IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT KUBWA
THIS FRIDAY, THE 12TH DAY OF MAY, 2011
BEFORE: HON. JUSTICE Y. HALILU

MOTION NO. FCT/HC/M/3865/11

BETWEEN
MUHAMMED SA’AD …………… APPLICANT
AND
1. THE COMMISSIONER OF POLICE F.C.T. ABUJA RESPONDENTS
2. THE DIVISIONAL POLICE OFFICER, KARIMO
3. W/SGT NKECHI OKOYE
4. PC GOODLUCK TOBIA
5. THE DCO KARIMO POLICE STATION

JUDGMENT
By a Motion on Notice dated the 17th day of March, 2011 the Applicant
approached this Court for the following reliefs:-

1. An Order of Injunction of this Honourable Court restraining the 1 st

to 5th Respondents from further wrongful detention of the Applicant
herein in their cells or any other place used by them for incarcerating
or detaining people.

2. A Declaration that the detention of the Applicant in the cells of the

1st to 5th Defendants for 3 days from the 10th to the 12th of January,

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 2011 and for another 2 days on the 4 th and 5th of February without
charging the Defendant to Court, over a debt, is wrongful and
unconstitutional and a violation of the rights of the Applicant as
provided for in the Constitution of the Federal Republic of Nigeria
and the African Charter on Human and Peoples Rights.

3. A Declaration that the use of chains and shackles by the 2 nd to the

5th Respondent to restrain the Applicant in their cells from the 10 th
to the 12th of January, 2011 was wrongful and amounts to inhuman
and degrading treatment.

4. A Declaration that the continued seizure and confiscation of

Applicants’ Honda Accord 89 Model Vehicle with registration
number BC 799 NSR over a debt owed without an order of the Court
or as provided for by law is wrongful and unconstitutional.

5. A Declaration that by the duties of the Police as provided for in the

Police Act, the Police is not a debt collecting agency and therefore
has no business interfering in civil transactions.

6. An Order of this Honourable Court on the 1st to 5th Defendants

ordering them to release forthwith Applicant’s Honda Accord 89
Model vehicle with registration number BC 799 NSR within 24
hours and his Nokia C6 handset.

7. The sum of N10,000,000.00 (ten Million Naira) only jointly and

severally against the Respondents for the inhuman and degrading
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 treatment mated out to the Applicant by chaining him in their cells,
the wrongful detention of Applicant for 5 days and seizure of
Applicants’ Honda Accord 89 Model vehicle with registration
number BC 799 NSR.

8. And for such orders and further orders as this Honourable Court may
deem appropriate to make in the circumstances.

In support of the application learned Applicant’s counsel filed the

following:

1. Statement in support of the application for the Enforcement of the

Fundamental Rights.

2. Grounds upon which the reliefs are sought.

He equally filed a 19 paragraph affidavit in support of this application,

and a 7 page written address which was adopted as oral argument in
support of the application.

The facts of the case as distilled from the affidavit are that the Applicant
was arrested by the Respondents one of whom is the sister to a person he
owes money. The Applicant was detained for 5 days with chains and
shackles used on him in the cells of the Respondents. Applicants’ phone
and car was seized by the Respondents who went on to sell the phone and
confiscate the money as bail money.

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Applicant is being pressurized to sell his vehicle to pay the debt owed and
is being harassed and intimidated by the Respondents.

In compliance with the Rules of this Court, learned counsel for the
Applicant filed a 6 page written address wherein the following grounds
were formulated for determination:

1. By Article 5 of the African Charter on Human and Peoples Right,

every individual is entitled to respect for the dignity of his person
and so no person shall be subjected to torture or to inhuman or
degrading treatment.

2. That by the provisions of section 35 (1) of the Constitution of the

Federal Republic of Nigeria, 1999 as amended, every person is
entitled to his personal liberty which can only be deprived in
accordance with a procedure permitted by law.

3. By the provision of Section 44 of the Constitution of the Federal

Republic of Nigeria, 1999 as amended, no movable property shall
be taken possession of compulsorily and no right over or interest in
any such property shall be acquired compulsorily except in the
manner and for the purpose prescribed by a law.

4. By the Police Act, the Nigeria Police does not have authority to
recover debts or to size a movable property in other to sell same and
repay a debt or an amount owed.

