MOHAMMED v. A.G., IMO STATE
(2022)LCN/17119(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, February 11, 2022
CA/OW/433/2018
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
ALIYU MOHAMMED APPELANT(S)
And
ATTORNEY-GENERAL IMO STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A FINDING OR DECISION OF A COURT IS NOT APPEALED AGAINST WHERE A RIGHT OF APPEAL EXISTS
The position of the law in this regard is to the effect that any finding or decision of a Court that is not appealed against where a right of appeal exists, is deemed to be right or correct and as having been accepted. See the cases of ODJEVWEDJE V. ECHANOKPE (1987) LPELR-8049(SC) and DABO V. ABDULLAHI (2005) LPELR-903(SC) amongst many others. Against the backdrop of the foregoing, the simple issues that have to be decided in the instant appeal in my considered view therefore are “(i) whether or not the lower Court was wrong in not releasing the Appellant from prison custody unconditionally having found his right to personal liberty to have been breached by the parties he brought his application against and two of whom have been struck out as parties in the instant appeal; same having been withdrawn against them; and (ii) whether or not the Appellant can have this Court increase the damages awarded by the lower Court against the 1st Respondent and the other two the appeal was lodged against, having decided to withdraw the said appeal against the said other two”. PER LOKULO-SODIPE, J.C.A.
THE PRINCIPLE OF UBI JUS IBI REMEDUIM
The principle of ubi jus ibi remedium as the Appellant has portrayed it in the instant appeal even as fluid as it is does not dictate to the Court the specific orders to make where a Court has the absolute discretion to act as it considers expedient. In this regard, see the case of BELLO V. A-G OYO STATE (1986) LPELR- 764(SC) where the Supreme Court in enunciating the principle of ubi jus ubi remedium stated per Karibi-Whtye thus: –
“I shall before doing so dispose of a minor issue concerning the reliance on the maxim ubi jus ibi remedium. It is common ground that the claim of the Appellants falls within the provisions of the Torts law. … The Respondent has contended that Counsel did not in fact advert his mind to the Torts law because his reliance on the maxim of ubi jus ibi remedium, (meaning where there is a right there is a remedy), suggested that he knew there was a right but that there was no remedy: and is asking the Court to provide one. That may well be the case. Even in such a situation the Court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance or carelessness does not adversely affect Counsel whose fees remain undiminished. I think I am speaking the mind of all engaged in the administration of justice, not only in this Court but in all Courts in this country, that the day the Courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the Court itself by default. I think it is erroneous to assume that the maxim ubi jus remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes – see State v. Gwonto & Ors (1983) 1 SCNLR 142 at p. 160. The substance of the action rather than the form should be the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 NMLR 169, 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts disclosed fall within a remedy recognized in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).” PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 5/3/2018, by the High Court of Imo State presided over by Hon. Justice T.N. Nzeukwu, (hereafter to be simply referred to as “the lower Court” and “the learned trial judge” respectively). The suit before the lower Court was an application by the Appellant for the enforcement of his fundamental rights brought pursuant to Sections 34, 35, 41 and 46 of the 1999 Constitution of the Federal Republic of Nigeria as amended (hereafter to be simply referred to as “the amended 1999 Constitution”) and Order II Rules 1 & 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (hereafter to be referred to as “the Fundamental Rights Rules”). The application was brought against the following: (i) the Attorney-General of Imo State; (ii) Commissioner of Police, Imo State; and (iii) the Deputy Controller of Prisons, Nigerian Prison Service, Imo State). The reliefs sought by the Appellant in the said application as set out in the motion dated 20/6/2017 and filed on 23/6/2017 contained on pages 1-3 of the record of appeal (hereafter to be referred to as “the record”) are as follows: –
“i. A DECLARATION that the arrest and continued detention of the Applicant without justification whatsoever by the Respondents from January 21, 2011 till date is wrongful, unlawful and violates the Applicants’ (sic) fundamental right to the dignity of the human person, right to personal liberty, right to freedom of movement, right from unlawful arrest and prosecution as guaranteed under the provisions of Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and African Charter on Human and People’s Rights (Ratification and Enforcement) Act (CAP A9) LFN 2004.
ii. AN ORDER of Court releasing forthwith the applicant without conditions from prison custody.
iii. AN ORDER for the sum of N1,000,000.00 (ONE Million Naira) only as general damages against the Respondents jointly and severally for the unlawful detention of the Applicant from January, 2011 till date.
iv. And for such other order od further orders as this Honourable Court may deem fit to make in the circumstance.”
The record shows that only the 1st Respondent before the lower Court is now the sole Respondent in the instant appeal. The 1st Respondent filed a counter affidavit in opposition to the Appellant’s application. The said counter affidavit was filed on 8/12/2017 and it was accompanied by a written address. It is clear from the proceedings of this Court in the instant appeal on 28/10/2020, that the said appeal was discontinued against the 2nd and 3rd Respondents (i.e. Commissioner of Police, Imo State; and (iii) the Deputy Controller of Prisons, Nigerian Prison Service, Imo State), and that the said Respondents were struck out as parties in the appeal. I consider it expedient to re-produce the certified copy of the proceeding for the date in question as made available by the registry of the Court. It goes thus: –
“IN THE COURT OF APPEAL
IN OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
PROCEEDING OF WEDNESDAY THE 28TH DAY OF OCTOBER, 2020
BEFORE THEIR LORDSHIPS
HON. JUSTICE, R.C. AGBO (PJ) JUSTICE, COURT OF APPEAL
HON. JUSTICE, I.G. MBABA JUSTICE, COURT OF APPEAL
HON. JUSTICE, I.A. ANDENYANGSTO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/OW/433/2018
BETWEEN
ALIYU MOHAMMED
VS
ATTORNEY GENERAL IMO STATE and 2 OR
Parties absent.
Kelechi Nwaiwu with him Mrs. C.B. Nzeako for the Appellant.
Mrs. I.I. Amadi DDCL Imo State for 1st Respondent.
No prove of service on 2nd and 3rd Respondent (sic).
Mr. Nwaiwu apply to discontinue against the 2nd and 3rd Respondents.
Mrs. Amadi Does not oppose.
Court: The 2nd and 3rd Respondents are struck out as parties to this appeal.”
