A Note On An Arrest And Detention Of A Suspect On Allegation Of Crime Amounting To Breach Of Human Rights In Nigeria: The Case Of Awal V Ndlea (2020) As A Case Study

Hameed Ajibola Jimoh Esq.

Hameed Ajibola Jimoh Esq.

Legally speaking, upon suspicion of any person for the commission of a crime, such a person is arrested and detained in a lawful custody by the law enforcement and or security agencies of government before his arraignment in a competent court of law for the alleged offence or for a remand order. Sometimes the arrest might be lawful while sometimes such an arrest might be unlawful. Also, the detention might be lawful while the detention in such facility might be unlawful. Furthermore, in some instances, the detention might be lawful if the procedures laid down by law are complied with and non-compliance with these procedures laid down by law (which are mainly to protect the human rights of the alleged suspect) in the detention, any breach of such procedures would and or might amount to breach of the human right(s) of the suspect to which the suspect is by law conferred a right to approach a court of law to seek redress and likely compensation and or public apology from the appropriate authority of government (which is the authority of government which violates such right or the Federal or State government as the case might be). This paper is a note on the arrest and or detention of a suspect on allegation of crime amounting to breach of human rights in Nigeria and using the recent case of Awal v National Drug Law Enforcement Agency (NDLEA) as a case study.

The said Awal v NDLEA has its full citation using the Lawpavilionlaw report as ‘AWAL v. NDLEA (2020) LPELR-50160(CA)’,delivered by the Court Of Appeal (ABUJA JUDICIAL DIVISION) on Thursday, March 27, 2020, in Appeal Number: CA/A/840/2018, before Their Lordships: Abdu Aboki (Justice of the Court of Appeal); AdamuJauro (Justice of the Court of Appeal); and Emmanuel AkomayeAgim (Justice of the Court of Appeal). This appeal borders on Enforcement of Fundamental Rights.The Appeal is also cited as ‘AWAL v. NDLEA (2020)LCN/14078(CA)’, in another law report.

FACTS OF THE APPEAL:

This appeal is against the decision of the Federal High Court sitting in Abuja delivered by Hon. Justice A. l. Chikere on the 27th day of April, 2016 in Suit No: FHC/ABJ/CS/863/2018.

By an Application for the enforcement of the fundamental right dated 18th September, 2017 and filed on the same date, the Appellant as Applicant prayed for some declaratory reliefs for the Enforcement of his Fundamental Rights. Attached to the application was a Statement in Support containing the grounds upon which the reliefs are sought, a nine paragraph affidavit and a written address. The kernel of the Appellant’s grievance as gleaned from the affidavit in support of the application was that he was arrested by the Respondent’s officials on the allegation of drug suspected to be Indian-hemp with some other person. That even though the Respondent’s officials did not find any of the alleged drug on him, yet he was arrested and despite his plea to the Respondent officials that he knew nothing about the allegation. He stated further that since he was arrested on 2nd day of April 2017, he has been in the Respondent’s custody at Gudu FCT within the jurisdiction of this Court without him being charged to Court. That he was only charged to Court for criminal proceedings on the 22nd day of May 2017 in Charge No. FCT/ABJ/CR/62/17 between the FEDERAL REPUBLIC OF NIGERIA V. ABDULLAHI AHMED AND ONE OTHER. And that by his calculation, he was kept in custody by the Respondent’s for (51) days.

