Peter Nosa Iyen V. Federal Republic of Nigeria (2009)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, OFR

The respondent pursuant to section 174(1) of the Constitution of Federal Republic of Nigeria, 1999 and section 13(2) of the Economic and Financial Crimes Commission (Establishment) Act [No. I of 2004] filed a five count charge against the appellant. The appellant brought a summon to be admitted to bail as well as an application for an order quashing the charge preferred against him.

Learned counsel for both parties, elaborately and strenuously canvassed their argument for and against the application. Learned trial judge delivered a reserved but not well considered judgment. The short judgment reads as follows –

“By Motion of Notice brought pursuant to section 36 of the 1999 Constitution the accused applicant PETER NOSA IYEN, is praying this court for:

1. AN ORDER quashing the charge preferred against the applicant in this matter.
2. AND such further or other orders as the court may deem fit.

The applicant gave the grounds upon which the application is brought as:

1. The statement of witnesses or proof of evidence filed in court does not disclose the offence alleged against the applicant.
2. The charge is an abuse of process of this court.

The application is supported by five paragraph affidavit sworn to by Victor Edem.

The Respondent filed counter affidavit in opposition sworn to by Inspector James Buzugbe, operative of the Economic and Financial Crimes Commission.

Chief Afekoro learned counsel for the accused applicant made elaborate submission and urged the court to dismiss the charge against the accused person. Mr. M. Olatule learned counsel for the

prosecution addressed the court in opposition of the application.

Upon careful consideration of the submissions, I think it is improper to grant the application, on the basis of the proof of evidence before the court.

Application to quash charge against the accused person lacks merit and I hereby dismiss same and order that the trial of the accused be commenced immediately.

T.ABUBAKAR

JUDGE”

(underlining mine)

The applicant is aggrieved by the decision and has appealed to this court on two grounds of appeal. Briefs of argument were filed and exchange at the appellant’s, respondent’s and appellant’s reply briefs.

The brief of argument were adopted and relied upon, at the hearing of the appeal, by counsel for both parties. Learned counsel for appellant also informed the court orally that issues 1 and 2 respectively derived from grounds 1 and 2. The two grounds of appeal read as follows-

“GROUND ONE

The learned trial judge erred in law when he refused and/or failed to consider or determine a substantial constitutional issue raised under section 36(8) of the 1999 Constitution of the Federal Republic of Nigeria to the effect that the Accused/Appellant was charge for an offence unknown to law:

PARTICULARS OF ERROR

1. Accused/Appellant was charge to the lower court on a five counts charge of counterfeiting U.S poster money orders under the counterfeit currency (Special Provisions) Act No. 22 of 1984.
2. The issue of whether or not U.S Poster Money Order(s) was paper Money or coin money or intended to circulate as money or currency within the meaning of the counterfeit currency (special provisions) Act 1984 (as amended) was raised and canvassed strenuously by same was neither considered nor determined by the lower court in its Ruling now appealed against.
3. The issue of chapter 17 of the criminal code Act 2004 on offences relating to Posts and Telecommunications as its affects poster money order(s) was raised to highlight a lacunae on our laws on cyber crime related offences in Nigeria but same was not appraised and considered in the lower court’s Ruling.
4. The issue of whether or not the Accused/ Appellant was charge under the wrong law was raised by same was appraised by the lower court in its Ruling.

GROUNDS TWO

The lower court erred in law when it failed and/or refused to operate within section 6 (6)(b) of the 1999 Constitution of Nigeria by refusing and/or failing to consider substantial issues of Jurisdiction and other salient issues of law and facts raised before it for consideration.

PARTICULARS OF ERROR

1. The substantial issue of Jurisdiction raised was never considered.
2. The issue on the legal effect of the Economic and Financial Crimes Commission’s (EFCC) letter dated 4/4/2006 requesting for Judge’s consent before commencing criminal proceedings against the Accused/Appellant was raised in order to show whether EFCC intended summary or trial on information but same was neither determined nor considered by the lower court in its Ruling.
3. The issue of whether charging the Accused/Appellant to two different courts of coordinate jurisdiction simultaneously and based on one simple transaction and using the same proofs of evidence amounted to an abuse of the court’s process or not was raised but same was not appraised by the lower court in its Ruling.

The appellant, in his brief, framed the following issues –

“3.1 Whether or not the act(s) or conduct of counterfeiting, uttering, exporting and/or offering for sale of the United States Postal Services postal money order(s) in Nigeria constitute an offence(s) within the meaning and intendment of the Counterfeit Currency (Special Provisions) Act No. 22 of 1984 (as amended).

3.2 Whether or not the failure and/or refusal of the lower court to appraise, and/or evaluate evidence and make finding(s) on the issues of abuse of court processes raised by the appellant’s counsel arising from the simultaneous charging of the appellant to two different courts of concurrent jurisdiction based on the same proofs of evidence from one single transaction occasioned substantial miscarriage of justice.”

