IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: THE HON. JUSTICE PETER O. AFFEN

MONDAY, APRIL 30, 2018

SUIT NO. FCT/HC/CV/2573/2017

BETWEEN:

BARTHOLOMEW ONONMHEN ASUELIMEN … APPLICANT

AND

1. ECONOMIC & FINANCIAL CRIMES COMMISSION

2. MR KOLA ABANWONSE … RESPONDENTS

JJ UU DD GG MM EE NN TT

TTHHEE AAPPPPLLIICCAANNTT herein, Bartholomew Ononmhen Asuelimen has approached

this court for the enforcement of his fundamental rights to personal liberty and

freedom of movement by a motion on notice dated 2/8/17 which is

supported by a Statement made pursuant to Order II Rule 3 of the

Fundamental Rights (Enforcement Procedure) Rules, 2009 (“FREP Rules”) and a

58-paragraphed supporting affidavit and a 25-paragraphed further

affidavit (No. 1) dated 22/8/17 deposed by the Applicant, seeking the

following reliefs:

“1. A DECLARATION that the detention of the Applicant from Tuesday,

25th of July, 2017 to Friday, 28th of July, 2017 at the Economic and

Financial Crimes Commission (EFCC) underground cell located at

Idiagbon House, 5 Formella Street, Wuse II, Abuja over a pure land

transaction between the Applicant and 2nd Respondent, which is the

subject of Suit No: FCT/HC/CV/1593/2016 between Bartholomew

Ononmhen Asuelimen & Anor v. Mr. Kola Abawonse & Anor pending

before Hon. Justice Folasade Ojo of High Court No. 13, Maitama,

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Abuja, is unconstitutional, illegal and violation of his fundamental

human rights, as guaranteed under the Constitution of the Federal

Republic of Nigeria 1999 (as amended).

2. A DECLARATION that the unilateral revocation of the Applicant's bail

and imposition of stringent conditions of producing a serving Senator,

House of Representatives member and/or Permanent Secretary in a

Federal establishment by the 1st Respondent on Tuesday, 25th of July,

2017, when the Applicant voluntarily honoured the 1st Respondent's

invitation is unreasonable, capricious, oppressive, wicked,

unconstitutional, illegal and a violation of his fundamental rights as

guaranteed under the Constitution of the Federal Republic of Nigeria

1999 (as amended).

3. A DECLARATION that the refusal of the 1st Respondent to arraign the

Applicant in a competent court of law for any alleged offence within

24 hours upon his detention on Tuesday, 25th of July, 2017 is

unconstitutional, illegal and a violation of his fundamental rights as

guaranteed under the Constitution of the Federal Republic of Nigeria

1999 (as amended).

4. A DECLARATION that the insistence of the 1st Respondent that the

Applicant should pay money totalling the sum of Forty-Two Million

Naira (N42,000,000) to the 2nd Respondent, which is the subject of the

2nd Respondent's Counterclaim in Suit No: FCT/HC/CV/1593/2016

between Bartholomew Ononmhen Asuelimen & Anor v. Mr Kola

Abawonse & Anor is illegal, oppressive, unconstitutional, ultra vires the

powers of the 1st Respondent and a violation of his fundamental rights

as guaranteed under the Constitution of the Federal Republic of

Nigeria 1999 (as amended).

5. A DECLARATION that the 1st Respondent is not a debt recovery agent

or an enforcer of claims relating to ownership of land within any part

of the Federal Capital Territory.

6. A DECLARATION that the seizure of the Applicant's mobile telephones

by the 1st Respondent's officials from Tuesday, 25th of July, 2017 to

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Friday, 28th of July, 2017 is unconstitutional, illegal and a violation of

his fundamental rights as guaranteed under the Constitution of the

Federal Republic of Nigeria 1999 (as amended).

7. AN ORDER of injunction restraining the 1st Respondent from further

detaining the Applicant whenever the Applicant voluntarily honours its

invitation over the complaint relating to the claim of the 2nd Respondent

to money had and received for consideration that has failed in respect

of a piece of land in Lugbe, Abuja, which is the subject of the claim

and Counterclaim in Suit No: FCT/HC/CV/1593/2016.

8. AN ORDER of injunction restraining the 1st Respondent from unilaterally

revoking the bail which it granted the Applicant and imposing

capricious conditions whenever the Applicant voluntarily honours the 1st

Respondent's invitation to appear in its office.

9. AN ORDER of injunction restraining the Respondents jointly and

severally either acting by themselves or through their privies, servants,

agents or anybody howsoever called or described from further

demanding payment of any sum of money from the Applicant in favour

of the 2nd Respondent in respect of the land in Lugbe, which monetary

claim is the subject matter of Suit No: FCT/HC/CV /1593/2016.

10. AN ORDER of perpetual injunction restraining the Respondents jointly

and severally either acting by themselves or through their privies,

servants, agents or anybody howsoever called or described from

further harassing, intimidating, arresting and detaining the Applicant in

respect of any claim connected with the civil suit in Suit No:

FCT/HC/CV/1593/2016 between the Applicant and 2nd Respondent.

11. AN ORDER of this Honourable Court compelling the Respondents to

jointly and/or severally pay the Applicant the sum of N50,000,000.00

(Fifty Million Naira) only being damages for the unlawful detention of

the Applicant from Tuesday, 25th of July, 2017 to Friday, 28th of July,

2017.

12. AN ORDER of this Honourable Court compelling the Respondents to

jointly and/or severally pay the Applicant the sum of N50,000,000.00

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(Fifty Million Naira) only being exemplary and/or aggravated

damages for the unlawful detention of the Applicant from Tuesday,

25th of July, 2017 to Friday, 28th of July, 2017.

AND FOR SUCH FURTHER or other Order(s) as this Honourable Court may

deem fit to make in the circumstances of this application.”

The grounds upon which the application is predicated are:

“a. The Applicant's detention is a violation of his right to personal liberty

and contrary to Sections 34, 35, 36 and 41 of the Constitution of the

Federal Republic of Nigeria, 1999 (as amended) and Articles 5, 6, 7

and 12 of the African Charter on Human and Peoples Rights

(Ratification and Enforcement) Act, Cap 10, Revised Law of the

Federation 2009.

b. The detention of the Applicant is a breach of his fundamental rights

guaranteed under Sections 34 and 35 of the Constitution of the

Federal Republic of Nigeria 1999 (as amended) and Article 5 and 6

of the African Charter on Human and Peoples Right (Ratification and

Enforcement) Act, Cap 10, Revised Laws of the Federation, 2009.

c. The Applicant’s constitutional right to presumption of innocence has

been violated by the Respondents.

d. The Applicant’s constitutional right to personal liberty and freedom of

movement has been violated.

e. The Applicant is entitled to redress in the manner sought before this

court.”

In opposition to the application, the 1st Respondent, Economic and Financial

Crimes Commission (“EFCC”) caused to be filed on its behalf a 49-

paragraphed counter affidavit deposed by one Peter John [who is an

Investigating Officer] on 17/8/17, whilst the 2nd Respondent, Mr Kola

Abawonse personally deposed to a 36-paragraphed counter affidavit dated

4/10/17. In response to these counter affidavits, the Applicant filed (i) a 25-

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paragraphed further affidavit (No. 1) dated 22/8/17 [deposed by him]; (ii)

a 5-paragraphed further affidavit (No. 2) dated 22/8/17 deposed by one

Adeyele Sotinwa [said to be a friend of the Applicant]; and (iii) a 27-

paragraphed further affidavit dated 9/1/18 [also deposed by him].

The 1st Respondent [EFCC] felt rather strongly that being an agency of the

Federal Government of Nigeria, it ought not to be proceeded against in the

High Court of the Federal Capital Territory. It has therefore raised a

preliminary objection dated 15/8/17 [but filed 17/8/17] challenging the

jurisdiction of this court to entertain, hear and determine this action as

presently constituted on the following grounds:

“1. The 1st Respondent is an agency of the Federal Government.

2. That the reliefs sought by the Applicant in this suit are declarations and

injunctions affecting the validity of executive or administrative actions

of the 1st Respondent.

3. That section 251(p)(q)(r) of the 1999 Constitution confers jurisdiction on

the Federal High Court to the exclusion of any other court in, inter alia,

any action or proceeding for declaration or injunction affecting the

validity of executive or administrative action or decision by the

Federal Government or any of its agencies.”

In opposition to the 1st Respondent’s preliminary objection, the Applicant filed

a written address dated 22/8/17. At the consolidated hearing of the

preliminary objection and the substantive application for enforcement of

fundamental rights on 30/1/18, S. A. Ugwuegbulam, Esq. of counsel for the 1st

Respondent adopted the ‘written brief’ in support of notice of preliminary

objection and urged the court to decline jurisdiction; whilst Oluwoye

Aladedoye, Esq. of counsel for the Applicant (who appeared with B. C.

Chukwu, Esq.) adopted the written address in opposition to the preliminary

objection in urging the court to overrule the objection for being grossly

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misconceived, insisting that the Applicant’s grouse and the reliefs sought are

merely a challenge to the 1st Respondent’s illegal actions as opposed to the

validity of those actions. The 2nd Respondent did not react in one way or

another to the preliminary objection.

Shifting attention to the substantive application for enforcement of

fundamental rights, Aladedoye, Esq. of counsel for the Applicant relied on the

Statement and the supporting and further affidavits [recited above] and

adopted the written address and replies on points of law in urging the court

to grant the reliefs sought. In the same vein, S. A. Ugwuegbulam, Esq. of

counsel for the 1st Respondent relied on the 49-paragraphed counter affidavit

and adopted the written address filed in opposition to the application for

enforcement of fundamental rights in urging the court to dismiss the

application for lacking in merit. Not dissimilarly, Victor Abasiakan-Ekim, Esq.

of counsel for the 2nd Respondent (who appeared with Nnaemeka John-Paul

Okafor, Esq. and Idongesit Ekpenyong, Esq.) relied on the 36-paragraphed

counter-affidavit and adopted the written address filed on behalf of the 2nd

Respondent in urging the court to dismiss the application or strike out the 2nd

Respondent from these proceedings.

