EZIEGBO & ANOR v. ASCO INVESTMENT LTD & ANOR
(2022)LCN/16347(CA)
In The Supreme Court
On Friday, January 21, 2022
SC.437/2015
Before Our Lordships:
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Between
1. NDUKA EZIEGBO 2. NDUKA INTERGRATED CO. LTD. APPELANT(S)
And
1. ASCO INVESTMENT LTD 2. COMMISSIONER OF POLICE (LAGOS STATE) RESPONDENT(S)
RATIO:
POSITION OF LAW ON A PERSON’S RIGHT TO BE LEGALLY AND CONSTITUTIONALLY EXCUSABLE
However, for any derogation, or limitation of the right to be legally and constitutionally excusable and availing, it must strictly fit into any of the enumerated situations or circumstances set out in the Constitution. See Agbakoba v. Director, SSS (1998) 1 HRLRA, 252, Director, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 3 14 (SC), lyere v. Duru (1986) .5 NWLR (pt. 44) 665, Fawehinmi v. Abacha (supra). MOHAMMED LAWAL GARBA, J.S.C.
POSITION OF LAW ON A PERSON’S FUNDAMENTAL RIGHTS
…..indeed all the other fundamental rights provided for under Chapter IV of the Constitution, are not absolute or sacrosanct, but rather qualified, as shown in the exceptions stipulated therein. The Hon. Justice Chukundifu Akunne Oputa, JSC (of blessed memory) dealt with the provisions of 34, 35, 37 and 38 of the 1979 Constitution, which were part of the fundamental rights under Chapter IV of that Constitution, in the case of Osawe & 2 Ors v. Registrar of Trade Unions (1985) 3 NWLR (Pt. 7) 127 and stated that:-
“One has to bear in mind that the rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are “qualified rights”. They are subject … to any law that is reasonably justifiable in a democratic society; (a) in the interest of defence, public safely, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other people.”
See also Director, SSS v. Agbakoba (supra) Dokubo Asari v. FRN (2007) 5 6 SC, 150, (2007) All FWLR (pt. 375) 558 at 586 – 587, Ukaegbu v. National Broadcasting Corp (2007) 14 NWLR (pt. 1055) 551, Onyirioha v. IGP (2009) 3 NWLR (pc. 1 128) 342. MOHAMMED LAWAL GARBA, J.S.C.
POSITION OF LAW ON A PERSON’S FUNDAMENTAL RIGHTS
Although, the law is that once facts deposed to by a person shows prima breach or contravention of the right to personal liberty, the burden of proving that the arrest and detention of the person is lawful and justified under the constitutional provisions, is on the party making the arrest. See Director SSS v. Agbakoba (supra), FRN v. Ifegwu (2003) 15 NWLR (pt. 843) 113 at 180, Ejefor v. Okeke (2007) 7 NWLR (pc. 665) 373, Onagoruwa v. IGP (1991) 5 N WLR (pt. 193) 593). MOHAMMED LAWAL GARBA, J.S.C.
POSITION OF LAW WHEN AN APPELLATE COURT RAISES A QUESTION SUO MOTU
Although an appellate Court is allowed, in its discretion, to raise a question suo motu, if it sees fit to do so. This discretion must, however, be exercised sparingly and in exceptional circumstances only. In addition, where such questions are so raised, it is imperative that the parties must be given the opportunity to address the appeal Court before a decision on such issue is made. Where an appellate Court fails to so do, not only is it a breach of the parties’ constitutional right to fair hearing, but the question so raised cannot be allowed to stand, as it surely portends a miscarriage of justice. See Olusanya v Olusanya [1983] 1 SCNLR 134; Kuti and Anor v Jibowu and Anor (1972) 1 All NLR (pt. 11) 180, 192; Atanda and Anor v Akanmi (1974) 1 All NLR (pt. 1) 168, 178; Ebba v Ogodo [1984[ 1 SCNLR 372; N.N.P.C v Roven Shipping Ltd [2019] 9 NWLR (pt. 1676). CHIMA CENTUS NWEZE, J.S.C.
