Christopher O. Iyirhiaro & Anor V. Douglas E. Usoh & Ors (1999)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This is an appeal against the ruling of the High Court of Akwa lbom State, Uyo Judicial Division, delivered on March 23, 2016 in charge No. HU/46C/2015. By the ruling in question, the Court below, Coram Okon A. Okon, J., dismissed the Appellant’s motion seeking to quash the charge (information) upon which the Appellant was arraigned for lack of jurisdiction.
BACKGROUND FACTS
On June 25, 2015, the Appellant was charged by the Respondent before the Court below upon an eight count information viz:
STATEMENT OF OFFENCE: COUNT I
Conspiracy contrary to Section 552 of the Criminal Code, Cap,38, Vol. 2, Laws of Akwa lbom State of Nigeria,2000.
STATEMENT OF OFFENCE: COUNT II
Selling of a child contrary to Section 31(1) & (3) of the Child Rights Law, Akwa lbom, 2008.
STATEMENT OF OFFENCE: COUNT III
Buying of a child, contrary to Section 31(1) & (3) of the Child Rights Law of Akwa Ibom State, 2008.
STATEMENT OF OFFENCE: COUNT IV
Selling of a child contrary to Section 31(1) & (3) of the Child Rights Law of Akwa Ibom State,
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2008.
STATEMENT OF OFFENCE: COUNT V
Buying of a Child, contrary to Sec. 31(1) & (3) of the Child Rights Law of Akwa Ibom State, 2008.
STATEMENT OF OFFENCE: COUNT VI
Selling of a Child contrary to Section 31(1) & (3) of the Child Rights Law of Akwa lbom State, 2008.
STATEMENT OF OFFENCE: COUNT VII
Buying of a Child, contrary to Section 31(1) & (3) of the Child Rights Law of Akwa lbom State, 2008.
STATEMENT OF OFFENCE: COUNT VIII
Obtaining Possession of or otherwise Dealing with a Child, contrary to Section 31(1) & (3) of the Child Rights Law of Akwa lbom State, 2008.
See pages 4-6 of the Record of Appeal.
However, on January 25, 2016, the Appellant filed in the Court below a motion on Notice seeking to dismiss the said information on the following two grounds:
(1) This information or the Originating Process in this charge No: HU/46C/2015 is incompetent as it was not issued or signed by the Attorney General or any legal practitioner known to law.
(2) The offences in the information are against a child or against the interest of a child and each charge contained in the said
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information relate to a child and therefore fall within the exclusive jurisdiction of the Family Court and dehors the jurisdiction of this Honorable Court.
As issues were joined by the learned counsel to the parties, the motion proceeded to hearing. On March 2, 2016, the learned counsel adopted their respective written addresses, and the vexed ruling was reserved for March 23, 2016. On the said date, the Court below delivered the ruling to the following conclusive effect:
I see no feature in this case that should prevent this Court from continuing to try the accused persons as charged before this Court upon the present information. I further hold that the provisions of Section 254 (c) (1) (i) and 254 (c) (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are inapplicable to this case as constituted. Holding otherwise would do grave violence to the purpose for which National industrial Court was established…
The motion on Notice filed on the 7th and 8th Accused persons on 25/1/2016 challenging the jurisdiction of this Court to entertain this case is upon all the grounds raised and canvassed dismissed. The trial of all
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the Accused persons including the 7th and 8th Accused/Objectors, already commenced upon this information shall continue.
See pages 94 – 107 of the Record.
The notice of appeal is contained at pages 108 – 111 of the Record of Appeal, transmitted to this Court on May 5, 2016.
On September 28, when the appeal came up for hearing, the learned counsel adopted their respective briefs of argument, thus resulting in reserving judgment. The Appellant’s brief filed on May 15, spans a total of 25 pages. At pages 3 – 4 thereof, three issues have been couched:
i. Whether the learned trial Judge was right in holding that this Originating Process (information) which was signed by a person whose name was not disclosed for another person is competent in law (Ground 7).
ii. Whether the learned trial Judge was right in raising suo motu the issue of constitutionality of Section 753 of the Child Rights Law of Akwa lbom State and striking it down (sic) as unconstitutional without hearing from the parties in the case (Ground 4).
iii. Whether the learned trial Judge was right in assuming the subject matter jurisdiction over the offences charged in the
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information, which fall within the exclusive jurisdiction of either the family Court or the National Industrial Court because they are causes or matters relating to a child and/or child trafficking (Grounds 2, 3 & 5).
