Edun Alabi Bolaji & Anor V. The State (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The Appellants were arraigned before the High Court of Kwara State sitting at Ilorin on a four count charge of conspiracy and attempt to commit mischief by fire and culpable homicide contrary to and punishable under Sections 97, 95, and 229 of the Penal Code. When the charge was read to them, they each pleaded not guilty. Proofs of evidence had earlier been filed along with the application to prefer a charge and the charge itself before the Court. Before trial could commence, the Appellants filed an application at the trial court wherein they prayed for an order of court quashing the charge against them on the ground that no prima facie case is disclosed by the proof of evidence. In its ruling delivered on 13th November, 2007, the Court, per Adewara, J., held that a prima facie case was disclosed in the proof of evidence and thus dismissed the application. Dissatisfied, the Appellants filed this Appeal.

At the hearing of the Appeal on the 26th May, 2009, Mr. Gbadeyan, learned Counsel for the Appellants, adopted the Appellants’ brief of Argument dated 14th and filed on 15th October, 2008, as well as the Appellants’ Reply Brief dated 15th December, 2008 and deemed filed on 5th May, 2009. He relied on the Briefs for the purpose of the Appeal and urged the Court to allow the Appeal and to discharge and acquit the Appellants. The learned DPP appearing for the State, Mr. Mumini, also adopted the Respondent’s Brief of Argument dated 12th and filed on 13th November, 2008. He urged the Court to take note of the preliminary objection raised at page 3 paragraph 3.00 of the Brief. He urged the Court to sustain the objection and to dismiss the Appeal in its entirety.

Mr. Gbadeyan submits that the preliminary objection raised is lacking in foundation and is in contravention of Order 10 Rule 1 of the Rules of this Court. He contends that the Respondent merely argued the preliminary objection in the Brief without filing any such Notice before the Court. He argues that the Respondent cannot by its Brief move a motion that has not been filed. He relies on Oforkira V Maduike (2003) 1 SC (pt. 3) 74 at 80-82 per Tobi, JSC. Counsel therefore urged the Court to discountenance the preliminary objection.

In response, Mr. Mumini submits that Order 10 Rule 1 does not require that a motion be filed in order to raise a preliminary objection. He contends that by the preliminary objection raised in the Brief, the Appellant was given sufficient notice of the objection. What is required under that Order is notice to the Appellant stating the grounds of objection. Counsel submits that the Respondent’s Brief has taken sufficient care of the notice required under that Order. Besides which the issue touches on the jurisdiction of the Court to entertain the Appeal, such an issue of jurisdiction which can be raised at any stage of the proceedings. Counsel thus still urged the Court to overrule the objection and dismiss the Appeal.

It is indeed provided in the Court of Appeal Rules, 2007 the procedure by which a preliminary objection to the hearing of an Appeal may be raised. Order 10 thereof provides:

1. A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
2. No objection shall be taken to the hearing of an appeal on the ground that the amounts fixed by the Registrar of the court below under Order 8 rule 2(b) of these Rules were incorrectly assessed.
3. If the Respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.

Clearly under this Order, it is intended that whoever wishes to raise an objection to the hearing of an Appeal before this Court should file a formal Notice of Preliminary Objection in the form and manner set out in Order 10 of the Rules of this Court. There must be no dispute about that. However, where a party defaults, it is interesting that the Rules do not peremptorily shut him out. Instead, it prescribes a penalty in costs or whatever other order the Court may deem fit to make in the circumstances. Evidently, therefore, the Rule throws the issues open to the exercise of discretion by the Court.

This is not surprising in view of the fact that where a preliminary objection touches upon the competence of the action or on the jurisdiction of the court to entertain same, it would be foolhardy for any court to proceed with a suit which is deficient in that respect, as any proceedings or decision taken without jurisdiction, no matter how brilliantly or meticulously conducted, would amount to a nullity. The well-worn phrase in legal parlance is ‘you cannot place something on nothing and expect it to stand. It will simply collapse like a pack of cards.’

In this wise, I have examined the Respondent’s Brief of Argument. Rather than file a separate Notice of Preliminary Objection, he has short-circuited the process and elaborately incorporated same in his Brief. At page 3 thereof, the Respondent gives notice of the preliminary objection thus:

“Pursuant to Order 10 of the Court of Appeal Rules 2007, the appellant is hereby given notice that at the hearing of the Appeal the Respondent shall raise preliminary objections that this Honourable court lacks the prerequisite jurisdictional competence to entertain this Appeal on two main grounds to wit:-

1. That the deemed Notice of Appeal purportedly filed by the appellants herein was not signed by the Appellants but by Counsel the Appellants in violation of the provisions of Section 243 of the 1999 Constitution and ORDER 16 Rule 4(1) of the Court of Appeal Rules 2007.
2. A joint Notice of appeal was filed by the two Appellants in violation of ORDER 16 Rule 3 (1) AND (2) of the Court of Appeal Rules2007.”

By the above, the Respondent has effectively complied with the Rule of Court which requires that notice be given to the Appellant before such objection is raised.

Furthermore, since the Respondent’s Brief was filed on 13th November, 2008 and the Appeal itself was not heard until 26th May, 2009, the Appellant obviously had more than the 3 clear days notice that the Rules prescribe. Finally, the grounds of the objection are well set out in the Brief sufficient to place the Appellants on notice of the objection they were coming to meet. In substance therefore, the Respondent complied with Order 10 Rule 1 of the Rules of Court. Since it is now commonplace that the days of technical justice are forever gone in Nigerian Jurisprudence, (See INEC V Oshiomole (2009) 4 NWLR (pt. 1132) 607), the Respondent will not be shut out of being heard merely on the ground that he did not file a separate process in order to raise its preliminary objection. This is a technicality as to form which will not be allowed to prevail over substantial justice.

In addition, the objection raised by the Respondent touches on the competence of the Appeal before the Court and thus the jurisdiction of the Court to entertain same.

The law is trite that jurisdiction is the linchpin and the touchstone of the judicial process. Halsbury’s Laws of England describes it as the “authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision’:

In the words of the Supreme Court in Ajomale V Yaduat (No.1) (1991) 5 SCNJ 172 at 176.

”Jurisdiction is the right in the court to hear and determine the dispute between the parties…”

See also FCE, Pankshin V Pusmut (2008) 12 NWLR (Pt. 1101) 405.

In the words of a University don, Ben O. Igwenyi, ‘Modern Constitutional Law in Nigeria’ at page 282:

”Jurisdiction is the power or authority of a court of law or Tribunal to go into a matter and deliver a binding judgment. ”

Jurisdiction is thus a threshold issue and the powerhouse of any adjudication.