WHEN THE APPELLATE COURT CAN RAISE AN ISSUE SUO MOTU WITHOUT HEARING THE PARTIES
As with all other principles of law, this rule has its exceptions. Decisions of this Court abound specifying its exceptions, Bola Ominiyi v Jacob Adegboyega Alabi (2015) LPELR-24399 (SC); Effiom v C.R.S.LE.C [2010] 14 NWLR (pt. 1213) 106; Tukur v Government of Gongola State [1989] 4 NWLR (pt.117) 517. These cases are to the effect that an issue of law or jurisdiction, not within the contemplation of the parties, may be raised suo motu and decided upon without hearing the parties. CHIMA CENTUS NWEZE, J.S.C
MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal, Jos Division (lower Court) contained in the judgment delivered on the 2nd of February, 2015, allowing the appeal by the Respondents against the judgment of the Federal High Court, Jos (trial Court) setting it aside and dismissing the claims for breach of fundamental rights brought under Sections 34, 35 and 41 of the 1999 Constitution (as altered).
The Notice of Appeal containing four (4) grounds, was filed on the 4th May, 2015 and in the Appellants’ brief filed on the 16th July, 2015, four issues are set out for determination by the Court in the following terms:-
“1. Whether the Court of Appeal is not wrong in holding that the Provision of Order VIII (1), (2) and (3) of the Fundamental Rights Enforcement Procedure Rules 2009 is not mandatory despite the express use of the word “must” (Ground 1).
2. Whether the Court of Appeal or any Court for that matter is entitled to take up points of fact and/or law not argued or raised by any of the parties and come to a decision of the case upon such point either alone or in conjunction with other points without first heard the parties thereon. (Ground 2)
3. Whether the appropriate order should not have been that of retrial, assuming (but without conceding) that the Court of Appeal rightly found that the trial Court should have been called upon to determine the allegation of adulteration of kiwi shoe polish first (Ground 3 & 4).
4. Whether the Court of Appeal was correct in disturbing the findings of the Federal High Court under the circumstances of this case (Ground 5).
The issues are adopted in the Respondents’ brief filed on 26th August, 2015.
As foundation for the consideration of arguments on the issues which call for decision by the Court in the appeal, the case of the Appellants before the trial Court, put briefly, was that the 1st Appellant was arrested by officer of the 2nd Respondent from Jos, taken to, detained and arraigned before a Magistrate Court in Lagos on allegation of production of adulterated Kiwi Shoe Polish by the 1st Respondent. The Appellants initially approached the trial Court by way of motion on Notice of dated 11th April, 2013 brought pursuant to Orders 2, 3, 4,5, 6 and 7 of the fundamental rights (Enforcement Procedure) Rules, 2009 and Section 34, 35 and 41 of the 1999 Constitutions of Federal Republic of Nigeria (as amended) and sought declaratory and injunctive orders as well as damages against the Respondents.
Due to the Respondents’ preliminary objection to the competence of the suit, the Appellants filed another motion on notice on the 21st May, 2013 for the same reliefs as the earlier one which was withdrawn and struck out.
In the trial Court’s judgment delivered on the 9th July, 2013 and entered in favour of the Appellants, the Respondents’ objection was overruled, resulting in the appeal before the lower Court.
I have read the forty-six (46) pages judgment by the lower Court which appears at pages 192 – 237 of the Record of Appeal and found that the appeal was allowed and the appellants’ claims dismissed on the grounds that the suit was premature and failure by the Appellants to prove that the arrest by the 1st Respondent was unlawful under Section 35 (6) of the Constitution.
The simple question that requires answer and decision in the appeal is whether lower Court is right in law on the grounds. The reasoning of the lower Court for its decision, is, inter alia, to be found at pages 235 – 236 of the Record of Appeal (pages 44-45 of the judgment) that:-
“Section 35(1) (c) of the Constitution (supra) authorizes the arrest of a person for the purpose of bringing him before a “Court” without naming which Court, that is a Magistrate Court or a Federal High Court, a High Court, etc. Neither does the provision state the arraignment must be before a Court of competent jurisdiction.
The 1st respondent as arrested and brought before a Court of law in Lagos State but as he could not be tried by that Court and within the time stipulated by the Constitution, on his own showing, he was admitted to bail. A longer period of arrest or detention may be necessary judging that the place or arrest was Jos in Plateau State which the detention and arraignment in Court was in Lagos, Lagos State. (See Section 35(5) (b) of the Constitution (supra).
I hold that conversation to be awarded to an aggrieved party is restricted to one who shows that the arrest or detention was unlawful under Section 35(6) of the Constitution. The onus of proving unlawfulness of the arrest or detention is on the respondents. This was not discharged in the lower Court.”
