Dominic Peter Ekanem V. Assistant Inspector General of Police (Zone 6) (2007)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO OMAGE, J.C.A.
In this appeal, the appellant sought in the High Court, Calabar on 14/6/05:
(i) “A declaration that the arrest and detention of the applicant not being in consonance with the provisions of section 35(i) (c), Constitution of the Federal Republic of Nigeria 1999, (in that the respondent cannot reasonably suppose that the applicant is reasonably suspected of having committed any criminal offence in flagrant violation of the said Constitution and so wrongful and unlawful).
(ii) “A declaration that the removal of applicant’s wearing effects save his shorts, the non provision of beds or other sleeping materials, thus causing applicant to either stand up sleeping, sit sleeping or sleep on bare cold floor in the present inclement weather constitute inhuman and degrading treatment, torture and therefore unconstitutional, wrongful and unlawful.”
The grounds upon which the orders are sought are stated in the record of proceedings in the court below.
The arrest and detention of the applicant by the respondent since 8th June, 2005 in the circumstances which are inconsistent with any supposition that applicant is reasonably suspected of having committed any criminal offence constitute a violation of applicant’s right to personal liberty.
(iii) “The removal of applicant’s wearing apparels, and the none provisions of any sleeping materials to the applicant causing the applicant to stand up sleeping or sit sleeping or to sleep on the bare floor in the prevailing inclement weather amount to inhuman and degrading treatment and therefore unconstitutional.”
The affidavit in support of the ex parte motion as well as of that of the motion on notice relate in some specific details the circumstances and occasions of the arrest of the applicant.
The relevant positions of the lengthy facts in support of the motion will be summarized at the appropriate time. The applicant’s ex parte motion was heard by the trial court on 23rd June, 2005, when the court granted the applicant, Dominic Peter Ekanem, leave to apply to the court for enforcement of his constitutionally guaranteed fundamental rights in section 34 and 35 of the 1999 Constitution, and the order to produce in court, the said Dominic Peter Ekanem. Pending the hearing of the motion on notice, the order of court is to operate as a stay of execution.
The ruling on the motion on notice was delivered by the court after the trial court had taken evidence from both parties in furtherance of affidavit in support of the motion on notice and the counter affidavit filed by the respondent. The ruling of the trial court delivered on 27/9/05 contained the recitals of the facts as follows:
“On 12th April, 2005, a village meeting was summoned at Uyo, Akwa Ibom State. Midway into the meeting, three vehicles drove into the meeting venue carrying more than 50 able bodied, well armed men. They identified ACP Inyang as the man in the photograph they were carrying and commenced beating him up.
They dragged him outside and tried to force him into their vehicle which he resisted. Youth in the village joined in the resistance and freed him. ACP Inyang lodged a report at Itak Police Station. There was an explosion in one of the vehicles. The incident was referred to the Ikot Akpan Abia Police Station for investigation. This was later transferred to Zone 6 Police – Calabar. It is the Zone 6, Calabar that the applicant was invited as a witness before (the respondent) after making a statement, the applicant was detained and arrested.”
The applicant submitted that the arrest and detention does not accord with the provisions of section 35(1) of the 1999 Constitution.
He said the application for enforcement of the applicant’s fundamental right was taken before the High Court, Calabar, because the applicant is detained in Calabar within the jurisdiction of the court.
The ostensible reason why the applicant is being detained is because he rescued ACP Inyang from death. See paragraph 18 of the affidavit in support of the motion.
The respondent denied the averments deposed to in the affidavit and said the applicant was being detained for the disappearance of one Victor Ekpo who is suspected to be killed and buried by the applicant. The respondent deposed that the applicant admitted that one villager was killed and the villager is Victor Ekpo. The applicant was detained pending investigation.
In this application, both parties rely on section 35 of the 1999 Constitution. The provisions of section 35(7) of the 1999 Constitution of the Federation includes inter alia that anybody reasonably suspected of having committed a capital offence may be arrested and or detained. The respondent offered that the reason why the applicant is detained is because a servant of Obongawan Grace Inyang, named Victor Ekpo is missing and is presumed dead and pending the investigation, the applicant is being held. The respondent’s counsel submitted that the cause of action in the claim to entitlement to the traditional head of Uyo Obio village in Ikono Local Government Area of Akwa Ibom State and the result therefrom is the scuffle in the village the result of which necessitated statements being taken from all affected parties and following the statement made by the applicant about the incident he was arrested and detained at Calabar Police Zone 6.
In court, the learned trial Judge ruled thus:
“The incident culminating in the arrest and detention of the applicant took place at Uyo Obio in Ikono Local Government Area of Akwa Ibom State. There is suit No. HU/178/2005 pending in the High Court, Uyo over the action. Police Zone 6, with headquarters at Calabar covers many states including Akwa Ibom State. The Police of Zone 6 will be bound by an order made by any of the courts in its constitutional states so the place of holding should really not be material to where the proceeding is instituted after all. Although held in Calabar if the applicant is to be prosecuted for any offence arising from the incident, the prosecution shall be at Akwa Ibom, State High Court and not Cross River State High Court. I am of the view that ancillary and incidental matters like bail ought to be taken where the main issue will be handled for completeness and ease of reference. The order here can conveniently be made in HU/178/2005. So why split the cause of action. For the above reasons, I hereby strike out this application from this court because by whatever procedure it is brought this is properly called an application for bail in a matter that will be tried in Akwa Ibom State over which this court has no territorial jurisdiction.”
