Niyi Adelagun V. Federal Republic Of Nigeria (2009)
LawGlobal-Hub Lead Judgment Report
AYOBODE D. LOKULO-SODIPE, J.C.A.
This appeal is against the Ruling delivered on 24/12/2004 by Honourable Justice M.N. Oniyangi of the High Court of the Federal Capital Territory, Abuja dismissing the Appellant’s application dated and filed on 23/9/2004 for the interim release of his International Passport to enable him travel abroad for urgent medical attention and treatment before 14/10/2004,
The facts of the case involving the Appellant are that he was arraigned as the 1st accused person along with five others in Charge No. CR/11/04. The Charge contains 16 counts and the Appellant is alleged therein to have given gratification to public officers. The accused persons, upon their application for bail, were granted same and one of the conditions was that each one of them should deposit his International Passport with the Commissioner of Police for the Federal Capital Territory, Abuja (hereinafter simply referred to as “the COP”). Charge No. CR/11/04 was withdrawn by the prosecution on 2/6/2004 and the court discharged the order compelling each of the accused persons in the Charge to deposit his International Passport with the COP but the Appellant’s Passport was not released to him despite repeated demands for the same.
The Appellant and some others were again arraigned in Charge No. CR/20/2004 and bail was again granted to the Appellant on 3/6/2004 upon application in that regard by his counsel. Again the deposit of his International Passport (which was already with the COP) with the Inspector-General of Police (hereinafter simply referred to as “the IGP”) was made a condition of the bail. The Appellant subsequently suffered deterioration in his health condition which made him file an application dated and filed on 23/9/2004 for: (i) an order of interim release of his Passport to enable him travel abroad for urgent medical treatment before 14/10/2004.
The prosecution opposed the application. The lower court after considering all affidavits and counter affidavits filed in respect of the application as well as written addresses of the parties dismissed the Appellant’s application, The Appellant being dissatisfied with the Ruling of the lower court dismissing his application on 9/2/2005, lodged an appeal against the same by filing a Notice of Appeal of the same date,
The Notice of Appeal contains four grounds of appeal. The grounds of appeal shorn of their particulars read thus:
“GROUND ONE
The learned trial Judge erred in law and on the facts when he held that the Accused/Applicant had failed to deposit his international passport with the Inspector General of Police as ordered and could not be heard asking for the court order releasing same to him.
GROUND TWO
The learned trial Judge erred in law when he dismissed the Accused/Applicant’s application for the interim release of his international passport.
GROUND THREE
The learned trial Judge erred in law when he held at page 9 of the Ruling:
“The argument of the learned silk representing the Accused/Applicant that the Commissioner of (Police in custody of whom is the said passport is an agent of the Inspector General of Police is not tenable. I disagree with this line of argument “and thereby occasioned a miscarriage of justice.
GROUND FOUR
The learned trial Judge erred in law and on the facts when he held at page 9 of the ruling as follows:
“Assuming without conceding that the Commissioner of Police is an agent of the Inspector General of Police and the Inspector General being the principal of the former, the order on the principal in this instance is not directed at the said alleged agent” and thereby occasioned a miscarriage of justice.”
In accordance with the Rules of this Court, parties filed and exchanged briefs of argument. Appellant’s brief of argument was settled by Olusegun O. Jolaawo Esq. while Respondent’s brief was settled by Ayodeji M. Esan Esq. The appeal was entertained on 20/5/2009. O, Jolaawo, learned lead counsel for the Appellant, in urging this Court to allow the appeal relied on and adopted Appellant’s brief of argument dated 22/2/2006 and filed on the same day, but deemed to have been properly filed and served on 1/3/2006.
Ayodele Esan, learned counsel for the Respondent in urging that the appeal be dismissed relied on and adopted Respondent’s brief of argument dated 12/5/2008 and filed on 13/5/2008,
In the Appellant’s brief of argument, four Issues were formulated for the determination of the appeal. The Issues shorn of their particulars read thus:
“(i) Whether the learned trial judge was right to have refused to make an order of interim release of the Accused/Applicant’s international passport on the basis that the said passport had not been deposited with the Inspector General of Police as ordered.
