Wellborn Isaiah 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 of 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 VS. GEORGE ADUMU & 3 ORS as the 2nd 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 5164(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 VS. 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, Akwo Ibom State, sitting of Ikot Ekpene. The Appellant also filed a motion exparte 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 appellants 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 of 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 of 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 vs. 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. It is submitted that the continuous detention of the Appellant without trial is currently taking place in Akwa Ibom State; and that the State High Court, Akwo Ibom State, has jurisdiction to entertain the application of the Appellant to enforce his fundamental rights. It is further submitted that it is immaterial that the Suit was commenced in Uyo Judicial Division of the High Court of Akwa Ibom State; or, in Ikot Ekpene Judicial Division of the High Court of Akwo Ibom State: relying on Gafar vs. Government of Kwara State (2007) 1-2 SC 189 of 200. The Court is urged to allow the appeal.

The Respondents submit that an application for bail under the Fundamental Rights (Enforcement Procedure) Rules 2009 presupposes that the Applicant has not been charged or arraigned before any court of law from the time of his arrest up until the time the application is made, relying on Ushae vs. Commissioner of Police, Cross River State Command (2006) ALL FWLR (PT 313) 86 at 100. But, that the Appellant admits that he was validly charged and arraigned in Charge No: PMC/1938C/2010: COP VS. GEORGE ADUMU & 3 ORS; and Charge No: PMC/26C/2010: COP VS. GEORGE ADUMU & 3 ORS. That the Appellant also admitted in Exhibits D, E, F, G and H annexed to the further affidavit in support of his motion for bail filed on 27/6/2012 before this Court that he has been charged before the Port Harcourt High Courts 1, 10, and 11 for the capital offences of murder and armed robbery among other offences. It is submitted that the Appellant is currently alongside other co-accused persons, standing trial in (a.) Charge No PHC/337CR/2010, THE STATE VS. GEORGE ADUMU & 3 ORS for the capital offence of armed robbery among other at the Port Harcourt High Court No 10; (b). Charge No PHC/338CP/2010, THE STATE V5.GEORGE ADUMU & 3 ORS for the offence of kidnapping, among other at the Port Harcourt High Court No 1; (c).Charge No PHC/348CR/2010, THE STATE VS. GEORGE ADUMU & 3 ORS for participation in secret cult activities among other offences at the Port Harcourt High Court No 1; (d) Charge No PHC/348CR/2010, THE STATE VS. GEORGE ADUMU & 3 ORS for the capital offence of murder among other offences at the Port Harcourt High Court No 11; and, (e) Charge No PHC/349CR/2010, THE STATE VS. GEOROE ADUMU & 3 ORS for the offence of threatening violence, attempted kidnapping, illegal possession of firearms among other at the Port Harcourt High Court No 1. It is submitted that the Appellant being in custody is by reason of these pending charges. The Court is urged to hold, relying on the Appellant’s motion on notice for bail, the Respondents’ counter affidavit in opposition as well as the Exhibits annexed thereto, that the Appellant has been validly charged or arraigned before a Court of competent jurisdiction for the capital offences of murder, armed robbery, among others; and, is facing trial presently alongside other co-accused persons. It is submitted that these facts have been admitted of paragraphs 16 and 16(a) of the supporting affidavit of the motion for bail and in paragraphs 15(e), (f), (q), (v) and (w) of the Respondents’ counter affidavit. Relying on the case of Agbareh vs. Mimra (2008) 1 SC (PT.111) 88, it is submitted that the bail application was rightly refused by the trial judge.