Alhassan Auwalu V. Federal Republic Of Nigeria (2017)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja division (herein after referred to as “the lower Court”) delivered on 19th of May, 2016 which affirmed the Ruling of the High Court of Federal Capital Territory, Abuja (the trial Court) delivered by M.B. Idris J. on 20th April, 2015.

The facts which gave rise to this appeal are summarised hereunder. On 12th March, 2015, the appellant and one other accused person were arraigned before the trial High Court by the respondent/prosecution on five count charge filed on 13th February, 2015, of course, after the latter obtained leave from the trial Court. The five count charges were contrary to Section 25 (1) (a) and Section 26 (1) (c) of the Corrupt Practices and Other Related Offences Act 2000. Both the appellant and his co-accused pleaded not guilty to the charges when same were read to them and the trial Court thereafter admitted them to bail.

Then on the 16th March, 2015, the appellant filed a motion before the trial Court, praying it to quash the instant charge on three grounds listed below:-

(1) That the charge was incompetent, unconstitutional and void as same violated the provisions of Section 36(6) and (12) of the Constitution of the Federal Republic of Nigeria 1999, as amended, Section 201 of the Criminal Procedure Code and had amounted to grave abuse of process of the Court.

(2) That the charge framed against the accused/appellant was groundless, vexatious and frivolous as it disclosed no prima facie case against the appellant; and

(3) That the said charge Exhibit A was filed before the trial Court granted leave to the prosecution/respondent to so frame it and same was therefore defective and void, as such the proceedings held on 9/3/2015 and the accused appellants purported arraignment on 10/3/2015 on Exhibit A (the charge) are null and void ab intio.

On 10th March 2015, the motion was heard by the trial Court and was adjourned to 20th April, 2015 for ruling. On 20/4/2015, the trial Court delivered its considered ruling dismissing the application and adjourned the matter for continuation of the proceeding in the matter. Miffed by the Ruling of the trial Court, the appellant promptly appealed to the lower Court. The lower

Court after hearing the appeal, dismissed same, vide its judgment delivered on 19/3/2015.

Piqued by the judgment of the lower Court, the appellant has now appealed to this Court. The appellant initially filed two notices of appeal dated 24/5/2015 and 22/6/2016. He later chose to abandon the notice of appeal he filed on 24/5/2015 and relied on the notice of appeal he filed on 22nd June 2016 as his extant notice of appeal. That extant notice of appeal contains twelve grounds of appeal including the omnibus ground of appeal.

In keeping with the rules and practice obtained in this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument dated 1st July 2016 which was settled by Josiah Daniel Ebune Esq was filed on the same 1st July 2016. Out of the twelve grounds of appeal, the appellant proposed four issues for the determination of the appeal which are set out below:-

(A) Whether the Court below was right in failing to resolve the issue of the competence of in (sic) in the respondent’s brief of Argument that was early (sic) filed outside the 10days statutory period prescribed by Order 9(b) of the Court

of Appeal Practice Direction of 2013, without any extended time to do so raised by the appellant and its Brief of argument (Ground 3 of the notice of appeal)

(B) Whether the learned Justices of the Court of Appeal were not in error in entirely adopting the issues for determination as framed by the Respondent in resolving the Appellants appeal when those issues were vague, abstract and without reference to the relevant facts touching the real questions in contoversies upon which the Notice of Appeal was anchored and whether the error has not occasioned a miscarriage of justice. (Grounds 1, 5, 11 and 12 of the Notice of Appeal). (C) whether the learned Justices of the Court of Appeal were right in affirming the trial Court (sic) on the repealed Corrupt Practices and Other Related Offences Act, Cap C 31, Laws of the Federation of Nigeria 2004 which does not provide for the offences as that under which the Appellant is standing charged, on the ground that its previous decisions upholding the constitutionality of the 2000 Act, have not been overruled by the Supreme Court and whether in all the circumstances, the decision has not prejudiced the

Appellant (Ground 5, 8, 9 and 10 of the Notice of Appeal).

(D) Whether the Court below (sic) was fair and not in error in the manner it approached and resolved the Appellant’s complaint on the abuse of Court proceedings arising from the mode and manner the Respondent commenced this instant proceedings at the trial Court having regard to the totality of the uncontradicted evidence on the record in that direction (Grounds 2, 4, 6, 7 and 8 of the Notice of Appeal.)

