Reflections

FHC Judgement: Sheikh Zakzaky, Wife Were Set Free Entirely; Not Granted Bail

For some time some people erroneously assume that what Justice Gabriel Kolawole of the Federal High Court Abuja granted to Sheikh Zakzaky and his wife was bail. The reality is that it was not a bail but a judgement declaring the detention of the duo as unconstitutional and therefore ordered for their release from custody. This has been contemptuously been defied with impunity.

Secondly, neither the Sheikh nor the wife had been charged before any court of law for any offence ithrough out the course of their two years incaceration. They could not have been granted “bail” since there were no charges whatsoever.

Thirdly, it was the Sheikh and his wife who engaged the services of Femi Falana SAN to challenge their detention, and seek the enforcement of their Fundamental rights to life, personal liberty, dignity of the human persons, right to private and family life and property.  All the reliefs sought by the couple were granted by the Federal High Court, Abuja.

In the light of the above and the constant erroneous position taken to interpret the court judgement as bail, we hereby reproduce the entire judgement as delivered by Honourable Justice Gabriel Kolawole of the Federal High Court, Abuja for clarification:

Justice Kolawole15115243283771796875704336900761.jpg

 

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON FRIDAY, THE 2ND DAY OF DECEMBER, 2016

BEFORE HIS LORDSHIP, THE HON. JUSTICE G.O. KOLAWOLE

JUDGE

SUIT NO. FHC/ABJ/CS/281/2016

 

IN THE MATTER OF AN APPLICATION BY SHEIKH IBRAHEEM ZAKZAKY FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS TO LIFE, PERSONAL LIBERTY, DIGNITY OF THE HUMAN PERSON, RIGHT TO PRIVATE AND FAMILY LIFE AND PRIVATE PROPERTY.

 

IN THE MATTER OF AN APPLICATION BROUGHT PURSUANT TO SECTIONS 33, 34, 35, 36, 37, 40, 41 AND 46(1) & (2) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) AND ARTICLES 4, 5, 6, 11 AND 12(1) OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS (RATIFICATION AND ENFORCEMENT) ACT LFN 2010 AND ORDER 11, ORDER XI AND XII OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009

 

BETWEEN:

SHEIKH IBRAHEEM EL ZAKZAKY  :::::::::::::::::::          APPLICANT

 

AND

RESPONDENTS
  1. STATE SECURITY SERVICE
  2. NIGERIA POLICE FORCE
  3. ATTORNEY GENERAL OF THE FEDERATION

JUDGMENT

On 5/10/16, I listened to the oral submissions of the Applicant’s Counsel, Femi Falana, Esq. SAN on the Applicant’s “Originating Motion on Notice” dated 21/4/16 wherein the Applicant, who is described in the Statement filed to accompany the said Motion as “the leader of the Islamic Movement in Nigeria (IMV)” seeks the following reliefs against the Respondents:

 

  1. A DECLARATION that the detention of the Applicant at Abuja by the Respondents since the 14th day of December 2015 is illegal and unconstitutional as it violates his fundamental rights to personal liberty, dignity of person and fair hearing as enshrined in Sections 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 5, 6 and 7 of the african Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A10) Laws of the Federation of Nigeria, 2004.”

 

  1. “A DECLATATION that the detention of the applicant at Abuja by the Respondents without access to his medical doctors since December 14, 2015 till date is illegal and unconditional as it violates his fundamental rights to health and association as enshrined in Article 16 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A10) Laws of the Federation of Nigeria, 2004.”

 

  1. “A DECLARATION that the detention of the Applicant at Abuja by the Respondents without access to his family friends since the 14th day of December 2015 till date is illegal and unconstitutional as it violates his fundamental rights to freedom of association as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A10) Laws of the Federation of Nigeria, 2004.”

 

  1. “A DECLARATION that the detention of the Applicant at Abuja since the 14th day of December, 2015 by the Respondents without access to his family members and friends is illegal and unconstitutional as it has violated his fundamental rights to freedom of movement guaranteed by Section 41 of the Constitution and Article 12 of the African Charter on Human and Peoples’ Rights.”

 

  1. “A ORDER of this Honourable Court directing the immediate and unconditional release of the Applicant from the custody of the 1st and 2nd Respondents.”

 

  1. “A ORDER of this Honourable Court restraining the Respondents from further violating the Applicant’s fundamental rights in any matter whatsoever and however without lawful justification.”

 

  1. “A ORDER of this Honourable Court compelling the Respondents jointly and severally to pay to the Applicant the sum of N2,000,000,000.00 (Two Billion Naira) as general and aggravated damages for the illegal violation of his fundamental rights to life, dignity of his person, fair hearing, health, freedom of movement and freedom of association.”

 

The Applicant’s Counsel in his oral submissions, drew the Court’s attention to the provisions of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 As Amended and the relevant Articles of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 2010 pursuant to which these reliefs, which essentially, being a fundamental rights’ enforcement action, was instituted and as well as the relevant provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009.

 

The attention of the Court was also drawn to the “Statement filed to accompany the said Originating Motion on Notice” and a 38 paragraphed Affidavit deposed to by one Suhaila Ibraheem who in paragraph 1 of her deposition, states that she is “the daughter of the Applicant in this suit and a student of Interior Architecture at the University College Sedaya International, Malaysia.”

 

The 38 paragraph affidavit contains what can at best, if it’s not true as an account of the incidents that occurred between 12th/14th December, 2015, be described as rather gory and blood chilling in a democratic state and arguably, in peace time! It is for me as a “student of judicial history”, bear a sad reminder and telling reminiscences of the unfortunate incidents that involved the illustrious family of the Nigerian popular musician, the Late Mr. Fela Anikulapo-Kuti in February, 1977 under the military government and which eventually, led to the Supreme Court’s Judgment in CHIEF DR. (MRS.) OLUFUNMILAYO RANSOME KUTI & 3 ORS v. THE ATTORNEY-GENERAL OF THE FEDERATION & 8 ORS. (1985)2 NWLR (pt. 6) S.C. 211

 

The Affidavit has three  (3) exhibits attached to it and were marked as Exhibits “A”, “B” and “C”. Exhibit “A” being a coloured picture of the Applicant with his face covered in blood, and Exhibit “B” is a copy of a Charge Sheet No: KDH/KAD/37C/2016 – THE STATE v. MOHAMMED AUWAL YAKUBU & 80 ORS. It’s dated 22/3/16. Exhibit “C” is a copy of a letter dated 8/2/16 addressed to the Inspector General of Police and titled: “Access to Sheik Ibraheem Zakzaky”.

The applicant’s “Originating Motion on Notice” was argued in a written address undated but filed on 22/4/16.

In paragraph 3.0 of the address filed, the Applicant’s Counsel submitted five (5) issues for determination. These issues are:

  1. WHETHER the detention of the Applicant at Abuja by the Respondents since the 14th day of December, 2015 has not violated his fundamental rights to personal liberty, dignity of person and fair hearing as enshrined in Sections 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 5, 6, and 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A10) Laws of the Federation of nigeria, 2004.”

 

  1. WHETHER the detention of the Applicant at Abuja by the Respondents without access to his medical doctors since December 14, 2015 till date has not violated his fundamental rights to health as enshrined in Articles 16 of the African Charter on Human and Peoples’ Rights (Ratification and Enforement) Act (CAP A10) Laws of the Federation of Nigeria, 2004.”

