3PLR – MR. EDWIN IKECHUKWU UMEH V. KRIS-JORGE INV. LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MR. EDWIN IKECHUKWU UMEH
V.
KRIS-JORGE INV. LTD
COURT OF APPEAL
KADUNA JUDICIAL DIVISION
CA/K/242/96
14TH FEBRUARY 2001
3PLR/2001/228 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
ISA AYO SALAMI
MAMMUD MOHAMMED
JOSEPH JEREMIAH UMOREN
BETWEEN
- EDWIN IKECHUKWU UMEH
AND
- KRIS-JORGE INV. LTD.
- MR. CHRIS ANIEMENE
- INSPECTOR GENERAL OF POLICE
- MALLAM SULEIMAN FED. BUREAU OF INTELLIGENCE &INV. KADUNA (F.I.I.B)
- ATTORNEY- GENERAL OF THE FEDERATION
REPRESENTATION
Kayode Olatunji Esq for the appellant
Respondents filed no brief.
MAIN ISSUES
STATUTES – Section 1(1)(b) of the DISHONOURED CHEQUES (OFFENCES) ACT CAP.102 L.F.N. 1990– purport of – the legal implications of a dishonoured cheque
STATUTES – Section 3(2)(c ) of Special Tribunal (Miscellaneous offences) Act Cap 410 Laws of the Federation of Nigeria 1990 – purport of – whether the alteration or forgery of a document constitutes an offence
J.J. UMOREN, JCA.( Delivering the leading judgment):
This is an appeal against the decision of the Federal High Court Kano, in suit No.FN/C/K/CS71/95 by Abdullahi Mustapha J. dated 16th January, 1996.
The appellant who was the applicant in the lower court brought an application to enforce his fundamental right under the Fundamental Rights (Enforcement Procedure) Rules, 1979 as amended, for certain declarations, injunctive orders and damages. The application on notice was heard and on the 16th January 1996, the learned trial Judge delivered his judgment dismissing the applicant’s motion on notice and refused all the reliefs sought. It is against that decision that the appellant has appealed to this court on seven grounds of appeal.
The reliefs sought in the lower court were as follows :-
(a) A declaration that the arrest of the applicant from Kano and detention for 3 days in Kaduna by the respondents at the instance of the 1st and 2nd respondents over the civil contract entered into in Kano between EDDY-IYKE NIG. LTD. and the 1st respondent when the applicant is not a party is illegal, unconstitutional and a violation of the applicant’s right to liberty and dignity to his person.
(b) A declaration that the whole circumstances of the case concerning the civil contract between EDDY-IYKE NIG. LTD and the 1st respondent is a civil matter which the 3rd and 4th respondents have no jurisdiction to enforce hence the involvement of the 3rd and 4th respondents at the instance of the 2nd respondent is wrongful.
(c) A declaration that the 1st and 2nd defendants have no right to interfere with the fundamental rights of the applicant as done in this case.
(d) N1million damages against the respondents jointly/severally for the applicant illegal arrest, imprisonment in a cell for 3 days and nights.
(e) A perpetual injunction restraining the respondents whether by themselves, servants, agents, privies or whosoever from arresting, detaining or procuring arrest and detention in any manner whatsoever or interfere with the liberty and fundamental rights of the applicant
(f) COSTS
The grounds of appeal with particulars are as follows:-
(3) Grounds of Appeal
Ground No 1 – The judgment is against the weight of evidence.
Ground No 2 – The learned trial Judge erred in law in refusing to enforce the applicant’s fundamental rights to liberty breached by the respondents over a civil contract between the applicant’s company and the 1st and 2nd respondents which is the subject matter of a Kano High Court case in suit No K/429/95 still pending.
PARTICULARS OF ERRORS
(a) The civil contract between the applicant’s company and the 1st and 2nd respondents is now a subject matter of suit No. K/429/95 pending at High Court Kano in which the 1st and 2nd respondents have already entered appearance and same pending and any claim any of the parties may have should have been referred to the court and not to embark upon harassing the applicant with police over same subject matter.
(b) No crime was committed by the applicant against the respondents and there was no contract between the applicant personally and the 1st and 2nd respondents.
(c ) The civil transaction in this case was between EDDY-IYKE NIG. LTD., a limited liability company and the 1st and 2nd respondents and not with the applicant personally.
