Abubakar a. Bagudu V. The Federal Republic of Nigeria & Ors. (2003)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
The appellant as plaintiff took out a writ against the respondents being defendants at the court below. This was on 15th November, 2001. And what was the writ for? It was for the following claims:
1.A declaration that the decision of the 1st and 2nd defendants to bring and the bring of criminal proceedings against the plaintiff are contrary to the provisions and effect of the Forfeiture Of Assets, Etc. (Certain Persons) Decree No.53 of 1999 and are therefore unlawful, illegal, null and void.
2.A declaration that all the counts in the criminal charges CR/21/2000, CR/22/2000, CA/23/200, and relating to the plaintiff are null and void in so far as they are contrary to the provisions and effect of the Forfeiture Of Assets, (Certain Persons) Decree No.53 of 1999.
3. A declaration that by virtue of the Forfeiture Of Assets, Etc. (Certain Persons) Decree No.53 of 1999 and in the circumstances which have happened, no criminal or civil proceedings can be commenced or continued in Nigeria or abroad against the plaintiff in connection with security votes, all monies returned by him and Mohammed Abacha to the 1st defendant, and all sums of monies specific in Part II of the Schedule to the said Decree.
4. An order for perpetual injunction restraining each of the defendants jointly and severally, whether acting by themselves, their servants or agents, from commencing, causing to be commenced, continuing, causing to be continued, or assisting with in any way whatsoever any criminal or civil proceedings in any other jurisdiction in the world against the plaintiff in connection with security votes, all monies returned by him and Mohammed Abacha to the 1st defendant, and all sums of specified in Part II of the Schedule to the Forfeiture Of Assets, Etc. (Certain Persons) Decree No. 53 of 1999.”
Parties shall from now on be called appellant and respondents respectively.
Respondents filed their statement of defence to the allegations made by the appellant in his statement of claim. Thereafter, respondents filed a preliminary objection as to the competence of appellant’s action. By extension, the jurisdiction of the trial court was thereby challenged. Arguments of counsel were heard. The court below upheld the objection of the respondents in its considered ruling of 28th May, 2002.
Appellant is aggrieved by the ruling. He has appealed to this court on seven grounds.
Both parties in the instant appeal have filed and exchanged
The appellant has formulated seven issues for our consideration in determining the appeal. These are:-
“1. Whether the respondents’ preliminary objection dated 13th February, 2002 and filed on the 14th February, 2002 was the proper application for arguments before the court on the 17th of April, 2002 or the so-called points of law raised in paragraph 7 of their statement of defence dated 4th January, 2002.
2. Whether the issue of exercise of power by the Attorney-General was an issue before the court for which the appellant ought to have responded.
3. Whether the grounds and affidavit in support before the court support the reliefs sought by the respondents.
4. Whether the basis of adjudication is the anticipation of issues raised or an application before the court.
5. Whether on the claims in this suit, the reliefs sought is strictly the issue of perceived illegality of the Attorney-General’s criminal proceedings before the High Court of Justice, Abuja for which the appellant could be said to have abused the process of the court by the filing of the suit.
6. Whether a court of co-ordinate jurisdiction can be said to lack jurisdiction in all suits before another and or the same court where the subject-matter or parties bear some similarities.
7. Whether there is any issue before the court on the cleanliness or otherwise of the appellant before the court to necessitate the aspersions cast by the learned trial Judge.”
The two issues formulated by the respondents are:-
“(1) Whether the learned trial Judge was right in law when he declined jurisdiction and struck-out the plaintiff/appellant’s suit on the basis of the defendants/respondents’ notice of preliminary objection.
(2) Whether the respondents’ filing of the notice of preliminary objection pursuant to the preliminary point of law raised on their statement of defence was right in law and/or at law.”
At the hearing of the appeal, parties adopted their briefs. They sought also to address this court in further stressing the points contained in the briefs. I find their address repetitive of the positions canvassed in the briefs.
Let me summarise the arguments canvassed by the appellant in urging us to allow the appeal.
Firstly, appellant’s counsel contends that the preliminary objection as to the competence of his suit was never before the court below on 17th April, 2002 when it was purported to be heard. It is argued that the respondents’ motion dated 4th January, 2002 as filed sought two reliefs from the court. Respondents prayed for enlargement of time to enable them file their statement of defence outside the time prescribed by rules of court. They also prayed that the statement of defence that had been so filed and served be deemed properly filed and served. Respondents’ third prayer, appellant submits, is for the point of law raised in paragraph seven of the respondents statement of defence to be set down for hearing. These requests came up for the court’s consideration on 27th February, 2002.
