NICN - JUDGMENT
IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE UYO JUDICIAL DIVISION
HOLDEN
AT UYO
BEFORE
HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA.
DATE:
26TH OF JULY, 2024 SUIT NO. NICN/UY/41/2022
BETWEEN:
PASTOR OKPUDO AKPAN OKPUDO - - - Applicant
AND
1. MR.
PIUS OKPUDOH
2. MADAM
BLESSING UMOH (IPO)
3. MRS
TINA UGWU - - Respondents
4. NATIONALAGENCY
FOR THE PROHIBITION
OF TRAFFICKING IN PERSONS (NAPTIP)
REPRESENTATION
N. A.WILLIAMS ESQ for the Applicant
JONATHAN ESENE for the Respondents
RULING
The Applicant commenced this suit by
way of Originating Motion on Notice dated 5/10/2022 and filed on the 24/10/2022
praying for the following reliefs:
"(a) A declaration that the arrest and detention of the Applicant on
the 23rd June, 2018 till 30th June, 2018 by the 2nd
and 4th Respondents purportedly claiming to investigate at the false
report of the 1st Respondent is a violation of Applicant's
fundamental rights of personal liberty and freedom of movement.
(b) A
declaration that the re-arrest and detention of Applicant on 1st July,
2018 till 8th July, 2018 by the 2nd and 4th Respondents
on another false report of the 1st Respondent is a violation of
Applicant's right of personal liberty and freedom of movement.
(c) A
declaration that the arrest and detention of the Applicant on 3rd April,
2022 till 6th April, 2022 by the 2nd, 3rd and
4th Respondents purportedly investigating another email petition of
the 1st Respondent is a violation of the fundamental rights of
Applicant to personal liberty and freedom of movement.
(d) An
order of perpetual injunction restraining the Respondents either by themselves
or any agencies, servants or privies from further re-arresting and/or detaining
the Applicant on the facts and circumstances of this case.
(e) An
order of this Court directing the 2nd – 4th Respondents
to jointly or severally pay to the Applicant the sum of One Hundred Million
Naira (N100,000,000.00) as damages and compensation for violating the
Applicant's fundamental human rights."
The Grounds upon which reliefs are
sought were also stated in the application.
The 2nd, 3rd and
4th Respondents in their reaction to the Originating motion filed a
Notice of Preliminary Objection (NPO) and a Counter affidavit on 30/11/2022,
meanwhile the Applicant on the 19/12/2022 filed a reply to the NPO and a
further affidavit and reply on points of law to the 2nd, 3rd
and 4th Respondents' counter affidavit.
2ND,
3RD AND 4TH NOTICE OF PRELIMINARY OBJECTION (NPO)
The 2nd – 4th Respondents'
NPO prays for the following order:
"1. AN ORDER of this Honourable Court
dismissing this suit for lack of jurisdiction."
The NPO was accompanied with a Written
Address wherein counsel for the objectors formulated a lone issue for
determination to wit;
“Whether
the National Industrial Court of Nigeria has the jurisdiction to entertain this
suit”.
Jonathan Esene, counsel to the 2nd
– 4th Respondents submitted that this Court is bereft of the
requisite jurisdiction to hear and determine this action especially having
regard to the subject matter predicating this suit which relates and touches on
the fundamental human rights of the Applicant.
Counsel contended that the proper court
for the hearing and determination of this suit is the Federal High Court of
Justice, State High Court and the High Court of the Federal Capital Territory,
Abuja. Counsel cited the case of Pharmabase
(Nig.) Ltd V. Olatokunbo (2020) 10 NWLR (Pt.1732)346 @42.
Counsel also submitted that by Section
254(c)(1) of the 1999 Constitution of the Federal Republic of Nigeria ( as
amended), this Court has exclusive jurisdiction in civil causes and matters
relating only to labour, employment, trade unions, conditions of service etc.
That it was held in Senior Staff Association of Universities
Teaching Hospitals Research Institutes and Associated Institutions V. Olotu (No
2) (2016) 14 NWLR (Pt. 1531) 8 at 18, paras G-H that an action of
fundamental rights cannot be commenced in the National Industrial Court vide
the Fundamental Rights Enforcement Procedure Rules.
