Court’s Remand Order: Applicability To Fundamental Rights Protection In Nigeria

Hameed Ajibola Jimoh Esq.

Hameed Ajibola Jimoh Esq.

This paper is an addendum to my earlier paper published by some online blogs such as ‘thenigerialawyer.com’ among others on the title ‘WHAT A SUSPECT ARRESTED ON AN ALLEGATION OF COMMITTING AN OFFENCE OR HIS LAWYER OR HIS RELATIVES SHOULD DO UPON SUCH ARREST’ By: Hameed Ajibola Jimoh Esq.’.

This paper aims at the need for all security and law enforcement agencies of government or any other agent of government empowered to arrest and detain any person accused of committing an offence known to law to always seek and obtain remand order where there is need to detain such person in custody beyond reasonable time permitted by the Constitution of Nigeria, 1999 (as amended), else, such detention beyond the reasonable time would have amounted to an infringement on the fundamental rights of the detained person to which such a person is entitled to a remedy in compensation and apology even if the detention is just for a day as would be seen in the below legal arguments and submissions. Hence, this topic.

First and foremost, ‘arrest’ of a suspect upon a criminal allegation is mostly carried out by security or law enforcement agency of government (and even in a situation where a private individual arrests such a suspect whom in the eyes of the law is presumed innocent of such an offence by Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution), the suspect is still handed over to the police). Therefore, the suspect and or his relatives are concerned with what is next after the suspect’s arrest?! In my humble view, where there is an arrest of a suspect on a suspicion of having committed an offence by any security or law enforcement agency of government, the next step is for the suspect or his relative(s) to secure his bail (administrative or police bail) within the 24 hours of arrest if there is a court of law within the radius of 40 kilometers or 48 hours if there is no court of law within the radius of 40 kilometers (reasonable time), to enable the prosecution to charge him to court according to law.

In my humble view, administrative bail is required to give a slight chance to the prosecution to arraign the suspect in court or to enable the police to carry out further investigation on the alleged offence. Therefore, ‘arbitrary detention’ is not allowed by law for the police to use ‘investigation’ or ‘gathering evidence’ as reason for such an arbitrary detention of a suspect.

Therefore, where the police arraign or charge the suspect to court within the reasonable time of the constitution, then, the issue of administrative bail or applying for same is no more relevant, rather, the suspect (now accused person or defendant before the court of law) can now apply for his bail in a court of law else, he will be remanded in prison custody either without his bail granted or prior to his fulfilling his bail conditions laid down to him by the court either summarily or upon  a formal application for same.

The principles of bail are laid down in the case of SAMSON v. FRN (2020) LPELR-49784(CA) where the court held thus “As a preliminary point of law, it must be stated that the main essence of bail is to secure the accused presence in Court to stand trial for the offence in which he is charged with. See Dokubo-Asari vs. FRN (2007) 4 FWLR (Pt. 395) 6747; Okomoda vs. FRN & Ors (2016) LPELR-40191 (CA); State vs. Ibrahim & Ors (2014) LPELR-23468 (CA). Corollary to this point is the fact that it is a constitutional right guaranteed to the accused person by virtue of Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended) which presumes an accused person innocent until proven guilty and Section 35(4) which guarantees a person’s right to personal liberty.

In Suleman & Anor vs. COP Plateau State (2008) LPELR-3126 (SC); (2008) 2-3 S.C (Pt. 1) 185, the Apex Court held: “The Right of bail, a Constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail, he must execute a bond for such sum of money as determined by the Police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect. See generally Local Government Police v. Abiodun (1958) WRNLR 212.” The main consideration is whether the Applicant will be available to stand his trial.

All other considerations in bail application are all subject to the consideration whether the Applicant will be available to stand his trail. The point I am trying to make is that all the other conditions the Court will look at for instance, the gravity of the offence, etc are all subject to the availability of the Applicant to stand trial. No matter the gravity of the offence and the punishment the offence attracts, once the Court is convinced that the Applicant will be available to stand trial, he will be granted bail. On the other hand, no matter how minor the offence could be, if the Court is of the view that the Applicant will not be available to stand his trial, bail will be refused. See Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495. In a bail application, therefore, whether pending trial or pending appeal, the responsibility on the Applicant is to show that he will not jump bail and that he will be available to stand his trial, while the duty on the Respondent is to debunk that fact in showing that the Applicant will not be available to stand his trial.

