The Word ‘or’ as Used in Section 35(6) of the Constitution of Nigeria, 1999: A Tool Towards the Enforcement of Human Rights by Hameed Ajibola Jimoh Esq.

Under the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-hereinafter referred to as the Constitution- in section 35(6), there is a provision which has the use of ‘or’. This paper is of the view that this word is very important in the enforcement of fundamental rights of Nigerians, hence, the topic under this paper.

The said provision of the Constitution provides thus ‘(6) Any person who is unlawfullly 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. (Underlining is mine for emphasis). In my humble view, this use has separated the two circumstances (underlined above) that could warrant an applicant who is a victim of fundamental rights violation or infringement to be entitled to compensation and public apology by the use of the word ‘or’ with each word unlawful ‘arrest’ and unlawful ‘detention’ standing on its own
with its own effect and circumstances.

In my humble view, the implications of the two respective words mean that where any person has alleged unlawful arrest, he is entitled to compensation and public apology.

In the same vein, where any person alleges unlawful detention, he is entitled to compensation and public apology. Section 18(3) of the Interpretation Act, 2004 has defined the word ‘or’ as follows: ‘The word ‘or’ and the word ‘other’ shall in any enactment, be construed disjunctively and not as implying similarity’. Also see: section 318(4) of the Constitution. Furthermore, it will not be a defence in a situation of allegation of unlawful detention that such person has committed an offence for which was the reason for unlawfully detaining him in custody.

Furthermore, the fact that the Applicant who has applied to enforce his fundamental right has been convicted by a court of competent criminal jurisdiction will also not vitiate or negate the Applicant’s right to enforce his fundamental right under the Constitution.

The issue here much more importantly, section 35(1) of the Constitution has provided that a person shall only be detained (or his right to personal liberty be infringed upon) where he is detained by procedures permitted by law, by which any failure on the part of the prosecuting or law enforcement agency to use those procedures permitted by law will definitely result in unlawfully detaining the Applicant for a number of days beyond reasonable tim permitted by law which is either a day or two days depending on the circumstances (though, subject to the subjective reasonability test of the Court). See: section 35(4) and (5) of the Constitution. Section 35(1) of the Constitution provides thus ‘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—‘ (Underlinig is mine for empahasis). Also see Article 6 of the African Charter on Human and Peoples’ Rights.

Furthermore, the provisions of Section 35 (4) of the Constitution provides thus ‘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 what amounts to a reasonable time has been defined by subsection (5) of the section t mean (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 the circumstance may be considered by the court to be reasonable’.

In the case of Isenalumhe v Amadi (2001) 1 CHR p. 459, the Supreme Court of Nigeria held thus: “The police have the responsibility to enhance the quality of the liberty and dignity of the Federal Republic of Nigeria as guaranteed by the constitution. Where they fail in this task, their failure must not be allowed to work to the detriment of law abiding citizens. Their failure must be checked timeously to enhance the principles and ideals upon which a free society is built”.

Furthermore, detention of the Applicant contrary to the provisions of the Administration of Criminal Justice Act, 2015-herein after referred to as the ACJA (for instance), will amount to unlawfully detaining the Applicant. Section 30 of the ACJA requires the Respondent to release the applicant on bail within twenty-four hours or a maximum period of forty-eight hours.

The said section 30 ACJA provides thus ‘(1)Where a suspect has been taken into police custody without a warrant for an offence, other than an offence punishable with death, an officer in charge of a police station shall inquire into the case and release the suspect arrested on bail subject to subsection ,(2) of this section, and if it will not be practicable to bring the suspect before a court having jurisdiction with respect to the offence alleged, within twenty-four hours after the arrest. (2)The officer in charge of a police station shall release the suspect on bail on his entering into a
recognizance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognizance’. Section 158 of the ACJA is also humbly referred to.

