AMOS AKILA & ORS. v. DIRECTOR GENERAL STATE SECURITY SERVICES & ORS. (2013)

AMOS AKILA & ORS. v. DIRECTOR GENERAL STATE SECURITY SERVICES & ORS.

(2013)LCN/5980(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of February, 2013

CA/J/81/2011

RATIO

FAIR HEARING: WHAT DOES THE TERM CONNOTE

This is the Rule against bias.”PER JUMMAI HANNATU SANKEY, J.C.A.

FAIR HEARING: THE EFFECT OF THE VIOLATION OF THE RULES OF FAIR HEARING
The violation of the rules of audi alterm portem, nemo judex in causa sua and/or the presumption of innocence, per se, lies in the breach of the fundamental rights as entrenched in section 36 of the constitution. Once one or more of those rights are violated, it is irrelevant whether the decision made subsequent thereto is correct. See Victino v. Ojo (supra); Tukur v Government of Gongola state (1989) 4 NWLR (Pt.117) 517. These are the attributes of a fair hearing.PER JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

1. AMOS AKILA
2. DANIEL GYANG
3. YAKUBU SULE Appellant(s)

AND

1. DIRECTOR GENERAL STATE SECURITY SERVICES
2. STATE DIRECTOR STATE SECURITY SERVICES BORNU
3. MEDIA TRUST NIGERIA LTD
4. ISA UMARU GUSAU Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The facts leading to this Appeal are that the Appellants, Amos Akila, Daniel Gyang and Yakubu Sule, were arrested on the 30th July, 2010 by officers and men of the State Security Services, (agents of the 1st and 2nd Respondents), at a house in Maiduguri. Upon the execution of a search warrant in the premises, they were found to be in possession of a variety and quantity of arms and ammunition. They were promptly arrested and detained without bail. Sometime during the period of their incarceration, specifically on the 19th August, 2010, they were paraded before members of the public and media. As a result, the 3rd and 4th Respondents, Media Trust Nigeria Ltd and Isa Umaru Gusau, who were present and watched the public spectacle, featured the story with photographs, in their Daily Trust newspaper of 19th August, 2010.
On the 8th October, 2010, while still in detention and having not been arraigned before any Court of law for trial, one Auta Maisamari Esq., of Counsel, on the instruction of the Appellants, filed a motion on notice seeking the enforcement of their fundamental rights pursuant to Sections 35 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therein, they prayed the lower court for the following reliefs:
1. A DECLARATION that the arrest of the applicants in the house of the 1st Applicant on 30th July, 2010 at Maiduguri and their continued detention since that date for more than two (2) months by the 1st and 2nd Respondents without charging them to a court of competent jurisdiction even when there are courts within a radius of 1 kilometre from the place of their incarceration amounts to an infringement of their fundamental rights to personal liberty guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 and the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights.
2. A DECLARATION that the arrest and detention of the Applicants by the 1st and 2nd Respondents without informing them in writing of the facts and grounds of their arrest and detention amounts to an infringement of their fundamental rights to personal liberty guaranteed under Section 35(3) of the Constitution of the Federal Republic of Nigeria 1999 and the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights.
3. A DECLARATION that the public parade of the Applicants on page 3 of the “Daily Trust” a newspaper owned by the 3rd Respondent by the Respondents (sic) and making insinuations that the Applicants are criminals even when they have not yet been tried and convicted by a court of competent jurisdiction amounts to prejudging them and consequently an infringement of their fundamental rights to fair hearing guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 and the relevant provisions of the African Charter on Human and Peoples Rights as well as the Universal Declaration on Human Rights.
4. An ORDER of the Honourable Court releasing the Applicants either unconditionally or upon such conditions as the Honourable Court may deem fit to make in the circumstances of this case.
5. An ORDER releasing unto the Applicants their money, the sum of four Million, Eight Hundred Thousand Naira (N4,800,000.00) seized from them without justification by the Respondents.
6. AWARD of exemplary damages in the sum of Twenty Million Naira (N20,000,000.00) in favour of the Applicants against all the Respondents severally and collectively for the infringement of the Applicants fundamental rights.
7. And for such further order or orders as Honourable Court may deem fit to make in the circumstances of this case.”
In support of the application were an affidavit and a further and better affidavit, attached to which were documentary exhibits. In response to the main affidavit, the 1st and 2nd Respondents filed a Counter affidavit and also annexed several documents in support thereof. At the hearing of the application, oral arguments were made by both learned Counsel for the Applicants and for the 1st and 2nd Respondents. The 3rd and 4th Respondents neither filed a Counter affidavit in reaction to the Applicants’ affidavit nor were they represented by any Counsel before the lower Court. As such, they did not in any way participate in the proceedings there. In a considered Ruling delivered on 15th December, 2010, the learned trial judge refused all the reliefs in the motion paper and dismissed the application. Coming under the omnibus prayer however, for any such order or orders as the court may deem fit to make in the circumstances, he made an order for accelerated hearing of the substantive suit No FHC/MG/CR/32/10, then filed before the Court.
Dissatisfied with the decision of the lower Court, the Applicants appealed to this Court via a Notice and Grounds of Appeal filed on 21st December, 2010. Therein, they complained on three (3) grounds. The grounds, shorn of their particulars, are reproduced hereunder as follows:
Ground 1- Error of law:
The Honourable Federal High Court Judge erred in law and abdicated in his judicial responsibility to safeguard the provisions of the Constitution when he dismissed the action of the appellants for the enforcement of their fundamental rights to personal liberty when there is evidence that the appellants were detained by the 1st and 2nd Respondents for more than two months without being tried contrary to the provisions of Section 35(4) of the Constitution of the Federal Republic of Nigeria and without giving any explanation for the inordinate length of time of detention.
