Pius Odock and Others V. The State (2006)

LawGlobal-Hub Lead Judgment Report

S. A. IBIYEYE, J.C.A.

This appeal is against the ruling of the Calabar Judicial Division of the High Court of Cross River State presided over by Ita, J. and delivered on the 24th day of February, 2005 in charge No. HC/8C/2005 overruling the appellants’ objection challenging his jurisdiction to try them in Calabar for an offence of murder allegedly committed at Odajie-Mbube, in Ogoja Local Government Area of Cross River State within Ogoja Judicial Division of the High Court of Cross River State.

The antecedents of the instant ruling are that the accused persons now appellants were arraigned on a one count information at the Calabar Judicial Division for an alleged offence of murder which was committed at Odajie-Mbube in Ogoja Local Government Area of Cross River State on the 6th day of August, 2004. On the 11th day of February, 2005 each of the appellants pleaded not guilty to the charge and the case was adjourned to 22nd, 23rd and 24th of February, 2005 for hearing. At the hearing on the 22nd day of February, 2005, the P.W.1, Mr. John Egbelo, testified and the case was adjourned to 2nd day of February, 2005 for cross examination by the appellants. On the 23rd day of February, 2005, the learned counsel for the appellants instead of cross examining the prosecution witness raised an objection to the jurisdiction of the learned trial Judge to try the appellants at the Calabar Judicial Division instead of the Ogoja Judicial Division where the alleged offence took place, in view of the provisions of Section 64(1) and (b) of the Cross River State. Arguments were proffered by the learned counsel for and against the objection. The learned trial Judge on the 24th day of February, 2005 in a reserved ruling, held, inter alia:

“The information and all the proofs of evidence attached to the information say Chief Egbelo was beaten comatose at Ogoja and that that beating caused his death. I find and hold that the alleged unlawful acts which resulted in the death of Chief Egbelo took place at Odajie-Mbube in Ogoja Judicial Division which has primary jurisdiction to hear this matter. I will in deciding this issue take judicial notice of Suit No. HC/MSC.256/2005 which come before me as the vacation Judge. That matter was an application for bail of certain persons who were arrested for reprisal (sic) attacks/actions resulting from the death of Chief Egbelo, (sic) the subject matter of the present charge. Houses were burnt and property destroyed at Mbube in Ogoja Judicial Division as a result of this murder (about 2 weeks after). If they so reacted without seeing these accused persons and witnesses, I am sure their reaction will be worse when they see them physically.

Having regard to the accessibility and convenience of witnesses in this case, this case should be tried at Ogoja Judicial Division but placing that against the threat to peace that this matter can cause if tried at Ogoja, I am persuaded to assume jurisdiction to handle this matter at Calabar Judicial Division pursuant to Section 70 C.P.I. The more than 300kms between Calabar and Ogoja will now act as a barrier to war and an agent of peace (sic). Peace is better than money.

What the witnesses will loose in monetary terms, the society at large will gain in peace terms. This trial will proceed.”

(Underlining mine for emphasis)

The appellants were aggrieved by the instant ruling disallowing the objection raised in their behalf and appealed to this Court on four grounds.

The appellants’ counsel identified the following three issues from the four grounds of appeal for the determination of the appeal:

“1. Whether considering the express provisions of Section 64(a) and (b) of the Criminal Procedure Law, Cap 32, of the Laws of Cross River State of Nigeria and the decision of this Court in NWANKWO v. STATE (1983) 2 FNLR 283, the learned trial Judge sitting at the Calabar Judicial Division of the High Court of Cross River State has jurisdiction to try the alleged offence of murder which took place at Odajie-Mbube, in Ogoja Local Government Area within the Ogoja Judicial Division of High Court of Cross River State.

2. Whether the learned trial Judge was right in his construction and application of the provisions of Section 70 of the Criminal Procedure Law, Cap 32, Laws of Cross River State, to the facts and circumstances of the case before him.
3. Was the learned trial Judge not in error when he relied on instinct, assumption and sentiments rather than the law, facts and evidence before him to arrive at his decision?”

