George Adumu V. The Comptroller Of Prisons, Federal Prisons, Aba & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Federal High Court, Umuahia, presided over by Hon. Justice M. G. Umar, delivered on the 1st day of March, 2012, wherein the Learned trial Judge ordered that the suit be transferred to the Port Harcourt Judicial Division of the Federal High Court where the alleged infringement was alleged to have occurred.

A synopsis of the facts leading to this appeal according to the Learned Counsel for the Appellant, Mr. George T. Ogara, Esq., are that the Appellant was the accused person at the Magistrate Court of Rivers State in the Port Harcourt Magisterial District before His Worship B. G. Macfarlene, for the offences of conspiracy, cultism, threatening violence, threat to kill, illegal possession of firearm and attempted kidnap contrary to sections 516 (A) and (a) and 86 of the Criminal Code Law, Cap 37, Vol. 11, Laws of Rivers State, 1999, Section 1(a) of the Secret Cult and Similar Activities (Prohibition) Law No. 6 of Rivers State, 2004, Section 2 of the Rivers State kidnap (prohibition) Law No. 3 of 2009 and Section 3(1) of the Robbery and Firearms (special provisions) Act Cap R11, laws of the Federation of Nigeria, 2004.

By the particulars of count one, two, three and four in charge No. PCM/1938C/2009; Commissioner of Police vs. George Adumu & 3 Ors, the Appellant and three others were alleged to have conspired to participate in secret cult activities, participated as a member in the activities of secret cult, conspired to threaten violence and threatened to kill one Dr. Davies Ikanya respectively.

That by the particulars of count one, two, three, four, five and six in charge No. PMC/26C/2010; Commissioner of Police vs. George Adumu & 3 Ors, the Appellant and three others were alleged to have conspired to participate in secret cult activities, participated as a member in the activities of secret cult, conspired to threaten violence, threatened to kill Mr. Isaiah Jehoshaphat Naaman, illegally possessed firearms and attempted to kidnap Isaiah Jehoshaphat Naaman respectively.

That on the 22/2/2009, the Appellant was arraigned in Court in respect of PMC/1938C/2009, wherein the Learned Magistrate declined jurisdiction and transmitted the case file to the office of the Director of Public Prosecutions for further advice, and the Appellant was remanded in prison custody at Federal Prison, Port Harcourt, Rivers State.

That while the Appellant was still at the Federal Prisons, Port Harcourt, the 3rd Respondent filed another charge No. PMC/26C/2010; C.O.P. vs. George Adumu & 3 Ors and the Learned Magistrate E.C. Woke, Esq. remanded the Appellant in prison custody.

That the 2nd Respondent frustrated the possibility of the trial of the Appellant and his co-accused persons by randomly transferring the Appellant and co-accused persons to Aba Prison, Uyo Prison, Owerri Prison and Calabar Prison between February, 2010 and October, 2011. That currently, the Appellant is in Aba Prison, Abia State.

Mr. Ogara, Esq. also stated that three legal practitioners filed five separate charges at the High Court of Rivers State of Nigeria without the fiat of the Attorney General of Rivers state. He thus submitted that since the Appellant was remanded in prison custody on 22/2/2009, no valid charge has been filed in a Court of competent jurisdiction.

The case of the 3rd Respondent on the other hand is that the Appellant together with Wellborn Isaiah and Luke Loveday Samuel are presently standing trial on three (3) different charges pending before the High Court of Justice, Port Harcourt namely charge numbers PHC/337CR/2010: The State vs. George Adumu & 3 Ors; PHC/348CR/2010: The State vs. George Adumu & 3 Ors and PHC/349CR/2010.The State vs. George Adumu & 3 Ors.

Mr. Aguma Esq. for the 3rd Respondent stated that the Hon. Attorney General of Rivers State vide a letter Reference No. MJ/HAG/C.518/T/1 dated 2nd day of March, 20L2 did grant to Emmanuel C. Aguma, Esq. and Casmir P. Oguguo, Esq authority to represent the 3rd Respondent in this appeal.

He stated that the Appellant and other three (3) co-accused persons are standing trial for the capital offence of murder of various people named in the charges and of serious offences such as possession of firearms, attempted kidnap, participation in Secret Cult activities among other offences and that the charges are pending before High Court Nos. 8, 10 and 1 in Port Harcourt Rivers State. That the charge No. PHC/337CR/2010 has given rise to several interlocutory appeals at the Court of Appeal, Port Harcourt including Appeal No. CA/PH/156/2011: George Adumu vs. State, and Appeal No. CA/PH/103A-C/2010: George Adumu vs. The State which appeals are still pending at the Court of Appeal, Port Harcourt till date. That the accused persons in the charges are represented by Alhaji F. A. Oso, SAN. That the accused persons have regularly attended the proceedings of the trial High Court in the charges. That no application for bail was made and also no any application to strike out the charges was made by the accused persons. He also stated that the subject matter of this appeal is not founded on the decision of the Lower Court touching on the incompetence of the aforesaid charges or lack of diligent prosecution of the charges as alleged or at all. That the accused persons in the charges aforementioned (inclusive of the Appellant) are in custody by reason of charge numbers: PHC/337/CR/2010; PHC/348CR/2010; and PHC/349CR/2010 and not charge sheet numbers: PMC/288c/2009; PMC/26C/2010, and that their incarceration in the charges aforementioned is not at the instance of the 3rd Respondent.

On 14th/11/2011, the Appellant through his Counsel filed an application for the enforcement of his fundamental human right, at the Federal High Court, Umuahia Judicial Division in Abia State before Hon. Justice M, G. Umar. The Appellant also filed a motion exparte for bail under Order IV Rules 3, 4(a), (b), (c), (i) (iv) & (v) of the Fundamental Right (Enforcement Procedure) Rules, 2009. On the 15th/11/2011 fixed for the motion ex parte for bail, the Learned trial Judge ordered that the Respondents be put on notice. On the 22/11/2011, the Appellant filed and served a motion on Notice for bail in compliance with the order of Court. On the 1/3/2012, fixed for the hearing for the motion of bail, the Learned trial Judge failed to consider the motion on notice for bail, declined jurisdiction and transferred the matter to Federal High Court, Port Harcourt Judicial Division.

He said as follows: