(2019) LPELR-46963(CA)

Transcription

1 SCC (NIG) LTD & ANOR v. GEORGE & ANOR CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ABUBAKAR DATTI YAHAYA STEPHEN JONAH ADAH MOHAMMED BABA IDRIS 1. SCC NIGERIA LIMITED 2. ABEL OLOKOR 1. DAVID GEORGE 2. THE NIGERIAN POLICE ON FRIDAY, 25TH JANUARY, 2019 Suit No: CA/A/222/2016 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. CONSTITUTIONAL LAW - BREACH OF FUNDAMENTAL RIGHTS: Courts with jurisdiction to entertain matters bordering on breach of fundamental rights <span style="font-size: 12px;">"Jurisdiction is fundamental in every proceeding before any Court. What determines jurisdiction majorly is the claim of the plaintiff or the applicant. It is the nature of the claim and not the parties, that is fundamental in the determination of which Court can entertain the case. Under the Constitution of the Federal Republic of Nigeria, we now have the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory and the High Court of a State exercising jurisdiction over breaches of fundamental rights provided for in Chapter IV of the Constitution. Section 46(1) and (2) provides: "46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court 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." The reference to "a High Court" in this provision has created opportunity for any of the co-ordinate High Courts in a state where the breach occurs to handle or entertain it. The only rider is that there are issues of special jurisdiction as conferred on the Federal High Court and the National Industrial Court. Any breach of the fundamental rights that relates to the special or exclusive jurisdiction of any of the Courts will be handled exclusively by such a Court. It is obvious that baring that fact any other breach of the fundamental rights can be entertained by any of the High Courts, as the Courts share concurrent jurisdiction in fundamental rights enforcement."</span>per ADAH, J.C.A. (Pp. 9-11, Paras. E-C) - read in context

3 2. CONSTITUTIONAL LAW - RIGHT TO PERSONAL LIBERTY: Constitutional right of an accused person to personal liberty <span style="font-size: 12px;">"Under our Constitution, the liberty of every Nigerian is guaranteed. Section 35 (1) of the 1999 Constitution of Nigeria provides as follows:- "35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a 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 order of a Court or in order to secure the fulfillment 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; (d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare; (e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drug or alcohol or vagrant, for the purpose of their care or treatment or the protection of the community; or (f) for the purpose of preventing the unlawful entry of any person into Nigeria or effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto. Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence." There is from the constitutional provision no room for any arbitrary arrest or detention of any person in Nigeria. There must be a prevalence of any of the excepted instances therein for any person to be arrested. Anything short of that is clearly in breach of the right of the individual to liberty. In the instant case, the appellants had no justifiable reason to cause the arrest and detention of the 1st respondent on that day. When he was arrested on 30/11/2014, he was not released until 3rd December, 2014, which was excess of what is tolerated by the Constitution. The right of the 1st respondent, it is proven was rudely breached and he is entitled to enforce his right under Section 46 of the 1999 Constitution. The findings of the trial Court that the 1st respondent's right was breached is unassailable."</span>per ADAH, J.C.A. (Pp , Paras. A-B) - read in context

4 3. EVIDENCE - EVALUATION OF EVIDENCE: Duty of the trial Court as regards perception, evaluation and findings of fact <span style="font-size: 12px;">"In every case, evaluation of evidence is the roadmap to justice. Evaluation of evidence has to do with the assessment of the evidence adduced so as to rate it in terms of the value required for the proof of the claim before the Court. This in all respect involves a reasoned preference of one piece of evidence to the other. The whole essence is the appraisal of the evidence and the ascription of probative value to the evidence resulting in the finding of facts. Evidence to be evaluated must be credible and accepted evidence brought before the Court in line with the claim of the parties as defined by their pleadings or as in the instant case, the affidavits and the statement in support of the application. In the case of Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) 422, the Supreme Court per Mukhtar, JSC held that a Court in evaluating evidence must take into consideration every little aspect of it, and the surrounding factors. It is not for the judge to accept evidence hook, line and sinker without weighing, its preponderance and probability. To have an intimate understanding of what evaluation means, Okoro, JSC in Akinbade & Anor. V. Babatunde & Ors (2017) LPELR (SC) held: "Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji v. Odofin (1978) 4 SC P. 91, Lafia Local Government v. The Executive Governor of Nasarawa State & Ors. (2012) LPELR (SC) (2012) 17 NWLR (Pt. 1328) 94. Evaluation involves receiving and criticizing as well as estimating the evidence, and ascription of value to same so that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe v. Layiwola ldowu (2011) LPELR (SC); (2011) 17 NWLR (Pt. 1276) 422."</span>Per ADAH, J.C.A. (Pp , Paras. E-C) - read in context

