Mrs. E.A. Lufadeju And Anor. V Evangelist Bayo Johnson (2007)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, J.S.C.

This appeal emanated and got its root from the proceedings in the Chief Magistrate Court of Lagos State, where the respondent and some others were taken on the allegation of committing the offence of conspiracy to commit treason and actually committing treasonable felony. The respondent with the others were arrested and detained at the Police Criminal Investigation Department, CID, Alagbon Lagos on 12th of January 1997. The respondent sought bail, but the appellant said she had no jurisdiction to entertain the application for bail, and remanded the respondent in custody. As a result of this refusal of bail and the remand in custody, the respondent sought a judicial review in the High Court. The learned judge ruled that by virtue of Section 236 (3) of the Criminal Procedure Law, the 1st appellant was authorized to remand persons who may have been arrested for indictable offence. Dissatisfied with the decision, the respondent appealed to the Court of Appeal, who in turn allowed the appeal. The respondents in that appeal have now appealed to this court, having been aggrieved by the decision of the Court of Appeal. In the High Court of Lagos State, Ikeja Division, the appellant filed and moved a motion on notice pursuant to Order 1, Rule 2 and 6, and Order 3 of the Fundamental Rights (Enforcement-Procedure) Rules 1979, for the following reliefs:

“1. A DECLARATION that the arraignment of the Applicant before a court without jurisdiction in charge No. MIK/A/100/97 and the order remanding him in custody made on the 12th March, 1997 by E. A. Lufadeju (Mrs.) Chief Magistrate Grade I are unconstitutional and violate Applicant’s right to liberty and fair hearing under Sections 32 and 33 respectively of 1979 Constitution.

2. AN ORDER removing into this Honorable Court the proceedings comprised in charge No. MIK/A/100/97 Specifically the remand Order of 12th March, 1997. “Accuseds are to be remanded at Force C.I.D. Alagbon meanwhile” to be quashed forthwith.
3. AN ORDER releasing the Applicant from illegal detention forthwith. 4. N5 million being compensation/damages for Applicant’s illegal detention.

GROUND UPON WHICH THE RELIEFS ARE SOUGHT

1. The Chief Magistrate has no jurisdiction to try a charge of treason.
2. The arraignment of the Applicant before a Chief Magistrate for a capital offence is wrongful and unconditional.
3. The remand of the Applicant in force or other custody by a court without jurisdiction to try the charge is unconditional and violates Applicant’s right to personal liberty.”

The verifying affidavit sworn to by one Sam Amadi contain inter alia the following salient depositions:

“4. The Applicant was arrested on 12th January, 1979 at his residence, No. 2, Olufemi Adebanjo Street, Sango-Ota by a team of Policemen. He was severely beaten and later taken to Force C.I.D. Alagbon in handcuff.

5. On 13th January, 1997, the Applicant while still in detention in Alagbon was asked to make statement about one Adewale as a supplier of Computers, when he (the Applicant) needed some Computers.
6. The Applicant has been in detention in the Force C.I.D. cell, Alagbon since his arrest.
7. On the 12th March, 1979, the Applicant and 12 others were charged before an Ikeja Chief Magistrate for conspiracy and treason. Attached as Exhibit BJ 1 is a copy of the charge sheet.
8. The Chief Magistrate after declaring she had no jurisdiction to try the charge Ordered that the Applicant be remanded in custody of the Force C.I.D. Alagbon, where the Applicant is presently detained. Attached herewith is Exhibit BJ2 a copy of the order.
9. The Applicant has suffered grave hardship financial loss and his family life is deteriorating because of his detention. Learned counsel made their submissions which the learned trial judge considered, and at the end of the day dismissed the applicant’s application.

The applicant was not happy with the turn of events, so he appealed to the Lagos Division of the Court of Appeal, where he argued his appeal based on a bundle of documents, after an order of departure from the rules had been obtained. The appeal succeeded and the learned Justices of the Court of Appeal nullified the proceedings of the learned Chief Magistrate which remanded the applicant/respondent, (as is contained in the following excerpt of the lead judgment) which reads thus:

“From the foregoing I must say that this is a proper case for certiorari. The learned judge was not right, to have upheld the remand of the Appellant by the Chief Magistrate. There is clearly jurisdictional error on the face of the record of proceedings. She had no jurisdiction as admitted by her. She unlawfully used the concept of holding charge to remand the appellant. Where an inferior court exceeds its jurisdiction, its proceedings are a nullity and a superior court has jurisdiction to annul it. Accordingly, I hereby set aside both the order of the learned Chief Magistrate remanding the Appellant at Force C.I.D. Alagbon Close, Lagos and the ruling of the Lagos State High Court on 3/6/97.”

Dissatisfied with the decision of the Court of Appeal, the present appellants appealed to this court on four grounds of appeal. In accordance with the rule of the court, Learned counsel exchanged briefs of argument, which were adopted at the hearing of the appeal. The following issues for determination were raised in the appellants’ brief of argument:

“1. Whether the Court of Appeal was right to hold that the proceedings before the 1st Appellant on the 12th of March, 1997 was an arraignment proceeding as opposed to a remand proceeding and that consequently once the 1st Appellant lacked jurisdiction to try the respondent for treasonable felony she could not remand him under Section 236 (3) of the Criminal Procedure Law.

2. Whether the Court of Appeal was right to hold that Section 236 (3) of the Criminal Procedure Law Cap 32 Volume 2 Laws of Lagos State, 1994 is in direct conflict with Section 32 of the 1979 Constitution of the Federal Republic of Nigeria (now Section 35 of the 1999 Constitution) and other relevant constitutional provisions and whether the above-mentioned Section 236 (3) of the CPL is in effect unconstitutional.”

In his own brief of argument, the respondent formulated the following issues:

“(1) Was the Court of Appeal right to hold that the proceedings leading to the order of remand made by the 1st Appellant against the Respondent is an arraignment proceeding not within the purview of Section 236 (3) CPL and that the consequent remand order by the 1st Appellant was a nullity having declined jurisdiction to try the offence of conspiracy to commit treason and treasonable felony.

2. Was the Court of Appeal right to declare the provisions of Section 236 (3) CPL unconditional for impacting on the Respondent’s constitutionally guarantee right as contained in Section 32 (I) (c), Section 33 (4), (5) and (6) of the 1979 Constitution and Article 7(1) (b) and (d) of the African Charter on Human and Peoples’ Right.”

The treatment of this appeal will be based on the appellants issues supra, starting with issue (1). I will commence by reproducing the provision of Section 236 (3) of the Criminal Procedure Law Cap. 32, Volume 2 Laws of Lagos State 1994 hereunder. It reads:-

“If any person arrested for any indictable offence is brought before any Magistrate for remand such Magistrate shall remand such person in custody or where applicable grant bail to him pending the arraignment of such person before the appropriate court or tribunal for trial.”