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Cases On Human Rights

  • Volume 1

    Fundamental Rights:
    - Right to personal liberty and freedom of movement – Applicant arrested and detained for 5 days without – Effect on right to personal liberty and freedom of movement – Whether need for further investigation a justification for detention beyond constitutionally mandated time to arraign accused person before court of law - Ledum Mitee v. Attorney-General of the Federation

  • LEDUM MITEE
    v.

    ATTORNEY-GENERAL OF THE FEDERATION
    INSPECTOR GENERAL OF POLICE
    COMMISSIONER OF POLICE, RIVERS STATE
    ATTORNEY-GENERAL, RIVERS STATE

    FEDERAL HIGH COURT, NIGERIA PORT HARCOURT DIVISION

    FHC/PH/CP/67/2000
    A.Bello J.
    Tuesday, October 19 2002

     

    FUNDAMENTAL RIGHTS – Right to personal liberty and freedom of movement – Applicant arrested and detained for 5 days without trial– Effect on right to personal liberty and freedom of movement – Whether need for further investigation a justification for detention beyond constitutionally mandated time to arraign accused person before court of law

    FUNDAMENTAL RIGHTS - Dignity of Person – Whether the arrest and detention of the applicant for five days without trial an infraction of his right to dignity

    FUNDAMENTAL RIGHTS ENFORCEMENT ACTION – Remedies for violation of fundamental rights – Claim for special and exemplary damages – Need to adduce specific evidence of damages suffered or losses incurred to substantiate a claim for special damages – Need to prove malice in a claim for exemplary damages.

    Issues for Determination:
    1. Whether the detention of the Applicant for five days without trial or arraignment before a court was lawful, having regard to the stated need for needed time for further investigation.

    Facts:
    The Applicant is a legal practitioner and President of the Movement for the Survival of the Ogoni People (MOSOP). He was arrested by the police acting on complaints that he (the applicant) instructed some loyalists of the movement to burn down the complainant's house. He was detained for five days without trial. On release, he brought an action under the Fundamental Rights (Enforcement Procedure) Rules seeking an order declaring that the detention infringed his constitutional rights to personal liberty, freedom of movement and the dignity of his person. He also prayed for special, general and exemplary damages.

    Held:
    Save as provided under Section 31(1)(c) of the 1999 Constitution, no person may be lawfully deprived of his personal liberty unless it is for the purpose of bringing him before a court in execution of an order of court, or upon reasonable suspicion of his having committed a crime, or to such extent as may be reasonably necessary to prevent his commission of a crime. Even then, the person arrested must be brought before a court of law within a reasonable time as defined by the Constitution. In the circumstances if this case, the detention of the applicant by the respondents for five days is unreasonable and in breach of the clear provisions of sections 35(4) & (5) of the 1999 Constitution.

    Details of Principles in the Judgment:
    1. Whether the Court may enlarge time within which an arrested or detained person may be arraigned
    Section 35(4) of the 1999 Constitution requires that any person arrested or detained must be arraigned before a court of competent jurisdiction within a reasonable time. What constitutes a reasonable time is defined in subsection 5 of the same section. The subsection sets up different rules for determining the reasonableness of the length of time before a person is arraigned. The first rule, which requires that a person arrested in relation to the commission of an offence be arraigned before a court of law not later than a period of one day, applies where a court of law exists within a radius of 40 kilometers. This rule is strict and permits no extension. The other rule, which applies where no court of law exists within a radius of 40 kilometers, requires the accused person to be arraigned within two days of his arrest, or such longer period as the court may consider reasonable. While the court enjoys some discretion in the later, it does not in the former. It must be noted that non-conclusion of investigation will not justify failure to arraign an accused person before a court of law within the constitutionally prescribed period. [page 471 para H, page 472 paras A-D]