5 4. EVIDENCE - AFFIDAVIT EVIDENCE: How to resolve conflicts in affidavit evidence in an action for enforcement of fundamental rights <span style="font-size: 12px;">"...the learned counsel for the 1st respondent further submitted and I believe it is correct that it is the rule that the fundamental rights actions are contested by affidavit evidence. It should be noted that in cases contested on affidavit evidence, the Court does not have the opportunity to assess the demeanor of witnesses and the benefit of having confusing evidence clarified by cross examination and re- examination is lacking. The Court also relies on the consistency of the affidavits before it to decide the case and certainly, it is not open to a Court of law to pick and choose which version of an affidavit to believe where a party's affidavit is not only self-contradictory but also is in conflict with that parties documentary evidence. It is truly to my mind, the law that in such a situation of crisis, the Court has only one duty and that is to attach - little or no weight to such affidavit. See Ajibare & Anor v. Akomolafe & Anor. (2011) LPELR 3948 (CA); The Administration General and Public Trustee Delta State & Anor. V. Ogogo & Anor. (2005) LPELR 7553 (CA), Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (pt. 820), P. 577, at Pp. 627 Paras E - F."</span>Per ADAH, J.C.A. (Pp , Paras. A-A) - read in context

6 STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of The Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/2645/2015 delivered on the 24th day of March, 2016 by Adepoju J. The case was originated at the trial Court through an Originating Motion seeking the following reliefs:- 1. A Declaration that the allegation of theft, arrest and handling over of the Applicant to the 3rd Respondent by the 1st and 2nd Respondents before any complaint to the 3rd Respondent and without evidence whatsoever was capricious, unwarranted, wrongful, unconstitutional and a breach of the 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 trumped up allegation of theft without proof was plotted and executed by the 1st and 2nd Respondents 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. 1

7 3. 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. 4. 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 amounted to False Imprisonment and thus a violation of the Applicant's right to personal liberty. 5. An Order of this Honourable Court awarding the sum of N100,000, (One Hundred Million Naira) only in favour of the Applicant against the Respondent jointly and severally for false imprisonment arising from the humiliation, embarrassment, intimidation, unsubstantiated allegation of theft, unlawful arrest and detention of the Applicant from 30th November to 3rd December, 2014 without trial. 6. An Order restraining the 3rd Respondent, its officers, servants, agents or howsoever named from further violating the Applicant's right to personal liberty secured and Guaranteed under Section 35 (1) of the 1999 Constitution of the Federal 2

8 Republic of Nigeria as amended and under the African Charter on Human and Peoples' Rights. 7. Cost of this action. 8. Any other reliefs. At the trial Court, the appellants as respondents filed before the trial Court separate notices of preliminary objection challenging the jurisdiction of the trial Court to hear and determine the case of the 1st respondent who was the applicant. The appellants in addition filed their respective counter processes and exhibits to defend the merit of the application before the trial Court. The trial Court, after adopting and hearing of arguments on the preliminary objection and the substantive application by parties, delivered her ruling; dismissing the preliminary objection of the appellants on the ground that "the applicant's action cannot be given the coloration of labour/employment matter in order to confer jurisdiction on the National Industrial Court" and on the substantive claim granted ONLY reliefs A, C and D claimed by the applicant. Aggrieved by this decision the appellants appealed to this Court. The record was transmitted to this Court on 28/04/