(ii) Whether the trial Court ought not to have entered an order striking out of the Accused/Applicant’s application as opposed to the order of dismissal made, where it concluded that it could not in the circumstances grant the application for interim release of the Appellant’s Passport,
(iii) Whether the Commissioner of Police, Federal Capital Territory was not an agent of the Inspector General of Police for the purpose of consideration of the Appellant’s application.
(iv) Whether the Honourable Court’s assumption in its ruling that it had made an order directed at the Inspector General of Police being factually wrong, and based in part upon which it reached its decision did not amount to a miscarriage of justice,”
The four Issues formulated by the Appellant as reproduced above were adopted for the determination of the appeal in the Respondent’s brief of argument. The appeal will be determined upon the Issues set out in the Appellant’s brief of argument as parties are ad idem on them.
APPELLANT’S ISSUE 1
Dwelling on this Issue, Appellant’s counsel submitted that it was clear from the affidavit evidence before the lower court that the application for the interim release of passport was based on health grounds and referred to the process at pages 26 – 117 of the Records in this regard, Learned counsel said that uncontroverted evidence was placed before the lower court that the passport in question was with the COP with whom it had earlier been deposited in compliance with the order made in Charge No. CR/11/2004, Counsel argued that further evidence was also placed before the lower court that the COP refused to release the Appellant’s passport despite the vacation of the order in that regard, Learned counsel submitted that the evidence that the Appellant’s passport was in the possession of the COP and that the said COP refused to release the same despite repeated demands was deemed admitted as the same was not controverted by the Respondent. The cases of Bamaiyi V. State (2003) 17 NWLR (Pt. 848) 47 at 72; and Mat Holdings Ltd v. UBA Plc (2003) 2 NWLR (Pt. 803) 71 at 87 were cited in aid. It was submitted by Appellant’s counsel that the prosecution was quite aware that the Appellant’s passport was in the lawful custody of the Police Force, headed by the IGP, from the time of its deposit in compliance with a court order in Charge No. CR/11/2004 on 30/12/2003 as at the time they sent a request for confirmation to the IGP and in response to which the said IGP sent Exhibit C dated 5/8/2004 attached to the Respondent’s counter affidavit. Furthermore, learned counsel submitted that the prosecution and the Police Force never had the intention of having the COP release the Appellant’s passport to him for the purpose of depositing same with the IGP so as to avoid a scenario where the Appellant would be In possession of the said passport for any period of time whatsoever.
Learned counsel for the Appellant submitted that every other policeman in the Nigeria Police Force is subordinate to the IGP as he heads the said Force, Section 6 of the Police Act Cap P19 LFN 2004 was referred to in this regard. In the premises, learned counsel submitted that if the lower court granted the application before it, the IGP would have been quite capable of complying with the order sought as all he needed to do was to order the COP to produce the Appellant’s passport from his custody, It was also submitted by learned counsel that the lower court ought not to have restricted itself to a consideration of the issue as to whether the Appellant’s passport had been deposited with the IGP as the basis for refusing the application before it. This is in view of the exigencies of the situation as brought to the notice of the said court by affidavit evidence as to (i) the nature of the Appellant’s ailment and its seriousness; (ii) the fact that the Appellant had initially had treatment for the ailment abroad; (iii) that the initial treatment required follow up; and (iv) available expert medical evidence as to the state of health of the Appellant.
Learned counsel also submitted that the lower court after ruling on the issue as to whether or not the objection to the application before It was sustained or not ought to have gone on to consider the same on the merit thereby ensuring that all Issues joined by the parties were adjudicated upon and a substantive ruling delivered thereon. It was further submitted that doing this would have in the long run saved the time of the court and parties and more justiciable in the circumstances, The cases of Adah v. NYSC (2004) 13 NWLR (Pt. 891) 639 at 650; and Okonji v. Njokanma (1991) 1 NWLR (Pt. 202) 131 at 155 were cited in aid. Emphasis was laid on the case of Global Tram Occeanico SA v. Free Ent. (Nig.) Ltd (2001) 5 NWLR (Pt. 706) 442.
