Whether Administrative Bail Is Constitutional

EFCC v. UBOH:
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar

ON THURSDAY, JUNE 30, 2022
Suit No: CA/C/398/2018

Before Their Lordships:

RAPHAEL CHIKWE AGBO
Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU
Justice, Court of Appeal
BALKISU BELLO ALIYU
Justice, Court of Appeal

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) Appellant(s)

And

EMEM ISRAEL UBOH Respondent(s) –

LEADING JUDGMENT DELIVERED BY BALKISU BELLO ALIYU, J.C.A.

FACTS
The appellant received a written petition from one Bridget Bassey against the respondent upon which it invited the respondent for investigation. Upon honouring the invitation of the appellant, the respondent was arrested and detained on the February 15, 2018 till the date he filed an action for enforcement of his fundamental rights at the Federal High Court, which was on February 23, 2018, a period of eight days. The respondent equally alleged that he was refused bail by the appellant, neither was he charged to Court for any offence within the period stipulated by the Constitution.

The appellant denied infringing the respondent’s fundamental rights and asserted that the respondent was indeed granted bail on liberal terms but he was unable to fulfill the conditions of the bail, and he did not approach the appellant to vary the conditions for him before filing the application.

That subsequently, the appellant filed a charge of obtaining money by false pretenses contrary to SECTION 1(1)(A) OF THE ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT at the High Court of Akwa Ibom State, Uyo division, but was not given a date for arraignment of the Respondent before the filing of his application.

Upon consideration of the affidavits in support and in opposition to the application of the respondent, and the parties’ written addresses, the learned trial Judge entered judgment in favour of the respondent. The trial Court awarded the sum of N500,000.00 compensation against the appellant with a caution that in the exercise of its powers, the Appellant must observe and safeguard the fundamental rights that inure to all citizens.
Dissatisfied, the appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the following issues thus:
“1. Whether in view of the facts and circumstances of this appeal, the lower Court was right in holding that the fundamental rights of the respondent were violated by the appellant.
2. Whether respondent is entitled to damages for violation of his fundamental rights as decided by the Court below.”

APPELLANT’S SUBMISSION
On issue one, the learned counsel for the appellant contended that the trial Court failed to consider the facts deposed in its counter-affidavit showing that the respondent was granted bail on very liberal terms on the same date he was arrested. Counsel relied on the case of ADAMU SULEMAN & ANOR VS. COP PLATEAU STATE (2008) LPELR-3126 (SC) and further submitted that the respondent’s inability to fulfill the bail conditions should not be visited upon the appellant, especially as the respondent failed to apply to the appellant for the variation of the bail conditions.

He further argued that the learned trial Judge ignored the principle of law enunciated in the case of AUGUSTINE EDA VS. COP BENDEL STATE (1982) 3 NCLR 219 that the appellant cited, rather the learned trial Judge held that the appellant should have sought the leave of the trial Court to detain the respondent beyond the time prescribed by the Constitution.

On issue two, the appellant referred to relief sought by the respondent for damages in the sum of N100,000,000.00 against the appellant for the infringement of his fundamental rights to personal liberty. He submitted that the relief is ancillary to another relief and thus, if the latter relief fails, the relief for damages being an ancillary relief must also fail.

RESPONDENT’S SUBMISSIONS
On issue one, the respondent stated that the record of appeal revealed that the respondent was arrested and detained by the appellant beyond the time frame allowed by law. He further stated the position of the law that the only option available to the appellant after arresting the respondent was to either charge him to Court within 24 hours or 48 hours as the case may be; or be immediately released on bail, vide SECTIONS 34(A), 35(1) & (5) AND 41(1) OF THE CONSTITUTION OF NIGERIA, 1999 AS AMENDED and SECTIONS 293 AND 294 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, (ACJA) 2015.

Respondent’s counsel argued that the purported administrative bail the appellant said it granted the respondent is in law not a substitute for bringing the respondent before a Court of law within the time allowed by SECTION 35(5)(A) AND (B) OF THE CONSTITUTION. He reiterated that the appellant cannot rely on the purported administrative bail to shy away from their constitutional responsibility of bringing the appellant to Court within 24 hours or to obtain a Court order to detain him beyond that time. He relied on the case of EFCC VS. OYUBU & ORS. (2019) LPELR-47555(CA).