Ground No 3 – The learn trial Judge erred in law in refusing to consider and to place reliance on the office copies of writs, and pleadings in the civil cases in High Court Kano involving the parties on same related subject matter by holding inadmissible and placing no reliance on it which would have showed that the parties have submitted the same issue the subject of police investigation to adjudication by a High Court.
PARTICULARS OF ERRORS
(a) Office copies of writ of summons and pleadings are not public documents that requires to be certified and same is admissible.
(b) The respondents did not object to the use of the writ of summons and pleadings in suit No. K/429/95 between the applicants company and the 1st and 2nd respondents but the objection to admissibility was raise suo motu by the trial judge himself without giving the parties the opportunity to address the court on it.
(c) A trial court cannot suo motu create and raise an issue relating to the subject matter before it and pronounce a decision on same unilaterally without affording the litigants the opportunity of being heard.
(d) The substratum of the applicant’s case was that the civil contract the subject of the applicant’s arrest and detention is the same subject matter pending before a court of law yet to be determined.
Ground No. 4 – The learned trial Judge misdirected himself by refusing to pronounce on the case and issues brought by the applicant in the motion on notice thereby denying the applicant a fair hearing in the determination of his case.
PARTICULARS OF ERRORS
(a) Relief No. b as clearly set out in the applicant’s motion on notice was ignored by the learned trial Judge which was the main ground of case of the which the parties joined issues.
(b) The whole tenor of the applicant’s case revolved around issue No. (b) in the motion on notice which was for the trial court to declare that the transaction between the applicant’s company and the 1st and 2nd respondents was purely civil which is now pending before a court of law.
Ground No. 5 – The learned trial Judge erred in law in misconstruing the provision of S. 32 of the 1979 Constitution of Nigeria as amended and S. 27 of the Police Act by holding that the provision relating to the liberty of the citizen from harassment preserved in S. 32 of the 1979 Constitution has been suspended and by holding that the police are no longer under constitutional compulsion to bring an accused person before a court of law for trial within 1 or 2 days as the case may be but the police can resort to S. 27 Police Act arrest and detain any person and is free to bring such detained person before a court of law as soon as practicable.
PARTICULARS OF ERRORS
(a) Every citizen in Nigeria has a fundamental right against arbitrary arrest and interference with his liberty and courts exist to enforce and ensure the protection of the rights of citizens not otherwise.
(b) Courts should always strive to protect the fundamental rights of citizens and not to sanction arbitrariness by the police.
Ground No. 6 – The learned trial Judge erred in law in raising suo motu the applicability of the provisions of Dishonoured Cheques Offences Act Cap. 102 which none of the parties raised in their case nor in their submissions.
PARTICULARS OF ERRORS
(a) A court is not party to a dispute and cannot suo motu raise and create a case to strengthen any of the parties to the case without affording the affected party the right to be heard on the issue suo motu raised.
(b) It was wrong of the learned trial Judge to raise suo motu the applicability of the provisions of the dishonoured cheques Offences Act Cap 102.
Ground No. 7 – The learned trial Judge erred in law in placing reliance on the provisions of the dishonoured cheques Offences Act Cap 102 and Special Tribunal Miscellaneous Offences Act Cap 410 to hold that there is a reasonable suspicion that the applicant has committed an offence.
PARTICULARS OF ERRORS
(a) There is uncontroverted evidence before the court that a post dated cheque issued to the 2nd respondent was subject to conditions attached thereto and which the 2nd respondent agreed would not be presented to the bank until fulfillment of the conditions precedent.
(b) The entitlement or otherwise or the 2nd respondent to the proceeds of the cheque is the subject matter of suit No K/429/95 pending in the High Court Kano of which the 1st and 2nd respondents have already entered an appearance.
(c) The cheque in issue which was fraudulently presented to the bank by the 2nd respondent was not dishonoured for lack of funds
(d) S.I (b) of the Dishonoured Cheques Offences Act only makes the making of a dishonoured cheque an offence if there was a credit obtained by the applicant from the respondent and same is dishonoured on the ground that no funds or insufficient funds were in the account of the drawer which was not the case herein.
(e) The applicant did not obtain any credit from the respondent.
(f) The provision of S.32 (c) of Special Tribunal Miscellaneous Offence Act cap. 410 in the circumstances and facts of this case are not applicable.
