FALAYI V. AJAO & ORS

SQUIB CASE LAW

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO 12,
BEFORE HON.JUSTICE A.O.KAYODE-OGUNMEKAN (MRS) - JUDGE
ON THE 2ND DAY OF NOVEMBER, 2007

SUITNO-M/536/05

BETWEEN:

RUFUS FALAYI ...................................................... APPLICANT

AND

1. MR.ISREAL AJAO (AJ.G.ZONE 2, ONIKAN) )
2. MR.Y.BALOGUN (Assistant Comm. of Police )
in charge of the S.C.I.D Panti). )
3. MR.LAWRENCE AJIDAHUN ) RESPONDENTS
(2 i/c Investigations Zone 2 & I.P.O) )
4. COMMISSIONER OF POLICE, LAGOS STATE )
5. STALLION NIGERIA LTD. )

RULING
This is an application for the enforcement of the Fundamental Right of the Applicant which is brought pursuant to Order 1 Rules 2(1), (2), (3), (4),(5) & (6) of the Fundamental Rights enforcement Procedure) Rules 1979, Sections 35,37,41,43,44,46 of the 1999 Constitution of the Federal Republic of Nigeria, Articles 2,3.4,5,6,7,12,14,17,19 of the Africa Charter of Human & Peoples Rights and under the inherent jurisdiction of the Court. The Applicant is seeking for the following reliefs:-

1. An Order restraining the 1st to 4th Respondents from proceeding with the threat to re-arrest
and detain the Applicant and from confiscating his properties or resort to any extra judicial/extra legal means/self help apart from the charge No. D/72/2005 - COP V RUFUS FALAYI.

2. A declaration that the arrest, detention, humiliation, harassment and intimidation of the Applicant from 19th July to 3rd August 2005 at the State C.I.D, Panti by the agents of 1st – 4th Respondents at the instigation of the 5' Respondent is unlawful, illegal, unconstitutional constituted an infringement on the Applicant's fundamental rights.

3. A declaration that the arrest, detention, humilitation, harassment and initimidation of the Applicant on 23rd day of September 2005 at the Zone 2 Police Headquarters Onikan, by the agents of 1st -4"1 Respondents at the instigation of the 5111 Respondents, while a criminal case in respect of same offence, instituted against the Applicant by the said Respondents in charge No D/72/2005 is pending at the Chief Magistrate's Court, Yaba, is unlawful, illegal, unconstitutional and amounts to violation of the rights of the Applicants as enshrined in the Constitution.

4. A declaration that the seizure on the 18111 day of July 2005 by the 5th Respondent with the help of the 1st – 4th Respondents, of the Applicant's mobile phone handset and bag containing his
mobile phone hansct and his lecture notes and text hooks relating to his Institute of Chartered
Secretaries and Administrators' examinations, which prevented him from taking the examination
is unlawful ,illegal, unconstitutional and constituted an infringement on the fundamental rights
of the Applicant.

5. A declaration that the removal and carting away to Zone 2 Police Headquarters Onikan, on the
23rd day of September 2005 of the Applicant's valuables like split and window unit air conditioners, generator set by the agents of the 1s1 -41 Respondents on the instigation of and with the aid of the 5th Respondent's staff constituted infringement of the fundamental right of the
Applicant to own properties, privacy, human dignity etc, guaranteed by the 1999 Constitution and
the African Charter on Human & People’s Right.

6. An order directing the 1s1 to 4th Respondents to release to the Applicant forthwith, all his properties and belongings carted away by the agents of the 1st -4th Respondents led by the 3rd Respondent in company of the Staff of the 5111 Respondent led by one Sikiru Olumegbon on the
23rd day of September, 2005 and the handset plus the bag belonging to the Applicant seized by the 5th Respondent and are still illegally being held on to by the 5th Respondent.

7. An order that the Respondents jointly and severally pay the Applicant the sum of N 15 Million being compensation and/or damages for the unlawful arrest, detention, humiliation , dehumanization /constitutional rights of the Applicant.
AND for such further or other orders as the Honourable Court may deem fit to make in the circumstances of this case.
AND TAKE FURTHER NOTICE that at the hearing of this Motion the Applicant will rely on the Statement as well as the Verifying Affidavit attached to the Motion Ex-parte for leave.
The 1st – 4th Respondents never filed any Counter-Affidavit to this application. The 5th Respondent filed a Counter-Affidavit of 25 paragraphs which was sworn to by one Sikiru Olumebon the Head of Administration,
The Applicant filed a reply dated the 30th day of June 2006 to the Counter-Affidavit of the 5th Respondent.
Mr. D.A. Ajetomobi appeared for the Applicant, while S.A. Imosan Esq. appeared for the 5th Respondent.