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Learned Applicant’s Counsel submitted that his argument in respect of
this application will be based on the issues distilled from aforementioned
grounds as stated above which they urged the Court to respectfully resolve
in their favour.

On ground 1, learned counsel submitted that whether the use of chains

and shackles on the Applicant by the 2nd to 5th Respondents in their cells
over a debt owed does not amount to torture, inhuman and degrading
treatment.

It is the contention of Counsel that by Article 5 of the African Charter on

Human and Peoples Right and Section 34 (1) (a) Constitution of the
Federal Republic of Nigeria 1999 as amended, every person has a right to
the dignity of his person and so no person shall be subjected to torture or
to inhuman or degrading treatment.

ARTICLE 5 African Charter on Human and Peoples Right provides as

follows:-

Every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal
status. All forms of exploitation and degradation of man,
particularly slavery, slave trade, torture, cruel, inhuman or
degrading punishment and treatment shall be prohibited.

Section 34 (1) (a) Constitution of the Federal Republic of Nigeria 1999 as

amended, provides thus:-
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 Every individual is entitled to respect for the dignity of his person,
and accordingly-

a. No person shall be subjected to torture or to inhuman or

degrading treatment;

It is the submission of Applicant’s Counsel that Applicant has averred that

after he was arrested by the 2nd to the 5th Respondents, he was taken to
their cells were he was chained and shackled throughout the duration of
his incarceration. Paragraphs 7 and 11 of the affidavit and 6 and 10 of the
statement in support.

It is the submission of Applicant’s Counsel that the actions of the 2nd to

the 5th Respondents are a violation of the provisions of both the African
Charter on Human and Peoples Right and the constitution of the Federal
Republic of Nigeria.

Learned counsel submitted that the rights as provided for under these laws
are innate rights and the only derogation allowed is as provided for by the
law.

Learned Applicant’s Counsel equally contended further that the act of

chaining the Applicant with chains and shackles is wrongful and not
allowed in our law.

On ground 2, as distilled from this ground, the issue whether the

Respondents are permitted by law to detain the Applicant like they did for

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5 days without charging him before a competent court upon reasonable
suspicion of his having committed a crime, and whether such does not
amount to wrongful detention, is being questioned.

On this issue, counsel referred to the provisions of Section 35 (1) of the

Constitution of the Federal Republic of Nigeria, 1999 as amended, which
states that ‘every person is entitled to his personal liberty which can only
be deprived in accordance with a procedure permitted by law.’

By Article 6 of the African C harter on Human and Peoples Right,

“Every individual shall have the right to liberty and to the security
of his person. No person may be deprived of his freedom except
for reasons and conditions previously laid down by law. In
particular, no one may be arbitrarily arrested and detained.”
(underlining mine)

Learned counsel contended that the actions of detaining the Applicant for
5 days by the 2nd to the 5th Respondent is wrongful and contends that
where a power provided for by law is exercised wrongly by a public
officer as in this case, the Courts must step in to correct and remedy the
wrong.

Counsel further stated that the right to freedom is a right protected by our
law, and referred to the case of ONYIRIOHA VS I.G.P (2009) 3 NWLR
(pt. 1128) where the Court of Appeal stated thus:-

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 “A Nigerian citizen is entitled to his God given natural right free
from incarceration save in accordance with all the fundamental
laws of the land, this is the constitution of the Federal Republic of
Nigeria and other relevant legislations which are not inconsistent
with the forms.”

Learned Counsel for the Applicant drew the attention of Court to the
Constitution of the Federal Republic of Nigeria which provides that
where a person is detained over suspicion of having committed a
criminal offence, he must be taken before a competent court within
24 or 48 hours depending on the proximity of the nearest court.

It is the contention of Counsel that above is a mandatory provision and

the only exception to it is provided for in the constitution. He submits that
the actions of the Respondents does not fall under any of the exceptions
allowed by our constitution or any law in force for the length of time they
did, and that the detention of the Applicant for 5 days is an abuse of the
powers granted the Respondents.

On ground 3 & 4, that is, whether the Nigerian Police is empowered by

any law in force to seize a movable property owned by and individual and
sell to pay a debt owed by that individual without an order of Court,
learned counsel submitted that by the provision of Section 44 of the
Constitution of the Federal Republic of Nigeria, 1999 as amended, no
movable property shall be taken possession of compulsorily and no right

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over or interest in any such property shall be acquired compulsorily except
in the manner and for the purpose prescribed by a law.

