ZAKARI & ANOR v. C.O.P OF KANO STATE & ORS (2022)

ZAKARI & ANOR v. C.O.P OF KANO STATE & ORS

(2022)LCN/16654(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, July 04, 2022

CA/K/203/2015

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. MUSA ZAKARI 2. AHMED ZAKARI APPELANT(S)

And

1. COMMISSIONER OF POLICE OF KANO STATE 2. HAJIYA FATIMA 3. THE HON. CHIEF MAGISTRATE COURT 23 GYADI, GYADI, KANO 4. THE HON. CHIEF MAGISTRATE COURT 16 NOMANSLAN 5. HON. ATTORNEY GENERAL OF KANO STATE RESPONDENT(S)

RATIO

WHETHER OR NOT ONE WHO IS UNDERGOING A CRIMINAL TRIAL, WHERE HE IS ENJOYING BAIL, CAN COMPLAIN OF VIOLATION OF RIGHT OF FAIR HEARING AND TO LIBERTY, SIMPLY BECAUSE OF AN ADMINISTRATIVE DECISION TO TRANSFER HIS CASE FROM ONE COURT TO ANOTHER

One who is undergoing a criminal trial, whereof he is enjoying bail, cannot complain of violation of right of fair hearing and to liberty, simply because of an administrative decision to transfer his case from one Court to another, where the first Court trying him has a problem to continue with the trial, and Appellants’ right to continue with the trial, and enjoy the existing bail, is not threatened, in anyway.
A claim for breach of fundamental rights is not founded on wishful thinking and speculation of applicant, or on self-inflicted and imaginative fears that his liberty was going to be curtailed, and fair hearing, hampered. The facts of this case rather suggest that it was in the Appellants’ interest, to transfer the trial to another Court that was disposed to hear the case, speedily, as the 3rd Respondent was indisposed. And the Respondents had averred that Appellants’ liberty and right to continue with their bail and fair hearing, were not under threat. Their fears, therefore, appeared baseless and unreasonable especially as their complaint was in respect of a pending (ongoing) criminal trial. See the case of Francis Vs Asugha (2020) LPELR – 50616 CA, Afribank Vs Homelux Construction Co. Ltd & Anor (2008) LPELR – 9020 CA.
In the case of Abuja Electricity Distribution Co. Plc & Ors Vs Akaliro & Ors (2021) LPELR – 54212 CA, my Lord, Agube JCA said:
“It must be clearly stated that a bare and generalized allegation of arrest and detention cannot serve as sufficient proof of infraction on the rights of an Applicant, he must go further to advance concrete, cogent and convincing reasons for the Court to find in his favour. The Court must not give to speculation, conjecture or logical deduction, applicant has a duty to furnish in substantial details the fact of his arrest and detention, he must in other words particularize the particulars of his arrest and detention. A Court of law must not render its self-gullible or vulnerable to guess-work….”
In the case of Surveyor General of CRS & Ors Vs Jonathan & Ors (2014) LPELR – 23380 CA, it was held:
“It is well established that an applicant’s claim to enforce his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009 must be founded on constitutionally guaranteed rights. The applicant must seek to enforce or protect a right guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended.” Per OTISI, JCA
In that case of Francis Vs Asugha (2020) LPELR – 50616, we held that:
“What constitutes fundamental rights action relates to infringement of any of the basic rights of Applicant as specified in the Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended. See the case of Al-Hashim Vs Tom & Ors (2019) LPELR – 47651 CA:
… A dispute to the right of pre-emption in the purchase of a property cannot be equated to infringement of fundamental rights…
In the same way, dispute as to snatching of a microphone from Appellant in public and calling him “thief”, or acting in a way that disgraces or demeans him (Appellant) in public place does not appear to me to constitute infringement of fundamental rights. It may however lie some remedies in tort or defamation.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Kano State High Court in Suit No. K/M568/2014, delivered on 27th March, 2015 wherein the trial Judge, Hon. Justice A.T. Badamasi, dismissed the Application for the enforcement of Appellants’ fundamental rights to fair hearing and personal liberty, relating to the transfer of their case from the 3rd Respondent to the 4th Respondent.

