YENGE v. AG FEDERATION (2021)

YENGE v. AG FEDERATION

(2021)LCN/15903(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 17, 2021

CA/A/664/2018

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

CHIEF SAATSAHA THADDEUS YENGE APPELANT(S)

And

THE ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO:

THE PERSONAL LIBERTY OF AN INDIVIDUAL WITHIN THE CONTEMPLATION OF THE CONSTITUTION

The above provisions of Section 35 of the Constitution leave no one in doubt that the Section is not absolute. Personal liberty of an individual within the contemplation of Section 35(1) of the Constitution is a qualified right in the context of this particular case and by virtue of Subsection (1)(c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, lightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention then an escape Sroute to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquility of the society. I find support in so saying from Irikefe’s JSC (as he then was) earlier pronounced in the case of Echeazu v. Commissioner of Police (1974) NMI-R 308 at page 314.” PETER OLABISI IGE, J.C.A.

ANY LAW INCONSISTENT WITH THE PROVISIONS OF THE CONSTITUTION SHALL BE NULL AND VOID

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja, coram: Danlami Zarna Senchi, J., (now JCA), delivered on 15th day of January, 2018.

The Appellant herein as the Plaintiff vide an Originating Motion filed on 6th June, 2017, raised the following question for the determination of the trial Court:
“Whether or not by the combined reading of Section 35 (3), (4) (5) and 36 (5) of the Constitution of the Federal Republic of Nigeria 1999, the entire provisions of part 30 to wit: Sections 293, 294, 295, 296, 297, 298, 299 of the Administration of Criminal Justice Act 2015, on detention time limits are not unconstitutional, null and void to the extent of the inconsistency with the provision of the Constitution”.

Upon determination of the above question, and if in the affirmative, then the plaintiff claimed the following consequential relief:
“A declaration that the entire provisions of part 30 to wit: Section 293, 294, 295, 296, 297, 298, 299 of the Administration of Criminal Justice Act 2015, on detention time limits are unconstitutional null and void to the extent of the inconsistency with the provisions of Section 35 and 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

The Originating Summons was supported by an affidavit of 18 paragraphs deposed to by the plaintiff himself and a Written Address by counsel to the plaintiff.

Reacting to the Originating Summons, counsel for the defendant/respondent filed a Memorandum of Conditional Appearance on the 13th July, 2017; and a Notice of Preliminary Objection on the ground that the plaintiff lacks the locus standi to institute this suit. The defendant/respondent prayed the Court to strike out the suit. In addition, counsel for the respondent filed a Written Address in support of the Preliminary Objection and a counter affidavit of six paragraphs sworn to by one Thomas Etah, a Civil Servant in the Federal Ministry of Justice. Reacting to the processes filed by the respondent’s counsel, the plaintiff filed a reply on the 28th July, 2017. The Originating Summons and the Preliminary Objection were heard together.

In a considered judgment delivered by the trial Court on the 15th January, 2017, the learned trial Judge at page 89 of the record of appeal, held as follows:
“Thus, therefore, I hold the very firm position that Sections 293-299 of the Administration of Criminal Justice Act 2015, on detention limits are not unconstitutional or inconsistent with the provisions of Section 35 and 36 of 1999 Constitution and I so hold. Accordingly, the question for determination is hereby answered in the negative. The consequential relief sought by the plaintiff is hereby refused and it is dismissed.”

Dissatisfied with the above decision of the lower Court, the appellant appealed to this Court vide a notice of appeal filed on the 12th April, 2018. The grounds of appeal without their particulars are as follows:
“Ground One:
The learned trial Judge erred in law by holding that part 30 of the Administration of Criminal Justice Act, 2015 is not inconsistent with the Constitution but rather complements the provision of the Constitution and thereby occasioned a miscarriage of Justice.
Ground Two:
The learned trial Judge erred in law by refusing to answer the sole question for determination in favour of the relief sought vide the Originating Summons and thereby occasioned a miscarriage of justice.
Ground Three:
The learned trial Judge erred in law by holding that a combined reading of Section 35 and the provisions of part 30 of the Administration of Criminal Justice Act, 2015 would reveal that both provisions are meant to protect the rights of the citizens from the arresting authorities and thereby occasioned a miscarriage of justice.
Ground Four;
“The judgment of the learned trial Judge is against the weight of evidence adduced in the affidavit evidence and the legal submissions in the written addresses.”

