Propriety Or Otherwise Of The Police Detaining A Person Beyond The Period Allowed Under The Nigerian Constitution

By Godwin Imoke Esq.

The United Nation Declaration on Human Right 1948 clearly recognized the right to liberty of humans[1] and this is also provided for under Section 35[2]. For purposes of clarity, I shall reproduce the above cited provisions anon:

Article 3[3] provides thus:

“Everyone has the right to life, liberty and security of person.”

Section 35 (1) (c) (4) (5) and (6) [4] provides:

“ (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the followng cases and in accordance with a procedure permitted by law – (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law; (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: Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.

 (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, and if he is not tried within a period of – (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

(5) In subsection (4) of this section, the expression “a reasonable time” means – (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.

(6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.

From a combined reading and effect of the above reproduced provisions, it is indubitable that the right to personal liberty is recognized and protected however, this right is not without its limitations and it can be divested and/or striped lawfully under some circumstances. Furthermore, where the right to personal liberty as provided for under the Nigerian Constitution is unlawfully violated or breached, there are remedies: to wit; compensation and a public apology from the authority or person who violated any other person’s right to liberty.

Section 31 and 32 (1)[5] provides thus:

“Section 31: Where an alleged offence is reported, or a person is brought to the police station on the allegation of committing an offence, the police shall investigate the allegation in accordance with due process and report its findings to the Attorney General of the federation or of a state, as the case may be, for legal advice.”

“32 (1): A suspect or a defendant alleged or charged with committing an offence established under an Act of the National Assembly or under any other law, shall be arrested, investigated and tried or dealt with according to the provision of this Act, except otherwise provided under this Act.”

By a combined reading and effect of the above provisions, the Police is empowered to investigate and arrest any person(s) who is alleged to have committed an offence by virtue of a report being made to the police station or a person being brought to the police station.  It must be pointed out that the police in the course carrying out it its investigative powers, can detain a suspect or a defendant standing trial pursuant to an order of a competent court. That notwithstanding, the power to detain a suspect or a defendant cannot be whimsically or arbitrarily exercised by the Police considering the right to personal liberty which inure in favour of all persons bearing in mind the inherent consequences that might follow where and when one’s liberty is deprived in breach of the constitutional period and/or time frame within which one is expected to be in the custody of the police.

It is therefore, important to reiterate that the police or any other security agency can only detain or deprive any person of his/her personal liberty save as provided in Section 35 (1) (A – F) of the Constitution but where it becomes necessary to so detain or deprive any one of his/her liberty, such person must not be kept beyond the period allowed in the proviso to Section 35 (1) (f) and (4) [6] which state thus:

“Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.” and

“(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, and if he is not tried within a period of – (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. ” (Under line for emphasis).

The word “detention’’ is defined by Black’s Law Dictionary[7] to mean withholding or keeping something in one’s custody. To arrest and detain therefore mean the same thing. So, if a suspect’s statement is made under caution, it means he/she was first of all arrested, which by implication means that he/she was kept in custody and having in custody an arrestee means having his freedom controlled and limited. Furthermore, it is trite law that the decision of the police to investigate any crime cannot be interfered with by this Court.[8]

In the light of the foregoing, the law is trite as provided in the Constitution that the police cannot under the law detain any person whether as a suspect or a defendant beyond the express time limit ranging from one (1) day, two (2) days or a period not longer than the maximum period of imprisonment prescribed for the offence when it relates to a defendant who is awaiting trial or as otherwise provided in the Constitution.[9] However, where a detention of any person by the police is not within the exceptional circumstances envisaged in Section 35(1) (A- F)[10] and is beyond the time limit as stated earlier by the law in this piece, the police as an institution will be liable for breaching the right to personal liberty of such person(s) and such is actionable under the fundamental right enforcement proceeding.

Furthermore, it is quite regrettable and unfortunate to note that the police and indeed other security agencies in Nigeria have been involved and/or been over time found liable for violating the right to personal liberty of citizens under the guise of investigation and other unfounded excuses in a bid to perpetuating this wrong.  The Apex Court and indeed other courts in Nigeria in plethora of cases[11] have frown and make laudable pronouncement against the police and other security agencies on the need for full compliance with the law by safeguarding the liberty of citizens especially those on alleged commission of bailable offences which maybe simple offences or misdemeanors and which its imprisonment term(punishment) if found guilty is not less than six (6) months but less than three (3) years. Pointedly, the courts have over time awarded damages against the police and other security agencies and/or ordered a public apology to the victim(s) where such right are violated and/or breached provided that cogent and concrete evidence is presented at trial.

