TASLIM ELIAS NOTE SERIES

CONSTITUTIONAL LAW

200 LEVEL SECOND SEMESTER

FROM THE ACADEMIC SECRETARY

ORJIAKOR CHIDIMMA

2018/2019

CONSTITUTIONAL LAW

For better understanding of the term fundamental rights, the term “right” would first be
looked into. According to Black Law dictionary “… a right is well defined as capacity
residing in one man of controlling, with the assent and assistance of the state the action of
others.” Salmond defined a right as “an interest, respect for which is a duty, and the disregard
of which is a wrong”. Therefore, fundamental rights in the case of Siddle V Majors are “those
which have their origin in the express terms of the constitution or which are necessary to be
implied from those terms”. According to the court in Assemota V. Yesufu, “fundamental
rights is an undoubted inalienable right, which corresponds to a jus natural”. It is the greatest
right and when it is contained in the constitution of a nation, it enshrines peoples expression
of political and civic and or civil rights (as endowed by nature) but only to the extent that the
strictness of largeness of the modern systems of government does permit”. These rights
cannot be waived by the state or by the individual where the right is not for his sole benefit,
but in the control of the state or the courts.

A. RIGHT TO LIFE

The question as to when a human being can begin to claim the “right to life” has led to the
continuous controversy as to when life actually begins for purposes of the vesting certain
rights. Article 4 of the African Charter on Human and People’s Rights provides that “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”. The Nigerian
constitution seems to follow this path of the European convention in S. 33(1) of the 1999
constitution which provides that: “Every person has a right to life and no one shall be
deprived intentionally of his life, save in execution of the sentence of a court in respect of a
criminal offence of which he has been found guilty”.

1. The Abortion Debate: In determining whether or not the right of the foetus of life could
at any point outweigh that of the mother to privacy of her own person, the court in Roe
V Wade used the viability test and decided that it is not until the third trimester that the
states interest in saving the foetal life overrides that of the mother. Also S.301 of the
Criminal Code agrees to this providing that “a person is a human being when it
becomes independent of its mother’s body whether or not the umbilical cord is
severed”. In Nigeria, abortion is still a crime under the criminal case is only permitted
when the mother’s life is in danger. S.17 of the Child’s Right Act 2004 incorporate
provisions of the United Nations convention and African Charter on right of the child
provides however that, “a child may bring an action for damages against a person for
harm or injury caused to the child wilfully, recklessly, negligently or through neglect
before during or after the birth of that child”. It is not certain as to what type of
evidence may be established but it at least acknowledges that an urban child possesses
certain rights that can be enforced against the parent. S.33(1) of the 1999 constitution
prohibits also any “intentional deprivation of life” except in execution of a courts
sentencing with respect of a criminal offence. Thus this section provides constitutional
basis for the prohibition of murder or homicide which under S. 316 of the Criminal
code, is causing death with the intention to kill or cause bodily harm. Also consent to
cause death by the deceased does not diminish the general responsibility of the person
causing death though there are a few exceptions to this general right which shall be
discussed below.

2. The sentence of a court in relation to a criminal offence: According to Professor Akande

in the “Introduction to Constitutional Law” there are five offences which are punishable
by death in Nigeria which are; murder or culpable homicide (S. 316 of Criminal Code),
treason (S.37), treachery (S.208), directing and controlling or presiding at an unlawful
trial by ordeal from which death occurs (R V Barganza). However, children below the
ages of 17 yrs, (at the time of the commission of the offence) as well as pregnant
women (must be commuted until she is delivered of her baby) cannot be sentence to
death.
3. Death penalty debate: There is still a raging controversy about the continuance of the
death penalty as a means of punishment all over the world. Various countries has
abolished the death penalties such as some states in the United States of American,
South African whereas Nigeria still supports the death sentence especially due to the
sharia law operated by most of the states in Northern Nigeria. One of the basis for the
abolition of the death penalty is the possibility of the execution of an innocent person
which has occurred several times in history and has led to the questioning of this
punishment which extinguished permanently all other rights. Also the death penalty in
relation to circumstances of delayed execution of the penalty is contrary to the right of
life, dignity of human person and accounts to cruel and unusual treatment or
punishment as seen in the Catholic Commission for Justice and Peace in Zimbabwe V
Attorney General where the supreme court stated that the delay in the execution of the
prisoners and the degrading conditions under which they are held is unconstitutional.
The same was also held in the Indian case of Triveniben & Others V State of Gryarat &
Others, this is because it is universally agreed that there is mental torment throughout a
trial which is likely to end up with a death sentence and more acute with the final
verdict. However in the case of Madhu Mehta V. Union of India his death sentence was
reduced to life imprisonment because he had suffered mental agony of being under
death sentence for eight years while waiting for a decision or his merry petition. In the
case of Draft V.A.G of Jamaica, the Human Rights committee in a communication
concluded that the death raw on its own was not normally a violation of the accused
rights in human or degrading treatment except there are other compelling circumstances
which would amount to violation. While in the South African case of State V
Makwanyane, the courts held that the death sentence was unconstitutional in that it
amounted to cruel and unusual degrading treatment or punishment and affects the
unqualified rights to life guaranteed under S. 9 of the South African Constitution. It is
worthy of note that countries that have not abolished the death penalty should apply it
only in relation to serious crimes and as a result of the final judgment of a court of
competent jurisdiction while those who have abolished it are not to re-establish it.
NOTE; the constitutionality of death penalty in Nigeria was upheld in the case of
Onuoha Kalu v the State pre Iguh JSC.
4. Euthanasia or mercy killing: According to Collins English Dictionary, “euthanasia” is
an “act of killing a person painlessly especially to relieve suffering from incurable
disease” Stead-man Medical Dictionary defines it as “a quiet painless death and an
international putting to death by artificial means of person with incurable disease”.
There are various forms of euthanasia; Passive euthanasia is hastening of death via
attraction of support, thereby letting nature take its course. Active euthanasia is the
cause of death on the request from the person via a direct action. Physician assisted
euthanasia is where the physician supplies information or means for carrying it out and
finally involuntary euthanasia is the killing of a person who has not explicitly asked for
it due to the vegetative state he is in. NOTE; In view of the changing moral and legal
foundations of society, if at all a person has been in persistent vegetative state and does
not have the capacity to make a choice and whose continuous existence is dependent on
life support and the care givers are in agreement then it is permitted (euthanasia is).
However with regards to the physician assisted euthanasia, it is contrary to their
Hippocratic Oath which is to save lives.