 

  1. WHETHER the detention of the Applicant at Abuja by the Respondents without access to his family members and friends since the 14th day of December 2015 till date has not violated his fundamental right to freedom of association as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP A10) Laws of the Federation of Nigeria, 2004.”

 

  1. “WHETHER the detention of the Applicant at Abuja since the 14th day of December, 2015 by the Respondents without access to his family members and friends has not violated his fundamental rights to freedom of movement guaranteed by Section 41 of the Constitution and Article 12 of the African Charter on Human and Peoples’ Rights.”
  2. “WHETHER the Applicant is not entitled to general and aggravated damages of N2,000,000,000.00 (Two Billion Naira) payable by the Respondents as a result of the aforesaid violations of his fundamental rights to personal liberty, dignity of his person, fair hearing, health, freedom of association and freedom of movements.”

At the hearing of the suit on 5/10/16, the Applicant’s Counsel Femi Falana, Esq. SAN adverted the Court’s attention to the said written address, which he adopted as his oral submissions. After the court’s attention was drawn to Exhibit “A”, which as I had earlier remarked, was the coloured picture of the Applicant with his head bruised and bloodied, the Applicant’s Counsel rhetorically posed a question as to “what is the reaction of the Respondents to this act of brutalization”? In answering the question, the Applicant’s learned Counsel invited the Court to look at the depositions in the 1st and 3rd Respondents “admit that the Applicant has been detained since 14/12/15” and referred to paragraph 4(d) of the “Counter Affidavit”. The Applicant’s Counsel further submitted, that “the reasons by the Respondents for detaining the Applicant since 14/12/15 is to save his life”. The court’s attention was referred to paragraph 4(f) and (g) of the 1st and 3rd Respondents’ “Counter Affidavit”. The Applicant’s Counsel then queried whether our laws “allow the government to keep any Nigerian in protective custody against his will? He argued that as at 5/10/16 when the instant suit was being heard, the Applicant has been in custody of the Respondents for ten (10) months.

 

The Applicant’s Counsel also drew the Court’s attention to a “Further and Better Affidavit” deposed to by Abubakar Marshall on 20/6/16, and submitted that it was filed “as a Response to the Respondents’ Counter Affidavit”. The said “Further and Better Affidavit” runs into 9 paragraphs with paragraphs 5, 6, 7 and 8 having sub-paragraphs. The whole essence of the depositions in the said “Further and Better Affidavit” was to re-affirm that the instant suit was filed on the basis of instructions which the Applicant gave to his lead Counsel when he visited him in the 1st Respondent’s custody on 1/4/16 and another visit on 24/5/16 by Abdulrahman Yola who is a member of the Islamic Movement of Nigeria. It was also to assert that the Applicant was being held, even in a so called “protective custody” against his wish.

The Applicant’s Counsel filed a written address titled “Applicant Reply on Points of Law to the 1st and 3rd Respondents Written Address in Support of its Counter Affidavit”. The said address is dated and was filed on 20/6/16. I will return to this process after I would have reviewed the 1st and 3rd Respondents’ address filed to argue their “Counter Affidavit” in opposition to the Applicant’s suit.

The Applicant’s Counsel having done a summary of the facts in the “Further and Better Affidavit” I had just referred to, submitted that the “the arrest and detention of the Applicant is not in dispute” and that the Respondents have admitted this. He submitted that the Applicant “is challenging his detention as illegal, and that “the Respondents are saying that he was being protected against threat to his life”. The Applicant’s Counsel quickly added that the “Respondents have not produced any evidence of the threat to kill the Applicant” and he argued further that “if there is indeed any threat, it is the responsibility of the government to protect the Applicant as a citizen”.

 

The Applicant’s Counsel who submitted that the “justification for detaining the Applicant is unknown to law” referred the Court to the provision of Section 35 of the Constitution which according to Mr. Femi Falana, SAN, sets out the conditions “when the rights to personal liberty can be taken”. He submitted that “protective custody can only be justified where there is an infectious or contagious disease”. and that a person “may be quarantined” for his own treatment and “for the protection of the society”. The Applicant’s Counsel argued that the Respondents have not told this Court “for how long the Applicant will be kept in a protective custody”.

 

In rounding up his submissions, the Applicant’s Counsel urged the Court to hold that the detention of the Applicant violates the provisions of the Constitution and the Articles of the African Charter on Human and Peoples’ Rights pursuant to which the action was instituted. Whilst drawing the Court’s attention to Exhibit “A”, the Applicant’s Counsel urged the Court to award the sum of N2 Billion as damages in favour of the Applicant and submitted that the Respondents have not challenged “our claim”; and that “there is no criminal offence alleged against the Applicant”.

 

Immediately after the Applicant’s Counsel concluded his submissions, I listened to the 1st and 3rd Respondents’ Counsel T.A. Gzali, Esq.

In his oral submissions, the 1st and 3rd Respondents’ Counsel (it does not appear that the 2nd Respondent filed any process in this matter. This may be due to the averment in the Applicant’s daughter’s deposition, and which may have been backed up by Exhibit “C” – that the Applicant was never detained by the Nigeria Police Force, but was taken by the Nigerian Army to the 1st Respondent in whose custody, the Applicant has been held since December, 2015) drew the Court’s attention to the “Counter-Affidavit” deposed to by one Ayodeji Ibitoye who in paragraph 1 states that he is “an officer of the State Security Service”, and that he is serving in “the Legal Services Department (LSD) of the service”. The Counter-Affidavit” which runs into 13 paragraphs with its paragraphs 4 having 26 sub-paragraphs listed as (a) – (z) respectively was filed on 9/6/16. In paragraph 4(d) of the Counter-Affidavit”, the deponent avers that “in the aftermath of the incident of 14th December, 2015 in Zaria, the Nigerian Army handed over the Applicant to the 1st Respondent”.

 

The said “Counter-Affidavit” has four (4) Exhibits marked as “DSS 1”, “DSS 2”, “DSS 3” and “DSS 4” respectively. Exhibit “DSS 1” is a copy of a “Medical Report” by which it was indicated that the Applicant was brought into the “Department of State Security Service Medical Centre on 15/12/15 at 23.45hours”. The Report which was signed by Alhassan A. Sadiq (Dr.) FWACP who is an “Assistant Director, Medical Services – DSS/Headquarters” was made on 10/5/16. Exhibits “DSS 2”; “DSS 3” and “DSS 4” are pictures (not the real or original colour prints, but photocopy of the pictures) of the Applicant standing and sitting with different groups of individuals.

When I read the “Counter-Affidavit” of the 1st and 3rd Respondents, and in the light of the submissions of the Applicant’s Counsel, that the Respondents have not denied detaining the Applicant, I feel that there is need, in order to aid an understanding of the Applicant’s case, that I reproduce paragraph 4(c); (d); (e); (f); (g); (j); (k); (n); (o); (p); (q); (u); (v) and (z) of the “Counter-Affidavit”. It reads thus:

  1. “That I was informed by the Assistant Director, Investigations, Musa Adikwu, in his office at the Headquarters of the Service on 5th May, 2016 at 10:00am, of the following facts and I verily believe same to be true:

 

(c)      That there was an intelligence report that the people of Kaduna State especially in Zaria where the Applicant is resident are planning an attack on the Applicant.

 

(d)     That in the aftermath of the incident of 14th December, 2015 in Zaria, the Nigerian army handed over the applicant to the 1st Respondent.

