Whether Pendency of a Criminal Action Against a Person Bars Him from Seeking to Enforce His Fundamental Rights


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PRACTICE AREA:  Constitutional Law- Enforcement of Fundamental Human Rights


Dahiru Bwala (Respondent) was a Senior Officer in the service of the National Drug Law Enforcement Agency (1st Appellant). On the 22nd November, 2015, the Respondent received a phone call from the State Commander of the 1st Appellant at Ibadan, requesting him to come down to Ibadan for a major sting operation.

Upon arrival at the State Command, he was further directed by the State Commander to report at the National Headquarters of the NDLEA, which he did without hesitation. At the headquarters, his mobile handset was seized and he was immediately placed under arrest, following a direct order from the (Isa Umar Adoro) 2nd Appellant.

According to the Respondent, he was kept in detention until 8th February, 2016, (a period of seventy-eight days), while investigations leading to the institution of charge No. FHC/L/519c/15 – FRN VS UBAH HARRIS ALAEKWE & ORS was ongoing. However, when the 1st-13th Defendants in the said charge were arraigned in the Federal High Court, Lagos, the Respondent, who was the 14th Defendant was not arraigned with the other Defendants, as the Appellants refused to release him from their custody or produce him in Court. He was released on bail upon the intervention of the Chairman of the NDLEA.

The Respondent alleged that he was re-invited to the headquarters and thereafter re-arrested. Subsequently, a letter dated 25th February, 2016, terminating his appointment with the NDLEA was served on him. That since his second arrest and continued detention, he has not been allowed bail or produced in Court.

Aggrieved by all these, the Respondent filed an application before the trial Court for the enforcement of his fundamental rights. In a considered judgment, the trial Court found in favor of the Respondent and awarded him seven million Naira as damages as well as 21 percent post-judgment interest.

Dissatisfied, the Appellants appealed to the Court of Appeal.


The appeal was determined upon consideration of the issue thus:

“Whether the learned trial Judge was right when he held that the Appellants violated the fundamental rights of the Respondent and was entitled to damages.”

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Learned Counsel for the Appellants submitted that based on the affidavit evidence before the trial Court, there was enough evidence to justify the restraint on the Respondent’s movement. He challenged the jurisdiction of the Federal High Court to entertain, hear and determine the application, on the ground that a criminal charge was pending against the Respondent at the time of hearing the application for the enforcement of the Respondent’s fundamental rights.

On the order directing the Appellants to pay 21% post-judgment interest, Counsel submitted that interest was not sought and pleaded by the Respondent but raised suo motu by the learned trial Judge and that this occasioned miscarriage of justice to the Appellants.

On the other hand, Learned Counsel to the Respondent submitted that the Respondent established by affidavit evidence that his fundamental rights were breached by the Appellants. That the affidavit evidence detailing the Respondent’s arrest was neither challenged, discredited nor contradicted and was such that could be relied upon by the trial Court.

Counsel submitted that the learned trial Judge did a proper evaluation of the affidavit evidence before him and was right when he held that the case exemplified abuse of power and highhandedness on the part of the Appellants.


In the final analysis, the appeal was allowed in part. The Court of Appeal affirmed the judgment of the Federal High Court and all orders made except the award of 21% post-judgment interest.


  1. CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the pendency of a criminal action against a person would deny him access to Court to enforce his fundamental rights

“It is further settled that the presumption of innocence enures in favour of a Defendant/Accused Person. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484, BOTU VS. STATE (2018) 3 NWLR (PT. 1607)410, AJAYI VS. STATE (2013) 9 NWLR (PT. 1360)589 and ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306)539. The fact of a pending criminal charge against a person for which he has not been found guilty would not deny him access to a Court to enforce his fundamental rights where he feels same has been infringed. Whether or not the action would succeed is a different matter entirely. He still enjoys his fundamental right until he is proven guilty. The presumption of innocence enures in his favour until found guilty. The fact that a person has been accused of a crime no matter how serious will not deny him access to Court to enforce his fundamental right if these rights have been violated. See IHIM VS. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 at 616, Paragraphs C-D and DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483)417 at 473-474, Paragraphs G-A.” Per OJO JCA