    On the Record: Per Bello J.
    The averment of the 3rd and 4th Respondents which tended to justify the detention of the Applicant from 13th April 2000 to 18th April 2000 when they say the detention spans through the weekend and in view of the need for further investigation is irrelevant …. . [The] issue of further investigation does not preclude the police from charging the Applicant to court or releasing him on bail pending his arraignment. … The decision of the Court of Appeal in Eda v. COP, Bendel is authority for the statement that the court cannot extend the period allowed by the Constitution for the detention of a person under Section 35(1)(c) of the 1999 Constitution. [That] court in interpreting the provisions of Section 32 of the 1979 Constitution which are in pari materia with the provisions of Section 35 [of the 1999 Constitution], laid down the principles inter alia:-
    1. That when a person is arrested or detained by the Police in connection with an allegation [of] reasonable suspicion [of the commission] of a crime and they are actively pursuing investigations into the matter, the duty of the police is in [an] appropriate case to offer bail to the suspect and for bringing him [before] the court of law within one (1) day or two (2) days as the case may be no matter under whatever sections of the Criminal Procedure Act or Police Act 1967 the Police may purport to be acting.

    2. That whether the police grant a person under arrest or detention bail or not, in appropriate case, it is their duty to bring any person in their custody before a court within one (1) day or two (2) days as the case may be in compliance with the relevant constitutional provision [page 472 para F to page 473 para E]

    2. A claim for Special and Exemplary Damages must be specifically proved
    The applicant adduces in support of his claim for special damages, exhibit D, as evidence that he traveled to London. The exhibit is not evidence that the reason the applicant undertook the journey was to receive medical treatment for ailments he suffered while under custody. To prove his claim for special damages, he ought also have adduced evidence of the hospital he visited, the doctor who treated him, and the treatment he received, and for what ailment. A medical report would have been conclusive evidence. In the absence of that, the court cannot find for the applicant. Same for his claim for exemplary damages. The Applicant has not proved that the Respondents in detaining the Applicant were motivated by malice as the Applicant alleged. From available facts, the police acted on a genuine complaint by a member of the Applicant's community. [page 473 para H to page 474 para D]

    Nigerian Cases referred to in the Judgment:
    1. Eda v. COP Bendel State 1982 3 NCLR P. 219 at P. 226 Paras. 5-6
    2. Folade v. A. G Lagos State 1981 2 NCLR P. 771 at 773. Paras. 7-8,
    3. A.G. Federation v. Ajayi 2000 1 WRN p. 105 at p.122 Paras 5-15
    4. Shugaba v Minister of Internal Affairs 1981 2 NCLR P. 459 at 460 Para.4

    Representation:
    1. O. Awari for the Applicant
    2. No representation for the Respondents

    Bello J. (Delivering the Judgment): Pursuant to the leave granted to the Applicant to apply for the enforcement of his rights guaranteed by the 1999 Constitution of the Federal Republic of Nigeria, the Applicant brought this motion on notice dated 18th day under order 1 Rules 3(1) [and] order 4 rules (1) and (2) of the Fundamental Rights (Enforcement Procedure) Rules 1979.

    The reliefs sought as contained in the Statement accompanying the application are:-
    a. A declaration that the detention of the Applicant by the Respondents at the S.I.I.B Port Harcourt from 13/4/2000 to 18/4/2000 without trial is unconstitutional, unlawful, illegal, null and void.

    b. The sum of N71,450.00 (Seventy One Thousand Four Hundred and Fifty Naira) being special damages for journey abroad, incurred by the Applicant when he travelled to London because of infections and diseases he suffered as a result of the detention.
    c. The sum of N30,000,000.00 (Thirty Million Naira) as damages for unlawful detention of the Applicant.

    d. The sum of N50,000.000.00 (Fifty Million Naira) as exemplary damages.

    e. Public apology by the Respondents for the illegal detention of the Applicant.

    The grounds upon which the relief's are sought are:

    (i) The detention of the Applicant in the manner complained of is a violation of his right to personal liberty guaranteed by S. 35 of the Constitution of the Federal Republic of Nigeria 1999 and Article 6 of the African Charter on Human and Peoples' Rights contained in the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap. 10 LFN 1990.

    (ii) The restriction of the movement of the Applicant is violation of his right to freedom of movement under section 41 of the Constitution of the Federal Republic of Nigeria 1999 and Article 12 of the aforesaid African Charter on Human and Peoples' Rights.
    (iii) The detention of the Applicant in the manner complained of is a violation of his right to dignity of person guaranteed by section 34 of the Constitution of the Federal Republic of Nigeria 1999 and Article 5 of the African Charter on Human and Peoples' Rights.