Now, the pre-eminent status or stature of jurisdiction in the scheme of legal

proceedings is well ingrained in our jurisprudence. It is therefore merely

restating the obvious that jurisdiction is the first test in the legal authority of a

court or tribunal and its absence disqualifies the court or tribunal from

determining the substantive issues submitted to it for adjudication. Jurisdiction

is a threshold matter and the very lifeline of judicial power and judicialism

without which the entire proceedings, trial, findings, orders and

pronouncements are futile, invalid, null and void ab initio however brilliantly

they may have been conducted. Once the jurisdiction of a court in respect of a

cause or matter is ousted, the court will lack the competence to entertain and

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determine that cause or matter. See the leading case of MADUKOLU v

NKEMDILIM (1962) 1 ALL NLR 587 at 595 –per Bairamian FJ, ROSSEK v ACB

LIMITED [1993] 8 NWLR (PT. 312) 382 at 437 & 487; ATTORNEY-GENERAL,

LAGOS v DOSUNMU [1989] 3 NWLR (PT. 111) 552, MATARI v

DANGALADIMA [1993] 3 NWLR (PT. 281) 266, OLOBA v AKEREJA [1988] 3

NWLR (PT. 84) 508 and OKE v OKE [2006] 17 NWLR (PT. 1008) 224 among

a host of other cases. Owing to its fundamental and intrinsic nature and effect

in judicial administration, it is neither too early nor too late in the day to raise

the issue of jurisdiction, nor is the court finicky or fussy about the manner in

which it may be raised. It can be raised viva voce [see PETROJESSICA

ENTERPRISES LIMITED v LEVENTIS TRADING COMPANY LIMITED [1992] 5

NWLR (PT. 244) 675 at 678], or on the basis of the evidence received [see

NDIC v CBN [2002] 7 NWLR (PT. 766) 272], or for the first time on appeal

without any restraints as to leave or otherwise. See WESTERN STEEL WORKS

LTD & ANOR v IRON STEEL WORKERS LTD [1987] 2 NWLR (PT. 179) 188,

MAGARI v MATARI [2000] 8 NWLR (PT 670) 722 at 735, ADERIBIGBE v

ABIDOYE [2009] 10 NWLR (PT.1150) 592, 615, AKEGBE v ATAGA [1998] 1

NWLR (PT 534) 459 at 465, STATE v ONAGORUWA (1992) 2 SCNJ 1 and

ATTORNEY-GENERAL, LAGOS v DOSUMU supra. Jurisdiction can also be

raised by the court suo motu once sufficient facts or materials are available

without any charge of bias by any of the parties insofar as the parties are

afforded the opportunity to address the court on the issue so raised. See

SAMSON IWIE v SOLOMON IGIWI [2005] 3 MJSC 82 at 112 –per Niki Tobi,

JSC, OLORIODE v OYEBI (1984) 1 SCNLR 390, OBIKOYA v THE REGISTRAR

OF COMPANIES (1975) 4 SC 31at 35, NNPC v ORHIOWASELE & ORS (2013)

LPELR–20341 (SC], NDAEYO v OGBONNAYA (1977) 1 SC 11 and ELEBANJO

v DAWODU [2006) 15 NWLR (PT.1001) 76. In civil jurisprudence, where the

issue arises as to whether or not a court can entertain a suit, it is usually to the

plaintiff’s claim that reference must be made in order to find an answer. See

ADEYEMI v OPEYORI (1976) 9-10 SC 31 at 49, NZEKWE v NNADOZIE (1952)

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14 WACA 361, TUKUR v GOVERNMENT OF GONGOLA STATE [1989] 4

NWLR (PT. 117) 517 at 549 and METTERADONA v AHU [1995] 8 NWLR (PT.

412) 225. However, reference can equally be made to available affidavit or

other documentary evidence in an appropriate case. See WESTERN STEEL

WORKS LTD v IRON & STEEL WORKERS UNION OF NIGERIA [1987] 1 NWLR

(PT. 49) 284 at 305 –per Oputa JSC, NATIONAL BANK v SHOYEYE (1977) 5

SC 181, NICON v NOGA HOTELS SA [2003] 13 WRN 142 at 154 -15 –per

Sanusi, JCA (as he then was) and TRADE BANK v UDEGBUNAM [2003] 16

WRN 14 at 29. In the peculiar scheme of legal proceedings, a court is vested

with jurisdiction to entertain and determine the application by which its

jurisdiction is challenged. See BARCLAYS BANK OF NIG. LTD v CENTRAL

BANK OF NIGERIA (1976) 6 SC 175 at 188 -189, IWUAGOLU v AZYKA

[2007] 5 NWLR (PT. 1028) 613 at 630 and WILKINSON v BANKING

CORPORATION (1948) 1 KB 721 at 724. It is therefore imperative for this

court to be reasonably assured that its jurisdiction to entertain and determine

this matter is not impaired in any way before going further in the

proceedings, if at all it will go any further.

The sole issue formulated in the written address filed in support of the 1st

Respondent’s preliminary objection is: “Whether in the light of section 251(p),

(q) (r) of the 1999 Constitution (as amended), the High Court of the Federal

Capital Territory can entertain an action against the 1st Respondent where reliefs

sought are declarations and injunctions against the administrative and

executive actions of the 1st Respondent”. The 1st Respondent/objector

returned a negative answer to the above sole issue and contended forcefully

that by virtue of s. 251(1)(p) (q) and (r) of the 1999 Constitution (as

amended), this Court lacks the requisite jurisdiction to entertain the present suit

which is directed at the executive and administrative actions or decisions of an

agency of the Federal Government, citing the cases of DIRECTOR-GENERAL,

S.S.S. v OJUKWU [2006] 13 NWLR (PT 998) 575, AGBULE v W.R. & P. CO. LTD

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[2013] ALL FWLR (Pt. 688) 829 [in which the Supreme Court is said to have

finally reinstated its earlier decision in NEPA v EDEGBERO [2002] 18 NWLR

(PT. 798) 79 at 95], UNIVERSITY OF ABUJA v OLOGE [1996] 4 NWLR (Pt

445) 706 at 722, CENTRAL BANK OF NIGERIA & ORS v OKOJIE (2015)

LPELR-24740 (SC) at 28-29, WEMA SECURITIES & FINANCE PLC v NIGERIA

AGRICULTURAL INSURANCE CORPORATION (2015) LPELR-24833 (SC) at 58,

ONI v CADBURY NIGERIA PLC (2016) LPELR-26061 (SC), INEGBEDION v

SELO-OJEMEN [2013] 8 NWLR (PT. 1356) 234, AYENI v UNIVERSITY OF

ILORIN [2002] 2 NWLR (PT. 644) 290, ABIEC v KANU [2013] 13 NWLR (Pt

1370) 69 at 83, ONA v ATENDA [2000] 5 NWLR (PT. 656) 244 at 269, FGN v

OSHIOMOLE [2004] NWLR (PT. 860) 305 at 324 and MINISTER OF WORKS &

HOUSING v ALHAJA KUBURAT SHITTU & 2 ORS [2007] NWLR (PT. 1060) 351

at 374 - 374 (CA), insisting that “all the laws cited herein and guidelines

provided by the Supreme Court indicate that an action for the enforcement of

fundamental rights falls within the exclusive jurisdiction of the Federal High Court

because the claims related to matters listed under section 251(1) of the

Constitution and a claim for declaration, injunction, damages or specific

performance is made against such federal agency”.

The Applicant’s reaction is that in the light of Order VIII Rule 2 and Order II

Rule 6 of the FREP Rules 2009, there is no competent preliminary objection

that can be countenanced by this court, insisting that whereas the application

for enforcement of fundamental right was served on or before 8/8/17, the 1st

Respondent’s preliminary objection was not filed until 17/8/17 which far

exceeds the five (5) days prescribed in the FREP Rules, placing reliance on

NWANKWO v ABAZIE [2003] 12 NWLR (Pt. 834) 381 at 412 (CA) [on the

proposition that where a process is required to be filed within a specific time

prescribed by law, any such process filed outside the prescribed time is

incompetent]. The further reaction of the Applicant is that the nature of this

action [being an action for enforcement of fundamental rights under the

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special procedure stipulated in the FREP Rules which is quite different from

normal proceedings] must be borne in mind, citing E.F.C.C. v AKINGBOLA

[2015] 11 NWLR (Pt. 1470) 249 at 289 –per Augie JCA (now JSC) and

DIRECTOR, S.S.S. v AGBAKOBA [1999] 3 NWLR (PT. 595) 314 SC; that it is not

the law that once an agency of the Federal Government is a party to an

action, the Federal High Court automatically assumes exclusive jurisdiction,

insisting that the subject matter of an action plays a crucial role in determining

the court seised of jurisdiction irrespective of the parties, placing reliance on

OLADIPO v NIGERIA CUSTOMS SERVICE BOARD [2009] 12 NWLR (Pt. 1156)

563 at 586-587 –per Nweze, JCA (now JSC); that the Applicant’s grouse is not

that the 1st Respondent cannot investigate crime, rather it is that the 1st

Respondent is not empowered under any law to detain him for four (4) clear

days upon the instigation of the 2nd Respondent in respect of a land

transaction which is the subject of a suit pending before this Honourable Court;

that the 1st Respondent cannot coerce him to pay moneys to the 2nd

Respondent in respect of a land transaction; that s. 251(1) (p), (q) & (r) of the

1999 Constitution (as amended) is inapplicable since it is neither an executive

or administrative action of the 1st Respondent to detain citizens over land

transactions which is the subject matter of a civil suit nor is the 1st Respondent a

debt recovery agency, citing UNACHUKWU v AJUZIE [2009] All FWLR (PT.

495) 1730 at 1744, ISUAMA v GOV., EBONYI STATE [2006] 6 NWLR (Pt. 975)

184 at 196-197 –per Adekeye, JCA (as he then was); AGBASO v IWUNZE

[2015] 11 NWLR (PT. 1471) 527 at 556-558, GRACE JACK v UNIVERSITY OF

AGRICULTURE, MAKURDI [2004] 5 NWLR (PT. 865) 208 at 299 (SC) [to the

effect that both the State High Court and the Federal High Court have

concurrent jurisdiction on matters of fundamental rights irrespective of the

parties], NIGERIAN NAVY v GARRICK (2006) ALL FWLR (PT. 315) 45, (2006)

4 NWLR (PT. 969) 69; NNABUCHI v IGP (2007) ALL FWLR (PT. 368) 1158 at

1163 (CA) and GARBA v BIRNIWA & ANOR (2013) LPELR-21478 (CA) [on the

proposition that what determines the jurisdiction of a Court, apart from the

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statute establishing it, is the subject matter of litigation which is determined by

the plaintiff’s claim]. The Applicant maintained that the cases relied upon by

the 1st Respondent are totally irrelevant and inapplicable to this case as they

were not instituted under the FREP Rules, citing UDO v STATE [2016] 12 NWLR

(PT. 1525) 1 at 25 (SC) [on the proposition that ‘the decision of a court must

always be considered in the light of its own peculiar facts and circumstances

since no case is hardly identical to another and each case is only an authority

for what it decides and nothing more’]; that although the case of DIRECTOR-

GENERAL S.S.S v OJUKWU supra [cited at pages 4 and 5 of the 1st

Respondent's address] was founded on the FREP Rules, it has since been

overtaken by the later decision of the same Court of Appeal in AGBASO v

IWUNZE supra also decided on the basis of the FREP Rules, placing reliance on

BOB-MANUEL v WOJI [2010] 8 NWLR (Pt. 1196) 260 at 275 [to the effect

that the later in time prevails where two decisions of the same court are in

conflict]. The court was urged to dismiss the preliminary objection and assume

jurisdiction.

The foregoing are the arguments put forward in support of and in opposition

to the 1st Respondent’s objection. I note that the Applicant raised what is

essentially an ‘objection’ to the preliminary objection by urging the court to

discountenance the same for having not been filed within five (5) days of

service of the application for enforcement of fundamental right as required by

Order VIII Rule 2 and Order II Rule 6 of the FREP Rules 2009. But it does not

seem to me that we should suffer ourselves to be detained by the Applicant’s

anxiety in this regard. I will permit myself to invoke Order IX Rule 1 of the

FREP Rules 2009 and treat the 1st Respondent’s failure to react within five

days of service as an irregularity that will not vitiate the processes filed in

response to the application for enforcement fundament right, including the

notice of preliminary objection challenging the jurisdiction of this court to

entertain this matter. As stated hereinbefore, owing to its fundamental and

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intrinsic nature and effect in judicial administration, it is neither too early nor

too late in the day to raise the issue of jurisdiction, nor is the court finicky or

fussy about the manner in which an objection to jurisdiction may be raised.

