Habeas Corpus Law

1. Short title. This Law may be cited as the Habeas Corpus Law.

2. Interpretation. In this Law- “Court” means the High Court of Delta State; “Judge” means a judge of the court and includes the Chief Judge; “Session” means any session during which the court is open for the transaction of general legal business; “Vacation” means any period during which any vacation is observed by the court.

3. Return to be made to writ of Habeas corpus within time Prescribed. 31 car.

2., c. 2. s. 1. Upon the issue of any writ of habeas corpus directed to any person to produce the body of any prisoner in his custody for any criminal or supposed criminal matter (other than for treason or felony plainly and specially expressed in the warrant of commitment) and the said writ being served in accordance with the provisions of this Law, the person to whom the writ is directed shall, within three days after the service of the writ, make return thereto or bring or cause to be brought the body of the prisoner before the court by which the writ is made returnable and shall then certify the true cause of the prisoner's commitment and detainer: Provided that the person to whom the writ is directed shall not be required so to produce the body of the prisoner save upon payment or tender of the charges of bringing him before such court or judge (to be determined by the judge by whom the writ is issued and endorsed upon the writ, but not exceeding fifty naira per kilometer) and upon security given by bond to pay the charges of carrying back the prisoner if he is remanded by the court or judge before whom he is brought in pursuance of this Law and that he will not make any escape by the way: Provided also that where the place in which the prisoner is in custody is more than thirty- five kilometer but not more than sixty kilometer from the court or place to which he is to be brought, return to the writ maybe ten days from the service thereof, and if more than sixty kilometers then within twenty days from such service.

4. How writ to be marked. 31 car. 2. c.2. s.2. Every writ of habeas corpus shall be marked “issued under the Habeas Corpus Law” and shall be signed by the judge issuing the same.

5. Issue of writ during vacation, 31, car. 2, and 9. (1) If any prisoner is committed or in cu behalf may apply to any judge, who shall, upon production of a copy of the warrant of commitment, or of an affidavit that a copy thereof was refused to be given to the applicant by the person by whom the prisoner is detained, and upon a request in writing by the applicant attested and subscribed by two witnesses present at the making thereof, issue a writ of habeas corpus under the seal of the court, directed to the officer or person in whose custody the prisoner is detained, and if any judge refuses any writ of habeas corpus required by this section to be issued upon being moved for as aforesaid, he shall forfeit to the prisoner or person, aggrieved the sum of one thousand naira to be recovered by action as for debt in any court of competent jurisdiction. (2) Such writ shall be returnable before the judge issuing the same and upon service thereof in the manner prescribed by this Law, the person to whom it is directed shall within the times prescribed by this Law bring such prisoner before the judge to whom the writs, is returnable or, in the case of his absence, before any judge of the court, with the return to such writ and the true cause of the prisoner's commitment and detainer. (3) Unless it appears to the judge before whom the prisoner is brought that the prisoner is detained upon legal process, order or warrant out of some court of competent jurisdiction in criminal matters, or by some warrant, signed by a judge, magistrate or justice of the peace, for some matter or offence for which by law the prisoner is not bailable, the judge shall, within two days after the prisoner is brought before him, discharge the prisoner from his imprisonment upon his entering into a recognisance with one or more surety or sureties in any sum which the judge shall think sufficient, conditioned for his appearance before the court at the next session in the place where the warrant of commitment was issued or where the offence was committed or at such other court wherein the offence is properly cognizable and shall then certify the said writ, with the return thereof and the said recognisance, to the court where such appearance is to be made: [31 car. 2.c. 2.s.3] Provided that if any prisoner has willfully neglected for the space of two whole sessions after his imprisonment to pray a writ of habeas corpus for his release such prisoner shall not have any such writ awarded to him in vacation in pursuance of this section. [1976 No. 3.]

6. Penalty for Neglect or Refusal to make return to writ 31 car. 2. c.2,s.4. (1) If any person to whom a writ of habeas corpus is directed or his servant or agent neglects or refuses to make due return to the writ of habeas corpus or to bring the body of the prisoner according to the demand thereof within the time prescribed by this Law, or upon demand made by the prisoner or any person on his behalf refuses to deliver or within six hours after such demand does not deliver to the person so demanding a true copy of the warrant of commitment of such prisoner, every such person in whose custody the prisoner is detained shall for the first offence forfeit to the prisoner or person aggrieved the sum of two thousand naira and for the second offence the sum of four thousand naira and shall be and is hereby made incapable of holding or executing his office. (2) The penalties prescribed by the foregoing subsection may be recovered by the prisoner or person aggrieved, his executors or administrators, against the offender, his executors or administrators, by an action as for debt in any court of competent jurisdiction, wherein no stay of prosecution by non vult ulterius prosequi or otherwise or any more than one imparlance shall be admitted or allowed. (3) Any recovery or judgment at the suit of the prisoner or person aggrieved shall be a sufficient conviction for the first offence and any recovery or judgment thereafter at the suit of any person aggrieved for any offence after the first judgment shall be a sufficient conviction to bring the offender within the aforesaid for the second offence.