Now, the claims by the 1st Appellant at the trial Court were founded on the provisions of, as stated at the beginning, Sections 34(1) (a), 35 and 41 of the Constitution (as altered) which provide thus:-
“34. (1) Every individual is entitled to respect for the dignity of his person.
And accordingly –
(a) no person shall be subject to torture or to inhuman or degrading treatment.
35. (I) 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;
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him by law.
(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.
41. (1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.”
Taking them in their sequence, the provisions in Section 34 (1) (a) guarantee respect for the dignity of the person of all persons in Nigeria and that a person shall not be subjected to torture or to inhuman or degrading treatment.
This is one, and in deed the 2nd of the fundamental right provided for and guaranteed by the Grund norm and Fountain of all laws in Nigeria. See Rabiu v. The State (1980) 8 11 SC, 130, A.G., Bendel State v. A.G., Federation (1981) 10 SC, 7 at 132 – 134, (1982) 3 NCLR, 1, under Chapter IV for all persons (Nigerians and others living in Nigeria). Accordingly, no other person/s and/or authority in Nigeria shall subject a person or person to any form of torture; physical, psychological, mental, etc., inhuman or other degrading treatment, but shall accord due respect for the dignity of the person/s. See Fawehinmi v. Abacha (1998) 1 HRLRA, 541, Uzoukwu v. Ezeonu (1991) 6 NWLR (pt. 200) 708.
On its part, Section 35 provides for and guarantees the personal liberty for every person living in Nigeria and such liberty shall not be deprived, denied or interfered with except as may be provided for in the section. It is therefore clear that even though the right to personal liberty is a fundamental right, it is not an absolute right since the Constitution itself; the giver and guarantor of the right, recognises and provides for some and specific situations or circumstances which may warrant, allow or permit the limitation, restriction of or derogation from the right, as exceptions to the right. However, for any derogation, or limitation of the right to be legally and constitutionally excusable and availing, it must strictly fit into any of the enumerated situations or circumstances set out in the Constitution. See Agbakoba v. Director, SSS (1998) 1 HRLRA, 252, Director, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 3 14 (SC), lyere v. Duru (1986) .5 NWLR (pt. 44) 665, Fawehinmi v. Abacha (supra).
Section 41 provides for and guarantees the freedom of movement throughout Nigeria for every citizen of Nigeria who shall not be expelled from or refused entry into Nigeria, except as may be provided by any law which is reasonably justifiable in a democratic society. Here again, the Constitutional right of freedom of movement within, entrance into or expulsion from Nigeria, is not absolute since situations or circumstances are recognized and provided for in which it could legally and lawfully be curtailed, interfered with or limited so long as it is done in strict compliance with the law. The primary aim of the section is to generally protect persons from abuse of power; official and individual. see Onwo v. Oko (1996) 6 NWLR (pt. 456) 587.
As stated before now, the rights provided for and guaranteed under the above provisions and, indeed all the other fundamental rights provided for under Chapter IV of the Constitution, are not absolute or sacrosanct, but rather qualified, as shown in the exceptions stipulated therein. The Hon. Justice Chukundifu Akunne Oputa, JSC (of blessed memory) dealt with the provisions of 34, 35, 37 and 38 of the 1979 Constitution, which were part of the fundamental rights under Chapter IV of that Constitution, in the case of Osawe & 2 Ors v. Registrar of Trade Unions (1985) 3 NWLR (Pt. 7) 127 and stated that:-
“One has to bear in mind that the rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are “qualified rights”. They are subject … to any law that is reasonably justifiable in a democratic society; (a) in the interest of defence, public safely, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other people.”
See also Director, SSS v. Agbakoba (supra) Dokubo Asari v. FRN (2007) 5 6 SC, 150, (2007) All FWLR (pt. 375) 558 at 586 – 587, Ukaegbu v. National Broadcasting Corp (2007) 14 NWLR (pt. 1055) 551, Onyirioha v. IGP (2009) 3 NWLR (pc. 1 128) 342.
It may be recalled that the reasoning of the lower Court for its decision is that the arrest and detention of the 1st Appellant falls within the exceptions, the situations or circumstance stipulated under the provision or Section 35 (1) (c) of the Constitution (above) and so the Appellants failed to prove the unlawfulness or illegality of the derogation from or interfering with the right to liberty and freedom of movement. The exception provided for under Section 35 (1) (c), once again, is in the following terms:-
“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 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.”