The respondent on its part, filed its own Brief of Argument on 17/7/2016 wherein it also raised four issues for the determination of the appeal as follows:-

(i) Whether the Court below is duty bound to resolve an issue which was not canvassed in a matter before it.

(ii) Whether the Justices of the Court of Appeal are duty bound to rely on the issues formulated by parties to an appeal.

(iii) Whether the Corrupt Practices and Other Related Offences Act 2000 has been repealed by Corrupt Practices and Other Related Offence Act 2003.

(iv) Whether the Court below was right when it affirmed the mode of commencement of the criminal trial by the trial Court.

RESOLUTION OF ISSUES FOR DETERMINATION

ISSUE NO.1

On this issue, the learned counsel for the appellant submitted that the lower Court was wrong to have entertained the respondent’s brief of argument, which according to him, was filed outside the 10 days period prescribed by Order 9(b) of Practice Direction.

He argued that whenever there is a requirement of law to exercise a certain power, such statutory power must be exercised within the limit or period prescribed by the statute. He stated that practice Direction did not even, make provisions for extension of time for the respondent to file his brief outside the prescribed period. He argued that by allowing the respondent to adopt his brief of argument which was filed outside the period of ten days prescribed by the Practice Direction Order 9(b), his constitutional right of fair hearing was breached.

Then, learned counsel for the respondent while Responding to the appellant’s submissions on this issue, submitted that the appellant had never raised and argued the issue of the competence of the respondent’s brief of argument, even though he had earlier said he was going

to argue that issue. On the issue of Practice Direction raised by the appellant, the learned respondent’s counsel argued that Practice Direction provisions do not override the provisions of the Court’s substantive rules.

Now, looking at the provisions of the Court of Appeal Rules 2013 particularly Order 18 Rule 4(1), it is clearly provided thus:-

Order 18

4(1) The Respondent shall also within thirty days of service of the brief for the appellant on him, file the respondent’s brief which shall be duly endorsed with an address or addresses for service

It is instructive to note that Rule 1 of Order 18 categorically stated that the Order (i.e. Order 18 of the Rules) shall apply to all appeals coming from any Court or from which an appeal lies to this Court (i.e. the lower Court herein). Apparently, the provisions of Order 9(b) of the Practice Direction 2013which prescribed 10days period within which a respondent should serve his brief of argument from the date he received the appellants brief of argument, is in conflict with the provisions of Order 18 Rule 4(1) of Court of Appeal Rules. The correct

proposition of the law is that the provisions of the Practice Direction cannot override the provisions of the substantive rules of Court from which the authority to promulgate the Practice Direction was derived.

The important thing to note however, is that the attempt made by the learned counsel for the appellant to challenge the competence of the respondent’s brief of argument is of no moment, as it was not canvassed anywhere. Similarly, the lower Court was never and was nowhere called upon to make any pronouncement on it. Hence it was never raised in the judgment of the lower Court now being appealed against. See OSHODI v EYIFUNMI (2000) 7 SC P.145. Without much ado therefore, this first issue deserves to be and is accordingly resolved against the appellant.

ISSUE NO.2

This issue deals with whether the lower Court was wrong to have adopted the issue for determination proposed by the respondent in treating the appeal even when according to the appellant, those issues were vague and abstract without touching on the real question in controversy. Further, the learned counsel for the appellant submitted that the

respondent’s issues failed to capture the relevant facts and questions in controversy. He argued also, that the issue did not relate to or touch on the grounds of appeal. See OLOWOSAGO VS ADEBANJO (1988)4 NWLR (Pt 88) 275.

Learned appellant’s counsel further submitted that the entire argument of the respondent failed to provide any answer to the crux of the appellant’s complaint on the validity or otherwise of the existing Act, Cap C31 2004 of the Laws of the Federation of Nigeria and that in spite of the foregoing, the lower Court adopted the respondent’s issues for determination without modifying them in determining the appeal.

He added that all the issues raised by the respondent which were adopted by the lower Court, did not arise from the grounds of appeal because none of them was premised on what the trial Court decided upon as captured by the appellant’s notice of appeal. See UDENGWU VS UZUEGBU (2003) 13 NWLR (Pt. 836)136.