Any absence of jurisdiction robs the court of the power to adjudicate over any issue.

Therefore, once it is raised, it must of necessity be attended to promptly. The objection raised to the hearing of the preliminary objection, being merely an objection as to form, is accordingly overruled, and thus dismissed. The preliminary objection shall be heard on its merits.

Preliminary Objection

The Respondent, in his Brief of Argument, submits that the Court lacks the prerequisite jurisdictional competence to entertain this Appeal on two main grounds, to wit:

1. That the deemed Notice of Appeal purportedly filed by the Appellants herein was not signed by the Appellants but by Counsel to the Appellants in violation of the provisions of Section 243 of the 1999 Constitution and Order 16 Rule 4(1) of the Court of Appeal Rules, 2007.
2. A joint Notice of Appeal was filed by the two Appellants in violation of Order 16 Rule 3(1) and (2) of the Court of Appeal Rules, 2007.

Arguing the first ground of objection, Mr. Mumini, learned DPP appearing for the State, submits that the deemed Notice of Appeal is in flagrant violation of the provisions of Section 243 of the 1999 Constitution and Order 16 Rule 4(1) of the Court of Appeal Rules. From these provisions the right of appeal in criminal cases is exercisable only by the accused person. In the instant case, the Notice of Appeal was entered by T.O.S. Gbadeyan, Counsel to the Appellants, who signed the Notice for the Appellants. Counsel submits that the Notice of Appeal, having been signed by a person other than the Appellants, is incompetent. He relies on State V Jammal (1996) 9 NWLR (Pt. 473) 384 at 399; Adekanye V FRN (2005) 15 NWLR(Pt. 949) 433.

While being aware of Order 16 Rule 4(2) of the Rules of Court which allows the Court, in the interest of justice and for good and sufficient cause shown, to entertain an appeal if satisfied that the intending appellants have exhibited a clear intention to appeal against the decision of the lower Court, learned Counsel however submits that this provision is inapplicable to cure this defect for the reason that:

(a) The Appellants have not shown any good and sufficient cause why they have refused to enter an appeal by signing the Notice of Appeal herein.

(b) The Appellants have been on bail and not in prison custody.

(c) The affidavit in support of the motion upon which the Notice of Appeal was deemed filed and served by this Court was deposed to by none of the Appellants but rather by a legal practitioner in the chambers of the Appellants’ Counsel, one Akindele Suzan Oluwaseun (Miss).

(d) That a perusal of the said affidavit as contained on the record particularly, paragraph 8 thereof, revealed that the decision to appeal was not taken by the Appellants but by Counsel in chambers.

The learned DPP submits that the Appellants have no competent Appeal before this Court, having not shown good and sufficient cause why the Notice of Appeal was not signed by them. He submits that the only exception to the rule that the Appellants and not Counsel must sign the Notice of Appeal was considered by the Supreme Court in Ikpasa V Bendel State (1981) 9 SC7. This authority was referred to in Adekanye V FRN (Supra) and distinguished. Learned Counsel submits that the instant case does not fall within the exception as the Appellants herein are not in prison custody or under any disability known to law. He therefore urged the Court to dismiss the Appeal based on this ground.

With respect to ground 2 of the objection, the learned DPP submits that the Appellants’ Notice of Appeal is in gross violation of Order 16 Rule 3(1) and (2) of the Rules of this Court. He submits that this rule does not allow a joint Notice of Appeal in criminal matters. Each Appellant is expected to file his Notice of Appeal if such a Notice is to be competent in law. He again relies on Adekanye V FRN (Supra). Learned Counsel therefore submits that the Appeal is grossly incompetent and he urged the Court to dismiss same.

In response to this preliminary objection, learned Counsel to the Appellants contends that no motion raising the preliminary objection as an issue for hearing before the Court has been served on the Appellants. Notwithstanding that, Counsel submits that the preliminary objection is highly misplaced and should be discountenanced. He submits that Order 16 Rules 3 and 4 of the Rules of Court referred to are only applicable in respect of criminal appeals after conviction of an Appellant at the trial Court. This, he contends, is because Forms 2 and 3 in the Second schedule referred to under this Rule relate only to a Notice of Appeal to be signed by a convict intending to

appeal against conviction and/or sentence by the trial court. The Forms do not include Notice of Appeal in respect of interlocutory Appeal in criminal matters, as in the instant case. He thus submits that the Notice of Appeal, being an interlocutory Appeal, is not required to be signed by the Appellants themselves for it to be valid. Learned Counsel submits that it is a settled principle of interpretation that where a statute expressly provides for an object or thing or class, those not covered by such provision are intended to be excluded. He relies on Buhari V Yusuf (2003) 6 SC (Pt. II) 168. He therefore submits that the authorities cited by the Appellants are not apposite as the Appellants in those cases had been convicted. He submits that the ratio in those cases is not applicable as the facts are not the same.

It is further submitted that Order 16 Rule 4(2) of the Rules of Court gives the Court the discretion to entertain an Appeal in the interest of justice if it is satisfied that the Appellant has exhibited a clear intention to appeal. Counsel submits that Appellants herein have exhibited a clear intention to appeal by briefing a law firm to prosecute the Appeal. He submits that this Court has jurisdiction to hear and determine the Appeal as it is competent and ought to be determined on its merit.

Findings

For a proper appreciation of the arguments on the preliminary objection, I feel it is imperative to set out the relevant provisions of the law and rules of court referred to which guide Appeals in criminal matters before this Court. Starting from the grundnorm, the Constitution, Section 243 thereof provides as follows:

Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court conferred by this Constitution shall be –

(a) Exercisable in the case of civil proceedings at the instance of the party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter and in the case of criminal proceedings at the instance of the accused person or subject to the provisions of this Constitution and any powers conferred on the Attorney General of the Federation or the Attorney General of the State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed;

(Underlining supplied for emphasis).

Order 16 Rule 4 –

(1) Every Notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of paragraph (5) and (6) of this Rule.

(Underlining supplied for emphasis).

By these provisions, it brooks of no argument that any person intending to file an appeal in any criminal proceeding must sign the Notice of Appeal personally, and not by Counsel on his behalf as is permitted in civil proceedings. In a criminal case, the right of appeal is exercisable only by the accused person himself. Any Notice of Appeal signed by a person other than the person accused is incompetent. This is the law, and, for the avoidance of doubt, it has attracted judicial interpretation and affirmation over the years by this Court as well as by the Apex Court. In the case of State V Jammal (1996) 9 NWLR (Pt. 473) 384 at 399) cited by the learned DPP, this Court, per Orah, JCA at page 399 stated the position thus:

”It is my view that this court ought to take judicial notice of the fact and in law, that a notice of appeal in a criminal appeal filed in the lower court which was signed by a former counsel instead of the appellant himself is defective by virtue of Order 4 Rule 4(1) of the Court of Appeal Rules, 1981. The provision of Order 4 rule 4(1) of the Court of appeal Rules, 1981 are clear, unambiguous and mandatory. The Notice of Appeal must be signed by the appellant himself, not counsel and this is not one of the exceptions under the provisions of paragraphs (5) and (6) of the rules. This court which is a court of law and justice cannot develop a blind eye and pretend it does not see the defective notice of appeal. We have seen it to be defective and incompetent; we must resolve that it is defective and therefore, there is only one notice of appeal “exhibit G” which has been validly filed and subsisting in this appeal and not two.”

