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The Chief of Defence Staff & Anor V. Modu Alhaji Tijah (Makama) (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A.

I tagged this determination Decision by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a decision to means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A Ruling is omitted in the definition of decision under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that,
When the nature of things changes, the rules of law must change too.
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of

change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag this determination an opinion or a decision as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word determination at pages 243-244 as follows:
We gave careful consideration to the argument of

Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ruling or determination of the High Court was a judicial decision or determination within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
In this section decision means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.
More light is thrown on the meaning of the words decision and determination in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It

means a bringing or coming to an end or the mental action of coming to a decision, or the resolving of a question.
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.”
Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more

than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.
Section 318(1) of the Constitution (supra) defines a decision to mean, in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A ruling is omitted from the definition of decision. I have decided to tag this determination Decision as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.
The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of decisions or opinions Justices of the Supreme Court or the Court of Appeal renders which constitutes the determination of these

appellate Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.

I shall now consider this appeal on the merit.

The 1st appellant is the Chief of Defence Staff. The 2nd appellant is Colonel Ibrahim Ali, Commander Joint Task Force (JTF) Damaturu, Yobe State. The respondent is Modu Alhaji Tijah (Makama). On 24th July, 2013 the respondent by motion on notice proceeded against the appellants under the Fundamental Rights (Enforcement Procedure) Rules, 2009, Section 35(1)-(4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983. The proceedings were instituted by the respondent before the Federal High Court, Maiduguri in Borno State on 24th July, 2013 but filing fee was paid on 30th July, 2013. Though served the processes, the appellants did not appear and the learned Federal Judge rendered

his decision in favour of the respondent. On 24th July, 2014 the appellants applied explaining their failure to appear in the Court the day the proceedings were fixed for hearing. The decision was set aside on 10th July, 2014 in order to hear the parties on the merit.

The learned Federal Judge heard the parties on the merit on 10th March, 2015 but rendered decision in favour of the respondent on 26th October, 2015. The appellants have challenged the decision in a Notice of Appeal filed on 30th November, 2015. Five grounds accompany the Notice of Appeal. A Joint brief was filed on 6th January, 2016 wherein the appellants formulated three issues for determination as follows:
1. Whether this case did not constitute abuse of judicial process in view of the Suit NO:FHC/MG/CS/7/2013 between Modu Alhaji Tijah (Makama) v. The Chief of Defence Staff & 5 Others.
2. Whether the trial Judge is/was clothed with the requisite competence and jurisdiction to hear and determine this case, regard being had to the parties and subject matter of the case.
3. Whether, regard being had to the facts and circumstances of this case, the fundamental

rights of the respondent could be said to have been breached to warrant judgment in his favour.

The respondents brief was filed on 5th February, 2016. The learned Counsel adopted the issues formulated in the appellants brief of argument when the appeal came up for hearing on 27th April, 2016. I wish to draw attention to Order 18 Rules 3(3) and 9(1) of the Court of Appeal Rules, 2011 which provides as follows:
3(3) The parties shall assume that briefs will be read and considered in conjunction with the document admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.

9(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in Court.
Counsel/parties should assume that I have read the briefs. This will obviate the necessity of a verbatim reproduction of the arguments in the briefs of learned Counsel. Secondly, oral argument is to be allowed at the hearing

of the appeal to emphasize and clarify the written argument appearing in the briefs filed in Court. Counsel or the parties need not appear on the day of hearing if there is nothing to clarify or emphasize. The appeal will be deemed argued. See Order 18 Rule 9(4) of the Rules (supra) provides as follows:
9(4) When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.

I shall now consider the appeal on the merit.

ISSUE ONE:
The argument by the learned Counsel to the appellants is that Suit No.FHC/MG/CS/7/2013 viz Modu Alhaji Tijah (Makama) vs. The Chief of Defence Staff & 5 Ors. constitutes an abuse of Court process and ought to have been dismissed in view of the previous Suit No.FHC/MG/CS/9/2013 filed by the respondent which had been struck out as the reliefs claimed are the same with the present proceedings leading to this appeal. The appellants learned

Counsel cited Onyeabuchi vs. INEC & Ors. (2002) 4 SCNJ 265 at 279; TSA Ind. Ltd. vs. F.B.N. Plc (No.1) (2012) 14 NWLR (Pt.1320) 329 and Uniform Ind. Ltd. vs. Oceanic Bank Nig. Plc (2005) 3 NWLR (Pt.911) 83 at 102 and a host of other authorities. The learned Counsel representing the respondent thinks otherwise and relied on N.D.I.C. vs. Okeke (2011) 6 NWLR (Pt.1244) 445 at 462-463; H.B. (Nig.) Plc vs. Lodigiani (Nig.) Ltd. (2010) 14 NWLR (Pt.1213) 330 at 308 and R. Bankay (Nig.) Ltd. vs. Cadbury (Nig.) Plc (2010) 9 NWLR (Pt.1306) 596 at 624 paragraphs E to F to submit that the mere striking out of a previous suit and the filing of another does not constitute an abuse of process. The order striking out suit No.FHC/MG/CS/7/2013 is at page 21 of the printed record and reads as follows:
UPON THIS SUIT coming up today the 26th day of June, 2013 for hearing:
Parties absent.
O.O. Aweda, Esq. for the 2nd and 4th respondents.
Applicants Counsel not in Court and no reason forwarded for his absence.
IT IS HEREBY ORDERED as follows:
That the motion is hereby struck out.
ISSUED AT MAIDUGURI

under the seal of this Honourable Court and Hand of the Presiding Judge, this 26th day of June, 2013.

Gafai, F.J., struck out the suit without foreclosing the rights of the respondent from relitigating same. The respondent could have applied for its relistment or could have filed another suit claiming the same or similar remedies. A suit that was struck out can be relisted on the application of the party that instituted the action. When relisted, it is not a new suit; it is still the old suit. See Kassim vs. Ebert (1966) NNLR 75. When a suit or an appeal is struck out, it is as if no suit or appeal was ever filed. See Ikeakwu vs. Nwankpa (1967) NMLR 224 at 227. But such a suit or an appeal can be relisted if the factors that rendered the suit or appeal defective and culminated into its being struck out is/are remedied. See Odiase & Anor. vs. Agho & Ors. (1972) 1 All NLR 9Pt.1) 170 at 177. In NDIC vs. Okeke (2011) 6 NWLR (Pt.1244) 445 the Court held at pages 462-463 paragraphs G-A as follows:
a suit which has not been heard on the merit could only have been struck out and could not have been

dismissed on the merit. The effect of the order of striking out is to temporarily remove the case from the Court’s list and could be brought back by either relistment or refiling afresh. The failure of the first option does not foreclose the second one.
Also in H.B. (Nig.) Plc vs. Lodigiani (Nig.) Ltd. (2010) 14 NWLR (Pt.1213) 330 at 348 paragraphs B- D the Court held as follows:
An order striking out a matter gives an opportunity to the party who instituted the action to apply to the Court for an order relisting same, or to file a fresh action

I am of the humble opinion that the argument of the learned Counsel to the appellants on issue one is not covered by judicial authorities. Issue one is resolved against the appellants.

ISSUES TWO AND THREE:
Issues two and three are intertwined or interwoven hence I shall consider them together. The argument is that the Federal Judge lacked the jurisdiction to have entertained and determined these claims, citing Njokonma vs. Mowete (2001) 6 NWLR (Pt.709) 351 at 364. The appellants learned Counsel however conceded that it is the

statement of claim and the remedies sought that determines the jurisdiction of the Court, citing Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 158; Jimoh Akinfolarin & Ors. vs. Akinola (1994) SCNJ (Pt.1) 30 at 43; Continental Industrial Gases Ltd. vs. Onafeko (2003) 7 NWLR (Pt.820) 479 at 492 and Edjerode vs. Ikine (2001) 12 SC (Pt.11) 94 at 124. Learned Counsel urged this Court to examine the reliefs the respondent sought against the appellants in the Court below and the status of the appellants whether they are sueable, citing Adetona & Ors. vs. Igtle (2011) 1 SCML at 23 and Tukur vs. Governor of Gongola State (2011) 9 SCNM 155 at 235 and Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The argument is that the reliefs claimed do not come within the purview of Section 251 of the Constitution (supra). The appellants are not Federal agencies to be sued before the Lower Court. But assuming the subject-matter falls within the jurisdiction of the Court below, the reliefs claimed do not came within the provisions of Section 251(1)(p)(q) and (r) of the 1999 Federal Constitution as amended. Learned Counsel contended that

it is not the law that once Federal agencies are involved in a cause or matter, the suit must be initiated before a Federal High Court, citing NURTW & Anor. vs. RTEAN 7 Ors. (2012) 3 SCM 171 at 197 and FMBN vs. Lagos State (2010) 5 NWLR (Pt.1188) 580 at 601; Onuorah vs. KRPC Ltd. (2005) All FWLR (Pt.256) 1356 at 1364-1365. That in determining the jurisdiction of the Federal High Court, a High Court of a State as well as the subject-matter and the status of the parties must be considered, citing National Union of Electricity Employees vs. Bureau of Public Enterprises (2010) 2-3 SC (Pt.11) 27 at 67.

