COP LAGOS STATE & ORS v. OBIECHINA & ANOR (2020)

COP LAGOS STATE & ORS v. OBIECHINA & ANOR

(2020)LCN/14060(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/178/2018

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. COMMISSIONER OF POLICE, LAGOS STATE 2. NIGERIA POLICE FORCE 3. SPECIAL ANTI ROBBERY SQUARD (SARS) LAGOS STATE POLICE COMMAND APPELANT(S)

And

1. MR. OKWUCHUKWU OBIECHINA 2. MRS. NZUBE OBIECHINA RESPONDENT(S)

RATIO

THE FUNDAMENTAL RIGHT OF PERSONAL LIBERTY

In the case of Chief I. O. Aqua v. Etubom I. E. Archibong & Ors. (2012) LPELR-9293 (CA), in restating the established position of the law, I had said: –
“As a foundation, every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the constitution itself or a law made pursuant thereto. Section 35 (1) of the 1999 Constitution (as altered) has made the following provisions on the personal liberty of a Nigerian: – Section 35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty; c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare; e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community or; f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.
Subsections (2) and (3) of the Section provide for further rights of a person even where the law permitted the curtailment of his personal liberty; the right to remain silent and avoid answering questions until after consultation with a legal practitioner or other person of his choice and to be informed in writing, within twenty-four (24) hours of the curtailment of his liberty, of the facts and grounds for it in the language he understands to ensure that the personal liberty of a person was not arbitrarily curtailed or violated. Subsections (4) and (5) make provisions for a person whose personal liberty was curtailed pursuant to subsection 1(c) above to be arraigned before a Court of law within one (1) day, two (2) days or such longer period as may be considered by the Court in the peculiar circumstances of his case, to be reasonable. In case of the infraction of any of the situations provided for in the preceding subsections, subsection (6) of Section 35 provides for the consequences against the authority or person responsible for violation of the personal liberty of a citizen. It provides thus: “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, ‘the appropriate authority or person’ means an authority or person specified by law.” The essence of the above provisions is that persons, officers or agents of the State who in the ordinary course of the discharge of their official duties or functions for instance the police and other security agencies in the Country, may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of subsection (1) – (5) above.
Where the ordinary discharge of their duties or functions warrants the arrest or/and detention of a citizen, they are bound to abide by and act in accordance, strictly, with the provisions whose liberty was curtailed or deprived by them, shall be entitled to compensation and public apology from them since the curtailment or deprivation would in the circumstances, be unlawful.” PER GARBA, J.C.A.

THE UNCONSTITUTIONAL BREACH OF PERSONAL LIBERTY

In this regard, any derogation or breach of the right to personal liberty which does not comply with the constitutional or other statutory provisions or requirement of procedure, would be unconstitutional and unlawful, no matter the duration and would constitute an infringement of the right which entitles the victim to the judicial remedy provided for in Section 35(6) of the Constitution.
See Darman v. Fed. Minister of Internal Affairs (1980) 1 NLR, 302; Udeh v. FRN (2001) FWLR (Pt. 61) 1734; Aqua v. Archibong (supra); FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113. PER GARBA, J.C.A.

THE CONSTITUTION AS THE GRUNDNORM OF ALL OTHER LEGISLATIONS IN NIGERIA

However, the Constitution is the grund norm, the fountain and source of all other legislations in Nigeria; see A. G. Abia State v. A. G. Federation (2002) 6 NWLR (Pt. 763) 204; Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Amaechi v. INEC (2007) 9 NWLR (Pt. 1040) 504, being supreme, takes precedence over all such other legislations, which if inconsistent any provisions thereof, are rendered null and void to the extent of the inconsistency, see A. G. Abia State v. A. G. Fed. (2003) 4 NWLR (Pt. 809) 124; Fasakin Foods Nig. Ltd. v. Shosanya (2006) 10 NWLR (Pt. 187) 126; A. G. Abia State v. A. G. Fed. (supra); Abacha v. Fawehinmi (2000) 4 SC (Pt. II) 1; Momoh v. Senate of National Ass. (1981) 1 CLR, 21; Kanada v. Gov., Kaduna State (1986) 4 NWLR (Pt. 35) 361; Phoenix Motors Ltd. v. N. P. F. Mng. Board (1993) 1 NWLR (Pt. 272) 718. PER GARBA, J.C.A.