This position was re-stated by this Court in the more recent case of Adekanye V FRN (Supra), where Salami, JCA equally held:

”In criminal matters, by virtue of Order 4 Rule 4(1) of the Court of Appeal Rules, every Notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given shall be signed by the appellant himself except under the provision of paragraphs (5) and (6) of Rule 4(1) of the Court of Appeal Rules. In the instant case paragraphs (5) and (6) are not relevant as they concern respectively persons who are insane or incorporated persons. Thus, the joint notice of appeal filed by the Appellants is defective on the grounds firstly that it is joint, and secondly, it was not signed by the individual accused/appellants but by their counsel.”

Order 4 Rule 4(1), (5) and (6) interpreted are in pari materia with Order 16 Rule 4(1) (5) and (6) of the Court of Appeal Rules, 2007.

I am not unmindful of the proviso to Order 16 Rule 4(2) of the Rules of Court, 2007 which seeks to cure a defective Notice of Appeal. For clarity of argument, it states thus:

Provided that, notwithstanding the provisions of Rules 3(1) and (2) and 4(1) of this Order have not been strictly complied with, the Court may, in the interest of justice and for good and sufficient cause shown, entertain an appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the lower Court.

The question which logically arises is what suffices as ‘a good and sufficient cause shown’? Again, this Court has not kept an intending but defaulting Appellant in the dark as to what he is expected to do to satisfy and persuade the Court to hear his Appeal despite the defects on the face of the Notice of Appeal which contravene the Rules of Court. Still in the case of Adekanye V FRN (Supra), this Court said:

”In the case of Ikpasa V Bendel State the objection that the notice of appeal was incompetent was overruled by a majority decision by invocation of Order 9 rule 28 of the 1981 Supreme Court Rules. Sir Udo Udoma, JSC reasoned in relation to the objection at pp. 30-31 of the report thus-

‘My Lords, I am of the opinion that this was a proper case in which to exercise the judicial discretion vested in the Federal Court of Appeal by the invocation of Order 9 rule 28 of the rules of court. It is a case involving a capital offence. The appellant was already confined in a condemned cell. He was no longer a free agent nor an ordinary prisoner undergoing incarceration. He was therefore at the mercy of the Prison Authorities. It seems to me that in a case of this kind there ought to be in the Prisons Department, Officers sufficiently conversant with the court’s procedure to render assistance to prisoners desirous of appealing against their conviction and sentence.

There is no doubt that the provisions of Order 8 rule 3 are mandatory, but to have denied the appellant the exercise of his constitutional right of appealing against his conviction and sentence of death on a mere technicality in the circumstances disclosed in this matter might have been considered as having occasioned a miscarriage of justice, for apart from the form to which the objection was taken, the appellant had filed 11 grounds of appeal with detailed particulars carefully numbered seriatim and contained in six pages of foolscap papers, which was a clear indication of the determination on the part of the appellant to pursue his appeal.’

I agree with Orah, JCA that the words of the enactment i.e. Order 4 rules 3(1)1 (2) and (4) are clear and unambiguous. I also agree that the rules of court are meant to be obeyed in compliance not in breach. The extenuating circumstances which was available to the appellant in Ikpasa V Bendel State (supra) does not avail the instant appellants who were on bail and not confined. The appellants in the instant easel have unhindered access to their counsel and court and ought to have complied with the clear words of Order 4 rule 4 by personally signing the requisite Form 1in compliance with the rules.”

The Appellants herein have not pretended that their failure to comply with the mandatory provision of Order 16 Rule 4 of the Rules is as a result of any handicap or disability which they suffer from or which has been imposed on them. They admit they have been on bail and they have evidently exercised their right to be represented by Counsel of their choice before the Court. They therefore enjoy all the advantages and privileges that were denied the condemned Appellants in the case of Ikpasa V Bendel State (Supra). Apparently, they have simply ignored the provisions of the law and this is even more so since they are adequately represented by Counsel both at the trial Court and before this Court. Regrettably, they have done so at their peril because rules of court are meant to be obeyed, and not in their breach but in full compliance, except for good reason shown. Since such reasons are conspicuous by their absence in the instant case, I hold that the Appellants are not entitled to the protection of the proviso to Order 16 Rule 4 of the Rules.

The Appellants in their Brief have tried to seek refuge under the argument that the Forms provided in the Rules for Appellants seeking to appeal in criminal matters only cover convicts and not accused persons still standing trial. This argument will not hold water as the Forms are not supposed to be cast in iron. Parties and Counsel are to use the designed forms as formats and then to adapt them to suit the peculiarities of their cases. The Forms do not pretend to cover every conceivable scenario that will play itself out in this stage of life but to serve as guides and to assist parties to properly approach the courts with their processes. I therefore hold that the Notice of Appeal is gravely defective for having contravened the express provision of Order 16 Rule 4 of the Rules of this Court.

To add insult to injury, the two Appellants have jointly presented or filed one solitary Notice of Appeal, purporting it to be for both of them in this criminal Appeal. This is a fundamental error which is not expected to be made in filing any criminal appeal to any level of our hierarchy of courts. For our purposes, Order 16 Rule 3 of the Court of Appeal Rules, 2007 provides thus:

(1) A person desiring to appeal to the Court against any judgment, sentence or order of the court below, whether in the exercise of its original or appellate jurisdiction, shall commence his appeal by sending to the Registrar of the court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules.

(2) A person sending any notice or notices under this Rule shall answer the questions and comply with the requirements set forth therein. These rules clearly require that each appellant file a separate notice of appeal and sign same by himself in criminal matters if such is to be competent in law. A joint notice of appeal is a deviation and an anomaly. Once again, this Court in Adekanye V FRN (Supra), put it beyond argument when it said thus, per Salami, JCA:

“The present appellants filed only one joint notice of appeal signed by their counsel. The joint notice of appeal equally appears incompetent contrary to the provisions of Order 4 rule 3(1) and (2) which seems to prescribe personal notice of appeal, in other words, each appellant is required to file his or her own separate notice of appeal …

The joint notice of appeal at pages 213-220 of the record is defective on the grounds firstly that it is joint and secondly it was not signed by the individual accused but by their learned counsel.”