At the lower Court, Appellants, as Applicants in a claim for the enforcement of their fundamental rights, pursuant to Sections 35, 36(6) and 46 of the Constitution of the Federal Republic of Nigeria, 1999 and Order IV Rule (3) (4) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and the inherent powers of the Court, had sought the following reliefs:
(1) An Order enforcing the Applicants’ fundamental rights to personal liberty and fair hearing in a criminal trial commenced by the Commissioner of Police, Kano State (the 1st Respondent) against the Applicants, on the complaint of the 2nd Respondent (the Nominal Complain and complainant) which are undergoing criminal trial before the 3rd Respondent and without any just cause, the criminal trial is to be re-commenced before the 4th Respondent, in violation of the Appellants’ fundamental rights to personal liberty and fair hearing, by building a fresh case after the evidence led by the prosecution are destroyed while cross-examined, now being sought to be enforced by granting the following prayers
(a) An Order enforcing the Appellants’ fundamental right to fair hearing, by compelling the Respondents to afford the Applicants a criminal trial within a reasonable time as guarantee (sic) by the Constitution of Nigeria.
(b) An Order compelling the 1st Respondent to continue with the criminal trial of the Applicants before the 3rd Respondent as the trial has substantially been conducted for over two years; as commencing a fresh case before the 4th Respondent violate (sic) the Applicants’ fundamental right to fair hearing and would lead to wrongful detention of the Applicants in Prison Custody after they had earlier on (sic) remanded in Prison Custody for over ten months, will cause untold hardship with no end (sic) sight in the interest of justice.

ALTERNATIVELY
(c) An Order that the 4th Respondent shall continue with the criminal trial of the Applicants maintaining and upholding the bail granted to the Applicants by the 3rd Respondent, which has been subsisting before the transfer of the case to the 4th Respondent and shall ensure that the 1st Respondent complies with the judgment and order of the High Court of Justice of Kano State, in Suit No. K/M422/13 between the Applicants and the 1st and 3rd Respondents which compels (sic) the 1st Respondent (1st Judgment Debtor) to pay the 1st Applicant (1st Judgment Creditor) the sum of N1,000,000.00 (One Million Naira) damages before proceedings (sic) with the criminal trial of the accused persons/Applicants.
(d) An Order compelling the 1st Respondent to comply with the judgment and order of the High Court of Justice of Kano State in Suit No. K/M422/13 between the Applicants and the 1st and 3rd Respondents.
(e) Any other Order or Orders…” (See Pages 29 – 30 of the Records of Appeal).

The Application was supported by a Statement, disclosing the grounds for the application, particulars of the parties, affidavits and exhibits, including proceedings/Court order in Suit No. K/M422/13.

The Respondents filed a counter-affidavit, deposed to by Zainab Baffa Sani, Assistant Registrar in the Ministry of Justice Kano State, with the consent of her employer and Respondents, to contest the claims of the Applicants (Appellants). (See Pages 150 to 153 of the Records of Appeal)

After hearing the case and considering the affidavit evidence of the parties, and the addresses of Counsel, the trial Court dismissed the suit, saying that the application lacked merit. The Court said:
“It is however a matter of common knowledge that the office of the Chief Registrar of the High Court is created to exercise Administrative/Judicial Functions which include the power to assign and transfer cases from one Magistrate to another, as the Chief Registrar acts not only on the head of administration, but also as a Chief Magistrate, Grade I.
These facts are so notorious in which proof is not required and by the provision of Section 124(1)(a) of the Evidence Act, 2011, I can take judicial notice of these facts. The Chief Registrar as a Chief Magistrate, Grade I, is empowered under Section 8(2) of the Magistrate Courts Law, to ensure as fair as practicable, the even distribution of work among the Magistrates of his district and the expedious disposal of any cause or matter pending in the district and to take such steps as may be necessary to relieves (sic) congestion in the Courts within his district.”
… the Chief Registrar has competence to assign cases within his domain and also to take steps as may be necessary to relieve congestion in the Courts within his district… Section 32 of the said Law makes it explicit that a Magistrate may at any stage of the proceedings and before Final Judgment, transfer any cause or matter before him to any other Magistrate, having jurisdiction to try the case; the combine effect of the provisions of Sections 8 and 32 of the Magistrate Courts Law therefore is to give the Chief Registrar, who acts ss Chief Magistrate, Grade I, the power to assign and transfer criminal matters within his domain.
The procedure adopted by the Applicants in challenging the power of the Chief Registrar… in my view is not proper, the Chief Registrar acted as a Magistrate, Grade I, when he transferred the case from the 3rd to the 4th Respondent. If the Applicants are not happy with his decision, they should have come by way of certiorari, because where apparently there appears to be a breach of rule of natural justice or likely to be committed by an inferior Court or Tribunal, an aggrieved party can resort to the use of certiorari to get that proceedings quested. See Onyiye Kuluje Vs Benue State Govt (2005) 2 LWR Vol.2 205 at 224 – 6. On the whole, I hold that the application is lacking in merit and it is hereby dismissed.” (See the ruling on Pages 68 to 70 of the Records of Appeal).