Learned Counsel drew attention to the affidavits and counter-affidavits the parties relied upon in the Court below to show that the respondents detention was lawful, that he was an insurgent. The detention of the respondent was to therefore protect the lives of the people of this country, citing Alhaji Mujahid Dokubo Asari vs. FRN (2007) 12 NWLR (Pt.1048) 320 at 358-359, the Terrorism (Prevention) Amendment Act, 2013, Section 15 of the Economic and Financial Crimes Commission Act, 2004 and Section 14(2)(b) of the Constitution of the Federal Republic

of Nigeria, 1999 as amended. Reference was further made to Ezeadukwu vs. Maduka (1997) 8 NWLR (Pt.518) and Bamaiyi vs. The State (2001) 4 SC (Pt.1) 18 at 26-27 to the effect that an applicant has to place before the Court all vital evidence regarding the infringement or breach of such a right. This was not the case in this appeal. Learned Counsel urged that the two issues be resolved in favour of the appellants.

Learned Counsel to the respondent drew this Courts attention to the periods prescribed in Section 35(3) to (4) of the Constitution (supra) for arraigning detained suspects to Courts, citing Saidu vs. The State (1982) 1 NCR 49 at 64. That four years was too long a period to continue to incarcerate the respondent by the appellants. Learned Counsel referred to Chinemelu vs. Commissioner of Police (1995) 4 NWLR (Pt.390) 467; Anakwe vs. Commissioner of Police (1996) 3 NWLR (Pt.436) 320 and Enwere vs. Commissioner of Police (1993) 6 NWLR (Pt.299) 333 at 341 in support of his argument. Learned Counsel distinguished the facts in Dokubo-Asari vs. FRN (supra) on the grounds that both the reliefs sought and the grounds for seeking them was not the

same as in the case cited by the learned Counsel to the appellants. Learned Counsel urged this Court to hold that the learned Federal Judge had the jurisdiction to entertain this proceeding having regard to Sections 251 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Leveday vs. Comptroller Federal Prisons, Aba (2013) 18 NWLR (Pt.1386) 379 at 406 and 409 and Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 were cited in argument. That issues two and three should be resolved against the appellants.

I shall proceed to determined issues two and three by reference to Sections 217-220, 251-252 and 272-273 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as follows:
217(1) There shall be an armed forces for the Federation which shall consist of an army, a Navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.
(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of:-
(a)

Defending Nigeria from external aggression;
(b) Maintaining its territorial integrity and securing its borders from violation on land, sea, or air;
(c) Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and
(d) Performing such other functions as may be prescribed by an Act of the National Assembly.
(3) The composition of the officer corps and other ranks of the armed forces of the Federation shall reflect the Federal Character of Nigeria.
218(1) The powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation.
(2) The powers conferred on the President by Subsection (1) of this section shall include power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.
(3) The

President may, by directions in writing and subject to such conditions as he think fit, delegate to any member of the armed forces of the Federation his powers relating to the operational use of the Armed Forces of the Federation.
(4) The National Assembly shall have power to make laws for the regulation of:-
(a) The powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and
(b) The appointment, promotion and disciplinary control of members of the armed forces of the Federation.
219. The National Assembly shall:-
(a) In giving effect to the functions specified in Section 217 of this Constitution; and
(b) With respect to the powers exercisable by the President under Section 218 of this Constitution, by an Act, established a body which shall comprise such members as the National Assembly may determine, and which shall have power to ensure that the composition of the armed forces of the Federation shall reflect the federal character of Nigeria in the manner prescribed in the Section 217 of this Constitution.
The jurisdiction of the Federal High Court is prescribed as follows:

251(1) Notwithstanding anything to the contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank

of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by

sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures:
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National

Assembly:
Provided that nothing in the provisions of Paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this section.
252(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.
(2) Notwithstanding Subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more

effectively to exercise its jurisdiction.
The jurisdiction of State High Courts is as follows:
272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
273. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.
A composite reading of these provisions

will reveal that suppressing insurrections, treason, treasonable felony and allied offences, etc, are within the exclusive jurisdiction of the Federal High Court not State High Court. Acting in aid of civil authorities to restore order when called upon to do so by the President is subject to such conditions as may be prescribed by an Act of the National Assembly. These are some of principal functions of the Armed Forces of Nigeria. The Nigerian Armed Forces is composed of Officer Corps and other ranks. The President of the Federal Republic of Nigeria determines the operational use of the armed forces of the Federation.
Appointing the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the armed forces of the Federation is as may be established by an Act of the National Assembly. The appointment, promotion and disciplinary control of members of the armed forces including the service Chiefs and heads of the branches of the armed forces of the Federation is the prerogative of the President. Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended

defines appointment to wit:
318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires:-
“Appointment” or its cognate expression includes appointment on promotion and transfer or confirmation of appointment.
To appoint is to choose someone officially for a job or responsibility. An appointee is someone who has been chosen officially for a job or responsibility: a government appointee See Cambridge Advanced Learners Dictionary, 2003 edition, page 51. The Chief of Defence Staff (1st appellant) and (2nd appellant) Colonel Ibrahim Ali, Commander, Joint Task Force (JTF) Damaturu, Yobe State, is an Officer Corp. Both are servants or agents of the armed forces of the Nigerian Federation. The provisions of Section 251(p)-(s) of the Constitution of the Federal Republic of Nigeria, 1999 as amended empowers the institution of suits or proceedings against the Federal Government or any of its agencies in the Federal High Court in respect of the causes and matters enumerated therein. There is a

wall of difference between an agency and an agent. In Blacks Law Dictionary, 9th edition, page 71 a federal agency is defined as: A department or other instrumentality of the executive branch of the federal government, including a government corporation and the Government Printing Office. The Administrative Procedure Act defines the term agency negatively as being any U.S. governmental authority that does not include Congress, the Courts, the government of the District of Columbia, the government of any territory or possession, Courts-martial, or military authority The case law on this definition focuses on authority: generally, an entity is an agency if it has authority to take binding action. Other federal statutes define agency to include any executive department, Government Corporation, government-controlled corporation, or other establishment in the executive branch, or federal regulatory board
Military authorities are in the United States of America, exempt from the definition federal agency.
An agent is defined at page 72 of the same dictionary as follows:

Agent 1. Something that produces an effect (an intervening agent) 2. One who is authorized to act for or in place of another; a representative (a professional althletes agent). Also termed commissionaire
Generally speaking, anyone can be an agent who is in fact capable of performing the functions involved. The agent normally binds not himself but his principal by the contracts he makes; it is therefore not essential that he be legally capable to contract (although his duties and liabilities to his principal might be affected by his status). Thus an infant or a lunatic may be an agent, though doubtless the Court would disregard eithers attempt to act as if he were so young or so hopelessly devoid of reason as to be completely incapable of grasping the function he was attempting to perform. Floyd R. Mechem, Outlines of the Law of Agency 8-9 (Philip Mechem ed. 4th edition, 1952).
The etymology of the word agent or agency tells us much. The words are derived from the Latin verb, ago, agere; the noun agens, agentis. The word agent denotes one who acts, a doer, force, or power that

accomplishes things. Harold Gill Reuschlein & William A. Gregory, The Law of Agency and Partnership, 1 at 1-3 (2nd edition, 1990).
A government agent is defined at page 73 of the Blacks Law Dictionary (supra) as: 1. An employee or representative of a governmental body2. A law enforcement official, such as a police officer or an FBI agent. 3. An informant, especially an inmate, used by law enforcement to obtain incriminating statements from another inmate?? The appellants are employees and appointees within the Armed Forces of Nigeria.
Section 11 of the Interpretation Act (Cap.123), Laws of the Federation of Nigeria, 2004 provides as follows:
11. Appointment
(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:-
(a) Power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) Power to remove or suspend him;
(c) Power, exercisable in the manner and subject to the limitations and conditions (if

any) applicable to the power to appoint:-
(i) To reappoint or reinstate him;
(ii) To appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the function of the office generally or the functions in regard to which he is appointed, as the case may be.
Where the appointing authority, body or person is known, he becomes the principal while the appointee is an agent or servant. Where the principal is known, unless in exceptional circumstances and this may be dependent on the cause of action, the agent is not sueable. See Vassiler vs. Pass Industries Ltd. (2000) FWLR (Pt.19) 418; Okafor vs. Ezenwa (2002) FWLR (Pt.2).

I shall however treat this appeal on the merit bearing in mind the fact that any party aggrieved with the decision may appeal to the Supreme Court for a review.