The 1st -4th Respondent was not represented at the hearing of this application.

In moving this application, Learned Counsel to the Applicant relied on the Written Address filed wherein he formulated 5 issues for determination ;-

1. Whether 1st -4th Respondent have powers to detain the Applicant for two weeks?
2. Whether the seizure of the Applicant's properties by the 5th Respondent is justifiable at all?
3. Whether the in incessant harassment of the Applicant by the 5111 Respondent using the agents of the 1st -4th Respondents is lawful and constitutional?
4. Whether the Respondents have power under the law of Nigeria to subvert judicial or resort to
extra legal or extra judicial means while the case is pending before a Court of competent jurisdiction ?
5. Whether on the whole, the actions of the Respondents constitute infrignments or encroachments on the fundamental rights of the Applicant?

Counsel submitted that the l51^"' Respondents have no power to detain the Applicant for two weeks. He referred the Court to Chapter 4 of the 1999 Constitution and Article of the African Charters in support of his submission.
He slated that the detention of the applicants unlawful, illegal and unconstitutional.
In his further submission, Counsel stated that the 5th Respondent not being an establishment authorized by law lo seized the properties of the Applicant .He stated that the detention of the properties on the Applicant by the 511 Respondent is therefore unlawful as it amounts to self help.
Learned Counsel to the Applicant further submitted that the African Charter quarantees freedom from harassment while there is a charge pending in Court of competent Jurisdiction and that any harassment amounts to illegality bordering on Contempt of Court. In his further submission, Counsel to the Applicant stated that it is not the duly of the Police to try a criminal case, he submitted that such powers reside exclusively in the Court of law.
Counsel said it is unlawful for the Police to threaten to withdraw a case from the Court of law in order to deal with it extra judicially.
He further stated that if the Police purport to act under an existing law, if such law runs contrary to the Constitution of the Federal Republic of Nigeria and / or the African Charter, he submitted that such law must be held to be a nullity. Counsel cited the case of:
ABACHA VS FAWEHINMI (2000) 2 SC 1.

Learned Counsel further stated that the action of the agents of the 1st Respondent in conducting searches removing property of the Applicant while the charge has already been preferred against him amount to passing guilty verdict even before the case is heard, this derogate on the rights of the Applicant's right of presumption of innocence was meant to foist a situation of fait accompli on the Court of law.
Counsel in his submission obervated that the 1st – 4th Respondent were duly served just as the 5th Respondent was duly served, he stated that the 1st – 4th Respondents never made any effort to defend or responsed to this application.
Counsel submitted that the position of the law is that they arc deemed to have admitted all the averment-s and the positions in the Statement of the Applicant. He stated that the Court is not bound to wait indefinitely for them.
Learned Counsel to the Applicant humbly apply that the relief being sought against the 1st – 4th Respondent be granted since there is no challenge to the averment of the Applicant.
Counsel stated that giving the circumstance of this case can the 5th Defendant be held liable. He referred to the Counter-Affidavit dated the 10th day of March 2006 lo which a reply dated the 3rd day of June was filed.
He urged the Court to discountenanced the Counter-Affidavit filed by the 5th Respondent.
Counsel stated that the Deponent of the Counter-Affidavit claimed to be Head of Administration in the 5th Respondent's company. He argued that the deponent claimed to be head of administration in the 5th Respondent's company. Counsel stated that averment has been rebutted in the reply by the Applicant that the deponent is just a store keeper in another department for the sale of rice, while the Applicant was at the material lime in the Fishery department.

Counsel submitted that the facts deposed to by the said has not been within his personal knowledge as required by the Evidence Act.

He referred to the Counter-Affidavit in which it was stated that there was an auditing of the account- July 2004 and exhibits attached to the said Counter-Affidavit. That the audit report was done on the 9th of August 2004.

Counsel said the Applicant has averred that he was arrested and detained from 1911 July 2004 -
10th August 2005.
He concluded that the implication of the above disparity in dates is that the Applicant has been detained ever since the result of the audit came out and it means that the Applicant has not
omitted an offence as at the time he was detained.

Learned Counsel further stated that the 5th Respondent has adduced that a petition was written on the 20th day of July 2005 and which petition was forwarded to SCID Panti, Lagos.
Counsel argued that the 5th Respondent has not exhibited same and he urged that the Court to invoke the provision of Section 149 of the Evidence Act on this issue.
Learned Counsel informed the Court that the Audit Report attached as exhibit alleged that N 20, 955,910 was stolen but the charge placed before the Applicant and shown in the facts relied upon shows that N 50 million was content of the petition written to Panti.
Counsel told the Court that while the case was still going on at the Chief Magistrate Court another petition was written by the 5 Respondent to zone 2 which is sent to the 3rd Respondent along side the Deponent of the Counter-Affidavit filed to this application and some other officers Invaded the privacy of the Applicant.

Counsel submitted that the Counter-Affidavit filed by the 5th Respondent did not controvert or challenge the facts deposed to the Affidavit filed along with the application.
He slated that there was no denial by the 5111 Respondent of the main issue raised in the facts relied upon by the Applicant.

He further submitted that the Deponent of the Counter-Affidavit is not a Witness of truth. Counsel cited the cases :
(1) AYANWALE & ORS V ATANDA (1988 ) 1SC AT 1.
(2) ENGINEERING ENTERPRISE OF THE NIGER CONTRACTOR LTD VS A.G OF KADUNA STATE (1987) 2 NWLR (PART 57) PAGE 381.
(3) DAVID WEST NIGERIA LAW REPORT 1987 VOL. 1 AT PAGE 457.
(4) BP.LLO VS. A.G. OYO STATE (1986) 5 NWLR (PART 45) PAGE 828.
Learned Counsel humbly urged the Court to grant the prayers of the Applicant against the 1st - 5th Respondent because they have no defence.

In response to this application the l^11 Respondents did not file any Counter-Affidavit but the 5th Respondent filed a Counter-Affidavit dated the 3rd day of March 2006.
Learned Counsel to the Respondent submitted that there is no Affidavit in Support as required by the provisions of Order 2 Rule 2 (1) & (3) of the Fundamental Rights ( Enforcement) Procedure Rule 1979.

Counsel stated that it is a mandatory requirement of the provisions of Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement) Procedure Rule 1979.
He further submitted that failure to comply with this mandatory legal requirement invalidates the present Affidavit.


Learned Counsel further stated that the 5th Respondent has adduced that a petition was written on the 20th day of July 2005 and which petition was forwarded to SCID Panti, Lagos.
Counsel argued that the 5th Respondent has not exhibited same and he urged that the Court to invoke the provision of Section 149 of the Evidence Act on this issue.
Learned Counsel informed the Court that the Audit Report attached as exhibit alleged that N 20, 955,910 was stolen but the charge placed before the Applicant and shown in the facts relied upon shows that N 50 million was content of the petition written to Panti.
Counsel told the Court that while the case was still going on at the Chief Magistrate Court another petition was written by the 5 Respondent to zone 2 which is sent to the 3rd Respondent along side the Deponent of the Counter-Affidavit filed to this application and some other officers Invaded the privacy of the Applicant.

Counsel submitted that the Counter-Affidavit filed by the 5th Respondent did not controvert or challenge the facts deposed to the Affidavit filed along with the application.
He slated that there was no denial by the 5111 Respondent of the main issue raised in the facts relied upon by the Applicant.

He further submitted that the Deponent of the Counter-Affidavit is not a Witness of truth. Counsel cited the cases :

(1) AYANWALE & ORS V ATANDA (1988 ) 1SC AT 1.
(2) ENGINEERING ENTERPRISE OF THE NIGER CONTRACTOR LTD VS A.G 01-'
KADUNA STATE (1987) 2 NWLR (PART 57) PAGE 381.
(3) DAVID WEST NIGERIA LAW REPORT 1987 VOL. 1 AT PAGE 457.
(4) BP.LLO VS. A.G. OYO STATE (1986) 5 NWLR (PART 45) PAGE 828.
Learned Counsel humbly urged the Court to grant the prayers of the Applicant against the 1st - 5th Respondent because they have no defence.

In response to this application the l^11 Respondents did not file any Counter-Affidavit but the 5th Respondent filed a Counter-Affidavit dated the 3rd day of March 2006.
Learned Counsel to the Respondent submitted that there is no Affidavit in Support as required by the provisions of Order 2 Rule 2 (1) & (3) of the Fundamental Rights ( Enforcement) Procedure Rule 1979.

