SCC Nigeria Limited & 1ORS Vs. David George.  & 1ors, Judgment Delivered By Abubakar Sadiq Umar JSC, IN SC/CV/827 / 2019

SC/827/2019

JUDGMENT
(DELIVERED BY  ABUBAKAR SADIQ UMAR,  JSC)

This is an appeal against the judgment of the Court of Appeal, Abuja Judicial Division wherein the Court dismissed the appellant’s appeal against the judgment of the High Court of the FCT which found in favor of the 1st Respondent’s application for enforcement of his fundamental rights against the appellant and the 2nd Respondent.

BRIEF STATEMENT OF FACTS

   The 1st Respondent, as the Applicant commenced the suit that gave rise to this appeal at the High Court of the FCT against the Appellants and the 2nd Respondent, as 1st-3rd Respondents under the Fundamental Right Enforcement Procedure Rules. He prayed for the following releifs:

1. A DECLARATION that the allegation of theft, arrest, and handling over of the Applicant to the 3rd Respondents by the 1st and 2nd Respondent s and without evidence whatsoever, was capricious, unwarranted, wrongful, and unconstitutional, and a breach of Applicant’s right to personal liberty.
2. A DECLARATION that the harassment, intimidation, humiliation, and arrest of the Applicant by the 1st and 2nd Respondents on trump up allegation of theft without proof was plotted and executed by the 1st and 2nd Respondent to blackmail the Applicant in order to justify the Applicant’s subsequent sack from the 1st Respondent’s employment and is therefore unjustifiable, wicked, and malicious. C. A DECLARATION that the detention of the applicant by the 3rd Respondent for four days (30th November to 3rd December 2014) at the Bwari Police Station without investigation or prosecution is unlawful, unconstitutional, illegal, unwarranted, and a violation of the Applicant’s right to personal liberty.
3. A DECLARATION that the act of the Respondents in arresting and detaining the Applicant for four days on the allegation of theft without charging the Applicant to court amounts to false imprisonment and thus a violation of the Applicant’s right to personal liberty.
4. An ORDER of this honourable court awarding the sum of N1,000,000 (one million Naira) only in favour of the applicant against the Respondents jointly and severally for false imprisonment arising from the humiliation, embarrassment, intimidation, unsubstantiated allegation of theft, unlawful arrest, and detention of the Applicant from the 30th November to the 3rd December 2014 without trial.
5. An ORDER restraining the 3rd Respondent, its officers, servants, agents, or however named from further violating the Applicant’s right to personal liberty secured and guaranteed under Section 35(i) of the 1999 Constitution of the Federal Republic of Nigeria as amended and under the African Charter on Human and People’s Rights.

 In response, the Appellants filed as a preliminary objection premised on Sections 254C(i)(d), and 251 (i) (p)(q)(r) of the Constitution of the Federal Republic of Nigeria 1999 as amended; that it is either the National Industrial Court or the Federal High Court and not the High Court of FCT that has jurisdiction to hear the 1st Respondent’s claim. The Appellants also filed a counter-affidavit in opposition to the suit. The 1st Respondent filed a Reply Address to the Appellant’s Preliminary Objection and a Reply on point of law to the Appellant’s counter-affidavit in opposition to the suit. The case of the 1st Respondent is that he was employed by the 1st Appellant as labourer in 2003 and he was later promoted to the position of a generator attendant. He worked meritoriously for the 1st Appellant to the extent of being rewarded in the year 2013 with colour TV and awarded certificate of long service having worked for 10 years. On Sunday, November 30th 2014, while he was on night duty at the 1st Appellant’s Generator House around 11pm, the 2nd Appellant, who is the 1st Appellant’s Chief Security Officer, and one Mr. Nwachukwu another 1st Appellant’s Chief Security Officer, in charge of Kubwa site came into his room. The 2nd Appellant claimed that two trucks entered the premises of the 1st Appellant. He told the 2nd Appellant that he did not see any trucks enter the premises, but the 2nd Appellant insisted that he must produce the trucks. He was later arrested together with one Mr. Kabiru Ibrahim, after which the 2nd Appellant took the two of them to Bwari Divisional Police Station. The I.P.O, one Mr. Okpanachi, wrote his statement for him and tried to force him to own up, but he refused. He maintained his position that he did not see any truck enter the 1st Appellant’s premises. He was detained for alleged theft from the 30th November 2014 to the 3rd December 2014, when he was taken to court in company of others. He and other persons were not eventually arraigned and were returned to police station. He was granted bail and his appointment was terminated. The 1st Respondent thereafter filed the suit that led to this appeal alleging the Appellants infringed on his right by arresting him and taking him to police before lodging any complaint, and that the 2nd Respondent (the police) just detained him without doing any investigation about the allegation levelled against him, thereby infringing on his fundamental right to personal liberty.

 The Appellant’s case before the trial court as borne out of their counter-affidavit is that the 2nd Appellant, as the Chief Security Officer in charge of the 1st Appellant’s site, got a tip-off that there was a plan by some of the 1st Appellant’s staff to steal finished pipe and raw materials at the 1st Appellant’s factory in Bwari, Abuja, between the midnight of 30th November 2014 and 1st December 2014. The 2nd Appellant and one Mr Nwachukwu laid ambush at the entrance of the 1st Appellant’s premises. A few minutes later, two trucks drove into the 1st Appellant’s premises. They immediately ran into the premises to enter. After identifying themselves to the gate man, the gate was still not open until about five minutes later. When they entered and walked towards the said truck, the driver drove away. They noticed that there were several persons hiding in the darkness around the premises of the factory. They caught one of them, who turned out to be a police officer. They took him to the Bwari Divisional Police, and when he made the statement, he mentioned several staff members of the 1st Appellant, including the 1st Respondent, who connected with him.

