LOVEDAY SAMUEL v. THE CONTROLLER OF PRISONS, FEDERAL PRISONS, UYO, AKWA IBOM STATE & ORS (2013)

LOVEDAY SAMUEL v. THE CONTROLLER OF PRISONS, FEDERAL PRISONS, UYO, AKWA IBOM STATE & ORS

(2013)LCN/6144(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of May, 2013

CA/C/122C/2012

RATIO

FUNDAMENTAL RIGHTS: REQUIREMENT FOR THE FUNDAMENTAL RIGHTS PROVISION TO APPLY TO A PARTY

These provisions cannot be read in isolation. For Section 46 of the Constitution to confer jurisdiction on a High Court of a State the applicant must be the person whose right has been, is being or is likely to be contravened and the right must fall within the fundamental right provision. The right sought to be enforced must fall within Sections 33-44 of the Constitution. See: Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt 200) 708; Candide Johnson v. Edigin (1990) 1 NWLR (Pt. 129) 659.PER ONYEKACHI A. OTISI, J.C.A.

FUNDAMENTAL RIGHTS: PROVISION OF SECTION 35(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS REGARDS RIGHT TO PERSONAL LIBERTY

Section 35(1) of the Constitution provides as follows:
(1) Every Person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty:
(b) by reason of his failure to comply with the order of court or in order to secure the fulfillment of any obligation imposed upon him by law;
(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence;
(d) in the case of a person who has not attained the age of eighteen years, for the purpose of education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or order lawful removal from Nigeria of any person or the taking of proceedings relating thereto;
(b) by reason of his failure to comply with the Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
These provisions, as well as the provisions of Section 35(7), indicate that the right to personal liberty is not an absolute right. The right to personal liberty is qualified by these exceptions.PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

LOVEDAY SAMUEL Appellant(s)

AND

1. THE CONTROLLER OF PRISONS, FEDERAL PRISONS, UYO, AKWA IBOM STATE
2. THE CONTROLLER OF PRISONS, FEDERAL PRISONS, PORT HARCOURT
3. COMMISSIONER OF POLICE, RIVERS STATE Respondent(s)

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. 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, Akwa 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 Akwa Ibom State: relying on Gafar v. 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 v. 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 V. GEORGE ADUMU & 3 ORS; and Charge No: PMC/26C/2010: COP V. 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 Court’s 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 V. GEORGE ADUMU & 3 ORS for the capital offence of armed robbery – among others at the Port Harcourt High Court No 10; (b). Charge No PHC/338CR/2010, THE STATE V. GEORGE ADUMU & 3 ORS for the offence of kidnapping, among others at the Port Harcourt High Court No 1; (c). Charge No PHC/348CR/2010, THE STATE V. 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 V. 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/348CR/2010, THE STATE V. GEORGE ADUMU & 3 ORS for the offence of threatening violence, attempted kidnapping, illegal possession of firearms among others 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 at 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 v. Mimra (2008) 1 SC (PT 111) 88, it is submitted that the bail application was rightly refused by the trial judge.

It is further submitted that the learned trial judge also rightly refused jurisdiction in respect of the fundamental rights application. That for a Court to have jurisdiction to hear or try a matter, it is only where the offence or part of the offences took place or where parts of the offence took place in the place in the State where the court is situated that jurisdiction is vested on that Court to entertain the matter. It is submitted that none of the offences for which the Appellant and other co-accused persons are standing trial took place in Akwa Ibom State but in Rivers State, where they are presently standing trial. Relying on the provisions of Section 14A of the Criminal Code, Cap 37, Vol. 2, Laws of Rivers State, 1999, which is in pari materia with the provisions of Section 14A of the Criminal Code, Cap 38, Laws of the Federation of Nigeria 2010, it is submitted that it is only when an offence is committed wholly in a State or part of it is committed in the State that the Court in that State can have jurisdiction to try the alleged offence. That as such, the lower court rightly declined jurisdiction.