9 The appellants filed their brief of argument on 10/06/2016 while the 1st respondent filed his brief on 18/01/2018 but deemed on 25/01/2018. The appellants filed a reply to the 1st respondent brief on 23/01/2018 but deemed properly filed and served on 25/01/2018. At the hearing of the appeal on 30/10/2018, the contending parties adopted their respective briefs and reliefs. The appellants distilled four issues for consideration. These four issues are couched as follows: 1. Whether having regard to the subject matter, claims, parties and/or initiating process in this case, the learned trial Judge was wrong to have assumed jurisdiction to entertain and determine the case. (Ground 1, 2, 3, 10, 11, 12) 2. Whether the trial Court wrongly evaluated the evidence adduced by the parties in this case and thus entered a perverse decision against the weight of evidence and wrongly granted the 1st respondent's claims. (Ground 4, 5, 6, 7, 8). 3. Whether the Judgment of the trial Court was perverse when it granted reliefs A, C and D against the appellant in spite of its finding that the 2nd respondent was liable for the arbitrary, shoddy investigation and detention of the 1st respondent. (Ground 9). 4

10 4. Whether the trial Court was right when she held that the 1st - 3rd respondents (Appellants and 2nd Respondent herein) are liable for false imprisonment and granted reliefs A, C, D against them notwithstanding that a claim of false imprisonment is an action in tort which is not enforceable under the Fundamental Rights (Enforcement Procedure) Rules (Ground 13). The 1st respondent in his own brief distilled the following five issues:- 1. Whether a State High Court or High Court of the Federal Capital Territory has jurisdiction to entertain a fundamental rights action wherein the Nigeria Police is a party. (Ground 10). 2. Whether the 1st respondent substantially complied with Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, in commencing his action at the lower Court. (Ground 1 and 12). 3. Whether Section 254 C (I) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) clothes the National Industrial Court with jurisdiction or indeed exclusive jurisdiction to hear and determine violation of right to personal liberty arising from the commission of criminal offence. (Grounds 1, 2, and 11). 5

11 4. Whether the Court below was right to enter judgment for the 1st respondent having regards to the facts and evidence adduced before it. (Ground 5, 6, 7 and 8). 5. Whether the lower Court was perverse in disbelieving the contradictory evidence presented by the appellants and believing the case of the 1st respondent. (Distilled from Grounds 4, 9 and 13). A look at the issues of the parties will show that they are same save for slight variations. I adopt the four issues distilled by the appellants for the consideration of this appeal. I start with issue one. Issue One: This issue deals with the jurisdiction of the trial Court. The learned counsel for the appellants in his argument canvassed that jurisdiction is very fundamental. That it is the originating processes of the applicants that the Court must consider to determine jurisdiction. He relied on the case of lnakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) The learned counsel contended further that the alleged breach of right was at the work place of the 1st respondent. That the infringement of the right was rooted in his employment and 6

12 that it arose and was connected to the employment of the 1st respondent. He relied on Sections 35(1) (c) and 46 (1),(2) of the 1999 Constitution. That under Section 254 C (I) (d) of the Constitution, it is the National Industrial Court that has exclusive jurisdiction over fundamental rights cases arising out of or connected with the workplace. He further relied on the decisions of this Court in the cases of the Federal Ministry of Health v. The Trade Union Members of the Joint Health Sectors Unions & Ors. (2014) LPELR (CA); and Gyang Yakubu Pam & Ors v. Ahmadu Bello University & Ors. (2013) LPELR (CA). The counsel contended that rights enforcement is connected to the applicants' employment. Furthermore, he contended that the composition of the parties in the case divested the trial Court of the jurisdiction to entertain the case. The learned counsel went into an explosive argument on the issue of whether the party that is an agent of the Federal Government can be sued before the trial Court. He cited the cases of NEPA v. Edegbero (2003) 1 M JSC 6a (2002) 18 NWLR (Pt. 798) 79 and Benson Agbule v. Warri 7

13 Refinery & Petrochemical Co. Ltd (2013) 6 NWLR (Pt. 1350) 318. He urged the Court to resolve this issue in favour of the appellants and set aside the judgment of the trial Court. The 1st respondent submitted that there is no statute or case in Nigeria that forbids the Nigeria Police from appearing or being joined as a party in an action before a State High Court for the enforcement of fundamental rights arising from unlawful arrest and detention of a Nigerian citizen. That the fact that an institution is an agency of the Federal Government does not ipso facto exclude that institution from being sued at the State High Court or the High Court of the Federal Capital Territory, except the subject matter of the suit falls exclusively within the items listed in Section 251 of the 1999 Constitution. That even agencies like the Nigeria National Petroleum Corporation and the Central Bank of Nigeria in matters of simple contract or land matters can be sued in State High Court. He contended also that there was no feature in the 1st respondent's case at the lower Court that lent it to the exclusive jurisdiction of the Federal High Court. 8