 After hearing the parties, the learned trial judge overruled the Appellant’s preliminary objection. He also found in favor of the 1st Respondent’s claim and accordingly granted reliefs A, C, and D reproduced above. On appeal, the lower court affirmed the decision of the trial court and, therefore dismissed the appeal. The Appellants, being further dissatisfied, have filed this appeal against the decision of the lower court.

APPELLANTS’ ARGUMENT

    In the Appellants’ Amended Brief, filed on the 7th February 2024, and settled by Olamide Mojigbotulwa Adekunle Esq., four issues were nominated for the determination of this appeal thus:

1. Whether considering the provision of sections 251(I)(P)(Q)(R) and 254 (C)(I)(D) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the lower court was wrong to affirm that the trial court had jurisdiction over the 1st Respondent’s claim?
2. Whether the lower court was not wrong to have found that the Appellants arrested the 1st Respondent and thus breached his fundamental right?
3. Whether the lower court was not wrong when it affirmed the trial court’s grant of reliefs A, C, and D against the Appellants in spite of its finding that the 2nd Respondent was liable for the arbitrary arrest, shoddy investigation, and detention of the 1st Respondent?
4. Whether the lower court was not wrong when it held that the trial court properly evaluated the evidence before it?

    On issue No.1, learned counsel for the Appellants submitted that it is the plaintiff’s claim that determines the jurisdiction of the court and that a look at the 1st Respondent’s originating motion, supporting statement, and affidavit, particularly 31 and relief ‘B’ thereof would reveal that the 1st Respondent’s claim is connected with his employment. He contended that the 1st Respondent in the aforesaid paragraph and relief made it apparent that the Appellants’ allegation against him and the Appellants’ conduct in arresting, humiliating and harassing and intimidating him are all trumped up, plotted, and executed to blackmail him and justify his subsequent sack from the 1st Appellant’s employment. Counsel then referred to and reproduced the provision of Section 254C(i )(d) of the Constitution of the Federal Republic of Nigeria 1999 as amended to support his argument that it is the National Industrial Court and not the High Court of FCT that has jurisdiction to hear the 1st Respondent’s claim.

It is counsel’s contention that both parties and the Court are bound by the claim put forward by the parties and the issues joined on them. Counsel argued that based on the literal interpretation of the provision of Section 254C(I)(d) of the Constitution of the Federal Republic of Nigeria 1999 as amended, it is the National Industrial Court that has jurisdiction to the exclusion of any other court on the matter. The High Court of FCT does not have jurisdiction on the matter. The lower court, counsel insisted, was therefore wrong in affirming the decision of the trial court that it has jurisdiction on the matter. He cited and relied on P.C.H.S.C. LTD. & 3 ORD VS. MIGFO NIG. LTD & ANOR (2012) 6 SC (PT. III) I @ PG.73, LINES 5-15, A.G. KANO STATE VS. A.G. FEDERATION (2007) 6 NWLR PT. 1029 PAGE 164 @ 197, ADETOUN OLADEJI (NIG.) LTD VS. N.B. PLC (2007) 5 NWLR PT. 1027 PAGE 415 @ 441, SALEH VS. ABAH (2018) ALL FWLR (PT. 933) 944 @ 974-975, OLOFU VS ITODO (2010) 18 NWLR PT. 1225 PAGE 545 SC.

Learned Counsel argued in the alternative that the 1st Respondents’ originating motion, supporting statement, affidavit in support as well as the reliefs, sought reveal that the crux of the 1st Respondent’s case was a complaint against the executive and administrative decision of the Nigerian police the 2nd Respondent herein to arrest and allegedly detain him contrary to the provision of section 35 of the CFRN1999 (As Amended). It is counsel’s submission that by dint of the provision of section 251(I)(p)(q)(r) of the CFRN, 1999 (As Amended) and the decision of this Court in CBN VS. OKOJIE (2015) ALL FWLR (PT. 807) 478, it is only the Federal High Court that is vested with the requisite jurisdiction to entertain and determine suits, where the executive/administrative decisions of the Nigerian Police Force an agency of the Federal Government is challenged. Further relying on OLORUNTOBA-OJU VS. DOPAMU (2008) ALL FWLR (PT.411) 810 @ PG 833-834 PARAS H-G, Counsel contended that the trial court wrongly assumed jurisdiction over the 1st Respondent’s suit. He urged this court to resolve this issue in the Appellant’s favour by finding and holding that the trial court lacked jurisdiction to entertain the 1st Respondent’s claim and accordingly set aside the decision of the lower court, which affirmed the trial court’s judgment.

    One issues Nos. 2, 3, and 4, having read the Appellant’s Brief, I am of the view that the argument of learned counsel on these issues focuses on the evaluation of the affidavit evidence before the trial court upon which the trial court and the lower court found the Appellants liable. I will therefore adumbrate counsel’s submission on all these three issues together. The contention of the Appellants in the main is that the Appellants merely laid complaint on the attempted theft that occurred at its factory and that it was the 2nd Respondent (police) that arrested and detained the 1st Respondent. Counsel contended that the Appellants have no control over how the 2nd Respondent carries out his assignments. He further submitted that it was the 2nd Respondent’s investigation that linked the 1st Respondent to the theft and that the 2nd Respondent has so admitted in his report. It is counsel’s submission that contrary to the finding of the trial court, the affidavit evidence of the Appellants does not contradict Exhibit I and J. Adding that there are only minor discrepancies. He submitted that the arrest of 1st Respondent was not unlawful and unconstitutional because his right to personal liberty is not absolute and that since the arrest was done in the course of investigating the 1st Respondent having been suspected to commit a crime, the arrest was lawful and did not amount to abuse of the 1st Respondent’s rights. The lower court was therefore wrong to have affirmed the judgment of the trial court which found the Appellants jointly liable with the 2nd Respondent (the Nigerian Police) for infringement of the 1st Respondent’s rights to personal liberty. Reliance was placed on HASSAN V. STATE (2017) ALL FWLR (PT.890) @ 774, GABRIEL VS. STATE (1989) 5 NWLR (PT.122) 457 @ 468-469, ZAKIRAI VS. MUHAMMED (2017) 17 NWLR (PT. 1594) 181 @ 243, KATE ENTERPRISES VS. DAEWOO NIG. LTD (1985) 2 NWLR (PT.5) PG. 116, DOKUBO-ASARI VS. F.R.N. (2007) ALL FWLR (PT.375) 558@586-587.