​In response to the depositions contained in the Appellant’s application, the gist of the Respondent’ case as contained in the Counter affidavit was that based on information received from the office that the Applicant was a supplier of Cannabis Sativa at Kano – Zaria Parks Gwagwalada, Abuja, Officers of the Respondent, FCT Command conducted a search at the park where the drugs are being sold freely and in the process, the one Ahmed Abdullahi was arrested with 550 grammes of Cannabis sativa which was found on him and he admitted ownership. That on the basis of which he was arrested on 2nd day of April 2017 and brought to the office for investigation and that while under investigation, he gave information about his supplier, the Appellant who was arrested on a later date but not on 2nd April 2017. It was also the case of the Respondent that the Appellant had since been charged to the Federal High Court, Abuja in charge No: FHC/AB/CR/6217/2017 together with the Abdullahi Ahmed and they were both arraigned on the 23rd of May 2017 before the Federal High Court 5 and they had no legal representation. That the detention of the Appellant for a longer period was because of the follow-up operation carried to arrest him to enable the officer properly investigate the allegation and prosecute the case appropriately. It is also the case of the Respondent that when the process of investigation was conducted, the Appellant and his accomplice were charged to Court on a charge dated the 10th day of April 2017 and filed on the 12th day of April 2017.

Upon hearing of the Application, the learned trial judge refused to grant the Appellant’s reliefs. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:

The Court determined the appeal on these issues couched as follows:

  1. Whether considering the facts placed before the trial Court, the detention of the Appellant by the Respondent for fifty-one (51) days in its custody without complying with the procedures permitted by law and without Court’s order permitting such detention is not a violation of the Appellant’s Constitutional rights guaranteed under Sections 34 and 35(1) (4) and (5) and 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 5; 6 and 7 of the African Charter on Human and People’s Rights as ratified by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1990, 2004 (as amended) and is not therefore unconstitutional, unlawful, Illegal, null and void?

2. Whether having regards to the Appellant’s submissions in issues i-iv above, the Appellant is not entitled to reliefs 1, 3 and 4 sought In his application at the trial Court?

DECISION/HELD:

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the Federal High Court was therefore set aside.

SOME IMPORTANT AND RELEVANT RATIO DECIDENDI OF THE APPEAL/CASE:

The Appellate Court held as follows “Section 46 of the Constitution of the Federal Republic of Nigeria is the first constitutional provision that comes to mind in an action for the enforcement of a fundamental right. The section provides as that “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” It was on the strength of the above provision that Appellant approached the Court below for the enforcement of his right.”” Per ADAMU JAURO, JCA (Pp 11 – 12 Paras E – A).

Also, on guiding arrest and detention, the Appellate Court held as follows:

“The rules guiding arrest and detention are statutorily provided under Section 35 (4) (5) (6) and (7) the Constitution (supra). Section 35 (4) (5) (6) of the Constitution provides as follows: 35. 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 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.(Underlining mine for emphasis) (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.”Per ADAMU JAURO, JCA (Pp 16 – 18 Paras E – A).

Also, the Appellate Court also determined the following question as to ‘Whether a person arrested and detained has to be brought before a Court of law within a reasonable time; and meaning of reasonable time; when a detention will be held to be illegal and unlawful’:

