Abdulaziz Muhammadu Namoda v. The Commissioner Of Police Zamfara State (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This appeal is against the decision of the High Court of Zamfara State delivered by Hon. Justice B. M. Kucheri on 14th December, 2021 refusing the appellant’s prayers on pages 45 – 46 of the record on the following terms:

When the suspicion is shown not to be reasonable both the Constitution under section 35(1) (c) and the CPC under section 341(3) will not support the arrest and detention.

The counsel to the applicant did not make any attempt to prove that. I therefore will not declare that the arrest and subsequent detention is not reasonable. Neither will I order for the release of the applicant unconditionally as the suspicion is of capital offence. All the prayers in the application are therefore refused.

Dissatisfied with the decision of the lower court, appellant filed the instant appeal through a notice of appeal filed on 22/3/2022. The notice of appeal contains three grounds of appeal on pages 47 to 52 of the record. Distilled from the said grounds of appeal, the appellant formulated a sole issue for the determination of the appeal as follows:

Whether or not the lower court’s refusal to make any order for the release and/or enforcement of the appellant’s fundamental right to liberty was wrong and/or occasioned a miscarriage of justice to the appellant.

On the part of the respondents, a sole issue was also formulated for the determination of the appeal, to wit:

Whether in the circumstances of this case, the procedure applied by the appellant’s counsel to secure the release of the appellant was right and in accordance with the practice and procedure under the Criminal Procedure Code.

Proffering argument on the sole issue, learned counsel for the appellant, Oluwaseyilayo A. Ojo submitted that section 35(7) of the Constitution only qualifies the definition of reasonable time in section 35(4) when the offence involved is a capital offence and thus the effect of section 35(7) is simply that the respondents are not obligated to ensure that a trial takes place within the two months window but does not mean the applicant cannot be released where the circumstances justify such an order.

In aid, counsel referred to the cases of Shafiu Atiku v. The State (2002) 33 WRN 110; (2002) 4 NWLR (Pt. 757) 265, and Okechukwu Benson v. Commissioner of Police (2013) LPELR 21212 (CA) to the effect that the conclusion reached by the trial Judge that the appellant cannot enforce his right to liberty by reason of section 35(7) amounts to violation of the presumption of innocence guaranteed by section 36(5) of the Constitution.

It was the appellant’s contention that at no time did he challenge his arrest, detention or the suspicion upon which either or both were founded. The focus of the application according to counsel was on his continued detention in perpetuity without his being charged to court of competent jurisdiction. And that there is nothing in the appellant’s prayer challenging his initial arrest or detention, let alone the propriety or otherwise of the suspicion leading to the arrest.

Counsel thus submitted that rather than focus on and impose upon the respondents the burden to justify why the appellant should not be released, the trial Judge instead imposed on the appellant the burden to prove that the suspicion resulting to his arrest was unreasonable which is contrary to section 36(5) of the Constitution.

He referred to Nwaturuocha v. State (2010) 30 WRN 54; (2011) 6 NWLR (Pt. 1242) 170 to the effect that it not the duty of an accused person to prove his innocence as there is always a presumption of innocence in favour of an accused.

He further submitted that there is no Constitutional or other legal requirements that makes an application for bail under sections 340, 342 of the Criminal Procedure Code a prerequisite or concomitant prayer for a person accused of a capital offence to enforce his fundamental right under section 35 of the Constitution. Therefore, the learned trial Judge was wrong to have refused the appellant’s application.