THE LEGALITY OF DETAINING SUSPECTS IN POSSESSION OF NARCOTICS PENDING ANALYSIS AND RESULT OF CONFISCATED SUBSTANCE

CASE TITLE:                         NATIONAL DRUG LAW ENFORCEMENT AGENCY v. ABUBAKAR AUDU (2021) LPELR-55325(CA)

JUDGMENT DATE:           24TH MAY, 2021

JUSTICES:                            THERESA NGOLIKA ORJI-ABADUA, JCA

                                           AMINA AUDI WAMBAI, JCA

                                           IBRAHIM ALI ANDENYANGTSO, JCA

COURT DIVISION:            ABUJA

PRACTICE AREA:              Constitutional Law- Enforcement of Fundamental Human Rights

FACTS

The Respondent had been arrested by officials of the Appellant (National Drug Law Enforcement Agency) on the suspicion that he was in possession of drugs suspected to be narcotic drugs. The Respondent was subsequently kept in detention without bail for a period of 55 days and was only arraigned before the trial Court without any form of trial. The Appellant also failed to obtain a Court Order permitting it to detain the Respondent.

As a result, the Respondent instituted Fundamental Rights Proceedings against the Appellant in the trial Court wherein he sought for a declaration that his detention in the Appellant’s custody for 55 days without bail or a Court order permitting the Appellant to detain him beyond the constitutionally mandated reasonable time, constitutes a violation of his fundamental rights; an order of the trial Court compelling the Appellant to pay Fifty Million Naira compensation and exemplary damages for breach of his fundamental rights to personal liberty and an order compelling the Appellant to offer and render public apology to him.

In its considered judgment, the trial Court delivered its judgment and held that the Respondent grossly violated the fundamental rights of the Respondent. It granted the declaratory relief and awarded the compensatory damages of N10,000,000.00 in favor of the Respondent and against the Appellant.

Dissatisfied, the Appellant has appealed.

ISSUES

The appeal was determined upon consideration of the following issues:

(1) Whether having regards to the affidavit evidence before the Court, the arrest and detention of the Respondent from 12th September to 4th October when the Respondent was arraigned was violation of the Respondent’s fundamental Human Right.

(2) Whether the award of N10,000,000 damages against the Appellant is not arbitrary as it did not follow the principles for award of damages in a case of this nature.

COUNSEL SUBMISSIONS

Learned Counsel for the Appellant argued that it was reasonable to detain the Respondent from 12th September to 3rd of October, 2018 due to the fact that investigation of narcotic drugs is such that requires placing people under detention for investigation purposes. That the relevant tests have to be conducted on the recovered drug to prove that it is a narcotic. Also, that the Respondent named his co-conspirator, and the Police needed to confirm his co-conspirator while the investigation was ongoing and thereafter arrest him.

Counsel further argued that the arrest of the Respondent was not without just cause, as the documentary evidence before the Court reveals that as at the date the Respondent commenced the Fundamental Rights proceedings, he had pleaded guilty to the charge of being in possession of cocaine and that ought to have persuaded the Court in not awarding damages to him.

He finally argued that the award of N10 million as compensation to the Respondent is excessive, perverse and unrealistic in that the Respondent did not plead any loss, damage or loss of business opportunity. That exemplary damage is recoverable only if the Plaintiff is the victim of the punishable behavior of the Defendant and even then, such award should be moderate.

In response, Learned Counsel for the Respondent, submitted that having regards to the facts and evidence before the trial Court, it was right to have held that the detention of the Respondent by the Appellant for a period of 55 (fifty- five) days was a gross violation of the Respondent’s fundamental right as enshrined in the Constitution of Federal Republic of Nigeria as amended.  That Section 30 of the Act requires the Appellant to release the Respondent on bail within 24 (twenty-four) hours or apply for a remand order where it cannot charge the Respondent to Court within a reasonable time but which the Appellant failed to do.

Learned Counsel finally submitted that the trial Court in the award of N10,000,000.00 only as compensation and exemplary damages against the Appellant did follow the principles for award of damages in cases of abuse or violation of fundamental rights such as in the present case, therefore, there is no basis for the Court of Appeal to intervene.

DECISION/HELD:

The appeal was found to be meritorious and was thereby allowed. Accordingly, the judgment of the trial Court was set aside and the fundamental rights proceedings commenced at the trial Court by the Respondent was dismissed for lacking in merit.

RATIO

CONSTITUTIONAL LAW- RIGHT TO PERSONAL LIBERTY: Whether detention of a person in possession of substance suspected to be narcotic drugs until the substance is tested by experts amounts to breach of the right to personal liberty –

“An in-depth study of the record of appeal herein with special regard to the affidavit evidence of the parties before the lower Court, reveals that the Appellant’s detention is covered by Section 35(1)(c) of the 1999 Constitution as amended, therefore, this Court is of the firm view that the decision of the lower Court was reached without due regard to an avalanche of facts tabled before it by the Appellant establishing that the Respondent’s arrest and detention were not unlawful. This Court equally finds recourse to the decision of the Supreme Court in the case of Ugwanyi vs. FRN (2012) 8 NWLR Part 1303 page 384, per Rhodes-Vivour, JSC, where it explained the procedure for the arrest and prosecution of a drug suspect, and the effect of failure to comply with the procedure. It was held thus: “…Procedure for arrest and prosecution of a drug suspect. Put briefly. 1. The suspect is arrested on reasonable suspicion of being in possession of drugs. 2. The authorities take possession of the substance suspected to be drugs in the presence of the suspect and weigh it. 3. A preliminary test may or may not be done depending on the circumstances, but if done it is desirable it is done in the presence of the suspect. 4. Relevant papers, to wit: Certificate of test analysis (if preliminary test is done) packing of substance/drugs forms are filled by the arresting authorities and signed by the suspect. 5. All the substance recovered, or a reasonable quantity is sent to the laboratory for expert analysis. 6. The laboratory issues a report which may be positive or negative. It is that report that the prosecution acts on to prove its case against the suspect or allow him to go home if the report is negative for drugs. 7. An expert from the laboratory that conducted the test testifies, in Court, and in his evidence in chief he should state his qualification and experience before he proceeds to give evidence on his report. Depending on the circumstances of the case, failure to comply with this laid down procedure may not lead to miscarriage of justice or vitiate the conviction of the suspect, but it is desirable that there is compliance.” The Supreme Court decision completely shows that when it concerns possession of drug, it is legally acceptable and wholly appropriate to keep the suspects of possession of narcotic drugs in custody until the substance recovered is sent to the laboratory for expert analysis and result obtained. It is only after report is issued and it turned out to be negative that the suspect may be allowed to go home.” Per ORJI-ABADUA