The learned counsel for the respondent raised the following singular issue for the determination of the appeal:

“Whether there was impropriety on the part of the trial Judge in relying on Sections 64 and 70 CPL, taking judicial notice of the antecedents of this charge and assuming jurisdiction thereof.”

It is apparent from the two sets of issues adumbrated by the learned counsel for the appellants and the respondents that the issues raised by the former are more comprehensive than those raised by the latter. I shall, in view of this observation, determine the appeal on the issues formulated by the learned appellants’ counsel.

At the hearing, the learned counsel for appellants adopted and relied on the appellants’ brief of argument and the reply brief and’ urged the Court to allow the appeal. The learned counsel for the respondent adopted and relied on the respondent’s brief of argument and urged the Court to dismiss the appeal. The learned counsel for the respondent equally filed a preliminary objection which he argued in the respondent’s brief of argument and urged the Court to sustain both of them.

It is appropriate at this initial stage to state that a preliminary objection at the hearing of an appeal is an opposition to the hearing of an appeal that should be raised promptly and at the beginning of the hearing of an appeal by the respondent’s counsel before counsel for the appellants opens his oral submissions on behalf of his clients. The purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal in limine either partially or in toto. This purpose will, however, be defeated if the objection is not taken timeously. Although a preliminary objection may not be shut out as a result of its belatedness, its sting to neutralize entire appeal, or part thereof may, to that extent, be neutralized. Where however, the Court allows the preliminary objection to be taken together with the respondent’s submissions, the appellant is thereafter at liberty to respond to it alongside other matters touching on points of law in his Reply, if any, to the respondent’s submissions. See NDIGWE v. NWUDE (1991) 11 NWLR (Part 626) 314 at 331.

It is equally of moment to state the settled law that an appellate Court should first consider a preliminary objection raised during an appeal. This is so because if a preliminary objection succeeds either wholly or entirely, the appeal ends. It is a cardinal principle of administration of justice to let a party know the fate of his, application whether properly or improperly brought before the Court. In effect, even if the objection appears frivolous, it should not be ignored. See TAMBO LEATHER WORKS LTD. v. ABBEY (1998) 12 NWLR (Part 579) 548 at 554/555.; NWANWATA v. ESUMEI (1998) 8 NWLR (Part 563) 650 at 666; ONYEKWULUJE v. ANIMASHAUN (1996) 3 NWLR (Part 439) 637 at 644.

In view of the foregoing principles on preliminary objection, I am strictly guided by them in the consideration of the preliminary objection raised, canvassed and replied to by both learned counsel for the respondent and the appellants. Thus, the grouse of the respondent as reflected in the instant preliminary objection is that the appellants failed to seek and obtain leave of either the Court below or this Court before filing the interlocutory appeal against the ruling of the lower Court. The learned counsel for the respondents referred to the provisions of Section 241(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (herein after referred to as the 1999 Constitution) and argued that the instant appeal is in direct contradiction to the above mentioned provisions. He further argued that the instant ruling delivered on 24th February, 2005 by Ita, J. was neither a final decision nor was it premised on grounds of law alone. He instead said that the appeal was based on mixed facts and law. He exemplified this argument that the appeal was based on mixed fact and law by referring to the distance from Ogoja to Calabar, the hardship to be wrought on the witnesses, the antecedents of the offence of murder and the need to eschew peace and therefore necessitated that leave be first sought and obtained either from the lower Court or from this Court before filing the appeal in point. He relied on the case of KRAUS THOMPSON ORGANISATION LTD. v. UNIVERSITY (2004) ALL FWLR (Part 209) 1148 at 1170 where the Supreme Court held, inter alia, that interlocutory appeals are ordinarily filed with the leave of the lower Court or this Court except as provided in Section 241(1)(b) of the 1999 Constitution where the appeal involves the issues of law alone. He also relied on the cases of NALSA & TEAM ASSOCIATES v. N.N.P.C. (1991) 8 NWLR (Part 212) 652 at 666 and BWAI v. UBA PLC (2002) FWLR (Part 119) 1538 at 1541 on the need to seek leave of Court before filing a notice of appeal in this Court. He particularly identified Ground 4 of the Notice and Grounds of Appeal on which Issue 3 was raised and said it is based on pure facts and not law and since leave of particularly this Court was not sought and obtained, the exercise was futile because this Court lacked jurisdiction and he relied on the case of EMUZE v. VICE CHANCELLOR, UNIVERSITY OF BENIN (2003) FWLR (Part 170) 1411 at 1421-1422 on the fact that jurisdiction being a threshold issue and that if a Court lacks jurisdiction, it also lacks the necessary competence to try the issue before it. A defect in competence is fatal to the proceedings as they are null and void ab initio, however well conducted and well directed they may otherwise be.