“…While the Appellant stated that he was charged to Court on the 22nd of May 2017 since his detention, the Respondent deposed to the fact that the Appellant was charged and arraigned in Court on the 23rd of May 2017. A simple arithmetic would reveal that the Appellant was detained for a period of 50 or 51 days as the case may be. By virtue of Section 35 (4) of the Constitution (supra), the Respondent was required to bring the Appellant before a Court within a reasonable time. What amounts to reasonable time was defined under Section 35 (5) of the Constitution to mean that 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 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. The question is, assuming the arrest of the Appellant was lawful in the eye of this Court, can his detention for a period 50 or 51 days before being brought to Court be considered a reasonable period and thus lawful? My answer is in the negative. As a matter of fact, the Appellant is facing a charge of conspiracy and unlawfully dealing in 550 grams of cannabis sativa, a narcotic drug similar to cocaine, heroin and LSD. See Exhibit NDLEA 1 attached as exhibit to the Respondent’s counter affidavit at page 30 of the record of appeal). The Respondent made concerted efforts to give reasons for the Appellant’s detention in paragraphs 4(d) of the counter affidavit. According to the Respondent, the detention of the Appellant for a longer period was because of the follow-up operation carried to arrest him to enable the office to properly investigate the allegations and prosecute the case appropriately. The excuse in my opinion is untenable and since the offence for which the Appellant is charged is not a capital offence which could have rendered the applicability of Section 35 (4) (5) and (6) of the Constitution impossible as provided under Section 35 (7) (a) of the Constitution (supra). If the Respondent had any justifiable reason for the continuous detention of the Appellant, recourse should have been made vide an application requesting the Court for an order to remand the Appellant in its custody and 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 the Act, is satisfied that there is probable cause to remand the suspect pending arraignment of the suspect before the appropriate Court, as the case may be, may remand the suspect in custody. This is the purport of Sections 293 and 294 of the Administration of Criminal Justice Act, 2015. As pointed out earlier by me in the course of the resolution of this appeal that this action is centered on the enforcement of the fundamental right action of the Appellant and same has nothing to do with whether the Appellant committed the offence for which he is charged with or otherwise. As at the point of the Appellant’s arrest and detention, he enjoys the presumption of innocence as provided for under Section 36 (5) of the Constitution (supra), so therefore I do not agree with the Respondent when it stated at paragraph 4(f) of the counter affidavit that the Applicant’s application is a means to frustrate his criminal prosecution. The point is that whether the Appellant would eventually be found guilty of the offence charged or acquitted of same, the fact remains in this appeal that his detention was beyond that stipulated under Section 35 (4) and (5) of the Constitution (supra) without a Court order and is illegal and unlawful. I shall refer to Articles 5 and 6 the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, 1983 which came into effect on 17th March, 1983. The articles are covered in mandatory terms as follows: ARTICLE 5 Every Individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, duel, inhuman or degrading punishment and treatment shall be prohibited. ARTICLE 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. (Underlining mine for emphasis) The African Charter constitutes part of the domestic laws of Nigeria. SEE ABACHA VS. FAWEHINMI (2000) 4 S.C (PT 2) 1 AT 21. Part of the Charter provides as follows: “WHEREAS a Charter entitled the “African Charter on Human and Peoples, Rights has been duly adopted by diverse States in Africa and Nigeria is desirous of adhering to the said Charter. AND WHEREAS it is necessary and expedient to make legislative provision for the enforcement in Nigeria of the said Charter by way of an Act of the National Assembly: 1. Enforcement of provisions of African Charter on Human and Peoples’ Rights. As from the commencement of this Act, the provisions of the African Charter on Human and Peoples Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.” The learned trial Judge was bound to take judicial notice of the charter alongside the Constitution and the Fundamental Rights (Enforcement Procedure) Rules in the determination of the controversy between the parties. Although the effective discharge of the duties and responsibilities of the Respondent is for the betterment of the entire citizens of the Federal Republic of Nigeria, its neighbouring states and the global community, however, its officials should not be given the indiscriminate latitude to trample on existing sacrosanct and in alienable rights of human persons guaranteed under our relevant laws.” ADAMU JAURO, JCA (Pp 19 – 24 Paras C – D). (Underlining is mine for emphasis).

Furthermore, the Honourable Appellate Court further laid down some guiding principles for Rules guiding arrest and detention:

“I will just add in reiteration that rules guiding arrest and detention are statutorily provided under Section 35 (4), (5), (6), and (7) of the 1999 Constitution, as amended. In LANDMARK UNIVERSITY V. ANWULI & ANOR (2014) LPELR 24340 (CA), this Court held as follows: “By Section 35(4) and (5) of the Constitution, the Respondents who were arrested and detained for suspicion of having committed a crime ought to have been brought before a Court of competent jurisdiction within a reasonable time. In determining what time reasonable for the arraignment of a person arrested and detained having been suspected to have committed a crime, the Court will consider a number of variables. Where the arrest and detention took place, was there is a Court of competent jurisdiction within a forty kilometers radius, then a period of one day is adjudged reasonable time. Where a Court of law is not within that radius, then two days becomes the reasonable time. In other cases the Court has to determine what time is reasonable to bring the detained suspect to Court owing to the facts and circumstances.”Per ABDU ABOKI, JCA (Pp 27 – 28 Paras A – A). (Underlining is mine for emphasis).

