3PLR – KEN SARO-WIWA V. ATTORNEY GENERAL OF THE FEDERATION AND ORS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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KEN SARO-WIWA
V.
ATTORNEY GENERAL OF THE FEDERATION AND ORS
COURT OF APPEAL
(PORT HARCOURT DIVISION)
CA/PH/177M/94
TUESDAY 22ND NOVEMBER 1994
3PLR/1995/49 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
ALOYSIUS IYORGYER KATSINA-ALU;
DENNIS ONYEJIFE EDOZIE;
RAPHAEL OLUFEMI ROWLAND.
BETWEEN
KEN SARO-WIWA; LEDUM MITEE
AND
ATTORNEY GENERAL OF THE FEDERATION; STATE SECURITY SERVICE; INSPECTOR GENERAL OF POLICE; CHIEF OF STAFF, NIGERIAN ARMY; MILITARY ADMINISTRATOR, RIVERS STATE; COMMISSIONER OF POLICE, RIVERS STATE.
REPRESENTATION
E.C. Ukala – for Applicant
- Odugbesan, Legal Officer, Federal Min. of Justice – For 1st – 4th Respondents
MAIN ISSUES
PRACTICE AND PROCEDURE – COURT – Whether court of appeal can grant application for bail made in the first instance – section 219 of the 1979 Constitution
MAIN JUDGEMENT
KATSINA-ALU JCA Delivering Leading Judgement
The applicants brought a motion on notice pursuant to Section 16 of Court of Appeal Act, 1976, Order 3 rule 3(1) Court of Appeal Rules 1981 and the inherent jurisdiction of this Court seeking the following reliefs:-
- An interim order releasing forthwith the applicants from their unlawful detention pending the hearing and determination of the Appeal filed by the appellants/respondents.
Alternatively,
An interim order admitting the applicants to bail upon such conditions as this Honourable Court may deem fit pending when the respondents will be ready to properly charge the applicants for any offence before a proper court of law with jurisdiction to try the applicants for the offence.
- Such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case”.
The 5th and 6th respondents filed a notice of preliminary objection pursuant to order 3 rule 15(1) court of Appeal Rules 1981. The grounds of the objection are as follows:-
(i) This Honourable court being an appellate court cannot exercise original jurisdiction over the release of the applicants and or granting them bail; Section 219 of the 1979 Constitution of the Federal Republic of Nigeria.
(ii) The exercise of the jurisdiction of this Honourable Court to release or grant bail to the applicants is contingent on its holding that the applicants application of 1st June, 1994 and filed on 2nd June, 1994 is competent and that the court below has the jurisdiction to entertain the said application: Madukolu v Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 595.
(iii) It is settled law that Section 16 of the Court of Appeal Act 1976 does not confer jurisdiction, but enables the Court to exercise powers with respect to jurisdiction vested by statute. The State v Onagoruwa (1992) 2 NWLR (Pt 221) 33 at P.54 E.
(iv) This Honourable Court has no inherent jurisdiction to release or grant bail to the applicants.
I.I.D. Opuminji, Chief State Counsel for the 5th and 6th respondents in moving his objection submitted that the application of the applicants dated 14/9/94 and filed on 27/9/94 is incompetent in that the application was not made in the first instance to the court below in breach of Order 3 rule 3(4) Court of Appeal Rules 1981. He further submitted that this Court cannot exercise original jurisdiction over the release of the applicants and /or granting them bail in view of the provisions of Section 219 of the 1979 Constitution of the Federal Republic of Nigeria. For this submission learned counsel relied on Mobil Oil Nigeria Ltd v Agadaigho (1988) 2 NWLR (Pt 77) at 406. It was also contended by learned counsel for the 5th and 6th respondents that Section 16 of the Court of Appeal Act does not confer original jurisdiction on this Court to entertain an application of this nature. Lastly, learned counsel urged us to strike out this application on the ground that it is incompetent.
Mr. Odugbesan, Legal Officer, Federal Ministry of Justice for the 1st to 4th respondents associated himself with the submission of learned counsel for the 5th and 6th respondents.
