OKECHUKWU BENSON V. COMMISSIONER OF POLICE & ANOR
(2013)LCN/6018(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2013
CA/PH/119/2005
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
C. E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OKECHUKWU BENSON Appellant(s)
AND
1. COMMISSIONER OF POLICE
2. ATTORNEY-GENERAL RIVER STATE Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE IN THE DISCRETION OF A COURT TO GRANT LEAVE
When a discretion is vested in the court to grant leave, the fundamental principle is that, before granting the leave or consent, the judge or the court must be satisfied that the materials placed before him or it disclose or warrant good cause to proceed further in the matter and that the proceedings thereafter would not be an abuse of process.
That is the principle enunciated in IKOMI v. THE STATE (1986) 1 NSCC 730; (1986) 3 N.W.L.R. PT.28) 340. See also FRED EGBE v. THE STATE (1980)1 NCLR 341. PER EKO, J.C.A.
WHETHER OR NOT THE MAGISTRATE COURT IS EMPOWERED TO GRANT BAIL IN CAPITAL OFFENCES
Bail pending trial in a capital offence appears to be the issue in this appeal. The magistrate is not, under the Criminal procedure Law of Rivers State, empowered to grant bail in capital offences. The High court, under Section 118 of the criminal procedure Law, is expressly empowered to grant bail to any person charged with on offence punishable with death. Guided by authorities of UKATU v. COMM. OF POLICE (2001) 6 N.W.L.R. (pt.710) 765; EYU v. THE STATE (1988) 2 N.W.L.R. (pt. 78) 602. ANI v. THE STATE (2002) 1 N.W.L.R. (Pt.747) 217. PER EKO, J.C.A.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This appellant’s application “for redress for the infringement of fundamental rights” brought against the Commissioner of Police Rivers State, and the Attorney-General, Rivers State was, on 25th August, 2004, was refused by the Rivers State High court (coram: B.E. Ugbari, J).This appeal is against that decision.
The appellant and one other person were arraigned before the Magistrate of Rivers State on two allegations of armed robbery punishable under section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act 1990. Both offences are punishable with death. The magistrate court, having no jurisdiction to try the two accused persons for the capital offences, ordered their remand in prison custody on 30th October, 2003. They remained in that prison custody when the application for enforcement of the appellant’s fundamental rights to personal liberty, fair hearing and freedom of movement respectively under Sections 35, 36 and 41 of the 1999 Constitution was heard on the said 25th August, 2004.
The undisputed facts of this case are as follows:-
i. The appellant was remanded in the Federal prison of the order of the Magistrate Court on allegation of armed robbery punishable with death
ii. The Magistrate Court, having no jurisdiction to try the appellant for the capital offences, took no pleas.
iii. The Magistrate court directed that the case file be sent to the office of the Director of Public Prosecutions for necessary action.
iv. No information had been preferred against the appellant of the appropriate court with jurisdiction to try the appellant for the offences alleged.
At the court below the submissions of the appellant’s counsel seem to be predicated on Section 35 (4) of the Constitution, 1999. He emphasised the point that the appellant had been on remand “for a continued period of about 8 to 9 months” without trial and that for that reason a prima facie case had been made warranting the respondents to be put on notice to defend the allegation of the violation of the appellant’s fundamental rights.
In his considered ruling on the appellant’s application the Learned trial judge stated inter alia that –
The appropriate procedure for the (appellant) to come to this Court is by way of application for bail, especially as the (appellant) appears to have been detained pursuant to Section 35 (1)(c)of the 1999 Constitution. That is, upon reasonable suspicion of his having committed a criminal offence.
Section 35 (1) (c), (4) and (7)(a) of the said constitution are quite germane to this application. Accordingly, they are hereinbelow reproduced. Viz:
35. (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 –
(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, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitle d to bail; or
(b) three months from the date of his arrest or detained in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial of a later date.
(7) Nothing in this section shall be construed-
(a) 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.
It is clear from these provisions that Section 35 (7) (a) of the said Constitution quite expressly excludes the application and invocation of sub-Section (4) thereof “in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence”. The remand order placed on the appellant was consequent upon the allegation that he and one other person committed armed robbery punishable with death under Section 1 (2)(a) of the Robbery and Firearms (Special provisions) Act, 1990 LFN. The appellant’s application for enforcement of his fundamental rights and the refusal by the court below to grant the leave sought should, or ought, ordinarily to be viewed from the perceptive of Section 35 (7) (a), read with sub-section (4), of the 1999 Constitution. Section 46 (2) of the Constitution, like the Fundamental Rights (Enforcement Procedure) Rules, gives the court below enormous powers, which when properly construed, empower the said court to be brood minded and liberal in applications for enforcement of fundamental rights.
