RIGHT TO PERSONAL LIBERTY IN NIGERIA

Yinka Olomojobi, (PhD) *

ABSTRACT

The right to personal liberty is one of the most central human

rights, as it is connected to the essential rudiments of an individual’s
physical freedom. The right to liberty requires that the arrest or detention
of an individual must be in accordance with the law. The right therefore
protects the individual against the excesses of the government and its
agents. The right to personal liberty is essentially a personal freedom in
which no government can abridge. This right is juxtaposed with other
human rights and can be formally traced back to the English Magna Carta
of 1215.
One of the main quagmires of the right to liberty in Nigeria is that
the executive arm of government in Nigeria, at most times, permits
continuous detention without trial. Detention without trial includes
persons detained by the state without criminal charges. Furthermore,
there is a persistent lack of will by the judiciary to eliminate a vast
number of cases where the individual is detained without recourse to the
time they would have served if convicted for the crime in question. In
addition, the problem continues when individuals are not released from
prison even though they have completed serving their jail terms.
To understand the broad concept of this right, this Article explores
the right to liberty from various international frameworks, then from a
regional perspective (the African Charter on Human and Peoples Rights),
and lastly, bringing it to the center, a domestic perspective with Nigeria
as the focal point. Whilst exploring the right to liberty in Nigeria, this
paper investigates the constitutional interpretation of the right.

INTRODUCTION

The right to personal liberty is essential in any democratic society.

According to His Lordship, Justice Oputa, personal liberty “implies
freedom from external coercion in the use of one’s good or faculties. It is
the status of not being the property or chattel of another.”1 Lord Denning
observed that the right to personal liberty means: “the freedom of every

* Associate Professor, School of Law of Security Studies, Babcock University,

Ilishan-Remo, Ogun State, Nigeria.

1 Beatrice N. Okpalaobi & Chino N. Nzewi, Medical Malpractice and Negligence in

Nigeria: Human Rights Enforcement as a Remedy, 3 INT’L J. COMPAR. L. & LEGAL PHIL., no.
2, 2021, at 194, 200.
48 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

law-abiding citizen to think what he will, to say what he will . . . on his

lawful occasions, without let or hindrance from any other person.”2
According to the father of the rule of law, A.V. Dicey, personal
liberty is the “right not to be subject to imprisonment, arrest, or other
physical coercion in any manner that does not admit of legal
justification.”3 The right to personal liberty is a crucial component in
human rights, as it involves the issues surrounding the individual’s
freedom.4 The existence of this right started with the imposition of the
Magna Carta, the charter of English in 1215.5 Later, the Habeas Corpus
Act of 1679 was promulgated to secure persons from arbitrary arrest and
detention.6 The Habeas Corpus Act is aptly described by Blackstone:
“Magna Carta only, in general terms, declared, that no man shall be
imprisoned contrary to law: the habeas corpus act points him out effectual
means, as well to release himself, though committed even by the king in
council, as to punish all those who shall thus unconstitutionally misuse
him.”7 In 1789, France promulgated the Declaration of the Rights of Man
and Citizen, which was based on the crux and values of the French
Revolution.8 The French Declaration of Rights ensured that the right to
liberty was guaranteed to all persons.9 This declaration has inspired
freedom and democracy in the western world.10
Equality before the law is synonymous with liberty.11 In other
words, liberty implies freedom.12 In linking these concepts together, it is
readily noticed that democracy could be added to form a triangular pattern
as equality and freedom are essential components of a democratic
society.13 In a democratic society, the freedom to choose political

2 ALFRED DENNING, FREEDOM UNDER THE LAW, 5 (1949).

3 A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION
124 (8th ed. 1915).
4 G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948)

(discussing how all are entitled to life and liberty).

5 See DAVID CARPENTER & DAVID PRIOR, MAGNA CARTA & PARLIAMENT 4, 8

(2015).
6 See Helen A. Nutting, The Most Wholesome Law – The Habeas Corpus Act of

1679, 65 AM. HIST. REV. 527, 529 (1960) (explaining the legal procedures needed to make
the Act effective against wrongful imprisonment).
7 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 1765–1769,

at 432 (Univ. Chi. Press 1979).

8 See DECLARATION OF THE RIGHTS OF MAN AND CITIZEN [CONSTITUTION] Aug. 26,

1789 (Fr.).
9 Id. art 1.
10 See GEORG JELLINEK, THE DECLARATION OF THE RIGHTS OF MAN AND OF

CITIZENS 2 (1901) (discussing how European law has been influenced by the 1789 French
document).
11 See IMER FLORES, LAW LIBERTY, AND THE RULE OF LAW (IN A CONSTITUTIONAL

DEMOCRACY) 99 (Imer B. Flores & Kenneth E. Himma eds., Springer Netherlands 2013).
12 Id.
13 See id.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 49

representatives and to hold dissenting views against an elective

government showcases the right to an individual’s personal liberty.14 The
right to liberty ensures that the individual can access the just
administration of the criminal justice system.15 Thus, where an individual
is suspected of committing a crime, such a person is, according to the
doctrine of equality, within the ambit of “presumption of innocence” until
proven guilty.16 In deciding whether a person is guilty of an offence, it is
the duty of the court to enquire whether the process of finding such person
guilty is in accordance with the criminal justice system, ensuring the
person’s liberty has not been unjustly tampered with.17
Liberty does not consist of the freedom to do any acts, but the
freedom to do acts that do not impede other persons.18 The seizure of
personal liberty is a preventative measure to guarantee that a person is
arrested and detained when they are suspected of having committed an
offence or when the person is being punished for committing a crime.19
Lord Atkin, dissenting in the case of Liversidge v. Anderson, noted that:
“[I]n English law every imprisonment is prima facie unlawful and . . . it is
for a person directing imprisonment to justify his act. The only exception
is in respect of imprisonment ordered by a judge.”20

I. INTERNATIONAL PROTECTION

Assembled below is a series of intentional articles seeking to

protect the rights and personal liberties of persons.
Article 3 of the Universal Declaration of Human Rights states:
“Everyone has the right to life, liberty and security of person.”21 Article 9
continues: “No one shall be subjected to arbitrary arrest, detention or
exile.”22 The International Covenant on Civil and Political Rights (ICCPR)
provides a wider meaning, showing that the right to personal liberty is
implicit, as the right to the safety of the law is the implementation of the
right to liberty.23 This means that the right to liberty extends to conditions