Thereafter the appeal was entertained by the Court on the briefs of argument of the Appellant and the 1st Respondent respectively. The brief of argument of the Appellant upon which the appeal was entertained was filed on 13/12/2018 and the brief of argument of the 1st Respondent upon which the appeal was argued was filed on 20/3/2018. Thereafter judgment in the appeal was reserved.
Suffice it to say that the lower Court in its judgment that spans pages 48 to 53 of the record having referred to the processes filed by the parties, entered judgment in the following manner: –
“Having carefully perused through the facts of this case as disclosed in the affidavit in support of the application, I would like to adopt the sole issue for determination as nominated by the counsel for the applicant as most germane to the issue on controversy and can effectively trash all angles regarding the application.
The brief case of the applicant which are as reflected in the affidavit in support of the application are covered particularly in paragraphs 2-6 as follows … It is not in doubt that the applicant is being detained on grounds of allegation of armed robbery. It is also not in doubt that he has been taken to Court that now formally remanded him in prison custody and no longer being detained at the instrumentality of the police in their cell. The case of the applicant now is that he has been detained for so long without having a formal information filed against him at the High Court. There is also the argument that the magistrate’s Court to which he was taken for a formal remand was not a Court of competent jurisdiction without the contemplation of the provisions of the constitution.
First, Section 35)1)(c) (sic) provides the only grounds upon which a citizen’s right can be derogated, such as … By Section 35(7) it is provided that “Nothing in this section shall be construed in relation to Subsection (4) of this section or one detained upon reasonable suspicion of having committed an offence.”
I am totally in agreement with the learned Counsel for the applicant that much as the police has a right of duty to prevent crime by invitation, arrest and possible detention as part of its constitutional and statutory duties, the police however do not have the right of indefinite detention without complying with the provisions of the constitution regarding how long a person should be detained;
Clearly therefore, 6 months detention of the applicant at the police cell without taking him to the nearest Court violates Section 35(4) of the Constitution which provides … If 6 months detention without taking him to Court, is bad, then the 7 years applicant has now stayed in detention without facing a formal charge is monstrous and portents a bad omen. As it is already trite in law, holding charge though tolerated with schimism (sic) in our legal system is an aberration.
Worst still is that 7 years after, the state Respondent (sic) still unable to attach the information in the counter affidavit is a big embarrassment.
However since the applicant did not ask for bail and the state Respondent (sic) has equally asked for a little more time for them, Respondents, to file information, I am minded not to make an order for release right away now but to make the following orders pursuant to Section 46(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended because this is a case of armed robbery matter(sic);
1. I hold that the fundamental rights of the applicant have been violated not in relation with his arrest, or torture, but in relation to having been detained for 6 months in police cell without being taken to Court, and also in relation to being detained for 7 years without having a formal information filed against him.
2. I award N50,000:00 damages in his favour
3. that state Respondent is hereby given up till September 30th to file an Information against the applicant or the Court shall forthwith release him without recourse to State Respondent.
If by that date no information has been filed against him then
4. Because it is armed robbery matter, I make no order for release or discharge now.”
Being dissatisfied with the decision of the lower Court hereinbefore reproduced above, the Appellant initiated this appeal by filing at the registry of the lower Court on 8/5/2018, a notice of appeal dated 7/5/2018. The notice of appeal contains 4 grounds of appeal. The grounds of appeal contained therein, shorn of their respective particulars read thus: –
“GROUND ONE
The learned trial Judge erred in law when the Court found as follows:
“However since the applicant did not ask for bail and the State Respondent(sic) has not equally asked for a little more time for them, Respondents, to file information, I am minded not to make an Order for release right away now but to make the following orders pursuant to Section 46(2) of the 1999 Constitution of the Federal Republic Nigeria (sic) as amended because this is a case of armed robbery matter.”
GROUND TWO
The learned trial Judge erred in law when the Court found as follows:
“(1) I hold that the fundamental rights of the applicant have been violated not in relation with his arrest, or torture, but in relation to having been detained for 6 months in police cell without being taken to Court, and also in relation to being detained for 7 years without having a formal information filed against him.
(2) …
(3) That State Respondent(sic) is hereby given up till September 30th to file an information against the applicant or the Court shall forthwith release him without recourse to the State Respondent.”
GROUND THREE
The learned trial Judge erred in law in its assessment and award of damages and also did not properly take into account Section 35(6) of the Constitution of the Federal Republic of Nigeria (as amended) when the Court found as follows:
“(1) I hold that the fundamental rights of the applicant have been violated not in relation with his arrest, or torture, but in relation to having been detained for 6 months in police cell without being taken to Court, and also in relation to being detained for 7 years without having a formal information filed against him.
(2) I award N50,000.00 damages in his favour.
(3) …”
GROUND FOUR
The learned trial Judge erred in law when the Court wrongly applied Section 46(2) of the 1999 Constitution of the Federal Republic (sic) Nigeria (as amended) to the set of facts adduced at the lower Court and found as follows:
I am minded not to make an order for release right away now but to make the following orders pursuant to Section 46(2) of the 1999 Constitution of the Federal Republic (sic) Nigeria as amended because this is a case of armed robbery matter (sic).” (Underlining mine)”
The reliefs sought by the Appellant in this appeal are: (i) an order allowing the appeal, (ii) an order setting aside the judgment of the Court below, (iii) an order releasing the Appellant from prison custody without conditions (iv) an order for the sum of N1,000,000.00 (one million naira) as general damages against the Respondents jointly and severally for the unlawful detention of the Appellant.
Suffice it to say that as the Court did not deliver the judgment in the instant appeal as reserved by it on 28/10/2020, the appeal was subsequently returned to the cause list and was entertained afresh on 24/11/2021 with learned lead counsel for the Appellant, Kelechi Nwaiwu adopting and relying on the party’s undated brief of argument filed on 13/12/2018. In the same vein, learned Law Officer, I.I. Amadi (Deputy Director of Civil Litigation, Imo State Ministry of Justice), adopted and relied on the brief of argument of the 1st Respondent dated 19/3/2019 and filed on 20/3/2019 but deemed to have been properly filed and served on 20/6/2019. I consider it pertinent to note that the Court in the proceeding of 24/11/2021 made observations in respect of the 2nd and 3rd Respondents respectively, as it was not aware as at the said date, that the Respondents in question had been struck out as parties in the appeal, since 28/10/2020.