    (iv) The Applicant is entitled to the protection of his fundamental rights to personal liberty, freedom of movement and dignity of his person.

    The 3rd and 4th Respondents reacted to the application by filing a counter affidavit of 18 paragraphs sworn to by one Deputy Superintendent of Police Edward Egbuka. After initial adjournments, the motion was moved on the 14th of June, 2001.

    The learned counsel to the Applicant submitted firstly that the issue to be determined by the Court is whether the Applicant has suffered any violation of his fundamental rights complained in paragraph 3 of the Statement in support of the application to enable him seek and obtain the reliefs set out in paragraph 2 of the Statement. He referred to paragraphs 4h, i, j and k of the statement and submitted further that these paragraphs show clearly the violation of the Applicant's fundamental rights and that those averments have not been denied by the Respondents but were confirmed by paragraphs 12, 13 and 14 of the Counter Affidavit wherein the Respondents tried to justify the detention of the Applicant. Counsel submitted on this, that the Respondents having admitted the detention, the Court will now proceed to determine whether the detention is lawful. The learned counsel referred to Section 35(1) (c) of the 1999 Constitution and conceded that under the section a person may be deprived of his personal liberty as provided under the section if he is reasonably suspected of having committed a criminal offence but even then such suspect must be taken before court within the period specified in subsection 4 of the section.

    Learned counsel went on to submit that, in this case, there are courts of competent jurisdiction in Port Harcourt while urging the court to take judicial notice of the fact that the distance between S. I. I. B and the High Court is not up to a kilometer and as such the court should hold that under the circumstances of this case, the Respondents ought tohave brought the Applicant to a court of competent jurisdiction within 24 hours. He urged the court to hold that the detention is unreasonable. I was referred to the case of Eda v COP Bendel State 1982 3 NCLR P. 219 at P. 226 Paras. 5-6. And also the case of Folade v A. G Lagos State 1981 2 NCLR P. 771 at 773. Paras. 7-8, which the learned Counsel said were decided under the 1979Constitution under Section 32 thereof whose provisions are in pari materia with Section 35(1) (c) and subsection 4 of the 1999 Constitution. He urged the court to give the same interpretation to Section 35(1) (c) and to hold that the detention of the Applicant is unlawful and not done in accordance with the law.

    He submitted further that the other violations complained of are contained in Sections 41 and 34 of the 1999 Constitution which boarders on restriction of movement of the Applicant and the violation of the dignity of his person. These allegations, he said are contained in paragraphs 4H-K of the Statement and have not been denied by the Respondents and as such the court should hold that these violations are proved since the averments have not been controverted.

    On the issue of damages being claimed by the Applicant the learned counsel referred to paragraph 4K and 4L of the Statement in support of the application and exhibit D annexed to paragraph 5 of the Verifying Affidavit and submitted that the failure of the Respondents to allow the Applicant access to his medication during the period of his detention worsened his case of hypertension and glaucoma for which he was forced to travel to London as evidenced by exhibit D, the return ticket for his trip to London to consult with his doctor. That exhibit D shows an expenditure by the Applicant to the tune of N71,450.00. The learned counsel then drew attention to the fact that the Applicant also claims exemplary damages and the court should consider the following factors as a guide to the grant of this head of damage:

    1. The status of the Applicant as the President of Movement of the Survival of the Ogoni People Worldwide and a distinguished legal practitioner.

    2. The undeserved embarrassment meted out to the Applicant by the Respondents.
    was referred to the case of A. G. Federation v Ajayi 2000 1 WRN p. 105 at p.122 Paras 5-15.

