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MRS. COMFORT ALABA KOLO v. NIGERIA POLICE FORCE & ORS

(2018) LPELR-43635(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of February, 2018

CA/L/1246/2015


Before Their Lordships

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria


Between

MRS. COMFORT ALABA KOLO - Appellant(s)

AND

1. NIGERIA POLICE FORCE
2. COMMISSIONER OF POLICE, LAGOS STATE
3. MR. USMAN NDABABO CSP
(Divisional Police Officer, Festac Division)
4. MR. AARON GBOYA KOLO - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on the jurisdiction of the Federal High Court as regards matters relating to enforcement of fundamental rights.

FACTS:
This appeal is against the judgment of the Federal High Court Lagos, Judicial Division Coram C. J. Aneke, J. delivered on September 29, 2014 in which the Court upheld the preliminary objection of the 1st - 3rd Respondents, holding that it lacked jurisdiction to entertain the Appellant's action and struck out the action.

The Appellant was married to the 4th Respondent and the union produced two children. In the course of the marriage, the Appellant and the 4th Respondent, who had a turbulent relationship, made reports to the 3rd Respondent, the Divisional Police Officer, Festac Division, who happened to be a relation of the 4th Respondent. On 25/9/2010, the Appellant left the matrimonial home with the two children of the marriage after the 4th Respondent was alleged to have threatened to kill her before Christmas. The 4th Respondent reported the matter to the Festac Police Division alleging that his children had been abducted, upon which the Appellant was invited to the police station. The invitation and Court summons were addressed to the Appellant in her maiden name. The Appellant, fearing that she would be detained and tortured, refused to honour the invitation. She rather brought an action by Originating Motion before the trial Federal High Court for the enforcement of her fundamental rights, seeking the following reliefs;
"1. A DECLARATION that the Applicant is entitled to the Right to life to Freedom from Torture, Inhuman and Degrading treatment, Right to Personal Liberty, and Right to Fair Hearing guaranteed under Sections 33, 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 4, 5, 6 and 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act cap 49, LFN 2004.
2. A DECLARATION that given the circumstances of this case, the said Fundamental Rights of the Applicant are likely to be contravened by the 3rd and 4th Respondents if the 3rd Respondent arrests and detains the Applicant in respect of the investigation disclosed in EXHIBITS B and C, respectively.
3. AN ORDER setting aside EXHIBIT B (invitation by the 3rd Respondent dated 29th December, 2010) and EXHIBIT C (Warrant of Arrest purportedly issued by "High/Magistrate Court of Justice Western State of Nigeria" dated 6th January, 2011) both being likely to contravene the Applicant's Fundamental Rights aforesaid.
Alternatively,
AN ORDER removing EXHIBIT B (invitation by the 3rd Respondent dated 29th December, 2010) and EXHIBIT C (Warrant of Arrest purportedly issued by "High/Magistrate Court of Justice Western State of Nigeria" dated 6th January, 2011) into the Honourable Court for the purpose of being quashed, both being likely to contravene the Applicant's Fundamental Rights aforesaid.
4. PERPETUAL INJUNCTION restraining the Respondents, whether by themselves or the operatives of any of the Units of the 1st Defendant from infringing on the Applicant's said fundamental Rights in relation to the facts of these proceedings, namely the matrimonial dispute between the Applicant and the 4th Respondent.
5. AND FOR SUCH OTHER ORDERS as the Honourable Court may make in the circumstance."

The reliefs were predicated on the following grounds:
1. Section 33, 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria (CFRN 1999) and Articles 4, 5, 6 and 7, African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9, LFN 2004, guarantee the Applicant's Right to life, Freedom from Torture, Inhuman and Degrading treatment, Right to Personal liberty, and Right to Fair Hearing.
2. There is real likelihood of bias on the part of the 3rd Respondent who had openly displayed partisanship in the matrimonial dispute between the Applicant and the 4th Respondent by taking sides with the 4th Respondent and scolding the Applicant with harsh language on two previous occasions.
3. The Respondent now wants to purport to "investigate" the Appellant in respect of the matrimonial dispute between the Applicant and the 3rd Respondent's kinsman, the 4th Respondent.
4. The Applicant is unlikely to secure fairness and justice from the 3rd Respondent who owes the Applicant a Duty to Act Fairly, the 3rd Respondent being tainted with Bias and Real Likelihood of Bias.
5. The matter for which the 3rd Respondent wants the Applicant for "investigation" is purely a matrimonial dispute and does not disclose any reasonable suspicion of commission of "abduction" or any crime for the 3rd Respondent (to) investigate.
6. The purported "warrant of arrest" dated 6th January, 2011 was issued by a non-existent "High/Magistrate Court of Justice Western State of Nigeria" and does not disclose the date the Applicant was required to appear in Court and she failed to appear which formed the basis of the purported warrant.
7. The purported "Warrant of arrest" does not contain the Applicant's name, rather in trying to use her maiden name so as to shield the fact that she is the mother of the 'abducted' children, contained no name at all. The Applicant's maiden name is not "Barkie".
8. Unless the Court restrains them, the Respondents are most likely contravene the Applicant's fundamental rights aforesaid.
9. By Section 46(2) CFRN 1999 the Honourable Court has power to enforce the Applicant's fundamental rights Quia Timet against the Respondents.

In opposition to this application, the 4th Respondent deposed to a counter affidavit. The Appellant in response filed a Further Affidavit. The 1st - 3rd Respondents had filed a preliminary objection and a counter affidavit in opposition to the action. In its judgment, the Federal High Court  held that the facts of the case arose from a matrimonial issue between the Appellant and the 4th Respondent; that the 1st - 3rd Respondents are agents of Lagos State Government for the purpose of maintaining and securing public safety and public order within Lagos State; and that the jurisdiction to enforce the Appellant's fundamental rights to fair hearing, liberty and freedom of movement vests only in the High Court of Lagos State. The Federal High Court thereupon struck out the action and awarded costs of N20,000.00 in favour of the 1st - 3rd Respondents.. Aggrieved by the said judgment, the Appellant appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on the sole issue as formulated by the Appellant as follows:
"Whether the Court below was right to decline jurisdiction over the Appellant's application on grounds that it is on matrimonial cause and the 1st - 3rd Respondents being agents of Lagos State Government, when the claim brought by the Appellant is on fundamental rights enforcement simpliciter?"
DECISION/HELD:
In the final analysis, the Court resolved the sole issue submitted for the determination of the appeal in favour of the Appellant. The Court found the appeal to be meritorious and it was thereby allowed. The judgment of the Federal High Court was accordingly set aside. It was further ordered that the Appellant's application be and was thereby remitted to the Chief Judge of the Federal High Court for reassignment to another Judge for the hearing and determination of the matter.


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