The issue No. 1 has been canvassed at pages 4 – 9, to the effect that the information, the originating process commencing the prosecution of the Appellant, was signed by an unknown person for Uduak Eyo-Nsa, Esq.; Director of Public Prosecution. There’s nothing in the information showing that it was signed by a law officer or any legal practitioner under the law, as required by Sections 2 (1) & 24 of the Legal Practitioners Act CAP. 207, Laws of the Federation of Nigeria, 1990 and Section 315 of the Criminal Procedure Law CAP. 39, Volume 2, Laws of Akwa lbom State, 2000. Reliance is placed on BRAITHWAITE vs. SKYE BANK PLC (2013) 5 NWLR (pt. 1346) 1, 22; ADENEYE VS. YARO (2013) 3 NWLR (pt. 1342) 625 @ 634, et al.
Thus, contended, that the information in question is incompetent, and incurably bad. The only remedy for which is to strike out the information and discharge the Appellant.
?The issue No. 2 is canvassed at pages 10 – 16
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of the said brief, to the effect that the issue of constitutionality of Section 163 of the Child Rights Law of Akwa lbom State was raised suo motu by the Court below. The Court below raised and decided the issue suo motu, allegedly to pave way to granting the jurisdiction matter which the express provision of the statute prohibits it from entertaining. That decision is a complete nullity. See OKOYE vs. STATE (2015) 17 NWLR (pt. 1488) 276 @ 303 – 304; AKANDE vs. ALAGBE (2000) 15 NWLR (pt. 690) 353 @ 376; ET AL.
The Court is urged to so hold.
The issue No. 3 is argued at pages 16 – 22 of the said brief to the effect that the Court below lacks the jurisdiction over the offences contained in the information in question. See SECTIONS 152 & 163 OF THE CHILD RIGHTS LAW OF AKWA IBOM STATE, 2008 (supra); SECTIONS 254(c) (1) (i) & 254 (c) (5) of 1999 CONSTITUTION (supra).
It is contended that the Court below has no subject ‘matter jurisdiction’ over the charges contained in the information. The Court is urged to so hold.
On the whole, the Court is urged upon to allow the appeal, set aside the decision of the Court below, quash or strike out
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the information, and discharge the Appellant.
On the other hand, the Respondent’s brief filed on June 7, 2016, spans a total of 8 pages. At page 2 thereof, two issues have been couched, viz:
- Whether the charge (information) number HU/46C/2015 was competent in force and content conferring the trial Judge with jurisdiction to hear same?
- Whether the learned trial Judge rightly dismissed the appellant’s motion to quash after taking arguments from both sides.
The issue No. 1 is argued at pages 1 – 6 of the said brief, to the effect that the purpose for which a document is signed is to make know who is responsible for the document or process filed in Court.
It was submitted, that on the face thereof, the information in question, the name of counsel who filed the process and is responsible for its content is clearly and boldly written – “UDUAK EYO-NSA, ESQ.?
See KEYSTONE BANK LTD vs. JOA & S (NIG) LTD (2015) 1 NWLR (pt. 1439) 100 – 105.
?Further submitted, that in the instant case, the maker of the process (information) Uduak Eyo-Nsa, Esq. has not disowned the signature or the person who signed same for and on her
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behalf because it was signed at her discretion. That Anietie Sunday Inyang (Assistant Director) deposed in a counter affidavit disclosing his identity as a law officer. He exhibited his practice license for 2015 /2016 legal year, his NBA stamp and identity card showing that he’s a state counsel.
It was contended, that the Court below was to compare the two signatures to ascertain if they were both signed by the same person.
See SECTION 101 (1) (2) OF THE EVIDENCE ACT, 2011; GBOKO vs. STATE (2007) 17 NWLR (PT. 1063) 272.
Further contended, that the cases of SLB CONSORTIUM LTD vs. NNPC (supra), BRAITHWAITE vs. SKYE BANK PLC (supra) and OKAFOR vs. NWEKE (2007) 10 NWLR (pt. 1043) are not on all fours with the instant case. The Court is urged to so hold that the vexed information is competent and the Court below has jurisdiction to hear same.
The issue No. 2 is canvassed at pages 6 – 7 of the brief, to the effect that the provision of Section 163 of the Akwa lbom State Child Rights Law (supra) being inconsistent with Sections 272 of the 1999 Constitution (supra), was not raised suo motu by the Court below but raised by the Respondent in the
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argument thereof. The Court is urged to so hold.