14 The appellants have contended that for the lower Court to exercise jurisdiction, the 2nd respondent ought to be a party to the suit. The Supreme Court in the case of Fajemirokun v. C.B. Nig. Ltd (2009) 5 NWLR (Pt. 1135) 588 and this Honourable Court in the case of Nwangwu v. Duru (2002) 2 NWLR (Pt. 751) 265 at affirmed the fact that the Nigeria Police is a necessary party in a fundamental rights action arising from unlawful arrest and detention. That since the 1st respondent claimed against the appellant and the 2nd respondent jointly and severally, it is difficult to see how the 2nd respondent cannot be sued at the lower Court in a fundamental rights action. He urged the Court to discountenance the submission of the appellant on this issue and hold that a fundamental human rights action instituted at a State High Court or High Court of the FCT with the Nigeria Police as a party is competent. Jurisdiction is fundamental in every proceeding before any Court. What determines jurisdiction majorly is the claim of the plaintiff or the applicant. It is the nature of the claim and not the parties, that is fundamental in the determination of which Court can entertain the case. 9

15 Under the Constitution of the Federal Republic of Nigeria, we now have the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory and the High Court of a State exercising jurisdiction over breaches of fundamental rights provided for in Chapter IV of the Constitution. Section 46(1) and (2) provides: "46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court 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." The reference to "a High Court" in this provision has created opportunity for any of the co-ordinate High Courts in a state where the breach occurs to handle or entertain it. 10

16 The only rider is that there are issues of special jurisdiction as conferred on the Federal High Court and the National Industrial Court. Any breach of the fundamental rights that relates to the special or exclusive jurisdiction of any of the Courts will be handled exclusively by such a Court. It is obvious that baring that fact any other breach of the fundamental rights can be entertained by any of the High Courts, as the Courts share concurrent jurisdiction in fundamental rights enforcement. In the instant case, the complaint of the 1st respondent from the processes filed at the trial Court is related to his arrest and detention. It has nothing to do with employment as insinuated by the appellant. The applicant at the lower Court clearly from his processes averred that he was arrested and detained on the suspicion of commission of an offence of theft. The nature of the complaint makes it clear that the trial Court and not the National Industrial Court has the jurisdiction to entertain the case. The lower Court therefore is the appropriate Court to hear and determine the complaint before the Court. This issue is therefore resolved against the appellant. 11

17 Issues Two, Three and Four: These issues are linked together. They deal with whether there was wrongful evaluation of evidence; whether the judgment of the Court below was perverse and whether a claim of false imprisonment should be brought under the fundamental rights procedure or under tort. The learned counsel for the appellants in his Brief submitted that contrary to the decision of the trial Court there were no material contradictions in the affidavit evidence of the appellants. That what was referred to as contradictions by the trial Court were minor discrepancies and that discrepancies are different from contradictions. He relied on the cases of Gabriel v. State (1989) 5 NWLR (Pt. 122) 457; Kachi v. State (2015) 9 NWLR (Pt 1464) 213 and Ogoala v. State (1991) 2 NWLR (Pt 175) 509. The learned counsel canvassed that the trial Court wrongly evaluated the evidence adduced by the parties thereby occasioning miscarriage of justice. He contended further that the trial Court in spite of its findings that the 2nd respondent was liable for the arrest and detention of the 1st respondent 12

18 still granted reliefs A, C & D. That the trial Court wrongly awarded reliefs A, C & D against the appellants despite the fact that a claim of false imprisonment is not Enforceable under the fundamental Rights Enforcement Procedure. He urged the Court to resolve all these issues in favour of the appellants. The respondent canvassed that an application for the enforcement of fundamental rights does not become incompetent merely because it does not have the reliefs stated on the face of the application since such application has an accompanying statement stating the reliefs sought. He submitted that the substantive law on where the reliefs in an application for the enforcement of fundamental rights brought pursuant to the Fundamental Rights Enforcement Procedure Rules, 2009 is to be stated is Order II Rule 3 of the Rules. That the 1st respondent substantially complied with Order II Rule 3 by accompanying his application with a statement setting out his name and description, the reliefs sought, the ground upon which the reliefs are sought, and supporting affidavit setting out the facts upon which the application is made. 13