In his brief of argument, the Appellant raised three issues for the determination of the appeal. They are reproduced hereunder: –
“1. Whether the lower Court, having found that the Appellant’s rights were violated in relation to his having been detained in police custody for 6 months and in prison custody for 7 years without being formally charged, ought not to have released the Appellant forthwith. (Grounds 1 and 2)
2. Whether the quantum of damages awarded the Appellant and the failure of the lower Court to make a consequential order pursuant to Section 35(6) of the 1999 Constitution (as amended) is appropriate in the circumstance. (Ground 3)
3. Whether the learned trial Judge correctly applied the provisions of Section 46(2) of the Constitution of the Federal Republic of Nigeria (as amended 2011) to the facts of the case before it. (Ground 4)”
The Appellant’s submission on issue 1 in the main is that where it is established that a right has been violated, then remedy must naturally flow. That where an individual complains of a breach of his personal right to personal liberty, the primary remedy which should inure to the individual is the restoration of his liberty. That the lower Court having found that the Appellant was arbitrarily detained, ought to have released him from detention instead of further remanding him in breach of the provisions of the amended 1999 Constitution in the absence of any Information filed. Appellant having referred to Section 35(4) and (7) of the amended 1999 Constitution and some cases in which the provisions of the aforementioned Section have been judicially considered, submitted that the lower Court erred in refusing to release the Appellant unconditionally on the ground that he was accused of committing the offence of armed robbery. That in the absence of a formal charge, there is no justification for arbitrary detention regardless of the offence. This Court was urged to hold that the lower Court erred in interpreting Section 35(7) of the amended 1999 Constitution as limiting Section 35(4) of the same law. Appellant argued to the effect that the law does not admit of the fact that persons charged with capital offences are not entitled to fundamental rights protection; more so as the 1st Respondent in the instant appeal has no evidence in support of the allegation of armed robbery. That an order releasing the Appellant under the Fundamental Rights Rules does not amount to an acquittal and would thus not prejudice the commencement of any charge against him.
Dwelling on issue 2, Appellant submitted to the effect that the quantum of damages awarded him (Appellant) by the lower Court was inordinately low and not commensurate with the number of years the Appellant spent in detention and that the lower Court failed to make an order of apology to the Appellant by the Respondent pursuant to Section 35(6) of the amended 1999 Constitution. Appellant agreed that an appellate Court is weary of interfering with a lower Court’s discretion but submitted that where the amount awarded is too low or based on an erroneous estimation of the loss suffered, an appellate Court could increase the amount of such damages. The Court was urged to hold that the sum awarded as damages by the lower Court was not a reflection of the injury suffered by the Appellant.
Appellant’s submission on issue 3 is to the effect that the lower Court ought to have released him from detention pursuant to Section 46(2) of the amended 1999 Constitution.
Two issues were raised by the Respondent for the determination of this appeal in his brief of argument. They read thus: –
“1. Whether the lower Court exercised its discretion judicially and judiciously in refusing to release the applicant unconditionally having come to the conclusion that his fundamental rights were breached?
2. Whether the sum of N50,000.00 damages awarded to the applicant as damages was inadequate in the circumstance?”
Dwelling on issue 1, the Respondent submitted to the effect that the lower Court exercised its discretion judicially and judiciously in refusing to release the applicant unconditionally irrespective of the fact that the said Court found that the Appellant’s fundamental rights were breached. Respondent argued that this Court will not interfere with the exercise of the lower Court’s discretion unless the lower Court erred in principle or there was no material before it upon which it could rightly exercise its discretion. That the refusal of the lower Court to release the Appellant was on the ground that there was no bail application before the said Court to warrant such release despite the fact that the said Court found that the Appellant’s right to right to trial within a reasonable time has been breached. That a Court cannot grant a relief not claimed by a party and that an application for the enforcement of fundamental rights does not amount to a bail application. That an applicant who desires the Court to grant him bail must include a prayer for his release on bail pending trial in the application for the enforcement of his fundamental rights.
Dwelling on issue 2, the Respondent submitted to the effect that the award of damages made by the lower Court was adequate for the wrong suffered by the Appellant. That the lower Court did not act upon wrong principles in awarding the said sum of N50,000.00 and that the award was within the ambits of its discretion nor is the lower Court bound by common law principles in assessing the quantum of damages to be awarded the Appellant.
There is obviously no appeal at the instance of the 1st Respondent against the correctness of the decision of the lower Court finding the Appellant’s fundamental right to personal liberty to have been breached by the said Respondent. The 1st Respondent who should have lodged an appeal against the said decision if he found it disagreeable, by not appealing has in my considered view and given the settled position of the law, accepted the finding of the lower Court in that regard. The position of the law in this regard is to the effect that any finding or decision of a Court that is not appealed against where a right of appeal exists, is deemed to be right or correct and as having been accepted. See the cases of ODJEVWEDJE V. ECHANOKPE (1987) LPELR-8049(SC) and DABO V. ABDULLAHI (2005) LPELR-903(SC) amongst many others. Against the backdrop of the foregoing, the simple issues that have to be decided in the instant appeal in my considered view therefore are “(i) whether or not the lower Court was wrong in not releasing the Appellant from prison custody unconditionally having found his right to personal liberty to have been breached by the parties he brought his application against and two of whom have been struck out as parties in the instant appeal; same having been withdrawn against them; and (ii) whether or not the Appellant can have this Court increase the damages awarded by the lower Court against the 1st Respondent and the other two the appeal was lodged against, having decided to withdraw the said appeal against the said other two”. Appellant’s issues 1 and 3 and Respondent’s issue 1 respectively, will abide by the resolution of the first of the two issues stated above, while Appellant’s issue 2 as well as Respondent’s issue 2 respectively, will abide by the resolution of the second of the issues stated hereinbefore.
The contention of the Appellant on his issue 1 distilled from grounds 1 and 2 and issue 3 distilled from ground 4 respectively, in the notice of appeal challenges the proper order the lower Court ought to have made having held that his (Appellant’s) fundamental right to personal liberty had been violated. The relevant portions of the judgment of the lower Court have been reproduced hereinbefore and it is clear that the lower Court indeed found for or in favour of the Appellant, by holding that the continued detention of the Appellant amounted to a violation of his fundamental right to personal liberty. The said Court however did not order the release of the Appellant on the grounds that the alleged charge against the Appellant was a capital offence in that it attracts a mandatory sentence of death upon conviction; and that there was no application for bail.