 

(e)      That in order to save the Applicant’s life, the said officials of the 1st Respondent evacuated him to the medical facility of the State Security Service. The Applicant’s Medical Report is herewith annexed and marked as EXHIBIT DSS 1.

 

(f)      That the safety of the Applicant requires him to remain in protective custody.

 

(g)     That the Applicant was informed of the need to keep him in protective custody and it is with his consent that he is being protected by the State.

 

(j)      That the 1st Respondent immediately mobilized the best medical practitioners within the country to attend to the medical needs of the Applicant, running into millions of Naira at the expense of the State.

 

(k)      That the Applicant is receiving first class medical treatment from Consultants engaged by the 1st Respondent.

 

(n)     That the Applicant is scheduled for further medical procedure in Lagos State.

 

(o)     That the Applicant has largely recovered from the injuries he sustained.

 

(p)     That the Applicant is in protective custody to shield them from residents of Zaria, particularly their neighbours in Gyallesu who have vowed to avenge the oppression and agony they as well as their followers had subjected them to over the years.

(q)     That the Applicant and his wife were not detained, but are in protective custody to shield them from reprisal attacks from members of their community.

 

(s)      That the Islamic Movement of Nigeria (IMN) expressed its lack of confidence in the Judicial Commission of Inquiry, and had indicated unwillingness of its members to appear before the commission.

 

(u)      That no member of the Applicant’s family who requested to see him and was denied access.

 

(v)      That the Applicant’s brother, sister, daughters, his son and associates have been coming to see the Applicant. photographs of the Applicant, his wife, daughter, brother and associates who came to visit him are herewith annexed and marked as EXHIBITS DSS 2, 3 and 4 respectively.

 

(z)      That the safety of the Applicant requires him to remain in protective custody.”

 

It is also of interest, that I will reproduce paragraph 4(s) of the “Counter-Affidavit” and it is to be juxtaposed, not with the Applicant’s “Further and Better Affidavit” of Abubakar Marshall, but with paragraphs 6, 7 and 9 of the Respondents’ own “Counter-Affidavit” read thus:

4(s)    “That the Islamic Movement of Nigeria (IMN) expressed its lack of confidence in the Judicial Commission of inquiry, and had indicated unwillingness of its members to appear before the commission.”

 

  1. “That contrary to paragraph 34 of the Applicant’s Affidavit in Support of the Application, the 1st and 3rd Respondents state that the Counsel Femi Falana SAN never received any instructions from the Applicant for any cause or matter to be pursued on behalf of the Applicant.”

 

  1. “That the instruction of the Applicant to Mr. Femi Falana is only in respect of the proceedings at the Judicial Panel of Inquiry and nothing more.”

 

  1. “That it is common knowledge that it was after the extra-judicial killing of the former leader of Boko Haram, Mohammed Yusuf in Police custody that the group which prior to that, had operated quietly just like the Islamic Movement of Nigeria members, metamorphosed into a full blown terrorist group plaguing the country and has killed thousands of people in various attacks.”

 

When the deposition in paragraph 4(s) of the “Counter-Affidavit” is read and juxtaposed with paragraphs 6 and 7 of the same “Counter-Affidavit”, it seems that the deponent may have gotten the issues mixed up as the facts in these depositions are self-contradictory.

The 1st and 3rd Respondents’ Counsel filed a written address dated 8/6/16 on 9/6/16 to argue the facts in the “Counter-Affidavit”.

In paragraph 2.01 of the address filed, the 1st and 3rd Respondents’ Counsel, who appears to adopt the five (5) issues set down by the Applicant’s Counsel, and without saying so in any specific terms, states that “we most humbly submit that going by the issues formulated by the Applicant in his written address, whether this suit is meritorious?” This seems to address the entire issues and facts on which the Applicant’s “Originating Motion on Notice”rest and it’s more composite in its amplitude.

Whilst arguing the issue, the 1st and 3rd Respondents’ Counsel submitted that the “1st Respondent being a law enforcement agent created by Statute as part of its duties can commit into protective custody any person suspected to be in danger or likely danger of the loss of his life or some serious harm”. When I read this submission, I was curious to find the provisions of the National Security Agencies Act, Cap N. 74, LFN, 2004 by which the 1st Respondent was created and which enables it, to exercise the wide powers which the 1st and 3rd Respondents’ Counsel has ascribed to it, and or the provision of the Constitution, 1999 as Amended, but regrettably, none was cited. I have no doubt, that there is no such law whether in the National Security Agencies Act, supra or in the 1999 Federal Constitution.

 

In paragraph 3.03 of the address, the 1st and 3rd Respondents’ Counsel submitted that the “Applicant is not under arrest but is (sic) being held under the protective custody of the State based on security reports gathered that was likely to put the Applicant’s life at a great risk if left in Zaria”.

 

Let me pause here and state that when I reflected on the submissions of the 1st and 3rd Respondents’ Counsel, I also contemporaneously pondered on the submissions of the Applicant’s Counsel, and out of sheer judicial curiosity, I asked myself these questions: To hold or detain the Applicant and his wife in a “protective custody” for their own safety was a power exercised based on what provisions of the Constitution? This is because, the thrust of the Applicant’s Counsel’s submissions, was that the concept of “protective custody” for an adult citizen, is unknown to any law in Nigeria. Secondly, has the 1st and 3rd Respondents produced evidence of any security reports on the basis of which the Applicant and his wife were held, based on the depositions in the Applicant’s “Further and Better Affidavit” against their wish? Thirdly, I have not been shown any police “incident report” of any complaint lodged by any member of the public who live within the neighbourhood of the Applicant’s residence which indicate that the Applicant has become a “public nuisance” to the neighbourhood. Fourthly, prior to the events of 12th/14th December, 2015, does it not appear, that it was the alleged act of soldiers, ostensibly of the Nigerian Army that may have precipitated the unrest within the Applicant’s neighbourhood because, by the deposition of Ayodeji Ibitoye in paragraph 9 of the 1st and 3rd Respondents’ “Counter-Affidavit”, the “Boko Haram” group “had operated quietly just like the Islamic Movement of Nigeria Members”. These are issues which the 1st and 3rd Respondents’ Counsel needs to address in order to overcome the burden of proof which the Applicant’s suit has shifted on the Respondents. These are some of the thorny issues which must be effectively interrogated vis-à-vis the disposition documentary exhibits produced to prove and to disprove the allegations which formed the kernel of the Applicant’s cause of action as it’s depitched in the “Affidavit in Support of the Originating Motion on Notice” filed.

The 1st and 3rd Respondents’ Counsel in the course of his oral submissions on 5/10/16, adopted the written address filed and adverted the Court’s attention to the four (4) documentary exhibits attached. Whilst Exhibit DSS 1” – being a copy of a “Medical Report” signed on 10/5/16 was being flaunted by the 1st and 3rd Respondents in order to prove the level of care which the Applicant, who had incurred Medical Bills of over N5 million, has been receiving in the 1st Respondent’s custody, the 1st and 3rd Respondents however, were gravely, by my assessment, silent on the circumstances which led to the grievous injuries sustained by the Applicant and on which the 1st Respondent had as at when the said “Medical Report” was issued in May, 2016, expended over N5 million as medical bills for the treatment of the Applicant. I raised this issue because, the deposition of the Applicant’s daughter in her “Affidavit in Support” to the effect that soldiers surrounded her parents’ house between 13th/14th December 2015 before mayhem was unleashed, was only denied in general terms, but the 1st and 3rd Respondents have not produced any fact or evidence to show that the grievous injuries which Exhibit “DSS 1” acknowledged as were being treated when Applicant was brought into 1st Respondent’s Medical Centre on 15/12/15, were sustained in the midst of the alleged violent confrontation the members of the Islamic Movement of Nigeria had with the convoy of the Chief of Army Staff on 12/12/15.