Since 1999, euthanasia has been permitted in Japan Colombia, Netherlands, Oregun in the
U.S and in many jurisdictions suicide is legalized. Reasons being that it is often difficult pain
suffered by terminally ill patients and also the possibility of the existence of the Right to die
as an extension of right to life. This was brought up in the Canadian case of Rodriguez V A.G
British Columbia where the Supreme Court held that the right to the security of the person
does not include assisted suicide though suicide is legalized. In Nigeria, S. 311, S.326, S.327
and S. 299 of the Criminal Code makes suicide or any form of assisted suicide for any reason
a crime. There is no doubt that euthanasia is subject to abuses and the people suffering from
terminal or degenerative diseases are vulnerable and may be easily persuaded to take a course
they would not have ever contemplated because of their circumstances. Moreover, sanctify if
life is meaningless if assisted suicide is legitimized or the recognition of a right to die an
shoot of the right to life. The other exception to intentional deprivation of the right to life
under S. 33(2) of the 1999 const. is as a result of the use of such force as is reasonably
necessary and in circumstances permitted by law.
NOTE: The issue that the force used must be reasonably necessary is to be proportionate and
not excessive, the circumstances under which this is permitted by the constitution are as
follows;

i. Self defence or defence of another: Under S.286 of the Criminal Code, it provides that
when a person who did not provoke an assault is unlawfully assaulted he is to use such
force on the assailant as is reasonably necessary to defend himself provided the force
used is not intended to cause grievous harm or death then it is lawful for him to use any
force necessary to the assailant even though such force may cause death or grievous
harm. For conceptual clarification, an assault according to S. 252 of the Criminal Code
states that it is a person who strikes, touches moves or otherwise applies force of any
kind of another person either directly or indirectly without his consent or with his
consent, if the consent is obtained by fraud or who by any bodily act or gesture attempts
or threaten to apply force of any kind to another person without his consent in such
circumstances that the person making the attempt or threat has the ability to effect his
purpose. In afterwords, if death occurs as a result of a person defending himself, or
another person from reasonable apprehension of death or grievous harm then he or she
is not guilty of intentional murder. In the case of Okonkwo V the State the deceased
forced himself into the house of the first accused at about 12 midnight and when
challenges, he tried to use a dagger on the first accused who raised alarm and engaged
him in a physical combat during which other members of the compound came to help in
beating the accused including the appellant. He was over powered and tied down in part
of the compound while the first accused went to call the police who deposited the
deceased body in a mortuary. The trial court found the first accused and appellant guilty
of murder, on appeal the court of Appeal held that S.30 of the 1979 const. which grants
right to life allows the use of reasonable force which was not excessive in this case. At
common law, there must be retreat as far as possible before retaliation before the plea of
self-defence can hold but that is not part of our law. In the case of Sunday Amala V The
State, the apparent was hired by one Christopher Nwamuo to trim some palm trees,
even though the deceased and Christopher Nwamuo had a land dispute he still sent him
up his palm tree to which the deceased challenged and throw sticks at him, when he got
down from the tree a fight ensured during which the deceased dies. The appellant raised
the defence of self defence, provocation and accident but this was rejected by both the
trial court and the court of appeal, the appellant consequently appealed to the Supreme
Court where the appeal was again dismissed by a majority of 4 to 1 on the grounds that
there was no researchable apprehension or fear of dead. In Emmanuel Uboni V The
State, the appellant had disrupted a meeting a meeting for marital reconciliation
between him and his in laws, he pursued a Pw1 but couldn’t get to him so he went after
another on a bicycle and sliced his neck with the machete. The defence of provocation,
accident and self-defence could not be sustained. The following conditions must be
fulfilled before self-defence can apply in court:

- The assault must be unlawful i.e it must not be authorized or just; led by law and the
fact that a person consents to the assault does not make it lawful. For instance,
incase of a police arrest any form of assault employed is lawful if reasonable and
proportionate. Also the assault following the sentence of the court or process is
lawful if the act is duly authorized impliedly or expressly.

