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.
Wednesday, October 29, 2008
Monday, October 20, 2008
ADESINA V. OKHUOLOJIE & ORS
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO. 27 (GENERAL CIVIL DIVISION)
BEFORE THE HONOURABLE JUSTICE A. J. COKER (MRS.)
TODAY FRIDAY THE 11TH DAY OF JULY 2008
SUIT NO. ID/7767M/07
BETWEEN
BARRISTER EMMANUEL ADEBOWALE ADESINA }APPLICANT
AND
1. MR. FRED OKHUOLOJIE
2. PASTOR ISY B.O. KHOBYS
3. ASSISTANT INSPECTOR-GENERAL OF POLICE RESPONDENTS
[POLICE ZONAL HEADQUARTERS, ZONE II,
ONIKAN, LAGOS]
RULING
The Motion on Notice before the Court is brought under the Fundamental Enforcement Rights Proceedings by the Applicant, and dated the 18th day of December 2008. It seeks the following 4 reliefs as set out in the Amended Statement made pursuant to Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules in support of the Application:
A. A DECLARATION that the detention of the applicant at the Police Zonal Headquarters, Zone II, Onikan Lagos from Friday 16th November, 2007 to Monday 19th November, 2007 by the respondents was malicious, oppressive, illegal, unjust and a violent violation of applicant's fundamental right to liberty and human dignity.
B. AN ORDER restraining the respondents, their agents, representatives, privies howsoever from illegally arresting, detaining or otherwise molesting the applicant.
C. AN ORDER that the respondents pay to the applicant, the sum of N5 million (five million naira) for illegally detaining him from Friday 16th November, 2007 to Monday 19th November, 2007 at the Police
Zonal Headquarters, Zone II, Onikan, Lagos.
D. AN ORDER compelling the respondents to publish in at least two {2} national newspapers preferably, "The Punch" and "The Sun" newspapers a letter of unreserved apology to the applicant for the
illegal detention of the applicant from Friday 16th November, 2007 to Monday 19th November, 2007 at the Police Zonal Headquarters, Zone II, Onikan, Lagos.
The said reliefs are sought upon the following 3 grounds:
1. The Applicant is entitled under the law to personal liberty which can only be taken away from him or otherwise delimited only under the law and by due process.
2. The Respondents have no right in the manner in which they did to aspire, plan or attempt to take over or acquire the worship centre of which the Applicant is the head.
3. The Respondents had no right to cause the detention of the Applicant from the 16th November, 2007 to 19th November, 2007 as he was neither a criminal nor a criminal suspect or a person detained under any law or order of court.
In further support of the Application is a Verifying affidavit of 30 Paragraphs, sworn to by the Applicant himself, Barrister Emmanuel Adebowale Adesina.
These Processes were duly served on all the Respondents prior to the hearing of the said Motion and in opposition to this, only the 1st & 2nd Respondents filed and relied on a 16- paragraph Counter-Affidavit of 28/4/08 deposed to by the 1st Respondent, one Mr. Fred Okhuolojie.
At the hearing of the Motion, this Court was not aware of any process from the 3rd Respondent supposedly filed on the same hearing date of 17/6/08, which appears to have found its way into the Court's file after the hearing. Indeed, none of the Counsel in Court mentioned having been served with it. There is also no proof of service of same nor did any Counsel represent the 3rd Respondent in Court. This Court notes this very disturbing development on its Record. Unfortunately, this Court following the locus classicus of UTC V PAMOTEI (1989) 3 SC (Pt 1) 79; (1989) 2 NWLR (Pt 103) 244 may not be able to close its eyes to the process but will of course decide what probative value to be given to same in the course of the Ruling. See also Order 5 of the Fundamental Rights (Enforcement Procedure) Rules.
Suffice it to say that the. 3rd Respondent is by their Counter-Affidavit stating that-all they did was to arrest the Applicant pursuant to a Warrant of Arrest issued by Marsh J. further to a Petition received from the 1s1 & 2nd Respondents' Solicitor.
From the facts as deposed to, it is clear that the Applicant is contending that his arrest and detention by the 3rd Respondent allegedly at the instigation of the 1st B 2nd Respondents on the 2nd day of November 2007 (albeit for only an hour) and between the 161- day and the 19th day of November 2007 was illegal, unlawful and unconstitutional and a breach of his fundamental rights.
The Applicant further contends that pursuant to the 2 disputed Orders of Court of Marsh J.
of 19 day of January 2008 but especially of 5th day of November 2007 upon which the
alleged wrongful arrests and detention were made, were also illegally obtained and thus
wrongfully made.
The 2 Orders made are herewith reproduced for ease of reference:
19th January, 2007
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDER AT IKEJA
SUIT NO. ID/ 138M/2006
BETWEEN:-
1. MR. ERED OKHULOJIE APPLICANTS
2. PASTOR ISY B.O. KHOBYS
AND
1. THE INSPECTOR GENERAL OF POLICE
2. THE ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 2 ONIKAN LAGOS
3. COMMISSIONER OF POLICE LAGOS STATE COMMAND
4. DEPUTY COMMISSIONER OF POLICE STATE C.I.D. PANTS YABA, LAGOS
5. DIRECTOR OF STATE SECURITYSERVICE LAGOS STATE
6. SERGEANT DELE (IPO ZONE 2)
7. HENRY ADIOWE
8. CHRIS UKWEZE
ENROLMENT OF ORDER
UPON THIS SUIT coming up before this honourable Court AND AFTER HEARING Mr. Bisi Ademuwagun (with him Mr. Peter Paul Nnoroji) of Counsel for the Applicants and Mr. Dare Omotosho of Counsel for the Respondents.
LG.A. MARSH IT IS HEREBY ORDERED AS FOLLOWS:-
(JUDGE)
1. That Bench Warrant is ordered for the arrest of the contemnor. She should be detained in the nearest police station and be produced in Court on Thursday 22/2/07.
2. That the Deputy Sheriff is ordered to complete their execution. On no account should the officials be molested or threatened.
The police should ensure they are not obstructed from performing their duties. Whoever tries to molest or obstruct them should be arrested.
