Justice Ayokunle Faji of a Lagos Federal High Court, has dismissed a fundamental rights enforcement suit filed by a Chartered Accountant, Omafume Augustina Ayinuola, against the Inspector-General of Police (IGP) and four others.
Apart from dismissing the suit, Justice Faji, also ordered the Chartered Accountant, who is currently be remanded at the Female section of Kirikiri Center of the Nigerian Correctional Services (NCoS) over alleged over N1 billion fraud, to pay a total sum of N950, 000, 00, to all the respondents in the suit.
Others respondents in the suit marked FHC/L/CS/757/2023, the Commissioner of Police (INTERPOL); DCP Emmanuel Agene; ASP Raphael Ajulo and a firm.
The Chartered Accountant had approached the court for the following reliefs and orders: “a declaration that the Gestapo-style raiding, arrest and incarceration her for seven consecutive days from March 23, 2023 to March 29, 2023 under cruel, inhuman and degrading condition by the second to fourth respondents at the behest of the fifth respondent, is a brazen violation of her rights to personal liberty, freedom of movement and dignity of her human person guaranteed by Sections 34(1)(a), 35(1), 35(5)(a), 4101) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 4, 5, 6, & 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004 and therefore unconstitutional, unlawful and ultra vires.
“A declaration that the arbitrary seizure of the Applicant’s International Passport and forceful confiscation of her Toyota Fortuna with Registration No: JJJ 371 XP and Lexus 350 with Registration No: JJJ 377 GE, belonging to her father and other valuable properties of her by the second to fourth respondents, without lawful justification is a violation of the Applicant’s right to ownership of properties enshrined in Sections 43 and 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 14 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9Y Laws of the Federation of Nigeria, 2004 and therefore unconstitutional, illegal and ultra-vires the Respondents.
“An order directing the first to fourth respondents to forthwith release to the applicant her International Passport, Laptop, a Toyota Fortuna with Registration No: JJJ 371 XP and Lexus 350 with Registration No: JJJ 377 GE belonging to her father, and all other belongings of her currently in custody of the first to fourth respondents and to immediately lift or take down the unlawful debit restriction placed on her accounts:
“An order directing the fifth respondent to return to her all the original copies of the documents, personal belongings, educational certificates and other vital documents belonging to her mother.
“An order of perpetual injunction restraining the respondents jointly and severally and all other officers and men of the first respondent howsoever described from further dabbling into a purely domestic, civil and private affairs between her and fifth respondent by inviting, arresting, detaining and/or compelling her to report at their station and/or be regularly reporting at the respondent’s office in Lagos or any other office(s) in/or across the Federation in connection with the subject matter of this suit.
“An order directing the respondents jointly and severally to pay to her the sum of N100 million, as compensation for the violation of her fundamental rights pursuant to Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
However, the first to fourth respondents through their lawyer, Barrister Morufu Animashaun, a Legal Officer at the ForceCID, Annex Alagbon-Ikoyi, Lagos, in urging the court to dismiss the suit with substantial cost, filed a Preliminary Objection, a counter-affidavit deposed to ASP Ajulo and a written address.
In convincing the court that the Chartered Accountant’s suit lack merit and same should be dismissed, stated that first to fourth respondents received a petition written on behalf of the fifth respondent by the firm of Femi Falana SAN and Co, alleging that the applicant diverted funds meant for the fifth respondent to her account and her mother’s account and that when applicant’s bank account statement was obtained, sums of N400 million and $800, 000.00 USD, were found to have passed through applicant’s account from the accounts of the fifth respondent’s company.
The lawyer also told the court that granting a perpetual injunction against the first to fourth respondents when the applicant is still under investigation and may face possible criminal prosecution, would pose a serious danger to the criminal justice system and irreparable damages to the fifth respondent whose interest and life are at risk of jeopardy
Specifically, Animashaun, told the court that the applicant has been charged to Court for the offences conspiracy, unlawful diversion and fraud of over N1 billion, forgery and others.
