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IN THE HIGH COURT OF LAGOS

ON TUESDAY, THE 29TH DAY OF SEPTEMBER 1970

M/155/70

IN THE MATTER OF CHIEF EFFIONG OKON EYO AND

IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AND SUBJICIENDUM

EFFIONG OKON EYO ....................................................... APPLICANT

AND

1. CHIEF OF STAFF OF THE ARMED FORCES

2. DIRECTOR OF FEDERAL PRISONS ........................................................... RESPONDENTS

BEFORE: Kazeem, J.

 

The applicant brought an application seeking leave for a writ of Habeas Corpus to issue against the respondents for his release from detention.

It was deposed to in the affidavit in support of the application that the applicant was until 4th September, 1969, the Commissioner for Agriculture and Natural Resources in the South-Eastern State, when on that date he was summarily removed from office by the Military Governor of that State. Thereafter, the applicant left Calabar for Lagos on the 5th September, 1969. He was arrested on the 12th September, 1969, under a Detention order made pursuant to the powers conferred by section 3(1) of the Armed Forces and Police (Special Powers) Decree 1967 and detained in Jos Prison. The applicant was subsequently removed from Jos civil prison to Kaduna civil prison.

The Detention Order had been challenged as invalid on the grounds, inter alia, that:-

(1)     it was ambiguous and uncertain.

(2)     it did not specify the period during which the applicant was to be detained.

(3)     in so far as the applicant had been removed from Jos prison to Kaduna Prison without any other Detention Order being made his detention in Kaduna prison was unlawful.

(4)     the detention of the applicant was made in bad faith, because within a period of seven days, when he lived in Lagos prior to his detention he could not, having regard to his loyalty to the Federal Military Government, have been a security risk to warrant his peremptory detention.

 

HELD:

(1)     Section 3(1) of the Armed Forces and Police (Special Powers) Decree 1967 (Decree No. 24 of 1967), inter alia, provides that if an Order made under that section is delivered to a Superintendent of Prison, it shall be his duty to keep the person mentioned in the Order in custody until the Order is revoked. Although it is within the right of the detaining authority to specify in the Order the duration of the detention of a detainee, if he chooses to make it indefinite as provided for in the Decree itself, the court cannot be called upon to say that he had acted in contravention of the Decree.

(2)     Whatever might have been the manner or the reason for the detainee's detention, he seems to have come within the definition of the word "prisoner" under the Prisons Act, 1960, and the Director of Prisons is empowered under section 16(b) of that Act to order the removal of any prisoner from one prison to another. As he had lawfully done so in this case, the Detention Order cannot be impeached on that ground.

(3)     It is already settled law by all legal authorities on this matter that the detaining authority is the sole arbiter of the sources of his satisfaction before deciding that a person ought to be detained in circumstances such as this, and once it is said that he was satisfied that the person detained was concerned in acts prejudicial to public order as in this case, the court cannot inquire into his reasons for being so satisfied.

(4)     Although what was contained in the order was lifted from the provisions of section 3(1) of Decree No. 24 of 1967, there was no doubt that the four different acts mentioned in the Decree were required to be considered disjunctively by the detaining authority before deciding on which of them he was satisfied as his cause of making the Detention Order. By lumping all the acts together in the Detention Order, the Order could be validly impeached on the ground of uncertainty.

(5)     Under section 1(3)(b) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 the reference to any Decree or Edict includes a reference to any instrument made by or under such Decree or Edict. There was no doubt that the Detention Order being challenged here was an instrument made under section 3(1) of Decree No. 24 of 1967 and for the court to proceed to declare it invalid would ipso facto render its own decision also null and void by virtue of Section 1(2)(b) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970. It would therefore, serve no useful purpose to proceed to declare the Detention Order invalid and thereby order the release of the detainee.

Application refused.

 

Cases referred to:

Liversidge v. Anderson (1912) A.C.206

The Zamora (1916) 2 A.C. 77

Rex v. Halliday (1917) A.C. 206

In the matter of Chief Mojeed Agbaje. Suit No. M/22/69

 

Decrees referred to:

Armed Forces and police (Special Powers) Decree 1967 (Decree No. 24 of 1967) Section 3(1)

Federal Military Government (Supremacy and Enforcement of Powers) Decree (Decree No. 28 of 1970.) Sections 1(2), 1(3)(b) and (b)

 

APPLICATION FOR WRIT OF HABEAS CORPUS

 

Esin, for the Applicant.

Jinadu (with him Ojosipe), for the Respondents.