On issue two, the respondent cited the case of JIM-JAJA VS. COP RIVERS STATE (2013) 6 NWLR (PT. 1350) and argued that the respondent is entitled to damages because the law is trite that an infringement of the fundamental rights of a person automatically entitles him to damages flowing directly from the infringement.

RESOLUTIONS OF ISSUES
In resolving issue one, the Court explained the nature of fundamental rights enforcement proceedings. That same are governed by the Fundamental Rights Enforcement Procedure Rules, 2009, by which the applicant has to file a statement and affidavit explaining the facts he or she is relying upon to seek the enforcement of his fundamental rights.

The Court then stated the facts of the case and held that by detaining the respondent for eight days, the appellant contravened the provisions of SECTION 35(4)(A) OF THE CONSTITUTION OF NIGERIA 1999 (AS AMENDED), which provides thus “any person arrested and/or detained upon a reasonable suspicion of having committed a crime shall be brought before a Court of law within a reasonable time”. The Court stated that the SUB-SECTION (5)(A) OF SECTION 35 explained in clear terms what the Constitution means by “reasonable time”, to be 24 or 48 hours as the case may be.

On the contention of the appellant that the respondent was granted bail on the same February 15, 2018 but he could not perfect bail conditions and so he remained in detention, the Court quoted a portion of the trial Court’s finding thus: “It is the view of this Court that the respondent was in breach of the applicant’s right to personal liberty by detaining him beyond the period of one day prescribed. The respondent should have sought the leave of this Court to detain the applicant beyond the time prescribed by the Constitution.” The Court aligned with the said finding and further stated that the Constitution did not contemplate administrative bail because it did not contemplate the arresting authority, be it police or the appellant as in the instant case to flagrantly disobey its provisions, i.e. to detain a suspect of crime beyond the 24 or 48 hours’ period after arrest without taking him or her to Court.

The Court further explained that the arresting authority has no power to grant bail to a suspect. That if same genuinely need to have him detained for further investigation, then they must approach the Court with facts sworn in affidavit explaining why they must further detain such a suspect, period.

With regards to the cases of SULEMAN & ANOR. VS. COP PLATEAU STATE (supra) and EDA VS. COP BENDAL STATE (supra), that the Appellant complained that the learned trial Judge ignored, the Court explained that the said cases did not legalize “administrative bail” by the police or any other law enforcement agency. The Court posited that Courts must be involved where the need arises to detain a suspect beyond the time provided by the constitutional provisions aforementioned, after the suspect has been taken before the Courts or on an application stating the reasons for his further detention.

On the contention of the appellant in its counter affidavit that the bank accounts complained by the applicant were allegedly used for the fraud hence the need to freeze the said accounts, the Court explained that the power of the appellant to attach properties of an accused person of financial crime vide SECTIONS 28 AND 29 OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (ESTABLISHMENT ACT) 2004 is not at large but subjected to a procedure laid down of obtaining interim order from the Court of competent jurisdiction to do so. That any order from the appellant alone or any other law enforcement agency for that matter, to freeze a bank account of a suspect of economic crime or any other offence will be illegal and void. See EFCC VS. ADEDAMOLA (2019) 5 NWLR (PT. 1664) 301 (CA).

Thus, the Court held the order of the appellant to freeze the respondent’s bank accounts without an order of Court to be a flagrant violation of his fundamental right guaranteed by SECTION 44 OF THE CONSTITUTION.

On issue two, the Court aligned with the holding of the trial Court in granting damages to the respondent by virtue of the provision of SECTION 35(6) OF THE CONSTITUTION, which provides that any person who is illegally arrested and/or detained is entitled compensation. That in the instant case, the actions of the appellant in detaining the respondent beyond the period prescribed by SECTION 35 OF THE CONSTITUTION and the freezing of his bank’s accounts without following the due process of obtaining an order to that effect was also in contravention of SECTION 41 OF THE CONSTITUTION.

HELD
The appeal was dismissed and the judgment of the Federal High Court was affirmed.

APPEARANCES
NWANDU UKOHA, ESQ. –For Appellant(s)

DAVID AKPANOFUM, ESQ. – For Respondent(s)