Appeal Court

In the Court of Appeal Holden at Lagos Thursday, March 24, 2016 Suit number: CA/L/477/2012 Between ATTORNEY GENERAL OF LAGOS STATE – Appellant and MAMMAN KEITA – Respondent JOSEPH SHAGBAOR IKYEGH, J.C.A. (delivering the leading judgment)

The appeal is against part of the decision of the High Court of Justice of Lagos State (the court below) awarding N7 million against the appellant and the Commissioner of Police, jointly and severally, for the infringement of the respondents fundamental right to personal liberty.

Put in a nutshell, the facts that led to the appeal emerged in this way. The respondent, a ram merchant, from Niger Republic (a Nigerien) came to Lagos to sell rams. Some street urchins/hoodlums attacked him with broken bottles and extorted money from him. Some of them escaped.

One of the attackers was, however, unable to escape with the others. He drew a knife and stabbed the respondent who struggled and overpowered him and stabbed him with the knife. It was at that stage that some policemen came to the scene. The police arrested the respondent. The attacker was taken to a hospital. He died at the hospital of the knife injury inflicted on him by the respondent. The police detained the respondent before he was taken to a magistrate’s court for the offence of manslaughter. The respondent was remanded in prison custody by the magistrate. He stayed on remand for over 10 years without trial and/or awaiting his trial.

Fundamental rights proceedings were brought against the Commissioner of Police as the 1st respondent and the appellant as the 2nd respondent at the court below. The Commissioner of Police and the appellant did not file affidavit evidence countering the case of the respondent that he was detained in prison without trial for over 10 years for the offence of manslaughter. The court below accepted the one-way affidavit evidence of the respondent upon which it awarded N7 million compensation to the respondent against the appellant and the Commissioner of Police, jointly and severally. The N7 million award was enforced by garnishee proceedings against only the appellant; hence the present appeal by the appellant alone.

ISSUE: Whether the appellant is liable for the continued remand of the respondent in prison for over 10 years without trial.

In my considered opinion, the appeal has to do with the legal and constitutional consequences of the failure of the person or authority responsible for operating the remand proceedings regime in a magistrate court to intervene and put an end to the remand in prison custody of the respondent by the magistrate court which had run more than 10 years.

Of course the right to sue for redress of a violated fundamental right in the circumstances presented by this case was restated by the Supreme Court in the fairly recent case of Mohammed v. State (2015) 10 NWLR (pt. 1468) 496 at 512 per the lead judgment of Aka’ahs, J.S.C., thus-

“What the constitution provides under Section 35 (4) (a) is to arraign him within two months. The appellant’s remedy for the long incarceration without trial is the enforcement of his fundamental right to personal liberty. In the instant case the appellant was finally tried and convicted and would be entitled to enforce the right if his appeal succeeds. (My emphasis).

The court below therefore looked aright, in my modest view, at the angle that the continued remand of the respondent in prison custody for over 10 years without trial infringed his fundamental right to personal liberty.

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.

I agree with both learned counsel that the constitutional and statutory provisions under discussion in the appeal have to be given their literal, plain and ordinary construction or meaning without resorting to external or internal aid. It is the duty of the court to interpret the words of the law maker as used vide A.-G., Federation v. A.-G., Lagos State (2013) 16 NWLR (pt.1380) 249.

Further, I adhere to the mischief rule which enjoins the court to trace the mischief or defect which the old law did not meet and the remedy the enactment is intended to cure and agree with the respondent that the mischief the ACJL 2011 is out to remedy is the unlawful and unconstitutional incarceration of accused persons by placing the remand proceedings under the watchful eyes and surveillance of the appellant as the Chief Law Officer of Lagos State.

In my respectful opinion, procedural laws of the sort under consideration in the appeal are enacted for the benefit of a defendant vide Okegbu v. The State (1979) 12 NSCC 151 at 174 per the judgment of Idigbe J.S.C., (of blessed memory) where his lordship restated that such procedural laws are “usually construed as imperative; and that is the cardinal principle of interpretation of statutes especially where procedural provisions are inserted for the protection of accused persons.

So I will give compulsory interpretation or meaning to the said provisions of the procedural law.

It follows that the phrase “may” in Section 74(3) of ACJL 2011 means “shall”, “must” or “mandatory” “obligatory” thus placing an imperative duty on the appellant to request for the duplicate case files relating to any offence for legal advice from the subordinates of the commissioner of police for legal advice by the DPP’s office under the appellant vide Edewor v. Uwegba and Ors. (1987) 1 NWLR (pt.50) 313 at 339 thus?

