Evans, through his lawyer, Mr. Olukoya Ogungbeje, filed the suit to challenge his alleged unlawful detention by the police.
He is contending that his detention in the police custody since June 10, 2017, without being charged to court is a violation of his fundamental rights under sections 35 (1) (c) (3) (4) (5) (a) (b) and 36 of the Constitution.
He wants the court to award N300m damages in his favour against the police.
Joined as respondents in the suit are the Inspector-General of Police, the Nigeria Police Force, the Commissioner of Police, Lagos State and the Special Anti-Robbery Squad.
When the matter was called on Tuesday before Justice Abdulaziz Anka, Evans’ lawyer, Ogungbeje, told the court that all the respondents had been served and that the suit was ripe for hearing.
But countering him, counsel for the Lagos CP and SARS, Mr. Emmanuel Eze, said the IG and the Nigeria Police Force had not been duly served and as such the case could not be heard.
He said despite the hint of the court, Ogungbeje had yet to go to Abuja to serve the court processes on the IG and the NPF in their personal capacities.
Eze argued that Order 5 Rule 8 of the Fundamental Rights Enforcement Rules required that service of court papers on the IG and the NPF must be personal.
Besides, he contended that Ogungbeje had not sought the leave of the court for the case to be heard during the court’s vacation.
“Our submission is that they have not taken steps to clothe this court with jurisdiction to hear this case either during or after the court’s vacation,” Eze said.
But Ogungbeje argued that by virtue of Order 5 Rule 2 of the Fundamental Rights Procedure Rules 2009, the IG and the NPF could be served through their agents and had thus been served through their legal offices at Alagbon, Lagos.
“The 1st and 2nd defendants have been duly served by the bailiff of this court on the 29th of June, 2017. The proof of service, as done by the bailiff of this court, is in Your Lordship’s file. I urge Your Lordship to rely heavily on the proof of service in Your Lordship’s file,” Ogungbeje said.
He argued further that Eze had no right to speak for the IG and the NPF since he did not announce appearance for them and did not file a counter-affidavit to contradict the proof of service.
Urging the judge to go ahead and hear the application, Ogungbeje added that a defendant in a civil case could not be compelled to appear in court if he chose to stay away.
“As we speak, the applicant is still in detention. The coast is clear and we urge Your Lordship to allow us to take this application,” Ogungbeje said.
After taking arguments from both lawyers, Justice Anka adjourned till Wednesday for a ruling.