14 See G.A.I. Nwogu, Democracy: Its Meaning and Dissenting Opinions of the

Political Class of Nigeria: A Philosophical Approach, 6 J. EDUC.& PRAC. 131, 132 (2015).
15 G.A. Res. 217 (III) A, supra note 4, art. 10–11.
16 U.N. OFF OF THE HIGH COMM’R FOR HUM. RTS. WITH INT’L BAR ASS’N, HUMAN

RIGHTS IN THE ADMINISTRATION OF JUSTICE: A MANUAL ON HUMAN RIGHTS FOR JUDGES,

PROSECUTORS, AND LAWYERS, at 190, 196, U.N. Sales No. E.02.XIV.3 (2003) [hereinafter
ADMINISTRATION OF JUSTICE].
17 Id. at 192.
18 FLORES, supra note 11.
19 ADMINISTRATION OF JUSTICE, supra note 16, at 164.
20 Liversidge v. Anderson [1942] A.C. 206, 245 (Nigeria).
21 G.A. Res. 217 (III) A, supra note 4, art. 3.
22 Id. art. 9.
23 International Covenant on Civil and Political Rights art. 9, Dec. 19, 1966, 999

U.N.T.S. 171, 175 (entered into force March 23, 1976).

50 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

other than the formal deprivation of liberty.24 Under Article 9 of the

ICCPR, “[e]veryone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.”25 This Article continues:

2. Anyone who is arrested shall be informed, at the time of

arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall

be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It
shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the
judicial proceedings, and, should occasion arise, for
execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on
the lawfulness of his detention and order his release if the
detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to
compensation.26

Article 10 of the ICCPR focuses on the rights of persons based on

their status as human beings, as seen here:

1. All persons deprived of their liberty shall be treated with

humanity and with respect for the inherent dignity of the
human person.

....

3. The penitentiary system shall comprise treatment of

24 Id.
25 Id.
26 Id.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 51

prisoners the essential aim of which shall be their

reformation and social rehabilitation. Juvenile offenders
shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.27

Article 37 of the Convention on the Rights of the Child requires

parties to the Convention to respect the dignity of children by adhering to
the following principles:

(b) No child shall be deprived of his or her liberty

unlawfully or arbitrarily. The arrest, detention, or
imprisonment of a child shall be in conformity with the law
and shall be used only as a measure of last resort and for
the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with

humanity and respect for the inherent dignity of the
human person, and in a manner which takes into account
the needs of persons of his or her age. In particular, every
child deprived of liberty shall be separated from adults
unless it is considered in the child's best interest not to do
so and shall have the right to maintain contact with his or
her family through correspondence and visits, save in
exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the
right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of
the deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a
prompt decision on any such action.28

Seeking to protect migrant workers, Article 16 of the International

Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families states:

1. Migrant workers and members of their families shall

have the right to liberty and security of person.

27 Id. art. 10.

28 Convention on the Rights of a Child art. 37, Nov. 20, 1989, 1577 U.N.T.S. 3, 10
(entered into force September 2, 1990).
52 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

2. Migrant workers and members of their families shall be

entitled to effective protection by the State against
violence, physical injury, threats, and intimidation,
whether by public officials or by private individuals,
groups, or institutions.

....

4. Migrant workers and members of their families shall not

be subjected individually or collectively to arbitrary arrest
or detention; they shall not be deprived of their liberty
except on such grounds and in accordance with such
procedures as are established by law. 29

Article 17 governs the deprivation of liberty of migrant workers and their

family members.30
Finally, the Convention on the Rights of Persons with Disabilities
states in Article 14:

1. States Parties shall ensure that persons with

disabilities, on an equal basis with others:

a) Enjoy the right to liberty and security of person;

b) Are not deprived of their liberty unlawfully or

arbitrarily, and that any deprivation of liberty is in
conformity with the law, and that the existence of a
disability shall in no case justify a deprivation of liberty.

2. States Parties shall ensure that if persons with

disabilities are deprived of their liberty through any
process, they are, on an equal basis with others, entitled to
guarantees in accordance with international human rights
law and shall be treated in compliance with the objectives
and principles of this present Convention, including by
provision of reasonable accommodation.31

29 International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families art. 16, Dec. 18, 1990, 2220 U.N.T.S. 93, 99–100
(entered into force July 1, 2003).
30 Id. art. 17.
31 Convention on the Rights of Persons with Disabilities art. 14, Dec. 13, 2006,

2515 U.N.T.S. 3, 79 (entered into force May 3, 2008).

2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 53

II. REGIONAL PROTECTION

Assembled below are excerpts from the various authorities that

seek to protect these liberties in Africa. To begin, Article 6 in the African
[Banjul] Charter on Human and Peoples’ Rights states: “Every individual
shall have the right to liberty and to the security of his person. No one
may be deprived of his freedom except for reasons and conditions
previously laid down by law. In particular, no one may be arbitrarily
arrested or detained.”32
The African Commission on Human and Peoples Rights in Aminu
v. Nigeria investigated the arrest, detention, and torture of Mr. Ayodele
Ameen.33 Allegations were made that Mr. Ameen was “being sought after
by the Nigerian security agents as a result of his political inclination[s].”34
Mr. Ameen attempted to receive help from the courts but was not
successful.35 The complaint received by the Commission alleged that the
treatment of Mr. Ameen violated “Articles 3(2), 4, 6, and 10(1).”36 Mr.
Ameen was arrested and detained multiple times without reason or
explanation by security officials, causing him to go into hiding.37 The
Commission found Mr. Ameen’s treatment to be in violation of Articles
3(2), 4, 6, and 10(1), confirming that Nigerian Security officials will be
held accountable when they deprive a citizen of their freedoms and liberty
arbitrarily.38

III. THE RIGHT TO LIBERTY IN NIGERIA

Section 35(1) of the 1999 Constitution, as amended, states: “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.”39 The meaning of personal liberty was
construed by the court in Adewole v. Jakande.40 The court held in this case
that the closure of private schools by the Lagos State government was a

32 African (Banjul) Charter on Human and Peoples’ Rights art. 6, Oct. 21, 1986,

21 I.L.M. 58.
33 Kazeem Aminu v. Nigeria, Communication 205/97, African Commission on

Human and Peoples’ Rights [Afr. Comm’n H.P.R.] (May 11, 2000).
34 Id. ¶ 3.
35 Id. ¶ 4.
36 Id. ¶ 7.
37 Id. ¶ 15.
38 Id. ¶¶ 18, 26.
39 CONSTITUTION OF NIGERIA (1999), § 35(1).
40 See Kayode O. Fayokun & Segun O. Adedeji, Legal Issues in Educational

Management in Nigeria, 4 MAKERERE J. HIGHER EDUC. no. 2, 2013, at 187, 197 (citing
Adewole v. Jokande [1981] 1 NCLR 262, 278 (H.C. of Lagos)).
54 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

violation of the personal liberty of parents to train their children where

and how they deem fit.41 The court particularly stated that:

“[p]ersonal liberty” means privileges, immunities, or rights

enjoyed by prescription or by grant. It denotes not merely
freedom from bodily restraint, but rights to contact, to have
an occupation, to acquire knowledge, to marry, have a
home, children, to worship, enjoy and have privileges
recognized at law for happiness of free men.42

The court further approved the definition of “personal liberty” found in

U.S. cases holding that personal liberty also entails the right or “the power
of locomotion, of changing situation, or removing one’s person to
whatsoever place one’s own inclination may direct, without imprisonment
or restraint, unless by due course of law.”43
Osita Ogbu opined that a better interpretation of Section 35 of the
Constitution is that

[it] contemplates physical restraint against the individual.

