IN THE COURT OF APPEAL

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

THIS FRIDAY, THE 4TH DAY OF, NOVEMBER, 2016

BEFORE THEIR LORDSHIPS:   

SIDI DAUDA BAGE                              JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL       JUSTICE, COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU      JUSTICE, COURT OF APPEAL

         APPEAL NO. CA/L/1106/2014

BETWEEN:

FAITH OKAFOR                                          …… ………     APPELLANT

          AND           

LAGOS STATE GOVERNMENT                   …….. ……  RESPONDENTS

ATTORNEY GENERAL, LAGOS STATE                   

LEAD JUDGMENT (DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, JCA)

PROLEGOMENON

25th May 2013 was a Saturday. It was the last Saturday in the month of May. As they are wont to do in Lagos, it was a day set aside for the cleaning of the environment with the attendant restriction in movement between the hours of seven and ten in the forenoon. On the said day, the Appellant was arrested for violating the restriction in movement directive. She was bundled into a “Black Maria” with other persons who were arrested and they were arraigned before the Special Offences Court where she pleaded guilty, was convicted and fined N2, 000. 00 for “wandering, loitering and walking about in defiance of the monthly compulsory environmental sanitation exercise.”

The Appellant paid the fine imposed and subsequently instituted proceedings at the High Court of Lagos State in Suit No. M/548/2013: FAITH OKAFOR vs. LAGOS STATE GOVERNMENT & ANOR. for the enforcement of her fundamental rights to dignity of human person, personal liberty and freedom of movement. In the Amended Statement filed in support of the application, the Appellant claimed the following reliefs:

“1.1 A DECLARATION that the arrest and detention and transportation of the Applicant in the back of a vehicle which is of a metal cage with very little ventilation and light ‘Black Maria’ by officials and/or agents of the 1st respondent (KAI brigade) on 25 May 2013 for a purported environmental sanitation offence violates the applicant’s fundamental rights to respect for the dignity of her person, personal liberty and freedom of movement as provided under sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Articles 4, 5, 6 and 12 (1) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act CAP A9, Laws of the Federation of Nigeria, 2004 and is therefore unlawful, illegal and unconstitutional.

1.2 A DECLARATION that the purported trial and conviction of the Applicant for a purported environmental sanitation offence violates the applicant’s fundamental rights to fair hearing as provided under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act CAP A9, Laws of the Federation of Nigeria, 2004 and is therefore unlawful, illegal and unconstitutional.

1.3 A DECLARATION that the 1st respondent’s directive for people in Lagos State to stay at home and not to move about thereby restricting movement of persons in Lagos State within the hours of 9.00 am to 10.00 am on the last Saturday of every month is unlawful, illegal and unconstitutional.

1.4 AN ORDER restraining the respondents from further restricting the Applicant’s or anyone’s movement within Lagos State at any time or day whatsoever on the basis of environmental sanitation.

1.5 AN ORDER restraining the respondents from further arresting the Applicant or anyone whatsoever on the basis of a purported environmental sanitation offence or trying anyone in the special offences court without conforming to the dictates of the Constitution.

1.6 Refund of the N2000 collected from the applicant as fine for a purported environmental sanitation offence.

1.7 EXEMPLARY DAMAGES in the sum of              N5, 000, 000. 00(Five Million Naira) against the Respondents.

1.8 And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”

  (See pages 49- 50 of the Records)

Upon being served with the originating processes, the Respondents filed a Counter Affidavit in opposition. After the inter partes hearing of the said application for fundamental rights, the lower court, Coram Judice:      R. I. B. Adebiyi, J. in its Ruling delivered on 1st July 2014 dismissed the Appellant’s application in its entirety. The said Ruling is at pages 89-101 of the Records. The Appellant being dissatisfied with some parts of the said decision appealed against the same.

THE APPEAL

The Record of Appeal was compiled and transmitted and the parties filed and exchanged briefs of argument. The Appellant’s Brief was filed on 31st December 2014. The Appellant also filed a Reply Brief on 21st April 2016 but the same was deemed as properly filed and served on 10th October 2016. The Respondent’s Brief of argument was filed on 4th February 2016 but deemed as properly filed and served on 5th April 2016.

At the hearing of the appeal Ikenna Okoli, Esq., learned counsel for the Appellant adopted and relied on the Briefs filed by the Appellant. He urged the court to allow the appeal, set aside the decision of the lower court and grant all the reliefs sought by the Appellant. The Respondents were represented by the Hon. Attorney-General of Lagos State, Adeniyi Kazeem, Esq. He equally adopted and relied on the Respondents’ Brief in urging the court to dismiss the appeal and affirm the decision of the lower court.