In the Reply brief, the learned counsel for the appellants submitted that the notice of preliminary objection and the arguments thereon are totally misconceived.

He contended that by the combined provisions of sub-paragraphs (b) and (f)(1) of Sub-Section (1) of Section 241 of the 1999 Constitution, the appellants are entitled to appeal as of right from the decision in question and that they did not need any leave of this Court or the Court below to appeal against the decision of Ita, J. The learned counsel urged the Court that on examining the four grounds of appeal, it would become clear that in addition to the point that the grounds of appeal border on the fundamental and threshold issue of jurisdiction of the trial Court to try the appellants under Sections 64 and 70 of the Criminal Procedure Law of Cross River State, the liberty of the appellants is also concerned. He submitted that no one can dispute the fact that the interpretation of any statute is an issue of law. He contended that the instant appeal dwells with the interpretation and application of Sections 64 and 70 of the Criminal Procedure Law of Cross River State as they affect the jurisdiction of the trial Court. The learned counsel urged that, in the prevailing circumstances of this case, which has to do with the jurisdiction of the trial Court it does not require any leave of either this Court or the lower Court having been filed within time. It is apparent from the arguments of the learned counsel for the respondent as at pages 5 and 6 of the respondent’s brief of argument that he singled out ground 4 of the Grounds of Appeal from which Issue 3 was raised for attack. It therefore follows as per the argument of the learned counsel for the appellants that Grounds 1, 2 and 3 are founded on law. I have carefully examined the said three grounds of appeal and I cannot but agree with the learned counsel for the appellants that they are grounds of pure law since they are premised on jurisdiction of the lower Court to try the appellants in the High Court, Calabar, instead of Ogoja Division of the Cross River State High Court and the interpretation of Sections 64, 65, 67 and 70 of the Criminal Procedure Law, Cap 32 Laws of Cross River State.

Since jurisdiction is basic and fundamental to the Court’s exercise of judicial power and the said three grounds of appeal are apparently conceded to by the learned counsel for the respondent, they are therefore tritely premised on issues of law simpliciter. Such grounds as couched do not require leave of Court in their present circumstances of an interlocutory appeal. See KRAUS THOMPSON ORGANISATION LTD. v. UNIVERSITY OF CALABAR (supra) at 658.

Ground 4 of the grounds of appeal appears to be the gravamen of the respondent’s objection. When a ground of appeal is described as being based on either law or mixed law and fact or facts. In determining whether a ground of appeal is a ground of law or a ground of mixed law and fact or fact Obaseki , JSC quoted approvingly the dictum of Eso, JSC, on the treatment of the differences in the case of U.B.A LTD v. STAHLBAUGMBH & CO KA (1986) 3 NWLR (Part 110) 374 at 391 when he said:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the fact already proved or admitted in which case it would be question of law or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and facts. The issue of pure fact is easier to determine.”

See also OGBECHIE v. ONOCHIE (1986)2 NWLR (Part 23) 484 at 491; IFEDIORAH v. UME (1988) 2 NWLR (Part 74) 5 at 16.

