72

1.C HAIRMAN, ECONOMIC ANDFINANCIAL CRIMES COMMISSION

2.MUAZU ZUBAIR
V.
1.DAVID LlTTLECHILD
2.BUSINESS MART NIGERIA LTD
COURT OF APPEAL
(LAGOS DIVISION)
CA/L/778/2011
CHINWE EUGENIA IYIZOBA, J.C.A. (Presided)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Read the Leading Judgment)
JAMILU YAMMAMA TUKUR, J.C.A.
WEDNESDAY, 15TH JULY 2015
ACTION - Legal personality - Office or body created by statute -Absence of express
provisions thereon as to its capacity to sueor be sued - Right of to sue or be sued eo nomine -
When maybe inferred - Principles guiding.
CONSTITUTIONAL LAW - Person unlawfully arrested or detained- Right of to compensation
and public apology.
ECONOMIC AND FINANCIAL CRIMES - Chairman, Economicand Financial Crimes
Commission - Right of to sue or besued eo nomine - Whether preferable to sue Economic
andFinancial Crimes Commission directly.
Chairman,E.F.C.C.v.Littlechild15February2016Chairman,E.F.C.C.v.Littlechild
[2016]3NWLR73
Chairman,E.F.C.C.v.Littlechild15February2016Chairman,E.F.C.C.v.Littlechild
.
ECONO MIC AND FINANCIAL CRIMES - Economic and FinancialCrimes Commission -
Officials of - Power of both to arrestanybody upon reasonable suspicion of having committed
anyfinancial crime - Duty on to justify exercise of.
EVIDENCE - Affidavit - Pleadings - Distinction between - Natureof affidavits.
EVIDENCE - Affidavit evidence - Averments therein in reference todocuments - Need to be
proved - Where affidavit evidence arebare allegations and or conclusions not supported with
factsor documents - How treated.
EVIDENCE - Affidavit evidence - Denial therein - Need to beprecise, concise and exact -
Vague denial - Whether constitutesdenial of specific deposition in an affidavit.
EVIDENCE - Affidavit evidence - Uncontroverted facts in affidavit- Whether acceptable in
all cases - When will not be accepted.
EVIDENCE - Affidavit evidence - Where unchallenged anduncontroverted by opposing party
- How treated.
EVIDENCE - Burden of proof - Person who asserts existence offact - Onus on him to prove
same.
EVIDENCE - Presumptions - Presumption of withholding evidence- Invocation of.
LEGAL PERSONALITY - Office or body created by statute -Absence of express provisions
thereon as to its capacity to sueor be sued - Right of to sue or be sued eo nomine- When
maybe inferred - Principles guiding.
MAXIM - Ubi jus, ibi remedium - Meaning and application of.
PRACTICE AND PROCEDURE - Affidavit evidence - Avermentstherein in reference to
documents - Need to be proved - Whereaffidavit evi dence are bare allegations and or
conclusions notsupported with facts or documents - How treated.
74
PRACTI CE AND PROCEDURE - Affidavit evidence - Denialtherein - Need to be precise,
concise and exact - Vague denial- Whether constitutes denial of specific deposition in
anaffidavit.
PRACTICE AND PROCEDURE - Affidavit evidence -Uncontroverted facts in affidavit -
Whether will be acceptedin all cases - When will not be accepted.
PRACTICE AND PROCEDURE - Affidavit evidence - Whereunchallenged and
uncontroverted by opposing party - Howtreated.
PRACTICE AND PROCEDURE - Affidavits - Nature of - Pleadingsand Affidavit -
Distinction between.
PRACTICE AND PROCEDURE - Burden of proof - Person whoasserts existence of fact -
Onus on him to prove same
PRACTICE AND PROCEDURE - Legal personality - Office orbody created by statute -
Absence of express provisions thereonas to its capacity to sue or be sued - Right of to sue or
be suedeo nomine - When may be inferred - Principles guiding.
PRACTICE AND PROCEDURE - Presumptions - Presumption ofwithholding evidence -
Invocation of.
WORDS AND PHRASES - Ubi jus, ibi remedium - Meaning andapplication of.
Issues:
1.Whether the applicants at the trial court (respondentsherein) were not deemed to have
admitted all thefacts in the counter-affidavit of the appellants havingfailed to file a reply to
the said counter-affidavit andwhether the trial court was right in solely relying onthe
respondents’ affidavit in arriving at its judgment.
2.Whether it was right for the trial court to hold that thearrest and detention of the 1st
applicant till the date ofjudgment on 12th June 2010 was unconstitutional, nulland void even
after he was granted bail at the instanceof the court on 7th July 2011.
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
[2016]3NWLR75
3.Whether the trial court was right in awarding damagesof N10,000,000 against the
appellants, jointly andseverally.
4.Whether the office of the Chairman, Economic andFinancial Crimes Commission is a
juristic person thatcould sue and be sued.
Facts:
The respondents in this appeal,as applicants, commenced theaction leading to this appeal by
originating motion. The appellantswere the respondents to the suit at the trial court.
Sometime in June 2010, the 1st appellant received a petition writtenby Mr. John Fashanu
alleging that the 1st respondent defrauded himof a total sum of £287,000 which was to be
used to establish aduty free shop at the Murtala Mohammed International Airport inNigeria
on the understanding that the said John Fashanu will begiven a stake in the business but
unfortunately the 1st respondentconverted the said sum of £287,000 to his own personal use.
The Economic and Financial Crimes Commission (EFCC)acting on the said petition,
commenced investigation into the caseand the 1st respondent was invited for interrogation
during which hewas granted bail on certain conditions, but instead of perfecting theterms of
the bail, the 1st respondent through his counsel applied to thetrial court for his release by
virtue of an application for enforcementof fundamental rights, and as such remained in
detention. Inthe action, the respondents sought a number of declaratory andinjunctive reliefs
including claim for damages.The grounds forthe application were set out in the statement
accompanying theapplication. There was also a 33 paragraph affidavit in supportof the
application in response to which the appellants filed acounter-affidavit. In paragraph 25 of the
affidavit in support of theapplication, the respondents stated that it was John Fashanu,
whosename was subsequently struck out from the suit that sealed the dutyfree shop at the
Murtala Mohammed International Airport. In theircounter-affidavit, the appellants referred to
the petition written byJohn Fashanu to justify their action against the 1st respondent butdid
not attach a copy of the petition as an exhibit to their counter-affidavit before the trial court.
The respondents also filed a further-affidavit of 11 paragraphs only in relation to the state of
health ofthe 1st respondent. The said further affidavit did not respond to thefacts deposed to
in the appellants’ counter-affidavit.
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
76
Parties filed and exchanged their written submissions which theyadopted at the hearing of the
application on 7th July 2010. On thesame date, the trial court directed that the 1st respondent
be releasedon bail on the conditions given by the appellants pending judgmentin the case
fixed for 12th July 2010 but he could not satisfy theconditions and thus remained in detention
till judgment was given.
In the judgment delivered on 12th July 2010, the trial court heldthat the 1st respondent’s
detention was unlawful, null and void andawarded N10 million damages against the appellant
for unlawfuldetention of the 1st respondent and for sealing of the duty free shopat Murtala
Mohammed International Airport, Lagos.
The appellants being dissatisfied with the outcome of the case,appealed to the Court of
Appeal contending that the trial court didnot properly evaluate the evidence before it and that
it wronglyrelied only on the affidavit evidence filed by the respondents todetermine the
action, notwithstanding that the respondents didnot file any affidavit to challenge the
averments in their counter-affidavit.They also argued that they, and subsequently the
court,granted the 1st respondent bail but he failed to meet the conditionsand so they were not
liable for damages for his detention. Theyfurther raised the issue that the 1st respondent, as
sued, is not ajuristic person and as a result, it must be struck out.
