Anthony Alintah (M) & Ors. V. The Federal Republic of Nigeria (2008)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAH, J.C.A.,
This appeal is brought against the ruling of the Federal High Court Lagos delivered by M. L. Shuaibu, J on the 16th March 2004 refusing to hear a preliminary objection against the charges preferred against the appellants before that court until the appellants appear in court before any step could be taken including hearing of the preliminary objection.
The appellants were charged before the lower court on a four count charge of conspiracy, forgery and uttering the register of directors of Trade Afrik Ltd and Agro & Hydro Tech Ltd at Corporate Affairs Commission in Lagos Contrary to section 3(2) of the Miscellaneous Offences Act Cap. 410 Laws of the Federation of Nigeria 1990. The appellants, who have not appeared before the court, filed a notice of preliminary objection on 23rd February, 2004 challenging the jurisdiction of the court below, the locus of the complainant to prosecute the case and the competence of the charge. The appellants also raised, in their preliminary objection, the following two Issues:
I. Abuse of court process in view of the decision of the same court in suit No. FHC/L/CS/256/2001 Anthony Alintah and Anor Vs Trade Afrik Limited & Anor wherein the decision of Jega, J (as he then was) is in favour of the appellants;
- Fair hearing under section 36 of the Constitution and contended that it would be unlawful to try any of the appellants on any of the courts in the charge.
On the 25th February 2004 the appellants’ counsel sought to move the court to hear the preliminary objection which, he contended, should first be entertained and determined before arraigning the appellants. It was further submitted for the appellants that the court couldn’t compel the attendance of the appellants in respect of the charge that has been challenged. The respondent’s counsel however insisted on the presence of all the appellants in court as a precondition to hearing the preliminary objection
In it’s ruling delivered on 16th March 2004, which is the subject of this appeal, the court below held that:
“it is mandatory that the accused must be present in court before any further step could be taken including hearing of the application for preliminary objection as to their arraignment”
The learned trial Judge, however, overruled the preliminary objection for lacking in merit and ordered the three accused/appellants to appear in court at the next adjourned date by holding thus: “Consequently the objection as to the presence of the accused persons in relation to the charges filed against them and now pending in this Court is lacking in merit and I so hold. All the three accused persons listed on the charge … (sic) … are hereby directed to appear before this Court on the next adjourned date.” (See p. 40 of the Record of Appeal)
After filing the notice of appeal on 30th March, 2004 against the order of the court below directing the physical appearance of the accused persons/appellants in court; the appellants filed another notice of appeal dated 21st June, 2004 following the ruling of the court below delivered on 7th June, 2004 refusing stay of proceedings and holding that the notice of appeal filed on 30th March, 2004 is defective and incompetent having been signed by counsel instead of the appellants themselves as required by order 4 rule 4(1) of the Court of Appeal Rules 2002.
The first appeal No. CA/L/194/2004 initiated by the notice of appeal dated and filed on 30th March 2004 and the second one No. CA/L/587/2005 commenced by notice of appeal dated 21st June 2004 were allowed by leave of this Court granted on 26th April, 2006 to be argued together. Thus, issues raised in both appeals were appraised and argued by learned counsel on both sides in the respective briefs.
Counsel on both sides raised two identical issues for determination. The following two issues raised by the respondent which summarizes those similarly raised by the appellants will, for straight-forwardness, be adopted for the determination of this appeal: –
“1. Whether the court below was right in holding that the accused/appellants physical presence in court is mandatory before the notice of preliminary objection dated 23rd day of February 2004 can be taken.
- Whether the appeal is competent.”
The appellants’ counsel contended that the notice of preliminary objection dated 23rd February, 2004 raised jurisdictional and constitutional issues touching on the competence of the court, the competence of the charge in relation to the appellants’ right to fair hearing under section 36 of the Constitution of the Federal Republic of Nigeria 1999 and the locus of the Attorney General of the Federation to prefer and prosecute the charge in the court below. See STATE VS WILLIAMS (1978) 11 S.C. 38 at 40. The appellants’ counsel submitted that these issues must be tried and settled first. See UNION BANK OF NIGERIA PLC VS NTUK (2003) 16 N.W.L.R. (Pt. 845) 185 at 205 H, 207C, 215 G-H and 216-217 H-C. The objection raised, the appellants’ counsel further submitted, being fundamental and relating to the jurisdiction of the court and must be determined first before the court takes any step in the proceedings. See NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 135) 688 and also FAWEHINMI VS ATIORNEY GENERAL OF LAGOS STATE No 1 (1989) 3 NWLR (Pt. 112) 707 at 739 F, 726-727.