Now, the gravamen of the 1st Respondent’s objection is that the Applicant’s

claim falls within the matters enumerated in s. 251(1) (p) (q) and (r) of the

1999 Constitution (as amended) and therefore outside the jurisdiction of this

court. The exact scope or ambit of the substantive jurisdiction of the Federal

High Court vis-a-vis the State High Court (including the High Court of the

Federal Capital Territory) has been enmeshed in controversy since the days of

its precursor, the Federal Revenue Court, which was established in 1973.

Cases such as JAMMAL STEEL STRUCTURES v ACB (1973) 1 All NLR (PT. II)

208, BRONIK MOTORS v WEMA BANK (1983) 6 SC 158 and SAVANNAH

BANK v PAN-ATLANTIC SHIPPING & TRANSPORT AGENCIES (1987) 1 SCNJ 88

are familiar territory, but the more the courts interpret the issue, the more

cases come before the courts; and they will continue to come before the courts

as long as lawyers bicker and disagree on the real purport of the

constitutional provisions in respect of the two courts. See ONUORAH v KRPC

LIMITED [2005] 6 MJSC 137 at 150 –per Niki Tobi, JSC. In WEMA SECURITIES

AND FINANCE PLC v NIGERIAN AGRICULTURAL INSURANCE CORPORATION

(2015) SC 177, [2015] 16 NWLR (PT. 1484) 93 at 130 - 136, C. C. Nweze,

JSC reiterated the disenchantment he expressed in OLADIPO v NIGERIA

CUSTOMS SERVICE BOARD [2009] 12 NWLR (PT. 1156) 563 (CA) on the

divergent judicial reactions to the correct interpretation of s. 251(1) of the

1999 Constitution (as amended) and the 'frenzy of doctrinal debates' in the

Law Reports over the scope of the additional powers conferred on the Federal

High Court. His Lordship equally undertook a conspectus of the jurisdiction of

the Federal High Court and the leading cases in this area of Nigerian law,

and expressed cautious optimism “that counsel would, henceforth, stop

hampering the smooth administration of justice and efficient management of

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cases, both at the Federal High Court and State High Courts, by their irksome

recourse to their time-worn objection to the jurisdiction of these courts based on

the interpretation of Section 251(1) (supra), now rested by the above decisions

of this court”. I can only join forces with his Lordship in hoping that the

outcome of the present exercise will edify, rather than swell the number of

cases that ‘speak ill of’, our jurisprudence!

The reliefs sought by the Applicant are set out hereinbefore, and the point has

already been made that jurisdiction is determined by reference to the

plaintiff’s claim and not the defendant’s answer which merely disputes the

existence of the claim but does not alter or affect its nature. Section 251(1)

(p), (q) and (r) of the 1999 Constitution (as amended) provide thus:

“251(1)Notwithstanding anything to the contrary contained in this Constitution

and in addition to such other jurisdiction as may be conferred upon it

by an Act of the National Assembly, the Federal High Court shall

have and exercise jurisdiction to the exclusion of any other court in

civil causes and matter –

(p) the administration or the management and control of the

Federal Government or any of its agencies;

(q) subject to the provisions of this Constitution, the operation and

interpretation of this Constitution insofar as it affects the Federal

Government or any of its agencies;

(r) any action or proceeding for a declaration or injunction

affecting the validity of any executive or administrative action

or decision by the Federal Government or any of its agencies;

and

(s) ……………………….

Provided that nothing in the provisions of paragraphs (p), (q) and (r)

of this subsection shall prevent a person from seeking redress against

the Federal Government or any of its agencies in an action for

damages, injunction or specific performance where the action is

based on any enactment, law or equity.”

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Having carefully and insightfully considered the Applicant’s claim vis-a-vis

s. 251(1) (p), (q) and (r) of the Constitution [as reproduced above] upon which

the objection is predicated, I cannot see my way clear that this action falls

within the purview of the exclusive jurisdiction of the Federal High Court, as

contended by the 1st Respondent. The Applicant’s grouse is the alleged

infraction of his fundamental rights for which he seeks redress under the

special procedure provided in the FREP Rules 2009. Notwithstanding that the

1st Respondent is a federal agency [see UNIVERSITY OF ABUJA v OLOGE

supra] and the reliefs sought include claims for declaration and injunction, it

does not seem to me that these proceedings have anything to do with the

administration or management and control of the 1st Respondent, the

operation and interpretation of the Constitution as it affects the 1st

Respondent, or the validity vel non of any executive or administrative action or

decision of the 1st Respondent as envisaged by s. 251(1)(p), (q) and (r) of the

Constitution (as amended). There is therefore no legal or factual basis for

contending that this court lacks jurisdiction to entertain and determine this suit.

The point that must be vigorously emphasised is that it is not all actions or

proceedings for a declaration or injunction touching upon an executive or

administrative action or decision of the Federal Government or its agencies

that is exclusively cognisable by the Federal High Court under s. 251(1)(r) of

the 1999 Constitution (as amended). Rather, the proceedings must have a

bearing on the validity of such executive or administrative action or decision

of the Federal Government or any of its agencies before the jurisdiction of the

State High Court can be ousted. I reckon that if the Constitution intended to

confer exclusive jurisdiction on the Federal High Court over all executive or

administrative actions or decisions of the Federal Government or its agencies,

s. 251(1)(r) would simply have read: ‘any action or proceeding for a

declaration or injunction affecting any executive or administrative action or

decision by the Federal Government or any of its agencies’ without any

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qualification whatsoever. But quite the contrary, it is the wisdom of the

Constitution to confer the Federal High Court with exclusive jurisdiction only in

respect of proceedings for declaration or injunction “affecting the validity of”

executive or administrative actions or decisions by the Federal Government or

its agencies. In KOLAWOLE v ALBERTO [1989] 1 NWLR (PT. 98) 382, the

Supreme Court [per Nnaemeka-Agu, JSC] quoted with approval the dictum of

Viscount Simon in HILL v WILLIAM HILL (PARKLANE) LIMITED (1949) A.C. 530

at 546-547 to the effect that:

“When the legislature enacts a particular phrase in a statute, the presumption

is that it is saying something which has not been said immediately before. The

rule that meaning should, if possible, be given to every word in the statute

implies that unless there is good reason to the contrary, the words add

something which would not be there if the words were left out”.

The relevant enquiry therefore is as to the proper meaning of the word

‘validity’ in the context of s. 251(1)(r) of the 1999 Constitution (as amended),

bearing in mind that in interpreting a statute [including the Constitution], the

cardinal canon the court should always turn to before all others is that it “must

presume that a legislature says in a statute what it means and means in a statute

what it says there” [see CONNECTICUT NAT’L BANK v GERMAIN, 112 S. Ct.

1146 at 1149 (1992)], and “when the words of a statute are unambiguous, then

this first canon is also the last: judicial enquiry is complete” as the legislature “is

presumed to act intentionally and purposely when it includes language in one

section but omits it in another”. See ESTATE OF BELL v COMMISSIONER, 928

F.2d 901 at 904 (9th Cir. 1991).

The term ‘validity’ is an abstract noun and derivative of ‘valid’ which is

defined as “binding, possessing legal force or strength, legally sufficient”. See

West’s Encyclopedia of American Law, 2nd edn., The Gale Group Inc., 2008.

Similarly, the Black’s Law Dictionary (8th edn.), p. 1586 defines it as “legally

16 | P a g e

sufficient, binding”. Validity signifies legal sufficiency in contradistinction to

mere regularity. It would seem therefore that an ‘action or proceeding

affecting the validity of any administrative action or decision of the Federal

Government or any of its agencies’ in the context of s. 251(1)(r) of the 1999

Constitution (as amended) must be one that transcends mere irregularity or

wrongfulness of the executive or administrative action or decision complained

of. The legal force, binding-ness or legal sufficiency of the executive or

administrative action or decision, or the legal competence, capacity or

authority of the Federal Government or its agency to take the executive or

administrative action or make the executive or administrative decision must be

a front-burner issue in an action or proceeding before it can be said to affect

the validity of any such executive or administrative action or decision. It occurs

to me, for instance, that the judicial decision [or judgment] of a court of

competent jurisdiction may be challenged for being wrong in law or fact

notwithstanding that it is otherwise legally valid. That is to say, it is not every

proceeding against the judicial decision of a court of law that necessarily

affects or touches upon the validity vel non of that decision. Thus, where the

essential legal validity or competence of an executive or administrative action

or decision of the Federal Government or any of its agencies is not the

primary focus or main plank of the proceedings, it cannot be said that the

Federal High Court has exclusive jurisdiction so as to divest the State High

Court [inclusive of the FCT High Court] of jurisdiction to entertain the matter.

This seems to me the obvious import and implication of the proviso to s. 251(1)

(p), (q) and (r) of the Constitution (as amended) to the effect that “nothing in

the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a

person from seeking redress against the Federal Government or any of its

agencies in an action for damages, injunction or specific performance where the

action is based on any enactment, law or equity”. The above proviso not only

creates exceptions but equally qualifies, limits or restrains the generality of

paragraphs (p), (q) and (r) with a view to excluding or obviating some

17 | P a g e

possible ground for misinterpreting their extent. See Black’s Law Dictionary, 8th

edn., p. 1262 and the cases of OTUBU v UNIVERSITY OF JOS & ORS [2002]

FWLR (PT. 109) 1717 at 1734, NIGERIAN POSTAL SERVICE v ADEPOJU [2003]

FWLR (PT. 147) 1060 at 1073-1074 and UNIVERSAL TRUST BANK v UKPABIA

& ORS [2001] FWLR (PT. 51) 1889 at 1900.

In OLADIPO v NIGERIA CUSTOMS SERVICE BOARD [2009] 12 NWLR (Pt.

1156) 563 at 586-587, his Lordship, C. C. Nweze, JCA (now JSC) explained

the true purport of s. 251)(1)(r) of the Constitution in the following graphic

terms:

"I take the view that the phrase "executive or administrative action" as

employed in section 251(1)(r) must have a direct relationship with the

management and administration of the agency concerned. Hence, an

executive action must be an action concerned with, or relating to the

effectuation of the orders or plans or policies of the agency in question.

Equally, an administrative action must be an action directed towards

carrying out the policy of the agency.

Put simply, therefore, paragraph (r) (supra) simply confers exclusive

jurisdiction on the Federal High Court where an action or proceeding is for

declaration or injunction which is likely to affect the validity of an action

concerned with, or relating to the effectuation of the orders or plans or

policies of a federal agency or the validity of any action directed towards

carrying out the policy of such an agency.