- Where the assault is unprovoked by the accused then self-defence may apply but in
a case where the assault was provoked by the accused S. 287 of the Criminal Code
states that where the deceased responds to the original assault with such violence as
to cause reasonable bodily harm or death and to induce the accused who first
assaulted him to believe that for the preservation of his life to use force in self-
deference and is not responsible if such force may cause death or grievous harm. In
other words, the attack causes reasonable apprehension of death and he cannot by
the method being used to repel the attack have preserved the life of the assailant and
so he is excused if death occurs. Where the original provocation was from the
accused with the intention to kill or cause bodily harm to which the deceased
responded or the accused tried to kill the deceased before the necessity of depending
himself accused then the plea of self-defence will not hold unless he stopped further
action before the apprehension of death occurred.

- There must be reasonable apprehension of death on grievous bodily harm.

According to Okonkwo and wash, the test of reasonableness here is objective and
the court must take into consideration the nature of weapon used and the disparity in
 the strength between the assailant and defender. In Odo Nwobe V The State, the
appellant claimed to have been attacked by a stranger in his home and during the
course of struggle to escape the deceased, the appellant stabbed and killed the
deceased. The appellant reported the case to the police who confirmed the following
day that he (deceased) was dead. The lower court convicted the appellant however
on appeal to the court of Appeal, the court unanimously allowed the appeal that the
appellant had labored under a reasonable apprehension of death and could not avail
himself of the defence of death as a result of self-defence.

- The force used to repel the attack must be reasonable and proportionate in the force
used by the attacker even though the accused started the provocation. In Odu V the
State, the accused took the cap and wrist watch from the deceased, 2 days later
while the deceased come to retrieved it from the 2nd appellant but the 1st accused
beat him up and the 3rd accused brought a knife and gave it to the accused who
stabbed and killed the deceased.

- The 1st and 3rd accused ran off but the 2nd appellant was apprehended. The court of
appeal rejected the 2nd appellant’s plea of self-defence on the grounds that there was
no reasonable apprehension of death from the deceased’s action. The nature of
weapon used to repeal the attached and disparity of strength is taken into
consideration.

In Sampson Uwaekwe ghinga V the State, the appellant went to his farm he inherited from
his father and met his uncle there. He greeted his uncle but there was no response so he went
ahead to pick up wild mangoes but was disappointed to find no mangoes had fallen and
decided to go back home. On his way back, he met the deceased (uncle) still on the farm and
greeted him again but still no response. The appellant saw some basket full of mangoes partly
hidden away, when the appellant tried to ask the deceased why be picked the mangoes, the
deceased responded by violently striking the appellant’s head with a hard stick. As the
appellant recounted that asides the stick the deceased also had with him an iron rod and a
matched. The appellant said be had to defend himself, he lost control and inflicted machete
marks on the deceased when the deceased tried to attack him again. The trial court and court
of appeal both convicted the appellant for murder whereas on appeal to the Supreme Court
unanimously upheld the appeal and that the appellant was trying to defend himself. The court
included the requirement for the plea of self-defence to avail a person he must have tried to
disengage himself from the event which led to the application of force. Also for self-defence
to avail, it must be shown that the person reasonably believed he was in danger of death or
grievous bodily harm and tried to disengage himself from the event which led to the
application of force. Also for self-defence to avail, it must be shown that the person reasoning
believed he was in danger of death or grievous bodily harm and tried to disengaged himself
from the event which led to the force used. At common law, there must be retreat as far as
possible prior to retaliation before the plea of self-defence can hold but this does not seem to
be our law. The requirement of withdrawal is required under the criminal code only in
relation to situations where the accused first provoked the assault.

DEFENCE OF OTHERS

S.288 of the Criminal Code provides that whenever it is lawful for a person to use force in
any degree to defend himself against assault any person aiding him against such an assault
may use the same degree of force to repel the assault. In other words, the same test for self-
defence would be applied here.

Defence of property: S 282 of Criminal Code (Okonkwo V The State) provides in relation to
dwelling place and anyone assisting him to use force as is necessary to prevent forcible
breaking and entering of the house by day or night by a person believe on reasonable grounds
attempting to break in or enter to commit a felony or misdemeanour. Where death occurs as a
result of defence of property, it does not constitute a derogation of S.33(1) of the 1999 const.
where it is in circumstances permitted by law and reasonable force is used to repel on attack.
NOTE; property may be a dwelling place or property; movable or immovable. S.292 of
Criminal Code provides that a person in possession of a land, vessel, structure or place who is
in control or management of such places can use or authorize the use of any such force
necessary to prevent the entry or removal of a person who wrongly remains or conducts
himself in a disorderly manner, provided he doesn’t harm such a person. The court held in
Ahmed V The State that the force used by the appellant on an unarmed assailant was
disproportion thus the appellant could not avail himself of protection under this provision.
S.294 of the Criminal Code Act provides that a person who has a right to enter a land to
notices that such right is disposed of by the person in possession of the land, then the latter
may use such force as necessary provided he doesn’t harm him.