This construction becomes obvious when the two legs of the
provisions the one giving to every person the right to
personal liberty and the one setting out the circumstances
and the manner in which a person’s liberty may be taken
away- are read together.44

Furthermore, Ogbu argued that the Nigerian version of the right to

personal liberty is different from that of America.45 The American right
guarantees both freedom from physical restraint and freedom of private
enterprise that is:

the right of the citizen to be free in the enjoyment of all his

faculties; to be free to use them in all lawful ways; to live
and work where he will; to earn his livelihood by any lawful
calling; to pursue any livelihood or a vocation, and for that
purpose enter into all contracts which may be proper,

41 Id.
42 See My Right to Personal Liberty, CONST. RTS. AWARENESS LIBERTY INITIATIVE
(2018), https://knowyourrightsnigeria.com/my-right-to-personal-liberty/ (citing Adewole 1
NCLR at 278) (quoting the court’s definition of personal liberty).
43 Plessy v. Ferguson, 163 U.S. 537, 557 (1896) (Harlan, J., dissenting) (quoting

the U.S. definition of personal liberty).

44 OSITA NNAMANI OGBU, HUMAN RIGHTS LAW AND PRACTICE IN NIGERIA 190–91

(2d ed. 2013).

45 Id. at 191.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 55

necessary or essential to his carrying out a successful

conclusion the above mentioned activities.46

A. Limitations to the Right to Personal Liberty

The right to personal liberty under Nigerian law avails not only
citizens but even aliens.47 The right is, however, not absolute.48 It can be
deprived in circumstances prescribed by any law in accordance with the
Constitution.49 Denton-West, J.C.A., in Bobade Olutide v. Adams Hamzat,
stated:

[T]he right to liberty as enshrined in Section 35 of our

Constitution and Article 6 of the African Charter that
nobody shall have right to liberty taken away, abridged, or
violated is not absolute, especially when there is
reasonable suspicion that a criminal offence had been
committed as in this instant case.50

In accordance with Section 35(1) of the Constitution, a person’s

right to personal liberty may be limited in the following situations:

a. in execution of the sentence or order of a court in

respect of a criminal offence of which he has been found
guilty;

b. by reason of his failure to comply with the order of a

court or in order to secure the fulfilment of any
obligation imposed upon him by law;

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;

d. in the case of a person who has not attained the age of

eighteen years for the purpose of his education or
welfare;

46 Id.
47 See CONSTITUTION OF NIGERIA, §§ 25–35.
48 Id.
49 B.O. NWABUEZE, THE PRESIDENTIAL CONSTITUTION OF NIGERIA 420 (St.

Martin’s Press 1982).

50 Bobade Olutide v. Adams Hamzat [2016] 1 LCRN 8095.
56 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

e. in the case of persons suffering from infectious or

contagious disease, persons of unsound mind, persons
addicted to drugs or alcohol or vagrants, for the
purpose of their care or treatment or the protection of
the community; or

f. for the purpose of preventing the unlawful entry of any

person into Nigeria or of effecting the expulsion,
extradition, or other lawful removal from Nigeria of
any person or the taking of proceedings relating
thereto[.]51

By virtue of these provisions, the courts are empowered to impose

imprisonment as sentences for crimes.52 Accordingly, the Criminal Code
provides that “subject to the provisions of any other written law, the
punishments which may be inflicted under this code are death,
imprisonment, caning, fine, and forfeiture.”53 This provision requires that
to deny a person his liberty, it must be in accordance with a laid down
procedure.54 However, it must be noted that the court punishes contempt
in the exercise of its inherent jurisdiction under section 6(6)(a) of the
Constitution, and with no laid down procedure to govern the exercise of
that power, it seems that the courts’ power to commit a person on a charge
of contempt is not in accordance with the Criminal Code.55 The express
provisions of the Constitution will supersede the inherent powers of the
court.56 However, when the contempt involves violation of a court order,
it can be justified under Section 35(1)(a)–(f).57
Subsection 35(1)(b) also forms the foundation for the power of the
courts to issue a subpoena or order of arrest for the purpose of enforcing
judgements where there is default from any of the parties.58 It can also be
used by the courts to order arrest for failure to pay taxes and rates.59
However, the law imposing such taxes or rates must have made provision
for the deprivation of liberty of defaulters.60 The Constitution, however,
provided that a person who is charged with an offence and who has been

51 CONSTITUTION OF NIGERIA, § 35(1).

52 Id.
53 Criminal Code Act (1990) ICFNL, § 17.
54 See Id.
55 See CONSTITUTION OF NIGERIA, § 6(6)(a); see also Criminal Code Act, supra note

53.
56 OGBU, supra note 44, at 193.
57 CONSTITUTION OF NIGERIA (1999), § 35(1)(a)–(f).
58 Id. § 35(1)(b).
59 Id.
60 See id. § 35(1).
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 57

detained in lawful custody awaiting trial shall not continue to be kept in

such detention for a period longer than the maximum period of
imprisonment prescribed for the offence.61 It has also been argued that the
Constitution is wide enough to accommodate the powers of the National
Assembly and State Assemblies to issue a summons for the purpose of
compelling witnesses to appear before them.62
In 2012, the Enugu State House of Assembly exercised this power
by ordering the Commissioner of Police to effect the arrest of the State’s
Commissioner for Human Resources and Poverty Reduction, Mr. Godwin
Ogenyi, for failing to appear before the house at the time stipulated in the
summons and thereby keeping the honourable members waiting.63 This
has however been criticized by Osita Ogbu, who argues that this is a very
flimsy reason to arrest a Commissioner.64 The writer argues that this is
against the Constitution which allows the House to exercise such powers
only on allegations of gross misconduct.65
Whether this provision is broad enough to engulf all the
circumstances that may warrant the denial of the right to liberty is at
issue.66 A prominent scholar, Professor Nwabueze, has stated that the
provisions are sufficient as far as the limitation of the right to personal
liberty is concerned.67 He also argues further that a person should not be
deprived of his liberty on the orders of a tribunal or any authority other
than a competent court.68 He notes that the powers vested in the Code of
Conduct Tribunal, for instance, do not empower them to imprison any
person because it is not a court exercising judicial powers as envisaged by
Section 35(1)(a) of the 1999 Constitution.69 This issue came before the
court in Doherty v. Tafawa-Balewa.70 The provision of the Tribunals and
Inquiry Act, which empowered a Commission of Inquiry to impose
imprisonment or fine as a sentence, was held to be null, void, and
inconsistent with Section 20(1) of the 1960 Constitution which prohibits
the breach of the right to personal liberty by any other authority except