For all these reasons, much as courts are loath to shut out an Appellant with a genuine grievance, I am constrained to agree with the learned DPP for the Respondent that the Appeal of the Appellants before this Court is grossly defective and thus incompetent. I therefore sustain the preliminary objection raised to the hearing of the Appeal on both grounds. The Appeal is accordingly dismissed.

Nonetheless, since this is a penultimate Court, I am obliged to still address the main Appeal in the event that I am overruled on a further Appeal to the Supreme Court.

From the Grounds of Appeal, the Appellants distilled two issues for determination by this Court thus:

1. Whether the trial Court rightly or wrongly assumed jurisdiction over the four count charge put before him in this matter when counts 3 and 4 are speculative, and 1 and 2 on conspiracy disclosed no other conspirator(s) with the appellants and more so, that some of the offences allegedly committed were federal offences. (Grounds 3 and 4).
2. Considering the four count charge in the indictment, proof of evidence and the attached appellants’ statements, whether a prima facie case is made out as ruled by the trial court to warrant the appellants’ full blown trial as further order by the lower court. (Grounds 1 and 2).

Issue one.

Whether the trial Court rightly or wrongly assumed jurisdiction over the four count charge put before him in this matter when counts 3 and 4 are speculative, and 1 and 2 on conspiracy disclosed no other conspirator(s) with the appellants and more 50, that some of the offences allegedly committed were federal offences. (Grounds 3 and 4) Mr. Gbadeyan submits that the principle is well settled that the question of jurisdiction or lack of it is a fundamental issue which can be raised at any stage of the proceedings even on appeal. He relies on Shell Petroleum Development Co. V Isaiah (2001) 5 SC(Pt. I) 1 at 4; Jeric Nig. Ltd V Union Bank (2002) 12 SC (Pt. II) 133 at 139. Counsel submits that the trial Court ought to have taken this issue even suo motu and unaided, more so that it was raised via a motion dated 14th May, 2007 which was later withdrawn. He relies on Elebanjo V Dawodu (2006) 6-7 SC 36; Petrojessica Enterprises Ltd V Leventis Technical Co. Ltd (1992) 5 NWLR (Pt.244) 675 at 693. He submits that in criminal law and administration of criminal justice, the jurisdiction of a court is determined in the light of the enabling law setting out the jurisdiction of the court. He relies on Onwudiwe V FRN (2006) 4 SC (Pt. II) 98.

Learned Counsel further submits that Section 251(1) of the Constitution confers exclusive jurisdiction on the Federal High Court in respect of matters which involve the Federal Government or any of its agencies. Sub-section (3) thereof confers exclusive jurisdiction on the Federal High Court in criminal causes or matters in respect of which jurisdiction is conferred by sub-section (1) of Section 251. Counsel submits that where the language used in a statute is clear and explicit the court must give effect to it in its interpretation. He relies on Cotecna International Ltd V Ivory Merchant Bank (2006) 4 SC (pt. 1) 8.

Learned Counsel submits that Counts 3 and 4 of the charge accuse the Appellants of an attempt to commit culpable homicide and arson. He contends that the premises on which the attempt of mischief by fire was to be committed and the intended victim of the attempted culpable homicide, Mr. Ayo Adakeja, the Resident Electoral Commissioner, Kwara State are Federal Government property and agent respectively. Hence, within the literal meaning of Section 251(3), any crime committed against them are triable in the Federal High Court and not the State High Court. Learned Counsel further submits that the learned trial Judge was wrong in assuming jurisdiction over this matter when the four count charge brought before him discloses no offence. He contends that counts 1 and 2 disclose no other conspirator(s) who could be said to have conspired with the Appellants to commit the alleged offence of conspiracy on the one side with the appellants on the other side, while counts 3 and 4 are speculative. He submits that before a person or group of persons can be charged for an offence of conspiracy, there must be an agreement between that person or group of persons on one side and another person or group of persons on the other side. It is impossible to commit the offence of conspiracy without the meeting of minds of the two parties.

Counsel submits that in this case, the charge sheet does not disclose any other person or group of people with whom the Appellants could be said to have conspired.

He thus concludes that it will be impossible to prove a charge of conspiracy in this matter. He submits that the law of conspiracy is a matter of inference and an inference of conspiracy can only be made from the facts and circumstances of the commission of the substantive offence. He relies on Njovens V State (1973) NMLR 76 at 95. Counsel submits that there is no fact or any act of commission in the proofs of evidence from which the inference could be drawn that the 1st and 2nd Appellants conspired to kill or cause mischief by fire. That being so, in order for the Respondent to prove the offence of conspiracy it needs to show that the Appellants conspired with another person or group of people, which he contends they have failed to do. Counsel argues that what is probable from the proofs of evidence and the statements of the Appellants is that the potential witnesses’ company, Eagle Eyed Consult Ltd, organized a seminar for Action Congress, the Appellants’ political party. The sum of N50, 000.00 paid by the 2nd Appellant, (the party chairman), was a part-payment of the money the Appellants’ political party was owing the Eagle Eyed Consult Ltd. He contends that these facts were admitted by the PW1 and PW2 in their statements in the proofs of evidence. Counsel contends that the claim that the N50, 000.00 was meant to buy the materials needed to carry out the illegal act in counts 1 and 2 is baseless and pure conjecture. In respect of Counts 3 and 4 of the charge, learned Counsel submits that they are bad for being speculative and uncertain, and thus cannot be the basis for criminal liability of the Appellants. Every charge in an indictment must be clear so that so that the accused persons to be tried will understand the complaint against them. They must not be left in doubt as to what they are to face at trial, especially when the criminal trial involves their liberties. Reliance is placed on M.D.P.D.T.V. V Okonkwo (2001) 3 SC 94. Counsel submits that the words “if” and “would have” used in the body of the charge indicates speculation and shows that the act referred to has not actually been committed. He submits that the law is trite that in criminal liability, mens re and actus reus must occur. A speculative count shows the absence of aetus reus (the doing of an illegal act) and/or the mens rea (the intention). The absence of the two of them or even anyone of them is fatal in a criminal trial. He thus concludes that the counts are irredeemably bad. Counsel therefore submits that the trial Court lacks jurisdiction to try the alleged offences in the charge sheet.