The applicant was dissatisfied with the ruling of the court. He filed the appeal to this court against the whole decision of the court. The grounds of appeal formulated are contained on pages 83 – 85 of the record of appeal obtained by order of the Court for departure from the rules. From the four grounds filed, the appellant who filed his brief of argument on 7/3/06 formulated two issues for determination of the appeal. They are –
“(i) Whether or not the learned trial Judge was right in divesting himself of jurisdiction to entertain, adjudicate and determine the appellant’s suit for the reasons he adduced?
(ii) Whether or not having regard to the state of affidavit evidence in support of and against the applicant/appellant suit, the learned trial Judge ought to have made such declaration and orders enforcing the appellant’s fundamental right.”
The respondent’s counsel filed his brief on 5/6/06 and in it submitted that the only issue which arose from the judgment of the court does not include issue 2 of the appellant as the trial Court did not consider the merits of the case and the issue is whether or not the learned trial Judge was right in declining jurisdiction to hear and determine the appellant’s action.
My Lords, issue one of the appellant is in substance a decline of jurisdiction by the trial over the matter of fundamental human right claim by the applicant in the court below when the said court divested himself of jurisdiction to entertain and determine the appellant’s claim. The second issue formulated by the appellant is to wit, “whether or not having regard to the state of affidavit evidence in support of and against the appellant’s suit, the learned trial Judge ought to have made a declaration and order enforcing appellant’s fundamental right? The respondent has objected to it as not arising from the decision of the court below which merely declined jurisdiction. While it is true and correct practice in this court that issues for determination may be only issues arising from the judgment of the court below. See Odife & Anor v. Godfrey Aniemeka & 2 Ors. (1992) 7 NWLR (Pt. 251) 25 at 42. It is also true that the rules of practice allow the formulations of issues on omissions and incidental issues like errors made by the trial Judge. This may be included in the issues for determination by the court on appeal such as issue 2 in the appellant’s brief provided the issue arose in the proceeding. See Ademola v. Sodipo (1992) 7 SCNJ (Pt.II) 417 at 446 – 7; (192) 7 NWLR (Pt.253) 251. In my view, issue 2 is well founded and should be considered.
Issue one in both the appellant and the respondent briefs is whether the trial Judge in the matter for declaration of his fundamental right arrived at a just conclusion in the issue. It is right to consider the stated reasons for the decision of the trial court. These may be summarized as follows –
i) Enforcement for declaration of fundamental right in the con of the case before the court tantamount to application for bail.
ii) The pending matter of the facts stated is in Akwa Ibom State.
iii) The applicant who seeks the enforcement of his fundamental right is detained in Calabar in Cross River State.
iv) Though the Police in Zone 6 will or should obey order of court in an area or State for which Zone 6 Police exercised jurisdiction, it is safer or better not to split the action and to join the action to the pending suit pending in Akwa Ibom State in suit No. HU/178/2005.
In such conclusion, the learned trial Judge made an error. In the appellant’s reply brief, the appellant submitted that Suit No. HU/178/2005 is a civil matter in which he is not a party. He averred that it is a chieftaincy matter; which does not in any way concern him.
The applicant in the court below and the respondent rely on the provisions of section 35 of the Constitution of Nigeria. The operative provisions of section 35(1) state that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save, and in accordance with the procedure permitted by law. In the instant case, section 35(1) applies. Any person who is arrested and/or detained in accordance with sub-section (1) (a) shall be brought before a court of law within a reasonable time. The section also provides the limit or the period of detention within which the applicant may be taken to court thus, “two months from the date of arrest or detention in the case of a person in custody; and not entitled to bail.” In the instant matter, there is no pending charge of murder against the applicant only the averment of the respondent in the court below and in his brief the respondent insinuated that the applicant may be charged with murder of Victor Ekpo, but as yet there is no clear certainty that the person called Victor Ekpo is the person said to be dead or alleged to have died in the confrontation of both groups at Uyo Obio. It is even been said that no person called Victor Ekpo existed, who was a servant to Obongawan Grace Inyang, yet the applicant who was arrested and detained on 12/4/05 was kept in police custody by order of the respondent including and up to 27/9/05, when the ruling by the court was delivered. The applicant was still not taken before any court for determination of his fundamental right and the trial court refused to exercise jurisdiction in the matter. In this, I find that the trial court was in gross error for its failure to observe and comply with the Constitutional provisions in Order 35(1) (4) where the Federal High Court and State High Court each has jurisdiction to deliberate and adjudicate on the applicant’s claim. The error of the trial court is in failure to exercise its jurisdiction to enable the applicant to exercise his fundamental right as contained in the Constitution.