See Abiola vs. FRN (1995) 1 NWLR (Pt. 370) 155. Bail application can either be bail pending trial or bail pending appeal. The former is in line with the constitutional provision that an accused person is presumed innocent until proven guilty. See Section 35(4) of the Constitution of the Federal Republic of Nigeria (as amended). The latter on the other hand arises where the accused person has been denied bail in the Trial Court. This he can do prior to his conviction or after his conviction by lodging an appeal in the Appellate Court. See Section 28(1) of the Court of Appeal Act. In Okafor vs. State (2015) LPELR-25681 (CA) this Court per Ogunwumiju, JCA exhaustively in my view dealt with both types of bail and the principles or conditions a Court should consider in these words: “An Applicant can apply for bail pending trial where he has been accused of committing a bailable offence.

Likewise, a convict can apply for bail pending appeal after conviction. In this case, the trial at the Lower Court is still ongoing while the Applicant has appealed against the ruling of the Trial Court which over-ruled his no case submission. Bail pending trial, and bail pending appeal are unique in their own right and thus, it is important to differentiate between the two. An application for bail pending trial is usually done by the accused’s counsel after the arraignment of the accused at the trial Court. There are various factors to consider when applying for bail whether pending trial or appeal. These include; the nature of the offence and punishment, quality of the evidence against the accused, possibility of the accused interfering with further investigation or prosecution if bail is granted, prevalence of the offence, safety of the accused if granted bail, possibility of the accused repeating the same offence, criminal history of the accused, health of the accused, etc. See Anaekwe v C.O.P (1996) 3 NWLR (Pt. 436) 320. Dantata v C.O.P (1958) NRNLR 3, Danbaba v State (2000) 14 NWLR (Pt.687) 396, Ajudua v FRN (2005) All FWLR (Pt. 246) 1274, Nnogu v State (2002) FWLR (Pt. 103) 482, Eyu v State (1988) 2 NWLR (Pt. 78) 602, Ani v State (2001) FWLR (Pt.81) 1715.

In applications for bail pending appeal, there are additional considerations which include; the nature of the appeal, the physical or mental well-being of the appellant, the length of the sentence passed on the appellant, if the appellant is a first time offender, if the appellant had been granted bail at the course of trial and did not jump bail. See Munir v FRN (2009) All FWLR (Pt 500) 775 at 785-787, Chukwunyere v Police (1975) 5 ECSLR 44, Fawehinmi v The State (1990) 1 NWLR (Pt.127) 486, Olamolu v FRN (2009) All FWLR (Pt. 485)1800. In this particular instance however, we are concerned with bail pending the conclusion of trial. This is a hybrid situation in that the Court has overruled his no case submission which is by no means a conviction. The circumstances here are similar to the facts in Abacha v State (2002) LPELR-15 (SC), (2002) 5 NWLR (Pt. 761) 638.

There being in that case no conviction of the Applicant at the time he applied for bail to the Supreme Court. There, the Supreme Court on Pg 7-8 of the LPELR-15 (SC) per Ayoola JSC as follows: It is thus not necessary to range all over the field to consider the multifarious circumstances in which bail may be granted to an accused person. It suffices to note that the considerations that may determine the exercise of discretion to grant bail will often depend on the stage of criminal proceedings at which bail is sought. Different considerations may apply where bail is sought before conviction in the trial Court from those which may apply where bail is sought in the appellate Court after conviction. In this case, bail is sought not at the Trial Court but in an Appellate Court before conviction and not by way of Appellate review of a discretion exercised by the Court of Appeal. The Appellant/Applicant has to show and prove the special circumstance which he intends to rely upon.”