The principle of ubi jus ibi remedium as the Appellant has portrayed it in the instant appeal even as fluid as it is does not dictate to the Court the specific orders to make where a Court has the absolute discretion to act as it considers expedient. In this regard, see the case of BELLO V. A-G OYO STATE (1986) LPELR- 764(SC) where the Supreme Court in enunciating the principle of ubi jus ubi remedium stated per Karibi-Whtye thus: –
“I shall before doing so dispose of a minor issue concerning the reliance on the maxim ubi jus ibi remedium. It is common ground that the claim of the Appellants falls within the provisions of the Torts law. … The Respondent has contended that Counsel did not in fact advert his mind to the Torts law because his reliance on the maxim of ubi jus ibi remedium, (meaning where there is a right there is a remedy), suggested that he knew there was a right but that there was no remedy: and is asking the Court to provide one. That may well be the case. Even in such a situation the Court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance or carelessness does not adversely affect Counsel whose fees remain undiminished. I think I am speaking the mind of all engaged in the administration of justice, not only in this Court but in all Courts in this country, that the day the Courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the Court itself by default. I think it is erroneous to assume that the maxim ubi jus remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes – see State v. Gwonto & Ors (1983) 1 SCNLR 142 at p. 160. The substance of the action rather than the form should be the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 NMLR 169, 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts disclosed fall within a remedy recognized in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).”
Also, to buttress the position that the lower Court is to act in its absolute discretion in matters of the enforcement of fundamental rights, is the provision of Order XI – “Order which the Court may make” of the Fundamental Rights Rules and which states thus: –
“At the hearing of any application, under these Rules, the Court may make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purposes of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act to which the applicant may be entitled.”
It is clear as crystal in my considered view, that the lower Court in its judgment that has been reproduced hereinbefore in making its orders took into consideration the nature of the offence in respect of which the Appellant was arrested by the Police, charged to a Court (albeit one without jurisdiction in respect of the said offence – i.e. an offence of armed robbery that attracts mandatory death sentence upon conviction) by the same or said Police and thereafter made orders designed to give the Appellant an expeditious trial within a reasonable time. The lower Court in my considered view was right in this regard as it showed that the said Court appreciated the position of the law to the effect that justice is not for an accused alone, but for the victim and the public at large in the circumstances of the instant case. See in this regard, the case of JOSIAH V STATE (1985) LPELR-1633 (SC) where Oputa, JSC; stated thus: –
“… In deciding whether to allow the appeal and acquit and discharge an appellant, the Court must consider the surrounding circumstance in the interest of justice. Any order allowing this appeal and also acquitting and discharging the appellant will not be in the interest of justice. And justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased “whose blood is crying to heaven for vengeance” and finally justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of. It is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty, that he should be punished. That justice which seeks only to protect the appellant will not be even handed justice. It will not even be justice tempered with mercy.”
Mr. Pitt Taylor in his book on Evidence observed at p. 597 that justice and common-sense are at times scarified on the shrine of mercy. Erie, J. in Reg v Baldry (1852) 5 Cox C.C. 531 was of the opinion that the sacrifice is not even on the shrine of mercy but rather on the shrine of guilt. In this case on appeal, I will not attempt any such sacrifice, sacrifice certainly not on the shrine of mercy. On the contrary they cry out eloquently, though silently, for shattering strokes of retributive justice. To acquit the appellant at this stage, on a mere technical point, and without a retrial on the merits, will be to sacrifice justice and common-sense on the shrine of guilt not mercy, for the community has a right to regard such a wrongful acquittal as unmerciful, firstly, to the accused person whose real interests are sacrificed by his escape on a serious charge when his innocence or guilt still hangs on a balance and secondly, to society whose protection and security are compromised and jeopardized by a rash acquittal…”
Against this backdrop, the lower Court in my considered view would not have shown itself to be acting in the interest of justice, at least as the society is concerned, by ordering the unconditional release of the Appellant, as he would want. It should be appreciated that the Appellant having regard to the depositions in the supporting affidavit of his application, disclosed that he was arrested sometime in 2010. It is further clear, that the Appellant was somehow evasive as to the date of his arrest, and this Court cannot now determine the said date as the authority that carried out the arrest of the Appellant is no longer a party in this appeal. The Appellant however further disclosed that he was charged before the magistrates’ Court for the heinous offence of armed robbery on 21/1/2011. The instant application was never brought until 23/6/2017 i.e. 6 years after. This Court has had cause to observe that an applicant for the enforcement of his personal right to liberty which is hinged on his non-prosecution within a reasonable time as it were, should show that the case file in respect of his matter was indeed forwarded to the appropriate authority for legal advice and in the instant case, the 1st Respondent. See in this regard, the judgment of this Court in APPEAL NO. CA/OW/57/2020 BETWEEN CHIGOZIE IBEGHIM V. COMMISSIONER OF POLICE ABIA STATE & ANOR 13/12/2021, wherein Adefope-Okojie, JCA; stated thus: –
“… The suggestion by the Appellant’s Counsel that the failure of the Attorney General to prosecute the Appellant before a Court of competent jurisdiction or discontinue criminal proceedings against him, leading to the violation of his rights does not take cognizance of the prosecutorial powers of the 1st Respondent, I hold.
… Until it is proved that the file was sent to the 2nd Respondent, who persisted in the detention, without trial of the Appellant, or that the 2nd Respondent retained him in the Magistrate Court on a holding charge, which is clearly unconstitutional, he cannot be made liable, I hold. I thus agree with the lower Court and resolve the 2nd issue for determination against the Appellant.”