  1. CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the pendency of a criminal action against a person would deny him access to Court to enforce his fundamental rights

“The Appellants have challenged the jurisdiction of the trial Court to entertain the Respondent’s fundamental rights enforcement suit on the ground that there was a pending criminal charge against him. On this, I hasten to state that the pendency of a criminal charge does not prevent the pursuit of a civil remedy where such a remedy exists. See NWAOBOSHI & ORS v FRN (2018) LPELR-45107(CA) per Ogakwu. JCA at pages 20 – 23. para. A and FRN v LALWANI (2013) LPELR-20376(CA) per Mbaba, JCA at pages 16 -19. para. F. Indeed, it is in line with this trite principle that the Evidence Act, 2011 has provided different standards of proof for criminal and civil causes. By Section 134 the standard of proof in civil proceedings is on the balance of probabilities and the burden of such proof oscillates between parties depending upon the one who alleges a particular fact and who will fail if no evidence is adduced in proof of that fact. See INTERDRILL (NIG) LTD & ANOR v UBA PLC (2017) LPELR-41907(SC) per Rhodes-Vivour JSC at page 26 para. C. As for criminal causes, Section 135 of the Evidence Act, 2011 imposes a standard of proof that is beyond reasonable doubt, and the burden is statically on the prosecution because the defendant is constitutionally presumed innocent until proven guilty by the prosecution. See UGBOJI v STATE (2017) LPELR-43427(SC) per Sanusi JSC at page 28. para. C. For a fundamental rights enforcement suit, Section 46 of the 1999 Constitution specifically provides that any person who alleges that any of his fundamental rights provided in Chapter IV of the Constitution has been, is being or is likely to be contravened in any State, may apply to a High Court in that State for redress. Hence, the pendency of a criminal charge against the Respondent NEITHER bars the Respondent from pursuing his fundamental rights enforcement suit NOR robs the trial Court, the Federal High Court, of jurisdiction to entertain the suit.” Per MOHAMMED, J.C.A.

  1. JUDGMENT AND ORDER – AWARD OF INTEREST: Position of the law as regards award of post judgment interest

“On the order by the trial Court for payment of 21% post-judgment interest, it is trite to state that discretion of the Court to award post-judgment interest, though discretionary, it is circumscribed by statute or rules of Court. In other words, the discretion of the Court to award post-judgment interest is limited to the maximum percentage allowed by the statute of rules of Court. In the instant case, the trial Court is the Federal High Court sitting in Lagos. Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules, both of 2009 and of 2019 provides that:

  1. The judge at the time of making any Judgment or order or at any time afterwards, may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order or from some other point of time, as the judge deems fit and order interest at rate exceeding ten percent per annum to be paid upon any judgment.
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By the rules of the trial Court therefore, the learned trial judge could only award post-judgment interest to the limit of 10% per annum of the judgment sum. In CHURCHGATE (NIG.) LTD v UZU (2014) LPELR-11404(CA), this Court, per Aka’ahs, JCA (as he then was) similarly held that the learned trial judge was in error when he awarded post-judgment interest of per annum beyond the maximum interest of allowed by Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994.

See also N.I.D.B. v DE-EASY LIFE ELECTRONICS (1999) 4 NWLR (Pt. 597) 8, BERLIET NIGERIA LIMTED v KACHALLA (1995) 9 NWLR (Pt. 420) 478, HIMMA MERCHANTS LIMITED v ALIYU (1994) 5 NWLR (Pt.347) 667, EKWUNIFE V. WAYNE (WEST AFRICA) LIMITED (1989) 5 NWLR (Pt. 122) 422 and JOSCO AG. GLOBAL RESOURCES LTD & ANOR v AMCON (2018) LPELR-45637(CA), per Abiru. JCA at pages 64 – 65. para. B.” Per MOHAMMED, J.C.A.

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