61 Id. § 35(1)(f).
62 See generally Abiola Ojo, The Investigatory Powers of the National Assembly
Under the 1979 Constitution: Sections 82 and 83 Considered, 12 NIGERIAN L.J. 49, 55
(1984).
63 Ameh Comrade Godwin, Enugu Commissioner Arrested for Disobeying

Lawmakers, DAILY POST NIGERIA (Dec. 19, 2012), https://dailypost.ng/2012/12/19/enugu-

commissioner-arrested-disobeying-lawmakers/.
64 See OGBU, supra note 44, at 193 n.11.
65 See id. at 192–93.
66 Id. at 192.
67 Id.
68 Id.
69 Id.
70 Summary of Doherty v. Tafawa-Balewa

[1961], HBRIEFS, https://hbriefs.com/cases/dohertybalewa1961.php (last visited Oct. 10,

2021, 5:39PM).
58 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

the courts.71 It must, however, be noted that a judicial tribunal has the
same powers as a regular court and can restrain or commit a person to
prison.72
It has been also held that the right to personal liberty can be
limited for the purpose of protecting national security. In Dokubo-Asari v.
FRN,73 the Supreme Court, concurring with the court of appeal, held that
if the nation’s security is threatened or there is a real likelihood of it being
under threat, personal liberty and the fundamental human rights of
persons perpetrating such must be limited until national security can be
sufficiently protected.74 His Lordship Muhammad, JSC. held:

[t]he pronouncement by the court below is that where

National Security is threatened or there is the real
likelihood of it being threatened human rights or the
individual right[s] . . . must be suspended until the
National Security can be protected or well taken care of.
This is not anything new. The corporate existence of
Nigeria as a united, harmonious, indivisible and
indissoluble sovereign nation is certainly greater than any
citizen’s liberty or right. Once the security of this nation is
in jeopardy and it survives in pieces rather than in peace,
the individual’s liberty or right may not even exist.75

Osita Ogbu disagrees with this decision.76 He contends that

Section 45 of the 1999 Constitution, which deals with the derogation of
human rights, shows clearly that the only circumstance that can warrant
the derogation of personal liberty is a period of emergency.77 Also, to limit
personal liberty during emergencies, a state of emergency must be
formally declared in accordance with the Constitution.78 Furthermore, an
Act of the National Assembly is required to suspend the right to personal
liberty during such an emergency, and such suspension must be limited
to the extent required to deal with such an emergency.79 Threats to
national security should not be grounds to automatically deprive the
accused persons of their right to personal liberty indefinitely.80 This

71Id.
72See OGBU, supra note 44, at 192.
73 Dukubo-Asari v. FRN [2007] 12 NWLR 320.
74 Id. at 333.
75 Id. at 336.
76 See OGBU, supra note 44, at 207–08.
77 Id. at 207.
78 CONSTITUTION OF NIGERIA (1999), § 45(3) (providing a definition of period of

emergency).
79 See OGBU, supra note 44, at 207–08.
80 Id. at 208.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 59

provision does not avail members of the armed forces.81 The Constitution
provides that nothing shall invalidate

any law by reason only that it authorises the detention for

a period not exceeding three months of a member of the
armed forces of the federation or a member of the Nigeria
Police Force in execution of a sentence imposed by an
officer of the armed forces of the federation or of the Nigeria
Police Force, in respect of an offence punishable by such
detention of which he has been found guilty.82

B. Right to Remain Silent When Arrested

Any person who is arrested is entitled to remain silent or refuse

to answer any question posed to him prior to seeing his counsel.83 Section
35(2) of the Constitution provides that “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 own choice.”84 This right continues even beyond the period of
arrest, as the accused can choose to remain silent throughout the period
of the trial.85 Inherent in this right to remain silent is the right to counsel
chosen by the accused.86
This provision is, however, disregarded with impunity by the
security agencies.87 The police resort to torture to obtain information and
extract confessional statements from accused persons in violation of their
right to remain silent.88 In State v. Rabiu, the Supreme Court per Ngwuta,
J.S.C., lamented this ugly development.89 His Lordship stated that a
confessional statement obtained by the police in contravention of Section
35(2) of the Constitution is illegal and inadmissible as evidence in
accordance with Section 29(2) of the Evidence Act.90

81 CONSTITUTION OF NIGERIA (1999), § 35(7)(b).

82 Id.
83 Id. § 35(2).
84 Id.
85 Adekunle v. State [2006] 14 NWLR 717, 724–25.
86 CONSTITUTION OF NIGERIA (1999), § 35(2).
87 Esa Onoja, The Relationship Between the Constitutional Right to Silence and

Confessions in Nigeria, 6 AFR. J. LEGAL STUD. 189, 189 (2013).

88 Id.
89 State v. Rabiu [2013] 8 NWLR 585, 594–96 (Nigeria).
90 Id. at 595–96.
60 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

C. Right to be Informed of the Facts and Grounds of Arrest

By virtue of Section 35(3), the accused person “shall be informed

in writing within twenty-four hours (and in a language that he
understands) of the facts and grounds for his arrest or detention.”91 This
is similar to the position of the law in England, which was enunciated by
Lord Simmons in Christie v. Leachinsky, stating:

it is to be remembered that the right of the constable in or

out of uniform is, except for a circumstance irrelevant to
the present discussion, the same as that of every other
citizen. Is citizen bound to submit unresistingly to arrest
by citizen in ignorance of the charge against him? I think,
my Lords that cannot be the law of England. Blind
unquestioning obedience is the law of tyrants and of slaves.
It does not yet flourish on English soil. . . . It is a condition
of lawful arrest that the man arrested should be entitled to
know why he is arrested.92