The Appellant formulated four issues for determination as follows:

i. Whether the appellant’s reliefs 1.2 and 1.3 before the trial court falls within the ambit of fundamental rights Rules?

ii. Whether section 41 (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended can come in aid of the respondents in this matter?

iii. Whether the appellant was duly charged under the extant Environmental Sanitation Law of Lagos State?

iv. Whether the appellant is not entitled to the reliefs she claimed before the trial court?

The Respondents distilled three issues for determination namely:

i. Whether the lower court is (not) right in refusing the grant of all the Appellant’s prayers.

ii. Having regards to the reliefs sought by the Appellant in her Application for the Enforcement of her Fundamental Human Right, she ought not to have relied on the strength of her case for the claims to survive; and

iii. Whether the lower court’s reliance on a purported invalid law would vitiate its judgment.

I have given due consideration to the grounds of appeal and the respective issues distilled by the parties. I find the issues distilled by the Appellant apt as it succinctly captures the complaints in the grounds of appeal. The said issues as distilled by the Appellant will therefore be the beacon light for the consideration and resolution of this appeal.

ISSUE NUMBER ONE

Whether the Appellant’s Reliefs 1.2 and 1.3 before the trial court falls within the ambit of fundamental rights Rules?

The Appellant argues that the lower court erred when it held that reliefs 1.2 and 1.3 which she claimed were not cognizable under the fundamental rights enforcement procedure and that reliefs 1.2 was an attack on the Magistrate Court which ought to be subject of an appeal, while Relief 1.3 was not personal to the Appellant. The Appellant referred to Section 36 (1) & (6) of the 1999 Constitution and Article 7 (1) & (2) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act and submitted that they created a right which could be enforced and where there has been an infraction of the right in the trial of the Appellant, the Appellant could challenge the infraction in an action for enforcement of her fundamental rights pursuant to the stipulations of Section 46 (1) of the 1999 Constitution. It was posited that if the infraction can be ventilated on an appeal against the decision of the Magistrate Court, then it was also within the Appellant’s right to seek redress under the fundamental rights enforcement procedure. The case of FRN vs. IFEGWU (2003) 15 NWLR (PT 842) 113 at 178, 186 and 199 was referred to.

It is the further submission of the Appellant that Section 41 (1) of the 1999 Constitution guarantees freedom of movement and that the directive of the Lagos State Government for people not to move about within certain hours on a certain day, which directive is not backed by any law, is a breach of the provisions of Section 41 (1) of the 1999 Constitution. It was opined that since it was pursuant to the said illegal and unconstitutional directive that the Appellant was arrested, tried and convicted for a non-existent offence, it was an infringement of the Appellant’s right to freedom of movement.

The Respondent argues that the Appellant in Relief 1.2 challenges the appropriateness and jurisdiction of the Special Offences Court based on the procedure followed by the court and that the prayer expressly challenged the assumption of jurisdiction by the Special Offences Court. It was contended that any grouse with any judicial or quasi-judicial process/body may only be ventilated by way of an appeal or judicial review. The cases of ACB PLC vs. NWAIGWE (2011) 7 NWLR (PT 1246) 380 at 396 and OREDOYIN vs. AROWOLO (1989) 4 NWLR (PT 114) 172 at 211 were cited in support.

It is the further submission of the Respondent that even if as contended by the Appellant there was an issue of fair hearing in the relief, it would still be unavailing because it is on record that the Appellant had full knowledge of why she was arrested and arraigned in court as deposed to in paragraphs 3, 5, 7, 9 and 13 of her Affidavit. The cases of KANDA vs. GOVERNMENT OF MALAYSIA (1962) AC 322 at 327 and SADIQ vs. BUNDI (1991) 8 NWLR (PT 210) 443 at 463 were relied upon.

On Relief 1.3 claimed by the Appellant, the Respondent argues that the claim is bizarre and unfounded as the Appellant’s grouse is that the directives were not in tandem with the provisions of the Constitution, making the same illegal and unlawful.

RESOLUTION OF ISSUE NUMBER ONE

The gravamina in the issue is the holding of the lower court that Reliefs 1.2 and 1.3 claimed by the Appellant are not cognizable under the specialized procedure for the enforcement of fundamental rights. The lower court stated as follows at pages 98-99 of the Records.

“The Court finds that the Rights sought by the application reliefs 1.11, 1.4 and 1.5 and ancillary reliefs 1.6 and 1.7 are reliefs which fall within the Fundamental Rights Enforcement Procedure Rules.

The Relief stated 1.2 is an attack on the competence of the proceedings before the Magistrate Court which ought to be a subject of appeal.

Reliefs 1.3 is a declaratory relief which are not personal to the applicant or a relief within the ambit of the Fundamental Rights Rules and therefore cannot be considered within this application.

Reliefs 1.2 and 1.3 as contained in the applicant’s amended statement in support of the application are therefore hereby struck out.”

