Achinike G. Wiluam-wobodo V. Chief (Mrs) Eunice A. Igwe & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
The Rivers State High Court [after now lower court] in a ruling delivered on 29/7/2004 in charge NO.PHC/8c/2004, struck out a complaint made by the Appellant on the grounds that it was statute barred and bad for duplicity. The Appellant as a private person, had on the 29/3/2004 instituted the complaint pursuant to sections 59 and 77[1][b] of the Criminal Procedure Act, Cap 77, LFN, 1990 against the Respondents for the offences of procurement and uttering false documents, forgery and conspiracy contrary to sections 473, 467 and 516 respectively of the Criminal Code Act. In reaction to the complaint, the Respondents caused a motion on notice to be filed on 17/5/2005 in which the jurisdiction of the lower court to entertain the complaint as well the competence of the complaint were challenged on separate grounds. Written addresses on the said motion were filed and adopted by learned counsel for the parties on the 16/7/2004. In addition, the lower court took address from the Director Public Prosecution,[DPP], Rivers State Ministry of Justice on its invitation, in the motion after which the aforementioned ruling was delivered. This appeal resulted from the dissatisfaction by the Appellant with the said ruling. The Notice of Appeal containing four [4] grounds was dated and filed on the 21/9/2004 and it is at pages 45 – 47 of the record of the appeal compiled by the Appellant and deemed on 20/6/2006 by the court in an order for departure from the Rules of the court.
As required by the Rules of court, briefs of argument were filed by learned counsel for the parties. The Appellants’ brief was filed along with an application for enlargement of time to file same on the 18/9/2006 and deemed filed on 17/10/2006 when that application was granted. The Respondents’ brief was filed on 2/3/2007 but deemed filed on the 19/6/2008 when time was enlarged for the filing. An Appellants’ Reply brief filed on 10/3/2008 was deemed filed on the 17/2/2009 when the appeal was heard by the court. The briefs were adopted by learned counsel for the parties at the hearing arid each of them urged us to uphold his position for the reasons set out in the briefs.
From the four [4] grounds of appeal, four [4] issues were formulated for the Appellant at paragraphs 3.1.1 to 3.1.4 on pages 1A- 2 of the Appellant’s brief. They are
3.1.1 whether the trial Judge having suo motu raised the issue of limitation period within which the complainant as a private person ”could institute the complaint she was right to have relied on the issue so raised to strike out the complaint without calling on the parties or their counsel to address her on the issue and whether that procedure occasioned any miscarriage’ of justice against the Appellant.
3.1.2 Whether the limitation period within which a private person should institute a complaint as provided for in Section 63 of the Criminal Procedure Act; Cap 77, Laws of the Federation of Nigeria (or Section 63 of the Criminal Procedure Law, Cap 38 Laws of Rivers State of Nigeria) includes extends to non summary conviction offence.
3.1.3 Whether the inclusion of more than one count or charge in the complaint; which is a docuent by which the Respondents were charged, without first obtaining the leave of court makes the complaint bad for duplicity as to warrant the trial court to strike out the complaint
3.1.4 Whether the amicus curiae invited by the court to address on specified and distinct issue can on his own violation exceed beyond the issue and to raise other fresh fundamental, extraneous, or substantial issuers) and if he so does whether the court has jurisdiction to hear, determine or rely upon such issuers)raise by the amicus curiae.
For the Respondent, issues 2 and 3 above were adopted and two more issues were formulated as No.1 and 4.
Though both learned counsel did not indicate in their respective briefs from which of the grounds each of the issues formulated were derived as required by diligent practice, the issues formulated by the learned counsel for the Appellant are preferable for being more precise and apt. I intend to determine the appeal on the said issues.