There were a 24 paragraph affidavit, a statement in support and exhibits attached to the motion on notice. The 1st and 2nd respondents filed a joint counter affidavit of 27 paragraphs and exhibits. The 3rd and 4th respondents also filed a joint counter affidavit of nine (9) paragraphs with an exhibit. There was a further and better affidavit of 4 paragraphs with exhibits. The facts of the case as disclosed by the affidavits, statement in support, exhibits, counter affidavits and exhibits and further and better affidavit and exhibits attached thereto are as follows:-
The applicant’s case an can be gathered from the statement in support, affidavit in support and further and better affidavit is that the applicant is a staff of EDDY-IYKE (NIG.) LTD. based in Kano and the 1st respondent is a clearing and forward company based in Kano, Kaduna and Lagos while the 2nd respondent is the Chairman/Managing Director of the 1st respondent. Following discussion between the applicant’s company and the 2nd respondent in Kano, it was agreed that the 1st and 2nd respondents be appointed to be clearing all the applicant company’s imported consignments. The first contract was awarded to clear a container at Inland Container in Kano in the sum of N320,000.00. This was subject to production of all receipts of payment to justify the amount. After clearing the container in Kano and delivery of same by the 1st and 2nd respondents, the applicant’s company paid to the said respondent the sum of N385,000.00 in error; it was discovered that the respondents only spent N95,000.00 thereby being over paid to the tune of N290,000.00. The 2nd respondent was said to have admitted the over payment but pleaded for time to bring receipts for the reconciliation so as to make the necessary refund. The second transaction which also took place in October/November, 1994 was to clear three Mercedes benz vehicles, two of which belonged to the applicant and the third to one Joseph Jackson Elo. All the bills of lading, letter of authority and other documents were said to have been given to the said respondents for clearance of the vehicles at Cotonou Port. The agreement was for the deliverance of the vehicles to the applicant’s company in Kano as well as the invoices. Only two vehicles were however brought by the respondent the third one is yet to be brought even though it was cleared by the respondent. A post-dated cheque was collected by the 2nd respondent as a guarantee of payment for expenses to be incurred in Cotonou when clearing the vehicles. It was said to have been agreed that the cheque would never be presented to the bank until the respondents produce receipts of payment for the first contract and also surrender the third Mercedes.
According to the counter affidavit deposed to on behalf of the 1st and 2nd respondents there were two transactions, one which had already been undertaken and concluded. The bill in respect of the first transaction for the clearance of a container was in the sum of N385,000.00. The applicant paid for that and the 1st and 2nd respondents were said to have issued a receipt in acknowledgment. The second transaction was said to be clearance of the mercedez benz cars and payment for the freight. This was said to have been done by the said respondents and a bill of N375,000 was sent to the applicant issued a cheque dated 31st March 1995 in the sum of N375,000. When the cheque was due for representation and same was presented in Kaduna Chartered Bank, it was dishonoured. The solicitors to the said respondents wrote to the applicant to remedy the situation. This was not responded to. This caused the said solicitors to write a letter of complaint to the Federal Intelligence and Investigation Bureau Kaduna. Above are the facts as disclosed by the affidavits and counter affidavits before the lower court.
From the seven grounds of appeal, the appellant formulated four issues for determination as in his brief of argument filed on 25/4/98 as follows:-
- Whether or not from the whole circumstances of this case including the pendency of suits No. K/429/95 and K/504/95 a Kano High Court where the dispute concerning the parties and the 1st and 2nd respondents entitlements or otherwise to the proceeds of the cheque in issue is to be resolved, the respondents should be allowed to arrest and detain the appellant on same unresolved issue.
- Whether or not the arrest and detention of the appellant from Kano-Kaduna for 3 days on the returned cheque which was not dishonoured for lack of funds is not a breach of his fundamental rights.
- Whether or not it does not amount to denial of fair hearing to the appellant for the lower court to raise issues suo motu and decide on same and also refusing to make pronouncement on issues raised in appellant’s claim and refusing to consider relevant High Court Kano processes in the determination of the appellant’s case.
- Whether or not from the circumstances of this case the provisions of Dishonoured Cheques Offences Act Cap. 102 and Special Tribunal Miscellaneous Offences Act Cap. 410 are applicable and relevant in this case.