The court, appellant further contends, made the following two orders:-
(i) “Motion dated and filed on 4th January, 2002 asking for enlargement of time to file defendants’ statement of defence and deeming same as properly filed and served is hereby granted as prayed” and
(ii) “Motion is granted as prayed and the point of law set down for hearing on 11th April, 2002.”
Appellant has surmised that from the foregoing orders of the court, what was adjourned to 11th April, 2002 and eventually taken on 27th April, 2002 was the point of law contained in paragraph seven of the respondents’ statement of defence and not their preliminary objection that was filed on 14th February, 2002. The appellant in consequence submits that the objection considered and decided by the court inspite of content of paragraph 7 of respondents’ pleading was a resort to a procedure unknown to law. The procedure was to the detriment of the appellant. The lack of co-ordination and certainty in the conduct of proceedings by the court below had prejudiced the appellant’s cause.
The proceedings, appellant contends, should be declared void. Appellant has relied upon Ajayi v. Ajomo (2000) 14 NWLR (Pt.688) 447 at 449 and Arinze v. Nwoafia (2000) 4 NWLR (Pt.653) 464.
Secondly, appellant contends that even where the objection raised by respondents is conceded to be properly before the court, the objection never was to the effect that the appellant by his writ was challenging the exercise of power of the Federal Attorney-General.
The court’s scathing remarks on appellant’s counsel for failing to address such an issue was accordingly unfair. Counsel and indeed the court could only address issues that were in fact and properly raised. Appellant has referred and relied on Awoniyi v. Registered Trustees of Amorc (2000) 10 NWLR (Pt.676) 522 and Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251.
Thirdly, appellant argues that grounds upon which respondents based their objection to the competence of his suit as well as the affidavit in support of the objection did not support the reliefs sought by the respondents. Applications not supported by affidavits or based on grounds which do not support the reliefs sought stand in breach of Order 9 rule 2(1) and 3 of Federal High Court (Civil Procedure) Rules, 2000. Such applications being incompetent must be struck out. Appellant here commends the decision in Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287 at 291.
Appellant argues further that his pleadings and in particular the reliefs he sought from the court below were asked in the light of Decree 53 of 1999. The Decree, it is asserted, offered appellant protection. The reliefs sought of the court were declaratory which, by S. 251 (1)(v) of the 1999 Constitution, the court had powers to grant. Invocation of the powers of the trial court to make orders it could legitimately make cannot constitute an abuse of the process of such a court. The parties and subject-matter in the suit before the court below were not the same as those before the Abuja High Court to sustain a case of abuse of process of court. The court’s findings as to abuse of its process by the principle evolved in Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 196, is accordingly unfounded.
Appellant has also contended that the trial court is wrong in declining jurisdiction on the basis that it is a court of co-ordinate jurisdiction with the Abuja High Court. Appellant’s case as pleaded is that the Abuja High Court had no jurisdiction to try him because of the protection granted him by Decree 53 of 1999. The court, on the authority of Okoye v. Nigeria Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt.199) 501, was competent to issue all the declarations asked of it.
Finally, appellant submits that the court’s negative and nasty comments on the appellant and his counsel were unfair. The comments have depicted the Judge’s hatred and animosity against the appellant. They had also fatally eroded the court’s decision.
Appellant relies on Hayes v. Hayes (2000)3 NWLR (Pt.648) 276.
Respondents chose to argue the instant appeal within the con of the issues they formulated. Given what transpired at the court below and the complaints appellant appears to have made against the decision of that court, the issues formulated by the respondents seem most direct and apt. They readily provide for a just resolution of the complaints raised by both sides to the appeal. The issues are more down to earth. Consideration of arguments advanced by parties to the appeal is better done in the light of these issues. That would be done eventually.
Now, what are the arguments advanced by the respondents?
Their arguments are summarised immediately.
Respondents have referred to the claim of the appellant against the background of S. 174(1) (a)(b) and (c) of the 1999 Constitution and submit that appellant’s suit had sought to challenge the powers of the Attorney-General as spelt out. The appellant was arraigned before an Abuja High Court in respect of criminal charges.