The complaint of the

respondent in the Court below is that his arrest and continuous detention by the appellants, or by their officers, servants/agents and privies constitutes a violent breach of his rights as guaranteed under Section 36(1) and (4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Reference was also made to Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act (Cap.A9). That this was illegal and unconstitutional.
The provisions of the Constitution cited reads as follows:
35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following 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 fulfillment 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;
(d) In the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
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.
(2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his

own choice.
(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.
(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.
Articles 4 and 5 of the African Charter (supra) also reads as follows:
4. Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
5. Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
Section 35(1)(c) of the Constitution (supra) authorizes or sanctions the deprivation of a persons personal liberty where it is in accordance with a procedure permitted by law in the following circumstances (a) for the purpose of bringing him or her before a Court in execution of the order of a Court or (b) upon reasonable suspicion of his having committed a criminal offence. In the first instance, there would have been already in existence an order

of a Court against the person or group of persons. In the second situation, there would be reasonable suspicion that the person committed a criminal offence and the need had arisen to arrest and bring him before a Court of competent jurisdiction for trial.
The third reason (c) is where the arrest and detention is to such extent as may be reasonably necessary to prevent his committing a criminal offence. That is to say, a criminal offence is yet to be committed but it is reasonably necessary to arrest and detain the person or persons to prevent their committing a criminal offence or offences in the future. There are many kinds of arrests and detentions. These are listed in Blacks Law Dictionary (supra) at page 514 as follows: Detention 1. The act or fact of holding a person in custody; confinement or compulsory delay detain.
Investigative detention The holding of a suspect without formal arrest during the investigation of the suspects participation in a crime. Detention of this kind is constitutional only if probable cause exists.
Pre-trial detention 1. The holding of a

defendant before trial on criminal charges either because the established bail could not be posted or because release was denied.
2. In a juvenile-delinquency case, the Courts authority to hold in custody, from the initial hearing until the probable-cause hearing, any juvenile charged with an act that, if committed by an adult, would be a crime. If the Court finds that releasing the juvenile would create a serious risk that before the return date the juvenile might commit a criminal act, it may order the juvenile detained pending a probable-cause hearing. Juveniles do not have a constitutional right to bail. The Supreme Court upheld the constitutionality of such statutes in Schall vs. Martin, 467 U.S. 253, 104 S.Ct. 2403 (1984). Also termed temporary detention.
Preventive detention Confinement imposed usually on a criminal defendant who has threatened to escape, poses a risk of harm, or has otherwise violated the law while awaiting trial, or on a mentally ill person who may cause harm.
Secret detention The holding of a suspect in an undisclosed place, without formal charges, a legal hearing, or access to legal Counsel, and

without the knowledge of anyone other than the detaining authority. See secret detainee under DETAINEE. 2. Custody of property, especially an employee’s custody of the employer’s property without being considered as having legal possession of it.
Where a person or group of persons poses a risk of harm to this nation, her people or property, etc, the answer is preventive detention. Preventive detention is therefore permissible under the various provisions of the Constitution, some of which I shall enumerate:
35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:-
(d) In the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) For the purpose of preventing the unlawful entry of any person

into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
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
Preventive detention is also permitted or sanctioned in the Constitution (supra) under the following circumstances:
45(1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) In the interest of defence, public safety, public order, public morality or public health; or
(b) For the purpose of protecting the rights and freedom or other persons.
(2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of Section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such

act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:
Provided that nothing in this section shall authorize any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of Section 36(8) of this Constitution.
(3) In this section, a ” period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under Section 305 of this Constitution.
Preventive detention is reasonably justifiable in a democratic society in the interest of the defence of the Federal Republic of Nigeria against insurgents or insurgency. Preventive detention is also reasonably justifiable in a democratic society in the interest of public safety, public order, morality or public health or for the purpose of protecting the rights and freedoms of other persons.

The respondent also relied on Articles 4 and 5 of

the African Charter On Human and Peoples Rights (Ratification and Enforcement) Act (Cap.A9), Laws of the Federation of Nigeria, 2004. The onus of proving that a person or group of persons were arbitrarily deprived of their right is on the detainee. The Fundamental Rights (Enforcement Procedure) Rules, 2009 under which this application was brought in the Lower Court provides under Order 4 Rules 1-4 as follows:
1(1) In an application where the applicant complains of wrongful or unlawful detention, the Court or Judge to whom the application is made ex-parte may make an order forthwith for his release from such detention, or may:-
(a) Direct that an originating summons as in the Form 2 in the Appendix be issued or that an application therefore be made by notice of motion, as in the Form 3; or
(b) Adjourn the ex-parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.
(2) The summons or notice of motion must be served on the person against whom the order for the release of the applicant is sought and on such other persons as the Court or Judge may direct,

and, unless the Court or Judge otherwise directs, there must be at least five clear days between the service of the summons or motion and the date named therein for the hearing of the application.
(3) Every party to an application under Rule 1 must supply to every other party copies of the affidavit which he proposes to use at the hearing of the application.
2. Without prejudice to Rule 1(1), the Court or Judge hearing an application where the applicant complains of wrongful or unlawful detention may, in its or his discretion, order that the person restrained be produced in Court, and such order shall be a sufficient warrant to any superintendent of a prison, police officer in charge of the police station, police officer or constable in charge of the complainant, or any other person responsible for his detention of the production in Court of the person under restraint.
3. Where an order is made for the production of a person is restrained, the Court or Judge by whom the order is made shall give directions as to the Court or Judge before whom, and the date on which, the order is returnable.
4(1) Subject to Paragraphs (2) and (3), an order for

the production of the person restrained must be served personally on the person to whom it is directed.
(2) If it is not possible to serve such an order personally, or if it is directed, to a police officer, or a prison superintendent or other public official, it must be served by leaving it with any other person or official working in the office of the police officer, or the prison or office of the superintendent or the office of the public official to whom the order is directed.
(3) If the order is made against more that one person, the order must be served in the manner provided by the rule on the person first named in the order and copies must be served on each of the other persons in the same manner.
(4) There must be served with the order (in the Form 4 in the Appendix) for the production of the person restrained, a notice (in the Form 5 in the Appendix) stating the Court or Judge before whom, and the date on which the person restrained is to be brought.
The reliefs claimed in the Court below are to the effect that the respondents arrest and continuous detention is wrongful or unlawful, unconstitutional and

illegal. But Sections 35(1)(c) and 45(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 sanctions the circumstances under which a persons personal liberty shall be deprived provided it is in accordance with a procedure permitted by law. The onus is on the respondent to show that his case comes within the ambit of persons whose arrest or detention or continuous detention are wrongful or unlawful and constitutes a violation of the provisions of Section 35(4)-(6) of the Constitution (supra) which reads as follows: (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.
Indeed, the exercise of jurisdiction conferred on any Court under the Fundamental Rights (Enforcement) Procedure Rules, 1979, etc, arises only when the respondent is able to show either in an exparte application or motion on notice that the arrest and detention was wrongful or unlawful. Without these two conditions precedent, a Court of

justice would lack the competence to entertain the application. Wrongful means 1. Characterized by unfairness or injustice 2. Contrary to law; unlawful The word unlawful means 1. Not authorized by law; illegal 2. Criminally punishable 3. Involving moral turpitude unlawful act conduct that is not authorized by law; a violation of a civil or criminal law. See Blacks Law Dictionary, 9th edition, pages 1678 and 1751.
The applicant must therefore show that the detention was either wrongful or unlawful for the Court to assume jurisdiction and grant the exparte application. But if upon granting the exparte application the respondent subsequently shows during the hearing of the substantive application that the arrest and detention of the claimant was neither wrongful or unlawful but was in accordance with a procedure permitted by law. (See Section 35(1) of the Constitution, the Court ought to decline jurisdiction as the two conditions precedent for the affirmation of the exparte orders made before the hearing of

the application on the merit had not been established by the claimant.
In Adeigbe & Anor. vs. Kusimo & Ors. (1965) NMLR 284, Ademola, C.J.N. held at page 287 as follows:
There seems to be a confusion of thought between jurisdiction and regularity; between the competence of the Court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case.
The matter was aptly put in a judgment of this Court in the Appeal Gabriel Madukolu vs. Johnson Nkemdilim (6) where Bairamian, F.J. put it thus:
A Court is competence when:-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
He continues:
Any defect in competence is fatal, for the

proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.
If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the Appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.
A cause of action is defined in Savage vs. Uwechia (1972) 3 SC 214 at 221 per Fatayi-Williams, JSC (as he then was) at page 214 thus:
A cause of action is defined in Strouds Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent

damage. As Lord Esher said in Cooke vs. Gill (1873) L.R. 8 C.P. 107 and later in Read vs. Brown (1888) 22 Q.B.D. 128 (C.A.), it is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court (See also Kusada vs. Sokoto Native Authority, SC 131/68 delivered on 13th December, 1968, where the definition in Read vs. Brown (supra) was referred to with approval.
See also Johnson vs. Osaye (2001) FWLR (Pt.68) 1197 at 1209-1210.
I referred to the facts presented by the respondent to obtain the exparte remedies in the Lower Court. These facts have to be examined in conjunction with those presented by the appellants at the hearing of the substantive application to see whether the arrest and continuous detention of the respondent was wrongful or unlawful.
Section 131(1)-(2) and 132 and 141 of the Evidence Act, 2011 provides as follows:
131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person

is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

141. Any exception, exemption, provision, excuse, qualification, whether it does or does not accompany in the same section the description of the offence in the legislation creating the offence, may be proved by the defendant, provided that the prosecution is not required to specify or refute any of the exceptions mentioned in this section and if specified or denied, no proof in relation of the matter so specified or denied shall be required on the part of the prosecution.