Thus, before a person gives himself up for arrest, the police must inform
him of the reason for his arrest.93 The Constitution provides that this must
be done within twenty-four hours of the arrest.94 Failure to comply with
this will make the arrest unconstitutional.95 According to Mowoe, this
right is essential as it affords the accused the opportunity to clarify any
misunderstanding or call the attention of the police officers to any other
person for whom he might have been mistaken.96 This aids the police in
their investigation and probably frees the accused from the shackles of
false accusation.97 Where the accused person is arrested in the midst of
the commission of a crime, this right may not avail him.98 In Agbaje v.
Commissioner of Police, where the accused person was detained for about
ten days and was not informed of the reasons for his arrest, the court held
that his arrest was illegal and a violation of the Constitution.99

91 CONSTITUTION OF NIGERIA (1999), § 35(3).

92 Christie v. Leachinsky [1947] AC 573 (HL) 591 (appeal taken from Eng.).
93 KEHINDE M. MOWOE, CONSTITUTIONAL LAW IN NIGERIA 332–33 (2008).
94 CONSTITUTION OF NIGERIA (1999), § 35(3).
95 MOWOE, supra note 93, at 333.
96 Id.
97 Id.
98 Id.
99 Id. (citing Agbaje v. Comm’r of Police [1969] 1 NMLR 137).
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 61

D. Right to be Charged to Court Within Reasonable Time

Section 35(4) states that a “person who is arrested or detained in

accordance with Subsection (1)(c) of this section shall be brought before a
court of law within a reasonable time.”100 If this requirement is not met
within

a. two months from the date of his arrest or detention in

the case of a person who is in custody or is not entitled
to bail; or

b. three months from the date of his arrest or detention

in the case of a person who has been released on bail,
he shall (without prejudice to any further proceedings
that may be brought against him) be released either
unconditionally or upon such conditions as are
reasonably necessary to ensure that he appears for
trial at a later date.101

In Subsection 5, the term “reasonable time” was defined for the purpose
of Subsection 4 as follows:

a. in the case of an arrest or detention in any place where

there is a court of competent jurisdiction within a
radius of forty kilometres, a period of one day; and

b. in any other case, a period of two days or such longer

period as in the circumstances may be considered by
the court to be reasonable. 102

These provisions are not amenable to easy interpretation.

Accordingly, Osita Ogbu observes that the only thing clear about the
provisions is that “a person who is arrested or detained must be brought
to court of competent jurisdiction within 24 hours or 48 hours as the case
may be depending on the availability of a court within a radius of 40
kilometres or otherwise.”103 The court construed this provision in Eda v.
Commissioner of Police.104 It was held that where a person is arrested or

100 CONSTITUTION OF NIGERIA (1999), § 35(4).

101 Id.
102 Id. § 35(5).
103 See OGBU, supra note 44, at 199.
104 Chukwunonso Nathan Uwaezuoke, The Pacta Sunt Servanda Solace for

Persons Detained Indefinitely in Nigeria on Suspicion of Committing Capital Offenses,

62 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

detained for allegedly committing an offence, the police is under a duty to

bring him before a court within the period of one or two days
notwithstanding the provision of any other law to the contrary.105 The
court therefore held on this backdrop that Section 17 of the Criminal
Procedure Act and Section 27 of the Police Act, which empowers the Police
to charge an accused person as soon as practicable, is unconstitutional as
it breaches Section 32(1)(c), (4), and (5) of the 1979 Constitution.106 These
provisions stipulate that an accused must be brought to court within a
reasonable time, which it defines as one or two days depending on the
distance of the court within 40 kilometres of the place of arrest and
detention.107
In the case of Amodu v. Commissioner of Police of Lagos State &
Anor,108 Iyizoba, J.C.A stated categorically that:

[t]he Constitution of the Federal Republic of Nigeria

requires that a person who is arrested and detained on
suspicion of having committed a criminal offence shall be
brought before a court of law within a reasonable time and
if he is not tried within a period of two months from the
date of his arrest or detention, he shall without prejudice
to any further proceedings that may be brought against
him be released either unconditionally or upon such
conditions as are reasonably necessary to ensure that he
appears for trial at a later date.109

In Folade v. Attorney General of Lagos State, it was held that the

court has the discretion to determine what amounts to reasonable time
and can declare a period beyond two days as reasonable based on the
circumstances of the case before it.110

4 AFR. J. CRIM. L. JURIS. 108, 111–12 (2019) (citing Eda v. Comm’r of Police [1982] 3 NCLR
219).
105 MOWOE, supra note 93, at 333 (citing Eda 3 NCLR at 219).
106 The Periodic Report on Nigeria’s Human Rights Record to the African

Commission on Human and Peoples’ Rights, No. 24/93, Afr. Comm’n on Hum. and Peoples’
Rts., High Comm’n of the Fed. Republic of Nigeria, (Apr. 1, 1993),
https://www.achpr.org/public/Document/file/English/staterep1_nigeria_1992_eng.pdf
(discussing Eda v. Comm’r of Police [1982[ 3 N.C.L.R 219).
107 CONSTITUTION OF NIGERIA (1999), §§ 35(1)(c), 35(4), 35(5).
108 Mr. Buba Amodu v. The Commissioner of Police Lagos State & Anor

(2014), LAW CARE NIGERIA, https://lawcarenigeria.com/mr-buba-amodu-v-the-

commissioner-of-police-lagos-state-anor-2014/ (last visited Oc. 10, 2021).
109 Id.
110 MOWOE, supra note 93, at 333 (discussing Folade v. Att’y Gen. of Lagos [1981]

2 NCLR 771).
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 63

In compliance with this provision, the court has held that the
“holding charge”111 often practiced by the police is a violation of the
Constitution.112 Accused persons have been held in custody for periods
ranging from two to ten years based on this holding charge.113 His
Lordship Onu J.C.A. (as he then was) in Enwere v. Commissioner of Police
considered the issue of holding charge and held that:

[a]s it is palpable that the appellant in the instant case up

till 8th March, 1993 when he was granted bail by this court
still being detained under what is called a purported
“holding charge” without any information filed against him
before any law court, I hold that this act constitutes
improper use of power or a flagrant abuse of power by the
police for which they stand condemned. This particular
abuse of power is all the more condemnable when it is
known that there have not been exhibited proofs of
witnesses “evidence evidencing police desire to prosecute
the appellant placed before the trial court.”114

The provision of the Corrupt Practices and Other Related Offences

Act permits the ICPC to arrest and detain people indefinitely until the
person complies with the summons of the anti-graft agency.115 This Act
was challenged in A.G. Ondo State v. A.G. Federation.116 The Supreme
Court held that Section 35 of the Corrupt Practices and Other Related
Offences Act is a violation of the right to personal liberty protected by
Section 35 of the Constitution.117
Where the suspect is not charged to court within the stipulated
time, he is entitled to be granted bail either conditionally or
unconditionally.118 The Court held in Olugbusi v. Commissioner of Police
that where a person charged with an offence is not tried within a
reasonable time, he is entitled to be released either unconditionally or

111 This refers to the practice whereby the police keep a suspect person in custody

pending the conclusion of investigation on the matter or preferment of information by the

Attorney General. See generally OGBU, supra note 44, at 209–10.
112 Enwere v. Comm’r of Police [1993] 6 NWLR 333.
113 See CLEMENT NWANKWO ET AL., THE FAILURE OF PROSECUTION: A REPORT

ON THE CRIMINAL SUSPECTS IN NIGERIA 3 (2006).

