In a recent suit filed by an Abuja-based lawyer and property developer, Cecil Osakwe against the Department of State Security Service (DSS), the court maintained that the right to personal liberty and freedom of movement are not enough reasons to justify restraining the Police from discharging its statutory duties.
Under the provisions of Section 4 of the Police Act and the provisions of Section 41 of the Economic and Financial Crimes Commission Act 2004, the Police cannot be held accountable for any invitation, arrest or detention of any person in the process of discharging its statutory duties of investigating and prevention of crimes.
This position was upheld in a recent case of fundamental rights enforcement suit filed by an Abuja-based lawyer and property developer, Cecil Osakwe against the Department of State Security Service (DSS), the Inspector General of Police (IGP), and the Commissioner of Police, FCT.
The court held that Law Enforcement Agencies vested with statutory powers to investigate crimes cannot be restrained or arm-twisted by litigation to prevent them from exercising their statutory powers. Already, the FCID has transferred the case file to the Office of the Attorney-General of the Federation and Minister of Justice for legal advice on the charges to prefer in the matter.
Osakwe had approached the court following his invitation by the Federal Criminal Investigations Department, FCID, for allegedly using non-court bailiffs and police to forcefully eject a civil servant, Ms. Asabe Waziri from an apartment he allegedly sold to her at Abeh Signature Apartments located at Maitama, Abuja.
Osakwe is the Managing Director of Abeh Signatures Ltd, owner of the apartment sold to Ms. Waziri.
The police are also investigating a case of obtaining by false pretence, the sum of N130 million allegedly collected from Ms. Waziri, for the purchase a two-bedroom flat at Abeh Signature Apartment in Maitama, Abuja. The investigation was based on new revelation from the High Court of FCT showing that the FCT High Court did not authorized the levying of any execution on the property of Ms. Waziri, a civil servant, who was forcefully and illegally ejected from her home via a fake execution of judgment order from the FCT High Court.
The FCT High Court, in a letter by its Director of Enforcement, Mr. Chukwuemeka Ubani, said: “The High Court of FCT, Abuja did not authorise the levying of any execution in respect of the above-named parties on March 18, 2022,” referring to the case of Asabe Waziri Vs. Abeh Signature Ltd., which was already subject of the appeal.
Ubani, explaining the process of enforcement of execution, stated “Enforcement is centrally done by the Office of the Chief Registrar, through the Office of the Director of Enforcement. This court cannot levy execution without taking the original file, which includes the original copies of the warrant of possession and/or writ of attachment as the case may be, to the venue for sighting by the judgment debtor.”
He said that the court does not levy execution on the strength of a mere letter to the police requesting for police assistance, adding that there must be an approval in writing from the police to release their men before we go for execution.
The letter reads in part ‘’At the High Court, enforcement is centrally done by the office of the Chief Registrar, through the office of the Director of Enforcement. This fact, I have already explained to Mr. Oyefeso, and he is aware of same. I equally explained to Mr. Oyefeso that this Court cannot levy execution without taking the original file which includes the original copies of the warrant of Possession and/or Writ of attachment, as the case may be, to the venue for sighting by the Judgment Debtor.
‘’I also explained to him that this Court does not levy execution on the strength of a mere letter to the Police requesting for Police assistance. I stated that we must first get approval in writing from the Police to release their men before we go for execution. I explained to him that we do not make use of any Policeman except those specifically and already assigned to the Court known as the Judges Protection Unit (JPU).
‘’The Enforcement Department does not have any officer known as Isa Mohammed. The Chief Judge of the High Court of the FCT, Abuja did not authorize any execution in respect to this matter on 18th March 2022. Since the High Court of the FCT, Abuja did not authorize the ejection of your client, it cannot restore her to the place’’.
However, not willing to honour police invitation, Osakwe in a fundamental rights enforcement application before Justice Mohammed Idris of Jabi Division, FCT High Court, had asked the court to stop security agencies from arresting or investigating him.