I would for ease of reference reproduce Relief 1.2. It reads:

“1.2 A DECLARATION that the purported trial and conviction of the applicant for a purported environmental sanitation offence violates the applicant’s fundamental rights to fair hearing as provided under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act CAP A9, Laws of the Federation of Nigeria, 2004 and is therefore unlawful, illegal and unconstitutional.”

Now is the summation of the lower court that the above relief ought to be subject of appeal proceedings correct? In order for a cause of action to be justifiable under the Fundamental Rights (Enforcement Procedure) Rules, the cause of action must come within the ambit of the enforcement of any Fundamental Right contained in Chapter IV of the Constitution in the sense that the applicant alleges that any of the provisions of the Chapter has been, is being or is likely to be contravened in relation to him. See FRN vs. IFEGWU (supra).

It cannot be confuted that the relief claimed as Relief 1.2 alleges violation of the right to fair hearing under Section 36 of the 1999 Constitution. It clearly falls within the ambit of the Fundamental Rights under Chapter IV of the Constitution. The lower court has however reasoned that since the alleged violation of the said right occurred in the circumstances leading on to the trial and conviction of the Appellant by the Special Offences Court that the proper remedy to pursue is to appeal against the decision of the said Court and not to resort to a fresh action to enforce the Fundamental Right. Now, could the Appellant have proceeded as she had done with the action for the enforcement of her Fundamental Rights or was the only option open to her the filing of an appeal against the decision of the Special Offence Court?

It seems that the course pursued by the Appellant finds support in the case of FRN vs. IFEGWU (2003) LPELR (3173) 1 at 21-22 or (2003) 15 NWLR (PT 842) 133 at 18 E-H where Uwaifo, JSC stated as follows:

“It should be remembered that the action brought by the respondent in the Federal High Court is not to further appeal from the decision of the Special Appeal Tribunal. It is an action brought under the fundamental rights procedure to show that the prosecution was done in violation of the right guaranteed to the respondent under the … Constitution. In other words, that his fundamental right … had been contravened by the Tribunal sitting in Lagos State when it convicted him … But that did not terminate the respondent’s entitlement to seek appropriate redress for the alleged breach of his fundamental right arising from these proceedings in a competent court.”

I kowtow. It is beyond dispute that it was open to the Appellant to seek redress pursuant to the special jurisdiction conferred on the High Court under Section 46 of the 1999 Constitution. The lower court was therefore in error when it struck out Relief 1.2 on the ground that the Appellant should have pursued an appeal against the decision of the Special Offences Court.

The lower court struck out Relief 1.3 on the ground that it was not personal to the Appellant and that it did not fall within the ambit of the Fundamental Rights. The said Relief 1.3 is for:

“1.3 A DECLARATION that the 1st respondent’s directive for people in Lagos State to stay at home and not to move about thereby restricting movement of persons in Lagos State within the hours of       9.00 am to 10.00 am on the last Saturday of every month is unlawful, illegal and unconstitutional.

I iterate that for a cause of action to be cognizable under the Fundamental Rights enforcement procedure, the cause of action must come within the ambit of the enforcement of any right contained in Chapter IV of the Constitution in the sense that it alleges that any of the provisions of the Chapter has been, is being or is likely to be contravened. Relief 1.3 is clearly an enforcement of the right to freedom of movement enshrined in Section 41 (1) of the Constitution. The reasoning of the lower court that the relief was not personal to the Appellant seems to have overlooked the liberalization of the procedure and the overriding objectives for enforcement of Fundamental rights and that anybody, not necessarily the person whose right has been infringed can bring the application to enforce the right as stated in Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009

The lower court therefore got it wrong when it struck out Relief 1.3 on the ground that it was not personal to the Appellant and was not within the ambit of the Fundamental Rights Rules. The fact that I have held that the said Reliefs 1.2 and 1.3 were wrongly struck out by the lower court does not perforce mean that the said reliefs would succeed. We will still interrogate whether on the affidavit evidence the Appellant established the evisceration of the right to fair hearing and freedom of movement.

For now, it suffices to state that this issue number one is resolved in favour of the Appellant. The Appellant’s Reliefs 1.2 and 1.3 fall within the ambit of Fundamental Rights which could be enforced in an action under the Fundamental Rights (Enforcement Procedure) Rules.

ISSUE NUMBER TWO

Whether Section 41(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended can come in aid of the Respondents in this matter?

The Appellant submits that the lower court was in error when at pages 100-101 of the Records it held that the Appellant’s right to freedom of movement was not violated on account of the provisions of Section 41 (2) of the Constitution. It was contended that Section 41 (2) has no bearing on the case as there is no extant Environmental Law in Lagos which provides for restriction of movement such that it could be said to be a law reasonably justifiable in a democratic society. It was further argued that the Appellant was not charged for breaching any law whatsoever but for “wandering, loitering and walking about in defiance of the monthly compulsory environmental sanitation exercise.”

The Respondents submit that under Section 20 of the Constitution the State shall protect and improve the environment and that this gives backing to the Environmental Sanitation Enforcement Agency Law, 1991, Cap E6, Laws of Lagos State and the Environmental Sanitation Law, 2000, Cap. E5, Laws of Lagos State. It was stated that by Section 4 of the Environmental Sanitation Enforcement Agency Law, the Sanitation Officers are to carry out any other duties as may be directed by the Governor. It was posited that the provision justifies the restriction of movement on monthly sanitation day, the same having been directed by the Governor, even though the order that all residents of Lagos State must remain in their houses to observe the monthly sanitation may not be in any Law. It was further submitted that under Section 38 of the Environmental Sanitation Law, any person who commits a nuisance or offence under the Law may be arrested and by Section 7 of the Environmental Sanitation Enforcement Agency Law the Special Offences Court shall try all offenders.

RESOLUTION OF ISSUE NUMBER TWO

In arriving at the conclusion that the Appellant did not establish a violation of her right to freedom of movement the lower court held as follows:

“Further this court finds that the application’s right to freedom of movement as contained in Section 41 of the Constitution was not violated as Section 41(2) of the Constitution provides that nothing in subsection 1 shall invalidated [sic] any law that is reasonably justifiable in a democratic society. The environmental sanitation edict being a law which encourages care of the environmental, cleanliness and community serve [sic] by all citizens is found to be a reasonable and justifiable law.”

(See pages 100 – 101 of the Records.)

Section 41 (2) of the Constitution provides as follows:

“(2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a) imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or

(b) providing for the removal of any person from Nigeria to any other country to –

(i) be tried outside Nigeria for any criminal offence, or

(ii) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty:

Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.”

Now the above provision is not a carte blanche for a law that is reasonably justifiable in democratic society. It is qualified by what such law that impinges on the right to freedom of movement should dwell on, id est, imposing restriction on the movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria OR providing for the removal of any person from Nigeria for trial outside Nigeria or to serve a term of imprisonment outside Nigeria where there is a reciprocal agreement between Nigeria and such other country. There is nothing on the cold printed records remotely suggestive that the restriction of the movement of the Appellant was in order to prevent her from leaving Nigeria after having committed an offence or being reasonably suspected of having committed an offence in Nigeria; neither was it mooted that it was in order to deport the Appellant for her to stand trial or serve a term of imprisonment outside Nigeria. Therefore, I entirely agree with the Appellant’s Counsel that Section 41 (2) of the 1999 Constitution has no place in this matter.

I find worrisome the contention of the Respondents that the directive of the Governor can be equated to a Law for which criminal sanctions will lie, and a person tried and convicted for the offence of violating the directives of the Governor. The Respondents submitted as follows in paragraph 4. 1. 20 of the Respondent’s Brief.

“4. 1. 20 My lords, it is humbly submitted that this particular provision of the law settles all the displeasures that may have erupted in the appellant with regards to her arrest and trial before the Special Court. It also explains how even though the law that all residents of Lagos State must remain in their houses to observe the monthly sanitation may not be resident in any written law, same still remains valid, having been directed by the Governor. It is worthy of note that the appellant at no point contested the existence of a directive restricting the movement of persons and vehicles on every last Saturday of the month within the State, save for the fact that is not contained in any law.”

I shudder at this submission which in its elastic ramification takes us back to the dark ages of the Hobbesian state of nature. Section 36 (12) of the 1999 Constitution provides that a person shall not be convicted for a criminal offence unless that offence is defined and the penalty therefor prescribed in a written law. The Respondents while conceding that there is no written law restricting movement of persons on environmental sanitation days and making it an offence argue that the restriction still remains valid having been directed by the Governor. I find it shocking that the disobedience of the directive of the Governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the Appellant and the fine imposed on her.

Inexorably, this issue number two must be resolved against the Respondents. The provisions of Section 41 (2) of the 1999 Constitution, on the peculiar facts and circumstances of the matter do not apply and the lower court was wrong to have imported and relied on the same.

ISSUE NUMBER THREE

Whether the Appellant was duly charged under the extant Environmental Sanitation Law of Lagos State?

The Appellant contends that no charge was brought against her for any violation of the Environmental Sanitation Law of Lagos State. It was posited that there is nothing in the Record of Proceedings at the Magistrate Court (Special Offences Court) which is at pages 83-86 of the Records showing the charge that was brought against her. The Appellant maintained that the Record of Proceedings at the Special Offences Court shows that they were arrested for wandering, loitering and walking about in defiance of the monthly compulsory environmental sanitation exercise. It was asserted that there is nothing in the extant Environmental Sanitation Law of 2001, Cap E5, Laws of Lagos State 2003 which creates any offence of/for wandering, loitering and walking about in defiance of the monthly compulsory sanitation exercise.

The Respondents submit that even if the lower court was wrong in referring to a repealed enactment as the law under which the Appellant was arrested, it was a slip or error that would not affect the judgment of the court. It was submitted that an appellate court examines whether the decision of the trial court was right and not whether the reason for the decision was right or wrong. The case of B.E.G.H vs. U.H.S & L. LTD (2011) 7 NWLR (PT 1246) 246 at 282 was referred to. It was further submitted that it is not every error in a judgment that will vitiate the judgment and that an appellate court will only interfere where there has been a miscarriage of justice. The cases of ADEOGUN vs. FASOGBON (2011) 8 NWLR (PT 1250) 427 at 450, AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) 3 NWLR (PT 1181) 338 at 357, SAPO vs. SUNMONU (2010) 11 NWLR (PT 1205) 374 at 412 and OLATUNBOSUN vs. THE STATE (2013) were cited in support.

RESOLUTION OF ISSUE NUMBER THREE

The Appellant’s grouse under this issue is with the finding of the lower court at page 100 of the Records that she was brought to court within a reasonable time on a charge of violation of the Environmental Sanitation Law, which has not been repealed. It seems to me that what calls for critical examination is the decision of the lower court as opposed to the reason for the decision. Whether the Environmental Sanitation Law has been repealed or still extant would not affect the decision of the lower court. This is on account of the stipulation of Section 30 of the Interpretation Act which provides that reference to an enactment which has been repealed and      re-enacted shall if the context so requires and unless the contrary intention appears be construed as a reference to the enactment so re-enacted.

Therefore if the Environmental Sanitation Law referred to by the lower court as not having been repealed has in fact been repealed, then the reference would by necessary implication be construed to be to the extant Environment Sanitation Law. In any event, it is hornbook law that an appellate court is concerned with whether a decision appealed against is right or wrong and not necessarily whether the reasons for the decision are right or wrong. See ODUKWE vs. OGUNBIYI (1998) 8 NWLR (PT 561) 339, ARISA vs. THE STATE (1988) 3 NWLR (PT 83) 386 and B.E G.H vs. U.H.S & L. LTD (Supra). What is more, where the decision of a court is found to be right on appeal, the reason given for arriving at the decision is immaterial: UBA LTD vs. ACHOR (1990) 6 NWLR (PT 156) 254 and DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99. Accordingly, this issue is resolved in favour of the Respondents.

ISSUE NUMBER FOUR

Whether the Appellant is not entitled to the reliefs she claimed before the trial court?

The Appellant argues that the lower court having found that Reliefs 1.4, 1.5, 1.6 and 1.7 fall within the Fundamental Rights (Enforcement Procedure) Rules was obligated to make specific findings and pronounce on the said reliefs but that it failed to do so. This court was invited to invoke Section 15 of the Court of Appeal Act and grant all the reliefs claimed by the Appellant, the same having been made out.

It was further submitted that paragraphs 4, 5, 6 and 8 of the Respondent’s Counter Affidavit having been struck out, there was nothing to contradict the depositions of the Appellant which should be accepted as true and establishing that the Appellant was arrested and treated inhumanely for a non-existent offence and convicted for a non-existent offence. It was opined that the humiliation and psychological trauma and the torture attendant to being conveyed in a Black Maria warrants the award              of exemplary damages.  It was submitted that the conduct of the Respondents which disclosed a flagrant disregard of the law was outrageous so as to merit punishment.  The case of ODOGU vs. A-G FEDERATION (1996) 6 NWLR (PT 456) 508 at 519 was referred to.

Replicando, the Respondents argue that the Appellant did not prove any violation of her fundamental rights.  It was stated that the Appellant was upon arrest informed of her offence which she fully understood and that she was arraigned in court within the time prescribed by the Constitution.  It was asserted that from the time the Appellant was arrested up till the time judgment was entered against her, her fundamental rights were respected.  The Record of Proceedings of the Special Offences Court at pages 83-86 of the Records was referred to as accurately depicting what happened in the court and that it did not disclose any violation of the Appellant’s right to fair hearing.

The Respondents submitted that the stipulations of Section 41 (1) of the Constitution indicate that the free movement therein granted refers to movement between the States of Nigeria particularly for the purpose of residency and not such movement within a State.  It was posited that by Section 24 of the Constitution every citizen of Nigeria has a duty to respect legitimate authorities and make positive and useful contributions to the advancement, progress and well-being of the community where he resides.  It was then stated that the Appellant having disregarded the directives of constituted authority is not entitled to any reliefs since she approached the Court with soiled hands.  The case of AFOLABI vs. MUDASHIRU (2010) 3 NWLR (PT 1181) 328 at 326 was relied upon for the proposition that he who seeks equity must do equity and must come with clean hands.

