By: Hameed Ajibola Jimoh Esq.
Fundamental rights suits, though taken by the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as the FREPR- as very important and sacrilegious, the reality before some of our Nigerian courts call for one to sometimes doubt this imposition about fundamental rights suits. At some occasions, the courts award very little sum of money as damages or compensation especially against government’s agencies, which raises a presumption that the courts (as the judiciary) still assume the courts to be part of the government in power! Sometimes, therefore, the courts award such low damages (as seemingly unenforceable) as N50,000.00, N100,000.00, etc, and that is where the court would award damages or compensation.
While in another frustrating circumstance, the court would refuse to hold the government’s agency liable despite the overwhelming evidence against such agency placed before the court by the applicant! Having regard to the depreciation of the naira currency, I do not expect any court to award any damages or compensation lesser than a million naira, especially against government’s agencies and any tyrant! I myself I have such experiences in the course of my defence and representation to some of my clients. In fact, the Court of Appeal of Nigeria had set aside a judgment of the Federal High Court, Abuja, which had refused to hold the concerned Federal government’s agency liable for unlawfully detaining my client, among other cases.
That is why in my humble submission, if some of the trial courts would misplace the importance of the fundamental rights suits, with due respect to them (though not all of them), then, an activist representing the applicant should try to seek enforcement of the rights of their clients up to the Supreme Court of Nigeria. Also, there are no many judicial precedents in fundamental rights matters especially at the Supreme Court of Nigeria. So, appealing to the Supreme Court, even if it means sponsoring such cases, would add up to the library of judicial precedents of the apex court, hence, this paper.
First and foremost, the right to personal liberty of every person (Nigerian) is conferred by the Constitution of the Federal Republic of Nigeria, 1999 in Section 35 (1) (a) to (f), (4), (5) and (6) of the Constitution. I humbly refer to the case of Onyirioha v I.G.P. (2009) 3 NWLR (Pt. 1128) 342 where the Court inter alia held that ‘By virtue of the provision of section 35 (1) and 36 (5) (6) of the 1999 Constitution, every citizen of Nigeria is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the Constitution or Statute. A Nigerian citizen is entitled to his God’s given natural right free from incarceration save in accordance with all the fundamental laws of the land, that is, Constitution of the Federal Republic of Nigeria and other relevant legislations which are not inconsistent with the former.’ ‘…no person shall be deprived of such liberty save for the purpose of bringing him before a Court in execution with former’. Also, the Supreme Court of Nigeria in the case of Odogwu v A.G. Federation (1999) 6 NWLR (PT. 455) 508, at page 522, paras. E-F, defined fundamental human rights thus ‘A fundamental human right is a right guaranteed in the Nigerian constitution and it is a right which every person is entitled to, when he is not subject to the disabilities enumerated in the constitution to be enjoyed by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the constitution’. The law is also that where a person is arrested and detained for more than the constitutionally prescribed period without an order of court sought and obtained, the implication is that the applicant’s right to personal liberty has been invaded and curtailed and it does not matter the length of the detention and it does not matter whether or not there is a reasonable basis for his arrest in the first instance or place. Once a person has been arrested and detained, the constitutional provisions must be obeyed and where the constitutional provisions are not obeyed in connection with the detention, whether by the police or any other security agent (such as the Respondents (jointly and or severally)), it means that the applicant has been unlawfully deprived of his liberty, signifying that his fundamental right to personal liberty has been violated. I humbly refer to the case of Isenalumhe v Amadi (2001) 1 CHR p. 459. Section 34 (4) of the Constitution of the Federal Republic of Nigeria, 1999 is also referred to in support of my argument which provides thus ‘Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time…’ and what amounts to a reasonable time has been defined by subsection (5) of the section to mean (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and (b) in any other case, a period of two days or such longer period as the circumstance may be considered by the court to be reasonable’.
Furthermore, in the case of FIRST BANK OF NIGERIA PLC. & ORS. v. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2013) LPELR-20152(CA), the Court of Appeal of Nigeria held as follows: “It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt.193] 593.” Per AKOMOLAFE-WILSON, J.C.A (P. 59, paras. C-F).’
The Court of Appeal of Nigeria further held in the First Bank’s case (supra) thus ‘The importance of protection of the constitutionally guaranteed rights of individuals in this country cannot be over-emphasized. This warranted the promulgation of special rules in the Fundamental Rights (Enforcement Procedure) Rules 1979 for recourse to court to protect such rights when there is perceived violation or the imminence of violation of any such rights entrenched in Section 42 of the Constitution of Federal Republic of Nigeria 1999 as amended.