In answer to the question, therefore, I take the view that the respondent

misconstrued the meaning of that section [paragraph r]. To be able to rob

the State High Court of jurisdiction over that action for trespass, it had the

duty to show that the action on trespass for declaratory and injunctive reliefs

was one which was likely to affect the validity of its action concerned with,

or relating to, the effectuation of the orders, plans or policies or the validity

of any of its actions directed towards carrying out its policies …

The sum total of what I am saying is that notwithstanding that the respondent

[Nigeria Customs Service] is admittedly a federal agency, and so ordinarily

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comes under the jurisdiction ratione personae of the Federal High Court, the

subject matter of the suit, not being one of the eighteen matters in section

251 (supra), is outside the jurisdiction ratione materiae or subject matter

jurisdiction of the Federal High Court. In effect, the lower court was wrong in

chasing away the appellant from its hallowed temple.”

With particular reference to proceedings for enforcement of fundamental

right under the FREP Rules made pursuant to s. 46 of the Constitution [as in the

instant case], the recent decision of the Court of Appeal [Abuja Division] in

EFCC v WOLFANG REINL [Appeal No. CA/A/392/2016, delivered on 26th

January 2018, unreported] which affirmed the decision of the High Court of

the FCT [Coram: Affen, J.] is quite instructive. Delivering the lead judgment, his

Lordship, Agim JCA (with whom Aboki and Ige, JJCA concurred) relied on the

decision of the Supreme Court in GRACE JACK v UNIVERSITY OF

AGRICULTURE supra as well as MUSE v EFCC [2015] 2 NWLR (PT. 1443) 235

(CA) and held [at pp. 13 – 15 of the unreported judgment] that:

“I do not agree with the submission of learned counsel for the appellant that

this action seeks to challenge the validity of the appellant’s action of

detaining the respondent and seizing his international passport. The suit

seeks to protect and enforce the respect for his fundamental rights given to

him by ss. 34(1) [and] 35(1), (3) and (4) of the Constitution and to get

redress for the violations of those rights by the appellant. The principal

question in the suit is whether the said provisions of Chapter IV of the

Constitution were contravened by the appellant in respect of the

respondent. The question of the effect of such contravention on the validity

of the said arrest and detention by the applicant, is a secondary question

that can only arise from a determination that their arrest and detention of

the respondent contravenes the above listed provisions of Chapter IV of the

Constitution. It is the principal question or issue that determines the

jurisdiction of a court to try a suit and not the secondary one. The principal

question here clearly falls within the special jurisdiction vested in the High

Court by s. 46(1) and (2) of the Constitution. The fact that it was the action

19 | P a g e

or decision of an agency of the Federal Government that is said to have

contravened the said provisions of Chapter IV of the Constitution, cannot

prevent a High Court other than the Federal High Court from exercising its

special original jurisdiction vested on it by s. 46(1) and (2) to entertain this

suit. The question of contravention of any of the provisions of Chapter IV of

the Constitution is not a matter listed in section 251(1) of the Constitution as

[falling] within the exclusive jurisdiction of the Federal High Court.”

The argument forcefully pressed in GRACE JACK v UNIVERSITY OF

AGRICULTURE supra was that an action for enforcement of fundamental rights

against an agency of the Federal Government cannot be ventilated in a State

High Court. In overruling the argument, the Supreme Court [per Uwaifo JSC]

reconciled, as it were, the provisions of s. 42(1) and (2) of the 1979

Constitution [impari materia with s. 46(1) and (2) of the 1999 Constitution] and

s. 230(1)(s) of the Constitution (Suspension and Modification) Decree No. 107

of 1993 [also impari materia with s. 251(1) (r) of the 1999 Constitution] thus:

“This provision was interpreted by this court in Bronik Motors Ltd v. Wema

Bank Ltd (1983) 1 SCNLR 296 and Tukur v Government of Gongola State

[1989] 4 NWLR (PT. 117) 517 to the effect that where both the State High

Court and the Federal High Court exist in a State, they have concurrent

rights. This is borne out of the wording of s. 42(1) is (sic) a special provision

which deals with matters of fundamental rights. It confers jurisdiction in the

High Court in a State in matters of fundamental rights irrespective of who is

affected by an action founded on such rights. On the other hand, s. 230(1)(s)

1979 Constitution (as amended) is a general provision. The law is that where

there is a special provision in a statute, a later general provision in the same

statute capable of covering the same subject matter is not to be interpreted

as derogating from what has been specially provided for individually unless

an intention to do so is unambiguously declared: see Federal Mortgage

Bank of Nigeria v. Olloh [2002] 9 NWLR (Pt. 773) 475 at 489.

In my view, section 42(1) is intended to give access to an aggrieved party to

any High Court in a State where an alleged contravention of his

fundamental right has taken place or is about to take place. It is, therefore,

20 | P a g e

a section which should itself be regarded as special and fundamental. The

court below was in error to hold that when a suit in respect of matters of

fundamental right was brought against the Federal Government or any of its

agencies, section 230(1)(s) of the 1979 Constitution (as amended) prevailed

over section 42(1)”.

There is therefore no gainsaying that this Court is not bereft of jurisdiction in

an action for enforcement of fundamental right [such as the present] which

does not fall within any of the items listed in s. 251(1) (a) - (r) of the 1999

Constitution (as amended), and in particular paragraphs (p) (q) and (r)

thereof upon which the 1st Respondent’s preliminary objection is predicated.

See also SEED WEST MICROFINANCE BANK PLC & ANOR v OGUNSINA & ORS

(2016) LPELR-41346 (CA). What must always be borne in mind is that even

though the Federal High Court now enjoys an enlarged jurisdiction under the

1999 Constitution, it is still a court of enumerated jurisdiction which is subject

matter specific. The rule of jurisdiction is that nothing shall be intended to be

out of the jurisdiction of a superior court save that which specially appears to

be so [see ANAKWENZE v ANEKE & ORS [1985] 16 NSCC (PT. II) 798 at 803

and MOBIL v LASEPA [2003] 1 MJSC 112 at 127 –per Ayoola JSC]; and “the

Courts have no more right to decline the exercise of jurisdiction which is given

than to usurp that which is not given as the one or the other would be treason of

the Constitution”. See COHEN v VIRGINIA (1821) 19 US 264 at 404 –per John

Marshal, CJ. The preliminary objection fails without further assurance.

With the strictures introduced by the preliminary objection having been

removed, let us proceed presently to consider the substantive application.

Fundamental human rights are rights which stand above the ordinary laws of

the land. The factum of their enshrinement in the Constitution, which is the

supreme law of the land, confers on them a preeminent status over and above

other human rights. See UZOUKWU & ORS v EZEONU II & ORS. [1991] 6

NWLR (PT. 200) 700 at 761. Although the origin of fundamental rights is said

21 | P a g e

to date back to the Magna Carta of June 19 1215, these rights are in fact

antecedent to the political society itself: they are “inherent in man because they

are part of man”. See F.R.N. v IFEGWU [2003] 8 MJSC 36 at 101 – 102 (per

Niki Tobi, JSC). In the words of Lord Cooke of Thorndon, they are “rights that

are inherent and fundamental to democratic civilised society, [and] conventions,

constitutions, bills of rights and the like merely respond by recognising rather

than creating them”. See REGINA v SECRETARY OF STATE FOR THE HOME

DEPARTMENT, EX PARTE DALY [2001] 3 All ER 433, [2001] 1 AC 532. Thus,

fundamental rights constitute ‘the basic minimum standard for civilised humanity’

enshrined in the Constitution so that they could be inalienable and immutable

to the extent of the non-immutability of the Constitution itself. See RANSOME

KUTI v A-G, FEDERATION [1985] 7 NWLR (PT. 6) 211 at 231 –per Eso, JSC. It

would seem however that the divide between ‘fundamental rights’ strictly so

called and ‘human rights’ simpliciter has become somewhat blurred under the

Fundamental Rights (Enforcement Procedure) Rules, 2009 wherein ‘human

rights’ is defined in Order 1 Rule 2 thereof to include fundamental rights which

transcend the rights specifically enshrined under Chapter IV of the 1999

Constitution and incorporate rights guaranteed under the African Charter on

Human and Peoples’ Rights. Nonetheless, some fundamental rights [notably

freedom of movement and the right to acquire immovable property anywhere

in Nigeria, etc.] are exclusively for the enjoyment of Nigerian nationals, whilst

others [such as the right to life, dignity of human person, liberty, fair hearing,

etc.] are available to all persons within the territorial boundaries of Nigeria

irrespective of nationality. Also, while some of the provisions of Chapter IV

can only be enforced against the government, there are some others which can

be enforced against both the government and the individual; but whether a

fundamental right is enforceable against the government or against the

individual or against both is dependent upon the wording of the right. See

PETERSIDE v I.M.B. (NIG) LTD [1993] 2 NWLR (PT. 278) 712 –per Niki Tobi, JCA

(as he then was). What is more, some fundamental rights are exclusively

22 | P a g e

available to human beings or natural persons but not artificial or corporate

entities. A convenient example in this latter category which readily comes to

mind is the right to own and acquire land anywhere in Nigeria which is

specifically conferred on ‘every citizen of Nigeria’ under s. 43 of the

Constitution or ‘every individual’ under Article 14 of the African Charter. This

dichotomy becomes imperative when it is borne in mind, for instance, that even

if fundamental rights [such as the right to fair hearing] can be enforced by

non-human persons or artificial entities as held in ONYEKWULUJE v BENUE

STATE GOVT. [2005] 8 NWLR (PT. 928) 614 at 646 - 647 –per Ogbuagu, JCA

(as he then was), it cannot be seriously contended that fundamental rights such

as the right to life, right to human dignity and privacy of family life, right to

personal liberty or freedom of movement can be enforced by artificial

persons. Therefore, the question as to whether a particular fundamental right

can be enforced by a corporate entity inevitably depends upon the nature of

the right and/or language employed in the Constitution. See UNITED BANK

FOR AFRICA v COMMISSIONER OF POLICE, FCT & ANOR (Suit No.

FCT/HC/M/12305/12, delivered on 21/6/12 –per Affen, J., unreported).

The infringement of a fundamental right is largely a question of fact and an

applicant alleging that his fundamental right has been, is being or is likely to

be contravened must present facts which eloquently disclose the alleged

infringement. It is the facts as presented that will disclose if the applicant’s

fundamental rights have been contravened or otherwise dealt with in a

manner inconsistent with constitutional guarantees. See OYEWOLE SUNDAY v

ADAMU SHEHU [1995] 8 NWLR (PT. 414) 484 and DONGTOE v CIVIL SERVICE

COMMISSION, PLATEAU STATE [2001] 9 NWLR (PT. 717) 132. Let us therefore

beam the searchlight on the facts disclosed by the Applicant in support of the

substantive application for enforcement of fundamental right.

