AKINTOLA V. IGP & 3 ORS

IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
SITTING AT HIGH COURT NO. 7, LAND DIVISION. LAGOS,
TODAY TUESDAY THE 7TH DAY OF OCTOBER, 2008
BEFORE THE HON. JUSTICE B. 0. SHITTA-BEY (MRS.)

SUIT NO. IP/308M/2006

BETWEEN:

OLALEKAN AKINTOLA.............. CLAIMANT/APPIICANT

AND

1. INSP. GENERAL OF POLICE
2. COMM. OF POLICE LAGOS STATE DEFENDANTS/
3. AH. GENERAL OF LAGOS STATE .... RESPONDENTS
4. KOSOFE LOCAL GOVT. COUNCIL

RULING

Following the leave granted by the Hon. Justice Abimbola Ogie of the Federal High Court Lagos on 27th April, 2005 for the Applicant to enforce his Fundamental Human Rights, the Applicant brought a Motion on Notice dated 11th May, 2005 pursuant to Section 46(1) of the 1999 Constitution, order 2 Rule 1 of the Fundamental Rights Enforcement Procedure, Rules 1979 and under the inherent jurisdiction of this court seeking the following reliefs:

(1) A Declaration that the arrest of the Applicant by the Respondents, their agents and or privies, on 24th April, 2004 at New garage, Ifako Gbagada, Lagos State while going about his lawfully business purportedly for contravening the Environmental Sanitation Law 2000 of Lagos State is illegal, unlawful unconstitutional and a flagrant violation of Sections 41 and 35 of the Constitution of the Federal Republic of Nigeria 1999, which variously guarantee the Applicant's right to liberty and freedom of movement.

(2) A declaration that the detention of the Applicant by the Respondents, their agents and or privies on 24th April,2004 at Ifako Gbagada Police Station Gbagada, Lagos State is illegal, unlawful, unconstitutional and a flagrant violation of Sections 41 and 35 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 6 and 12 of the African Charter on Human and people Rights Cap 10 Laws of Nigeria 1990.

(3) A declaration that the acts of the Respondents, their agents and, or privies on 24th April, 2004 at Ifako Gbagada Police Station, Gbagada Lagos State in beating up molesting, assaulting, manhandling and tear-gassing the Applicant are illegal, unlawful, unconstitutional and a flagrant violation of Applicant's right to dignity of the human person severally guaranteed by Section 34 of the Constitution of the Federal Republic of Nigeria 1999 and Article 5 of the African Charter on Human and Peoples Rights Act Cap 10 Laws of the Federation of Nigeria 1990.

(4) A declaration that the Lagos State Environmental Sanitation Law 2000 does not empower the Respondents, their agents and, or privies to harass, molest, intimidate, arrest detain or prevent the Applicant from exercising his constitutional right to move freely on a so called sanitation day or any other day for that matter.

(5) Award of N10 Million as special damages, aggravated, exemplary punitive and general damages to the Applicant for breach of his rights aforesaid and against the Respondents jointly and severally. The application is supported by a five-paragraphed affidavit sworn to by one Peter Oshun, a Legal Practitioner in Applicant's Solicitors Chambers. One exhibit is attached. As required by law, there is a 5 paragraphed Verifying affidavit sworn to by the Applicant.

Despite service of the processes on all the Respondents only the 3rd Respondent filed a Counter-affidavit to the application. The Counter affidavit contained ten paragraphs and was sworn to by Mrs. Olabisi Ogungbesan, an Assistant Director of Public Prosecution with the Lagos State Ministry OF Justice. The Applicant's Counsel, Yusuf Zakari Edego Esq. submitted a written brief of argument dated 28th April, 2008.

Arguing the application. Learned Counsel for the Applicant submitted three issues for determination. The issues are:

(a) Whether the Respondents have power under the Lagos State Environment Sanitation Law 2000 or any other law to arrest and detain the Applicant for moving freely in Nigeria.

(b) Whether the Applicant has suffered a violation of his fundamental rights.

(c) Whether having regard to all the circumstances of this case the Applicant is entitled to damages from the Respondents.

On the first issue, counsel submitted that following the inability of the 1st, 2nd and 4th Respondents to file a Counter-affidavit, the facts deposed to by Applicant in his supporting affidavit must be taken as admitted, and facts admitted, according to him, requires no proof. He cites in support the decisions in NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION LAW (1990) 2 N.W.L.R. PART 135 PAGE 688 and UNIBIZ LTD. VS. CBL (2005) 14 N.W.L.R. PART 944 PAGE 47. He further contended that there is no single provision in the Lagos State Environmental Sanitation Law 2000 that restricts the movement of citizens on the monthly environmental sanitation day for which the Applicant was arrested. He then submitted that assuming, without conceding, that such a provision exists, it will contravene the provisions of Section 41(1) of the 1999 Constitution of the Federal Republic of Nigeria. He cited in this regard the decision of the Court of Appeal in YUSUF VS. OBASAMUO (2005) 18 N.W.L.R PART 956 PAGE 96 AT 115. While conceding that Section 4(1) of the 1999 Constitution empowers the enactment of laws that are reasonably justifiable in a democratic setting in the interest of defence, public safety, public order, public morality or public health and for the protection of the rights and freedom of other person, he submitted that there was no such provision in the Environmental Sanitation Law of Lagos State 2000. He cited the decision of the Court of Appeal in NKPA VS. NKUME (2001) 6 N.W. L.R PART 710 PAGE 534 in support.