In response to these submissions, Mr. Mumini, learned DPP, submits that the trial Court rightly assumed jurisdiction to try the four count charge proffered against the Appellants herein. He further submits that the argument of the Appellants is a patent manifestation of the Appellants’ misconception of the jurisdictional competence of the Federal High Court as conceived under Section 251(1) of the Constitution. He submits that the jurisdictional competence of the Federal High Court as guaranteed under Section 251(1) is purely on the exercise of exclusive jurisdiction in civil matters and causes in relation to the matters listed under sub-sections (a)-(s). Section 251(3) talks about having jurisdiction, simplieita, in cases of treason, etc, in which the court has jurisdiction under Section 251(1). He submits that the framers of the Constitution did not put the words, “shall exercise exclusive jurisdiction” in sub-sections (2) and (3) of the Constitution.

Learned DPP refers to Sections 7 (1) (3) (4) (6)(a) & (b) and 8 of the Federal High Court Act Cap F122 Laws of the Federation, 2004, in particular Section 7(4) thereof to submit that the jurisdiction conferred on the Federal High Court in respect of criminal matters include only original jurisdiction in respect of such offences. He contends that it is significant that the word “exclusive” is omitted from Section 7(4) which deals with criminal matters while it is included in Section 7(1) which deals with civil matters. Counsel thus submits that both the Constitution and the Federal High Court Act are to the effect that under Section 251(2) and (3), the Federal High Court has concurrent jurisdiction with other courts including state high courts in relation to criminal matters in respect of items under Section 251 (1) of the Constitution. He relies on AG Ondo State V AG Federation & 36 others (2002) FWLR (pt. 111) 1972 at 2162-2163.

Learned DPP further submits that the Constitution did not place criminal law under the exclusive or concurrent legislative Lists. It automatically becomes a residual matter under the aegis of the State Government. He relies on Eyisi V State (2001) 12 SCNJ 104; Emelogu V State (1988) 5 SCNJ 79. In interpreting the Constitution.

Counsel submits, courts should ordinarily adopt the broader or wider meaning, except where something in the con indicates that the narrower interpretation will best carry out the object of the Constitution. In this case, the removal of the word “exclusive” from Section 251(2) and (3) clearly shows that the Court ought to adopt a narrower view and not import into the sub-section, words deliberately not included therein. Ehuwa V Ondo State INEC (2006) 12 SCNJ (pt. 2) 151; Tinubu V IMB Securities (2001) 10 SCNJ 1 are relied on. He therefore submits that there is nothing in the Constitution or in the Federal High Court Rules which forbids the State High Court from trying criminal matters pertaining to Federal Government properties or agencies in the State.

In addition, learned DPP submits that counts 1 and 2 disclose an offence of conspiracy in relation to the burning of Texaco and Mobil Filling stations, and the attempt to kill one Yinka Aluko, who is not a Federal Government staff member but a special adviser in charge of security in the State. These are offences not related to either the Federal Government properties or its agencies in the State. They are therefore offences which are not within the jurisdictional competence of the Federal High Court. Counsel submits that where there is a court with jurisdiction to determine all the charges and/or issues involved in a matter, including the principal offence and/or issue, it is improper to approach a court that is competent to only determine some issues or charges. The incompetence of the court to entertain and determine an essential issue and/or charge is enough to nullify the whole proceedings and judgment, as there is no room for half judgment in any matter brought before the court. Reliance is placed on Okoroma V Uba (1999) 1 NWLR (Pt. 587) 359 at 379. He therefore urged the Court to discountenance the arguments of the Appellants on this.

On the second limb of this issue in which the Appellants submit that the charge of conspiracy discloses no conspirator, learned Counsel submits that the facts disclosed by the proofs of evidence were that the Appellants jointly conceived the alleged criminal act. In order to further the perpetuation of their joint act, they secured the services of boys who will do the job. In the quest of seeking for others who will do the job, they procured the services of PW1and PW2, who leaked the crime to the security services in the form of PW3 and PW4. Counsel contends that this discloses a clear case of conspiracy in law on the part of the two Appellants who conceived the plan before procuring the services of others. He refers to Section 96 of the Penal Code which defines conspiracy as an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. Counsel submits that a mere agreement by two people to do an illegal act is sufficient proof of the offence of conspiracy.

Conspirators in law need not be in direct communication in respect of the offence. A court of law can infer conspiracy from the criminal acts of the parties. Iwunne V State (2000) 5 NWLR (Pt.658) 550 at 560-561; Osondu V FRN (2000) 12 NWLR (Pt. 682) 483 at 501-502 are relied on. Counsel submits that the proofs of evidence shows certain criminal acts allegedly perpetuated by the Appellant in furtherance of a common objective between them upon which the Court, if it believes same, can infer a charge of conspiracy. He therefore urges the Court to discountenance the arguments of the Appellants on this.

In respect of the assertion of the Appellants that the charges against them are bad for speculation, learned Counsel submits that this is a misconception of Section 95 and 229 of the Penal Code under which the Appellants were charged. He submits that from the wordings of the two provisions, it is clear that the intention of the lawmakers under Section 95 of the Penal Code is to:

1) Punish whosoever attempts to commit an offence;

2) Punish whosoever causes such an offence to be committed and in such attempt does an act towards the commission of the offence.

Counsel submits that from the proofs of evidence, it is evident that the Appellants not only attempted to commit these offences, they allegedly did some specific acts towards the commission of the offence. He submits further that under Section 229, the intention of the lawmakers is to punish for attempt to commit culpable homicide. The reference to “if” and “would” are words used by the lawmakers to make provision for offenders who would, by fate, not be able to complete the act but who through their intention manifested certain criminal acts towards the success of such intentions.

Learned Counsel submits that the duty of the Court in the interpretation of an enactment is not to re-write the law but to invoke their interpretative jurisdiction to justify the intention of the lawmakers. He relies on NDIC V Okem Enterprises Ltd (Supra). Counsel therefore submits that there is nothing speculative about the way and manner counts 3 and 4 are framed. Rather, they reflect the correct position of the law as it is. The proofs of evidence disclose that both the mens rea and the actus reus, the twin pillars of criminal liability, are present. A criminal intention was conceived by the Appellants, and in an attempt to execute it, procured and executed certain acts which then constitutes both the mens rea and actus reus necessary to establish criminal responsibility. Counsel contends that the charge as it is discloses sufficient materials and ingredients sufficient to give the accused persons/Appellants details of the cases against them. He thus urges the Court to resolve issue one in favour of the Respondent.

Findings

I wholeheartedly agree with the learned DPP that the argument of the Appellants in respect of the jurisdiction of the Federal High Court to try these offences is totally misconceived. Section 251(1) and (3) of the Constitution provides:

251(1) Notwithstanding anything to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any court in civil cases and matters –

(p) the administration or the management and control of the Federal Government or any of its agencies.

251(3) The Federal Government shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection 1 of this section.