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The Applicant’s grouse [as can be gleaned from the Statement and the

supporting and further affidavits] is that he was invited by the 1st Respondent

[EFCC] sometime in March 2017 in connection with a land transaction between

his client, Nigerian Primary Health Care Development Agency Staff Multi-

purpose Co-operative Society [“the Cooperative Society”] and the 2nd

Respondent; that he made an extra-judicial statement and was released on

bail upon fulfilling the bail conditions imposed by the 1st Respondent; that he

reported dutifully at the 1st Respondent’s office [initially on weekly basis and

subsequently every fortnight] as he was required to do; that when he showed

up on Tuesday, 25/7/17 as usual, he made another statement as demanded

by the 1st Respondent’s officials who equally informed him that his bail had

been revoked and that he had to comply with fresh bail conditions [as

contained in Exhibit O] requiring him to produce a serving Senator and a

Permanent Secretary in any Federal Ministry with landed property in Abuja

Municipal Area Council as sureties, notwithstanding that his earlier sureties had

not withdrawn their suretyship till date; that his telephone handsets were

seized and he was taken to an underground cell at Idiagbon House, No. 5,

Fomella Street, Wuse II, Abuja where he was detained from Tuesday,

25/7/17 till Friday, 28/7/17 without being arraigned in any court of

competent jurisdiction; and that it was at the point of being taken to the cell

that he overheard the 1st Respondent's Investigating Officer, John Peter

informing the cell guard that the 2nd Respondent herein, Mr. Kola Abawonse

was the complainant. The Applicant’s further grouse is that the 1st Respondent's

officials directed him to give an undertaking to pay N42m to the 2nd

Respondent through them despite his protestation that the said sum was the

subject matter of the 2nd Respondent’s counterclaim in Suit No.

FCT/HC/CV/1593/2016 pending before the FCT High Court [Court No. 13];

that he was released from detention on Friday, 28/7/17 only after producing

a Director in the Federal Civil Service and another Civil Servant as sureties;

that upon his release from detention, he reported at the 1st Respondent's office

24 | P a g e

on Monday, 31/7/17 as directed and the Investigating Officer, Mr. John

Peter insisted that he should come up with a payment plan for the N42m in his

next visit on Monday, 7/8/17; that the 1st Respondent which is not a debt

recovery agency is being instigated by 2nd Respondent to coerce him into

paying N42m which is the subject matter of 2nd Respondent's counterclaim as

aforesaid; that he is not indebted to the 2nd Respondent to the tune of N42m

or any sum at all, rather it is the 2nd Respondent who is owing his client [the

Cooperative Society] the sum of N48m, being money had and received for a

consideration that has failed, which is the subject of Suit No.

FCT/HC/CV/1593/2016 pending before Court No. 13 and in respect of

which trial has commenced; and that the Respondents would continue to harass

him with further detention unless this Court intervenes speedily.

The 1st Respondent’s reaction [as deposed in the counter affidavit of John

Peter] is that the Applicant was implicated in an investigation conducted into a

petition dated 26/10/16 [Exhibit EFCC A] written by Emmanuel Odoh and

others against the erstwhile executive officers of the Co-operative Society;

that the investigation revealed that the Co-operative Society [with about 375

members] resolved to acquire land for its members during the tenure of

Michael Olanrewaju Ajayi and a project account was opened with Zenith Bank

to collect/receive moneys from subscribers, which included outsiders; that a

credit of N459,500,000 was generated and various plots of land were said

to have been purchased in various cities/locations, including 30 plots of land

measuring approximately 60 hectares in Idu Abuja for N250m, but records of

the said transactions could not be ascertained in all the bank accounts of the

Co-operative Society; that the purported land owners volunteered statements

denying ownership of any land within Idu Industrial Layout, Abuja or entering

into any transaction with the Co-operative Society; that nine plots of lands

belonging to the 2nd Respondent, Mr. Abawonse of Divine Grace Resources

Limited formed part of the 30 plots of land at Idu Industrial Layout, Abuja and

25 | P a g e

that the Applicant [and his company Barthbol Properties Limited] who acted as

agents of the Cooperative Society had obtained title documents from the 2nd

Respondent for the purposes of conducting a search at AGIS; that the

Applicant, upon being satisfied that the plots were genuine, advised the Co-

operative Society to proceed with the transaction whereupon N90m was

agreed upon as the purchase price as well as agency fee of N3m payable by

the Co-operative Society which advanced N83m to the Applicant for onward

transfer to the 2nd Respondent; that the Applicant, with intention to defraud,

paid only N48m to the 2nd Defendant and diverted N32m to himself; that the

Applicant conspired with the President of the Co-operative Society, Michael

Olanrewaju Ajayi to backdate and change the names on the original

conveyances of provisional approval to names of companies, caused a search

letter to be written to ascertain the genuineness of the plots, and capitalised

on the negative response from Abuja Municipal Area Council to hold on to the

balance of N32m given to him by the Co-operative Society to remit to the 2nd

Respondent; that the Applicant and the President of the Co-operative Society

further misrepresented to the Co-operative Society that they had found the

real owners of the nine plots and collected monies to purchase the nine plots

from the purported genuine owners which transferred their property to the

Co-operative Society; that enquiry conducted at the Corporate Affairs

Commission revealed that one of the purported genuine owners, Predamide

Properties Nigeria Limited is actually owned by the President of the Co-

operative Society, Michael Olarenwaju Ajayi whilst other purported genuine

owners made statements denying ownership of any property at Idu and/or

selling any land to the Co-operative Society; and that the Applicant honoured

the invitation extended to him, made statements and was released on bail

upon meeting the conditions of bail. The further reaction of the 1st Respondent

is that whilst investigation was still on-going, it received another petition dated

12/7/17 [Exhibit EFCC B] written by the 2nd Respondent and the Applicant

honoured the 1st Respondent’s invitation on 25/7/17, volunteered a statement

26 | P a g e

in respect of this second petition, and was granted bail same day but he was

unable to meet the bail terms and the 1st Respondent reviewed the terms which

were complied with and he was eventually released on 26/7/17; that

contrary to paragraph 38 of the supporting affidavit, the earlier bail granted

to the Applicant was never revoked, rather he was granted fresh bail in

respect of the second petition lodged by the 2nd Respondent; that he was not

detained from 25th July to 28th July as alleged but was promptly released on

26th July after he provided sureties to take him on bail; that the 1st

Respondent neither detained the Applicant for up to 24 hours nor made him to

sign an undertaking to pay N42m or any other sum to the 2nd Defendant as

alleged or at all; that the 1st Respondent is investigating allegations

bordering on forgery of land documents, obtaining money by false pretences

and fraudulent diversion of money collected from the Co-operative Society

but not the Applicant’s indebtedness to the 2nd Respondent; that Suit No.

FCT/HC/CV/1593/2016 pending at the FCT High Court has nothing to do

with forgery, obtaining money by false pretences and fraudulent diversion of

funds for which the Applicant is being investigated in furtherance of the 1st

Respondent’s statutory powers; that none of the Applicant’s fundamental rights

was or is being violated by the 1st Respondent in the course of investigating

the offences alleged in the petitions lodged by the Cooperative Society and

the 2nd Respondent; that investigation conducted thus far has disclosed a prima

facie case against Mr Michael Olanrewaju Ajayi, the Applicant and some

members of staff of AMAC and criminal charges will be preferred against

them as soon as investigations are concluded; and that the Applicant is merely

using this suit as a shield from the long arms of the law.

On his part, the 2nd Respondent deposed that he is the Managing Director of

Divine Grace Resources Limited which was the beneficial owner (by powers of

attorney) of the several hectares of land situate at Lugbe FCT covered by nine

(9) letters of Conveyance of Provisional Approval issued by AMAC; that the

27 | P a g e

Applicant [acting through his company, Barthbol Properties Limited as agent of

the Cooperative Society] entered into negotiations with him [as agent of Divine

Grace Resources Limited] for the purchase of the several hectares of land

situate at Lugbe, Abuja at N90m; that having conducted searches at the Land

Registry in AMAC and found the plots to be genuine, the Applicant

recommended same for purchase and collected N83m from the Cooperative

Society [as shown in Exhibit 1 dated 7/5/13 ] but remitted only N48.5m to

Divine Grace Resources Limited and has refused to pay over the balance of

N42.5m; that the Applicant colluded with some fraudulent persons at AMAC to

procure a fake letter stating that the plots of land sold by Divine Grace

Resources Limited were fake/non-existent, but the Cooperative Society later

discovered the Applicant to be a fraud and an impostor who effected change

of ownership of the plots of land at AMAC without the knowledge and consent

of the 2nd Respondent; that the Cooperative Society is currently developing

the very same plots of land which the Applicant claimed were non-existent;

that it was in a bid to cover up his fraudulent refusal to remit the balance of

N42.5m that the Applicant filed Suit No. FCT/HC/CV/1593/2016

[purportedly on behalf of the Cooperative Society] claiming a refund of

N48.5m from the 2nd Respondent and Divine Grace Resources Limited; that he

approached the current President of the Cooperative Society, Mr Emmanuel

Odoh to find out why the outstanding N42.5m has not been paid and they

have instead sued for a refund of payments already made, whereupon the

said Mr. Emmanuel Odoh, in a letter dated 12/6/17 [Exhibit 2], denied

instructing the Applicant [or his counsel, Oluwole Aladedoye Esq.] to commence

the said suit, which is a mere subterfuge to cover the criminal conversion of

N42.5m to shield himself from criminal prosecution for misappropriation,

criminal breach of trust and forgery of [land] documents; that he lodged a

petition with the EFCC because he is duty bound as a law abiding citizen to

report the commission of any crime to law enforcement agencies for

appropriate investigation [and possible prosecution]; that the pendency of a

28 | P a g e

civil suit does not preclude him from reporting the commission of a crime to the

EFCC which is invested with powers to receive petitions, investigate and

prosecute economic and financial crimes; that he did not instigate and/or

procure the EFCC to unlawfully arrest or detain the Applicant who, being a

former employee of FCDA, connived with his colleagues in the Land Registry

at AMAC to mastermind/perpetrate fraud against the 2nd Respondent and

Divine Grace Resources Limited and continues to hold on to the sum of N42.5m

till date. The further deposition of the 2nd Respondent is that the Applicant was

immediately admitted to bail upon being arrested by the 1st Respondent

sequel to his petition; that the bail allegedly revoked was in respect of a

separate petition lodged by the Cooperative Society against its former

President, Mr Michael Ajayi in which the Applicant was indicted in the course of

investigation; and that it is in the interest of justice to dismiss this application

with substantial costs.

As stated hereinbefore, the Applicant deposed and/or caused to be deposed

on his behalf a 25-paragraphed further affidavit (No. 1) dated 22/8/17, a

5-paragraphed further affidavit (No. 2) dated 22/8/17 and a 27-

paragraphed further affidavit dated 9/1/18 – essentially denying the

averments in the 1st and 2nd Respondent’s counter affidavits and insisting that

the 2nd Respondent was aware that it was the Cooperative Society that

stopped further payment when they discovered that the 2nd Respondent’s

claim of ownership of the land in Lugbe was false; that he neither effected

change of ownership of any plot of land nor did he mislead the Cooperative

Society on the status of the plots of land; that the failed land transaction is the

subject matter of Suit No. FCT/HC/CV/1593/2016 wherein the 2nd

Respondent subjoined a counterclaim dated 2/12/16 for N42m and interest

thereon, which was pending in court at the time 2nd Respondent lodged the

petition with the 1st Respondent in respect of the same sum of money; that he

[Applicant] was detained by the 1st Respondent at the instigation of the 2nd

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Respondent from Tuesday, 25/7/17 till Friday, 28/7/17 when he was

eventually released after Mr Dauda Bitrus [Acting Director-General, Nigerian

Copyright Commission] and Mr. Adeyele Sotinwa [Principal Planning Officer at

FCDA] had executed relevant documents [which are in the 1st Respondent’s

possession/custody] as sureties before he was signed out of the 1st

Respondent's underground cell on 28/7/17.