Be that as it is and without any attempt to delve into the substance of the recent reported police matter/case which involved the arrest and detention by the Nigeria Police force, Lagos State Command of one Olarenwaju James Omiyinka A.K.A Baba Ijesha over an allegation of commission of offences which was widely reported by the media houses. Unfortunately, this case brings to the fore one among the many incidences of police detention in Nigeria. However, the suspect was eventual granted bail.

Section 74 (1) (2) (4) & (5) of ACJL 2011 provides and I quote:

“74 (1) the Commissioner of Police shall forward all duplicate case files with respect of offences triable on information to the Office of the Attorney-General for the purpose of issuance of legal advice.

(2) The legal advice issued by the Office of the Attorney-General with respect to offences triable on information or any person shall be conclusive.

(4) Where the fact of a police duplicate file forwarded to the Office of the Attorney-General in any proceedings with respect to any offence triable on information against a law of a State indicate a prima facie case against a person, the Attorney-General Shall inform the Magistrate in writing by way of legal advice through any of the officers in his chambers or the prosecuting policer officer” (under line for emphasis)

In compliance with the above cited provisions of the law; it was reported in the media that a legal advice was issued from the Office of the Attorney-General of Lagos State which found a prima facie case against the said Baba Ijesha and according to the legal advice, he will be charged to court for offences bothering on decent treatment of a child, defilement of a child, Assault by penetration and sexual assault of a minor which carries imprisonment term ranging from three (3) years, seven (7) years, fourteen (14) year and life imprisonment respectively.

Furthermore, Section 115 (2) of ACJL 2011, it provides thus:

“115 (2) where a defendant charged with any felony other than a felony punishable with death, the Court may, if it thinks fit, admit the defendant to bail.”

In the light of the foregoing, the alleged offences upon which the said suspect (Baba Ijesha) would be charged to court vis-à-vis the punishment attached if found guilty at trial; are in the writer’s view and I dare say; it is only the High Court that has jurisdiction to hear and determined the case and if possible, grant bail if the Court thinks fit. Also, the Magistrate Court can grant bail[12] The police cannot by administrative fiat grant bail to the suspect (Baba Ijesha) under any guise except under special circumstance as may be established which could be on serious medical grounds of the suspect(s) or due to other compelling circumstances which makes such grant of bail inevitable. For example, the current JUSUN strike. In other words, it is only a Judge or Magistrate of the High Court of Lagos State that can admit the suspect to bail and not by any other person or authority.

At best, the Police can explore the SECTION 17(3) OF the Administration of Criminal Justice (Repeal and Re-enactment) Law 2011 of Lagos State provides thus:

“17(3): Where a person is taken into custody and it appears to the police officer in charge of the station that the offence is of a capital nature, the person arrested shall be retained in custody. The police officer shall bring the person arrested before a court having jurisdiction with respect to the offence within a reasonable time. (Under line for emphasis)

On the strength of the foregoing, I dare say that by virtue of the powers of investigation conferred on the police by extant laws, the police ought to have establish by their investigative findings that the allegations against the suspect (Baba Ijesha) were not bailable under any administrative fiat otherwise known as police bail except on serious medical grounds which must be so granted after consideration by a Court of law with or without a bail bond being provided. Fortunately, the suspect was eventually granted bail by the Magistrate Court on health grounds and also based on the ground that the suspect had been kept in custody beyond the constitutional period allowed since neither has the proposed charges by virtue of the legal advice has not been filed at the appropriate Court nor him(suspect) arraigned for the alleged offences.  This approach resonates in line with law on criminal justice and it will have been most regrettable if a different course was taken regarding the long detention of the suspect.

However, I must state unequivocally that the above referred case involving Olarenwaju James Omiyinka a.k.a Baba Ijesha was only used to state instances of detention juxtaposing circumstances where one’s personal liberty can be said to be denied which if not properly handled can result to the breach of one’s fundamental right to personal liberty as provided under the 1999 constitution. Be that as it, the suspect (Baba Ijesha) remains and/or is presumed innocent of all the proposed charges against him until the contrary is proven by the prosecution in court. This position is in line with the provision of the constitution.[13]  The law is trite that offence(s) which punishment ranges from fines, imprisonment of not less than six (6) months but less than three (3) years if found guilty; are bailable both at the police station or before a competent court of law.

