Unlawful detention in Nigeria


What is unlawful detention?

An unlawful detention occurs when a person’s right to personal liberty is restricted without following the legal process. This includes:

  • Detentions that are unreasonable, inappropriate or lack legal justification. This refers to grounds or reasons for detention we looked at in What is detention, who can detain me and why?
  • Detentions that are not in accordance with national law.
  • Detentions in which due processes of law is not followed and your rights described below are not respected.

What are my rights in detention?

What are my rights in detention?

When in detention, the police or agency that is holding you must respect the following rights which are enshrined in the Nigerian Constitution:

  1. Right to Life: no one shall be deprived intentionally of their life, except in execution of a court sentence in respect of a criminal offence of which they have been found guilty in Nigeria
  2. Right to dignity of person: On no account should pre-trial detainees be tortured or be subject to inhumane or degrading treatment. Also, they cannot be subjected to forced labour.
  3. The right to be presumed innocent until proven guilty:Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
  4. You do not have to write a statement, or say anything while in detention:  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.
  5. You have a right to consult with your lawyer privately: this includes the right to defend himself or be represented by counsel during trial.
  6. Law enforcement must inform you of the facts and grounds for your detention: this should be in writing within twenty-four hours; and in a language that you understand.
  7. You must be taken before a court within 24 hours of your arrest, and in circumstances this proves to be reasonably impossible – within 48 hours: Any period exceeding one or two days may constitute unlawful detention.  However, the court has the discretion to determine the reasonableness of the length of detention based on facts/circumstances of each case.
  8. The police must charge you with an offence within the period of 24hrs or 48hrs: If they fail to charge you, you must be released on bail except for cases where you are suspected to have committed capital offences such as murder or armed robbery. 
  9. The right to adequate time and facilities to prepare for a defence: In cases where bail is denied due to the nature of offence, the pre-trial detainee must be allowed adequate time and facilities to prepare for his defence. This includes having pre-trial interviews with a lawyer.
  10. Time limits for detention: If you are detained without bail, you must be tried within a period of two months from the date of your arrest. If you are detained with bail, you must be tried within a period of three months from the date of your arrest. If the above deadlines are not meet and there are no further proceedings brought against you, you must be released either unconditionally or upon such conditions as are reasonably necessary to ensure that you appear for trial at a later date.
  11. Except in certain exceptions, you can apply for bail at the police, or apply for court bail once you have been brought before a court. Bail is free.

If these rights are not respected, your detention will be unlawful

A real-life case:

CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR (2018) LPELR-47256(CA) – A man was detained for a period of three days without reasonable cause for the delay. The arrest and detention was deemed unlawful by the appeal court.

BEEIOR ISHENGE v. COMMISSIONER OF POLICE, PLATEAU STATE & ANOR (2019) LPELR-48390(CA) – The Appeal Court held that the police violated the right to personal liberty of the appellant as guaranteed by Section 35 of the Nigerian Constitution when it failed to charge the appellant within the legal time frame.



Can I legally be held in detention for more than 2 days?

You may, but as an exception.  The only way this can happen is if the authority that accused you of a crime asks a court for an extension and a court orderes it, according to Section 293 of the Administration of Criminal Justice Act of 2015.  You may be remanded in custody if:

  • The nature and seriousness of the alleged offence necessitates that you be kept in custody.
  • There are reasonable grounds to suspect that you have been involved in the commission of the offence.
  • There are reasonable grounds for believing that you may abscond or commit other offences if you are not kept in custody.
  • Any other circumstance that justifies the prosecutor’s request for remand.

In the first application to keep you in custody, the court may grant a remand order not exceeding a period of 14 days.

Such period may be extended for another 14 days if the prosecutor justifies the need to continue to keep you in custody.

If after both extensions, you are still not put before a court that has the jurisdiction (authority) to decide on your case, you can apply for bail.

If the application on bail is rejected your stay in custody can be extended for another 28 days (making it 56 days in total). In case you are still being remanded when the extended period lapses, the court will discharge you and you should be immediately released from custody.


Can I challenge unlawful detention?

How do I make a complaint about unlawful detention? In the case of harm or disturbance by a police officer, a report should first be made to the Commissioner of Police.

  • If you were subject to physical abuse, first seek medical attention and obtain medical reports and pictures of the harm done.
  • Contact a lawyer, human right organization or National Human Rights Commission for assistance.
  • Notify the appropriate authority in charge of the offender (in the case of the police, the AIG or Human Rights Department of the Nigerian police Force Complaint Response Unit (CRU), in the case of an offending police officer)
  • Attach the medical reports and pictures to the notice. 
  • You can forward such to their mails – or npf or               

Can I challenge unlawful detention in court? Yes. If no positive response is received, then you can evaluate with legal support whether to proceed to file a case in court to seek the enforcement of your right.

A real-life case:

CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR (2018) LPELR-47256(CA) – A person was detained for a period of three days without reasonable cause for the delay. The arrest and detention was adjudged unlawful by the Court of Appeal .

You can challenge an unlawful detention by using the Fundamental Rights Enforcement Procedure. Follow the steps in the Fundamental Rights Enforcement Procedure and other means of defending human rights.

TIP: Gather Evidence. To challenge unlawful detention successfully, you need the evidence to prove that you have been detained unconstitutionally or unlawfully. It is not the arrest and detention of a person on a reasonable suspicion of his having committed an offence that constitutes the violation of his fundamental right to personal liberty. It is the unreasonableness of the length of his period of detention that you must prove. The burden to prove this is on you.

  • It is important for you to state in clear terms the date and time of your arrest and the length of the period of your detention.
  • Your evidence must reveal all necessary facts, particulars and ingredients revealing you have been detained unlawfully.
  • You must prove that you were arrested and detained beyond the time frame stipulated by law. On the other hand, the prosecution will have to prove that your detention was lawful.

What remedies are available when detained unlawfully?

You are entitled to remedies if the court holds that you were detained unlawfully. Section 35(6) of the 1999 Constitution states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. For more information, check what happens if I win or if I loose? section under the Fundamental Rights Enforcement Procedure Guide.

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