DAMAGES FOR UNLAWFUL ARREST AND DETENTION OF A PERSON

The compensation provided for in Section 35(6) is in the nature of general damages which flow naturally from the unlawful arrest and detention of a person who was restrained and prevented from the exercise of the constitutional right of personal liberty to move freely as he wishes without unlawful hindrance or let by any other person or authority. It is therefore a species of damages that does not have to be pleaded or specifically proved before compensation is ordered in appropriate cases. Once the arrest and detention of a person is found to be unlawful and unconstitutional, the law presumes that the victim has suffered personal injuries to his freedom of movement and feelings from which damages flow automatically that call for compensation Akinde v. Access Bank, Plc (supra), Jim Jaja v. COP (supra). PER GARBA, J.C.A.

THE PRIMARY DUTY OF THE TRIAL COURT
It is the primary duty and function of a trial Court to properly appraise the facts of a case and assess, from the peculiar circumstances of the case, the appropriate quantum or amount of compensation to a person whose right to personal liberty was infringed upon or breach without lawful excuse. Okwejiminor v. Gbakeji (2008) 1 SC (Pt. 111) 263; Harka Air Ltd v. Keazor (2011) LPELR-1353(SC). PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By originating motion dated 5th July, 2017 but filed on 6th July, 2017, the Respondents sought the following reliefs from the Federal High Court, Lagos (Lower Court).
“1. A DECLARATION that the arrest, torture and detention of the Applicants for twenty (22) days (sic) at the detention cell of the 3rd Respondent at Ikeja from the 2nd of June 2017 to 23rd of June 2017 by the Respondents without any Court order is illegal, wrongful, oppressive, unlawful, unconstitutional as it violates the Applicants fundamental rights as guaranteed under Sections 33, 34, 35, 36 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
2. A DECLARATION that the forceful seizure and confiscation of the Applicants Soft Bank Phone and Samsung NNTT Docomo Phone by the operatives of the Respondents on the 2nd of June 2017 without any Court Order is illegal, wrongful, unlawful, unconstitutional as it violates the Applicants fundamental rights as guaranteed under Sections 36, 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria.
3. A DECLARATION that the threat

and continuous threats of arrest and detention of the Applicants by the Respondents without cause is illegal, wrongful, unlawful, unconstitutional as it violates the Applicants fundamental rights as guaranteed under Sections 33 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
4. AN ORDER compelling the Respondents to immediately release and return the Applicants Soft Bank and Samsung NNTT Docomo Phones to the Applicants forthwith.
5. AN ORDER compelling the Respondents jointly and severally to tender an apology to the Applicant and to pay the sum of N20,000,000.00 (Twenty Million Naira) as general and exemplary damages for the unlawful arrest, illegal detention, threat to life and rights, harassment, inconvenience caused the Applicants without any order of the Court.
6. AN ORDER OF PERPETUAL INJUCTION restraining the Respondents, whether by themselves, agents, officers, officials, operatives, servants or privies or anybody authority from them by whatever name called from further harassing, intimidating, arresting, detaining, threatening, inviting, investigating, charging, seizing or taking any untoward action against the

Applicants on any fact connected with or related to the facts of this case.
7. SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case.”

The grounds, upon which the reliefs were predicated, as set out on the motion, are that: –
“a. That there has been grave constitutional infraction perpetrated by the Respondents against the Applicant.
b. That the Respondents operatives arrested the Applicants on the 2nd of June 2017 and whisked them away to the detention cell of the 3rd Respondent.
c. The forceful seizure and confiscation of the Applicants Soft Bank and Samsung NNTT Docomo Phones by the Respondents without any Court order is illegal, unlawful and unconstitutional.
d. That the Respondents actions have infringed upon the Applicants fundamental rights to life, personal liberty, fair hearing, right to own property, freedom of movement and dignity of human person.
e. The constitutional safeguards to persons alleged to have committed any offence are sacrosanct and must be jealously guarded by the Court.
f. That the Applicants have their fundamental rights

protected and guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (As amended).
g. That the Respondents are creation of law and must act within the limit of the law.
h. That the Respondent has no rights to violate the provision of the constitution.
i. The Respondents have no right to violate the rights of the Applicants under whatever guise.
j. The Applicants have not committed any offence to warrant the infringement of his rights by the Respondents.
k. The acts and actions of the respondents have breached the rights of the Applicants as guaranteed in the Constitution of the Federal Republic of Nigeria.
l. The constitutional right to life, personal liberty, freedom of movement and fair hearing of the Applicants have been be brazenly infringed upon by the Respondents.
m. That Applicants did not commit any offence to warrant the treatment that was meted out to them.
n. That the Applicants have the rights under Section 46 of the 1999 Constitution to approach the Court for redress for the breach of their rights.
o. That the Applicants are entitled to the reliefs claimed in this case.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The motion was supported by a forty-five (45) paragraphs initial affidavit, a twenty-seven (27) Further Affidavit; both deposed to by the 2nd Respondent on the 6th of July and the 16th of October, 2017, respectively, and an Address by the Learned Counsel for the Respondents.