On issue No.1, after conceding that the lower court had the inherent discretionary jurisdiction to raise issues suo motu particularly on questions of law, learned counsel for the Appellant submitted that the discretion has to be exercised judicially and judiciously. Specifically, that where a court raises an issue suo motu, it ought under the law to call on the parties to address it on the issue before taking a decision thereon. He pointed out that the issue of the limitation period within which the Appellant should file a complaint was raised and decided by lower court suo motu in its ruling on the motion of the Respondents and none of the parties was afforded the opportunities to address the court before’ the ruling. It was contended by learned counsel that the lower court failed in its duty to maintain fairness and justice when it relied on the said issue raised suo -motu to strike out the complaint of the Appellant without affording him an opportunity of hearing on it. He said that though it is not in all cases that failure to hear parties will vitiate proceedings, where however the lower court based its decision mainly on the said issue which in this case has resulted in a miscarriage of justice, this court ought to allow the appeal and set aside the decision of the lower court. REGISTERED TRUSTEES OF AMORC V. AWONIYI [1994] 7 NWLR [355] 154 @ 177 was relied on for the submission. In addition, it was argued that the decision by the lower court that the Appellants’ complaint was statute barred in view of the provisions of section 63 of the Criminal Procedure Law [CPL] hereafter] has led to a miscarriage of justice and a misdirection, relying on NDIWE v. OKOCHA [1992] 7 NWLR [252] 129 @ 139, SAUDE v. ABDULLAHI [1989] 4 NWLR [116] 387 @ 408.
According to learned counsel, the issue raised by the lower court is fundamental, substantial and goes to the competence of the Appellants’ complaint and the parties should have been invited to address it before the lower court delivered the ruling, relying on it to strike out the complaint. The failure to do so, he submitted amounted to denial of the Appellant’s right to fair hearing because it had conferred an advantage to the Respondents to the detriment of the Appellant. Furthermore, that a failure of justice means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word, a judicial procedure at all. Reliance was placed on the cases of EFFFIOM v. STATE [1995] 1 NWLR [373] 507 @ 617, OKONKWO v. UDO [1997] 9 NWLR [507] 20 inter alia and we were urged to hold that on this ground, the appeal succeeds.
For the learned counsel for Respondents the issue of limitation period emanated from the argument of the parties and was not raised suo motu by the lower court. It was submitted by him that the Appellants’ counsel had in his written address relied heavily on sections 59 and 77 [b] [iv), in part 8 and 33 of the Criminal Procedure Act [CPA after now] to the effect that toe appellant can bring a complaint. He said that section 63 of the CPA which is the limitation period for the said complaint is part of the CPA which in interpretation, should be considered since the rule of interpretation is that all sections of the law will be read together. That it will be wrong for the Appellant to rely on some sections of the CPA in isolation and invite the court to close its eyes to section 63.
In the alternat ive, it was argued that the issue raised by the lower court suo motu was within the ambit of the law because it was on jurisdiction. That once its apparent that a court may not have jurisdiction over a matter, either the parties or the court suo motu can raise it so as to save time and costs and also avoid futile proceedings. The cases of NWUDE v. CHAIRMAN EFCC [2005] 36 WRN 141 @ 165 and NOSIE v. CBN [2002] 7 NWLR [766] 295 were cited and we were urged to hold that this appeal is of such circumstances in which the lower court could raise such issue suo motu without inviting parties to address on it because it was ancillary to the main issue. Several other cases were cited on the principles that the issue of jurisdiction can be raised at any stage and that when a matter is statute barred, the only duty opened to a court is to dismiss same. They include EJIOFOWOMI v. OKONKOW [1982] 11 SC 74 and EGBE v. ADEFARASIN [1987] 1 NWLR [47] 1 @ 21 respectively.
We were then urged by learned counsel to hold that the ground fails and to dismiss the appeal.