It is submitted that the parties cannot confer jurisdiction on a court, nor can a court confer jurisdiction on itself by misconstruing a statute; relying on Adigun v. Osako (2003) 5 NWLR (PT 812) 95; Adesola v. Abidoye (1999) 14 NWLR (PT 637) 28 at 52; Lawal v. Oke (2001) 7 NWLR (PT 711) 88.
It is further submitted that by virtue of Section 118 (2) of the Criminal Procedure Law, Cap 38 Vol. 2 Laws of Rivers State, the grant of bail to an accused person standing trial before a High Court Judge is purely a discretionary matter in the hands of the trial Judge; and that where the offence carries a sentence of imprisonment for a period of three years or more, the grant of bail is not granted as a matter of course. That the lower court rightly struck out the matter for lack of jurisdiction.

It is further submitted that the right to personal liberty as guaranteed under Section 35 of the 1999 Constitution as amended is not an absolute right, relying on Dokubo-Asari v. FRN (2007) 12 NWLR (PT 1048) 320; Echeazu v. COP (1974) NMLR 308; and that the lower court rightly refused the application.

Learned Counsel urged the Court to discountenance the contention that the pending Charges against the Appellant are incompetent and allegedly filed without the fiat of the Hon. Attorney General of Rivers State and the alleged lack of diligence in the prosecution of the Charges as these are fresh issues being raised for the first time in this Court. That an appeal is a challenge to the decision of the court appealed against. He urged the court to affirm the decision of the lower court.

In the Appellant’s Reply Brief, the Court is urged to take judicial notice of the records of this Court, in particular, the Appellant’s motion for bail and the affidavit evidence. The Court is also urged to take note of the further affidavit annexing Exhibits R1, R2, R3, R4, R5 and R6, which are fiats granted by the Attorney General of Rivers State after filing the Charges of the High Court. It is submitted that the Charges are incompetent. It is further contended that the Charges are an abuse of court process in that they constitute a multiplicity of actions on the same subject matter against the same opponent on the same issues. In conclusion, that the lower court wrongly declined jurisdiction.

The issue of the Charges which the Appellant is facing being incompetent was not raised before the lower court. I agree with the Respondents that this is a fresh issue, which did not arise from the Ruling/Judgment, subject of this appeal. It is rudimentary law that this court has no jurisdiction to consider the issue which was not raised at the trial court. A court can exercise appellate jurisdiction over a matter or an issue only after it had been adjudicated on by a court of first instance.
I shall therefore not discuss this issue at all. See also:
Gbadamosi V. Dairo (2007) 1 S. C. (PT. II) 151, (2007) ALL FWLR (PT 357) 812; Peter Obi vs. INEC (2007) ALL FWLR (PT 378) 1116 at 1160; Sapo v. Sunmonu (2010) CLR 5(b) (SC); (2010) 5-7 (PT 1) MJSC 35; Onyemaizu v. Ojiako (2010) 4 NWLR (PT 1185) 504.

In paragraphs 8 and 11 of the affidavit in support of the Appellant’s ex parte application for bail before the lower court, which was deposed to, with the consent and authority of the Appellant, by one Ibiso Loveday, Stated to be the wife of the Appellant, it was deposed as follows:
“8. That on 22/2/2009, the applicant, Wellborn Isaiah, George Adumu, and Luke Loveday were charged before the Magistrate Court of Rivers State in Charge No PMC/1938C/2009: COMMISSIONER OF POLICE V. GEORGE ADUMU & 3 ORS for the offences of conspiracy, cultism, threatening violence and threat to kill the said CHIEF (DR.) DAVIES IBIAMU IKANYA. The Charge Sheet is herewith exhibited and marked EXHIBIT B.
9. That the applicant and co-accused persons were not granted bail by the Magistrate Court of Rivers State but was ordered to be remanded in prison custody.
10. That the applicant and co-accused persons were remanded in prison custody at Federal Prison, Port Harcourt, Rivers State.