Counsel cited Section 44, 1999 Constitution which goes on to list

situations in which an individuals’ property can be seized compulsorily.

Learned Counsel re-iterated the Applicant’s argument in his affidavit as

well as in his statement that the respondents seized his phone and his
vehicle. His phone was sold and confiscated the money as bail money
while he is being forced to sell his car to pay off the debt, and contends
that no law allows the police to sell suspects property to pay debt. It is
trite that the Police is not a debt recovery agency and is not allowed to
dabble into civil transactions freely entered into by the parties, Learned
Counsel submits.

Counsel therefore, urged this Court to most respectfully resolve all the
issues raised from the grounds in our favour and grant all our reliefs
prayed, and in conclusion grant the Application of the Applicant is
summarized as follows:-

1. The arrest and detention of the Applicant for 5 days is wrongful and
unconstitutional.

2. The use of chains and shackles to hold the Applicant in the cell of
the Respondent amounts to inhuman and degrading treatment.

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3. The movable property of the Applicant seized without an order of
the Court in order to sell and pay off a debt is wrongful and
unconstitutional.

4. The police is not a debt recovering agency.

On the part of the Respondents, a joint counter affidavit dated 11 th April,

2011 was filed in reaction to the application of the Applicant.

In compliance with the Rules of this Court, learned counsel for the 1st, 2nd,
3rd, 4th and 5th Respondent filed a 5 page written address wherein the
following issues were formulated for determination:

a. Whether the Nigeria Police (that is, the 1st to 5th Respondents in this
suit) exceeded their authority in discharging their statutory and
constitutional duties of investigating and prosecuting crimes?

b. Whether the nominal complainant reporting to the Respondents (that

is, the 1st to 5th Respondents) to accept the complaint and investigate
it, amount to violation of the Applicant’s fundamental right to
liberty?

On issue 1 (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix), learned counsel
rhetorically asked the following questions and submitted as follows:-

i. Whether the Nigeria Police (that is, the 1st to 5th Respondents in this
suit) exceeded their authority by discharging their statutory and
constitutional duties of investigating and prosecuting crimes?
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ii. Whether the Nigeria Police in carrying out their major duty as law
enforcement agency, has the statutory power to arrest, detain, and
investigate a matter

iii. When a crime is alleged to have been committed, on receipt of the

complaint, a preliminary investigation is carried out. During this
investigation, it is expected that the investigation should not only
take note of surrounding circumstances but also invite all persons
and significant happenings around the rest of the offence.

iv. The responses of the person invited for questioning is reduced to

writing as statement for further investigation.

Section 4 of the Police Act Cap 359, Laws of the Federation of

Nigeria 1990 states the duties of the police to include inter-alia, the
prevention and detection of crimes, 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.

v. In the instant case, a verbal complaint was made to the office of the
2nd to 5th Respondents for an alleged offence of impersonation and
cheating against the Applicant.

vi. It is trite that the police in carrying out their statutory duties,
allegations are investigated. ONAH VS OKENWA (2010) 7 NWLR
(pt. 1194) 512.

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vii. The Applicant now contends that the Respondents being members
of the Police Force have violated his Fundamental Rights.

viii. It is worthy of note that Fundamental Rights are not absolute. They
can be curtailed by the appropriate authorities where there are
grounds for doing so.

xi. Conclusively, it is clear that the police acted reasonably in the

circumstances of this case, within its power under the Police Act in
the investigation of criminal complaint of the nominal complainant.

On issue 2, that is, whether the nominal complainant reporting his

complain to the office of the 2nd to 5th Respondents amounts to violation
of the Applicant’s Fundamental Rights to liberty?

It is the contention of Respondent’s Counsel that every person who feels

that an offence has been committed has a right to report to the Nigerian
Police or other law enforcement agencies and thereafter, it is a matter for
the police or that law enforcement agency to decide on what action to take
on the complaint. FIRST CITY MONUMENT BANK VS ENITE (2008)
22 WRN 1 and ONAH VS OKENWA (Supra).

