⦿ CASE SUMMARY OF:
Chima Ubani v. Director Of State Security Services & Anor (1999) – CA
– Detention order signed by the IGP;
1. Director of State Security Services
2. Attorney-General Of The Federation
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– O. Agbakoba, SAN.
* FOR THE RESPONDENT
– O. Nwamba
On 26-7-95, the Federal High Court in Lagos granted leave to the appellant pursuant to the Fundamental Right (Enforcement Procedure) Rules, 1979 to pursue the reliefs he sought arising from his detention by the Inspector-General of Police under a Detention Order.
The reliefs sought by the appellant were these:
1. A declaration that the arrest on 18th July, 1995 of the applicant at his residence and his subsequent detention at the State Security Services detention cell at Shangisha, Lagos without being charged to court is unconstitutional, null and void. 2. A declaration that the continuous detention of the applicant by the respondents at the said detention cell is a flagrant violation of the applicant’s right to freedom of movement and is unconstitutional, null and void.
3. An order releasing the applicant from the said detention forthwith.
4. An order that the Respondents pay compensation to the applicant for the violation of his fundamental rights in the sum of Five Hundred Thousand Naira (N500,000.00).
The respondents filed a preliminary objection praying “that this honourable Court lacks jurisdiction to entertain this matter”; An affidavit was filed in support of the Notice of Preliminary Objection. It was deposed to that the applicant had been detained under a Detention order signed by the Inspector-General of Police.
Whether the learned judge was right to say that the detention orders issued by the IGP validly ousted the Court’s jurisdiction to determine whether the appellants detention was lawful or not lawful?
⦿ HOLDING & RATIO DECIDENDI
1. Appeal allowed. Judgement in favour of the Appellant.
i. The African Charter on Human and Peoples’ Rights Cap. 10 Laws of the Federation, 1990 is superior to all municipal laws of Nigeria including the Decrees of the Military Government [which purports to oust the jurisdiction of the Court].
ii. It is obvious that Cap. 414 in Decree No.2 of 1984 which permits a public official to detain a person said to have committed some acts without such person being first tried before a court of law is an infraction of articles 6 and 7(1)(d) of Cap.10. In the affidavit in support of the application before the lower court it was deposed to that the applicant was arrested at about 5am on 18-7-95 and subsequently subjected to “many forms of inhuman and degrading treatments”.
iii. At it was, the State Security (Detention of Persons) Act Cap. 414, which permitted a person to be first detained without trial is another way of saying that a person upon whom the public official concerned decided to exercise his power under the Act was presumed guilty. That being the position created by the Act, it is inevitable that the ouster provision in the State Security (Detention of Persons) Act, Cap. 414 must be pronounced inoperative. The lower court should have assumed the jurisdiction to examine the basis of the appellant’s complaints.
⦿ SOME PROVISIONS
Decree No. 11 of 1995.
The relevant provision reads:
(1) The State Security (Detention of Persons) Decree 1984 as amended by State Security (Detention of Persons) Amendment Decree 1984, 1986, 1988 and 1990 is further amended.
(2) By inserting immediately after the words” “Chief of General Staff” the words “or IGP” wherever they occur in the Decree.”
State Security (Detention of Persons) Act, Cap. 414, Laws of the Federation. 1990 as amended.
Section 1 and 4 of the Act provides:
1(1). If the Chief of General Staff is satisfied that any person is or recently has been concerned in acts prejudicial to State Security or has contributed to the economic adversity of the nation, or in the preparation or instigation of such acts, and that by reason thereof it is necessary to exercise control over him, he may by order in writing direct that that person be detained in a civil prison or police station or such other place specified by him; and it shall be the duty of the person or persons in charge of such place or places, if an order is made in respect of any person is delivered to him, to keep that person in custody until the order is revoked. (2). An order made under subsection (1) of this section shall be full authority for any police officer or any member or the armed forces or any of the security agencies to arrest the person to whom an order relates and to remove him to a civil prison or police station or such other place as specified by the Chief of General Staff.
4.(1) No suit or other legal proceedings shall lie against any person for anything done or intended to be done in pursuance of this Act.
(2) Chapter IV of the Constitution of the Federal Republic of Nigeria is hereby suspended for the purposes of this Act and any question whether any provision thereof has been or is being or would be contravened by anything done or proposed to be done in pursuance of this Act shall not be inquired into in any court of law, and accordingly sections 219 and 259 of that Constitution shall not apply in relation to any such question.”
Article 6 of the African Charter on Human and Peoples’ Rights provides:
“Every individual shall have the right to liberty and 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)(d) provides:
“Every individual shall have the right to have his cause heard. This comprises: (d) The right to be tried within a reasonable time by an impartial court or tribunal.”
⦿ NOTABLE DICTA
In a society governed by the Rule of Law, when it is perceived that a person has committed an act which is recognised as a crime under the laws of the society, the right or decent thing to do is to have the person concerned brought before a court of law so that it may be determined whether or not, the person concerned has committed the offence alleged against him. – Oguntade, J.C.A. Chima Ubani v. Director Of State Security Services & Anor (1999)
I also think that the time has come in the light of our recent experience with Military Government in this country that the court should have the power to determine whether or not reasons exist for the detaining authority to exercise the power to detain granted it. Even when the power has been exercised, the court should be able to determine whether reasons exist for the contained detention of a person. – Oguntade, J.C.A. Chima Ubani v. Director Of State Security Services & Anor (1999)
During the era of military government in Nigeria which came to an end on 29th May, 1999 it was sacrosanct that a decree was superior to any other law of the land including the unsuspended provisions of the Constitution. – Aderemi, J.C.A. Chima Ubani v. Director Of State Security Services & Anor (1999)
It must be realised that the duty of the court ceases where legislative duty begins. – Aderemi, J.C.A. Chima Ubani v. Director Of State Security Services & Anor (1999)
The African Charter on Human and Peoples’ Rights is in a class of its own and does not fall into classification of the hierarchy of our local legislations in the sense of order of superiority. I should just add that to the extent to which any of our local legislations infringes its provisions that local legislation to that extent is null and void. This does not mean the surrender by a nation of its sovereignty to legislate for the good governance of the country. Perhaps, that voluntary subscription to legislate for the good governance of the country. The African Charter being a fundamentally superior law of our land there is just the need to remind all organs of the sacred duty to respect its provisions. – Aderemi, J.C.A. Chima Ubani v. Director Of State Security Services & Anor (1999)