Firm, Owner, lose rights enforcement suit, court dismisses their N100m claim against IGP, others
By Jude-Ken Ojinnaka
Justice Daniel Osiagor of a Federal High Court sitting in Lagos has in a judgement, dismissed the N100 million fundamental rights enforcement suit filed by a businesswoman, Mrs. Folashade Shenbote and her company, Shadubuz International Limited, against the Inspector-General of Police (IGP, 1st respondent) and five others.
In dismissing the suit marked FHC/L/CS/605/2022, Justice Osiagor held that the Applicants have not placed sufficient materials before the court to establish that their rights were threatened or breached by the respondents as all that fifth respondent and other respondents did was merely reporting the incident and commencing judicial enquires respectively, which all fall within the exclusive domain of the Police Act.
Respondents in the suit who were exonerated by the court from the allegations of fundamental rights infringement were Assistant Inspector-General of Police (Force CID) Annex Alagbon, Lagos: Assistant Inspector-General of Police Zone 2 Onikan Lagos; Lagos State Police Commissioner; Kam Steel Integrated Company Limited and DSP Johnson Ajayi, who were listed as second to sixth respondents in the suit
The businesswoman and her company (Applicants), had dragged all the Respondents before the court and sought the following reliefs:
“A declaration that the constant invitation, threat of arrest and detention of the second applicant and the Directors of the first applicant, by the agents of the first to fourth respondents over purely civil matter based solely on a petition written by the fifth respondent, alleging inducement and incapacity of the first applicant to fulfil its obligation as specified in the Facilitator’s Agreement for Scrap Metal Supply dated November 2, 2020, between Kam Steel Integrated Company Limited (4th respondent) and Shadubuz International Limited, (2nd applicant), a dispute which the fifth respondent had already submitted to arbitration, are illegal, unlawful, wrongful, oppressive, arbitrary, unconscionable and constitute a blatant violation of the applicants’ fundamental Rights as enshrined in Sections 35(1), (4)&(6), 37, 41(1), 44(j) and 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 4 and 5 of the Nigerian Police Force Act, 2020; Articles 5, 6 and 14 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria, 2004.
“A declaration that the several invitations extended to the second applicant by the agents of the first to fourth respondents, without an order of court, and with the aim to further detain, humiliate and dehumanize the second applicant on a matter that is purely civil and contractual in nature and which is already currently before arbitration, are illegal, unlawful, wrongful, oppressive, reckless, arbitrary, unconscionable and constitute a blatant violation of the Applicants’ fundamental Rights as enshrined in Sections 35(1)(4)(6), 37, 41(1), 44 and 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 4 and 5 of the Nigerian Police Force Act, 2020; Articles 5, 6 and 14 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria, 2004.
“A declaration that the first and second applicants are separate and distinct persons/entities as recognized under Section 42 of the Companies and Allied Matters Act, 2020, such as to debar the agents of the first to fourth respondents from inviting, arresting and detaining the second applicant over a purely civil matter involving the first applicant that is already before arbitration.
“A declaration of this honourable court that the first to fourth respondents under the extant Police Act, 2020 are not permitted and empowered under any guise, howsoever and whatsoever, to investigate any matter touching on and or bordering on the purely civil and contractual rights and/or obligations involving the first applicant and the fifth respondent that is currently before arbitration.
“A declaration of the court that the constant invitations of the second applicant by the agents of the first to fourth respondents in respect of the alleged breach of contract, the matter that is currently before arbitration, is illegal, wrongful and unlawful, thereby rendering same unconstitutional, null and void.
“A declaration that the lien placed on account number 5620077116 at Fidelity Bank Plc. belonging to Shadubuz International Limited, by the agents of the first to fourth respondents, over a purely civil dispute which is currently before Arbitration between the first applicant and the fifth respondent, is oppressive, arbitrary, unconscionable, null and void.
“An order of the court setting aside all invitations so far extended to the second applicant in respect of the purely civil and contract dispute between the first applicant and the fifth respondent, which is already before arbitration, for being arbitrary, unlawful, wrongful, illegal, unconscionable, oppressive, null and void and of no effect whatsoever.
“An order of perpetual injunction restraining the respondents, whether by themselves, agents, servants, employees, functionaries and/or privies howsoever, from further inviting, threatening to arrest or detaining the second applicant under the guise of investigating a purely civil and contractual dispute between the first applicant and the fifth respondent.
“An order of this honourable court lifting the lien placed on account number 5620077116 at Fidelity Bank Plc. belonging to Shadubuz International Limited, by the agents of the first to fourth respondents, over a purely civil dispute which is currently before Arbitration for being oppressive, arbitrary, unconscionable.
“An order for public apology and adequate compensation from the respondents as provided for in Sections 35(6) and 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 314(1) and 323 (1) (2) of the Administration of Criminal Justice Act, 2015, for the Respondents’ blatant violation of the Applicant’s fundamental rights without following the due process of law on a matter that is purely contractual and civil in nature.
“An order that the respondents pay to the applicants the sum of N100 million, only as general damages for the wanton and grave violation of the applicants’ fundamental rights.”
The applicants through their counsel, Azubuike Solomon Akpe, filed their application pursuant to Order 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009; Sections 35(1),(4) & (6), 37, 41(1), 44 (1) and 46 of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Sections 4 & 5 of the Nigerian Police Force Act; Sections 1(1), (2) and 314 (1) of the Administration of Criminal Justice Act, 2015 and Articles 5, 6 and 14 of the African Charter on Human and People’s Rights (Ratification and Enforcement Act, CAP A9 Laws of the Federation of Nigeria, 2004.