Now, the 1st Respondent contends on the one hand that the earlier bail

granted to the Applicant [in respect of the petition lodged by the Cooperative

Society against its erstwhile President, Mr Ajayi which implicated the

Applicant] was never revoked, but the Applicant was invited based on a

second petition dated 12/7/17 written by the 2nd Respondent in the ordinary

course of discharging its statutory duties; that upon honouring the 1st

Respondent’s invitation on 25/7/17, the Applicant made a statement

voluntarily and was granted bail the same day on terms which were

subsequently reduced when he was unable to meet them; that the Applicant

eventually met the reduced terms of bail and was released on 26/7/17; and

that the Applicant’s continued stay in detention owing to his inability to comply

with the terms of bail cannot be said to be unlawful, placing reliance on

AUGUSTINE EDA v COMMISSIONER OF POLICE supra. The Applicant maintains

on the other hand that he was arrested on Tuesday 25/7/17 when he

reported at the 1st Respondent’s office in compliance with the terms of the

earlier bail granted him and was detained at the 1st Respondent’s

underground cell until Friday 28/7/17 when he was released on bail after his

two sureties executed certain documents and he was signed out of the cell. It

occurs to me that in an action for unlawful arrest and detention in breach of a

person’s constitutional right, the onus is always on the detaining authority to

demonstrate that the arrest and detention was justifiable on reasonable

grounds. See SKYPOWER AIRWAYS LIMITED v OLIMA [2005] 18 NWLR (PT.

957) 224 at 232, EJEFOR v OKEKE [2000] 7 NWLR (PT. 665) 363;

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ONAGORUWA v I.G.P. [1991] 5 NWLR (PT. 193) 593 and F. B. N. LTD v

ATTORNEY-GENERAL, FEDERATION [2014] 12 NWLR (Pt. 1422) 470 at 510. It

has also been held that a suspect is detained immediately he or she is

arrested and extends to being taken into custody: the arrest restrains his/her

freedom of movement in any direction and freedom of choice of where to be

and subjects him to the custody of those arresting him. See EFCC v WOLFANG

REINL –per Agim, JCA [Appeal No. CA/A/392/2016, delivered on 26th January

2018, unreported].

In the case at hand, there can be no meaningful disputation that the Applicant

was arrested by the 1st Respondent on 25/7/17. As a matter of fact, the 1st

Respondent’s insistence that the terms of bail granted to the Applicant were

reduced owing to his inability to satisfy them constitutes a clear and

unequivocal admission that the Applicant was arrested and detained on

25/7/17: it goes without saying only a person who is under arrest can be

granted bail. Thus, the evidential burden lies on the 1st Respondent to show

when it released the Applicant. In this connection, whereas the 1st Respondent

did not produce any document to buttress its assertion that the Applicant was

released on 26/7/17 upon meeting the reduced terms of bail, one Adeyele

Sotinwa deposed in paragraphs 3 and 4 of the Applicant’s Further Affidavit

(No. 2) in Response to the 1st Respondent’s Counter Affidavit that he “stood as

one of his sureties on Friday 28th of July 2017 before he was released from the

1st Respondent’s detention” and “[t]hat on Friday 28th of July 2017, I was made

to sign some documents by the 1st Respondent’s officials before the Applicant

was released on bail”. It is common knowledge that where bail is granted by

the court or law enforcement agency on the condition that sureties should be

provided, the sureties do not simply walk away with the accused or suspect

without first executing a bond or other written undertaking to produce the

suspect when required. It is the bond or undertaking executed by the sureties

that will show when the suspect was actually released on bail. But since the 1st

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Respondent neither produced any documentary evidence showing that the

Applicant was released on 26/7/17 as alleged nor did it contradict the

depositions of Adeyele Sotinwa that he stood as surety for the Applicant by

signing documents to that effect before he was released from detention, I

cannot but find and hold that the Applicant was detained by the 1st

Respondent from Tuesday 25/7/17 to Friday 28/7/17: a period that

exceeds the reasonable time stipulated in s. 36(5) of the 1999 Constitution (as

amended). Aside from the doubtful propriety of prescribing rather stringent

bail conditions [i.e. provision of a serving senator and a permanent secretary

in any Federal Ministry with Landed Property in Abuja Municipal Area

supported by original certificate of occupancy as sureties, and deposit of

international passport, as contained in Exhibit O annexed to the supporting

affidavit] which necessitated a review, notwithstanding that the Applicant is

not unknown to the 1st Respondent [having earlier granted him bail in respect

of a related petition on terms he is not alleged to have violated], the heavy

reliance placed on AUGUSTINE EDA v COMMISSIONER OF POLICE, BENDEL

STATE supra is overly misconceived. That case did not decide that law

enforcing agencies could go to sleep once bail is offered to a criminal suspect.

No. Quite the contrary, the Court of Apeal (per Omoh-Eboh, JCA) held [at p.

227 of the Law Report] that even though the constitutional duty of the police

[or other law enforcement agency] in appropriate cases ends when they offer

bail to a person held in custody in connection with an allegation of crime since

their duty does not extend to providing the suspect with a surety to enable him

realise or effectuate the bail granted him, it is still their duty to bring any such

person in their custody before a court within one or two days as the case may

be in compliance with the relevant constitutional provisions irrespective of

whether or not they have granted bail to a person under arrest or detention. It

therefore seems to me clear as crystal that the 1st Respondent’s failure or

neglect to bring the Applicant before a court of law within a reasonable time

as stipulated in s. 36(5) of the 1999 Constitution constitutes an infraction of the

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Applicant's fundamental right to personal liberty. It hardly bears mention that

there are more than enough courts within 40 km radius of the 1st Respondent's

Office at Wuse II, Abuja where the Applicant was detained at all material

times.

The 1st Respondent (EFCC) is no doubt saddled inter alia with the statutory

responsibility of investigating financial crimes and the coordination of

economic and financial crimes laws and enforcement functions conferred on

any other person or authority. Allegations of financial crimes are usually

brought to the 1st Respondent’s attention through complaints or petitions

lodged by members of the public. The 1st Respondent cannot therefore be

faulted for inviting the Applicant on the basis of the 2nd Respondent’s petition

dated 12/7/17 notwithstanding that it revolves around the same subject

matter as the earlier petition against one Mr Michael Ajayi for which the

Applicant was invited earlier and released on bail. Law enforcement is no

doubt a very onerous responsibility, and law enforcing agencies deserve all

the cooperation they can get from individuals and other organs or agencies of

government [including the courts] within the ambit of the law. That is why the

courts do not ordinarily make orders restraining the exercise of their statutory

powers or shield suspected offenders from criminal prosecution. See

ATTORNEY-GENERAL OF ANAMBRA STATE v UBA [2005] 15 NWLR (PT. 947)

44 at 67 –per Bulkacuwa JCA (now PCA). That also underpins the substantial

margin of discretion conceded to law enforcement agencies as to the

appropriate methodology of enforcement, the freedom to formulate and

implement general policies and to decide what actions to take in particular

cases without incurring the risk of judicial intervention. See FAWEHINMI v

INSPECTOR-GENERAL OF POLICE [2002] 8 MJSC 1 [also reported in [2002] 7

NWLR (PT. 665) 481; [2002] 23 WRN 1]. However, in discharging its statutory

responsibilities, the 1st Respondent [and other law enforcing agencies] must

necessarily keep within the detention timelines prescribed by law as well as

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scrupulously observe the procedural safeguards required of them in order to

maintain the delicate balance between law enforcement on the one hand, and

according due regard and recognition to human rights on the other hand. See

ODOGU v ATTORNEY-GENERAL, FEDERATION [1996] 6 NWLR (PT. 456) 508

at 522 –per Adio, JSC. It cannot be over-emphasised that law enforcing

agencies must operate within the confines of the laws they are required to

enforce in order to make law enforcement more effective and effectual. That

is to say, law enforcers must observe and ensure the observance of “the law

behind the law’ by demonstrating a moral commitment to the very laws they

are required to enforce, for without such moral commitment to the law, ‘who

will guard the guard, and who will police the police’. See P. O. Affen, The

Principles of Fair Hearing and Powers of Arrest and Sanctions by Law Enforcing

Agencies in Nigeria, (2009) 2 NJPL 258. Any failure or neglect by them to

observe such timelines and safeguards may constitute an infraction of rights

guaranteed and protected by the Constitution which is the supreme law of the

land: the grundnorm from which other laws derive their validity. See PDP v

INEC [2001] WRN 1 at 31 and ATTORNEY-GENERAL, ABIA v ATTORNEY-

GENERAL, FEDERATION [2002] 17 WRN 1 at 180. That is the situation the 1st

Respondent has found itself in the instant case.

The Applicant equally alleged that notwithstanding that the 1st Respondent is

not a debt recovery agency, the Investigating Officer, Mr. John Peter insisted

whilst he was still in detention as well as when he reported at the 1st

Respondent's office on Monday 31/7/17 after his release as directed that he

should come up with a payment plan for the N42m allegedly owed the 2nd

Respondent in his next visit which was scheduled on Monday 7/8/17. But the

1st Respondent denied making any such demand on the Applicant. There can

be no gainsaying that the EFCC [1st Respondent], the police and other law

enforcement agencies are not debt recovery agencies. The Court of Appeal

(per Salami JCA as he then was) underscored this point in McLAREN v

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JENNINGS [2003] 3 NWLR (PT. 808) 470 at 484 that there is nothing in section

4 of the Police Act “empowering Police to enforce contract or collect common

debts." In AFRIBANK PLC v ONYIMA [2004] 2 NWLR (PT. 858) 654 at 680

where a wife was arrested and detained in lieu of her husband at the

instigation of a bank manager for a debt owed by the husband, the Court of

Appeal (per Nzeako, JCA) held that the police force, which is a respectable

institution entrusted with the security of our nation and people, is not a "debt

collector" and should never be involved in such nefarious services. As far back

1973, the Supreme Court (per Elias, CJN) admonished law enforcers in the

case of SALAWU AJAO v KARIMU ASHIRU & ORS [1973] NSCC 525 at 533 to

“be wary of being inveigled into a situation in which they find themselves

becoming partisan agents of wrongdoers in the pursuit of private vendetta” and

that “[t]his kind of a show of power which is becoming too frequent in our society

today must be discouraged by all those who set any store by civilised values”.

See also IGWE v EZEANOCHIE [2010] 7 NWLR (PT. 1192) 61 at 93, NKPA v

NKUME [2001] 6 NWLR (PT. 710) 543 at 561, AGBAI v OKOGBUE [1991] 7

NWLR (PT. 204) 391, JIM-JAJA v COMMISSIONER OF POLICE, RIVERS STATE

[2013] ALL FWLR (PT. 665) 203 at 215, FBN LTD v ATTORNEY-GENERAL,

FEDERATION [2014]12 NWLR (PT. 1422) 470 at 516 as well as EFCC v ODIGIE

[2013] 17 NWLR (PT. 1384) 612 at 633 wherein the Court of Appeal [per

Yakubu, JCA] denounced the overzealousness of EFCC officials who veer into

extraneous matters outside of its main brief of fighting corruption, which calls

to question the integrity and/or credibility of the EFCC. In the instant case

however, I find no evidence beyond the mere ipse dixit of the Applicant that

the 1st Respondent’s investigating officer, Peter John pressurised him to come

up with a payment plan to defray monies allegedly owed to the 2nd

Respondent. I will therefore accord the 1st Respondent the benefit of doubt in

this regard.