Death in the Process of effecting a lawful arrest or prevent the escape of a person lawfully
detained. The powers of the police to arrest can be effected by warrant when required by law
or in all other cases without warrant. in S.271 of the Criminal Code where a warrant is
necessary for an arrest, it is unlawful to use force without a warrant and were an arrest is
unlawful the suspect may use such force as necessary to prevent the arrest and if death occurs
in the process it would not amount to murder as provided in S 261 of the Criminal Code.
Where a person commits an offence in the presence of a police officer or is suspected to have
committee as offence or is about to commit an offence, the officer can effect an arrest
irrespective of the requirements by law creating the offence. However in cases where the
offence saw the suspect committing the offence and is trying to escape without endangering
the life of the officer in anyway shoot to kill would be considered manslaughter because if the
circumstances of such crime are assessed and it proves that the suspect acted on self- or under
provocation and sought to escape out of fear, to permit his killing enable be unfair and unjust
only to find out latter that he was innocent. In cases where offences are punishable by death,
or not less than 7yrs imprisonment, the officer may shoot to full to kill to prevent the escape
of the offender if there is no other means of arresting him. Though it is not likely that the
provision would withstand the test of S. 33 of the 199 const. that requires reasonable force.
This test of reasonableness is objective and it is left to the court to decide as to the necessity
of the use of force. S. 298 of Criminal Code states that the arresting officer is responsible for
the excessive use of force, thus in R V Ndo & R V Ariogo the circumstances surrounding the
case was held to be manslaughter.

Death as a result of suppression of a riot or mutiny. By the provisions of S. 276 of the

Criminal Code which states that it is lawfully necessary to use force that is proportioned to
danger in order to stop the continuance of a riot or mutiny, therefore, wilfully killing as a
result of riot is permitted and so measures /action can be taken by a peace officer where it is
believed that serious mischief would result from the riot and there is no time to reach the
peace officer by virtue of S.277,278 & 279 of Criminal Code respectively. While S.280 of
Criminal Code provides that it is lawful that in relation to the suppression of a riot that a
member of the armed forces obeys the command of a superior officer except if the command
is unlawful and whether such command is lawful or not is a question of law. However, if a
junior officer acts pursuant to an unlawful order he would be liable.

B. RIGHT TO DIGNITY OF THE HUMAN PERSON

The universal concept of equality compels the respect of certain minimum standards or
factors in the attainment of this dignity. The International Covenant on Economic, Social
and cultural rights in article 13 on the importance of education to the human person, article
11 talks about right to adequate standard of living, food, housing and clothing. Article 12
provides that the absence of the aforementioned right would result in physical and mental
disability which in the long run cannot be said to possess dignity of human person. S 34 of
the 1999 constitution provides that: Every individual is entitled to respect for the dignity of
his person and accordingly; (a) no person shall be subjected to torture, or inhuman or
degrading treatment (b) no person shall be held in slavery or servitude and (c) no person shall
be required to perform forced or compulsory labour.

1. Right against torture, inhuman or degrading treatment: In the case of Catholic

Commission for Justice & Peace in Zimbabwe V Attorney General the court noted
that the consensus or values in a civilized community and the sensitivities of its
people must be taken into consideration in deciding whether a particular act or
practice is in human or degrading. The convention against torture and other cruel,
inhuman or degrading treatment or punishment in Article 6 defines torture as: “Any
act by which server pain or suffering, whether physical or mental is intentionally
inflicted on a person for such purposes of obtaining from him or a third person
information or a confession .. by or at the instigation of or with the consent or acquire
scene of a public official or other person acting in an official capacity. “The word
“treatment” covers punishments and treatment in police custody as seen in Agbakoba
V Commissioner of Police if the purpose of detention is to achieve ill treatment then
the court would order a total release but if the punishment is found as merely
incidental to detention then corrective orders would be made. The right to human
dignity has been used to assess the acceptability of a number of punishment which
are:
i. Capital punishment: In many jurisdictions, the capital punishment of death sentence
has been a question in respect of the human dignity right and also the issue of
inordinate delay in execution of a death sentence. It is universally recognized that the
delay in the execution of death sentence amounts to mental torture / torment as in the
case of Madhu Mehta V Union of India here the death sentence was altered to life
imprisonment after awaiting the decision on his mercy plea for over 8yrs and as a
result suffered mental agony. In some cases the death penalty has been accepted as in
the American case of Trop V. Dulles where the court refused to consider the death
penalty as “cruel and unusual punishment” also in Lackey V. Texas where the court
denied certiorari of a prisoner who has spent 17yrs on death row. However, in Furman
V. Georgia the court held that death sentence was a violation of the 8th amendment, 2
of the five justices concluded that death sentence was “cruel and unusual and does not
comport with human dignity. Generally, it is widely accepted that death sentence
would not be pronounced for acts which did not result in death or deliberate taking of
life. In Nigeria, there is some growing debates as to the issue of the death sentence
and though in some religions (such as Islam) is has been accepted as part of their
religious practice for offences such as murder, fornication or adultery while some
other religion (such as Christianity) is against it. NOTE; It would be considered
unconstitutional where the application of death sentence is to a particular class of
people such as illiterate, poor, females.

ii. Other punishment: It is apparent that some punishments prescribed by the various
Sharia Penal Code of the Northern Nigeria can be seen to have traces of inherent or
degrading elements in it, under S. 144 & S. 145 of Sharia penal Code Law of Zamfara
State which states that if a person commits theft for the first time, his right hand from
the writs would be amputated, if he commits the crime for the second, third, fourth
and fifth time, his left foot, left wrist, right foot and finally imprisonment for not more
than a year respectively. No doubt such punishments are regarded by the international
standards as inhuman, degrading, barbarous and unconstitutional. Though only people
who submitted themselves to its jurisdiction would it be applicable to.
iii. Prison condition and punishment: The prohibition of inhuman and degrading
treatment extends to prison conditions as in the case of Holt V. Sarver & Rhodes V.
Chapman where the court held that the entire prison system should not aim at
inflicting unnecessary pain as it violates the cruel and unusual punishment clause.
Most Nigerian police cells negate this right to human dignity take for instance, the
Kirikiri maximum prison in Lagos where only Doctor and a nurse is attached there
with as N5 worth of meal per prison.

