➥ CASE SUMMARY OF:
George Adumu v. The Comptroller of Prisons, Federal Prisons, Aba & Ors. (CA/OW/292A/2011, Friday 19th day of April 2013)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Bail jurisdiction;
➥ CASE FACT/HISTORY
On 14th/11/2011, the Appellant through his Counsel filed an application for the enforcement of his fundamental human right, at the Federal High Court, Umuahia Judicial Division in Abia State before Hon. Justice M, G. Umar. The Appellant also filed a motion exparte for bail under Order IV Rules 3, 4(a), (b), (c), (i) (iv) & (v) of the Fundamental Right (Enforcement Procedure) Rules, 2009. On the 15th/11/2011 fixed for the motion ex parte for bail, the Learned trial Judge ordered that the Respondents be put on notice. On the 22/11/2011, the Appellant filed and served a motion on Notice for bail in compliance with the order of Court. On the 1/3/2012, fixed for the hearing for the motion of bail, the Learned trial Judge failed to consider the motion on notice for bail, declined jurisdiction and transferred the matter to Federal High Court, Port Harcourt Judicial Division.
He said as follows:
“I have discovered that the offence for which the accused person is alleged to have committed leading to his arrest was committed in Rivers State. The 2nd and 3rd Respondents are in Rivers State. The Applicant is only in custody in Abia State Prison in Aba. I hereby transfer this matter to the Port Harcourt Judicial Division of the Federal High Court where the alleged infringement was alleged to have occurred.” (See page 50 of the supplementary record.)
Dissatisfied with the said Ruling, the Appellant on the 21/3/2012 filed a Notice of Appeal containing two Grounds of Appeal.
➥ ISSUE(S)
I. Whether the Court below was right in holding that the proper venue for the Appellant to enforce his fundamental right to liberty is at Rivers State where the cause of action arose?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[‘In the resolution of this issue, it is necessary to critically look at the applicable Laws and relate same to the subject matter in dispute. Section 46 of the 1999 Constitution (as amended) which I reproduced earlier on, specifically and unequivocally provided for the much needed venue for the Enforcement of Fundamental Rights in case of breach to be the High Court of a State or the Federal High Court where the breach has been, is being or likely to be contravened to apply for redress and the Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under the chapter.
In the instant case, the Appellant was charged before the High Court of Rivers State Port Harcourt, before Courts 1, 8 and 10 for the offences of murder, unlawful possession of firearms and secret cult related activities among others. However, at the time of the application for the enforcement of his fundamental rights, the Appellant was and still in detention in Umuahia Federal Prisons, within the jurisdiction of the Federal High Court. The Appellant on the 14th/11/2011 filed an application for the enforcement of his fundamental human right to liberty at the Federal High Court, Umuahia Judicial division. The Appellant also filed a motion exparte for bail under order IV Rules 3, 4(a), (b), (c) (i), (iv) (v) of the Fundamental Right (Enforcement Procedure) Rules 2009. On the date fixed for the hearing of the motion, the Learned trial Judge declined jurisdiction and transferred the matter to Port Harcourt Judicial Division of the Federal High Court.’
‘It is trite that Fundamental Right (Enforcement Procedure) Rules are special type of proceedings. They are in special class of their own unlike the ordinary cases that run through our Courts daily, they are to be treated with due diligence and not to be handled anyhow. This is because, the object of enforcement of fundamental right is to provide a simple and effective process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. In the circumstance therefore, it is my humble view that the order of transfer made by the learned trial judge was a wrongful exercise of discretion. The Law is settled that the discretion of a Court must at all times be exercised not only judicially but judiciously on sufficient materials placed before it. See Udensi vs. Odusote (2003) 6 NWLR (PT.817) 545 at 558; Ogbuehi vs. Governor of Imo State (1995) 9 NWLR (PT.417) 53; University of Lagos vs. Aigoro (1985) 1 NWLR (PT.143) at 148.’