At page 56 of the printed record is to be found Exhibit C which reads as follows:
Defence Headquarters,
Ministry of Defence,
P.M.B. 309,
Garki Abuja,
Tel: 09-2340129.
13th March, 2014.

DHQ/ABJ/401/3/4/ADM
The Honourable Attorney-General of the Federation,
Federal Ministry of Justice,
Shehu Shagari Way, Maitami,
Abuja.
CASE FILES

ON SUSPECTED INSURGENTS
1. I am directed to refer to the Report of the Joint Investigation Team vide DHQ/ABJ/40/3/4/DLS dated 4 November, 2013 to forward 801 case files in respect of 1,384 suspected insurgents recommended for prosecution. I am to state that the case files cover 553, 145 and 103 insurgents detained in Borno, Yobe and Adamawa States respectively.
2. Please acknowledge and accept the assurances and esteemed regards of the Chief of Defence Staff.
A. SHEHU-OTHMAN
Air Commodore
For: Chief of Defence Staff.

Exhibit DHQ at pages 58-65 of the printed record is titled Report of Defence Headquarters Joint Investigation Team For the Screening of Detained Insurgents. This was produced since November, 2013 and styled Confidential. The Report was prepared by high ranking officers from the Armed Forces of the Federation of Nigeria and forwarded to the Federal Attorney-General for immediate prosecution of the insurgents. Pages 59-60 of the Report reads in part as follows: Furthermore, the Team wishes to acknowledge the position of the Nigerian

Judiciary as the last bastion of the society and reaffirms its confidence in the Courts in discharging its constitutional roles of upholding the rule of law and restoring social order in the North East and indeed the entire nation.
RECOMMENDATIONS
83. It is recommended that:
(a) DHQ should advice the FGN to co-opt the NFIU and CBN in future JIT to ease the bureaucracy of financial tracking of illicit funds.
(b) DHQ should liaise with NPF, NCS, NIS, SSS and other security agencies operating within Nigerias borders in developing a strategy for curbing illegal importation of firearms.
(c) DHQ should task NIA and DIA to identify terrorist training camps within and outside the West African sub-region, monitor Nigerians who patronize such camps and advice FGN appropriately.
(d) FGN should build permanent and dedicated prisons for suspected insurgents, awaiting trial and convicted terrorists.
(e) DHQ should in the interim, reinforce security in all the temporal detention facilities for BH suspects.
(f) DHQ should forward the case files of 517 suspects with prima facie cases in Borno, Yobe and Adamawa States, to the

HAGF for immediate prosecution.
v. ASA should, through the Ministry of Foreign Affairs, explore diplomatic ways of enlisting the cooperation and collaboration of Cameroun in the fight against terrorism.
vi. ASA should set up a Commission that will regulate religious preaching in the public and encourage states to adopt similar policies.

I have refrained from naming the high ranking officer corps and other ranks that prepared the Report since they may be targeted by the insurgents, some of whom had been unlawfully released by some other ranks within the Armed Forces without authorization. The report lists the respondent as No.143 out of the 517 insurgents that were recommended to the Attorney-General and Minister of Justice with immediate prosecution. The 517 insurgents were described as having prima facie cases in Borno, Yola and Adamawa States. Whether the Honourable Attorney-General and Minister of Justice of the Federation of Nigeria at that time acted on the report or not, is not a matter before this Court. But it can be seen that when this proceedings were instituted and served on the appellants they did not

appear in the Court below to defend the proceedings hence the Federal Judge favoured the respondent. It took more than one year afterwards for the decision to be set aside so that the application would be heard on the merit.

Pages 1-5 of the printed record is the motion on notice, reliefs sought, the grounds on which the reliefs were claimed and the supporting affidavit. They read as follows: (a) A DECLARATION that the arrest, detention and continuous detention of the applicant by the respondents, its officers, servants/agents and privies constitute a violent breach of the applicants right as guaranteed under Sections 35(1) and (4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act and it is therefore illegal and unconstitutional.
(b) A MANDATORY order directing the respondents, their officers, servants/agents and privies however called to forthwith release applicant from detention in their custody.
(c) AN ORDER directing the respondents to forthwith open the applicant shop at Maiduguri Road,

Damaturu, Yobe State which was closed by respondents.
AND for such further order(s) as this Honourable Court may deem fit to make in circumstances.
GROUND UPON THE RELIEFS ARE SOUGHT:
(i) Arrest, detention and the continuous detention of the applicant is contrary to Sections 34, 35, 36, 37 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 4 and 5 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act.
(ii) The applicant is entitled to the remedy that his arrest, detention and continuous detention are unconstitutional.
(iii) That the applicant has been in detention for over 10 months without knowing his fate or been charged before any Court of competent jurisdiction.
(iv) That the applicant did not commit any criminal act at any point in time.

following facts:
1. That I am a Litigation Secretary II in Doka Chambers, Jos Counsel to the applicant by virtue of which position I am conversant with the facts deposed to herein.

2. That I have the consent and authority of the applicant and that of my employers to depose to this affidavit.
3. That I have been informed by the families of the applicant at Damaturu, Yobe State while briefing M.A. Haruna, Esq. at 12:00pm on the 24th July, 2013 which information I verily believe to be true:-
(a) That the applicant is a businessman and the Current Chairman of Yobe State Traders Association.
(b) That the respondents are in charge of the Joint Task Force in Yobe State.
(c) That the applicant was arrested by members of the Joint Task Force (JTF) under the command of the respondents, on 18th September, 2012 at his shop along Maiduguri Road, Damaturu, Yobe State about 5:00pm.
(d) That the applicant has since then been in detention without being charged to any Court for any offence up till now.
(e) That the applicant did not commit any offence and he has not been informed of committing any offence since his arrest about 10 months ago.
(f) That the applicant is a law abiding citizen with 4 wives, 14 children, aged parents and many dependants.
(g) That the families of the applicant are facing untold

hardship since his arrest as no one is providing for their maintenance.
(h) That the children of the applicant are stranded at home without going to school.
(i) That the respondents have closed down the shop of the applicant since his arrest which is the only source of his income.
(j) That the respondents have denied access to the applicants shop which is the only means of his family sustenance.
(k) That the applicant has perishable goods in his shops and those whose date of expiration are short.
(l) The respondents are only desirous of inflicting pain on the applicant by detaining him in its custody for no just cause and without trial.
4. That it is in the interest of justice to grant this application.
5. That I, Ibrahim Bala, do solemnly and sincerely declare that I make this declaration in good faith conscientiously believing its contents to be true to the best of my knowledge, information and belief and in accordance with the Oaths Act.

Page 11-20 of the printed record contains what Oyetola Atoyebi, Esq. of Counsel representing the appellants called the bureaucratic bottleneck of dissemination

of information from agencies of Government which, according to learned Counsel was responsible for the failure to enter an appearance and/or enter defence in the suit so as to defend the proceedings.

Who is an insurgent What is the meaning of insurgency and insurrection
An insurgent is one who rises in revolt against constituted authority; a rebel who is not recognized as a belligerent Insurrection is further defined at page 879 of the Blacks Law Dictionary (supra) as follows:
Insurrection A violent revolt against an oppressive authority, usually a government. Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection, there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of

political society. 77 C.J.S. Riot; Insurrection, 29, at 579 (1994). Insurgency is a rising, revolt that may lead to an insurrection. An insurrection is 1. The action of rising in arms or open resistance against established authority or governmental restraint with an armed rising, a revolt; an incipient or limited rebellion further a person fighting against the government or armed forces of their own country. See Oxford Advanced Learners Dictionary, 9th edition, page 817.
Insurrection may also be defined as a situation in which a large group of people try to take political control of their own country with violence uprising etc, Insurgency is also an attempt to take control of a country by force rebellion.

