Malizu V. Asistant Cop (2002)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a ruling of S. M. B. Ibeziako, J. of the High Court of Anambra State of Nigeria, holden at Nnewi in Suit No.HN/MISC.304/96 delivered on the 27th day of February, 1997, wherein he dismissed in its entirety applicant’s application for a prerogative writ of Habeas Corpus and the sum of N2,000,000.00 (Two Million Naira) as damages for her unlawful detention at the S.I.I.B cell Awka, by the respondents or their agents.

The complaint of the applicant, leading to the application for a writ of Habeas Corpus ad Subjiciendum was contained in a 40-paragraph affidavit sworn to by one Mrs. Eunice Malizu, the mother of the applicant, supported by a “Statement pursuant to Order 30 rule 2 (2) and rule 2 (6) (9) and rule 3(1) of the Anambra High Court Rules, 1988.”

The sum total of all the facts in support of the application may be summarised as follows:-

Sometimes about 3/9/95, the applicant, a young secondary school graduate was missing from home. Then on 4/9/95 she was found in the house of one Police Corporal by name Titus Madu at Ihiala by her two brothers by name David and Peter. According to the affidavit, one of the brothers slapped the applicant and took her away, but did nothing to Titus Madu, who they alleged had mesmerized and abducted their sister away. Soon after that the Police Corporal, Titus Madu, died, whereupon the applicant and her two brothers were arrested and detained on suspicion that they were responsible for the death of the said Police Corporal Titus Madu. Following numerous petitions written by applicant’s mother and their counsel, the two brothers of the applicant were charged before a Magistrate’s Court on a two count charge of conspiracy and murder of Titus Madu, but the applicant was neither charged nor produced before any court; rather she has been kept in Police custody since 24/4/96, first at Ihiala Police Station and then at S.I.I.B. Awka since the 2nd May, 1996. That even though the Ihiala Police completed investigation on the applicant, they nevertheless refused to release her but insisted that her two brothers David and Peter should be produced before they could release the applicant. Even after her brothers David and Peter were arrested and charged to court, the Police still held the applicant in custody until her mother Mrs. Eunice Malizu was forced to employ a counsel, Chief H.B. Onyekwelu to apply to the High Court, Nnewi for the prerogative order of Habeas Corpus as already stated above.

After leave was granted by the High Court on an ex parte application, the applicant was granted bail, and duly released, while a date was fixed for the hearing of the application on notice.

In due course the application on notice came up for hearing before Ibeziako, J. Chief Onyekwelu duly moved his application, asking not only for the release of the applicant from detention, but also for the payment of N2,000,000.00 (Two million Naira) as compensation for detention or deprivation of liberty. To his surprise, the application for the payment of two million naira compensation was vigorously opposed by Mr. A. O. Okeke, Assistant Chief Legal Officer who appeared as counsel for all the respondents. Mr. Okeke referred to Decree No.107 of 1993 (Constitution, Suspension & Modification Decree of 1993) Section 1(2), and the schedule thereto, and submitted that Section 32(6) of the 1979 Constitution on which applicant’s counsel had relied on for his N2 million compensation has been suspended by the Decree No.107 of 1993. He pointed out that the injury complained of happened on 24/4/96, while Decree No. 107 of 1993 came into force on 17/4/97. It was therefore submitted that “any provision suspended by the Decree 107 stands suspended.” The court was therefore urged to refuse the claim as the right of the applicant had ceased to exist on the commencement of Decree No. 107 of 1993.

In a brief rejoinder Chief H. B. Onyekwelu for applicant submitted that his application was based on Habeas Corpus and not on Fundamental Rights provision of 1979 Constitution and therefore Decree 107 did not affect the rights of applicant under the Habeas Corpus. He cited the case of Commissioner of Police v. Agbaje (1969) 1 NMLR 176 at 180 in support. The matter was then adjourned to 27/2/97 for a ruling.

On the said 27/2/97, the learned trial Judge, Ibeziako, J. came out with a 9-paged ruling in which he dismissed the application of the applicant in its entirety “because it is in head on collision with Decree No. 107 of 1993.”

The applicant being dissatisfied with the ruling of the High Court has now appealed to this court on three grounds, which without their ‘particulars’ read as follows:-

“(1) Error In Law: The learned trial Judge erred in law by holding that the Constitution (Suspension and Modification) Decree 1993 (Decree No. 107) suspended the constitutional right of every Nigerian as provided under S.32 of the Constitution of the Federal Republic of Nigeria 1979.

(2) Error In Law: The learned trial Judge erred in law in holding that the writ of habeas corpus ad subjiciendum was unavailing to the appellant.

(3) Error In Law: The learned trial Judge erred in law by ignoring the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, to which Nigeria is a signatory and adopted.”

From the above three grounds, four issues for determination were formulated as follows:-