Held (Unanimously allowing the appeal):
1.On When arrest and detention of person is illegal andunconsitutional -
The arrest and detention of the 1 st respondent wasillegal and unconstitutional ab
initio as there was nobasis for same. (P. 94, para. G)
2.On Onus of proof of assertion -
The age-long principle of law that he who assertsmust prove is sacrosanct in our
jurisprudence.In the instant case, the appellants had deposed inparagraphs 4, 5, 10 and
11 of their counter-affidavitthat the arrest of the 1 st respondent was based on apetition
received from one John Fashanu. However,the said petition heavily relied on to justify
theiraction against the 1 st respo ndent was not attached to
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
[2016]3NWLR77
their affidavit evidence before the lower court. This nodoubt is a fundamental flaw in
their case whichcaused the trial court to hold that the 1 st respondentwas unnecessarily
harassed and detained. (P. 95,paras. A-C)
3.On Need to prove averments in affidavit with documentsreferred to therein -
Affidavit evidence which are clearly bare allegationsand or conclusions but not
supported with factsand/or documents needed to establish them areomissions which are
fatal to any application orassertion before the court. Thus, where casesare tried upon
affidavit evidence, the facts ordepositions in such affidavits have to be provedlike
averments in pleadings. In the instant case, thefailure of the appellants to produce or
attach thepetition upon which they acted in arresting the 1 strespondent in order to
justify their action beforethe trial court was fatal to their defence. [General &Aviation
Services Ltd. v. Thahal (2004) 10 NWLR (Pt.880) 50; U.B.N. Plc v. Astra Builders (WA)
Ltd. (2010)5 NWLR (Pt. 1186) 1 referred to.] (P. 95, paras. C-E)
4.On Invocation of presumption of withholding evidence -
Under section 149(1) of the old Evidence Act, nowsection 167(d) of the Evidence Act
2011, the courtmay presume that evidence, which could be and isnot produced, would if
produced, be unfavourableto the party who withholds it. In the instant case,the
appellants claimed that it is the petition againstthe 1 st respondent which contained the
allegationsof commission of crime against him justifying hisarrest and detention,
without making availableto the court the petition as an annexure to theircounter-
affidavit to enable the court determine theissue. By failing to attach the petition upon
whichthe appellants acted to their counter-affidavit,section 167(d) of the Evidence Act
comes into play.
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
78
[Musa v. Yerima (1997) 7 N WLR (Pt. 511) 27 referred to.](P. 103, paras. C-E)
5.On Application of latin maxim “ubi jus, ibi remedium”and right of person unlawfully
arrested or detained tocompensation and public apology -
The latin maxim ubi jus, ibi remedium, which meansthat where there is a right, there is a
remedy, stillstands firm and is further strengthened by theprovisions of section 35(6) of
the 1999 Constitution,as amended, which provides that any personwho is unlawfully
arrested or detained shall beentitled to compensation and public apology fromthe
appropriate authority. In the instant case,having held that the arrest and detention of
the 1 strespondent was illegal, null and void there was nodoubt that damages would
normally be awarded,such having been claimed by the respondent. [Abiolav.
Abacha (1997) 6 NWLR (Pt. 509) 413 referred to.](P. 98, paras. E-H)
6.On Powers of the Economic and Financial CrimesCommission to arrest anybody suspected
of havingcommitted financial crime -
The Economic and Financial Crimes Commissionand its officials are statutorily
empowered to arrestanybody upon reasonable suspicion of havingcommitted any
financial crime as prescribed insection 7 of the EFCC Act, 2004. However, in theinstant
case, having premised and relied on apetition as their defence to the arrest and
detentionof the 1 st respondent, it behoves the appellants, thatis, the Chairman of EFCC
and the other officials, tosatisfy the court that their act was done within theambit of the
law given that the fundamental rightsof every citizen of Nigeria and even strangers
underthe umbrella of the sovereign protection of Nigeriais jealously preserved and
guarante ed by the 1999Constitution. (P. 95, paras. F-G)
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
[2016]3NWLR79
7.On Principles guiding inference of right to sue a bodyor office eo nomine and right of a
body or office to sueeo nomine -
Where a body or office is created by statute,notwithstanding the absence of an express
provisionthereon as to its capacity to sue or be sued, theright to sue and be sued may be
inferred fromthe statute after a careful and close reading of theprovisions of the
relevant statute. To infer a right tosue the officer or body eo nomine, regard may wellbe
had to the nature of the powers and functionsvested in the office or body, the extent to
whichsuch powers and functions may affect or impingeon the rights of other persons
and the injusticethat would arise from unavailability of means ofredress should the
office exercising such powersor performing such function not be subject to anykind of
proceedings. On the other hand, if inabilityto sue in order to enforce the powers and
functionswill render it ineffective, a right to sue eo nominewould readily be inferred.
The above propositioncan be more readily applicable when the action isone to protect
rights claimed in public law fromthreatened infringement. The realistic view in sucha
case is to make the office vested with powersand functions which may in their exercise
andperformance lead to such infringement amenableto legal proceedings eo nomine. In
the instant case,the Chairman of Economic and Financial CrimesCommission is vested
with enormous powers notonly to determine whether a person should bearrested and
detained but also whether his propertyshould be sequestered. The powers conferred
onthe Chairman of EFCC under the EFCC Act is notonly enormous and intimidating
but is constantly indirect confrontation with the fundamental humanrights as
guaranteed by the Constitution of theFederal Republic of Nigeria 1999 and this no
doubtengenders every justification to hold that he can be
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
80
sued eo nomine as was done in this case. Thus given thefunctions, duties and powers of
the Chairman ofthe EFCC, under the EFCC Act 2004, there is thenecessity of the
occupier of the office being sued eonomine. This does not however preclude the realityof
the fact that it is most acceptable and realistic tosue EFCC directly. [African Ivory
Insurance Co. Ltd.v. Commissioner for Insurance (1998) 1 NWLR (Pt.532) 50 referred
to.] (P. 101-102, paras. G-H)
8.On Need for denial of averments in affidavit to beprecise, concise and exact -
A denial in an affidavit must be precise, concise andexact. A denial must give no room
for conjecture orspeculation. A denial which is of a rigmarole andvague nature is in law
and in fact not a denial. Inthe instant case, the appellants’ denial of the 1 strespondent’s
deposition that the appellant sealedits shop, was not specific as to constitute an
effectivedenial of the specific deposition. (P. 96, paras. C-D)
9.On Treatment of unchallenged facts in affidavit -
Facts contained in an affidavit form part of thedocumentary evidence before the court.
Thus,where an affidavit is filed deposing to certain factsand the other party does not file
a counter affidavit ora reply affidavit, the facts deposed to in the affidavitor counter-
affidavit would be deemed unchallengedand undisputed. Simply put, paragraphs of
affidavitnot denied or controverted are deemed admitted.[Badejo v. Minister of
Education (1996) 8 NWLR (Pt.464) 15; Lawson-Jack v. S.P.D.C. (Nig.) Ltd. (2002)
13NWLR (Pt. 783) 180; Ogoejeofo v. Ogoejeofo (2006)3 NWLR (Pt. 996) 205 referred
to.] (P. 91, paras.F-H)
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
[2016]3NWLR81
10.On When uncontroverted facts in an affidavit will notbe accepted -
It is not in every situation that failure to file acounter-affidavit or reply to a counter-
affidavitwill result in the unchallenged or uncontradictedfacts being deemed admitted
as true and correct.If an affidavit is self-contradictory or if the factscontained therein,
which are presumed to be true,when taken together are still not sufficient to sustainthe
prayers of the applicant, it will be needless fora respondent to file a counter affidavit.
The sameprinciple applies in the case of failure to file a replyto a counter-affidavit.
[R.E.A.N. Ltd. v. Aswani TextileIndustries Ltd. (1992) 3 NWLR (Pt. 227) 1 referredto.] (P.