In paragraphs 11 and 12, it is also deposed that while in custody, another Charge No PMC/26C/2010 was preferred against the same accused persons for the offences of conspiracy, cultism, threatening violence and threat to kidnap one Mr. Isaiah Jehoshaphat Naaman. They were also not granted bail but were ordered to be remanded in prison custody by the Presiding Magistrate.
In paragraph 14 of the said affidavit in support of the application for bail, it is Stated that:
“That since the applicant was arrested, charged to the Magistrates Court of Rivers State and remanded in prison custody, no valid information and proof of evidence has been filed in this Honorable court which has the Jurisdiction to try the offence of unlawful possession of firearms.”

The Charge sheet in respect of Charge No:PMC/1938C/2009 annexed as Exhibit B to the supporting affidavit is reproduced hereunder:
COUNT I:
That you George Adumu ‘m’, Wellborn Isaiah ‘m’, Loveday Samuel ‘m’ and Luke Samuel ‘m’ sometime in the month of November 2009 at Port Harcourt in the Port Harcourt Magisterial District did conspire amongst yourselves to commit felony to wit: participation in secret cult activities and thereby committed an offence Punishable under Section 516(a) of the Criminal Code Law Cap 37 Vol. II Laws of the Rivers State, 1999.
COUNT II:
That you George Adumu ‘m’, Wellborn Isaiah ‘m’, Loveday Samuel ‘m’ and Luke Samuel ‘m’ on the same date and place in the aforesaid Magisterial District did participate as members in the activities of a proscribed secret cult known as ICE LANDER and thereby committed an offence punishable under Section 1(1) of the Secret Cult and Similar Activities (Prohibition) Law No.6 of Rivers State, 2004.
COUNT III:
That you George Adumu ‘m’, Wellborn Isaiah ‘m’, Loveday Samuel ‘m’ and Luke Samuel ‘m’ on the 28th day of November, 2009 at Golf Prince Hotel GRA Port Harcourt in the Port Harcourt Magisterial District did conspire amongst yourselves to commit an offence to wit: threatening violence and thereby committed an offence punishable under Section 516A (a) of the Criminal Code Law Cap 37 Vol. II Laws of the Rivers State 1999.
COUNT IV:
That you George Adumu ‘m’, Wellborn Isaiah ‘m’, Loveday Samuel ‘m’ and Luke Samuel ‘m’ on the same date and place in the aforesaid Magisterial District did threaten to kill one Mr. Isaiah Jehoshaphat Naaman by pointing guns towards him at the meeting and thereby committed an offence punishable under Rivers State, 1999.
COUNT V:
That you George Adumu ‘m’, Wellborn Isaiah ‘m’, Loveday Samuel ‘m’ and Luke Samuel ‘m’ on the same date and place in the aforesaid Magisterial District did unlawfully have in your possession a firearm without a valid licence and therefore committed an offence punishable under Section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap RII Laws of the Federation 2004.
COUNT VI:
That you George Adumu ‘m’, Wellborn Isaiah ‘m’, Loveday Samuel ‘m’ and Luke Samuel ‘m’ on the same date and place in the aforesaid Magisterial District did unlawfully attempt to kidnap one Mr. Isaiah Jehoshaphat Naaman and thereby committed an offence punishable under Section 2 of Rivers State Kidnap (Prohibition) Law No. 3 of 2009.

The Motion on Notice to enforce the fundamental rights of the Appellant, also filed on 6/12/2011, seeks the following reliefs:
1. A DECLARATION that the continued detention of the applicant by the respondents since 22nd of 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, Uyo and Port Harcourt, to release the applicant forthwith
3. AND for such further order or other orders as the Honourable Court may deem fit to make in the circumstance.

