F.r.n Vs Raji Shade Tawakalitu & Ors (2013) l

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

The 2nd to 10th respondents (otherwise designated as the respondents herein) have been lecturers in the employ of the Federal Polytechnic Offa an institution set up under the Federal Polytechnic Act Cap.F17 Laws of the Federation of Nigeria, 2004. The said respondents have been arrested by men of the state security service (SSS) and arraigned before the Federal High Court Ilorin, on a twelve-count charge of Examination Malpractices contrary to and punishable under Sections 6 and 9 of the Examination Malpractices Act Cap. F15, Laws of the Federation of Nigeria 2004. The crux of the allegation against the respondents is that they have awarded marks to the 1st respondent (Raji Shade Tawakalitu) indiscriminately culminating in awarding her a degree by which means she has been recommended for the National Youth Service (when she is not able to complete the relevant forms given to her at the NYSC camp and equally unable to communicate in English language).

The charges have been challenged by the respondents on grounds of jurisdictional competence of the trial court to entertain the same – by alleging that the men of the State Security Service (SSS) have no power to arrest, investigate and arraign the respondents in respect of the alleged offences as have been preferred against them. The trial High court overruled the preliminary objection on the untenable ground that the preliminary objection has been raised after the respondents have pleaded to the charge, relying on Section 167 and 217 of the CPA and the case of FRN v. Adewumi (2007) 10 NWLR (Pt.1042) 399); Hence the appeal to the court below filed by the respondents. The court below in a considered judgment given on 22/4/2010 has allowed the appeal holding that trial High Court has no jurisdiction to entertain the charges preferred against the respondents and consequently has discharged the respondents, although conceding that the State Security Service (SSS) has limited jurisdictional competence to arrest, investigate and arraign persons for certain offences relying on Sections 4 and 23 of the Police Act.

Aggrieved by the decision the appellant has appealed to this court as per the Notice of Appeal filed on 29/6/2010 (clearly more than 30 days from the date of the delivery of the judgment of the court below).

For whatever it is worth, I have to mention that the appellant has filed a brief of argument and has raised one issue for determination therein. The appellant has not filed a reply brief even then to cover the preliminary objection taken by 3rd, 7th and 10th respondents, which has become most crucial in this proceeding. The respondents 3rd, 7th and 10th have filed their joint brief of argument and have taken and argued their preliminary objection therein and have alongside it argued in the alternative a sole issue for determination. The respondents 4th to 6th have also filed a joint brief of argument and have raised a sole issue for determination. The respondents 2nd, 8th and 9th have also filed a joint brief of argument and have raised a sole issue for determination. They also have raised a preliminary objection as regards the sole issue for determination as raised by the appellant. The 1st respondent also has filed a brief of argument. In the cross-appeal filed by 4th and 6th respondents they also have filed their joint cross-appellants brief of argument. The 1st cross-respondent has filed a brief of argument without adverting its attention to the preliminary objection. I have tried to identify the briefs so far filed in this matter just to complete the processes filed in this appeal as they would become relevant only if there is a competent Notice of Appeal leading to a pending appeal in this matter.

In view of the overall stance taken by the 3rd, 7th and 10th respondents in this matter, they have raised and argued a preliminary objection on the competency of the appeal and have premised their preliminary objection on three grounds as per paragraph 3 of their brief of argument as follows:

“(i) The judgment, the subject of this appeal was delivered on 22nd April, 2010.

(ii) The Notice of Appeal was filed on 29/6/2010 more than 30 days after the delivery of the judgment.

(iii) The appellant did not seek and obtain the leave of the court to file appeal out of time.

(iv) By virtue of (i), (ii) and (iii) above, the appeal is incompetent.”

Prima facie the above grounds for challenging the competency of the instant appeal in this court are fundamental and go to the root of this appeal and clearly the purpose of the objection is to avoid the hearing of the appeal. In other words it is raised to terminate the appeal without much ado.

What is significant about the instant objection is that it is premised upon a statutory requirement, a condition precedent to this court entertaining this appeal and not a mere irregularity that can be waived and so it can be raised at any stage of the instant proceedings. Thus any defect in this regard renders the proceedings however well conducted a nullity and clearly it does not matter that the respondents have taken steps in prosecuting the appeal as the defect is extrinsic to the adjudication. Because the issue is one very decisive of the instant appeal I see the need to sort out this matter firstly before delving if at all into the main appeal itself. See: Foko v. Foko (1968) NMLR 441, Madukolum v. Nkemdilim (1961) 2 NSCC. 374.

Even then the right to appeal in this matter is statutory so also the time for appealing and so, where there is no competent notice of appeal (as here – on having filed it out of time) the appeal is a non-starter. In which case there is no appeal before the court. Meaning that to embark on hearing such an appeal is no more than an exercise in futility. See: Agu v. Odofin (1992) 3 SCNJ.161 at 172-173.

In the circumstances of this matter it is encumbent that I deal with this issue first. There can be no doubt that if the objection is sustained it is a complete answer to the matter and it saves the time of the court.