      It is counsel’s further submission that although this court will not ordinarily set aside concurrent findings of the trial and the lower courts, but where such findings are perverse or occasion a miscarriage of justice, this court will interfere with such findings, adding that this is an appropriate situation to interfere with concurrent decisions of the trial and the lower courts. He referred to HERITAGE BANK VS. BENTWORTH FINANCE (NIG.) (2018) 1-2 SC (PT.3) 157 @ 187, EDOSA & ANOR VS. OGIEMWANRE (2018) 12 SC (PT.1) 89 @ 122-123, MILITARY ADMINISTRATOR OF LAGOS STATE & ORD VS. ADEYIGA & ORS (2012) LPELR 7836SC PAGE 46-47, CHIEF SUNDAY OGUNDAYE VS. SOLOMON OLUYEMI OSHUNKEYE (2007) ALL FWLR (PT. 389) 1175 @ 1192-1193.

Counsel urged this court to resolve all the issues in favour of the Appellants and allow this appeal because the trial court lacked jurisdiction to entertain the matter having regards to subject matter, claims and the parties before it. The trial court also wrongly evaluated the affidavit evidence adduced in finding the Appellants liable by granting reliefs A, B and C against the Appellants.

1st RESPONDENT’S ARGUMENT

On the part of the 1st Respondent, his Amended Brief, settled by Mallam Mohammed S. Shuaib was filed on the 15th April 2024. In the brief, the following issues were distilled for determination of this appeal:

1. Whether the court below was not right when it affirmed that the trial court had jurisdiction to entertain the first respondent’s case having regards to Section 46 (I) and (2), 251(I)(p)(q)(r) and 254C(I) (d) of the constitution of the Federal Republic of Nigeria 1999 (as amended)?
2. Whether having regards to the facts of the case and the evidence led at the trial court, the concurrent findings of the facts by the two courts below that the appellants arrested the first respondent and indeed set the machinery in motion for his ordeal can be said to be perverse?.
3. Whether the court below was wrong to have affirmed the decision of the trial court granting reliefs A, C, and D against the Appellants in the face of the concurrent findings that the Appellants arrested the first respondent and set the machinery in motion for his detention without trial by the second respondent?
4. Whether the court below was wrong to have affirmed that the trial court properly evaluated the evidence before it and consequently dismissed the appellants’ appeal?

   On the issue No.1, Learned Counsel for the 1st Respondent argued that the 1st Respondent’s case before the trial court is about unlawful arrest and detention without trial of the 1st Respondent on account of the allegation of theft leveled against him by the Appellants and not on labour matter. He pointed it out that the 1st Respondent has been consistent with the presentation of his case. He submitted that contrary to the Appellants’ contention that paragraph 31 of the 1st Respondent’s Statement in support of his originating application and relief B sought by the 1st Respondent indicate that the 1st Respondent’s case is about labour matter, the said relief B is only ancillary, the main claim before the court is about unlawful arrest and detention of the 1st Respondent and that this is the reason the trial court declared at page 270 of the Record of Appeal that the said relief B is speculative. He submitted that the concurrent findings of the trial and the lower courts that the issue before the court is on the arbitrary arrest, shody investigation of the allegation of attempted theft against the 1st Respondent with his attendant detention by the 2nd Respondent has not been challenged by the Appellants and same therefore stands and binds all the parties. It is his further submission that the Appellants have not demonstrated any error of law or facts or a miscarriage of justice occasioned by the said concurrent findings to warrant the disturbance of the said concurrent findings of the two lower courts by this court. He referred to DABO VS. ABDULLAHI (2005)7 NWLR (PT. 923) 181 @ 206, OGUNDIYAN VS. STATE (1991)3 NWLR (PT. 181) 51, ALADEGBEMI VS. FASANMADE (1988) 3 NWLR (PT. 81) 129.

   He argued further that the Appellants were not misled by paragraph 31 of the 1st Respondent’s Statement in support of his originating application, relief B sought by the 1st Respondent as to the actual nature of the 1st Respondent’s claim before the trial court because, in their disposition in various paragraphs of their counter-affidavits, the Appellants themselves had stated that paragraph 31 and relief B are irrelevant to the claim before the trial court as they relate to employment issues. And the Appellants having also agreed in paragraphs 6.03-6.05 at page 28-29 of their brief of argument before this court that the trial court rightly found the 2nd Respondent responsible for the arbitrary arrest, shoddy investigation and detention of the 1st Respondent cannot turn around to maintain a different position that the case presented by the 1st Respondent at the trial court is on employment matters. Counsel insisted that the 1st Respondent’s case is not a dispute that relates to employment of the 1st Respondent, in respect of which the National Industrial Court is vested with exclusive jurisdiction. The 1st Respondent’s complaint, Counsel argued, is simply about his unlawful arrest and detention without trial. He urged also to so hold.