Furthermore, in my humble view, where the police could not charge or arraign the suspect in court within either the 24 hours or the 48 hours depending on the prevailing circumstances, then, the issue of applying for his bail outside 48 hours is no more valid and lawful or relevant any more. What the suspect should do in the instance is to apply for the enforcement of his fundamental rights in court of law pursuant to Section 46(1) of the Constitution. In the case of AWAL v. NDLEA (2020) LPELR-50160(CA), the court held thus “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.”  What the police should therefore do in case there is likelihood of difficulty in charging the suspect to court within reasonable time is to seek and obtain a remand order of court. On this submission, there is now a deviation from the past mode of this remand order. It is now the true position of law (especially, as applicable to the Federal Offences and the Federal Capital Territory, Abuja, criminal law, and same provisions have been adopted by other States that have adopted the Administration of Criminal Justice Act, 2015, e.g. Lagos State, etc. within the State’s criminal law(s)) that where the alleged offence relates to offence which a Magistrate does not have the jurisdiction to try (e.g. drugs related offences, homicide, etc.), then, such an application for a remand order must be made to a High Court which is within the radius of the kilometers as contemplated by the Constitution and notwithstanding that the law in my humble view, is no more that a magistrate’s order to detain for a number of days (limited days and not inordinate detention) can be sought and obtained (i.e. where the magistrate does not have the jurisdiction to try such an offence), the purpose of the application to the High Court court is for remand order and not for trial).

The position emphatically to be stated, is that a Magistrate can only grant a remand order over offence that it has the jurisdiction to try, else, if the Magistrate does not have the jurisdiction and or power to try such an alleged offence, then, a High Court within the radius of the kilometer is the alternative to grant a remand order to the security or law enforcement agency of government to detain the suspect in either the custody of the security or law enforcement agency’s custody or the prison custody as may be allowed and ordered by the court for a number of days (limited days and not inordinate detention).