a. Others: It has been held that corporal punishment on students does not amount
to violation. Under S. 18 and also S. 101 of Zamfara State Sharia Penal Code
Law canings as a form of punishment is recognized so long as it is not in
excess and this right also applies to the treatment of suspects by the police
during interrogation especially during military regime where all kinds of ill-
treatment such as beating with sticks, hand-cuffing, electric butts etc to extract
information or confession. Despite the fact that Evidence Act prohibits in
involuntary confession via threat promise or inducement and also S. 35(2) of
the constitution gives a suspect a right to main silent till the consultation with
his legal practitioner. S 36 of the constitution gives a suspect a right not to
incriminate himself. However, in Nigeria this is treated more in breach than in
application.

2. Prohibition of slavery or servitude: By virtue of S.364 of the Criminal Code makes

it illegal for a person to be unlawfully imprisoned or taken out of Nigeria without his
consent or refused to apply for his releases in court or prevent a person who ought to
have access to him from discovering his place of imprisonment. Also S.366 of
Criminal Code makes it a crime to make, intimidate or compel a person to commit an
unlawful act or prevent him from doing the unlawful act he is entitled to do. Any
form/type of slavery or servitude is prohibition of forced or compulsory labour: The
constitution states no one shall be subject to forced or compulsory labour whereas
there are exceptions to this provision such as S.34(2)(a) any labour required in
 consequence of the sentence or order of a court- a court’s sentence with forced labour
would require the convict to do some hard labour. S.34(2)(6) any labour required of
members of the armed forced of the federation or the Nigeria Police Force in
pursuance of their duties as such. S.34(2)(c) in the case of person who have
conscientious objections to service in the armed forces of the federation any
emergency or calamity threatening the life or well-being of the community. S.34(2)(c)
any labour or service that forms part of; education, communal or civic obligations, or
company national service in the armed force.

C. RIGHT TO PERSONAL LIBERTY

S.35 of the 1999 const. states that “every person shall be entitled to his personal
liberty and no one shall be deprived of such liberty save in the following cases and in
accordance with a procedure permitted by Law.” This is similar to the provision on
Article 6 of the African Charter on Human & Peoples Rights. This right means
freedom from restraint, right to contract, have occupation and privileges recognized
by law for free men and cannot be taken away except as permitted by law which are
as follows under S.35(1):

a. in the execution of a sentence of a court for a criminal offence committed. This being
that no tribunal or other body or authority except that of a court can pronounce a
sentence or imprisonment on a person after the trial must have been concluded and
even the Code of Conduct Tribunal does not possess the power to imprison a person
found guilty of its rules as seen in Balewa V Doherty since it is not exercising judicial
power.

b. Failure to comply with a court order to fulfil any obligation imposed by law. This
constitutes in cases of default (where the law makes provision of depriving their
liberty), contempt proceedings, subpoena or arrest order by a court to enforce
payment of damages, rates etc.

c. in execution of an order of a court or upon reasonable suspicion of committing a

crime or to prevent his commission of a crime. Also the provisions of S.4 of the
Police Act empowers the police to make lawful arrest, however there are some
 limitations to such arrest such as a person cannot be arrested for an offence committed
by another as seen in ACB V Okonkwo also the practice of arresting to gather
information by police or security agencies as in Amakiri V Iworari & Agbakoba V
Commissioner of Police.

d. for the purpose of a child a person who hasn’t attained the age of 18yrs, his education
and welfare. As provided in the Child’s Right Act 2003 in cases of orphans or
abandoned children.

e. for the purpose of case and treatment or the protection of the community from persons
with infectious diseases, unsound mind, person addicted to drugs. For instance during
the Ebola outbreak.

f. for the purpose of the removal of any person or preventing the entry of any person
into Nigeria. This is the immigration.

NOTE: S.35(1) makes a provision that anyone charged with an offence and has been
detained awaiting trial shall not be kept for a period longer than that prescribed for the
offence.

S.35(2) grants the right to silence of a person detained until consultation with a lawyer
or person of choice. This is a pre-trial right unlike privilege against self-incrimination
that applies during trial on S.36(1). According to Ngwuta JSC in State V Rabiu
confessional statement obtained in the breach of S.35(2) cannot be received as
evidence. Any person arrested shall be informed within 24hrs the fact and grounds for
his arrest in a language he understands as provided by S.35(3) and in the case of
Agbaje V COP where the plaintiff was detained for 10 days without being told the
reason for his arrest and which was held by the court to be illegal and
unconstitutional. The provisions of S.35(4) – (7) states the procedure of security bail
S.35(6) Radis V Omuagulachi (for public persons) provides that compensation would
be awarded to anyone wrongfully accused of a crime and S.35(4) provides that such a
person arrested must be brought before a court within a reasonable time as seen in
Augustine Eda V COP. Also in Dokunbo Asari V Federal Republic of Nigeria the
Supreme Court held that the right to personal liberty could be suspended if it threatens
the national security.
D. RIGHT TO FAIR HEARING