Section 1(1)-(3)(1)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as

follows: 1(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
2. (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.
(2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.
3(1) There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.
(2) Each state

of Nigeria, named in the First Column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of that Schedule.
(3) The headquarters of the Governor of each State shall be known as the Capital City of that State as shown in the Third Column of the said Part I of the First Schedule opposite the State named in the first column thereof.
(4) The Federal Capital Territory, Abuja, shall be as defined in Part II of the First Schedule to this Constitution.
(5) The provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.
(6) There shall be 768 Local Government Areas in Nigeria as shown in the Second Column of Part I of the First Schedule to this Constitution and six area councils as shown in Part II of that Schedule.
Insurgents seek to take control or overthrow the Federal Republic of Nigeria or parts thereof by insurrection using violence and arms that will not be in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999

as amended. The remedy is preventive detention under Section 35(1)(c) and 45(1)(a) and (b) of the Constitution. These provisions should be invoked by the Armed Forces of Nigeria to detain a person or group of persons for the purpose of protecting Nigeria and the rights and freedoms of other persons until such a time that the threat to defence, public safety, public morality, public order, public health, etc, abates, or the insurgents recant their criminal or insurrective tendencies. In such a situation, preventive detention would be reasonably justifiable in a democratic society.
State Security Services may utilize preventive detention to such extent as may be reasonably necessary to prevent a suspect or group of persons committing a criminal offence or offences as the case may be. Since no offence has yet been committed, the question of detaining such a person or group of persons for a period longer than the maximum prescribed for the offence may or may not arise depending on the circumstances or the facts of each case. Section 35(4) to 7 of the Constitution (supra) provides as follows: (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.

Section 35(6) of the Constitution (supra) also provides as follows:
(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.
This compensation and public apology is for any person who is unlawfully arrested or detained without proof of the two conditions precedent a person or group of persons arrested or detained by the security forces are not entitled to compensation or public apology. Furthermore, Section 35(7) of the Constitution (supra) provides that:
(7) Nothing in this section shall be construed:-
(a) In relation to Subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) As invalidating any law by reason only that it authorizes the detention for a period not exceeding three months of a member of the armed forces of the federation or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the armed forces of the Federation or of the Nigeria police force, in respect of an offence punishable by

such detention of which he has been found guilty.
Section 35(4)-(6) of the Constitution is confined and limited to Any person who is arrested or detained in accordance with Subsection 1(c) of this section That is when he or she “shall be brought before a Court of law within a reasonable time. The provisions of Section 35(1)(c), (4)-(6) of the Constitution (supra) are not of a general application in all cases. That is manifest in Section 35(7) of the Constitution.
A verdict of guilt in a trial founded on culpable homicide will attract the death sentence hence it cannot be argued that a suspect or suspects arrest and detention will constitute his keeping in detention for a period longer than the maximum period of imprisonment prescribed for the offence under Section 35(1)(c) and (f) of the Constitution (supra). If death is the verdict upon conviction, the provisions of Section 35(1), (4)-(7) of the Constitution will not apply.
Attention has to be drawn to An Ordinance to Supplement the Northern Penal Code of the Northern Region in respect of matters within the Exclusive

Legislative Competence of the Legislature of the Federation, and for purposes Ancillary thereto. See page 328-342 of the Penal Code Law. In this Law, an insurrection is also equivalent to the levying of war against the Sovereign nation called the Federal Republic of Nigeria. It is treason in order to intimidate the inhabitants of this great nation and destabilize the West African Sub-region and Africa in general. The punishment in Section 410(1) and 411 of the Penal Code Law is death. See the preamble to the Ordinance. Sections 410-412 of the Penal Code Law list offences that are within the Exclusive Legislative Competence of the Federation not provided for in the Penal Code. The preamble states thus: AND WHEREAS it is necessary and expedient that such matters should be provided for the Federal Legislation and that the provisions of such legislation should take effect with the Penal Code so that the whole may conveniently be read as one Code in the Northern Region, in replacement for that contained in the Criminal Code Ordinance of the Federation? See page 328-329 of the Notes on the

Penal Code Law, 4th edition, 1987, by S.S. Richardson. The verdict for insurrection, treason or treasonable felony is death.
With the coming into force of the Constitution of the Federal Republic of Nigeria, 1999 as amended on 29th May, 1999, defence, deportation of persons who are not citizens of Nigeria and extradition are listed as items 17, 18 and 27 on the Exclusive Legislative List. Also listed in the Exclusive Legislative List are the Military (Army, Navy and Air force) including any other branch of the armed forces of the Federation (item 38). Item 45 names Police and other government security services established by law. Quarantine is Item 54.
In other jurisdictions, insurrection and treason or treasonable felony, etc, is the death penalty. In Osborns Concise Law Dictionary, 9th edition, treason and treason felony is defined at page 383 as follows:
Treason: Breach of allegiance. There existed formerly both high treason and petty treason. Under the Treason Act, 1351 high treason was limited to: (1) compassing or imagining the death of the King, or of his Queen, or of their eldest son and heirs;

(2) violating the Kings consort, or the Kings eldest daughter unmarried, or the wife of the Kings eldest son and heir; (3) levying war against the King in his realm; (4) adhering to the Kings enemies in his realm, giving them aid or comfort in the realm, or elsewhere; (5) slaying the Chancellor or the Judges. In all prosecutions for treason some overt act must be alleged and proved. In view of the doctrine of constructive treason (q.v.), treason was further defined by the Treason Act, 1795 to include compassing, etc, the death, or any harm tending to the death, wounding, imprisonment or restraint of the King.
Petty treason was where a servant killed his master, a wife her husband, or an ecclesiastic person his superior. It was converted into the crime of murder by the statute 9 Geo. 4, c.31, s.2.
Treason felony The Treason Felony Act, 1848 provides that treason felony consists in an intention to depose or levy war upon the Sovereign or compel him to change his measures or counsels, or to intimidate either House of Parliament, or to incite nay foreigner to invade the Kings dominions, coupled with an

expression of such intention by any printing or writing or by open and advised speech or by any overt act. The maximum penalty is imprisonment for life.
The authors of Blacks Law Dictionary, 9th edition defines treason and treason felony at page 1639 as follows:
Treason The offense of attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies. Also termed high treason; alta proditio. 1. Treasonable, treasonous.
The judgment of high treason was, until very lately, an exception to the merciful tenor of our judgments. The least offensive form which is given in the books is, that the offender be carried back to the place from where he came, and from there to be drawn to the place of execution, and be there hanged by the neck, and cut down alive, and that his entrails be taken out and burned before his face, and his head cut off, and his body divided into four quarters, and his head and quarters disposed of at the kings pleasure. Some of the precedents add other

circumstances, of still more grossness and aggravation. But this horrible denunciation was very seldom executed in its more terrible niceties. 1 Joseph Chitty, A Practical Treatise on the Criminal Law, 702 (2nd edition, 1826).
Several important characteristics marked off high treason from all other crimes. For one thing, it earned a peculiarly ghastly punishment. For another, it was unclergyable, while every felony was clergyable unless some statute had otherwise ordained. Thirdly, while the felons land escheated to his lord, the traitors land was forfeited to the king. This last distinction influenced the development of the law. 2 Frederick Pollock & Frederick William Maitland, History of English Law Before the Time of Edward, 1500 (2nd edition, 1899).
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court. U.S. Constitution, Article III, Section

3.
Treason felony English Law. An act that shows an intention of committing treason, unaccompanied by any further act to carry out that intention. This offense usually results in life imprisonment rather than the death.
What is the meaning of capital offence and defined under Section 37(a) of the Constitution (supra)? A capital offence is A crime for which the death penalty may be imposed Also termed capital crime. See Blacks Law Dictionary (supra) page 1186. Capital punishable is also defined in Oxford Advanced Learners Dictionary, 9th edition, page 218 as involving punishment by death: a capital offence.
It would seem to me that crimes that are punishable with death on conviction are exempt from the provisions of Section 35(4)-(7)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The period of arraignment of such suspects in a competent Court of justice as prescribed under Section 35(4)-(5) of the Constitution (supra), I boldly and confidently state, has no application to capital offenders, example,

insurgents or treasonable offenders.

