When detention by the Police will amount to breach of fundamental human right

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There have been cases of unlawful detention of Nigerians by security agents. Nigerians and Human Rights Organizations have severally accused the Nigeria Police Force for illegal detentions of Nigerians. Unlawful detention, where it is established, amounts to breach of Right to Personal Liberty enshrined at section 35 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

It is important at this juncture to refer to the provisions of Section 35(1) of the 1999 Constitution (as amended)
on constitutionally guaranteed right to personal liberty.
The section reads 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-
(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 order of a court or in order to secure the fulfillment of the any
obligation imposed upon him by law;
(c) for the purpose of bring 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 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 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
prescribe for the offence.”

Detention can simply be defined as “an action of detaining someone or the state of being detained in official custody”. The right to personal liberty requires that the arrest or detention of an individual must be in accordance to the law. The right therefore protects the individual against the excesses of the government and its agents. It is true that the Police can arrest and detain an individual upon reasonable suspicion of having committed
criminal offence but the powers of the Police in this regard are statutorily defined.

Detention, no matter how short, can lie a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful in the first place; that is, if there is no legal foundation to base the detention. A law enforcement officer needs to have a reasonable suspicion of unlawful activity to detain a person.

The court cannot gloss over any violation of one’s rights. And by law, detention, when wrongly done,
is actionable and condemnable, no matter how short. See: Ogbonna Vs Egbulefu & Ors (2018) LPELR – 43810 CA.

The Constitution of Nigeria does not allow a person to be detained and kept in police cell for unreasonable period and for no reasonable case. Also any person who is unlawfully detained shall be entitled to damages or compensation and public apology from the appropriate authority or person.

Note that in fixing an amount for the infringement of fundamental rights, the following factors, inter alia, may be taken into consideration by the court:-
(a) The frequency of the type of violation in recent times;
(b) The continually deprecating value of the Naira;
(c) The motivation for the violation;
(d) The Status of the Applicant;
(e) The undeserved embarrassment meted out to the Applicant including pecuniary losses; and
(f) The conduct of the Parties generally, particularly the Respondent.
See: Arulogun V. C.O.P., Lagos State & Ors. (2016) LPELR-40190(CA).

In Eliochin Nigeria Ltd & Ors v. Victor Ngozi Mbadiwe (1986) 1 NWLR (pt 14) p. 47, the Court held that the primary object of an award of damages is to compensate the Applicant for the harm done to him or a possible secondary object which is to punish the Respondent for his conduct in inflicting that harm. It was further held that such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages, vindictive damages and even retributive damages. This comes into play whenever the Respondent’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, fragrant disregard of the law.

It is important to note that Applicant, in the light of the above, refers to the person whose fundamental human right was breached while Respondent refers to the person that breached the fundamental human right of the Applicant. Also Damages can defined as “the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another,
whether that act or default is a breach of contract or a tort.” It could also be expressed as “the recompense given by process of law to a person for the wrong that another has done him”. See Halsbury Laws of England: 3rd Edition Vol. 11 at 216; Machine Umudje & Anor v Shell BP Petroleum Development Company Nig. Ltd. (1975) LPELR -3375(SC); and R.O Iyere v. Bendel Feed & Flour Mill Ltd. (2008) 18 NWLR (pt 1119) 300.

In conclusion, one of the sacred liberties of man is the liberty to move freely. Unless where legitimate exception is permitted by law, any limitation on a person’s liberty to move freely is an infringement on his fundamental human right.

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