Conclusively, the Court is urged to dismiss the appeal, and uphold the ruling of the Court below.
I have accorded an ample regard upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in their respective briefs vis-a-vis the records of appeal, as a whole. In my considered view, the issues raised in the respective briefs of the parties are not mutually exclusive. Thus, I have deemed it appropriate to adopt the three issues canvassed by the Appellant in the brief thereof, for the determination of the appeal.
ISSUE No. 1
The first issue raises the vexed question of whether or not the Court below was right in holding that the originating process (information) signed by a person whose name was not disclosed ‘for’ another person is competent in law. The said issue is distilled from ground 1 of the notice of appeal.
Most interestingly, both parties are ad idem, that the information being the originating process upon which the Appellant was arraigned before the Court below, was not personally signed by the Director of Public
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Prosecution, Akwa lbom State, Uduak Eyo-Nsa, Esq. As aptly found by the Court below at pages 96, lines 16 – 27 and 97, lines 1- 5, of the Record of Appeal –
The facts of this Application are not in serious contention given the affidavit evidence before the Court. The prosecution has conceded that the information in this case was not personally signed by the learned Director of Public Prosecution, Uduak Eyo-Nsa, Esq. in her usual way, form and manner. The prosecution has also admitted that though the name of the person who signed the information above the name of the Director of Public Prosecution did not indicate his name before signing, that the information was nevertheless signed by a known Legal Practitioner in the person of ANIETIE SUNDAY INYANG, Esq., a law officer and Assistant Director of Public prosecutions in the Ministry of Justice, Akwa lbom State. To buttress this fact, the prosecution annexed to the counter Affidavit in this Application Exhibit DPP1 and Exhibit DPP2 being respectively the 2015 Practice License issued by the Nigerian Bar Association in favour of INYANG ANIETIE SUNDAY of the NBA Uyo Branch with Supreme Court of Nigeria
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Enrolment No. SCN 024538 and Akwa lbom State Government Staff identity card with the passport size photograph and signature of ANIETIE SUNDAY INYANG as state counsel. The prosecution has finally conceded that the offences for which the Accused persons are arraigned before this Court and standing trial for relate to a child.
It was equally the finding of the Court below, that its immaterial, given the peculiar facts and circumstances of this case, that the DPP (Uduak Eyo-Nsa, Esq.) whose name was typewritten on the Information did not affix her signature or mark, the information was infact signed by him. According to the Court below –
Since there is no controversy regarding the status of ANIETIE SUNDAY INYANG, ESQ. as law officer who signed the information in the present case upon the instruction and/or directive of UDUAK EYO-NSA, ESQ., Director of Public Prosecutions whose name eminently appeared on the face of the Information. I hold that the information charging the Accused Persons before this Court was properly
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signed and therefore valid and competent. Given the peculiar facts of this case, I am unable to follow the decisions cited and relied upon by the learned counsel to the 7th and 8th Accused/Objectors relating to how originating Court processes ought to be signed. A decided case furnishes a basis for determining later cases involving similar facts or issues. A precedent is an authority only for what it actually decided and not what may remotely follow there from – ANEKWE V. THE STATE (2014) 10 NWLR (pt. 1415) 353 AT 371, H – A. Therefore, I resolve this issue in favour of the prosecution.
With due deference, the Court below has erred as the foregoing finding is not supported by the trite fundamental authoritative principles on the issue. In my considered view, having amptly found that UDUAK EYO-NSA, ESQ., the DPP of Akwa lbom State, was not actually the person that purportedly signed the Information in question, it was wrong for the Court below to have come to the conclusion, as it did that:
Since there is no controversy regarding the status of ANIETIE SUNDAY INYANG, ESQ as law officer who signed the information in the present case upon the instruction
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and/or directive of UDUAK EYO-NSA, ESQ; … I hold that the information charging the Accused Persons before this Court was properly signed and therefore valid and competent.
Undoubtedly, it’s the requirement of the law, that for the Originating Process, (the charge/Information) or any process for that matter, to be valid and competent, it must be signed by a law officer, a legal practitioner known to law, within the purview of the provision of Sections 2(1) and 24 of the Legal Practitioners Act (supra). What’s more, Section 315 of the Criminal Procedure Law, CAP. 39, Volume 2 Laws of Akwa lbom State, 2000, equally provides:
- All information shall, subject to the provisions of Section 316, be signed by a law officer.