The Appellant’s Brief of Argument was filed on the 28th August, 2018 while the Respondent’s Brief of Argument was filed on the 16th October, 2020, but deemed properly filed and served on the 22nd September, 2021.

The appeal was heard on 22nd day of September, 2021, when Learned Counsel to the parties adopted their respective briefs of arguments.

The Appellant, CHIEF S. T. YENGE, who appeared in person distilled a sole issue for the determination of this appeal:
“Whether the lower Court was right to have resolved the sole question against the appellant’s sole relief that the provisions of part 30 of the Administration of Criminal Justice Act, 2015 are not inconsistent with the provisions of Section 35 and 36 of the Constitution of the Federal Republic of Nigeria, regards being had to the Appellant’s unchallenged legal submissions at the lower Court. (Grounds 1, 2, 3, 4 and 5)”

In response, counsel for the respondent, MAIMUNA LAMI SHIRU (MRS.), adopted the sole issue for determination by the appellant.

This appeal will therefore, be determined on the sole issue formulated and adopted by the parties.
“Whether the lower Court was right to have resolve the sole question against the appellant’s sole relief that the provisions of Part 30 of the Administration of Criminal Justice Act, 2015 are not inconsistent with the provisions of Section 35 and 36 of the Constitution of the Federal Republic of Nigeria, regards being had to the Appellant’s unchallenged legal submissions at the lower Court.”

The Appellant while arguing this issue submitted that the legislature has the power to make laws and alter the Constitution for peace, order and good government. That unless the Constitution is altered to accommodate a particular subject matter like the extension of the detention time limit, any Act contrary to the omnipotent provisions of the Constitution on the same detention time limit would be null and void to the extent of the inconsistency. He referred the Court to Section 4 (2) (3) and (9) of the Constitution of the FRN, 1999 as amended. He argued that the issue of time limit as far as arrest and detention is concerned is strictly regulated by the Constitution just like any other subject matter that has been dealt with by the Constitution itself. He cited the case of ANPP V. USMAN (2009) ALL FWLR (PT. 463) 1292 AT 1325 G-H. He stated that the Administration of Criminal Justice Act, 2015 cannot add to or subtract from the elaborate provisions of the subject matter of detention time limit already provided for by the Constitution. He cited Section 35 (3)(4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999. Learned Counsel submitted that the provisions of the Administration of Criminal Justice Act which is captioned “Detention Time Limits” ran contrary to the provisions of the Constitution which ensures that any person who is arrested is brought to a Court of competent jurisdiction within a reasonable time of either one day or two days as the maximum detention time limits except in such a longer period as may be allowed by a Court of competent jurisdiction to be reasonable. He referred the Court to Section 35 (4) and (5) of the Constitution. He opined that the 24 hours period contemplated under Section 35 (3) of the Constitution is the maximum period for any person who is arrested or detained to be informed in writing of the facts and grounds for his arrest or detention. That even if a suspect is detained on remand order, he must be informed of the facts and grounds of his detention within 24 hours pursuant to the provisions of Section 35 (3) of the Constitution. That for the said Section 35 (3) of the Constitution to be obeyed, any person who is arrested or detained must be arraigned before a Court of competent jurisdiction within 24 hours where the initiating process to wit: First Information Report (F.I.R), Charge, Information etc (usually in writing) would be read to him and his plea taken forthwith. The Appellant argued that the provisions of Part 30 of the Administration of Criminal Justice Act, 2015 do not contemplate that the suspect should be informed of the facts and ground of his arrest in writing within 24 hours as the suspect is to be brought to a Court that has no jurisdiction over the offence for remand and not for trial whereby his plea will be taken. He stated that the right to fair hearing within a reasonable time constitutionally guaranteed has been taken away by the import of Part 30 of the Administration of Criminal Justice Act.

It is the further submission of the Appellant that any arrest of a person for any unconstitutional purpose not for trial or reasons stated in the Constitution would be unconstitutional. That the Judiciary as an arm of government cannot under any guise be involved in the preliminary investigations leading to the arraignment or non-arraignment of a suspect. He submitted further that at the time a person is a “suspect” not “an accused” or “defendant”, the role of the judiciary is minimal and must be more inclined to the protection of the fundamental rights of the suspect until the person is appropriately arraigned before a Court of competent jurisdiction for trial. That it should be noted that the provisions of Subsections (4) and (5) of Section 35 of the Constitution are to the effect that a person who is arrested or detained pursuant to the provisions of the Constitution shall be brought to a Court of competent jurisdiction. Counsel maintained that the provision of Part 30 of the ACJA are inconsistent with the provisions of Section 35 and 36 of the Constitution.