19 That the 1st respondent herein did not commence his action at the lower Court via a motion on notice but through a notice of an application for an order enforcing his right, which is exactly in conformity with Form 1 attached to the Rules. The learned counsel for the 1st respondent canvassed that for the National Industrial Court to exercise exclusive jurisdiction under Section 254C (I) (d) of the 1999 Constitution (as amended), the cause or matter must be civil and relate to, pertain to, or connect with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, or industrial relations and not to offences or crimes. Employment is a civil contract between an employer and an employee. That key phrases used in Section 254 C (I) (d) of the Constitution are "connected with," "related to" and "arising from". That for a matter to arise from, relate to or connect with another, one must be an offshoot of the other or accessory to, or an integral part of the other. He contended that the unlawful arrest and detention of the 1st respondent arose from, related to and connected with the criminal allegation of theft 14

20 leveled against him by the appellants and not to his contract of employment with the appellants or any labour or industrial issue. The learned counsel further submitted that the nature of fundamental rights issues envisaged under Section 254 C (I)(d) of the 1999 Constitution that could vest exclusive jurisdiction on the National Industrial Court are civil causes and matters such discrimination at work places based on gender, religion, ethnicity; right to form or belong to workers' union, right to receive equal pay for equal work done or such other violation of a worker's right founded on civil causes and matters and upon contract of employment. That crimes or criminal allegations are offences against the state which the state must investigate and prosecute where ever they occur including a workplace. That where there is an allegation of breach of fundamental right arising from a crime or allegation of crime at a workplace, the National Industrial Court does not have jurisdiction let alone exclusive jurisdiction to hear and determine such breach. It is the Federal High Court; the High Court of a State and the High Court of the Federal Capital Territory 15

21 that are clothed with jurisdiction to entertain such actions. He urged the Court to uphold the findings of the trial Court on these issues. On these issues, the learned counsel for the 1st respondent further submitted and I believe it is correct that it is the rule that the fundamental rights actions are contested by affidavit evidence. It should be noted that in cases contested on affidavit evidence, the Court does not have the opportunity to assess the demeanor of witnesses and the benefit of having confusing evidence clarified by cross examination and re- examination is lacking. The Court also relies on the consistency of the affidavits before it to decide the case and certainly, it is not open to a Court of law to pick and choose which version of an affidavit to believe where a party's affidavit is not only self-contradictory but also is in conflict with that parties documentary evidence. It is truly to my mind, the law that in such a situation of crisis, the Court has only one duty and that is to attach -little or no weight to such affidavit. See Ajibare & Anor v. Akomolafe & Anor. (2011) LPELR 3948 (CA); The Administration General and Public 16

22 Trustee Delta State & Anor. V. Ogogo & Anor. (2005) LPELR 7553 (CA), Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (pt. 820), P. 577, at Pp. 627 Paras E - F. The learned counsel for the 1st respondent contended further that contrary to the argument of the appellants in their brief of argument that the Court below was perverse when it rejected their counter affidavits and documentary evidence as grossly contradictory and therefore not worthy of belief by any reasonable Tribunal. The trial Court was indeed justified to have rejected the evidence of the appellants both documentary and oral for being replete with unexplained material contradictions. No Court of law can base its decision on a contradictory affidavit, he submitted. He urged this Court to affirm the decision of the lower Court and dismiss this appeal. In every case, evaluation of evidence is the roadmap to justice. Evaluation of evidence has to do with the assessment of the evidence adduced so as to rate it in terms of the value required for the proof of the claim before the Court. This in all respect involves a reasoned preference of one piece of evidence to the other. 17

23 The whole essence is the appraisal of the evidence and the ascription of probative value to the evidence resulting in the finding of facts. Evidence to be evaluated must be credible and accepted evidence brought before the Court in line with the claim of the parties as defined by their pleadings or as in the instant case, the affidavits and the statement in support of the application. In the case of Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) 422, the Supreme Court per Mukhtar, JSC held that a Court in evaluating evidence must take into consideration every little aspect of it, and the surrounding factors. It is not for the judge to accept evidence hook, line and sinker without weighing, its preponderance and probability. To have an intimate understanding of what evaluation means, Okoro, JSC in Akinbade & Anor. V. Babatunde & Ors (2017) LPELR (SC) held: "Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji v. Odofin (1978) 4 SC P. 91, Lafia Local Government v. The Executive Governor of 18