DATED AT IKEJA, THIS 19TH DAY OF JANUARY, 2007.
(Signed)
O. ANIGILAJE (MRS)
(REGISTRAR)
5th November, 2007
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDER AT IKEJA
SUIT NO. ID/ 138M/2006
BETWEEN:-
1. MR. ERED OKHULOJIE APPLICANTS
2. PASTOR ISY B.O. KHOBYS
AND
1. THE INSPECTOR GENERAL OF POLICE
2. THE ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 2 ONIKAN LAGOS
3. COMMISSIONER OF POLICE LAGOS STATE COMMAND
4. DEPUTY COMMISSIONER OF POLICE STATE C.I.D. PANTS YABA, LAGOS
5. DIRECTOR OF STATE SECURITYSERVICE LAGOS STATE
6. SERGEANT DELE (IPO ZONE 2)
7. HENRY ADIOWE
8. CHRIS UKWEZE
9. BENSON 0. AOWUEGBO
(Joined by the order of the Court Made on 24/5/2006)
ENROLMENT OF ORDER
MOTION EX-PARTE
BROUGHT PURSUANT TO SECTION 6(6) a&b
OF THE CONSTITUTION OF NIGERIA 1999
UPON THIS MOTION EX-PARTE coming up before this Honourable Court.
UPON READING the affidavit of urgency and affidavit of Fred Okhulojie, Male, Christian, Real Estate Developer, 1st Applicant in this matter of 20, Nwombo Street, Obagada, sworn to and filed on the 5th day of November, 2007 at the High Court Registry, Ikeja.
AND AFTER HEARING Mr. Kayode Fasetire of Counsel for the Applicants move in support of the Application.
L.G.A. MARSH IT IS HEREBY ORDERED:-
(JUDGE)
1. That order is granted directing the Deputy Sheriff of the High Court of Lagos State to complete the eviction of all illegal occupiers and trespassers on the 1st Applicant's land at Debari Village, Pedro, Lagos including:
(a) Redeemed Church, Adebayo Street Pedro
(b) Four Square Gospel Church, Pedro
(c) Chris Ukwueze
(d) Mrs. Oroboni
(e) Persons unknown
2. That order is granted directing the 1st-5th Respondents to desist from disturbing, inviting, arresting, interrogating, detaining and otherwise howsoever obstructing the 1st Applicant and his agents, workmen, etc in enjoying and exercising possession of his land (and buildings thereon) at Debari Village, Lagos.
3. That order Js granted for the arrest of Messrs E.A. Adesina, Mr. Chris Ukwueze, Mrs. Oroboni and other persons unknown that have re-entered possession after being evicted from the 1st Applicant's land at Debari Village, and disturbing the Sheriff in the course of the execution of this Court's Judgment on 2nd day of November, 2007.
DATED AT IKEJA THIS 5™ DAY OF NOVEMBER, 2007.
(Signed)
O. ANIGILAJE (MRS.)
(REGISTRAR)
The main grounds for his contentions are as deposed to in Paragraph 17 of his Verifyinig
Affidavit as follows:
17. That after a careful look at the said order, I informed the police that:
(a) I was not a party to the suit in which the other (sic) emanated.
(b) The order was obtained ex-parte, behind my back.
(c) The order did not give a return date of the action or state a time for my production in court.
(d) . The order did not stipulate that I should be detained and as such demanded that I should be released.
From the Counter-Affidavit of the 1st & 2nd Respondents, especially at paragraph 8, it is their position that in fact the disputed Orders obtained before Marsh J. were obtained to dislodge the Applicant and his church members who had jumped back onto the disputed land situate and being at No. 10, Adebayo Street, Pedro, Shomolu, after Execution of a valid Judgment in Suit No. ID/195M/2005 had been lawfully obtained in respect of a larger portion of land and handed over them from being there and harassing them. The said Paragraph 8 is herewith reproduced for ease of reference:
8. The facts of the matter are as follows:-
(a) I was put in possession of the large parcel of land, which include the land the subject matter of this suit, immediately I bought same in 1991 by the assignors, the descendants of Adoyi Alashe Chieftaincy Family.
(b) I was in possession of the entire large expanse of land since 1991 until sometimes in the year 2000 when some unknown persons trespassed on some portions of the land and erected structures thereon.
(c) The Supreme Court in Suit No. 114/48 gave judgment in favour of my predecessors-in-title i.e. Andoyi Alashe Family and affirmed their title over the large expanse of land including the subject matter of this suit.
(d) The Adoyi Alashe Family executed the said Supreme Court's judgment a very long time ago after which some trespassers including the Applicant entered the land.
(e) I instituted an action in Suit No. ID/195M/2005 against some known and unknown trespassers wherein this Honourable Court through Honourable Justice Alogba granted me possession on 14/6/2005 over the large expanse of land including the land, the subject matter of this suit.
(f) Possession of the entire land was given to be by the bailiffs of this Honourable Court and trespassers were chased away from the land. Attached herewith and marked EXHIBIT 'A' are copies of the Warrant of Possession and Certificate of Execution i.e. Form '01 issued by appropriate officers of this Court.
(g) After the afore-said execution, some persons, group and association such as Four Square Gospel Church, The Apostolic Church, Christ Apostolic Church, Mrs. Oroboni joined the afore-said Suit No. ID/195M/2005.
(h) Some of the afore-said persons/organisation started using police to harass the 2nd Respondent and I in respect of our possession and occupation of the land and we had no option than to institute a fundamental right action in Suit No. ID/138M/2006.
(i) We instituted the afore-said suit to protect our right to own property because the police was being used by some trespassers to dispossess us of our land.
(j) The afore-said Suit No. ID/138M/2006 is still pending before Honourable Justice Marsh of the Ikeja High Court.
It must be stated that what the Court is concerned about in proceedings such as this and in this suit, is whether the alleged harassment, arrest and detention of the Applicant is wrongful and unlawful to the extent that it amounted to a breach of his fundamental rights and ultra vires the powers of the 3rd Respondent and more importantly, also whether the said acts were done at the wrongful instigation of the 1st & 2nd Respondents. This of course, calls for the judicious exercise of the Court's discretionary powers only upon the processes placed before it.