92, paras. A-C)
11.Distinction between affidavit and pleadings -
Affidavit evidence is not pleadings. It followstherefore that while in the case of
pleadings,averments therein, unless admitted constitute noevidence, affidavits are by
law evidence upon whichthe court of law will act in appropriate case. [C.B.N.v.
Amao (2010) 16 NWLR (Pt. 1219) 271; Magnussonv. Koiki (1993) 9 NWLR (Pt. 317)
287 referred to.](P. 91, paras. D-F)
Nigerian Cases Referred to in the Judgment:
A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575
A.-G., Fed. v. A.N.P.P. (2003) 18 NWLR (Pt. 851) 182
A.-G.,Plateau State v. A.-G., Nassarawa State (2005) 9NWLR (Pt. 930) 421
Abiola v. Abacha (1997) 6 NWLR (Pt. 509) 413
African Ivory Insurance Co. Ltd. v. Commissioner forInsurance (1998) 1 NWLR (Pt. 532) 50
Agbonmagbe Bank Ltd. v. General Manager, G.B. OllivantLtd. (1961) 1 All NLR 125
Agrochemicals (Nig.) Ltd. v. Kudu Holdings Ltd. (2000) 15NWLR (Pt. 691) 493
Badejo v. Minister of Education (1996) 8 NWLR (Pt. 464) 15
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
82
Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523
C.B.N. v. Amao (2010) 16 NWLR (Pt. 1219) 271
Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631
Dokubo-Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320
Ex-parte Adesina (1996) 4 NWLR (Pt. 442) 254
F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) 113
Fawehimi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558
General & Aviation Services Ltd. v. Thahal (2004) 10 NWLR(Pt. 880) 50
Gomwalk v. Military Administrator Plateau State (1998) 6NWLR (Pt. 555) 653
H. S. Engineering Ltd. v. S. A. Yakubu (Nig.) Ltd. (2009) 10NWLR (Pt. 1149) 416
Ibori v. F.R.N. (2009) 3 NWLR (Pt. 1127) 94
Kpebimoh v. The Board of Governors, Western Ijaw TeachersTraining College (1966) 1
NMLR 130
Lawrence v. A.-G., Federation (2008) 6 NWLR (Pt. 1084) 453
Lawson-Jack v. S.P.D.C. (Nig.) Ltd. (2002) 13 NWLR (Pt.783) 180
Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) 287
Minister of Internal Affairs v. Shugaba (1982) 3 NCLR 915
Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27
Nemi v. A.-G., Lagos State (1996) 6 NWLR (Pt. 452) 42
Nwanganga v. Military Governor Imo State (1987) 3 NWLR(Pt. 59) 185
Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 996) 205
Provost, A.I.C.E. v. Amuneke (1991) 9 NWLR (Pt. 213) 49
R.E.A.N. Ltd. v. Aswani Textile Ltd. (1992) 3 NWLR (Pt. 227) 1
Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144
Shitta v. Ligali (1941) 16 NLR 23
Solicitor General Western Nigeria v. Adedoyin (1973) UILR143
Thomas v. Local Government Service Board (1965) 1 NMLR310
U.B.N. Plc v. Astra Builders (WA) Ltd. (2010) 5 NWLR (Pt.1186) 1
Uket v. F.R.N. (2008) All FWLR (Pt. 411) 923
Wema Bank Plc v. Osilaru (2008) 10 NWLR (Pt. 1094) 150
Zakari v. Nigerian Army (2012) 5 NWLR (Pt. 1294) 478
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
[2016]3NWLR83
Foreign Cases R eferred to in the Judgment:
Knight & Searle v. Dove (1964) 2 All ER 307
Willis v. Association of Universities of The BritishCommonwealth (1964) 2 All ER 39
Nigerian Statutes Referred to in the Judgment:
Constitution of the Federal Republic of Nigeria, 1999 (asamended), Ss. 34, 35(1), (4) &
(5)(a) & (b), 44 and 46
Court of Appeal Act, 2004, S. 15
Economic and Financial Crimes Commission At, 2004, Ss. 1,2(1)(a)(i), (ii) & (iii) and 7
Evidence Act, 2011, S. 115(1), (3) (4) and 167(d)
Evidence Act, 2004, S. 149(d)
Insurance Decree, S. 8
Appeal:
This was an appeal against the judgment of the High Courtentered in favour of the
respondents. The Court of Appeal, in aunanimous decision, allowed the appeal in part.
History of the Case:
Court of Appeal:
Division of the Court of Appeal to which the appeal wasbrought: Court of Appeal, Lagos
Names of Justices that sat on the appeal: Chinwe EugeniaIyizoba, J.C.A. (Presided); Samuel
ChukwudumebiOseji, J.C.A. (Read the Leading Judgment); JamiluYammama Tukur, J.C.A.
Appeal No.: CA/L/778/2011
Date of Judgment: Wednesday, 15th July 2015
Names of Counsel: Aliyu M. Yusuf - Deputy DirectorProsecution, EFCC (with him, T. Arabi
and T.J. Banjo) -.for the Appellants
Anthony Nwogbe - (with him, A. Audu [Miss]) - for theRespondents
High Court:
Name of the High Court: Federal High Court, Lagos
Name of the Judge: Idris, J.
Date of Judgment: Monday, 12th July 2010
NigerianWeeklyLawReports15February2016Chairman,E.F.C.C.v.Littlechild
84
Counsel:
Aliyu M. Yusuf - Deputy Director Prosecution, EFCC (withhim, T. Arabi and T.J. Banjo)
- for the Appellants
Anthony Nwogbe - (with him, A. Audu [Miss]) - for theRespondents
OSEJI, J.C.A. (Delivering the Leading Judgment): This is anappeal against the judgment
of the Federal High Court, Lagosdivision delivered by M.B. Idris, J. on the 12th day of July
2010.
The appellants’ case is that sometime in June 2010, the 1stappellant received a petition
written by one Mr. John Fashanualleging that the 1st respondent defrauded him of a total sum
of£287,000 which was to be used to establish a Duty Free Shop atthe Murtala Mohammed
International Airport in Nigeria on theunderstanding that the said John Fashanu will be given
a stake inthe business, but unfortunately, the 1st respondent converted thesaid sum of
£287,000 to his own personal use.
The Economic and Financial Crimes Commission (EFCC)acting on the said petition
commenced investigation into the caseand the 1st respondent was invited for interrogation
during whichhe was granted bail on certain conditions, but instead of perfectingthe terms of
the bail, the 1st respondent through his counsel appliedto the lower court for his release and
on 7-7-2010 the lower courtdirected that the 1st respondent be released on bail on the
conditionsgiven by the appellants pending the judgment fixed for 12-7-10.
However, in the said judgment delivered on 12-7-10, the lowercourt held that the 1st
respondent’s detention was unlawful, null andvoid and awarded N10 million damages against
the appellant forunlawful detention of the 1st respondent and sealing of the DutyFree Shop at
Murtala Mohammed International Airport, Lagos.Their grouse is that the lower court had
earlier on 7-7-10 ruled thatthe bail earlier granted to the 1st respondent by the appellants
on23-6-10 suffices and he should fulfill the conditions given to him.There is also no evidence
that the appellants were involved in thesealing of the respondents’ shop.
