Category: Law

Today’s article seeks to answer the question of whether a fugitive convict seeking bail is entitled to a medical practitioner or facility of his choice. To answer this question, the 2023 case of Nwaoboshi v FRN & Ors (2023) LPELR-59974(SC).

As a way of consequential arrangement, after being sentenced to imprisonment, the next bus stop is correctional home. The principle of law is that convicts must make themselves available to law enforcement agencies or Correctional Services officials for the commencement of their prison confinement, regardless of their physical location.

Moving on, the general principle of law is that everyone is entitled to be offered access to good medical care whether he is being tried for a crime or has been convicted or simply in detention. When in detention or custody, the responsibility of affording him access to proper medical facilities rests with those in whose custody he is, invariably the authorities. But it ought to be understood that the mere fact that a person in custody is ill does not entitle him to be released from custody or allowed one bail unless there are really compelling grounds for doing so.

In the case under review, the appellant(a Nigerian senator) was convicted for money laundering and sundry offences, and sentenced to 7 years imprisonment. However, from 1/7/2022 to date, the applicant has not submitted himself to the Nigerian Correctional Services [NCS], which by the order of the Court of Appeal, is the legal custodian/jailer of the applicant from the aforesaid date of 1/7/2022.

After becoming a convict on July 1, 2022, the applicant went on frolics on his own. He sought medical treatment at different hospitals, starting with the National Hospital in Abuja and later at the Police Hospital in Lekki, Lagos. Despite being sentenced to a custodial sentence, the applicant continued to exercise his right to liberty and freedom of movement, traveling from Abuja to Lagos.

In this particular case, the applicant refused to adhere to the court’s judgment, obstructing the execution of the custodial sentence handed down by the Court of Appeal. Instead of being taken into prison custody, the applicant sought bail from the court on health grounds while awaiting the outcome of their appeal.

Giving the judgment, the court started by saying after a conviction and sentencing, courts exercise extreme caution when considering bail applications pending appeal. This is because, at this point, the applicant, now a convict, can no longer be presumed innocent, as his guilt has been established, and there is a trial court order for him to be in prison custody. Over time, the judicial precedent has been to refrain from granting such bail unless there are specific features or circumstances indicating that a denial of bail would result in irreversible injustice that cannot be rectified through legal relief.

Applying this general principle, the Supreme Court per Agim JCS held that “The duty of the State to ensure that the medical needs of persons in custody are met does not create such extravagant rights as claimed that a person in custody is entitled to be treated by a doctor of his own choice”

On the need for a judicial process of court not to be toyed with by those, who wield political power and for a convict to submit himself to the custody of Nigerian Correctional Services, the Court in an elaborated erudition held that: The applicant, who has continued to enjoy his right to personal liberty, now seeks an order of this court admitting him to bail pending the hearing and determination of his appeal. To my mind, this application is outrageous and cannot be entertained by this court when the applicant himself is not subject to any form of confinement. The appellant, by his conviction and sentence, has lost his right to presumption of innocence and liberty, and the continued exercise of his right to liberty and freedom of movement, as if he is not a convict, subject to a custodial sentence, is an affront to the judicial process. So, not only has he refused to submit himself to confinement or custody, but the applicant is seeking release from custody, which he has avoided.

The judicial process of court is not one to be toyed with by those who wield political power. The applicant has presented himself as a serving Senator and Distinguished member of the legal profession. Unfortunately, the facts of this application suggest that the applicant has little or no regard for the judicial process of the court. While stating that he is suffering from a serious medical condition, the applicant also informed this court that he has an upcoming election to contest.

As it is, the applicant as a convict subject to a custodial sentence, has no right whatsoever to refuse or fail to submit himself to custody of the NCS on grounds of ill health. A sick convict, who is also subject to custodial sentence, must first submit himself to custody as ordered, and upon his conviction, his right to movement in and out of the hospital must be at the direction and supervision of the NCS. He did not even notify NCS of his whereabouts; rather, he continued to enjoy his liberty and freedom of movement as if it had not been taken away lawfully.”

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Generally, it is the duty of citizens to report cases of commission of crime to the Police for their investigation and what happens after such a report is entirely the responsibility of the Police.

The principle of law is that where a citizen reports a matter to the Police and leaves it to them to investigate and conclude, and such conclusion results in the arrest of a party, an action against such a complainant will not lie. This principle has received judicial blessings in the following cases: [Isheno v. Julius Berger (Nig) Plc. (2008) 6 NWLR (Pt. 1084) 582; Arab Contractors (O.A.O.) Nigeria Ltd. v. Umanah (2013) 4 NWLR (Pt. 1344) 323


So in Udo v Essien (2005) 5 NWLR (Pt. 1451) 83, a 6-week temporary embargo was placed on oil palm fruits grown in the village as a means of generating funds for the development project in the village. In that case, the respondents breached the embargo placed on the whole village. They even threatened the 1st appellant. The court held that the 1st appellant was within his constitutional right to report all these to the Police. It is this report that culminated in the respondents being arrested and detained.

However, there is an exception. A citizen will be held culpable in this civic duty if it is shown that it is done mala fide(in bad faith). Nigeria’s celebrated case that exemplified this exception is the case of Balogun v. Amubikahan (1989) 3 NWLR (Pt. 107) under the tort of Malicious Prosecution.