Most of the cases in which the word “may” have a mandatory meaning relate to cases in which they are used in penal statutes.

The court below held in its judgment that –

A read through the provisions of the Administration of Criminal Justice Law of Lagos State 2007 shows that remand proceedings as provided for under Section 268 to 270 of the Law constitutes part of the prosecutorial process. This is particularly more so as Section 72 of the law empowers the attorney general to intervene in and discontinue remand proceedings against an accused person. The Attorney General of Lagos State is thus accountable for all matters and issues relating to remand proceedings. It is a ministerial responsibility owed by the Attorney general of the state and as such is a strict liability issue and is not dependent on his knowledge of the proceedings. These provisions impose on the second respondent a heavy responsibility which includes taking concrete steps to make itself aware of all criminal prosecutions commenced in all the courts in Lagos State either by way of a formal charge or by way of remand proceedings and whether they were commenced by its office or by other persons authorised to do so and to monitor such proceedings. The second respondent must also have an up to date record of all the inmates in prisons in Lagos State, the reasons for their being in prison and for how long they had been in prison and constantly monitor the stay of these persons in prison. The second respondent in this matter cannot thus be exonerated from the aftermath of the unlawful and illegal remand of the applicant in prison without trial in the present case.”

The argument by the appellant that the police did not send the duplicate case file or diary to the office of the DPP for legal advice on the pending case absolved the appellant from responsibility appears attractive. Because there is no indication in the record that the Commissioner of Police or the person (s) acting under him forwarded the case diary or duplicate case file to the appellant for legal advice. It is also not indicated in the record that the appellant was in any way aware of the remand proceedings at the material time. Nor did the remanding magistrate inform the appellant through the DPP of the remand proceedings as required by Section 264(6) of ACJL 2011. It follows logically and factually that the appellant was not cognizant of the pending remand proceedings.

The appellant relied on the doctrine of impossibility of performance expressed in the Latin Maxim – lex non cogit ad impossibilia. Maxwell on The Interpretation of Statutes (Twelfth Edition) by Langan relying on the English cases of R. v. Leicestershire Justices (1850) 15 Q. B. 88, Mayer v. Harding (1867) L. R. 2 Q. B. 410, Harding v. Price (1948) 1 K. B. 695 and Nichols v. Hall (1873) L. R. and C. P. 322, illustrates the said principle of interpretation of statutes aptly thus; IMPOSSIBILITY OF COMPLIANCE Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim, lex non cogit ad impossibilla. They are understood as dispensing with the performance of what is prescribed when performance of it is impossible.

Thus, where an act provided that an appellant should send notice to the respondent of his having entered into a recognisance, in default of which the appeal should not be allowed, it was held that the death of the respondent was not fatal to the appeal, but dispensed with the service.

If a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence, but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed? If the duty be to report, he cannot report something of which he has no knowledge. Any other view would lead to calling on a man to do the impossible.

I hold in the same vein that unless the appellant knew himself or through his subordinate that the respondent had been on remand in prison custody by order of a magistrate when he was not supposed to be on remand at the material time, the appellant could not be expected to act on something of which he had no knowledge.

I think in the circumstances of the case where the appellant never knew of the pending remand proceedings, it was expecting too much statutory burden on the appellant to impute constructive knowledge of the pending remand proceedings on the appellant. Section 74(3) of ACJL 2011 would not serve as the platform to impute constructive knowledge of the remand proceedings on the appellant on the footing that it is intended to empower the appellant, regardless of the nature of the offence, whether triable on information as stated in Section 72(1) of ACJL 2011, or not triable on information, to unlimited powers to call for the duplicate case file for legal advice; and, which ministerial power is, in my considered opinion, expected to be exercised only in cases the appellant is aware of the remand proceedings; as the said ministerial power is not subject to executive control and makes only the appellant responsible for its exertion vide Abacha v. State (2002) 11 NWLR (pt.779) 437, Comptroller of Prisons v. Adekanye (2002) 15 NWLR (pt.790) 318.

It is on the premise that I am of the modest opinion that the appellant should not have been found liable for the infringement of the respondents right to personal liberty in the circumstances of the case.

In the result I find merit in the appeal. I would allow the appeal and quash the decision of the court below as it affects the appellant only. Parties to bear their costs.

Counsel: Mrs. E. I. Alakija (DPP, Lagos State) with her, Mr. L. A. Sanusi, (A.C. Lagos State) for appellant.

Mr. A. Adetola-Kazeem for respondent

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