114 Enwere, 6 NWLR at 335.
115 Corrupt Practices and Other Related Offences Act (2000) Cap. 407, § 35.
116 Att’y Gen. of Ondo v. Att’y Gen. of the Fed’n [2002] 9 NWLR 222, 310.
117 Id.
118 CONSTITUTION OF NIGERIA (1999), § 35.
64 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

upon such conditions that are reasonably necessary to make sure he does
not elope from trial at a later day. 119
In Onu Obekpa v. Commissioner of Police, the accused person was
arrested on August 30, 1980, on an allegation of theft.120 He was brought
to court on September 1, 1980.121 His offence was a bailable one.122 His
counsel applied for his bail, which the prosecution opposed on the ground
that some of the co-accused persons were still at large, and that if the bail
was granted, it might be difficult to arrest the other suspects.123 The
Magistrate agreed with the prosecution and refused the bail
application.124 The applicant applied to the High Court for bail.125 This
was opposed by the State Counsel on the ground that the accused had not
stayed up to two months in detention because Section 32(4)(1) of the 1979
Constitution did not apply.126 Idoko J., rejecting the argument of the State
Counsel, stated that:

[t]he spirit behind the provisions in section 32(4) and (b) of

the Constitution (1979) is to keep an accused person out of
incarceration until found guilty through the process of
court trial. It is a conditional privilege which he is entitled
under the constitution.127

The judge also went further to remark on the merits of this provision of
the Constitution in the following words:

[i]t allows those who might be wrongly accused to escape

punishment which any period of imprisonment would
inflict while awaiting trial; to stay out of prison guarantees
easy accessibility to counsel and witnesses who ensure
unhampered opportunity for preparation of defence. Of
much further advantage in this regard is this fact that
unless the right to bail or to freedom before conviction is

119 Olugbusi v. Comm’r of Police [1970] 1 (H.C. of Lagos M/240/69) (citing

CONSTITUTION OF NIGERIA (1999), § 20(3)).

120 Chukwunonso Nathan Uwaezuoke, Limits to Duration of Criminal Trials in

Nigeria: Time for the Courts to Coalesce Right to Fair Hearing with Right to Personal
Liberty, 2 PORT HARCOURT J. OF BUS. L. no. 1, 2016, at 1, 8 (citing Obekpa v. Comm’r of
Police [1981] 2 NCLR 420).
121 Id.
122 Id.
123 Id.
124 Id.
125 Id.
126 See Uwaezuoke, supra note 120.
127 2 CHARLES MWALIMU, THE NIGERIAN LEGAL SYSTEM: PRIVATE LAW 904 (2009)

(citing Obekpa 2 NCLR 420).

2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 65

preserved, protected and allowed the presumption of

innocence constitutionally guaranteed to every individual
accused of a criminal offence would lose its meaning and
force.128

The judge went further to hold that where a person is charged for a non-
capital offence, bail is a basic right, and, undoubtedly, his right to be
released before trial was more basic if his trial would last beyond two
months.129
Kanu J. in Commissioner of Police v. Amalu, reasoned differently
when he held that that right to pre-trial bail avails only suspects who have
not been charged before a court.130 The Court of Appeal concurred with his
reasoning in Danbaba v. The State, where Galadima, J.C.A. stated thus:

[t]o my mind the constitutional right to pre-trial bail in

section 35(4) is applicable where the suspect has not been
charged before a court of law within the stipulated time.
See COP v. Amalu [1984] 5 NCLR 443. It would appear
that the provision does not mean that a suspect must be
released on bail if trial is not concluded within 2 or 3
months as the case may be. The learned counsel for the
appellant relied on the authority of the High Court decision
in Obekpa v COP [1981] 2 NCLR 420 to buttress his
argument that for non-capital offences, bail is a
constitutional right. An interpretation of section 35(4)
suggesting that the constitution intended an obligatory
release, under any circumstances, after two or three
months, without giving the trial Judge before whom the
application is brought any discretion in the matter cannot
be supported.131

In Bamaiyi v. The State & Ors, the appellants were charged with
conspiracy to commit murder and attempted murder.132 They pled not
guilty and were remanded to prison.133 They filed an application for pre-

128 Ndubuisi Madubuike-Ekwe & Olumide Obayemi, Assessment of the Role of the

Nigerian Police Force in the Promotion and Protection of Human Rights in Nigeria, 23 ANN.
SURV. INT’L & COMP. L. 19, 32 (2019) (citing Obekpa 2 NCLR 420).
129 Emmanuel Olugbenga Akingbehin, Capital Punishment in Nigeria: A Critical

Appraisal 237 (October 2011) (Ph.D. dissertation, University of Lagos) (on file with the
school of postgraduate studies, University of Lagos) (citing Obekpa 2 NCLR 420).
130 Comm’r of Police v. Amalu [1984] 5 NCLR 443.
131 Danbaba v. State [2000] 14 NWLR 396, 400.
132 Bamaiyi v. State [2001] 8 NWLR 270, 272.
133 Id.
66 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

trial bail, which was denied by the trial court.134 Aggrieved, they appealed
to the Court of Appeal, which held that Section 35(4) does not create an
automatic right to pre-trial bail.135 Oguntade J.C.A. (as he then was) held
in leading judgment that:

[i]t seems to me that the purpose of section 35(4) above is

to ensure that once a person is arrested and put in custody
and such a person is not granted bail, he shall within a
reasonable time be brought before a court and his trial
commenced within a period of two months after taking him
into custody. To interpret it as meaning that the trial must
be concluded in two months will create serious
implementation problem as the country has not yet the
manpower and other allied facilities to ensure that trials of
persons who because of the seriousness of the offences
alleged against them cannot be granted bail are concluded
in two months.136

The above reasoning was also echoed in the case of Alaya v. State,
where Agube, J.C.A., stated that:

[b]y virtue of section 35(4) and 36(5_ of the 1999

Constitution, an accused person is entitled to his
unfettered liberty and is presumed innocent until proved
guilty, and the onus is on the prosecution to prove that an
accused person is not entitled to bail. However, the
presumption of innocence and the right to liberty as
enshrined in sections 36(5) and 35(4) respectively of the
Constitution can only be invoked where there is no prima
facie evidence against the accused, it would be foolhardy to
allow him on bail because the Constitution could not have
envisaged a situation where accused persons of every shade
could be allowed bail just at the mention of the magic words
of presumption of innocence and right to liberty. Thus, the
provision in section 36)5) of the 1999 Constitution states
that nothing in the section shall invalidate any law by
reason only that the law impose upon any such persons the
onus of proving particular facts.137

134 Id.
135 Id.
136 Id.
137 Alaya v. State [2007] 16 NWLR 483, 487–88.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 67

However, over-stringent conditions for bail may be inconsistent

with the Constitution, as held in Comptroller of Nigerian Prisons v.
Adekanye.138 The court in this case considered the conditions for bail under
the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks
Act, which provides that the accused person must deposit one quarter of
the amount involved in the crime he was charged with as security for bail
and also provide security for the remaining balance of the amount
involved in the offence he allegedly committed.139 The court held that this
provision imputes a presumption that the accused is already guilty as
charged and is hence unconstitutional.140

E. Right to Bail for Capital Offences

The right to bail is unavailable for persons charged with capital

offences due to the severity of the offence they are charged with.141 In
Atiku v. State, the accused persons who were charged with murder applied
for bail, which was denied by the trial court.142 They appealed to the Court
of Appeal which dismissed the appeal and held that:

[t]he position of the law regarding or governing the

right of an accused person being detained in connection
with any offence under our laws to be released on bail
pending his trial by any court of competent jurisdiction is
governed by the respective states Criminal Procedure Laws
. . . and section 35(4) and (7) of the 1999 Constitution . . . .
It is quite clear from the provision of the Constitution
of the Federal Republic of Nigeria quoted above that bail
pending trial is not normally granted as a matter of course
where the offence for which the applicant for bail is charged
is a capital offence or punishable with death as in the
present case . . . [because] it is not in the public interest . .
. . However, special circumstances may arise in any
particular case to warrant the exercise of discretion by any
High Court trying the accused person to release him on bail
pending his trial . . . .
In all these cases, the special circumstances, which to
my mind, guided this court in allowing the appellant’s

138 Nigerian Prisons Serv. v. Adekanye [1999] 10 NWLR 400, 421.

139 Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act
(2004) Cap. (F2), § 21.
140 Adekanye 10 NWLR at 421.
141 CONSTITUTION OF NIGERIA (1999), § 35(7)(a); see Oladele v. State [1993] 1

NWLR 294, 299.

142 Atiku v. State [2002] 4 NWLR 265, 266–67.
68 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

appeal and granting them bail is the fact that the

appellants were being detained for a long time without
even the knowledge when their trial would begin at the
High Court having jurisdiction to try them in line with the
fundamental requirements of the presumption of their
innocence enshrined under section 33(4) of the 1979
Constitution then in force.143

The court should however not remand the accused person indefinitely
unless the prosecution has provided prima facie evidence of the
commission of the offence charged.144 In Anaekwe v. Commissioner of
Police, the appellants were charged with conspiracy and murder.145 They
were remanded by the Chief Magistrate, and the appellant applied for bail
at the High Court of Onitsha.146 The High Court refused the application
on the ground that the appellants were charged with murder.147 The
appellants further appealed to the Court of Appeal which held that,
although the Constitution makes provision for pre-trial bail, it is generally
unavailable for persons accused of capital offences.148 The court further
held that:

[u]nless the right to bail before trial is preserved, the

presumption of innocence, secured only after centuries of
struggle, would lose its meaning. [And] [t]he constitutional
presumption of innocence enshrined under S.33(5) of the
1979 Constitution can be invoked in a capital offence where
a prima facie case has not been established against the
accused. However, the issue of presumption of innocence
cannot arise if there is sufficient probability of guilt on the
part of the accused. This is because, if the constitutional
provision is applied to the letter in a bail decision, then
every accused must be released on bail while awaiting trial
and this will not be in the interest of enforcement of the
criminal process.149

143 Id. at 276–78.

144 See id. at 274–75.
145 Anaekwe v. Comm’r of Police [1995] 3 NWLR 320, 322.
146 Id.
147 Id.
148 Id. at 331.
149 Id. at 323.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 69

F. Arrest and Detention

Section 35(1)(c) permits the authorities to deprive an individual of

his right to personal liberty upon reasonable suspicion of a criminal
offence or to a reasonable extent for the purpose of preventing the
individual from committing a criminal offence.150 This section tries to aid
the work of the security agencies by counter-balancing it with human
rights.151 A person cannot therefore rely on his right to personal liberty to
shield himself from arrest by the police.152 This was the position of the
court in Attorney General of Anambra State v. Uba, where it held that an
individual cannot initiate a court process to prevent or shield himself
against criminal investigation or prosecution.153 Such is an interference
with the powers constitutionally vested on the law enforcement agencies
in criminal investigation.
The police however are not to arrest and detain an accused person
until there is evidence which establishes a prima facie case against him.154
The mere invitation to the police station for interrogation does not
constitute arrest if obeyed by the affected person willingly.155 Accordingly,
it was held in Ateze v. Momoh that where:

[a constable asks a man to] accompany him to the charge

office[,] and he does[,] [t]here is no arrest, no legal process,
no submission and no constraint. The man is entitled to
refused [sic] accompanying the constable. [I]f he does the
constable is entitled to arrest and bring him with him, but
he cannot compel him to come unless he arrest[s] him . . . .
156

G. Arrest of Another Person in Lieu of the Accused Person

The police in exercise of this power cannot arrest a person for the
offence of another, such as arresting a parent for the offence of the child.157
Punishment is personal and must be levied on the appropriate offender.158

150 CONSTITUTION OF NIGERIA (1999), § 35(1)(C).

151 See id; see also Odogu v. Att’y Gen. of Fed’n [1996] 6 NWLR 508, 522.
152 See id.
153 Att’y Gen. of Anambra v. Uba [2005] 15 NWLR 40, 50.
154 Olugbusi v. Comm’r of Police 1 [1970] (H.C. of Lagos M/240/69).
155 See Criminal Procedure Act (1945) Cap. P19, § 3.
156 Muhammad Bello Alle, Arrest in Nigeria Procedural Laws, 1 BEAM: J. ARTS &