On their part, the Appellants filed a fifty-five (55) paragraphs Counter-Affidavit deposed to by Inspector Idowu Haruna on 11th of October, 2017, to which were annexed copies of documents marked as Exhibits Pol. 1-15, in opposition to the motion. An Address was also filed on the same date by the Appellants’ Counsel. After hearing the Learned Counsel for the parties on the motion, the Lower Court, in a judgement delivered on the 23rd of October, 2017, found for the Respondents and made the following orders.
“(1) AN ORDER is hereby made directing the Respondents to within 48 hours of the Judgment in this action initiate and or institute a criminal action against the 1st Applicants herein before a Court of competent jurisdiction if he has committed any crime against the State.
(2) An Order is hereby made directing the Respondents to release the 1st Applicant from

detention unconditionally if no criminal action is instituted against him within 48 hours of this judgment.
(3) An Order is made directing the Respondents severally and jointly to tender an apology to the Applicants and to pay the sum of N2,000,000.00 (Two Million Naira) as general and exemplary damages for the illegal detention and inconvenience caused the Applicants.”

Aggrieved by the decision of the Lower Court, the Appellants brought this appeal vide the Notice Appeal dated and filed on 16th of January 2018, containing eight (8) grounds.

In the Appellants brief filed on the 3rd June, 2019, pursuant to the order of the Court, seven (7) issues are said to call for determination in the appeal as follows: –
“1. Whether there was a cause of action against the 1st and 3rd Appellants or can they be liable in an action they did not partake in. (This issue is distilled from Ground 1 of the notice of appeal).
2. Whether the 3rd Respondent is a juristic person that can sue or be sued in that capacity. (This issue is distilled from ground 2).
3. Whether the Learned trial Court was right to sit on appeal over an order of remand

made by a Magistrate and nullify same in a Fundamental Rights proceedings instead of taking judicial notice of same (This issue is distilled from Ground 3 of Notice of Appeal).
4. Whether the fundamental rights of the Respondents are absolute. (This issue is distilled from Ground 4 and 5).
5. Whether the Court can rely on Respondents’ further affidavit which contradicts with the original affidavit wherein new issues where raised. (This issue is distilled from ground 6 of notice of appeal).
6. Whether this Court does not have power to tamper with outrageous damage(s) awarded by the lower Court. (This issue is distilled from ground 7 of the Notice of Appeal).
7. Whether the judgment of the trial Court is not against the weight of evidence. (This issue is distilled from ground 8 of the Notice of Appeal).”

A sole issue was raised and argued in the Respondents’ brief filed on 9th of May, 2019, in the following terms: –
“WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT AND RIGHTLY CONDEMNED THE ACT/ACTION OF THE APPELLANTS IN HOLDING THAT THE ARREST AND DETENTION OF THE RESPONDENTS FOR SIX (6) DAYS BY THE APPELLANTS

WITHOUT ANY COURT ORDER AND IN LIEU OF ANOTHER IS AN INFRINGMENT ON THE RIGHTS OF THE RESPONDENTS.”

Having carefully read both the judgement of the Lower Court and the primary complaint of the Appellants embodied in all the grounds of the appeal, the crucial issue which requires decision by the Court in the appeal is –
“Whether the Lower Court was right to have found for the Respondents and to have awarded the amount of damages in their favour.”

In the authority of Kayode v. State (2016) 7 NWLR (Pt. 1511) 199; Gov., Ekiti State v. Olubunmo (2017) 3 NWLR (Pt. 1551) 1 @ 23; Okafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117; Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463 @ 506; Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163 @ 181, among other cases, I would determine the appeal on the basis of this sole issue, taking into consideration the relevant and material submissions by the Learned Counsel for the parties.

Appellants’ submissions:
The submissions are to the effect that the Respondents did not prove the infringement of their rights to personal liberty by the Appellants since they were suspected to

have committed capital offences of kidnapping, armed robbery and murder and granted bail when they were able to produce a surety on the 11th of June, 2017 after their arrest on 5th of June, 2017. It is the case of the Appellants that the Respondents’ right to personal liberty under Section 35(1) is not absolute since exceptions were made in 35(1) (c) and (7) (a), on the authority of Ekwenugo v. FRN (2001) 6 NWLR (Pt. 708) 171 @ 185, Section 214 of the Constitution (as amended), Section 4 of the Police Act, Agbi v. Ogbe (2005) 8 NWLR (Pt. 926) 40; Christlieb Ltd v. Majekodunmi (2008) 16 NWLR (Pt. 133) sic, 324; Onah v. Okenwa (2010) 7 NWLR (Pt. 1194) 512 and Fawehinmi v. IGP (2001) 7 NWLR (Pt. 665) 481 @ 519-21, among other cases.

