By

Chidi Ezenwafor Esq., MCArb
PART II
6. Relationship of Nigerian Army v. Mowarin with Other Constitutional Authorities
The reasoning in Mowarin does not stand in isolation. Rather, it forms part of a broader constitutional tradition in Nigerian jurisprudence that accords special protection to fundamental rights.

In Director of State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314, the Supreme Court reaffirmed that constitutional rights are enforceable guarantees and not merely aspirational declarations. The Court emphasised that executive action inconsistent with constitutionally guaranteed freedoms cannot receive judicial approval.

Likewise, in Fawehinmi v. Abacha (1996) 9 NWLR (Pt. 475) 710, the Court of Appeal affirmed the continuing enforceability of internationally recognised human rights, particularly those embodied in the African Charter on Human and Peoples’ Rights, notwithstanding military rule. The decision reinforced the proposition that liberty occupies a privileged place within Nigerian constitutional law.

Collectively, Agbakoba, Fawehinmi, Ojukwu and Mowarin demonstrate a consistent judicial commitment to ensuring that constitutional rights are practical realities rather than abstract ideals. Although each decision arose in different factual circumstances, they share a common constitutional philosophy:

• constitutional rights deserve liberal protection;
• executive powers remain subject to judicial control;
• courts exist to enforce constitutional guarantees rather than merely declare them.

7. Comparative Constitutional Perspectives
   The reasoning in Mowarin is not unique to Nigerian jurisprudence. Across common law jurisdictions, liberty has consistently been treated as deserving heightened judicial protection.

The ancient English remedy of habeas corpus developed precisely because unlawful detention required immediate judicial intervention. Modern English jurisprudence continues to emphasise prompt judicial review whenever liberty is restrained.

Similarly, Article 5 of the European Convention on Human Rights guarantees the right to liberty and requires that every detained person be able to challenge the legality of detention before an independent court.

In Canada, section 7 of the Canadian Charter of Rights and Freedoms protects the right to life, liberty and security of the person, while section 9 prohibits arbitrary detention.

Canadian courts have consistently interpreted these provisions generously in favour of individual liberty.

Section 12 of the Constitution of the Republic of South Africa guarantees freedom and security of the person and protects every individual against arbitrary detention.

Indian constitutional jurisprudence has likewise expanded Article 21 of the Constitution of India to require that every deprivation of liberty satisfy standards of fairness, justice and reasonableness.

These comparative developments demonstrate that Mowarin is entirely consistent with modern constitutional thinking.

8. Exceptions and Limitations to the Mowarin Principle

Although Nigerian Army v. Mowarin (1992) 4 NWLR (Pt. 235) 345 has become the leading authority on the impropriety of staying a judgment restoring personal liberty, the principle it established is not absolute. Like most constitutional doctrines, its application is subject to the facts of each case and to other competing constitutional and public interests.

It is therefore incorrect to suggest that once a court orders the release of a detained person, the individual must remain at liberty regardless of subsequent legal developments. Such an interpretation would extend the decision beyond its intended scope.

The true principle emerging from Mowarin is that a pending appeal, standing alone, does not constitute sufficient legal justification for the continued detention of a citizen whose incarceration has already been adjudged unlawful.

Accordingly, where there exists an independent legal basis for continued custody, the rationale in Mowarin ceases to apply.

For instance, where a valid remand order is subsequently issued by a court of competent jurisdiction in relation to a separate criminal allegation, the legality of the person’s detention derives not from the pending appeal but from the fresh judicial order. Similarly, where a person is already serving a lawful sentence following conviction by a competent court, a subsequent order restoring liberty in respect of another matter cannot nullify the subsisting sentence.

Likewise, where fresh facts emerge giving rise to a new and lawful basis for arrest or detention, law enforcement agencies are not precluded from acting in accordance with the Constitution and other applicable laws. What Mowarin prohibits is the continuation of detention solely because the State wishes to preserve the status quo while pursuing an appeal.