It appears to me that ground one of the grounds of appeal, shorn of the particulars of error, follows the format of a ground of appeal. It is competent to include particular of error or misdirection in the ground of appeal itself Atuyeye vs Asbamu (1987) 1 NWLR (pt 49) 267, 282; Okorie vs Udom (1960) 5 F S C 162, 164 Anyaoke vs Adi (1986) 3 NWLR (pt 31) 731. The inclusion of the particular in the ground of appeal, the ground itself having satisfied the condition for drafting a ground of appeal, the purported particulars of error attached thereto are unnecessary and, therefore, superfluous. They are struckout.

A ground of appeal is to be directed at the ratio decedendi of a judgment and not to be aimed at obiter dictum. The present ground 1 does not arise from the decision of the court. It is neither from ratio decedendi nor obiter dictum of the court. It is consequently incompetent. The ground of appeal is raising an issue which is not before the trial court. The issue formulated allegedly from the ground of appeal is incongruous with the ground of appeal. The ground of appeal raises a constitutional issue based on section 36(8) of the Constitution while the issue is coined from Counterfeit Currency (Special Provisions) Act. It is therefore incapable of deriving from the said ground of appeal. The issue not having derived from a competent ground of appeal is also incompetent and is struck out.

On ground 2 of the grounds of appeal, it seems to me, with the greatest respect to the learned counsel for appellant, that the ground of appeal is incompetent. The ground itself, unlike ground 1 of the grounds of appeal, does not include particular of error or misdirection. On its own it does not attack any ratio decedendi of the judgment. The particulars of error supplied to give teeth to the ground regrettably do not relate to it. The ground and the particulars must relate. The penalty for the particulars not flowing from or related to ground of appeal is to strike out the ground or grounds of appeal. See Honika Sawmill (Nig) Ltd vs Mary Okojie Hoff (1994) 2 NWLR (pt 326) 252, 262. Once one or more of the particulars go, the remaining particulars are rendered otiose because the court will not carry out surgical operation on the ground by excising bad part. See Nwadike vs Ibekwe (1987) 4 NWLR (pt 67) 718 and Korede vs Adelodun (2001) 15 NWLR (pt.736) 463. This is because when an incompetent particular is related to a competent ground of appeal and argued together under an issue it is impossible to consider the appeal properly.

The reading of the one page ruling of the trial court show that the two grounds of appeal already set out in this judgment are not competent ground of appeal in that the issues upon which they are pegged were never part of the decision of the trial court. Grounds 1 and 2 are not questioning the decision nor a reason for final decision which provides basis for the attack complained of in the grounds. In Babalola vs The State (1989) 4 NWLR (pt.115) 264, 294 Supreme Court per Oputa, J S C, enunciated the principle of law as follows –

“An appeal presupposes the existence of some decision appealed against. In the absence of a decision on a point, there cannot possibly be an appeal against what had not been decided against a party (see Oredoyin & Ors. Vs Arowolo & Ors. (1989) 4 NWLR (pt.114) 172. Learned counsel for appellants should be well advised to know that they can only urge on appeal points arising from a decision of a trial court on an issue submitted to it for determination.”

And in Saude v. Abdullahi (1989) SCNJ 216, 251; (1989) 4 NWLR (pt.116) 387, 431 where the Supreme Court observed as follows –

“It is also to be observed that an appeal is usually against a ratio not normally against obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is against the ratio.”

The totality of this is that where a party has not appealed against a finding of the trial court, he cannot be heard that he has complained against that finding on appeal: Ijale v. Leyentis & Co. Ltd (1959) 4 FSC 108. The two grounds of appeal are struckout for incompetence.

Still on ground 2 of the grounds of appeal, the Issue purportedly distilled from the ground of appeal cannot derive from it. The ground is the failure of the learned trial judge to comply with section 6(6)(b) of the Constitution whereas the issue is accusing the trial court of neglect to appraise, evaluate evidence and make finding on the issue of abuse of court process. I am respectfully of the firm view that appraisal and evaluation and ascription of probative value cannot derive from this ground of appeal.

It is not permissible to canvass argument on issue having no bearing with any of the grounds of appeal: Madagwa VS State (1988) 5 N.W.L.R (pt.92) 60, African Petroleum Ltd VS Owodunni (1991) 8 NWLR (pt 210) 391 (pt 210) 391, 423 the supreme court said-

“It is well settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struckout”

And in Okoye vs Nigeria Construction and Furniture Co. Ltd (1991) 6 NWLR (pt 199) 501, 533 it was held thus-

” ….. each party to an appeal, the appellant or the respondent, is entitled to formulate what are in his opinion the issue for determination, the issue so formulated must arise from and be related to the grounds of appeal filed.”

Such grounds of appeal must be competent. The issues do not derive from the two grounds of appeal filed in this appeal.

Furthermore issue 2 raising the question of appraisal, evaluation and finding of fact on the issue of abuse of court process cannot competently arise from a ground of appeal pegged on section 6(6)(b) of the Constitution.

