- Hope Azinuchi Azeru-Oziri, LLb, BL, ChMc
ABSTRACT
The Rivers State
Neighbourhood Safety Corps Law, 2018, is a law enacted by the Rivers State
House of Assembly and signed into law by the Executive Governor of Rivers
State, His Excellency, Chief Barr. Nyesom Ezenwo Wike. The essence of the law
is to set up an agency that will assist the police in curbing crimes in the
state. Although, the law has not been judicially tested, this paper x-rays the
significant objectives of the law, its salient provisions, and applications as
well as the shortcomings of the law.
INTRODUCTION
Security is one of the
most frequently discussed issues in Rivers State and Nigeria at large. Adequate
security is important for the well-being of the people and the economy of the
state as no investor would want to invest in a state where there is insecurity,
anarchy and chaos.
The Neighbourhood safety
Corps Law established an agency called the “Safety Agency”[1] to assist The Nigerian
Police and any other security agencies in the state to maintain law and order.
The aim of the law generally is to curb criminal activities in the state.
Security is vital to the state and its citizens as blood is to the body.
The Rivers State
Neighbourhood Safety Agency is a body responsible for coordinating the
Neighbourhood Corps. It is a body corporate with perpetual succession and a
common seal; it can sue and be sued in its corporate name.[2] Even though the agency
has its own Director-General, the law gives the Nigerian Police Force some
measures of control over the agency. The crux of this paper is to
critically analyze the provisions of the law.
Principal provisions of
the Law/shortcomings.
The principal objective
of the Law is comprehended in its short title which is: A Law to
establish the Rivers State Neighbourhood Safety Corps Agency for the Regulation
and Control of Neighbourhood Safety Corps activities and for connected matters.
Section 2 expressly provides for the objectives of the
Safety Agency as follows:
(a) establish a
uniformed Neighbourhood safety Corps within the State with the power to
carry arms subject to police permit (emphasis mine)
(b) assist the Police
and any other security agency in the state to maintain law and order by:
(i) gathering
information about crimes, crime in progress, every suspicious activity and
crime suspect;
(ii) making available
any relevant information on crime, crime in progress, every suspicious activity
and crime suspect to the Police or any other security agency that requires it;
(iii) putting structure
in place to ensure that all hoodlum and cult group does not have opportunity to
operate in any community in the State;
(iv) undertaking routine
motorized patrol day and night;
(v) reducing the crime
rate and ensuring that every offender is identified and made to account for his
misdeeds;
(vi) following up on
arrest of every offender to the court and ensuring justice;
(vii) timely reporting
any suspicious activity or crime in progress to the Police or any other
security agency;
(viii) improving
relationship between the Police and the community as it concerns law
enforcement;
(ix) contributing to
maintaining community peace;
(x) providing the Police
with relevant information that will enhance their understanding of how to
effectively police the communities; and
(xi) assisting the
Police to perform any other lawful activity in maintaining Law and order.
The law gives Safety Corps
members the power to carry arms with a proviso subject to police permit. I will
therefore be correct to state that the law directly gives the Inspector General
of Police control over the Safety Corps. The power of the Safety Corps to carry
arms is at the discretion of the Police. The law makers deliberately inserted
that proviso in order for the police to act as a watch dog to the agency.
Section 3 of the law provides for establishment and
composition of the Board of the agency. The Board has 11 members with
responsibility for the operation and administration of the Agency. The Governor
shall appoint the chairman and members of the Board, except the Ex-officio
members. The tenure of their office is 4 years.[3] The law does not provide
for confirmation of members of the board by the House of Assembly leaving the
appointment entirely at the discretion of the Governor.
Section 7 provides that the Chairman or a member of
the Board shall cease to hold office if he:
a. resigns by giving one
month notice in writing addressed to the governor;
b. is unfit or unable to
discharge the functions of the office either by reason of infirmity or mental
incapacity;
c. is convicted of a
crime;
d. becomes bankrupt; or
e. is guilty of serious
misconduct or dereliction of duty.
Subsection 2 provides that the Chairman or member of the
Board may be removed from office by the Governor if the Governor is satisfied
that it is not in the interest of the public that the member should continue in
office.
The law undoubtedly
gives the governor the power to hire and fire the board members.