Counsel stated that it is a mandatory requirement of the provisions of Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement) Procedure Rule 1979.
He further submitted that failure to comply with this mandatory legal requirement invalidates the present Affidavit.


By virtue of Order 1 Rules 2 &3 of Fundamental Rights (Enforcement Procedure ) Rules 1979 an Applicant is required to set out the facts relied on in the Statement of Support of his application. The statement of facts should not be on oath. After setting out the facts an application is then required to verify on oath the facts relied on.

The Verifying Affidavit is the prima facie evidence of the statement in the application.
Therefore by virtue of Order 1 Rules 2 (3) of the Fundamental Rights (Enforcement Procedure ) Rules 1979 , an application for leave to enforce fundamental Right must be supported by :

(a) A statement setting out the same and description of the Applicant, the reliefs sought and the grounds in which it sought and,
(b) An Affidavit verifying the facts relied on.
In the present application, the Applicant has complied with the requirement of the law by filing a Verifying Affidavit dated the 15th day of November, 2005.
The Applicant in the instant application is seeking for 7 reliefs, 4 of which arc declaratory reliefs.

Declaratory Orders are discretionary. It is a form of judgment which is usually granted only in circumstances in which the Court is of the opinion, that the party seeking it has taken all facts into account to fully entitle him to the discretion of the court.
A party seeking declaration of a right must do so by giving satisfactory evidence. He can not rely on the non-participation in the case by the other side.
See case of: OKEREOCHA V MINISTRY OF COMMERCE & TOURISM (2001) 1 NWLR (PART 693) PAGE 213.

A Court in the exercise of its discretion to grant reliefs, should not form the habit of granting declaratory reliefs by admission or non-appearance of the other party.

In the present application, the evidence present to the Court for the consideration were the Motion on Notice, Verifying Affidavit, Written Address and Statement pursuant to Order.
On the other hand, the 1st - 41' Respondents did not file a Counter-Affidavit and were not represented at the hearing of the application. The 5th Respondent however filed a Counter- Affidavit in opposition to this application.

The Applicant is expected in this type of application to adduce sufficient evidence to warrant the grant of the reliefs being sought by him.

The Applicant in this present application presented some evidence in this Verifying Affidavit and the Statement pursuant to the Order under which the application was brought. The 5th Respondent has averred in the Counter-Affidavit filed that the facts in the Verifying Affidavit and Statement were at variance with the facts in the Counter-Affidavit.
In such a circumstance where an application is supported by an Affidavit against which there is also a Counter-Affidavit and the facts deposed to in such Affidavit arc irreconcilable in conflict, this is the position in the present application before this Court, to resolve such conflict as they are in the Verifying affidavit and Counter-Affidavit in this application the proper order is a call on the parties thereto to call oral evidence.
The parties to an application need not specifically request for leave to lead evidence on oath, the Court is expected to resolve conflicting Affidavit evidence by calling oral evidence of the deponent to resolve the conflict and if such oral evidence is not called the decision of the trial Court based on the conflicting Affidavit in the absence of the oral evidence will not be allowed to stand on appeal.
See case of: GBADAMOSI V ALETE (1998) 12 NWLR (PART 578) PAGES 406-407.

In the present application, there are so many conflicting facts in both the Verifying Affidavit and counter-Affidavit that this Court can not safely grant reliefs being sought without a call of oral evidence.

There arc conflicting evidence as to the money alleged to be stolen. There are conflicting evidence of N 15 million & N 50 million, this can only be clarified by the call of oral evidence by parties.

There arc also conflicting dates of the arrest and release of the Applicant, 'there is also the conflicting dates as to the audit report, there is also conflicts as to the facts of the search of the house of the Applicant amongst other irreconciliable facts in this application.

Generally where a Court is faced with Affidavit evidence which arc irreconciliable in conflict the Court as in this Court hearing the case would call for oral evidence from the Deponent or such other Witnesses as the parties may call so that the oral evidence would enable it test the Affidavit evidence and thereby resolve such conflicts arising from the affidavit evidence. See eases of;

(1) MICHIKA L.G. VS N.P.C (1998) 11 NWLR (PART 573) PAGE 204.
(2) FATOB1 V FATOBI (1976) 9-10 SC PAGES 6-7.

It is therefore my view that the reliefs being sought by the Applicant cannot be granted by this Court without a call oral evidence by Deponent to the Affidavit and other Witnesses.
Therefore this applications fails and it is accordingly struck out.