Learned Counsel for the Appellants argues that the 1st and 3rd Appellants did not arrest and detain the Respondents to be responsible for any breach of their right to personal liberty and that no cause of action was disclosed by the Respondents against them, as defined in the case ofEgbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20 since they are not agents of the 2nd Appellant by virtue of Section 215(1)(b) and

(4) of the Constitution. In addition, that the 3rd Appellant is not a juristic person who could be sued under any law because it is not a creation of a statute vested with the capacity to sue or be sued. Agbomagbe Bank Ltd v. G. B. Olivant Ltd (1961) 1 ALLNR, 116; Emecheta v. Ogueri (1996) 5 NWLR (Pt. 447) 227 on the effect of suing a non-juristic person/party and Cappa & D’Berto Ltd. v. Tilo (2003) 9 NWLR (Pt. 824) 49 @ 71 on the effect of Affidavit evidence which was not controverted or denied are referred to.

Furthermore, it is submitted that there was an order by the Magistrate Court for the remand of the Respondents which the Lower Court ought to have taken judicial notice of since it enjoys the presumption of validity under Sections 168 and 147 of the Evidence Act, 2011 having been made by virtue of Sections 264 and 267 of the Administration of Criminal Justice Law, Lagos State, 2015. Fadeju v. Johnson (2007) 8 NWLR (Pt. 1037) 535 and Adighije v. Nwaogu (2011) ALLFWLR (Pt. 559) 1006 are relied on for the submission.

Citing ACB v. Apugo (2001) 5 NWLR (Pt. 707) 483 on the circumstances when an appellate Court would interfere with the award of

damages by a trial Court, it is contended that some of the situations/circumstances exist in the appeal for the Court to interfere with the award of damages by the Lower Court against the Appellants on the authority of D. S. S., Kwara State v. Nuhu (2014) 14 WRN, 177.

Lastly, the Appellants’ Counsel says the decision by the Lower Court is against the weight of the Affidavit evidence placed before it and the Court is, in summary, urged to allow the appeal.

Respondents’ Submissions:
It is submitted that since the Appellants admitted detaining the Respondents for six (6) days, the Lower Court was right to have found that the Respondents’ constitutional right to personal liberty was breached which entitled them to the damages awarded. Section 35(1), (4) and (5) of the Constitution and among other cases, Assistant Inspector General of Police (Zone 5) v. Ezeanya (2016) ALLFWLR (Pt. 830) 1349 @ 1367 and Jim-Jaja v. COP (2011) 2 NWLR (Pt. 1231) 209 @ 375 are cited for the submission and it is argued that the detention of the Respondents without a Court order was illegal and unconstitutional, thereby breaching and infringing their

rights. It is the case of the Respondents that the agents of the Appellants arrested and detained them and that the 3rd Appellant being a unit, body or squad created by and under the authority and control of 1st & 2nd Appellants is juristic, relying on L. S. T. M. A. v. Esezobo (2017) 5 NWLR (Pt. 1559) 350 @ 375 and Dikko v. S. I. P. (unreported) suit No. HJ/399M/1984, a decision delivered on 17th of October, 1984. According to the Learned Counsel for the Respondents, there was no Court order for the detention of the Respondent as what was produced before the Lower Court was a Form certified by the Learned Counsel for the Appellants.

Relying on Ozurumba v. EFCC unreported decision of this Court delivered on 29th of March, 2019, Jim-Jaja v. COP (supra) and IGP v. Ikpila (2016) 9 NWLR (Pt. 1517) 236 @ 298, it is submitted that the Lower Court was right to have awarded the sum of Two (2) Million Naira (₦2,000,000.00) in favour of the Respondents after a proper analysis of the law on assessment of damages in the case.

In conclusion, the Court is urged to dismiss the appeal for lacking in merit.

Arguments already canvassed in the

Appellants’ brief were repeated in the Appellants’ Reply brief and the Court is urged to discountenance the submissions of the Respondents, and allow the appeal, once more.