I wish to also draw attention to the provisions of Section 37-44 of the Constitution of the Federal Republic of Nigeria, 1999 as amended as provided as follows:
37. The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.
38(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.
(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education

maintained wholly by that community or denomination.
(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.
39(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
(2) Without prejudice to the generality of Subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfillment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.
(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society:-
(a) For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of Courts or regulating

telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) Imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.
40. Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.
41(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.
(2) Nothing in Subsection (1) of this section shall invalidate any law that is reasonably justifiable in a

democratic society:-
(a) Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) Providing for the removal of any person from Nigeria to any other country to:-
(i) Be tried outside Nigeria for any criminal offence, or
(ii) Undergo imprisonment outside Nigeria in execution of the sentence of a Court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.
42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject;

or
(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
(3) Nothing in Subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.
43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
44(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such

property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things:-
(a) Requires the prompt payment of compensation therefore and
(b) Gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.
(2) Nothing in Subsection (1) of this section shall be construed as affecting any general law.
(a) For the imposition or enforcement of any tax, rate or duty;
(b) For the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence;
(c) Relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.
(d) Relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or incorporate bodies in the course of being wound-up;
(e)

Relating to the execution of judgments or orders of Court;
(f) Providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;
(g) Relating to enemy property;
(h) Relating to trusts and trustees;
(i) Relating to limitation of actions;
(j) Relating to property vested in bodies corporate directly established by any law in force in Nigeria;
(k) Relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;
(l) Providing for the carrying out of work on land for the purpose of soil-conservation; or
(m) Subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.
(3) Notwithstanding the foregoing provisions of

this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.
These fundamental rights are subject to the provisions of Section 45(1) and (2) of the Constitution (supra) in certain circumstances of each case. For example, insurgents and the property they hold and own are to be treated as enemies of the Federal Republic of Nigeria under Section 44(2)(g) of the Constitution (supra).
Insurgents that levy war on the Federal Republic of Nigeria cannot claim the protection afforded law abiding persons or citizens of Nigeria under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Neither can they hide under the African Charter On Human and Peoples Rights (Ratification and Enforcement) Act, 1983 to levy war on the Nigerian Federation or any part thereof. This will contradict the provisions of the preamble to the Constitution of

the Federal Republic of Nigeria, 1999 as amended which reads as follows:
We the people of the Federal Republic of Nigeria
Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding:
And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people
Do hereby make, enact and give to ourselves the following Constitution
The Constitution provides as follows:
4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out

in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by Subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:-
(a) Any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.

Section 4(6) of the Constitution (supra) also provides as follows: (6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b) Any matter included in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of

Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.
(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect. Levying any kind of war by insurrection against the Federal Republic of Nigeria or any part thereof on religious grounds violates the preamble of the Constitution and Part 1 Articles 1-29 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983. The preamble and the Articles of the Charter reads as follows:
PREAMBLE
The African States members of the Organization of African Unity, parties to the present Convention entitled African Charter on Human and Peoples Rights.
Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of a preliminary draft on an African Charter

on Human and Peoples Rights, providing inter alia for the establishment of bodies to promote and protect human and peoples rights;
Considering the Charter of the Organisation of African Unity, which stipulates that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples;
Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights;
Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples rights;
Recognizing on the one hand, that fundamental human rights stem from the attitudes of human beings, which justifies their international protection and on the other hand that the

reality and respect of peoples rights should necessarily guarantee human rights;
Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone;
Convinced that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights;
Conscious of their duty to achieve the total liberation of Africa, the people of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, Zionism and to dismantle aggressive foreign military bases and all forms of discrimination, language, religion or political opinions;
Reaffirming their adherence to the principles of human and peoples rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of

Non-Aligned Countries and the United Nations;
Firmly convinced of their duty to promote and protect human and peoples rights and freedoms and taking into account the importance traditionally attached to these rights and freedoms in Africa;
HAVE AGREED AS FOLLOWS:
ARTICLE 1
The Member States of the Organization of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.
ARTICLE 2
Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.
ARTICLE 3
1. Every individual shall be equal before the law
2. Every individual shall be entitled to equal protection of the law.
ARTICLE 4
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may

be arbitrarily deprived of this right.
ARTICLE 5
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
ARTICLE 6
Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
ARTICLE 7
1. Every individual shall have the right to have his cause heard. This comprises:
(a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
(b) The right to be presumed innocent until proved guilty by a competent Court or tribunal;
(c) The right to defence, including the right to be defended by counsel of his choice;
(d) The right to be tried within a reasonable

time by an impartial Court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
ARTICLE 8
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
ARTICLE 9
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
ARTICLE 10
1. Every individual shall have the right to free association provided that he abides by the law.
2. Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.
ARTICLE 11
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by

law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
ARTICLE 12
1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions.
4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.
ARTICLE 13
1. Every citizen shall have the right to participate freely in the government

of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
2. Every citizen shall have the right of equal access to the public service of the country.
3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
ARTICLE 14
The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
ARTICLE 15
Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.
ARTICLE 16
1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
ARTICLE 17
1. Every individual shall have the right to education
2. Every individual may freely take part

in the cultural life of his community.
3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.
ARTICLE 18
1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.
2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.
4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.
ARTICLE 19
All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.
ARTICLE 20
1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They

shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
ARTICLE 21
1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2. In case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
4. State Parties to the present

Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity.
5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
ARTICLE 22
1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
ARTICLE 23
1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States.
2. For the purpose of strengthening peace, solidarity and friendly

relations, State Parties to the present Charter shall ensure that:
(a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter;
(b) Their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter.
ARTICLE 24
All peoples shall have the right to a general satisfactory environment favourable to their development.
ARTICLE 25
State Parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.
ARTICLE 26
State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and

freedoms guaranteed by the present Charter.
DUTIES
ARTICLE 27
1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community.
2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.
ARTICLE 28
Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
ARTICLE 29
The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.
2. To serve his national community by placing his physical and intellectual abilities at its service;
3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity, particularly when the latter is

strengthened;
5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law;
6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;
8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.
Insurrection by insurgents will interfere with the legislative powers of the National and State Houses of Assembly to make laws for the peace, order and good government of the Federation or any part thereof contrary to the provisions of Section 4(2) to (7)(k) of the Constitution (supra).
Neither the preamble nor Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended nor the preamble and Articles 1 to 29 of the African Charter

permits the dismemberment of Nigeria or any part thereof by insurgents through insurgency. When insurgents are arrested and detained, it is for the protection of the interest of defence, public safety, public order, public morality or public health or it should be for protecting the rights and freedoms of other persons. The case or situation is taken out of the provisions of determining the freedom, rights, liberty or justice under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended nor Articles 1-29 of the African Charter, etc. Articles 1-29 of the African Charter, etc, seeks to guarantee and protect the fundamental rights of our people whose cherished desire is for Nigerians to live in unity and harmony as one indivisible and indissoluble Sovereign Nation under God dedicated to the promotion of inter-African Solidarity, world peace, international co-operation and understanding. The chapter is for promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and to consolidate the unity of our people. Insurgents should not be considered as our people or

as we the people of the Federal Republic of Nigeria under the preamble to the Constitution (supra). They are enemies of the Federation that their acts being inconsistent with the provisions of the Constitution are to extent ought to void ab initio.

In Quo Vadis Hotels and Restaurants Ltd. vs. Commissioner of Lands Mid-Western State & Ors. (1973) 1 All NLR (Pt.1) 660 Coker, JSC held at page 669-673 as follows:
With it must also fail the argument of the learned Solicitor-General which is peculiarly attractive and holds out the view that the Commissioner of Lands had taken out the present proceedings under the common law. Reliance was placed for this proposition on Section 12 of the High Court Law (Mid-West) No.9 of 1964 which reads as follows:
12. The jurisdiction by this Law vested in the High Court shall be exercised (so far as regards procedure and practice) in the manner provided by this Law, the Criminal Procedure Act or any other Act of Parliament or written Law, or by such rules and orders of Court as may be made pursuant to this or any other Law or Act.

Clearly this section of the High Court deals

with practice and procedure and authorized the High Court of the Mid-West State to adopt in the exercise of the jurisdiction vested in it by law the practice and procedure described in the section. We cannot see how this section eo ipso can confer any power or authority on the Commissioner of Lands to institute the particular type of action with which we are here concerned. What we are concerned with in this controversy is the competence of the present plaintiff to institute the present action.

It is fundamental that a person who institutes an action in Court must be competent to do so and in the case of Ajao vs. Sonola & Anor. delivered on the 10th May, 1973 (see page ante) this Court observed thus with respect to the issue of competence:-
We think it is settled that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.
See also Lawal & Ors. vs. Younan & Sons & Co. (1961) All NLR 245 at p.254.

The section of the High Court Law to which the learned

Solicitor-General had referred, deals with the way in which the Court should exercise its jurisdiction. And before us learned Counsel for the second defendants had not attempted to attack or impugn the jurisdiction of the Court to entertain the action if and only if the plaintiff was competent to institute that action.

Learned Solicitor-General had submitted then that the Commissioner of Lands was competent to maintain this and indeed any type of action before a competent Court. No authority was produced or cited to us for this submission since it is universally recognized that the Departments of Government are not, unless specifically provided by statute, entitled to sue or liable to be sued in respect of official acts done by them in their respective official capacities. If that were not so, the Commissioner of Police or the Superintendent of Prisons or the Director of Surveys or indeed any other head of a Government Department would be entitled at the suit or at the expense of government to take out civil actions, against citizens in respect of any cause or causes of action.

We are satisfied that this would lead to monstrous consequence and we are

not surprised that it was impossible to produce any authority in support of such a submission.