See also the decision of this Court in APPEAL NO. CA/OW/59/2020-OZOEMENAM EGBO V. COMMISSIONER OF POLICE ABIA STATE & ANOR delivered on 17/12/2021 by Wambai, JCA. Though there is no evidence from the Appellant in the instant case as to when the 1st Respondent who was not a party in any form or manner at the magistrates’ Court was served with the case file of the matter involving the Appellant, as ordered by the magistrates’ Court; it would however appear from the counter affidavit of the 1st Respondent before the lower Court that he does not deny the fact that the relevant case file was transmitted to him in due course and in compliance with the order of the magistrates’ Court. This apparent concession and the fact that the 1st Respondent finds the decision of the lower Court as it pertains to him agreeable, are the distinguishing factors in the instant case vis-à-vis the two previous decisions of this Court cited hereinbefore. The provision of Order XI of the Fundamental Rights Rules relates to the orders which a Court can make and they are no different from those contained in Section 46(2) of the amended 1999 Constitution. The question then is what was the most appropriate order the lower Court ought to have made in order to ensure the prosecution of the Appellant in the event the evidence in the police case file disclosed a triable case against him. I am of the considered view that it is not an order of release or unconditional release that was appropriate but the order the lower Court made to ensure or provoke the expeditious trial of the Appellant.
Flowing from the above is that I do not in all sincerity see what infraction of the provisions of Section 46(2) or Order XI of the Fundamental Rights Rules the lower Court committed in giving the 1st Respondent more time to file an Information against the Appellant who in any case never took advantage of any process or procedure of Court or law designed to ensure his release pending when the 1st Respondent was ready to prosecute him. In the circumstances, this Court in my considered view cannot now issue an order directing the unconditional release of the Appellant. Indeed, I cannot but observe that it is not clear from the proceedings before this Court that the Appellant has remained in prison custody since the judgment of the lower Court delivered on 5/3/2018; a period of 3 years from the date of the delivery of the judgment of the lower Court to the hearing of this appeal. A Court in my considered view cannot simply proceed to order the release of someone in custody when there is no evidence of that fact before it, and I dare say it would be simple speculation on the part of this Court to assume that the 1st Respondent having been given specific time frame from the date of the judgment of the lower Court to file an Information against the Appellant, never filed it and/or never advised that there was no case for the Appellant to answer and consequently that the Appellant has not been discharged by the magistrates’ Court on the advice of the 1st Respondent at all material times prior to the hearing of the instant appeal and/or whether the trial instituted against the Appellant has ended in his conviction with him being sentenced to death as mandatorily provided for by the law. To proceed to make an order for the release of the Appellant with these issues agitating the mind of this Court would not be proper. This is more so as an order for the unconditional release of the Appellant in the event that he has been duly charged, tried, convicted and sentenced to death, would be a surreptitious attempt to have such a conviction set aside or have the Appellant regain his freedom without following due process. In other words, before this Court can be in a position to grant the order of unconditional release sought by the Appellant, and or an order releasing him in any manner, he ought to have sought for the order of this Court to place before it, additional evidence showing his situation as at the time the appeal was entertained. Issues 1 and 3, are accordingly resolved against the Appellant; while issue 1 of the 1st Respondent is resolved in his favour.
In respect of Appellant’s issue 2, the lower Court in its judgment clearly did not tie the award of N50,000.00 damages to any particular Respondent. This being the case, it is taken that the award can be enforced against all parties jointly or anyone of them that has the financial muscle to pay the said damages. How it is that the Appellant now wants the 1st Respondent only to shoulder the payment of the N50,000.00 but to have it increased after he consciously withdrew the instant appeal against the two others the lower Court made the award in conjunction with the 1st Respondent, beats me hollow. The Appellant never cited any principle of law that allows for this. On my part, I have carried out some research and I have not seen any authority that decides to the effect that damages awarded jointly and severally as it were, can be increased or decreased in an appeal against only one of the persons against whom the said award was made jointly and severally. I am of the firm view that the Appellant shot himself in the leg at least as it concerns his desire to have the damages awarded by the lower Court increased when he applied to withdraw the appeal against the 2nd and 3rd Respondents respectively. Without having to set out the principles of law relating to interfering with damages awarded by a trial Court, I simply do not comprehend how this Court in the circumstances depicted hereinbefore, can in the appeal in which the 1st Respondent is the sole Respondent, increase the award of damages made by the lower Court in favour of the Appellant who simply described himself as a businessman without showing any iota of evidence in this regard.
Flowing from all that has been said above, is that Appellant’s issue 2, is resolved against him; while Respondent’s Issue 2 is resolved in his favour by the non-success of Appellant’s issue 2.
In the final analysis and given the resolution of the three issues formulated by the Appellant for determination in this appeal against him, this appeal is clearly unmeritorious and it fails. The judgment of the lower Court cannot be interfered with even if it is lacking in specifics. The said judgment is hereby affirmed.
I make no order as to costs.
AMINA AUDI WAMBAI, J.C.A. (DISSENTING JUDGMENT): I had the privilege of reading before now the lead judgment delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. His Lordship has considered and resolved the issues in contention in this appeal. However, I wish to differ with his lordship’s reasoning and conclusion on Appellant’s issues 1 and 3.
The Appellant at the lower Court by an Application brought against the Attorney-General of Imo State; Commissioner of Police, Imo State, Deputy Controller of Prisons, Nigeria Service, Imo State; for the enforcement of his fundamental rights pursuant to Sections 34, 35, 41 and 46 of the 1999 Constitution of the Federal Republic of Nigeria as amended and Order II Rules 1 and 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, sought the following reliefs:
1. A Declaration that the arrest and continued detention of the Applicant without justification whatsoever by the Respondents from January 21, 2011 till date is wrongful, unlawful and violates the Applicants’ (sic) Fundamental right to the dignity of the human person, life to personal liberty, right to freedom of movement, right from unlawful arrest and prosecution as guaranteed under the provisions of Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and African Charter on Human and People’s Right (Ratification and Enforcement) Act (CAP A9) LFN 2004.
2. AN Order of Court releasing forthwith the Applicant without conditions from prison custody.
3. AN order for the sum of N1,000,000.00 (One Million Naira) only as general damages against the Respondents jointly and severally for the unlawful detention of the Applicant from January, 2011 till date.
4. And for such other order or further orders as this Honourable Court may deem fit to make in the circumstance.
In granting the application in part and refusing the heart of the application, the lower Court held:-
I am totally in agreement with the learned counsel for the applicant that much as the police has a right of duty to prevent crime by invitation, arrest and possible detention as part of its constitutional and statutory duties, the police however do not have the right of indefinite detention without complying with the provisions of the constitution regarding how long a person should be detained: Clearly, therefore, 6 months detention of the applicant at the police cell without taking him to the nearest Court violates Section 35(4) of the Constitution which provides..