But in their preliminary objection and counter-affidavit to the suit, the respondents asked the court to dismiss the suit in its entity for being frivolous and lacking in merit.
The first to fourth respondents through their counsel raised their preliminary objection and 20 paragraphs counter-affidavit deposed to by DSP Johnson Ajayi, and urged the court to determine the followings:
“Whether or not the first to fourth and sixth, respondents have the power to investigate the petition of the fifth respondent?
“Whether or not the Applicant is entitled to the reliefs sought?”
Counsel to Police, Mr. Williams submitted that, the first to fourth and sixth respondents are Police officers, who are by virtue of their duty as stipulated in Section 4 of the Police Act and Regulation Cap P19 Laws of the Federation, 2004, are saddled with the responsibility, amongst other things, apprehend offenders and properly enforce the law.
Williams argued that, the first to fourth and sixth respondents have the power to accept complaints from the fifth respondent and to investigate same.
He further argued that, the court is not empowered to prevent the investigative powers of the Police or any law enforcement agency where there is reasonable suspicion of the commission of any crime by a suspect.
The fifth respondent in opposition to the applicants’ suit, also filed a 14 paragraph counter-affidavit, deposed to by one Ijeoma Olagunju, an employee in the Law firm of Babalakin & Co.
In deciding the suit, Justice Osiagor after carefully scrutinized all the submissions of parties’ counsel and perused all exhibits tendered, formulated an issue: “Whether the applicants have established their claims to be entitled to the reliefs sought”?
In determining the issue, Justice Osiagor Held that: “the claim of the applicants presents a daunting task of drawing the line and deducing whether a matter seemingly civil in form and content can dovetail also into a prima facie case tor criminal prosecution?
“There are some preliminary issues that need to be settled before proceeding to the substantive issue. Counsel to the first, second, third, fourth and sixth respondents had raised a preliminary objection founded on the sole ground that the Applicants cannot sue on a representative capacity under Chapter 4 of 1999 Constitution.
“A conspectus of the current jurisprudence on joint application, on alleged breaches of human rights matters, coalesces on the singular idea that joint applications are sustainable. In the very recent case of INEC V Samuel Olalekan and Others, Georgewill JCA held thus: a joint application by more than one person as in the Respondents is very competent in law and I so firmly hold.”
“Hence, the preliminary objection fails and is accordingly dismissed.”
The judge noted that careful scrutiny of the depositions of all parties reveals that there are common grounds among the parties on the following facts: (a) The subsistence of an Agreement between the 1st Applicant and the 5th Respondent
(b) The Agreement mandates the 5th Respondent to disburse the sum of N30 million as advance payment for the Applicant to procure logistics, workmen and cutting of 2,000 MT of scrap metal for the company (fifth respondent).
(c) That within 15 days of the initial disbursement, the fifth respondent is to pay additional 30 million naira to facilitate the removal and supply of the scrap metal to the Company.
(d) That the sum of N30 million, have been paid by the fifth respondent to the applicant to cover the cutting of the 2,000 MT scrap metal.
(e) That despite the divers alleged to have been imported, no single scrap metal has surfaced from water for the reasons given by the Applicant and no refund have been made.
(f) Parties are at Arbitration
(g) That the first applicant and the son of the 2nd Applicant called Shenbote Babajide a director in the 1st Applicant’s company, are undergoing trial at the Magistrate court Lagos State in Charge No 8/36/2021.
for fraudulently obtaining the sum of N30 million amongst other charges.
“That the applicant promised that substantial amount of scrap would be available for loading in the 1st week of March 2021 but yet to produce any.
“I must mention from the onset that a single transaction can give room to both civil and criminal proceedings such that a matter that is civil in nature can also by the very circumstances of the case dovetail into criminal investigations and trial.
“Thus, Sankey JCA held: “Generally civil proceedings can go on simultaneously with criminal proceedings where the facts give rise to both criminal and civil liabilities.
“The mere fact that an Arbitration Clause has been invoked or triggered does not reduce the facts of the case to a mere debt collection to make relevant the plethora of cases cited by the Applicant. This is not a mere civil matter (debt collection case), I so hold.
“Already, this company and one of the directors is undergoing trial, with witnesses already being called and the only other suspect evidently at large is the second applicant who has been declared wanted for failing to honour the Police’s invitation.
“Moreso, one of the grounds allowed to derogate from the constitutional right of liberty is, “reasonable suspicion to having committed a criminal offence”.
“Section 35 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria as amended states that;“,..it is therefore clear that even though the right to liberty is a fundamental right, it is not an absolute right since the constitution itself; the giver and guarantor of the right, recognizes and Provides for some specific situations or circumstances which may warrant, allow or permit the limitation, restriction of or derogation from the right, as exceptions to the right..
“Consequently, the circumstances of this case leave much to be desired, such that the acts of the applicant need to be strongly deprecated.
He held that the human right application is not a shield to alleged cases of deception in obtaining money from 3rd parties who have initiated the due process of law in investigating and prosecution of the offence.
“Besides, a fundamental right application should be hinged on threats or actions that the right of the Applicant has been infringed, is being infringed or likely to be infringed.
“The Applicant has not shown where a mere invitation to the Police Station for investigation of the N30 million paid to them amounted to the breach of their liberty (Section 35), private and family life (Section 37), freedom of movement (Section 41), acquisition of property (Section 44), and access to court for redress (Section 46) or any other act likely in breach of any fundamental right found on Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended and the African Charter on Human and People’s Right (Ratification and Enforcement) Act, CAP A9 LFN, 2004.
“On the strength of the foregoing, this suit lacks merit and it is accordingly dismissed.”