As stated earlier in the body of this Judgment, jurisdiction is the powerhouse of any adjudication by any Court or Tribunal. It is so fundamental that its absence robs the court of the power to exercise any form of judicial exercise. See AG Federation V ICAN (2002) 4 NWLR (Pt. 776) 492 at 504. There is no gainsaying the fact that the 1999 Constitution divests jurisdiction from the State High Courts over civil causes and matters concerning the “Federal Government and its agencies”. See Section 251(1) (p) (q) (r). The radical element in this provision has for long provoked divergent judicial reactions. On the one hand, were the decisions which interpreted the provisions as ousting the jurisdiction of the State High Court once a Federal Government agency was a party. Such agencies include: the Central Bank of Nigeria – See Ali V CBN (1997) 4 NWLR (Pt. 498) 192; the Independent National Electoral Commission – See Onyenucheya V Military Administration of Imo State (1997) 1 NWLR (Pt. 482) 429; Federal Universities – See University of Abuja V Ologe (1996) 4 NWLR (Pt. 445) 206; University of Ilorin Teaching Hospital V Akilo (2001) 4 NWLR (Pt. 203) 246; National Youth Service Corps – See Adah V NYSC (2004) 13 NWLR (Pt. 891) 639. The rationale of the reasoning in those cases is that the jurisdiction of the State High Court is automatically ousted once the Federal Government or a Federal agency is involved in the suit. On the other hand were decisions which rested their reasoning on the logic that it was the subject matter of the suit that determined the proper forum.

Hence, the lawmaker never intended that the Courts must, like Pontius Pilate, wash their hands off a case each time an agency of the Federal Government was brought before them. See “Jurisdiction of the State High Court by c.c. Nweze; Omosowan V Chiedozie (1998) 9 NWLR (pt. 566) 477; Okoroma V UBA (1999) 1 NWLR (pt. 587) 9. In the latter case, this Court held thus:

“There is nowhere in the Constitution… (the above Decree) or any other enactment where it was stipulated that any suit in which a Federal Government Ministry, agency, functionary or parastatal is sued must be justifiable only in the Federal High Court. In other words, there is no blanket provision in these enactments which confers exclusive jurisdiction on the Federal High Court in suits against the Federal Government or any of its agencies regardless of the subject matter.”

In NEPA V Edegbero (2002) 18 NWLR (Pt. 798) 79, the Supreme Court stepped in to give proper direction in this subject of controversy. In its view, the extent of the exclusive jurisdiction of the Federal High Court under Section 230 (1) (q) (r) (s) of the 1979 Constitution (as amended), (which is similar to Section 251(1) (q) (r) (s) of the 1999 Constitution), is to vest the Federal High Court with exclusive jurisdiction in civil causes or matters arising from the administration, management and control of the Federal Government, the operation and interpretation of the Constitution as it affects the Federal Government as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government. It is well to note that the Supreme Court in this decision did not pronounce on the extent of the criminal jurisdiction of the Federal High Court as spelt out in Section 251(3) thereof. As earlier stated, under subsection (1) of Section 251 of the Constitution, the Federal High Court has exclusive jurisdiction in civil causes and matters listed therein.

The pertinent issue therefore is whether it is also the case that the criminal jurisdiction conferred on the Federal High Court is exclusive. In the case of Abbas V COP (1998) NWLR (Pt. 577) 308, when confronted with the submission that only the Federal High Court had exclusive jurisdiction in the matter in view of the amendment introduced to Section 230 (1) of the 1979 Constitution by Decree 103 of 1993, this Court held that the Federal High Court and State High Courts have concurrent jurisdiction in respect of a charge under Section 2(1) and (2) of Passport (Miscellaneous Provisions) Act No. 15 of 1989. In interpreting Section 230 (1A) of the 1979 Constitution as amended by Decree 107 of 1993, which is similar to subsection (3) of Section 251 of the 1999 Constitution, the Court in a unanimous decision delivered by Muhammed, JCA (as he then was), held:

“The legal effect of the section in my view is that it confers no exclusive jurisdiction on the Federal High Court in criminal cases specified therein. In other words, criminal matters can concurrently be tried by either the Federal High Court or other courts conferred with criminal jurisdiction over the subject matter in dispute. In this appeal, we already have seen that the offence alleged to have been committed by the appellants is by the provision of section 5(3) of the Passport Act triable by a magistrate. I hold accordingly that the trial court has jurisdiction to try the appellant for the offence alleged. ”

Subsection (3) of Section 251 of the Constitution is in pari materia with subsection (2) of Section 7 of Decree No. 13 of 1973. This provision has been held to be not encompassing of all Federal offences. In Mandara V AG Federation (1984) 1 SCNLR 311; (1984) 4 SC8, hear Obaseki, JSC:

“Unless words no longer bear their true meaning, I hold that when the jurisdiction conferred in criminal causes and matters in subsection (2) of section 7 is limited to causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by subsection (1) of section 7, it was not the intention of the legislature to confer jurisdiction on the Federal High Court in respect of all Federal offences in the criminal code outside the class of offences expressly indicated.”

It is thus submitted that the law is that subsection (3) of Section 251 of the Constitution does not expressly confer exclusive jurisdiction on the Federal High Court to try criminal offences arising from civil matters listed therein.

Now bringing it closer to home, the submission of the Appellants is even more bereft of substance in that the offences for which they were charged are not in respect of any of the civil causes or matters spelt out in paragraphs (a) – (s) of subsection (1) to Section 251 of the Constitution. No. Instead, they have been charged with the criminal offences of conspiracy and attempt to commit mischief by fire and culpable homicide, all offences punishable under Sections 97, 95 and 229 of the Penal Code. For the avoidance of doubt, these offences have no link to and do not arise from any of the civil causes and matters spelt out on Section 251 (1). Therefore, the State High Court is properly vested with jurisdiction to try same.

Secondly and even more fatal to the submissions of learned Counsel is the fact that the Federal Government agency – INEC, its property, and its officers, are not parties to the criminal suit at the High Court. The parties before the Kwara State High Court are: The State V Edun Alabi Bolaji & Sunday Adeniran Fagbemi. At best, the REC, INEC and its property, the INEC Head office, are allegedly the intended victims of the crime. From the facts of the case as divulged in the proof of evidence on the record, they were not even the complainants in the case neither are they potential witnesses.

They were simply targets that the Appellants allegedly marked to vent their spleen.

That being so, the status of the REC as a Federal Government Officer and INEC as an agency of the Federal Government has absolutely no bearing in these criminal proceedings. It is for these reasons that I hold that this limb of issue one is entirely misconceived and without merit. I do so find.