Functions of the Safety
Agency
The functions of the
Agency are as follows:
a. establish the uniformed
Neighbourhood Safety Corps in the Local Government Areas;
b. prescribe regulations
guiding every operation of the Safety Corps and any other local vigilante group
in the State;
c. approve the
recruitment and training of any eligible person as a safety corps member in
every Local Government Area, provided that a person can only be employed as a
safety corps member or a member of a vigilante group after security clearance
by the police;
d. formulate guidelines,
regulations and policies for the operations of the Safety Corps and any other
local vigilante groups in the State;
e. discipline any erring
safety corps member;
f. provide uniforms,
boots communication gadgets and any other equipment for the safety corps
members in every Local Government Area.
g. pay salaries and
emoluments of every Safety Corps member;
h. establish offices and
Safety Corps posts in every Local Government Area and establish the
headquarters in a place as approved by the Governor;
i. appoint a head for
each safety corps in every Local Government Area from among officers in the
Local Government Area subject to the approval of the Governor; and
j. provide a uniform
graded system of structure for the Safety Agency.
Section 23 of the Police Act,[4] gives the police the
power to conduct all prosecutions before any court in Nigeria.[5] However, the exercise of
this power is subject to the powers of the Attorney-General to take over,
continue or discontinue such prosecution.[6]
From the functions
listed above, it is clear that the Safety Agency does not have the power to
prosecute a suspect in court. That is, the Agency cannot single-handedly charge
a suspect to court. The law merely tasks the agency to follow up on arrest of
every offender to the court and ensuring justice. Moreover, Section
22(2) of the law mandates the safety corps to immediately hand over a
person arrested to the police or a security agency nearest to the location
where the arrest is made. Section 8(c) also gives the police
power over the agency as a person can only be a member of the Safety Corps
after security clearance by the Police.
The law gives the Agency
the power to make regulations and formulate guidelines for local vigilante
group in the State. However, the agency cannot discipline an erring member of
the local vigilante group as same is not provide for in the
law.
Section 10 of the law provides for the office of the
Director-General of the Agency who shall be a legal practitioner with a minimum
of 10 years post call experience, a serving or retired public servant not below
Grade Level 15, and a person experienced in security matters. The
Director-General is the Chief Executive Officer of the Safety Agency and is
responsible for the administration of the Safety Agency.
The positions of the
Chairman and the Director-General are exclusively reserved for legal
practitioners. A private legal practitioner cannot be appointed as the
Director-General of the Agency but can be appointed as the Chairman of the
Board of the Agency.
Section 11 provides for the appointment of the Secretary of
the Agency by the Governor. Subsection 1 of the law states
that the Governor shall appoint a Secretary for the Safety Agency who shall be
a:
a. university graduate
with not less than 5 years cognate experience; and
b. person of proven
integrity.
Subsection 2 provides that the Secretary shall:
a. be in custody of the
seal of the Safety Agency;
b. keep the records and
correspondence of the Safety Agency;
c. summon meetings of
the Board on the directive of the Chairman;
d. serve as Secretary to
the Board;
e. convey the decisions
of the Board to members;
f. prepare the agenda
and minutes of the Board; and
g. perform any other
duty as the Director-General may direct.
Section 11 of the law stretches its arm to graduates
from all fields of study. A graduate of 5 years and above can be appointed as
the secretary of the agency. This position unlike that of the Chairman and
Director-General is not restricted to legal practitioners alone.
Section 12 provides that the Safety Corps shall assist,
complement and collaborate with the Nigerian Police Force and every other
Security Agency in their fight against crime.
Power to arrest and
search
Section 22(1) of the law provides that the Safety Corps
has power to arrest and conduct a search on a person who commits a crime, aids
or abets the commission of a crime, or is suspected of any criminal activity.
Subsection 2 provides that the Safety Corps shall immediately
hand over the person arrested to the Police or a security agency nearest to the
location where the arrest is made.
The Safety Corps has
power to arrest and search. Search is conducted by security agencies either on
a person or on premises. The law is silent on whether the corps member must be
armed with a warrant of arrest or a search warrant. Section 24[7] of the Police
Act provides for instances where the police can arrest without warrant.
Section 37 of the 1999 Constitution (as amended) guarantees
the right to privacy. Therefore search warrant is so important that even the
Police cannot carry out a search on premises without a search warrant except in
certain circumstances.[8]
A warrant of arrest is
issued by a Judge, Magistrate and a Justice of Peace in the Northern part of
Nigeria. A search warrant is issued by a Judge, Magistrate, Justice of Peace
and superior police officer above the rank of Cadet Assistant Superintendent of
Police (subject to the provisions of section 28(3) of the Police Act)[9]
The Safety Corps is
mandated to immediately hand over the person arrested to the police or any
other security agencies. Failure to adhere strictly to this provision makes the
action of the agency ultra vires.