The Appellant submitted that the issue of arrest and detention time limit has been exhaustively dealt with under the Constitution therefore any arrest or detention in accordance with the Constitution must lend credence to the provisions of Section 35 (3), (4) and (5) of the Constitution for same to be constitutional. That any arrest or detention that is contrary to the spirit and letter of the Constitution chronicled in the provisions of Section 35 of the said Constitution would be unconstitutional and any provision of an enactment that would permit the violation of the Constitution will also be unconstitutional, null and void and of no effect whatsoever. He urged the Court to so hold.

To the Appellant, the learned trial Judge was not correct when he held that by a combined reading of Section 35(1) (c) and 5 (a) and (b) of the Constitution, the provisions of Sections 293-299 of the Act were validly made to safeguard the liberty of persons like plaintiff and victims of crimes from the arbitrariness of the security agencies from detaining suspect beyond the two days period without approaching the law Court. He referred the Court to page 87 of the record of appeal. He stated that the holding of the lower Court is a reversal of the import of Part 30. That a detention or remand by a Court that has no jurisdiction over the offence is null and void and tantamount to violation of the fundamental rights to freedom of movement and liberty of suspects. He stated the trite position of law that a Court that has no jurisdiction over the main claim or subject matter would equally lack jurisdiction to make ancillary orders in respect of such matter. That the principles of law not created by the legislature cannot be done away with by the legislature as to do so would amount to creating a new legal order contrary to the universally established and acceptable world legal system. That the Constitution has already exhaustively made provisions for detention time limit and no law can duplicate same or add to, subtract or make contrary provisions for the amplification of the subject matter without running afoul of the settled principles of constitutional interpretation as enunciated in a plethora of cases, such as A.G. ABIA STATE V. A.G FEDERATION (2002) 17 W.R.N 1, A.G. FEDERATION V. ABUBAKAR (2007) ALL FWLR (PT. 375) 405, ANPP V. NAALLAH (2009) ALL FWLR (PT. 492) 199 AT 1220 C-D and ANKPA V. MAIKARFI (2010) ALL FWLR (PT. 506) 1977 AT 1997 A-C. That the provisions of Part 30 of the ACJA, which purport to enlarge or alter or expand or duplicate or amplify the detention time limits and the meaning of “reasonable time” already dealt with in the Constitution under Section 35 is invalid, null and void and of no effect whatsoever. He cited SULEMAN V. C.O.P. PLATEAU STATE (2008) ALL FWLR (PT. 425) 1627 AT 1650 G-A. More so, that from the judicial point of view that even a statute cannot allow the rights of the citizens to be trampled upon, for if it does, it would be monstrous, dehumanizing, uncivilized and unconstitutional. That Courts are constitutionally bound to always safeguard and protect the rights of citizens. He cited the case of NAWA V. ATT. GENERAL CROSS RIVER STATE (2008) ALL FWLR (PT. 401) 807 AT 840 E-F. Counsel urged the Court to safeguard the rights and liberties of the unsuspecting Nigerian that may subsequently fall prey of the unconstitutional colours of Part 30 of the ACJA, 2015 and also uphold the arguments and submissions in this appeal. He relied on the authorities of NIGERIAN ARMY V. YAKUBU (2013) 8 NWLR (PT. 1355) 1 AT 24; AKIJLEGA V. B.S.C.S.C (2002) FWLR (PT. 123) 255 AT 288 A-E AND SAIDU V. STATE (1982) 4 SC 41 AT 68.

The Appellant further stated that one of the settled principles of statutory interpretation that a constitutional power cannot be used to attain an unconstitutional result. He relied on ATTORNEY GENERAL OF THE FEDERATION V. ABUBAKAR (2007) ALL FWLR (PT. 375) 405 AT 498 A-D AND ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (1981) FWLR (PT. 65) 448 AT 549. In the final analysis, the Appellant canvassed that the law is that where a charge is not laid upon which a suspect would take his plea, such suspect is entitled to be released from custody and not to be remanded. He cited the case of SULEMAN V. COMMISSIONER OF POLICE (2008) ALL FWLR (PT. 425) 1627 AT 1654-1655. He urged the Court to allow the appellant’s appeal.