The distinction is an important one. The appeal itself cannot become a substitute for lawful authority.

9. Balancing Liberty and Public Interest
   One of the criticisms occasionally advanced against the Mowarin doctrine is that it may, in exceptional circumstances, appear to conflict with compelling public interests such as national security, public safety or the prevention of serious crimes such as terrorism, insurgency, organised crime, cybercrime and transnational criminal enterprises.

While these concerns cannot be dismissed lightly, they must be approached within the framework of constitutionalism.

The Supreme Court has consistently emphasised that neither convenience nor expediency can override constitutional guarantees. In Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Court rejected executive self-help and insisted that public authorities remain subject to the rule of law irrespective of the perceived importance of governmental objectives.

Accordingly, where genuine public safety concerns arise following a judgment restoring liberty, the proper constitutional response is not to seek judicial approval for the continuation of an unlawful detention. Rather, the State must identify a fresh and lawful basis recognised by the Constitution or by statute.

10. Contemporary Relevance of the Mowarin Principle
    More than three decades after it was decided, Mowarin continues to occupy an important place in Nigerian constitutional jurisprudence.

Recent years have witnessed increasing judicial emphasis on substantial justice, constitutional accountability and executive obedience to court orders. Nigerian courts have repeatedly stressed that judicial decisions are not advisory opinions but binding determinations which must be obeyed unless and until they are set aside by a superior court.

This judicial philosophy is particularly significant in cases involving detention by security agencies. Public confidence in the administration of justice depends not merely upon the willingness of courts to pronounce constitutional rights but also upon the readiness of public authorities to implement those decisions promptly.

The principle affirmed in Mowarin therefore reinforces three fundamental constitutional objectives. First, it strengthens judicial independence by affirming that court orders must be respected notwithstanding the pendency of an appeal.

Second, it enhances public confidence in the administration of justice. A constitutional right which remains suspended indefinitely pending appellate proceedings risks becoming largely illusory.

Third, it serves as an important restraint upon executive power by ensuring that governmental authorities remain accountable to the Constitution.

These objectives resonate strongly with the overriding philosophy of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which require courts to adopt an expansive and purposive approach in protecting constitutionally guaranteed rights.

11. Recommendations
    To strengthen the protection of personal liberty within Nigeria’s constitutional framework, the following measures are proposed:

First, appellate courts should continue to recognise that applications for stay of execution involving personal liberty require a distinct analytical approach from those relating to monetary or proprietary judgments.

Second, governmental authorities should be encouraged to pursue expedited hearing of appeals involving liberty rather than seeking prolonged interim restraints. Where an appeal genuinely raises substantial constitutional questions, its prompt determination better serves both the public interest and the interests of justice.

Third, courts should insist that any continued detention after a judgment restoring liberty must be supported by a fresh and independent legal basis. Mere reliance on the pendency of an appeal should never suffice.

Finally, judicial training programmes should continue to emphasise the constitutional importance of liberty and the need for robust enforcement of fundamental rights in accordance with the Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009.

12. Conclusion
    Personal liberty occupies a unique and elevated position within the hierarchy of constitutional rights. Unlike commercial interests or proprietary claims, it is incapable of complete restoration once unlawfully lost. Every moment of unjustified detention represents an irreversible intrusion upon human dignity, personal autonomy and constitutional freedom.

It is against this constitutional backdrop that the decision in Nigerian Army v. Mowarin (1992) 4 NWLR (Pt. 235) 345 assumes enduring significance. The Court of Appeal correctly recognised that the ordinary principles governing stay of execution cannot be applied mechanically where the consequence would be the continuation of an unconstitutional deprivation of liberty.

Ultimately, the true value of a constitutional guarantee lies not in its textual recognition but in its practical enforcement. A declaration that a citizen’s detention is unlawful must ordinarily result in the immediate restoration of that citizen’s freedom. To hold otherwise would permit constitutional rights to remain hostage to procedural delays and would diminish public confidence in the administration of justice.