Dwelling on the Issue under consideration in the Respondent’s brief of argument, learned counsel stated that the facts set out below were not in doubt from the totality of evidence before the lower court:-
(1) That the Appellant applied for bail before the lower court on 3/6/2004.
(2) That the lower court granted the Appellant’s application for bail conditionally.
(3) That one of the conditions upon which the Appellant was granted bail was that he deposited his International Passport with the IGP
(4) That the Appellant failed to deposit his International Passport with the IGP.
(5) That the Appellant on 23/9/2004 brought an application for the interim release of his passport despite the failure to obey the directive of the lower court that he should deposit his passport with the IGP.
(6) That the lower court in dismissing the Appellant’s application held that the order for the release of his passport could not be ordered as the said passport was not in the custody of the IGP as ordered by it.
(7) That the lower court made a further order that the Appellant’s passport should not be released to him save by order of court in that regard apart from the order that the said passport should be deposited with the IGP.
Learned counsel said to the effect that it was clear that the Appellant had in fact not complied with the order of court given the disclosure in Exhibit C (a letter from the IGP) that none of the accused persons had deposited their passports with the IGP, Exhibit C, it was pointed out, was written by the Chairman of ICPC to ascertain the level of compliance with the court order. It was submitted that the effect of the Appellant’s failure to comply with the order of the lower court as slated above is that he had not met the initial conditions for the grant of bail in the first place. The freedom now enjoyed by the Appellant learned counsel further submitted is a direct contravention of the order of court as he should indeed still be in detention having failed to meet the conditions attached to his bail. The point was made that at no time prior to the filing of the application for the interim release of his passport did the Appellant approach the lower court to complain of any difficulty in meeting the conditions for his bail. That the Appellant also did not file any application for the variation of the terms and conditions of his bail on the grounds of any alleged non-release of his passport by the COP. Given the totality of all that has been highlighted above, learned counsel for the Respondent submitted that the Appellant brought the application of 23/9/2004 whilst still in disobedience of the order granting him bail. It was further submitted that this cannot be allowed and that the lower court in the circumstances was right in dismissing the application before it.
The grant of an application for the interim release of the Appellant’s passport to enable him travel abroad for urgent medical attention is in the discretion of the lower court and which must be exercised judiciously and judicially taking into consideration the totality of evidence before it and the conduct of the parties. Learned counsel submitted that the Appellant was in contempt of the order of the lower court by failing to deposit his passport with the IGP, This is particularly so when viewed against the backdrop of the lack of official complaint before the lower court in respect of any difficulty in obeying the order of the said court prior to the making of the application of 3/9/2004. It was further submitted that it is trite law that a contemnor shall not be heard for a subsequent application before a court whilst still in contempt of an earlier order. The case of Military Governor of Lagos State v. Ojukwu (1996) 1 NWLR (Pt. 18) 621; Owena Bank Plc v. Olatunji (1999) 13 NWLR (pt. 634) 218 at 233 were cited in aid.
Learned counsel for the Respondent said that there was uncontroverted evidence (for whatever reason) that the Appellant’s passport was not with the IGP as at the time the application for its interim release was made to the lower court. He submitted that what the lower court was called upon to do was incapable of being enforced to the extent that the said passport was not with the IGP. That to make an order in that vein will tantamount to making an order in vain or embarking on a purely academic exercise, Courts it was submitted have over the years frowned at making orders that are incapable of enforcement and the cases of Anaekwe v. Mashasha (2001) 12 NWLR (pt. 726) 76; Agbo v. State (2006) 6 NWLR (Pt. 977) 545 at 63; David West v. Oduwole (2003) 12 NWLR (Pt. 835) 682 at 693-674 amongst others were cited in aid.