Ground 2 – Error of law:
The Honourable Federal High Court judge erred in law when he held that the Fundamental rights of the Appellants to personal liberty was not infringed when they (appellants) were arrested and detained for more than 24 hours without being informed in writing of the facts and grounds of the arrest and detention.
Ground 3 – Error of law:
The trial Federal High Court judge erred in law when he dismissed the suit of the Appellants for the enforcement of their fundamental rights to fair hearing when without their first being convicted, they were displayed to the world as common criminals on the pages of “Daily Trust”, a newspaper published by the 3rd Respondent and without offering any justification for so doing.”
The Applicants therefore sought an order of this Court allowing the Appeal, setting aside the Ruling of the Federal High Court, Maiduguri and granting the reliefs sought by the Appellants in terms of the prayers in the motion paper.
On the 3rd December, 2012, when the Appeal was called up for hearing, the Appellants were represented by Mr. A. Maisamari, while the 1st and 2nd Respondents, as well as the 3rd and 4th Respondents, even though duly notified by the Registry of this Court through their respective Counsel, were not in Court and not represented by Counsel. Mr. Maisamari argued the Appeal. He adopted and relied on the Appellants’ Brief of argument filed on 17-05-11, (but deemed properly filed and served on 26-05-12), as well as the Appellants’ Reply Brief of argument in response to the 3rd and 4th Respondents’ Brief of argument, filed on 27-09-12, as the Appellants’ arguments in this Appeal. Counsel argued that the 1st and 2nd respondents do not contest the Appeal, having filed no brief of argument even when they had been duly served all the processes in the Appeal. In further adumbration of the arguments in the Appellants’ Briefs, Mr. Maisamari submits that the Chief Magistrate Court is not a court of competent jurisdiction by virtue of Section 3 of the Firearms Act, Cap F 28 of 2004 and Section 35(4) (a) of the 1999 Constitution. He accordingly urged the Court to allow the Appeal and grant the application for the enforcement of the fundamental rights of the Appellants.
As rightly pointed out by Counsel for the Appellants, the 1st and 2nd Respondents, even though properly served with all the processes of Court in this Appeal in line with Order 2 Rule 2 of the Rules of this Court, including the Appellants’ Brief of argument and hearing notices, did not file any Brief of argument neither have they been represented by Counsel in the proceedings before this Court. However, the 3rd and 4th Respondents filed a Brief of argument in response to the Appellants’ Brief. Since they were not in Court on the date slated for the hearing of the Appeal, (even though duly notified to appear in accordance with the Rules of this Court), the 3rd and 4th Respondents’ Brief of argument, (filed on 15-11-11), was deemed duly argued pursuant to Order 18 Rule 9(4) of the Rules of this Court.
The Appellants in their Brief of argument distilled two (2) issues from their three (3) Grounds of Appeal for the determination of the Appeal. The 3rd and 4th Respondents also formulated two (2) issues. They adopted the first issue as formulated by the Appellants and formulated a second issue which is substantially similar to the second issue of the Appellants. Having regard to the Grounds of Appeal, I adopt the issues as formulated by the 3rd and 4th Respondents, which I find more succinct, in the resolution of this Appeal. I reproduce them hereunder as follows:
1. “Whether the detention of the Appellants for more than two (2) months in the custody of the 1st and 2nd Respondents without informing them of the facts and grounds of such detention and without trying them before a court of competent jurisdiction did not infringe on their fundamental rights to personal liberty and consequently entitle them to be released from detention either unconditionally or upon such conditions as the court may deem fit to make in the circumstances of the case.
2. Whether the 3rd and 4th Respondents’ publication in the Daily Trust Newspaper of the arrest of the Appellants by the 1st and 2nd Respondents constitutes a violation and/or impediment and/or infringement upon the fundamental right to fair hearing of the Appellants as guaranteed by the 1999 Constitution.”
In arguing issue one, which he tied to Grounds 1 & 2, learned Counsel for the Appellants submits that the decision of the learned trial judge at page 58 of the Record to the effect that the Appellants were properly remanded in custody by the order of the Chief Magistrate Court Maiduguri was erroneous in the face of their denial of this in their affidavit. He argues that even if this were to be true, it is a further infringement on their fundamental rights to personal liberty as they were not charged before a court of competent jurisdiction and were not tried within the stipulated two months by Section 35(4) of the 1999 Constitution. He relies on Ifeagwu v. Federal Republic of Nigeria (2003) 15 NWLR (Pt. 842) 113 @ 184 on the superiority of the Constitution. He contends that the charge against the Appellants was only filed on 13-10-10 whereas the application to enforce their fundamental rights was filed on 08-10-13. He refers to the charge against the Appellants which is Exhibit ‘A’ annexed to the 1st & 2nd Respondents’ affidavit. The Appellants were subsequently arraigned before the Federal High Court on 14-10-10. He therefore contends that the document, i.e. Exhibit A, was made with a view to using same in an already pending suit in contravention of Section 91(3) of the Evidence Act. The Appellants also dispute the assertion that they were remanded in prison custody as recorded in the Remand warrant, and Counsel refers to paragraphs(vii) and (viii) of their affidavit and paragraph 2(i) & (iii) of the further and Better affidavit at pages 9 and 36 of the Record which he argues are uncontroverted. He contends that the Remand warrant was therefore a concoction.
Counsel further submits that the finding of the lower Court that the search warrant represented written information to the Appellants explaining the facts and grounds of their arrest and detention was erroneous. He contends that it was neither addressed to the Appellants nor does it disclose any offence known to law. He concludes that the warrant does not comply with Section 35(3) of the 1999 Constitution. He urged the Court to allow the Appeal on this issue.