In view of the foregoing, it is desirable to reproduce Ground 4 of the Grounds of Appeal in the instant case in order to appreciate the class of grounds it belongs.

Thus:

“(4) GROUND FOUR: MISDIRECTION IN LAW

The learned Judge misdirected himself (sic) in law when he relied on instinct, assumption and sentiments rather than facts and evidence before him to arrive at his decision.

PARTICULARS OF MISDIRECTION:

(a) There is no evidence of chaos, unrest or a state of emergency in Ogoja to prevent the trial of the accused persons in that Judicial Division.

(b) In fact, there is a claim in Ogoja and normal activities are going on there with the Courts functioning.

(c) The learned trial Judge formed an opinion based on his assumption that there will be tension and therefore unsafe to try the appellants in Ogoja.”

It is now well settled that if the Court purports to find that a particular event occurred although it is not seised of admissible evidence that the event did in fact occur, it is a question of law. Where, admissible evidence has been led and its assessment is entirely that of the Court, it is a question of fact. Where, however, facts are in dispute and the issue of evaluation by the lower Court arises before the application of the law, then this is a matter of mixed law and fact. See OGBECHIE v. ONOCHIE (supra) at 481; FOLBOD INVESTMENT LTD. v. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (Part 478) 344 at 354. It is not how a ground is titled that matters but what it complains about. See A.C.B. PLC v. OBMIAMIA (1993) 6 SCNJ 98 at 109.

In the instant case, the learned Judge of the lower Court formed an opinion based on his assumption that there will be tension in Ogoja if the appellants were tried there when there was no evidence of such apprehension before him as exemplified by the particulars to Ground 4 (supra), no doubt, postulated ground of law.

The law is equally trite that if there are many grounds of appeal filed and only one of the grounds is a ground of law alone, that ground is sufficient to sustain the appeal if no leave is obtained for other grounds. See MOHAMMED v. OLAWUNMI (1990) 2 NWLR (Part 133) 458 at 480. The situation in the instant case is quite different because Ground 4 of the Grounds of Appeal which is specifically attacked by the respondent has been held to be a ground of law.

In sum, I find no merit in the respondent’s preliminary objection and it is dismissed.

I now come to the main appeal. I observed from the appellants’ brief of argument that the appellants’ learned counsel argued Issue 1 separately and Issues 2 and 3 together. I too will consider the three issues in the order set out by the learned counsel for the appellants. The learned counsel for the appellants urged the Court to read Section 64(a) and (b) of the Criminal Procedure Law of Cross River State (hereinafter referred to as the Criminal Procedure Law) and submitted that in view of its clear and unambiguous language only the literal interpretation should be given to it and cited in support the cases of MARTINS v. C.O.P. (2005) 1 NCC 601 at 616 and OJOKOLOBO v. ALAMU (1987) 3 NWLR (Part 60) 377.

As regards the place where the alleged offence against the appellants was committed, the learned counsel referred to the findings of the learned trial Judge at page 72 line 3 to 12 and contended that they are conclusive and that would have been enough for the learned trial Judge to invoke the provisions of Section 64 of the Criminal Procedure Law and decline jurisdiction. He further pointed out that learned trial Judge agreed in his judgment that the distance between Ogoja and Calabar is over three hundred (300) kilometers and that the case should have been heard in Ogoja instead of Calabar. He contended that the learned trial Judge, on the basis of his knowledge of the distance between Ogoja and Calabar, ought to have warned himself on the principle in OKONKWO v. THE STATE (1983) 2 FNLR 283 that he has no jurisdiction over the matter filed in his Court. He argued that trying the appellants in Calabar being a considerable distance from a place within the Ogoja Judicial Division where the alleged offence took place raised the issue of fair hearing. He further argued that by virtue of the nature of the offence alleged to have been committed by the appellants and the gravity of the punishment, the appellants deserved greater opportunity for their defence and their convenience to do that ought to have been considered paramount by the learned trial Court Judge. He submitted that the learned trial Court Judge was in breach of Section 64 (a) and (b) of the Criminal Procedure Law and the decision of this Court in NWANKWO v. THE STATE (supra) to have assumed jurisdiction over the instant case.