It is the further submission of the Respondents that the reliefs claimed by the Appellant are declaratory in nature and to be entitled to the reliefs the Appellant must show the existence of a legal right.  The cases of NWOKIDU vs. OKANU (2010) 3 NWLR (PT 1181) 362 at 390 and NACB vs. ACHAGWA (2010) 11 NWLR (PT 1205) 339 at 367 were relied upon.  The Respondents argued that the surviving paragraphs of their affidavit raised sufficient facts and that in any event it is not in all cases that uncontroverted facts deposed to in an affidavit will be taken as the whole truth.  It was stated that the burden of proof was on the Appellant and that she did not discharge the burden.  The cases of B. E. G. H. LTD vs. U. H. S. & LTD (supra) at 284, FRANCIS vs. CITEC INT’L ESTATE LTD (2010) 6 NWLR (PT 1219) 243 at 266 and CBN vs. AMAO (2010) 16 NWLR (PT 1219) 271 at 298 were referred to.  On the claim for exemplary damages, it was submitted that the Appellant did not prove that the conduct of the Respondents was most outrageous or in flagrant disregard of the law to entitle her to a grant of exemplary damages.  The cases of P.I.P.C.S. LTD vs. VLACHOS (2008) 4 NWLR (PT 1076) 1 at 29, G.K.F.I. (NIG) LTD vs. NITEL PLC (2009) 15 NWLR (PT 1164) 344 at 372 and SBN PLC vs. CBN (2008) 6 NWLR (PT 1137) 237 at 309 were relied upon.

RESOLUTION OF ISSUE NUMBER FOUR

The 1999 Constitution of the Federal Republic of Nigeria (as amended) is the organic law of the Country.  It declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed.  It is the duty of the authorities, including the judiciary to ensure its observance.  The position of the courts is quite crucial in this regard for the purpose of safeguarding the Constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated.  In such a situation, the matter should be closely scrutinized to make sure that any decision reached conforms to the spirit of the constitutional guarantee.  The Fundamental rights are regarded as part of human rights and the regnant trend is to protect such rights for the enhancement of human dignity and liberty.  See FRN vs. IFEGWU (2003) 15 NWLR (PT 842) 133 at 184 B-E and 185 B-C or (2003) LPELR (3173) 1 at 25-26 and 27.  It is the fact of the enshrinement of the fundamental rights in chapter IV of the Constitution that confers the fundamental rights the status of being over and above other human rights:  UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT 200) 708 at 761.  

The question of infringement of fundamental rights is largely a question of fact and does not so much depend on the dexterous submission of Counsel on the law.  So it is the facts as disclosed by the affidavit evidence that is usually examined, analysed and evaluated to see if the fundamental rights have been eviscerated as claimed or otherwise dealt with in a manner that is contrary to the Constitutional and other provisions on the fundamental rights of an individual.  The law remains that he who asserts must prove. So the Appellant has the onus of proving by credible affidavit evidence that her fundamental rights were breached.  See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536.  This is so notwithstanding the Appellant’s contention that the core paragraphs of the Respondents’ Counter Affidavit had been struck out.  The primary reliefs sought by the Appellant are declaratory in nature and she had the burden of proving the same by credible affidavit evidence irrespective of whether the Respondents filed a counter affidavit or not.  See NWOKIDU vs. OKANU (supra) and FRANCIS vs. CITEC INT’L ESTATE LTD (supra).

The Appellant had erroneously argued that the lower court did not make specific findings and pronouncements on Reliefs 1.4, 1.5, 1.6 and 1.7 of the reliefs claimed.  This argument is not borne out by the Records.  At page 99 of the Records, the lower court struck out Reliefs 1.2 and 1.3 claimed by the Appellant and in concluding its Ruling at page 101 the lower court held that the Appellant’s application failed in its entirety and dismissed the same.  This was a pronouncement on the fate of Reliefs 1.4 – 1.7 claimed by the Appellant.  Howbeit, in resolution of Issue Number One above I held that the lower court was wrong to have struck out Reliefs 1.2 and 1.3.  In the light of this to captivate our attention next is whether the Appellant discharged the onus of proving by credible affidavit evidence that she was entitled to the reliefs claim.  This we shall now interrogate in exercise of the powers of this court under Section 15 of the Court of Appeal Act.