Section 6(6)(b) of the Constitution has no bearing with evaluation and appraisal of evidence.

The appellant sought only one relief before the trial court. The sole relief asked for in his application reads as follows –

“AN ORDER quashing the charge preferred against the applicant.”

This prayer is said to emanate from two grounds. The two grounds upon which the application was brought are recited immediately hereunder –

“(1) The statement of witnesses or the proof of evidence filed does not disclose the offence alleged against the applicant.

(2) The charge against the applicant is an abuse of the process of the Honourable Court.”

The five paragraph affidavit in support of the application deposed to by one Victor Edem is reproduced immediately hereunder –

“1. I am a litigation officer in Amaechina, Obodo and Co. counsel to the applicant in this case.

2. I have the authority and consent of the applicant to depose to this affidavit on his behalf as the applicant is in detention.
3. The applicant informed me and I verily believe him as follows –

(a) That he has been advised by his counsel Nnaemaka Amaechina Esq. that there is no evidence linking him with the offence alleged against him in this charge.

(b) That also the said counsel advised him that charge against him in this Honourable court constitutes an abuse of court process as there is another charge pending against him at the High Court of Lagos State sitting at Ikeja in charge No. ID/35C/2006 founded on the same facts as in this case. A copy of the proof of evidence filed in that case is hereby attached and marked as Exhibit A.

4. I verily believe that based on the above stated facts it is necessary to make this application at this stage of this case as required by procedural law.
5. I swear to this affidavit in good faith and in accordance with the Oaths Acts.”

The only evidence in support of the application can be garnered from paragraph 3 of the affidavit in support which failed to disclose the time and place the deponent was given the information he deposed to. There is no document “marked as exhibit A” attached to affidavit in support. There is equally no evidence in support of the ground predicated on abuse of court process. There is no scintilla of evidence in the affidavit in support showing which of the two processes in issue herein abuse court process and should be struckout. The appellant failed to aver to the time of filing each process to enable the court determine which of the two processes abused the court’s process.

The learned trial judge in his ruling, which is wholly recited earlier in this judgment, made only one determination. The sole decision he made reads as follows –

“Upon careful consideration of the submissions, I think it is improper to grant the application on the basis of proof of evidence before the court.”

There is no ground of appeal attacking this singular finding of the court below.

From the prayer or relief sought, the appellant on appeal is reprobating. He is not entitled to reprobate and approbate. In his application, one of the grounds for seeking for an order quashing the charge was that the statements of witnesses or the proof of evidence filed in the case did not disclose any offence against the appellant. The evidence produced in support, in his affidavit, was that there was no evidence linking him with the offence alleged against him. This cannot by any stretch of imagination metamorphose into whether or not his conduct constitutes an offence under Counterfeit Currency (Special Provisions) Act [No. 22 of 1984]. Neither does it transmute to a substantial constitutional issue arising under section 36(8) of the Constitution. The appellant respectfully cannot convert the issue of proof of evidence not raising a prima facie case against him at the trial court to the issue of constitutionality or legality of the charge here on appeal. A party who had prayed for a particular relief and led evidence pursuing that remedy in the trial court cannot be heard on appeal to make an about turn in pursuit of the opposite of what he stood for in the court below.

In Ajide vs Kelan; (1985) 3 NWLR (pt 12) 248 at 269 the Supreme Court said –

“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then turn or summersault during the trial then assume a non-challant attitude in the Court of Appeal only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt our human imperfection notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer Justice is not interested in scoring debating points.”

See also Ikeanyi vs ACB Ltd (1991) 7 NWLR (pt 205) 626.

Moreover the power of the court is strictly circumscribed by the relief sought. There is no power in any court to grant a relief that was not claimed except such relief is within orders that can be properly construed as consequential order, which the order or relief being sought to the effect that

the appellant was being charged with an offence not known to law is not. It is settled that a court can only grant the relief sought by a party, and any orders made outside such prayers must be refused. See Ekpeyong & Ors vs hang Effiong Nyong (1975) 2 SC 71, 80 where the Supreme Court stated as follows-

“It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claims.”

See also Okubula vs Oyagbola (1990) 4 NWLR (pt 147) 723, Bola Ige vs Olunloyo (1984) 1 SC 254 Ransome Kuti vs A.G Federation (1985) 2 NWLR (pt 6) 211 and Obajinmi vs A.G Western Nigeria (1968) NMLR 98. The order for quashing the charge on ground of unconstitutionality or illegality was respectfully not the basis of the application in the trial court.

The trial court not being a father christmas is seriously handicapped. Not being the relief sought in the trial court, that court was incompetent to accede to such a prayer.

The two grounds of appeal having been struckout the notice of appeal is incompetent. The appellant is left with a notice of appeal without ground of appeal as is required by order 6 rule 2(I) of the Court of Appeal Rules, 2007. The appeal in the circumstance is incompetent.

The notice of appeal in the circumstance is struckout in the result the appeal itself is struckout.

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Other Citations: (2009)LCN/3267(CA)