Counsel further submitted that the
jurisdiction of the NIC is only in respect of disputes over the interpretation
and application of the Provisions of Chapter 1V of the Constitution and not for
the enforcement of the rights specified under the Chapter. That the Court does
not have jurisdiction to hear and determine originating application for the
enforcement of fundamental rights as enshrined in Chapter 1V of the
Constitution. That the provision of Section 7(1) of the National Industrial
Court Act, 2006 is clear on the cases and matters to be determined by this
Court which must be obeyed at all times.
It is the contention of counsel that
the issue of jurisdiction is fundamental and can be raised by a party at any
stage of the proceedings. Counsel placed reliance on the cases of Prince Abdul Rasheed Adesupo Adetona &
Ors V. Igele General Enterprises Ltd (2011) LPELR-159(SC) and Peter Adeboye
Odofin & Anor V. Chief Agu & Anor (1992) LPELR-2225(SC) .
Counsel argued that by the provision of
Section 251 of the 1999 Constitution of the Federal Republic of Nigeria as
amended and Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedures)
Rules, 2009, the National Industrial Court does not have jurisdiction to
preside over matters relating to application for enforcement of fundamental
human rights as contained in the Applicant’s case before this Honourable Court.
In conclusion counsel urged the Court
to sustain the Preliminary Objection by dismissing the originating motion for
lack of jurisdiction.
APPLICANT'S
REPLY TO THE 2ND – 4TH RESPONDENTS' NOTICE OF PRELIMINARY
OBJECTION
Applicant's counsel in opposition to the
NPO filed a Reply on the 19/12/2022 and adopted the 2nd – 4th
Respondents issue for determination which is:
“Whether the National Industrial Court
of Nigeria has the jurisdiction to entertain this suit."
Counsel pointed out that since the 2nd
– 4th Respondents have no affidavit in support of their NPO, then
their reply would be on Points of Law.
Counsel submitted that none of the
authorities cited by 2nd to 4th Respondents support their
position. That in Pharmabase (Nig) Ltd V.
Olatokunbo (supra), the matter was filed by the Respondent at the Federal
High Court, Akure and not the National Industrial Court and that it was the
appellant who raised objection before the trial Federal High Court that the
transaction that gave rise to the suit arose from an employer/employee
relationship but the trial court considered the Preliminary Objection together
with the substantive application and found in favour of the Respondent. That
the Court of Appeal affirmed the decision of the Federal High Court and considered
the employer/employee relationship as ancillary. It was argued by counsel that
the decision never said that the National Industrial Court has no jurisdiction
in Fundamental Rights actions.
That in the case of Senior Staff Association of University Teaching
Hospitals Research Institutes and Associated Institutes V. Olotu (supra),
it was argued also that the matter was filed before the National Industrial
Court, Abuja by the appellants and the Respondents challenged the jurisdiction
of the National Industrial Court to hear the matter relating to/or bordering on
fundamental rights enforcement. However, the National Industrial Court ruled
that the matter being intra-union dispute must go through mediation,
conciliation and arbitration before going to the National Industrial Court on
appeal. That the National Industrial Court did not decline jurisdiction and the
Court of Appeal affirmed that position.
Counsel also submitted that the 2nd
– 4th Respondents have not been able to show that this Court has no jurisdiction,
and that what emerges from the reading of Sections 6(3) and (5)(a)-(i), Section
240 and Section 254D(1) of the 1999 Constitution is that the Third Alteration
Act succeeded in vesting the National Industrial Court with a superior status just like that of the High Court. Citing Skye Bank Plc V. Iwu (2017) 16 NWLR (Pt.1590)24
@38 R3.
Counsel contended that it is a
misconception that the National Industrial Court cannot hear and determine
Fundamental Right actions. Citing the case of EFCC V. Reini (2020) vol.302 LRCN 137 at 157 Paras F-P, where the
Supreme Court listed the courts empowered by the Constitution to hear and
determine Fundamental Right actions.
Counsel reiterated that Section 254C
(1) (d) and (i) clearly confers unhindered jurisdiction to this Court to hear
and determine this matter. Citing R.
Brothers V N.P.A (2020) vol.299 LRCN 176 @ 170 R.I; N.P Ltd V Peace- Cover
(Nig) Ltd (2015) All NWLR (Pt.770) 1319@ 1341-1343(paras G-E):Ahmed V. Ahmed (2013) ALL FWLR (Pt.699) 1025 @1068 paras
A-D.