Respondent’s Counsel submitted that the Applicant in this suit

impersonated himself to the nominal complaint as the Boss (Oga) of
National Drug Law Enforcement Agency, (NDLEA) in Abuja. Also, in
another situation he said he was a consultant with both National Drug Law
Enforcement Agency, NDLEA and Civil Defence Corps. He induced the
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victims and collected a total sum of Nine Hundred and Five Thousand
Naira (N905,000.00) on the pretence of giving the victims appointment in
both senior/junior cadres. This made the Respondents to invite and detain
him for question based on the complaint against him.

“HE WHO COMES TO EQUITY MUST COME WITH CLEAN HAND”

Therefore, the invitation of the Applicant by the 2nd to 5th Respondents in

this suit does not in any was violate the rights of the Applicant, and should
not be entitled to any damages as claimed, learned Respondent’s Counsel
contends.

Learned counsel in conclusion maintained that it will be improper if the

application before this Honourable Court is declared that the 1 st to 5th
Respondents ousted their jurisdiction by adequately performing their
constitutional duties of investigation of verbal complaint before them.

Merely lodging a complaint to the Nigeria Police, as was done by the

nominal complainants, does not amount to violation of the Applicant
constitutional rights. Every person who feels an offence has been
committed has every right to report to the appropriate law enforcement
agency.

The Applicant is in no way entitled to his claim, as his rights were neither
violated nor suffered. The affidavit stated no fact whatsoever showing
the claim.

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The Applicant was never harassed as claimed, the application lacks merit
and should be dismissed in the interest of justice.

Having gone through the application of Applicant for the enforcement of

his Fundamental Human Rights on one hand and the joint reaction of the
Respondents on the other hand, I have formulate the following for
determination;

1. Whether there is a criminal offence.

The Nigerian Police, I must say, has over the years, posed as debt
collectors for nominal complainants who for one reason or the other, have
patronized the police, which again have a very clear statutory mandate to
investigate, recover and charge to Court suspects.

I am afraid, the penchant for recovering money as far as the police is

concerned, is most habitual and characteristically inherent in the police of
Nigeria.

In the curse of recovering money for unsolicited normal complainants,

whose desire normally would have been for the police to act, the criminal
aspect of the offence which is the crime is usually played – down, thereby
making it difficult for people to be punished in accordance with the
criminal laws of the land which ought to be one of the ways of deterring
would be offenders.

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This is a clear exhibition of constitutional irresponsibility and ill-
mannerism on the pact of the police.

The Nigerian Police Act, No. 41, 1967 is in parts 1- 10 in that order.

I am afraid, there is not any provision throughout the Police Act that
empowers the Police to recover monies or buy and sale at the Police
station.

I regrettably wish to observe that although it has become the attitude of

the Police in this God’s own country, Nigeria to abandon their primary
responsibility bestowed on them under both the Police Act and the
Constitution of Federal Republic of Nigeria, it is most worrisome that
when the Police embark on their illegal, ultra – vires, self – acclaimed role
of Court, they abandoned the main issue, that is, criminal aspect of the
case, which ought to be the fulcrum of the case before them.

Under what law has the police force been converted into a debt collection
agency? Or do the function of police include recovery of debts? I find the
averment of the Respondent in paragraphs 2 and 3 most difficult to
believe, and I do not believe them.

I prefer the averment of the Applicant as contained in paragraphs 2, 3 and

4 of the affidavit in support.

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From the averment contained in paragraph 8 of the joint counter affidavit
of 1st – 5th Respondent, the Police recovered Exhibit C1 and C2 at the
residence of the Applicant.

Why did the I.P.O not liaise with National Drug Law Enforcement
Agency, (NDLEA) to unravel the authenticity of Exhibits C1 and C2 and
its states as it relates to the suspect?

Why did the 2nd Respondent not charge the Applicant to Court since
January, 2011?

Why was the Applicant rearrested again after granted bail?

Why would the Police station be a place for buying and selling of
suspects/ items as stated on oath by the 2nd Respondent in paragraph 7 of
the joint counter affidavit?

How can any Court be convinced that the volition of an incarcerated

suspect is unfettered and uncontrolled? It is rare.

I find this most degrading of the office of the Inspector General of Police
of Nigeria.

This is indeed is the direct effect of the calibre of men and women often
recruited into the closest friends of the civilian who have become most
unfriendly and uncultured.

