Loveday Samuel V. The Controller Of Prisons, Federal Prisons, Uyo, Akwa Ibom State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Akwa Ibom State, sitting at Ikot Ekpene, delivered on 15/12/2011, in which the learned trial Judge refused the grant of bail to the Appellant.

The Appellant was charged in PMC/1938C/2009: COP V. GEORGE ADUMU & 3 ORS as the 3rd accused person along with three other persons in the Magistrate Court of Rivers State, for the offences of conspiracy, cultism, threatening violence, threat to kill, illegal possession of firearms, and, attempt to kidnap; contrary to Section 516A (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 3 of 2009 and Section 3(1) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.

The Appellant and other accused persons were arraigned on 22/2/2009 before the Magistrate Court. The learned Magistrate declined jurisdiction and ordered that the case file be transmitted to the Director, Public Prosecutions (DPP) for legal advice. He also ordered that the Appellant be remanded in the Federal Prisons, Port Harcourt. While he was in custody, the 3rd Respondent filed another charge, PMC/26C/2010: COP V. GEORGE ADUMU & 3 ORS. The Appellant was arraigned before another Magistrate Court. The learned Magistrate also declined jurisdiction and also ordered the Appellant to be remanded in prison custody.

He also ordered that the case file be duplicated and sent to the DPP for legal advice. The Appellant and other co-accused persons were transferred to various Federal prisons. The Appellant was transferred to Uyo Federal Prison.

On 6/12/2011, the Appellant filed an application to enforce his fundamental rights at the High Court, Akwa Ibom State, sitting at Ikot Ekpene. The Appellant also filed a motion ex parte for bail under Order IV of the Fundamental Rights (Enforcement Procedure) Rules, 2009.

On 15/12/2011, the learned trial Judge refused the application for bail and dismissed the entire suit for want of jurisdiction. The Appellant, being dissatisfied with the Ruling/Judgment filed this appeal.

The Appellant’s Brief of Argument was filed by George T. Ogara, Esq., on 27/6/2012.The Respondent’s Brief of Argument was filed by I. Otorubio, Esq., Director, Public Prosecution, Ministry of Justice, Rivers State on 4/12/2012 and deemed on 25/3/2013. The Appellant’s Reply Brief was filed on 21/3/2013 and deemed on 25/3/2013. Learned Counsel for the respective parties adopted their briefs on 25/3/2013.

The sole issue raised for determination by the Appellant is:

Whether the trial Court has jurisdiction to enforce the appellant’s right to liberty, while being confined at the Federal Prisons, Uyo, Akwa Ibom State.

For the Respondents a similar issue was raised as follows:

Whether in the circumstances of this case the Honourable trial judge was right in refusing to enforce the appellant’s fundamental rights when he has no jurisdiction to entertain the application.

The Appellant submitted that by the provisions of Section 46(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended, the State High Court or Federal High Court within that State where the violation of Fundamental rights enforcement of fundamental rights has occurred or is occurring has jurisdiction to entertain enforcement proceedings. He referred to the Affidavit evidence to submit that the Appellant has stated that he is currently detained at the Federal Prisons, Uyo, Akwa Ibom State, within the jurisdiction of the State High Court, Akwa Ibom State.

Learned Counsel for the Appellant had invited the Court to note that three separate private legal practitioners had filed five separate charges at the High Court of Rivers State without the Fiat of the Attorney-General of Rivers State. 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. He relied on the case of Military Administrator, Benue State v. Abayilo (2001) FWLR (PT 45) 602 at 617; George vs. Savannah Bank (2010) ALL FWLR (PT 508) 313 at 327, and submitted that the Federal High Court, Akwa Ibom State or, the State High Court, Akwa Ibom State, are the courts with jurisdiction to entertain the application of the Appellant to enforce his fundamental rights; and that it is immaterial that the cause of action arose in another State.