Relief 1.1 sought by the Appellant is for a declaration that her fundamental rights to dignity of human person, personal liberty and freedom of movement as enshrined in Sections 34, 35 and 41 of the 1999 Constitution were infringed upon.  The affidavit evidence discloses that the Appellant was arrested and her liberty restricted.  She was herded into a Black Maria and taken to the Special Offences Court.  In paragraph 7(a) of the Counter Affidavit, the Respondents concede that the Appellant was arrested and that she was taken to court within five hours of her arrest.  So it is effulgent that the Appellant had her freedom restricted for at least five hours.  There is nothing to controvert the deposition of the Appellant that she was taken in a Black Maria that had very little light and ventilation as paragraph 6 of the Respondents Counter Affidavit was struck out by the lower court.  The allegation against the Appellant was disobeying the restriction of movement directive on environmental sanitation day.  It was definitely inhuman and degrading to have transported the Appellant in a Black Maria which is a caged and fortified vehicle meant for transportation of dangerous and hardened criminals for her alleged disobedience of the said directive on restriction of movement.  Section 34 (1) (a) of the Constitution provides as an incident of the right to dignity of human person, that no person shall be subjected to inhuman or degrading treatment.  The Respondents clearly violated this right.

As already stated, the Respondent conceded that it was within five hours of the arrest of the Appellant that she was taken to court, so within those five hours that she was under arrest in their custody her personal liberty was restricted.  Let me quickly state that the right to personal liberty is not an absolute right.  It is a right that can be limited in the circumstances set out in Section 35 (1) (a)-(f) of the 1999 Constitution.  The Respondents have conceded that there is no written law which makes it an offence to disregard the restriction in movement directive on environmental sanitation days, but that their officials were carrying out the directives of the Governor in that regard.  The Constitution recognizes that the right to personal liberty may, inter alia, be limited upon reasonable suspicion of a person having committed a criminal offence.  There is nothing in the affidavit evidence or in the submissions of Counsel to the effect that the infraction of not obeying restriction in movement directive on environmental sanitation day is a criminal offence.  Accordingly, I make bold to hold that the Respondents violated the Appellant’s right to personal liberty in circumstances that cannot be justified under the constitutional provisions.

The Respondents while contending that the Appellant’s right to freedom of movement was not infringed made the ingenious submission that the right to freedom of movement enshrined in Section 41 of the Constitution is in respect of movement from one State to another within Nigeria and not movement within a State in Nigeria.  I am not enthused by this contention as it is disingenuous.  Section 41(1) stipulates that every citizen of Nigeria is entitled to move freely throughout Nigeria.  The     Catch-22 paradoxical dilemma in the Respondents contention is that if the freedom to move does not relate to movement within a State then it will be well-nigh impossible to move from one State to another since you would first have to move freely within a State in Nigeria before you can enter another State within Nigeria.  It is therefore as clear as crystal that the right to freedom of movement relates to all corners, nooks and crannies within Nigeria.  Therefore it was a violation of the Appellant’s right to freedom of movement when the Respondents arrested her, kept her for five hours and prevented her from proceeding with her mission of going to buy drugs since she was not feeling well (see paragraph 4  of the supporting affidavit on page 3 of the Records).  I have already stated in the course of this judgment that the directive of the Governor of Lagos State that there should be no movement on environmental sanitation day is not in any written law so the said infringement of the Appellant’s right to freedom of movement cannot be justified under the provisions of Section 41 (2) (a) of the 1999 Constitution.  In the circumstances, I hold that the affidavit evidence established the violation of the Appellant’s rights to dignity of human person, personal liberty and freedom of movement and the Appellant is therefore entitled to the grant of Relief 1.1.

The Appellant’s Relief 1.2 is for a declaration that her trial and conviction violated her right to fair hearing under Section 36 of the 1999 Constitution.  The Respondents have argued that the Appellant was not in any doubt as to the offence she committed as the same was explained to her and she understood and that upon arraignment she pleaded guilty to the charge.

Section 36 of the 1999 Constitution guarantees a person the right to a fair hearing.  Section 36 (12) of the Constitution then stipulates as follows:

“(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”

The offence which the Appellant allegedly committed and for which she was convicted as borne out by the Record of Proceedings of the Special Offences Court on pages 83 – 86 of the Records is “wandering, loitering and walking about in defiance of the monthly compulsory environmental sanitation exercise.”  As earlier stated and as conceded by the Respondents, there is no such offence prescribed in any written law.  The concomitance is that the purported trial and conviction of the Appellant for an offence that is not defined and the penalty therefor prescribed in a written law is a violation of her right to fair hearing.  The Appellant therefore discharged the onus of establishing her entitlement to Relief 1.2.

The Reliefs 1.3, 1.4 and 1.5 are like leeches as their success is dependent on the success of the principal relief on freedom of movement which is Relief 1.1.  Having held that the Appellant established her entitlement to the Relief 1.1, it necessarily follows that Reliefs 1.3, 1.4 and 1.5 which are parasitic will equally succeed The Appellant is therefore entitled to the grant of the said reliefs.