 On the Appellants’ alternative argument that it is the Federal High Court that has jurisdiction over the matter pursuant to Section 251(I)(p)(q)(r) of the CFRN, 1999 (As Amended) and the decision of this Court in CBN VS. OKOJIE (2015) ALL FWLR (PT.807) 478 because the 1st Respondent’s case is a complaint against the executive/administrative decision of the 2nd Respondent, an agency of the Federal Government. Learned Respondent’s Counsel submitted that the Appellant’s position is contradictory, and the Appellants are confused by arguing in one breath that the National Industrial Court is the court vested with jurisdiction over the 1st Respondent’s claim, and in another breath that it is the Federal High Court. It is Counsel submission that the 1st Respondent’s case being a claim for damages for unlawful arrest and detention based on Section 35(I) and 46(I) and (2) of the CFRN, 1999 (As Amended ), the case falls within the proviso to section 251(I) (p)(q)(r) of the CFRN, 1999 (As Amended) which is exempted from the exclusive jurisdiction of the Federal High Court. He contended that it is the subject matter and not parties that determine the jurisdiction of the court. Reliance was placed on ROE LIMITED VS. UNIVERSITY OF NIGERIA LPELR (2018) 42017 SC, NDLEA VS. OMIDINA (2013) 16 NWLR (PT.1381) 589 @ 606, GRACE JACK VS. UNIVERSITY OF AGRICULTURE MAKURDI (2004) 5 NWLR (PT.865) 208 @ 213, NIGERIAN NAVY VS. GARRICK (2006) 4 NWLR (PT. 969) 69, ADETONA VS. I.E. ENT. LTD (2011) 7 NWLR (PT. 1247) 535 @ 564.

    He urged this court to resolve the issue against the Appellants and affirm the concurrent decision of the two lower courts that the trial court had jurisdiction to entertain the 1st Respondent’s suit.

 Concerning issues Nos. 2, 3, and 4, just like the Appellants, the entire argument of the 1st Respondent focuses on the justification by the trial court and the lower court for holding the Appellants’ jointly liable with the 2nd Respondent for the arrest and detention of the 1st Respondent without trial. In a nutshell, the argument is all about evaluation of the affidavit evidence of the parties before the court. The 1st Respondent in summary contended that the concurrent decision of the two lower courts that from the affidavit evidence on record, the Appellants set the machinery in motion for the arrest and detention of the 1st Respondent by the 2nd Respondent, that they went beyond merely reporting the 1st Respondent, they arrested him without just cause is correct. He argued that the Appellants failed to impeach or dispel the finding by demonstrating through credible evidence that the finding is perverse before the affidavit evidence of the Appellants concerning the arrest of the 1st Respondent is contradictory. He pointed out that in Exhibit J the extrajudicial statement of one Mr Nwachukwu, it was stated that the police officer arrested in the night of the attempted stealing was handed over along with the security men on night duty to the police for further investigation why, in another breath, the same Mr. Nwachukwu deposed in the 1st Appellant’s counter-affidavit that it was the police that arrested the 1st Respondent based on the confessional statement ( Exhibit  A) of the police officer arrested at the scene. He said that the 2nd Appellant also admitted arresting the 1st Respondent when he stated in paragraph 11 of his counter-affidavit that the 1st Respondent who was on night duty was reasonably suspected to have participated in the crime by intentionally keeping the place dark when the attempted theft was being carried out. It is his contention that the Appellants do not have a consistent and believable story of how the 1st Respondent was arrested. The Appellants offered three versions of irreconcilably, contradictory accounts of how, when, and who arrested the 1st Respondent, thereby justifying the trial court’s rejection of the Appellants’ evidence. Counsel maintains that the Appellants did not only report a case to the police, they actively participated in the investigation and extraction of confessional statements from purported suspects as well as controlling and influencing the 2nd Respondent in the attempted prosecution of the case. He submitted that the lower court was also right when it held that the trial court’s finding that the Appellants failed to establish reasonable  suspicion for the arrest of the 1st Respondent is unassailable. It was submitted that the deposition in the Appellants’ counter- affidavit through which they sought to establish their case derives from Exhibit A-E or Exhibits 1-5 and the 2nd Appellant’s counter- affidavit. In so far as the Appellants seek to rely on the said deposition to establish the first Respondent’s participation in the alleged crime, his arrest and detention based on the confession of the makers of the statement in the said exhibits, the depositions amount to hearsay and inadmissible as they offend section 115 of the Evidence Act, 2009. Reliance was placed on UTTEH VS. THE STATE (1992) 2 SCNJ (PT.I) 183, OJO VS. GHARORO (2006) ALL FWLR (PT.316) 197 @ 217. Lastly counsel submitted that even if the depositions are admissible, the name of the first Respondent was never mentioned in any of the Exhibits A-E or Exhibits 1-5 to support the deposition in the Appellants’ counter- affidavit that it was the investigation of the second Respondent that linked to the first Respondent. Therefore, the lower court was right in dismissing the Appellants’ appeal to it. Counsel urged this court to affirm the decision of the two courts below, resolve this appeal against the Appellants and dismiss same in his entirety with substantial cost against the Appellants.

2nd RESPONDENT’S ARGUMENT

The second Respondent also filed an Amended Brief of Argument on the 17th April, 2024, settled by Adeyemi Pitan, Esq. A loan issue bothering on the jurisdiction of the trial court to determine the first Respondent’s suit was distilled in the brief, thus:

Whether having regards to the provision of Section 46(I) and (2), Sections 251 (I)(p)(r) and 254(I)(d) of the constitution of the Federal Republic of Nigeria 1999 (As Amended) the lower Court was wrong to have affirmed that the trial High Court had jurisdiction over the 1st Respondent’s claim?