In responding on behalf of the 3rd & 4th Respondents, Mr. Uguadinma refers to paragraph 5(vi) (viii) (xi) & (xiii) of the Appellants’ Brief as containing the gravamen of the Appellants’ case as relating to the violation of their fundamental rights to personal liberty as provided for in Section 35 of the 1999 Constitution. He submits that from the Appellants’ own depositions, they did not allege any wrong doing against the 3rd & 4th Respondents in this regard.
Counsel therefore submits that the 3rd & 4th Respondents are not covered by the issue raised by the Appellants as concerns the violation of their right to personal liberty. Therefore they declined to proffer any arguments in relation to this issue.
As has been mentioned earlier on in the body of this Judgment, the 1st and 2nd Respondents did not file a Brief of argument in response to the Respondents’ Brief, even though they defended the suit at the lower Court. What are the consequences of the failure to file a Brief under our Rules? It is that they will not be heard in oral argument. See Order 18 Rule 10 of the Rules of Court. However this, without more, does not relieve the Appellants of the onus of proving that their Appeal should be allowed on the grounds canvassed by them, as the Judgment of the trial Court is still valid and subsisting until set aside by the order of an appellate Court.
The Constitution of the Federal Republic of Nigeria, 1999, (as amended), is very clear, unambiguous, uncompromising and categorical about the rights of its citizens, (both those who are on the right side of the law and those who are reasonably suspected of being on the wrong side of the law), especially where it concerns suspicion of the commission of an offence(s). When it comes to matters of the curbing or curtailing a citizen’s rights, it does not leave us in any doubt as to what should be done or as to how we should proceed, nor does it leave matters to chance or to the discretion of individuals who may be inclined to subject such inalienable and immutable rights to abuse. In my view, that is one of the spirits behind the provision of Sections 35 and 36 in the Constitution. They are aimed primarily at protecting individuals from unlawful deprivation of their freedom through abuse of power by law enforcement and security agencies. And as the Grundnorm and the plum line/yardstick by which all acts relating to such situations must be measured, the Constitution must be obeyed to the letter. The civil rights contained in the Constitution against unjust arrest and detention of a citizen which is protected by the enforcement of the fundamental right provisions should not be restricted in any way by technicalities where none is justified by the Constitution. See Adesanya v. President, Federal Republic of Nigeria & others (1981) 5 SC 113.
For purposes of clarity of argument, the relevant portions of Section 35 of the 1999 Constitution provide as follows:
“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 –
(c) for the purpose of bringing him before a court in execution of the order of a court or upon resonate suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds of his arrest or detention.
(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) 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
(b) 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.
(5) In subsection (4) of this section, the expression “reasonable time” means –
(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.”
Now, in evaluating the affidavit evidence before the lower Court, the learned trial judge was on the right track when he found as follows at page 55 of the Record:
“As correctly stated by the learned Applicants’ Counsel the Constitution in Section 35(3) clearly stipulates that a person arrested shall be informed in writing within 24 hours of the reasons for his arrest and detention,”
However, I must say that he went off track when he went on to accept the Respondents’ proposition that the Search Warrant (Exhibit “C” annexed to the 1st & 2nd Respondents’ affidavit at pages 27-30 of the Record), directed to all SSS Officers authorising them to search the premises at the relevant address stated therein constituted compliance with Section 35(3) of the Constitution. This is stretching the bounds of imagination too far. As has been argued by learned Counsel for the Appellants, the Search Warrant was not addressed nor directed to the Appellants neither did it set out the facts and grounds of the Appellants’ arrest or detention. Little wonder that the 1st & 2nd Respondents in their Counter affidavit at pages 19-32 of the Record were hard-put and unable to categorically depose to any such compliance with the law. Paragraph 9 thereof, which is a feeble and pathetic attempt at explaining their actions, state thus:
“9. That immediately the applicants were arrested, they were informed of the reason for the arrest, that is, possession and dealing in arms and ammunition. Their arrest was based on a search warrant which was shown to the applicant (sic) before their arrest.”
Contrary to the express provision of the constitutional provision, what is required is that the Appellants
“shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds of his arrest or detention.”
There was therefore total non-compliance with the constitutional provision which, without a doubt, requires mandatory compliance. The finding of the learned trial judge at page 56 of the Record that:
“…the search warrant described above and to which all the Applicants were privy in its execution is a sufficient and valid information in writing”,is indeed erroneous and not in tandem with the available evidence before him.
Thus, I uphold the submission by learned Counsel for the Appellants, that the arrest of the Appellants without their being informed in writing within twenty-four hours of their arrest of the facts and grounds of their arrest was unlawful and an infringement of their fundamental rights under Section 35(3) of the 1999 Constitution (as amended).
Secondly, on the complaint of the Appellants that their subsequent detention upon arrest was unlawful, it is gratifying that the learned trial judge exhibited a good grasp of the law when he stated inter alia thus in his Judgment at pages 57-58:
“The ground of the Applicants for this Relief is that the 1st and 2nd Respondents have not charged them before any Court of competent jurisdiction up to now. I must put on record here that this position is not only stating good law but good sense of justice, Learned Counsel for the Applicant has eloquently argued and submitted on Section 35(4) of the Constitution in this wise, I find myself unable to disagree with his submissions in principle and on the law. Indeed, in a number of cases in this Court, I have in deserving cases, declared detentions which are clearly in contravention of Section 35(4) unlawful and unconstitutional),”
Now as afore-stated above, what the Constitution requires of the 1st and 2nd Respondents is that, upon the lawful arrest of the Appellants, they were to be presented before a “court of law” within a reasonable time, and where they were not tried within a period of two months from the date of their arrest or detention, in the case of persons who are in custody, they were to be released either unconditionally or upon such conditions as are reasonably necessary to ensure that they appear for trial at a later date. The evidence before the lower Court, as properly analysed by the learned trial judge, shows that whereas the Appellants were arrested on the 30th July, 2010, they were not taken before a “court of law”, the Chief Magistrate Court, Maiduguri, until the 2nd August, 2010. This deduction was rightly sourced and based on the Remand warrant before the Court. I accept it as such; despite the Appellants protestations to the contrary that they were never taken before a Magistrate Court, as documentary evidence, which speaks for itself, must be preferred to the Appellants’ vivo voce evidence, (so to speak). The learned trial judge, at page 58 of the Record, found inter alia thus:
“On their part, the 1st and 2nd Respondents denied this allegation and maintained that the Applicants were detained on the strength of a Court order and attached a copy of same to their counter affidavit, I have examined it. It is a remand order by the Chief Magistrate Court Maiduguri for the detention of the Applicants made on the 2nd of August 2010; meaning that the Applicants were taken before the Chief Magistrate Court on the fourth day of their arrest well outside the period stipulated in Section 35(4), On close examination of the facts, one would discover that the 31st day of July 2010 was a Saturday and the 1st August 2010 was a Sunday. This Court is empowered to take judicial notice of these days, dates and the fact that courts neither open not sit on those dates in this country; and thus not practically possible to arraign the Applicants before the said Chief Magistrate Court or indeed any other Court in Nigeria.”