S.36(1) provides that in the determination of a persons civil rights and obligations
including any question or determination by or against any government or authority a
person shall be entitled to a fair hearing within a reasonable time by a court or other
tribunal established by law and constituted to secure its independence and impartiality
and similar to this provision is Article 7 African Charter. The concept of fair hearing
encompasses two concepts of: Natural Justice; audi alteram partem & nemo judex
incausa sua.

i. Audi alteram partem: It is a Latin maxim to mean that each party involved in a case
must be given an opportunity to state and present his case. S.36(3) provides that a
person accused of a crime shall be entitled to a fair hearing in public within a
reasonable time, in Mohammed V Nwobodo where the supreme court held that the
proceedings which were held in the trial courts judge’s chambers were considered null
and void, it is similar to the provision of S.36(4) By provision of S.36(5) any person
charged with a criminal offence shall be considered innocent until proven guilty. In
Alabi V The state the appeal court held that the accused is not obliged to prove his
innocence. He must be given an opportunity to present his defence as seen in Garba V
University of Maiduguri.

ii. Nemo judex incausa sua; which also means that the court or tribunal must be
constituted in a way to ensure its independence, the interest may be pecuniary or bias
against the other party as seen in Garba V University of Maiduguri also in Nnamdi-
Azikiwe University V. Nwafor it was held that part in the deliberation of the senate
that suspended the respondents.

Trial within a reasonable time; reasonable time refers to period of trial or between
charge and final judgement of the court. The rationale behind this is that undue delay
may impair the accused person’s ability to defend himself. While it is settled that a
grant of adjournment is not an infringement on right to trial within a reasonable time,
however, if the parties indulge in incessant and unreasonable adjournment it should
not be allowed by the court. The law cannot specify the time limit which an must be
heard.
 Trial by an independent court or tribunal; tribunal as defined in MDPC V Fawehinmi
“as any statutory body which has the power to decide controversies and give binding
decisions. There are some tribunals known by the generic name, others are
administrative but may perform judicial functions, therefore the determinant factor is
the function being performed at the particular time by the tribunal or statutory body.

NOTE: Criminal matters cannot be tried by administrative bodies such as disciplinary

committee, investigative panel as was the case in Military Governor of Imo State V
Nwauwa. The exceptions to a trial in public are the security, public order and
ministerial claim of privilege.

S. 36(6)(a) provides that a person charged for an offence must be informed promptly
in a language he understands the nature of the offence. S. 36(6)(b) which states that he
must be given adequate time and facilities to prepare the defence. In respect to time,
the accused must be allowed adjournment when requested to give time to prepare as
seen in Gokpa V IGP where the High Court quashed the conviction order by the trial
court after they rejected his plea of adjournment to sort with a counsel.

However in Shemfe V COP the court held that the adjournment request would lead to
a protracted trial and so refused it. In respect of facilities, the right to a counsel where
the accused cannot afford one as was the case in Udofia V State where the court held
that he was denied fair hearing when he was poorly represented by a member of the
NYSC. S.36(6)(c) to defend himself in person or by a legal practitioner of his choice.
It was held in Ezea V Queen that an accused shall have the liberty to choose his own
counsel also in Braon V Brown where the parties to a suit rejected the services of the
counsel and so the latter sued the presence of the new counsel and it was held that an
applicant shall have the right to a counsel of his choice. S.46(4)(b) empowers the
National Assembly to make laws for rendering financial assistance to citizens whose
fundamental rights have been infringed upon. The legal Aid Act of 1976 to grant free
legal aid to persons with inadequate means, the governing board in its 76th meeting
increased the entitlement to the aid from N1,500 to N60,000 and this covers both civil
and criminal matters. S.36(6)(d) provides the right to examine witness in person or via
his counsel, obtain attendance and call witnesses to testify on his behalf, this is to
afford parties equal opportunity in the presentation of their cases as in Udo V State.
S36(6)(e) provides for an interpreter (free) if he cannot understand the language of the
court as was the case in Ewonto V State where the court held that it failure to allow an
interpreter for the five accused who could only speak in Hausa was a violation of their
right to an interpreter and such right cannot be waived by counsel or any provision of
the law as seen in Sampson U.V State.

By Virtue of S.36(7) the court shall keep record of proceedings in criminal offence
and must provide the accused or his representative with a copy within 7days of the
conclusion of the case. Lagos S.294(1) states that the judge must deliver judgment 90
days after the conclusion of evidence and final addresses. S.36(8) provides that no
person shall be guilty of a criminal offence which at the time of commission was not
considered an offence and for a penalty heavier than the one recommended (i.e.
retrospective law). S.36(9) no person who has been tried acquainted or convicted by a
competent court or tribunal for a criminal offence shall be tried again for that some
offence or offence of the same ingredient i.e double jeopardy. This codifies the
doctrine of outrefois acquit & autrefois convict, this provision was designed to keep a
person who has committed a crime from going to jail more than once for the same
crime. S36(10) states that no person who has been pardoned for a crime shall again be
convicted for that crime. This is based on the power of the President or Governor to
grant a prerogative of pardon/mercy as in Okongwu V State who after being granted
pardon by the Governor still proceeded to file for an appeal on his conviction and the
court of Appeal held that the appeal was unnecessary. This pardon also extends to
people eg. Ojukwu. S36(11) provides that no person accused of a criminal offence
shall be compelled to give evidence at trial which is an extension of S.35(2) on right
to silence thus an accused person can only give evidence upon his own application.
Lastly S.36(12) provides that a person shall not be convicted of a criminal offence
unless it is defined and prescribed in a written law as seen in Aako V Fagbemi the
court held it was wrong to convict a woman for adultery which was not defined or
prescribed by the written law. Also in Udogwo V Onugha where the court held that
there was not offence of invoking juju known in a written law.
NOTE: Mere misquotation of a law does not invalidate the charge under this section as long
as it exists under another law as it was held in Ogbomor V State.