Also, fifth respondent in its counter-affidavit filed by its lawyer, E. I. Maduabuchi, raised one issue for determination, “Whether having regard to the circumstances of this case, the fifth respondent violated the fundamental rights of the applicant?”
The lawyer stated that from the depositions in his client’s counter affidavit, there is a reasonable suspicion of the applicant having committed offence to warrant her arrest. Adding that his client did not violated the applicant’s fundamental right by petitioning the police.
He therefore urged the court to hold that the applicant is not entitled to the reliefs sought.
Delivering judgment in the suit, Justice Faji, after legally examined parties’ submissions, vet all the processes filed and citing plethoras of authorites, decided the issues raised in favour of the respondents and dismissed the Chartered Accountant’s suit.
Justice Faji in the judgment Heald that: “…….. that seems to me to raise an allegation of crime which grounds reasonable suspicion for the first to fourth respondents to invite the applicant for investigation. I also do not see any reason to find fault with the fifth respondent’s conduct, as he was only acting as a good citizen by bringing to the attention of the Police acts which he thought should attract their attention and necessary action.
“The fifth respondent was thus clearly within his rights to report to the Police and no liability attaches for that. See: FAJEMIROKUN v COMMERCIAL BANK CREDIT LYONNAIS (supra); EZEHOUKWU v MAOKA (supra).
“The arrest of the applicant on 23rd March 2023, was thus in my view based on reasonable suspicion that she committed a crime. There was also a warrant of arrest issued by the Magistrate’s court on 10th March 2023 for the arrest of the applicant pursuant to which the applicant was arrested on 23 March, 2023.
“What is more, the applicant was offered bail on 24 March, 2023 but could not fulfil same but only did so on 29th March, 2023 when two sureties came forward. The bail conditions dated 23rd March 2023 were not disputed by the applicant neither did the applicant show that she fulfilled the bail conditions on 23rd March, 2023.
“Having been offered bail and not having fulfilled same, the applicant was no longer under arrest by the first to four respondents.
“What is more, first to fourth respondents on 24th March, 2023 applied for a remand warrant from the Magistrate’s Court but could only obtain same on 27th March, 2023 which was the Monday following 24th March, 2023 which itself was a Friday.
“In any event, even without a remand order from the Magistrate’s Court, the applicant was in the custody of the first to fourth respondents at her own pleasure and volition as she was no more under the detention of the first to fourth respondents, having been offered bail.
“The complaints about the freezing of applicant’s accounts was also answered by reference to the orders obtained from the Magistrate’s Court placing a post no debit on applicant’s accounts.
“There was also a search warrant issued by the Magistrate’s Court pursuant to which the items of the applicant that were seized were seized.
“Applicant herself also signed the endorsement on the search warrant which showed that the search was carried out in her presence and she was aware of the search warrant.
“That therefore in my view removes any suggestion that the search and the freezing of applicant’s accounts were unlawful.
“It is also instructive that reliefs 2 and 3 relate to properties belonging to non-parties herein to wit the applicant’s father and the following: Patricia Resources Ltd, Oluwatoyin Theresa Ayinuola, Lydia Abosede Erhievuyere. They cannot be granted since an order cannot be made in favour of a non-party
“The same argument goes for relief 4 as it refers to the applicant’s mother.
“It is also obvious that the said items of property were seized pursuant to a valid search warrant duly executed and which the applicant has not even challenged by filing a further affidavit to the counter-affidavits of the respondents.
“It is also obvious that this is not a civil dispute but a complaint about conduct of a criminal nature. I agree with the respondents that the first to fourth respondents were only carrying out their statutory functions and that the fifth respondent only acted as a good citizen by reporting a crime to law enforcement.
“The applicant has a burden of showing that her fundamental rights were infringed and that has not been discharged. See: FRN & ORS v ALHAJI MOHAMMED SANNI ABACHA (Supra).
“This application is therefore bereft of any merit whatsoever and ought to be and is hereby dismissed.”