The respondent filed no brief of argument and the appeal was heard on appellant’s brief in this court on the 23rd November, 2000. In issue No. 1 the appellant questions the legality of the arrest and detention of the appellant when the suits to resolve the issue in controversy were pending in court and the issue therein unresolved. I will also take on issue No. 2 together as they appear inter-related.
Appellant argues that it is not in dispute that suits No.K/429/95 and K/504/95 are pending in Kano High Court. He refers to pages 14-22 of the record of appeal where suit No. K/429/95 involving the appellant’s company, EDDY-IYKE (NIG.) LTD. and the 1st and 2nd respondents was pending. The suit was for declaration, injunction and damages concerning the post-dated cheque and the entitlement of the 1st and 2nd respondents to the proceeds for the cheque until all their accounts were reconciled. The appellant submitted that once an issue has been submitted to a competent court of law, no party is allowed to resort to extra-judicial process with a view to having an undue advantage over another and in such a case the applicant is entitled to approach the court for redress pursuant to S. 42 of the 1979 constitution of the Federal Republic of Nigeria 1979 as amended. Urges this court to intervene by ensuring that the enforcement of the appellant’s fundamental rights to liberty is maintained when the suit No. K/504/95 and K/429/95 are still pending in court.
The fulcrum of the appellant’s case on this issue seems to me to be that suit No. K/504/95 and K/429/09\95 being pending in court, the respondents were not allowed to use extra-judicial process against the appellant. He cited Ojukwu v. Governor of Lagos State (1995) 2 NWLR (Pt. 10) 806 at 824, Abdullahi v. Governor of Lagos State (1989) 1 NWLR (Pt. 97) 370. I have had recourse to the record of appeal. It appears that the writ filed by the plaintiff in that court i.e. suit K/429/95 between Eddy-Iyke (NIG.) LTD v. Kris-Jorge Investment Ltd & Anor was dated 22nd June 1995. The other suit between Joseph Jackson Elo v. Mr.Edwin Ikechukwu Umeh (2) Mr. Chris Aniemene was dated 26th June 1995. The two suits were filed after the arrest and detention of the appellant and so are not relevant.
Because of this the trial Judge held that he could not see their relevance to the determination of this case. This might have been so; but both the appellant and the respondents appear not to have been very generous with the truth in this case. For instance I have laboured in vain to find:
- When the appellant was actually arrested and detained to justify the conclusion that he was arrested when the relevant actions were pending in court.
- We are only told that the cheque was a post-dated cheque. Evidence is not available to show the date it was to be cashed or whether it was presented before that date.
- Evidence on record show that the cheque was returned with the inscription “drawers attention required.” There was no expert evidence to the effect that “drawers attention’s required” in the banking world means that there is no or insufficient fund in the drawers account to meet the value of the cheque. And it is not a matter a court can take judicial notice of. It is a term of art and bears its peculiar meaning.
- The whole transaction was contractual and civil in nature and apparently a bit too early to bring in the police. I hold this view because the trial Judge had held that:-
“Under section 32(f) (e) of the constitution of the Federal Republic of Nigeria as amended, the police are empowered to arrest and detain any person on reasonable suspicion of having committed a criminal offence. Therefore in considering whether the arrest and detention of the applicant is illegal, unconstitutional and a violation of the applicant’s right to liberty and dignify, of his person, the court is only concerned with whether or not from the facts deposed to in the affidavit and counter-affidavit before the court there was a reasonable suspicion that the applicant had committed a criminal offence at the time he was arrested and detained.”
He cited, section 1 (I) (B) of Dishonoured Cheque (Offences) Act Cap 102 Laws of the Federation of Nigeria 1990, and section 3(2) (c) of Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria 1990. The learned trial Judge held that it is an offence under our law to issue a cheque, which is dishonoured. This led to the arrest and detention of the appellant. It becomes pertinent to look at the laws cited above a bit closely. For case of reference, I shall reproduce the provisions of the laws cited above. Section 1(I) (b) of the Dishonoured Cheque Act Cap. 102 states inter alia as follows:-
3.”1.(1) Any person who:-
(b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer, of the cheque in the bank on which the cheque was drawn, shall be guilty of on offence and on conviction…………….”
(Italics is for emphasis).