It is these issues which need to be critically examined and judicially analyzed in order for the Court to come to a decision, that the events which led to the Applicant’s need for a “protective custody”, was self-inflicted and not one which the State, through it armed agents foisted on the Applicant. This is an issue that must be interrogated against the remarks which I had made on the issue of whether or not, the 1st and 3rd Respondents, working either alone or in concert with the Nigerian Army, have produced any fact or evidence of complaints or reports by members of the public who live in the Applicant’s neighbourhood to show that truly, the Applicant had become a nuisance to the said neighbourhood. If there is any such report (none was produced before this Court except the ipse dixit of Ayodeji Ibitoye in paragraph 4(p) of his “Counter-Affidavit) the next question will be, when the 2nd Respondent, as the constitutional body established by the Constitution (see Section 214(1) of the CFRN, 1999 As Amended) to handle such issues if the conduct of the Applicant and his numerous followers had become a source of public nuisance in the neighbourhood, what step(s) has it taken in order to abate the alleged nuisance within the ambit of extant criminal laws? I have not really, whilst reading the written address filed on behalf of the 1st and 3rd Respondents, been able to find any credible answers to the issues which agitated my thoughts whilst reviewing the addresses filed by both parties.

The 1st and 3rd Respondents’ learned Counsel, T.A. Gazali, Esq urged the Court to discountenance the “Further and Better Affidavit” of Abubakar Marshall and posited his reason on the provision of Order VI Rule 5 and Order II Rule 7 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 – which he argued, only permit the Applicant to file a Reply within five (5) days of service of the “Counter-Affidavit”. The 1st and 3rd Respondents’ Counsel who cited the decision in OGWUCHE v. MBA (1994) 4 NWLR (pt. 336) 75 and a book titled: “Fundamental Rights Enforcement” by Mr. Femi Falana, SAN at page 115 to buttress his submission which border on technicality, and as if he was reading my mind, immediately submitted that “I am not unmindful of the provision of Order IZ Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which is a provision when read in conjunction with the “Preamble” to the said Rules, and in particular, its Rule 3 on “the overriding objectives of these Rules”, it becomes obvious that the intention of the Chief Justice of Nigeria when the Fundamental Rights (Enforcement Procedure) Rules, 2009 was enacted, was to enjoin Courts in the enforcement of fundamental rights guaranteed by the Constitution; the African Charter on Human and Peoples’ Rights and the Universal Declaration in Human Rights are to exercise the judicial powers vested in Courts liberally in order to achieve the overriding objectives of the Rules. I refer to Rules 1 and 2 of the “preamble” to the Fundamental Rights (Enforcement Procedure) Rules, 2009. The issues which the instant suit has thrown up are in my view, too serious and of fundamental importance to the health of our national psyche in a democratic setting, that this Court will fall the legitimate and expressed expectations of the Rules to enforce the Applicant’s fundamental rights allegedly breached by the Respondents, if I leave, to borrow a folklore saying in Yoruba language, a more deleterious ailment of leprosy as it were, and begin to grapple with a lesser issue of “ring worms”. To do so by dancing to such niggling issues of technicality will be a disservice to the demands of justice, and the legitimate expectation of majority of Nigerian people who look up to the judiciary as the only arm of government empowered by virtue of the provisions of Chapter IV violations of the Constitution to serve as the bulwark against possible violations of the Constitution and of occasional mindless abuse of powers by any of the arms or agencies of government. In order for the said “Further and Better Affidavit” filed ostensibly by the submissions of the 1st and 3rd Respondents’ Counsel, outside the five (5) days period prescribed by the provision of Order II Rule 7 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 to be discountenanced by the Court, the 1st and 3rd Respondents will have to show in what way they will be prejudiced by a consideration of the depositions contained therein, which essentially as I had observed, was to re-assert the instructions given to the Applicant’s lead Counsel, not to appear before the Judicial Commission of Inquiry set up by the Kaduna State Government in the aftermath of the events of 12th/14th December 2015, but to also affirm that the Applicant did not consent to his being held in a “protective custody”. It was filed as a reaction to the general denial of depositions in the “Counter Affidavit of Ayodeji Ibitoye to oppose the Applicant’s Originating Motion on Notice”.

The 1st and 3rd Respondents Counsel submitted that the Applicant “is in a protective custody to save his life and the lives of a good number of Nigerians in case the Applicant should die”. Again, when I read this submission, my thought goes to the fact as deposed in paragraph 9 of the 1st and 3rd Respondents’ “Counter-Affidavit”, that the death of the former leader of “Boko Haram”, Mohammed Yusuf ignited the gory and horrendous campaign of violence which the said group had unleashed on Nigeria since 2011 because, he reportedly died whilst in the custody of the Nigeria Police Force. The same repercussion, I dare say, may only occur by my assessment of the facts in the instant case, if the Applicant (I pray that this never occurred to him) were to die, either when his residence was allegedly invaded by soldiers with sporadic shootings in which three of his sons were allegedly killed, or if he had died whilst in transit between the Nigerian Army who captured him after the invasion of his residence and of his being handed over to the 1st Respondent, or whilst in the custody of the 1st Respondent. The prognosis of the likely incidents of his being held in a “protective custody” since 15/12/15 may not occur, if the Applicant, for instance, dies from natural causes or due to old age, or in circumstances which could never have been attributable to the State or any of its Agents. So, in my view, greater risk is run and undertaken by the 1st and 3rd Respondents in keeping the Applicant in a “protective custody” when there is no evidence of a request which he himself has made to that effect to the 2nd Respondent as the umbrella body that has primary responsibility under the Police Act, Cap. P.19, LFN 2004 to protect lives and properties of every Nigerian and to maintain law and order. Where the Applicant on his own, or convinced by such security reports (none of which was produced to this Court to see, even if in camera in the context of the provision of Section 36(4)(b) of the CFRN, 1999 As Amended) produced by the 1st Respondent that his life is in danger, may apply to the 2nd Respondent for “police protection” from such threats, and not to be confined with his wife in a “protective custody” as was being argued by the 1st and 3rd Respondents’ Counsel.

The 1st and 3rd Respondents’ Counsel also drew the Court’s attention to Exhibit “DSS 1” and to the deposition in paragraph 4(n) of the “Counter-Affidavit” filed as to the efforts made by the 1st respondent to cater for the health and treatment of the Applicant.

On the issue of the Applicant being denied access to his family and doctor, this allegation, learned Respondents’ Counsel argued, is denied. Perhaps, Exhibits “DSS 2”; “DSS 3” and “DSS 4” are produced to authenticate this fact. Again, the question may be asked whether the persons who took photographs with the Applicant in these exhibits, are all his family members, doctors, etc. that the Applicant will desire to see if he were free? The answer to this by the 1st and 3rd Respondents’ “Counter-Affidavit” was that whoever desires to see the Applicant, will be granted the permission to do so within the confines of the 1st Respondent’s custody.  

The primary question which the 1st and 3rd Respondents’ Counsel is yet to answer and perhaps, overcome as a legal hurdle, is to cite the law, whether by the 1st Respondent’s enabling Act, i.e. the National Security Agencies Act, supra or the provisions of the Constitution, by which a citizen can be held, against his wish in a “protective custody” when, prior to the incident of 12th/14th December 2015, there had been no report of any threat to his life brought to his attention, nor of any compliant or report lodged with the Police Force Division in his neighbourhood of plans by his “disaffected” neighbours to want to attack and kill him. It really does not matter in my view, the quality of welfare attention which the Applicant may be enjoying in the custody of the 1st Respondent, the question is: Is there any evidence, based on the ‘Affidavit” and “Counter-Affidavit” filed by both parties to prove that the Applicant consents to his being held ostensibly for his own interests? When I read the depositions in the “Further and Better Affidavit” deposed to by Abubakar Marshall, I am unable to accept the view, that the Applicant consents to his being detained in the custody of the 1st Respondent.

On the issue of damages being claimed by the Applicant, it was argued by the 1st and 3rd Respondents’ Counsel, that based on Exhibit “DSS 1”, the Federal Government of Nigeria has already spent over N5 Million “for the treatment of the Applicant”. This is a submission which fail to address the circumstances by which the Applicant was injured and by who? I am not in any doubt, that the Federal Government of Nigeria has not by this act of treating the Applicant (who was injured by the alleged acts of its own soldiers) based on the accounts in both the “Affidavit in Support of the Originating Motion on Notice” and the 1st and 3rd Respondents’ “Counter-affidavit”, done the Applicant any special favour. It was an intervention which became necessary for the integrity of the state which by the provision of Section 14(1) of the Constitution, is based “on the principles of democracy and social justice”, and which by the provision of Section 17(2)(b) and (c) of the Constitution, states that “the sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced”, and that “governmental actions shall be humane”.

 

All of these, as are prescribed in Chapter II of the Constitution titled: “Fundamental Objectives and Directive Principles of State Policy” are intended to serve as judicial aids for the interpretation of the whole Constitution in order to fully understand its philosophical underpinning vis-à-vis the exercise of all governmental actions and the obligations and rights of the citizenry to themselves interse  and to the State. I refer in this connection, to the provision of Section 17(3)(c) and (d) of the same Constitution. So, when all of these provisions are read and applied to the steps taken by the 1st Respondent in relation to the Applicant – having regard to the circumstances under which the Applicant sustained the injuries which Exhibit “A” attached to the “Affidavit in Support of the Applicant’s Originating Motion on Notice” has shown and which fact Exhibit “DSS 1” being the “Medical Report” issued on 10/5/16 was made to prove, it shows that the 1st Respondent was conscious of the duty and obligation of the State in the protection of lives of citizens, especially, a citizen such as the Applicant who sustained injuries allegedly from the activities of the soldiers who handed the Applicant over to the 1st Respondent on 15/12/15.

The 1st and 3rd Respondents’ Counsel, perhaps sees the medical intervention by the 1st Respondent to save the Applicant’s life as a “patrimony of the Government”, further submitted that: “Having endured a lot to keep the Applicant in protective custody and incurred medical bills – in a bid to save his life, the Respondents did not maliciously or contrary to good principles of law in the discharge of their duty the safe the country and so should not be damnified in damages.’ The Court was urged to dismiss the Applicant’s suit, and as if replying to the Applicant’s Counsel’s submission that the Respondents have not indicated how long the Applicant will be held in “protective custody”, the learned Counsel to the 1st and 3rd Respondents’ Counsel argued that “as regards his being kept in protective custody, it will not be indefinite and he will be released as soon as the threats have been removed”.

 

When the 1st and 3rd Respondents’ Counsel has concluded his oral adumbration, I listened to the Applicant’s Counsel, Femi Falana, Esq. SAN on his “Reply on Points of Law”.

In relation to the submissions of the 1st and 3rd Respondents’ Counsel that the Applicant’s “Futher and Better Affidavit” was not filed within five (5) days prescribed by the Fundamental Rights (Enforcement Procedure) Rules, 2009, the Applicant’s Counsel argued that the said submission was in the form of a preliminary objection, and that by the provision of Order VIII Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, preliminary objection are required to be filed” and that “there is no Preliminary Objection before the Court”.

 

Again, the Applicant’s Counsel further argued, that the 1st and 3rd Respondents’ Counsel “has not informed the Court, the date when he served us with his Counter-Affidavit”.

 

The Applicant’s counsel argued that the said “Further and Better Affidavit” filed on 20/6/16 was served within the period of five (5) days – when the weekend is not counted after they were served with the 1st and 3rd Respondents’ “Counter-Affidavit”. He also argued that the Respondents were served with the Applicant’s “Originating Motion on notice” in April, 2016, but that the 1st and 3rd Respondents’ “Counter-Affidavit” was filed in June, 2016 and but to deal with the matter on the principle of substantial justice”. The court was urged to discountenance the 1st and 3rd Respondents’ Counsel’s objection. I had in the course of reviewing the 1st and 3rd Respondents’ Counsel’s submissions, adverted to the provision of Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which I held, must be read conjunctively with the preamble to the said Rules, and in particular, to its “overriding objectives” by which a suit as this, should not be summarily decided on the altar of niggling technicalities, and that for the 1st and 3rd Respondents’ Counsel to be able to persuade this Court to “buy” into his submissions based on such technicality, it must be shown how the 1st and 3rd Respondents will be irredeemably and gravely prejudiced by the depositions in the Applicant’s “Further and Better Affidavit” which was filed to join issues with the 1st and 3rd Respondents’ “Counter-Affidavit” on about three (3) main issues in contention. One of which is whether or not, the Applicant instructed the lead Counsel to file this suit. The other is whether or not, the Applicant and his wife consent to his being held in the 1st Respondent’s custody – even as a “protective custody” to safe his life.

When both learned Counsel have been duly heard on their respective processes, in the course of adjourning the case for Judgment, I deliberately engaged both the Applicant’s lead Counsel, Femi Falana, Esq. SAN, who over the years, has remained arguably, one of Nigeria’s legal profession’s constant and unwavering “combatant” in the filed and on the frontline of human rights’ advocacy and the Respondents’ Counsel, T.A. Gazali, Esq. a redoubtable, supremely urbane and well experienced public law advocate, to seek for ways and means by which this matter can be settled amicably. I did so, based on the provision of Section 17 of the Federal High Court Act, Cap. F12, LFN 2004 and in the light of the issues which this case has thrown up. My judicial intervention in this regard was to protect our country from further needless global exposure (we live in modern and advancing world of I.T. technology and e-telecommunications) which the instant suit has occasioned, and to minimize whatever damage the incident may have caused to our national image with the international community amongst friendly democratic States. In view of the invitation which I extended to both parties (it is important to mention in passing, that the proceedings were undertaken on 5/10/16 – about 48 hours prior to the incident in which the 1st Respondent embarked on a “string operation” of residences of some judicial officers) I advisedly adjourned the Judgment to a fairly long and distant date on 25/11/16 in order to leave both parties with adequate opportunity to explore the possibility of an amicable settlement.

