AMAKIRI: Suit No. PHC/222?73 of 22-3-74 otherwise known as Amakiri Vs Iwowari case will go down in history as one of those legal battles that brought the late Chief Gani Fawehinmi to the consciousness of Nigerians.
It was about a journalist, Minere Amakiri, Rivers State correspondent (in July 1973) of the Benin-based Nigerian Observer who wrote a story about teachers strike in Rivers State.
The story did not go down well with the Rivers State government because it (story) came out on July 30, 1973, the very day then governor, Commander Alfred Diete-Spiff was celebrating his birthday. He was arrested, brutalized and detained by the governorâ€™s ADC, ASP Ralph Michael Iwowari, for â€œembarrassing His Excellencyâ€.
Pronto, Fawehinmi issued a civil writ, against Mr. Iwowari with the court awarding damages of N10,000 in favour of the journalist. Justice Ambrose Allagoa in his famous judgement said N200 was for each of the 33 strokes received by Amakiri, N2,600 for being detained illegally and N2,600 for the shave and pain he got from the defendant.
Following are details of the trial as captured by the constitutional lawyer, Dr. Olu Onagoruwa in his book: Press Freedom in Crisis. A story of the Amakiri case!
The issue of the writ for justice:Â Suit No. PHC/222/ 73 was issued on behalf of Mr. Minere Amakiri by his lawyer, Mr. Gani Fawehinmi on October 2, 1973 in which the plaintiff, Mr. Amakiri claimed against Mr. Iwowari, (1) a declaration that the detention of the plaintiff by the defendant from 4 p.m. on 30/7/73 to 7 p.m. on 31/7,â€™73 at the Rivers State Government House, Port-Harcourt was illegal and unconstitutional in that the detention was contrary to section 21 of the 1963 constitution of the Federal Republic of Nigeria and (2) N50,000 (Fifty Thousand Naira) being general and special damages against the defendant for false imprisonment of the plaintiff by the defendant from 4 p.m. on 30/7/73 to 7 p.m. on 31/7/73 at the Rivers State Government House, Port Harcourt.
Anxieties in Government circles had hardly died down when the second writ, suit No. PHC/232/73 was again issued and filed in the same Port-Harcourt High Court. This time the plaintiff claimed N60,000 (Sixty Thousand Naira) being general and special damages for assault and battery on the plaintiff by the defendant and his agents acting with the authority and under the direction and control of the defendant on the 30th of July, 1973 at the Rivers State Government House, Port-Harcourt.
Technically, these were two separate actions and they could be heard as such. But under the rules of practice in court, the judge has inherent however to order the consolidation of two such actions particularly where the facts as in those cases were substantially the same. On January 7, 1974, the judge, Mr. Justice Ambrose E. Allagoa, then, acting Chief Justice of the Rivers State ordered the consolidation of the two actions.
The case was opened by Mr. Gani Fawehinmi, Counsel for Mr. Amakiri, who threw the first combative salvo against the defendant by alleging that â€œAs a reward for Mr. Iwowariâ€™s brutal treatment of Mr. Amakiri, the Rivers State governor continued to allow him to live in the government quarters and use an official car despite the fact that he was no more his ADC.â€
The defendant who was probably taken aback by this sudden onslaught looked shakened, but the judge apparently realising that this was not an issue did not appear to advert his mind seriously to the point though it is another matter to say that it did not affect his mental perspective of the case.
Mr. Amakiriâ€™s allegations as contained in his Â Â Â Â Â Â Statement of Claim were broadly clear. The gistâ€™s of the Claim were that at 3.15 p.m. on July 30, 1973 the defendant, Mr. Iwowari came to his residence and invited him to the State House, that there, the defendant questioned him about publications in the Nigerian Observer concerning the Riverâ€™s State Teachers agitation.
The most crucial aspect of his Claim alleged that at about 4 p.m. on the said day at the Government House the said defendant Mr. Iwowari imprisoned him by unlawfully detaining him in the said Government House after the whole of his hair had first been shaved off and later struck with cudgels on his body by agents instructed by the defendant.
He stated further that not only was he detained from 4 p.m. on July 30, 1973 until 7 p.m. on July 31, 1973 when he was released but that during this period of forcible incarceration he was not given any food or refreshment. This detention he alleged, was contrary to section 21 of the 1963 Constitution of the Federal Republic of Nigeria.
In the reply contained the defendantâ€™s Statement of Defence, filed by his lawyer, Chief Okara, the defendant Mr. Iwowari made the barest admission of some of the allegations but vehemently denied the most crucial ones.
For example he denied that he imprisoned the plaintiff by unlawfully detaining him at the Government House, shaved his hair and ordered his beating. But he averred further that the plaintiff was uncooperative during the interview he held with him and that he refused to answer questions and no more.
In a further reply Mr. Iwowari barely denied allegations about the detention and argued that his conduct was not unlawful or an infringement of section 21 of the Constitution.
Mr. Iwowari however admitted that in the execution and performance of his duties as a Police Officer in charge of security he invited the plaintiff to his office at the Government House for interrogation and investigation on security matters not limited to the Nigerian Observer publication.