The process that gave rise to the said judgment of the lowercourt was an application for
enforcement of fundamental rightsbrought by way of originating motion by the respondents
and dated
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR85
and filed on 1st July, 2010. Wherein they sought the following reliefsagainst the appellants:
A declaration that the arrest and detention of the 1stapplicant on the 23rd June, 2010 till date
by the 1st -3rd respondents upon the active instigation of the 4threspondent is illegal,
unconstitutional, null and voidand a breach of the 1st applicant’s rights to freedomof
movement and personal liberty as guaranteed bythe provisions of sections 34, 35, 44 and 46
of thei.Constitution of the Federal Republic of Nigeria 1999.
ii. A declaration that the continued harassment,intimidation of the applicants by the 1st -
3rdrespondents upon the active instigation of the 4threspondent from 23rd June, 2010 to date
is illegal,unlawful, unconstitutional, null and void which actis contrary to the fundamental
rights of the applicantsas guaranteed by the Constitution of the FederalRepublic of Nigeria,
1999.
iii. A declaration that the claimed transaction betweenBusiness Mart UK Limited and the 4th
respondentwhich is the complaint and subject matter of thisapplication is at best a
commercial/civil transactionand ultra vires the powers of the 1st - 3rd respondents.It is
unlawful for them to harass, arrest and detain the1st applicant for the purpose of recovering
debts orsecuring performance of any claimed commercial/civilobligations to the 4th
respondent, or any other persons.
iv. A declaration that it is unlawful and an abuse of officefor the 1st - 3rd respondents to
recover any allegeddebt or enforce any alleged obligation arising from acommercial/civil
matter on behalf of the 4th respondentagainst the applicants or any person whatsoever.
v. An order enforcing the 1st applicant’s right to personalliberty and freedom of movement
by restraining therespondents, their agents and privies from furtherharassing or detaining the
1st applicant based on anyallegations made by the 4th respondent.
vi. An order of perpetual injunction restraining all therespondents, their agents, privies,
servants etc fromharassing, arresting, detaining the 1st applicant or
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
86
seizing 1st applicant’s passport and/or interfering in any waywith the personal liberty of the
1st applicant and orlocking up the applicants duty free shop at the MurtalaMohammed
International Airport, Ikeja, Lagos,Nigeria.
vii. The sum of N100,000,000.00 (one hundred millionNaira Only) being damages payable
by the respondentsjointly and severely for the unlawful arrest, detention,harassment,
intimidation of the applicants and lockingup of the applicant’s duty free shop, at
MurtalaMohammed International Airport, Ikeja, Lagos bythe 1st, 2nd, 3rd and 5th
respondents upon the activeinstigations of the 4th respondent.
viii. And for such further order or orders as this honourablecourt may deem fit to make in the
circumstances of thisapplication.
The grounds for the application are as set out in the statementaccompany in the application.
There is also a 33 paragraph affidavitin support deposed to by one Olatunde Oladele. A legal
practitionerin the firm of Ricky Tafa & Co.
The appellants as respondents reacted by filing a 25 paragraphcounter affidavit deposed to by
one Ofen-Imu Sunday, InvestigatingOfficer with the EPCC.
The respondent also filed a further affidavit of 11 paragraphs.
The parties also filed and served their written submissionswhich they adopted at the hearing
of the application on 7-7-2010.
In a judgment delivered on 12-7-2010 the lower court enteredthe following reliefs in favour
of the applicants (now respondents):
A declaration is made that the arrest and detention ofthe 1st applicant on the 23rd June 2010
till date by therespondents is illegal, unconstitutional, null and voidand a breach of the 1st
applicant’s right to freedomof movement and personal liberty as guaranteed bythe provisions
of sections 34, 35, 44 and 46 of thei.Constitution of the Federal Republic of Nigeria, 1999.
ii. A declaration is also made that the continuedharassment, intimidation of the applicants by
therespondents from 23rd June, 2010 to date is illegal,unlawful, unconstitutional, null and
void which act iscontrary to the fundamental rights of the applicants as
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR87
guaranteed by the Constitution of the Federal Republic ofNigeria, 1999.
iii. The sum of 10,000,000.00 (ten million Naira)is hereby awarded as damages payable by
therespondents jointly and severally for the unlawfularrest, detention, harassment,
intimidation of theapplicants and the locking up of the applicant’s DutyFree Shop, at Murtala
Mohammed InternationalAirport, Ikeja, Lagos.
The appellants being dissatisfied with the outcome of thesaid judgment filed a notice of
appeal on 5-8-2010. It contains sixgrounds of appeal.
In a brief of argument filed on 17-5-2012, the appeallantsformulated 4 issues for
determination to wit:
1.Whether the applicants at the lower court (respondentsherein) was not deemed to have
admitted all the factsin the counter affidavit of the appellants having failedto file a reply to
the said counter affidavit and whetherthe learned trial Judge was right in solely relying onthe
applicant’s affidavit in support in arriving at itsjudgment.
2.Whether it was right of the learned trial Judge to holdthat the arrest and detention of the 1st
respondenttill date of judgment on the 12th of June 2010 wasunconstitutional, null and void
having been grantedbail at the instance of the court on the 7 of July, 2011.
3.Whether the learned trial Judge was right in awardingdamages of N10,000,000 against the
respondents(appellant, jointly and severally.)
4.Whether the office of the Chairman Economic andFinancial Crimes Commission is a
juristic person thatcall sue and be sued.
The respondents in their brief of argument filed on 30-4-14but deemed properly filed on 17-
3-15 also formulated 4 issues fordetermination as follows:
1.Whether it is in all circumstances when a reply to acounter affidavit is not filed as was in
the present caseat the lower court meant all the facts in the counteraffidavits are deemed
admitted and whether the trialjudge was right to have delivered its judgment based
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
88
on the respondent’s affidavit in support and appellant’s counteraffidavit at the lower court.
2.Whether the detention of the 1st respondent by theappellants from 23rd June, 2010 until the
date ofjudgment of the lower court on the 12th July, 2010 wasunconstitutional, null and void?
3.Whether the respondents are entitled to the N10,000,000.00 damages awarded to them by
the lower courtand also whether the N10,00 0,000.00 is enough tocompensate the
respondents for the injustice sufferedin the hands of the appellants?
4.In the view of issue 4 of the appellant’s issue fordetermination and ground 6 of their notice
of appeal,whether this court would allow the issue of technicalityto override the purity of
justice.
The appellants also filed a reply to the respondents’ brief ofargument. It is dated and filed on
13-6-2014 and deemed properlyfiled on 17-3-2015.
At the hearing of the appeal on 4-6-2015 both parties dulyadopted their respective briefs of
argument.
A close reading of the issues raised in the parties briefs of argumentreveal substantial
similarity in their context and the difference beinggrammatical presentation. I will however
adopt the four issues asformulated by the appellants in the consideration of this appeal.
Issue One
Learned counsel for the appellants, herein submitted inter alia, thatthe learned trial Judge did
not evaluate the totality of the evidencebefore him before arriving at its decision.
He then referred to the finding of the learned trial Judge atpage 274 line 17 of the record;
paragraph 12-14 of the respondents’affidavit in support of their originating motion and
paragraphs 3 to9 of the appellants counter affidavit at page 153-156 of the record.
Learned counsel contended that the respondents did not file anyreply to challenge the
appellants depositions in their counteraffidavit as to the facts that triggered investigations on
the matterbut only filed a further affidavit on the state of health of the 1strespondent.
Further reference was made to the holding of the learned trialJudge at page 171 lines 25 to 29
and page 172 lines 1-6 of the recordto submit that the 1st respondent did not in any part of
their affidavit
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR89
depose that he informed the appellant about any pending suit inhis statement to warrant the
finding of the learned trial Judge thatthe said statement ought to have been attached to the
appellants’counter affidavit as an exhibit.
Learned counsel further asserted that since the respondents didnot file any affidavit in reply
to challenge the appellants’ counteraffidavit, they are deemed to have admitted the facts
deposedtherein. He cited the following cases in support. Dokubo-Asari v.FRN (2007) 5-6 SC
150, (2007) 12 NWLR (Pt. 1048) 320; Adesinav. Osogbo (1996) 4 SCNJ 111 reported as Ex-
parte Adesina (1996)4 NWLR (Pt. 442) 254; A.-G., Anambra State v. Okeke (2002) 5 SC(Pt.
