A. G. FEDERATION v. KASHAMU & ORS (2018) LPELR-46594(CA)
Issue
CONSTITUTIONAL LAW – BREACH OF FUNDAMENTAL RIGHTS –
Requirements of the law for an applicant to succeed in an allegation of a likely breach of fundamental rights; when an affidavit in support of an application to enforce fundamental rights will be held not to have established a case of likely breach of fundamental rights
Principle
“Section 46(1) of the 1999 Constitution has three segments. The first segment is on the contravention of a person’s fundamental right; the second one is on the fundamental right being contravened meaning the contravention is in progress; while the third segment is on the likely contravention of the fundamental right meaning the contravention of the fundamental right is expected or probable. Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules 2009 (FREP Rules) also has these three components.
The 1st respondent built his case on the third segment. That the likely infringement of a fundamental right can be protected before the actual infringement occurs is therefore not in doubt. See in particular Igwe v. Ezeanochie (2010) 7 NWLR (pt.1192) 61, Ifegwu v. F.R.N. (supra).
Concerning the third segment (supra) the Court held in the case of Uzoukwu and Ors. v. Ezeonu II and Ors. (1991) 6 NWLR (pt.200) 708 at 784 that – “… before a plaintiff or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights.
A mere speculative conduct on the part of the respondent without more, cannot ground an action under the third link”. The fundamental right must be in danger of being infringed before an action may be founded on the third limb. See by analogy Ukegbu v. National Broadcasting Commission (2007) 14 NWLR (pt.1055) 551.
As stated in the case of Ezeadukwa v. Peter Maduka and Anor. (supra) at 661, mere verbal or oral threat not backed with some overt act of an attempt to infringe the fundamental right of the applicant by the respondent is not enough to sustain the action for threatened breach of fundamental right. There should be evidence showing the appellant was determined or unequivocally poised and/or had reached a point of no return to have the 1st respondent’s personal liberty restrained for the purpose of abducting/kidnapping the 1st respondent to forcibly transfer him to the United States of America to face criminal justice in that country before an action under the third segment of Section 46(1) of the 1999 Constitution and Order 1 Rule 2(1) of FREP Rules would hold in proof of the criminal allegations to the hilt or beyond reasonable doubt under Section 135(1) of the Evidence Act. Such cogent and verifiable overt act must match with verbal utterances to indicate that the appellant as the Chief Law Officer of Nigeria who is also the Chief Minister in the Temple of Justice would avoid the path of law and order to violate the laws of the land by conspiring with others to abduct or kidnap the 1st respondent for the purpose of forcibly handing him over to the United States of America for criminal trial in that country must be proved to the letter as the allegations are criminal in dimension.
The Court below must have felt the paucity of the affidavit evidence when it resorted to speculation in part of its judgment where it held in unconvincing language that – “For instance, assuming the applicant is abducted, kidnapped or unlawfully arrested and taken to America by force to face criminal charges without the provisions of the Extradition Act 2004 … that certainly will constitute a breach of his fundamental rights to personal liberty and freedom of movement …”.
The Court below should not have speculated the way it did (supra) to make its decision the way it did (supra) vide Daniel v. INEC (supra), UTB v. Ozoemena (supra). Likely breach of a fundamental right should mean making attempt to breach a fundamental right.
In making attempt to abduct or kidnap a person an overt act should be done with the intent to commit a crime but falls short of committing the crime by taking substantial step towards commission of a crime such as enticing, lying in wait to pounce on the victim or trailing/shadowing the intended victim or unlawfully trying to get physical access to the victim (Black’s Law Dictionary Eight Edition 137) preparation starts and ends where attempt begins.
Preparation is the act or process of devising the means necessary to commit a crime (Black’s Law Dictionary Eighth Edition 1220). What was the act or process devised by the appellant to commit abduction and kidnapping of the 1st respondent. And what were the means devised by the appellant necessary to commit the said offences are questions left unanswered by the originating motion or substantive application of the 1st respondent. It is required that overt or open acts or means adopted/done by the appellant pointing irresistibly that he was bent on abducting and kidnapping the 1st respondent for forcible transportation to the United States of America to undergo criminal prosecution in that country be stated in the affidavit evidence for the substantive application.
The appellant was not shown to be connected with the alleged Arase report which was not attached to the affidavit evidence of the 1st respondent rendering it hearsay as it is the document itself that is evidence to act upon. Such a report could have been obtained under Sections 1, 2, 3, 7, 20 and 23 of the Freedom of Information Act, 2011 which overrides other enactments. The appellant was also not shown in the affidavit evidence to have a hand in the alleged plot to use Interpol to abduct and kidnap the 1st respondent and forcibly transport him to the United States of America for criminal trial in that country.
Evidence generated from Global Satellite Mobile Systems (GSMs) is computer evidence. Hence mobile phones are computers and printouts of messages delivered through GSMs are required as primary documentary evidence vide Section 258(1)(d) of the Evidence Act which defines “documents” to include “any device by means of which information is recorded, stored or retrievable including computer output”.
Where electronic message or calls are sent through GSM are disputed as in this case the call logs/evidence of communication from the central portal system of the service delivery company should be called; or evidence of the sender of the message should be furnished. In this case, one Mr. Dapo Abiodun who was referred to by the deponent of the affidavit in pages 117 – 118 of the record, should have deposed to an affidavit to corroborate what Mr. Koye Ijaduoye deposed to in the affidavit in pages 117 – 118 of the record or the call log/evidence of communication from the central portal of the service delivery company should have been exhibited to the affidavit of Mr. Koye Ijaduoye or put in evidence by the 1st respondent to eliminate hearsay from the information; more so, the deponent, a Mr. Koye Ijaduoye, did not set forth explicitly the facts and circumstances forming the ground of belief of the information received by him from a Mr. Dapo Abiodun with reasonable particulars respecting the time and place the information was received contrary to Section 115(3) and (4) of the Evidence Act read with the Supreme Court case of Dr. Maja v. Mr. Samouris (2002) 7 NWLR (pt.765) 78 at 105 – 106 thus – “The depositions he made were expressly stated to be from his “information and belief” so that he had no personal knowledge of the same …
In this regard, it ought to be stressed that deponents in affidavit evidence must, where the facts deposed to are from their information and belief state their source of such information and belief. Such evidence ought not to be acted upon unless the Court can ascertain the source of the information and belief and unless the facts deposed to are corroborated by someone who speaks from his own personal knowledge. See Re J.L. Young Manufacturing Co. Ltd. (1900) 2 Ch.753 at 754″. (My emphasis). Also, in Re J.L. Young Manufacturing Co. Ltd. case (supra) relied upon by the Supreme Court in Dr. Maja v. Mr. Samouris (supra) Lord Alverstone, C. J., (with whom Rigby, L.J., and Vaughan Williams, L.J., concurred) had this to say in page 754 of the law report – “This case is of general importance as regards the practice of the admissibility of evidence by affidavit.
In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances the deponents make statements on their “information” and belief” without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way. In my opinion the so-called evidence on “information and belief” ought not to be looked at all, not only unless the Court can ascertain the source of the information and belief, but also unless the deponent’s statement is corroborated by someone who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received as evidence in any shape whatever; and as soon as affidavits are drawn so as to avoid matters that are not evidence, the better it will be for the administration of justice”. Viewed dispassionately, the affidavit evidence in support of the substantive application earlier referred to in the discussion taken together did not establish a case of the likely breach of the 1st respondent’s fundamental right to personal liberty and freedom of movement by the appellant.” Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 66 – 74 Paras C – D)