Limitation period
Section 23 provides that notwithstanding any
provision contained to the contrary in the Rivers State Limitation Law Cap 89
Laws of Rivers State of Nigeria, 1999, no suit against a member of the Board,
the Director General or any other officer or employee of the safety corps for
an act done in pursuance or execution of this law or any other enactment, or of
any public duty or authority in respect of any alleged neglect or default in
the execution of this law or any other enactment, duty or authority shall lie
or be instituted in any court unless it is commenced:-
a. within 3 months after
the act, neglect or default complained of; or
b. in the case of a
continuation of damage or injury, within 6 months after the ceasing of the
damage or injury.
Limitation laws are laws
that prescribes time limit within which an action can be instituted. The
Neighbourhood Safety Corps Law has prescribed a limitation period of 3 months
and 6 months respectively and it is superior to the Rivers State Limitation
Law. Therefore, any action instituted outside these periods is statute-barred
and the court would be robbed of jurisdiction to hear the suit.
Once a legal right is
established, there must be an accompanying remedy, no matter how minimal. A
party who claims such right must be prompt; he would not be allowed to indulge
in a long sleep, only to wake up later to assert his right, when his indifference
has led the other party to alter his position, in circumstances in which it
would be oppressive and inequitable to request him to revert to his prior
position.[10] It is trite that equity
aids the vigilant and not the indolent. Vigilantibus non dormeientibus
jura subveriunt, the watchful and not the slothful, the laws assist.[11]
In the case of Okere
v. Amadi,[12] the defendant
objected to the suit on the ground that the suit was statute-barred. His
contention was that the Chieftaincy law of the state provides that an appeal
against such recognition must be made within 21 days. The plaintiff’s
contention that the law was inconsistent with the provisions of Section 6(1)
and 236 of the 1979 Constitution was rejected by the Supreme Court which held
that such law was appropriate in the light of needless tussles within
communities.
The effect of limitation
period is that it extinguishes both the remedy and the right to maintain the
action for the remedy.[13]
The rationale for the
existence of statutes of limitation includes the following:
a. the long dormant
claims have more of cruelty than justice in them;
b. that a defendant
might have lost the evidence to disprove a stale claim; and
c. that persons with
good causes should pursue them with reasonable diligence.[14]
It is noteworthy that an
action for enforcement of fundamental rights is unaffected by any limitation
statute[15] including Section 23 of
the Safety Corps Law. There cannot be a clog on the right to institute an
action for enforcement of fundamental rights. The action can be instituted at
any time irrespective of when the cause of action arose.
The Fundamental Rights
Enforcement Procedure Rules (FREP Rules) 2009 is deemed to be at par with the
1999 Constitution (as amended). In Abia State University, Uturu v.
Chima Anyaibe[16] the Court of
Appeal said: I think an action under the Fundamental Rights
(Enforcement Procedure) Rules, 1979 is a peculiar action. It is a special
action. The procedure is provided by the Rules which were made pursuant to section
42(3) of the 1979 Constitution.[17]For the court to have
jurisdiction, the procedure specifically provided for must be strictly
followed. As I have already stated earlier in this judgment, the rules have the
same force of law as the Constitution itself. Therefore, where there
is a conflict between the Safety Corps Law and the FREP Rules, the later will
prevail.
Pre-action Notice
Section 24 of the law provides as follows:
1. no suit shall be
commenced against a member of the Board or the Director-general or any other
officer or employee of the Safety Corps before the expiration of a period of 30
days after written notice of intention to commence the suit shall have been
served on the Safety Corps by the intending plaintiff or his agent.
2. the notice subsection
(1) shall clearly and explicitly state the:
a. cause of action;
b. particulars of claim;
c. name and place of
abode of the intending plaintiff; and
d. relief which the
plaintiff claims.
A pre-action notice is a
letter usually written by an intending claimant/applicant to the prospective
defendant/respondent, giving him notice of intention to institute an action
against him. This is a mandatory notice that has to be given by the claimant to
the defendant where the law so requires.
In Ntiero v.
Nigerian Ports Authority,[18]the Supreme Court, per
Muhammad, J.S.C. held thus, “a pre-action notice connotes some form of
legal notifications or information required by law or implied by operation of
law, contained in an enactment, agreement or contract, which requires
compliance by the person who is under legal duty to put on notice the person to
be notified, before the commencement of legal action against such a person”
The requirement of 30
days notice is a condition precedent that must be fulfilled before an action
can be brought against the Safety Corps.
In Utek v.