Let me digress a little bit and further expatiate on the reasons why I proposed to both parties to explore the possibility of an amicable settlement of this suit. I hold the view, that Courts are ill equipped with the necessary “political tools” to reach and resolve all the contending issues which pertain to this suit because, at the bottom of the crisis beginning from 12th December, 2015, was the very sensitive issue of religion and of the Islamic faith. The Applicant as the leader of the Islamic Movement of Nigeria – which I understand, belongs to the “Shiite School of Islamic Thought”, and this Court, without being equipped with any reliable demographic data, it seems that the greater majority of Nigerian Muslims belong to the “Sunni School of Islamic Thought”. The escalation of this crisis, I want to be hazard a guess by way of obiter remarks, may have been the result of invidious, perhaps unobtrusive acts of intolerance by the greater majority of Muslims who recognize, practice, observe and belong to the “Sunni Islamic School of Thought”. But the important and fundamental issue which needs to be emphasized, is that by the provision of Section 38(1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 As Amended, the said Constitution by virtue of the provision of its Section 1(1) being the “grundnorm” to borrow this term or classification from Hans Kelsen (1881 – 1973) in his “Pure Theory of Law”, on which the State, which Section 2(1) of the same Constitution states that “Nigeria is one indivisible and indissoluble sovereign State to be known by the name of the Federal Republic of Nigeria” is one that recognizes and guarantees “Right to Freedom of Thought, Conscience and Religion” which right also carries with it, a concomitant right in every citizen, not only to differ when it comes to issues of faith and religion, but it includes the “right to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”. It is in this regard, that I was of the view that this case is better settled “politically” rather than through the judicial process which by its nature, has limited capacities in being able to address fundamental issues of faith based on religion.

Whilst I readily acknowledge the fact, that is important that the State frontally and decisively addresses any issue which not only challenge its soverign authority to maintain law, order and to promte good governance, I am of the view that the Applicant’s Islamic Movement of Nigeria needs not be demonized in order to beat its leaders and numerous followers to the path where they should recognize, not only the pre-eminent status of the State in its primary obligation to maintain law and order, but for them to recognize and accept by the sheer force of the Constitution, that their rights to practice whatever version of the Islamic faith they choose, ends where the rights of other millions of Nigerians, whether Sunnis, Christians and even atheists to practice and exercise their faiths begin. It is in realization of the sensitive nature of this issue, that informed my passionate judicial plea to both the Applicant’s and the 1st and 3rd Respondents’ Counsel to the end of the proceedings on 5/10/16, to put heads together with a view to having this case amicably settled. My invitation to both parties for settlement was not borne out of fear of being able to determine this dispute, which I can only do within the ambits of the provisions of the Constitution and extant judicial authorities, but I also recognize the fact, that the issues disclosed as facts in the processes filed and exchanged, are much more delicate, sensitive and perhaps, judicially speaking, slippery in nature.   

The second major reason, was to avoid needless exposure of our country and the Federal Government of Nigeria to criticisms by our international friends in the advance democratic States, where a body like the Amnesty International has often alleged that the Nigerian Military engaged in acts of unbridled extra-judicial killings, and which the advanced democratic States who are Nigeria’s friends and partners, find unacceptable and may hardly believe the spirited defence often put forward by the military that its engagements in quelling insurgencies and public disturbances are informed by the need to respect the rights of innocent, non-combatants and unarmed citizens and that it  operates squarely, within the ambit of rule of law and recognized international standards and best practice. The spectacle of the accounts of the gory incidents that occurred in Zaria, Kaduna State between 12th – 14th December, 2015 which eventually led the Applicant and his wife to be incarcerated in the 1st Respondent’s custody, are facts which would make damning negative reports of bodies like the Amnesty International to be such that should be believed, and on the contrary, is to such that should be believed, and on the contrary, is to accept spirited defence of the Nigerian Military with a pinch of salt, and for the international community, with a measured diplomatic cynism. Deciding this matter judicially, will invariably expose all of these issues as a matter of judicial findings by a Court of competent jurisdiction in a democratic State, and in peace time.

When I did not receive any report from either or both parties through their Counsel, about ten (10) days to the date of judgment, I advised the Registrar to issue a fresh hearing notice by which I deliberately postponed the Judgment for another one week, in the hope that something may crop within the week to indicate that discussions are ongoing may crop up within the week to indicate that discussions are ongoing with a view to settling this case amicably without the need to have a reportable Court’s Judgment. It seems that my expectations were misplaced as I did not hear from either of the parties.

I had in the course of reviewing the processes filed and exchanged by both parties, raised certain questions, made certain remarks and findings on the basis of the processes filed and Counsel’s oral submissions.

I had asked of the 1st and 3rd Respondents have any law, whether by the provisions of the National Security Agencies Act, 2004 pursuant to which the 1st Respondent was established, or the provisions of the Constitution by which the Applicant was authorized to be held in a so called “protective custody” against his wish. I have scrutinized the relevant provision of the National Security Agencies Act, supra and with a microscopic lens, swept though the CFRN, 199 as Amended, I was unable to set my eyes on any provision. the 1st and 3rd Respondent’s Counsel, T.A. Gazali Esq. was unable to cite any to the Court in order to justify the detention of the Applicant since 14.12.15 in the 1st Respondent’s custody in what was described as “protective custody”.

When I read the provision of Section 45 (1) – (3) of the CFRN, 1999 As Amended, which is a provision that deals with “restriction on and derogation from fundamental rights”, and which relate to the fundamental rights guaranteed by the provisions  of Sections 37, 38, 39, 40 and 41 of the Constitution, I was unable even by the most liberal interpretation of the said provision, to posit and justify the dentition of the Applicant in the custody of the 1st Respondent within the said Section 45(1) – (3) of the Constitution. As I had earlier remarked, was the Applicant apprised of any “security report”  in relation to his safety prior to the events of 12th/14th December, 2015? Did the Applicant, in the knowledge of such report, sought for protection and refuge with the 1st Respondent in order to justify his consent to the detention? Did the 1st Respondent produce before this Court, any such report beyond the ipse dixit of Ayodeji Ibitoye in his “Counter-Affidavit”? Prior to the incident of 12th/14th December, 2015, were any reports or complaints lodged by residents who live in the Applicant’s neigbourhood as regards his activities and that of his followers as to constitute acts of public nuisance and for which the Applicant’s life, who had lived in his residence for several years is now being threatened by the residents in his neigbourhood? The depositions in the “Counter-Affidavit” of the 1st and 3rd Respondents did not answer any of these questions in a way that could be taken as a defence and answer to the Applicant’s suit.

Let me state at this juncture, and without any equivocation that by modest understanding of constitutional law, every act of detention is presumed to be unlawful and having regard to the omnibus provision of Section 35 of the CFRN, 1999 as Amended, to be unconstitutional. The evidential burden to prove that the detention any citizen or non citizen who resides within the boundaries of the Federal Republic of Nigeria in the context of the exceptions prescribed in Section 35(1)(a) – (f) of the Constitution, invariably lay on the State ar any of its Agents or Agencies as the gaoler. When one reads the provision of Section 35(1)(e) of the Constitution which the Applicant’s Counsel tangentially referred to as one of the constitutionally recognized occasions as “exception” to the provision of Section 35(1) of the Constitution when a detention can be effected “in the case of person suffering from infectious or contagious diseases, persons of unsound mind, persons addicted to drugs or alcohol or vagrants”,  it is a dentention meant only by the provision of the Constitution, for the purpose of their care or treatment or the protection of the community”.