The legal effect of the denials contained in Mr. Iwowariâ€™s Statement of Defence was to put Mr. Amakiri to the strict proof of what he alleged; otherwise he would lose his case. But before he commenced to give evidence, the defendantâ€™s counsel Chief Okara, a wily old fox in forensic warfare, raised a very deadly point of substantial legal technicality. In his motion paper filed that morning Chief Okara raised an objection to the case being heard at all on the ground, that in the absence of satisfactory explanation for the defendant not being prosecuted the action must be struck out under order 33 Rule 19 of the Rules of Court.
In law this point is both procedural and substantive and it originates from a long established doctrine of public policy of encouraging private individuals to prosecute crimes, its modern force being based on the case of Smith versus Selwyn .
In this case, it was decided that â€œwhere injuries are inflicted on an individual under circumstances which constitute felony, that felony could not be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter had been prosecuted or a reasonable excuse shown for his non-prosecutionâ€2 . With the passage of time, however, the rigours of this rule have been relaxed.
In a bold attempt to further neutralize this frustrating technicality of the law, Mr. Fawehinmi, opposing Chief Okaraâ€™s motion, not only stigmatized it as an â€œunusual application to stay the hand of the law,â€ but argued that the application should not be entertained by the court because reasonable steps had been taken by the Newspaper Proprietors Association, the Guild of Editors and the Nigeria Union of Journalists in reporting the matter to the police who refused to take any action against the defendant.
In a 50 minutes marathon legal argument against Chief Okaraâ€™s motion, Mr. Fawehinmi, who cited over 20 legal authorities to show that the application was untenable in law, stressed that the issues were more fundamental than technical because they involved questions of constitutional liberty of the citizen and his freedom from torture and inhuman punishment.
In his view the fact that the police had refused to take up the matter on the criminal level does not provide a ground to deprive the citizen of his right to seek redress in the court and vindicate his constitutional rights and freedoms.
Although this point of law raised by Chief Okara was as formidable as it was technical, Justice Allagoa, who obviously allowed his acute mind to penetrate through the well of legal technicalities raised, disposed of the motion by declaring that in paragraph 9 of the Plaintiffâ€™s Statement of Claim in suit PHC/232/73, the plaintiff had stated that he had lodged a report to the police and that no steps had been taken against the defendant.
With this technical hurdle over Mr. Amakiri, the plaintiff, commenced the case by giving evidence recounting the sordid and nerve-racking details of the incident which led to the action. In support of his case he called his wife as the first witness. She told the court that at the material time she was eight and half months pregnant, and she went to the State House gate in order to take food to her husband the plaintiff, but was callously sent back.
On the following day at 8 p.m. the plaintiff emerged with laceration, blood stained shirt and a shaven head. After her evidence, which she gave with remarkable composure and impressive amiability, Mrs. Amakiri stepped down from the witness-box.
From this evidence it was clear except she was to be disbelieved, that Mr. Amakiri came out from government House in a shaven, beaten and battered condition, but on the crucial question of how he sustained this brutalised condition, evidence of three important persons were vital.
These were the Regimental Sergeant Major Frank Dorgu, Lance Corporal Joseph Michael and Private Nicolas Baklen, all soldiers working under the authority of the defendant Mr. Iwowari.
In his evidence Joseph Michael said he saw the plaintiff in the Guard Room which is attached to the gate of the State House. He emphasised that it was on the order of the Regimental Sergeant Major (the RSM), Frank Dorgu that he kept guard on Mr. Amakiri and his instruction, which he strictly complied with was not to allow him out or to allow him to see or talk to anyone.
He said he observed bleeding over the plaintiffâ€™s body and noticed also that his head was already shaved. Throughout this period no food or refreshment was served him until the following day when he and Lance Corporal New Year took him to his house.
Mr. Frank Dorgu, the RSM in his own evidence said he was sent for by the defendant, Mr. Iwowari after he, Frank, had closed for the day. On arrival he was ordered to give Mr. Amakiri 24 strokes, shave his head and lock him up so that â€œno one could see him.â€ He stressed that as a rule he could not disobey superior orders hence he was constrained to carry out the order and that he got another soldier Lance Corporal Ilumodu to lash the plaintiff.
The RSG declared that he was present when the punishment of torture was being administered on Mr. Amakiri but that he had left the scene by the time Nicholas Bakban shaved his head.
Under cross-examination Mr. Dorgu emphasised that from Exhibit C I the book which Joseph Michael allowed the plaintiff to make an entry in was irregular as it was not meant for anyone except soldiers on guard.
He vigorously denied suggestions posed to him by Chief 0kara, for Iwowari, that he was not given any orders by the defendant. He emphasised that he was bound to obey Order of his superior or be punished.
In his own evidence Nicholas Bakban said he saw defendant arrive with plaintiff at the gate of the State House. He was later, sent by the RSM Frank Dorgu to get a razor blade and with which he shaved the plaintiffâ€™s head.
He clearly remembered that it was on the evening of 31st July, that the defendant ordered him and other soldiers to take plaintiff back home.