From the processes before this Court, it is clear that the said above Orders in dispute given by Marsh J. were made m the course of fundamental rights enforcement proceedings in Suit NO. ID/138M/2006 AND said to have been sought for pursuant to Orders PREVIOUSLY made in a land matter as stated earlier.
As this Court pointed out to the Applicant Counsel, Mr. Ogunlana, and rightly submitted by the Respondent Counsel, Mr. Imam, the issue before this Court cannot be and is not to determine the lawfulness or wrongfulness or otherwise of the Orders made by Marsh J. That issue ought to be contended before that same Court. In any event, the said Order of Arrest in respect of the Applicant before this Court has been rescinded by the same Court in its further Order of 19th November 2007, upon which the Applicant was released. That Order is also reproduced for ease of reference:
19th day of November 2007
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
SUIT NO. ID/138M/2006
BETWEEN:-
1. MR. FRED OKHULOJIE APPLICANTS
2. PASTOR ISY B. 0. KHOBYS
AND
9. THE INSPECTOR GENERAL OF POLICE
10. THE ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 2 ONIKAN LAGOS
11. COMMISSIONER OF POLICE LAGOS STATE COMMAND
12. DEPUTY COMMISSIONER OF POLICE STATE C.I.D. PANTI YABA, LAGOS
13. DIRECTOR OF STATE SECURITY SERVICE LAGOS STATE
14. SERGEANT DELE (IPO ZONE 2)
15. WNRYADIGWE
16. CHRIS UKWEZE
ENROLMENT OF ORDER
MOTION EX-PARTE
BROUGHT PURSUANT TO SECTION 6 SUB-SECTION (6) (A) AND (B) OF
THE CONSTITUTION OF NIGERIA, 1999 AND THE INHERENT
JURISDICTION OF THE HONOURABLE COURT
UPON THIS MOTION EX-PARTE coming before this Honourable Court.
UPON READING the affidavit (attached with Exhibit) of Olanrewaju
Ajanaku, Male, Christian, Legal Practitioner of 197A, Ikorodu Road,
Palmgrove, Lagos, sworn to and filed on the 19th day of November,
2007 at the High Court Registry, Ikeja.
AND AFTER HEARING Mr. Bola Baderinwa of Counsel for the
Applicants and Mr. Bisi Ademuwagun of counsel for the Respondents
not opposing the application.
L.G.A. MARSH IT IS HEREBY ORDERED:-
(JUDGE)
1. That the Order of this Court made on the 5th day of November 2007 is rescinded.
2. That Revd. Aiyedun Sosanya, Mrs, Aiyedun Sosanya, Mrs. Wusu Abosede and Emmanuel Adebowale Adesina are ordered to be released from custody. On no account should they and other persons unknown disturb or obstruct the 1st Applicant and his agent in enjoying and exercising possession of his land and building thereon at Debari Village, Lagos in the execution of this Court's judgment.
DATED AT IKEJA, THIS 19TH DAY OF NOVEMBER, 2007.
(Signed)
O. ANIGILAJE (MRS.)
(REGISTRAR)
Again as pointed out by this Court in the course of the hearing, there are no facts before this Court or processes showing the basis upon which Marsh J. rescinded the Order. The Law is fairly well settled on the grounds upon which a Court can set aside its previous Orders. See the following cases on this;
1. PADAWA V JATAU (2003) FWLR (Pt 164) @ 228 esp. @ 237
2. VULCAN GASES V. G.I.V. (2001) 5 SC (Pt 1)
3. ALAO V. AFRICAN CONTINENTAL BANK LTD (2000) 6 SC (Pt 1) 27
From the above authorities, an Order or Judgment of Court can be set aside inter alia, on grounds of fraud, non-service, lack of jurisdiction.
Did that Court find facts to have been misrepresented, fraud or that it's Order was a nullity on any jurisdictional ground? There are no materials on this to assist this Court. See the case of DONGTOE V CSC PLATEAU STATE (2001) 4 SC (PART II) 43 esp. @ 68 where the Court held that it is essential in proceedings such as this:
"...for the applicant to place before the learned Judge all the material facts necessary for the exercise of discretion."
Nonetheless, this Court can safely infer and conclude simply that the said Order of the arrest of the Applicant was rescinded because it ought to be revoked irrespective of the grounds for the rescission.
Fundamental Human Rights Proceedings deals with rights as enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria and have nothing to do with land matters.
Suffice it to state therefore that as far as this Court is aware, Orders for Possession and Arrests for contempt of such Orders are not within the scope of Fundamental Human Rights proceedings and in this case could not be included in a claim to enforce fundamental rights.
See the cases of:
1. DONGTOE V CSC PLATEAU STATE supra @ page 56 where the Court held that:
"the relief which may be claimed by means of this procedure is limited to and confined to any of the provisions of Chapter IV of the Constitution. Any exercise of jurisdiction in respect of the subject matters outside chapter IV is without jurisdiction, unconstitutional and void."
2. TUKUR V TARABA STATE (1997) 6 NWLR (Part 510) 549 @ 576
3. WAEC V B AKINWUNMI (2008) 4 SC 1.
Thus, even if as alleged, execution had been previously levied, and the Applicant and his Church members jumped on the land and Respondents were being harassed as a result, as rightly pointed out by Mr. Ogunlana of Applicant Counsel, .the limit of the Court's jurisdiction in fundamental human rights proceedings is as stated above while the alleged contemnors ought to have been taken before the Court whose Judgment or Order they are allegedly in breach of by way of committal proceedings, whereupon they must be put on notice. This was not what was done herein. This Court is not unmindful of Order 6 of the Fundamental Rights Enforcement Rules, wherein the Court can also make orders for disobedience of its Orders but again this must be done by committal proceedings and following a particular procedure. Order 6 Rules 1 (1) & (2) provide as follows:
1. (1) At the hearing of any application, motion, or summons under these Rules, the Court or Judge concerned may make such orders, issue such writs, and give such directions as it or he may consider Just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution to which the complainant may be entitled.