From the evidence available to the Court, the learned trial judge cannot in any way be faulted in these findings. The 1st and 2nd respondents acted in total compliance with Constitution when they presented them before the Chief Magistrate Court, Maiduguri on 2nd August, 2010 after their arrest on the 31st July, 2010. However, Section 35(4) goes further to require that after such presentation before a “court of law” within a reasonable time, the Appellants must be “tried” within a period of two months from the date of their arrest or detention and, where they are not so tried, in the case of persons who are in custody, they are to be released either unconditionally or upon such conditions as are reasonably necessary to ensure that they appear for trial at a later date.
Now Black’s Law Dictionary (Centennial Edition (1891-1991) Sixth Edition, defines a “trial” as follows at page 1504:
“A judicial examination and determination of issues between parties to action, whether they be issues of law or fact, before a court that has jurisdiction… A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has proper jurisdiction..”
By the oxford Advanced Learners’ Dictionary, a trial is defined in layman’s terms at page LSTB thereof as:
“A formal examination of evidence in court by a judge and often a jury to decide if subject accused of a crime is guilty or not… The question then arises: from the evidence presented before the lower Court, were the Appellants tried within two (2) months from the date of their arrest or detention? And if they were not so tried, were they released either unconditionally or upon such conditions as are reasonably necessary to ensure that they appear for trial at a later date? I believe even a cursory examination of the facts before the lower court would produce an answer. It is indisputable that the Appellants were arrested on the 31st July, 2010. Thereafter, they were taken before the Chief Magistrate Court, Maiduguri on the 2nd August, 2010, which Court, in apparent compliance with the Criminal Procedure Code (CPC) applicable in the Northern part of Nigeria, took cognisance of the offences alleged and remanded them in prison custody. So far so good!
However, thereafter, (and this is my point of departure with the learned trial judge, up to the time of filing the application before the Federal High Court, Maiduguri for the enforcement of their fundamental rights on 8th October, 2010, the Appellants were not “tried” before a “court of competent jurisdiction” as mandatorily required by Section 35(4) of the Constitution. Indeed, the charge sheet, (exhibited to the 1st & 2nd Respondents’ affidavit as Exhibit “A”), confirms that the three count charge against the Appellants was not filed in that Court until the 13th October, 2010. (See pages 22-14 of the Record). Thereafter, the Appellants were not formally arraigned before lower Court for trial until the 25th October, 2010, which, (as pointed out by the learned trial judge), was the same date on which this application for the enforcement of fundamental rights was heard by it. (See page 59 of the Record). From the 31st July, 2010 to the 26th October, 2010 is undoubtedly more than two months. Consequently, in order to comply with section 35(a) of the 1999 Constitution (as amended), the Appellants should have properly been released on bail either unconditionally or upon such conditions as would guarantee that they appear to take their trial. In failing to do this, the Lower Court fell afoul of the relevant and mandatory constitutional provision which seeks to guarantee the fundamental rights of its citizens to personal liberty. This is more so in the face of Section 36(1) & (5) of the same Constitution which guarantees a fair hearing within a reasonable time and presumes every person charged with a criminal offence innocent until proved guilty, no matter the gravity of the offence. The only exception is in respect of capital offences for much express provision is made in subsection (7) of Section 35. However, it is glaring that the Appellants were not charged with a capital offence.
It is therefore my finding that the detention of the Appellants for more than two (2) months in the custody of the 1st and 2nd Respondents without informing them of the facts and grounds of such detention and without trying them before a court of competent jurisdiction infringed on their fundamental rights to personal liberty and consequently entitles them to be released from detention either unconditionally or upon such conditions as the court may deem fit to make in the circumstances of the case. I thus resolve issue one in favour of the Appellants.
With regard to issue two, which is whether the 3rd and 4th Respondents’ publication in the Daily Trust Newspaper of the arrest of the Appellants by the 1st and 2nd Respondents constitutes a violation and/or impediment and/or infringement upon the fundamental right to fair hearing of the Appellants as guaranteed by the 1999 Constitution, learned Counsel for the Appellants submits that the public parade of the Appellants on the pages of the Daily Trust Newspaper by the Respondents, even when they had not been tried and convicted of any offence, is an infraction of their fundamental rights to fair hearing guaranteed under Section 35(6) of the 1999 Constitution. Counsel contends that the Appellants were presented at page 3 of the Daily Trust Newspaper of Thursday 19th August, 2010. That the paper contained the photographs of the Appellants in and cuffs with their full names stated in the second paragraph thereof. This newspaper page was Exhibit ‘A’ annexed to the Appellants’ affidavit at page 11 of the printed Record. Counsel contends further that the learned trial judge, by stating as he did at page 62 of the Record that it was difficult to discern the men in the photographs and that the photocopy of the alleged Newspaper report was illegible, in addition to which he complained that same was thrust upon the court without due consideration that he would need to read same, he had raised an issue suo motu and determined same without hearing the parties. It is his opinion that it was incumbent upon the trial court to have drawn Counsel’s attention to the fact of the illegibility of the document before hearing the substantive application and requested for a clearer copy. He also contends that by pronouncing as he did on the document, the learned trial judge held brief for the 3rd Respondent who did not challenge the action. Counsel surprisingly goes on to allege that the learned trial judge raised this issue simply because he did not want to hear the Appellants. Counsel further contends that, by featuring the Appellants on the pages of a national newspaper that is read by millions of people and giving the impression that they were criminals the Appellants were denied a fair hearing. He argues that they were condemned before the Court of public opinion without first trying and convicting them of any offence. Counsel thus urges the court to also resolve this issue in favour of the Appellants.