In his originating motion dated 1st February 2022, he asked the court for an order of perpetual injunction restraining the DSS, IGP, and Commissioner of Police FCT or their agents from further inviting and threatening to arrest and detain him or interfere with his right to freedom of movement and right to property, on purely civil matter.
Besides, the Applicant asked the court for an order directing the payment of the sum of N100 million as damages against the 1st Respondent, and additional N50million against the 3rd and 4th respondents respectively.
The applicant asked the court to declare that his invitation and arrest by the defendants were unlawful and unconstitutional as they constitute an infringement on his personal liberty, and right to own property as enshrined in the 1999 constitution.
Opposing the application, the DSS lawyer urged the court to determine “Whether the applicant can shield himself through the fundamental rights enforcement procedure from an investigation by security and law enforcement agencies, of alleged infraction of the law.”
In his judgement, Justice Muhammad Idris, struck out the case, and held that there was no way the court could restrain the police from carrying out their constitutional duty of criminal investigation.
The Judge held that the law has clearly enshrined in section 135-137 of the Evidence Act, laid down the fundamentals, that he who asserts must prove, stressing that there was nothing in the affidavit of the Applicant suggesting the involvement of the 3rd and 4th Respondents with specific references as regards the exact police division, dated time or even the officer (s) the case was assigned to, let alone a breach of his fundamental rights.
The court held that the Applicant (Osakwe) alleged he was intimidated, threatened and harassed with no lawful authority by officers of the 2nd-4th Respondents facilitated by the 1st Respondent, but he did not produce any evidence to support his allegation, nor did he adduce any evidence to link the 1st Respondent to the alleged act nor to show that the 2nd – 4th Respondents was facilitated by the 1st Respondent.
Justice Idris held ‘A perusal of the Applicant’s supporting affidavit would show that the allegation of facts in paragraphs 22, 24, 25, 29 and 30 of the Applicant support affidavit does not relate to facts which directly affected the Applicant personally, rather the deposed facts which were stated by one kola Adewale someone other than the Applicant alleging injures to persons different from the Applicant, deponent are not before the Court.
“The fundamental rights (enforcement procedure) Rule 2009 grants the Applicant, some latitude in the enforcement of his rights. Nonetheless, it neither removes the general burden of proof imposed by law nor sacrifices the need to do justice to all concerned. Where an Applicant, as in the instant case, fails to discharge the burden imposed on him by law, the application will be dismissed irrespective of the emotions evoked.
“The Court has a duty to carefully examine the reliefs claimed to ascertain what the claim is all about. From the first issue it is my humble view that same has not satisfied the requirements the same thing applied to the second issue raised by the Applicant in this case.
“From the entire processes filed by the Applicant a careful examination of the reliefs and issues for determination shows clearly that as can be seen in the reliefs was a breach on the Applicant which can ordinarily be brought by a way of writ and which must be supported by evidence.
“Thus, the mere assertion of the violation of the applications constitutional right does not necessary make the action maintainable by recourse to the fundamental Right (Enforcement Procedure) rules the Court has to examine reliefs closely to ascertain what the Applicant claims.
“On a thorough scrutiny of the reliefs claimed it is my view that the principal claim if any has not been established therefore on the authority of Tukurs (supra) and other I have cited above this suit ought to have been initiated by a writ of summons where the parties could have filed and exchanged pleadings and evidence will be adduced and tested on the issues raised by the Applicant, the law on the point as well settled is that only actions found on a breach of any of the fundamental right guaranteed in the constitution can be enforced under the rules.
“As a result of the failure in the part of the Applicant to sustain his 1st relief based on the fundamental Right (Enforcement Procedure) rules all other reliefs contain there in has failed. Accordingly based on the judicial authorities cited above this application is hereby struck out”.
Consequently, the court refused to restrain the police, from arresting, investigating and prosecuting Cecil Osakwe for the alleged offence.
