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CaseLaw

Bamaiyi V. AGF (2001) CLR 7(L) (SC)

Judgement delivered on 13th July 2001

Brief

  • Constitutional reference to Court of appeal
  • Interpretation of statute
  • Question of law

Facts

The main issue in this appeal is whether the Court of Appeal has any discretion under Section 295(2) of the 1999 Constitution of the Federal Republic to refuse to answer a question referred to it by the Federal High Court.

The background facts of this case briefly are in the following narrative. The Appellant who was Chief of Staff of Nigerian Army during the regime of late General Sani Abacha was invited by the National Security Adviser, the 2nd Respondent, for questioning. He was alleged to have facilitated the provision of arms that were used in the attempted murder of Mr. Alex Ibru. The Appellant was detained in a house at Forte IBB Barracks, Abuja on 1st October, 1999.

On 5th November, 1999 the Appellant sought leave to enforce his fundamental right challenging his detention. He also applied to the trial. Federal High Court for the following declaratory relief’s and orders.

  • A
    "Declaration that the arrest of the Applicant on 13th October, 1999 by the Respondents, their officers, servants, privies is without justification, illegal, unlawful and consequentially, a violation of the applicant’s fundamental rights as secured to the applicant by Sections 35 and 41 of the 1999 Constitution and Articles 45, 6 and 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Acts Cap 10 Laws of the Federation of Nigeria 1990.
  • B
    A declaration that the detention, house arrest, restriction of movement of the applicant since the 13th of October, 1999 by the Respondents at the Chief of Army Staff’s Guest House, Forte IBB, Abuja, is illegal, unlawful and consequentially, a violation of the applicant’s fundamental rights as secured to the applicant by Sections 35 and 41 of the 1999 Constitution and Articles 4, 5, 6 and 12 of the African Charter on Human and people’s Rights (Ratification and Enforcement) Act cap. 10 Laws of the Federation of Nigeria 1990.
  • C
    A declaration that the Attorney General of the Federation (1st Respondent) is without power to constitutes a Special Investigation panel (S.I.P.) to investigate an alleged commission of a crime by the applicant.
  • D
    A declaration that the Attorney General’s Special Investigation Panel (S.I.P.) constituted to investigate alleged commission of a crime by the applicant is illegal, unconstitutional, null and void and consequentially a usurpation of the statutory power of the Nigeria Police Force.
  • E
    A declaration that the proceedings, report and the recommendation of the Attorney General’s Special Investigation Panel (S.I.P.) dated 26th October, 1999 is illegal, void and cannot form the basis upon which the Attorney General of the Federation (1st Respondent) or any other authority can lay a charge against the applicant.
  • F
    A declaration that the conduct of the Attorney General’s Special Investigation Panel in its proceedings, utterances, deeds and leakage of misleading information to the media is illegal, unlawful, reprehensible, ultra vires, malicious and constitutes a gross violation of the applicant’s fundamental rights as guaranteed under Section 36 of the 1999 Constitution and Articles 4, 5 and 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Acts Cap 10 Laws of the Federation of Nigeria 1990.
  • G
    An Order of mandatory injunction compelling the Respondents whether by themselves or their officers. Servants, privies or otherwise howsoever to forthwith release the applicant.
  • H
    An Order of Injunction restraining the Respondents whether by themselves, servants, privies or otherwise howsoever from further arresting, arraigning the applicant in any court of law upon the findings of the Attorney General’s Special Investigation Panel or in any other manner infringing on the fundamental rights of the applicant.
  • I
    An Order quashing the establishment, proceedings, reports, and finding and recommendation of the Attorney General’s Special Investigation Panel.
  • J
    Such Consequential or other Orders including the payment of N100, 000.00 (One hundred million Naira) as fundamental rights under the 1999 Constitution, to which the applicant may be entitled to.

The learned trial Judge granted most of the prayers except C and D. The Appellant was however not released. He was instead flown from Abuja to Lagos where he was arraigned before a Chief Magistrate on a two counts charge of conspiracy and attempted murder. The Chief Magistrate remanded him in Kirikiri Maximum Security Prison, Lagos, Meanwhile, learned counsel for the applicant, Mr. Mike Okoye, filed an application before the High Court seeking an order of committal of the 1st Respondent, the Attorney General of the Federation to prison for contempt of the court’s Order. Learned counsel also filed another application requesting for release of the Appellant from Kirikiri Maximum Security Prison. He also prayed for the stay of proceedings in charge No. MIK/A/912/99 between Commissioner of Police v. Lt. General Ishaya Bamaiyi (Rtd) & 4 Ors. pending the hearing of the Appellant’s application for the enforcement of his Fundamental Rights. The Respondents filed an appeal to the Court of Appeal against the ruling of the High Court in which the court ordered for immediate release of the Appellant from the House detention at No. 12 Forte IBB Barracks, Abuja.

On 3rd December, 1999 when the suit came before the learned trial judge for argument of various interlocutory applications, learned counsel for the Appellant orally moved the court to refer the following constitutional question for the interpretation of the Court of Appeal.

“Whether by the provisions of section 174 of the Constitution or any provisions, the Federal Attorney General has the power to constitute the Special Investigation Panel that investigated the applicant and the report which forms the basis of the charge against them (sic) before the Magistrate Court”.

The trial court consequently referred the above question to the Court of Appeal. The Court of Appeal after arguments of counsel to the parties considered the submissions on the question and declined to answer the question on the ground that it did not arise for the proceedings before the Federal High Court. The case was thereafter sent back to the High Court for the continuation of hearing of the applications brought by the parties for the Court’s determination. Dissatisfied with the decision of the Court of Appeal, the Appellant appealed to the Supreme Court.

Issues

  • 1
    Whether the Court of Appeal has any discretion under Section 295(2) of...
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