SUBSTANTIVE
MATTER
Applicant's Originating Motion is
supported by a statement of the Applicant and a 59 paragraph affidavit and
accompanied by a written address.
The Applicant in his affidavit in
support of the Originating Motion averred that he was at the instance of the 1st
Respondent first arrested on 23rd June, 2018 at about 6 am along
with his then 17 year old son and 3 pregnant women in his house. That his wife
is a well-known traditional birth attendant and by that time had travelled to
see her relation and so was not seen. That the Applicant and those arrested
with him were taken to his wife’s village but she was not also found, but they
were all taken to the 4th Respondent’s office at Uyo and detained for one full
week (from 23rd June, 2018 to 30th June, 2018).
Applicant also averred that he was
severely beaten at the 4th Respondent’s office with a matchet taken from his
house and forced to lie face down on a table where one of the officers of the 4th
Respondent called Akpabio injected him with an unknown drug. That he was
released on 30/6/2018 but on 1/7/2018, he was re-arrested with his son and
taken again to the office of the 4th Respondent.
That the 1st Respondent
having heard about the release of the Applicant, sent another petition which
prompted the re-arrest of the Applicant by the 2nd – 4th Respondents
just a day after he was released without committing any crime nor has he been
charged to court for any offence. That the Respondents are subjecting the
Applicant to torture, harassment and extortion for no just cause hence this
application.
In his written address, a lone issue
for determination was submitted thus;
"Whether
or not the several arrests and detentions of the Applicant have not infringed
his fundamental rights as guaranteed by the constitution to warrant him being
entitled to the reliefs sought?"
Counsel for the Applicant referred to
section 46(1) of the 1999 constitution and Order II Rule 2 of the Fundamental
Rights (Enforcement Procedure) Rules 2009 and submitted that where any person's
right is or has been violated, he can seek redress in a court of law. Citing
the case of Anthony Nig. Ltd. V. N.D.I.C
(2011) (PT. 598) 909 @926 Paras G-H.
That eventhough the 4th Respondent
is a body statutorily given responsibility to handle matters related to or
connected with child labor, child abuse, human trafficking or any matter
connected therewith or related thereto but that responsibility has to be within
the confines of the law. Counsel cited Fajemirokun
V. Commercial Bank (Nig.) Ltd. (2009) All FWLR (pt.487)1 at 6 paras G-H, SPDC
(Nig.) Ltd. V. Olanrewaju (2002) 16 NWLR (pt. 792) 38 at 71 paras A-E; 79 paras
F-H, Ibiyeye V. Gold (2013) All FWLR (pt.659) 1074 at 1101 paras G-H; 1108
paras A-B.
Counsel also submitted that It is
equally the law that every person residing in Nigeria, both high and low, has a
right to go about his lawful business unmolested or unhampered by anyone else,
be it government functionary or private individual and the court will frown
upon any manifestation or arbitrary power assumed by anyone over the life or
property of another, even if that person is suspected of having breached some
law. Citing ASESA V. Ekwenem (2001) FWLR
(pt.51) 2034 at 2037 held 3.
It was further submitted that the
Applicant has been subjected to incessant arrest and detention since 2018 by
the 2nd to 4th Respondents over an unsubstantiated
petitions of the 1st Respondent but he has not been informed of the
offence he is alleged to have committed as the 2nd to 4th
Respondents are only fishing for evidence to charge him to Court.
Counsel contended that it is the duty
of the 2nd to 4th Respondents to have investigated the
allegation of crime against the applicant before his arrest was made. That it
is therefore unlawful to arrest any one until there is sufficient evidence upon
which to charge him to court. Citing Fawekinmi
V. IGP (2002) FWLR (Pt. 108)1385 at 1385.
Counsel also contended that in
investigating any complaint, the investigating body is bound to observe the
provision of section 35(1) of the constitution that every person shall be
entitled to his personal liberty and no person shall be deprived of such liberty
save for the purpose of bringing him before a court in execution of the order
of court or upon reasonable suspicion of his having committed a criminal
offence, or to such extent as may be reasonably necessary to prevent his
committing a criminal offence. Citing Danfulani
V. E. F. C. C. (2016) 1 NWLR (Pt. 1493) 223 at 246-247, paras A-B.
2ND
– 4TH RESPONDENTS' COUNTER AFFIDAVIT TO THE MOTION ON NOTICE
2nd to 4th Respondents
filed a 33 paragraph counter affidavit and attached Exhibits A to E wherein it
was stated that several petitions were lodged to the 4th Respondent
that the Applicant, his wife and others were into human trafficking activities
and sales of babies in their house in Onan Local Government Area of Akwa Ibom
State. That after the Applicant and his son were arrested, they were given
administrative bail having met the bail conditions. It was also stated that the
allegation of selling of babies is grievous and one of the highest forms of
human trafficking and the highest form of exploitation anywhere in the world.