Learned counsel for the Respondent reacted to the submissions of Appellants counsel to the effect: that the Respondent was aware that it was impossible for the Appellant to meet the bail condition that he deposited his passport to the IGP because it was in the custody of the COP who refused to release it. In this regard, Respondent’s counsel submitted that the argument did not hold water, as it is trite that a court order subsists until it is set aside either by the court that made the order, or on appeal. It was learned counsel’s further submission that all court orders must be obeyed and it is irrelevant whether the order is perverse or does not accord with logic. That the failure to obey the order of court renders the offending party in comtempt of same and the case of Onwualu v. Mokwe (1999) 1 NWLR (Pt. 585) 146 at 154-155 was cited in aid.
Learned counsel equally reacted to the submission and postulation by Appellant’s counsel that if the lower court had granted the application, all that needed to be done by the IGP was to have ordered the COP who is his subordinate and agent to produce the passport from his custody. In this regard, Respondent’s counsel submitted that the only option open to the Appellant was to have applied for the variation of the terms and conditions of his bail or to have appealed against the condition of bail on the ground that there was refusal and or impossibility of compliance.
Issue 1 under consideration questions the correctness of the decision of the learned trial Judge in not making an order for the interim release of the Appellant’s passport on the ground that the said passport had not been deposited with the IGP as ordered.
The application of the Appellant dated 23/9/2004 in which he sought for the order of the lower court for the interim release of his international passport to enable him travel abroad for urgent medical attention and treatment on or before 14/10/2004 is at pages 26 – 38 of the Records. The Ruling of the lower court on the application is at pages 119 – 127 of the Records. The lower court in refusing the application stated at page 127 thus:-
“……..I have come to the conclusion that the accused applicant having failed to act as ordered to deposit his International Passport with the Inspector General of Police has failed to comply with the order of this Court for his bail. He cannot therefore be heard to be asking the Court to order who he has not given the said Passport to release same to him. In my view the accused/applicant has failed to plan in his bid in this bid and as a result can be said to have planned to fail having not complied with Court order, The foundation of his application is shaky and as such nothing reasonable can be built on same.
The need therefore to consider other issues in this application becomes otiose. In consequence therefore, the objection to the application is sustained and the application is refused in its entirety and same is accordingly dismissed.”
In my humble view the following are definitely not in dispute having regard to the totality of affidavit evidence placed before the lower court in the Appellant’s application:-
- That the passport of the Appellant was deposited with the COP pursuant to the order of the lower court made in Charge No. CR/11/04 granting bail to the Appellant.
- That upon the withdrawal of Charge No. CR/11/04, the order that the Appellant deposit his passport to the COP was vacated or discharged by the lower court on 2/6/04, See page 33 of the Records. Indeed the lower court discharging the order compelling each of the accused persons in Charge No. CR/11/04 to deposit their passports with the COP further ordered that “the International Passport of each of the Accused deposited as a condition for bail be release (sic) to each of the Accused.”
- That upon the arraignment of the Appellant in Charge No. CR/11/2004 the lower court in granting him bail imposed the condition that his international passport be deposited with the IGP and that the passport was not to be released to the Appellant unless there is a court order in that respect.
- That at all material times to the making of the application for the interim release of his passport, the Appellant never deposited the same with the IGP as ordered by the lower court.