The appellants counsel also submitted that the view of the learned trial Judge that the decision in the case of FAWEHINMI VS ATTORNEY GENERAL OF LAGOS STATE NO.1 relates to obtaining leave to file charge or information and partial inadmissibility of the proof of evidence, was erroneous having regard to the affirmation of that decision in EZEZE AND ANOR VS THE STATE (2004) 14 NWLR (pt 894) 491 at 502-503 especially at p. 504 H where this court per Aderemi, JCA (as he then was) held thus:
“Following the principles articulated by the judicial authorities that I have referred to above including FAWEHINMI VS ATTORNEY GENERAL OF LAGOS STATE No.1, I say without any equivocation that the presence of the appellant in court was not mandatory before his motion to quash could be heard or taken.”
The appellants’ counsel then submitted that the accused persons/appellants should not be compelled to attend court upon a charge being challenged in a preliminary objection prior to the hearing and determination of the preliminary objection especially where such accused is represented by counsel. See section 36 (6) (b) and (c) of the 1999 Constitution and EZEZE VS STATE (supra). The appellants’ counsel also cited the case of HON VANDEN BERG VS BCE CONSULTING ENGINEERS LTD (unreported appeal No. CA/L/61A/2002 delivered on 23rd October, 1993 at 7 paragraphs 2 and 3 where Ogebe, JCA held that
” … hearing of this objection (preliminary objection) was fundamental in the proceedings and it was wrong for the trial court to order the arrest of the appellant when its competence to hear the motion for contempt was seriously being questioned and notice of preliminary objection was yet to be taken.”
The appellants’ counsel however failed to submit that authority. Moreover one wonders how a 2002 appeal could have been decided way back in 1993. Where learned counsel cites an unreported case and fails to submit a certified true copy of the judgment in question, the court must discountenance it or, at best, regard it as mere submission of counsel unsupported by legal authority.
The appellants’ counsel further submitted that arraignment of the accused persons before the lower court would tantamount to putting the machinery for trying the offences in the charge in motion and thereby igniting their trial. See section 215 of the criminal procedure Act. he cited the case of OKEKE VS STATE (2003) 15 NWLR (pt 842) at pp. 73-74 where the Supreme Court per Ogundare JSC, as wrongly quoted by the appellants’ counsel in the appellants brief at p. 9, 2nd paragraph thus:
“Arraignment is a very important initial step in the trial of a person on a criminal charge. However, it is trite law that competency of the court (which is its jurisdiction), competency of the charge and the locus of the complainant are fundamental questions which should be determined first before the trial is initiated by arraignment.
This is quoted verbatim from the appellants brief and the quotation was left open. Reading through the whole judgment in OKEKE VS STATE, however, there is nothing like the above dicta except the first sentence, which hardly supports the argument of the appellants’ counsel. The main issue for determination in Okeke’s case was whether there was a valid arraignment of the appellant at the trial court. The Supreme Court painstakingly set out the three requirements of a valid arraignment at pp. 73 – 74 paras. D-A; 93-95, paras H-H in the following words:
“A close study of section 333 of the Criminal Procedure Law, Cap. 37, Laws of Anambra State, 1986 discloses that for a valid arraignment of an accused person before a trial court, three essential requirements must be satisfied. These are as follows:
a. The accused person must be present in court or placed before the court unfettered unless the court shall see cause to otherwise order. The requirement that the accused person should be present in court makes a difference between Nigerian criminal jurisprudence and that of jurisdictions where trial in absentia is allowed;
b. The charge or information must be read over and explained to him in the language he understands to the satisfaction of the court by the registrar or other officer of the court; and
c. The accused person shall then be called upon to plead instantly thereto unless objection in respect of want of service of a copy of the information is successfully taken.
Failure to comply with any of these requirements will render the whole trial a nullity.”
Without much a do, Okeke’s case is distinguishable from the present case, which raises the question whether the accused persons/appellants have a right not to appear in court until the preliminary objection challenging the charge preferred against them and the locus of the Attorney General of the Federation to prosecute the case is first heard and determined. The issues involved in the two cases are distinctively different and the decision in Okeke’s case is therefore inapplicable to the facts and circumstances of the present case.
The appellants’ counsel further observed that the nature of the objection is not envisaged by section 167 of the Criminal Procedure Act and submitted that the preliminary objection must be determined before trial or arraignment on the charge begins. See AFRO-CUT LTD VS COOP ASSOCIATION OF PROFESSIONAL INC (2003) 5 NWLR (pt 813) 303; FAWEHINMI VS ATTORNEY GENERAL OF LAGOS STATE NO.1 (supra); EZEZE VS THE STATE (supra) at P. 501 F-H and P. 501 E where Aderemi, JCA (as he then was) held that:
“The court will be failing in its fundamental duty if, in the face of a defective or bad charge, it refuses to entertain the application to quash and hastily proceeds to set the criminal case for trial. It does not matter that the accused/applicant was not physically present in court when his application to quash the proceedings was entertained.”