24 Nasarawa State & Ors. (2012) LPELR (SC) (2012) 17 NWLR (Pt. 1328) 94. Evaluation involves receiving and criticizing as well as estimating the evidence, and ascription of value to same so that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe v. Layiwola ldowu (2011) LPELR (SC); (2011) 17 NWLR (Pt. 1276) 422." In the instant case, the trial Court in its judgment held: "From the affidavit evidence of the applicant, his claim is not based on trade dispute and cannot be given that coloration simply because he is an employee of the 1st respondent. The applicant has initiated this action as an individual and in his private capacity and not a collective action and neither did he initiate this action as a member of a union. It is therefore not a labour matter. The applicant's grievance is in the main against his arbitrary arrest, unlawful detention and false allegation of theft by the 1st and 2nd respondents. The words of Section 254 C (I) (d) of the 1999 Constitution as amended 19

25 which is already set out in this ruling deals with the exclusive jurisdiction of the National Industrial Court to entertain and determine civil case and matters relating to or connected with dispute over interpretation and application of the provision of Chapter IV of the Constitution as it relates to employment/labour, industrial relations trade unionism, employers association or any other matter which has jurisdiction to hear and determine. The affidavit evidence of the applicant revealed that the 1st and 2nd respondents actually set the machinery in motion for the detention of the applicant by the 3rd respondent. Their acts went beyond mere reporting to the 3rd respondent. They arrested the applicant without a just cause. The 1st - 3rd respondents are liable for false imprisonment. Consequently applicant's claim for declarations in A, C and D of the relief sought succeed. 20

26 In the relief the applicant claimed that the allegation of theft against him plotted and executed by the 1st and the 2nd respondents to blackmail him is speculative, it was not backed-up with any evidence. The issue before the Court is on the arbitrary arrest shoddy investigation of the allegation of attempted theft against the applicant with the attendant detention by the 3rd respondent. Also the applicant has not established that there was bad blood between him and the 1st and 2nd respondents. The issue of plotting and executing the charge therefore did not arise. However the claim for declaration succeeds to the extent that the harassment, intimidation, humiliation and arrest of the applicant by the 1st and 2nd respondents on the allegation of theft against the applicant were unjustifiable and wicked and I so declare." This ruling of the trial court is clear, consistent and correct. The applicant at the trial Court narrated in his affidavit the story that he was an employee of the 1st respondent. The letter of employment annexed to his affidavit as Exhibit OGI shows he was employed by the 1st respondent as a labourer. He worked with the 1st respondent and in April 2013 he was given a Long Service Award which was 21

27 annexed as Exhibit DG2. This is evidence of good and responsible service to the appellants. He said he was deployed as a Generator Attendant before his termination in December He averred that he was on night duty and in his office when he was arrested. That he was then in charge of taking care of the 1st appellant's Generating Sets and worked under Mr. Igor the Head of Department. He was never a security guard. His claim that he was on night duty was not countered. He was retired on ground of redundancy as shown in Exhibits DG 3 and DG 4. He was on these two Exhibits which were documents written by the 1st appellant, designated as Generator Attendant. This confirms the story of the 1st respondent in this case. He was not retired from his work on ground of any theft or misconduct. The witness of the 1st appellant alleged that he met many people at the premises of the 1st appellant in the night of the incident. That he luckily apprehended one of them. He said at paragraph 11 (k) to (p) of counter affidavit as follows:- "k) After the trucks escaped, we noticed that there were several men lurking/hiding around the factory. 22

28 While some were concealed in the shadows others were not. l) We immediately chased after the persons and luckily we were able to apprehend one man who turned out to be a serving Police man by name Nansel Niekwap. m) Upon apprehending him, he could not give any explanation for his presence at the said Pipeline Factory at the time which was about 12 midnight. n) We immediately proceeded with him to the Bwari Divisional Police Station where we reported the incidence and we as well as the said Nansel Nietkwap volunteered statements. o) In the statement made at about 2am on the 1st of December, 2014 by the said Police Officer who was apprehended. Nansel Nietkwap, the Applicant (as well as several other staff of the 1st respondent) was mentioned as one of his co-conspirators/accomplices in their attempt to steal the pipe and other raw materials at the Pipeline Factory between the night of the 30th of November, 2014 and the morning of the 1st of December, The certified true copy of the statement of the said Nansel Nietkwap is hereby attached as Exhibit A. 23