…
If 6 months detention without taking him to Court, is bad, then the 7 years applicant has now stayed in detention without facing a formal charge is monstrous and portents a bad omen. As it is already trite in law, holding charge though tolerated with schisms (sic) in our legal system is an aberration.
Worst still is that 7 years after, the state Respondent (sic) still unable to attach the information in the counter affidavit is a big embarrassment.
However since the applicant did not ask for bail and the state Respondent (sic) has equally asked for a little more time for them, Respondent, to file information, I am minded not to make an order for release right away but to make the following orders pursuant to Section 46(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended because this is a case of armed robbery matter (sic).
1. I hold that the fundamental rights of the applicant have been violated not in relation with his arrest, or torture, but in relation to having been detained for 6 months in police cell without being taken to Court, and also in relation to being detained for 7 years without having a formal information filed against him.
2. I award N50,000.00 damages in his favour
3. That state Respondent is hereby given up till 30/9/18 to file an information against the applicant or the Court shall forthwith release him without recourse to State Respondent.
If by that date no information has been filed against him then
4. Because it is armed robbery matter, I make no order for release or discharge now”.
Aggrieved, the Appellant appealed the decision to this Court on 3 grounds. The grounds of appeal have been reproduced in the lead judgment.
Three issues were nominated by the Appellant’s Counsel. These have been set out and argument on same as well as those of the 1st Respondent’s Counsel lucidly captured in the main judgment. I adopt same. For ease of reference, the issues are:-
“1. Whether the lower Court, having found that the Appellant’s rights were violated in relation to his having been detained in police custody for 6 months and in prison custody for 7 years without being formally charged, ought not to have released the Appellant forthwith. (Ground 1 and 2).
2. Whether the quantum of damages awarded the Appellant and the failure of the lower Court to make a consequential order pursuant to Section 35(6) of the 1999 Constitution (as amended) is appropriate in the circumstance (Ground 3).
3. Whether the learned trial judge correctly applied the provisions of Section 46(2) of the Constitution of the Federal Republic of Nigeria (as amended 2011) to the facts of the case before it. (Ground 4)”.
The substantiality of the Appellant’s submission on issues 1 and 3 is that the lower Court having found that the Appellant’s rights to personal liberty had been violated, ought to have ordered the release of the Appellant/Applicant from detention in that where there is a wrong, there must be a remedy as expressed in latin maxim “ubi jus ibi remedium”.
The Respondent’s position is that the refusal of the lower Court to so release the Appellant was due to Appellant’s failure to include in his reliefs a prayer for bail.
It is quite apposite to emphasize that the lower Court emphatically agreed with the Appellant that his right had been violated not only for the 6 months detention in the police cell without being taken to Court but worst still for the 7 years thereafter that the 1st Respondent had not filed an information against the Appellant before the appropriate Court with jurisdiction to try him.
Though the lower Court did not outrightly release the applicant because of the nature of the allegation against him, it ordered that the Respondent should file an information against the Appellant by 30th September and if after the said date the Respondent fails to file the proper information against the Appellant, the Appellant “shall be released forthwith without recourse to the 1st Respondent”. This order was made on 5th March 2018.
More than 3 years after, though the Respondent admits that the case file had been transferred to it, the 1st Respondent has not shown that it has commenced the trial of the Appellant or even filed the information against him.
It is my most humble view that the appellant having averred that he has been kept without trial, it is the duty of the Respondent to rebut that assertion with a contrary averment/deposition or even by Counsel submission. None of these was the case. It is glaring from the record that no such information has been filed, there being no evidence before the Court to that effect. It is not for this Court in the absence of any contrary evidence to assume that the 1st Respondent has complied with the order of the lower Court. If the 1st Respondent, the Chief Law Officer of the state had done so it was for the 1st Respondent to make that vital fact known to this Court. Had the Appellant been put on trial or been tried and convicted, the Respondent would have so averred or given the indication. No such fact was deposed to or even alluded to by the respondent. On the other hand, if the appellant has been released, there would have been no need for the application.
My lords, it is my most humble but firm view that once an applicant has deposed to the relevant facts of his arrest and detention and that he has not been arraigned before the proper Court, in this case for over 7 years as at the time of the application and now over 10 years, the burden is no longer on the applicant to prove that his trial had commenced or had been concluded. It is for the Respondent to depose to such facts to counter the Appellant’s affidavit. The Respondent’s counsel did not allude to any such fact in his submission.
It is conceded that the allegation against the Appellant is a very serious one but that does not mean that he can be kept in custody forever without trial or for as long as it pleases the prosecuting authority to arraign him before the proper Court for trial. If for more than 7 years the Respondent could not even arraign the Appellant before the proper Court, and more so to prepare proofs of evidence against him and without any indication from the 1st Respondent that they have or are now ready to do so, I cannot see any justification for the continued detention of the appellant in prison custody. In other words, there is no justification to refuse the application more so that a release of an applicant under Section 46(2) CFRN does not amount to an acquittal. Upon readiness to do so, the prosecution may later prosecute the applicant. In the circumstance, I resolve issues 1 and 3 in favour of the Appellant. Resultantly, I allow the appeal and make the following orders: –
1. Accordingly, it is hereby declared that the arrest and continued detention of the Applicant without justification whatsoever by the Respondents from January 21, 2011 till date is wrongful, unlawful and violates the Applicants'(sic) Fundamental right to the dignity of the human person, life to personal liberty, right to freedom of movement, right from unlawful arrest and prosecution as guaranteed under the provisions of Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and African Charter on Human and People’s Right (Ratification and Enforcement) Act (CAP A9) LFN 2004.
2. In respect of relief 2, the Appellant shall be released from prison custody forthwith.
IBRAHIM WAKILI JAURO, J.C.A. (DISSENTING JUDGMENT): I have had the privilege of reading before now the judgment delivered by my learned brother Lokulo-Sodipe, JCA. I however most humbly depart from the conclusions reached by my learned brother particularly as they relate to issues one and three.