The purpose of the application to the magistrate court or the High Court as the case might be (as said above) is for remand order and not for trial. Necessary charge can be filed appropriately for the trial to commence before the appropriate court officially assigned by the Head of the court to try the suspect/accused person). I wish to make some clarifications about ‘holding charge’ and having regards to the decision of the Supreme Court of Nigeria in the case of Lufadeju v Johnson (2007)8 NWLR (pt. 1037) 535 SC. In my respectful submission, the Lufadeju’s case had laid down the mandatory procedure of remand order where a suspect has been arrested (based on the Criminal Procedures Law in force in Lagos State as at then). See: page 566, paras. A-D, where Akintan J.S.C. held as thus ‘It is necessary to state that section 236(3) of the Criminal Procedure Law is aimed at ensuring judicial control of those arrested by the police on criminal allegations. The power of the police to detain a suspect is restricted by law to specific number of days. They are therefore required within the period to bring the suspect before a court for the purpose of an order for further remand, if need be. The appropriate court for such request is the Magistrate Court. The purpose of bringing the accused to the court at that stage was not for a trial. It was for an order by the court for the suspect to be remanded in custody pending the time the police would be ready to arraign the suspect before the appropriate court or tribunal which has jurisdiction to try the suspect for the indictable offence’ (Underlining is mine for emphasis). Also, Onnoghen J.S.C. also held at page 573, para. C of the Lufadeju’s case (supra) thus ‘What section 236(3) of the CPL does is to maintain a balance between the two by doing away with the tendency of arbitrary and near indefinite police detention of suspects without order of court’. Respectfully, in my humble view, the Lufadeju’s case (among other judicial precedents) abolish the issue of ‘holding charge’ of a suspect or an accused by the security or law enforcement agencies of government especially in respect to ‘arbitrary arrest or detention’ to ‘a detention for a number of days’. Furthermore, how ‘holding charge’ works or its procedures were explained in the case of EKUMA v. STATE (2018) LPELR-44633(CA) where the Court held thus ‘Usually, when a holding charge is laid against an accused person at the Magistrate Court, it is to enable the law enforcement agency complete their investigation and refer the case to the Director of Public Prosecution for legal advice and subsequent prosecution by the Attorney General before the Court with competent jurisdiction where the need arises.’. Also, ‘holding charge’ was explained in the case of OGUJI v. DIVISIONAL POLICE OFFICER C/O OJO POLICE STATION, OJO, LAGOS STATE & ORS, where the court had to decide as to ‘Whether a holding charge is known to Nigerian law’ thus “I will only chip in a few words in respect of the term Holding Charge. The phraseology of “Holding Charge” is alien to the Nigerian Law. It is unconstitutional. The police only rush to the Court that has no jurisdiction to try the alleged offence for the purpose of remanding a suspect/Accused with a view to allowing them buy time to continue with their purported investigation – see the cases of – BOLA KALE VS. THE STATE (2006) 11 NWLR (PT. 962) 507 AT 765, OHIZE VS. COP (2014) LPELR – 23012 CA; per Akomolafe Wilson, JCA where he emphasized the sanctity of a citizens personal liberty as follows: “The Constitutional right of personal liberty of a person is sacrosanct even for an accused person”. – See also SHAGARI VS. COP (2007) at 298 paras C – G, G – H. – ONAGORUWA VS. THE STATE (1993) 7 NWLR (PT.303) 49 Justice Niki Tobi, JCA (as he then was) held that: “It is an elementary, but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute which is a forerunner or precursor to the Charge decision it must have at its disposal all the evidence to support the charge. In good number of cases the police in this country rush to Court on what they generally refer to as a holding charge even before they conduct investigations.” To further buttress the point on holding charge and its being unknown to Nigerian Criminal Law, the court went further to expatiate in the case of OGUJI’s case (supra) thus while considering the ‘principles of law regarding remand proceedings in a Magistrate Court and a holding charge; whether an accused person can be arraigned and tried on a holding charge’ “Now, the Appellant was not arraigned before the Magistrates Court. He was brought before the Magistrates Court on a remand proceedings instituted pursuant to Section 78 of the Criminal Procedure Law of Lagos State, which was applicable at the time. By the said Section 78 (b) of the Criminal Procedure Law, proceedings may be instituted in a Magistrates Court by bringing a person without warrant before the Court upon a charge contained in a Charge Sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed. The Charge Sheet is signed by the police officer in charge of the case. See LUFADEJU vs. JOHNSON (2007) LPELR (1795) 1 at 41-42. It seems to me that the Charge in the instance of remand proceedings under Section 78 (b) of the Criminal Procedure Law is for the purpose of the exercise of the jurisdiction of the Magistrate to remand the suspect in custody pursuant to the provisions of Section 236 (3) of the Criminal Procedure Law. Such a Charge is what has been referred to as a “holding Charge”, since invariably the Magistrates Court which makes the remand order does not have the jurisdiction to try the offence stated in such a Charge. In the circumstances of this matter, the Magistrates Court did not have the jurisdiction to try the offence of armed robbery which was the charge against the Appellant: LUFADEJU vs. JOHNSON (supra) at 16-17. This makes it clear that the Charge was only for the purposes of the remand proceedings and was not for any arraignment and trial of the Appellant. This is made abundantly clear by the fact that upon making the remand order, the Magistrate ordered for the case file to be sent to the DPP for advice. (See page 23 of the Records). In LUFADEJU vs. JOHNSON (supra) at 28, the apex Court held: “What is remand? It means to send to prison or send back to prison from a Court of law to be tried later after further inquiries have been made…” Section 236 (3) of the Criminal Procedure Law is aimed at having a suspect lawfully detained and remanded in custody pending when the Police would be ready to arraign the suspect before the appropriate Court with jurisdiction to try the suspect. See LUFADEJU vs. JOHNSON (supra) at 33-34. So the Charge which was for purposes of accomplishing a remand, pending when advice would be received from the DPP on whether in fact an offence is disclosed, or pending when there can be a Charge on which a suspect will be arraigned; cannot be said to be subsisting since the Appellant cannot be arraigned on it before the Magistrates Court and no other formal Charge had been preferred on which the Appellant can be arraigned before the appropriate Court with jurisdiction to try the offence of armed robbery. The matter does not end there. I have already stated that such a Charge on which the remand of a suspect by a Magistrates Court is secured under section 236 (3) of the Criminal Procedure Law is known in the Police circles as a holding Charge. However, it has been held that a holding Charge is unknown to Nigerian Criminal Law: ANAEKWE vs. C.O.P. (1996) 3 NWLR (PT 436) 320 at 332, ENWERE vs. C.O.P. (1993) 6 NWLR (PT 299) 333 at 341 and JIMOH vs. C.O.P. (2004) LPELR (11262) 1 at 10. On the state of the law, since a holding Charge is unknown to Nigerian Criminal Law, it cannot be a Charge subsisting or hanging over the neck of the Appellant. The Charge before the Magistrates Court for the purpose of remanding the Appellant in prison custody is moribund and cannot be said to be subsisting and hanging over the neck of the Appellant since the Magistrates Court does not have jurisdiction to try the offence of armed robbery and no other Charge had been preferred before an appropriate Court with jurisdiction. See ANAEKWE vs. C.O.P. (supra) at 332.”.