Responding to the above appellant’s learned counsel’s argument on this issue, the respondent’s counsel submitted that issues for determination raised by the appellant are not sacrosanct, hence the

Court is not obliged to adopt issues set down for determination by the appellant. He argued that a Court is entitled to formulate, frame or reframe its issues in order to give it precision and clarity if it appears to it, that the issues so framed by a party or parties are not well framed.

I have closely followed the argument raised on this point by the learned counsel for the appellant. His grouse is whether the lower Court was correct in adopting the issues for determination raised in the respondents brief of argument filed before it for the determination of the appeal filed before it. Here, I must reiterate that although an appellate Court should be wary of raising or introducing new issues for determination in an appeal before it, however, where the issues raised by the parties before it, appear to it to be inappropriate or inadequate having regard to the grounds of appeal, the appellate Court may, after having referred to the circumstances of the case, identify the relevant issues. In doing so however, it must be extra ordinarily careful and cautious so as not to go outside the grounds of appeal filed or issues not canvassed by the

parties in their respective briefs of argument.

Although generally speaking, an appellate Court will rely on the issues for determination formulated by an appellant in determining his appeal, however, it is my, view, that failure by an appellate Court to be so bound or guided by issues formulated by the parties, does not amount to any injustice or denial of fair hearing especially, in a situation, where the appellate Court regards the issues so formulated by the parties as inappropriate having regard to the grounds of appeal filed. See PETERSIDE v FUBARA (2012) 12 SC (Pt VI) 40; UNITY BANK PLC & ANOR vs BOUARI (2008) 2 – 3c (Pt 11)1;ASALU vs DAKAN (2006) 5 SC (pt III) 120. In this instant appeal therefore, I hold the view that the lower Court is entitled to determine the appeal based on the respondent’s proposed issues as none of those issues appeared to have been outside the precinct of the grounds of appeal or were inappropriate to those grounds of appeal.

This issue is therefore hereby resolved against the appellant.

ISSUE NO.3

This issue queries whether the Court below was right when it affirmed the trial Court’s

finding on the alleged repealed Corrupt Practices and Other Related Offences Act of 2000 and void the Act of 2004 which did not provide for the offences under which the appellant was charged.

It was the contention of the learned counsel for the appellant that the appellant ought not to have been tried for the offences which were not contained in that statute. He argued that the Corrupt Practices and Other Related Offences Act, Cap C 31 Laws of the Federation of Nigeria 2004, has expressly repealed the Act of 2000 under which the appellant was charged. He added that the Respondent and the two lower Court’s avoided or refused to address the status of the 2004 Act placed before them for interpretation vis a vis, the repealed Act. He referred to the lower Court’s judgment at page 443 of the record.

In further submission, the learned appellant’s counsel argued that the reasons given by the Court below for dismissing this leg of the appellant’s appeal before it were wrong because the 2004 Act is an existing Act that had not been made subject to any legislation in the circumstance and by Section 55 of the 2004 Act, the question whether the

Court below or the Supreme Court had invalidated the 2000 Act did not even arise. Learned appellant’s counsel then submitted that an amendment of a law or statute is the function of the legislature and the Court can not fill a gap which comes to light by altering the words of a statute to make it read in the way they think. He cited the case of OKUMAGBA Vs EGBE (1965) ALL NLR 62 at 65. He contended that the respondent and the two Court below merely relied on and based their decisions on the transaction or charge framed before coming into operation of 2004 Act which said Act, was never subject of contention. He finally argued that the failure of the Court below to resolve the constitutionality of 2004 Act had breached his right to fair hearing under Section 36 of the 1999 Constitution as amended. He urged that this issue be resolved in his favour.

In his reply, the learned counsel for the respondent in his brief of argument, gave extensive history of the two Acts of 2000 and 2004.

The learned counsel to the respondent pointed out that the National Assembly in an attempt to gag the ICPC which they were not comfortable with

hurriedly and without due process purportedly passed into law the Corrupt Practices and Other Related Offences Act of 2003 and in a letter dated March 17th 2003, with Ref.No.NASS/CAN/115/VOL.4/257 sent the bill to the then President for assent.