 Arguing the lone issue, Learned counsel for the second Respondent submitted that the trial High Court is imbued with jurisdiction to entertain the first Respondent’s suit and there is no feature in the case that would deprive the trial court of its jurisdiction over the suit. He submitted that the contention of the Appellant to the contrary is a misrepresentation of the law as it relates to the proper venue for enforcement of fundamental rights. In response to the Appellants’ contention that it is the National Industrial Court that has jurisdiction over the matter, counsel contended that a careful read of the first Respondent’s Affidavit at the trial court would reveal that the claim relates to allegation of theft levelled against him without any connection with the first Respondent’s contract of employment with the first Appellant.The Counsel opined that the kind of fundamental rights issues envisaged under Section 254C(I)(d) of the Constitution that could vest exclusive jurisdiction on the National Industrial Court are civil causes and matters such as workplace discrimination, gender inequality, rights to form or belong to trade associations, rights to receive equal pay for work done, and others. It is counsel’s submission that the jurisdiction of the High Court over enforcement of fundamental right is donated under Section 46(1) and (2) of the Constitution, and High Court has been interpreted to mean State High Court, High Court of the FCT or Federal Court. He placed reliance on the case of GAFAR VS. GOVERNMENT OF KWARA STATE (2007) LPELR 8073 (SC). Counsel contended that the provision of Section 254C(I)(d) of the Constitution which confers jurisdiction on the National Industrial Court is a general provision while the provision of Section 46(I) and (2)  of the Constitution which confers jurisdiction on the High Court is a specific one, and that the latter ought to apply in this case on the basis of the law of statutory interpretation that Generalia Specialibus Non Derogant ( where in a statute there are general provisions and special provision in respect of an issue, the court will rather go for specific provisions as against the general provisions). The cases of SCHROEDER & CO VS. MAJOR CO LTD (1989) 2 SCNJ 210, MATRI & ORD VS GALADIMA & ORE (1993) LPELR 25714 SC were cited and relied upon.

    On the Appellants’ contention that the claim of the first Respondent falls within the special jurisdiction of the Federal High Court under Section 251(I)(p)(q)(r) of the CFRN, 1999 (As Amended), the second Respondent’s counsel disagrees, he is of the view that there is nothing in Section 251(I)(p)(q)(r) of the CFRN, 1999 that prevents the FCT High Court from assuming jurisdiction over the first Respondent’s claim. Relying on the decisions of this Court in ADETONA VS. I.E. ENT. LTD (2011) 7 NWLR (PT. 1247) 535@564, FEDERAL UNIVERSITY OF TECHNOLOGY MINNA VS. OLUTAYO (2017) LPELR- 43827, ECONOMIC & FINANCIAL CRIMES COMMISSION V. WOLFGANG REINL (2020) LPELR 4938 Counsel submitted that the Federal, State, and FCT High Courts have concurrent jurisdiction on enforcement of fundamental rights pursuant to sections 46.1 and 2. The lower court was, therefore right in upholding the jurisdiction of the trial court over the first Respondent’s suit.

APPELLANTS’ REPLY BRIEFS TO THE 1ST AND 2ND RESPONDENT’S BRIEFS.

     The Appellants on the 18th and 25th April 2024 filed a Reply Briefs each to the first Respondent and the second Respondent’s Briefs respectively. I have gone through the said reply briefs, save the Appellant’s reply that they are entitled in law to make alternative argument in response to the first Respondent’s submission that the Appellants contradict themselves and are confused by arguing in one breath in favour of the jurisdiction of the National Industrial Court over the first Respondent’s claim and in another breath, in favor of the Federal High Court, the remaining part of the respective reply briefs are mere rehash of the Appellants’ submission in the Amended Appellants’ Brief, which I have summarized above. I, therefore, find it convenient to dispense with the content of the said Appellants’ Reply Briefs.

RESOLUTION

From the above summary of the background facts and submission of counsel in their respective briefs, it is obvious that, apart from the threshold issue of jurisdiction, which has also reared its ugly head in this appeal, the only other issue for resolution borders on evaluation of the affidavit evidence of the parties upon which the trial court decided the case. Consequently, I will proceed to determine this appeal with only two issues distilled here under thus:

1. Whether considering the provision of Sections 254C(I)(d) and 251(I)(p)(q)(r) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the lower court was right to affirm that the trial court had jurisdiction over the first respondent’s claim?
2. Whether the lower court was right in affirming the trial court’s judgment, which found the Appellants jointly liable together with the second Respondent for the arrest and detention of the first Respondent?

RESOLUTION OF ISSUE ONE

Whether considering the provision of Sections 254C(I)(d) and 251(I)(p)(q)(r) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the lower Court was right to affirm that the trial High Court had jurisdiction over the 1st Respondent’s claim?

    The importance of jurisdiction in the adjudication process cannot be overemphasized. It is the bedrock upon which an action rests for its determination. The Court has reiterated the significance of jurisdiction in the adjudication process in a plethora of decided cases. Jurisdiction has been linked to the oxygen in the life of a person without which he ceases to live. It has been likened to the propeller in a motor vehicle which carries the automotive power from the engine to the tyres before the motor vehicle can move. It is akin to the blood in the vein of a living being. If it dries up, it signifies the end of existence. It is a threshold matter. It should be determined at the earliest opportunity whenever raised. For if a court had no jurisdiction to hear and determine a case, the proceedings remain nullity ab initio no matter how well conducted. A defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 342; ALIMS NIG LTD V. UNITED BANK FOR AFRICA PLC (2013) 6 NWLR (PT.1351) 613 AT 626; OLOBA V. AKEREJA (1988) 13 NWLR ( PT. 84) 508; GOLDMARK V. IBAFON (2012) 3 SCNJ (PT.II) 565 AT 597; FED. AIRPORTS AUTHORITY OF NIG. LTD V. SYLVESTER NWOYE (2012) 16 WRN 154 AT 184; BRONIK MOTORS LTD & ANOR. V. WEMA BANK LTD. (1983) I SCNLR 296; UTIH & ORS V. ONOYIVWE & ORS. (1991) I SCNJ 25 AT 49.