Section 3 (2) of Special Tribunal (Miscellaneous Offences) Act Cap. 410 Laws of Federation of Nigeria, 1990 states inter alia as follows:-
“S.(2) Any person who:-
(c) makes or utters any false documents, cheque, promissory note or other negotiable instrument, knowing it to be false or with intent that it may in any way be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may in the believe that it is genuine be induced to do or to refrain from doing any act or thing, whether in Nigeria or elsewhere, shall be guilty of an offence……”
(Italics for emphasis)
Based on these sections of the Act, the learned trial Judge came to the conclusion that it is an offence under our laws to issue a cheque which is dishonoured. On this he justified the arrest and detention of the appellant and concluded that:-
“I fail to see what was illegal about that arrest when there was reasonable suspicion that that the applicant had committed a criminal offence to wit, issuing a dishonoured cheque.” (Italic for emphasis)
From the foregoing legal provisions, it is trite law that an offence is constituted only when an action discloses some elements that constitute the offence. In the case before the court, I am unable to see or agree with the appellant’s arguments. He brought the application but failed to allege or aver in his affidavit the ingredients listed above. The onus is on him to place sufficient facts before the trial court to enable the court do justice. This he failed to do.
I have no option other than agree with the trial court i.e. that his arrest and detention in the absence of evidence to the contrary was lawful and that he is not entitled to any of the reliefs sought. I find this appeal unmeritorious and hereby dismiss it and affirm the decision of the lower court.
I make no order as to costs as the respondents neither put in a respondents’ brief nor, by leave of court, offered oral arguments.
ISA AYO SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother Umoren JCA with which I agree. The crux of the appeal turns mainly on appellant’s second issue which reads as follows:-
“2. whether or not the arrest and detention of the appellant from Kano to Kaduna for 3 days on the returned cheque which was not dishonoured for lack of funds is not a breach of his fundamental rights.
The appellant issued a cheque to the 1st and 2nd respondents. The cheque was post dated and, on the affidavit evidence before the trial court which shows that when the cheque was presented, at maturity, it was returned with an instruction or request “drawer’s attention required.” The learned counsel to first and second respondents wrote the appellant that when the cheque was due for presentation it was presented but it was returned with the said inscription and appellant was invited to rectify the situation. He failed to heed the request hence the matter was reported to the police in Kaduna. The police in Kaduna caused the appellant who was resident in Kano at the material time, to be arrested and brought down to Kaduna. The total period of arrest and detention lasted three days.
The appellant brought an action to enforce his fundamental right or rights under the provisions of the Fundamental Rights (Enforcement Procedure) rules Cap 62 of the Laws of the Federation of Nigeria, 1990. The application was entertained and the learned trial Judge, in a reserved and considered judgment, dismissing appellant’s claim refused the reliefs sought therein. In coming to his decision the learned trial Judge reasoned inter alia as follows:-
“Under section 32(1) (c) of the constitution of the Federal Republic as amended, the police are empowered to arrest and detain any person on reasonable suspicion of having committed a criminal offence. Therefore in considering whether the arrest and detention of the applicant is illegal, unconstitutional and a violation of the applicant’s right to liberty and dignity of his person, the count is only concerned with whether or not from the facts deposed to in the affidavit and counter-affidavit before the court there was a reasonable suspicion that the applicant had committed a criminal offence at the time he was arrested and detained.”
The learned trial Judge, in my considered opinion, properly directed himself before proceeding to examine the materials before him to ascertain whether if a criminal offence had been committed for which appellant could be suspected before he was arrested and detained. In this regard, he examined the provisions of section 1 (1) (b) of Dishonoured Cheque (Offences) Act Cap 102 of the Laws of the Federation of Nigeria, 1990. The learned trial Judge found that under those two enactments it is an offence to issue cheques which is not honoured. On this he concluded thus:-
“I fail to see what was illegal about that arrest when there was reasonable suspicion that the applicant had committed a criminal offence to wit, issuing a dishonoured cheque.”
Can the justification of the appellant’s arrest and detention, in the circumstance, be upheld or right? Section 1 (1) (b) of the Dishonoured Cheque (Offences) act Cap. 102 provides as follows:-
“1.(1) (a) Any person who-
xxxxxxxxxxxxxxxxxxxxxxxx
(b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall-”
(Italics is for emphasis)
And section 3(2)(c) of Special Tribunal (Miscellaneous Offences) Tribunal Act Cap. 410 provides as follows:-
“2 Any person who –
(c) makes or utters any false documents, cheque, promissory note or other negotiable instrument knowing it to be false or with intent that it may in any way be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may in the believe that it is genuine be induced to do or to refrain from doing any act or thing, whether in Nigeria or elsewhere, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 21 years without the option of fine.”