The grounds on which the reliefs are sought are:
(i) The detention of the applicant is not justified by virtue of the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 2011 (as amended).
(i) The detention of the applicant is in breach of Section 35(1) and (4) of the Constitution of Nigeria 2011 (as amended).
(ii) The detention of the applicant is in breach of Section 36(5) of the Constitution of the Federal Republic of Nigeria 2011 (as amended).
(iii) The applicant (sic) detention is in breach of Article 6. African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.

The suit in the lower court was Suit No HT/125/2011. A similar application had been filed by another co-accused, and heard in the same trial court as HT/124/2011. At Page 56 of the Record of Appeal, the proceedings before the lower court on 15/12/2011 are recorded as follows:
“Mr. Ogara: This is a similar application to that of HT/124/2011. We adopt our argument in the said suit.
Court: The Ruling in Suit No. HT/124/2011 is hereby adopted. The Application for bail fails and it is hereby struck out for want of jurisdiction.”

At page 57 of the Record of Appeal in respect of Suit No: HT/124/2011, which has been appealed as CA/C/121/2012, George Ogara, Esq., Learned Counsel for the Appellant therein as applicant had made the following application:
“…an order admitting the Applicant to bail pending the hearing and determination of the Notice of Motion for order of enforcement of the Applicant’s Fundamental Rights in this suit.”

In refusing this application, the lower Court held as follows:
“I regret to say that Uyo Prisons is not within the jurisdiction of this court for purposes of this instant application.
In order for the High Court of a State to be seised (sic) of jurisdiction under the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, it must be shown that the alleged infringement took place within that State. The issue of granting bail cannot be taken in isolation where it is not shown that the court has jurisdiction to entertain an alleged breach of fundamental rights.”

This is the Ruling/Judgment adopted in Suit No HT/125/2011, subject matter of the present appeal.

Before the lower court were the facts that the Appellant was already charged and had been arraigned before the Magistrate Court, Port Harcourt, in which State the offences for which the Appellant is charged took place. None of the offences for which the Appellant was charged was remotely committed in Akwa Ibom State but in Rivers State. The subsisting order of the Magistrate Court, Rivers State was that the Appellant and other co-accused be remanded in prison custody of the Federal Prison, Port Harcourt. The Appellant and other co-accused were subsequently transferred to other Federal Prisons. The Appellant was first taken to Federal Prison, Aba; then later transferred to Federal Prison, Uyo.

The Appellant has relied on Section 46(1) of the 1999 Constitution as amended to submit that the lower court had jurisdiction to entertain both the application for bail and enforcement of fundamental rights. The provisions of Section 46(1) are as follows:
46 (1) Any Person who alleges that the Provision 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.
These provisions cannot be read in isolation. For Section 46 of the Constitution to confer jurisdiction on a High Court of a State the applicant must be the person whose right has been, is being or is likely to be contravened and the right must fall within the fundamental right provision. The right sought to be enforced must fall within Sections 33-44 of the Constitution. See: Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt 200) 708; Candide Johnson v. Edigin (1990) 1 NWLR (Pt. 129) 659.

The Appellant was remanded on the orders of two different Magistrate Courts in Rivers State. The Appellant was merely moved to the custody of Federal Prison Uyo, within the jurisdiction of the lower court, administratively. The trial court in Akwa Ibom State could not have assumed jurisdiction to entertain a bail application in respect of offences committed in Rivers State; and, for which the Appellant had been charged with before Magistrate Courts in Rivers State. Upon appeal to this Court, the Respondents on 4/12/2012 filed a Counter Affidavit to the application for bail, deposed to by one Joseph Charles Brown, civil servant with the Department of Public Prosecution, Ministry of Justice, Rivers State. The Appellant filed a Further Affidavit. These processes are all part of the records of this court.

The Respondents deposed that the Appellant had now been formally charged before competent courts. That, the Charges were pending before High Courts of Rivers State.