The second limb of this issue is that counts 1 and 2 of the charge of conspiracy discloses no conspirator. For the offence of criminal conspiracy, all that is required to be disclosed is that there was an agreement between two or more persons to do or to cause to be done some illegal act or some act which is not illegal by illegal means. The conspirators do not even need to be in direct communication with each other in respect of the offence. A Court of law can also infer conspiracy from the criminal acts of the parties including evidence of complicity. See Iwunne V State (2000) 5 NWLR (Pt. 658) 550; Osondu V FRN (2000) 12 NWLR (Pt. 682) 483 at 501-502. In the instant case, the poof of evidence discloses that there was an agreement by the Appellants to commit both mischief by fire and culpable homicide. It is alleged that in furtherance of this conspiracy, some people were recruited to carry out the criminal acts. I therefore hold that the submission of the Appellants in this regard is again misconceived.

Finally under this issue, the Appellants complain that Counts 3 and 4 of the charge are bad for being speculative and uncertain. Counsel submits that the words “if” and “would have” used in the body of the charge indicates speculation and shows that the act referred to has not actually been committed. He contends that a speculative count shows the absence of actus reus (the doing of an illegal act) and/or the mens rea (the intention). He thus concludes that the counts are irredeemably bad. Once again, this submission suffers from a misapprehension of the nature of the charge which the Appellants face vis a vis Sections 95 and 229 of the Penal Code. Section 95 which punishes”attempt” provides thus:

Whoever attempts to commit an offence punishable with imprisonment or to cause such an offence to be committed and in such attempt does an act towards the commission of the offence shall, where no express provision is made by the Penal Code or by any other Ordinance or Law for the time being in force for the punishment of such attempt, be punished with imprisonment for a term which may extend to one half of the longest term provided for that offence or with such fine as is provided for the offence or with both.

By this provision, it must be proved that there was an attempt to commit an offence, or put another way, the accused committed an act manifesting a guilty intent.

Secondly, that the accused in the attempt, did some act, not of an ambiguous kind, directly towards the commission of the offence, or that, the steps taken by him in order to commit the offence if successfully accomplished, would have resulted in the commission of the offence. The nature of an offence of attempt is that it is futuristic in some aspects. Nonetheless, where the facts disclose that the accused attempted or manifested a guilty intent by the doing of an act towards the commission of such offence, such an accused can be tried for the offence of attempt.

So also, in respect of Section 229(1) of the Penal Code, it is provided thus:

Whoever does any act not resulting in death with such intention or knowledge and in such circumstances that if he by that act caused death, he would be guilty of culpable homicide punishable with death shall be punished with imprisonment for life or for any less term or with fine or with both.

For this offence, there must be prima facie evidence that the accused attempted to kill a human being. In other words, that he manifested an intent to bring about the death of another and that he did an unambiguous act directly in furtherance of the commission of the offence, or that the steps taken by him in order to commit the offence, if they had successfully been accomplished, would have resulted in the commission of the offence.

Applying these essential elements of the two offences to the proof of evidence before the trial Court, it is apparent that the Appellants, having allegedly conceived of the conspiracy, took some steps towards actualizing their plan, i.e. commissioning two persons whose statements are contained in the proof of evidence, to carry out their diabolical plan to commit arson and murder. If the proof of evidence is to be believed, it is alleged that the Appellants went further to request that the two potential State witnesses procure the materials needed for the arson as well as find suitable assassins to kill the intended target. The sum of N50,000.00 for this purpose was allegedly given to these persons as an advance sum by the Appellants for the materials needed. In pursuance of the Appellants’ instructions, the potential witnesses allegedly recruited two other persons who would kill the person targeted and these persons were presented to the Appellants. Unfortunately for the Appellants, these persons turned out to be State Security Services officers, who eventually effected their arrests. It is alleged in the List of Exhibits attached to the proof of evidence that there are recorded cassettes in respect of conversations that took place at the 1st Appellant’s office which will be tendered in evidence at the trial.

From the facts disclosed in the proof of evidence, it is therefore safe to assume that the steps taken by the Appellants towards the commission of the offence, but for the fact of this intervening factor, i.e. the arrest of the Appellants, would have successfully crystallized into the commission of the offence itself. I am of the firm view that these facts together constitute prima facie evidence of the offences disclosed in Counts 1- 4 of the charge. There is nothing speculative or uncertain about them. I do so find.

Issue two

Considering the four count charge in the indictment, proof of evidence and the attached appellants’ statements, whether a prima facie case is made out as ruled by the trial court to warrant the appellants’ full blown trial as further order by the lower court. (Grounds 1 and 2) Under this issue, Mr. Gbadeyan submits that the law is trite that where the application to quash an indictment is made, an authorizing Judge must consider the proof of evidence and the attached statement of the accused person as a whole to determine whether a prima facie case of the offence charged is made out against the accused person. Reliance is placed on Abacha V State (2002) 7 SC (pt. 1) 12. He submits that the trial Judge failed or neglected to consider the statement of the Appellants attached to the charge in determining whether a prima facie case is disclosed by the proof of evidence. A prima facie case is made out when the proof of evidence attached to the charge reveals an offence and the accused is linked with that offence. Counsel submits that the proofs of evidence in this case neither reveal any offence nor link the Appellants with any offence. Counsel further submits that there must be evidence in the proofs to meet all the essential elements of the offences as contained in the charge before the proof of evidence can be said to have revealed an offence. Ikomi V State (1986) 3 NWLR (Pt.28) 314 at 316 is relied on. He contends that there are no facts in the proofs that would amount to an attempt to commit the offences in counts 3 and 4 of the charge. He relies on Jegede V State (2001) 7 SC (Pt. 1) 138-139; Ozigbo V COP (1976) NSCV124.

Counsel contends that the trial Judge was wrong in holding that there is evidence of performance of an act which may be regarded as movement to the commission of the alleged offences. He argues that there is no act in the proofs sufficiently proximate to the complete offence in the proofs. For an act to constitute an attempt, the Appellant must have crossed the rubicon and burned his boats. There is nothing to show that movements were made towards the commission of the alleged offences on the night of Thursday, 19th April, 2007, and that nothing was done on the 19th April, 2007 before the arrest of the 1st Appellant on the 20th April, 2007. Counsel submits that for an act to constitute attempt, it must be immediately connected to the commission of the offence.

Counsel additionally submits that the Police have the statutory duty to investigate and initiate proceedings upon investigation. Thus, the S.S.S. was wrong to have prevented the Police from performing their duty because the alleged offences have nothing to do with state security matters. Fawehinmi V IGP (2002) 5 SC (Pt. 1) 69; Balogun V AG Federation (1994) 5 NWLR (Pt. 345) 445 at 446 are relied on.