The appellants’ counsel then tried to draw a distinction between criminal “proceedings” and “trial.” He submitted that by the provision of section 215(1) of the criminal procedure Act trial starts with arraignment and therefore if the appellants submit to an arraignment it will tantamount to waiver of their right to object to the charge. He appellants’ counsel added that:
“It is trite law that once the accused pleads to the charge after arraignment, the puts himself on trial.”
I think this is where the appellants’ counsel seems to have got right the distinction between criminal proceedings and trial. The proceedings ignited by arraignment whereupon the charge is read and explained to an accused person and, where he does not understand English Language the charge read and interpreted to him in the language he fluently understands, will mature into commencement of trial as soon as the accused pleads to the charge. That is precisely the point in the proceedings where trial commences. An accused person may, after the charge is read to him before pleading to it, object to the charge or to the jurisdiction of the trial court. And if an accused person enters an objection his physical presence in court will not be necessary for the hearing of the objection or any other preliminary application. The presence of an accused person is only mandatory from the commencement and throughout the trial proceedings which begin with a plea to the charge.
Where a notice of preliminary objection challenges the jurisdiction of the trial court, as in this case, the court must first settle that issue and determine its competence to hear the case first before embarking on trial proceedings. The law is well settled that proceedings of a court of law, in respect of a matter in which it lacks the required jurisdiction to adjudicate, amounts to a nullity however well conducted they otherwise would have been. This is due to the fundamental nature of issue of jurisdiction, which is the life of the proceedings and goes to the root of adjudication. The appellants’ counsel contended that the appellants should not be forced to submit to the jurisdiction of the court below before determination of their preliminary objection as that would amount to waiver of the objection.
The second issue questions the competence of the appeal. This followed the ruling of the court below in a motion for stay of proceedings delivered on 7th June, 2004 wherein the court below held that the notice of appeal dated and filed 30th March, 2004 was incompetent because it was signed by counsel instead of the appellants themselves as required by order 4 rule 4(1) of the Court of Appeal Rules 2002.
The appellants’ counsel relied on the proviso to order 4 rule 4(1), which states: “Provided that, notwithstanding
that 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.”
Relying on the above proviso, the appellants’ counsel urged the court to hold that the notice of appeal filed on the appellants’ instruction is valid. See CHRISDOM INDUSTRIAL CO. LTD AND ANOR VS AFRICAN INTERNATIONAL BANK LTD (2002) 8 NWLR (Pt 768) 152 at 177-178 Per Ubaezonu, JCA at p. 178 paras C-D where the learned Jurist observed as follows:
“The era of extreme technicality in our courts at the expense of justice is gone. What a party can do in a case, his counsel can do it unless the law or the rule of court specifically rules out the performance of the function by counsel or where it is practically impossible for counsel to perform such duty such as giving evidence in court. As Lord Collins M.R stated in Coles and Ravenshea in re ‘Although the rule of court stands as a guide to the court in conducting court business, the court must not hold it as a “mistress” but a “handmaid”.’ I hold that the Notice of Appeal is properly before the court. The preliminary objection is accordingly overruled.”
The appellants’ counsel finally urged the court to allow this appeal and set aside the decision of the trial court.
The respondent’s counsel started by making reference to the provision of section 167 of the criminal procedure Act which states:
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”
This provision, in my humble view, hits the nail straight on the head. It shows without any ambiguity the stage of the proceedings during arraignment when an objection to a charge on ground of any defect therein, will be raised and that is as soon as the charge has been read to an accused and before he pleads to it. As rightly submitted by the respondent’s counsel section 167 of the CPA requires the appellants to appear in court for arraignment during which they can as a matter of right ex-debito justieie raise their objection on jurisdiction, the competence of the charge and locus standi of the Attorney General of the Federation to prosecute the case. The Supreme Court in FAWEHINMI VS ATTORNEY GENERAL OF LAGOS STATE (No. 1) (supra at p. 726 para C held that:
“The correct procedure under Nigerian law is that any objection to the want of jurisdiction could be raised at any stage of the trial but it is better to raise it before plea is taken in a criminal trial that is before issues are joined.”
The case of EZEZE VS STATE, which was relied heavily by the appellants counsel, is not on all fours with the present case. In that case the accused persons were brought to court and the charges against them were read and explained to them and were in custody when their counsel before commencement of trial filed a motion on notice on their behalf praying for an order quashing the preferment of information, counts of charges, trial, production or reproduction warrants and every other process in the charge.