The appeal is against the Judgment of Hon. Justice T. N. Nzeukwu of the High Court of Justice of Imo State in Suit No: HOW/469/2017 delivered on 5th day of March, 2018. The case leading to the present appeal was an application for enforcement of fundamental right pursuant to Sections 34, 35, 41 and 46 of the 1999 Constitution of the Federal Republic of Nigeria (FRN) (as amended). I must admit his Lordship has given a detailed history of the case leading to this appeal and I need not go all over the same again.
The Appellant in his application before the lower Court filed on 23/6/2018 at page 1-3 of the Record of Appeal prayed for the following reliefs:
“i. A DECLARATION that the arrest and continued detention of the Applicant without justification whatsoever by the Respondents from January 21, 2011 till date is wrongful, unlawful and violates the Applicants’ (sic) fundamental right to the dignity of the human person, right to personal liberty, right to freedom of movement, right from unlawful arrest and prosecution as guaranteed under the provisions of Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and African Charter on Human and People’s Rights (Ratification and Enforcement) Act (CAP A9) LFN 2004.
ii. AN ORDER of Court releasing forthwith the applicant without conditions from prison custody.
iii. AN ORDER for the sum of N1,000,000.00 (One Million Naira) only as general damages against the Respondents jointly and severally for the unlawful detention of the Applicant from January, 2011 till date.
iv. And for such other order of further orders as this Honourable Court may deem fit to make in the circumstance.”
The application was heard and judgment delivered. Dissatisfied with the judgment the Appellant appealed to this Court on the 8/5/2018.
The Appellant and the 1st Respondent both filed their respective briefs of argument in the appeal on the 13/12/2011 and 20/3/2018 respectively. Thereafter the appeal was entertained by the Court on the briefs of argument of the Appellant and the 1st Respondent respectively and judgment was then reserved. Although the appeal was heard and judgment reserved, the panel did not deliver judgment. Thus, the appeal was returned to the Cause List and taken a new on 24/11/21 by a new panel.
From the records, it is clear that only the 1st Respondent is the remaining Respondent in the present appeal the 2nd and 3rd Respondents having been struck out as parties in the appeal when the appeal came up for hearing on 28/10/2020 before an earlier panel.
The lower Court in its judgment from pages 48 to 53 of the record made findings amongst others as follows:
“…The case of the applicant now is that he has been detained for so long without having a formal information filed against him at the high Court. There is also the argument that the magistrate’s Court to which he was taken for a formal remand was not a Court of competent jurisdiction without the contemplation of the provisions of the constitution.
First, Section 35)1)(c) (sic) provides the only grounds upon which a citizen’s right can be derogated, such as … By Section 35(7) it is provided that “Nothing in this section shall be construed in relation to subsection (4) of this section or one detained upon reasonable suspicion of having committed an offence.”
I am totally in agreement with the learned Counsel for the applicant that much as the police has a right of duty to prevent crime by invitation, arrest and possible detention as part of its constitutional and statutory duties, the police however do not have the right of indefinite detention without complying with the provisions of the constitution regarding how long a person should be detained;
Clearly, therefore, 6 months detention of the applicant at the police cell without taking him to the nearest Court violates Section 35(4) of the Constitution which provides … If 6 months detention without taking him to Court, is bad, then the 7 years applicant has now stayed in detention without facing a formal charge is monstrous and portents a bad omen. As it is already trite in law, holding charge though tolerated with schimism (sic) in our legal system is an aberration.
Worst still is that 7 years after, the state Respondent (sic) still unable to attach the information in the counter affidavit is a big embarrassment.
However since the applicant did not ask for bail and the state Respondent (sic) has equally asked for a little more time for them, Respondents, to file information, I am minded not to make an order for release right away now but to make the following orders pursuant to Section 46(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended because this is a case of armed robbery matter(sic);
1. I hold that the fundamental rights of the applicant have been violated not in relation with his arrest, or torture, but, in relation to having been detained for 6 months in police cell without being taken to Court, and also in relation to being detained for 7 years without having a formal information filed against him.
2. I award N50,000.00 damages in his favour
3. that state Respondent is hereby given up till September 30th to file an Information against the applicant or the Court shall forthwith release him without recourse to State Respondent.
If by that date no information has been filed against him then
4. Because it is armed robbery matter, I make not order for release of discharge now.”
Both counsel for the Appellant and the 1st Respondent adopted and relied on their erstwhile briefs of argument. Learned Counsel for the Appellant, Kelechi Nwaiwu formulated three issues for determination and which issues encapsulated the two issues raised by the Respondent’s counsel viz:-
“1. Whether the lower Court, having found that the Appellant’s rights were violated in relation to his having been detained in police custody for 6 months and in prison custody for 7 years without being formally charged, ought not to have released the Appellant forthwith. (Grounds 1 and 2).
2. Whether the quantum of damages awarded the Appellant and the failure of the lower Court to make a consequential order pursuant to Section 35(6) of the 1999 Constitution (as amended) is appropriate in the circumstance. (Ground 3).
3. Whether the learned trial Judge correctly applied the provisions of Section 46(2) of the Constitution of the Federal Republic of Nigeria (as amended 2011) to the facts of the case before it. (Ground 4).”
I shall consider issues one and two above the resolution of which I differ with my learned brother Lokulo-Sodipe JCA.
ISSUE ONE:
Whether the lower Court, having found that the appellant’s rights were violated in relation to his having been detained in police custody for 6 months and in prison custody for 7 years without being formally charged, ought not to have released the appellant forthwith. (grounds 1 and 2).
On this issue, it is clear that the Appellant was in detention for 6 months in Police Custody and for seven (7) years in Prison Custody without a formal charge against him and this was the case up to the time he filed an application for the enforcement of his fundamental right. Section 35(4) and (7) of the 1999 Constitution (as amended) was called into question here. Sections 35 (4) and (7) provide thus:
Section 35(4): (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.
(7) Nothing in this section shall be construed
(a) in relation to subsection (4) of this section as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence and
(b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the Federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria Police Force, in respect of an offence punishable by such detention of which he has been found guilty.