Mr. Uguadinma, learned counsel for the 3rd & 4th Respondents, submits that the Respondents did not in any way violate or infringe upon the fundamental rights to fair hearing of the Appellants. He relies on the decision in the case of Bukar v. Ali (1997) 8 NWLR (Pt.517) 486 @ 494 where “Fair Hearing” in the con of section 33(1) of the 1979 constitution, (which is in pari materia to section 35(1) of the 1999 constitution), was interpreted.
He submits that in order for section 35(5) of the 1999 constitution to come into focus, (which is the presumption of innocence of every person charged with a criminal offence), there must have been an arraignment of the person being accused before a court of law and a format charge explaining the offence committed to the accused person. Counsel submits that for the Appellants to discharge the onus on them to prove that their right to fair hearing had been infringed upon by the 3rd & 4th Respondents, they had to prove the following ingredients that are inherent in Section 36(1) & (5) of the Constitution as follows:
a) That the 3rd & 4th Respondents constituted a court or a tribunal;
b) That the 3rd & 4th Respondents charged them with having committed an offence;
c) That the 3rd & 4th Respondents tried their case;
d) That the 3rd & 4th Respondents did not give them a fair hearing in the course of hearing their case;
e) That in the course of the trial, the 3rd & 4th Respondents presumed the Appellants guilty and required them to prove their innocence.
Counsel submits that it was not enough for the Appellants to merely allege that their right to a fair hearing had been trampled upon by the Respondents without more. They needed to have proved it to be entitled to Judgment.
Learned Counsel further submits that the Appellants failed to prove their case against the 3rd & 4th Respondents.
He refers to the depositions in the Appellants’ affidavit where they admit that they were actually arrested by the 1st & 2nd Respondents; they admit that they were arrested with arms and ammunition; and they admit that, as at the time they filed the suit, they had not been charged before any court of law. Since that is so, Counsel wonders how 3rd & 4th Respondents violated their right to a fair hearing.
Learned Counsel further submits that, by virtue of paragraph 5 of their supporting affidavit, the 1st & 2nd Respondents who had custody of the Appellants, invited the general public, including the 3rd & 4th Respondents, and presented the Appellants to the public with a show of the ammunition and money they were arrested with.
He argues that the Appellants have not alleged that the 3rd & 4th Respondents had no right in law to publish the Appellants’ arrest in their newspaper. Nor that the constitutional provision requires that the Appellants be heard by the 3rd & 4th Respondents before publishing the fact of their arrest in the newspaper and the 3rd & 4th Respondents had failed to give them such a hearing. Instead the gravamen of their complaint is that the 3rd & 4th Respondents published the fact of their arrest in the newspaper and this act of publication constitutes a breach of fair hearing.
Counsel submits that it is evident that the 3rd Respondent is a Newspaper Publishing House which publishes the Daily Trust Newspaper. The 4th Respondent is a journalist who works for the 3rd Respondent and was present during the public presentation of the Appellants and briefing of the public by the 1st & 2nd Respondents. Counsel thus submits that the 3rd & 4th Respondents, being media practitioners, owe it a duty and responsibility to disseminate information to the general public when it occurs howbeit in the most responsible and professional manner without malice. He contends that in the instant case, the 3rd & 4th Respondents did not only take the briefing by the 1st & 2nd Respondents, but went further to interview the Appellants and published both the briefing and the interview. He submits that these acts do not in any way constitute an infringement on the Appellants’ right to a fair hearing. Instead, it even helped the Appellants put their own side of the story across to the general public.
Counsel argues that, since by their own admission the Appellants had not been charged before any court of law nor were they standing trial before any court, their fundamental right to fair hearing, including their being presumed innocent until proven guilty, had not come into question. Counsel submits that the arrest of the Appellants with the alleged calibre and quantity of arms and ammunition, coupled with the security challenges being faced in recent times at the place of its alleged destination, made the story newsworthy and a responsibility owed to the general public. Counsel thus submits that the 3rd & 4th respondents’ publishing of the story had no bearing on issues of fundamental rights as envisaged by Section 36 of the 1999 Constitution. Reliance is placed on Awoye V University of Jos (2000) FWLR (Pt.15) 2658 @ 2659
On the finding of the trial Court at page 62 of the Report, Counsel submits that the appellant owed a duty to bring before the Court legible and readable material which they intended the lower court to look at to assist it in determining whether the report by the 3rd & 4th Respondents amounted to a denial of fair hearing as claimed. He further submits that raising the issue of the illegibility of the document did not amount to raising an issue suo motu and determining it without hearing the parties. Counsel also submits that the said newspaper report, being a photocopy of a public document which was not certified, was inadmissible in evidence, ab initio. Reliance is placed on Fawehinmi v. IGP (2000) FWLR (Pt.12) 2015 @ 2037.