The above statutory provisions have found credence in a plethora of veritable judicial authorities. See OKAFOR VS. NWEKE (2007) LPELR – 2412 (SC); (2007) 10 NWLR (PT. 1043) 521; BUHARI vs. ADEBAYO (2014) 10 NWLR (PT. 1416) 560 @ 585; SLB CONSORTIUM LTD VS. NNPC (2011) 3 – 4 MISC. 145 @ 166; (2011) 9 NWLR (PT. 1252) 315; BRAITHWAITE vs. SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 1, @ 22; ADENEYE Vs. YARO (2013) 3 NWLR (PT. 1342) 625
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@ 634, et al.
Most significantly, in the case of SLB CONSORTTUM LTD VS. NNPC (supra), the Apex Court was reputed to have aptly held:
What then is so important about the way counsel chooses to sign processes. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:
First, the signature of counsel, which may any contraption.
Secondly, the name of counsel clearly written,
Thirdly, who counsel represents.
Fourthly, name and address of legal firm.
In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law, clearly spelt out in Reg. Trustees of Apostolic Church Lagos v. R. Akindele (supra) and Okafor v. Nweke (supra).
In this case, there is signature of counsel, but no name of counsel. A signature is incurably bad. Per Rhodes Vivour, JSC @ 33 – 338.
In the later case of BRAITHWAITE VS. SKYE BANK PLC (supra), the Supreme Court equally
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reiterated the trite fundamental doctrine to the effect that –
A writ of summons is an Originating Process by means of which action are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Where the process fails to comply with requirement of the law regarding its procedure, the Court cannot assume jurisdiction. Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself, nor can parties by their mutual agreement also confer any jurisdiction. A defective Originating Process cannot activate the Court’s jurisdiction.
See (2012) LPELR – 15532 (SC), OGUNBIYI JSC @ 23 – 24.
Ironically, even the Court below has not lost sight of the trite fundamental principle, that for it to be valid and competent, the Originating Process (information) had to be duly signed by a law officer who must be a Legal Practitioner known to law, within the purview of Section 2 (1) of the Legal Practitioners Act (supra). As aptly found by the Court below –
The failure to sign the information in this case by a law officer properly so accredited would fundamentally affect the validity of
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the information and would render it incurably bad and incapable of being remedied by amendment and would thus call the jurisdiction of the Court into question. Once it cannot be said who signed a process that process is fatally defective, inchoate and legally non-existent – BUHARI V. ADEBAYO (2014) 10 NWLR (PT. 1416) 50 AT 584, E – F; 585, B – F AND 587, C – D.
See page 98, lines 15 – 21 of the Record.
Yet, despite the foregoing apt findings, the Court below in its wisdom came to the mind boggling and most inexplicable conclusion:
Since there is no controversy regarding the status of ANIETIE SUNDAY INYANG, ESQ. as a law officer who signed the information in the present case upon the instruction and/or directive of UDUAK EYO-NSA, ESQ., Director of Public Prosecutions whose name eminently appeared on the face of the information, I hold that the information charging the Accused Persons before this Court was properly signed and therefore valid and competent.
See pages 101- -102 of the Record.
Most unfortunately, the Court below had unwittingly embarked upon a futile voyage of discovery, by attempting to unearth the undisclosed or unnamed
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signatory of the information in question. It should be reiterated, for the avoidance of doubt, that any attempt to detect the apparently unnamed or undisclosed signatory to a process, as in the instant case, would tantamount to a sheer futile voyage of discovery, thereby converting the Court in to a macabre forensic laboratory. See ADENEYE VS. YARO (2013) 3 NWLR (PT. 1342) 625 @ 634; W & T ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR (PT. 1351) 481 @ 496; OKETADE VS. ADEWUNMI (2010) 8 NWLR (PT. 1195) 63 @ 74.
In the circumstances, I hold that the Court below was not right in holding, as it did, that the originating Process (information) which was signed by a person, whose name was not disclosed for another person, is competent. Thus, the first issue is hereby resolved in favour of the Appellant, against the Respondent.
ISSUE No. 2
The second issue raises the vexed question of whether or not the Court below was right in raising suo motu the issue of constitutionality of Section 163 of the Child Rights Law of Akwa lbom State, and striking it down (sic) as unconstitutional without hearing from the respective parties in the case.
?The main grouse
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of the Appellant under this second issue, is as regards the provision of Section 163 of the Child Rights Law of Akwa lbom State (supra), which was raised and determined suo motu by the Court below in the vexed judgment. That, none of the parties claimed that Section 163 of the Child Rights Law (supra) is unconstitutional, and none addressed the Court thereon.