 

Kazeem, J.:-By this application, leave was sought for a Writ of Habeas Corpus to issue against the respondents for the release from detention of Chief E.O. Eyo who was said to have been detained by the respondents since 12th September, 1969. The application was ex-parte but it was ordered that the respondents be put on notice and the application has now been fully argued on the merit.

It is deposed to in the affidavit in support of the application that Chief Eyo was until 4th September, 1969, the Commissioner for Agriculture & Natural resources in the South-Eastern State when on that date he was summarily removed from office by the Military Governor of that State. Thereafter, Chief Eyo left Calabar for Lagos on 5th September, 1969; but he was later arrested on 12th September, 1969, under a Detention Order made pursuant to the powers conferred by section 3(1) of the Armed Forces and Police (Special Powers) Decree 1967 (hereinafter referred to as "Decree No. 24") and detained in Jos civil prison. Chief Eyo (hereinafter called "the detainee") was subsequently removed from Jos civil prison to Kaduna civil prison.

Two affidavits were filed on behalf of the respondents which it was sought to justify the detention of the detainee under Decree No. 24 as well as his removal of Kaduna civil prison.

The Detention Order has been challenged as invalid on the following five grounds, namely:-

(i) that it is ambiguous and uncertain;

(ii) that the duration of the detention order by it is indefinite;

(iii) that the address of the order is indefinite in that it was not addressed to any person;

(iv) that the order was not validly executed; and

(v) that the order was issued mala-fide.

The Detention Order being challenged reads as follows:-

"WHEREAS I BRIGADIER E.O. EKPO, Chief of Staff of the Armed Forces, am satisfied that the person specified in the Schedule hereto is or recently has been concerned in acts prejudicial to public order or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him.

NOW THEREFORE, in exercise of the powers vested in me by Section 3(1) of the Armed Forces and Police (Special Powers) Decree 1967, I, BRIGADIER E.O. EKPO, Chief of Staff of the Armed Forces, hereby order that the person specified in the Schedule hereto be detained in civil prison at Jos and be there kept in custody until this order is revoked.

This Order may be cited as Armed Forces (Special Powers) Detention (No.) Order 19 19

SCHEDULE

CHIEF E.O. EYO

Made at the Supreme Headquarters Lagos on this 12th day of September, 1969.

(Sgd.) E.O. Ekpo

(BRIGADIER E.O. EKPO)Chief of Staff of the Armed Forces".

Section 3 of Decree No. 24 under which the order was made also provides thus:-

"(1)    If the Inspector-General of Police or as the case may be, the Chief of Staff of the Armed Forces is satisfied that any person is or recently has been concerned in acts prejudicial to public order, or the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him he may by order in writing direct that that person be detained in a civil prison or a police station; and it shall be the duty of the Superintendent or other person in charge of any civil prison or the police officer in charge of any police station as the case may be, if an order made in respect of any person under this section is delivered to him to keep that person in custody until the order is revoked.

(2)     An order made under subsection (1) above shall be full authority for any police officer or member of the armed forces to arrest the person to whom the order relates and to remove him to a civil prison or police station."

It is proposed to consider grounds (ii) to (v) before ground (1).

In support of ground (ii) it was submitted on behalf of the applicant that the Detention Order is invalid in that it does not specify the period during which the detainee was to be detained. Rather it says that the detainee was to be detained until the Order is revoked. The Detention Order was likened to a warrant of imprisonment which must stipulate the precise term to be served by the person convicted and that if it failed to so specify the term it would be invalid.

In this regard, it is sufficient to refer to the provisions of Section 3(1) of Decree No. 24 under which the Order was made to see whether or not it complies with it. If it does, then there is no question of the validity of the Order being considered on that ground.

Section 3(1) of Decree No. 24, inter alia, provides that if an Order made under that section is delivered to a Superintendent of Prison, it shall be his duty to keep the person mentioned in the Order in custody until the Order is revoked. Although it is within the right of the detaining authority to specify in the Order the duration of the detention of a detainee if he chooses to make it indefinite as provided for by the Decree itself the court cannot in my view be called upon to say that he had acted in contravention of the Decree.

With respect to ground (iii) it was submitted that the Detention Order was not addressed to any particular gaoler or Superintendent of prison. Here again the Order was likened to a Warrant of Arrest which must specify a particular prison for the detention to be valid. This submission seems to be misconceived because a reference to Section 3(1) and (2) of Decree No. 21 as well as the Order itself shows that the Order directed that the detainee be detained in Jos prison and it is, therefore, the duty of any officer or member of the Armed Forces to arrest the person mentioned in the Order as required by Section 3(2) of Decree No. 24 and deliver him to the Superintendent of Jos prison who in pursuance of Section 3(1) thereof is empowered to keep the detainee in prison custody. There is, therefore, no need in my view to address the Detention Order to any particular person.