Official Liquidator,[19] the court held
that where a plaintiff commences actions which require the fulfillment of a
condition precedent or precondition for the commencement of the action, that
condition must be fulfilled before the action can be validly commenced.
Failure to give the
required 30 days notice will amount to a mere irregularity. The right to
pre-action notice is a personal right which can be waived by the party entitled
to it.[20]
The rationale behind
pre-action notice is to promote amicable settlement (Alternative Dispute Resolution)
between the claimant and the defendant. However, this rationale does not apply
in criminal cases.
I strongly contend that
pre-action notice is not applicable in an action for the enforcement of
fundamental rights in particular the right to personal liberty as guaranteed by
the 1999 Constitution (as amended).
An action for the
enforcement of fundamental right is sui generis. It is governed by
the Fundamental Rights (Enforcement Procedure) Rules, (FREP Rules) 2009. The
FREP Rules were made by the then Chief Justice of Nigeria, Justice Legbo Kutigi
(late) in exercise of power conferred on him by Section 46(3) of
the 1999 Constitution (as amended). The FREP Rules have the same force as the
Constitution and are deemed to be at par with the provisions of the
Constitution. See Abia State University, Uturu v. Chima Anyaibe.[21]
Fundamental rights
matters are placed on a pedestal than ordinary civil matters as was held by the
Supreme Court in the case of Gabriel Jim-Jaja v. Commissioner of
Police, Rivers State & Ors.[22]
In the case of Nigerian
Stored Products Research Institute & Anor. v. Mathias Ugwu & Ors.[23]the Court of Appeal
held that a fundamental right claim takes its pride of place among the comity
of claims and it cannot play a second fiddle or be appurtenant to any civil or
common law reliefs.
One of the powers given
to the Safety Corps is the power to arrest a person who commits a crime, aid or
abets the commission of a crime, or is suspected of any criminal activity. The
law however enjoins them to immediately hand over the person to the Police or
any other security agency. From the above provisions the following questions
beg for answers-
1. What happens if the
agency fails to hand over the person to the police or any other security agency
as required by the law?
2. Should such a person
wait until after the expiration of 30 days notice before he can bring an action
for the enforcement of his right to personal liberty as guaranteed by Section
35 of the Constitution?
3. Furthermore, a person
who is unlawfully arrested by the Safety Corps and handed over to the Police
and the Police further detains the person for more than 48 hours without
charging the person to court, should such a person wait for the expiration of
30 days before he can bring an action for the enforcement of his fundamental
rights?
Section 35 of the Constitution provides that every
person shall be entitled to his personal liberty and no person shall be
deprived of such liberty save in accordance with a procedure permitted by law.
Also, Article 5 of the African Charter on Human and Peoples
Right[24] provides that every
individual has 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 defamed.
In actualization of the
above provisions, Order 2 Rule 1 of the FREPR provides: “Any
person who alleges that any of the Fundamental Rights provided for in the
Constitution or African Charter on Human and People’s Rights (Ratification and
Enforcement) Act and to which he is entitled, has been, is being, or is likely
to be infringed, may apply to the Court in the State where the infringement
occurs or is likely to occur for redress… ”[25]
The FREP Rules does not
provide for pre-action notice before a person can institute an action for the
enforcement of his fundamental rights because time is of essence in Fundamental
Rights Enforcement Proceedings.
An action for the
enforcement of fundamental rights is commenced by any originating process
accepted by the court. The originating process shall be supported by:
1. A statement setting
out the name and description of the applicant, the relief sought and the
grounds upon which the reliefs are sought.[26]
2. An affidavit setting
out the facts upon which the application is made.[27]
3. A written address.[28]
In a plethora of cases,
the courts have held that pre-action notice should not be allowed to defeat the
purpose of fundamental rights suits.
In Babarinde
v. Ogun State University,[29]the court held as
follows: the issue concerns the government and the citizenry on
fundamental rights; a procedure is provided for it and where this is followed,
the issue of pre-action notice would appear to be a clog in the wheel of the
exercise of the fundamental human rights…in the circumstances, I regret I do
not agree that before a person can enforce his fundamental human
rights he would be bound to give three months’ notice during which his right
could have been so trampled upon that it is possible for his life to have
expired before the indulged government agency could make up its mind.
Similarly, in Samuel
Adeyemi Adelakun v. A.G. Ogun State & 2 ors.[30] the court held
that: actions pursuant to section 42 of the Constitution have urgency
woven around them so much so that a pre-action notice would definitely negate
the purpose of the Constitutional provisions and procedure. I am of the view
that pre-action notice referred to in section 45 of Ogun State University Law
could only arise in a normal civil action. By the end of three months, the
alleged infringement would have degenerated and resulted in mightier and
probably irredeemable mischief or damage to the Applicant. I think it is in
recognition of this type of situation that Nigeria has subscribed to the
African Charter pursuant to which the Applicant herein has also sought redress.