11) 58, (2002) 12 NWLR (Pt. 782) 575; Stephen Lawson-Jackv. SPDC (Nig.) Ltd. (2002) 7
SC (Pt. 11) 112, (2002) 13 NWLR (Pt.783) 180; H. S. Engineering Ltd. v. S. A. Yakubu (Nig.)
Ltd. (2009)10 NWLR (Pt. 1149) 416; Nwanganga v. Military Governor ImoState (1987)
3 NWLR (Pt. 59) 185; A.-G., Plateau State v. A.-G.,Nassarawa State (2005) 9 NWLR (Pt.
930) 421 at 424.
Learned counsel also picked holes with the manner the learnedtrial Judge evaluated the
evidence as shown at page 180 to 181 ofthe record which it was contended goes contrary to
the affidavitevidence before the court and more particularly as it relates to thesealing of the
shop at the Murtala Mohammed International Airport,Lagos.
Learned counsel for the respondents, in his reply submittedthat it is not in all circumstances
that failure to file a reply affidavitwill justify the presumption of correctness of depositions in
acounter affidavit. Vide Uket v. FRN (2008) All FWLR (Pt. 411) 923at 937. It was further
argued that all the paragraphs of the counteraffidavit did not comply with the provisions of
section 115(1)(3)and (4) of the Evidence Act 2011 hence the lower court couldnot act on it.
Moreso, given that the said counter affidavit did notdisclose the source of the appellant’s
information and belief andcontains legal arguments and conclusions instead of facts,
learnedcounsel justified the holding of the lower court at pages 171 to 172of the record to the
effect that the appellants did not attach the 1strespondent’s statement to their counter affidavit
to show whetheror not it was stated therein that the appellants were informed abouta pending
civil matter in the Federal High Court - and referred toparagraph 14 and 15 of the
respondents’ affidavit in support wherethe issue was deposed to with exhibits DL1 - DL3
attached.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
90
It was also submitted that deposition in an affidavit may berejected or there would be no need
to controvert them by way ofcounter affidavit or reply affidavit where in a deserving case
thereare no supporting exhibits. Reliance was placed on the followingcases: Uket v.
FRN (2008) All FWLR (Pt. 411) 923 at 937; R.e.a.n..Ltd. v. Aswani Textile Ltd. (1992) 2
SCJN (Pt. 11) 346, (1992) 3NWLR (Pt. 227) 1; Ogoejeofo v. Ogoejeofo (2006) All
FWLR(Pt. 301) 1792, (2006) 3 NWLR (Pt. 996) 205; Lawrence v. A.-G.,Federation (2008)
All FWLR (Pt. 426) 1901 at 1925- 1926, (2008)6 NWLR (Pt. 1084) 453.
Furthermore, it was submitted that all the authorities cited bythe appellant in support of the
issue did not apply or are wronglycited because it is not in all cases where an affidavit is not
counteredor a reply deposed to that will engender a finding that the avermenttherein are
admitted.
In their reply brief, the appellants’ counsel submitted thatissue (1) as raised in the
respondents’ brief of argument is a freshissue being raised before this court for the first time.
Therefore,having not obtained the leave of this court to raise same, it shouldbe
discountenanced.
Issue Two
Herein, learned counsel for the appellants submitted that the 1strespondent’s detention till the
date of judgment was at the instanceof the lower court and not the making of the appellants as
shownin the proceedings of the court on 7-7-2010. He added that havingapproved the grant of
bail to the 1st respondent by the appellantsupon fulfillment of conditions imposed by the said
appellants, itwas wrong for the lower court to have come to the conclusion thatthe appellants
were responsible for his detention from 23-6-10 to12-7-10, the date of the judgment.
It was further contended that the appellants did what wasrequired under the law by granting
bail to the 1st respondent andhas no further duty to help him perfect the terms of the bail and
assuch does not warrant the damages awarded against the appellants.
For the respondents it was submitted by their counsel that the1st respondent was arrested on
23-6-2010 and detained at the officeof the appellants at 15A Awolowo Road, Ikoyi, Lagos
until 12-7-2010 when the lower court delivered its judgment. Reference wasmade to section
35(1) and (4) of the 1999 Constitution (as amended)to contend that the appellants in the
circumstance was in the breach
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR91
of its provisions. Moreso that it imposed stringent conditions forthe bail and also seized the
1st respondent’s British Passport therebydenying him the opportunity to travel out of Nigeria
being a BritishCitizen. He relied on the case of Ibori v. FRN (2009) 3 NWLR (Pt.1127) 94 at
106.
It was further contended that the appellant violated theFundamental Rights of the 1st
respondent by not charging him to acourt of competent jurisdiction in accordance with
section 35(5)(a)of the 1999 Constitution despite the nearness of their office to theFederal
High Court, Ikoyi.
In their reply brief, it was submitted by the appellant’s counselthat even if the conditions for
the bail granted by the appellantswere found to be stringent, by requesting for a level 16
officer orowner of a property in Lagos as a surety, the 1st respondent was freeto have applied
to vary the said conditions either to the appellantsor to any court but he failed or neglected to
do so. He urged thiscourt to discountenance the case cited by the appellant.
Dealing with the appellant’s issue 1 and 2, it must be bornein mind that affidavit evidence is
not pleadings but in consideringwhether to grant a relief sought or not to do so. It follows
thereforethat while in this case of pleadings, averments therein, unlessadmitted constitute no
evidence, affidavits are by law evidenceupon which the court of law will in appropriate cases
act.
See Central Bank of Nigeria v. Amao (2010) 5-7 SC (Pt. 1)page 1, (2010) 16 NWLR (Pt.
1219) 271 and B.V. Magnusson v.Koiki (1993) 12 SCJN 114, (1993) 9 NWLR (Pt. 317) 287.
It is also the law that facts contained in an affidavit form partof the documentary evidence
before the court. Thus, where anaffidavit is filed deposing to certain facts and the other party
doesnot file a counter affidavit or a reply affidavit, the facts deposed toin the affidavit or
counter affidavit would be deemed unchallengedand undisputed. Simply put, paragraphs of
affidavit not deniedor controverted are deemed admitted. See Badejo v. Minister
ofEducation (1996) 9- 10 SCJN 51, (1996) 8 NWLR (Pt. 464) 15;Lawson-Jack v. SPDC
(Nig.) Ltd. (2002) 12 SCM 131, (2002) 13NWLR (Pt. 783) 180; Ogoejeofo v.
Ogoejeofo (2006) 1 SCNJ 6,(2006) 3 NWLR (Pt. 966) 205.
The appellants’ grouse here is that the learned trial Judge didnot evaluate the totality of the
affidavit evidence before the courtbut had virtual reliance on the respondents’ affidavit in
reaching his
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
92
decision notwithstanding the fact that the respondents did not fileany reply to the counter
affidavit, which depositions therein oughtto be deemed admitted.
It must be pointed out however that it is not in every situationthat failure to file a counter
affidavit or reply to a counter affidavitwill result in the unchallenged or uncontradicted facts
being deemedadmitted as true and correct.
Therefore, if an affidavit is self contradictory or if the factscontained therein are presumed to
be true and when taken togetherare still not sufficient to sustain the prayers of the applicant, it
willbe needless for a respondent to file a counter affidavit. The sameprinciple applies in the
case of failure to file a reply to a counteraffidavit.
See Royal Exchange Assurance (Nig.) Ltd. v. Aswani TextileIndustries Ltd. (1992) 3 NWLR
(Pt. 227) page 1.
I have carefully perused the judgment of the lower court withparticular emphasis on the pages
referred to by the appellant, aswell as the parties affidavit evidence.
