By Ebun-Olu Adegboruwa, SAN
The Duty of Court in Respect of Separation of Powers and Protection of Rights of Citizen:
The courts must never interfere in the exercise of executive powers, particularly in the mandate of the police to investigate crimes. However, the courts must endeavour always to balance the principles of separation of powers and the protection of the rights of the citizen against oppressive executive actions.
Per OGUNWUMIJU, J.S.C. at pages 92-93, paras. F-D:
“In the circumstances, I have to agree with the opinion of the court below as stated on pages 326 – 327 of the record of appeal that:
‘Now to the manner of complaints of these breaches, the appellant in paragraphs 9, 10, 11, 13, 14, 15, 16, 17, 19 & 24 of the affidavit at page 21 – 23 of the records are chronological narration of events and acts of harassment, intimidation, threats, embarrassed, harassment in church and actual arrest detention beyond 24 hours (4 days) without reason at Asaba and Benin City, twice with pressure to produce bank statements and BVN between 15th June and November 2021. It is important to note that there were no charges pressed against him except for him to produce his son or pay up the debt on the transaction, the matter was taken from Warri to Asaba and then to AIG, Benin, Zone 5. He denied consistently that he was not part of the transaction nor aware of the deposit made to his son… From the above, there were threats, actual detention beyond 24 or 48 hours even though both had a court within 5km radius, the 1st to 5th respondents refused to do the needful legally, they instead employed the tactics of intimidation, blackmail, breaches and directive to produce his son or pay the debts. Clearly, the allegation was that his son who did the transaction absconded and the father/applicant was responsible. The applicant’s freedom was unjustly withheld, his fundamental rights infringed upon.”’
The Special Nature of Procedure for Enforcement of Fundamental Rights:
The proceedings in habeas corpus as incorporated in the fundamental rights enforcement rules are special. The procedure and the course of action in the enforcement of fundamental human rights are sui generis. Declaratory reliefs can be granted on originating summons in deserving cases. The Fundamental Rights (Enforcement Procedure) Rules is a statutory provision pursuant to Chapter IV of the 1999 Constitution and its provisions are not subject to the common law rules of any High Court, particularly in relation to the issue of enforcement of declaratory reliefs. Where the court is satisfied that there was or exists violation of the fundamental right of an applicant, the court is bound to make a declaration to that effect. The affidavit evidence sworn to and filed with regard to the violation of the right of an applicant constitutes legal and acceptable evidence where there is no counter-affidavit and/or there was default of appearance by the respondent, so long as the court was competently seised of jurisdiction.
The Special Nature of Procedure for Enforcement of Fundamental Rights:
The requirement of oral evidence arises from the fact that the court has the discretion to grant or refuse a declaratory relief and its success depends entirely on the strength of the plaintiff’s own case and not on the defence. A declaration sought by an applicant cannot be made on admission or in default of counter-affidavit. The proposition of the law is applicable in general but is not applicable to fundamental rights cases. The genre of fundamental rights cases are special and sui generis and meant to protect the individual from other powerful individuals and the State if need be.
When Court Will Consider Police Report or Extra-judicial Statement in Application for Enforcement of Fundamental Rights:
Per OGUNWUMIJU, J.S.C. at page 93, paras. D-F:
“The police – 2nd to 6th respondents herein did not deem it fit to file a counter-affidavit at trial to contest the affidavit of the 1st respondent. The court cannot look at police reports or other information not legally tenable before it. For the court to consider such statements, it must be attached to the counter-affidavit of the 2nd – 6th respondents who were the 2nd – 6th defendants at trial. The counter affidavit must have been sworn to by the investigating police officer who took the extra-judicial statement which the police want to use to justify the complicity of the person they arrested for the crime for which he/she was arrested.”
The Duty of Citizen to Report Commission of Crime to Police:
Generally, it is the duty of citizens of Nigeria to report cases of commission of crime to the police for their investigation and what happens after suchreport is entirely the responsibility of the police.The citizens cannot be held culpable for doing theircivic duty unless it is shown that it is done mala fide
The Treatment of Affidavit Evidence Where Unchallenged:
A court is obliged to act on unchallenged affidavit evidence. The exception to the rule is where the facts are obviously untrue to the judicial knowledge of the court and are in the category of facts which the court is under a duty to take judicial notice pursuant to section 122 of the Evidence Act. In the instant case, the appellant and 2nd to 6th respondents had the opportunity but failed to file counter-affidavit to the 1st respondent’s affidavit. The Court of Appeal was on solid legal footing to rely on the unchallenged affidavit evidence to allow the appeal and grant the reliefs sought. The exceptions did not apply.
When Court Must Act on Facts Deposed to in Affidavit:
Where the facts deposed to in an affidavit are cogent and capable of proving the case of the applicant, a court of law is legally obliged to act on it. In the instant case, the unchallenged affidavit evidence acted upon by the Court of Appeal was natural, reasonable and probable in the entire circumstances of the case. The 1st respondent deposed to the fact that he was arrested and detained beyond the time allowed by law at the Delta State Police Command, Asaba on the instigation and malicious report by the appellant on a business wherein he played no role. The fact was uncontroverted and justified a grant of the relief for unlawful arrest pursuant to sections 34, 35 and 41 of the 1999 Constitution (as amended). Furthermore, the 1st respondent stated that the 2nd to 6th respondents threatened to arrest him and subjected him to persistent harassment, if he did not produce his son and his photographs. The fact was also not controverted and was capable of proving the relief to stop threat of further arrest and incessant harassment of the 1st respondent pursuant to section 33 of the Constitution.
The Need to Read Pleadings and Depositions in Affidavit Evidence as a Whole:
Pleadings, including depositions in affidavit evidence, must be read as a whole and not in isolation.
The Duty of Court to Limit Itself to Facts in Pleadings in Statement on Oath or in Affidavit Evidence:
A court must confine itself and its observation to any facts within the pleadings as stated in the statement on oath or affidavit evidence proffered before it. Any extraneous facts not legally before the court amount to mere speculations, conjecture and a court making a case for the other party. In the instant case, the Court of Appeal was right to set aside the judgment of the trial court based on speculations. The appellant and the 2nd to 6th respondents did not file any counter-affidavit to oppose any of the assertions of the 1st respondent in his affidavit and did not appeal against the ruling of the trial court refusing to look at the affidavit filed by the appellant which was not in the court’s file. Therefore, the trial court could only consider the 1st respondent’s affidavit. Anything else outside that affidavit was legally speculative and not sworn facts which the court could use to determine the credibility of the 1st respondent’s application.
CONCLUSION
Despite the avalanche of statutory and case law authorities prohibiting the invidious act, law enforcement agencies have not ceased to arrest citizens in lieu of suspects under investigation. Part of this is due to lazy investigation, leading to arbitrary tactics that violate the fundamental rights of citizens. What is required presently is the will power on the part of the authorities to nip this evil practice in the bud, by holding investigating police officers personally liable for damages resulting from such illegal acts of arrest by proxy. Unless and until this is done, we will continue to have cases of innocent persons who are not in any way connected with the offence alleged having to suffer the fate of the real suspect. As happened in the case of Smart v Idiokita under review, the offending police officers are left in the system to continue their wickedness against other victims.
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