It is worthy of note
that cases where the courts have held that failure to give pre-action notice
renders a suit incompetent did not touch on the applicants right to civil
liberty.
With utmost respect I
vehemently disagree with the Federal High Court decision in Ulom v.
NAFDAC,[31] when it struck
out an application for the enforcement of fundamental rights on the grounds
that the applicant did not serve a pre-action notice on the respondent in
accordance with section 26(1) of NAFDAC Act.
Where there is a
conflict between the Safety Corps Law and the FREP Rules, the latter will
prevail.[32] The Supreme Court
in the case of Federal Republic of Nigeria v. Ifegwu[33] rejected the
superiority of the Public Officers Protection Act (Cap P41 LFN 2004) over the
FREP Rules.
Base on the foregoing, a
person who alleges breach of Chapter IV of the Constitution by the Safety Corps
can institute an action without complying with Section 24 of the Law.
The provision that an
agency that has the power to arrest and search a person should be given a
notice before an action can be brought against such an agency is absurd and
should not be accommodated in a civilized society like ours, and I therefore
urge the courts to frown at Section 24 of the Safety Corps Law.
CONCLUSIONS
This article has
analysed the salient provisions of the Safety Corps Law and its shortcomings.
However, despite the above shortcomigs, The Neighbourhood Safety Corps Law is a
welcome development and the Safety Agency will only function affectively if the
agency shuns corruption and nepotism.
[1] See
Section 1(1)
[2] See
Section 1(1-3)
[3] See
Sections 2, 3, and 4.
[4] Cap
P. 19, LFN 2004.
[5]F.R.N.
V. Osahon (2006) 5 N.W.L.R. part 973 page 361 S.C.; Olusemo v.
C.O.P. (1998) 11 N.W.L.R. part 575 page 547
[6] See
Secion 174 and 211 of the 1999 Constitution (as amended)
[7] See
also Section 18 of the Rivers State Administration of Criminal Justice Law,
2015.
[8]For
example, a police officer armed with a warrant of arrest may search premises
without obtaining a search warrant where he obtains information that the
suspect being looked for is hiding in the premises. See Section 12(1) of
Administration of Criminal Justice Act, 2015
[9] Section
153(1)of the Rivers State Administration of Criminal Justice Law, 2015
[10]Jerry
Amadi, Limitation of Action: Statutory and equitable Principles, Vol. 11 page 1
[11]S.P.D.C.
(Nig.) Ltd. v. Amadi (2010) 13 N.W.L.R. part 1210, 82.
[12] (2005)
ALL F.W.L.R. part 269, 1925
[13]S.P.D.C.N.
v. Ejebu (2011) part 17, page 333.
[14]G.
Cappa Ltd. v. Daily Times of Nigeria Limited (2014) ALL F.W.L.R. part
740, page 124
[15] Order
3 Rule 1 of the Fundamental Rights Enforcement Procedure Rules.
[16] (1996)
1 N.W.L.R. part 439, page 646 at pp 660-661
[17] Now
section 46(3) of the 1999 Constitution (as amended)
[18] (2008)
L.P.E.L.R.- 2073 (SC)
[19] (2009)
ALL F.W.L.R. part 475 page 1774 @ 1791; see also N.N.P.C. v. Evwori (2007)
ALL F.W.L.R. part 369 page 1324 at 1345-1346
[20] See
the case of Feed & Feed Farms (Nig.) Ltd. v. NNPC (2009)
12 N.W.L.R. part 1155, 387 SC
[21] Supra.
[22] (2013)
22 W.R.N. page 39
[23] (2013)
15 W.R.N. page 49 at page 78.
[24] (Ratification
and Enforcement) Act, Cap A18 LFN 2004.
[25] See
also Section 46(1) of the 1999 Constitution (as amended)
[26] Order
2 Rule 3 FREPR
[27] Order
2 Rule 3
[28] Order
2 Rule 5
[29](2001)
1 CHR 156
[30] 2
NPILR 864
[31](2004)
1 FHCLR 1
[32] See
Section 1(1) & (3) of the Constitution; National Union of
Electricity Employees & Anor. v. Bureau Public Enterprises (2010) 41 part 1
N.S.C.Q.R. 611 at page 647
[33] (2003)
45 W.R.N. 27 at 69