Also, the Appellate Court decided on ‘What a person who is unlawfully arrested and detained shall be entitled to

“…In the instant appeal, I also find that the Appellant, being detained for a period of 50 or 51 days, is unreasonable, unlawful and a breach of his human rights, and he is thus entitled to compensation and a public apology.”. ABDU ABOKI, JCA (Pp 28 – 28 Paras B – C).

CONCLUSION/RECOMMENDATIONS:

In my humble view and on a final analysis, the case of Awal v NDLEA (supra) has reechoed without reservation, the cardinal guiding principles for determining when an arrest is lawful and when same is unlawful as well as when a detention is lawful and when it is unlawful and the remedies available to an applicant and or victim of breach of fundamental rights in this respect(though, in this appeal, it is noteworthy to note that the Appellate Court in its lead Judgment did not pronounce on the public apology to be rendered to the Applicant by the Respondent (rather the Court only pronounced unanimously on the compensation), the other two Justices of the Panel did pronounce same, but that would in a way (in my humble view) amount to a dissent on the Judgment of the Court).Also, the wrong notion of some of our trial courts/judges (with due respect to them) who always refuse fundamental rights applications for their notion (in what could be assumed as) that ‘once a person has been arrested and or alleged to have committed an offence, he is presumed a ‘criminal’ and therefore cannot have his right to personal liberty infringed upon’ has been criticized and overruled by the Appellate Court, while the Appellate Court has distinguished when a person is standing a criminal trial away from when he is an applicant under the fundamental rights and holding that the suspect and or accused standing criminal trial does not and has nothing to do with his right to seek remedy for any allegation of breach and or violation of his fundamental right as conferred on him under the law both Nigeria and international human rights laws. I therefore hope that our trial courts would use the opportunity of this case to have a change of decision in respect of fundamental rights enforcement suits brought before them by an aggrieved applicant.

Furthermore, in my humble view, those principles and or rules laid down by the Appellate Court are enough to guide all our security and law enforcement agencies of government on the need to always comply with the laid down procedures for an arrest and detention of a suspect in their respective custody and to save themselves from incurring the wrath of the law for such breach of the suspect’s rights as the court of law has always been the ‘last hope of the common man’!

Also, the Appellate Court has made it clear that rules guiding arrest and detention are statutorily provided under Section 35 (4), (5), (6), and (7) of the 1999 Constitution, as amended. The Appellate Court further held thus‘In LANDMARK UNIVERSITY V. ANWULI & ANOR (2014) LPELR 24340 (CA), this Court held as follows: “By Section 35(4) and (5) of the Constitution, the Respondents who were arrested and detained for suspicion of having committed a crime ought to have been brought before a Court of competent jurisdiction within a reasonable time. In determining what time reasonable for the arraignment of a person arrested and detained having been suspected to have committed a crime, the Court will consider a number of variables. Where the arrest and detention took place, was there is a Court of competent jurisdiction within a forty kilometers radius, then a period of one day is adjudged reasonable time. Where a Court of law is not within that radius, then two days becomes the reasonable time. In other cases the Court has to determine what time is reasonable to bring the detained suspect to Court owing to the facts and circumstances.’. Therefore, in my humble view, whether a detention of a suspect is unlawful, the court will consider the ‘facts and circumstances’ of both the arrest and or detention and not just to say that the minimum day of lawful detention is 48 hours. This means that even arrest and or detention of the suspect for 24 hours unjustifiably and unreasonably could amount to a breach of the fundamental rights of the Applicant.

Finally, I therefore recommend a holistic study of this Appellate case by all: security and law enforcement agencies of government; the judges; legal practitioners; human rights activists, and the general public so as to promote the protection of human rights of every citizenin Nigeria.

The good news is the fact that I was the Counsel/lawyer who had represented the Applicant at both the Federal High Court of Nigeria, Abuja, and the Court of Appeal of Nigeria, Abuja, leading to the Judgment being used as a case study in this article.

Email: hameed_ajibola@yahoo.com

 

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