(2) In default of obedience of any order made by the Court or Judge under these Rules, proceedings for the committal of the party disobeying such an order will be taken. Order of Committal is in the Form 6 of the Appendix.
No such step was shown to be taken.
This Court again observes that the Warrant of Execution, Form 0, exhibited by the 1st & 2nd Respondents shows Execution to have been allegedly levied almost 3 years ago on the 22nd day of June 2005. Yet by the Exhibit A, the Order of 19th January 2008 attached to the Application, the Deputy Sheriff was still empowered to complete the already completed execution. Further, by Exhibit E - copy of Motion brought by the 1st & 2nd Respondents, annexed to the Applicant's Affidavit, the 1st & 2nd Respondents sought for an Order of Possession & removal of structures, reliefs completely different from those sought for when Leave was sought for on their originating ex-parte process - Exhibit D to enforce their fundamental rights.
It is clear from the above that the main complaint of the 1st & 2nd Respondents as in their deposition in their Counter-Affidavit before this Court, specifically in paragraph 8(i) – was in fact their "right to own property", a right not covered by the procedure adopted leading to the Applicant's arrest and detention.
From the foregoing therefore, the only basis of the arrest and detention of the Applicant which arrest and detention have not been denied was the proceedings initiated by the 1st fit 2nd Respondents. Thus, it follows that his arrest and detention could only have been at their instigation. That Court cannot act and would not have acted to make Orders unless and until its powers are invoked. In this case, that Court acted at the instance of the 1st & 2nd Respondents and their lawyers. This has always been the position of the Applicant from the onset. See Paragraphs 16 & 18 of the Applicant's Affidavit as reproduced hereunder:
16. That the response of the sheriff was to cause policemen to arrest me, albeit temporarily for about an hour; all this while, the agents and thugs hired by the 1st and 2nd Respondents in company of the said sheriff boasted and shouted repeatedly that they were coming back against our church and would still take it over whether "you people like it or not."
18. That on the 16th November 2007, on the instruction and instigation of the 1st and 2nd defendant, the 31'd Respondent, officers and men, went to the Higher-Ground Parish of the 1st Applicant and took away some church members and workers to their office at Zonal Police Headquarters, Zone 2, Onikan, Lagos.
Contrary to the submissions of said Respondents Counsel, Mr. Imam, it was thus not necessary for the Applicant to file a further reply denying Paragraphs 9, 10, 11 & 13 of their Counter-Affidavit wherein they depose as follows:
9. Contrary to paragraph 18 of the Applicant's affidavit, Lukman Imam Esq., never insisted that the Applicant be detained. Lukman Imam Esq. informed me and I .verily believe the same to be true that he and one Mr. J.O. Adeniran (Counsel to the Applicant) made several efforts to resolve the issue amicably but the Deputy Commissioner of Police Zonal CID, Zone 2 had closed for the day when the parties went to his office to report settlement.
10. Contrary to paragraph 11, 13, 15, 19 and 20 of the Applicant's verifying affidavit, the Applicant was arrested and detained for disrupting and attempting to prevent the lawful execution of the orders made by this Honourable Court.
11. When the Applicant and others were released from Zone 2 custody by this Honourable Court on 19/11/2007, they were warned by the Court that on no account should they disturb or obstruct me and my agents in my enjoyment of possession of my land which includes the land the subject matter of this suit.
13. The order for arrest and detention of the Applicant was made by this Honourable Court and not by the 2nd Respondent or my humble self; we did not instigate the police to detain the Applicant as they detained him in compliance with the Court's order.
All submissions and cases cited in this regard are thus discountenanced as not applicable accordingly.
It is therefore no defence to this action as submitted by the Respondent Counsel, Mr. Lukman Imam, that the 1st & 2nd Respondents cannot be liable because the arrest and detention were made pursuant to Orders of Court, especially as the said Order of Arrest was rescinded and now also found to have been wrongly sought for and procured.
On the probative value to be given to the 3rd Respondent's Counter-Affidavit, their position from same as earlier stated, is that they acted pursuant to the Order of Court now found by this Court to be wrongly sought for by the 1st & 2nd Respondents, fn absence of facts to the contrary, it is difficult then to hold that the 3rd Defendant acted outside their powers pursuant to Section 4 of the Police Act which provides thus:
4. General duties of the police
The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.
See also MCLAREN V. JENNINGS (2003) 3 NWLR 470 esp. @ 473.
As rightly pointed out by the Respondent Counsel, the liberty of a citizen can be curtailed by the Police pursuant to Section 35(1) (c) of the 1999 Constitution which provides thus:
35. Right to personal liberty
(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
(c) he purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his it is not in dispute that the arrest on the 16th day of November 2008 was made pursuant to an order of Court and that date was a Friday. Further that a suspect can be detained for a "reasonable time" before he is charged. See Section 35 (4) & (5) of the 1999 Constitution on this. In this case, the detention was for the weekend. The Applicant was then released by the 3rd Respondent again pursuant to the Rescinding Order of Court on the following Monday 19th November 2008, in obedience of another Order of Court.
In the light of the foregoing and findings made above, the Application succeeds and this Court must find in favour of the Applicant on his declaratory relief and the 1st relief is granted as prayed accordingly. The 2nd relief is also granted accordingly consequent upon the grant of the 1st relief.
It is the Applicant's deposition in his paragraph 21 of his Affidavit that whilst in detention, he "suffered great physical discomfort & emotional and mental agony & trauma." This in this Court's view goes to damages for his discomfort and not to any direct acts of the 3rd Respondent whilst in detention.
The 3rd Relief is thus granted only against the 1st & 2nd Respondents in the sum of N2 Million (Two Million Naira) only.
Regarding the 4th relief, this Court is not unaware of Section 35(6) of the 1999 Constitution which provides as follows:
Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law.
However, in the light of the "limited" liability of the Police who were acting upon the Orders of the Court, albeit now found to have been wrongfully procured, the Court is unable to grant same in respect of the 3rd Respondent. This Court having also taken into consideration the surrounding circumstances of this case, it is of the belief that it is in the interest of justice that damages already awarded suffice as per the 3rd relief.
Thus the 4th relief is refused accordingly.
