LUKE LOVEDAY v. THE COMPTROLLER OF PRISONS, FEDERAL PRISONS, ABA & ORS (2012)

LUKE LOVEDAY v. THE COMPTROLLER OF PRISONS, FEDERAL PRISONS, ABA & ORS

(2012)LCN/5440(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/OW/293/2011

RATIO

FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES: WHICH COURT HAS JURISDICTION UNDER THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES

The provisions of Order 1 Rule 2, Fundamental Rights (Enforcement Procedure) Rules defined Court to mean the Federal High Court or the High Court of a State. What this means is that both the Federal High Court and the High Court of a State have concurrent jurisdiction in matters of enforcement of fundamental right.PER UWANI MUSA ABBA AJI, J.C.A.

RULES MADE PURSUANT TO THE CONSTITUTION ALSO HAVE CONSTITUTIONAL FLAVOUR

It is also pertinent to state that it is trite that Rules made pursuant to the Constitutional provisions also possess Constitutional flavor, that is why they are special provisions.PER UWANI MUSA ABBA AJI, J.C.A.

FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES: THESE ARE SPECIAL TYPES OF PROCEEDINGS

It is trite that Fundamental Right (Enforcement Procedure) Rules are special type of proceedings. They are in special class of their own unlike the ordinary cases that run through our Courts daily, they are to be treated with due diligence and not to be handled anyhow. This is because, the object of enforcement of fundamental right is to provide a simple and effective process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. In the circumstance therefore, it is my humble view that the order of transfer made by the learned trial judge was a wrongful exercise of discretion. The Law is settled that the discretion of a Court must at all times be exercised not only judicially but judiciously on sufficient materials placed before it. See Udensi vs. Odusote (2003) 6 NWLR (PT.817) 545 at 558; Ogbuehi vs. Governor of Imo State (1995) 9 NWLR (PT.417) 53; University of Lagos vs. Aigoro (1985) 1 NWLR (PT.143) at 148.PER UWANI MUSA ABBA AJI, J.C.A.

APPEAL: AN APPELLATE COURT WILL ORDINARILY NOT INTERFERE IN THE DISCRETION OF THE LOWER COURT

An appellate Court will not ordinarily interfere with exercise of discretion by a Court except where the Court acted under a misconception of Law or under misrepresentation of fact in that it either gave way to irrelevant or unapproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all cases where it is in the interest of Juctice to interfere. See Global Scene Ltd. vs. The Registrar of Trade Marks & Anor. (2011) ALL FWLR (PT.558) 877 at 901; Ushae vs. C.O.P. Cross River State Command (2006) ALL FWLR 86 at 108.PER UWANI MUSA ABBA AJI, J.C.A.

FUNDAMENTAL RIGHTS PROCEDURE: COURT THAT HAS JURISDICTION

Section 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) prescribed the Court having jurisdiction to be the state in which the alleged violation is taking place and in the instant case, the allegation of violation of the Appellant’s right to liberty is his incarceration and his co-accused to various prisons in Nigeria which is far from the Courts where charges were allegedly filed in Rivers State Port Harcourt and without any trial since 22/10/2010. The Appellant being in custody of Abia prison, makes the Federal High Court, Umuahia, the appropriate venue for the enforcement of the Appellant’s fundamental right. The learned trial judge by taking into account where the cause of action arose in an enforcement of fundamental right action, acted under a misconception of Law and this Court will intervene and set aside the perverse judgment in the interest of Justice.PER UWANI MUSA ABBA AJI, J.C.A.

JURISDICTION: THE CLAIMS OF THE PLAINTIFF DETERMINES JURISDICTION
It is trite that it is the claims of the Plaintiff that determines jurisdiction. At page 29 of the records of appeal, the claims of the Appellant are:

1. A Declaration that the continued detention of the Applicant by the Respondents since 22nd December; 2009 till date is unconstitutional and a breach of the Applicant’s fundamental right to personal liberty.
2. An order directing the 1st and 2nd Respondents who are the officers in charge of the Federal Prisons, Aba and Port Harcourt to release the Applicant forthwith.PER UWANI MUSA ABBA AJI, J.C.A.