As rightly submitted by the learned counsel to the Appellants, in a civil matter, what determines the jurisdiction of the court is the claim of the plaintiff or the claimant. In a case to be decided on affidavit evidence, what the court considers is the plaintiff or the claimant’s affidavit in support together with the reliefs being sought. I have earlier in this judgment set out the background facts as disclosed from the affidavit in support and the reliefs sought by the first Respondent who was the Applicant before the trial court. What I am yet to do and will proceed to do here under is to consider the provisions of Sections 254C(I)(d)  and 251(I)(p)(q)(r) of the Constitution of the Federal Republic of Nigeria 1999 as amended upon which the Appellants anchored their objection to the jurisdiction of the High Court of the FCT to determine the first Respondent’s claim as set out above. Section 254C provided as follows:

1. Notwithstanding the provisions of Sections 251, 257, 272, and anything contained in this Constitution, and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a) Relating to ………………

(b) ……………….

(c) ………………..

(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution, as it relates to any employment, labour, industrial relations, trade, unionism, employers’ association, or any other matter which the Court has jurisdiction to hear and determine.” (Underlining is mine emphasis).

   In interpreting the above provision, it should be borne in mind that our focus is subsection (I), clause D, underlined above, which specifically relates to the exclusive jurisdiction of the National Industrial Court on the Application or Interpretation of Chapter IV of the Constitution. The said clause can be conveniently divided into two parts as follows.

1. Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution.
2. As it relates to any employment, labor, industrial relations, trade unionism, employers’ association, or any other matter which the Court has jurisdiction to hear and determine.

  The first part, in my view means any suit in which any provision of Chapter IV (sections 33-46) of the  CFRN 1999 as amended will be interpreted or applied. There is no gainsaying the fact that the first Respondent’s suit is erected on Section 35 of the Constitution, and there is no dispute on this point from any of the parties to this appeal. The divergence of opinions is on the second part of the clause which reads “as it relates to any employment..” The operative phrase is ‘as it relates to’ and nd the relevant question to ask is; does the first Respondent’s claim relate to his employment with the first Appellant? First, it is pertinent to note that the employer-employee relationship is contractual in the nature and the law is firmly settled that whenever an employee seeks to enforce any employment rights, the terms of the employment together with the document that forms the basis of the terms must be placed before the court. In the instant appeal, the first Respondent neither made reference to any part of his employment terms with the first Appellant nor sought any relief which relates to any employment right or benefit. The appellants have made a heavy weather of the averments in paragraph 31 of the affidavit in support of the first Respondent suit which simply states that the first Appellant’s allegation of theft against the first Respondent is false, fabricated to humiliate and blackmail him to justify his sack from the first Appellant’s employment. The said averments, in my considered view, does not amount to evidence of terms of employment or an assertion of any employment right ditto for relief B. The relief seeks a declaration that the first Respondent’s arrest and humiliation was orchestrated by the first Appellant to justify his sack, and therefore unjustifiable, wicked, and malicious. The deposition in Paragraph 31 and relief B are mere expressions of what the first Respondent believed to be the first Appellant’s motive behind his arrest and humiliation in a bid to drive home the point that the allegation against him was baseless and unfounded. It does not go beyond that. The first Respondent did not aver that first Appellant was not entitled to sack him or that his sack was not valid because the allegation of theft was fabricated. What it prays the trial court to do was to declare the first Respondent’s arrest and humiliation on trumped up charge as wicked and malicious. I therefore have no hesitation in finding that the first Respondent’s suit does not relate to his employment with the first Appellant. Consequently, I hold that the Section 254C(I)(d) of the Constitution of the Federal Republic of Nigeria 1999, as amended, which confere jurisdiction on disputes calling for interpretation or application of fundamental rights provisions in relation to employment and labour matters on the National Industrial Court to the exclusion of other courts of coordinate jurisdiction is inapplicable to the first Respondent’s suit as constituted.

 On the alternative submission of the Appellants that the first Respondent’s suit has constituted falls within the exclusive jurisdiction of the Federal High Court pursuant to the provision of Section 251(I)(p)(q)(r)  of the Constitution. The question whether all cases in which damages and injunctive reliefs are sought against Federal Government or any of his agencies, such as the second Respondent, herein for within the exclusive jurisdiction of the Federal High Court, cognizable under Section 251(I)(p)(q)(r)  of the Constitution has been a subject of perennial dispute.      However, it is abundantly clear that there is a proviso to this section, which says that “nothing in the provisions of paragraphs (p)(q)(r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction, or specific performance where the action is based on any enactment, law, or equity.” This proviso puts it beyond equivocation that not all matters where injunction and damages are sought against the Federal Government or any of its agencies comes under section 251(I)(p)(q)(r) of the Constitution. Furthermore, the original jurisdiction of a court in fundamental rights proceedings is donated by section 46 of the 1999 constitution. The Section Provides thus:

 46(1)  “Any person who alleges that any of the provisions of this Chapter has been, is being, or likely to be contravened in any State in relation to him may apply to a High Court in the State for redress.” 46(2) “Subject to the provisions of the Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section, and may make such orders, issue such writ, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this chapter…”.