Resolution
In the case of Chief I. O. Aqua v. Etubom I. E. Archibong & Ors. (2012) LPELR-9293 (CA), in restating the established position of the law, I had said: –
“As a foundation, every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the constitution itself or a law made pursuant thereto. Section 35 (1) of the 1999 Constitution (as altered) has made the following provisions on the personal liberty of a Nigerian: – Section 35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty; c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable

suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare; e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community or; f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto.
Subsections (2) and (3) of the Section provide for further rights of a person even where the law permitted the curtailment of his personal liberty; the right to remain silent and avoid answering questions until after consultation with a legal practitioner or other person of his choice and to be informed in writing, within twenty-four (24) hours of the curtailment of his liberty, of the facts and grounds for it in the language he understands to

ensure that the personal liberty of a person was not arbitrarily curtailed or violated. Subsections (4) and (5) make provisions for a person whose personal liberty was curtailed pursuant to subsection 1(c) above to be arraigned before a Court of law within one (1) day, two (2) days or such longer period as may be considered by the Court in the peculiar circumstances of his case, to be reasonable. In case of the infraction of any of the situations provided for in the preceding subsections, subsection (6) of Section 35 provides for the consequences against the authority or person responsible for violation of the personal liberty of a citizen. It provides thus: “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, ‘the appropriate authority or person’ means an authority or person specified by law.” The essence of the above provisions is that persons, officers or agents of the State who in the ordinary course of the discharge of their official duties or functions for instance the police and other security agencies in the

Country, may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of subsection (1) – (5) above.
Where the ordinary discharge of their duties or functions warrants the arrest or/and detention of a citizen, they are bound to abide by and act in accordance, strictly, with the provisions whose liberty was curtailed or deprived by them, shall be entitled to compensation and public apology from them since the curtailment or deprivation would in the circumstances, be unlawful.”
In the present appeal, there is no dispute between the parties that the Respondents were arrested and detained from the 5th to the 11th of June, 2017 for allegedly belonging to a gang suspected to be involved in kidnapping, armed robbery and murder, by the 1st & 3rd Appellants; officers of the 2nd Appellant. The case of the Appellants is that the arrest and detention of the Respondents were in the discharged of the power to prevent and investigate reasonable suspicion of the commission of crimes or criminal offences by the police.
On their part, the case by the

Respondents is that their admitted arrest and detention for the period of six (6) days constituted a violation or infringement of their constitutional right to personal liberty under Section 35(1) of the Constitution.
As I have stated above, the provisions of Section 35(1) of the Constitution, does not confer or vest an absolute right to personal liberty on Nigerians, but a qualified right which could be tinkered with or derogated from under the specified situations or circumstances set out in subsequent subsections of the section.
However, as pointed out, the derogation or tinkering with a person’s guaranteed personal right must be strictly done in accordance with the provisions of the Constitution or other relevant statutory provisions for it to be constitutional, lawful and therefore excusable or permitted in law. In this regard, any derogation or breach of the right to personal liberty which does not comply with the constitutional or other statutory provisions or requirement of procedure, would be unconstitutional and unlawful, no matter the duration and would constitute an infringement of the right which entitles the victim to the

judicial remedy provided for in Section 35(6) of the Constitution.
See Darman v. Fed. Minister of Internal Affairs (1980) 1 NLR, 302; Udeh v. FRN (2001) FWLR (Pt. 61) 1734; Aqua v. Archibong (supra); FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113.
In its judgement, the Lower Court found that: –
”The Applicants have averred that they were detained by the Respondents from the 2nd day of June, 2017 to the 23rd day of June, 2017 without an order of Court, and that their phones were seized, without recourse to the law. The Respondent have denied that their phones were with them, but that they were release to the Applicants upon being granted bail. However, the Respondents admitted that the Applicants were arrested on the 5th day of June, 2017, detained for 6 days, and released on the 11th day of June, 2017. What the Respondents did not do is to explain to Court why the Applicants were detained for such a period of time without being taken to a Court of law.
Under Section 35(4) of the Constitution, any person arrested or detained in accordance with Section 35(4) (1) (c) must be brought before a Court of law within a reasonable time and if he

not tried within a period of:
– Two months from the date of his arrest or detention (in the case of a person who is in custody or is not entitled to bail); or
– Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
This subsection has to be read together with subsection (5), which has defined the phrase “reasonable time” as meaning:
– One day in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometers;
– Two days or any such longer period the Court may consider reasonable “in any other case.”
The phrase “in any other case” means the reasons or circumstances are open-ended. It could be that there is no Court of competent jurisdiction within a 40 – kilometre radius; or that the accused person is so ill that it will be very difficult or

impossible to arraign him; or that there are no facilities to have him arraigned within two days, et cetera.
The burden of proving that there is no Court of competent jurisdiction within the forty-kilometre radius is on the detaining authority and not the victim Per Tur, J. C. A. lead Judgment, in ODIONG VS. ASSISTANT INSPECTOR-GENERAL OF POLICE, ZONE 6, CALABAR, UNREPORTED, APPEAL NO. CA/C/149/2010, decided on 22/5/2013, on page 14.”
The purport of the above finding is that the Appellants have the legal burden of proving that there was no Court of competent jurisdiction within forty (40) kilometres from the place of the admitted arrest and detention of the Respondents, by the Appellants in order to bring it within the exceptions in Section 35(5) of the Constitution and make the detention for six (6) days lawful and constitutional.
The Appellants have argued and insisted that there was a Court order made by a Chief Magistrate for the detention of the Respondents for 30 days from the 6th of October, 2017 to make the detention lawful and excusable.
The Lower Court ruled on the said order by the Magistrate that: –