JURISDICTION: THE CONSIDERATION OF TERRITORIAL JURISDICTION

JURISDICTION: WHETHER A DECISION OF THE FEDERAL HIGH COURT TO TRANSFER AN APPLICATION TO ANOTHER DIVISION IS APPEALABLE
Considering the provisions of Section 22(1), (2), (3) and (4) of the Federal High Court Act (Supra), the decision of the Federal High Court to transfer the application to the Port Harcourt Division of the Federal High is an appealable decision. The word ‘decision’ in relation to a Court is defined in Section 318 of the 1999 Constitution (as amended) as any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. It is pertinent to note that Section 22(4) of the Federal High Court Act refers to the transfer carried out under subsections (2) and (3) of section 22 as not subject to appeal and clearly excluded subsection (1). It is trite that in the construction of statutes or Laws, what is excluded is not meant to be included. Subsection (1) is not subject to subsection 4 of Section 22 of the Act.PER UWANI MUSA ABBA AJI, J.C.A.

JUDGMENT: WHEN IS A DECISION SAID TO BE A FINAL DECISION

It is also settled that if any order, decision, or judgment of a Court finally and completely determines the rights of the parties in the case, it is a final decision. See Alor vs. Ngene (2001) 11 NWLR (Pt 1062) 163. In the instant case, the order of the Court made on the 1st March, 2012 transferring the matter to Port Harcourt Division of the Federal High Court is a final decision since the issue of transfer could no longer be raised before the same Court again. An order of Court is final when the rights of the parties concerning tire dispute before the Court are finally determined. The dispute which gave rise to this appeal is the issue of transfer which was finally determined when the transfer was made. I am fortified in this view with the decision of my learned brother, Galinje, JCA In Global Scene Ltd. vs. The Registrar of Trade Marks & Anr. (Supra) at page 895. See Alor vs. Ngene (2007) ALL FWLR (PT.362) 1836; Ogolo vs. Ogolo (2006) ALL FWLR (PT.313) 1 at 16 where it was held that a decision by a Court refusing an application to transfer a case is a final decision since it has finally determined the rights of the parties as to whether or not to transfer the case and that it did not matter that the decision arose from interlocutory application.The decision to transfer being a final decision is therefore subject to appeal by the party aggrieved.PER UWANI MUSA ABBA AJI, J.C.A.

Justice

UWANI MUSA ABBA AJI Juctice of The Court of Appeal of Nigeria

PHILOMENA M. EKPE Juctice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANI Juctice of The Court of Appeal of Nigeria

Between

LUKE LOVEDAYAppellant(s)

AND

1. THE COMPTROLLER OF PRISONS, FEDERAL PRISONS, ABA
2. THE COMPTROLLER OF PRISONS, FEDERAL PRISONS, PORT HARCOURT
3. THE COMMISSIONER OF POLICE, RIVER STATERespondent(s)

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. Juctice 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 Juctice, 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, 2012 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/337CR/2010; PHC/348CR/2010; and PHC349CR/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. Juctice 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 exparte 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:

“I have discovered that the offence for which the accused person is alleged to have committed leading to his arrest was committed in Rivers State.
The 2nd and 3rd Respondents are in Rivers State. The Applicant is only in custody in Abia State Prison in Aba.
I hereby transfer this matter to the Port Harcourt Judicial Division of the Federal High Court where the alleged infringement was alleged to have occurred.” (See page 50 of the supplementary record.)

Dissatisfied with the said Ruling, the Appellant on the 21/3/2012 filed a Notice of Appeal containing two Grounds of Appeal. The two Grounds of Appeal are hereunder reproduced including their particulars.

GROUND OFAPPEAL
GROUND ONE
The trial Court erred in law when it declined territorial Jurisdiction to entertain the Suit.

PARTICULARS OF ERRORS
(i) The trial Court ordered the appellant to file and serve Motion on Notice for bail on the respondent under the Fundamental Right (Enforcement Procedure) Rule, 2009.
(ii) The appellant is in custody in Abia State.
(iii) It is trite that the appellant is presumed innocent until proved guilty.
(iv) This approach affected to a very substantial extent the conclusion refusing the appellant bail upon the Motion Exparte filed under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

GROUND TWO
The trial Court erred in law when it failed to take into consideration the totality of the affidavit evidence in support of the application for bail before arriving at its decision declining territorial Jurisdiction and transferring the entire Suit.