In a swift reaction, certain members of the National Assembly challenged the constitutionality of the said 2003 Act in suit No.FHC/ABJ/93/2003. Hon. Bala Kaoje & 4 Ors v N.A. & 13 Ors. Despite the order to maintain a status quo made by Hon. Justice Egbo-Egbo and the letter written to the National Assembly by the then President on the subject matter stating his inability to assent to bill because of pending suit before the Court, yet the National Assembly went ahead to pass the bill into an Act on the 8th May, 2003.

And in a well considered judgment, the Court declared the 2003 Act illegal and unconstitutional and consequently the Act of 2000 which came into effect on the 13th June, 2000 was sanctioned by the Supreme Court in AG ONDO STATE V AG FEDERATION in a judgment dated 7/6/2002 and where it was held that the 2000 Act shall be in force until amended or voided by a valid law made

through due process of law by the National Assembly. He stated further that the Abuja Division of the Court of Appeal reiterated the validity of the 2000 Act in another suit where Peter-Odili JCA (as she then was) held as below:-

Now the bone of contention in this issue is whether or not the Corrupt Practices and Other Related Offences Act 2000 has been repealed The answer to this poser is so simple and straight forward and it is that the Corrupt Practices and Other Related Offences Act 2000 is solidly in existence, it is yet to be repealed.

He therefore submitted that the position of the appellant is a misconception that the Act of 2000 is not in existence. He then urged this Court to hold that that Act of 2000 is valid and subsisting.

It seems to me that the grouse of the appellant’s learned counsel is that the trial Court was wrong in trying the appellant under the 2000 Act which according to him, is non-existent in view the much later Act of 2004 promulgated by the National Assembly. To the appellant’s learned counsel, the 2004 Act did not make provisions of offences on which the appellant stood tried on and

therefore he was tried, on an offence in which no known or existent law made provisions on. I agree with the learned counsel for the appellant that the case of AG. Ondo State vs AG of the Federation & Ors (supra) is not relevant to the instant situation.

That case dealt with the constitutionality of the 2000 Act and the case was even decided before the alleged promulgation of 2004 Act. All that the appellant is saying here is that with the promulgation of the 2004 Act, the 2000 Act became otiose and remain repealed.

Now coming to the controversy on the validity and continue existence of the 2000 Act and of the controversy on the validity of the 2004 Act given supra and submission of the learned respondent’s counsel on whether that Act was validly promulgated which the appellant’s counsel did not controvert in his Reply Brief, if such controversy is something to go by, one will be hesitant in holding that the purported 2004 Act had repealed the 2000 Act.

I am not aware of any case where this Court dealt with the validity of 2000 Act however, I must therefore rely on the unreported case decided by the Court of Appeal, namely FRN

v WABARA (2014) 2 ICPCLR where the issue in controversy was dealt with, in which the Court of Appeal per Mary Odili JCA (as she then was) held thus:-

The appellants counsel not being able to convince one to depart from the finding of the learned trial judge, I go along with that finding without hesitation and also held that the 2000 Act is the valid law and the charge under it cannot be impugned on a point of invalidity of the law of arraignment

It should be noted that both cases cited above were decided after the alleged purported promulgation of the controversial 2004 Act.

In the light of what I started supra, I tend to align myself with the finding of the lower Court that the 2000 Act was a valid and applicable law under which the appellant should be and was rightly charged. This issue is therefore also resolved against the appellant.

ISSUE NO.4

This issue pertains to the way and manner the respondent/prosecution commenced the instant case at the trial Court. It is the contention of the learned counsel for the appellant to prefer the charge was not done in accordance with the

laid down procedure. See ABACHA vs STATE (2002) 11 NWLR (PT.779) 437. The learned counsel complained that the respondent/prosecution did not comply with Section 185 (a) of the CPC and Rule 3 (2) (a) of CPC by filing a charge, serving it on the accused/appellant and arguing the Exparte Application for leave to prefer the charge against the appellant, while he was in dock standing. He cited the case of EFCC vs EKEOCHA (2008) 14 NWLR (Pt.1106)161, 177 778. Learned counsel argued that the non-compliance with Section 185 of CPC by the respondent/prosecution is a fundamental defect which can not be cured and the Court below was wrong to have regarded it as mere irregularity.