That the 4th Respondent is established with full mandate to
investigate cases of buying and selling of persons. That the Applicant having
granted bail is only reporting to the 4th Respondent until when
investigation is fully concluded when he would be taken to Court.
According to the 2nd to 4th
Respondents, there is an intelligence report that the Applicant runs other
homes where he and his syndicate operate the business of sale of babies.
In his written address, counsel for the
2nd to 4th Respondents submitted 4 issues for
determination to wit;
"A. Whether or not the investigation carried out by the Respondent (sic)
is lawful
B. Whether or not the Applicant's detention
was lawful.
C. Whether
or not there was a breach of the Applicant's fundamental Rights and
D. If
the answers to issues (a), (b) and (c) are in the negative, whether or not the
Applicant is entitled to damages."
On issue 1, learned counsel submitted
that the 4th Respondent is empowered by law to investigate any person that is
alleged to commit an offence within its purview. Counsel referred to section 21
and section 6(a),(b) and (c) of the Trafficking in Persons(Prohibition)
Enforcement and Administrative Act, 2015.
On issue 2, it was submitted that it
was due to the failure of the Applicant to meet the bail conditions that
resulted in his extended detention. Counsel cited the case of Ekpu V. AGF(citation not supplied and Ada V.
COP(1981) 2 NCLR P. 420, that the duty of the 4th Respondent
does not extend to finding a surety or meeting the bail conditions for the
Applicant.
On issue 3, counsel cited section
35(1)(c) of the 1999 Constitution and submitted that the Applicant can be
arrested upon reasonable suspicion of having committed an offence.
Counsel finally stated that the
Applicant has no legally recognizable right which was infringed upon in respect
of which this Court can come to his aid. That his claim against the Respondents
is not one that this Court can grant, for it has disclosed no cause of action
against them. That the Applicant cannot expect a judicial fiat preventing them from
the exercise of the statutory powers neither can he expect any of the reliefs
to be granted in his favour as he can neither use the application as a shield
to circumvent investigation nor can he profit monetarily from the Respondents
for carrying out their lawful duties in a lawful way.
According to the 2nd to 4th
Respondents, since the Applicant has failed to show this Honourable Court how
his rights have been violated by the Respondents thus entitling him to the relets
sought, the court is urged to dismiss the Applicant's suit in its entirely
against the Respondents for lacking in merit.
APPLICANT'S
FURTHER AFFIDAVIT AND REPLY ON POINTS OF LAW
Applicant filed a 27 paragraph further
affidavit and a reply on points of law where it was submitted that some
paragraphs of the 2nd to 4th Respondents' counter
affidavit are objections, prayer, legal argument or conclusion. Citing Bamaiyi V. State (2001) 8 NWLR (PT. 715)270.
It was further submitted that mere
allegation of crime or wrong doing against a suspect irrespective of its
seriousness cannot operate to curtail his fundamental right nor can it operate
to justify his incarceration. Citing Durwuka
V. Nwoke (2015) 15 NWLR (PT.1483) 417. Danfulani V. EFCC (2016) 1 NWLR (PT.
1493) 223.
COURT'S
DECISION
I have carefully perused the (NPO) and
the originating motion and all the processes filed by the parties in this case
as well as the submissions of learned counsel for the parties. I note that the
issue raised by the objectors in the (NPO) was adopted by the Claimant, however
parties have on the other hand raised several issues for determination in the
substantive matter. But for short, the pertinent points I shall address are;
(i)
Whether
this Court has the requisite jurisdiction to entertain this suit?
(ii)
Whether
the Claimant's Fundamental Human Rights have been violated?