Specifically, the Respondents State as follows:
15. That I have been informed by I. OTORUBIO, ESQ. Director of Public Prosecutions handling this matter on 28/11/2012 in his office in the Ministry of Justice, Secretariat Complex, Port Harcourt at 3:50pm and I verily believe him thus:
a). That he on receipt of the Applicant’s record of Appeal, Motion on Notice and Appellant’s Brief of Argument got in touch with the Prisons authorities, Registrars of High Court Nos. 1, 10 and 11 trying the charges, PHC/337CR/2010, PHC/338CR/2010, PHC/341CR/2010, PHC/348CR/2010, PHC/349CR/2010 and Anadi Jerry, Esq. and E.C. Aguma, Esq. and discovered that, the matters are adjourned to 29/11/2012 for hearing, PHC/348CR/2010 for plea, while PHC/341CR/2010 is for continuation of hearing in High Court No 1, Port Harcourt.
b). Further to Paragraph 15(a) the matters had been coming up for hearing and continuation of hearing except charge No PHC/34SCR/2010 that is for plea in High Court No. 10, Port Harcourt after the Applicant and his co-accused persons had taken plea but are been (sic) stalled for over one (1) year, due to the absence of the Applicant and his co-accused persons (sic) defence Counsel, Alhaji F.A, Oso, SAN who has been sick and to the extent that, the presiding Judges in the said courts have advised them to change their defence Counsel to enable their trial continue, but the Applicant and his co-accused persons have bluntly refused to change their defence Counsel till (sic) date because of the constitutional Provision that they are entitled to counsel of their choice.
g) Further to 15(f) above, it is for security reasons and considering the antecedents of the Applicant and his co-accused persons, and taking into consideration their criminal activities and vis-a-vis the serious offences such as Murder, Armed Robbery and other offences they are charged with before the High Court Nos. 7, 10 and 11 Port Harcourt and considering the fact that, remanding them in the Federal Prisons Port Harcourt is a security risk and a security threat to Rivers State, the 2nd Respondent had to temporally transfer them to other prisons outside the Rivers State for the time being to be bringing them to Court to come and face their trial which was not permanent.

Section 35(7)(a) of the 1999 Constitution provides as follows:
(7)(a) Nothing in this section shall be constructed – in relation to subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence;
Regarding these provisions, the Supreme Court in Dokubo-Asari vs. FRN (2007) 5-6 S.C. 150, (2007) ALL FWLR (PT 375) 558 at 586 – 587, per I.T. Muhammad JSC, said:
“The above provisions of Section 35 of the Constitution leave no one in doubt that the Section is not absolute. Personal liberty of an individual within the contemplation of Section 35(1) of the Constitution is a qualified right. In the con of this particular case and by virtue of subsection (1)(c) thereof which permits restriction on individual liberty in the course of Judicial inquiry or where, rightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention then an escape route to freedom is easily and richly made available to persons, suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquility of the society. I find support in so saying from Irikefe’s JSC (as he then was) earlier pronouncement in the case of Echeazu v. Commissioner of Police. (1974) N.W.L.R. 308 of Page 314.”

The Appellant in Paragraphs 4, 5, 7, 8, 9 and 11 of the further affidavit filed on 21/3/2013 admitted the pendency in High Courts of Rivers State of Charge Nos: PHC/337CR/2010, PHC/338CR/2010, PHC/341CR/2010, PHC/348CR/2010, PHC/349CR/2010. Charge Nos: PHC/341CR/2010, PHC/348CR/2010, PHC/349CR/2010 were described in the affidavit as:
“…fictitious Charges being Pursued by CHIEF (DR.) DAVIES IBIAMU IKANYA against the appellant/applicant”.

The trial of the Appellant for these capital offences is therefore ongoing before courts of competent jurisdiction in Rivers State. The custody of Appellant in the Federal Prison, Uyo has been explained in paragraph 15(g) of the Counter Affidavit reproduced above, and that averment has not been controverted.
The averments as well as the Exhibits annexed by the parties before the Court do not show compelling reasons to ground the grant of the application of the Appellant. His fundamental rights have not been shown to have been breached. As already held, the lower court acted correctly in declining jurisdiction.
This appeal is without merit and is hereby dismissed.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I am in total agreement with the reasoning and final conclusions contained in the lead judgment. I have nothing else to add. The appeal is unmeritorious and therefore dismissed.