In response to the Appellant’s submission, the learned Counsel to the Respondent, contrary to the arguments of the counsel for the appellant submitted that the Constitution itself has reserved to the legislative body the power to make enactment on procedure to follow when derogating or restricting the rights to personal liberty. Counsel reproduced Section 35 (1) (a)-(c) of the Constitution and argued that the right to personal liberty within the contemplation of Section 35(1) of the Constitution is a qualified right and that the Constitution has set out the circumstances and conditions for the deprivation of the right to personal liberty. He relied on the cases of HASSAN V. EFCC (2014) 1 NWLR (PT. 1389) 607 @ 637 AND DOKUBO-ASARI V. FRN (2007) LPELR-958 (SC).

Learned Counsel argued that the provision of Section 35 of the Constitution contains the following phrase “save in the following cases and in accordance with a procedure permitted by law”. He therefore, submitted that the above stated phrase creates a room for the legislative body to prescribe by law a procedure to be followed in the derogation or restriction of the right to personal liberty. That the provisions of Part 30 of the Administration of Criminal Justice Act, 2015 provides for the procedure to be followed in the event that the right to personal liberty is to be restricted. More so, that since the provisions of Part 30 of the ACJA 2015, derives its validity from the Constitution that the enactment is valid and as such not inconsistent with the provisions of the Constitution. He urged the Court to so hold.

Learned Counsel to the Respondent, further submitted that the provisions of Part 30 of the ACJA 2015 which provides for Detention Time Limit does not run contrary to the provisions of Section 35 of the Constitution. That the provisions of Part 30 of the ACJA only simplifies the provisions of the Constitution on the subject matter and further legislate on situations not exhaustively covered by the Constitution. He reproduced the contents of Section 293 of the ACJA, 2015 and Section 35 (4) of the Constitution of the FRN 1999 (as amended) and argued that a careful study of the Sections will reveal that the provisions of Section 35(4) of the Constitution and Section 293 of the ACJA places the same obligation on the arresting officer to bring a suspect before a Court within a reasonable time. That the ACJA did not in any of its provisions define the term “reasonable time” simply because the Constitution has already defined the phrase and as such has covered the field. He stated that the appellant’s argument as in paragraphs 3.23, 3.24 and 3.26 of his brief that the provisions of Part 30 of the ACJA which allows for 14 days remand are contrary to Section 35(4) of the Constitution which allows for one or two days are misconceived. Counsel opined that the Constitution envisage or contemplates the likelihood of the need for detention to go beyond 20 hours hence grant the discretion to Court to allow for detention beyond 24 hours as they may consider to be reasonable. Also, that Section 296 of the ACJA, which allows for 14 days remand is directed at situations where a suspect is brought within a reasonable time (i.e. one day, two days or more) before a Court of law that has no jurisdiction to try that particular offence for the purpose of remand. That while Section 296(1) of the ACJA which provides for the 14 days remand envisages a detention by a Court of law, on the other hand, that Section 35(4) of the Constitution envisages a detention by an arresting officer. That the provisions of Section 296(1) of the ACJA and the Section 35(4) of the Constitution do not envisage/contemplate the same situation, hence Section 296(1) of the ACJA do not run contrary to Section 35(4) of the Constitution. He urged the Court to so hold.