E. RIGHT TO PRIVATE AND FAMILY LIFE

S. 37 provides for the right to privacy of citizens, their homes, correspondence,

telephone conversation and telegraphic communications are guaranteed and protected.
Privacy entails an individual’s liberty to choose how they lead their lives and freedom
from unwanted state intervention. However the exception to privacy of a citizen is the
right accused to Criminal Procedure Act for forced medical examination in some
cases such as drug trafficking and a right to stop and search a person. Also the right of
a woman to either keep or abort a pregnancy however in Nigeria it is a criminal
offence however permitted on grounds to save of good faith i.e. to save the life of the
mother (S.228 of Criminal Code). The issue of homosexuality which is permitted in
the West but same sex union in Nigeria is a prohibition of S.1 of Same Sex Marriage
(Prohibition) Act 2013 and S.S. of the Act prescribes 14yrs imprisonment for
offender. This right somewhat extends to prisoners but with a limitation in Pretorius V
Minister of Correctional Service whose claim for the right to not be disturbed by the
radio was successful. In MDPDT V Okonkwo it was held that the patient right to
consent to blood transfusion, also in Georgina Ahamedule V Imperial Medical Centre
& Dr. Alex Molokwu it was held that a medical test on HIV done on the appellant was
a violation of her right to privacy.

The court has held that if there is a situation whereby a person expects his rights of
privacy to be respected, an intrusion would give rise to liability in an action of breach
of confidence when the intrusion is justified. In Douglas & Other V Hello Ltd the
court of Appeal held that the individual right to privacy was grounded in the doctrine
of confidence. However in the case of Campbell V Mirror Group Newspapers the
super model was awarded compensation for the violation of her right to privacy when
they disclosed information regarding her drug addiction treatment.

F. RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

S.38 of the 1999 const. & Article 8 of the African Charter on Human and People’s
Rights states that the freedom of conscience, the profession and free practice of
 religion shall be guaranteed. However S.10 of the 1999 const. states that the
federation or of a state shall not adopt any religion as state religion.

J. RIGHT TO OWN IMMOVABLE PROPERTY

S.43 of the 1999 const. deals majority on immovable property as stated that every
citizen of Nigeria shall have the right to acquire and own immovable property.
Immovable property according to Mowoe is “God’s gift to the society”. That every
citizen has a right to acquire interest in land in any part of the country despite the fact
that he is not within his/her community of origin. S.1 of the Land Use Act 1978 vests
all land in a state in the state Governor who is expected to hold such land for the use
and benefit of all Nigerian, however, this Act provides that a citizen can acquire the
right to use and occupy the land for 99yrs and nothing more.

The right extends to inheritance of properties by a decreased person’s children,

however any customary law which deprives female children from inheriting their
father’s property is unconstitutional repugnant to equity, good conscience and natural
justice as was the case in Asika V. Atuanya the respondent who was the only surviving
male of the deceased was challenged by his sisters, the appellant who were all female
on their right to the property which was left to them (appellant) by their late father.
This right to inheritance was upheld in the Court of Appeal and the decision of the
trial court was set aside. Also in Mojekwo V Iwuchukwu where the Supreme Court
held a child of the deceased whether male or female is entitled to inherit from their
deceased father irrespective of the presence of a maker. In Chuchwu V Amadi it was
held that a custom that deprives female children is not only repugnant to natural
justice, good conscience but also unconstitutional inhumane and unjust.

Another issue asides customary law of property is the issue on the location of the
property. According to S.43 of 1999 const. every Nigerian citizen has a right to
acquire and own immovable property anywhere in Nigeria as was held in the case of
Ezerioha V Thezuo, the rule established in that case is where a person acquires a
property he cannot be dispossessed of the said property on the grounds of he is not
from the area where the proper is located. Similar judgment held in Monkom V. Odiu
and the Court of Appeal judge Omokiri criticized the acts of the appellant as a
violation of S.43 of const.

Additionally, if a person joins an association whose constitution permits the seizure of

his property cannot seek refuge under this provision as was the case in Amrekwe V
Okereke where the respondent is a member of a palm oil association which limits the
quota each member of the association is permitted to sell and procures punishment for
defaulter when the respondent default this rule and one drum of his palm oil was
seized, he brought an action on the claim that he acts of the appellant is a violation of
right against compulsory seize of his property, this was rejected at the court of Appeal
of his membership was voluntarily.