    Referring to paragraph 7 of the counter affidavit and exhibit A attached, the learned counsel submitted that the detention of the Applicant was as a result of a complaint from a carpenter who claimed that the Applicant instructed some MOSOP loyalists to burn down his house and based on this complaint the Applicant was detained for 5 days. But on the other hand, the complaint of the Applicant to the Respondents that his own house was also burnt down and he named some suspects in exhibit B, was not acted upon and as such nobody was ever arrested or interrogated in connection with the burning of the Applicant's house. The inference to be drawn he said, is that the police were acting with malice or with partiality and that where the police or any agent of the Federal Government of Nigeria acts with malice against the citizen, that citizen will be entitled to exemplary damages. I was referred to the case of A. G. Federation v Ajayi supra paras. 5-25 at P. 122. And the case of Shugaba v Minister of Internal Affairs 1981 2 NCLR P. 459 at 460 Para.4 and section 35 (6) of the 1999 Constitution. Counsel then urged the court to resolve the issue in the affirmative and that the Applicant is entitled to the reliefs set out in paragraph 2 of the Statement in support of the motion. After the close of the submissions of the learned counsel to the Applicant, the case was adjourned for reply by the Respondents. But unfortunately the case suffered series of adjournments to enable the Respondents to reply to the arguments of the Applicant's counsel especially considering the fact that the 3rd and 4th Respondents have reacted to the motion by filing a counter affidavit and were represented by the Chief State Counsel, Ministry of Justice, Rivers State on the day the Motion was moved. On the 8th of November, 2001, the Chief State Counsel appeared and asked for further adjournment to enable him locate the counter affidavit for his reply which was granted. He never appeared again after that date for the reply at least on the three subsequent adjournments on 23rd April 2001, 19th June 2002 and 31st July 2002. In fact it was on 31st July 2002 that the court foreclosed the reply of the Respondents who were absent in court on that date.

    From the reliefs sought by the Applicant in his statement accompanying the application which have already been spelt out, it is clear that relief (a) is for a declaration that thedetention of the Applicant by the Respondents at the S. I. I. B, Port Harcourt form 13th April 2000 to 18th April 2000 without trial is unconstitutional, illegal, null and void. This relief (a) forms the basis upon which reliefs b - e are predicated. Now from the submissions of the learned counsel to the Applicant the only issues for determination by the court are – 1. Whether the detention of the Applicant for 5 days without trial/or being charged to court was lawful having regard to the factual situation of the case. 2. If the answer to the above is in the negative whether the Applicant would be entitled to reliefs b-e.

    Now the learned counsel to the Applicant did acknowledge in his submission and conceded the fact that a person may be deprived of his personal liberty as provided under section 35(1) of the 1999 Constitution and he referred to section 35(1)(c) of the said Constitution. I therefore reproduce the provisions aforesaid because they are relevant for the determination of this application.
    Section 35(1) provides:
    35-(1)Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law.

    And section 31(1) paragraph C provides:
    (C) For the purpose of bringing him before a Court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;

    From the facts of this case, it was obvious that the police acted under section 35(1) (c) of the 1999 Constitution in detaining the Applicant in view of the averments of the 3rd and 4th Respondents in their counter affidavit which state in paragraphs 13 and 14 as follows:
    13. That the 13th of April, 2000 was a Thursday and the Applicant also made his statement on that date but because of the alleged involvement of the Applicant, there was need for further investigation before releasing the Applicant on bail.

    14. That the release of the Applicant on the 18th of April, was not unreasonable having regards to the serious nature of the matter and the fact that it spans through a weekend.

    The above averments apart from confirming the fact that the Applicant was detained for 5 days as he alleged without being taken to court, they also show that the 3rd and 4th Respondents have admitted the fact of his detention at the S.I. I. B Port Harcourt which they only attempted to justify.

    Now the Constitution itself has defined what constitutes a reasonable time within which a person may be arrested and detained before he is taken to court. Section 35(4) of the 1999 Constitution provides as follows:

    4. Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time.

    Then subsection 5 provides further:

    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 kilometers, a period of one day; an
    (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.
    In subsection 5(a) the reasonable time has been fixed as one day by the Constitution itself and it does not give the court any discretion in the matter to expand the period as it does in subsection 5(b) by the use of the expression “two days or such longer period” as the court may consider to be reasonable.