PARTICULARS
(i) The trial Court Jurisdiction to entertain Suits under the Fundamental Rights (Enforcement Procedure) Rules, 2009 is based on where the applicant is being detained.
(ii) The Motion on Notice for bail is supported by Affidavit of Urgency.
(iii) The trial Court has a duty to entertain this Suit.

Parties filed and exchanged briefs of argument in accordance with the practice of the Court. The Appellant’s brief of argument is settled by George T. Ogara, Esq. Therein, the Appellant distilled a lone issue for determination to wit:

Whether the Court below was right in holding that the proper venue for the Appellant to enforce his fundamental right to liberty is at Rivers State where the cause of action arose.

It is pertinent to note that the 1st and 2nd Respondents did not contest this appeal and have not filed any process in respect thereof. This appeal is been determined on the basis of the Appellant’s brief of argument and that of the 3rd Respondent only.
In the 3rd Respondent’s brief of argument settled by Emmanuel C. Aguma, Esq. a lone issue was also distilled for determination, to wit:

Whether in the circumstances of this case, the Hon. Trial Judge was right in ordering/directing that the matter be transferred to the Port Harcourt Judicial Division of the Federal High Court?

At the hearing of the appeal on the 11th March, 2011, Learned Counsel for the Appellant, George T. Ogara, Esq. adopted and relied on the Appellant’s brief of argument dated the 16th July, 2012 and filed on the 17th July, 2012, the Appellant’s reply filed on the 6/3/13 and urged the Court to allow the appeal and grant the application for enforcement of fundamental right.
Emmanuel C. Aguma, Esq. for the 3rd Respondent adopted and relied on their brief of argument filed on the 11/12/2012 but deemed properly filed on the 19th/2/2013 and urged the Court to hold that the motion filed at the Lower Court is incompetent and to dismiss the appeal. The following additional authorities were relied upon in support of submissions under paragraph 4.20 of his brief thereof; Global Scene Ltd vs. The Registrar of Trade Marks (2011) ALL FWLR (PT 558) 877 at 905: Ibori vs. Federal Republic of Nigeria (2009) 3 NWLR (PT 1128) 283; and Mbadinuju vs. Independent Communications Network Ltd (2007) 15 NWLR (PT 1058) 524 at 535.

I have considered the issues formulated by the respective Counsel and I am of the view that the issue nominated by both the Appellant and the Respondent are the same in con, only that it is differently couched. I will adopt the issue nominated by the Appellant in the determination of this appeal. The issue is:

Whether the Court below was right in holding that the proper venue for the Appellant to enforce his fundamental right to liberty is at Rivers State where the cause of action arose.

