WHAT A SUSPECT ARRESTED ON AN ALLEGATION OF COMMITTING AN OFFENCE OR HIS LAWYER OR HIS RELATIVES SHOULD DO UPON SUCH ARREST
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?! This paper is aimed at giving some pieces of advice to a suspect arrested on an allegation of committing an offence or his lawyer or his relatives on what they should do in the instance of such arrest, hence, this topic.
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 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 and even a magistrate’s order to detain for a number of days (limited days and not inordinate detention) can be sought and obtained (even where the magistrate does not have the jurisdiction to try such an offence, the purpose of the application to the magistrate court is for remand order and not for trial). The Supreme Court of Nigeria had laid down the mandatory procedure of remand order where a suspect has been arrested in the case of Lufadeju v Johnson (2007)8 NWLR (pt. 1037) 535 SC., at 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’.
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’. I wish to humbly state that the above decision of the Supreme Court in the Lufadeju’s case (supra) is in line with the provisions of Section 293 of the ACJA. 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’. Also, section 293 of the ACJA 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.’.
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. 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).
Therefore, in my humble view, whenever a lawyer is called to appear at the police station, let us assume immediately the suspect is arrested, the next step is to negotiate or apply for his bail (and that is if still within the reasonable time). But where the suspect is granted bail but could not fulfil the bail conditions or is refused bail or police could not secure a remand order of court of law to further detain him, the police must charge the suspect to court and any further detention therefrom becomes unlawful, illegal, null and void and unconstitutional and amounts to a violation of the suspect’s fundamental rights. Therefore, in this instance, the lawyer whose legal services have been engaged for the purpose or the suspect or the suspect’s relative should apply to a High Court in that State of detention to enforce the suspect’s fundamental rights. Even a suspect arrested on suspicion of committing capital offence is still entitled to the enforcement of his fundamental rights. In the case of Ogugu v The State (1994) NWLR (pt. 366) 1 at pp. 26 & 27, the Supreme Court of Nigeria held that a person convicted of a capital offence and sentenced to death is still entitled to the protection of his fundamental rights to the dignity of human person.
Therefore, where a suspect has been in custody of police beyond the reasonable time, the lawyer or the suspect or the suspect’s relative is to just approach a court of law under the FREPR to seek relief or judicial remedy. What necessitated this article is the fact that I have seen suspects and or their relatives and or lawyers engaged by the suspect or his relative still discussing about ‘administrative bail’ when in reality, the suspect has been detained in custody for periods beyond reasonable time. I hope this paper would guide the readers through in ensuring that the rule of law is promoted in regard to arrest or detention of a suspect in police’s custody. Also, my reference to ‘police’ in this paper is a reference to all security and law enforcement agencies of government. Also, ACJA has been used as a reference Act for ease of reference.
Permit me to make some emphases on the need for the police to passionately protect the fundamental rights of suspects in their custody and not deliberately or negligently violate same, in the interest of justice to prevail and for a democratic civil society. I wish to humbly refer to the case of Isenalumhe v Amadi (2001) 1 CHR p. 459. Section 34 (4) of the Constitution is referred to in support of my submission and argument which held thus ‘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 what amounts to a reasonable time has been defined by subsection (5) of the section to mean (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 the circumstance may be considered by the court to be reasonable’. In the case of Isenalumhe v Amadi (supra), the Supreme Court of Nigeria held thus ‘The police have the responsibility to enhance the quality of the liberty and dignity of the Federal Republic of Nigeria as guaranteed by the constitution. Where they fail in this task, their failure must not be allowed to work to the detriment of law abiding citizens. Their failure must be checked timeously to enhance the principles and ideals upon which a free society is built’. Also, the Supreme Court of Nigeria in the case of Odogwu v A.G. Federation (1999) 6 NWLR (PT. 455) 508, at page 522, paras. E-F, defined fundamental human rights thus ‘A fundamental human right is a right guaranteed in the Nigerian constitution and it is a right which every person is entitled to, when he is not subject to the disabilities enumerated in the constitution to be enjoyed by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the constitution’. Lastly, the case of Onyirioha v I.G.P. (2009) 3 NWLR (Pt. 1128) 342 where the Court inter alia held that ‘By virtue of the provision of section 35 (1) and 36 (5) (6) of the 1999 Constitution, every citizen of Nigeria is entitled to his personal liberty and no person shall be deprived of his liberty except as stipulated by the Constitution or Statute. A Nigerian citizen is entitled to his God’s given natural right free from incarceration save in accordance with all the fundamental laws of the land, that is, Constitution of the Federal Republic of Nigeria and other relevant legislations which are not inconsistent with the former.’ ‘…no person shall be deprived of such liberty save for the purpose of bringing him before a Court in execution with former’.
Finally, it is my great hope and belief that wise counsel will always prevail in the protection of the constitutional rights of suspects arrested or detained in police custody. Also, our laws in this protection of human rights protects all citizens across the federation of Nigeria and not limited by territorial laws.
Email: hameed_ajibola@yahoo.com