It is my view that in real life and factual situation when this occurs, I am not in doubt that the “safe and protective custody” of the 1st Respondents cannot be the appropriate detention centre of such person, but it should either in a mental home, i.e. a “psychiatric facility” or some other place where such a person can receive treatment for the kind of ailment which the law regards as “infectious or contagious disease”. Even, in the last part of the said provision which talks of the “protective of the community”, it is one which ought to be read only in the context of the enumerated incidents which the drafters of the Constitution have mentioned. the 1st and 3rd Respondents, in so far as they have not shown that the Applicants suffers from any or all of these enumerated medical and psychotropic conditions, have not been able to prove to the Court’s satisfaction, the reason which was given for the detention of the Applicant, since 15/12/16 till date. The 1st and 3rd Respondents in my view, in so far as they have also not preferred any criminal Charge in a Court of competent jurisdiction against the Applicant, may have unwittingly even with the best of motive or intention, acted in gross violations of the provisions of section 35(3); (4) and (5) of the Constitution in relation to the Applicant and his wife who is an Applicant in a sister suit which was directed to abide the eventual outcome of this suit. This is because, the facts and the circumstances are similar.

The Court has not been afforded by believable evidence (for instance, to produce the Applicant in the Court in order for him in the full glare of the public, to denounce the suit filed on his behalf by Femi Falana, Esq. SAN and to state as a free citizen, that he consented to his being held in the 1st Respondent’s custody for his own safety) to prove the alleged consent of the Applicant to be held in the 1st Respondent’s custody, albeit in a “protective capacity“. Again, let me digress a little on this issue, and to state that I recall that in the course of the proceedings on 5/10/16 when the 1st and 3rd Respondents’ Counsel was insistent that the  Applicant’s lead Counsel, Femi Falana, Esq. SAN did not have the Applicant’s instructions to institute this action, which as an allegation if found proved, will be a serious indictment of the Applicant’s Counsel and raise very serious issue of professional misconduct as it will invariably, border on what is generally known in common law jurisdiction as “charmperty”. I gratuitously offered to the 1st and 3rd Respondents’ Counsel, my readiness to order the 1st Respondent to produce the Applicant in Court in order to clarify this issue. The 1st and 3rd Respondents’ Counsel as an experienced advocate, and perhaps not being too certain what the Applicant will say in open Court on this issue, tactically, avoided any commitment to encourage the court to make such order, and he rather accepted that the issue be allowed to lay as it is. To accept the issue to lay as it is, is to accept the depositions in the Applicant’s “Further and Better Affidavit” by which, the instruction given to Mr. Femi Falana, SAN to institute this action was re-affirmed, and of the fact that the Applicant, who had not deposed to any “Affidavit in Support” of the 1st and 3rd respondents’ case, is impliedly or inferentially deemed not to have given his consent to be held in a “protective custody” of the 1st Respondent.

When I read the “Affidavit and “Counter-Affidavit” flied to prove and oppose the Applicant’s “Originating Motion on Notice”, and when I read the “Further and Better Affidavit” of Abubakar Marshall, the 1st and 3rd respondents have not been able to discharge the burden placed on them to prove either the legality of the Applicant’s detention in the 1st Respondent’s custody, or to prove that he consents to his being held in a “protective custody”.

When I reflected on all the issues and questions which I had raised in the course of reviewing the processes filed and exchanged by bot parties, not only was I unable to set my eyes on the provision of any law or then Constitution by which the Applicant’s detention, albeit in a “protective custody” can be justified. I was unable to answer or resolve any of the questions or issues set down in the addresses filed and exchanged in favour of the 1st and 3rd respondents who as I had earlier remarked, in constitutional jurisprudence, bears the burden they need to discharge against the presumption of law that every act of detention is prima facie unlawful, illegal and unconstitutional until the State or any of its Agencies or Agents is able to show the legal justification for such infraction of fundamental rights to personal liberty, and it can only do so within the exceptions prescribed and recognized by the Constitution itself. This in essence, is the basic concept of constitutionalism and rule of law in very democratic State such as ours.

In conclusion, it is my decision having regard to the analysis I have made in a reasonable detail in this judgment, to hold that the Applicant is entitled to have judgment entered in his favour and his wife, in respect of reliefs 1 ,2 ,3 and 4, in the “Originating Motion on Notice” .

In relation to relief 5 which automatically ought to follow the success of reliefs, 1, 2 ,3 and 4,I  am not unmindful of the allegation contained in the Affidavit of the Applicant’s daughter, Suhalia Ibraheem which has not been disproved by the respondents, and that their family residence ad not been destroyed by soldiers who allegedly surrounded and  invaded their compound on 13th December, 2015. Consequently, the order I will make in relation to relief 5 is one which acknowledges that the Applicant and his wife, if and when released, any not have a place to live. In the exercise of the Court’s inherent jurisdiction as preserved by the provision of Section 6(6)(a) of the CFRN, 1999 As Amended and pursuant to the provision of Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009, when read and applied in conjunction with the provision of Order XI of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the 1st Respondents actively working in conjunction with the 3rd Respondent in its capacity as the Legal Representative of the Federal Government of Nigeria and being the “Chief Law, Officer, of the Federation (see Section 150(1) of the CFRN, 1999 As Amended), shall within 45 days of this judgment, make proper and decent arrangement of a residential abode for the Applicant and his family in Kaduna State or anywhere of their choice within the Northern Region, where the Applicant and his wife witht heir children can relocate when released upon the expiration of 45 days from today.

It was in relation to a relief such as this, that informed my judicial intervention by asking that the parties do seek an amicable, perhaps a political settlement of this suit which will leave the Court out of any of the larger political considerations which the Court neither has the tools to adjudicate upon, or the wherewithal to execute an order such as this. But the question is that the Applicant, if ordered to be released with immediate effect and unconditionally as was pleaded in relief 5, where will he live with his large family? This was the reason why 5 succeeds only in the terms in which I have modified it to enable the 1st and 3rd Respondents to make arrangement as to anywhere within Kaduna State, be it Zaria or in any of the State in the North where the Applicant and members of his family and the larger members of the Islamic Movement of Nigeria ordinarily reside. The Applicant and his wife shall be released within 45 days from today from the 1st Respondent’s custody and shall be handed over to the 2nd respondents who shall in turn, take the Applicant and his wife to the accommodation which the 3rd Respondent id directed to provide pending when the applicant is able to sort himself out with the case I was told, that he filed in the High Court of Kaduna State against the Nigerian Army, whose soldiers allegedly destroyed his residence in the manner after the version of what happened some 39 years ago, against the family of the Late Mr. Fela Anikulapo-Kuti in Lagos State.

In furtherance to this older made on relief 5 in the “Originating Motion on Notice,” let me state clearly and for the avoidance of doubt, that the failure (whether by deliberate action or inadvertence) of the 1st and 3rd Respondents to effect the release of the Applicant herein and his wife from the 1st Respondent’s custody or any illegal custody whatsoever, upon the expiration of the 45th day from today, such failure shall not only constitute a deliberate acts of disobedience of these orders, but it will crystallize into  fresh cause of action of infraction of the Applicant’s rights and of his wife to personal liberty guaranteed by the CFRN, 1999 As Amended.

In terms of relief 6, the Court cannot grant a blanket and prospective order of injunction in favour of the Applicant for the future, and the said relief is only granted to the extent, that the Respondents shall not take steps that will amount to a violation of the Applicant’s right as guaranteed by the Constitution except in accordance with the recognized constitutional exceptions as prescribed.