In arguing this issue, Mr. Ogara, Esq. for the Appellant submitted proper venue for the enforcement of fundamental right signifies the limits of territorial jurisdiction of a Court. He referred to Section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended to submit that in any matter of fundamental right, the Federal High Court Division within that state or High Court of that state in which the violation of these rights is alleged to be occurring have concurrent jurisdiction to entertain the enforcement proceedings.
He submitted that, in the instant case, the Appellant has alleged in paragraph 11(c) and 12 of the affidavit of urgency (pages 5 – 6 of the records), paragraph 22(4)(b) of the affidavit in support of the motion (pages 10 – 11 of the records), paragraph 22(b) of the affidavit in support of motion on notice (pages 9 – 10 of the supplementary record) that the Appellant is currently being detained at Federal Prisons Aba, Abia State within the jurisdiction of the Federal High Court, Umuhia. It is submitted that with respect to enforcement of Fundamental right to freedom/liberty, the Fundamental Right (Enforcement Procedure) Rules, 2009 made pursuant to Section 46(3) of the 1999 Constitution as amended defines prison superintendent; and went further to submit that Section 42(i) of the 1979 Constitution which is impari material with Section 46(1) of the 1999 Constitution as amended has been interpreted in the case of The Military Administrator, Benue State vs. Captain Clement Abayilo (rtd) (2001) FWLR (PT.45) 602 at 617 and that the 1st Respondent is in charge of the prison in which the Appellant is restrained or confined in Aba, Abia State and the Law requires application to be made to a High Court/Federal High Court in that state. He also placed reliance on the case of Nelson Ogoh George vs. Savannah Bank of Nigeria, Plc. (2010) ALL FWLR (PT.508) 313 at 327 to also submit that in the enforcement of the Fundamental Right to freedom/liberty, only the Federal High Court Division in that state or the High Court in that state where the Appellant is detained or confined that has jurisdiction and that in the instant case, it is only the Federal High Court in Abia State or the High Court of Abia State that has jurisdiction to entertain the application and that it is immaterial the cause of action arose in another state. Learned Counsel also relied on the case of The Nigerian Navy & 2 Ors. vs. Lionel Okon Garrick (2006) ALL FWLR (PT. 315) 45 at 72 to submit that in the instant case, the Lower court took into account the subject matter of jurisdiction ignoring territorial jurisdiction to transfer the suit to Federal High court, Port Harcourt. It is his view that the Federal High Court, Port Harcourt in the instant case, may have subject matter jurisdiction but lacks the territorial jurisdiction to determine the suit. He referred to the case of The Military Administrator, Benue State vs. Captain Abayilo (Supra) at 618 to further submit that the Federal High Court, Umuahia wrongly divested itself of both subject matter jurisdiction and territorial jurisdiction by transferring the suit to Federal High Court, Port Harcourt, where the cause of action arose. He submitted that it is of no moment that there is only one Federal High Court in Nigeria, and referred to the case of Alhaji Sheu Abdulgafar vs. The Government of Kwara State (2007) 1 – 2 SC 189 at 200. He finally submitted that the Learned trial Court has jurisdiction to entertain the application for enforcement of fundamental right to freedom/liberty brought by the Appellant. He urged the court to allow the appeal and set aside the ruling of the trial Court and grant the motion for enforcement of fundamental right.

In his own response, Mr. Emmanuel C. Aguma, Esq. for the 3rd Respondent, submitted that the motion on notice filed by the Appellant is improper in Law. He submitted that the Appellant’s motion on notice for bail filed on 14th/11/2011 was brought, inter alia under the provisions of Order IV, Rules 34(a), (b), (c) (i), (iv) and (v) of the Fundamental Right (Enforcement Procedure) Rules, 2009 and this is a peculiar action as it is special. It is his view that for the Court to have jurisdiction, the procedure must be strictly followed. He relied on the case of Abia State University vs. Anyaibe (1996) 3 NWLR (PT.439) 640 at 660 – 661 and Section 35(1)(c) of the 1999 Constitution as amended.
Learned Counsel submitted that an application for bail under the Fundamental Right (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 to the time of the application. He relied on the cases of Ushae vs. C.O.P. Cross Rivers State Command (2006) ALL FWLR (PT.313) 86 at 100; and Ken Saro Wiwa vs. A.G. Federation (1995) 1 NWLR (PT.374) 759 at 764 – 765.
Learned Counsel further submitted that the Appellant admitted that he has been charged or arraigned initially at the Magistrate Court Port Harcourt for the offences inter alia, of membership of a secret cult and attempt to kidnap and subsequently at the Port Harcourt High Court numbers 1, 8 and 10 for the capital offence of murder among other offences. It is therefore his view that the Appellant is in custody by reason of 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. Georger Adumu & 3 Ors. and that the detention of the Appellant could not be said to be unlawful and or illegal as alleged by the Appellant.
Learned Counsel for the 3rd Respondent went further to argue that, looking at the Appellant’s motion on notice for bail pending Appeal as well as the 3rd Respondent’s counter Affidavit in opposition and Exhibits attached clearly shows that the Appellant has been validly charged or arraigned before a Court of competent jurisdiction for the capital offences of murder and armed robbery, and these facts having been admitted by the Appellant himself at paragraphs 18 and 19 of the affidavit in support of the motion on notice for bail pending appeal and that the Court is entitled to look at the record in the consideration of the appeal relying on Agbareh vs. Mimra (2008) 1 SC (PT 111) 88. He argued that the said motion yet to be heard and determined by the Lower Court is improper in law. Learned Counsel therefore submitted that, the Lower Court was right in ordering or directing that the matter inclusive of the motion for bail yet to be heard and determine be transferred to the Port Harcourt Judicial Division of up Federal High Court.
Learned counsel further submitted that the enabling statute creating the Lower Court, Federal High Court Act, Chapter F12 Volume 6, Laws of the Federation of Nigeria, 2004 empowers the Lower Court to make an order of transfer and or cause any matter pending before it to be transferred to any other judge of the Court, the appropriate High Court of a state or the Federal Capital Territory Abuja or the appropriate Judicial Division of the Court. He referred to Section 22(1), (2), (3) and (4) of the Federate High Court Act. He thus submitted that Lower Court has the power and the jurisdiction to make an order of transfer and that the said order of transfer cannot be subject of appeal and that this appeal is lacking in merit and competence and the Court was urged to so hold as what the Learned trial Judge did was an honest exercise of discretion in line with the spirit and letters of the provisions of Section 22(1), (2) and (3) of the Federal High court Act Laws of the Federation of Nigeria 2004 and order IV Rule 4(c) (v) of the Fundamental Right (Enforcement Procedure) Rules 2009. Learned Counsel therefore submitted that where a judicial discretion has been exercised bonafide, uninfluenced by any irrelevant considerations and not arbitrarily or illegally, the general rule is that an Appellant Court will not ordinarily interfere. He submitted that legal discretion or what is termed in Latin maxim as “Legalis Discretio” requires a Court or a judge to administer Juctice according to prescribed Rules of Law. He cited and relied on the cases of Ebe vs. Commissioner of Police (2008) 1 SC (PT 11) 194; Dokubo Asari vs. F.R.N. (2007) 5 – 6 SC 150. The Court was urged to affirm the order made by the trial Court transferring the matter to the Port Harcourt Division of the Federal High Court.