Contrary to the submissions of the appellant on jurisdiction, counsel for the respondent submitted that the Magistrate Court has been specifically conferred with the jurisdiction to hear an interlocutory application for remand of a suspect for an offence which it ordinarily has no jurisdiction to try by virtue of Section 296(1) & (2) of the ACJA. That the Magistrate Court is a Court of competent jurisdiction for the purpose of remand. He urged the Court to so hold. Also, contrary to appellant’s submissions on paragraphs 3.26 of the Brief on application for remand to be made ex-parte, respondent’s counsel state that granting an ex-parte application is not by itself unconstitutional because it most at time involve urgency. That the Court will only grant ex-parte application upon being satisfied that it is expeditious and justifiable to do so. That the powers of the Court to hear and determine ex-parte applications can by no means be declared as unconstitutional or constitute a violation of fair hearing merely because the Court grants the order without recourse to the affected party. He cited AMAH & ORS. V. EFCC (2019) LEPLR-47312 (CA). Counsel maintained that the application for remand which is made ex-parte is not unconstitutional and uncivilized merely because the Court grants the order without recourse to the suspect. Also, that Section 293(2) and 294 places a duty on the arresting officer to place before the Court reasons for the request of the remand order and that the duty of a Court is to be satisfied that there is a probable cause to remand the suspect before such an application can be granted. That the duty of informing a suspect of the facts and grounds for his arrest and detention arises upon arrest not at the time of filing charges. He opined contrary to the submission of the appellant that the provisions of Part 30 of the ACJA would by implication be overruling the settled position of the law on this subject matter and a ridicule to the provisions of Section 35 and 36 of the Constitution which guarantees liberty and presumption of innocence. Counsel for the respondent stated that such position is a total misconception of the law. He relied on Section 36(5) of the Constitution 1999 (as amended). That the principle of presumption of innocence as encapsulated in the above Section is to the effect that the burden of proving the guilt of the suspect lies on the Prosecution and not the suspect. He cited BASSEY V. STATE (2014) LPELR-22734. He urged the Court to hold that Part 30 of the ACJA 2015 which deals with remand order and detention limit does not negate the principle of presumption of innocence neither does it connote that the suspect is presumed guilty of the offence by reason of detention. Counsel canvassed further that the order of remand where granted is not made in perpetuity but for a period of time certain and where after the time allowed, the prosecuting authority have neither charged nor released the suspect, that the Court is duty bound to unconditionally discharge the suspect. He referred the Court to Section 296(6) & (7) of the ACJA. That the provision of Part 30 of the ACJA is to checkmate the old order whereby Magistrates remand suspects over offences it lacks jurisdiction to try and such suspects were remanded in custody for a long period of time without any definite time limit on the singular reason that the prosecution is awaiting the advice of the DPP. He urged the Court to hold that by the provision of Part 30 of the ACJA, a time limit has been created for such remand, all in an effort to protect the rights of the suspect.

In the final analysis, learned Counsel for the respondent submitted that the learned trial Judge was right in his decision as contained at page 89 of the record of appeal. That Part 30 of the ACJA 2015, are not unconstitutional or inconsistent with the provisions of Section 35 and 36 of the Constitution of the FRN, 1999 and that the trial Court was right to have held so. He urged the Court to so hold and dismiss this appeal.

The high point of the Appellant’s submission can be found in paragraph 3.63 of the Appellant’s Brief where it is submitted thus:-
“The provisions of Part 30 of the ACJA, is ultra-vires the powers of the National Assembly. The National Assembly cannot confer jurisdiction or expand the jurisdiction of the Magistrate Court vide Rules of practice and procedure which has no such jurisdiction under the substantive law that created the offence. It is our humble submission that a Court that lacks the substantive jurisdiction to try an offence equally lacks the jurisdiction to remand any person arrested of such an offence. The provision of Section 293 ACJA, 2015 is therefore invalid, null and void and of no legal effect whatsoever. This submission equally affects the preceding Sections 294, 295, 296, 297, 298 and 299 of the ACJA.”

The settled position of the law is that any enactment passed by the National Assembly which contravenes the Constitution of the Federal Republic of Nigeria shall be null and void as provided in Section 1(3) of the said Constitution which proclaims that such law shall be to the extent of its consistency with the Constitution void.
Any law or provisions of the said law that are inconsistent with the provisions of the Constitution will be struck down by a Court of competent jurisdiction. See:
1. THE ATTORNEY-GENERAL OF THE FEDERATION VS THE ATTORNEY-GENERAL OF LAGOS STATE (2013) 16 NWLR (PART 1380) 349 AT 329 D-G per I. T. MOHAMMED, JSC now CJN who said:-
“In asserting its supremacy the Constitution, in Section 1 (3) provides that:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistence be void.” (Italics supplied).
“Inconsistency”, in law, to me, can be taken to be a situation where two or more laws enactments and/or rules are mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand and the acceptance or establishment of the one implies the abrogation or abandonment of the other. It is thus, a situation where the two or more enactments cannot function together simultaneously. The Constitution does not tolerate that. In Ishola v. Ajiboye (1994) 7-8 SCNJ (Pt. 1) 1, (1994) 6 NWLR (Pt.352) 506 this Court held that the Constitution is not only supreme when another law is inconsistent with it, but also when another law seeks to compete with it in an area already covered by the Constitution.”
At page 373 A-B of the Report M. D. MUHAMMAD, JSC had this to say:
“Lastly, this Court has held in Ikine v. Edjerode (2002) FWLR (Pt. 92) 1775, (2001) 18 NWLR (Pt. 745) 446 that any law enacted before the coming into force of the Constitution which contradicts any provisions of the Constitution after the Constitution had come into effect must either be modified or repealed as required by Section 315. In the instant case, where the National Assembly has neither modified nor repealed the Act in issue, same must be declared unconstitutional.”
2. NORA OCHALA V. FRN (2016) 17 NWLR (PART 1541) 169 at 187 A-F per PETER-ODILI JSC, who said:
“It follows therefore that an argument as pushed forward by the learned counsel for the appellant that the Magistrate Court by virtue of the Indian Hemp Act has the exclusive power in view of the specific provision would not have a leg since it is an Act which cannot contest the Constitutional empowerment of the Federal High Court under Section 251 and 3 thereof and the explanatory provision of Section 1(3) of the same Constitution which provides thus:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”
Clearly, the above stated Constitutional provisions have rendered out of existence the Indian Hemp Act, Cap. 16, Laws of the Federation of Nigeria, 2004 since it has come into direct conflict with Section 251 (1)(m) and 315(3) of the 1999 Constitution. To underscore the supreme position of the Constitution, Section 315(3) thereof has as follows
“Nothing in this Constitution shall be construed as affecting the power of a Court of law or any Tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-
(a) any other existing law;
(b) a law of a House of Assembly;
(c) an Act of the National Assembly; or
(d) any provision of this Constitution.”