  These provisions grant prospective or actual victims of fundamental rights abuse unfettered access to a High Court for redress. The High Court in this context has been interpreted to mean State High Court, the High Court of FCT, and the Federal High Court. The approach of this Court to enforcement of fundamental right has been a liberal one, so this Court, taken the position that irrespective of the subject matter and parties before the Court, both Federal High Court and the State/FCT High Courts have concurrent jurisdiction on enforcement of fundamental rights. What is important is that the real grievance of the Applicant is the breach of a fundamental right protected under Chapter IV of the Constitution and not a veiled attempt to seek redress for other generic civil rights such as employment, property, etc. under the guise of enforcement of fundamental rights. The rationale behind this approach is that because of the essential nature of the fundamental rights which must be jealously guarded, the framers of the Constitution have deemed it fit to ensure that no clog is placed in the path of a citizen seeking to enforce his fundamental rights. Consequently, it behooves the Court, saddled with the responsibility of interpreting the law, to adopt a purposive approach such that the provisions of the Constitution should be construed in a manner as to remove any fetters in the way of pursuit of fundamental rights. It would negate the notion of sanctity of fundamental rights if there is any obstacle placed in the path of enforcing them. See JACK VS. UNIVERSITY OF AGRICULTURE MAKURDI (2004) SC (PT.I) 100 @ 111-112, FUTMINA VS. OLUTAYO (2017) LPELR 43827 (SC), EFCC VS. WOLFGANG REINL (2020) LPELR 49387 SC, IHIM VS. MADUAGWU (2021) 5 NWLR (PT. 1770) SC 584.

I therefore hold that the action of the first Respondent being predicated on fundamental rights enforcement simpliciter  neither falls within the exclusive jurisdiction of the National Industrial Court under Section 254C(I)(d) of the Constitution, nor within the exclusive jurisdiction of the Federal High Court under Section 251(I)(p)(q)(r) of the Constitution as erroneously submitted by the Appellants. This issue is resolved against the Appellants and in favour of the Respondents. The lower court was right to hold that the High Court of FCT has jurisdiction to entertain the first Respondent’s suit.

2. Whether the lower court was right in affirming the trial court’s judgment which found the Appellants jointly liable together with the second Respondent for the arrest and detention of the first Respondent?

 It is instructive to note that in an action decided upon affidavit evidence such as this case, the affidavit of the parties plays dual roles in the sense that it serves the purpose pleadings do serve in actions commenced by writ of summons, and at the same time it is the evidence which the parties rely on to prove their case. It logically follows that, it is the affidavit that defines the areas where issues are joined in the claim of the parties, and it is the same affidavit that will be evaluated to determine the preponderance of evidence on the imaginary scale of justice in the process of resolving the dispute in the case. Upon a cursory look at the affidavit evidence of the parties in the instant appeal, one can easily determine the issues not in dispute and the ones in dispute. One of the issues not in dispute is the fact that the first Respondent was arrested on 30th November 2014 on the basis of an allegation of attempted theft of pipes at the Bwari site of the first Appellant and detained from the said date of arrest to the 3rd of December 2014 when he was released. The key area of dispute is whether it was the Appellants that arrested the first Respondent and handed him over to the second Respondent as asserted by the first Respondent or it was the investigation by the officials of the second Respondent that led to the arrest of the first Respondent as averred by the Appellants. In resolving the conflict, the learned trial judge at page 266 of the Record of Appeal said in “Anambra State Government vs. Gemex International Ltd (2011) LPELR 19733 CA, the court held on the effect of material contradiction thus: “it is settled that a contradiction in respect of a material fact would make the court doubt the evidence.” In the light of the material contradiction, in the affidavit evidence of the first and second Respondents and Exhibit I and J, their statements to the police, I believe the story of the applicant that he was arrested by the first and second respondents and handed over to the third respondent”. And also at the same page, the trial court held ” I believe the story of the Applicant that he was arrested by the 1st and 2nd Respondents and handed over to the 3rd Respondent “.

   The learned trial judge concluded at page 270 of the Record of Appeal thus:

“The affidavit evidence of the applicant revealed that the first and second respondents actually set the machinery in motion for the detention of the Applicant by the third respondent. Their acts went beyond mere reporting to the third Respondent. They arrested the Applicant without just cause. The first and third respondents are liable for false imprisonment. Consequently, Applicant’s claim for declarations in A, C, and D of the reliefs sought succeeds”

 It is the above assessment and conclusion from the affidavit evidence of the parties as done by the trial court that the lower court endorsed at page 435 of the Record of Appeal when the court said “In the instant case, the Appellants had no justifiable reason to cause the arrest and detention of the first Respondent on that day”

    It is crystal clear that the learned trial judge’s basis of preference of the case of the first Respondent to that of the Appellants is the contradiction which the trial court found in the Appellants’ affidavit and exhibits before it. It is also on the same basis that the trial court held that the Appellants went beyond mere reporting the case but set the machinery in motion, having found that the Appellant arrested the first Respondent and handed him over to the second Respondent.