The learned counsel also alluded to the fact that the action of the learned Attorney-General of Cross River State to have instituted the instant action in Calabar Judicial Division instead of Ogoja Judicial Division was an abuse of process of the Court.

Issues 2 and 3 deal respectively with the interpretation of Section 70 of the Criminal Procedure Code and basing judgment on instinct, assumption and sentiments instead of law. The learned counsel for the appellants hinged his contentions at 78 and 79 of the record where the learned trial Court Judge held:

“Having regard to the accessibility and convenience of the witnesses in this case, this case should be tried in Ogoja Judicial Division but placing that against the threat to peace that this matter can cause if tried at Ogoja, I am persuaded to assume jurisdiction to handle this matter at Calabar Judicial Division pursuant to Section 70 C.P.L.”

The learned counsel argued that in view of the above finding of the learned trial Judge, he could be said to be acting within the same Section 70 of the Criminal Procedure Law when he assumed jurisdiction in Calabar. He submitted that if the learned trial Judge had averted his mind to the proviso to Section 70(1) (supra) which he relied upon to assume jurisdiction, he would have declined jurisdiction as there is no way that the appellants would not suffer hardship if their trial proceeded in Calabar instead of Ogoja. He argued that instead of the learned trial Judge to have considered the factors set out in the provisions of Section 70(1) of the Criminal Procedure Law he went and delved into irrelevant factors such as taking judicial notice of Suit No. HC/MSC.256/2004 which came before him as a vacation Judge.

In order to found basis for the judicial notice of a situation, the learned counsel argued that the learned trial Judge fished out the suit referred to above and supplied the following facts contained at page 72 lines 13 to 14 of the record:

“That matter was an application for bail of certain persons who were arrested for reprisal attacks/actions resulting from the death of Chief Egbelo, the subject of the present charge. Houses burnt and property destroyed at Mbube in Ogoja Judicial Division as a result of this murder.”

Learned counsel submitted that the learned trial Judge having sourced the foregoing facts formed the following opinion:

“If they so reacted without seeing these accused persons and witnesses, I am sure that reaction will be worse than when they see them physically.”

The learned counsel further submitted that the foregoing approach of the trial Judge showed that he fished for materials not placed before him and relied on them and that that was an unusual approach. He further submitted that it is not within the province of a trial Judge to dabble into investigation of matters that he is seised of.

Learned counsel emphasized that the facts relied upon were not before him and it was not his responsibility to fish out facts not demonstrated before him and he cited in support the cases of DURUMIMIYA v. COMMISSIONER OF POLICE (1961) NWLR 70; R. v. WILCOX (1961) ALL NLR 631 at 633 and 634; NWANKWO v. THE STATE (supra). He finally urged the Court to resolve the three issues in favour of the appellants.

