MINISTER OF INTERNAL AFFAIRS & ORS v. EDMUND OKORO & ORS(2003)

MINISTER OF INTERNAL AFFAIRS & ORS v. EDMUND OKORO & ORS

(2003)LCN/1439(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of June, 2003

CA/E/8/2002

RATIO

JURISDICTION: WHEN THE LOWER COURT ACT WITHOUT JURISDICTION

“The lower court acted without basis and jurisdiction. Same therefore amounted to a nullity. The case of Itaye & Ors. v. Ekidere & Ors. (1978) 9 and 10 SC 36, is in point. In other words, in the absence of any presidential order or evidence of such before the lower court, the conclusion reached in respect of the order of mandamus against the appellants was without basis and that which ought to be set aside.” PER MAHMUD MOHAMMED, J.C.A.

JUSTICES

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

Between

1.MINISTER OF INTERNAL AFFAIRS
2. COMPTROLLER OF PRISONS ENUGU
3. ATTORNEY-GENERAL OF THE FEDERATION Appellant(s)

AND

1.EDMUND OKORO
2. CHINWEDOBI OKEKE
3. FRANCISE EZEDIFU
4. DANIEL OKEKE
5. CHRISTIAN NWANKWO
6. ZACHARIA AHMED
7. EZENGWA ONYECHEMBA
8. ALOZIE NWACHUKWU
9. IKECHUKWU EBERE
10. OLIVE OGBONNA
11. AUGUSTINE EZURIKE
12. CHIMA ESINWOKE
13. ORJI EDWARD
14. ISREAL NWAOGWUGWU
15. GODWIN AMACHI
16. IHEDNUNEKWU NDUKWE
17. LAWRENCE EGBU
18. NGOZI SIMON
19. NGOZI ONYENSO
20. SUNDAY AMALA
21. EMMANUEL O. UBANI
22. STEPHEN OKOYE
23. SUNDAYOGBONNA
24. CHRISTOPHER OKEREKE UKPABI
25. BASIL NSIEGBUNAM
26. JAMES CHIEKWE
27. PIUS OGE
28. MATTEW AKOR
29. OKETE EKWE
30. EZEKIEL OGBODO
31. OPOKEANYIGOR
32. JOSEPH ONENE
33. ONIKE IDOR
34. SUNDAY AKUEJI
35. ONWUEGBUNA NWANNCHOR
36. NWOKOYE AKPO
37. EGBULAN WAJINEFU
38. CALISTUS IBEAWUCHI
39. DAN AZUBUIKE
40. GODWIN ANYANWU
41. FRANCISE AHUNANYA DIWE
42. FESTUS AMAYO
43. DEMIAN MGBE
44. ERNEST EZIKE
45. PHILIP ACHOLONU
46. EZENGWA ONYECHAMBA
47. PHILIP ACHOLONU
48. ALOZIE NWACHUKWU
49. ANDREW ANABA
50. MATTHEW OGBUJI
51. EMMANUEL MBA
52. OGBONNA EKPECHI
53. CHIJIOKE UBANI
54. ALBEITA UBANI
55. EMMANUEL ANYANWU
56. MATTHEW ALIGOR
57. OMAKA AWOKE
58. MONDAY NWAEZE
59. JOSEPHAT CHIMA
60. BONIFACE PETERS
61. OKETE EKWE
62. NKWUDA EDAMILI
63. PAUL EKEZIE
64. JOSIAN ONYEABOR
65. CYRIL UDE
66. EMMANUEL OKORO
67. CAJETAN OPARA
68. MARY CHUKWU
69. EDUGWU IDENYI
70. MGBOYIBO OSAI Respondent(s)

MAHMUD MOHAMMED, J.C.A. (Delivering the Leading Judgment):

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.

Before proceeding to consider the issues for determination in this appeal, I deem it necessary to observe that the second issue formulated in the respondents’ brief of argument does not arise from any of the 3 grounds of appeal filed by the appellants. That issue is accordingly hereby struck out. See Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.452) 12 at 20. Furthermore, it is observed that from the 3 grounds of appeal filed by the appellants, 4 issues for determination were formulated thereby resulting in proliferation of issues which ought to be discouraged if the purpose of issues for determination in our rules, namely, to enable parties narrow issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity, is to be given full effect. See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551 and Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt.404) 658 at 672.

