circumstances of this case therefore, the trial Court properly heard and determined the case under the Fundamental Rights (Enforcement Procedure) Rules. I
14
resolve this issue in favour of the Respondent.
On the second issue by the Appellant, there is no doubt that the learned trial judge having found that the Respondent established his title to the Honda CRV car and a breach of his right thereto by the Respondent was on a firm ground when he ordered the release of the car to the Respondent which is one of the substantive reliefs claimed by the Respondent.
On issue number 3 which is whether the judgment is against the weight of evidence adduced at the trial, it has become settled that the duty of evaluating or appraising evidence adduced at the trial of a case and the adscription of probative value thereto are within the powers of the trial Court that saw and heard the witnesses. See MAFIMISEBI V. EHUWA (2007) ALL FWLR (Pt. 355) 562; FABUNMI V. AGBE (1985) 3 SC 28; IRIRI V. ERHURHOBORA (1991) 2 NWLR (Pt. 173) 252. The law is also settled that where the trial Court has properly evaluated the evidence adduced and has correctly ascribed probative value thereto, an appellate Court will not interfere with the findings of the trial Court. See ALIBE V. YARO (2002) 1 NWLR (Pt. 747) 238; BALOGUN V. AGBOOLA
15
(1974) 1 ALL NWLR (Pt.2) 66.
I do not find any basis to revaluate the evidence already properly evaluated by the trial Court, or to embark on abscription of value or weight thereto since I am satisfied that the trial Court has sufficiently and satisfactorily carried out those duties.
This issue is resolved against the Appellant.
On issue four the Appellant’s contention that the trial Court ordered the release of the CRV Honda Jeep and granted a restraining order for the Respondent against the Appellant from further investigating him in connection with the said jeep is not borne out by the order of the trial Court on page 70 of the record which is limited to arrest and detention of the said Honda Jeep and not the person of the Respondent. It was argued that the Appellant had discretion to dispose unclaimed or abandoned property as he deems fit upon application to a Court of summary jurisdiction.
The learned trial judge made the findings at pages 68-69 of the record of appeal that;
“In this case there was a report of possible commission of crime on the said CRV Honda Jeep, the property claimed by the Applicant. The Police, the
16
Respondent were right to impound the vehicle so as to conduct an investigation.
The victims of the crime were called and they made a statement to the Police, Mrs. Amina Charles Lovey was asked to come with her particulars to identify the vehicle but could not claim same because it is not her own, The Abuja licenses office has confirmed that the Engine/Chassis numbers of the vehicle were not tampered with. These have been confirmed by the affidavit evidence of the Respondents. The only option left to the Respondent was to release the vehicle to the Applicant.
These facts show clearly that the vehicle could not and indeed did not belong to the category of unclaimed, or abandoned property to have been disposed. I agree with the learned judge that the Respondent was in error to have disposed the vehicle, and I resolve this issue also against the Appellant.
I have considered the Appellant’s Reply on points of law to the Respondent’s Brief which was filed on 17/4/15 and I do not find any ground for filing the Reply since the Respondent did not raise or argued any new point in the Respondent’s Brief. The law is that a Reply Brief is filed when
17
an issue of law or argument raised in the Respondent’s brief requires a Reply. The Reply Brief is not a second bite at the cherry or an avenue for a further or better argument. See OLAFISOYE V. FRN (2005) 51 WRN 52. The Reply Brief filed by the Appellant in this appeal is consequently discountenanced.
The consequence of the resolution of all the issues against the Appellant is that this appeal is unmeritorious and it is accordingly dismissed with no order as to costs.
Other Citations: (2016)LCN/8810(CA)