The bottom-line here is whether the learned trial Judge properlyevaluated the affidavit
evidence before the court as presented bythe parties to the dispute. He had held in the
judgment at pages 170to 172 as follows:
“From the affidavit evidence before me, it appears notto be in dispute that the 1st applicant
was arrested by therespondent on the 23rd of June, 2010, based on a petitionwritten by one
John Fashanu in respect of a financialtransaction which involved the purchase of shares ina
company known as Business Mart UK Limited uptill the date of the hearing of this
application, the 1stapplicant was being detained by the respondents.It also appears that the 1st
applicant volunteered hisstatement to the respondents, he was served with theconditions for
the grant of bail, but these conditionscould not be met by the 1st applicant. The said
applicantwas directed to deposit his International Passport withthe 1st respondent.
From the facts, it appears clear to me that thesubject matter of the transaction leading to the
arrestof the 1st applicant was the subject matter of suit No.FHC/CS/103/07, Federal Republic
of Nigeria v. David
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR93
Littlechild & Ors, wherein the 1st respondent obtainedthe orders of this court to freeze the
account of the 1stapplicant. It is clear that the orders obtained were setaside by the Court of
Appeal No. CA/L/328/07.
It is also clear from the facts before me that the 1stapplicant thereafter commenced all action
against thecomplaint/petitioner (Mr. John Fashanu) in suit No.LD/145/07 on the subject
matter that lead to his arreston 23rd June, 2010, and the suit is pending before theLagos High
Court.
From exhibit DL8 attached to the further affidavit,it is clear that the 1st applicant is sick and
in need ofmedical treatment.
While the applicants contend that the petition isspurious and unfounded and that it is being
used tointimidate, harass and frustrate the applicant’s businessactivities, the respondents
contend that the petition isnot frivolous. The petition upon which the respondentsacted and
seem to justify the arrest and continueddetention of the 1st applicant was not attached to
thecounter-affidavit filed by the respondents.
The respondents have also denied being aware ofany suit pending against Mr. John Fashanu
and theywere never served with the said court process. Therespondents failed to attach to the
counter affidavitfiled statement made by the 1st applicant to them afterhis arrest to controvert
his assertion that he informedthe respondents that he had instituted an action againstJohn
Fashanu on the same subject matter at the LagosHigh Court and that the said John Fashanu
had notfiled any defence to the suit, neither had he enteredany appearance despite evidence of
service of courtprocesses on him.”
From the above set out portion of the judgment, I am mindedto observe that the learned trial
Judge cannot be accused of relyingonly on the respondent’s affidavit in reaching his decision
becauseit is quite clear from the findings that reference was made to thedeposition of both
parties.
The fact that he opted to rely more on the affidavit evidenceof the respondents is a matter
within the powers of the learned
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
94
trial Judge. Whether it was judiciously or perversely done is adifferent issue.
It is however not in dispute that the 1st respondent was arrestedon 23-7-2010 and was
admitted to bail that same day upon fulfillmentof the bail conditions which includes the
provision of a surety orsalary Grade Level 16 or the owner of a house in any part of
Lagos.The respondent did not fulfill the terms of the conditions for bailbut opted to apply to
the lower court for the enforcement of hisfundamental rights. Thus, on 7-7-2010 when the
application cameup for hearing, the lower court granted bail to the 1st respondent onthe terms
prescribed by the appellants pending the judgment fixedfor 12-7-2010. The said ruling on 7-
7-2010 reads thus:
“In the interest of justice and pursuant to the provisionof Order XI of the Fundamental Rights
(EnforcementProcedure) Rules, 2009, the respondents are herebydirected to release the 1st
applicant on bail upon thefulfillment of the (sic) any of the conditions imposedby the said
respondents for the grant of provisionalbail. The bail shall be granted by the
respondentspending judgment in this suit. Matter, is adjourned to12-7-2010 for judgment.”
However in the judgment delivered by the judge on 12-7-2010, five days later reliefs (i) was
granted as follows:
“A declaration is made that the arrest and detentionof the 1st applicant on the 23rd June 2010
till date bythe respondents is illegal, unconstitutional, null andvoid and a breach of 1st
applicant’s right to freedomof movement and personal liberty as guaranteed bythe provisions
of section 34, 35, 44 and 46 of theConstitution of the Federal Republic of Nigeria 1999.”
As much at it may sound contradictory in terms given thatthe same court had on 7-7-2010
admitted the 1st respondent to bailon the conditions as prescribed by the appellants. It must
howeverbe noted that the totality of the finding of the lower court wasthat the arrest and
detention of the 1st respondent was illegal andunconstitutional ab initio given that there was
no basis for same.Part of the said finding is at page 171 of the record where it washeld thus:
“The petition upon which the respondents acted andseem to justify the arrest and continued
detention of the
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR95
1st applicant was not attached to the counter affidavitfiled by the respondents.”
To my mind, the age long principle of law that he who assertsmust prove is sacrosanct in our
jurisprudence. The appellants haddeposed in paragraphs 4 and 5, 10 and 11 of their counter-
affidavitthat the arrest of the 1st respondent was based on a petition receivedfrom one John
Fashanu.
The said petition heavily relied on to justify their action againstthe 1st respondent was not
attached to their affidavit evidence beforethe lower court. This no doubt is a fundamental
flaw which thelearned trial Judge observed to hold inter alia that the 1st respondentwas
unnecessarily harassed and detained.
Affidavit evidence which are clearly and bare allegations and/or conclusions but not
supported with facts and/or documents neededto establish them are omissions which are fatal
to any application orassertion before the court. Thus where cases are tried upon
affidavitevidence, the facts or depositions in such affidavits have to be provedlike averments
in pleadings. See General & Aviation Services Ltd.v. Thahal (2004) 4 SCM 52, (2004)
10 NWLR (Pt. 880) 50; UnionBank of Nigeria Plc v. Astra Builders (WA) Ltd. (2010) 2-3 SC
(Pt. 1)page 60, (2010) 5 NWLR (Pt. 1186) 1.
In the instant case, the failure of the appellants to produceor attach the petition upon which
they acted in arresting the 1strespondent in order to justify their action before the lower court
isno doubt fatal to their defence.
I am not unmindful of their statutory empowerment to arrestanybody upon reasonable
suspicion of having committed anyfinancial crime as prescribed in section 7 of the EFCC Act
2004 butin the instant case, having premised and relied on a petition as theirdefence to the
arrest and detention of the 1st respondent, it behovesthem to satisfy the court that their act
was done within the ambitof the law given that the fundamental rights of every citizen ofthis
country and even strangers under the umbrella of the sovereignprotection of this country is
jealously preserved and guaranteed bythe 1999 Constitution.
In this regard, the issue whether the lower court was right inholding that the arrest and
detention of the 1st respondent from 23-6-10 till judgment on 12-7-10 was illegal though
irregular becomesa moot point given the finding of the lower court that the arrest
waswrong ab initio in the absence of any proof to the contrary.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
96
The matter is even made worse by the fact that between the arrestof the 1st respondent on 23-
6-2010, the 1st respondent has not beencharged to any competent court for any offence.
“The 2nd applicant has contended that it was sealed onthe 24th June, 2010, and has lost profit
of N1,000,000each day. The respondents contend that it merely tooksteps to secure vital
exhibits that would be required inthe course of trial. The respondents have failed to saywhat
steps they took. What were these steps taken inorder to secure these vital exhibits required in
the courseof trial? It is now settled law that denial in affidavitmust be precise, concise and
exact. A denial must giveno room for conjecture or speculation. A denial of arigmarole and
vague nature is in law and in fact not adenial. In the circumstances, I hold that paragraph 20of
the counter-affidavit does not constitute a denial ofthe specific deposition in the affidavit in
support.”
The appellants in paragraph 20 of their counter-affidavitchallenged it as follows:
“That contrary to the averment in paragraph 25 of theaffidavit in support, the 1st respondent
has not sealedup the 2nd applicant shop at Murtala MohammedInternational Airport as
averred, rather it merely tooksteps to secure vital exhibits that would be required inthe course
of trial and aver that the steps taken by the1st respondent did not occasion any loss
whatsoever.”
However, the respondent had deposed in paragraph 25(ii) &(iii)(iii) of their affidavit in
support of the application as follows:
“(ii) on the 24th of June, 2010 the 4th respondent sealed the 2ndapplicant’s duty free shop at
the Murtala MohammedInternational Airport Ikeja Lagos.
the 2nd applicant is losing profit of N1,000,000 (one(iii)million Naira) per day.”
The facts are very clear from the above deposition that it was the 4threspondent at the lower
court that sealed the duty free shop.
Incidentally, the name of the said 4th respondent in theapplication at the lower court was
struck out following an applicationto withdraw against him by the applicants (now
respondents)counsel at the proceedings of 7-7-2010 which went thus:
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR97
COURT = There is no proof of service of the originatingprocesses on the 2nd, 4th, and 5th
respondents.
ODUBELA = If the 2nd, 4th and 5th respondents havenot been served, they are nominal
respondents. Inorder for us to proceed I withdraw against the 2nd, 4thand 5th respondents.
YUSUF = No objection.
COURT = The names of the 2nd, 4th and 5th respondentsare hereby struck out.”
In the light of the withdrawal of the suit against the 4threspondent, John Fashanu who was
alleged in the affidavit to havesealed the duty free shop, the responsibility or liability for his
actioncannot be shifted to the appellants in the absence of any proof thathe acted as their
servant or agent. In the circumstance I hold theview that the appellants ought to be
exonerated from the liabilityof wrongful sealing of the shop given that the applicant
specificallymentioned the 4th respondent (John Fashanu) as having carried outthe sealing.
In the circumstance, issue 1 is partly resolved in favour of theappellant while issue 2 is
resolved against them.
Issue three:
Dwelling on this issue, learned counsel for the appellantsraised complaint about the finding
of the lower court at page 180-181 and 183- 184 of the record to submit that the conclusion
thereinwas reached by the learned trial Judge without considering thepreponderance of
evidence which was in favour of the appellantsgiven the deposition of the respondents in
paragraph 25 of theiraffidavit in support of the application as regards the sealing up ofthe
duty free shop by the 4th respondent whose name was earlierstruck out of the suit on the
application of the respondents’ counsel.
He also referred to paragraph 20 of the appellants’ counter-affidavit to submit that the
respondents did not file a replyaffidavit to contradict same and as such it was deemed
admitted.But the said paragraph was the import of the deposition in the saidparagraph 20.
It was further contended that the learned trial Judge did notfollow the laid down principles in
awarding damages and ought tolimit himself to the materials placed before the court by the
parties.He then urged this court to intervene and reverse the damagesawarded against the
appellants.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
98
For the respondents, it was submitted by learned counsel thatthe 1st respondent was arrested
on 23-6-2010 by the appellants whoalso sealed the duty free shop of the 2nd respondent on
24-6-2010,which act of sealing the appellants admitted in paragraph 20 of theircounter-
affidavit. He added that such acts constitute infringementof the fundamental right of the
respondents by virtue of section35(6) of the 1999 Constitution and as such the lower court
wasjustified in awarding N10,000,000 damages. Vide Nemi v. A.-G.,Lagos State (1996)
6 NWLR (Pt. 452) 42; Minister of InternalAffairs v. Shugaba (1982) 3 NCLR 915; F.R.N. v.
Ifegwu (2003) 15NWLR (Pt. 842) 113.
This court was urged to discountenance the arguments ofthe appellants in paragraphs 6.10 -
6.11 of their brief of argumentand the cases cited in support and to hold that the
respondentsare entitled to the N10,000,000 damages awarded and deserveseven more.
Given the resolution of issues I and 2 partly against theappellants and having affirmed that
the learned trial Judge properlyevaluated the affidavit evidence presented before the court by
theparties except as to sealing of the shop I believe that the answerto issue 3, whether the
learned trial Judge was right in awardingdamages of N10 million against the respondents
jointly andseverally, cannot be in the negative. The latin maxim ubi jus, ibiremedium (where
there is a right, there is a remedy) still stands firmand further strengthened by the provisions
of section 35(6) of the1999 Constitution as amended which provides that any person whois
unlawfully arrested or detained shall be entitled to compensationand public apology from the
appropriate authority etc. Thus in Abiolav. Abacha (1997) 1 HRLRA 447, (1997) 6 NWLR
(Pt. 509) 413 itwas held that an applicant seeking redress for the infringement ofhis
fundamental right is in addition to a declaratory and injunctiveorders, also entitled to an
award of damages.
In the instant case having held that the lower court was rightin coming to the conclusion that
the arrest and detention of the1st respondent was illegal, null and void there is no doubt
thatdamages will normally be awarded, such having been claimed bythe respondents. The
awarded of the sum of N10 million was jointlyand severally for the unlawful arrest and
detention, harassment,intimidation of the 1st respondent and the locking up of their dutyfree
shop at Murtala Mohammed International Airport, Ikeja, Lagos.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR99
However, given that the allegation of sealing the duty free shop wasnot proved against the
appellants and going by the deposition ofthe respondents in paragraph 25 of their affidavit in
support to theaffect that the 4th respondent whose name was struck out of the suitin the lower
court sealed the said duty free shop. It will to my mindbe out of place to sustain the award of
N10 million damages. In thecircumstance, I hereby invoke the powers conferred on this court
bysection 15 of the Court of Appeal Act 2004 to inter alia, make anyorder necessary for
determining the real question in controversy inthe appeal. Consequently the award of the sum
of N10 million bythe lower court is hereby set aside and in its place I make an awardof the
sum of N5 million as damages against the appellants jointlyand severally for the unlawful
arrest, detention, harassment, andintimidation of the 1st respondent.
This issue is therefore partly resolved in favour of theappellants.
Issue Four
Dwelling on this issue learned counsel for the appellantacknowledged that the issue was not
canvassed at the lower court butis being raised for the first time before this court. He then
contendedthat for an office to be juristic, it must not only be recognized orcreated by statute,
but must also be conferred with the powers tosue and be sued. He added that the “Chairman
of Economic andFinancial Crimes Commission (EFCC)” is not a juristic person.Reference
was made to section 1 of the EFCC Act as well as thecase of A.-G., Federation v.
ANPP (2003) 18 NWLR (Pt. 851) 182 tosubmit inter alia that only natural persons, that is
human beings andjuristic artificial persons, such as bodies corporate, are competent tosue and
be sued and where none is a legal person, the action shouldbe struck out. He cited the
following cases in support Shitta v. Ligali(1941) 16 NLR 23; Agbonmagbe Bank Ltd. v.
General Manager G.B.Ollivant Ltd. (1961) 1 All NLR 125; Fawehimi v. NBA (No.
2) (1989)2 NWLR (Pt. 105) 558; Knight & Searle v. Dove (1964) 2 All ER307; Carlen (Nig.)
Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631.
The respondents’ reply on this issue 4 is that the ground 6 ofthe appellants notice of appeal as
well as the issue 4 formulatedtherefrom was not in anyway canvassed in the lower court
neitherdid it form part of the ratio decidendi of the judgment delivered on12-7-2010.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
100
Learned counsel then referred to the case of Agrochemicals(Nig.) Ltd. v. Kudu Holdings Ltd.
(2000) 15 NWLR (Pt. 691) 493 at505, paras. B-C where the Supreme Court held that:
“For an issue for the determination of an appeal to besustained, it must satisfy two conditions:
It must be formulated within the parameters of(a)a ground of appeal; and,
The ground of appeal must be against thejudgment of the court against which the appeal(b)is
lodged.”
See also Zakari v. Nigerian Army (2012) 5 NWLR (Pt. 1294) 478 at507; Bankole v.
Pelu (1991) 8 NWLR (Pt. 211) 523; Saraki v. Kotoye(1990) 4 NWLR (Pt. 143)
144; Gomwalk v. Military AdministratorPlateau State (1998) 6 NWLR (Pt. 555) 653; Wema
Bank Plc v.Osilaru (2008) 10 NWLR (Pt. 1094) 150 at 162.
Alternatively, the case of Carlen (Nig.) Ltd. v. Unijos (1994) 1NWLR (Pt. 323) 631 was
relied on to submit that the said decisionof the Supreme Court can be interpreted to the effect
that by virtueof section 2(1) (a)(i) (ii) and (iii), (Part ii) of the EFCC Act, 2004the Chairman
EFCC may not have been conferred with the right tosue or be sued eo nomine, but
considering the nature of its functionsand powers, duties and responsibilities conferred on the
Chairmanby the Act, the Chairman EFCC is deemed to have been given thepower to sue and
be sued. He also cited the cases of Thomas v. LocalGovernment Service Board (1965) 1
NMLR 310 and Willis & Anorv. Association of Universities of The British
Commonwealth (1964)2 All ER 39; The Provost, A.I.C.E. v. Amuneke (1991) 9 NWLR
(Pt.213) 49 and African Ivory Insurance Co. Ltd. v. Commissioner ForInsurance (1998)
1 NWLR (Pt. 532) 50 at 57.
Furthermore, this court was urged not to allow itself tosacrifice the purity of justice on the
altar of technical subterfugebecause the appellants’ argument in issue 4 is an attempt to
denythe respondents, justice by challenging the inferred powers of theChairman EFCC to sue
and be sued.
In their reply brief, the appellants’ counsel drew the attentionof the respondents to the fact
that they applied to this court to raiseand argue fresh issues on appeal and this was granted on
15-1-2014.Therefore the respondents’ stance on the issue is of no moment. Therecord of this
court indeed show that the appellants filed a motionon notice dated and filed on 18th May
2012 for leave of this court
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR101
to raise and argue a fresh issue on appeal and the said applicationwas duly granted by this
court on the 15th January 2014. This putpaid to the contention of the respondents that no
leave was soughtand obtained before issue 4 was raised in the appellants brief ofargument as
derived from ground 6 of the notice of appeal.
On the issue whether the Chairman EFCC can be sued as ajuristic person as was done in the
instant case. This indeed is anarea of law that sounded recondite but there is however a
referencepoint in a judgment of this court delivered by Ayoola, JCA (ashe then was) in the
case of African Ivory Insurance Co. Ltd. v.Commissioner For Insurance (1998) 1 NWLR (Pt.
532) 50.In thesaid case this court consisting of a panel of eminent and respectedjurists in this
country, to wit Dahiru Musdapher, Samson O. Uwaifoand E.O. Ayoola, JJCA (as they were
then) observed and notedthat the Commissioner for Insurance was vested with
enormouspowers and functions which may affect insurance companies. Theplaintiffs had
alleged in that case that the commissioner threatenedto penalise them as provided by section
8 of the Insurance Decreeand such penalty would cause irreparable damage to the
insurersconcerned. Their Lordships then held that in the circumstance itwould be unjust to
hold that the commissioner could not be sue eonomine. It was further held that the holder of
the office may changebut as long as the decree stood, as it was the office of
Commissionerestablished by it with powers and functions that may be operateddetrimentally
against the interest of the plaintiffs, remained. Theexpress view of His Lordship per Ayoola,
JCA (as he then was) atpage 57, paras. B-F of the report is herein below set out.
“Of more relevance to the present case, as far asstatement of principle is concerned, is the
caseof Fawehinmi v. N.B.A. (supra) which containedilluminating discussion of several of the
relevantauthorities both local and foreign. The propositionapplicable to the case at hand that
can be distilledfrom the authorities can be shortly stated. Where abody or (office) is created
by statue notwithstandingthe absence of an express provision thereon as to itscapacity to sue
or be sued, the right to sue and be suedmay be inferred from the statute after a careful
andclose reading of the provisions of the relevant statute.To infer a right to sue the officer or
body eo nomineregard may well be had to the nature of the
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Oseji,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
102
powers and functions vested in the office or body,the extent to which such powers and
functions mayaffect or impinge on the rights of other persons and theinjustice that would
arise from unavailability of meansof redress should the office exercise such powers
orperforming such function not be subject to any kind ofproceedings. On the other hand, if
inability to sue inorder to enforce the powers and functions ineffectivea right to sue eo
nomine would readily be inferred.The proposition shortly stated above can be seen
inoperation in such cases as Kpebimoh v. The Board ofGovernors, Western Ijaw Teachers
Training College(1966) 1 NMLR 130; Thomas v. Local GovernmentService Board (1965) 1
All NLR 168 and SolicitorGeneral Western Nigeria v. Adedoyin (1973) UILR143 all of
which have been discussed in Fawehinmiv. NBA (No. 2) (supra). That proposition can no
doubtbe more readily applicable when the action is onesuch as the present one, to protect
rights claimed inpublic law from threaten infringement. The realisticview in such a case is to
make the office vested withpowers and functions which may in their exercise
andperformance lead to such infringement amenable tolegal proceedings eo nonime.”
Flowing from the above decision, there is no doubt that thechairman EFCC is vested with
enormous powers even more thanthat of the Commissioner referred to in the above cited case
in thesense that the Chairman EFCC not only has powers to determinewhether a person
should be arrested and detained but also whetherhis property should be sequestered. The
powers conferred on theChairman of EFCC under the EFCC Act is not only enormousand
intimidating but is constantly in direct confrontation with thefundamental human rights as
guaranteed by the Constitution ofthe Federal Republic of Nigeria 1999 and this no doubt
engendersevery justification to hold that he can be sued eo nomine as wasdone in this case. In
this regard, I agree with the submission of therespondents’ counsel that due to the functions,
duties and powersof the chairman EFCC, under the EFCC Act 2004, this court cannotignore
the necessity of the occupier of said office being sued eonomine. It does not however
preclude the reality of the fact that it ismost acceptable and realistic to sue EFCC directly.
Nonetheless I resolve this issue against the appellant.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Iyizoba,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H
[2016]3NWLR103
On the whole, this appeal succeeds in part and it is accordinglyallowed in part.
Except for the award of N10 million damages which is herebyreduced to N5 million, the
judgment of the Federal High Courtdelivered by N.B. Idris, J. on 12-7-2010 is hereby
affirmed. Partiesto bear their costs.
IYIZOBA, J.C.A.: I read before now the judgment just deliveredby my learned brother,
Samuel Chukwudumebi Oseji JCA. Iagree entirely with the judgment, His Lordship has dealt
fully andcomprehensively with all the issues raised in the appeal.
By failing to attach to their counter-affidavit the petition uponwhich the appellants acted,
section 149(d) of the old EvidenceAct, now section 167(d) of the 2011, Act, came into play.
Underthe subsection, the court may presume that evidence which couldbe and is not produced
would, if produced, be unfavourable tothe party who withholds it. Musa v. Yerima (1997)
7 NWLR (Pt.511) 27 @ 49, G-H. The appellants cannot claim that the petitionagainst the
appellant contained allegations of the commission of acrime justifying his arrest without
making available to the court thepetition as an annexure to their counter-affidavit to enable
the courtdetermine the issue.
I agree that the appeal succeeds in part only in respect of theamount of damages awarded. I
abide by the consequential orders inthe lead judgment including the order as to costs.
TUKUR, J.C.A.: My learned brother, Samuel ChukwudumebiOseji, JCA, afforded me the
opportunity of reading the draftjudgment just delivered, I agree with the reasoning and
conclusioncontained therein.
I also allow the appeal in part and abide by the consequentialorders made therein.
Appeal allowed in part.
NigerianWeeklyLawReports15February2016(Oseji,J.C.A.)Chairman,E.F.C.C.v.Littlech
ild(Iyizoba,J.C.A.)
A
A
B
B
C
C
D
D
E
E
F
F
G
G
H
H