Learned Counsel further submits that the failure to file a counter affidavit by the 3rd & 4th Respondents does not prevent the trial court from scrutinizing the fact in the supporting affidavit to see if they are cogent and compelling to warrant a favourbale ruling. Reliance is placed on Lawal-Osula V U.B.A. Plc. (2003) 5 NWLR (Pt. 813) 376 @ 390. He refers to paragraphs 5(iv) (v) (viii) (ix) & (x) of the supporting affidavit of the Appellants to submit that the facts deposed therein confirm that the Appellants were arrested with arms and ammunition, paraded before the public and the 3rd & 4th Respondents reported these facts. Counsel contends that these are admissions against interest for which there was no need to counter; and are not cogent and compelling enough for a court to rely upon to return a favourable verdict for the Appellants. He therefore urged the Court to dismiss the Appeal and affirm the Judgment of the trial Court.
In a brief Reply on points of law, learned Counsel for the Appellants contends that by the publication, the Appellants have been condemned and convicted in the court of public opinion. He argues that a reasonable man who reads the publication and sees the Appellants in handcuffs will have a negative impression of them as criminals notwithstanding the provision of Section 36(5) of the 1999 Constitution which presumes them innocent until proven guilty. He contends that by the publication, the Respondents prosecuted the Appellants before the Nigerian and international community where the extra-judicial statements purportedly made by the Appellants were published, and the arms and ammunition were tendered for the public to judge. Counsel submits that what the Respondents did by parading the Appellants on page 3 of their newspaper in handcuffs and publishing their alleged confessional statements and the exhibits recovered was to assume judicial functions in spite of the clear provision of Section 36(5) of the 1999 Constitution presuming them to be innocent until proven guilty. He therefore concludes that the Appellants rights to fair hearing were infringed upon.
In respect of the Respondents’ submission that the photocopy of the newspaper report was not certified and so is inadmissible, Counsel submits that this was not an issue at the trial and so no finding was made thereon.
Counsel submits that an appeal is an attack only on the decisions of the lower court, and is not at large.
Let me say right away that the right to fair hearing is a cardinal principle that is provided in section 36(1) of the 1999 constitution. That having been said however, without much ado, I completely subscribe to the submissions by learned counsel to the 3rd & 4th Respondents that the Appellants are completely off-track on so many levels in alleging that, by reporting and publishing the event where the Appellants were put on display by the 1st & 2nd Respondents, such constituted an infringement by the 3rd and 4th Respondents ort the Appellants’ constitutional right to a fair hearing. As rightly pointed out by counsel to the 3rd & 4th Respondents, section 36(1) of the 1999 constitution anticipates that the issue of fair hearing shall be in relation to the processes of adjudication and trial before a competent court of law. For the avoidance of doubt, this is what it provides:
“36 – (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.
(4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:-
(5) Fair hearing by a court or other tribunal under section 36(10) of the Constitution, (the grundnorm), incorporates the audi alterem rule as well as the rule of nemo judex in causa sau. There are: that a man can never have a verdict entered against him on a matter relating to his civil rights and obligations before a court or tribunal without being given an opportunity of being heard; and the judge before whom he is standing trial must not be an interested party. These are some of the essential cornerstones of our judicial process. See Victino V Ojo (2010) 3 SCNJ 112. In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when the party aggrieved has been heard that the trial judge would be seen as discharging the duty of an unbiased umpire.

Generally speaking, the term fair hearing connotes the impression given to an ordinary reasonable person watching the proceedings of a court or tribunal, as the case may be. If he goes away with the impression that a person has not been treated fairly, then there is a breach of fair hearing. In the Nigerian legal system, the purport of fair hearing by virtue of Section 36(1) of the 1999 Constitution is that, in the determination of his rights and obligations, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. In the words of my noble lord, Adekeye, J.S.C. in Rear Admiral Francis Echie Agbiti v. the Nigerian Navy (2011) 2 SCNJ 1 @ 28-28:
“Fair hearing requires the observance of the twin pillars of natural justice namely –
(a) Audi alterem partem that is hear the other side,
(b) Nemo judex in causa sua that is, no one should be a judge in his own cause,
This is the Rule against bias.”
The violation of the rules of audi alterm portem, nemo judex in causa sua and/or the presumption of innocence, per se, lies in the breach of the fundamental rights as entrenched in section 36 of the constitution. Once one or more of those rights are violated, it is irrelevant whether the decision made subsequent thereto is correct. See Victino v. Ojo (supra); Tukur v Government of Gongola state (1989) 4 NWLR (Pt.117) 517. These are the attributes of a fair hearing.
From all the above, it is apparent that issues of fair hearing indeed lie in the procedure followed in the determination of the case before a court of law. It has nothing to do with such extraneous matters as the reportage of newsworthy matters by journalists, so long as they do not fall foul of their duties and the ethics of their profession to report both fairly and correctly; and so long as they do not comment on matters that are subjudice. Where a citizen is aggrieved by the publication of any material in a newspaper, which for any reason he finds offensive, his action may lie in commencing contempt proceedings, (if the matter is pending before a court of law), defamation, libel or even slander. Any such publication complained about however cannot without more, result in a lack of fair hearing against persons reported on, such as the Appellants. It is a misapprehension of the principle of fair hearing enshrined in the Constitution.
In the instant Appeal, it is obvious that the Appellants, allegation of breach of that right to a fair hearing by the 3rd and 4th Respondents is totally without basis. At the time the Appellants were paraded before the general public on 19th August, 2010, inclusive of the media, (and thus the 3rd and 4th Respondents), by their own affidavit evidence, (which I do agree in this circumstance is an admission against interest); they had not yet been arraigned before a court of law for trial. Besides which the Appellants have not alleged that the report was incorrect or that it defamed them in any way.