The tort of malicious prosecution is committed where the defendant maliciously and without probable cause, initiates against the plaintiff a criminal prosecution which terminates in the plaintiff’s favor and which results in damage to the plaintiff’s reputation. In this instance, the defamed person would now institute a civil matter against the person who made the report in bad faith.

So in that case, The defendant/appellant(Balogun), a legal practitioner, had a case which was at all material times pending in court against the respondent, who was a meat seller in Ibadan. All feelings appeared to be high and the respondent stated that the appellant had promised to deal severely with him. According to the respondent, on the 6th March 1979, the appellant lodged a report at the Challenge Police Station, Ibadan against him. The allegation was that the respondent conspired with one Madam Olufunmilayo Adekunle to kill him (the appellant) with juju and steal his properties.


The woman and the respondent were arrested on the active instigation of the appellant. The appellant tried to stop people from standing surety for the respondent when the latter was being detained at the Police station. The respondent and Madam Adekunle were prosecuted before the Magistrate but were both discharged and acquitted. At their joint trial, Madam Adekunle had confessed that she was tutored into the act of implicating the respondent by the appellant and that she was paid N300.00 by the appellant for that purpose.


Following the acquittal of the respondent, he commenced an action in the High Court against the appellant claiming damages for malicious prosecution. The action was successful and was upheld by the Court of Appeal consequent upon which this appeal was lodged to the Supreme Court.


From this case, it was apparent that the appellant, who surprisingly was a legal practitioner, in a bid to get the land in dispute for himself made a false criminal statement against the respondent. The Court held that: it is true the police arrested the respondent and locked him up like any other criminal in their cell and was released on bail the second day. It is also evident that the police charged the respondent before a Magistrate Court. But the real force behind the whole matter is the appellant. He knew very well that the whole criminal complaint was a fabrication and that the arrest, remand in police custody and subsequent trial of the respondent was an unmitigated abuse of the judicial process. He was the one that technically set the whole prosecution in motion.

In conclusion, while it is the civil duty of the citizens to aid the law enforcement agencies in crime prevention through reports of crime, the law places another burden on them not to make a report in bad faith as this would attract monetary damages.

The police have the primary duty to prevent the commission of crime and the apprehension of alleged criminals. Emonena & Anor. v. IGP & Ors. (2016) LPELR-41489. The duties and powers of the Police are not in doubt. The issue that often raises questions is the manner in which the duties are performed or the powers exercised.

This duty is statutorily provided in Sections 4 and 24 of the Police Act. By virtue of section 4 of the Police Act, the Police Shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property, and the due enforcement of all laws and regulations with which they are directly charged. Thus, the general powers invested in the Police to effect the arrest of suspected offenders and to detain them is statutory. [Fawehinmi v. I.G.P. (2000) 7 NWLR (Pt. 665) 481

In discharge of this primary duty, what happens if they violate the personal liberty of an individual? Should it be actionable bearing in mind that personal liberty is a fundamental human rights entrenched in section 35 of the Constitution? By virtue of section 35(1) of the 1999 Constitution(as amended), every person is entitled to his personal liberty and no person shall be deprived of such liberty save 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.

In answering this question, attention is given to the case of Mitin v. Commissioner of Police Bayelsa State & Ors [2023] 12 NWLR 259. The case reinforces the known principle of law that some rights in the Constitution are not absolute and in deserving circumstances, they could be violated.

The fact of the case goes thus: In June 2015, the ‘A’ Division of Nigeria Police in Bayelsa State received reports of criminal incidents involving a black Toyota Camry car. The first incident was a robbery, followed by reports of criminal activities associated with the same car. Additionally, a petition claimed that unknown individuals were threatening the lives of specific respondents. The police received a call about the suspicious movement of the same car, which led them to the appellant’s residence. The Police acted on the information disclosed to them, which led to the arrest of the appellant, who incidentally had a black Camry car. They arrested and searched him but found nothing incriminating. After realizing he wasn’t the suspect they were looking for, he was released on bail, and his vehicle was returned later. Feeling aggrieved, the appellant filed a lawsuit against the respondents, alleging illegal arrest, torture, and detention, as well as violations of his constitutional rights. He sought declarations of rights violations, damages, compensation, and a public apology.

In this case, having regard to the series of reports received by the 1st and 2nd respondents and the peculiarity of the involvement of a black Toyota Camry car in suspected nefarious activities in and around Yenagoa, the court held that the 1st and 2nd respondents were doing no more than their duty to investigate the complaints. Therefore, the appellant’s arrest fell within the exception provided in section 35(1)(c) of the Constitution.

Furthermore, the court per Per OKORO, J.S.C. opined that: In this case, the appellant was arrested following repeated complaints received by the Police about criminal activities involving occupants of a certain black Toyota Camry carat several locations within Yenagoa. The Police swung into action and arrested the appellant on Bay Bridge Road, Yenagoa in a black Toyota Camry car which fits the description of the car in the several reports. Upon being satisfied that the appellant was not the suspect they were looking for, he was released on bail the same day. I therefore do not see how the action of the Police in the circumstance amounts to a breach of the appellant’s fundamental right.

In conclusion, the Police cannot be said to violate the fundamental right of a citizen where such right is necessarily curtailed to investigate criminal complaints upon reasonable belief that the citizen has committed a criminal offence or is likely to commit a criminal offence.

Thank you for reading. See you next week