29 p) The Police Officers from the Bwari Divisional Police Station immediately went back to the Pipeline Factory and arrested three of the security personnel on duty when two trailer trucks were allowed to drive in and out of the Pipeline Factory at about midnight unimpeded. The Applicant was also arrested." Exhibit A is at page 47 of the Record of Appeal. In Exhibit A the culprit arrested who was Nansel Nietkwap did not mention the name of the 1st respondent (applicant) at the trial Court. The Exhibit did not mention of the 1st respondent all through. By paragraph 11 (p), the witness deposed that the Police arrested three security personnel. That the applicant (1st respondent) was also arrested. This clearly confirms the story of the applicant (1st respondent) that he was arrested by the Police from his place of work on the day in question. The question is why did the witness allow or orchestrate the arrest of the applicant who was not doing security duties and was not illegally on the premises at the time. The said witness said materially in paragraphs 19, 21 and 25 of the counter affidavit as follows: 24

30 "19. No item could have been recovered from the applicant because the incident which occurred at the Pipeline Factory between the night of the 30th of November, 2014 and the morning of 1st December, 2014 was an attempted theft which was foiled by the intervention of the 2nd respondent and myself. 21. The applicant was to be charged to Court on the 3rd December 2014 for the offence of criminal conspiracy and attempted theft within 48 hours of his. arrest vide a First Information Report. The Certified True Copy of this First Information Report is hereby attached as Exhibit K. The 3rd respondent prepared the First Information Report and took the applicant to Court. But before the First Information Report was filed, the 1st respondent withdrew its complaint and they were therefore immediately released on the 3rd December, The 1st respondent duly withdrew its complaint against the applicant after it realized that it did not lose anything as theft was not successful. There was only an attempted theft which failed in timely fashion. The 1st respondent's decision to withdraw its complaint was also actuated by the fact that pressing charges for the said attempted theft would have been time consuming distracting and expensive." 25

31 From this, it is so obvious that the 1st appellant had no basis for the arrest and the persecution of the 1st respondent in this case. Under our Constitution, the liberty of every Nigerian is guaranteed. Section 35 (1) of the 1999 Constitution of Nigeria provides as follows:- "35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a 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 order of a Court or in order to secure the fulfillment 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; (d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare; 26

32 (e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drug or alcohol or vagrant, for the purpose of their care or treatment or the protection of the community; or (f) for the purpose of preventing the unlawful entry of any person into Nigeria or effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto. Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence." There is from the constitutional provision no room for any arbitrary arrest or detention of any person in Nigeria. There must be a prevalence of any of the excepted instances therein for any person to be arrested. Anything short of that is clearly in breach of the right of the individual to liberty. In the instant case, the appellants had no justifiable reason to cause the arrest and detention of the 1st respondent on that day. 27

33 When he was arrested on 30/11/2014, he was not released until 3rd December, 2014, which was excess of what is tolerated by the Constitution. The right of the 1st respondent, it is proven was rudely breached and he is entitled to enforce his right under Section 46 of the 1999 Constitution. The findings of the trial Court that the 1st respondent's right was breached is unassailable. The learned trial judge was right in his evaluation of evidence in this case. These issues therefore are all resolved against the appellants. From the foregoing therefore, it is my view that there is no merit in this appeal. The appeal is therefore dismissed for lack of merit. The appellants are to pay a cost of N100,000 to the 1st respondent. ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment just delivered by my learned brother Adah JCA. My Lord had exhaustively considered the issues for determination and the authorities cited. I agree with the reasoning and conclusion reached therein. I also find no merit in the appeal and I dismiss it. I abide by the Orders as to costs. MOHAMMED BABA IDRIS, J.C.A.: I agree

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35 Appearances: Tunde BabaIola, Esq., with him, Sunday Onubi Esq., Olamide Adekunle, Esq., and A.J. Akpanudoedehe, Esq. For Appellant(s) Steve Ekeh, Esq., for the 1st Respondent. 2nd Respondent served but not represented. For Respondent(s)