Further to this, it is baffling to me the way and manner the Appellants took up issues with the observation of the learned trial judge in respect of the alleged newspaper report, Exhibit ‘A’ annexed to their affidavit. In his consideration of the evidence before the lower court and the documents exhibited thereto, the learned trial Judge simply stated that he was unable to read the said newspaper report exhibited and to identify the photographs of the persons in the report; and this drew such ire and indignation of the Appellants to the extent that they alleged both bias and descent into the arena of the fight by the learned trial judge. I am amazed. The Appellants complain vociferously and volubly that what the learned trial judge should have done was to have nicely requested from them for a clearer copy of the report before even embarking on hearing the application. This allegation is both perplexing and bewildering, and yet it is a simple matter. I find that, contrary to the Appellants’ unreasonable expectation, it was incumbent upon the Appellants’ without any need to be prompted or impelled, to exhibit a legible and comprehensible copy of the document if they intended the lower court to read and rely on it in its process of adjudicating in the dispute between them and the Respondents. It is certainly not the duty of the court to push, coax and cajole parties before it to do what they are ordinary supposed to do in the prosecution or defence of their cases. Indeed, if the lower court had insisted on this, then the charge of descending into the arena would have been justified. Where the lower court was unable to read and comprehend the Exhibit “N’, (which, by the way, I entirely/agree was dumped on it without any consideration as to whether or not it was readable), then it cannot have been expected to make any use of the exhibit in arriving at a decision in the matter. Having been so constrained by the act of the Appellants themselves, the Appellants cannot now turn around to accuse the lower Court of holding brief for the 3rd & 4th Respondents. The attack was wholly unjustified. And I do so find.
However, on the issue of lack of certification of the newspaper report, (Exhibit “A”), by the Appellants, I agree with learned Counsel for the Appellants that this was not a matter raised by any of the parties at the lower Court neither was the part of the decision of the lower Court. Hence I find that it is an entirely fresh issue for which leave to raise same before this Court has not been ought and obtained. It is therefore discountenanced.
On the whole, and for the reasons afore-stated, I resolve this second issue in favour of the 3rd and 4th Respondents.
In the result, this Appeal succeeds in part. Having failed to try the Appellants within, two (2) of their arrest and detention, I find that their fundamental rights to personal liberty as enshrined in Section 35(4) (a) of the Constitution of the Federal Republic of Nigeria, 1999, has been violated. They are consequently entitled to bail upon such conditions as are reasonably necessary to ensure that they appear for their trial. Consequently in the exercise of the power vested in this Court under Section 15 of the Court of Appellant, 2004, prayers 1, 2 and 4 in the application for the enforcement of fundamental rights are granted as prayed in these terms:
“It is hereby DECLARED that the arrest of the Applicants in the house of the 1st Applicant on 30th July, 2010 at Maiduguri by the 1st and 2nd Respondents without informing them in writing of the facts and grounds of their arrest within twenty-four hours (24) of their arrest and mention amounts to an infringement of their fundamental rights to personal liberty guaranteed under Section 35(3) of the Constitution of the Constitution of the Federal Republic of Nigeria, 1999, (as amended).
2. It is hereby DECLARED that the arrest of the Applicants in the house of the 1st Applicant on 30th July, 2010 at Maiduguri and their continued detention since that date for more than two (2) months by the 1st and 2nd Respondents without trying them before a court of competent jurisdiction amounts to an infringement of their fundamental rights to personal liberty guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended).
3. An ORDER is hereby made releasing the Applicants to bail upon such conditions as would guarantee that they appear to take their trial.
Prayers 3, 5 and 6 are refused and dismissed for lacking in merit, the Appellants having made no attempt at adducing evidence to prove their entitlement to reliefs 5 and 6 thereof.
In the exercise of the discretion to grant bail in such circumstances however, I have considered the nature and gravity of the offences charged, the severity of the punishment, if convicted, and the likelihood of the Appellants appearing to take their trial. The Appellants are charged as shown in the Exhibit “A” annex to the Respondents’ affidavit, with being in possession and control of a variety of arms and ammunition and dealing in same contrary to Sections 3, 8(i) and (i) and punishable under Section 27 (r) (a) (i) and 27(1) (b) (ii) & (iii) of the Firearms Act Cap F 28 Laws of the Federation of Nigeria (LFN), 2004. The penalties for such infractions are a minimum of ten (10) years imprisonment in the first count, and a maximum of five, (5) years imprisonment in the second and this Counts respectively. Given the gravity of the offences charged, the severity of the punishment if convicted and the impunity with which arms and ammunition around the country in the face of the current security challenges, acts of terrorism and the states of in acts of terrorism and the state of insecurity in many States in the country, I make the following orders:
1. Bail pending trial is granted to the Appellants in the sum of Five Million Naira (N5,000,000.00) and two (2) sureties each in the same amount, e of whom must be a civil servant of the status of not less than a Director in the Federal or State Civil Services of this Country and the other of whom must be a traditional ruler of the status of not less than a District Head);
2. The sureties are ORDERED to deposit their title documents in respect of landed property covered by an unencumbered statutory right of occupancy valued at not less than Five Million Naira (N5,000,000.00) and situate within the jurisdiction of this Court;
3. It is ORDERED that the sureties must be respectable persons of substance permanently resident at identifiable addresses within the jurisdiction of this Court, and such addresses must be verified and confirmed by officers of the State Security Services, Maiduguri.
4. The Appellants are ORDERED to report to the office of the State Security Service, Maiduguri on the first Monday of every month until their trial is concluded. In the event of any default in so reporting, the bail stands revoked FORTHWITH.
5. Appellants are ORDERED to deposit their international passports along with 10 copies of their most recent passport photographs with the State Security Services, Maiduguri.
6. The Appellants are ORDERED not to travel outside the shores of this country under any guise until the trial is concluded.