“To justify this detention the Respondents tendered to the Court an original copy of Form K issued pursuant to Section 254(1) and (2) of the Administration of Criminal Justice Law of Lagos State. This form is a “form for request for remand”. Form K is meant to be the remand form filed by the Police, which the Magistrate is expected to examine in reaching a decision under Section 264 of the Administration of Criminal Justice Act Lagos State. Form is not and cannot be the order of remand. So, where is the remand order purportedly issued by the Magistrate to justify the continued detention of the 1st Applicant by the Respondents? None has been presented by the Respondents herein.”
I have very closely examined the Form K, attached to the Affidavit deposed to on the 12th of October, 2017 by Inspector Idowu Haruna; one of the Investigating Police Officers in the case against the Respondents, as Exhibit ‘A’ and would readily agree and endorse the finding by the Lower Court above, that prima facie, it is a “form for request for remand” to be filled by the police and which the Magistrate was expected to examine for a decision under

Section 264 (1) & (2) of the Administration of Criminal Justice Law (AJCL) Lagos State 2015. The provisions of Section 264 (1) & (2) of the AJCL are as follows:-
“264(1) Any person arrested for any offence triable on information shall within a reasonable time of arrest be brought before a Magistrate for remand and the Magistrate shall have powers to remand such a person after examining the reasons for the arrests exhibited in the request form filed by the Police, and if satisfied that there is probable cause to remand such person pending legal advice of the Director of Public Prosecutions or the arraignment of such person before the appropriate Court or Tribunal.
(2) In this Section “probable cause” includes: circumstances of the individual case, nature and seriousness of the alleged offence, reasonable grounds that the person has been involved in the commission of the alleged offence and reasonable grounds that the person may abscond or commit further serious offence.”
These provisions, in Subsection (1), say that a person arrested for any offence triable on information shall be brought before a Magistrate within

a reasonable time of the arrest, for the purpose of remand.
Subsection (2) sets out some of the relevant factors a Magistrate is to consider in the determination of what constitute “probable cause” for the remand of such a person.
Subsection (10) defines what “offences triable on information” means.
I should point out that the power of the Appellants or other security agencies in Nigeria to investigate, and in the course of such investigations, where necessary, arrest and detain persons reasonably suspected to have committed criminal offence(s) or crime(s), under both the Constitution and other relevant statutes, in not in doubt or in dispute in the present appeal. However, the Constitution is the grund norm, the fountain and source of all other legislations in Nigeria; see A. G. Abia State v. A. G. Federation (2002) 6 NWLR (Pt. 763) 204; Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Amaechi v. INEC (2007) 9 NWLR (Pt. 1040) 504, being supreme, takes precedence over all such other legislations, which if inconsistent any provisions thereof, are rendered null and void to the extent of the inconsistency,

see A. G. Abia State v. A. G. Fed. (2003) 4 NWLR (Pt. 809) 124; Fasakin Foods Nig. Ltd. v. Shosanya (2006) 10 NWLR (Pt. 187) 126; A. G. Abia State v. A. G. Fed. (supra); Abacha v. Fawehinmi (2000) 4 SC (Pt. II) 1; Momoh v. Senate of National Ass. (1981) 1 CLR, 21; Kanada v. Gov., Kaduna State (1986) 4 NWLR (Pt. 35) 361; Phoenix Motors Ltd. v. N. P. F. Mng. Board (1993) 1 NWLR (Pt. 272) 718.
The Constitution in Section 35 (1), (4) and (5) provide, prescribe and stipulate that a person arrested upon reasonable suspicion of his having committed a criminal offence, shall be brought before a Court of law within a reasonable time of either a period of one (1) day, or two (2) days, as the case may be. The reasonable time within which a person arrested on reasonable suspicion of his having committed a criminal offence, of whatever nature, should be brought before a Court of law by the person(s) or authorities making the arrest, has been expressly and clearly defined by the Constitution itself leaving no room for any doubt that may warrant interpolations. Consequently, any other legislation; be it an Act or a Law which purports to make provision(s) that are inconsistent with the