I so rule
Hon. Justice Adenike J. Coker (Mrs.)
11/7/08
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO. 27 (GENERAL CIVIL DIVISION)
BEFORE THE HONOURABLE JUSTICE A. J. COKER (MRS.)
TODAY FRIDAY THE 11TH DAY OF JULY 2008
SUIT NO. ID/7767M/07
BETWEEN
BARRISTER EMMANUEL ADEBOWALE ADESINA }APPLICANT
AND
1. MR. FRED OKHUOLOJIE
2. PASTOR ISY B.O. KHOBYS
3. ASSISTANT INSPECTOR-GENERAL OF POLICE RESPONDENTS
[POLICE ZONAL HEADQUARTERS, ZONE II,
ONIKAN, LAGOS]
RULING
The Motion on Notice before the Court is brought under the Fundamental Enforcement Rights Proceedings by the Applicant, and dated the 18th day of December 2008. It seeks the following 4 reliefs as set out in the Amended Statement made pursuant to Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules in support of the Application:
A. A DECLARATION that the detention of the applicant at the Police Zonal Headquarters, Zone II, Onikan Lagos from Friday 16th November, 2007 to Monday 19th November, 2007 by the respondents was malicious, oppressive, illegal, unjust and a violent violation of applicant's fundamental right to liberty and human dignity.
B. AN ORDER restraining the respondents, their agents, representatives, privies howsoever from illegally arresting, detaining or otherwise molesting the applicant.
C. AN ORDER that the respondents pay to the applicant, the sum of N5 million (five million naira) for illegally detaining him from Friday 16th November, 2007 to Monday 19th November, 2007 at the Police
Zonal Headquarters, Zone II, Onikan, Lagos.
D. AN ORDER compelling the respondents to publish in at least two {2} national newspapers preferably, "The Punch" and "The Sun" newspapers a letter of unreserved apology to the applicant for the
illegal detention of the applicant from Friday 16th November, 2007 to Monday 19th November, 2007 at the Police Zonal Headquarters, Zone II, Onikan, Lagos.
The said reliefs are sought upon the following 3 grounds:
1. The Applicant is entitled under the law to personal liberty which can only be taken away from him or otherwise delimited only under the law and by due process.
2. The Respondents have no right in the manner in which they did to aspire, plan or attempt to take over or acquire the worship centre of which the Applicant is the head.
3. The Respondents had no right to cause the detention of the Applicant from the 16th November, 2007 to 19th November, 2007 as he was neither a criminal nor a criminal suspect or a person detained under any law or order of court.
In further support of the Application is a Verifying affidavit of 30 Paragraphs, sworn to by the Applicant himself, Barrister Emmanuel Adebowale Adesina.
These Processes were duly served on all the Respondents prior to the hearing of the said Motion and in opposition to this, only the 1st & 2nd Respondents filed and relied on a 16- paragraph Counter-Affidavit of 28/4/08 deposed to by the 1st Respondent, one Mr. Fred Okhuolojie.
At the hearing of the Motion, this Court was not aware of any process from the 3rd Respondent supposedly filed on the same hearing date of 17/6/08, which appears to have found its way into the Court's file after the hearing. Indeed, none of the Counsel in Court mentioned having been served with it. There is also no proof of service of same nor did any Counsel represent the 3rd Respondent in Court. This Court notes this very disturbing development on its Record. Unfortunately, this Court following the locus classicus of UTC V PAMOTEI (1989) 3 SC (Pt 1) 79; (1989) 2 NWLR (Pt 103) 244 may not be able to close its eyes to the process but will of course decide what probative value to be given to same in the course of the Ruling. See also Order 5 of the Fundamental Rights (Enforcement Procedure) Rules.
Suffice it to say that the. 3rd Respondent is by their Counter-Affidavit stating that-all they did was to arrest the Applicant pursuant to a Warrant of Arrest issued by Marsh J. further to a Petition received from the 1s1 & 2nd Respondents' Solicitor.
From the facts as deposed to, it is clear that the Applicant is contending that his arrest and detention by the 3rd Respondent allegedly at the instigation of the 1st B 2nd Respondents on the 2nd day of November 2007 (albeit for only an hour) and between the 161- day and the 19th day of November 2007 was illegal, unlawful and unconstitutional and a breach of his fundamental rights.
The Applicant further contends that pursuant to the 2 disputed Orders of Court of Marsh J.
of 19 day of January 2008 but especially of 5th day of November 2007 upon which the
alleged wrongful arrests and detention were made, were also illegally obtained and thus
wrongfully made.
The 2 Orders made are herewith reproduced for ease of reference:
19th January, 2007
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDER AT IKEJA
SUIT NO. ID/ 138M/2006
BETWEEN:-
1. MR. ERED OKHULOJIE APPLICANTS
2. PASTOR ISY B.O. KHOBYS
AND
1. THE INSPECTOR GENERAL OF POLICE
2. THE ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 2 ONIKAN LAGOS
3. COMMISSIONER OF POLICE LAGOS STATE COMMAND
4. DEPUTY COMMISSIONER OF POLICE STATE C.I.D. PANTS YABA, LAGOS
5. DIRECTOR OF STATE SECURITYSERVICE LAGOS STATE
6. SERGEANT DELE (IPO ZONE 2)
7. HENRY ADIOWE
8. CHRIS UKWEZE
ENROLMENT OF ORDER
UPON THIS SUIT coming up before this honourable Court AND AFTER HEARING Mr. Bisi Ademuwagun (with him Mr. Peter Paul Nnoroji) of Counsel for the Applicants and Mr. Dare Omotosho of Counsel for the Respondents.
LG.A. MARSH IT IS HEREBY ORDERED AS FOLLOWS:-
(JUDGE)
1. That Bench Warrant is ordered for the arrest of the contemnor. She should be detained in the nearest police station and be produced in Court on Thursday 22/2/07.
2. That the Deputy Sheriff is ordered to complete their execution. On no account should the officials be molested or threatened.
The police should ensure they are not obstructed from performing their duties. Whoever tries to molest or obstruct them should be arrested.
DATED AT IKEJA, THIS 19TH DAY OF JANUARY, 2007.
