Minister of Internal Affairs & Ors V. Edmund Okoro & Ors (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

This appeal is against the ruling of Ajakaiye, J. of the Federal High Court, Enugu delivered on 23-1-2001. The ruling was on a motion on notice filed by the respondents in this appeal as applicants seeking the following relief:-
“An order of mandamus against the 1st respondent directing him to give effect to presidential amnesty granted to death row inmates, which include the applicants, by the President of Federal Republic of Nigeria on the 4th of January, 2000”.

The application was supported by the statement of the applicants and a 13 paragraph affidavit. The respondents who opposed the application filed a 6 paragraph counter affidavit while the applicants on being served with the counter affidavit filed a further 7 paragraph affidavit in support of their application. Thereafter, learned counsel on both sides filed written addresses containing their arguments in support of and in opposing the application. After considering the facts and the submissions of learned counsel, the learned trial Judge delivered his ruling on 23-1-2001 granting the application in the following terms:
“As I have said earlier, the applicants are entitled to have their period of detention calculated from the date of detention and not of conviction. There is no evidence of the dates before me. Because of this, I am handicapped in making specific orders relating to their release or commutation. However, the respondents are hereby ordered to make their computation to be in accordance with my finding in this ruling and take action accordingly with respect to each of the applicants. For the avoidance of doubt and for the purpose of emphasis, each of the 70 applicants (sic) are to have been in prison custody from the date they were first detained there and they shall be dealt with accordingly”.

The respondents to the application who are now the appellants in this appeal, were not happy with this ruling of the court below and have therefore decided to appeal against it. The two original grounds of appeal without their particulars as contained in the notice of appeal dated 23-2-2001 are:-

1. The learned trial Judge erred in law when he interpreted the presidential instrument of pardon which states inter alia that, ‘Deathrow inmates who served 20 years and above in prison custody to be released unconditionally from prison, custody’ to mean that prisoners on Deathrow who have spent 20 years inclusive of awaiting trial period and above in prison custody should be released immediately.

2. The learned trial Judge erred in law when he ordered the respondents and not the applicants to make their computation to start from the date of detention and not of conviction”.

On the application of the appellants before this court dated 23-8-2002, this court granted leave to the appellants to file and argue one additional ground of appeal which reads:-
“The learned trial Judge of the Federal High Court erred in law in assuming jurisdiction to entertain the application before him for an order of mandamus without proof of breach of legal right that can only be remedied by order of mandamus.

Particulars of Error
a. Most of the applicants were convicted for offences created by section 319 of the State Criminal Code and may only be granted pardon by the Governor of State under section 212 of the 1999 Constitution, while Mr. President may only grant pardon for offences created by an Act of the National Assembly under section 175 of the 1999 Constitution.
b.    It is settled law that on the application for a writ of mandamus the court must be satisfied first that the respondent has a duty of a public nature to perform.
c.    An order of mandamus is not an appropriate and adequate remedy in the instant case as the respondent has the other lawful and effective remedy under Order 2 rule 2 of the Federal High Court (Civil Procedure) Rules, 2000.

Thus, based on the 3 grounds of appeal filed by the appellants, the appellants’ brief of argument and the respondents’ brief of argument were duly filed and served in compliance with the rules of this court.

In the appellants brief of argument, the following 4 issues were distilled for the determination of the appeal.
“1. Whether an application for an order of mandamus can lie where there is no legal right.
2. Whether the 20 years and above should be calculated from the date of 1st detention in custody or date of conviction.
3. Whether having rejected the calculation based on the date of conviction in the instrument of pardon, the court was competent to make the ruling of 23-1-2001 without any evidence supporting the ruling.
4. Whether the burden of proof of the date of 1st admission in prison custody lies with the appellants/respondents or the respondents.”

In the respondents’ brief of argument however 2 issues for the determination of the appeal were formulated from the grounds of appeal filed by the appellants. The 2 issues are:-
“1. Whether the term in ‘prison custody’ should take effect from the date of 1st admission or date of conviction in determining whether the respondents are entitled to the presidential amnesty.
2. Whether there exist distinction between Federal prisoners and State prisoners having regard to the Constitution of the Federal Republic of Nigeria which confines prison to the Exclusive List of the Federal Government.”

The brief facts of this case are that on 4-1-2000 the President of the Federal Republic of Nigeria, His Excellency, Chief Olusegun Obasanjo in exercise of his powers under section 175 of the 1999 Constitution was said to have granted presidential amnesty or pardon of unconditional release to all prisoners who have spent 20 years and above on death roll, while the death sentence of condemned convicts who have spent a minimum of 10 years but not up to 20 years in prison custody was commuted to life imprisonment.

The said instrument of pardon which the respondents exhibited to their affidavit in support of their application as exhibit O.K.2 is in the form of a written telephone message dated 3-4-2000 from the Comptroller General of Prisons, Abuja to the Comptroller of Prisons, Enugu containing the said terms and beneficiaries of the presidential amnesty or order for implementation. The 2nd appellant in his capacity as the Comptroller of Prisons, Enugu, implemented the terms of the said pardon as directed in the message.

However, the respondents who claimed to be beneficiaries of the said presidential amnesty or pardon of 4-1-2000 but who were yet to reap its benefits, went to the Federal High Court, Enugu and sought for an order of mandamus against the respondents praying the court to direct the calculation of “CC on death roll who have spent 20 years and above in prison custody” to start from date of 1st detention in prison custody. In spite of the apparent difficulties faced by the learned trial Judge in finding evidence to support his orders, all the same he proceeded and granted the respondents’ relief.