That is the decision Appellants appealed against, as per their Notice of Appeal on Pages 245 – 248 of the Records of Appeal. Appellants filed their brief of arguments on 14/8/2015 and distilled a lone issue for the determination of the appeal, as follows:
“Whether in the circumstances of the Applicants’ motion for enforcement of Applicants’ fundamental human rights to fair hearing and personal liberty, the affidavit evidence and the undisputed fact that the criminal case against the Applicants, before the 3rd Respondent Chief Magistrate, was transferred to the 4th Respondent Chief Magistrate, after over two years criminal trial, without hearing the accused persons, the lower Court was right to have dismissed the Application for enforcement of the Applicants’ right to fair hearing.”

RESOLUTION OF THE ISSUE
Appellants did not relate the Issue to any of the grounds, but it is assumed that the same derived from the 3 grounds. The Respondents did not file any brief, but Bashir Sale, Esq., DDSP, MOJ. Kano, who appeared for 1st, 3rd – 5th Respondents said the appeal had been overtaken by events.

Appellants’ Counsel, Bello Ibrahim Esq., had argued that the transfer of their criminal trial from the 3rd Respondent to 4th Respondent (from Chief Magistrate Court 23 to Chief Magistrate Court 16) amounted to violation of their fundamental right to fair hearing and personal liberty, as they were not put on notice of the transfer, and after the case had been pending for 2 years before the 3rd Respondent. In Paragraph 12 of their Affidavit in support of the Application, they averred:
“The Respondents through Rufa’i Gwadabe (prosecutor) has been harassing, intimidating and threatening to arrest and detain us on the transfer that we are not on notice, in violation of our fundamental rights to personal liberty and fair hearing.” (See page 33 of the Records of Appeal).

Of course, the above averment of the Appellant was denied by the Respondents in paragraphs 5(I (ii) (iii) (iv) (v) of their Counter-Affidavit, when they said:
(i) That the office of the 1st Respondent has no intention to arrest, detain and or remand of the Applicants by the 4th Respondent.
(ii) Office of the 5th Respondent which took over prosecution of the Applicants/Respondents criminal trial before 4th Respondent… are not after temporary liberty of the Applicants/Respondents, but rather for them to appear and stand trial.
(iii) That the office of the 5th Respondent undertake (sic) that they will not oppose the bail application of the Applicants/Respondents.
(iv) That transfer of the Applicants/Respondents case from 3rd Respondent to 4th Respondent is within the confines of the law.
(v) That the Suit No. K/M422/13 is entirely different and distinct from this present suit, and as such the prayer of the Applicants/Respondents to compel the 1st Respondent/Applicant to comply with the judgment of the said Suit is unknown to law as far this Suit (sic).” (See Pages 152 to 153 of the Records of Appeal)

The Respondents also averred in Paragraph 4(a) to (d) of the Counter-Affidavit, as follows, to explain why the trial was transferred from the 3rd Respondent to 4th Respondent:
(a) That contrary to the Applicants/Respondents’ deposition in Paragraphs 9, 11, 12 and 13 of their affidavit, the applicants sureties were informed their case was transfer (sic) to the 4th Respondent, as such they should appear before the 4th Respondent.
(b) The said transfer was necessary from 3rd Respondent to 4th Respondent due to serious fracture sustained by the presiding Magistrate (Your Worship Binta Ibrahim Galadanchi) of the 4th (sic) Respondent for (sic) getting to 7 months now.
(c) That for good 7 months now, the said presiding Magistrate of Court No.23 (3rd Respondent) has not been (sic) recover from the said serious fracture she sustained, as such the case has to be transfer (sic) through the Office of Chief Registrar of this Honourable Court upon her instruction.
(d) This was necessitated due to the fact that been (sic) a criminal trial which need speedy trial and even the Applicants/Respondents pray this Honourable Court alternatively that the 4th Respondent shall continue with the criminal trial of the Appellants maintaining and upholding the bail granted to the Appellants by the 3rd Respondent, which has been subsisting before the transfer of the case to the 4th Respondent…” (See Pages 151 – 152 of the Records)

I have not seen where Appellants, effectively, denied the above averments, which also appear plausible and reasonable.