(Signed)
O. ANIGILAJE (MRS)
(REGISTRAR)
5th November, 2007
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDER AT IKEJA
SUIT NO. ID/ 138M/2006
BETWEEN:-
1. MR. ERED OKHULOJIE APPLICANTS
2. PASTOR ISY B.O. KHOBYS
AND
1. THE INSPECTOR GENERAL OF POLICE
2. THE ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 2 ONIKAN LAGOS
3. COMMISSIONER OF POLICE LAGOS STATE COMMAND
4. DEPUTY COMMISSIONER OF POLICE STATE C.I.D. PANTS YABA, LAGOS
5. DIRECTOR OF STATE SECURITYSERVICE LAGOS STATE
6. SERGEANT DELE (IPO ZONE 2)
7. HENRY ADIOWE
8. CHRIS UKWEZE
9. BENSON 0. AOWUEGBO
(Joined by the order of the Court Made on 24/5/2006)
ENROLMENT OF ORDER
MOTION EX-PARTE
BROUGHT PURSUANT TO SECTION 6(6) a&b
OF THE CONSTITUTION OF NIGERIA 1999
UPON THIS MOTION EX-PARTE coming up before this Honourable Court.
UPON READING the affidavit of urgency and affidavit of Fred Okhulojie, Male, Christian, Real Estate Developer, 1st Applicant in this matter of 20, Nwombo Street, Obagada, sworn to and filed on the 5th day of November, 2007 at the High Court Registry, Ikeja.
AND AFTER HEARING Mr. Kayode Fasetire of Counsel for the Applicants move in support of the Application.
L.G.A. MARSH IT IS HEREBY ORDERED:-
(JUDGE)
1. That order is granted directing the Deputy Sheriff of the High Court of Lagos State to complete the eviction of all illegal occupiers and trespassers on the 1st Applicant's land at Debari Village, Pedro, Lagos including:
(a) Redeemed Church, Adebayo Street Pedro
(b) Four Square Gospel Church, Pedro
(c) Chris Ukwueze
(d) Mrs. Oroboni
(e) Persons unknown
2. That order is granted directing the 1st-5th Respondents to desist from disturbing, inviting, arresting, interrogating, detaining and otherwise howsoever obstructing the 1st Applicant and his agents, workmen, etc in enjoying and exercising possession of his land (and buildings thereon) at Debari Village, Lagos.
3. That order Js granted for the arrest of Messrs E.A. Adesina, Mr. Chris Ukwueze, Mrs. Oroboni and other persons unknown that have re-entered possession after being evicted from the 1st Applicant's land at Debari Village, and disturbing the Sheriff in the course of the execution of this Court's Judgment on 2nd day of November, 2007.
DATED AT IKEJA THIS 5™ DAY OF NOVEMBER, 2007.
(Signed)
O. ANIGILAJE (MRS.)
(REGISTRAR)
The main grounds for his contentions are as deposed to in Paragraph 17 of his Verifyinig
Affidavit as follows:
17. That after a careful look at the said order, I informed the police that:
(a) I was not a party to the suit in which the other (sic) emanated.
(b) The order was obtained ex-parte, behind my back.
(c) The order did not give a return date of the action or state a time for my production in court.
(d) . The order did not stipulate that I should be detained and as such demanded that I should be released.
From the Counter-Affidavit of the 1st & 2nd Respondents, especially at paragraph 8, it is their position that in fact the disputed Orders obtained before Marsh J. were obtained to dislodge the Applicant and his church members who had jumped back onto the disputed land situate and being at No. 10, Adebayo Street, Pedro, Shomolu, after Execution of a valid Judgment in Suit No. ID/195M/2005 had been lawfully obtained in respect of a larger portion of land and handed over them from being there and harassing them. The said Paragraph 8 is herewith reproduced for ease of reference:
8. The facts of the matter are as follows:-
(a) I was put in possession of the large parcel of land, which include the land the subject matter of this suit, immediately I bought same in 1991 by the assignors, the descendants of Adoyi Alashe Chieftaincy Family.
(b) I was in possession of the entire large expanse of land since 1991 until sometimes in the year 2000 when some unknown persons trespassed on some portions of the land and erected structures thereon.
(c) The Supreme Court in Suit No. 114/48 gave judgment in favour of my predecessors-in-title i.e. Andoyi Alashe Family and affirmed their title over the large expanse of land including the subject matter of this suit.
(d) The Adoyi Alashe Family executed the said Supreme Court's judgment a very long time ago after which some trespassers including the Applicant entered the land.
(e) I instituted an action in Suit No. ID/195M/2005 against some known and unknown trespassers wherein this Honourable Court through Honourable Justice Alogba granted me possession on 14/6/2005 over the large expanse of land including the land, the subject matter of this suit.
(f) Possession of the entire land was given to be by the bailiffs of this Honourable Court and trespassers were chased away from the land. Attached herewith and marked EXHIBIT 'A' are copies of the Warrant of Possession and Certificate of Execution i.e. Form '01 issued by appropriate officers of this Court.
(g) After the afore-said execution, some persons, group and association such as Four Square Gospel Church, The Apostolic Church, Christ Apostolic Church, Mrs. Oroboni joined the afore-said Suit No. ID/195M/2005.
(h) Some of the afore-said persons/organisation started using police to harass the 2nd Respondent and I in respect of our possession and occupation of the land and we had no option than to institute a fundamental right action in Suit No. ID/138M/2006.
(i) We instituted the afore-said suit to protect our right to own property because the police was being used by some trespassers to dispossess us of our land.
(j) The afore-said Suit No. ID/138M/2006 is still pending before Honourable Justice Marsh of the Ikeja High Court.
It must be stated that what the Court is concerned about in proceedings such as this and in this suit, is whether the alleged harassment, arrest and detention of the Applicant is wrongful and unlawful to the extent that it amounted to a breach of his fundamental rights and ultra vires the powers of the 3rd Respondent and more importantly, also whether the said acts were done at the wrongful instigation of the 1st & 2nd Respondents. This of course, calls for the judicious exercise of the Court's discretionary powers only upon the processes placed before it.