It is convenient to deal with the argument concerning the powers of the Commissioner of Lands under the Native Lands Acquisition Law, for in this connection as well, the learned Solicitor-General had argued that the Commissioner of Lands was by that Law competent to institute the present proceedings. We set out hereunder the provisions of Sections 4, 5 and 6 of the Native Lands Acquisition Law Cap.80:-
4(1) It shall be unlawful for any alien or for any person claiming under an alien to occupy any land belonging to a native, unless the right of the alien to occupy or authorize the occupation of the land:-
(a) Was acquired in a transaction which has received the approval of the Governor in accordance with Section 3; or
(b) Was acquired by virtue of any regulations or order made pursuant to Sub-section (1) or Sub-section (2) of the Section 7; or
(c) Is evidenced by an instrument which has received the approval of the Governor in writing under any statutory provision in force at the time of the approval; or
(d) Was acquired, if

the land is situate in that part of the Western Region which in the year 1900 was included in the Protectorate of Southern Nigeria, before the 1st of January, 1900, and in the case of lands situate elsewhere, before the 30th March, 1908; or
(e) Is authorized by or under any Ordinance or Law.
(2) Any alien or other person who is in unlawful occupation of land belonging to a native, shall be guilty of an offence and liable on summary conviction to a fine of one hundred pounds or imprisonment for twelve months.
5(1) Where it appears to the Court that any alien, or person claiming to be entitled under an alien, is in unlawful occupation of any land belonging to a native, the Court may, on the application of the Attorney-General or the Commissioner of Lands or any person authorized by the Governor or on its own motion, cause a summons to be issued to such alien or person aforesaid, requiring him to appear before the Court and produce the instrument by virtue whereof the alien, who is occupying the land or under whom the land is occupied, is entitled to occupy or authorize the occupation of the same, or a copy of such instrument certified in

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accordance with the law relating to the registration of instruments.
(2) If on the hearing of such summons the Court shall find that such alien or person claiming under an alien is occupying land belonging to a native, and such alien or person fails to satisfy the Court that such occupation is lawful, the Court shall order such alien or person aforesaid to give up possession of the land, and shall issue such process as may be necessary for enforcing such order.
6. Notwithstanding the provisions of any written law to the contrary, proceedings for an offence against any provision of this Law and all civil proceedings hereunder, shall be brought in the name of the Commissioner of Lands and may be instituted and conduct by him or any person authorized by him generally, or specifically in relation to any particular proceedings or class of proceedings, by writing under his hand.
Manifestly Section 4(2) creates the criminal offence (and the punishment therefore) committed by an alien who is in breach of the provisions of Section 4(1) and similarly Section 5(1) prescribes a summary civil process of ejectment to be initiated by an

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application of the Attorney-General or the Commissioner of Lands or any person authorized by the Governor or on the Courts own motion. The application is for the issue of summons as described in Section 5(1) and the procedure is outlined in the section. Then comes Section 6 which deals with proceedings for an offence against the Native Lands Acquisition Law and all civil proceedings hereunder and the introductory words of which section clearly exclude, for the purposes of the section, the application of the provisions of any written law to the contrary. Learned Counsel for the second defendants had submitted that the Commissioner of Lands acting under the power conferred on him by the Native Laws Acquisition Law can only exercise those powers in conformity with Section 6, that is, for the purposes of the criminal offence or offences under Section 4(2) and the civil proceedings of ejectment described in Section 5(1) and indeed in support of this learned Counsel referred to a number of authorities including the Institute of Patent Agents vs. Lockwood (1894) A.C. 347 where Lord Herschell, L.C., dealing with a similar situation observed thus at

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pages 361-362 of the Report:
You have here, for the first time, a new offence created the offence of practising as a patent agent without being on the register The Legislature, having created that new offence, has prescribed the punishment for it, namely, a penalty of 20. Can it possibly under these circumstances be open to bring the individual, not before the summary Court at small expense to determine the question of his liability to a 20 penalty, but to bring him before the Court of Session with its attendant expense and to ask the Court of Session to make a declaration that he has been breaking the law in a manner which the Legislature has said subjects him to a penalty, and then, having proved that he has rendered himself liable to a penalty, to ask the Court of Session to interdict him, with this result, that if he were to offend again he would not be subject to the summary procedure and the 20 penalty, but would be liable to imprisonment for breach of the interdict

The African Charter, etc, is founded on the principles of freedom, equality, justice and dignity. These elements are

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essential for the achievement of the legitimate aspirations of the African peoples as provided in the second preamble to the Charter. The Charter clearly provides that the enjoyment of rights and freedoms also inspires the performance of duties on the part of everyone hence it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality of economic, social and cultural rights is a guarantee for the enjoyment of civil and political right. See the preambles 6 and 7 of the Charter.
Section 1 of the African Charter provides as follows:
The Member States of the Organization of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.
The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, supra forms part of the domestic laws of this country. See Abacha vs.

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Fawehinmi (2000) 4 SC (Pt.2) 1 at 21 and Ogugu vs. The State (1994) 9 NWLR (Pt.333) 1.

In Langton vs. Hughes (1813) 1 M&S 593 Ellenborough, C.J., said that: What is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action, cited with approval in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313-314 per Somervell, L.J. See also Brightman vs. Tate (1919) 1 K.B. 463; Re Mahmoud and Ispahani (1921) 2 K.B. 716.
An insurgent or a treasonable felon that levies war on Nigeria cannot claim the protection afforded in Chapter IV of the Constitution nor Articles 1-29 of the African Charter, etc.
Arising from this is that no illegality should be enforced by the Courts of this land. See Scott vs. Brown (1891-94) All E.R. Rep.654 at 657; Pan Bishildei Ltd. vs. 1st Bank Nig. Ltd. (2000) FWLR (Pt.2) 177. Neither should a Court of this land allow anybody to profit from his or her wrongdoing. See The Capella (1861-73) All E.R. Rep. 433. In Brosette Manufacturing Nig. Ltd. vs. M/S Ola Ilemobola Ltd. (2007) All FWLR (Pt.379) 1340 where Ogbuagwu, JSC held at page 1380 to 1381

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as follows:
This Court will not oblige it. This is because, it will not allow any person or party or body to benefit from his or its own wrong. See the case of Solanke vs. Abed (1962) 1 All NLR 230, (1962) NRNLR 92 and Re London Celluloid Y.O. (1888) 3 Ch.D. 206. The appellant, going by its petition alleging illegal sublease, eventually became a party to the alleged illegal sublease.
The 1st respondent pleaded in paragraph 41 of its amended statement of claim about the above facts and curiously and significantly as also stated by the Court below at page 224 of the records, in its paragraph 18 of its statement of defence, the appellant admitted the said averment in the 1st respondents paragraph 41 thereof. I am not surprised that the Court below stated inter alia, as follows:
The fourth respondent deserves whatever eventually befalls it and deserves no sympathy for his fate or misfortune. Its hands were soaked in blood and could not expect equity to come to its aid. The outcome of this appeal is not against an innocent third party but a party who deliberately set out to plan and execute evil and has unfortunately, sorry,

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fortunately reaped whirlwind.
I agree, except that, with respect, I do not agree about the appellant, soaking its hands in blood, although this expresses the disgust of the learned Justice in respect of the whole or entire scenario in all the circumstances of this case.

The Federal Government should build or establish specialized prisons or camps for the detention of insurgents and treasonable offenders. The United States of America has Guatemala Bay for such a purpose though she is the mother of all democracies.

Sections 13-14 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as follows:
13. It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.
14(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
(2) It is hereby, accordingly declared that:
(a) Sovereignty belongs to the people of Nigeria from whom government through

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this Constitution derives all its powers and authority;
(b) The security and welfare of the people shall be the primary purpose of government: and
(c) The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.
(3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.
(4) The composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognize the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.

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Insurgents do not intend to participate in the government of Nigeria. They do not cherish peaceful co-existence with other Nigerians hence should not be treated with kid gloves. Their aims and objectives contradicts Section 15-17, 21, 23-24 of the Constitution (supra) which reads as follows:
15(1) The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress.
2) Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.
(3) For the purpose of promoting national integration, it shall be the duty of the State to:
(a) Provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation.
(b) Secure full residence rights for every citizen in all parts of the Federation.
(c) Encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; and
(d) Promote or encourage the formation of associations that cut across ethnic,

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linguistic, religious and or other sectional barriers.
(4) The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties.
(5) The State shall abolish all corrupt practices and abuse of power.

Insurgents do not encourage national integration. The Constitution also provides as follows:
16(1) The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution.
(a) Harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy;
(b) Control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity;
(c) Without prejudice to its right to operate or participate in areas of the economy, other than the major sectors of the economy, manage and operate the major sectors of the economy;
(d) Without prejudice to the right of any person to participate in areas of the economy

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within the major sector of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.
(2) The State shall direct its policy towards ensuring:
(a) The promotion of a planned and balanced economic development;
(b) That the material resources of the nation are harnessed and distributed as best as possible to serve the common good;
(c) That the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; and
(d) That suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions and unemployment, sick benefits and welfare of the disabled are provided for all citizens.