The case before the lower Court was not on the legality or otherwise of the transfer of the criminal trial from the 3rd Respondent to the 4th Respondent, on the reported account of the indisposition of the 3rd Respondent, healthwise, due to the fracture she had, and which caused the case to stagnate for 7 months. Whether the Chief Registrar had legal or administrative powers to transfer the case, from the 3rd Respondent to the 4th Respondent, does not appear to be the issue in this appeal. What is in issue is, whether Appellants’ fundamental rights to fair hearing and to liberty were violated by so doing (transfer of the case), which the lower Court resolved in the negative.

I find the entire Application of the Applicants, at the lower Court strange, and ill-advised, in the circumstances of the facts of the case. The claim was misconceived and misplaced, showing a poor understanding of the whole concept of fundamental rights action, by Applicants’ Counsel.

One who is undergoing a criminal trial, whereof he is enjoying bail, cannot complain of violation of right of fair hearing and to liberty, simply because of an administrative decision to transfer his case from one Court to another, where the first Court trying him has a problem to continue with the trial, and Appellants’ right to continue with the trial, and enjoy the existing bail, is not threatened, in anyway.
A claim for breach of fundamental rights is not founded on wishful thinking and speculation of applicant, or on self-inflicted and imaginative fears that his liberty was going to be curtailed, and fair hearing, hampered. The facts of this case rather suggest that it was in the Appellants’ interest, to transfer the trial to another Court that was disposed to hear the case, speedily, as the 3rd Respondent was indisposed. And the Respondents had averred that Appellants’ liberty and right to continue with their bail and fair hearing, were not under threat. Their fears, therefore, appeared baseless and unreasonable especially as their complaint was in respect of a pending (ongoing) criminal trial. See the case of Francis Vs Asugha (2020) LPELR – 50616 CA, Afribank Vs Homelux Construction Co. Ltd & Anor (2008) LPELR – 9020 CA.
In the case of Abuja Electricity Distribution Co. Plc & Ors Vs Akaliro & Ors (2021) LPELR – 54212 CA, my Lord, Agube JCA said:
“It must be clearly stated that a bare and generalized allegation of arrest and detention cannot serve as sufficient proof of infraction on the rights of an Applicant, he must go further to advance concrete, cogent and convincing reasons for the Court to find in his favour. The Court must not give to speculation, conjecture or logical deduction, applicant has a duty to furnish in substantial details the fact of his arrest and detention, he must in other words particularize the particulars of his arrest and detention. A Court of law must not render its self-gullible or vulnerable to guess-work….”
In the case of Surveyor General of CRS & Ors Vs Jonathan & Ors (2014) LPELR – 23380 CA, it was held:
“It is well established that an applicant’s claim to enforce his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009 must be founded on constitutionally guaranteed rights. The applicant must seek to enforce or protect a right guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended.” Per OTISI, JCA
In that case of Francis Vs Asugha (2020) LPELR – 50616, we held that:
“What constitutes fundamental rights action relates to infringement of any of the basic rights of Applicant as specified in the Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended. See the case of Al-Hashim Vs Tom & Ors (2019) LPELR – 47651 CA:
… A dispute to the right of pre-emption in the purchase of a property cannot be equated to infringement of fundamental rights…
In the same way, dispute as to snatching of a microphone from Appellant in public and calling him “thief”, or acting in a way that disgraces or demeans him (Appellant) in public place does not appear to me to constitute infringement of fundamental rights. It may however lie some remedies in tort or defamation.”
As earlier stated in this judgment, in this case, Appellants were already standing trial for criminal offence and had been granted bail, while undergoing the trial. The mere act of transfer of the case to another Magistrate (which is an administrative and judicial act) does not and cannot suggest violation of Appellants’ right of fair hearing or infringement of their personal liberty, even if the Court were to have ordered their remand, or refused the continuation of their bail, as that would be a judicial act.
Even under the Section 35(1) of the 1999 Constitution, whereof Appellants founded their claim of right to liberty, the Sub-sections (a) to (f) permit the denial of a person’s liberty, in certain instances:
(a) In execution of the sentence or order of a Court in respect a criminal offence of which he has been found guilty;
(b) By reason of his failure to comply with the order of a Court or in order to secure the fulfilment 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, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) In the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(e) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or 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 other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
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.”
I think Appellants acted in terrible error, to have resorted to the fundamental rights option, in the circumstances, and even frustrated their speedy trial.

I find no merit in this appeal and so dismiss it.
Parties to bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, ITA G. MBABA, J.C.A. I am in agreement with his reasoning and conclusion dismissing the appeal. I have nothing useful to add.

I abide by the consequential orders contained in the leading judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have read in draft the judgment delivered by my learned brother, ITA G. MBABA, JCA in this appeal. I entirely agree with the judgment and the way the issues were treated by my Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me.

I abide by the consequential orders made therein.