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If the Applicant was reported to the police to have presented himself as
“Boss” at National Drug Law Enforcement Agency, (NDLEA) as stated
by the Respondents in their paragraph 3 of counter affidavit, why then did
the Respondents not arraign him for the offence of collecting money under
false pretence or impersonation? Why would the Respondents release the
Applicant on bail and re-arrest him? I must say that this is a clear case of
civil transaction between adults seeking jobs in this country. Again and
again, this is the direct failure of governance in Nigeria.

It is the duty of every citizen to report cases of commission of crime to

the police for their investigation and what happens after such report is
entirely the responsibility of the police.

The citizen cannot be had culpable for doing their civil duty unless it is
shown that it is done mala fide. See the case of CHIEF (DR) O.
FAJEMIROKUN VS COMMERCIAL BANK NIG. LTD & ANOR 2-3
SC (pt. 1) 26.

As distilled from paragraphs 5, 6, 7, 8 and 10 of the joint counter affidavit

of the Respondents, it is clearly a case of sweeping denials on the pact of
the Respondents without counter – information to match – up the
averments of the Applicant as contained in the affidavit in support of the
application for enforcement of Fundamental Human Rights is what has
taken place all through.

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Every human being is entitled to a Fundamental Human Right only when
he is not subject to any constitutional disability. A person who is detained
for an offence within the law is subject to a constitutional disability. See
the case of EKANEM VS ASSISTANT I.G.P (2008) ALL FWLR (pt.
420) 775 at 785 paragraph D, and ODOGWU VS ATT. GEN.
FEDERATION (1996) 6 NWLR (pt. 456).

It is the statement of the Applicant as exhibited by the Respondents and

marked as Exhibit B1, that he is presently working as a consultant to
National Drug Law Enforcement Agency (NDLEA), Civil Defence Corps
and other private firm either through third party or direct engagement.

In my opinion, this is a very useful information available for exploitation

by the 1st – 5th Respondents.

It is the averment of Applicant in paragraph 2 of affidavit in support of

application that in December, 2010, he was approached by one Emmanuel
Effiong Akpan and Mr. Pious Okoye to help them draw up Curriculum
Vitae, search for jobs, provide referees and make referrals for jobs in the
FCT.

Above statement was not controverted by Respondents in any paragraphs

of their joint counter affidavit.

And in law, an unchallenged affidavit is admitted as being correct. See the

case of HENRY STEPHENS ENGINEERING LTD VS S.A TAKABU
NIG. (LTD) (2009) LPELR SC 153/2002.
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I am unable to find any justification in the affidavit filed on behalf of the
1st to 5th Respondents justifying the infringement of the Applicant’s right
to personal liberty and his right to his car with registration no. BC 799
NSR, Nokia handset C6. See AGBAHOBA VS THE DIRECTOR S. S.
S. (1994) 6 NWLR (pt. 351) 475.

In the light of my findings above, I am satisfied that the Applicant has

established a right against the 1st – 5th Respondents and must be entitled
to a remedy- UBI – JUS IBI REMEDIUM. See BELLO VS A. G.
FEDERATION (1986) 5 NWLR (pt. 45) 828 at 870.

The Applicant’s case succeeds on the ground of unlawful detention of

himself and his Car, Nokia handset C6 and I hereby make the following
orders:-

1. That the detention of the Applicant in the cells of the 1st – 5th
Respondent for 3 days from the 10th – 12th of January, 2011 and for
another 2 days on the 4th – 5th February, 2011 without charging the
Applicant to Court over a debt, is wrongful and unconstitutional and
a violation of the rights of the Applicant as provided for in the
Constitution of the Federal Republic of Nigeria and the African
Charter on Human and People’s Rights.

2. That the seizure and confiscation of the Applicant’s Honda Accord

89 model vehicle with registration no. BC 799 NSR over debt owned

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 without an order of Court or as provided for by law is wrongful and
unconstitutional.

3. I order the 1st – 5th Respondents to release forthwith Applicant

Honda Car with no. BC 799 NSR with his Nokia C6 handset.

4. I award N50, 000.00 exemplary damages against the Respondents

for wrongful detention of the Applicant, his car and handset.

Hon. Justice Y. Halilu

Judge
th
17 May, 2011

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