The right the appellant approached the Rivers State High Court to enforce is, in actuality, the right to personal liberty guaranteed by Section 35 (1) of the 1999 Constitution. The rights to fair hearing may be interwined. However, the right to freedom of movement of the appellant is merely incidental to the right to his personal liberty.
The personal liberty guaranteed under Section 35 (1) of the constitution is not absolute. The opinion of Nikki Tobi JCA (as he then was) in EZEADUKWA v. MADUKA (1997) 7 N.W.L.R. (pt. 518) 635 attests to this. The derogations from Section 35 (1) and (4) are expressly stated in sub-subsection (7) of the some Constitution.
The question I have to answer in this appeal is: whether the court below was right in refusing the appellant’s application?
My earlier comments on Section 35 (1) and (4), read together with sub-section (7) of the 1999 Constitution would suggest prima facie that the learned trial judge was right in refusing the application, particularly as the remand of the appellant was of the order of a court of law in consequence of the capital offences of armed robbery on which the appellant was arraigned at the Magistrate Court. Other considerations may not make this stance feasible. For instance under Section 9 (3) of the Robbery and Firearms (special Provisions) Act, cap 398 LFN 1990 it is mandatory that proceedings for on offence under Section 1 (2) of the Act –
“Shall be instituted within seven days after the receipt by the Attorney-General of the State concerned – of the file containing the completed Police investigation in respect of the offence.”
The appellant was charged for the offence under Section 1 (2) (a) of the Act. The Magistrate had these provisions in mind when he directed that the case file be sent to the Director of Public Prosecutions in the office of the State Attorney-General.
The provisions of Section 9, which are designed for Speedy trial of the appellant, endure in his favour as they strengthen his rights under Sections 35 and 36 of the constitution.
Speedy trial in my view are aspects of the rights to personal liberty and fair hearing under the constitution which provides in section 36 thereof that in the determination of his civil rights and obligations a citizen shall be entitled to fair hearing within a reasonable time. Section 9 (3) of the Act is intended to set up the agenda for the trial of the appellant within a reasonable time.
The appellant argued that the learned trial judge prejudged the entire proceedings. This charge, in my view, is not properly laid and directed against the Learned trial judge. The Fundamental Rights (Enforcement Procedure) Rules, 1979 by directing the applicant for enforcement of fundamental rights to seek leave of the High Court to enforce a fundamental right allegedly violated confer or vest some discretion in the High Court to be satisfied from the materials before it that the application merits to be heard. I agree with the appellant that at this stage the court below had been called upon to exercise a discretion, which has to be exercised judicially and judiciously. When a discretion is vested in the court to grant leave, the fundamental principle is that, before granting the leave or consent, the judge or the court must be satisfied that the materials placed before him or it disclose or warrant good cause to proceed further in the matter and that the proceedings thereafter would not be an abuse of process.
That is the principle enunciated in IKOMI v. THE STATE (1986) 1 NSCC 730; (1986) 3 N.W.L.R. PT.28) 340. See also FRED EGBE v. THE STATE (1980)1 NCLR 341.
In view of Section 35 (7) of the constitution, Mr. Okwakpan of counsel to the respondent had submitted strongly that the Magistrate’s remand order was not unconstitutional. The order seemingly has the backing of Section 35 (1) (c) of the some constitution. It is the nature of the allegations that brings in the operation of Section 35 (7) of the constitution, thus clothing the remand of the appellant with some constitutionality.
Even though the substance of the application, of the court below is enforcement of appellant’s right to personal liberty guaranteed by Section 35 (1) of the constitution, the undeniable fact is that violations of the right to fair hearing and the right to freedom of movement are interwined in the appellant’s alleged violation of his personal liberty. The right to fair hearing within a reasonable time is a basic concept of the rule of law and a fundamental right. See UNONGO v. AKU (1983) 2 SCNLR 332. Speedy trial is an aspect of the right to fair hearing See ARIORI v. ELEMO (1983) 1 SC 13. It is cardinal principle of the rule of law that a person accused of a criminal offence should not be punished before he is convicted after full trial. In otherwords, he should not be made to suffer penalty for an offence the court of law has not convicted him for. He is, by dint of Section 36 (5) of the 1999 Constitution, entitled to be presumed innocent until he is proved guilty upon trial.
In the cases of RABIU v. THE STATE (1980 8-11 SC 130 and ONYEMA V OPUTA (1987) 6 SC 362 the Supreme, court directed that the constitution should be given a broad and liberal construction in order to promote its purpose, and that a narrow and conservative construction should be avoided.
In otherwords, we are enjoined to pursue such construction of the constitution that would promote good governance and people’s welfare. The rights to personal liberty, fair hearing and freedom of movement are major rights guaranteed in chapter iv of the 1999 Constitution. The Fundamental rights (Enforcement Procedure) Rules 1979, a bye-law of the constitution, should have been given that brood and liberal construction.