Mr. E.C. Ukala, learned counsel for the applicants, in his reply, was of the view that this court is competent to hear and determine his application. He submitted that Section 219 of the 1979 Constitution does not apply to deprive this court of its jurisdiction to hear this application in view of the pending appeal on the question of jurisdiction. He further submitted that Section 16 of the court of Appeal Act 1976 empowers this court to exercise the jurisdiction of the lower court to do what that court failed to do. For this submission he relied on the cases of Okoya v Santili (1990) 2 NWLR (Pt 131) 172 at 207; Igboho Local Government v Boundary Settlement Commissioner (1988) 1 NWLR (Pt. 69) 189 at 198 and Jadesimi v Okotie Eboh (1986) 1 NWLR (Pt 16) 264 at 274-275. Learned counsel finally urged this court to dismiss the preliminary objection.
Section 219 of the 1979 Constitution provides as follows;
“219. Subject to the provisions of this Constitution, the Federal Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State”.
It is manifest from the above provision and it goes without saying that this Court is an appellate court.
The crucial issue for determination is whether this Court as an appellate court has original jurisdiction to release the applicants from custody or grant them bail. It is my view that this court, in view of the provisions of section 219 of the 1979 Constitution, does not have the jurisdiction i.e. original jurisdiction to release the applicants from custody or grant them bail when the matter has not come to this court on appeal. The present application on the face of it is not an appeal coming to this court from a refusal by the lower court to grant bail. In other words even if a similar application had been made to the court below and it was refused, a fresh application cannot be made to this court. It can only be brought to this Court by way of an appeal. This unarguably is not the case here. I am fortified in this view by the Supreme Court decision in the case of Obed Boardman v Sokoto Native Authority (1965) 1 All NLR 214. At page 215 of the report Brett, J.S.C, delivering the judgment of the Court said:
“The applicant was convicted in the Court of Alkali of Gusau on charges under Sections 393 and 405 of the Penal code and sentenced to consecutive terms of imprisonment amounting to two and a half years. His appeal to the provincial court was dismissed and he gave notice of appeal to the High Court and applied to the High Court for bail pending the determination of this appeal. When this was refused his first step was to bring a fresh application for bail to this Court, but when it was pointed out to his counsel that the Court had no original jurisdiction to grant bail he withdrew this application and applied instead for leave to appeal from the order of the High Court refusing bail.”
In the instant case, there was not even a formal application as revealed by the records, for bail. A casual reference to bail in the argument of counsel at the Court below on some other matter is not tantamount to an application for bail. I say so because in the course of argument in the motion for stay of proceedings brought by the 5th and 6th respondents, learned counsel for the applicants herein made a casual reference to the issue of bail. Specifically learned counsel said:
“I submit that even if the Court is minded to grant the applicant it should admit the applicants to bail pending the determination of the entire proceedings in the appeal”.
It is clear that there was no formal application for bail to the court below and even if there was one and it was refused , the applicants can only come to this court by way of an appeal: See Boardman v Sokoto Native Authority (supra). I will go further to say that a bail application presupposes that a charge had been framed against the applicants at the court below. It is common ground that no charges have been brought against the applicants. So that the remedy of the applicants in this Court is not that of bail application or their release simpliciter.
The attention of this Court has been drawn to the purport of Section 16 of the Court of Appeal Act, 1976 to the effect that this Court can do what the lower court failed to do with regard to bail. It is now settled that Section 16 of the Court of Appeal Act, 1976 does not confer jurisdiction, but enables the Court to exercise powers with respect to jurisdiction vested by statute. See The State v Onagoruwa (1992) 2 NWLR (Pt.221) 33.
In the light of the foregoing, the preliminary objection succeeds and is therefore upheld by me. The motion of the applicants dated 14th September, 1994 and filed on 27th September, 1994 is incompetent and amounts to an exercise in futility. It is accordingly struck out.
{Nigerian Cases referred to}
Boardman v Sokoto N.A. (1965) 1 All NLR 214
State v Onagoruwa (1992) 2 NWLR (Pt 221) 33.
Obed Boardman v Sokoto Native Authority (1965) 1 All NLR 214
Okoya v Santili (1990) 2 NWLR (Pt 131) 172 at 207
Igboho Local Government v Boundary Settlement Commissioner (1988) 1 NWLR (Pt. 69) 189 at 198
Mobil Oil Nigeria Ltd v Agadaigho (1988) 2 NWLR (Pt 77) at 406.
Madukolu v Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 595.