provisions of the Constitution, in that regard, will, in line with the above named judicial authorities, be null, void and of no legal effect to the extent of its inconsistency.
In this appeal, what can easily be discerned from the Form K relied on by the Appellants to justify the admitted arrest and detention of the Respondents for six (6) days, is that whereas the detention admitted was between the 5th and 11th of June, 2017, the Form K from the Magistrate Court, was in respect of the detention of the Respondents from the 6th of October to 6th of November, 2017.
The Appellants did not in the entire case, say or claim to have had any Court order for the admitted detention of the Respondents from the 5th of June, 2017 when they were initially arrested, to the 11th of June, 2017 when they were eventually released on bail. In paragraphs 24 and 42 of the Affidavit deposed to by the same Inspector Idowu Haruna on 11th of October, 2017, say that the Respondents “were trailed and arrested on the 5th June, 2017 and they were only detained for six (6) days from 5th of June to 11th of June, 2017.”
It may be recalled that the basis of the Lower

Court’s decision was the admitted arrest and detention of the Respondents by the Appellants from the 6th to 11th of June, 2017 for which there was no valid Court order tendered to justify the detention and make it lawful and constitutional and that the Form K tendered and relied on by the Appellants was no such order. I completely agree with the Lower Court that the Form K even if it is a valid order from the Magistrate Court for the remand of the Respondents for 30 days from the 6th of October, 2017 and one which ought to have been taken judicial notice of by the Lower Court, it did not permit or justify the admitted detention of six (6) days from the 6th to 11th of June 2017 which pre-dated it.
The constitutional provisions in Section 35(1) (c), (4) and (5) communally require that persons arrested on reasonable suspicion of having committed a criminal offence shall be brought or taken before a Court of competent jurisdiction within a period of one (1) day, two (2) days or such longer period as may be considered reasonable by the Court, in the circumstances of the case. The Appellants did not even attempt to justify the admitted detention of the

Respondents for six (6) days, a period beyond and clearly in excess or longer than the stipulated, prescribed and limited period of one (1) or two (2) days in Section 35(1) (c), (4) and (5) of the Constitution. See Danfulani v. EFCC (2016) 1 NWLR (Pt. 1493) 223 @ 274, cited in the Respondents’ brief; IGP (Zone 5) v. Ezeanya (supra).
The Appellants have argued that the Respondents were reasonably suspected to have committed capital offences of kidnapping, armed robbery and murder and so their detention for a longer period than provided in Section 35(1) (c), (4) & (5) is constitutional by virtue of sub-paragraph (7) (a). As may be observed, the provisions of subparagraph 7(a) relate to subsection (4) which deals with the arraignment of a person who was arrested and detained, brought before a Court of competent jurisdiction within the period of time prescribed in subsection (5); that is, a reasonable time, but was not tried within a period of two (2) months from the date of arrest or detention or three (3) months from the date of such arrest or detention, to be released either unconditionally or upon such conditions necessary to ensure that he

appears for trial at a later date. In the Respondents’ case, the Appellants detained them from the 5th to 11th of June, 2017 without being brought before a Court of competent jurisdiction within the prescribed time; which was the reasonable time stipulated in subsection (4) for them to be tried within the period set out therein, for the exception in subsection (7) to be invoked to avail the Appellants.
In the result, from the evidence, along with all the Exhibits attached thereto, placed before the Lower Court, it was right to have found that the admitted detention of the Respondents from 5th to 11th of June, 2017 without a valid Court order constituted an infringement of their right to personal liberty.
With the infringement of the constitutional right to personal liberty, the Respondents are, as a matter of law, entitled to compensation and apology provided for in Section 35(6) of the Constitution, as stated earlier. See Akinde v. Access Bank, Plc (2014) LPELR-22857(CA).
The Appellants here have complained on the amount awarded by the Lower Court to the Respondents as the compensation for the unlawful detention. The compensation

provided for in Section 35(6) is in the nature of general damages which flow naturally from the unlawful arrest and detention of a person who was restrained and prevented from the exercise of the constitutional right of personal liberty to move freely as he wishes without unlawful hindrance or let by any other person or authority.
It is therefore a species of damages that does not have to be pleaded or specifically proved before compensation is ordered in appropriate cases. Once the arrest and detention of a person is found to be unlawful and unconstitutional, the law presumes that the victim has suffered personal injuries to his freedom of movement and feelings from which damages flow automatically that call for compensation Akinde v. Access Bank, Plc (supra), Jim Jaja v. COP (supra).
It is the primary duty and function of a trial Court to properly appraise the facts of a case and assess, from the peculiar circumstances of the case, the appropriate quantum or amount of compensation to a person whose right to personal liberty was infringed upon or breach without lawful excuse. Okwejiminor v. Gbakeji (2008) 1 SC (Pt. 111) 263; Harka Air Ltd v. Keazor

(2011) LPELR-1353(SC). In the present appeal, I am unable to find the factors, facts or circumstances specifically considered by the Lower Court in the assessment of the compensation the Respondents are entitled to in the case. However, it has adequately referred to judicial authorities on the application of the rule of law in a democratic society like Nigeria and on the need, where appropriate, to award exemplary damages for infringement or breach of the personal liberty by agents of the Government; such as the security agencies, in particular.