In my humble submission, what the Lufadeju’s case too decided based on the law of Lagos State that was applicable as at the time (which is no more the position of law partly i.e. not to the fact that the Lufadeju’s case has no relevance in our law any more) where it stated was to the effect that ‘the appropriate court for such request is the Magistrate Court. The purpose of bringing the accused to the court at that stage was not for a trial. It was for an order by the court for the suspect to be remanded in custody pending the time the police would be ready to arraign the suspect before the appropriate court or tribunal which has jurisdiction to try the suspect for the indictable offence’.   The law now is as stated in Section 293 of the ACJA (as applicable to FCT-Abuja and Federal Offences (and those States that have adopted the ACJA)), which provides for ‘remand order’ of court thus ‘293. (1) A suspect arrested for an offence which a court has no jurisdiction to try shall within a reasonable time of arrest be brought before a High 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.’.

 Furthermore, Section 30 of ACJA provides thus ‘(1) Where a suspect has been taken into police custody without a warrant for an offence, other than an offence punishable with death, an officer in charge of a police station shall inquire into the case and release the suspect arrested on bail subject to subsection (2) of this section, and if it will not be practicable to bring the suspect before a court having jurisdiction with respect to the offence alleged, within twenty-four hours after the arrest. (2) The officer in charge of a police station shall release the suspect on bail on his entering into a recognizance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognizance’. Section 158 of the ACJA is also humbly referred to. Section 8(3) and (4) of the ACJA also saddles the Respondent to perform the following duties as contained therein which the Respondent has failed and or refused and or neglected to carry out thus ‘(3) A suspect shall be brought before the court as prescribed by this Act or any other law or otherwise released conditionally or unconditionally. (4) The arraignment and trial of a suspect for a crime shall be in accordance with the provisions of this Act unless otherwise stated in this Act.’. Furthermore, Sections: 1(1) and (2), 2 and 3 of the ACJA of the ACJA provides thus ‘1.(1)The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes 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.  (2) The courts, law enforcement agencies and other agencies of criminal justice administration shall ensure compliance with the provisions of this Act for the realization of its purposes.’. And by section 2(1) of the ACJA, it provides thus 2. (1) Without prejudice to section 86 of this Act, the provisions of this Act shall apply to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja.’. Also, section 3 of the ACJA provides thus ‘3.A suspect or a defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or otherwise dealt with according to the provisions of this Act, except otherwise provided in this Act’.

Therefore, in my humbler view, any further detention of the suspect in custody beyond the reasonable time without granting (and not just offering) bail to the suspect or without a remand order of court of law permitting such longer detention beyond reasonable time is unconstitutional and the suspect is thereby entitled to a judicial relief or remedy to secure and enforce his right to personal liberty, freedom of movement, etc. (as the case might be). Also, I said earlier that what the law requires the police to do on bail is to grant the suspect bail and not just to offer him (offering the suspect bail presupposes ‘informing the suspect of his bail’ but not necessarily ‘granting him the bail’ on a liberal bond! Offering bail to the suspect does not absolve the police from liability of violation of the fundamental rights of the suspect. In my humble view, the ‘onus’ (or proof of evidence) that bail was granted to the suspect in custody in case of the police bail is on the police and not on the suspect (or Applicant to the fundamental rights enforcement suit), which must be proved documentarily. The bail must be granted to the suspect (since such bail means that as soon as the suspect fulfils the bail conditions, he is temporarily free to be released from custody or cell in accordance with his not jumping bail as at when required to present himself at the police station or the office of the police or to appear in court from his home (in any case) to justify any long detention in custody or cell beyond reasonable time. This bail will also assist in decongesting the police’s cell and reduce the welfare costs implications on the government in caring for suspects kept in the police’s cell. In the case of Awal V NDLEA (supra), the court held ‘on 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’ thus “…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.” (Underlining is mine for emphasis).