Worthy of note are Order 4 Rule 1 (1) and Order 6 Rule 1 (1) of the Fundamental Rights (Enforcement procedure) Rules 1979 which provide –
Order 4.
1 -(1) In on application where the applicant complains of wrongful or unlawful detention, the court or judge to whom the application is made ex parte may make an order forthwith for his release from such detention, or may –
(a) Direct that an originating summons as in the Form 2 in the Appendix be issued or that an application therefor be made by notice of motion, as in the Form 3 or
(b) Adjourn the ex parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.
Order 6
1 -(1) At the hearing of any application, motion, or summons under these Rules, the Court or judge concerned may make such orders, issue such writs, and give such directions as it or he may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution to which the complainant may be entitled.
These rules are elastic enough for whatever order or directions the Judge or High Court hearing an application for enforcement of fundamental rights may make especially as regards the rights guaranteed by Sections 35 (1), 36 and 41 of the 1999 Constitution. They are clear and unambiguous.
Upon examining the Record of appeal, particularly the ruling of the court below of pages 13 – 15 thereof, I am of the considered view that the statement made by the Learned trial judge of page 14 “that the appropriate procedure for the applicant (appellant) to come to this court is by way of application for bail” formed the basis for his refusing the application. There is nothing in the Fundamental Rights (Enforcement Procedure) Rules, 1979 that prevented the trial court, upon granting leave to the applicant to apply for enforcement of his fundamental right, from the applicant to bring the application by way of application for bail. The Rules empower the High Court hearing the application to grant bail, especially where enforcement of the rights to personal liberty and fair hearing are the core issues.
Bail pending trial in a capital offence appears to be the issue in this appeal. The magistrate is not, under the Criminal procedure Law of Rivers State, empowered to grant bail in capital offences. The High court, under Section 118 of the criminal procedure Law, is expressly empowered to grant bail to any person charged with on offence punishable with death. Guided by authorities of UKATU v. COMM. OF POLICE (2001) 6 N.W.L.R. (pt.710) 765; EYU v. THE STATE (1988) 2 N.W.L.R. (pt. 78) 602. ANI v. THE STATE (2002) 1 N.W.L.R. (Pt.747) 217.
The Learned trial judge should have directed that the application for enforcement of the appellant’s right to personal liberty should have been brought by way of an application for bail. This conclusion leads me to holding that the court below was not right in refusing the application for leave to apply for enforcement of the appellant’s right to personal liberty guaranteed by Section 35 (1) and the right to fair hearing guaranteed by section 36, of the Constitution.
The law, as stated by Oguntade JCA (as he then was) in EYU v. THE STATE (supra) of 610, presumes in favour of the liberty of the subject and his innocence until found guilty. This alone should have weighed on the court below to grant the leave sought.
It appears from the dictum of Idoko J (as he then was) in MORGAN OKETA OGWU & ORS v. THE STATE (1981/82) BNLR 31 that where a person accused of a capital offence complains of long delay by the prosecuting authorities to take him to the appropriate and competent court for his trial and he is able to show that there has been a wanton delay accompanied by or resulting from a lack of care to perform their duties diligently, either on the part of the police investigating or the staff of the office of the Attorney-General prosecuting that succor by way of bail pending his trial may come his way notwithstanding the provisions of Section 35 (7) of the Constitution. Where clearly the prosecuting authorities abuse the provisions of Section 35 (7) of the Constitution the citizen is not left without a remedy.
There are quite sufficient provisions in the Constitution that are inimical to abuse of power or office, and inhumanity.
Sections 15 (5) and 17 (2) (b) read together with Section 34 (1) (a), of the some Constitution come very handy on this I allow the appeal. The decision of the court below on 25th August, 2004 refusing the leave sought to enforce the appellant’s fundamental rights to personal liberty, fair hearing and freedom of movement is hereby set aside. In its place I enter an order granting leave to the appellant to apply for the enforcement of his fundamental rights aforesaid. The case shall be assigned by the Chief Judge of Rivers State to a Judge of the High Court of Rivers State, other than B. E. Ugbari J, to hear and determine.
CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, EJEMBI EKO, JCA. I am in complete agreement with the reasoning and conclusions contained therein, which I adopt as mine.
I agree that the appeal is meritorious and ought therefore to be allowed. The decision of the trial court on the 25/9/04 is also set aside.
MODUPE FASANMI, J.C.A.: I had the privilege of reading the draft of the judgment of my learned brother EJEMBI EKO J.C.A. I agree entirely with his reasoning and conclusion that the appeal is meritorious. It is hereby allowed by me. I abide by the consequential orders contained in the said lead judgment.
Appearances
Tuduru Ede, Esq with P.P. Eluke (Mrs) and v. Ediale (Miss)For Appellant
AND
D. L. Okwakpan Esq,For Respondent