Now, I agree with learned counsel, because they are right, that the law is that the issue of jurisdiction being the foundation and therefore extrinsic to and in all judicial proceedings can be raised at any stage of such proceedings even on appeal either by any of the parties or the court, suo motu. This principle of law is now, very common place that it can appropriately be said to be elementary in judicial practice in Nigeria, such that even if no decided authorities of the superior courts in which it was restated was cited, it is beyond viable arguments. It is also a settled principle of law that a court of law has the inherent authority and jurisdiction to raise an issue of law whether or not on jurisdiction that will determine the real dispute between the parties that appear before it even it not raised by them. The only caveat is that where a court on its own or suo motu, raises any issue, the law requires that the parties be given an opportunity to be heard thereon before it is decided by the court. UBA PLC v. ACHOR [1990] 6 NWLR [156] 234, OKAFOR v. A.G. ANAMBRA STATE [1998] 31 LRCN 3679; KATO v. CBN [1999] 5 SC [11]21.
However since the primary duty of a court of law Is to do substantial justice in accordance with the law, as rightly pointed out by the learned counsel for Appellant it is not in all cases that failure by a court to hear parties before deciding an issue raised suo motu, is fatal to the proceedings, The failure, by the recognized attitude of the courts and position of the law, is only fatal if it is shown that a miscarriage justice was occasioned thereby to any of the parties. in addition to the cases cited by learned counsel on the point, see ATOYEBI v. GOVERNOR, OYO STATE [1994] 5 SCNJ 62 @ 84, IBRAHIM v. JSC, KADUNA STATE 1998] 14 NWLR [584], CITIZENS INTERNATIONAL BANK v. SCOA [2006] ALLFWLR [323] 1680 @ 1702.
In the determination of the 1st issue in this appeal, the question of or the issue of the limitation period under section 63 of the CPA was one raised and decided suo motu by the lower court should be borne out by the record of appeal. It may be recalled that the case of the Appellant is that it was raised so and decided while for the Respondents’ it emanated from the addresses of counsel in the motion before the lower court. The printed, record of the appeal should bear out correct position.
The written address of the counsel for the Applicant in the motion before the lower court is at pages 9 – 13 of the record of appeal, while that for the Respondent in the said motion is at pages 14 – 20. The oral address by the amicus curie commenced at pages 23 – 25 and concluded at pages 27 – 29 of the record of appeal.
Brief responses by the learned counsel were also made in respect of the address by the amicus curie at page 29 of the record, After carefully reading the addresses made in respect of the motion before the lower court, I am unable to find where the issue of the limitation period within which the complaint of the Appellant was to have been filed was even remotely raised or referred by any of the learned counsel for the parties. In other words, the record of the addresses of counsel for the parties, as well as the amicus curie in the motion before the lower court did not contain any reference to the period of limitation in respect of the Appellants’ complaint before that court. As a result, it is not correct to say that the issue of the limitation emanated from the addresses of counsel in the motion before the lower court. My answer to the question I posed above is that the record of the appeal does not bear out the statement by the learned counsel for the Respondent. That the issue was raised or referred to in any of the addresses of counsel in the motion.
The next question I would ask now is whether the lower court raised it suo motu and relied on it to decide the motion before it without calling on the parties to address it. Reference to the relevant portions of the ruling delivered by that court would bring out the answer to this question. The first portion of the ruling is at the last paragraph of page 38 of the record of appeal part of which is:-
“after a review of the submissions of all counsel before me, I am of the firm view that the basic issue to decide is whether or not a private citizen can prosecute a criminal indictment without the consent of the attorney general. All other sub-issues are dependent on this, main ground of objection – -”
What this statement represents is that in the lower courts’ opinion and decision, the vital, primary or main issue to be decided in the application before it was whether a private person can prosecute a criminal indictment without the consent or authority of the Attorney General. In addition, that all other issues in the application which the lower court called subs issues, were to depend on that issue identified.
Then after a consideration of all the points raised in the addresses of counsel and the amicus curiae, the lower court at paragraphs; 6, 7 and 8 at page 43 of the record went on to state that By section 63 of the CPL any complaint to be made, shall be made’ within six months from the time when the matter of such complaint arose, and not after. The operative ‘words are ‘shall’ and; ‘and’ not after’.