Also, section 8(3) and (4) of the ACJA also saddles the Respondent to perform the following duties as contained therein thus ‘(3) A suspect shall be brought before the court as prescribed by this Act or any other law or otherwise released conditionally or unconditionally. (4) The arraignment and trial of a suspect for a crime shall be in accordance with the provisions of this Act unless otherwise stated in this Act.’. Furthermore, it is the requirement of the ACJA that where the Respondent could not charge the applicant to Court within a reasonable time, the
Respondent shall apply for a remand order of the Court, which is a mandatory duty.

This is provided for in section 293 of the ACJA thus ‘293. (1) A suspect arrested for an offence which a court has no jurisdiction to try shall within a reasonable time of arrest be brought before a High Court for remand. (2) An application for remand under this section shall be made ex parte and shall: (a) be made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Act; and (b) be verified on oath and contain reasons for the remand request.’.

Furthermore, the Supreme Court of Nigeria had laid down the mandatory procedures of remand order where a suspect as that of the Applicant in relation to the Respondent has been arrested in the case of Lufadeju v Johnson (2007)8 NWLR (pt. 1037) 535 SC., at page 566, paras. A-D, where Akintan J.S.C. held as thus ‘It is necessary to state that section 236(3) of the Criminal Procedure Law is aimed at ensuring judicial control of those arrested by the police on criminal allegations. The power of the police to detain a suspect is restricted by law to specific number of days.

They are therefore required within the period to bring the suspect before a court for the purpose of an order for further remand, if need be. The appropriate court for such request is the Magistrate Court. The purpose of bringing the accused to the court at that stage was not for a trial. It was for an order by the court for the suspect to be remanded in custody pending the time the police would be ready to arraign the suspect before the appropriate court or tribunal which has jurisdiction to try the suspect for the indictable offence’.

Onnoghen J.S.C. also held at page 573, para. C of the Lufadeju’s case (supra) thus ‘What section 236(3) of the CPL does is to maintain a balance between the two by doing away with the tendency of arbitrary and near indefinite police detention of suspects without order of court’. I wish to humbly state that the above decision of the Supreme Court in the Lufadeju’s case (supra) is in line with the provisions of Section 293 of the ACJA (supra). Also, by virtue of the provisions of Order III of the Fundamental Rights (Enforcement Procedure) Rules, 2009- hereinafter referred to as FREPR-, ‘an application for the enforcement of fundamental right shall not be affected by any limitation Statute whatsoever’.

Furthermore, with due respect, the Respondent can be challenged to prove to the Honourable Court with documentary evidence that it had the Court order as mandated by law, authorizing and or permitting and or allowing it to detain the applicant for such time beyond reasonable time permitted by the Constitution.

It must also be emphasized that the case of unlawful detention in the Applicant’s suit is to enforce his right as conferred by the Constitution in section 46(1) that ‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress’. Also Order II Rule I of the FREPR is humbly referred to. And ‘Court’ has been defined by Order I of the FREPR to mean ‘the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.’

Also, the Constitution is much more aware that the Respondent’s cell is not and cannot be comparable to a correctional center (or prison custody) in term of conducive facilities, hence, the likely trauma of suspects (such as the Applicant) in its custody if kept for such a long period of days in its cell or custody! So his allegation of having committed an offence (despite his innocence in section 36(5) of the Constitution) and even where he is convicted and sentenced do not mean that he has lost his right to enforce his fundamental right even after he has served his imprisonment sentence. See: Order III of the FREPR (supra).

Therefore, lawyers and every person must know their rights and should always stand up to defend same. A huge sum of money beyond imagination might also be awarded by the Court against the violator of the Applicant’s right so far the evidence is substantial to prove his claim.

A lawyer rendering pro bono legal services should try to pursue such fundamental right enforcement even if it warrants using his money upon contingent fee at the success of the suit. Sometimes, a case can raise the status of such lawyer beyond his imagination! Preamble 3(e) of the FREPR has permitted human rights activists to encourage such suit and it becomes an exception to instigating litigation as prohibited by the Rules of Professional Conducts for Legal Practitioners, 2007, I humbly submit.

Finally, I believe this massage is well passed.


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