The submissions of Appellant’s counsel, in respect of the Issue under consideration, have been highlighted above. It is one of the submissions of learned counsel that the prosecution and the Police Force never had the intention of having the COP release the Appellant’s passport to him for the purpose of depositing same with the IGP, so as to avoid a scenario where the Appellant would be in possession of the said passport for any period of time whatsoever. I must say that this submission must have been made without taking into consideration, or in ignorance, of the specific order made by the lower court on 2/6/04 to wit: “the International Passport of each of the Accused deposited as a condition for bail be release (sic) to each of the Accused,” I am of the settled view that pursuant to this order, it was for the Appellant to recover his passport from the COP and thereafter to deposit the same with the IGP, Appellant’s counsel stated that the COP refused to release the Appellant’s passport despite repeated demand for the same. Surely given this situation the COP is glaringly in violation of the order made by a competent court of jurisdiction. The pertinent question to ask is, what did the Appellant do in the face of non-compliance by the COP with the order of the lower court that the passport be released to the Appellant’? The clear answer is that the Appellant did absolutely nothing, The follow up question is, what should the Appellant have done in the face of non-compliance by the COP with the order of the lower court’? In my humble view, if the Appellant saw the compelling need that the COP should comply with the order of the lower court that his passport be released to him (an order of which he is the sale beneficiary) then he ought to have forced compliance with the order by the COP by procuring appropriate process of court to issue on the COP, Again, this the Appellant never did.
The conclusion of the learned trial Judge in refusing the Appellant’s application for the interim release of his passport has been reproduced above. It is trite law that no court makes a vain order. The subsisting order of the lower court, concerning the passport of the Appellant as at the time or dale he made the application for its interim release was that the passport should be in the custody of the IGP. It was definitely appropriate for the lower court to consider the usefulness of making any order in this regard in the face of evidence showing that the Appellant had not deposited his passport with the IGP as ordered. The only authority to which the lower court could direct to release the passport of the Appellant in the interim for any purpose is the IGP given its subsisting order. It was therefore manifestly right for the lower court not to have given further consideration to the request of the Appellant for the interim release to him of his passport when he had never deposited the passport to the IGP to whom the order in that regard can only be directed.
In the light of all that has been said, Appellant’s Issue 1 must be resolved against him and it is so resolved against the Appellant.
APPELLANT’S ISSUE 2
Dwelling on this Issue, Appellant’s counsel in the main submitted that the dismissal of the Appellant’s application of 23/9/2004 by the lower court in its Ruling of 24/12/2004 is wrong. That the proper order which the lower court ought to have made given its reason for refusing the application in question was one striking out the said application. The cases of Idoko v. Ogbeikwu (2003) 7 NWLR (Pt. 819) 276 at 292; and Ume v. Nigeria Renowned Trad. Co. Ltd (1997) 8 NWLR (Pt. 516) 344 at 353 were cited in respect of the order of dismissal vis-a-vis that of striking out. It was submitted by Appellant’s counsel that the order of dismissal left the Appellant with no option than filing and pursuing an appeal against the Ruling of the lower court; whereas an order striking out the application would have enabled the Appellant to re-file the application.
Dwelling on this Issue, Respondent’s counsel made the point that the application of 23/9/2004 was predicated on the urgent need for medical attention which the Appellant required before 14/10/2004 and that an affidavit of urgency was filed along with the application. He submitted in the main that the Ruling of the lower court dismissing the application of 23/9/2004 constituted a bar to the bringing of any fresh application on the same score, This is because it had been conclusively proved and accepted by the lower court that the Appellant’s international passport was never deposited with the IGP, It was said that there was nothing left for the Appellant to bring in respect of his time specific and event bound application, as the lower court considered all evidence placed before it and also reviewed the addresses of counsel in coming to a decision in the application. Respondent’s counsel further said that as between the Appellant and the IGP, all the issues in the context of the interim release of the Appellant’s passport for urgent medical trip abroad appeared to have been settled.
The order of court dismissing a matter before it would appear not to be sacrosanct. This is because the law appreciates the fact that it is not in all cases where a matter is dismissed that the order of dismissal completely terminates the case. Accordingly when a court enters an order dismissing a matter, but the circumstances show that such dismissal could not possibly connote or denote the determination as to put a finality to the case, the courts view such dismissal as a mere striking out. See OBASI BROTHERS MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) All FWLR (Pt. 261) 216 at 232.