In reply on points of Law, Mr. Ogara, Esq. for the Appellant submitted that the submission of the Respondent’s Counsel at paragraphs 4.20 and 4.21 that the transfer was an honest exercise of discretion in line with the spirit and letters of the provisions of Section 22(1), (2) and (3) of the Federal High Court, referred to the said provisions of Section 22(1), (2), (3), (4) and (5) and submitted that Section 22(1), (2), (3), (4) and (5) is inapplicable to the facts of this case. He submitted that the exercise of power of transfer under Section 22(1) of the Act is discretionary and that the Law is settled that the discretion of a Court must at all times be exercised not only judicially but also judiciously and relied on the following cases: Global Scene Ltd vs. The Registrar of Trade Marks & Anor (2011) ALL FWLR (PT 558) 877 at 900; Udensi vs. Odusole (2003) 6 NWLR (PT 817) 545 at 558; Ogbuehi vs. Governor Imo State (1995) 4 NWLR (PT 417) 53 and University of Lagos vs. M. I. Aigoro (1985) 1 NWLR (PT 1) 143 at 148. Learned Counsel further submitted that the Court of Appeal will not interfere with the exercise of discretion by Court unless the Court acted under a misrepresentation of law or under misapprehension of fact in that it either gave way to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercise or failed to exercise the discretion on wrong or inadequate materials and in all cases where it is in the interest of Juctice to interfere. Learned Counsel submitted that in enforcement of fundamental right applications, Section 46(1) and (2) of the 1999 Constitution as amended prescribed the Court having jurisdiction to be the state High Court in which the alleged violation has taken place and the Learned trial Judge misconceived the application of the Appellant to be an application brought under the regular Criminal Procedure Laws.
The Appellant’s Counsel also submitted that the allegation of violation of the Appellant’s right to liberty is the incarceration of the Appellant and his co-accused in various prisons in Nigeria which is far from the Courts where charges were purportedly filed and without any trial since 22/10/2010 and that the distances between the prisons and the place of trial has made it impossible for trial to commence in any of the charges. He referred to the case of Agagu vs. Mimiko (2009) 7 NWLR (PT.1140) 342 at 409 to submit that the Court has powers to take judicial notice of distances and submitted further that distances between where the Appellant is kept in custody and his co-accused has made it impossible for trial of the case and hence the violation of his Fundamental Right to liberty. He also submitted that the Appellant being in custody at Abia prison, makes the Federal High Court, Umuahia the appropriate venue for the enforcement of his fundamental right and that the transfer will further delay the hearing of the application. Learned Counsel thus urged the Court to hold that in the exercise of its discretionary powers of transfer, the trial Court misconceived the provisions of the Constitution of Nigeria as it relates to venue for enforcement of fundamental right. We were urged to grant the relief sought.