The law is now firmly established that an appellate Court does not ordinarily interfere with the award of damages by a trial Court, save in recognized situations among which are- generally: –
(a) the trial Court acted on wrong principles of law;
(b) the trial Court failed to consider material and relevant facts or matters or took into account, irrelevant matters in the assessment or
(c) that the amount or sum awarded by a trial Court is either extremely too high or too low as to make it completely erroneous in law.
See Williams v. Daily Times of Nig. Ltd (1990) 1 SC, 93 (1990) 1 NWLR (Pt. 124)

1; African Newspapers Ltd v. Ciroma (1996) 1 (Pt. 423) 156; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 247; Adim v. NBC, Plc (2010) 9 NWLR (Pt. 1200) 543; A.C.B. Ltd v. Apugo (2001) 2 SC 215; Nwobosi v. ACB Ltd (1995) 6 NWLR (404) 656. From these and other judicial authorities, the law is also known that an appellate Court would and should not interfere with the award of damages by a Lower Court on the ground only that it would have awarded a different amount or sum if it had tried the matter. Duyile v. K. Ogunbayo & Sons Ltd (1988) 1 NWLR (Pt. 72) 601; James v. Mid Motors Nig. Ltd (1978) 11-12 SC, 31; Olurotimi v. Ige (supra); Okwejiminor v. Gbakeji (supra); Tanko v. Maiwaka (2009) 4 NWLR (pt. 1131) 430; UBN v. Odusote Bookstore (1995) 9 NWLR (Pt. 421) 558; Oyeneyin v. Akinkugbe (2010) 1 NSCQR, 416.

In the Respondents’ case, in view of the unchallenged averments in paragraphs 2 and 3 of the Affidavit of the 2nd Respondent that the 1st Respondent is a trader while the 2nd Respondent; his wife, is a teacher, who were admittedly detained for six (6) days without a valid Court order, the award of the sum awarded by the Lower Court as compensation

for the unlawful detention, is reasonable and meets the justice of the case. None of the situations set out above is shown to exist in this appeal to warrant and justify an interference with the award by the Lower Court.

On the whole and in the final result, I find no merit in this appeal and dismiss it.
As a consequence, the judgement of the Lower Court delivered on the 23rd of October, 2017 is hereby affirmed.
Parties to bear their respective costs of prosecuting the appeal

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The right to personal liberty enshrined in Section 35 (1) of the 1999 Constitution is not an absolute right. It is a right which can be interfered with upon reasonable suspicion of the commission of a crime. However, even in such circumstances there remains the need to comply with and adhere to the stipulations of Section 35 (4) and (5) of the 1999 Constitution which provides for taking a person arrested and detained in accordance with Section 35(1) (c) of the Constitution to Court within a reasonable time; reasonable time being one day or two days as the case may be.
From the uncontroverted facts of this matter, even if there

existed reasonable suspicion for the arrest of the Respondents, their detention from 5th June 2017 to 11th June 2017 without any lawful justification, was a manifest infringement of their fundamental rights by the Appellants. Doubtless, Section 4 of the Police Act empowers the Police to arrest, detain, investigate, interrogate and prosecute offenders:ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 536 but the exercise of the power must be in Strict observance of the rule of law. The Police must observe, enforce and secure the observance of lex retro juris (the law behind the law). This can only be done by a moral commitment to the laws being administered and/or enforced. In this instance, the unjustifiable and unlawful detention of the Respondents without trial from 5th June 2017 to 11th June 2017 manifests the failure to observe the lex retro juris and a lack of commitment and adherence to the rule of law. This raises the in aeternum question: quis custodit custodes (who guards the guards) and who will police the police.
In the lead judgment of my learned brother, Mohammed Lawal Garba, JCA, which I was privileged to read in draft it has been clearly

demonstrated that the detention of the Respondents by the Appellants from 5 June 2017 to 11th June 2017 is unjustifiable, unwarranted, unlawful and unconstitutional. I adopt the reasoning and conclusion in the lead judgment as mine and equally dismiss the appeal on the same terms as set out in the lead judgment. I abide by the consequential orders made in the lead judgment, inclusive of the order as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading in draft before today the Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.

Appearances:

I. Eze For Appellant(s)

E. Ogungbeje For Respondent(s)