The application was fixed for hearing on 16th June, 2003 on which day the appellants were absent from court. Counsel for the appellants was ready to move the motion despite the absence of his clients in court. The court however, adjourned to 14th July, 2003 to give time to the prosecution to respond to the application. When the case came up for hearing on that day all the accused persons were still not produced from custody. The prosecuting counsel who still did not react to the motion asked for another adjournment to enable him produce the accused persons. The defence counsel opposed the application for adjournment submitting that he could move the motion to quash the charges even in the absence of the accused persons. The trial court in its ruling refused to take the application in the absence of the accused persons and granted the adjournment. It was against that ruling that the defence counsel appealed wherein this Court per Aderemi, JCA (as he then was) held thus:
“The court has the jurisdiction to safeguard an accused person from oppression or prejudice. The court will fail in its fundamental duty if, in the face of a defective or bad charge, it refuses to entertain the application to quash and hastily proceeds to set the criminal case down for trial. The court has the power and a duty to stop a prosecution, which on the facts creates abuse and injustice. If the information is defective, it is immaterial whether the accused person is present or not.”
The above decision is inapplicable to the appellants’ case herein whose faces have never met the eyes to the learned trial Judge. One even wonders how a bare charge on sheets of paper could be taken to court against accused persons who were not and have still not been produced in court. That appears to have given license to the appellants to engage the court and the prosecuting counsel in a game of hide and seek, and yet want to move the court from the blues to seek for a remedy which they will only be entitled to do after the charge has been read over and explained to them in court before they make a plea. On the above analysis, the first issue is resolved against the appellants.
On the second issue, the respondent’s counsel submitted that the Notice of Appeal dated 30th March, 2004 is incompetent because it was signed by the appellants’ counsel instead of the appellants themselves. He relied on the judgment of this court in STATE VS JAMMAL (1996) 9
NWLR (pt 473) 384 at 399 para A where it was held per Orah, JCA that
“The court ought to take judicial notice of the fact that in law, a notice of appeal in a criminal appeal signed by counsel and not the appellant himself is defective. By virtue of Order 4 Rule 4 (1) of the Court of Appeal Rules, the Notice of Appeal must be signed by the appellant himself and not the counsel.”
The respondent’s counsel added that the subsequent amendment wherein the appellants signed the Notice of Appeal themselves would not cure the defect. Since the original notice is defective, the amendment is equally defective.
It is pertinent to not that where the Notice of Appeal is challenged as being defective, it tantamounts to challenging the competence of the appeal itself. Any challenge to the competence of an appeal must be brought by way of a preliminary objection, which must be argued first before hearing the appeal in accordance with the procedure laid down by Order 10 of the Court of Appeal Rules 2007. Failure of the respondent to take the proper steps to challenge the competence of the appeal may lead to refusal to entertain the objection. A challenge to the competence of an appeal cannot simply be argued as an ordinary issue for determination in the appeal. It must be raised timeously by way of objection because once it is successfully argued there will be no need to consider any issue or argument in the appeal. It will simply terminate the appeal which then becomes liable to be struck out as incompetent. By the provision of Order 10 r. I the respondent is required not only to raise his objection timeously but to also give the appellant three clear days notice of the objection and ground(s) thereof before the hearing of the appeal, and shall also file twenty copies of the objection in the registry of this court. The proviso to Order 4, r. 4 (2) further saves the competence of the appeal. My learned brother Olagunju, JCA in CHRISDON IND CO LTD VS A.I.B LTD (2002) 8 NWLR (pt 768) 152 at 182 paras C-E observed thus:
“On the preliminary objection by the respondent to the notice of appeal being signed by the appellants’ counsel instead of the appellants, the technical nature of the formulation of an appeal from the rules of this court as they stand to a matter for those with grounding in law. The leading judgment has painstakingly gone into the intricacies from the background of the applicable rules. I can only add that that, probably, accounts for the definition in rule 2 of Order I of the Court of Appeal Rules, 198I, of the word ‘appellant’ to include the legal practitioner representing him. In my view, it is immaterial whether an appellant or his counsel signed the notice of appeal which in the generality of cases is the first step in the exercise of the constitutional right of the citizenry to challenge any legal decision against his interest which should not be stifled by technicality. ”
The notice of appeal dated 30th March 2004 is therefore competent. The second issue is thus resolved in favour of the appellants. The failure of the first issue has however led to the failure of the appeal.
The learned trial Judge rightly applied the provision of section 167 of the Criminal Procedure Act and acted within the scope of his powers to have ordered that the appellants as accused persons shall appear in court before taking any step in the matter including hearing of the preliminary objection. I find no justification to temper with the findings and/or orders of the Court below. The appeal having failed is accordingly hereby dismissed. The ruling of the court below delivered on 16th March 2004 is hereby affirmed.
I make no order as to cost.
Other Citations: (2008)LCN/2672(CA)