From the processes before this Court, it is clear that the said above Orders in dispute given by Marsh J. were made m the course of fundamental rights enforcement proceedings in Suit NO. ID/138M/2006 AND said to have been sought for pursuant to Orders PREVIOUSLY made in a land matter as stated earlier.
As this Court pointed out to the Applicant Counsel, Mr. Ogunlana, and rightly submitted by the Respondent Counsel, Mr. Imam, the issue before this Court cannot be and is not to determine the lawfulness or wrongfulness or otherwise of the Orders made by Marsh J. That issue ought to be contended before that same Court. In any event, the said Order of Arrest in respect of the Applicant before this Court has been rescinded by the same Court in its further Order of 19th November 2007, upon which the Applicant was released. That Order is also reproduced for ease of reference:
19th day of November 2007
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
SUIT NO. ID/138M/2006
BETWEEN:-
1. MR. FRED OKHULOJIE APPLICANTS
2. PASTOR ISY B. 0. KHOBYS
AND
9. THE INSPECTOR GENERAL OF POLICE
10. THE ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 2 ONIKAN LAGOS
11. COMMISSIONER OF POLICE LAGOS STATE COMMAND
12. DEPUTY COMMISSIONER OF POLICE STATE C.I.D. PANTI YABA, LAGOS
13. DIRECTOR OF STATE SECURITY SERVICE LAGOS STATE
14. SERGEANT DELE (IPO ZONE 2)
15. WNRYADIGWE
16. CHRIS UKWEZE
ENROLMENT OF ORDER
MOTION EX-PARTE
BROUGHT PURSUANT TO SECTION 6 SUB-SECTION (6) (A) AND (B) OF
THE CONSTITUTION OF NIGERIA, 1999 AND THE INHERENT
JURISDICTION OF THE HONOURABLE COURT
UPON THIS MOTION EX-PARTE coming before this Honourable Court.
UPON READING the affidavit (attached with Exhibit) of Olanrewaju
Ajanaku, Male, Christian, Legal Practitioner of 197A, Ikorodu Road,
Palmgrove, Lagos, sworn to and filed on the 19th day of November,
2007 at the High Court Registry, Ikeja.
AND AFTER HEARING Mr. Bola Baderinwa of Counsel for the
Applicants and Mr. Bisi Ademuwagun of counsel for the Respondents
not opposing the application.
L.G.A. MARSH IT IS HEREBY ORDERED:-
(JUDGE)
1. That the Order of this Court made on the 5th day of November 2007 is rescinded.
2. That Revd. Aiyedun Sosanya, Mrs, Aiyedun Sosanya, Mrs. Wusu Abosede and Emmanuel Adebowale Adesina are ordered to be released from custody. On no account should they and other persons unknown disturb or obstruct the 1st Applicant and his agent in enjoying and exercising possession of his land and building thereon at Debari Village, Lagos in the execution of this Court's judgment.
DATED AT IKEJA, THIS 19TH DAY OF NOVEMBER, 2007.
(Signed)
O. ANIGILAJE (MRS.)
(REGISTRAR)
Again as pointed out by this Court in the course of the hearing, there are no facts before this Court or processes showing the basis upon which Marsh J. rescinded the Order. The Law is fairly well settled on the grounds upon which a Court can set aside its previous Orders. See the following cases on this;
1. PADAWA V JATAU (2003) FWLR (Pt 164) @ 228 esp. @ 237
2. VULCAN GASES V. G.I.V. (2001) 5 SC (Pt 1)
3. ALAO V. AFRICAN CONTINENTAL BANK LTD (2000) 6 SC (Pt 1) 27
From the above authorities, an Order or Judgment of Court can be set aside inter alia, on grounds of fraud, non-service, lack of jurisdiction.
Did that Court find facts to have been misrepresented, fraud or that it's Order was a nullity on any jurisdictional ground? There are no materials on this to assist this Court. See the case of DONGTOE V CSC PLATEAU STATE (2001) 4 SC (PART II) 43 esp. @ 68 where the Court held that it is essential in proceedings such as this:
"...for the applicant to place before the learned Judge all the material facts necessary for the exercise of discretion."
Nonetheless, this Court can safely infer and conclude simply that the said Order of the arrest of the Applicant was rescinded because it ought to be revoked irrespective of the grounds for the rescission.
Fundamental Human Rights Proceedings deals with rights as enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria and have nothing to do with land matters.
Suffice it to state therefore that as far as this Court is aware, Orders for Possession and Arrests for contempt of such Orders are not within the scope of Fundamental Human Rights proceedings and in this case could not be included in a claim to enforce fundamental rights.
See the cases of:
1. DONGTOE V CSC PLATEAU STATE supra @ page 56 where the Court held that:
"the relief which may be claimed by means of this procedure is limited to and confined to any of the provisions of Chapter IV of the Constitution. Any exercise of jurisdiction in respect of the subject matters outside chapter IV is without jurisdiction, unconstitutional and void."
2. TUKUR V TARABA STATE (1997) 6 NWLR (Part 510) 549 @ 576
3. WAEC V B AKINWUNMI (2008) 4 SC 1.
Thus, even if as alleged, execution had been previously levied, and the Applicant and his Church members jumped on the land and Respondents were being harassed as a result, as rightly pointed out by Mr. Ogunlana of Applicant Counsel, .the limit of the Court's jurisdiction in fundamental human rights proceedings is as stated above while the alleged contemnors ought to have been taken before the Court whose Judgment or Order they are allegedly in breach of by way of committal proceedings, whereupon they must be put on notice. This was not what was done herein. This Court is not unmindful of Order 6 of the Fundamental Rights Enforcement Rules, wherein the Court can also make orders for disobedience of its Orders but again this must be done by committal proceedings and following a particular procedure. Order 6 Rules 1 (1) & (2) provide as follows:
1. (1) At the hearing of any application, motion, or summons under these Rules, the Court or Judge concerned may make such orders, issue such writs, and give such directions as it or he may consider Just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution to which the complainant may be entitled.
(2) In default of obedience of any order made by the Court or Judge under these Rules, proceedings for the committal of the party disobeying such an order will be taken. Order of Committal is in the Form 6 of the Appendix.