Appellant’s case at the court below is that he had been protected from prosecution. Respondents have cited the Supreme Court’s decision in The State v. Ilori & Ors. (1983) 1 SCNLR 94, (1983) All NLR 84 at 92 in submitting that appellant could not have maintained his action Decree 53 of 1999 not withstanding.
Respondents also contend that both the Abuja High Court where – at the appellant was being tried and the court below whereat appellant chose to challenge the exercise by the Attorney-General of his statutorily conferred powers, are courts of co-ordinate jurisdictions. By the combined operation of S. 6(3) and (5) and S.251 of the 1999 Constitution, the court below was in no position to declare the criminal proceedings pending in a court of equal status illegal. It is also respondents contention that since the reliefs sought from the court below were equitable ones, having absconded from his trial at the Abuja High Court, appellant cannot with such unclean hands press for such reliefs.
Respondents have insisted that appellant’s suit at the lower court was an abuse of court process and the court below was right to have struck same out. Respondents have asked us here to invoke the principle evolved in Ikhine v. Edjerode (2001) 18 NWLR (Pt.745) 446; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 and C.B.N. v. Ahmed (2001) 11 NWLR (Pt.724) 369
Finally, respondents submit that their statement of defence, paragraph 7 thereto, had raised a preliminary point of law pursuant to which their notice of preliminary objection was filed. They have been in complete compliance with Order 25 (2)(1) & (2) and Order 26(2) (2) of the Federal High Court (Civil Procedure) Rules, 2000.
The lower court was, accordingly, right to have set down their objection for hearing before the commencement of trial. Appellant cannot be heard to say that the preliminary objection eventually heard was different in content from the preliminary point raised in respondents’ pleading. The two are the same and very clear as to what they set out to achieve. Having regard to the decision in A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552, respondents submit, appellant’s issues i, ii, iii, iv & v must be adjudged wrongly premised and rejected.
Respondents have asked in conclusion for the dismissal of this appeal.
The issues formulated for the determination of this appeal revolve principally on the appellant’s right to challenge the exercise by the 2nd respondent, the Attorney-General of the Federation, of the powers conferred on him by section 174 of the 1999 Constitution.
There are two subsidiary questions which yearn for answers as well.
The question, whether or not the lower court had considered a matter not before it needs to be resolved and if it did the effect such would have on the decision appealed against. Lastly, answers must be found as to whether the comments of the court below on the appellant and his counsel were so prejudicial as to warrant us up-turn the court’s decision.
Certain facts are common to both sides and therefore not in dispute. These include the fact that appellant was arraigned before an Abuja High Court over certain criminal allegations. That appellant had absconded trial is implied from the facts deposed to by both sides. The claim of the appellant before the court below earlier reproduced in this judgment is not in controversy as well.
Appellant’s prayers at the court below were all for declaratory reliefs. The predominant judicial approach is that grant of such reliefs, being discretionary, has always been one that dictates great caution before it is made. They are reliefs that are never lightly granted. The power to grant such reliefs has always been sparingly put to use and with the utmost caution. Courts have been admonished that this discretionary power “should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making.” That is what the Supreme Court said in Abase v. Agorae (1970) 1 All NLR 21 at 26.
It has accordingly become the practice over the years to refuse the grant of declaratory reliefs if a grant would be “unlawful or unconstitutional or inequitable or contrary to accepted principles upon which the court exercises jurisdiction. See Guaranty Trust Company of New York v. Hanna and Company (1915) 2 KB 536 at 572; Ekwuno v. Ifejuka (1960) SCNLR 320, (1960) 5 FSC 156 and Ibeneweka v. Egbuna (1964) 1 WLR 219. This very court in the unreported appeal No. CA/15/M/2003 per Oguntade, JCA has emphatically restated the foregoing stance. The position is sensible.
These decisions bind this court and the court below as well. The principle they evolve provides the tangent for the resolution of the principle issue in the instant appeal.
Appellant by his claim was praying the court below to declare that by virtue of Decree 53 of 1999, the exercise by the 2nd respondent of the power spelt out in section 174 of the 1999 Constitution was unlawful. Appellant was protected from being touched by the powers. He could not be prosecuted for the offences for which he was arraigned before the Abuja High Court. Would such a declaration be lawful, constitutional or even equitable to make in the circumstance? One thinks not.
I must agree with the respondents’ counsel and more so with the court below that it would have been illegal to oblige the appellant his reliefs.
