On the 28th day of June, 2017, The PUNCH reported that the suspected billionaire kidnapper, Chukwudumeme Onwuamadike a.k.a. Evans, on Wednesday, filed a fundamental rights enforcement action before the Lagos Federal High Court in Lagos, urging the court to order the police to charge him to court or release him immediately.
Joined as respondents in the said suit marked FHC/L/CS/1012/2017 are the Nigeria Police Force, Commissioner of Police, Lagos State and the Special Anti-Robbery Squad, Lagos State Police Command.
In a fundamental rights enforcement suit filed on his behalf by a Lagos-based lawyer, Olukoya Ogungbeje, the suspected kidnapper is seeking for a court’s order directing the respondents to immediately charge him to court if there is any case against him in accordance with Sections 35 (1) (c) (3) (4) (5) (a) (b) and 36 of the Constitution.
He is on the alternative seeking for an order compelling the respondents to immediately release him unconditionally in the absence of any offence that will warrant his being charged to court.
Evans is contending that his continued detention by the respondents since June 10, 2017, without being charged to court or released on bail is an infringement on his fundamental human rights.
Meanwhile, on the 29th of June, 2017, THIS DAY reported that following the news that notorious kidnapper, Chukwudumeje Onwuamadike, alias Evans had filed a lawsuit at a Federal High Court in Lagos to compel the police to either charge him to court or release him from custody, the police authorities on wednesday said his continued detention was within the ambits of the law.
Reacting to the incident, the officer-in-charge of the Inspector General of Police Intelligence Response Team (IRT), ACP Abba Kyari, said the continued detention of Evans and gang was in line with the law.
He said, “Evans’ gang members who wanted him to go to court before police will finish investigations that have been leading to their exposure and arrests, hired a lawyer who sued the Lagos State Commissioner of Police and Officer-in-Charge of SARS.
“They are insisting that Evans should be charged to court. Unknown to them, the Federal High Court last week Thursday gave order for Evans and his gang members to be remanded in police custody for three months.
“This is to enable the police conclude all Investigations in Nigeria, Ghana and South Africa, so that all involved will be brought to book.”
The issue in question is whether the continued detention of Evans in police custody is illegal and amounts to an infringement of his fundamental human rights.
Points to Note:
1. The law guarantees every person the right to personal liberty and nobody shall be deprived of such liberty except in accordance with the procedure permitted by Law.
2. Generally, any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his choice.
3. Any person who is arrested or detained shall be informed in writing within 24 hours(and in a language he understands) of the facts and grounds for his arrest or detention.
4. Any person who is arrested or detained lawfully shall be brought before a court of law within a reasonable time.
5. A reasonable time means a period of one (1) day in the case of an arrest or detention where there is a court of competent jurisdiction within a radius of forty kilometres and two (2) days or such longer period as in the circumstances may be considered by the court to be reasonable.
6. If such a person is not tried within a period of two (2) months from the date of his arrest and detention in the case of a person who is in custody or is not entitled to bail, or three (3) months in the case of a person who has been released on bail, he may be released unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
7. Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.
8. Note, however, that the rights in numbers 4, 5 & 6 shall not apply in a case of a person arrested or detained upon reasonable suspicion of having committed a capital offence.
9. A person is also entitled to fair hearing – in the determination of his 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 in such manner as to secure his independence and impartiality.
10. Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal except for special circumstances where public trial may not be advisable.
11. Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.
12. Every person charged with a criminal offence shall be entitled to:
(i) be informed promptly in the language that he understands and in details the nature of the offence;
(ii) be given adequate time and facilities for the preparation of his defence;
(iii) defend himself in person or by a legal practitioner of his choice.
(iv) to examine in person or by his legal practitioners the witnesses called by the prosecution before any court or tribunal and to obtain the attendance and carry out the examination of witnesses to testify on his behalf.
(v) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.
13. No person who is charged for a criminal offence shall be compelled to give evidence at the trial.
14. Generally, the police cannot, except in capital or other serious offences, detain a person beyond 48 hours in any case.
15. However, any person arrested for any offence triable on Information (at the High Court) shall within a reasonable time of the arrest be brought before the Magistrate Court for remand which the Magistrate have power to make a remand order after examining the reasons for the arrest as stated in the request form filed by the police.
16. If the Magistrate is satisfied on the reason (s) as stated, he may make an order of remand pending the legal advice of the Director of Public Prosecution or the arraignment of such person before the appropriate court.
17. The Supreme Court has held that the remand procedure is lawful.
My firm opinion is that there is no doubt that Evans is entitled to his fundamental human rights but his continued detention is still legal since his rights are not absolute. This is because the Nigerian Police obtained the requisite order to remand him for three months pending the time thorough investigation would be completed and he would be properly arraigned in court. Considering that most of the high profile cases lost by the Federal Government have been attributed to the weak investigation on the part of the prosecution, the Nigerian Police should be commended for their efforts in conducting a thorough investigation in this case and, in particular, for following due process. The Lawyer of Evans should have been weary in filing such an action since it’s a case of Capital offence which is an unequivocal exception to the rights being claimed. In short, where his right ends is where the right of other members of the society begins.
THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Attorney at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.