In Relief 1.6, the Appellant claims refund of the sum of N2, 000.00 she paid as fine upon her conviction by the Special Offences Court.  I have earlier at the incipient stage of this judgment made it clear on the authority of FRN vs. IFEGWU (supra) that the Appellant was pursuing her right to enforce her fundamental rights and that this could be done without the pursuit  of an appeal against the decision of the Special Offences Court.  In the circumstances, since this matter is not an appeal against the said decision and there is no relief claimed in this matter for an order setting aside the decision of the Special Offences Court, there is no justifiable basis on which an order for the refund of the fine of N2, 000.00 can be made. The said Relief 1.6 therefore fails.

The Appellant claims N5million as exemplary damages in Relief 1.7. It is instructive to state that the Appellant did not claim damages simpliciter, but exemplary damages. Without a doubt, upon the Appellant having established the evisceration of her fundamental rights by the Respondents, she is entitled to the award of damages, but are the circumstances such that exemplary damages should be awarded as claimed by the Appellant?

The law is settled beyond peradventure that in order to justify an award of exemplary damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. The conduct of the defendant has to be shown to be high-handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men.  See ODIBA vs. AZEGE (1998) LPELR (2215) 1 at 25.  The exemplary damages are usually awarded if the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence and contumelious disregard of the plaintiff’s rights.  See ODOGU vs. A-G FEDERATION (1996) LPELR (2228) 1 at 12 and G. K. F. INVESTMENT NIGERIA LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 31-32.

Ever though I have found that the Respondents committed the wrongful act complained of, it would not suffice for the award of exemplary damages against the Respondents since from the affidavit evidence their conduct does not disclose malice, fraud or cruelty towards the Appellant.  The Record of Proceedings of the Special Offences Court at pages 83 -86 of the Records shows that ninety-eight (98) persons including the Appellant were arrested and arraigned on the said Saturday, 25th May 2013,      ninety-two (92) of them, including the Appellant, pleaded guilty and were accordingly convicted and fined.  Consequently, the available evidence cannot ground the award of exemplary damages against the Respondents. The said Relief 1.7 is therefore refused. 

SUMMATION

It is now the appropriate time to put this judgment to bed. After due consideration of this appeal and the issues raised therein, I have arrived at the inexorable conclusion that the appeal is meritorious.  The same succeeds and is allowed by me.  The Ruling of the lower court in Suit No. M/548/2013: FAITH OKAFOR vs. LAGOS STATE GOVERNMENT & ANOR. delivered on 1st July 2014 is hereby set aside.  In its stead and for good order sake, judgment is hereby entered for the Appellant against the Respondents in the following terms:

1.It is hereby declared that the arrest and detention and transportation of the Appellant in the back of a vehicle which is of a metal cage with very little ventilation and light “Black Maria” by officials and/or agents of the 1st Respondent (KAI Brigade) on 25th May 2013 for a purported environmental sanitation offence violates the Appellant’s fundamental rights to respect for the dignity of her person, personal liberty and freedom of movement as provided under Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and is therefore illegal and unconstitutional.

2. It is declared that the purported trial and conviction of the Appellant for a purported environmental sanitation offence violates the Appellant’s fundamental rights to fair hearing as provided under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and is therefore unlawful, illegal and unconstitutional.

3. It is further declared that in the absence of a written law prescribing the same, the 1st Respondent’s directive for people in Lagos State to stay at home and not to move about thereby restricting movement of persons in Lagos State within the hours of 7.00am to 10.00am on the last Saturday of every month is unlawful, illegal and unconstitutional.  

4. The Respondents are hereby restrained from further restricting the Appellant’s or anyone’s movement within Lagos State at any time or day whatsoever on the basis of environmental sanitation without there being a written law prescribing the same.

5. The Respondents are restrained from further arresting the Appellant or anyone whatsoever on the basis of a purported environmental sanitation offence or trying anyone in the Special Offences Court without conforming to the dictates of the Constitution.

6. Reliefs 1.6 and 1.7 are dismissed.

The Appellant is entitled to the costs of this appeal which I assess and fix at N100, 000.00.

                        

 UGOCHUKWU ANTHONY OGAKWU

       JUSTICE, COURT OF APPEAL

Appearances:

Ikenna Okoli, Esq. (with U. Obiora, Esq.) for the Appellant.

Adeniji Kazeem, Esq., Hon. Attorney-General, Lagos State (with Akinkunmi Idowu, Esq., Director, Civil Litigation; Ms. T. Oshodi, Asst. Director; Adebayo Haroun, Esq., Asst. Director; Ms. Olayinka Oyegunle, Chief State Counsel & Olakunle Olanrewaju, Esq., State Counsel) for the Respondent. 

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