THE STATE WHERE THE ALLEGED VIOLATION IS TAKING PLACE HAS JURISDICTION
‘Section 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) prescribed the Court having jurisdiction to be the state in which the alleged violation is taking place and in the instant case, the allegation of violation of the Appellant’s right to liberty is his incarceration and his co-accused to various prisons in Nigeria which is far from the Courts where charges were allegedly filed in Rivers State Port Harcourt and without any trial since 22/10/2010. The Appellant being in custody of Abia prison, makes the Federal High Court, Umuahia, the appropriate venue for the enforcement of the Appellant’s fundamental right. The learned trial judge by taking into account where the cause of action arose in an enforcement of fundamental right action, acted under a misconception of Law and this Court will intervene and set aside the perverse judgment in the interest of justice.’
‘The provisions of Sub-Section (4) of Section 22 of the Federal High Court Act does not apply to subsection (1) of the Section 22. Subsection (4) of Section 22 of the Federal High Court Act cannot therefore be said to be inconsistent with the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) where parties to a dispute before a Court or tribunal are given unfettered right of appeal in final decision.’]
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.
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✓ DECISION:
‘I have found in this judgment that the order made on the 1st day of March, 2011 transferring the application of the Appellant enforcing the enforcement of his fundamental right to freedom and liberty is a final decision and the provision of Section 22(4) of the Federal High Court Act does not apply to subsection (1) thereof and by the provisions of Section 241(1) (a) of the 1999 Constitution (as amended) the Appellant has unfettered right of appeal.
Consequently, this appeal has merit and it is hereby allowed. The decision of the Lower Court delivered on the 1st day of March, 2012 transferring the application to Port Harcourt Division of the Federal High Court is hereby set aside. The Suit is hereby remitted to the Federal High Court, Umuahia for hearing on the merit.’
➥ FURTHER DICTA:
⦿ A PARTY IS NOT ENTITLED TO RAISE FRESH ISSUE ON APPEAL WITHOUT THE LEAVE OF COURT
Mr. Aguma, Esq. for the Respondent also challenged the competence or otherwise of the motion filed before the Lower Court, the subject of the present appeal. It is clear that these issues, that is, whether the Attorney-General Rivers State has given his fiat to prosecute the Appellant and his co-accused persons or not, the issue of whether valid charge has been brought against the Appellant and his co-accused before the High Court of Rivers State or not and or whether the charges were unlawful or illegal are not issues raised for determination in this appeal nor covered by any of the two grounds of appeal filed by the Appellant nor the issue distilled therefore for determination. The issues are raised for the first time in this appeal. They were neither raised nor decided upon by the Federal High Court, Umuahia from where the instant appeal arose. No leave was sought to raise these fresh issues in this appeal. A party is not entitled to raise fresh issue on appeal without the leave of the Court being first sought for and granted. This is because the jurisdiction of the Court of Appeal is primarily to review by way of rehearing the decision or decisions of the Lower Court. The rationale behind this is that the Court below must have been given the opportunity to pronounce on the issue to avail the Appeal Court of its decision on the matter and to enable the Appeal Court review the Lower Court’s pronouncement on the same judiciously. In the instant case, the issues are stated above were raised for the first time by Learned Counsel for the Appellant and also the Respondent in their briefs of argument without leave of this Court are grossly incompetent. – U. M. A. Aji JCA.
⦿ IT IS A FINAL DECISION WHERE THE RIGHTS OF PARTIES ARE COMPLETELY DETERMINED
It is also settled that if any order, decision, or judgment of a Court finally and completely determines the rights of the parties in the case, it is a final decision. – U. M. A. Aji JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
George T. Ogara, Esq.
⦿ FOR THE RESPONDENT(S)
Emmanuel C. Aguma, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 46(1)&(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
Section 22(1), (2), (3) and (4) of the Federal High Court Act;
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