    The Applicant was invited by the 3rd and 4th Respondents on 13th April 2000 and he was detained from that date till 18th April 2000. Under subsection 5(a) he should have been arraigned before a court on 14th April 2000 because I take judicial notice of the fact that there are courts of competent jurisdiction within the radius of forty kilometers from the S. I. I. B Port-Harcourt where the Applicant was detained. The averment of the 3rd and 4th Respondents which tended to justify the detention of the Applicant from 13th April 2000 to 18th April 2000 when they said the detention spans through a weekend and in view of the need for further investigation, is irrelevant for two reasons:-

    1. Conceding the fact that the detention spanned through a weekend, the next working day after Friday 15th April 2000 was Monday 17th April 2000. Why was the Applicant not taken to court on 17th April 2000.

    2. Issue of further investigation does not preclude the Police from charging the Applicant to court or releasing him on bail pending his arraignment.
    Apart from the two reasons above, the decision of the Court of Appeal in the case of Eda v the COP, Bendel State supra, cited by the Applicant's counsel is the authority for the statement that the court can not extend the period allowed by the Constitution for the detention of a suspect under section 35(1) (c) of the 1999 Constitution. The court in interpreting the provisions of section 32 of the 1979 Constitution which are in pari materia with the provisions of section 35 supra, laid down the principles inter alia:-

    1. That when a person is arrested or detained by the police in connection with an allegation of reasonable suspicion of a crime and they are actively pursuing investigation of the matter, the duty of the police is in appropriate case to offer bail to the suspect and or bringing him to court of law within one (1) day or two (2) days as the case may be no matter under whatever sections of the Criminal Procedure Act or Police Act 1967 the Police may purport to be acting.

    2. That whether the police grant a person under arrest or detention bail or not, in appropriate case, it is their duty to bring any such person in their custody before a court within one (1) day or two (2) days as the case may be in compliance with therelevant constitutional provision

    The court went further to nullify the provisions of sections 17 of CPA and 23 of the Police Act and declared them void for being inconsistent with the provisions of section 32(1) of the 1979 Constitution. It is for these reasons as well as the circumstances of this case, that I hold that the detention of the Applicant by the Respondents from 13th April 2000 to 18th April 2000 is unreasonable and was done in breach of the clear provision of section 35(4) and (5)(a) of the 1999 Constitution of the Federal Republic of Nigeria and this renders the detention unconstitutional, unlawful, null and void. I therefore grant relief (a) in favour of the Applicant.

    Now relief ‘b' is a claim of special damages to the tune of N71,450.00 for journey abroad, to London in particular incurred by the Applicant to treat infections and diseases he suffered as a result of the detention and he tendered exhibit D. While exhibit D is evidence that the Applicant travelled to London and back, it is not evidence that the Applicant travelled for medical treatment. I would have expected a meticulous person like the Applicant to adduce enough evidence to show that his journey to London was for medical treatment of infections and diseases. And that would necessitate showing the hospital he went to, the doctor he saw and the treatment he received and for what ailment and medical report covering these would have been conclusive evidence. In the absence of this evidence, I find myself unable to say that the Applicant incurred the expenditure of N71.450.00 to travel abroad for treatment of infections and diseases. So the claim for special damages has not been proved to the satisfaction of the court and same is refused.

    The same thing applies to the claim of N50 Million Naira exemplary damages. The Applicant has not proved malice on the part of the Respondents in detaining him since from the facts available the police acted on a genuine complainant by a member of the Applicant's community even if they could be accused of partiality by not investigating the Applicant's initial complaint to them. The circumstances of this case are far more different for the circumstances of the case of Shugaba v. Minister of Internal Affairs which was concerned with the deportation of a citizen from his country to a foreign country for political reasons.

    But after taking a calm view of the circumstances of this case and having declared the detention of the Applicant by the Respondents as unconstitutional, illegal, null and void, it follows that he will be entitled to compensation no matter how minimal, in line with the provisions of section 35(6) of the 1999 Constitution. In relief C the Applicant claims N30 Million Naira as compensation for his detention. But I think under the circumstances of this case the sum of N100,000.00 (One Hundred Thousand Naira) compensation is adequate since his right to personal liberty especially against unlawful detention has been vindicated. I therefore award the sum of N100,000.00 damages to the Applicant against the Respondents for his unlawful detention.