JOSEPH TINE TUR, J.C.A.: I have read an advance copy of the judgment of my Lord ONYEKACHI A. OTISI, JCA and I agree that this appeal lacks merit and ought to be dismissed. I shall add the following comments.

The diverse offences for which the applicant and others were arrested and arraigned before various Magistrate Courts in Port Harcourt, Rivers State are alleged to have occurred in that State and not in Akwa Ibom State. Upon refusal by the Magistrate Courts to grant bail the appellant and others were arraigned before various High courts in Port Harcourt, Rivers State. Trial is still ongoing in the High Courts of Rivers State. If it can be alleged that the fundamental rights of the appellant was ever breached it would be by the authorities in Rivers State that caused his arrest and subsequent detention into prison custody in Rivers State. The Controller of Prisons, Federal Prison, Uyo, Akwa Ibom State or Port Harcourt, Rivers State had no hand in the infringement of the fundamental rights of the appellant. The appellant has not shown any order from any Magistrate Court or the High Court in Rivers State directing that the appellant should be remanded at Federal Prisons, Uyo. I do not fathom why the Controllers of these Federal Prisons were joined as parties in this appeal. The movement of the appellant from one prison to another in any of the States of the Federation in Nigeria is purely for administrative convenience usually employed by the prison authorities depending on the facts and circumstances of each case. This is borne out by paragraph 15(g) of the affidavit deposed by the Respondents to wit:
“(g) Further to 15(f) above, it is for security reasons and considering the antecedents of the Applicant and his co-accused persons, and taking into consideration their criminal activities and vis-a-vis the serious offences such as Murder, Armed Robbery and other offences they are charged with before the High Court Nos. 1, 10 and 11 Port Harcourt and considering the fact that, remanding them in the Federal Prisons Port-Harcourt is a security risk and a security threat to Rivers State, the 2nd Respondent had to temporary transfer them to other prisons outside the Rivers State for the time being to be bringing them to Court to come and face their trial which was not permanent.”

Since the offences are alleged to have occurred in Rivers State the application for the enforcement of the fundamental rights of the appellant if even infringed should have been brought within the High Court of Rivers State but not in Ikot Ekpene in Akwa Ibom State. This is made clear by Order 2 rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which reads as follows:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress;
Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the state shall have jurisdiction. Form No.7 in the Appendix may be used as appropriate.”

In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 546 paragraphs “F”-“G” Obaseki, JSC observed thus:
“One observation that agitates my mind in this matter is the fact that the Federal High Court sat in Kano to adjudicate on this matter. This Court has not been called upon to answer the question whether the Federal High Court sitting in Kano is a High Court in Gongola State. But the provision of Section 42(1) of the 1979 Constitution specifically empowers any person complaining of contravention of the Fundamental Right provisions in relation to him in any state to apply to a High Court in that State. The Constitution does not provide for any application to be made to a High sitting outside the State.”

In my humble view Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 as altered empowers when the liberty of a person may be curtailed by providing as follows:
“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such save in the following cases and in accordance with a procedure permitted by law:-
(a) For the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to present his committing a criminal offence.”

The continuous detention of the appellant by the 1st and 2nd respondents is on the orders of Courts of competent jurisdiction for the purpose of trial. Being that the case I do not see how the fundamental rights of the appellant have been infringed. The learned trial Judge lacked the territorial jurisdiction to have entertained the application. Accordingly, the ruling of the learned trial Judge is upheld. This appeal is dismissed.

Appearances

George T. Ogara, Esq.For Appellant

AND

I. Otorubio, Esq. Director Public Prosecution, Ministry of Justice, Rivers State, with, A. Sibi Esq., Principal State CounselFor Respondent