I do not think that the facts of this case turn on the genuiness of the cheque drawn by the appellant. S.3 (2) (c) does not arise or come into play on the facts before the court. The question whether the cheque was genuine or not did not arise at the trial. What was in issue or contention was whether there was funds or sufficient funds standing to the credit of the appellant three months from the cheque coming into maturity which is a matter falling within the four walls of the provision of section 1 (1)(b) of Dishonourned Cheque (Offences) Act Cap 102.
The cheque was returned to the respondent on presentation with endorsement “drawer’s attention required” which remark was brought to the appellant’s notice but he elected to do nothing about it. The expression “drawer’s attention required” is not a term of art. They are ordinary words with their own peculiar meaning which may mean sufficiency or insufficiency of funds to meet the value of the cheque when it was presented. To stave off arrest and detention, the appellant respectfully owes it as a duty to seek for the meaning of the expression and promptly communicate same to the respondents who had advised him of the development and had no access to the appellant’s bankers for the implication of the remark. The appellant refused or failed to act promptly or timeously. His arrest will only be unlawful or unconstitutional if it can be shown that at the time the cheque was presented he had fund or sufficient fund standing to his credit to meet the value of the cheque. This is a piece of information that only the appellant can source from his bank and place at the disposal of either the respondents or the police before his arrest otherwise both his arrest and detention would be justified. Before the relevant information is provided his arrest and detention on suspicion of commission of an offence of issuance of a dishonoured cheque will be unassailable. There is nowhere on the record before the court where he deposed to sufficiency of fund standing to his credit in his account at the time the cheque was presented and that the piece of information was communicated to the respondent before his arrest and detention otherwise his arrest and detention would still be constitutional and valid .The reason for this is that, until the explanation of sufficiency of fund is communicated to the respondents, there would still be arrest on reasonable suspicion of his having committed a criminal offence. He proffered no explanation and it can be presumed that he has none. Section 32 (1) (c) of the constitution Cap 62 of the Laws of Federation of Nigeria, 1990 reads as follows:-
“32.(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) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(c) for the purpose of bringing 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 a criminal offence.” (Italics supplied)
The arrest and detention was lawful, constitutional and unassailable. Because there was reasonable suspicion of his having committed the offence of taking credit for himself by means of a cheque that when presented for payment not later than three months after the date of the cheque it was dishonoured on the ground of insufficiency or no fund are standing to his credit.
Finally the duration of the appellant’s detention was three days. There is no evidence of the time of arrest and the actual time of release. But three days for a person who was arrested in Kaduna before transferring him to Kaduna for the investigation or interrogation, I think a period of three days is not inordinate. It is my respectful opinion that his detention for 3 days is reasonable particularly so when he failed to state what days of the week were involved. He cannot be arraigned before a court if his detention fell on a weekend or public holidays which days are, any case, excused by statute or work free. It is equally worthy of note that, at the time material to the appellant’s arrest and detention, the provisions of section 32 of the constitution of the Federal Republic of Nigeria, 1990 especially subsection (2) – (7) thereof had been suspended by the constitution (Suspension and Modification Decree No. 107 of 1993. I therefore agree with the learned trial judge that the police was not under any constitutional obligation to take the appellant to a court for arraignment within one or two days of his arrest as required by section 32(2) (a) and (b) of the said constitution. The police then resorted to the provisions of section 27 of Police Act Cap 359 of the Laws of the Federation of Nigeria, 1990 which allows a wide latitude within which to maneuver.
For this reason and the fuller reason contained in the judgment of my learned brother Umoren, JCA, I, too dismiss the appeal and affirm the decision of the learned trial Judge, Mustapha J. There is no order as to costs since respondent neither filed brief nor appeared in court at the hearing
MAHMUD MOHAMMED JCA: I have read before today the judgment of my learned brother Umoren J.C.A, which he has first delivered. I entirely agree with him that there is no merit in the appeal that I also hereby dismiss.