On the argument of the Learned Counsel for the Respondent at paragraph 4.13 at page 7 the effect that the order of transfer made by the Lower Court will not be subject to appeal, Learned Counsel submitted that Section 22(4) of the Federal High Court Act does not apply to Section 22(1) of the said Act and that the ruling of the trial Court transferring the Suit to the Federal High Court, Port Harcourt is an appealable decision. He cited Section 241(1) (a) of the 1999 Constitution to submit that the Constitution has provided for an appeal as of right and that the order of 1st March, 2012 is a final decision. He referred to the following cases: Global Scene Ltd. v. The Registrar of Trade Marks & Anor. (Supra) and Chief L.L.B. Ogolo vs. Joseph T. Ogola (2006) ALL FWLR (PT.313) 1 at 16. He further submitted that assuming that Section 22(4) of the Federal High Court applies to Section 22(1) of the Federal High Court Act, that such a provision of the Rule of the Federal High Court has been held to be inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 and placed reliance again on Global Scene Ltd. vs. The Registrar Trade Mark (Supra) at page 896 to urge the Court to hold that if Section 22(4) of the Act applies to the instant suit, then the said provision is inconsistent with Section 241(1)(a) of the 1999 Constitution.
On the Respondent’s argument at paragraph 4.6 at page 6 of the brief that the Appellant admits that he has been charged and or arraigned initially before a Magistrate Court for offences inter alia of membership of a secret cult and attempt to kidnap, it is submitted that the provisions of Section 46(1) and (2) of the Constitution 1999 has taken away the jurisdiction of the Courts in the states in which the cause of action arose to the states in which the alleged violation of right is alleged to have occurred or occurring or likely to occur. Reliance was also placed on the case of Mrs. Matilda Aderonke Dairo vs. Union Bank of Nigeria Plc. (2007) ALL FWLR (PT.592) 1846 at 1884 and urged the Court to hold that the jurisdiction in enforcement of fundamental right proceeding has been taken away by Section 46(1)(2) of the Constitution from the State where the cause of action arose to the state where the breach is occurring.
Learned Counsel further urged the Court to look into its records to determine the validity of the charges filed at the High Court of Rivers State of Nigeria to hold that the charges were filed by private legal practitioners without the fiat of the Attorney General of Rivers State; as the Appellant has filed a motion challenging the validity of the charges filed. We were urged to resolve the issue in favour of the Appellant.

