Attorney-general & Commissioner Of Justice, Kebbi State V. Hrh, Alhaji Al-mustapha Jokolo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

His Royal Highness Al-Mustapha Jokolo (1st respondent) was installed the 19th Emir of Gwandu in Kebbi State of Nigeria some years ago and remained so until the 3rd June, 2005 when the Governor of Kebbi State dethroned him and then banished him to Lafia and subsequently Obi in Nasarawa State of Nigeria. There he took ill and was being medically attended to at the Dalhatu Araf Specialist Hospital, Lafia.

His Royal Highness was in due course transferred to the National Hospital, Abuja for further treatment. On Wednesday, 29th March, 2006 at about 1:30am the 1st respondent was forcefully removed presumably by agents of the appellant and the Governor of Kebbi State from his sick bed and handcuffed to Lafia and subsequently Obi in Nasarawa State. On 31st day of March, 2006 G.O. Imhanobe, Esq. sought and was granted an exparte application to enforce the fundamental rights of the Emir.

Upon grant of leave, the learned Counsel filed a motion on Notice supported by affidavit and Exhibits “A”-“F”. The motion was verified by a 20 paragraph affidavit deposed to by Umar Farouk Haliru on 6th April, 2006. The reliefs sought from the Federal High Court were as follows:

“1. AN ORDER of this Honourable Court for the enforcement of the Applicant’s Fundamental Human Rights to human dignity, personal liberty and right to freedom of movement as guaranteed under Section 34(1)(a), 35 and Section 41(1) of the Constitution of the Federal Republic of Nigeria, 1999 which has been and is still being violated by the Respondent.

2. A DECLARATION that the applicant is entitled to seek medical treatment in Nigeria or anywhere in the world.
3. AN ORDER of this Honourable Court directing the Respondents not to restrict, restrain or deprive the Applicant from seeking medical attention at the National Hospital, Abuja.
4. AN ORDER of this Honourable Court directing the Respondents not to restrict, restrain or deprive the Applicant from traveling to the United States to seek medical treatment with his consultant physician at the Howard University Hospital in Washington.
5. AN ORDER of this Honourable Court directing that even if any offence has been committed by the Applicant, the Applicant is entitled to a trial by a Court of competent jurisdiction and within a reasonable time.
6. And for such order or orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds for seeking reliefs are set out on the motion paper at pages at pages 53-54 of printed record as follows:

“1. On the 3rd day of June, 2005 the Government of Kebbi State deposed the Applicant from office as the Emir of Gwandu.

2. On the same day the (3rd day of June, 2005) the Applicant was banished to Obi in Nasarawa State.
3. The Applicant has a medical history of suffering from cardiovascular and prostrate problems.
4. The Applicant was denied medical attention until he complained to the Director-General of State Security Services in a letter dated 27th December, 2005 about his poor state of health.
5. The Applicant was admitted at the Dalhatu Araf Specialist Hospital, Lafia, Nasarawa State but later referred to the National Hospital, Abuja on the 31st January, 2006.
6. At the National Hospital, Abuja the Applicant was been treated by Dr. D.A. Osunkwo, Consultant physician.
7. On the 21st February, 2006, Dr. D.A. Osunkwo of the National Hospital, Abuja referred the Applicant to Howard University Hosptial in Washington, United State for further treatment.
8. On the 23rd day of February, 2006 the Howard University Hospital accepted to treat the Applicant of his illness.
9. While at the National Hospital, Abuja the Applicant was also being examined and attended to by Professor C. U. Abengowe, OON, Professor of Medicine and Cardiology.
10. In the middle of the night, at about 1:30am Wednesday, 29th March, 2006, the Respondents forcefully removed the Applicant from his sick bed at the National Hospital to Lafia, and from there to Obi in Nasarawa State.
11. Arising from the abrupt discontinuance of his treatment and medication at the National Hospital, Abuja the Applicant has suffered serious damage to his health.
12. Professor C.U. Abengowe, OON, has recommended that the Applicant should continue with the medicines he is taking in the ward.
13. Unless he immediately returned to the National Hospital to continue his treatment he may die.”

One Mr. M. J. Agum, a State Counsel in the Chambers of the Attorney-General, Ministry of Justice, Nasarawa State, deposed to a Counter Affidavit on behalf of the Attorney-General and Commissioner of Justice, Nasarawa State admitting the fact that the Emir was deposed by the Governor of Kebbi State in June, 2005 and banished to Obi in Nasarawa State to avert break down of law and order. That the Emir was given adequate medical attention at Dalhatu Araf Specialist Hospital Lafia and at appropriate occasions referred to the National Hospital, Abuja.

The respondents intended to continue doing so in the future. The deponent swore that the Emir had not requested for medical treatment outside the country nor had he informed the Nasarawa State Government of any such need. It was also sworn that the fundamental rights of the Emir were never breached as his banishment to Nasarawa State was for overriding reasons of public security, peace, law and order because of his anti-people, anti-government activities and utterances which he was using to heat the polity and incite the people against the government of Kebbi State.

On 28th April, 2006 a notice of preliminary objection was filed on behalf of the Attorney-General of Kebbi State by the Chambers of Rickey Tarfa & Co. challenging the jurisdiction of the Federal High Court, Abuja to entertain the originating summons. The learned Federal Judge heard argument from learned Counsel before dismissing all the objections on 24th November, 2006. Thereafter his Lordship considered the substantive application on the merit before making the following orders in favour of the 1st respondent on 9th March, 2007 to wit:

“From the foregoing and the circumstances of this case therefore, this application is granted in the following terms. I grant reliefs 1 and 3 as prayed. Relief 2 is granted without the words “or anywhere in the World.” For relief 4, the order sought is that Respondents should not restrict, restrain or deprive the applicant from traveling to the United States University Hospital in Washington. The Respondents are Law Officers and law enforcement agents.

They have constitutional obligations to safeguard peace and order and prevent or prosecute any breach of the law. Granting the relief 4 will be granting an automotive bar to their reaching the applicant if their duties call for it, that relief not granted. Relief 5 which is presumptuous is not a competent relief. That relief is therefore to be struck out and it is hereby struck out. All in all, the reliefs granted are reliefs 1, 2 and 3 as specified in this ruling.”

Being aggrieved the Attorney-General and Commissioner for Justice, Kebbi State filed a Notice of Appeal against the ruling on 8th April, 2009. The lone ground of appeal reads as follows:

“GROUND ONE: