Ethelbert Onyekwuo v. Attorney General Imo State & Anor (2018)



Ethelbert Onyekwuo v. Attorney General Imo State & Anor (2018) – CA

by PaulPipAr

⦿ TAG(S)




1. Attorney General Imo State;
2. The Deputy Comptroller Federal Prisons Owerri;


(2018) LPELR-45479(CA);


Court of Appeal


Massoud Abdulrahman Oredola, J.C.A.





⦿ FACT (as relating to the issues)

The appellant was arrested on the 7th day of March, 1997 for causing the death of one Valentine Onyeneke. The appellant was first arraigned on the 10th day of April, 1997 for the offence of murder and remanded in prison custody. Thereafter, he was arraigned again for murder before the High Court of Imo State, Owerri on the 29th day of November, 1997 and his plea was taken. The appellant’s trial however became protracted and eventually judgment was delivered in Suit No. HOW/3C/1999 on the 22nd day of June, 2012, a period of more than 15 years from the period when he was first arrested.
In the said judgment, he was found guilty of manslaughter and sentenced to 13 years imprisonment with hard labour. The learned trial judge in that criminal case was however silent on the issue of whether the term would be served afresh or be presumed served from the period the appellant was already incarcerated and in the custody of the 2nd respondent. Thus, the natural inference was that the appellant would serve the 13 years term of imprisonment in addition to the period of his incarceration during the course of the trial.
Aggrieved by the decision of the trial Court in the criminal proceedings especially on the computation of his term of imprisonment, the appellant thereby brought this suit wherein he sought for the order of the lower Court to declare his continuous incarceration and long period of trial unconstitutional and breach of his fundamental rights, coupled with an apology and award of damages as compensation for the alleged breach of his fundamental rights.
The learned trial judge after the giving of due consideration to all the pieces of affidavit evidence adduced by the parties, found and/or held that the inordinate delay with regard to the period of appellant’s trial was a breach of the appellant’s fundamental right to have his criminal trial conducted within reasonable time as enshrined in Section 36(4) of the Constitution.

Available:  Adamu v. Attorney General Of Borno State (CA/J 57/94, 16 April 1996)

However, the learned trial judge declined to grant the appellant’s reliefs sought in the said suit on the basis that granting the same would amount to sitting on appeal in respect of a judgment delivered by a judge of coordinate jurisdiction.

The decision and or position taken by the learned trial judge did not go down well with the appellant, thus, he appealed against the same to this Court.


Whether the lower court was wrong to have refused to release the applicant from prison custody having been tried and sentenced by a court of competent jurisdiction?



1. The Court of Appeal gave judgement against the Appellant, and in favour of the respondents.

i. There is no evidence laid before this Court that he applied for bail and the same was refused or that he appealed against the order committing him to prison pending his trial and the appeal went in his favour, yet the appellant was not released. Thus, the implication of this is that the appellant was held and kept in prison pursuant to orders of Courts of competent jurisdiction which has not been challenged or set aside.

Available:  Odion Okhiria v. The State (2016)

ii. I have taken time to examine the reliefs sought by the appellant with respect to this case and I do agree with the learned trial judge that the reliefs dwell mainly and/or has major implications on the judgment of Hon. Justice U. D. Ogwurike J., of the High Court of Imo State, Owerri in Suit No. HOW/3C/1999. I also agree with the learned trial judge that pronouncing positively on, coupled with the grant of the reliefs sought by the appellant in this case, would amount to sitting on appeal on a judgment of a Court of co-ordinate jurisdiction, and in respect of which learned trial judge lacked the power and or jurisdiction to do.

iii. The proper course of action opened to the appellant is to appeal against his conviction and sentence to this Court and not to take out a separate action at the same Court with coordinate jurisdiction (as done in this case) in a bid to set aside his conviction and sentence. The line of action adopted by the appellant with the filing of the instant action could be classified as a way of seeking justice through the back door, while the front door is still wide open. In the light of all that have been said above, I am of the firm viewpoint that the lower Court was right to have refused to grant the reliefs sought by the appellant. Thus, the issue adopted for resolution in the determination of this appeal is resolved against the appellant.

Available:  Adankwor Etumionu v. Attorney-General Of Delta State (1994)








It is instructive to state that a citizen’s right to liberty is not at large, it is curtailed and limited by the provisions of the same Constitution which provided and guaranteed the same fundamental rights. One of such limitations as specified by the Constitution is when the citizen is facing a criminal trial especially when the punishment for the offence he is charged with, carries the ultimate penalty, capital punishment or life imprisonment; and a Court of competent jurisdiction so ordered that he should be kept in prison custody pending the conclusion of his trial or to serve out his term of imprisonment (if found guilty); or pending when he would be executed. – Oredola, JCA. Onyekwuo v. Imo State (2018)

It is well established that only live issues between parties and ratio of a decision are matters to be considered in an appeal and not other extraneous matters. – Oredola, JCA. Onyekwuo v. Imo State (2018)

That fundamental right enforcement proceeding is basically and essentially a civil proceeding. It is thus unheard of or unthinkable, that recourse can be had to such a proceeding, in an avowed bid to set aside, overturn, interfere, intervene, quash or tamper with a decision reached in the course of a criminal proceeding/matter. – Oredola, JCA. Onyekwuo v. Imo State (2018)

Civil proceeding cannot be used to overturn decision(s) reached in a criminal matter. – Oredola, JCA. Onyekwuo v. Imo State (2018)




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