In his reply to the issues raised and canvassed by the learned counsel for the appellants, the learned counsel for the respondents referred to the provisions of Sections 64 and 70(1) of the Criminal Procedure Law and submitted that it is clear therefrom that where a trial Judge in his discretion, taking into consideration the peculiarities of each case finds it proper that it is in the interest of justice, may assume jurisdiction to try a charge for an offence committed in another division of the Court and that that assumption of jurisdiction becomes more expedient when, according to Section 270(1) of the 1999 Constitution, there is only one High Court in each State. He submitted that divisions of a High Court are created for administrative convenience or to reduce hardship often caused to parties who travel to distant areas to attend to Court matters and he cited in support of his submissions the case of FIRST BANK OF NIGERIA PLC v. TSOKWA (2003) FWLR (Part 153) 205 at 229. He argued that the learned trial Judge considered the interest of justice and peace before assuming jurisdiction. He further argued that in order to succeed in an appeal against the exercise of a discretionary power of a trial Court to assume jurisdiction in the instant matter, the appellants must satisfy this Court that the lower Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration. He submitted that the trial Court in the instant case properly adverted to the antecedents of the case and the factual events in the history of the case and took judicial notice of the events that had persisted in Odajie-Mbube in Ogoja Judicial Division since the 6th day of August, 2004 when Chief Egbelo was murdered. He went on to state the trite principle of law that the attitude of the appellate Court to the proper exercise of discretion is not to interfere with it merely on the ground that it (the appellate Court) would have exercised its discretion differently and he cited in support the cases of EGBE v. FEDERAL REPUBLIC OF NIGERIA (2003) FWLR (Part 177) 941 at 950; ALSTHOM S.A v. SARAKI (2005) ALL FWLR (Part 246) 1385 at 1399 – 1402 and UNIPETROL (NIG) PLC v. ADIREJE (W/A) LTD. (2004) ALL FWLR (Part 231) 1238 at 1299 -1300.

I shall at this juncture for better appreciation of the place of the offence alleged to have been committed by the appellants reproduce the charge in the information. It reads shorn of the names of the parties:

CHARGE NO: HC/8C/2005

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STATEMENT OF OFFENCE

MURDER: Contrary to Section 319(1) of the Criminal Code Cap. 31 Laws of the Cross River State of Nigeria, 1983.

PARTICULARS OF OFFENCE

Pius Odock, Ferdinand Eshu, Benedict Asue, Patrick Agbor, Edward Osang, Sunday Martins Obi, Anthony Nku Roberts, Mathew Akurem Achong, P.C. Ejim Jariath, Friday Njor, Joseph Edmond, Robert Stephen Nku, Audu Eshue Osang, Thomas Ntege Keju, Joseph Oshe Bullem and David Abuo on or about the 6th day of August, 2004 at Odajie-Mbube in Ogoja Local Government Area of Cross River State murdered Chief Eshu Egbelo.”

(Underlining mine for emphasis).

The crux of this appeal is the interpretation of Sections 64 (a) and (b) and 70(1) of the Criminal Procedure Law which are in pari materia With the Criminal Procedure Act. It will equally make for a clear appreciation of the provisions of the two specified sections (above) if they are reproduced. They read:

“64. VENUE

Subject to the powers of transfer:

contained in the enactment or Law constituting any Court, the place for trial of offences by such Court shall be:

(a) PLACE/WHERE OFFENCE IS COMMITTED

an offence shall be tried by a Court having jurisdiction in the division or district, where the offence was committed

(b) WHERE ACT IS DONE OR WHERE CONSEQUENCE ENSUES

When a person is accused of the commission of any offence by reason of anything which has been done or of anything which has been omitted to be done and of any consequence which has ensued such offence may be tried by a Court having jurisdiction in the division or district in which any such thing has been done or any such consequence has ensued; or———”

“70. Notwithstanding the provisions of Sections 64, 65 and 67, a Judge or Magistrate of a division or district in which a person is apprehended who is charged with an offence, alleged to have been committed in another division or district may if he considers that the end of justice would be better served by hearing the charge against such person in the division or district in which he has been apprehended and having regard to the accessibility and convenience of witnesses, proceed to hear the charge and the person charged, may be proceeded against tried and punished in any division or district in which he was apprehended or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence, as if the offence had been committed in that division or district, and the offence shall for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in the division or district:

Provided that if at any time during the course of any proceedings taken against any person before any Court in pursuance of this subsection it appears to the Court that the accused would suffer hardship if he were proceeded against and tried in the division or district aforesaid, the Court shall forthwith, but without prejudice to a Magistrate’s powers under Section 63, cease to proceed further in the matter under this Subsection.———-”

(Underlining mine for emphasis).