The Appellant feels strongly that the provisions of Administration of Criminal Justice Act, 2015 Part 30 thereof namely Sections 293-299 thereof are inconsistent with the provisions of Sections 35 and 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended.

It is therefore most appropriate here to reproduce the entire provisions of Section 35 and 36 of the aforesaid Constitution all of which provide:-
“Right to Personal Liberty
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;
(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto: Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
(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 Subsection (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 kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.
(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.

36.(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.
(3) The proceedings of a Court or the proceedings of any Tribunal relating to the matters mentioned in Subsection (1) of this Section (including the announcement of the decisions of the Court or Tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal: Provided that –
(a) a Court or such a Tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;
(b) if in any proceedings before a Court or such a Tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the Court or Tribunal that it would not be in the public interest for any matter to be publicly disclosed, the Court or Tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
(6) Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance o f an interpreter if he cannot understand the language used at the trial of the offence.
(7) When any person is tried for any criminal offence, the Court or Tribunal shall keep a record of the proceedings and the accused person or any persons authorised by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed
(9) No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.
(10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.
(11) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”

The above provisions of the Constitution aforesaid must be juxtaposed with the impugned provisions of Sections 293-299 of the Administration of Criminal Justice Act, 2015 all of which are as follows:-
“PART 30 – DETENTION TIME LIMITS
293.(1) A suspect arrested for an offence which a Magistrate Court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a Magistrate Court for remand. (2) An application for remand under this Section shall be made ex parte and shall: (a) be made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Act; and (b) be verified on oath and contain reasons for the remand request. Application for remand or other interlocutory proceedings. First Schedule 294. (1) Where the Court, after examining the reason for the arrest and for the request for remand in accordance with the provisions of Section 293 of this Act, is satisfied that there is probable cause to remand the suspect pending the receipt of a copy of the legal advice from the Attorney-General of the Federation and arraignment of the suspect before the appropriate Court, as the case may be, may remand the suspect in custody. (2) In considering whether “probable cause” has been established for the remand of a suspect pursuant to Subsection (1) of this Section, the Court may take into consideration the following: (a) the nature and seriousness of the alleged offence; (b) reasonable grounds to suspect that the suspect has been involved in the commission of the alleged offence; (c) reasonable grounds for believing that the suspect may abscond or commit further offence where he is not committed to custody; and A Court may remand in prison custody. (d) any other circumstance of the case that justifies the request for remand.
295. The Court may, in considering an application for remand brought under Section 293 of this Act, grant bail to the suspect brought before it, taking into consideration the provisions of Sections 158 to 188 of this Act relating to bail. Court may grant bail in remand proceedings. 296. (1) Where an order of remand of the suspect is made pursuant to Section 293 of this Act, the order shall be for a period not exceeding 14 days in the first instance, and the case shall be returnable within the same period. (2) Where, on application in writing, good cause is shown why there should be an extension of the remand period, the Court may make an order for further remand of the suspect for a period not exceeding 14 days and make the proceedings returnable within the same period. (3) Where the suspect is still in custody on remand at the expiration of the period provided for under Subsection (1) or (2) of this Section, the Court may, on application of the suspect, grant bail in accordance with the provisions of Sections 158 to 188 of this Act. (4) At the expiration of the remand order made pursuant to