A look at the offences in the complaint shows they took place between May and July, 2002 this is almost 2 years after the matter of such complaint arose. Section 63 is the limitation period for making a complaint.
The words shall in section 63 makes it mandatory. It further ends with ”and not after” which further makes it conclusive that no complaint can be made after six months. The only exception being that of a person in his/her official capacity making a complaint after 6 months. The complainant before me is not acting in an official capacity.
That court eventually concluded at paragraph 1 of page 44 thus:-
“Therefore in view of the foregoing, the failure of the complaint to comply with the provisions of section 60 [4] and section 63 of the CPL Rivers State, I hold that the complaint before me is bad in law and I hereby accordingly strike out same as I lack jurisdiction to try same since due process of filing has not been complied with”
It is clearly indisputable that the above passages of the lower courts’ ruling show that the issue of limitation period under section 63 of the CPL was raised in the ruling by that court suo motu without addresses from any of the parties to the motion before it. Since none of the parties addressed the issue because it was raised and decided by the lower court at the ruling stage, it is correct to say that the issue was raised and decided suo motu by that court without hearing any of the parties thereon.
The learned counsel has very strenuously argued that the failure by the lower court to invite the Appellant to address it on the issue before relying on, has occasioned a miscarriage of justice to the Appellant because it had conferred an advantage on the Respondents to Appellants’ detriment. Even though learned counsel did not state the nature of the advantage conferred on the Respondents by the failure to hear the parties on the issue, the submissions are rather insipid, impotent and therefore unconvincing because they defy perspicacity. The submissions did not demonstrate what prejudice the Appellant suffered by the issue being raised and decided without affording him a hearing. The effect of the reliance on the issue among others, by the lower court was the striking out of the Appellants’ complaint before it. The Appellant has not suggested that the order striking out’ the complaint has in any real legal way prejudiced him and thereby occasioned a miscarriage in the matter. In fact I have observed that on the date the ruling appealed against was delivered, ie on the 29/7/2004, the learned counsel for the Appellant had passionately applied to the lower court to withdraw the complaint filed by the Appellant. Hear him at page 30 of the record of appeal-
“Wobodo: We have an application to withdraw the complaint before the court. There is a move by the Isiokpo Community to resolve the issues.
We seek to comply with due process of law to enable us brig this application properly. We submit that it is trite law that a complainant can withdraw his complaint if he satisfies the court that there are sufficient grounds upon which the complaint can be withdrawn. This order for withdrawal can be made at any stage before the final order is made. The proper order that the court can make when accused have not been called upon to enter their defence Is one of discharge not acquittal.
Once the complainant stated that he wants to comply with due process of law, the’ court has to withdraw the application because it sis sufficient. This is because the court does not allow alleged felons to invade prosecution. The application is brought under the spirit and letter of section 284 of the CPL of Rivers state Cap. 38 We so urge the court. ”
In effect what learned counsel intended and in fact did was to withdraw the complaint filed by the Appellant the consequence of which would have been an order striking the complaint out of the lower courts’ list. The reason given for the withdrawal was “we seek to comply with the due process of law to enable us bring the application properly”. This is the same reason given by the lower court in striking’ out the complaint of the Appellant; that it did not to be considered and determined in the appeal. The other issues have been overtaken by the outcome of the decision on the 1st issue and so the duty to consider the other issues abates.
With the clear admission by the Appellant’s counsel that the complaint did not comply with due process of law, the wind has been taken out of the other issues in the appeal. See EGBA v. OGODO [1984] 1 SCNLR 72, ANYADUBA v. NIG. RENOWNED TRADING CO. [1992] 5 NWLR [243] 353 @ 561, COOKEY v. FOMBO [2005] 5 SC [11] 102 @ 111.
In the final result, I find the appeal devoid of merit and it is dismissed for the reasons set out before now.
There shall be costs of the appeal assessed at Ni30,000.00 against the Appellant.
Other Citations: (2009)LCN/3210(CA)
