MR. Buba Amodu V. The Commissioner Of Police Lagos State & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Appellant was arrested by the Police during a Police raid on 13/11/2001, at Ijora Olopa, Lagos, and was taken to the Head-Quarters of Zone 2 of the Nigeria Police, Onikan, Lagos.

He was arraigned before the Magistrate Court 2, Igbosere, Lagos, on 23/11/2001, and charged with robbery and possession of weeds suspected to be Indian hemp. He was remanded at the Ikoyi Prison, Lagos, that same day – 23/11/2001, and remained in prison custody since then.

He instituted an action at the Lagos State High Court by an Originating Ex-parte Motion dated 3/8/2007 for leave to apply for the enforcement of his fundamental rights. The Application was heard and granted on 16/10/2007, and he subsequently filed a Motion on Notice dated 18/10/2007 praying for –

A. A DECLARATION that [his] continuous detention in prison custody – – at the instance of the Respondents and/or due to the failure of the Respondents and/or their agents to take steps to arraign and prosecute [him] in a Court of competent jurisdiction violates [his] fundamental rights to respect for the dignity of his person, personal liberty and freedom of movement as provided under Sections 34, 35 and 41 of the Constitution, and Articles 4, 5, 6 & 12(1) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act – – and is therefore unlawful, illegal and unconstitutional.

B. “AN ORDER releasing the Applicant unconditionally from detention in prison for gross violation of his fundamental rights as provided under Sections 34, 35 and 41 of the Constitution – – 1999 and Articles 4, 5, 6, and 12 (1) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9, LFN, 2004”.

C. EXEMPLARY DAMAGES as may be assessed by the Court against the Respondents for the oppressive, cruel, unlawful, illegal and unconstitutional refusal and/or neglect (by them) to take steps to arraign and prosecute (him) in a Court of competent jurisdiction as required by law as a result of which (he) has been wasting away in prison custody for over 5 years without justification under the most inhuman and degrading conditions.

D. GENERAL DAMAGES as may be assessed by the Court against the Respondents – – “.

“THE GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT”, are as follows –

1. By virtue of S.34 of the 1999 Constitution and Articles 4 and 5 of the African Charter every Nigerian Citizen is entitled to respect for the dignity of his person and accordingly no person shall be subjected to inhuman and degrading treatment.
2. By virtue of Section 35 of the Constitution and Article 6 of the African Charter, every Nigerian citizen shall be entitled to his personal liberty and where such liberty is deprived inter alia for the purpose of bringing him before a court 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, he shall in the case of a person who is in custody or is not entitled to bail, be brought before a court of competent jurisdiction to be tried within two months from the date of his arrest or detention.
3. By virtue of S.41 of the 1999 Constitution and Article 12 of the African Charter every Nigeria Citizen is entitled to move freely throughout Nigeria.
4. The Applicant has been remanded/detained in Ikoyi Prison since 23/11/2007 till date, a period of over (5 years which is far beyond the constitutionally stipulated period of 2 months without being arraigned before a court of competent jurisdiction for trial.
5. The persistent failure and/or refusal of the Respondents or officers deriving authority from (them) to take steps to arraign and prosecute [him] before a Court – – hence his continued stay in prison custody without trial derogates from (his) fundamental rights as provided under the 1999 Constitution which include inter alia, his right to the dignity of his person, personal liberty and right to freedom of movement.
6. The failure and/or refusal by the Respondents/their agents to take steps to prosecute [him] as required by law clearly shows that [they] have no case against [him].
7. “The continuous unlawful, illegal and unconstitutional detention of the Applicant at Ikoyi prison constitutes inhuman and degrading treatment of the Applicant”.

The Motion on Notice was heard on 11/12/2007 without any Counter-Affidavit in opposition, but after it was reserved for Ruling, the 2nd Respondent filed a Motion on Notice dated 14/1/2008 praying the Court for the following orders –

1. Granting leave to – – arrest the Ruling of this Hon. Court slated for 15/1/2008.
2. Arresting the Ruling of this Hon. Court slated to be delivered on 15/1/2008.
3. AND/OR that the name of the Respondent/Applicant be struck out.

He also filed a Counter-Affidavit dated same day wherein it was averred that –

5. Upon receipt of the (Appellant)’s Motion on Notice, a search was conducted in the office of the 2nd Respondent for the Applicant’s duplicate case file.
6. The said search revealed that the 1st Respondent has not forwarded the duplicate case file to the office of the 2nd Respondent.
7. The Office of the 2nd Respondent is not seized of the facts surrounding this case.
8. – – The 2nd Respondent cannot affirm or deny the Applicant’s Affidavit in support.
9. The 2nd Respondent cannot take a stand in respect of this matter.
10. The name of the 2nd Respondent be removed from the Motion paper.

In his Ruling delivered on 17/1/2008, the learned trial Judge, O. A. Taiwo, J., found that based on the above averments, “the 2nd Respondent has nothing to contribute to the determination of the Application before [it]”, and held thus –

“The most important fact in this Application is that the Applicant was arrested in November 2001 and has remained in prison custody without trial since then. The Applicant has exhibited the remand warrant of the Applicant were (sic) been charged for conspiracy to rob and possession of weeds suspected to be hemp. These are not capital offences and the Applicant is entitled to be released on bail. It is my humble view that the Respondents have indeed infringed the FHR of the Applicant as provided for under S. 34, 35 and 41 of the 1999 Constitution … as he has been detained in custody without trial for over 5 years. Furthermore, the DPP has not received his case file since 2001. There is no legal advice. In the light of the above, I hereby grant the following reliefs sought as follows –

1. It is hereby declared that the continuous detention of the Applicant in prison custody – – since 23/11/2001 till date – – – due to the failure of the Respondents and/or their agents to take steps to arraign and prosecute the Applicant in a Court of competent jurisdiction violates the Applicant’s fundamental rights to respect for the dignity of his person, personal liberty and freedom of movement as provided under Sections 34, 35 and 41 of the Constitution – – and Articles 4, 5, 6 & 12(1) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act – – and is, therefore, unlawful, illegal and unconstitutional.
2. It is hereby ordered that the Applicant be released on bail in the sum of N100, 000.00 with one surety in like sum. Surety must be gainfully employed. DCR (Lagos) is ordered to verify address of surety.
3. As the Ministry of Justice is not seized of the facts of this case because the case file was not forwarded to them by the 1st Respondent, no damages will be awarded against the 2nd Respondent.
4. However, exemplary damages of N100, 000.00 is awarded against the 1st Respondent.

Dissatisfied with the Order that he be released on bail in the sum of N100, 000 with one surety in like sum, the Appellant appealed against that aspect of the decision only, with a Notice of Appeal containing two Grounds of Appeal.