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The Law and You

What is Habeas Corpus?

Law & Society Magazine
By Law & Society Magazine
607
336

By Usman Bwala

The name habeas corpus conjures one of the writs and it is one of the oldest and most celebrated writs and safeguard to liberty of the subjects. It was in use beyond the Magna Carta Constitutional and Administrative Law by de Smith 44th ed p 461. Habeas corpus is a Latin phrase which means in English “you have the body” Black’s Law Dictionary p. 38. Habeas corpus has nothing to do with the guilt of the prisoner or a claim that a criminal charge against an accused person has not been proved Willie Lester vs Peyton 29 F.S. 636.

The primary function of habeas corpus is “the primary function of the writ is to release from unlawful imprisonment” Black’s Law Dictionary p.709. In a petition for habeas corpus, the function of the court is to look into the fact whether an applicant got a fair trial and not a review of questions of law used by a court during trial James Walker vs Bishop 259 F.S. 767.

There are many types of habeas corpus, one of the most popular is habeas corpus ad subjiciendum which is used to secure the release of an applicant from unlawful or illegal detention A.G. Federation vs Usman Abubakar 2008 16 NWLR (Pt 135).

In a day to use in courts, a reference to habeas corpus without more is a reference to this specie of habeas corpus U.S. vs Todd  S.C. 54.

Another popular specie of the writ is habeas corpus ad testificandum which is a specie of habeas inherent in all courts and is used to bring into court a person detained to enable him to testify in a matter U.S. vs Ras Gaha 1962, 205 F. S.949 where it was held as “The purpose of this writ is to bring into court one who is confined order that he may testify in a cause. The power to issue such a writ inherent in the court. The court has the jurisdiction to issue the writ extraterritorially to the warder of the federal prison in another jurisdiction in a proper cause.” However, in Weldon vs Neal 1884 – 5 QB D 471, the reverse was held as follows: The court lacks jurisdiction to issue habeas corpus to a person who is in custody for the purpose to enable him to argue the matter before a court.”

Habeas corpus is not an appeal against a valid sentence of a court Exparte Corke 1954 2 All E.R. 440 where it was held “it is well settled that persons serving sentences passed on them by a competent court of summary jurisdiction should understand that habeas corpus is not a means of appeal.” In Tukur Gwaram vs S. P. Kano NLHC 17 at 18, it was held in a clear language as follows: “The court does not grant a writ of habeas corpus to persons who are in execution, that is to say; a person serving sentences passed by the court of competent jurisdiction.” When a prisoner was sentenced by a law which did not exist at the time of the commission of crime habeas corpus will issue Mccoy vs Mccauley 20 F.S. 200. When a regulation upon which a detaining authority is ultra vires a main law habeas corpus will issue Weekes vs Motano 1972 19 WLR 425.

When a prisoner has completed his prison sentence but is still being detained habeas corpus will issue Re William Oswald Featherstone 1953 37 Cr AP. R 16 at 147 where it was held “The court does not grant and cannot grant writs of habeas corpus to persons, who are in execution, that is to say, the person who is in execution… the prisoner was being held after the terms of the sentence passed on him had expired.” When a court lacks jurisdiction habeas corpus will issue upon the illegal conviction. In Gwaram vs S.P. Kano supra it was held as follows: “if a court is not a court of competent jurisdiction, the conviction is illegal and so is any sentence which follows the conviction, and in such a case writ of habeas corpus will issue”.

Habeas corpus deals with the grounds upon which a prisoner was detained, it is not an acquittal granted by court Oloyede vs GOC 2nd Division N. A.NLHC 275, where it was held as “A release on habeas corpus is not an acquittal of the applicant for habeas corpus the court does not go into the merits so far as the offence is concerned” Habeas corpus deals only with the legality or illegality of the detention of an applicant Asikhai vs IGP NLHC 149 at 151 where it was held clearly as “The whole purpose of habeas corpus, however, is to determine whether or not the gaoler can produce legal authority for the detention.”

Habeas corpus is never granted unless and until an arguable case had been established Hobhouse 1820 3B and Ald 420. Whenever documents used in detaining an applicant are defective, bad, ambiguous, insufficient the detention is defective and habeas corpus will issue Onwudiwe vs COP NLHC 71, where it was held “As the return is bad, ambiguous and insufficient, the court shall order for the immediate release of the applicant.”

Habeas corpus will not issue where an applicant is detained or kept in safe custody of the realm in a war Exparte Kuechermeister 1946 2 All E.R. 4345 where it was clearly stated as “Habeas corpus does not lie against the crown at the instance of an enemy alien for the safety of the realm in time of war by an order of the executive government acting within the discretionary authority on behalf of the King and therefore the court had no power to grant a writ.”

The national security of a state takes precedence over the liberty of individuals during war or national emergency as such habeas corpus will not issue Agbaje vs COP Western State NLHC 36 at 38 where it was held “where the liberty of the citizen comes into conflict with the safety and corporate existence of the state, the liberty of the person has given way to the latter salus populi suprema lex especially during times of war or national emergency.” A clearer language was used by the court in Okeowo vs IGP NLHC 181 at 182 as “it is definite that when a country is at war the liberty of the citizen must be curtailed in one way or the other for the common good of every citizen and safety of the country.”

When a person has been released on habeas corpus such a person can no longer be arrested on the same grounds or reasons as the former accusation Kazeem vs IGP NLHC 1 where it was held “A person discharged from illegal custody on a habeas corpus is free once and for all and cannot be rearrested or detained on the same ground.”

Habeas corpus cannot be issued against parents unless such a parent detains a child against an order of a court Ekine vs Fabia NLHC 130 where it was held “An order for writ of habeas corpus cannot be made against a parent unless he detained his child in defiance of a court order.” A father who took his child from a mother has not committed any crime so habeas corpus will not be issued against the father Ahize vs Ahize NLHC 2.

A person who applies for habeas corpus must have a right which is personal to him Calcutta Gas vs State of West Bengal (India) 1962 49 S.C. (Vol.2) 1044. A person who is detained has a fundamental right to be informed of the reasons why is being detained, failure to observe this procedure is fatal to the arrest, and habeas corpus will issue Onwudiwe vs COP NLHC 71. Habeas corpus will be refused an applicant where there is an alternative remedy which is adequate Ahize vs Ahize supra.

A respondent in a habeas corpus proceedings has the burden to prove that an arrest or detention of an applicant is legal Emerson vs IGP NLHC 266 where it was held “The burden of providing the lawful justification rests on the respondent and not on the applicant. It is the detaining person or authority who knows the reason for the detention of an applicant, hence the burden of proving lawful justification for the arrest lies on him. See also Kwahaja vs Secretary of State for Home Department 1948 A.C. 74. It is the executive who must prove that condition precedent was performed Greene vs Secretary for Home Affairs 1942 A.C. 284 where it was held “…The onus was on the executive to negative the challenge and proof beyond reasonable doubt that the condition precedent had been performance.” Habeas corpus remains a safety valve for those detained illegally or unlawfully.

Hon. Justice Usman Bukar Bwala J.P., retired from the High Court of Justice, Maiduguri, Borno State.

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