I have dispassionably considered albeit critically the submissions of Learned Counsel for the Appellant on the lone issue nominated for determination of the appeal and the response of Learned Counsel for the Respondent. I have also considered the authorities relied upon by both Counsel in support of their respective stands. The crux of the matter is whether the proper venue for the Appellant to enforce his fundamental right to liberty is at Rivers State where the cause of action arose or at the place of his detention being Abia State.
Both Learned Counsel for the Appellant and that of the 3rd Respondent raised so many salient issues in the course of their submissions that are not issues raised for determination in this appeal.
It is contended by the Learned Counsel for the Appellant that three legal private legal practitioners filed five separate charges at the High Court of Rivers State without the fiat of the Attorney General of Rivers State. That the Appellant has been remanded in prison custody since the 22/2/2009 and no valid charge has been filed in a Court of competent jurisdiction. This issue was duly responded to by the Learned Counsel for the Respondent in his brief of argument.
Mr. Aguma, Esq. for the Respondent also challenged the competence or otherwise of the motion filed before the Lower Court, the subject of the present appeal. It is clear that these issues, that is, whether the Attorney-General Rivers State has given his fiat to prosecute the Appellant and his co-accused persons or not, the issue of whether valid charge has been brought against the Appellant and his co-accused before the High Court of Rivers State or not and or whether the charges were unlawful or illegal are not issues raised for determination in this appeal nor covered by any of the two grounds of appeal filed by the Appellant nor the issue distilled therefore for determination. The issues are raised for the first time in this appeal. They were neither raised nor decided upon by the Federal High Court, Umuahia from where the instant appeal arose. No leave was sought to raise these fresh issues in this appeal. A party is not entitled to raise fresh issue on appeal without the leave of the Court being first sought for and granted. This is because the jurisdiction of the Court of Appeal is primarily to review by way of rehearing the decision or decisions of the Lower Court. The rationale behind this is that the Court below must have been given the opportunity to pronounce on the issue to avail the Appeal Court of its decision on the matter and to enable the Appeal Court review the Lower Court’s pronouncement on the same judiciously. In the instant case, the issues are stated above were raised for the first time by Learned Counsel for the Appellant and also the Respondent in their briefs of argument without leave of this Court are grossly incompetent. See Nefufo vs. Omoolum (2005) ALL FWLR (PT.291) 1692; (2005) 12 NWLR (PT.938) 1; Mahattan vs. Co-op. Dev. Bank Plc. (2009) ALL FWLR (PT.483) 1381.

Now, Section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
46(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.
The above provision has been judicially interpreted by both the Supreme Court and the Court of Appeal. See Odutola vs. University of Ilorin (2004) 18 NWLR (PT.905) 416; Jack vs. University of Agriculture, Makurdi (2004) 5 NWLR (PT.865) 208; Zakari vs. IGP (2000) 8 NWLR (PT.670) 666; and The Nigerian Navy vs. Garrick (2006) 4 NWLR (PT.69) 69.
Section 46 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) gives to any person who alleges that any of the provisions of chapter IV of the Constitution has been, is being or likely to be contravened in any state in relation to him may apply to High Court in that state for redress. It also confers on a High Court original jurisdiction to hear and determine any application made to it pursuant to the provision of the section to make any orders, issue any writs and give such directions as it may consider appropriate for the purpose of seeking the enforcement within that state of any right to which the person who makes the application may be entitled to under the chapter.

It is also pertinent to state that it is trite that Rules made pursuant to the Constitutional provisions also possess Constitutional flavor, that is why they are special provisions.

In the resolution of this issue, it is necessary to critically look at the applicable Laws and relate same to the subject matter in dispute. Section 46 of the 1999 Constitution (as amended) which I reproduced earlier on, specifically and unequivocally provided for the much needed venue for the Enforcement of Fundamental Rights in case of breach to be the High Court of a State or the Federal High Court where the breach has been, is being or likely to be contravened to apply for redress and the Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under the chapter.
In the instant case, the Appellant was charged before the High Court of Rivers State Port Harcourt, before Courts 1, 8 and 10 for the offences of murder, unlawful possession of firearms and secret cult related activities among others. However, at the time of the application for the enforcement of his fundamental rights, the Appellant was and still in detention in Umuahia Federal Prisons, within the jurisdiction of the Federal High Court. The Appellant on the 14th/11/2011 filed an application for the enforcement of his fundamental human right to liberty at the Federal High Court, Umuahia Judicial division. 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 date fixed for the hearing of the motion, the Learned trial Judge declined jurisdiction and transferred the matter to Port Harcourt Judicial Division of the Federal High Court.

The question that arises is whether considering the circumstances of this case and the Law, is the order of transfer made by the Learned trial Judge proper in the circumstances? Mr. Aguma, Esq. for the Respondents submitted that the order of transfer was an honest exercise of discretion pursuant to Section 22(1), (2), (3) and (4) of the Federal High Court Act; chapter F12, Volume 6, Laws of the Federal of Nigeria 2004 and that such exercise of discretion is not subject to appeal. Section 22(1), (2), (3) and (4) of the Federal High Court Act (Supra) provides as follows:
22(1) A Judge of the Court may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without application from any of the parties thereto, transfer such cause or matter before him to any other Judge of the Court.
(2) No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause of matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.
(3) Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such Rules of Court as may be in force in the High Court or made under any enactment or law empowering the making of the rule of Court generally which enactment or law shall be virtue of this Section be deemed also to include power to make Rules of Court for the purposes of this subsection.
(4) Every Orders of transfer made pursuant to subsection (2) or (3) of this section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted and shall not be subject to appeal.
What then is the implication of the order of transfer made under Section 22 of the Federal High Court Act vis-a-vis this case on Appeal? Indeed a cumulative reading of Section 22(1), (2), (3) and (4) of the Act shows that the Federal High Court Judge, may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without any application from any of the parties thereto, transfer such cause or matter before him to any other judge of the Court. By subsection (2) of section 22, no cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory Abuja, in which it ought to have been brought and by subsection (3), notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, where he may also cause such transfer to the appropriate Judicial Division of the Court in accordance with the rules of Court. By subsection (4) thereof, every orders of transfer made pursuant to subsection (2) or (3) of this section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted and shall not be subject to appeal.

A consideration of venue involves the selection of the proper Judicial Division out of those created all over the country in the case of the Federal High Court or out of those created over the state in the case of a state High Court, where the action should be initiated and prosecuted. See George vs. Savannah Bank of Nigeria Plc. (2010) ALL FWLR (PT.508) 312.
Considering the provisions of Section 22(1), (2), (3) and (4) of the Federal High Court Act (Supra), the decision of the Federal High Court to transfer the application to the Port Harcourt Division of the Federal High is an appealable decision. The word ‘decision’ in relation to a Court is defined in Section 318 of the 1999 Constitution (as amended) as any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. It is pertinent to note that Section 22(4) of the Federal High Court Act refers to the transfer carried out under subsections (2) and (3) of section 22 as not subject to appeal and clearly excluded subsection (1). It is trite that in the construction of statutes or Laws, what is excluded is not meant to be included. Subsection (1) is not subject to subsection 4 of Section 22 of the Act.

The provisions of Sub-Section (4) of Section 22 of the Federal High Court Act does not apply to subsection (1) of the Section 22. Subsection (4) of Section 22 of the Federal High Court Act cannot therefore be said to be inconsistent with the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) where parties to a dispute before a Court or tribunal are given unfettered right of appeal in final decision. Section 241(1) (a) of the 1999 Constitution (as amended) provides as follows:
241(1) An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance.

I have found in this judgment that the order made on the 1st day of March, 2011 transferring the application of the Appellant enforcing the enforcement of his fundamental right to freedom and liberty is a final decision and the provision of Section 22(4) of the Federal High Court Act does not apply to subsection (1) thereof and by the provisions of Section 241(1)(a) of the 1999 Constitution (as amended) the Appellant has unfettered right of appeal.
Consequently, this appeal has merit and it is hereby allowed. The decision of the Lower Court delivered on the 1st day of March, 2012 transferring the application to Port Harcourt Division of the Federal High Court is hereby set aside. The Suit is hereby remitted to the Federal High Court, Umuahia for hearing on the merit.

PHILOMENA MBUA EKPE. J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother UWANI MUSA. ABBA AJI, JCA. He has painstakingly dealt with all the issues raised herein and I am in absolute agreement with her reasoning and conclusions. I too agree that this appeal is meritorious and is hereby allowed. The decision of the court before delivered on 1st March 2012 transferring the application to Port-Harcourt Division of the Federal High Court is hereby set aside. The suit is remitted to the Federal High Court Umuahia for hearing on the merit.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in draft form, the judgment just delivered by my Learned brother, UWANI MUSA ABBA AJI; JCA.
My Lord exhaustively considered and resolved all the pertinent issues that arose for determination in this appeal. I agree with his reasoning and conclusion. I have nothing else useful to add. Accordingly, I also order that this matter be remitted to the Federal High Court, Umuahia Judicial division for hearing on the merit.

Appearances

George Ogara, Esq.For Appellant

AND

E. C. Agnrma, Esq. with him C. P. Aguguo, Esq. for the 3rd Respondent

No representations for the 1st and 2nd RespondentsFor Respondent