Subsection (1) or (2) of this Section, and where the suspect is still remanded with his trial having not commenced, or charge having not been filed at the relevant Court having jurisdiction, the Court shall issue a hearing notice on: (a) the Inspector-General of Police and the Attorney-General of the Federation, (b) the Commissioner of Police of the State or of the Federal Capital Territory or the Attorney-General of the Federation, as the case may be, or time and protocol for remand orders. (d) any relevant authority in whose custody the suspect is or at whose instance the suspect is remanded, and adjourn the matter within a period not exceeding 14 days of the expiration of the period of remand order made under Subsection (1) or (2) of this Section, to inquire as to the position of the case and for the Inspector-General of Police or the Commissioner of Police and the Attorney-General of the Federation to show cause why the suspect remanded should not be unconditionally released. (5) Where the Inspector-General of Police or the Commissioner of Police and the Attorney-General of the Federation show good cause pursuant to Subsection (4) of this Section and make a request to that effect, the Court: (a) may extend the remand of the suspect for a final period not exceeding 14 days for the suspect to be arraigned for trial before an appropriate Court; and (b) shall make the case returnable within the said period of 14 days from the date the hearing notice was issued pursuant to Subsection (4) of this Section. (6) Where a good cause is not shown for the continued remand of the suspect pursuant to Subsection (4) of this Section, or where the suspect is still on remand custody after the expiration of the extended period under Subsection (5), the Court shall, with or without an application to that effect, discharge the suspect and the suspect shall be immediately released from custody. (7) No further application for remand shall be entertained by any Court after the proceeding in Subsection (6) of this Section.
297. (1) The powers conferred on the Court under this Part may be exercised by the Court: When Court may exercise power of remand. (a) whether the suspect remanded is present in Court or not; and (b) on its own motion or on application, including an application by a person in charge of the prison or other place of custody where the suspect remanded is detained. (2) The legal advice of the Attorney-General of the Federation shall in all cases be copied to the Court, and the Court may act only on the copy of the advice to make any order that may be necessary in the circumstances. (3) Where the legal advice of the Attorney-General of the Federation indicates that the suspect remanded has no case to answer, the Court shall release the suspect immediately.
298. (1) During remand, the Court may nevertheless order the suspect remanded to be brought before it. (2) The Court may order that the suspect remanded be transferred to a hospital, asylum or any suitable place for the purpose of giving him medical treatment, or may make any order that it considers necessary to make at any time during the remand period. Court may bring up person remanded or make any order during remand.
299. A suspect committed to prison under this Act shall be remanded in prison or other place of safe custody. Place of remand.“

I have carefully read the Appellant’s Brief of Argument and the Respondent’s Brief of Argument and I am in complete agreement with all the submissions of the Respondent’s lear ned Counsel on the import or implications of the provisions of the Part 30 of Administration of Criminal Justice Act which as per Section 1(1) of the Criminal Justice Act is enacted for the purpose of efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant and the victim.
The provisions in contention have numerous safeguards to protect a defendant or a suspect from undue interference with his rights and obligations under the Constitution in case of arrest or remand by a Court established by law. The said provisions of Administration of Criminal Justice Act also imbued the Magistrate Court or a Magistrate with enormous discretion to forestal or prevent unnecessary assault by the Executive arm of government vide its security and prosecution Agencies from abuse of the fundamental rights of a suspect as enshrined in Sections 35 and 36 of the Constitution.
The sections of the Administration of Criminal Justice Act complained of are designed to further strengthen the provisions of the Constitution vis-a-vis the right of the citizens from being trampled upon by security Agents and prosecutors. The sections place a bounden duty on the security Agents and Prosecutors to inform the Court and seek for the Court Order to detain a suspect beyond the time frame contained in the Constitution and the law. This is envisaged under Section 35 of the said Constitution.