The law Is also that the dismissal of a matter in the High Court implies a final determination of the contested issues which are found to have failed or become unenforceable. See UKACHUKWU V. NATIONAL YOUTH SERVICE CORPS [2006] All FWLR Pt. 308) 1272 at 1284. In the same vein, a court ruling may be final if it finally determines the rights of the parties and finally disposes of the matter, See THE NIGERIAN ARMY V. GARRICK (2006) All FWLR (Pt. 315)45 at 55.
The lower court in Its Ruling (see from page 123 of the Records) stated thus:
“…….The sole basis of this application is on the ill health of the accused applicant and the need to go abroad for treatment. By this therefore there is that need to retrieve the International Passport of the applicant from the Inspector General of Police Abuja, which was ordered to be deposited with the Inspector General of Police as part of the conditions for bail of the accused. The pertinent question in the circumstance is whether the Court having regard to the circumstance of the application, can order the release of the International Passport of the accused applicant with the Inspector General of Police to enable the accused travel abroad for medical treatment.
Before going into considering the merit o otherwise of the application one thing that strikes my mind is the issue in paragraph (sic] 5 & 6 of the counter-affidavit wherein the Respondent averred as follows:-
Flowing from the foregoing, it becomes crystal clear that the said Passport has not been deposited with the Inspector General of Police. This tend to buttress the fact contained in Exhibit ‘C’ which is from the Inspector General of Police’s Office attached by the Respondent to the Counter-affidavit saying that none of the accused deposited his or her International Passport as ordered by the Court, It is not in contest or doubt that the accused applicant has not deposited his International Passport with the Inspector General of Police as ordered as part of the condition (sic) for the bail he is now enjoying. That means therefore that he has not fulfilled all the conditions as ordered for his bail. I will not go further in that direction. The pertinent question at this stage is whether having regard to that circumstance the Court can proceed to consider this application with a view of asking the Inspector General of Police to release or not to release the said Passport. In my humble view and having regard to the fact that the said Passport has not been so deposited as ordered and having regard to the fact that which ever order the Court considers fit at the end of the day would be directed 10the Inspector General who has been adjudged not to be in custody of the said Passport would amount to giving an order in futility. This is because one cannot order somebody who is not in possession of something to produce it or continue to keep what is not in his possession. Another aspect of this is that the accused applicant cannot ask for the release to him of what he has not deposited as ordered.” (Underlining supplied by me for emphasis).
Having stated as quoted above, the learned trial Judge then concluded by saying thus: –
“….I have come to the conclusion that the accused applicant having failed to act as ordered to deposit his International Passport with the Inspector General of Police has failed to comply with the order of this Court for his bail. He cannot therefore be heard to be asking the Court to order who he has not given the said Passport to release same to him. In my view the accused/applicant has failed to plan in this bid and as a result can be said to have planned to fail having not complied with Court order. The foundation of his application is shaky and as such nothing reasonable can be built on same.
The need therefore to consider other issues in this application becomes otiose. In consequence therefore, the objection to the application is sustained and the application is refused in its entirety and same is accordingly dismissed.”
The pertinent question given the portions of the Ruling quoted above is, where in the said ruling did the lower court deal with the merits of the application before it, talk less of deciding the said application on the merit? The glaring answer is that the lower court never considered the application of 23/9/2004 on the merit. All that the lower court concerned itself with was whether the enabling situation exists to make it grant whatever order it might consider appropriate in relation to the Appellant’s passport. The lower court never considered whether or not the Appellant had made out a case for the interim release of the passport as prayed for by him, The order of dismissal made by the lower court in the circumstances cannot be construed as deciding and did not decide the entitlement of the Appellant to the order for the interim release of his passport to travel abroad for medical attention. All the Ruling decided was that such an order could not be made given the fact that the passport was not in the custody of the person whom it can order to produce it and this the lower court decided without making any pronouncement on the need or otherwise to allow the Appellant to travel abroad for medical attention.