It is important to also note that the grant of bail to any suspect(s) in police custody or  by any other security agencies is not an exercise of discretion by the authority concern but a constitutional obligations on their part where it is obviously established that the suspect falls outside the exceptional circumstances provided for in Section 35 (1) (A-F) of the Constitution of the Federal Republic of Nigeria 1999(As Amended) and the imprisonment term if found guilty is not less than six(6) months but less than three years imprisonment. In other words, the detention of any suspect who is alleged to have committed a simple offence or misdemeanor must not exceed the constitutionally provided period; reasons being that the police authority or other security agencies ought to grant bail to such suspect(s) in compliance with the Constitution provided always that the suspect will not interfere with investigation and will stand his/her trial whenever the charge is filed before a competent court of law. This can be done with or without a bail bond being provided.

At this juncture, the question that agitates the mind is “can the right to personal liberty of a suspect who is detained beyond the constitutional period over allegation of committing simple offence(s), misdemeanor or a felony whose imprisonment term is less than six(6) months but less than three (3) years if found guilty of the offence as provided under the Criminal Code vis-a-vis the 1999 Constitution; be said to have been breached(right to personal liberty) and what then are the steps and remedy available to such suspect(s)?

In an attempt to answer the above question; I dare say with every sense of legal reasoning that the above question is answered in the AFFIRMATIVE being that the right of a suspect having been violated/breached even though such suspect(s) has an allegation of crime(s) lying over his/her head albeit presumed innocent until the contrary is proven by the prosecution; can maintain/institute a fundamental right enforcement suit for deprivation of his/her right to personal liberty for the period unlawfully kept under detention by the police or any other security agencies. It is worthy of note that Nigerian administration of justice (the court system) is most often than not plagued with industrial actions by Labour Unions, administrative orders by Heads of Court in recognition of their annual vacation periods or government declarations (public holidays) which adversely affect the smooth administration of justice to both suspect(s) in police facilities and those undergoing trials.

That notwithstanding, the right of suspect(s) especially those alleged to have committed simple offences, misdemeanors and felony not punishable with death or less than three years imprisonment; are entitled by law to their personal liberty and should be granted bail even at the police station or when they eventually are charged before a competent court with or without a bail bond being provided. It will be preposterous for the police or any other security agency to deny and/or refuse to grant bail to any suspect(s) on the premise that the legal advice obtained from the Attorney-General’s office whether of the federation or State establishes a prima-facie case against such suspect(s) where the alleged offence(s) carries a maximum imprisonment term of not less than six (6) but less than three (3) years, a fine or both.

Even defendant(s)/suspect(s) who are arrested for non bailable offence but is detained without trial for one month or where defendant(s)/suspect(s) who from the date of their arrest and detention is for a period of three(3) month without trial, the law is trite that they shall be granted bail/release either unconditionally or  upon such condition that is reasonable to ensure that they appear for trial on a later day.[14] Where this provision is violated or breached by the police or any other security agency, an enforcement of the right to personal liberty of such person(s) can be maintained without prejudice to the charge or allegations against the suspect/defendant.

By way of summation therefore, this work seeks to reiterate that the right to personal liberty of every citizen of Nigerian or legal alien(s) must be protected or safeguarded in compliance with the Constitution of the Federal Republic of Nigeria and that the police and other security agencies must at all times be circumspect in undertaking detention of person(s) under their custody and must ensure that personal liberty of suspect(s) or defendants(s) as provided by the law is guaranteed whenever  they  are brought to their stations or offices/facilities. This is so bearing in mind that the law is not a respecter of any person(s) or authority who violates the fundamental rights of citizen(s); in this case, right to personal liberty whether it is overtly or arbitrarily done or carried out by any individual, police or other security agency. More so, they must not in turn carry out releases of suspect(s) or defendants who rightly ought to be in custody using administrative fiat under any guise or excuses.

Written By Godwin Imoke Esq., godwinimoke@gmail.com.

Thank you for reading.

[1] Article 3.

[2] Constitution of the Federal Republic of Nigeria 1999 (As Amended).

[3] Ibid.

[4] Ibid.

[5] Nigerian Police Act 2020

[6] Ibid.

[7] page 390

[8] Gani Fawehinmi v. IGP & Ors (2003) 1 NCC Pg. 414 at 416 A. G.

[9] Section 35(4) & (5) of the CFRN 1999(As Amended).

[10] Ibid.

[11] AKILA & ORS. v. DIRECTOR GENERAL STATE SECURITY SERVICES & ORS

(2013) LPELR-20274(CA); Adesanya v. President, Federal Republic of Nigeria & others (1981) 5 SC 113; to mention but a few.

[12] Section 115(2) ACJL 2011 but cannot hear or determine the substantive case against the suspect.

[13] Section 36(5) of the CFRN 1999 (As Amended).

[14] Section 35(4) (A & B) CFRN 1999 (As Amended).