 

Reliefs 7 relates to the issue of “damages” which was described as “general and aggravated”. Having regard to the sum being claimed against the Respondents, the said damages sound in the realm of “aggravated” or “exemplary” damages. Such damages, by the decision of the Supreme Court in ELIOCHIN (NIG.) LTD V. MBADIWE (1986) I NWLR (pt.147) 47 @ 67B is often granted when the conduct of the Respondents is: “(i) oppressive, arbitrary and unconstitutional action by servants of the government; (ii) cases in which the Defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff, and (iii) any category in which exemplary damages are expressly authorized by statue.”

 

I have reflected on the issue which were raised and canvassed by both parties, and I take judicial notice of the fact, that the country is in a period of deep economic recession. To award such humongous sum of N2 Billion will portray the Court as being rather insensitive to the current fiscal condtion of the Federal Government of Nigeria that is struggling under the new administration to meet the yearning of the citizenry in terms of provisions of employment, security and building infrastructure in order to ameliorate the living conditions of our people.

However, by the provision of Section 35(6) of the Constitution, an Applicant whose rights have been adjudged as violated by the State is entitled to award of damages as “Compensation”, and whether to award “general” or “aggravated” damages in any particular case will involve the exercises, the Court’s discretion, and as in such exercise, the Court is required to act judicially and judiciously based on facts and the peculiar circumstances of each case. As I had found in my Judgment, the 1st and 3rd Respondents, who have not proffered any criminal Charge against the Applicant and his wife, but have kept them in custody of the 1st Respondents since 14/12/15 on a so called “protective custody” which the Respondents have not been able, by any evidence, justified under the provision of any extant laws of the Constitution.           

 

I take judicial notice of the fact, that the 1st Respondent was not the authority that arrested the Applicant and neither was it responsible for the grievous bodily harm and injury which the Applicant “Originating Motion on Notice”. Rather, by the contents of Exhibit “DSS 1”, it had undertaken a robust medical care of the Applicant who by the picture in Exhibit “A”, was badly injured from the alleged invasion of his residence in Zaria, Kaduna State by soldiers of the Nigerian Army. The only role which the 1st Respondent played, was that it received the Applicant and his wife into its capacity as an Agency that can detain persons suspected to have committed offence for which it has jurisdiction to investigate under its enabling Act, from the Nigerian Army who has been accused of inflicting grievous bodily injuries on the Applicant, and had also allegedly destroyed the Applicant’s residence in Zaria, Kaduna State. The 1st Respondent can only be damnified for holding the Applicant beyond the period prescribed by the provisions of Section 35(4) and (5) of the Constitution who it has not charged through the Office of the 3rd Respondent before any Court of competent jurisdiction in relation to any offence known to law which the Applicant and his wife may have committed prior to the invasion oh his residence on 13th/14th December, 2015 and the alleged destruction of his residence by soldiers of the Nigerian Army. It is based on these facts, that I reasoned that the 1st and 3rd Respondents can only be damnified by award of “general damages” instead of “exemplary” or “aggravated”  damages which if the Nigerian Army was joined as a Respondent, and the case against it was proved, can be made to face the full wrath of the law by an award of “aggravated damages”.

In the circumstances, it is decision, because I have already directed the 1st and 3rd Respondents who shall cause the Applicant to be released unconditionally within 45 days from today, in order to make arrangement for the Applicant to have a place where he can live with his family within Kaduna State or any State in the Northern Region within the said period of 45 days, it is my view that an award of Twenty-five Million Naira (N25,000,000.00) should be adequate to assuage the deprivations which the Applicant and his wife has been put to by the acts of the 1st and 3rd Respondents who have held them contrary to the provision of the Constitution and the African Charter on Peoples and Human Rights. By this award, there is no case made against the 2nd Respondent and it is not concerned or affected by the reliefs granted in favour of the Applicant and his wife, including the award of “general” damages.

In fixing this amount as “general damages” I take into consideration, the current rate exchange of our local currency, the Naira to the intentionally convertible currencies, e.g. the U.S. Dollars.

Further to relief 5 which I have granted in the manner as modified for the release of the Applicant and his wife from the 1st Respondent’s custody within a period of 45 days from today, the 1st and 3rd Respondents, shall in execution of the said order, release the Applicant and his wife to the 2nd Respondent’s Inspector General of Police.

The Inspector general of police or any of its subordinate officers not below the rank of Assistant Inspector General (AIG) when he received the Applicant and his wife as ordered herein, shall take immediate step within 24 hours of receiving the Applicant and his wife, from the 1st and 3rd Respondents, convey the Applicant and his wife under necessary security escort of their place of abode as would have been provided by the 1st Respondents working in conjunction with the 3rd Respondent. The 2nd Respondents shall then provide the Applicant and his wife, adequate Police protection which shall operate 24/7 until the alleged threats which were not proved by any admissible evidence, but left in the realm of speculation, are removed or significantly diminished.

Let it be clearly stated and for the avoidance of doubt, that the protection which the 2nd Respondent shall accord to the Applicant and his wife, shall not be used under any guise by the 2nd Respondents, to place or confine the Applicant and his wife under any form of restriction which would invariably translate to the 2nd Respondent substituting its own “safe custody” with the 1st Respondent’s “protective custody”. The essence of the order which I have made, is to enable the Applicant and his wife to be able to live normal lives whilst being under constant protective watch by the 2nd Respondent’s officers in their new place of abode. It is the primary responsibility of the 2nd Respondent as a body created pursuant to Section 214(1) of the CFRN, 1999 As Amended to protect lives and properties of every Nigeria and even non Nigerian within our country’s boundaries.

This shall be the judgment of this Court. This Judgment shall apply mutatis mutadis to the suit in FHC/ABJ/CS/282/2016: MALLAMA ZEENAH IBRAHEEM v. S.S.S & 2 ORS. The facts of which are similar to the instant suit. The award of N25 million which I have awarded in favour of the Applicant, shall avail and apply to the Applicant’s wife who instituted the said suit. The Applicant in the said suit, who is the wife of the Applicant in the instant suit, granted the same reliefs as the Applicant was granted in the instant suit including the award of general damages which is fixed for her at N25 million as was awarded in favour of the Applicant in this suit. In all both the Applicant and his wife in the said sister suit, have “cumulative general damages” which I have fixed at N50 million.

This shall be the judgment of this Court which was reserved on 5/10/16 after the arguments of both Counsels were heard till 25/11/16, but which I deferred till today in the expectation that the suits may be amicably settled.

 The Applicant suit and his wife’s sister suit succeed on the basis of the reliefs which the Court has granted,

HON. JUSTICE G.O KOLAWOLE

JUDGE

                    2/12/2016  

COUNSEL’S REPRESENTATION:

  1. FEMI FALANA, ESQ. SAN with him are FESTUS OKOYE ESQ.; M. INUWA, ESQ.; H. MAGASHI ESQ.; AMAH KALU, ESQ.; M.K. ABDULLAHI ESQ.; S. OGALA ESQ. and A. MARSHALL, ESQ. for the APPLICANT.

 

  1. T.A. GAZALI, ESQ. with him are ENOCH SIMON, ESQ.; I. EKWRE-BELLO, MRS; MS. O.A. OLORUNTOGBE; MRS N.G. EMENIKE and MS. JANTUWA SAWA for the RESPONDENTS.

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