It is indisputable that the EFCC Act, like the EFCC, the Police, has the right to investigate, arrest and detain any person who is suspected of the commission of any offence under the EFCC Act. Any proved detention however must be justified in law; and must be exercised in good faith in the light of the important right of each individual. This is what is at stake in this case. The power of EFCC is therefore, subject to judicial control. In my humble view the court must not shy away from such sacred responsibility.
In F.R.N v. IFEGWU (supra) Uwaifo JSC at page 1844 held thus:
“If I may say so, as far as this Court is concerned whenever an aspect of personal liberty is properly raised in any proceedings the focus on the constitutional question is intense and intensive, and a solution which projects the essence of the constitutional guarantee is preferred.”. Per AKOMOLAFE-WILSON, J.C.A (Pp. 72-73, paras. C-A).’. Furthermore, in the case of Okonkwo v Ogbogu (1996) 5 NWLR (pt. 449) 422, at p. 435, paras. F-G, the Supreme Court of Nigeria held that any trespass to the person of another, however slight gives a right of action to recover at any rate nominal damages. Even where there is no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages is given to vindicate the Plaintiff’s right even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damage. I also humbly refer to the case of A.G. LAGOS STATE v. KEITA (2016) LPELR-40163(CA) where the Honourable Court held thus “It is trite that by virtue of Section 35 (6) of the 1999 Constitution, any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person responsible for the incarceration; and by dint of the said section, a person who has established that he was unlawfully arrested and/or detained need not specifically ask for compensation before he is awarded one. The granting of compensation is automatic in such circumstances vide Jim-Jaja v. C.O.P. and Ors (2013) 6 NWLR (pt. 1350) 255.” Per IKYEGH, J.C.A. (P. 11, Paras. B-E).’. I also refer to the case of IGP & ANOR v. AGBINONE & ORS (2019) (supra). I further humbly refer to the case of F.B.N. PLC. V A.G. Fed. (2018) 7 NWLR (pt. 1617) 121, while relying on the cases of: Odogwu v A.G. Fed. (1996)6 NWLR (pt. 456); Onwu v Nka (1996) 7 NWLR (pt. 458) 1; Elochin Ltd. V Mbadiwe (1986)1 NWLR (pt. 14) 47; ACB V Apugo (1995) 6 NWLR (pt. 339) 65 ; UBN V Odusote Bookstores (1995) NWLR (pt. 421) 558; on the rules governing award of damages and exemplary damages as follows:
(a) The compensation should reflect not only the pecuniary loss of the victim but also the abhorrence of society and the law for gross violation of human rights;
(b) Trivialization of a serious matter – personal liberty, by an inordinately low award should be avoided;
(c) Personal liberty of the individual is a commodity of inherently high value’
(d) Financial loss, which flowed directly from appellant’s prolonged incarceration, is a serious factor to be considered;
(e) Deprivation of liberty has consequential personal/sentimental impact;
(f) Judicial notice of the value of the Naira vis-à-vis other currencies should be taken by our courts and is a relevant factor to be considered. Our courts in the country and in particular with the prevailing decline in the purchasing power of the Naira over the past year;
(g) The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm (exemplary damages);
(h) An award of damages can only be upset or interfered with by an appellate court if either the trial court acted or proceeded upon wrong principles of law or the amount awarded by the trial court is manifestly and extremely high or low;
(i) An appellate court will interfere where the trial court acted under a mistake of law or acted in disregard of principles or acted under a misapprehension of facts or took into account irrelevant matters or where injustice would result if the appeal court does not interfere;
(j) An appellate court will reverse the amount of damages where the amount awarded was too extremely high or so very small as to make it, in the judgment of the court, an entirely erroneous estimate of the damages to which the plaintiff is entitled or where the circumstances calling for such interference are shown to the appellate court’. Furthermore, the Supreme Court of Nigeria has held in the case of Shugaba v AbdulRahman Daman (1982) 3 NCLR p. 928 where it enjoined courts hearing of matters relating to a breach of fundamental rights to award punitive compensation to act as deterrent to other agencies of government whose stock in trade is constant abuse of the Constitution. I also humbly refer to the case of Duruaku v Nwoke (2015) 15 NWLR (pt. 1483) 417 CA at pages 482-483, paras, E-C). and the case of F.B.N. V A.G. Federation (supra).
Finally, having relied on the above provisions of laws and judicial precedents, it is my humble submission that a court of law is bound to award compensation in favour of an applicant where there is any breach of his fundamental rights rather than striking out and or dismissing such suit because the allegation is just for few days (even where there are overwhelming evidence substantiating the applicant’s allegation of such violation of his right one way or the other) and that such a court of law should not award any compensation lesser than a million naira in any breach of fundamental right having regard to the depreciation of the naira currency. Therefore, it is in my humble advice that human rights lawyers/activists and the applicant should try to always enforce such rights and or compensation up to the Supreme Court of Nigeria in the interest of justice.