From all that has been said I am of the considered view that the order of the lower court dismissing the application in question amounts to no more than one striking out the said motion. The proper order which the lower court should have entered given its conclusion in the application of 23/9/2004 should have been one striking it out.
Nothing stops the Appellant from refilling a similar application once the enabling situation for its consideration on the merit is in place.
In conclusion, Appellant’s Issue 2 is accordingly resolved in his favour,
APPELLANT’S ISSUE 3
This Issue is as to whether or not the COP was not an agent of the IGP for the purpose of the considering the Appellant’s application.
Dwelling on the Issue Appellant’s counsel urged this Court to find that the COP is an agent of the IGP in the circumstance of the charge preferred against the Appellant and the application for the interim release of the Appellant’s passport and at the worst art apparent agent of the said IGP for the purpose of finding in whose custody the said passport is.
The agency relationship between the IGP and COP having regard to the submissions of Appellant’s counsel is deducible from the provision of Section 6 of the Police Act Cap 19 LFN 2004 which makes the IGP the head of the Nigeria Police Force and also as every other policeman in the Force is subordinate to the IGP.
Dwelling on this Issue, Respondent’s counsel in the main submitted that the attempt to draw an agency relationship between the IGP and COP in this case is misconceived. Though learned counsel conceded the fact that every officer in the Nigerian Police Force is subordinate to the IGP in authority and instruction, he submitted that the order of the lower court as it relates to the IGP cannot by any stretch of imagination be held to be sufficiently carried out if done by any COP or indeed any subordinate officer whatsoever and vice-versa.
I do not think that the perceived Issue of agency Appellant’s counsel has thrown up in this appeal calls for any elaborate consideration. It is clear from the Police Act and the 1999 Constitution that one must fist by a policeman before one becomes an IGP by appointment. All policemen having regard to the provisions of the Police Act are undoubtedly employees of the same employer. The relationship basically existing between the IGP and other officers and men of the Police Force is that of superior and subordinate. This relationship ordinarily does not throw up that of principal and agent. However the IGP and all his subordinate officer and men are undoubtedly agents of their employer. The lower court in its Ruling said to the effect that the argument of the Appellant’s counsel that the COP in whose custody the Passport of the Appellant is; is the agent of the IGP is untenable, The lower court said that its order was specific, clear and unambiguous as to who should have the custody of the passport in question, The lower court further said that if it is assumed that the COP is the agent of the IGP and the IGP being the principal of the COP, the order in the instant case relates to the IGP and not the alleged agent.
The law is no doubt clear (i) that to state one thing expressly ends the possibility that something inconsistent with it is Implied; and (ii) that to express one thing is impliedly to exclude another, which, is an aspect of the latter. See ATTORNEY-GENERAL OF ABIA STATE V. ATTORNEY-GENERAL OF THE FEDERATION AND 35 ORS [2005] All FWLR (Pt. 275) 414 at 452, Against the backdrop of the settled position of the law stated above, I am of the humble, but firm view that the order of the lower court that the Appellant should deposit his International passport with the IGP does not admit its fulfilment by depositing the same with the COP. This is particularly so when it is appreciated that the COP pursuant to the order made by the lower court on 2/6/2004 cannot be said to be in custody of the said passport pursuant to the order in that regards made by the lower court. The order of the lower court on 2/6/2004 ordered the release of the International Passport of each of the accused persons in Charge No. CR/11/04 to each of them.
The Issue under consideration I must say actually does not propound that the COP is the agent of the IGP, It is as to whether the COP was not an agent of the IGP for the purpose of the Appellant’s application. Given all that I have said before now, and particularly the positive and direct order made by the lower court as to who the Appellant should deposit his passport with, I unhesitatingly do not find anything in the circumstances of the application that makes the COP the agent of the IGP in respect of the Appellant’s application.
