Legalpedia Citation: (2023-04) Legalpedia 69753 (CA)

In the Court of Appeal

Holden at Sokoto

Fri Apr 14, 2023

Suit Number: CA/S/69FHR/2022

CORAM

MUHAMMED LAWAL SHUAIBU JUSTICE COURT OF APPEL

ABUBAKAR MAHMUD TALBA JUSTICE SUPREME COURT

MOHAMMED DANJUMA JUSTICE COURT OF APPEAL

PARTIES

Abubakar Mahmud Talba

APPELLANTS

1. THE COMMISSIONER OF POLICE ZAMFARA STATE COMMAND, GUSAU
2. THE ATTORNEY GENERAL OF ZAMFARA STATE. 3. THE CONTROLLER OF CORRECTIONS, NIGERIAN CORRECTIONAL SERVICES ZAMFARA STATE COMMAND

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, FUNDAMENTAL RIGHTS, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant was arrested together with one Yusuf Bala Dogo and taken to the police station on the allegation of being involved in the offence of conspiracy to commit armed robbery and armed robbery. The appellant spent 13 days at the Tudun wada police and another 11 days at the State Criminal Investigation Department (State CID) Gusau (a total of 24 days in police custody). The Appellant was eventually taken before the Chief Magistrate Court V, Gusau where he was remanded in prison custody for over three years because the Court lacks jurisdiction to try capital offences.

The appellant has remained in prison custody based on that remand order and no charge has been filed against the appellant, let alone a trial of the alleged offence. Consequently, the appellant filed an application for the enforcement of his right to personal liberty which was turned down by the High Court of Zamfara State in their decision.

He was aggrieved hence the instant appeal.

HELD

Appeal allowed

ISSUES

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

RATIONES DECIDENDI

ARREST/DETENTION – WHEN A PERSON IS ARRESTED OR DETAINED

The provisions of Section 35 (1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) emphatically states that: –

“(i) 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:

(c) for the purpose of bringing him before a Court in execution of the Order or upon reasonable suspicion of his having committed a criminal offence, or to such extant as may be reasonably necessary to prevent his committing a criminal offence.”

 

​Although, the appellant was said to have been arrested and detained by the police on suspicion of being involved of conspiracy to commit armed robbery and armed robbery, the provisions of Section 35 (4) of the Constitution provides that such arrested and/or detained person shall be released on bail within a reasonable time. Subsection (4) of the said Section 35 read 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.” – Per M. L. Shuaibu, JCA

FUNDAMENTAL RIGHTS – FOR AN APPLICATION ALLEGING INFRINGEMENT OF FUNDAMENTAL RIGHTS TO SUCCEED.

The law is settled that for an application alleging infringement of fundamental rights to succeed, the applicant must place before the Court all vital evidence regarding the infringement or breach of such rights. It is only thereafter that the burden shifts to the respondent. See FAJEMIROKUN VS C. B. (CC) (NIG) LD (2002) 10 NWLR (PT. 774) 95.

…when the applicant has placed vital evidence regarding infringement of his fundamental rights, the burden of showing justification shifts to the detaining authority and in this case the respondents. – Per M. L. Shuaibu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Procedure Code
3. Terrorism (Prevention) (Amendment) Act, 2013

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