The Constitutional provisions Section 35 in particular are not absolute in terms of right to personal liberty and right to fair hearing.
The apex Court in the land explained and interpreted the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 1999 as amended in the cases of:-
1. DOKUBO ASARI VS FRN (2007) 12 NWLR (PART 1048) 358 G-H TO 360 A-E per MUHAMMAD, JSC (now CJN) who said:-
“However, if, in its role of interpretation, a Court makes a pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the Court must find support from the same Constitution or any other statute of equal force. The pronouncement by the Court below is that where National Security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Now, let me turn to the provisions of Section 35 of the Constitution. These provisions in the first place are not absolute. The relevant provisions of the Section are as follows:
“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(c) For the purpose of bringing him before a Court in execution of the order of a Court or upon 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;
(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 arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) as invalidating any law by reason only that it authorizes 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. ” (italics supplied for emphasis)
The above provisions of Section 35 of the Constitution leave no one in doubt that the Section is not absolute. Personal liberty of an individual within the contemplation of Section 35(1) of the Constitution is a qualified right in the context of this particular case and by virtue of Subsection (1)(c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, lightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquility of the society. I find support in so saying from Irikefe’s JSC (as he then was) earlier pronounced in the case of Echeazu v. Commissioner of Police (1974) NMI-R 308 at page 314.”
2. HASSAN & ORS VS EFCC & ORS (2014) 1 NWLR (PART 1389) 607 AT632 G-H TO 633 A-F per ORJI-ABADUA, JCA who said:-
“Further, being in possession of counterfeit bank note or current coin, knowing it to be counterfeit, carries a 21 year prison term. It is indeed a serious crime and any person suspected of having committed such an offence should never be encouraged to hide behind the cloak of fundamental rights enshrined in the 1999 Constitution to escape justice. Whoever, deliberately or intentionally, set out to commit a crime or contravene our set down criminal law, should equally, be prepared to face the rhythm of our criminal justice system. Seeking refuge under the Fundamental Rights (Enforcement Procedure) Rules, in the face of the averments in the counter-affidavit filed on behalf of the 1st, 2nd and 4th respondents would, definitely, jam brick wall, given the provisions of Section 35(1)(c) of the said 1999 Constitution. It is only a conscienceless or unprincipled or a person unrestrained by scruples that would easily yield to the demands of the appellants as demonstrated in their reliefs before the lower Court, This is buttressed by the case of Dokubo-Asari v. FRN (2007) 5 – 6 S.C. 150 at 183-186 lines 25-40 or (2007) All FWLR (Part 375) page 558 at 586 587 paragraphs G-D; (2007) 12 NWLR (Pt. 1048) 320 pg. 360, paras B-where the Supreme Court, per Muhammad, J.S.C., expressed thus:
“The provisions of Section 35 of the Constitution leave no one in doubt that the section is not absolute. Personal liberty of an individual within the contemplation of Section 35(1) of the Constitution is a qualified right in the context of this particular case and by virtue of Subsection 1(c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, rightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention, then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, property and tranquility of the society.”
His Lordship found strength in the reasoning of Irikefe, J.S.C. in Echeazu v, Commissioner of Police (1974) 2 S.C. (Reprint) 46, to (1974) A All NLR 260 at 314.”

I am therefore of the view that a critical examination of the provisions of Sections 293-299 of the Administration of Criminal Justice Act, 2015 and calm perusal of Sections 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended reveals that the aforesaid Sections 293-299 of the Administration of Criminal Justice Act, 2015 are not in conflict with Sections 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are valid provisions of Administration of Criminal Justice Act.

I agree in toto with the findings and decision of the trial Court.
The lone issue distilled for determination in this appeal is hereby resolved against the Appellant.

Consequently, the Appellant’s appeal is bereft of merit and the Appellant’s appeal IS HEREBY DISMISSED.

The judgment of the lower Court delivered by HON. JUSTICE D. Z. SENCHI (now JCA) on 15th day of January, 2018 IS HEREBY AFFIRMED.
There will be no order as to costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading erudite judgment of my learned brother lge, JCA just delivered. In his characteristic manner, he has dealt adequately and has resolved effectively, the lone issue for determination, in this appeal. Individual rights must bow and give way to the collective rights of Nigerians embodied in the corporate existence of Nigeria. The right of an individual is not absolute as he must exist in a Community-Nigeria. To that extent therefore, delineation of time limits, cannot by any stretch of the imagination, be unconstitutional.

I therefore also find no merit in this appeal and I dismiss it. I affirm the considered Judgment of Senchi J (as he then was), delivered on 15th January 2018 in Suit No: FCT/HC/CV/2090/2017.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Peter Olabisi lge, JCA. I agree with the reasoning therein and the conclusion reached. This appeal lacks merit. I also dismiss it.

Appearances:

APPELLANT in PERSON For Appellant(s)

T. D. AGBE, ESQ with him A. S. SHEHU For Respondent(s)

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