No such step was shown to be taken.
This Court again observes that the Warrant of Execution, Form 0, exhibited by the 1st & 2nd Respondents shows Execution to have been allegedly levied almost 3 years ago on the 22nd day of June 2005. Yet by the Exhibit A, the Order of 19th January 2008 attached to the Application, the Deputy Sheriff was still empowered to complete the already completed execution. Further, by Exhibit E - copy of Motion brought by the 1st & 2nd Respondents, annexed to the Applicant's Affidavit, the 1st & 2nd Respondents sought for an Order of Possession & removal of structures, reliefs completely different from those sought for when Leave was sought for on their originating ex-parte process - Exhibit D to enforce their fundamental rights.
It is clear from the above that the main complaint of the 1st & 2nd Respondents as in their deposition in their Counter-Affidavit before this Court, specifically in paragraph 8(i) – was in fact their "right to own property", a right not covered by the procedure adopted leading to the Applicant's arrest and detention.
From the foregoing therefore, the only basis of the arrest and detention of the Applicant which arrest and detention have not been denied was the proceedings initiated by the 1st fit 2nd Respondents. Thus, it follows that his arrest and detention could only have been at their instigation. That Court cannot act and would not have acted to make Orders unless and until its powers are invoked. In this case, that Court acted at the instance of the 1st & 2nd Respondents and their lawyers. This has always been the position of the Applicant from the onset. See Paragraphs 16 & 18 of the Applicant's Affidavit as reproduced hereunder:
16. That the response of the sheriff was to cause policemen to arrest me, albeit temporarily for about an hour; all this while, the agents and thugs hired by the 1st and 2nd Respondents in company of the said sheriff boasted and shouted repeatedly that they were coming back against our church and would still take it over whether "you people like it or not."
18. That on the 16th November 2007, on the instruction and instigation of the 1st and 2nd defendant, the 31'd Respondent, officers and men, went to the Higher-Ground Parish of the 1st Applicant and took away some church members and workers to their office at Zonal Police Headquarters, Zone 2, Onikan, Lagos.
Contrary to the submissions of said Respondents Counsel, Mr. Imam, it was thus not necessary for the Applicant to file a further reply denying Paragraphs 9, 10, 11 & 13 of their Counter-Affidavit wherein they depose as follows:
9. Contrary to paragraph 18 of the Applicant's affidavit, Lukman Imam Esq., never insisted that the Applicant be detained. Lukman Imam Esq. informed me and I .verily believe the same to be true that he and one Mr. J.O. Adeniran (Counsel to the Applicant) made several efforts to resolve the issue amicably but the Deputy Commissioner of Police Zonal CID, Zone 2 had closed for the day when the parties went to his office to report settlement.
10. Contrary to paragraph 11, 13, 15, 19 and 20 of the Applicant's verifying affidavit, the Applicant was arrested and detained for disrupting and attempting to prevent the lawful execution of the orders made by this Honourable Court.
11. When the Applicant and others were released from Zone 2 custody by this Honourable Court on 19/11/2007, they were warned by the Court that on no account should they disturb or obstruct me and my agents in my enjoyment of possession of my land which includes the land the subject matter of this suit.
13. The order for arrest and detention of the Applicant was made by this Honourable Court and not by the 2nd Respondent or my humble self; we did not instigate the police to detain the Applicant as they detained him in compliance with the Court's order.
All submissions and cases cited in this regard are thus discountenanced as not applicable accordingly.
It is therefore no defence to this action as submitted by the Respondent Counsel, Mr. Lukman Imam, that the 1st & 2nd Respondents cannot be liable because the arrest and detention were made pursuant to Orders of Court, especially as the said Order of Arrest was rescinded and now also found to have been wrongly sought for and procured.
On the probative value to be given to the 3rd Respondent's Counter-Affidavit, their position from same as earlier stated, is that they acted pursuant to the Order of Court now found by this Court to be wrongly sought for by the 1st & 2nd Respondents, fn absence of facts to the contrary, it is difficult then to hold that the 3rd Defendant acted outside their powers pursuant to Section 4 of the Police Act which provides thus:
4. General duties of the police
The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.
See also MCLAREN V. JENNINGS (2003) 3 NWLR 470 esp. @ 473.
As rightly pointed out by the Respondent Counsel, the liberty of a citizen can be curtailed by the Police pursuant to Section 35(1) (c) of the 1999 Constitution which provides thus:
35. Right to personal liberty
(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
(c) he purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his it is not in dispute that the arrest on the 16th day of November 2008 was made pursuant to an order of Court and that date was a Friday. Further that a suspect can be detained for a "reasonable time" before he is charged. See Section 35 (4) & (5) of the 1999 Constitution on this. In this case, the detention was for the weekend. The Applicant was then released by the 3rd Respondent again pursuant to the Rescinding Order of Court on the following Monday 19th November 2008, in obedience of another Order of Court.
In the light of the foregoing and findings made above, the Application succeeds and this Court must find in favour of the Applicant on his declaratory relief and the 1st relief is granted as prayed accordingly. The 2nd relief is also granted accordingly consequent upon the grant of the 1st relief.
It is the Applicant's deposition in his paragraph 21 of his Affidavit that whilst in detention, he "suffered great physical discomfort & emotional and mental agony & trauma." This in this Court's view goes to damages for his discomfort and not to any direct acts of the 3rd Respondent whilst in detention.
The 3rd Relief is thus granted only against the 1st & 2nd Respondents in the sum of N2 Million (Two Million Naira) only.
Regarding the 4th relief, this Court is not unaware of Section 35(6) of the 1999 Constitution which provides as follows:
Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law.
However, in the light of the "limited" liability of the Police who were acting upon the Orders of the Court, albeit now found to have been wrongfully procured, the Court is unable to grant same in respect of the 3rd Respondent. This Court having also taken into consideration the surrounding circumstances of this case, it is of the belief that it is in the interest of justice that damages already awarded suffice as per the 3rd relief.
Thus the 4th relief is refused accordingly.
I so rule
Hon. Justice Adenike J. Coker (Mrs.)
11/7/08
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