Under ground (iv) it was argued that in so far as the detainee had been removed from Jos prison to Kaduna prison without any other Detention Order being made his detention in Kaduna prison is unlawful and he ought to be released. But it is deposed to in the affidavit of Mr Idada Acting Chief Superintendent of Prisons Lagos that it was for the purpose of giving the detainee special medical attention which he required for his illness; that he was removed to Kaduna prison.

Whatever might have been the manner of or the reason for the detainee's detention, he seems to have come within the definition of the word, "prisoner" under the Prisons Act 1960, and the Director of Prisons is empowered under Section 16(b) of that Act to order the removal of any prisoner from one prison to another. As he has lawfully done so in this case, the Detention Order cannot, in my view, be impeached on that ground. Moreover, it is not contended that the place where the detainee is detained in Kaduna is not a civil prison as it was in Suit No. M/22/69-In the matter of Chief Mojeed Agbaje before, Aguda, J, at Ibadan High Court.

It was contended under ground (v) that the detention of the detainee was made in bad faith because within a period of seven days, when he lived in Lagos prior to his detention, he could not, having regard to his loyalty to the Federal Military Government, have been a security risk to warrant his peremptory detention. This submission in effect required the court to look into the reasons for detainee's detention.

It is already settled by all legal authorities on this matter that the detaining authority is the sole arbiter of the sources of his satisfaction before deciding that a person ought to be detained in circumstances such as this, and once it is said that he was satisfied that the person detained was concerned in acts prejudicial to public order as in this case, the court cannot inquire into his reasons for being so satisfied. In the often cited case of Liverside v. Anderson (1912) A.C 206, Lord Macmillan said at page 253:-

"But how could a court deal with the question whether there was reasonable cause to believe that it was necessary to exercise control over the person proposed to be detained, which is a matter of opinion and policy, not of fact? A decision on this question can manifestly be taken only by one who has both knowledge and responsibility which no court can share. As Lord Parker said in The Zamora (1916) 2 A.C. 77 at page 107:-

"Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.

I may also quote the words of Lord Finlay, L.C., in Rex v. Halliday (1917) A C 206.

"It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a court of law."

The question is one of preventive detention justified by reasonable probability, not of criminal conviction which can only be justified by legal evidence."

In the circumstances, this ground also fails.

Let us now consider ground (i) that the Detention Order is ambiguous and uncertain. It was submitted that on the face of the Order itself it is said that the detainee has committed four different offences for which the detaining authority was satisfied before ordering his detention; and that in so far as it is not stated thereon which of the four offences (which are in the alternative) was the cause of the detention, the Order was bad for uncertainty and as such the detainee ought to be released.

The relevant portion of the Detention Order being challenged here provides thus:-

"WHEREAS, I BRIGADIER E.O. EKPO Chief of Staff of the Armed Forces, am satisfied that the person specified in the Schedule hereto (i.e. Chief E.O. Eyo) is, or, recently has been concerned in acts prejudicial to public order, or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him."

Although what is contained in the Order is lifted from the provisions of section 3(1) of Decree No. 24, there is no doubt in my mind that the four different acts mentioned in the Decree are required to be considered disjunctively by the detaining authority before deciding on which of them he was satisfied as his cause of making the Detention Order. By lumping all the acts together in the Detention Order, I am of the opinion that that Order could be validly impeached on the ground of uncertainty.

Having arrived at that findings, can I proceed to declare the Detention Order invalid? Section 1(2) (b) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 (Decree No. 28 of 1970) inter alia provides that:-

"Any decision, whether made before or after the commencement of this Decree by any Court of Law in the exercise or purported exercise of any power under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.

It is also defined in subsection (3) (b) therein that:-

"The reference to any Decree or Edict includes a reference to any instrument made by or under such Decree or Edict."

There is no doubt that the Detention Order being challenged here, is an instrument made under section 3(1) of Decree No. 24 and for me to proceed to declare it invalid will ipso facto render my own decision also null and void by virtue of the aforementioned provision. It will, therefore, in my view, serve no useful purpose to proceed to declare the Detention Order invalid and thereby order the release of the detainee.

In the circumstances, the application for leave is hereby refused. There will be no order as to costs.

Application refused.