IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
SC/ /2013
APPEAL NO: CA/L/1142/11
SUIT NO: ID/745M/2011
BETWEEN:
MR. BABATUNDE OMIDINA APPELLANT
AND
NATIONAL DRUG LAW ENFORCEMENT AGENCY RESPONDENT
NOTICE OF APPEAL
(Order 8, Rule 2)
TAKE NOTICEthat the Appellant being dissatisfied with the decision of the Court of Appeal, Lagos Division, as contained in the Judgment of Honourable Justices Chima Centus Nweze, Rita Nosakhare Pemu and Fatima Omoro Akinbami dated the 31stday of May, 2013 in Appeal No. CA/L/1142/11 doth hereby appeal to the Supreme Court of Nigeria upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4.
AND the Appellant states that the names and addresses of persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole decision.
3. GROUNDS OF APPEAL
Ground 1
(1). The learned Justices of the Court of Appeal erred in law when they held at pages 11 and 12 of the Judgment as follows:
‘I agree with the submission of the Appellant that it is the Federal High Court which should have entertained the application for breach of fundamental human rights and not the High Court as in the instant circumstance, particularly as it relates to the “subject matter” of drug trafficking. The “subject matter” is what has to be put into consideration in determining whether the court has jurisdiction or not. Moreso, section 26 of the National Drug Law Enforcement Agency Act, cap 30, L.F.N stipulates that
“The Federal High Court shall have exclusive jurisdiction to try offenders under this Act”’
Particulars of Error
- The Court of Appeal had earlier in the Judgment correctly stated that the matter before the High Court essentially concerned the lawfulness or otherwise of the Appellant’s arrest and detention.
- The subject matter of the suit before the High Court of Lagos State was on breach of the fundamental rights of the Appellant and no more. There were no ancillary claims requiring another court other than the High Court of Lagos State to deal with.
- As every arrest and detention is ultimately ‘based on something’, if the decision of the Court of Appeal were right or sound then there can no longer be a substantive fundamental right matter based on arrest and detention.
- The case before the High Court of Lagos State was not a criminal case to try the Appellant in respect of drugs and poison to warrant the invocation of section 26 of the National Drug Law Enforcement Agency Act as the Court of Appeal did.
- The Court of Appeal ought to have held that the High Court of Lagos State had jurisdiction to entertain the application of the Appellant for remedies for the breach of his fundamental right to liberty by the Respondent.
- The decision of the Court of Appeal conflicted with decisions of the Supreme Court to the effect that both the Federal High Court and the High Court of a State have concurrent jurisdiction in matters of enforcement of fundamental rights.
- Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 as amended clearly vests jurisdiction to entertain fundamental rights cases on High Court of Lagos State for violation of rights that occurred within Lagos State.
- The Court of Appeal did not consider at all the arguments of the Appellant on the issue of jurisdiction in its judgment.
- Failure of the Court of Appeal to consider the arguments of the Appellant on the issue of jurisdiction in its judgment was a breach of the Appellant’s right to fair hearing and occasioned miscarriage of justice.
Ground 2
(2). The Learned Justices of the Court of Appeal erred in law when they held at pages 20-21 of the Judgment as follows:
‘Now from the 12thof October 2011, when the Respondent was arrested to the 1st of November 2011 when he was granted bail (a period of about 19 days) is in my view, not unreasonable, in view of the fact that
(1) The Appellant when he realized that the time needed to be extended for further investigation of the matter, promptly approached court for extention (sic) of time for a further fifteen (15) days.
(2) The Appellant has the prerogative to keep the Respondent for the period of investigation. It only stands to reason. If he was allowed to go while investigation was going on, he may abscond, thereby truncating the investigative process of the Agency’
Particulars of Error
- The Appellant was arrested at Murtala Muhammed International Airport at Ikeja and there was a court of competent jurisdiction within less than a radius of forty kilometres, a Federal High Court (Ikeja Judicial Division) at Ikeja.
- The Respondent has no power under the Constitution or under any law to keep a person in detention without bringing him to court within the period provided for in section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
- The Respondent obtained a detention order from the Federal High Court 9 days after it had kept the Appellant in detention in violation of the period prescribed by section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
- The fact that the Respondent claimed to be investigating the allegation of commission of crime against the Appellant is not a warrant for breaching the unambiguous provision of section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
- The evidence that another person who was arrested three days after the arrest of the Appellant excreted on the second and third day 60 wraps of drugs and the Appellant did not excrete any banned substance ought to have led the Court of Appeal to conclude that the detention of the Appellant for 19 days was unreasonable.
- There was no legally admissible basis to justify the detention of the Applicant beyond the period stipulated in section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
- The safeguard provided by law against a suspect absconding is bail and not indefinite detention without trial as suggested by the Court of Appeal.
Ground 3
(3) The Learned Justices of the Court of Appeal erred in law when they failed to make the necessary and reasonable deduction from the evidence on record.
Particulars of Error
- There was evidence that another person who was arrested three days after the arrest of the Appellant excreted on the second and third day 60 wraps of drugs and the Appellant did not excrete any drug or banned substance.
- There was evidence that the Appellant regularly excreted during his period of incarceration or detention without any banned drug or substance being found in his excreta.
Ground 4
(4) The Learned Justices of the Court of Appeal erred in law when they held at page 20 of the Judgment as follows:
‘Paragraph 24 is instructive. The facts deposed therein shows that the Appellant was conscious of, and indeed took into account the sacred fundamental rights of the Respondent, by, (because of the need to keep the Respondent in custody while waiting to excrete), applying for and obtaining an order from the Federal High Court, extending time to detain the Applicant for a further 15 days from date, for the purpose of observing and supervising any excretion of substances he may make’.