This is the judgment of the court. Both parties are ordered to bear their own costs.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have had a preview of the leading judgment just delivered by my learned Brother, Sankey, JCA. I agree with the reasons advanced therein to arrive at the conclusion that the appeal be and is allowed in part.
I abide by the consequential orders contained in the said leading judgment. I also make no order for costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading before now the judgment of my ably learned brother, JUMMAI HANNATU SANKEY J.C.A; I am in total agreement with her reasoning and conclusions. I wish to add to a few words of mine, for emphasis.
The provisions of Sections 35(1) and 36(5) & (6) of the 1999 Constitution (as amended), are very clear that every citizen of our dear country, Nigeria, is entitled to his personal liberty and (he) can not be deprived of such right except as stipulated or provided for by the Constitution or any other law in force at material time. Specifically, Section 35 (i) (c) of the said Constitution provides that every person is entitled to his personal liberty and shall not be deprived of such liberty except for the purpose of bringing him before a Court in the 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 or further committing an offence. In Onyirioha v. Ige (200 ) 3 NWLR Pt.1128 p.432 @ 362, AGUBE, J.C.A. while considering the provisions of Sections 35(1) and 36(5) and (6) of the 1999 Constitution (a) amended; had this to say:-
“It has been noted as I have said else where that by the provisions of sections 35(1) and 36(5) and (6) of the 1999 Constitution of the Federal of Nigeria, every citizen of this country is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the Constitution or Statute.
Abdullahi, J.C.A., in considering the provisions of section 35(1) and 36(5) and (6) of the said constitution said:
“It is now settled beyond peradventure that a Nigerian Citizen it entitled to his God’s given natural right free from incarceration save in accordance with all the fundamental laws of the land, i.e. the Constitution of the Federal Republic of Nigerian and other relevant legislations which are not inconsistent with the former”.
I am therefore in total agreement with my learned brother SANKEY J.C.A. on the conclusion she arrived at in the leading judgment that the failure to try the appellants within the period prescribed by the constitution of the Federal Republic of Nigeria 1999 (as amended,) this is, to be tried in a competent Court of law within two (2) months of their arrest and detention was a breach of their fundamental rights guaranteed by S.35 (4) of the Constitution. Their fundamental right was violated or breached by the 1st and 2nd Respondents. They are therefore entitled to their right of freedom as provided in the Constitution. The order made by my learned brother, SANKEY J.C.A. for their release on bail pending their trial by a Court of Competent jurisdiction is therefore, commendable.
On the issue of granting the appellants bail on certain conditions which are enumerated in the lead judgment, I consider orders 1 and 2 made by the learned Justice in granting the bail to be a bit too harsh and may render the bail so granted futile or a mirage. The orders specifically are:-
(1) Bail pending trial is granted to the appellants in the sum of Five Million Naira (N5,000,000.00) and two (2) sureties each in the same amount, (One of which must be a Civil Servant of the Status of not less than a Director in the Federal or State Civil Service of this Country and the other of whom must be a traditional ruler of the status of not less than a District Head)” .
“2. The sureties are ORDERED to deposit their title documents in respect of landed properties covered by an unencumbered statutory right of occupancy value at not less than five million Naira (N5,000,000.00) and situate within the jurisdiction of this Court”
In the view, the two conditions stated above are too harsh and may not be easily met or fulfilled by the appellants, if it is so, then the essence of granting them bail pending their trial by a Court of law may be defeated. The granting of the bail by the Court with harsh or difficult conditions to be met or satisfied is not to be encouraged unless there are good reasons for doing so. This Court had had the opportunity to deprecate the imposition of harsh and difficult conditions to be satisfied when granting bail pending trial in the case of ONYIRIOHA V. I.G.P (2009) 3 NWLR pt. 1128 P. 42 @ 370 whereby AGUBE, I.C.A. said:-
“Although in this case, the question of refusal of bail does not arise, where the conditions imposed on the accused by the trial court are stringent and onerous to the extreme, it is as good as denying him bail.”
The desirability or otherwise of imposed stringent and harsh condition to be fulfilled in granting bail pending trial of an accused person by a court of law was considered in the case of ONYIBIOHA v. IGP supra. In that case the provisions of S.16(1) of the Advanced Fee Fraud and other Related Offences Act whereby an accused person who has been granted bail had to satisfy three (3) conditions, namely:
(i) Payment of one quarter of the amount of money involved in the offence.
(ii) The provision of a surety or such number of sureties who shall deposit adequate security for the balance of the amount involved in the offence, and
(iii) The handing over of his passport to the High Court of the State concerned for the duration of the bail,”
was held to be in breach of the African Charter on Human and people’s Right (Ratification) Act, Cap 10, Laws of the Federation, and accordingly null and void and of no effect whatsoever.
I am no unmindful of the reasons that prompted by Lord, Justice SANKEY, J.C.A. in imposing the conditions to be fulfilled by the appellants in granting them bail, I agree with her reasoning on the need to curtail the proliferation of ammunitions weapons and the like in a country such as ours bearing in mind he endless security problems bedeviling our dear Nation. There is therefore an urgent need to control restrict and even prohibit the unwarranted possession of arms and or ammunitions by every Tom Dick and Harry. But, then, the Fundamental Rights of the citizens should not be trampled upon merely because one is suspected of committing an offence is presumed innocent until proved otherwise. For this reasons, I am unable to endorse the stringent and harsh conditions imposed on the appellants by the learned Justice, SANKEY, J.C.A. in granting them bail pending their trial. Instead, I would rather reduce the sum of (Five Million Naira (N5,000,000.00) in the 1st and 2nd orders made by my Learned brother SANKEY, J.C.A. to Two Million Naira (N2,000,000.00). This, in my view, would be possible for the appellant to satisfy without much difficulties in securing their freedom from being kept without trial in detention.
Finally, I agree that both parties are to bear their own costs of the appeal as ordered by my learned brother SANKEY, J.C.A.