Unlawful detention of foreigner: Court awards N10mn damages against EFCC …. orders immediate release of plaintiff's travel documents, removal from watchlist
An Abuja High Court has ordered the Economic and Financial Crimes Commission (EFCC) to pay a sum of N10m damages to an Abuja based foreigner and security expert Mr. Wolgang Reinl over his unlawful detention and seizure of his international Passport by the anti-graft agency.
The N10m fine was imposed on EFCC as compensatory damages for the violation of fundamental rights of Wolgang Reinl to dignity of human person and personal liberty.
The court also barred the EFCC from arresting, re-arresting, detaining or embarking on further seizure of the international passport of the plaintiff who is an Austrian Security consultant.
In his judgment in the legal action instituted by Wolgang Reinl to challenge his arrest and detention since December 12 2015 to February 2, 2016, Justice Peter Affen ordered that EFCC must forthwith release the international passport, cheque books and cell phones seized from the plaintiff in the wake of his arrest and detention.
Justice Affen in 27-page judgment also ordered EFCC to delist the foreign security expert from their watch-list or no-fly list as doing so infringes on the fundamental rights of Reinl to freedom of liberty.
The court held that the detention of the plaintiff at the EFCC custody in Abuja for over a month was unlawful, unconstitutional and constituted a gross violation of the plaintiff fundamental right to dignity as enshrined in Section 34 and 35 of the 1999 Constitution.
Reinl had through his lawyer Mr Afam Osigwe dragged the EFCC before the Abuja High Court to challenge his arrest and detention by the anti-graft agency for no just cause.
He claimed that 5 operatives of the EFCC had in December last year stormed his Abuja residence without lawful court order and search warrant invaded his house and made away with his properties on the ground that they were investigating a money laundering matter.
The plaintiff also claimed that the 5 EFCC operatives refused bluntly to identify themselves and forcefully took him to their Wuse office where he was detained for 5 weeks and his properties confiscated.
In the suit, the plaintiff prayed the court for an order of injunction restraining EFCC by itself, servants, privies, agents or whosoever purporting to act on its behalf from violating or further violating his fundamental right as guaranteed by the Section 34, 35 and 43 of the 19999 Constitution.
The plaintiff prayed the court for an order to remove his name from EFCC watch-list and to direct the anti-graft agency to tender a public apology to him and also for the immediate release of his international passport and other confiscated properties.
In its defence, the EFCC flatly denied ever arresting, detaining or seizing any property of the security expert as their detention records did not indicate anything like that.
However, in his judgment, Justice Affen said 'it occurs to me however that whereas the plaintiff specifically mentioned CSP Sharu and Madaki as two investigating officers involved in his arrest and detention, the counter affidavit by the respondent is deafening silent as to whether or not the duo of CSP Sharu and Madaki are the respondent's operatives.
'The law is well settled that where specific facts have been alleged against any person, it is that person but no other who may deny or refute those facts.'
'It therefore seems to me that feeble spirited denial in the counter affidavit is not sufficient in law to dislodge the plaintiff allegation and I cannot but find and hold that plaintiff was arrested and detained by the respondent for about five weeks from December 28, 2015 to February 5, 2016 as alleged and which constitutes a flagrant violation of the plaintiff fundamental rights to personal liberty'.
'I equally find and hold that the EFCC seized or confiscated the plaintiff international passport in flagrant violation of his right to freedom of movement as guaranteed under Section 12 of the African Charter.'
While acknowledging the onerous statutory responsibility of EFCC in investigating financial crimes, Justice Affen urged the body and other law enforcing agencies to 'necessarily keep within the detention timelines prescribed by law as well as scrupulously observe the procedural safeguards required of them in order to maintain the delicate balance between law enforcement on one hand, and according due regard and recognition to human rights on the other hand.
'It cannot be over-emphasized that law enforcing agencies must operate within the confines of the laws they are required to enforce in order to make law enforcement more effective and effectual'.
'Law enforcers must observe and ensure the observance of 'the law behind the law' by demonstrating a moral commitment to the very laws they are required to enforce, for without such moral commitment to the law 'who will guard the guard, and who will police the police.'
'Any failure or neglect by them to observe that timelines and safeguards may constitute an infraction of rights guaranteed and protected by the constitution which the supreme law of the land and from which other laws derived their validity,' the Judge said.