Starting off with the (NPO) filed by
the 2nd to 4th Respondents. It needs to be stated that
for a Court to have jurisdiction and the requisite competence to entertain a
matter, the subject matter must be within its statutory jurisdiction.
It is also the position of the law that
in determining whether a matter falls within the court's jurisdiction, recourse
is had to the originating processes. See the case of Oloruntoba-Oju V. Abdul-Raheem (2009) LPELR-2596 (SC), (2009) 13 NWLR (Pt.1157)
83 SC, where the Supreme Court held that ”it has become legally customary
through long practice to determine the issue of jurisdiction of Court on the
reliefs sought by the Claimant, in the writ of summons and statement of claim.
See also the case of Trade Bank Plc V.
Benilux (Nigeria) Ltd (2003) 9 NWLR Pt.825 Pg. 416.
For the objectors, the subject matter
of the claimant's action is for enforcement of his fundamental human rights
which is outside the purview of this Court. But for the claimant, the subject
matter of his case comes under the jurisdiction of this Court as provided in
Section 254C of the 1999 Constitution.
Section 254C of the 1999 Constitution
(as amended) provides 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 or connected with any labour, employment, trade unions, industrial relations
and matters arising from workplace, the conditions of service, including health,
safety, welfare of labour, employee, worker and matters incidental thereto or
connected therewith;
(b) relating
to, connected with or arising from Factories Act, Trade Disputes Act, Trade
Unions Act, Labour Act, Employee’s Compensation Act or any Law relating to
labour, employment, industrial relations, workplace or any other enactment
replacing the Acts or Laws;
(c) relating
to, or connected with the grant of any order restraining any person or body
from taking part in any strike, lock-out or any industrial, or any conduct in
contemplation or in furtherance of a strike, lock-out or any industrial action
and matters connected therewith or related thereto;
(d) relating
to or connected with any dispute over the interpretation and application of the
provisions of Chapter 1V of this constitution as it relates to any employment,
labour, industrial relations, trade unionism, employer's association or any
other matter which the court has jurisdiction to hear and determine;
(e).........
(f)..........
(g).........
(h)..…....
(i)
connected with or related to child
labour, child abuse, human trafficking
or any matter connected therewith or related thereto.
............
...........
............"
Section 254D of the 1999 Constitution
also provides;
"(1) For the purpose of exercising any jurisdiction conferred upon it
by this Constitution or as may be conferred by an Act of the National Assembly,
the National Industrial Court shall have all the powers of a High Court.
(2) Notwithstanding
subsection (1) of this section, the National Assembly may by law, make
provisions conferring upon the National Industrial Court powers additional to
those conferred by this section as may appear necessary or desirable for
enabling the Court to be more effective in exercising its jurisdiction."
By the provisions of section 254C of
the 1999 Constitution, especially section 254C(1)(d)and (i), the National
Industrial Court of Nigeria (NIC) has jurisdiction to the exclusion of any
other Court in civil causes and matters relating to or connected with any
dispute over the interpretation and application of the provisions of Chapter 1V
of the constitution as it relates to any employment, labour, industrial
relations, trade unionism, employer's association or any other matter which the
court has jurisdiction to hear and determine, which in the instant case is
connected with or related to child labour, child abuse, human trafficking or
any matter connected therewith or related thereto. See Gemini Babalola V Access Bank in Suit No. NICN/LA/123/2012 (unreported)
delivered on the 23rd January, 2013.
Section 46(1), (2) and (3) of the 1999
Constitution also states thus;
"(1) Any one 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 that state for redress.
(2) Subject
to the provisions of this 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 writs 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.
(3) The
Chief Justice of Nigeria may make rules with respect to the practice and
procedure of a High Court for the purpose of this section."
It can be seen that the NIC's
jurisdiction by virtue of Section 254C supersede all provisions of the
Constitution, including Section 46, and the Fundamental Rights (Enforcement
Procedure) Rules (FREP Rules). Eventhough the NIC can still apply the FREP
Rules, as it can borrow rules from other courts to ensure substantial justice
in cases where its own rules are inadequate. See Order 1, Rule 9(1) of the NIC
Rules. See also Abacha v. Fawehinmi
(2000), which suggests that courts can adapt other rules to achieve
substantial justice.
In essence, the NIC has the flexibility
to apply various rules and procedures to ensure justice is served, even if it
means deviating from its own rules.