The maximum welfare, freedom and happiness of every citizen on the basis of social justice, equality of status and opportunity will not be secured by the state if insurgents are allowed to have their way. The Constitution further provides that:
17(1) The State social order is founded on ideals of Freedom,

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Equality and Justice.
(2) In furtherance of the social order:-
(a) Every citizen shall have equality of rights, obligations and opportunities before the law;
(b) The sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced;
(c) Governmental actions shall be humane;
(d) Exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented; and
(e) The independence, impartiality and integrity of Courts of law, and easy accessibility thereto shall be secured and maintained.
(3) The State shall direct its policy towards ensuring that:-
(a) All citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;
(b) Conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;
(c) The health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;
(d) There are adequate

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medical and health facilities for all persons:
(e) There is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;
(f) Children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect;
(g) Provision is made for public assistance in deserving cases or other conditions of need; and
(h) The evolution and promotion of family life is encouraged.

21. The State shall –
(a) Protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives as provided in this Chapter; and
(b) Encourage development of technological and scientific studies which enhance cultural values.

23. The national ethics shall be Discipline, Integrity, Dignity of Labour, Social Justice, Religious Tolerance, Self-reliance and Patriotism.
24. It shall be the duty of every citizen to:-
(a) Abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;

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(b) Help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;
(c) Respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood;
(d) Make positive and useful contribution to the advancement, progress and well-being of the community where he resides;
(e) Render assistance to appropriate and lawful agencies in the maintenance of law and order; and
(f) Declare his income honestly to appropriate and lawful agencies and pay his tax promptly.

The Fundamental Objectives and Directive Principles of State Policy are under threat from insurgents operating in all nooks and corners of the Federal Republic of Nigeria. If this is not timeously arrested or suppressed by preventive arrests or detention of insurgents, the Federal Republic of Nigeria may soon or in the near future become divisible and dissoluble, no longer a Sovereign Nation under God.

In Dokubo-Asari vs. FRN (2007) 12 NWLR (Pt.1048) 320 Muhammad, JSC held at pages 358-359 as follows:

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Let me observe from the outset, that although the respondent did not advert its mind to fully address the appellants issue, I must draw the attention of the learned Counsel for the appellant that the main discourse of his submission on issue two is on state of emergency. I think this is an unnecessary voyage in a world of fantasy. What is the relationship between grant of bail or refusal thereof with the suspension of a part of the Constitution i.e. Section 35 of that Constitution? What brought about the provisions of the Constitution which relate to the declaration of emergency? If refusal of bail to any person accused to have committed a crime will amount to jettisoning some part of the Constitution, or will invoke the declaration for a period of emergency, then this country, which I believe, is populated by majority of law abiding citizens, who always carry out their normal day to day life without instilling any fear or causing any havoc to anyone, at any time, will be doomed. The reference made by learned Counsel to provisions on emergency situations is nothing other than mere occasion of facts to whip-up sentimental sympathy. The learned

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Counsel is aware that Courts do not make laws. They interpret laws. Courts cannot amend the Constitution. Courts cannot suspend the Constitution or any part thereof. See: the case of Attorney-General of Bendel State vs. Attorney-General of Federation & Ors. (1981) 10 SC 1 at 134 (1981) NSCC 314; (1982) 3 NCLR 1. However, if, in its role of interpretation, a Court makes a pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the Court must find support from the same Constitution or any other statute of equal force. The pronouncement by the Court below is that where National Security is threatened or there is the real likelihood of it being threatened, human rights or the individual rights of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble Sovereign Nation, is certainly greater than any citizens liberty or right. Once the security of this nation is in

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jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.

Niki-Tobi, JSC held at page 363 as follows: It does not appear that learned Counsel for the appellant has examined the confessional statement of the appellant. I should quote some extracts from that statement:
The Niger Delta People Volunteer Force (NDPVF) which I led have totally disarmed. Hence armed struggle will predicate on the activities of the regime of the Nigerian State. I will pursue the course of the disintegration of Nigeria through the process of the Peoples National Conference The government of General Obasanjo is illegitimate. It retains power through the manipulation of the electoral process This has made me and others like me resent the government of the regime of General Obasanjo. When Nigeria eventually disintegrate the Ijaws will form a country of their own.
I clearly see signs of war from the above. I therefore agree with the Court of Appeal that there is a threat to national security. There is instability in the Niger Delta area and I do not

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think the appellant will assist in reducing the instability and turbulence there. On the contrary, it is clear from his statement that there is every likelihood for him to foment or instigate more trouble. This is certainly not in the interest of the region and Nigeria as a whole. The appellant should therefore be where he is to take his trial. He could be discharged and acquitted. He could be sentenced. That is for the trial Court. For now, all the criteria for granting trial bail are against him.

M.T. Salihu, J., sitting in the Federal High Court, Maiduguri, Borno State treated the respondent with kid-gloves when he held at page 193 to 195 of the printed record as follows:
From the affidavit evidence before the Court, I am bound to find that the detention of the applicant for a period of 3 years one month and 8 days without being arraigned before a Court of competent jurisdiction to hear the allegations against him is not supported by the Constitution. In fact, no matter the seriousness or the gravity of the allegation against the applicant, the law presumes him to be innocent. Indeed, it is unconstitutional. The detention is in breach

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of the clear provisions of the Constitution which guarantees the Fundamental Rights of all the people living in this country. Section 35(4) provides:-
Any person who is arrested or detained in accordance with Sub-section (1)(c) of this Constitution shall be brought before a Court of law within a reasonable time and if he is no 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, 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.
Reasonable time is explained in Sub-section (a) and (b). In any case, in the case at hand applicant that has been under the custody of the respondents from the 18th day of September, 2012 till date or whose letter for prosecution was forwarded to the Honourable Attorney-General of the Federation since on the 13th March, 2014 is yet to be arraigned before a Court of competent jurisdiction to face the trial of the allegations leveled against

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him. There is nothing before the Court to show or suggest that the prosecution is requiring a specific period of time to arraign applicant before a Court of competent jurisdiction. Nor is a prepared charge sheet against applicant exhibited to show that the prosecution is ready or willing to prosecute the applicant.
On the whole the prayers of the applicant under paragraphs (a) and (c) of his motion on notice are granted.
And I so grant.

The learned Federal Judge did not appreciate the fact that the death penalty is the verdict, upon conviction of an insurgent or a treasonable offender. The provisions of Section 35(4)-(6) of the Constitution (supra) nor Articles 4 and 5 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983 are therefore, inapplicable to the facts in this appeal. All the cases cited in argument by the learned Counsel to the respondent, relate to bailable offences; none is founded on insurrection by insurgents or treasonable felons.

In Dokubo-Asari vs. FRN (supra), Niki-Tobi, JSC held at page 362 to 363 as follows:
The general criteria for granting bail at the

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trial Court are follows: (a) The availability of the accused to stand trial. (b) The nature and gravity of the offence. (c) The likelihood of the accused committing offence while on bail. (d) The criminal antecedents of the accused. (e) The likelihood of the accused interfering with the course of justice. (f) Interference with investigations. The above apart, the criteria for granting bail by the trial Court include (a) Likelihood of further charge being made. (b) The probability of guilt. (c) Detention for the protection of the accused. (d) The necessity to procure medical or social report pending a final disposal of the case.
The main function of bail is to ensure the presence of the accused at the trial. See R. vs. Jammal 16 NLR 54; State vs. Okafor (1964) ENLR 96; R. vs. Rose (1898) 18 Cox C.C. 717; R. vs. Robinson (1854) 23 L.J. Q.B. 286; Ex parte Milburn 34 US 704 (1835); US vs. Ryder 110 US 729; Stack vs. Boyle 342 US 1 (1951). Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above. Dealing with the criterion, the working

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part on bail procedure in Magistrates Court in the United Kingdom, said in paragraph 22 of the report:
There are a number of other considerations to be taken into account in deciding a bail application, but in general they are not in themselves reasons for granting or refusing bail, but indicatory of the likelihood or otherwise of the defendants appearance.
As a matter of fact, all other criteria are parasitic on the omnibus criterion of availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the greater the incentive to jump bail although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the Court than one charged with a misdemeanour, like affray. The distinction between capital and non-capital offence in one way crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the accused person absconding. But the above is subject to the qualification

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that there may be less serious offences in which the Court may refuse bail, because of its nature. This does not however apply in this case because the appellant is charged with treasonable felony, a heinous offence carrying a prison term of life.
Where is the guarantee that if bail is granted to an insurgent or a group of insurgents, they may not retreat to their own countries or bases outside Nigeria from where they are operating or levying war against peace loving Nigeria? There is none.

This appeal is allowed. The appellants sought the following relief in the Notice of Appeal:
An order setting aside the entire judgment of the trial Court in its entirety.
I grant the appellants the above relief in its entirety.

Other Citations: (2016)LCN/8827(CA)

The Chief of Defence Staff & Anor V. Modu Alhaji Tijah (Makama) (2016) LLJR-CA

The Chief of Defence Staff & Anor V. Modu Alhaji Tijah (Makama) (2016)

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