For the purpose of these provisions, personal liberty, put simply connotes freedom and autonomy of movement at will without any hindrance or restraint; physical or otherwise and the right not to be subjected to any wrongful restraint, arrest or any other physical confinement whether in an enclosure or open space in a manner which does not accord with the law or admit any legal justification.
It may also mean freedom to do what a person pleases within the ambit of the law without any hindrance or restraint. In the Appellants’ case, by paragraphs 6, 7, 13, 21 and 24 of the Statement of Facts dated 21st May, 2013 in support of the application before the trial Court, the 1st Appellant was arrested in Jos, taken to Lagos and arraigned before a Magistrate Court on allegations and charged with committing a criminal offence of adulteration of the product in question, contrary to and punishable under Section 409 of the Criminal Laws of Lagos State, 2011. He was granted bail pending the trial and it was during the pendency of the trial that he filed the application leading to this appeal.
From the facts disclosed by the Appellant himself, he was arrested and taken to Lagos on the allegation and suspicion that he committed a criminal offence and to prevent him and the 2nd Appellant from further committing the offence of adultering the product in question. He was not only arrested, taken to Lagos and detained, but was arraigned before a Court on charge for the said offence. That charge, as stated earlier, was pending when the Appellants filed the application for the alleged breach of their fundamental rights by the Respondents on the ground of the arrest, detention and arraignment for the alleged offence. As seen in the provision of Section 35 (1) (c), the personal liberty of a person can lawfully be interfered with or limited on reasonable suspicion of his having committed a criminal offence and to such extent as may be reasonably necessary to prevent his committing a criminal offence.
The test of whether a suspicion against a person in a particular case is reasonable or not, is objective; that is the view or opinion of an ordinary person, of the peculiar facts and circumstances of the case. See Dokubo-Asari v. FRN (supra), Hassan v. EFCC (2014) I NWLR (pt. 1389) 607.
The peculiar facts in the Appellants’ case are that the 1st Appellant was reasonably suspected to be producing fake or adulterated Kiwi Shoe Polish and some of the fake or adulterated products were bought from him at his shop in Jos, Plateau State. He was then arrested and taken to Lagos by officers of the 2nd Respondent on the 28th February, 2013 and granted bail on the 2nd March, 2013, i.e. two (2) days after the arrest in Jos. (Sec paragraph 3. e. f. i of the Affidavit in support of the application deposed to by Esther Adache a Litigation Secretary in the Chambers of Counsel for the Appellants).
By the deposition in paragraph 3. J., of the same Affidavit, while on bail, the 1st Appellant was arraigned before a Court of law on the 12th March, 2013 in Lagos on a charge for the offence of producing the fake or adulterated product, punishable under Section 409 of the Criminal Laws of Lagos State in respect of which he was arrested in Jos. By his own showing therefore, the 1st Appellant has shown that his arrest and arraignment by the 2nd Respondent’s officers were predicated and based on the reasonable suspicion of producing the adulterated product, in possession of it at his shop where he marketed it, and that in accordance with the provisions of Section 35 (4) and (5) of the Constitution, he was released on bail and arraigned before a Court within the period of time prescribed therein, i.e within two (2) days of his arrest in Jos and after the long journey to Lagos where he was eventually arraigned before a Court. He was, in addition, granted bail by the Magistrate Court on the date he was arraigned. These facts and circumstances have clearly brought the arrest, detention and arraignment of the 1st Appellant before a Court of law, within the circumstances stipulated in the provisions of Section 35 (1) (c) which permits, allows and excuses the limitation, derogation of or interference with the personal liberty of a person.
Although, the law is that once facts deposed to by a person shows prima breach or contravention of the right to personal liberty, the burden of proving that the arrest and detention of the person is lawful and justified under the constitutional provisions, is on the party making the arrest. See Director SSS v. Agbakoba (supra), FRN v. Ifegwu (2003) 15 NWLR (pt. 843) 113 at 180, Ejefor v. Okeke (2007) 7 NWLR (pc. 665) 373, Onagoruwa v. IGP (1991) 5 N WLR (pt. 193) 593), the facts deposed to and relied on by the Appellants in support of their application have shown that the alleged arrest, detention and arraignment of the 1st Appellant were duly covered and fall within the exceptions recognised and provided for by the Constitution in which such interference with the personal liberty of the 1st Appellant was excusable and therefore lawful. This being the position, no burden arises or arose to be imposed on the Respondents to prove the lawfulness of the arrest and detention in the circumstances of the case and did not constitute a breach or violation of the 1st Appellant’s right to personal liberty.