Accordingly, Appellant’s Issue 3 is resolved against him,
APPELLANT’S ISSUE 4
Dwelling on this Issue, Appellant’s counsel said to the effect that the order of the lower court concerning who to deposit his passport with was directed at the Appellant and not the IGP, That the lower court in its Ruling assumed that it made an order directed at the IGP. He further said that uncontroverted evidence was placed before the lower court that Appellant’s efforts to comply was frustrated by the COP in whose custody the passport was, pursuant to an earlier order of the court Appellant’s counsel contended, that the factual basis upon which the holding of the lower court on the issue was decided being wrong, the application of the law by the said court to the wrong set of facts could not but have equally resulted in a wrong holding.
Dwelling on the Issue, Respondent’s counsel submitted that reference to an order being directed at the IGP made in the Ruling of the lower court on 24/12/2004 at the best was a slip. It was pointed out that the fulcrum of the Ruling is that the Appellant having failed to deposit his International Passport with the IGP cannot now be heard to be praying the court to order the interim release of the passport which even by the admission of the Appellant is not in the custody of the IGP. That the gravamen of the Ruling, is that the IGP cannot be ordered to release what obviously is not with him.
Respondent’s counsel conceded that nothing was urged and no order was directed by the lower court on the IGP in the ruling of the said court for bail. He however submitted that the reference to the order being directed at the IGP is a minor slip, when it is viewed alongside the totality of affidavit evidence and the entire Ruling of 24/12/2004, Respondent’s counsel also submitted that the issue of whether or not the order was directed at the IGP or Appellant would seem to pale into insignific81lce when it is considered that the factual basis for the Ruling was that the International Passport is not in the custody of the IGP as ordered by the court, That in the circumstance, it becomes impractically impossible to order the said passport to the Appellant in the interim or indeed unconditionally. A host of cases were cited by the Respondent’s counsel on the effect of the error or slip made by a court in its judgment. The point was made that nowhere in the Appellant’s brief was any attempt made to show what miscarriage of justice the alleged factual error could, or has, caused the Appellant.
The lower court in granting bail to the Appellant on 3/6/2004 in Charge No. CR/20/2004 said: –
“…… That being the case therefore and considering the application at hand and the entire circumstance of the stand of the accused, and while exercising this court’s discretion in his favour, admit the accused to bail in the sum of N2,000,000.00 and two surety in like sum each. Each surety should swear to an affidavit of means. In addition, the accused should deposit his international passport with the Inspector General of Police Abuja. There shall be no order therefore for release of same by the Inspector General of Police except vide an order of the court to that effect sought and obtained.”
I have painstakingly perused the Ruling and I am of the considered view that the manner in which the lower court couched the order made on 3/6/2004 reproduced above no doubt admit of the manner in which the court handled the application of 23/9/2004. Given the tenor of the order of 3/6/2004 there was no way the IGP would not be in the picture. A part of the order made on 3/6/2004 by the lower court in granting the Appellant bail definitely related to the IGP. It is apparent from the order of 3/6/2004 that the lower court must, as of necessity, direct an order to the IGP in the event it is to make an order concerning the release of the Appellant’s passport The lower court throughout the length and breadth never lost track of the fact that it was for the Appellant to deposit his passport to the IGP. What agitated the mind of the learned trial Judge and rightly too, was how the IGP in whose custody the Appellant’s passport should have been pursuant to the conditions of the bail granted him, could be ordered to produce the said passport when the Appellant had not deposited the same with him, I do not see any assumption on the part of the lower court that it made an order directed at the IGP in relation to the passport of the Appellant it actually did, having regard to the tenor of the order of 3/6/2004.
From all that has been said in relation to this Issue, the same (i.e. Appellant’s Issue 4) must be and is accordingly resolved against the Appellant.
In conclusion and despite the resolution of Issue 2 in favour of the Appellant this appeal must fail in as much as the decision of the lower court refusing the application of 23/9/2004 on the ground of Appellant’s non-compliance with the condition of his bail that he should deposit his passport with the IGP has not been successfully impugned.
Appeal is dismissed.
Other Citations: (2009)LCN/3399(CA)