7. Prisoner set at large not to be recommitted or imprisoned save in certain cases. 31 car .2,c .2, s.5. No prisoner delivered or set at large upon any writ of habeas corpus shall at anytime be again committed or imprisoned for the same offence by any person whatsoever other than by the legal order and process of such court wherein he may be bound by recognisance reappear or other court having jurisdiction in the cause, and if any person shall, contrary to this Law, knowingly recommit or imprison or knowingly, procure or cause to be recommitted or imprisoned for the same offence or pretended offence any prisoner delivered or set at large as aforesaid, or knowingly aid or assist therein, he shall forfeit to the prisoner or person aggrieved, notwithstanding any colourable pretence or variation in the warrant of commitment, the sum of one thousand naira to be recovered by an action as for debt in any court of competent jurisdiction.

8. After notice of a date of session prisoner to be brought before the presiding judge.3 car2. c.2, s.17. 1976 No 3. 31 Car .2,c.2,s.18. After notice has been given of the day upon which a session of the court will be opened in the district within which the prisoner is detained he shall not within the two weeks preceding such day be removed from the prison in which he is in custody upon any writ of habeas corpus issued in pursuance of this Law, but upon any such writ he shall be brought before the presiding judge in open court who shall thereupon do what to justice shall appertain: Provided that after the session is ended any person detained may be granted a writ of habeas corpus in accordance with the provisions of this Law.

9. Provision as to persons committed to prison by civil process 31 car. 2., c.2. s.7. Nothing in this part shall effect the discharge from prison of any person committed thereto by process in any civil suit, but when any such person is discharged from imprisonment in respect of any criminal prison by civil or supposed criminal matter he shall thereafter be kept in custody therefrom according to law.

10. Issue of writ in vacation in matters other than criminal matters or in civil proceedings 56 geo 3,c. 100 s.1. Where any person is in custody or restrained of his liberty (otherwise than for some criminal or supposed criminal matter or by process in any civil suit) a judge shall, upon complaint made to him by or on behalf of the person so in custody or so restrained, and if it shall appear by affidavit that there is probable and reasonable ground for such complaint, issue in vacation time a writ of habeas corpus ad subjiciendem under the seal of the court directed to the person in whose custody or power the person so complaining shall be returnable before the judge issuing the writ or before any other judge.

11. Writs issued late in vacation returnable in Term or vice versa. .56 Geo. 3 c.100, s.2. (1) If any writ of habeas corpus is issued, in accordance with the provisions of this law, so late in the vacation that in the opinion of the judge it cannot be conveniently obeyed during such vacation, the writ may, at his discretion, be made returnable in the court upon a day certain in the next session and the court may proceed thereon in the like manner as if the writ had originally been issued by the court. (2) If such writ is issued in session but so late that, in the judgment of the court it cannot be conveniently obeyed during such session, the writ may, at the discretion of the court be made returnable upon a day certain in the next vacation before any judge, who shall proceed thereon in such manner as by this Law is provided concerning writs issued in and made returnable during the vacation.

12. Services of writ 56 Geo. 3. c.100, s.2. (12) Every writ of habeas corpus issued in accordance with the provisions of this Law shall be served either by actual delivery to the person to whom such writ is directed or by leaving the same with any servant or agent of such person, at the place where the prisoner is confined or restrained.

13. Non-obedience to writ to be contempt of Court56 Geo. 3, c. 100, s.2. (1) If any person to whom a writ of habeas corpus is directed, upon service of such writ in accordance with the provisions of this Law, wilfully neglects or refuses to make a return to or obey such a writ he shall be deemed guilty of contempt of the court. (2) In any such case it shall be lawful for the judge before whom such writ is returnable, upon proof by affidavit of wilful disobedience of the said writ, to issue a warrant under his hand and the seal of the court for apprehending and bringing before him or some other judge the person so wilfully disobeying the said writ in order that he may enter into a recognisance with two sufficient sureties in such sum as shall be expressed in the warrant, conditioned for his appearance in the court at a day in the ensuing session to be mentioned in the said warrant, to answer the matter of contempt with which he is charged. (3) If any person so apprehended neglects or refuses to enter into such recognisance the judge before whom he is brought may commit him to prison, there to remain until he enters into such recognisance or is discharged by order of the court in session or by a judge in vacation. (4) Any recognisance entered into in accordance with the provisions of this section shall be entered and filed in the court and shall continue in force until the matter of such contempt as aforesaid has been heard and determined, unless sooner ordered by the court to be discharged.

14. Examination of facts set forth in return to writ. (1) In all cases provided for by this Law, although the return to the writ is good and sufficient in law, it shall be lawful for the judge before whom such writ is returnable to proceed to examine into the truth of the facts set forth in such return by affidavit and to do therein as justice may require. (2) Where any such writ is returned before a judge and it appears doubtful to him on such examination as aforesaid whether the material facts set forth in the said return or any of them, be true or not, in such case it shall be lawful for the said judge to admit to bail the person confined or restrained upon his entering into a recognisance with one or more sureties, or in case of infancy or other disability upon security by recognisance, in a reasonable sum, conditioned for his appearance in court before the said judge or some other judge upon a day certain in the ensuing session and so from day to day as the court shall require and to abide by such order as the court may make in and concerning the premises. (3) In any such case the judge shall transmit to the court the said writ and return, together with such recognisances and affidavits, and thereupon it shall be lawful for the court to proceed to examine into the truth of the facts set forth in the return in a summary way by affidavit and to make such order as it may think fit touching the discharging, bailing or remanding of the person on whose behalf the writ of habeas corpus has been issued. (4) The like proceeding may be had in the court for controverting the truth of the return to any such writ of habeas corpus, notwithstanding that such writ has been awarded by the court itself or is returnable therein.