From the latter case, Counsel submits that the arrest was master-minded. Counsel posed certain rhetorical questions which he submits the proofs of evidence did not help in resolving. He submits that from the conduct of the S.S.S., the whole scenario was a set up as the 1st and 2nd Appellants were secretary and chairman of the Action Congress, on opposition Party in Kwara State and they were arrested on the eve of the presidential election.

Counsel also submits that the materials in the proofs of evidence are predicated on mere suspicion. Suspicion, no matter how grave, does not amount to a prima facie case. He again relies on Abacha V State (Supra). He submits that courts have inherent jurisdiction to prevent the abuse of their process, and the power to protect the liberty of the citizen from being oppressed through acts of persecution. He relies on Ikomi V State (Supra). Counsel thus submits that sending the Appellants on a prolonged and windy trial will amount to an abuse of judicial process and an infringement on the Appellants’ liberty as no prima facie case is made out by the proofs of evidence attached to the charge. He therefore asks the Court to resolve this issue in the Appellants’ favour.

In response to the arguments of the Appellants, Mr. Mumini submits that the grouse of the Appellants’ submission in this issue borders on the Appellants’ misconception of what constitutes a prima facie case in relation to the proof of evidence. He relies on the case of Tongo V COP (2007) ALL FWLR (Pt. 376) 636 at 646 where the Supreme Court describes a prima facie case in relation to a no-case submission. From the pronouncement of the Apex Court, Counsel submits that for the proof of evidence to make out a prima facie case against an accused person goes beyond the trial Judge considering just the statement of an accused person alone.

Rather, the court is to take a holistic view of the proof of evidence and see whether there is the ground to grant leave and continue with the trial. On the authority of Ajidagba V LGP (1958) 2 SC 5; (1958) SCNL R60, Counsel submits that a decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which upon a calm view of the whole evidence offered by the prosecution, a rational understanding will suggest the conscientious hesitation of a mind that is not influenced by a party preoccupied by prejudice or subdued by fear.

Learned DPP thus submits that a holistic view of the proof of evidence together with all its annexures gives the trial Court a ground upon which leave was granted as the facts disclosed by the proof exhibit a prima facie case against the two Appellants.

He contends that a perusal of the proof of evidence not only discloses a good case against the two Appellants, it gave a detailed description of the role played by each of the Appellants on the attempts to commit the offence charged. He argues that the facts as disclosed in the proof go beyond mere preparation to commit an offence. It shows specific and physical acts by the Appellants towards the commission of the offence for which they were charged.

Learned Counsel submits that the proof of evidence reveals the following salient facts:

1. That the two Appellants conceived the intention to commit the crimes for which they were charged.
2. Paid money towards the procurement of materials for their conceived criminal acts.
3. Procured all necessary materials, including a gun, for the job.
4. Took would be assassins to the premises of those to be assassinated.
5. Had a meeting where final arrangements as to the targets and persons to be affected were carefully marked out.

He therefore wonders what else would have amounted to an attempt in law if all these do not constitute prima facie facts upon which a court can proceed to know more.

Learned Counsel further submits that the facts disclosed in a proof of evidence are expected to be a summary of the evidence to be led at the trial and not the evidence itself. He relies on Ibekwe V FRN (2004) ALL FWLR (pt. 213) 1780 at 1810. It therefore follows that the prosecution is expected to lead further evidence which are not presently contained in the proof of evidence when the case eventually goes to full trial. Counsel urges the Court to hold that the proof of evidence as it is discloses sufficient facts upon which the trial Court could proceed to full trial.

In respect of the Appellants’ submission on the impropriety of the State Security Services to have investigated this matter in the first place, the learned DPP refers to Sections 2(1) & 3 of the National Security Agencies Act 1986 Cap 278 LFN. Counsel submits that the offences for which the Appellants were arrested bordered on and related to threats to law and order. It can also constitute acts of subversion as contained in Section 2(1) (i) & (6)(b) of the instrument, as the aim of the crime as contained in the recorded tape which is to be tendered in evidence was to frustrate the election process. He submits that the case of Fawehinmi V IGP (Supra) does not make it illegal for officers of the State Security Services to investigate matters relating to threats to law and order, but the case recognizes the power of the Police to do so also. Counsel also submits that the allegations contained in the proof, when taken together with the confession contained in the recorded tape to be tendered in evidence and the attached exhibits go beyond the realm of suspicion as alleged by the Appellants. He concludes that the cases of Ikomi V State (Supra) and Abacha V State (Supra) cited by the Appellants are most irrelevant as the facts are not apposite to the facts and circumstances of this case. Learned Counsel therefore urges the Court to resolve this issue in favour of the Respondent.

Findings

In respect of this issue, I adopt my findings on issue one above. I have already found that the charge, supported by the proof of evidence, discloses a prima facie case against the Appellants for which they should properly stand trial. The facts in the instant case are easily distinguishable from the facts in the case of Abacha V State (Supra) because the facts disclosed herein go far beyond the realm of suspicion. I have noted that in arguing this Appeal, both parties hovered precariously close to the issues in the substantive case, which is yet to be decided by the trial High Court. I therefore restrain myself from falling into the trap of going as far as the parties went and remind myself that this is an interlocutory Appeal. The substantive matter is still in progress at the trial High Court. Thus nothing must be said or done to pre-empt or prejudice the hearing and determination of the pending substantive proceedings. Therefore, I will say no more on the proofs of evidence filed at the trial Court/ save what I have already said, and that is, that the four counts of charge in conjunction with the proof of evidence and the statements of the accused persons contained in the record of the lower Court fully disclose a prima facie case against the Appellants for which they must stand trial. Of course by their positive acts as enumerated in the proof of evidence, the Appellants had crossed the Rubicon and had burned their boats.

In respect of the submission of learned Counsel for the Appellants that the State Security Services were wrong to have investigated the allegations against the Appellants, I can find nowhere in the Grounds of Appeal where this issue was raised. It is thus a matter extraneous to the Appeal. Without the leave of court having been sought and obtained to raise this fresh issue, it cannot be raised and argued as Counsel has presumed to do. See Dickson Moses V State (2006) 4 SCNJ 190; Ogba V Onwuzo (2005) 6 SCNJ 83; Dagaci of Ebwa V Dagaci of Dere (2006) 1 SCNJ 160; Omega Bank Nig. Plc V O.B.C. Ltd (2005) 1 SCNJ 150. All submissions thereon are therefore discountenanced.

In the result, following my findings above, I find the Appeal devoid of merit. It fails and is accordingly dismissed. I make no order as to costs. I uphold the ruling of the trial High Court delivered on the 13th of November, 2007 dismissing the application.

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Other Citations: (2009)LCN/3374(CA)