Having regard to the facts and circumstances of this case, I am of the view that the only issue arising for determination in this appeal is whether having regard to the evidence averred by the respondents in their affidavits in support of their application, the ruling of the court below can stand.

The appellants have pointed out in their brief of argument that the respondents’ application was for an order of mandamus and that for that action to lie, the applicants must convince the trial court that they have been unlawfully deprived of their legal rights by the respondents who have a public duty to perform. That having regard to the additional record upon which this appeal was argued, it is very clear that most of the applicants in the court below were convicted for murder under section 319 of the State Criminal Code and as such the said presidential amnesty or pardon does not affect such applicants by virtue of section 175 of the Constitution of the Federal Republic of Nigeria, 1999 which limited the beneficiaries of such pardon to persons convicted of offences created by an Act of the National Assembly.

That the duty to grant such convicts pardon lies with the State Governor under section 212 of the 1999 Constitution. As for the interpretation of the said instrument of pardon, it was argued for the appellants that the whole document should be taken into consideration rather than isolating the words in prison custody. That global look at the instrument of pardon, shows that from the categorisation, the calculation was from the date of conviction.

On the question of evidence in support of the ruling of the trial court directing the implementation of the pardon from the date of detention in prison custody and not from the date of conviction, learned counsel to the appellants observed that even the trial court had clearly stated that there was no such evidence. That in the absence of evidence to support the ruling, counsel argued that the ruling was void on the authority of Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; (2001) 9 SCNJ 5.

That by virtue of section 135 of the Evidence Act, the respondents were bound to supply the court with the bare facts in support of their application including the dates of their first detention and having failed to do so, their application should have been dismissed.

For the respondents however, their learned counsel maintained that the lower court was right in construing the term in prison custody in the said instrument of pardon to be inclusive of the date of 1st admission as opposed to date of conviction. That, that is why the court below in its ruling also included all awaiting trials inmates in line with the interpretation of section 3(1) of the Prisons Act, Cap. 366 of the Laws of the Federation of Nigeria, 1990.

Learned counsel further argued that by virtue of Regulation 2 to section 15 of the Prisons Act, a person can be admitted into prison custody as a prisoner by the execution of a warrant of arrest or warrant order of detention and as such the applicants are entitled to benefit from the president amnesty/order from their respective dates of detention in prison custody and not from the dates of their conviction.

It is quite clear from the record of this appeal that the proceedings for the order of mandamus that took place before the court below, the Federal High Court, Enugu, were predicated on the presidential order of amnesty to all prisoners on death row who the respondents in this appeal are claiming to be among. It is the terms of this presidential order which was said to have been issued on 4-1-2000, that came up for interpretation before the court below in order to determine the mode of computation of the period spent in prison custody in determining the beneficiaries of the order.

This presidential order had been described by the learned trial Judge in his ruling at page 43 of the record as an ‘Instrument’ or ‘legislation’ affecting citizens liberty where he said:-
“This is because the said presidential order specifically states that the time of computation is from the time the prisoner came to be in prison custody. That has to be given the meaning ascribed to it in the Prisons Act and its regulation already referred to. It must be remembered that we are dealing with the liberty of citizens. In my view, any legislation or instrument dealing with a citizen has to be interpreted in such a way that is more positive to the citizens liberty. It is trite that any legislation or instrument that intends to curtail a citizens liberty must be clearly seen to be so. It must not admit of any ambiguity. I therefore hold that as regards the presidential amnesty granted to the applicants as evidenced by exhibit O.K.2, the effective date is the date of detention in prison custody and not the date of conviction and sentence. However, in this case the applicants have failed to show in their affidavit and further affidavit the actual date of detention. The only dates disclosed in this case are those exhibited by the respondents, that is exhibits A to H attached to their counter affidavit.”

Exhibit O.K.2 described as the presidential order speaks for itself at page 13 of the record of this appeal. It reads:-

“Confidential
Telephone Message
From CGP Abuja
To C/P Enugu
Date 3rd April, 2000
Presidential Order on Condemned
Convicts on Death Roll

I am directed to instruct you to release/commute the sentence of condemned convicts on the death row in your State command under the following categories as ordered by the President Chief O. Obasanjo President of the Federal Republic of Nigeria.
Category ‘A’
CC on death roll who have spent 20 years and above in prison custody.
Category ‘B’

Commuted to life imprisonment the death sentence of convicts who have spent a minimum of 10 years but not up to 20 years in prison custody.

The release/commutation of sentence is with immediate effect.