In addition, Section 45(1) of the Constitution provides that:-
“45. – Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.”
In this regard, Section 24(1) of the Police Act provides that:-
“24. (1) In addition to the powers of arrest without warrant conferred upon a police officer by Section 10 of the Criminal Procedure Act, it shall be lawful for any police officer and any person whom he may call to his assistance, to arrest without warrant in the following cases.”
These provisions considered along the provisions of Section 35(1) (c) and 45 (1) of the Constitution clearly show that the facts disclosed in the Appellants’ Affidavit in support of their application amply justify the arrest, detention and arraignment of the 1st Appellant in Court for the reasonable suspicion of having committed a criminal offence and/or to prevent his further commission of such an offence.
In the foregoing of premises, the lower Court is right in law to have found that the Appellants failed to show or prove that the arrest, detention and arraignment of the 1st Appellant in Court by the officers of the 2nd Respondent constituted or amounted to an unlawful or illegal breach or violation of the rights guaranteed under the provisions of Sections 34, 35 and 41 of the Constitution.
The issue is resolved against the Appellants and the appeal is dismissed for being wanting in merit.
Parties shall bear their respective costs of prosecuting the appeal.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read the lead judgment of my learned brother MOHAMMED LAWAL GARBA, JSC just delivered and being in agreement with the reasons and conclusion therein, I adopt same in dismissing the appeal. I abide by the consequential orders including the order on costs made in the lead judgment.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Muhammad Lawal Garba, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal lacks merit.
The Court of Appeal, being an appellate Court, can only consider issues based on grounds of appeal filed before it. The rationale for this is that the trial Court is, generally, required to make primary findings of fact and to express its opinion on the law with regard to the findings. The appellate Court relies on the opinion of the trial Court for its determination of the appeal before it. The jurisdiction of the appellate Court is therefore essentially confined to the correction of the errors of the Court from which it entertains appeals.
Although an appellate Court is allowed, in its discretion, to raise a question suo motu, if it sees fit to do so. This discretion must, however, be exercised sparingly and in exceptional circumstances only. In addition, where such questions are so raised, it is imperative that the parties must be given the opportunity to address the appeal Court before a decision on such issue is made. Where an appellate Court fails to so do, not only is it a breach of the parties’ constitutional right to fair hearing, but the question so raised cannot be allowed to stand, as it surely portends a miscarriage of justice. See Olusanya v Olusanya [1983] 1 SCNLR 134; Kuti and Anor v Jibowu and Anor (1972) 1 All NLR (pt. 11) 180, 192; Atanda and Anor v Akanmi (1974) 1 All NLR (pt. 1) 168, 178; Ebba v Ogodo [1984[ 1 SCNLR 372; N.N.P.C v Roven Shipping Ltd [2019] 9 NWLR (pt. 1676).
As with all other principles of law, this rule has its exceptions. Decisions of this Court abound specifying its exceptions, Bola Ominiyi v Jacob Adegboyega Alabi (2015) LPELR-24399 (SC); Effiom v C.R.S.LE.C [2010] 14 NWLR (pt. 1213) 106; Tukur v Government of Gongola State [1989] 4 NWLR (pt.117) 517. These cases are to the effect that an issue of law or jurisdiction, not within the contemplation of the parties, may be raised suo motu and decided upon without hearing the parties.
In the case at hand, the issue in contention is an issue of law. It concerned the alleged adulteration of kiwi shoe polish. It was an issue that the Court of Appeal could not have left undecided though not raised by either party to the appeal. Above all, it was in a fundamental rights enforcement proceedings. See Brawal Shipping (Nig.) Ltd v F. I. Onwadike co. Ltd (2000) 11 NWLR (Pt. 678) 387.
It is for these, and the more elaborate reasons in the leading judgment, that I shall enter an order dismissing this appeal.