Firstly, it must be realised that Decree No. 53 of 1999 by virtue of S.315 of the 1999 Constitution is at best an existing legislation, which is, in term of hierarchy, below the Constitution. Such legislations where they stand in conflict with the Constitution, a more superior legislation, are negative to the extent of such inconsistency. See Ifegwu v. Federal Republic of Nigeria (2001) 13 NWLR (Pt.729) 103 CA and Ikine v. Edjerode (2001) 18 NWLR (Pt.745) 446 SC.
In any event, my examination of Decree No. 53 1999, now an Act, does not reveal the purported immunity appellant seems to be claiming thereunder. No where has the Decree provided that the powers of the 2nd respondent under section 174 of the Constitution should not be exercised against the appellant. If it were so stated, it remains my firm view that the concept of hierarchy of legislations, that very provision would still remain inoperative. 2nd respondent cannot be stopped from exercising those powers conferred on him by the Constitution.
What are the powers and what did the 2nd respondent do in relation to them vis-a-vis the appellant.
Section 174 provides:-
“(1) The Attorney-General of the Federation shall have power:-
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court martial, in respect of any offence created by or under any Act of the National Assembly.
(a) Not applicable
(c) Not applicable
(2) The powers conferred upon the Attorney-General of the Federation under subsection(1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his power under this section, the Attorney- General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”. (Italics supplied).
The foregoing provisions of the Constitution are as plain and ordinary as they possibly can be. By ascribing to the words which constitute the provisions their ordinary meaning, even a lay person can understand their import. Put starkly as we must, the 2nd respondent contrary to what the appellant wanted the court below to declare, has the power to and therefore lawfully commenced proceedings against the appellant. See Misc Offences Tribunal v. Okoroafor (2001) 18 NWLR (Pt.745) 295 SC and Madu v. N.U.P. (2001) 16 NWLR (Pt.739) 346. Even on the face of this constitutional provision alone, assuming without conceding that appellant could challenge exercise of such powers it would still be impossible given the facts of the instant case for the court below to declare that 2nd respondent was not acting in “the public interest, interest of justice and the need to prevent abuse of legal process.” Courts must not act in vain!
Appellant has asked us to consider the effect of the statement of the court below at page 757 of Volume 2 of the record of appeal on the court’s eventual decision. He says the statement is so prejudicial to his cause that it should negative the decision he appeals against. The court’s statement that “appellant’s hands are not clean and cannot seek redress from this Honourable Court with his dirty hands” may be a little too hard and off-handish. Most certainly, the appellant’s hands remain clean until proved otherwise.
It is the law that the dirt which the court has ascribed to them was only apparent with the trial commenced by 2nd respondent against the appellant yet to be concluded. Inspite of this position of the law, the lower court was in the lawful position to note, in the exercise of its discretion, the fact that appellant had chosen to flee from prosecution.
Innocent men do not run away from the law. Facts are sacred. 2nd respondent no matter how pervading his powers are was in no position to manufacture them where they never existed! One is of the firm view that the court below would have arrived at the same conclusion it did even without the comments on the absence of appellant from trial. One insists that section 174 of the 1999 Constitution cannot be compromised.
Now, respondents have tenaciously held unto the Supreme Court’s decision in The State v. Ilori & Ors. (1983) 1 SCNLR 94, (1983) All NLR 84 at 92. They should. Respondents cannot be denied their right of employing a decisively correct weapon. Again they know, and it is so, that the decision binds this court as well as the court below. See Odugbo v. Abu (2001) 14 NWLR (Pt.732) 45 SC and Anaedobe v. Ofodile (2001) 5 NWLR (Pt.706) 365. Beyond the doctrine of stare decisis, it must be pointed out that in the light of the facts of the instant case, the decision in Ilori v. The State supra is a just and well enunciated principle of law.
The lower court is right in holding that the 2nd respondent in the exercise of his powers of instituting proceeding against the appellant is on a “preeminent” and “incontestable” position, a “master” “Lord” unto himself with powers that cannot be reviewed by any court! One recognises this fact as courts have always done even before the decision in Ilori Supra. See Shittu Layiwola v. Queen (1959) SCNLR 279; (1959) 4 FSC 109; R. v. Adedoyin (1959) SCNLR 484; (1959) 4 FSC 185; R. v. Sey (1950) 13 WACA 128 and State v. Chukwurah (1964) NMLR 64. The principle relied upon by the trial court is of antiquity. It is hereby affirmed as well.