    It is elementary law that the evaluation of evidence is the providence of the trial court, and unless it is shown that the finding of the trial court is perverse, an appellate court will not interfere. In the instant appeal, the learned counsel for the Appellants admitted that there are discrepancies in the Appellants’ counter-affidavit and the exhibits I and J, but described same as ‘minor’. I have taken the trouble to go through the appellant’s counter-affidavit and the exhibits attached thereto. I can identify a material contradiction between the Appellants’ counter-affidavit and the exhibits attached thereto which exposes the falsity of the Appellants’ contention that it was the second Respondent’s investigation based on the confessional statements of the police officer arrested one Nansel Nietkwep and the security officers on night duty that linked up the first Respondent with the attempted theft. In the extrajudicial statements of Nansel Nietkwep Exhibit ‘A’ and those of Ugwuenze Brendan, Uchenna Isiwu, Daniel Anya – the three guards on duty on the night of the attempted theft attached as Exhibits 2-4 in the affidavit of the second Appellant at page 130-131 of the Record of Appeal, nowhere is the first Respondent’s name mentioned in the said statements. It logically follows that the first Respondent’s version that the Appellants arrested him is more credible and acceptable. The corollary of that is that the Appellants’ assertion that they merely reported the matter and they ought not to be found jointly liable with the second Respondent is unfounded. I am also not persuaded by the Appellants’ contention that since the second Respondent had admitted in Exhibit 7 that it is the one that arrested the first Respondent, the trial court’s finding to the contrary that the Appellants did so cannot stand. The simple reason is that the entire affidavit evidence and other exhibits attached thereto point to the irresistible conclusion that the Appellants arrested the first Respondent as found by the trial court. Therefore, the second Respondent’s admission as contained in Exhibit 7 will not change that finding of fact and since the Appellant and the second Respondent are in cahoots in the breach of the first Respondent’s right, Exhibit 7 prepared by the second Respondent cannot be used to shield the Appellants or relieve them from liability because it was not prepared by an adverse party and the admission  in it cannot be relied upon to displace the credible account of his arrest as given by the first respondent.

   Lastly, is the contention of the Appellants that the first Respondent’s arrest and detention from the 30th November 2014 to 3rd December 2014 is not unlawful and not unconstitutional because he was arrested upon reasonable suspicion of having committed a crime/or for the purpose of bringing him to court as stated in Exhibit 7 in line with section 35(I)(c) of the constitution. It is apposite to note that subsection 35(I)(c) of the constitution is a proviso that derogates from the fundamental right to personal liberty granted under section 35(I)  thereof. It therefore follows that the burden to prove “reasonable suspicion” to justify the suspension or curtailment of the right lies on the person that asserts his existence. Put differently, the burden to prove that there existed a reasonable suspicion for the arrest and detention of the first Respondent on the 30th November 2014 lies on the Appellants herein. The test for reasonable suspicion is an objective one. It is not a case of complainant confronting to every Tom, Dick, and Harry as the suspects in a crime or the police throwing caution to the wind and begin to make sweeping and indiscriminate arrest of persons on the basis of suspicion of commission of an offence. The suspicion to meet the standard of “reasonableness” must have an empirical basis. The learned authors of Black’s Law Dictionary, 7th edition, page 1273, define the term “reasonable suspicion” as ” A particularized and objective basis, supported by specific and articulable facts for suspecting a person of criminal activities. A police officer must have a reasonable suspicion to stop a person in a public place.” See the decisions of the Court Below in DIRECTOR, S.S.S.V. IBRAHIM (2016) LPELR – 41618(CA) (PP.16-17 PARAS. E),  REV. PAUL ENANUGA & ORD V HON. NSEOBASI (CORNELIUS) SAMPSON (2012) LPELR – 8487 (CA), UBOCHI VS. EKPO & ORS (2014) LPELR 23523 CA, AKINGBADE VS. STATE (2015) LPELR 25851 CA, and EKANEM V. ASSISTANT IGP (2007) LPELR – 9011(CA)  (PP. 14-15 PARAS. B).

  In the instant appeal, the Appellants had sought to rely on the content of the police report Exhibit 7 attached to the first Appellant’s counter-affidavit. On a perusal of the report, it is as hollow as the affidavit it is attached to in terms of presenting factual basis for the suspicion of the first Respondent. It merely stated that in the course of investigation, some staff of the first Appellant, including the first Respondent, were indicted for conspiracy and were arrested for interrogation. The basis of indictment was not stated. The feeble attempt by the Appellants to justify the first Respondent’s suspicion on the basis that he was on duty as a generator attendant, and he intentionally kept the place dark during the attempted theft at the site of the first Appellant, cannot stand in the face of extrajudicial statements of Nansel Nietkwep and those of Ugwuenze Brendan, Uchenna Isiwu, Daniel Anya as attached as Exhibits 2-4. All these persons admitted their participation in the attempted theft and mentioned names of their co-conspirators without mentioning the first Respondent as one. It is inconceivable that the above-named persons will mention other co-conspirators and choose to shield the first Respondent if he had been part of the scheme while they face the dire consequences of their conduct. It is my considered view that the Appellants did not prove the existence of a reasonable suspicion for the arrest of the first Respondent on the 30th November 2014. In the sequel, I affirm the concurrent finding of the trial and the lower courts that the Appellants and the second Respondent had no valid basis for the arrest and detention of the first Respondent, and they are all liable for the breach of the first respondent’s right to personal liberty. Accordingly, I answer the above question No.2 in the affirmative. I resolve this issue against the Appellants and in favour of the first Respondent. 

   All in all, having resolved the two issues against the appellant, the fortune of the appeal is obvious. It is meritless and deserves dismissal.

     The appeal is hereby dismissed with the cost of N1,000,000.00 ( One million Naira only) in favour of the first Respondent against the Appellants.

ABUBAKAR SADIQ UMAR

JUSTICE, SUPREME COURT

APPEARANCES:

Olamide Mojigbotulwa Adekunle for the Appellants.

Mallam Mohammed Shuaib with him Giwa Munirat Yetunde for the 1st Respondent.

Adeyemi Pitan with him Chidinma Dioji and Peace Kenoye for the 2nd Respondent.