UWANI MUSA ABBA AJI, J.S.C.: I was privileged to read in draft the leading judgment of my learned brother, Mohammed Lawal Garba, JSC and I agree entirely with the reasoning and conclusion that the appeal be dismissed for lack of merit.
The case of the 1st Appellant is that he was arrested in Jos and taken to Lagos by the officers of the 2nd Respondent on 28/2/2013 and arraigned before a Magistrate Court on allegation of adulteration of Kiwi shoe polish at his shop in Jos, Plateau State, contrary to Section 409 of the Criminal Laws of Lagos State.
He was granted bail after his arraignment on 2/3/2013, two (2) days after his arrest. During his bail, the Appellant approached the trial Court by way of motion on notice for the enforcement of his fundamental rights under Sections 34, 35 and 41 of the 1999 Constitution (as amended), for his unlawful arrest, detention and breach of his fundamental rights. The trial Court (Federal High Court, Jos) granted his reliefs but set aside by the lower Court, hence this appeal.
The general powers and duties of the police to arrest with or without warrant “for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged” as provided under Section 4 of the Police Act can only be faulted if Section 35 of the 1999 Constitution (as amended) is not complied with. Section 35 of the 1999 Constitution (as amended) provides inter alia:
(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 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;
(2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.
(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 for 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 Sub-section (4) of this Section, the expression “a 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 kilometers, 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.
In the case of the 1st Appellant, he was arrested based on reasonable suspicion of alleged adulteration of Kiwi shoe polish at his shop in Jos. It is evident that he was arraigned before the trial Court in a distant Lagos, which is above 40 Kilometers, after 2 days of his arrest in Jos. This, to my humble opinion is a reasonable time as constitutionally prescribed. This demonstrated that the 2nd Respondent complied with the law and did not entangle itself in the unlawful arrest and detention of the 1st Appellant. I do not see any breach to his fundamental right under Sections 34, 35 and 41 of the 1999 Constitution (as amended) by the 2nd Respondent.
I therefore endorse the decision of my learned brother that the appeal be dismissed. Parties are to bear their costs.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother MOHAMMED LAWAL GARBA JSC and I completely agree with the reasoning and conclusion contained therein that this appeal is bereft of any worth and should be dismissed.
From the facts deposed to by the 1st Appellant, he was arrested in Jos, Plateau State, by the 2nd Respondents’ Officers on 28/2/2013 on reasonable suspicion of producing fake or adulterated kiwi shoe polish. He was on the same day taken to Lagos. On 2/3/2013, he was arraigned before a Magistrate Court in Lagos and was granted bail the same day. While on bail, the 1st Appellant was arraigned before competent a Court of Law on the 12/3/2013 on charges of producing the fake or adulterated products, punishable by S. 409 of the Criminal Law of Lagos State.
My Lords, the basis of the Appellant’s claims for breach of his fundamental human rights is the violation of S.35 of the 1999 Constitution (as altered). The said S. 35 provides thus-
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;
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him by law;
(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;
Thus S.35 (1) guarantees the personal liberty of every person in Nigeria subject to certain conditions stipulated in Sub-section (a) (b) and (c) of the Section. The question is whether in the circumstances of this case, the Respondents are entitled to avail themselves of the excuse provided by S. 35 (1) (a-c) to avoid the liability of violating the rights of the Appellant. From the stand point that the citizenry must be protected from both official and personal abuse of power, the right or protection cannot be absolute and are subject to the necessities of the wider society to protect the interest of public defence, public safety, public order, public morality, and public health. I am of the view that the reasoning of the Court below cannot be faulted in the circumstances of this case. To hold otherwise would be to hamper Police action and prosecution across State lines and to encourage everyone charged to Court to cry foul and violation of S.35 (1) of the Constitution. By the Appellant’s own showing, he was taken to Court almost immediately he was charged. The circumstance of his arrest, transfer to Lagos, and arraignment are not serious issues in controversy between the parties.
There is nothing in his affidavit to show that he was detained at any time for an unreasonable period of time without being brought to Court.
In the circumstances, I agree with the Court below and the erudite reasons given in the lead judgment that this appeal has no merit. Appeal dismissed. I abide by the order as to costs.
Appearances:
Stephen I. Ofagbor, Esq. For Appellant(s)
Gyang Zi Esq. with him, R. T. Yilwatda, Esq. and Y. I Dadai Esq. For Respondent(s)