Most particularly, the finding of the Court below regarding the vexed issue is to the effect, inter alia, thus:
… The problem, however, is with the provisions of Section 163 (1) of the Child Rights Law of Akwa lbom State, 2008 which purports to delimit the unlimited and unqualified jurisdiction vested in all State High Courts in Nigeria by Section 272 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to hear and determine any Criminal case and proceedings involving or against any person or his interest including the interest of a child.
I therefore, owe a duty to jealously guard and protect the jurisdiction of this Court constitutionally donated and vested by Section 272 (1) of the Constitution referred to herein to hear criminal causes and matters involving all
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classes of persons in Nigeria, of course, subject only to the provisions of the same Constitution and not any other subordinate or inferior legislation like the Child Rights Law of Akwa lbom State, 2008. The provisions of Section 163(1) thereof being inconsistent with Section 272(1) of the Constitution, I have no other option in the circumstances but to fully give effect to the provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by declaring Section 163(1) of the Child Rights Law of Akwa Ibom State, 2008 as null and void and of no effect whatsoever. And I so declare.
See pages 103, lines 17 -26, and 104, lines !-2, of the Record.
It is indeed a well settled principle, that a Court of law has the discretionary power to raise an issue suo motu, albeit it can determine the matter or question only after according the respective parties the opportunity of being heard thereupon. Thus, where a Court fails to observe this fundamental rule of fair hearing in determining the issue raised suo motu, the decision arrived at no matter how eloquent, is rendered a nullity, and liable to be set aside.
See COLE vs.
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MATTINS (1968) ALL NLR 161 PER LEWIS, JSC @ 168; REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS VS. AKINDELE (1967) PER LEWIS, JSC @ 264; OKOYE vs. STATE (2015) 17 NWLR (PT. 1488) 276 @ 303 – 304.
Most particularly, in the case of COLE vs. MATTINS (supra), the Apex Court has gone down in the annal of history in authoritatively postulating the fundamental principle; per Lewis, JSC @ 168.
It is so obvious from the records, that the Court below raised suo motu the issue of the purported constitutionality of Section 163 of the Child Rights Law of Akwa lbom State. lt is also not in doubt, that the Court proceeded in the course of the judgment to determine the said issue without inviting the respective parties to address it thereon. As aptly alluded to above, the consequence of such a misadventure is to declare the entire decision in question a nullity. And I so hold.
In the circumstances, the second issue is hereby answered in the negative, and accordingly resolved in favour of the Appellant, against the Respondent.
ISSUE NO. 3
The third issue raises the question of whether or not, the Court below was right in assuming the subject matter
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jurisdiction over the offences charged in the information, which fall within the exclusive jurisdiction of either the Family Court or the National Industrial Court, because they are causes or matters relating to a child and/or child trafficking.
It is a trite principle that the issue of jurisdiction of a Court is not merely important, but fundamental to adjudicatory process. Jurisdiction is so radically rooted in the foundation of the Court, to the extent that where a Court lacks jurisdiction to entertain a matter before it, any decision or order that may be embarked upon would amount to a nullity, no matter how eloquently and well conducted.
See MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341; PRESIDENT vs. NZERIBE (2004) 9 NWLR (PT. 878) 251 @ 255.
However, the above postulation, notwithstanding, the fact that the second issue has been answered in the negative and resolved in favour of the Appellant, the third issue has become rather unnecessary. Thus, to determine the third issue on the merits at this point in time, would tantamount to a sheer academic exercise. The questions raised in both issues 2 & 3 are fundamental and liable to be remitted to the
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Court below for hearing and determination on the merits. And I so hold. See ODEDO VS. INEC, where in the Apex Court aptly held:
An academic issue or question is one which does not require or adjudication by a Court of law because it is necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. (2008) LPELR 2204 (SC) per Niki Tobi, JSC @ 36 paragraphs L-G.
Hence, having answered issues 1, & 2 in the negative, and resolving both in favour of the Appellant, there is no gainsaying the fact that the appeal grossly succeeds in part, and it’s so allowed.
Consequently, the ruling of the High Court of Akwa lbom State, Uyo Judicial Division, delivered by Okon A. Okon, J; on March 23, 2016 in Suit (charge) No. HU/46C/2015 is hereby set aside.
The said suit is hereby remitted to the Chief Judge, Akwa lbom State for reassignment to another Judge of the High Court for hearing on the merits.
Other Citations: (2016)LCN/9049(CA)