It is apparent that the extracts (above) extensively reproduced are provisions of a statute and in the circumstances of this appeal their interpretation is desirable. It is now very well settled that one of the canons of interpretation of a statute is that words be given their ordinary and simple grammatical meaning and connotations intended to be conveyed by the legislature and the Court should strictly adhere to such strict construction. This is so particularly when the provisions therein are straightforward and unambiguous. See KETSON KOMPLEX INTERNATIONAL LTD. v. BENDEL DEVELOPMENT & PLANNING AUTHORITY (1993) 2 NWLR (Part 275) 332; UNION BANK OF NIGERIA PLC v. FAJEBE FOODS & POULTRY FARMS LTD & ANOR. (1998) 6 NWLR (Part 554) 380 at 401; S. O. BALOGUN v. K.M. ODUMOSU & ORS. (1999) 2 NWLR (Part 592) 590 at 595. A careful study of the two sets of provisions showed that the language therein is very clear and unambiguous and I shall give them their literal interpretations. See MARTINS v. C.O.P. (supra) at 616; OJOKOLOBO v. ALAMU (supra).

In order to consider Issue 1, it is necessary to closely examine the charge against the appellants which has already been reproduced. It is that on or about 6th day of August, 2004, the appellants murdered Chief Eshu Egbelo at Odajie-Mbube in Ogoja Local Government Area of Cross River State. From the state of the record of proceedings with particular reference to the evidence of the P.W.1 at page 69 he testified, inter alia:

“……Police from Abuja arrived Odajie to invite the alleged suspects for interrogation. The police were attacked. This was on 6/8/2004, a Friday. Eshu Egbelo was chased and beaten to a state of coma. He was rushed to Santa Maria Clinic, Abakpa Ogoja, where he received some medical attention all through the night of 6th early in the morning of 7/8/2004 he was rushed to Teaching Hospital, Calabar, where he died.”

From the evidence of the P.W.1 it showed that Eshu Egbelo was a victim of the attack on the police by the suspects at Odajie.” Eshu Egbelo was beaten to a state of coma. There is no evidence that Eshu Egbelo recovered from coma into which he fell on 6/8/04 until he died the following morning of 7/8/04. Since he did not regain consciousness from the beating he had at Odajie, it is probable that he might have died within Ogoja Local Government Area. What is of particular relevance is that the beating of the deceased victim took place in Odajie as there is no evidence that he was beaten elsewhere. This view that the offence which probably caused the death of Chief Eshu Egbelo took place at Odajie Mbube on 6th August, 2004 in Ogoja Local Government Area found solace in the finding of the learned trial Judge at page 72 lines 3 to 13 of the record where he stated, inter alia:

“……Death is not an offence.

What is an offence is murder which happens when the death of a person is caused by another person or persons by unlawful means.

So what is important is what caused the death and not the fact of death. The information and all the proofs of evidence attached to the information say Chief Egbelo was beaten comatose at Ogoja and that beating caused his death.

I find and hold that the alleged unlawful acts which resulted in the death of Chief Egbelo took place at Odajie-Mbube in Ogoja Judicial Division and that prima facie it is that Judicial Division which has primary jurisdiction, to hear this matter.”

This finding without the words “prima facie” and “primary” qualifying jurisdiction clearly showed by virtue of Section 64(a) of the Criminal procedure Law that the Ogoja Judicial Division of the Cross River State High Court which has jurisdiction over any offence of murder within Ogoja Local Government Area is seised with power to try any persons suspected to have committed that crime. In effect the place of trial of the appellants is the Ogoja Judicial Division and not the Calabar Judicial Division of the High Court of Cross River State.

This finding of the learned trial Judge also showed that he (the learned trial Judge) knew in the course of the trial that he had no jurisdiction to further try the appellants. He should have forthwith, in the spirit of the proviso to Section 70(1) of the Criminal Procedure Law (supra), ceased to proceed with the matter. He failed to do so. He instead, with due regard, fished for excuses. One of the excuses is that he took judicial notice of Suit NO.HC/MSC.256/2004 which came before him as a vacation Judge. He narrated the facts of which he judicially noticed thus:

“That matter was an application for bail of certain persons who were arrested for reprisal attack/actions resulting from the death of Chief Egbelo, the subject of the present charge. Houses were burnt and property destroyed at Mbube in Ogoja Judicial Division as a result of this murder (about 2 weeks after).”