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As it relates to the 2nd Respondent, the Applicant’s contention is that he acted

mala fide in presenting the petition dated 12/7/17 to the 1st Respondent

during the pendency of Suit No. FCT/HC/CV/1593/2016 in which he had

already filed a counterclaim dated 2/12/16 claiming the sum of N42m and

interest thereon being unpaid moneys said to have arisen from the self-same

botched land transaction between him and the Cooperative Society. The 2nd

Respondent however maintains that being a law abiding citizen, he is duty

bound to report the commission of crime to law enforcement agencies for

appropriate action; and that the pendency of Suit No.

FCT/HC/CV/1593/2016 [which was initiated as a mere subterfuge to cover

the criminal conversion of N42.5m and shield the Applicant from investigation

and prosecution for misappropriation, criminal breach of trust and forgery of

land documents] does not preclude him from reporting the commission of crime

to the EFCC which is invested with powers to receive petitions, investigate and

prosecute economic and financial crimes, citing ATAKPA v EBETOR [2015] 3

NWLR (PT. 1447) 549at 572 –per Otisi, JCA and SANNI DODODO v EFCC

[2013] 1 NWLR (PT. 136) 468 at 510 –per Nwodo JCA.

There is no gainsaying that it is the civic duty of citizens of this country to

report cases of commission of crime to the police or other law enforcement

agency for investigation, and what happens thereafter is entirely the

responsibility of the law enforcement agency. Thus, citizens cannot ordinarily

be held liable for the discharge of their civic duty as aforesaid unless it is

shown that it was done mala fide. See ADEFUNMILAYO v ODUNTAN (1958)

WNLR 31, GBAJOR v OGUNBUREGUI (1961), EZEADUKWA v MADUKA

[1997] 8 NWLR (PT. 518) 635 at 666, AKPAN v SAM & ORS (2014) LPELR-

22516 (CA) –per Nweze JCA (now JSC) and FAJEMIROKUN v CB NIGERIA

LIMITED [2009] 5 NWLR (PT. 1135) 588 at 600 –per Ogebe, JSC. What this

implies is that where it is shown that a citizen makes a report to the police [or

other law enforcing agency] mala fide or unreasonably, that citizen may be

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held culpable and it would not lie in his mouth to assert that he merely

discharged his civic duty.

In the instant case, whilst I am not unmindful of the public interest in

encouraging citizens to assist in law enforcement by bringing offenders to

justice, it does not seem to me that the 2nd Respondent acted bona fide in

presenting the petition dated 12/7/17 which led to the detention of the

Applicant by the 1st Respondent from Tuesday 25/7/17 to Friday 28/7/17.

The peculiar facts and circumstances that have come to light in this case are

that the Applicant and the Cooperative Society took out Suit No.

FCT/HC/CV/1593/2016 [as plaintiffs] against the 2nd Respondent and

Divine Grace Resources Limited [as defendants] by a writ of summons issued out

of the Registry of the FCT High Court. An [amended] statement of claim was

filed on 24/10/16 pursuant to the Orders of my learned brother, F. A. Ojo, J.

dated 6/10/16. It cannot escape notice that this suit predates the initial

petition dated 26/10/16 lodged with EFCC by the new Executive Committee

of the Cooperative Society against the erstwhile President, Mr Ajayi. The 2nd

Respondent and Divine Grace Resources Ltd [as Defendants in the said suit]

filed a Joint Statement of Defence and Counterclaim dated 2/12/16 seeking

the following reliefs:

"i. AN ORDER of this Honourable Court directing the Defendants to the

Counterclaim to pay immediately/forthwith the balance sum of

N42,000,000.00 (Forty Two Million Naira) to the Counterclaimant

being the balance sum owed by the Defendants to the counterclaim to

the Counterclaimant from the schedule of payment agreement entered

into by both parties.

ii. AN ORDER of this Honourable Court that the Defendants to the

Counterclaim should pay the interest on the said sum of

N42,000,000.00) (Forty Two Million Naira) at the interest at the

prevailing rate of monetary policy interest rate per annum fixed by the

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Central Bank of Nigeria from October 2012 till date of the judgment in

this suit.

iii. 10% interest on judgment sum from the date of judgment until the

judgment sum is fully paid and/or satisfied.”

Crucially, it is averred in paragraph 24 of the Joint Statement of Defence

and Counterclaim dated 2/12/16 thus:

“24. In specific response to paragraph 16 of the Plaintiff’s claim, the

Defendants state that the 1st Plaintiff conceived, colluded and conspired

with some members of the 2nd Plaintiff’s executive committee and some

staff of Abuja Municipal Area Council (AMAC) to perpetuate (sic) fraud

against the Defendants in the following manner:

PARTICULARS OF FRAUD

i. Sharing of the sum of N42,000,000.00 (Forty Two Million Naira)

meant for the balance payment sum for the main plots of land

purchased from the 2nd Defendant by the Plaintiffs and the Executive

Committee of the 2nd Plaintiff.

ii. The 1st Plaintiff conceiving, conspiring and colluding with some

colleagues of his at the Abuja Municipal Area Council (AMAC) and

the Executive Committee of the 2nd Plaintiff by procuring a fake

letter dated 28th January 2013 purchasing (sic) that the plots of

land under the sale transaction did not exist.

iii. The Plaintiffs have carried out a change of ownership on the same

property alleged not to exist and successfully too.

iv. The change of ownership was in respect of the same plot numbers

that the Defendants sold to the Plaintiffs and still retain the same

numbers.

v. The Plaintiffs alleged that they obtained title in respect of the same

plots of land on 16th August 2006.

vi. If the Plaintiffs had title to the same plots of land in 2006, why were

they purchasing the same land from the Defendants in 2012?

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vii. This subsequent denial of the genuineness of the plots of land is a

ploy to defraud the Defendants of the outstanding balance of

N42,000,000.00 (Forty Two Million Naira).

viii. This 2nd Plaintiff is currently in possession of those plots of land and

has carried out development and improvement on the land by

building a security house thereon.”

Exhibit R annexed to the Applicant’s Further Affidavit (No. 1) in Response to the

1st Respondents Counter Affidavit is a letter dated 3/7/17 by Messrs Grays &

Gold LLP, Solicitors to the Defendants in the said suit [who are also the 2nd

Respondent’s counsel herein] requesting for adjournment against 4/7/17

when the matter was billed to come up for cross examination and continuation

of hearing, and suggesting “20th and 21st of September 2017 and the 2nd

and 5th of October 2017” as possible return dates, subject to the court’s

convenience. It was during this interregnum that the 2nd Respondent herein

[who is also the 1st Defendant/Counterclaimant in the pending suit] lodged the

petition dated 12/7/17 [Exhibit EFCC B] with the 1st Respondent against the

Applicant, alleging that:

“5. Upon payment of 47,500,000.00 (Forty Seven Million, Five Hundred

Thousand Naira Only, Which was paid in various instalments through

the said Mr. Barthlomew Ononmhen Asuelimen.(sic) Mr. Barthlomew

Ononmhen Asuelimen colluded with the other members of the Abuja

Geographical(sic) Information System and the Abuja Municipal Area

Council to effect change of title without recourse to us and or payment

of the outstanding balance which was meant to be paid to my

company”.

6. All entreaties from us to Mr. Barthlomew Ononmhen Asuelimen that the

outstanding balance of N42,500,000.00 (Forty Two Million Five

Hundred Thousand Naira) only due and payable to us be paid have

been rebuffed. We are aware that Mr. Bartholomew Ononmhen

Asuelimen has obtained the said sum of N42,500,000.00 (Forty Two

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Million Five Hundred Thousand Naira) only from the Cooperative

Society and hold it to himself and has refused to pay the said sum over

to us as balance for the transaction. Find attached, the copy of the

letter from the Cooperative Society stating that the balance was paid

to the said Mr Bartholomew Ononmhen Asuelimen.

7. Mr. Bartholomew Ononmhen Asuelimen is hiding under the pretext

that the lands were not genuine, yet they have refused to hand over the

original title papers to us. In fact, they have colluded and obtained a

change of ownership in respect of the said lands.

8. We are by this letter requesting that you use your good office to

investigate the matter with a view of doing justice and forestalling any

act capable of breaching peace and bringing the culprit to justice.”

The learned counsel for the 2nd Respondent, Victor Abasiakan-Ekim, Esq. did

not cite any authority in support of his contention that the 2nd Respondent is

duty bound to report the commission of crime to the 1st Respondent for

investigation and possible prosecution “irrespective of the existence of a civil

suit”. But it cannot escape notice that the subject matter of the 2nd

Respondent’s petition dated 12/7/17, and in particular the criminal

allegations levelled against the Applicant therein are essentially the same as

the “particulars of fraud” set out in paragraph 24 of the Joint Statement of

Defence and Counterclaim dated 2/12/16 [as reproduced above]. Yet the

2nd Respondent proceeded to lodge a petition without disclosing to the 1st

Respondent [EFCC] that he had already submitted the self-same criminal

allegations to the court for adjudication by way of counterclaim, which makes

him a plaintiff in his own right. See UNION BANK PLC v ISHOLA [2001] FWLR

(PT. 81) 1868 at 1892. The question that arises therefore is whether the 2nd

Respondent acted bona fide or reasonably in the discharge of his civic duty of

reporting the commission of crime as a law abiding citizen when he lodged the

petition dated 12/7/17 against the Applicant with the 1st Respondent in the

above circumstance? I do not think so.

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The deliberate non-disclosure of the pendency of the civil suit between him

and the Applicant to the 1st Respondent in the petition dated 12/7/17, and

more crucially, the fact that the 2nd Respondent generated a petition on the

very same criminal allegations contained in his counterclaim [as demonstrated

hereinbefore] points compellingly to obvious want of bona fides or good faith.

Mala fide, being the converse of bona fide, projects a sinister motive designed

to mislead or deceive another. It runs deeper than and goes beyond bad

judgment or mere negligence. It is the conscious doing of wrong arising from

dishonest purpose or moral obliquity. Mala fide is not a mistake or error but a

deliberate wrong emanating from ill will. See AKANIWO v NSIRIM [2008] 1

NWLR (PT. 1093) 439 at 475 –per Niki Tobi, JSC. A situation such as the

present where a party to an ongoing litigation who had subjoined a

counterclaim containing criminal allegations would simultaneously present the

self-same criminal allegations in the form of a petition to the EFCC or other

law enforcement agency for investigation whilst the litigation is still pending is

undoubtedly a sinister attempt to undermine the court system and/or the due

administration of justice by deploying the law enforcement apparatus to

achieve through the backdoor the very same object for which he subjoined a

counterclaim in the pending suit. Whilst one can envisage a situation in which

a criminal complaint may validly arise from a purely civil matter where, for

instance a civil case over title to land is pending in court and one of the

parties is alleged to have engaged in acts that constitute criminal trespass or

breach of peace [which is distinct from the issue at stake in the pending suit], I

am not aware that the 2nd Respondent is at liberty to plead criminal

allegations by way of counterclaim in a pending civil suit and simultaneously

lodge a petition founded on the same criminal allegations with the police or

other law enforcement agency. That is new learning for me and it is with all

the vehemence at my disposal that I must refuse to learn it!