On the second issue learned counsel submitted that where the Constitution gives a right and it is proved that the right has been infringed, the onus is on the person alleged to have infringed the right to justify the infringement. He cited the decision in AGBAKOBAVS. S.S.S. (1998) I H.R.L.R.A. 257 to buttress his argument. On the third issue, he submitted, citing, ABIOLAVS. ABACHA (1998) 1 H.R.LR447 that an Applicant seeking redress for the infringnment of his fundamental right, in addition to declaratory and injunctive reliefs, is entitled to an award of damages even where it is not asked for. He therefore urged the court to find in favour of the Applicant,

The brief facts giving rise to this application are that on 24th April, 2004, the Applicant left his home at about 7.30am to board a vehicle around New garage Park, Ifako-Gbagada bound for Ibadan. That day, incidentally, was the last Saturday of the month of April and as admitted by the Applicant, there were other defaulters who were similarly arrested by Policemen and KAI officials and detained at Ifako Gbagada Police Station on that same day. The questions now begging for answers are as formulated in the issues set out for determination by Applicant's counsel. I shall now consider them. The first question is whether the Respondents have power under the Lagos State Environmental Sanitation Law 2000 or any other law to arrest and detain the Applicant for moving freely in Nigeria. Section 38 of the Lagos State Environmental Sanitation Law 2000 provides a follows: "Any person who commits a nuisance or an offence under this law maybe arrested by a Police Officer or an authorized sanitary officer."

'The Commissioner may from time to time make regulations generally for the purpose of carrying into effect the provision of this law". Section 4 of the Police Act Cap 359 Laws of Nigeria 1990 provides:

'The Police shall be employed for the prevention and detention 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".

Section 4(1) of the 1999 Constitution of the Federal Republic of Nigeria state as follows:

"Nothing in Section 34, 35, 36, 37 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:-

(a) In the interest of defence, public safety, public order, public morality or public health."

A careful analysis or appraisal of these above quoted laws would show that even though there is nothing in the Environmental Sanitation laws of Lagos State, 2000 exhibited by the Applicant which spells out restriction on movements of persons on environmental sanitation days, Section 39 empowered the Commissioner to make, from time to time, regulations for the purpose of carrying into effect the provisions of the law. Also looking at the provisions of section 4 (1) of the 1999 Constitution which dearly states that nothing in previous sections of the Constitution which dealt with freedom of movement etc. shall invalidate any taw reasonably justifiable in a democratic society in the interest of public health, and when read in conjunction with section 4 of the Police Act which empowers the Police to enforce all laws regulations with which they are charged, one cannot but say that the Respondents have power under these laws to arrest the Applicant and other persons who violated the regulation made b the Commissioner enjoining every person residing within Lagos State on the last Saturday of every month, to refrain from walking the streets within the hours of 7.a.m to 10.00 a.m., in order to participate in the clean up exercise designed to rid the state of filth. This court is bound to take judicial notice of such regulation as the sheer chaos that would result in holding otherwise is better imagined. This court recalls and takes judicial notice of the fact that until very recently, when the Federal Government revoked a similar regulation governing the whole country for security reasons, restriction was placed on movements of persons throughout the entire Federation between 7a.m and l0a.m for similar reason in the part and the Applicant must have complied with that order in whatever part of the Federation he found himself then, without complaining. See YUSUF VS. OBASAN30 (2003) 16 N.W.L.R. PART 847 PAGE 588 AND S. 74 Evidence Act 1990.

In the light of this, therefore, I hold that the Respondents have power under not only the Lagos State Environment Sanitation law 2000 but other enabling Acts spelt out above to arrest and detain the Applicant for moving on the streets of Lagos during the period of 7a.m. to 10a.m. when, by regulation by the Honourable Commissioner for the Environment, Lagos State movement were to be restricted to enable the members of the public participate in the monthly environment sanitation exercise.

On the second issue of whether the Applicant has suffered a violation of his fundamental rights, I have no difficulty, for the reasons adduced above, to say that the Applicant has not suffered a violation of his fundamental rights, for as held by the Apellaate Court in AGBAKOBA VS. DIRECTOR STATE SECURITY SERVICES (1994) 6 N.W.L.R. PART 351 PAGE 481 a person who is lawfully deprived of his liberty in circumstances permitted by Section 4 (1) of the 1999 Constitution, cannot allege a contravention of the constitutional provisions guaranteeing freedom of movement. On the third issue, the Applicant, having been arrested and detained in circumstances permilted bylaw, cannot be entitled to the award of damages. I so hold.

In conclusion, therefore, I hold that Applicant's Motion on Notice dated 11th May, 2005 lacks merit, and it is accordingly dismissed. No order as to costs.

Parties absent,
Atewe Chucks Esq. for the Applicant
No appearance for the Respondents.

Dated the 7th day of October, 2008.