S.44(1) states that no moveable or immovable property shall be taken possession of

compulsorily and no right or interest over such property shall be acquired
compulsorily in any part of Nigeria except in a manner as prescribed by the law.
While S.44(2) states the situation where fundamental rights to property will not be
upheld by the court i.e. the victim of a property dispossession will not succeed by
virtues of these provisions in Dangabar V FRN where it was held that the temporary
for feature of an accused person property pending investigate of crimes alleged
against him is not unconstitutional by virtue of S.44. In Ikem V Nwegwu a debtor
who was unable to repay a loan collected from the bank had his property which was a
collateral for the loan sized to which effect he sued for compulsory takeover of his car
and it was held to be constitutional by virtue of S.44(2)(c). The provisions of S.44(3)
asserts the rights of the Federal Government over any land on which mineral
resources are present, however, the federal government must take necessary steps to
first acquire the land before proceeding to enter the land for the purpose of
exploitation of the mineral on the land. NOTE – The relevant provisions of S.44 of
the 1999 const. read along with S.28 & 51 of Land Use Act of 1978. S. 44(1)(6) gives
any person claiming compensation the right of access to the determination of his
 interest in the property and the amount of compensation to a court of law of body
having jurisdiction in that part of Nigeria.

PROVISIONS of S.28 & S.29 of the Land Use Act S.28(1) provides that it is lawful
for the Governor of a state to revoke a right of occupancy for overriding public
interest, such overriding interest means the requirement of the land by the
Government for public purposes or for mining purposes. S.28(4) states that the
Governor shall revoke the right of occupancy by the President if such notice declares
such land to be required by the government for public purposes. NOTE – The
provisions of S.28(2) b & S.28(3)a have similar provisions concerning the
requirement of the land by the government for public purposes while S.28(2) & S.28.
(3)(b) requires the land for mining and oil purposes, S. 28(3)(c) requires the land for
the extraction of building materials.

S.29(1) of the Land use Act states that if a land owners rights is revoked as set out in
S.28(2)(b) and S.28(3)(a) &(c) then compensation would be awarded to the party for
the value at of their un-exhausted improvement at the date of reward. In S.29(2) of the
same Act states that if a right of occupancy is revoked for the cause set out in S.28(2)
(c)(mining) and S.28(3)(b) as regards mining as well shall be entitled to compensation
based on the Provisions of Mineral or Petroleum Act.

By virtue of S.51 of the Act some public purposes for which the governments of any
kind S.51(c), for any railway road or public work or convenience construction S.
51(d), for development of telecommunications or provision of electricity S.51(c) for
mining purposes S.51(e) for planned urban or rural development or settlement
S.51(g), for economic, industrial or agricultural development S.51(h) and for
educational and other social services S.51 (i).

REQUIREMENTS BEFORE REVOKING THE RIGHT OF OCCUPANCY

1. The revocation must be for any of the reasons as stated by the Act. Ibefon & Anor V
NPA
2. The holder of the right of occupancy must be given prior notice of the intended
revocation, this notice shall be served under either of the provisions of S.44 of the Act
and the holder must be afforded the opportunity of being heard where necessary. Ajayi
V Ojomo.

3. The grounds/reason for the revocation must be expressly stated and must be for any of
the recognized reasons overriding public interest or public purpose.

4. The notice must be properly served to the holder in the manner prescribed by the Act
and must contain the signature of the authorized officer. A.G lagos V Sonande

5. In cases of acquisition, compensation should be paid to the holder of right of

occupancy for his/her un-exhausted improvement on acquired property.

In cases of public purposes such as Sokoto L.e & Other V Alhaji Tosho Amale & Anor it
was held that the acquisition of land for the establishment of a cattle market was a valid
acquisition and satisfied the tests of public purpose but in a contrasting case of Ibafon Co,
Ltd & Anor V. Nigerian Ports Authority & Other was held to nor have satisfied the test for
public purpose where the land was acquired by the government and used for a private
interests and business. On the issue of notice prior to the acquisition of a land, the court is
clear that if proper notice is not served then it cannot be regarded as proper acquisition as
held in both cases of LSDPC V Banire and A.G Bendel State & Others V Aidejon. Also in
Boye Ind. Ltd V Sowemimo the court nullified the revocation of right of occupancy
because there was no proof of service of notice as prescribed under S.44 of the Act. In
Ajayi V Ojomo it was held that the need to accorded fair hearing to a person whose
property the governor tends to acquire. The publication of the notice in the and newspapers
is not proof of service, unless the notice of service is done in accordance with the S.44 of
the Act the titled still remains in the owner of the land as seen in LSDPC V Foreign Finance
Corp Another rule as stated in the case of Majiyagbe V A.G Northern Nigeria is that where
the notice is unsigned or signed by an unauthorized person the notice of acquisition would
be treated as void and the acquisition set aside. Also a notice which doesn’t state the
particulars of public purpose of the land to be acquired is regarded as bad and will be set
aside by the court as seen in Osho V Foreign Finance Corp.

• GOOD SERVICE OF NOTICE UNDER S. 44 of the Act

1. Delivery of the notice to the person to whom it is to be served.

2. Leaving at the usual or last known about/home of the person

3. By sending it a prepared & addressed letter to the usual or last known home of the
person

4. For incorporated body or company delivery it to the secretary or check of the company
or body of that office

5. By affixing it or copy of it to some conspicuous part of the premises.

In the case of NNPC V FAMFA OIL the court held that the compulsory acquisition of
the respondents oil license was illegal and unconstitutional and contrary to s. 44 of the
Constitution. In YAKUBU V IMPRESIT BAKOLORI PLC and the case if Lawson v
Ajibulu requires that the government discloses the purpose of which the property is
required.