The list of convicts concerned is attached for ease of reference.

SOD.
(O.U.Kalau) (DCG OPS)
for Comptroller General of Prisons

No category ‘A’ in Enugu State Command under category ‘B’
1. James Chiokwe     …    15 years
2. Edugwu Idenyi      …    15
3. Anthony Ejinna      …    15

4. EmmanuelOkoro      …    15
5. Basil Ediegbunam      …    15
6. Mgboyibo Osai (F)      ….    11
7. Mary Chukwu (F)     …    11

RK put the name of any person who is qualified by this month and send the list before Friday”.
Therefore, the above document which is clearly a confidential telephone message from the office of the Comptroller-General of Prisons, Abuja to the Comptroller of Prisons of Enugu State, Enugu, is not a presidential order, a piece of legislation or legal instrument conveying the decision of the President of the Federal Republic of Nigeria to exercise his power under section 175 of the 1999 Constitution to grant amnesty to the category of prisoners on death roll in prison custody.

While the contents of this telephone message might have been lifted directly from such presidential order or instrument in possession of the officer who signed the message, the message itself in its present form as placed before the trial court cannot qualify as such presidential order or instrument justifying its being relied upon in support of the respondents’ application for the order sought.

In other words, the truth of the matter is that there was no presidential order or instrument before the lower court calling for any interpretation of the terms of such order or instrument by the court.

The learned trial Judge should have realised this vacuum when he found himself in trouble in his ruling as to what order to make in the absence of evidence on the dates of detention in prison custody of the product of the exercise of constitutional power of the President of the Federal Republic of Nigeria, the court below ought to have satisfied itself that the power had been properly exercised before embarking on finding of who were entitled to benefit from the terms of the order.

The absence of the presidential order before the trial court is indeed fatal to the case of the respondents who in any case had failed to prove their claim on the evidence of the affidavits deposed on their behalf. Therefore, the learned trial Judge having clearly found that there was no evidence to support the appropriate order being sought by the application, the learned trial Judge should have there and then dismissed the application.

To proceed to grant the application as he did in the absence of any evidence to support it constitutes a serious misdirection in law justifying the setting aside of the ruling. See Shodeinde v. Registered Trustees, Ahmadiyya Movement-in-Islam (1983) 2 SCNLR 284 and Menakaya v. Menakaya (2001) 16 NWLR 9 (Pt.738) 203 at 237-239.

In any case as the counter-affidavit of the appellant before the court below at pages 19-21 of the record of this appeal had clearly shown that the said amnesty had already been implemented by the appellants in relation to 54 out of the 70 applicants now respondents, there was no basis whatsoever for the order of the lower court on the appellants to implement the amnesty in accordance with the interpretation of the court on all the 70 applicants now respondents.

Although the appellants have also raised a serious question of law as to whether the presidential order should apply to prisoners convicted for the offence of murder under section 319 of the Criminal Code of Enugu State, which is a State law and not an Act of the National Assembly as stipulated under section 175 of the 1999 Constitution, in the absence of the presidential order, it would amount to pure speculation to embark on the exercise. To do so will definitely result into this court falling into the same trap as did the trial court in interpreting the terms of the order that was not placed before it.

In the result, this appeal succeeds and the same is hereby allowed.

The ruling of the trial court of 23-1-2001 containing order on the appellants to comply with the order of the trial court is hereby set aside. In place of that order there shall be an order dismissing the applicants’ application. No order on costs.

JOHN AFOLABI FABIYI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Mohammed, JCA. I agree with his reasons leading to the conclusion that the appeal has merit and should be allowed.

The learned trial Judge, in considering the applicants’ application for an order of mandamus, had no sufficient materials before him. He found that there is no evidence of the dates of detention or conviction of the applicants before him. He even said it expressly that he was handicapped in making specific orders relating to their release or commutation. He found that the applicants failed to show in their affidavit and further affidavit their actual date of detention. There is no presidential instrument of pardon before the trial court.

Exhibit O.K.2, an ordinary telephone message, does not qualify as the presidential order or instrument. It was the responsibility of the applicants to furnish the trial court with all relevant materials for a due consideration of their application.

In the prevailing circumstance, the granting of the application by the learned trial Judge in the absence of any evidence to support it constitutes a serious misdirection in law. The orders which were made at large, should be set aside vide the decision in Menakaya v. Menakaya cited in the lead judgment.