The learned trial Judge did not only suo motu supply those facts he also formed the following opinion:

“If they so reacted without seing these accused persons and witnesses, I am sure their reaction will be worse when they see them physically.”

I agree with the submission of the learned counsel for the appellants that this approach by the learned trial Judge in fishing for materials not placed before him and relying on such materials and facts to give his decision is, with due respect, an unusual procedure to be adopted in adjudication in our adversary system. It is trite that since the facts he relied on to form an opinion which he used to decide a matter were not before him, he has no responsibility to embark on an investigation to fish for them. See DURUMIMIYA v. COMMISSIONER OF POLICE (supra). This principle was lucidly illustrated by Belgore, JCA. (as he then was) in NWANKWO v. THE STATE (supra) when he said at page 297:

“No evidence was exhibited and demonstrated as to the allegedly offensive parts. The Judge should not be auditor of accounts, neither should he fish out for facts not demonstrated before him …….. A trial is not an investigation and investigation is not the function of the Court…………. A trial is the public demonstration and testing before a Court of the cases of the contending parties. The function of the Court is to decide between parties on the basis of what has been demonstrated and tested. It is not the duty of the Judge to make investigation after hearing a case by making inquiry of his own.”

With regard to the judicial notice of the antecedents of the events that took place at Odajie Mbube since 6th August, 2004, the law on judicial notice is clearly set out in Section 74 of the Evidence Act. It is trite to say that for a Judge to proceed on its own motion to take judicial of facts without a party laying the foundation and calling upon it appropriately to take such a judicial notice is a very dangerous thing to do in our adversary system of adjudication where the Judge is supposed to be an umpire and hold the balance. That will amount to the Court acting on instinct, sentiments and relying on speculations. The Court is not at liberty to act on any of those factors. In order words, instinct, assumptions and sentiments have no role to play in adjudications. See KATTO v. C.B.N. (1991) 9 NWLR (Part 214) 126 at 145.

In the instant case, the learned trial Judge formed the following opinions at page 72 of the record:

“The more than 300 kms between Calabar and Ogoja will now act as a barrier to war and an agent of peace.

Peace is better than money what the witnesses will loose (sic) in monetary terms the society at large will gain in peace terms.”

I agree with the learned counsel for the appellants that these philosophical postulations were not based on any materials before the trial Court. They are at best borne out of instinct, assumptions and sentiments which are not good premises for adjudication and the Court should not indulge in them. See STATE v. AIBANGBEE (1988) 3 NWLR (Part 84) 548 at 555; A.I.C. LTD. v. N.N.P.C. (2005) 11 NWLR (Part 937) 563 at 597; UBENE v. C.O.P. (2005) INCC 624 at 640.

It is equally the law to state that no Court has a right apart from taking judicial notice of a notorious fact in a proper case to draw conclusions outside the available evidence.

In retrospect, the learned trial Judge who severally agreed in his ruling that the Ogoja Judicial Division of the Cross River State High Court is the appropriate Court to try the appellants failed to cease from further proceeding in the instant matter and thereby, with due regard, acted contrary to the proviso to Section 70 (1) of the Criminal Procedure Law. I accordingly resolve the three issues in favour of the appellants.

In the final analysis, I find merit in the appeal and I allow it. The ruling of the lower Court made on 24th February, 2005 in Charge No. HC/8C/2005 is set aside. Charge No. HC/8C/2005 is transferred from the Calabar Judicial Division of the Cross River State High Court to Ogoja Judicial Division of the same High Court.

The appellants shall be transferred from the Federal Prisons, Afokang, Calabar to the Federal Prisons, Igoli, Ogoja which is proximate to the venue of the trial.

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Other Citations: (2006)LCN/2030(CA)