SCI. 134, 140, 144 (1997) (citing Ateze v. Momoh [1958] NRLNR 127).
157 See African Charter on Human and Peoples’ Rights art. 7, June 27, 2981, 21

I.L.M 58.
158 Id.
70 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

Such arrest is a violation of Section 36(1) of the 1999 Constitution.159 In

the case of A.C.B v. Okonkwo,160 the Court of Appeal per Niki Tobi J.C.A.
(as he then was) held thus:

I know of no law which authorizes the police to arrest a

mother for an offence committed or purportedly committed
by the son. Criminal responsibility is personal and cannot
be transferred . . . . A police officer who arrested “A” for
the offence committed by “B” should realize that he has
acted against the law. Such a police officer should, in
addition to liability in civil action, be punished by the police
authority.161

H. Remedies for Breach of Right to Personal Liberty

In Nemi v. A. G. Lagos & Anor, the court held that under Section
32(6) of the 1979 Constitution (now Section 35(6) of the 1999 Constitution)
a violation of an individual’s right to personal liberty is remediable, at the
insistence of the victim, by the appropriate authority’s compensation,
public apology, and the victim’s release if he or she is still being held in
unlawful detention.162 Also, in Jim-Jaja v. Commissioner of Police, the
Supreme Court established that where the plaintiff proves unlawful
arrest and detention under Section 35(6) of the 1999 Constitution, he is
entitled to compensation and public apology as relief, even where he did
not claim any specific amount.163 Where asked for a specific amount, the
court will evaluate the claim and determine the amount that will be
reasonable to compensate the plaintiff.164

CONCLUSION

Though Nigeria is said to have a solid legal framework on the right

to personal liberty, this right is not effectively upheld. Those in authority
must respect the laws put in place for the upholding of the right to
personal liberty, and the following issues need to be addressed. First, the
snail-like movement of the trial and prosecution of cases within the court
system more often than not leads to the infringement of personal liberty

159 CONSTITUTION OF NIGERIA (1999), § 36(1).

160 Afr. Cont’l Bank v. Okonkwo [1996] 1 NWLR 194.
161 Id. at 196.
162 Nemi v. Att’y Gen. of Lagos [1996] 6 NWLR 42, 55; see also Odogu 6 NWLR at

513–14.
163 Jim-Jaja v. Comm’r of Police [2012] 6 NWLR 225, 231; see Odogu 6 NWLR at
513–14.
164 Jim-Jaja 6 NWLR at 254.
2022] RIGHT TO PERSONAL LIBERTY IN NIGERIA 71

in Nigeria.165 Second, there is a lack of a mechanism or a check system to

ensure that an accused’s right to interpretation, right to be informed of
charges against him, and right to be conveyed to a court after arrest within
a reasonable time are upheld by the police.166 Third, corruption within the
police prevents a legal practitioner from gathering adequate evidence
where his client’s right has been violated.167 Fourth, judges and courts
exhibit a lackadaisical attitude towards personal liberty cases brought
before them.168 Finally, there are numerous contradictory provisions of
law, an example of which can be found in the examination of Ohimieokpu
v. Commissioner of Police, where Section 101 of the Criminal Procedure
Act could be stated to be conflicting with Section 35 of the Constitution.169

RECOMMENDATIONS FOR PROTECTION OF PERSONAL LIBERTY

Clear and unambiguous laws should be drawn out, eradicating all

existing contrary provisions to the Constitution which would infringe on
an accused’s rights.170 Individuals who have not been told the charges
brought against them should be released after twenty-four hours, in
accordance with the Writ of Habeas Corpus, which states that individuals
detained must be read the charges brought against them within twenty-
four hours of being detained.171 This will in turn decongest the prisons.172
Effectiveness should be ensured at the judiciary level by creating checks
on the appearance of judges at court at the stipulated time and preventing
whimsical adjournment of cases.173 Adequate enforcement mechanisms
should be established to ensure all accused persons enjoy their rights and
to prevent trial inmates having to wait of over five years.174 Punishment

165 See Ben Ezeamalu, Why Nigeria’s Criminal Justice System is Slow — Judge,

PREMIUM TIMES (Jan. 19, 2018), https://www.premiumtimesng.com/news/more-

news/256056-nigerias-criminal-justice-system-slow-judge.html.
166 See Madubuike-Ekwe & Obayemi, supra note 128, at 35–43.
167 Id. at 32–34.
168 See Ezeamalu, supra note 165.
169 Mohammed Enesi Etudaiye & Muhtar Adeiza Etudaiye, A Legal and

Constitutional Blueprint on Functionalizing “Time Frames” in Some Civil and Political

Rights – A Study of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999,
7 ESSEX HUM. RTS. REV. 49, 59–62 (2011 (summarizing Ohimieokpu v. Comm’r of Police
[1959] NRNLR 1); CONSTITUTION OF NIGERIA (1999), § 35; Criminal Procedure Act (1945)
Cap. § 101.
170 Etudaiye & Etudaiye, supra note 169.
171 CONSTITUTION OF NIGERIA (1999), § 35(4), § 35(5).
172 U.N. Off. on Drugs and Crime, Ten Years of Justice Sector Reform in Nigeria:

A 360 Degree View, 14 (Apr. 2–3, 2009) [hereinafter UNODC].

173 See generally Peter Chukwuma Obutte, Corruption, Administration of Justice

and the Judiciary in Nigeria, SSRN, 3, 12 (Feb. 3, 2016),

https://ssrn.com/abstract=2727319.
174 See Shima, V.A. and Bem Abojo, Trial Within a Reasonable Time Under

Nigerian Law: A Legal Myth or Reality?, 9 BENUE ST. UNIV. L.J. 352, 353 (2019).
72 JOURNAL OF GLOBAL JUSTICE AND PUBLIC POLICY [Vol. 8:47

should be meted out to defaulting police officers that exceed their powers
and infringe rights in a bid to gather evidence from the accused.175
Awareness programs should be organized in various local areas with more
non-educated individuals in a bid to make them informed on the various
rights they have as citizens against the law enforcement agencies which
tend to override their rights and mistreat them.176
Finally, it is this author’s opinion that to effectively prevent the
infringement and violation of one’s right to personal liberty and combat
these challenges, there has to be an analysis and well-mapped out
reworking of the entire Criminal Justice System in Nigeria.177

175 See Omoba Oladele Opeolu Osinuga, An Agenda for Effective Policing in

Nigeria, SSRN, 1, 8, 12, 13 (Aug. 11, 2010), https://ssrn.com/abstract=1657221.

176 UNODC, supra note 172, at 11.
177 Madubuike-Ekwe & Obayemi, supra note 128, at 44–48.