It is imperative to note that the
Fundamental Rights (Enforcement Procedure) Rules (FREP Rules) are subsidiary
legislation and cannot override Section
54(2) of the National Industrial Court Act (NICA).
Section 254D(1) of the Constitution,
which grants the NIC powers of a High Court, takes precedence over the FREP
Rules and validates Section 54(2) of the NICA, meanwhile Section 46(2) of the
Constitution (granting High Courts original jurisdiction) is subject to other
constitutional provisions, including the provisions of Section 254C.
It is immaterial that the NIC is not
mentioned in Section 46 of the Constitution or the FREP Rules as it does not
exercise its jurisdiction to adjudicate fundamental-rights under S. 46 of the
Constitution and the FREP Rules, but pursuant to S. 254C-(1)(d) of the
Constitution while it is listed as a superior court in Section 6(5)(cc) of the
Constitution. See also Section 54(2) of the National Industrial Court Act,
2006.
The National Industrial Court
prioritizes substantial justice over strict adherence to rules, ensuring that
technicalities do not hinder justice. Forms and precedents serve as guides
only, but should not compromise substantial justice. The court has the duty to
disregard rules that obstruct substantial justice. See Sections 13, 14, and 15 of the National Industrial Court Act (NICA),
Order 1, Rule 9, and Order 5 of the NIC Rules. The goal is to ensure
unhindered access to hearing cases on their merits, without undue emphasis on
technicalities.
On the issue of enforcement and
application. The two words in the context of the Nigerian constitution
especially in sections 46 and 254C of the constitution are synonyms and mean
the same thing.
It can be observed that Sections 6(1),
(3), and (6)(b) of the Constitution grant all superior courts, including the
NIC, the power to make their decisions effective.
Therefore Section 254C(1)(d) also
grants the NIC jurisdiction to "hear
and determine" causes of action arising from Chapter IV of the
Constitution, related to labor relations, similar to the jurisdiction conferred
on High Courts by Section 46(1)&(2).
Consequently, the phrase "to hear and determine" in
Section 254C(1)(d) implies that the NIC has the power to interpret and apply
Chapter IV provisions related to industrial relations. And Combining Sections
6(1), (3), (5)(cc), (6)(a)&(b) and 254D(1) of the Constitution, the NIC is
equally empowered to make its decisions on Chapter IV effective, just like the
High Courts, in matters related to industrial relations.
It is my view that since the National
Industrial Court (NIC) has jurisdiction to interpret and apply Chapter IV of
the Constitution in labor contexts (which is undisputed), then it can have the
power to enforce the provisions of Chapter IV by making necessary orders and an
applicant would not need to return to the High Courts to obtain those orders.
And this would certainly create a logical and efficient situation which is
consistent with the spirit and intent of the constitution, which aims to
establish the NIC as a superior Court with equal powers to the High Courts in
labor-related matters. It is the law that the provisions of the constitution
shall be interpreted liberally and broadly. See Nafiu Rabiu V. State (1980) LPELR - 2936(SC).
Arising from the above therefore, I
hold the view that the National Industrial Court has, not only the requisite
but exclusive jurisdiction to entertain a case of fundamental human rights
enforcement, in matters enumerated under section 254C, notwithstanding any
other provisions of the constitution. The procedure employed in commencing the
action is also immaterial. See the decision of this Court by Hon. Justice
Arowosogbe delivered on 19/7/2024 in the case of Basil Offah V. Institute of Management and Technology Enugu & 2 Ors
in Suit No. NICN/EN/49/2023.
The NPO therefore lacks merit and is
accordingly overruled.
On the substantive matter, let me
quickly refer to section 35 of the 1999 Constitution which states thus;
"(1) Every person shall be entitled to his personal liberty and no one
Person shall be deprived of such liberty save in the following cases and in
accordance with the procedure permitted by law-
(a) in
execution of the sentence or order of a court in respect of a criminal offence
of which he has been found guilty;
(b) by
reason of his failure to comply with the order of a court or in order to secure
the fulfilment of any obligation imposed upon him by law;
(c) for
the purpose of bringing him before a court in execution of the order of a Court
or upon reasonable suspicion of his having committed a criminal offence, or to
such extent as may be reasonably necessary to prevent his committing a criminal
offence, or to such extent as may be reasonably necessary to prevent his
committing a criminal offence;"
Meanwhile section 6 of the Trafficking
in Persons (Prohibition) Enforcement and Administration Act, 2015 confers the following
powers on the 4th Respondent:
"Powers
of the Agency.