One must not shy away from observing that the Appellant was detained by a magistrate for an offence over which he has no jurisdiction. This is for a period of 6 months in the first instance. Could this act not to be said to be contrary to the constitutional provisions particularly Section 35(4) of the 1999 Constitution? In my considered view the action of the 1st Respondent against the Appellant negates the principle enshrined in the Constitution as to the liberty of the Applicant. And the timely intervention of counsel for the Appellant indeed saved the situation otherwise the Appellant would have been there languishing in prison. Section 36(1) of the Constitution (as amended) provides-
(1) In the determination 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 manner as to secure its independence and impartiality.
The detention of the Appellant before the Magistrate who has no jurisdiction to try the offence with which he is alleged is described as an aberration. In the case of Bolakale v. State (2006) 1 NWLR Part 962 Page 507 at 518 Para H, per Muntaka-Coomassie, JCA (as he then was), the Court held:
“It is an aberration and an abuse of judicial process for an accused person to be arraigned before a Magistrate Court for an offence over which it has no jurisdiction, only for the accused person to be remanded in prison custody and not tried or properly charged before a competent Court for trial.
It will be an infraction on the right to fair hearing and liberty of the accused person. It will place him in a position of hopelessness as to how to enforce his right.”
In the earlier case of ONAGORUWA V. STATE (1993) 7 NWLR Part 303 page 49 At 107 Para G – H, Tobi, JCA (as he then was) this Court held:
“In a good number of cases, the police in this country rush to Court on what they generally refer to as a holding charge ever before they conduct investigations, though there is nothing known to law as “holding charge”… Where the investigation does not succeed in assembling the relevant evidence to prosecute the accused to secure conviction, the best discretion is to abandon the matter and throw in the towel… On no account should it go out of its way in search of evidence to prosecute the accused when it is not there. When it degenerates to such a situation of “hunting down”, the prosecution is no more regarded as the prosecutor but as a persecutor. And that is not consistent with the philosophy of our adversary system of adjudication.”
The learned trial judge seemed to utilise Section 34(7) of the Constitution to justify the continuous detention of the Appellant more so as the applicant did not ask for bail in the application of the enforcement of his fundamental right. Section 34(7) provides-
(7) Nothing in this section shall be construed
(a) in relation to subsection (4) of this section as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence and
(b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the Federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria Police Force, in respect of an offence punishable by such detention of which he has been found guilty.
And what is more worrisome is the fact that the Respondent who filed no cross appeal against the finding of the lower Court was graciously granted more time to prepare charges against the Appellant even in view of the clear terms of the Constitution in safeguarding the rights of the citizens. The fact that the applicant did not ask for bail and as such he could not be granted because the offence is armed robbery as reasoned by the trial judge in my considered view is restrictive of the scope of fundamental right applications. The Courts are enjoined to have a broader interpretation of human right provisions. See Adinuso V Omeiri (2006) All FWLR Pt 310 Pg 1759 at 1769 para G-H per Aderemi JCA (as he then was).
One can simply say that the Respondent does not intend to prosecute the Appellant but just intended keeping him behind bars. There can be no justification by any authority to keep an accused for 7 years without a formal charge and the action be regarded as within constitutional limits. In Olawoye V C.O.P (2006) 2 NWLR Pt (65 Pg 427 at 445 para C-H per Abdullahi JCA it was held where accused persons are kept in detention for a period of over 9 months without charging them to Court, it is a flagrant violation of the right of the accused and they are entitled to be released unconditionally or upon such conditions as are reasonably necessary to ensure that they appear for trial at a later stage.
In summation, I find that the lower Court having found that the Appellant’s rights were violated for his detention for 6 months in Police Custody and 7 years in Prison and yet could not order the release of the Appellant because he was charged with armed robbery has not acted in line with the spirit and letters of the 1999 Constitution and the Fundamental Right (Enforcement Procedure) Rules 2009. Accordingly, I resolve issue one in favour of Appellant.
ISSUE THREE:
Whether the learned trial judge correctly applied the provisions of Section 46(2) of the Constitution of the Federal Republic of Nigeria (as amended 2011) to the facts of the case before it. (ground 4).”
Section 46 (2) of the 1999 Constitution provides:
“Subject to the provisions of this constitution, a High Court shall have original jurisdiction to hear and determine any application made for it in pursuance of the provisions of this sections and may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within the state of any right to which the person who makes the application may be entitled under this chapter.”
The above Section of the 1999 Constitution gives a wider discretion to the Judge to make any kind of order in an application for enforcement of fundamental right and therefore to say that the Applicant did not ask for bail and as such he could not be granted bail in the circumstances goes counter to the provisions of Section 46(2) of the Constitution. Thus, denying the appellant bail or any kind of order of discharge at this stage simply because the offence which he was alleged to have committed carries a mandatory death sentence to me negates the principle of presumption of innocence to the Appellant. See Section 36(5). After all no charge has been framed against the Appellant for a period of 7 years and the Respondent was seeking for more time to prepare a charge.
Order XI of the Fundamental Right (Enforcement Procedure) Rules which reinforces Section 46(2) of the 1999 Constitution provides-
“At the hearing of any application, under these Rules, the Court may make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purposes of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act to which the applicant may be entitled.”
Armed with the above provisions it is ironical that the lower Court could not pronounce on the glaring breach of the Applicant’s right in the circumstances.
Having found that the Appellants fundamental right to personal liberty had been violated, the Court is to proceed under Section 35(6) to pronounce on the violation and act accordingly.
It is for this reason that I resolve issue three in favour of the Appellant.
On the whole, having resolved issues one and three in favour of the Appellant, I find there is merit in the appeal and is hereby allowed by me. Having found in the circumstances the personal liberty of the Appellant to have been violated, I hereby order as follows:
i. A DECLARATION that the arrest and continued detention of the Applicant without justification whatsoever by the Respondents from January 21, 2011 till date is wrongful, unlawful and violates the Applicants’ (sic) fundamental right to the dignity of the human person, right to personal liberty, right to freedom of movement, right from unlawful arrest and prosecution as guaranteed under the provisions of Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and African Charter on Human and People’s Rights (Ratification and Enforcement) Act (CAP A9) LFN 2004.
ii. The Applicant is hereby ordered to be released unconditionally from custody forthwith.
Appearances:
Kelechi Nwaiwu, with him, C.D. Iroha (Miss) For Appellant(s)
I.I. Amadi (Deputy Director of Civil Litigation, Imo State) – for 1st Respondent For Respondent(s)