The civil rights contained in the Constitution against the unjust arrest and detention of a citizen which is protected by the enforcement of the fundamental right provisions should not be restricted in any way by technicalities where none is justified by the constitution. See Adesanya v. President of Federal Republic of Nigeria & Ors. (1981) 5 SC 112, (1981) 2 NCLR 358. What the trial court has done in the instant appeal, when it delivered judgment is to anticipate a criminal trial against the applicant where none existed, and deny the applicant the right to be heard on his claim when the court declined jurisdiction in the matter. See Odogu v. A.G. of The Federation & Ors. (2000) 2 HRLRA 82 at 102. The exercise of the applicant’s human right to complain of a wrongful arrest and detention should not be subject to any disability. See Odogwu supra; nor should any disability be anticipated to deny the applicant his right to seek a declaration of his right.
My Lords, in respect of issue one of both parties; I rule that in divesting himself of jurisdiction to entertain the appellant’s suit, the trial court was in error and in breach of his oath.
In respect of issue two, the failure of the learned trial court to exercise its jurisdiction when it is its duty to protect the liberty of a Nigerian citizen once it finds a justifiable case.
The issue to be determined is whether the claim is justiciable. Though the learned trial court declined jurisdiction and did not rule after hearing the affidavit evidence tendered in the court and indeed after hearing the viva voce evidence of the parties, implicit in, and deviating directly from his act of refusing to adjudicate, and decide on the issues one way or the other when the court has a right and when he had jurisdiction to hear the case is an issue which calls for determination. There are two sets of declaratory reliefs sought by the appellant in the court below:
“i) A declaration that the arrest and detention of the applicant not being in consonance with the provisions of section 35(1) (c) of the Constitution of the Federal Republic of Nigeria 1999 is wrongful and unlawful.
ii) A declaration that the removal of the applicant’s wearing apparel save his shorts, the none provision of bed or other sleeping materials thus causing applicant to stand sleeping… is degrading treatment, torture, and therefore unconstitutional, wrongful and unlawful.”
My Lords, generally, a declaratory order of court simply proclaims the existence of an event a legal situation. It may contain a specific order to be carried out; it may not necessarily direct the carrying out of the order. See Akunnia v. A.G., Anambra State (1977) 5 SC 161 at 170; Federal Ministry of Internal Affairs & Ors. v. Darman (1982) 3 NCLR 915 at 951.
In the applicant’s claim, which requires a declaration as to his right of claim to unlawful arrest and detention though the constitution provides for arrest on reasonable suspicion. Such suspicion does not amount to detention in anticipation of a charge of murder where there is no reasonable suspicion on which a charge may be made against the person. It is anticipated that as in a case of a crime, such suspicion referred to must be one beyond reasonable doubt. See section 139 Evidence Act.
In the instant case, the suspicion relied on by the respondent is uncertain. The decision of the court to decline jurisdiction in the matter after hearing evidence of both sides is a denial of a right of the appellant to freedom from unjust detention. A pronouncement by the court of the right of the appellant would be declaratory particularly in the light of the submission of the respondent in his brief that the detained applicant has been released on the advice of the Attorney-General, Akwa Ibom State before proceedings commenced in the High Court.
On the second relief for declaration i.e. where the applicant seeks a declaration that his captors should have provided him with sleeping materials and should not have removed his clothes except for his shorts. I am not of the view that such a declaration would not have been utopian in the Nigerian con whether the detention was in the Police Station or the prisons, having read about the general custodial situation in Nigeria. I am also of the view that the relief sought is not justiciable. Fundamental rights are in the realm of domestic law and they are fundamental because they have been guaranteed by the Constitution. See Uzoukwu v. Ezeollu II (1991) 6 NWLR (Pt. 200) 708 at 761. I do not know of any guaranteed right to be provided on arrest with a bed to sleep on though it is practicable to expect a detained person to sleep. Where he lies on before he sleeps is another matter. Every human is entitled to a fundamental right when only when he is not subject to any constitutional disability. A person who is detained from an offence within the law is subject to a constitutional disability. See Odogu v. A.-G., Federal & Ors. (1996) 6 NWLR (Pt. 456) 508 at 522.
My Lords, in my view the relief sought in prayer 2 for declaration by the applicant/appellant is not justiciable, not fundamental and not justiciable and I so declare. See Ezeoke v. Makarfi (1982) 3 NCLR 663-664; Ekpenkhio v. Egbadon & Anor. (1993) 7 NWLR (Pt. 308) 717.
In sum, I view that no useful purpose would be served if the suit is remitted to the court below for determination since the applicant/appellant is said to have been released from custody by the respondent.
I will therefore pronounce here, as this court is empowered to do under section 16 of the Court of Appeal Act, that a declaration is made to grant relief No. (a) in the appellant’s prayers that the detention of the applicant in the circumstance is unlawful.
Prayer (b) is refused as it is utopian and unenforceable. I make no order as to costs.
Other Citations: (2007)LCN/2598(CA)