6.
The Agency shall have the power to—
(a) investigate
whether any person, body or entity has committed an offence under this Act or
the offence of trafficking under any other law?
(b) enter
into any premises, property or conveyance for the purpose of conducting
searches in furtherance of its functions under this Act or under any other law?
(c) arrest,
detain and prosecute offenders under this Act or any other law on trafficking
in persons in Nigeria?
(d) trace,
seize, detain or retain the custody, for the purpose of investigation and
prosecution, of a property which the Agency reasonably believes to have been
involved in or used in the commission of offences under this Act or any other
law?
(e) seal
up premises upon reasonable suspicion of such premises being involved with or
used in connection with offences under this Act? and
(f) seek
and receive information from any person, authority, corporation or company
without hindrance in respect of the enforcement of any of the provisions of
this Act."
Also section 21 of the same Act states
as follows:
“Prohibition
of buying or selling of human beings for any purpose.
21. Any
person who buys, sells, hires, lets or otherwise obtain the possession or
disposal of any person with intent, knowing it to be likely or having reasons
to know that such a person will be subjected to exploitation, commit an offence
and is liable on conviction to imprisonment for a term of now less than five
(5) years and a fine of not less than N2,000,000.00.”
It can be observed that the right to
personal liberty under section 35 of the 1999 is not absolute but a qualified
one, hence a person who is reasonably suspected to have committed an offence
can be arrested and possibly prosecuted by any relevant agency in Nigeria.
Eventhough the Applicant alleged that
he was severally arrested by the 2nd to 4th Respondents,
but from the facts averred by the 2nd to 4th Respondents,
multiple petitions were lodged accusing the Applicant, his wife, and others of
human trafficking and selling babies in Akwa Ibom State. That the Applicant and
his son were arrested, granted administrative bail, and were required to report
to the 4th Respondent until investigations are complete. It was
stated also that the allegations of baby sales are severe and constitute a high
form of human trafficking and exploitation. That the 4th Respondent
has the mandate to investigate such cases and Intelligence report suggests that
the Applicant operates additional homes where he and his associates engage in
the sale of babies.
From the above allegations, I think it
is within the purview of the 4th Respondent to investigate, detain
and arrest the Applicant with a view to getting to the root of the allegations
and take him to Court.
Whilst it is the law that the Applicant
has a guaranteed right to personal liberty under the constitution but the 4th
Respondent too has the power to arrest, detain and investigate on reasonable
suspicion that one is alleged to have committed an offence. See Sambo V. The Nigeria Army Council (2015)
LPELR-40636 (CA), where it stated PER SANKEY, JCA (then) as follows:-
"As
was well-articulated by the learned trial Judge, the right to personal liberty
is not a shield against criminal investigation or prosecution. By Section 35
(1) of the 1999 Constitution (as amended), every person shall be entitled to
his personal liberty and no person shall be deprived of such liberty save for
the purpose of bringing him before a Court, in execution of the order of a
Court or upon reasonable suspicion of his having committed a criminal offence.
Where such is the case, a person's right to personal liberty may be impaired
temporarily. As such, no citizen's freedom or liberty is absolute. The freedom
or liberty of a citizen ends where that of the other citizen starts. In
addition, the Police and indeed all security agencies can exercise some measure
of discretion in the performance of their duty to maintain law and order in the
investigation of crime and arrest. Ultimately, the Constitutional presumption
of innocence is not a shield against arrest. See Anekwe V. Aniekwensi (2009) 10
NWLR (Pt.) 18; Dokubo V. FRN (2007) 152 LRCN 156; A-G, Anambra State V. Uba
(2005) ALL FWLR (Pt. 277) 909; & Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767)
606."
In the light of this therefore, it is
my view that the Applicant's case lacks merit and is hereby dismissed. However,
the 2nd to 4th Respondents shall within one month file
the necessary charges against the Applicant before a Court of competent
jurisdiction on the allegations levelled against him.
Ruling is entered accordingly with no
order as to cost.
HON.
JUSTICE SALISU H. DANJIDDA
(PRESIDING
JUDGE)