Furthermore, the Court in the Awal’s case (supra) further held as follows on ‘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.”. Also, in the case of FIRST BANK OF NIGERIA PLC. & ORS. v. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2013) LPELR-20152(CA), the Court of Appeal of Nigeria held as follows: “It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt.193] 593.” Per AKOMOLAFE-WILSON, J.C.A (P. 59, paras. C-F).’ Furthermore, it is important for me to emphasise the importance of the police complying with the laid down procedures guiding the arrest or detention of a suspect arrested and kept in its custody. The court has held thus in the case of ADHEKEGBA V. HON. MIN. OF DEFENCE (2013) LPELR-20154 (CA) where it was held thus “It is an established principle of law that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. Thus, once there is a condition precedent to be adopted before an aggrieved party does an act, if that condition precedent is not satisfied, the act carried out will be regarded as invalid. Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do such a thing renders the subsequent act void.”. I also humbly rely on the case of SARKIN FULANI MALISA v. AISHATU RUWA TUFARA (2017) LPELR-43919(CA) (Per MUKHTAR, J.C.A. (Pp. 4-8, Paras. D-F)). I humbly further refer to the case of the Court of Appeal of Nigeria held in the case of AQUA VS. ARCHIBONG (2012) LPELR 9293(CA) per Muhammed Lawal Garba JCA, that: “Every citizen of Nigeria has a constitutionally guaranteed right to his personal liberty which cannot be interfered with or violated except as may be permitted by the Constitution itself or a law made pursuant thereto……….the essence of the above provisions is that persons, officers or agents of the State who in the ordinary cause or discharge of their official duties or functions for instance the police and other security agencies in the country, may be involved in the deprivation or curtailment of a citizen’s right to personal liberty, must strictly observe and comply with the provisions of Subsection (1) – (5) of the same Constitution”.

From my experience as a lawyer and as a human rights activist, I am aware that some criminal procedures for instance, the Administration of Criminal Justice Act, 2015-herein referred to as ACJA- in section 32 of the Act provides that application to produce suspect in court can be made to court, the most effective step to be taken remains the procedures under the Fundamental Rights Enforcement Procedure Rules, 2009-herien after referred to as the FREPR- which would even compensate the suspect with monetary compensation and apology in addition to his order for release or production in court for his bail or his remand in prison out of the cell of the police. I shall refer to the case of Okonkwo v Ogbogu (1996) 5 NWLR (pt. 449) 422, at p. 435, paras. F-G, the Supreme Court of Nigeria held that ‘any trespass to the person of another, however slight gives a right of action to recover at any rate nominal damages. Even where there is no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages is given to vindicate the Plaintiff’s right even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damage. I shall also humbly refer to the case of A.G. LAGOS STATE v. KEITA (2016) LPELR-40163(CA) where the Honourable Court held thus “It is trite that by virtue of Section 35 (6) of the 1999 Constitution, any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person responsible for the incarceration; and by dint of the said section, a person who has established that he was unlawfully arrested and/or detained need not specifically ask for compensation before he is awarded one. The granting of compensation is automatic in such circumstances vide Jim-Jaja v. C.O.P. and Ors (2013) 6 NWLR (pt. 1350) 255.” Per IKYEGH, J.C.A. (P. 11, Paras. B-E).’. I also refer to the case of IGP & ANOR v. AGBINONE & ORS (2019) (supra).

Finally, it is my humble submission that the Lufadeju’s case (supra) is no more an authority to mandate to the support that a Magistrate that has no jurisdiction to try an offence can be approached to seek and obtain a remand order of court to detain the suspect for a number of days rather, the law now on the court with jurisdiction for the purpose of a remand order of court is as laid down in section 293 of the ACJA (supra). Also, it is clear that ‘holding charge’ is unknown to the Nigerian Criminal Laws and same being unconstitutional.

 

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