Particulars of Error
- There was evidence that the Appellant was detained for 9 days without being taken before any court before the Respondent obtained the detention order from the Federal High Court on the 21st of October 2011.
- The law does not empower the Respondent first to detain a person and then fish for evidence in the name of ‘supervising excretion’.
- There was evidence on record that the Appellant excreted regularly during the period of his detention by the Respondent.
- It is a notorious medical fact that no substance ingested can remain in the human intestine beyond 48hrs provided that such human is passing stool normally and that it takes an average of 18-24hrs for food to traverse the Intestines.
Ground 5
(5). The Learned Justices of the Court of Appeal erred in law when they held at pages 21-22 of the Judgment as follows:
‘I am of the view that it was wrong for the court below to come to the conclusion that the detention of the Respondent from 12th October 2011 by the Appellant was “a flagrant abuse and infringement of the Fundamental Human Rights” of the Respondent herein, in view of the blatant facts before it that investigation based on suspicion of the Respondent was going on.
The order of the Federal High Court of 21st October 2011, for the continuous detention of the Respondent for the purpose of investigation, absolves the Appellant from any culpability in terms of infringing the fundamental human rights of the Respondent.
Truly, the Respondent is caught by the provisions of Section 35(1)(c ) of the 1999 Constitution as, in the course of carrying out their duties, a body such as the Appellant has a duty to detain the suspect, and keep him detained within a reasonable time, in the course of carrying out its duties. The Respondent did not complain about any ill treatment, any abuse to his person or any rough handling’
Particulars of Error
- Ongoing investigation is not a justification for detaining a person beyond the period prescribed by section 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
- There was evidence that the Appellant was detained for 9 days without being taken before any court before the Respondent obtained the detention order from the Federal High Court on the 21st of October 2011.
- The Court of Appeal and the Respondent did not account for the 9 days the Appellant was detained without being taken before any court of competent jurisdiction.
- The Respondent conceded at the lower court that it has power only to detain a person suspected of having committed an offence for a maximum of 48 hours before bringing him before a court of law.
- Treatment of a detainee is irrelevant to the issue of the lawfulness of his detention.
Ground 6
(6) The Learned Justices of the Court of Appeal erred in law when they held at page 25 of the Judgment as follows:
‘The Respondent had contended in his Brief of Argument that Exhibits NDLEA I-VI on pages 28-41 of the Record are worthless and cannot be relied upon by a Court of Record and Tribunal. That Exhibits NDLEA I-II, V-VI are scraps of paper and are not certified.
With respect I do not agree to this as these documents are ex-facie certified true copies of the original and are admissible. The argument is misconceived. The Court was right to have admitted same.
Particulars of Error
- The contention of the Appellant at the Court of Appeal was that Exhibits NDLEA I-VI, and not just Exhibits NDLEA I-II, V-VI are legally inadmissible.
- Exhibits NDLEA I-VI are secondary evidence of public documents that ought to be certified but were not certified.
- The learned trial judge did not admit any document contrary to the decision of the Court of Appeal.
Ground 7
(7) The Learned Justices of the Court of Appeal erred in law when they held at pages 27-28 of the Judgment as follows:
‘The detention of the Respondent was not up to a year. What then informed the award of N25,000,000?….
Assuming the Respondent was unlawfully detained for nine days as found by the trial judge, one would not deny the fact that an award of N25,000,000 for 9 days is oppressive, excessive, unrealistic and indeed perverse. There was no basis to attract such punitive penalty.
The Appellant, being a law enforcement agency with the responsibility of curbing drug trafficking in this country, if allowed to be inundated with such oppressive damages award without cause, particularly in cases which it is not found culpable, same would cripple the establishment in no time. The compensation was excessive and same is hereby set aside and i so hold’
Particulars of Error
- There is no law that stipulates that an Applicant who seeks compensation for the violation of his or her right should have been detained for one year to be entitled to compensation.
- The Court of Appeal failed to follow decisions of the Supreme Court of Nigeria that made it clear that once a person’s right has been shown to have been violated compensation is automatic.
- The Court of Appeal did not consider at all the features of the Appellant’s arrest and detention that warranted the award of N25,000,000.00 submitted to it.
- The Court of Appeal arrived at its decision by taking into consideration extraneous issues that were not canvassed before it.
- The Respondent violated the right of the Appellant to liberty and as such ought to be liable to pay compensation to him.
- The Court of Appeal failed to state and award what sum it considers reasonable and not excessive assuming the Appellant was unlawfully detained for nine days as the learned trial judge found.
4. RELIEFS SOUGHT FROM THE SUPREME COURT
(i). AN ORDER allowing the Appeal.
(ii). AN ORDER setting aside the decision of the Court of Appeal and affirming the decision of the trial court.
5. NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEAL:
NAMES ADDRESSES
- MR. BABATUNDE OMIDINA c/o Bamidele Aturu & Co, 53, Mambolo Crescent, Wuse, Zone 2, Abuja
- NATIONAL DRUG LAW ENFORCEMENT AGENCY 4, Shaw Road, Ikoyi, Lagos
DATED this 12th day of July, 2013.
Bamidele Aturu Esq
Bamidele Aturu & Co
Appellant’s Solicitors
53, Mambolo Crescent
Wuse, Zone 2
Abuja.
Tel: 08055999888, 08023128967;
E mail: aturulaw@yahoo.com
FOR SERVICE ON:
NATIONAL DRUG LAW ENFORCEMENT AGENCY
Director, Prosecution and Legal Services
4, Shaw Road, Ikoyi
Lagos.
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