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I am equally not enthused in the least by the contention that “the filing of the

civil suit by the Applicant in Suit No. FCT/HC/CV/1593/2016 was a

subterfuge calculated to hoodwink the court and shield and protect the Applicant

from any form of investigation and/or prosecution” and that “the Applicant had

no locus standi and or authority to bring the action” which has been disclaimed

by the Cooperative Society and he is merely using it “as a shield and not for

the proper pursuit of any legal right”. As stated hereinbefore, Suit No.

FCT/HC/CV/1593/2016 predates the initial petition dated 26/10/16

lodged by the new Executive Committee of the Cooperative Society against

the erstwhile President, Mr Michael Ajayi as well as the subsequent one lodged

by the 2nd Respondent on 12/7/17 on the basis of which the Applicant was

[re]arrested and detained by the 1st Respondent. How then could the suit be

said to have been instituted with a view to avoiding investigation and possible

prosecution on the basis of petitions that had not been lodged at the time it

was commenced? That assertion would have been plausible if, and only if, the

Applicant had rushed to court to initiate a civil suit after the 2nd Respondent

had lodged the petition with the 1st Respondent, which is not the case. What is

more, the mere fact that the 2nd Respondent believes that “the Applicant had

no locus standi and or authority to bring the action” is certainly not a

justification for him to undermine the pending proceedings by lodging a

criminal petition with the 1st Respondent on the same criminal allegations

underpinning his own counterclaim. Pray, even if it is assumed arguendo that

the Applicant [qua plaintiff] had no authority to bring the civil action, does

that mean that the 2nd Respondent did not also have the requisite authority to

maintain the counterclaim which was equally pending? The answer is blowing

in the wind. It certainly does not add up for me. The least the 2nd Respondent

could have done was to take appropriate steps to ensure that the civil suit is

either withdrawn or struck out in limine, rather than proceed to lodge a

petition with the 1st Respondent to undermine the pending proceedings in the

manner he did.

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The reliance placed by the 2nd Respondent on ATAKPA v EBETOR supra, SANNI

DODODO v EFCC supra and P.G.S.S., IKACHI v IGBUDU [2005] 12 NWLR (PT.

940) 543 is overly misconceived. None of these cases dealt with a scenario in

which a defendant in a pending civil suit who had raised criminal allegations

by way of counterclaim proceeded to lodge a petition calling on the police or

other law enforcement agency to investigate the very same criminal

allegations during the pendency of that suit, as in the instant case. As Lord

Steyn once said, “In law, context is everything”. See REGINA v SECRETARY OF

STATE FOR HOME DEPT., EX PARTE DALY [2001] 3 ALL ER 433, [2001] 1 AC

532. It cannot be overemphasised that no one case is exactly like another;

and justice and fairness demand that the ratio decidendi of the earlier case

‘should not be pulled by the hair of the head and made willy-nilly to apply to

cases where the surrounding circumstances are different’. See OKAFOR v

NNAIFE [1987] 2 NSCC 1194 at 1198 –per Oputa, JSC and GREEN v GREEN

[1987] 3 NWLR (PT. 61) 480 at 501. The decisions relied upon must be

inextricably and intimately related to the factual matrix that gave rise to it so

as not to take the ratio outside the parameters of the facts of the decision and

the principles decided therein. See ADEGOKE MOTORS v ADESANYA [1989]

3 NWLR (PT. 109) 250 at 265 - 275 and MULIMA v GONIRAN [2004] All

FWLR (PT. 228) 751 at 785.

I take the considered view that the 2nd Respondent’s conduct in the case at

hand constitutes a flagrant abuse or misuse of the legal machinery for

reporting crime in a manner not markedly dissimilar from abuse of judicial

process, the categories of which are not closed. see NV. SCHEEP v MV. S.

ARAZ [2000] 15 NWLR (PT. 691) 622 and SARAKI v KOTOYE [1992] 9 NWLR

(PT. 264) 156. I cannot but find and hold that the 2nd Respondent did not

present the petition dated 12/7/17 to the 1st Respondent in the bona fide

discharge of any civic duty to report the commission of crime; rather, he

deliberately set the law in motion to trample upon the Applicant’s fundamental

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right by deploying the legal machinery to vex, harass and oppress the

Applicant, knowing full well that hearing had already commenced in the

pending civil suit [which was adjourned at his instance for cross examination

and further hearing] and he cannot escape liability by claiming to have

merely discharged a civic duty.

The Supreme Court grappled with an analogous scenario in a recent judgment

delivered on 13th April 2018 in the case of EFCC v DIAMOND BANK PLC &

ORS (2018) LPELR-44217(SC). The 2nd and 3rd respondents in that case had

observed certain discrepancies in the management of their account and

demanded refund of moneys allegedly wrongfully overcharged by the 1st

Respondent bank. The bank disputed their claim and by mutually agreement,

the matter was referred to the Chartered Institute of Bankers’ Committee on

Ethics and Professionalism for arbitration. But whist the arbitration was

pending before the Committee, the 1st respondent bank lodged a report with

the Financial Malpractices Investigation Unit of the Nigerian Police and the 3rd

respondent was arrested and detained, and made to pay N2m to the 1st

respondent before he was eventually released on bail and directed to

appear before the police on a subsequent date. In the interim, the 2nd and 3rd

respondents sought and obtained the leave of the Federal High Court to

enforce their fundamental rights, but the 1st respondent again proceeded to

lodge a petition with the appellant [EFCC] which invited the 3rd respondent [as

Managing Director of the 2nd respondent] to appear before its officer in

charge of Bank Fraud on the ground that “the Commission is investigating a

case of Bank Fraud/Diversion of depositors fund reported by Diamond Bank Plc

against you and your company”, whereupon the 2nd and 3rd respondents

initiated a fresh action for the enforcement of fundamental right against the

appellant and the 1st respondent bank. The Supreme Court entertained

reluctance whatsoever in affirming the judgment of the Court of Appeal which

overruled the decision of the trial court. Delivering the lead judgment, his

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Lordship S. D. Bage, JSC held that “the subsequent actions of reporting the

matter to the police and to the Appellant [EFCC] were nothing but abuse of

process of law” which equally “constituted breach of fundamental right”

because “[t]here is no way the 1st Respondent could have reasonably suspected

the 2nd & 3rd Respondents to have committed any offence when the investigation,

which the 1st Respondent submitted itself to the Bankers' Committee, has not been

concluded”.

As it was in EFCC v DIAMOND BANK PLC & ORS supra, so it is in the present

case. There is no way the 2nd Respondent herein can claim to have acted r

bona fide or reasonably in presenting the petition dated 12/7/17 to the EFCC

[1st Respondent] when the court is yet to determine the very same criminal

allegations levelled against the Applicant in his counterclaim in the pending

suit. This is therefore not a case in which it can be said that the court is unduly

interfering with the exercise of the statutory powers of the EFCC or shielding

the Applicant from criminal prosecution, which was frowned upon in the case of

ATTORNEY-GENERAL OF ANAMBRA STATE v UBA supra cited by the 1st

Respondent. Quite the contrary, this is a case in which the court is

simultaneously invested with the power and saddled with the bounden duty to

safeguard the administration of justice and the sustenance of a value system

founded on the Rule of Law by preventing law enforcing agencies from being

inveigled into undertaking criminal investigations and/or prosecutions to

undermine pending court proceedings under the thin guise of discharging

statutory duties. The incalculable damage the administration of justice will

suffer if litigants were at liberty to deliberately disregard and trample upon

pending court proceedings by generating petitions on criminal allegations

already submitted to the court for adjudication can only be imagined. That

would amount to threading the road towards anarchy. See CANADIAN METAL

CO. LTD v CANADIAN BROADCASTING CORPORATION (No. 2) [1975] 48

45 | P a g e

D.L.R. (3d) 641 at 669 –per O’Leary, J. It is an ill wind that blows no good. It

must not be!

The Applicant claims N50m as damages for his unlawful detention from

Tuesday 25/7/17 to Friday 28/7/17. He equally claims N50m as

exemplary and/or aggravated damages for his unlawful detention. I have

already held that the detention of the Applicant by the 1st Respondent at its

underground cell from Tuesday 25/7/17 to Friday 28/7/17 [which is in

excess of the reasonable time stipulated in s. 36(5) of the 1999 Constitution

(as amended)] on the basis of the 2nd Respondent’s petition without bringing

him before a court of law is unlawful and unconstitutional and constitutes a

violation of his fundamental right to personal liberty. The Applicant ought

therefore to be adjudged entitled to relief, for where there is a wrong, there

is a remedy: ubi jus ibi remedium. See ODOGU v A-G, FEDERATION [1996] 6

NWLR (PT. 456) 508. In JIM-JAJA v COMMISSIONER OF POLICE, RIVERS

STATE [2013] 6 NWLR (PT. 1350) 225 at 254 (SC), the Supreme Court held

that a person who establishes unlawful arrest and detention is automatically

entitled to compensation by operation of law without any necessity to

specifically seek compensation before it can be awarded by the court.

Accordingly, it will be and is hereby declared that the detention of the

Applicant by the 1st Respondent at its underground cell situate at Idiagbon

House, No. 5 Formela Street, Wuse II, Abuja from Tuesday 25/7/17 to Friday

28/7/17 in connection with allegations that are the subject matter of Suit No.

FCT/HC/CV/1593/2016: Bartholomew Ononmhen Asuelimen & Anor v. Mr

Kola Abawonse & Anor pending before the Honourable Justice F. A. Ojo,

sitting at Court No. 12, Maitama, Abuja at the instance/instigation of the 2nd

Respondent constitutes a violation of the Applicant’s fundamental right to

personal liberty as guaranteed under the Constitution of the Federal Republic

of Nigeria, 1999 (as amended).

46 | P a g e

The Respondents, jointly and severally, whether acting by themselves or

through their officers, servants, agents, privies or otherwise howsoever will be

and are hereby restrained from harassing, intimidating, further arresting

and/or detaining or in any way interfering with the Applicant's fundamental

rights on account of or in connection with the allegations contained in the 2nd

Respondent’s petition dated 12/7/17 which are also the subject matter of Suit

No. FCT/HC/CV/1593/2016: Bartholomew Ononmhen Asuelimen & Anor v.

Mr Kola Abawonse & Anor pending before the Honourable Justice F. A. Ojo,

sitting at Court No. 12, Maitama, Abuja SAVE AND EXCEPT on the orders of a

Superior Court of Record.

The Respondents, jointly and severally, shall forthwith pay to the Applicant the

sum of N5,000,000.00 (Five Million Naira) only as compensation for the

violation of his fundamental right to personal liberty.

I assess the costs of this application at N100,000.00 (One Hundred Thousand

Naira) only in favour of the Applicant against the Respondents jointly and

severally.

______________________________ PETER O. AFFEN Honourable Judge

Counsel:

Oluwoye Aladedoye, Esq. (with him: B. C. Chukwu, Esq.) for the Applicant.

S. A. Ugwuegbulam, Esq. for the 1st Respondent.

Victor Abasiakan-Ekim, Esq. (with him: Nnaemeka John-Paul Okafor, Esq. and Idongesit Ekpenyong, Esq.) for the 2nd Respondent.