Responding, the learned, counsel for the respondent submitted that filing and service of the charge on the appellant and service of the charge on the appellant before leave was sought and obtained are constitutionally permitted if the accused is promptly informed in detail of the nature of the offence and that what the prosecution did was to pre-inform the appellant of the offence which he was charged with to enable him to adequately prepare for his trial.

It was

also submitted on behalf of the respondent that the presence of the appellant in Court before leave was sought and obtained, was allowed by practice Direction adopted by the Court and could not therefore be made a ground of appeal.

He denied that the accused persons were docked when leave was being sought and obtained.

The learned counsel for the respondent on the other hand emphasised that filing and service of the charge on the appellant before leave was sought and granted is constitutionally permitted and is also constitutionally guaranteed provided the accused is informed promptly in detail of the nature of the offence. He insisted that all that the prosecution did was simply to pre-inform the appellant of the offences for which he was charged with to enable him to adequately prepare for his trial.

He argued further, that the presence of the appellant in Court before the leave was sought and granted was approved by the Practice Direction adopted by the Court and cannot therefore be invoked by the appellant as a ground of appeal. He pointed out that the accused persons were never docked when the leave was sought

and granted as they sat in the open Court like any other person and were merely asked to stand up for Court to acknowledge their presence in Court in compliance with Practice Direction of the High Court of the FCT which says “at the time of the prosecution seeking leave to prefer criminal charge, the accused must be present in Court” (See the Practice Direction of 2014 duly signed by Hon Justice Bukar 3(a) (b) & (c).) He argued that the appellant has not shown anywhere in the record, where he was docked before leave to prefer criminal charge was sought and obtained and that filing of charge before seeking leave does not offend the provisions of Section 185 (b) of CPC, but is simply a pre-requisite for seeking leave as prescribed by the said Act. He submitted further, that trial in criminal cases commences when the accused person is docked and the charge read over to him in the open Court and the trial Court it takes his plea. He cited the case ofMRS E.A. LUFADEJU VS EVANGELIST BAYO JOHNSON (2007) LPELR-1795 (SC) where per Onnoghen JSC (as he then was) had this to say;-

Trial in a criminal matter is said to commence with the arraignment which

in turn consist of charging the accused or reading over the charge to the accused and taking his plea”.

He argued that there is no procedural defect on the face of the charge. He urged this Court to resolve this last issue in favour of the respondent and to allow the appeal.

The crux of the complaint by the appellant’s borders on the filing of the charge by the respondent before leave was sought and obtained. His other complaints are the service of the charge and the alleged putting them (accused persons) in the dock (which was even denied by the respondent). It is noted by me, that on page 95 of the record it is shown that the accused/appellant himself admitted that on 12/9/2015, the prosecution moved its Exparte motion for leave to prepare charge against them, shortly before they were arraigned before the Court.

It is my considered view that before an accused person is tried, a charge must be framed against him (See Section 185 (B) of Criminal Procedure Code. A trial of an accused person starts when he is arraigned in Court, charge read and explained to him in the language he understands and when his plea is taken. See

KAJUBO v THE STATE (1988) 3 SC 109; MRS E.A LUFADEJU Vs EVANGELIST BAYO JOHNSON(2007) LPELR-1795 SC 43; In the instant case, it is clear from the record of appeal, that the accused persons including the appellant were in the Court when the respondent moved its Exparte motion to seek leave to frame the charge against them with which they were promptly served their pleas were not taken at that stage, as it was premature to do so. I therefore do not agree with the appellant’s counsel submission when he stated that that amounted to breach of the appellant’s right to fair hearing. Had it been that they were arraigned before the trial Court and their pleas taken before leave was sought and obtained then it may be said to be a breach of his constitution right procedurally. In any case, it is my candid opinion, what had happened in this instant case when the application for leave was sought and obtained was moved in the presence of the appellant in Court is trial. The appellant also did not show in which way he was prejudiced by that act of the prosecution or how miscarriage of justice was occasioned to him. The appellant’s complaint is therefore lacking in substance and

is of no moment. This issue is as well resolved against the appellant. Therefore all the four issues are hereby resolved against the appellant.

In the result, this appeal is adjudged to be unmeritorious and it deserves to be and is hereby accordingly dismissed. The judgment of the lower Court which had earlier affirmed the Ruling of the trial High Court, is hereby also further affirmed.

Appeal is dismissed accordingly.

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