For the reasons stated above and of course the fuller ones contained in the judgment of my learned brother, I too, hereby allow the appeal. I abide by all consequential orders therein contained including that relating to costs.

CLARA BATA OGUNBIYI, J.C.A.: This is an appeal against the judgment of the Federal High Court Enugu delivered on the 23rd day of January, 2001. The respondents before the lower court were the applicants who went to court to challenge their continuous imprisonment at the instance of the appellants after being granted presidential amnesty as a result of their long stay in prison custody.

The facts of the case briefly are that on the 4th January, 2000, His Excellency Chief Olusegun Obasanjo, the President of the Federal Republic of Nigeria in the exercise of the constitutional powers pursuant to section 175 of the 1999 Constitution granted presidential amnesty or pardon of unconditional release to 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 committed to life imprisonment.

The instrument of pardon is in the form of written telephone message dated 3rd April, 2000 from the Prison Headquarters, Abuja and which gave the details of the presidential amnesty/order to the Comptroller of Prisons, Enugu, the 2nd appellant, for his implementation.

The respondents’ case at the lower court was to the effect that they are beneficiaries of the presidential pardon and that their continuous incarceration is a gross violation of the terms of the amnesty. Against this back drop, the respondents as applicants therefore sought an order of mandamus against the appellants who were the respondents and praying the Federal High Court, Enugu for 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.

While the applicants filed statement supporting their application for an order of mandamus verifying affidavit as well as reply to counter affidavit in support, the respondents also filed counter affidavits.
Despite the stem objection by the respondents/appellants, the learned trial court on the 23rd January, 2001, by his ruling held that the applicants are entitled to have their period of detention calculated from the date of 1st detention in custody and not of conviction.

From the facts deposed to on behalf of both parties per their affidavits it is apparent and clear that the main issue for determination on the motion before the court below was the mode of computation of the period spent in prison custody by the applicants. It is also apparent from the record that most of the respondents/applicants were convicted for murder under the provision of section 319 of the State Criminal Code while the 1st, 9th, 10th, 24th and 38th applicants were convicted under the Robbery and Fire Arms (Special Provisions) Act, 1970.

The appellants then respondents being dissatisfied with the judgment of the lower court did on the 23rd February, 2001 file two grounds of appeal and with the leave of the court sought and obtained also filed one additional ground of appeal. While the appellants distilled four issues for determination from their grounds of appeal, the respondents formulated only two.

The main issue for determination in this appeal and on the briefs of parties calls to question the interpretation by the court below of the term of the presidential order of amnesty issued on the 4th January, 2000. This was very necessary as it formed the genesis of computation of the period of stay in prison custody and thus determining the extent and number of beneficiaries of the order relied upon.

It is pertinent to re-state that the said exhibit O.K.2. on the record was a confidential telephone message, which was said to have related the president’s order. This learned trial court emphatically referred to as an instrument or legislation.

The provision of section 175 of the 1999 Constitution of the Federal Republic of Nigeria provides for prerogative of mercy by the President wherein he may:
“(a) Grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions …”
The question is whether or not the document exhibit O.K.2 at p. 13 of the record can be accorded the status and qualification of that having been a result of an exercise of the presidential powers under the said provision of the Constitution as anticipated by the learned trial Judge?

The Blacks Law Dictionary, Fifth Edition has defined instrument at page 719 as:
“A written document, a formal or legal document in writing, such as a contract, deed, will, bond or lease”.

The same dictionary also defines legislation at page 809 as:
“The act of giving or enacting laws …”
While instrument or legislation has a force of law, a telephone conversation is a related message and which falls short of any legal interpretation.

For mandamus to lie therefore, it must issue from a court of competent jurisdiction commanding an inferior body or person for the performance of a particular act of purely ministerial duty imposed by law.

The lower court acted without basis and jurisdiction. Same therefore amounted to a nullity. The case of Itaye & Ors. v. Ekidere & Ors. (1978) 9 and 10 SC 36, is in point. In other words, in the absence of any presidential order or evidence of such before the lower court, the conclusion reached in respect of the order of mandamus against the appellants was without basis and that which ought to be set aside.

In the result and while agreeing in total with the reasoning and conclusions arrived at in the lead judgment by my learned brother, Mohammed, JCA, I also allow this appeal, and set aside the judgment and the order by the lower court. I also make a further order dismissing the applicants’ application and abide by the order as to costs.

Appeal allowed.

Appearances