Appellant has contended that the preliminary objection ruled upon by the court below was never before the court for same to be considered. If it were so, what application did both sides argue and did the said application raise the very same issue addressed by the court? It is desirable to restate the facts relevant to this issue.
The motion filed by the respondents on 4th January, 2002 at the court below had prayed the court for enlargement of time to enable respondents file their statement of defence out of time, deeming the said statement that had already been filed along with the application as properly filed and served and, finally, for a 3rd relief “setting down for hearing the point of law raised in paragraph 7 of the statement of defence.”
Paragraph 7 of respondents’ statement of defence that was eventually set down for hearing following the grant on 27th February, 2002 of all the reliefs asked of the court reads:-
“7. The defendants shall also at the trial of this suit raise preliminary points of law that the statement of claim and the reliefs sought in law discloses no cause of action against them and or in the alternative that the reliefs sought cannot be granted by this honourable court as constituted and conceived by the plaintiff.”
The court in granting the three reliefs set down the point of law as raised above for hearing against 11th April, 2002. It is significant to note that even as at the time the court was making this order, respondents had a further notice of preliminary objection challenging the competence of the appellant’s action before that court. It was filed on 13th February, 2002. It was this notice of preliminary objection that respondent drew the attention of the court below to on resumption of business on 17th April, 2002. Indeed it was, from the record, the process that was taken by the court on this fateful day.
Appellant has argued that the preliminary objection that was considered by the court below had not been provided for by the Order 25 rules 1, 2, 3 and 4 of the Federal High Court (Civil Procedure) Rules, 2002. It might well be so. However, appellant’s attention needs to be drawn to Order 3 rules 1(1) and (2)(1) of the rules of the court below.
Appellant’s bid to set aside the decision of the court below because of the court’s seeming non compliance with Order 25 rules 1 – 4 is too late in the day. That apart, on discovery of the slip, appellant had participated fully in the proceedings that has given rise to the instant appeal. This is no era of technicalities in adjudication. Because appellant has not suffered any injustice following the non compliance, the slip has become an irregularity incapable of up-turning an otherwise sound decision.
Undoubtedly, the notice of preliminary objection is based on grounds which are on all fours with the preliminary point of law contained in paragraph 7 of the respondent’s statement of claim that should have been taken on the fateful day. Appellant was not misled as to why the competence of his action at the court below was challenged by the respondents. If anything, respondents by filing and moving their notice of preliminary objection were only being abundantly cautious!
Appellant, one must agree with the respondents, has failed to cross one other hurdle which he must before he obtains the reliefs he seeks. Appellant asked the court below to declare the action commenced by 2nd respondent at the Abuja High Court incompetent.
The two courts are of co-ordinate jurisdictions. Generally, because the two courts are of equal status, the court he approached is not competent to grant the reliefs appellant has asked.
It was for the appellant to convince the court below that his reliefs had fallen within the exceptions to the general rule to enable the court review the decision of such other court of equal jurisdiction.
The appellant did not. In his particular circumstance all that appellant needed to do where 2nd respondent had decided to exercise his pervading powers against the former was to show that the Abuja High Court had no jurisdiction to proceed with the trial. He did not.
The other conditions under which the court below could have granted appellant’s relief as enunciated in Okoye v. Nigerian Cons. & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 547 do not seem to be applicable to the case at hand. Most certainly appellant cannot now be heard to be saying he was being prosecuted in his absence!
Nothing stopped him from attending his trial. Appellant’s argument that Decree 53 of 1999 had protected him such as to render his trial a nullity, it has already been said, does not hold water at all.
The decree did not.
The lower court has held appellant’s resort to it as an abuse of its process. Appellant has contested this finding. He asserts that the subject matter in the suit before the Abuja High Court and the court below are not the same to justify the position taken by the court.
The phrase “abuse of court or judicial process” is more than what the appellant posits it connotes. Where the court as in the instant case finds the suit commenced by a party to be “vexatious” and if one may add “false” it would be perfectly in order if it concludes that its process is being abused. In consequence, it declines jurisdiction over such a cause. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156.
The foregoing effort should resolve the germane issues identified in this appeal.
The said issues are all resolved against the appellant.
As a whole, the appeal has no merit. It is accordingly dismissed.
I award costs of N7,500 against the appellant in favour of the respondents.
Other Citations: (2003)LCN/1440(CA)
