Ralph Uwazuruike & Ors V. The Attorney-general Of The Federation (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

On the 8th day of November, 2005 the appellants’ as accused persons were arraigned before a Federal High Court, Abuja, and charged on four counts which read as follows:

Count 1

That you Ralph Uwazurike (M) 45 years old, Chibuike Nwosu (M) 23 years old, Benedict Alakwen (M) 45 years old, Chimankpa Okorocha (M) 19 years old, Kelechi Ubabuike (M) 27 years old, Ambrose Anyaso (M) 46 years old and Augustine Ihuoma (M) all of MASSOB Headquarters, Okwe, Onu-Imo Local Government Area of Imo State on diverse dates (between January 2004 and October 2005) at Owerri Imo State and other places in Nigeria within the jurisdiction of the Federal High Court with intent to levy war, overawe and overthrow the legitimate Government of Nigeria did conspire among yourselves to commit felony to wit: treason against the President of the Federal Republic of Nigeria and you thereby committed an offence contrary to section 37(2) of the Criminal Code Act Chapter 77, Laws of the Federation of Nigeria 1990 and punishable under section 37 of the Criminal Code Act.

COUNT 2

That you Ralph Uwazurike (M) 45 years old, Chibuike Nwosu (M) 23 years old, Benedict Alakwen (M) 45 years old, Chimankpa Okorocha (M) 19 years old, Kelechi Ubabuike (M) 27 years old, Ambrose Anyaso (M) 46 years old and Augustine Ihuoma (M) all of MASSOB Headquarters, Okwe, Onu-Imo Local Government Area of Imo State on diverse dates (between January 2004 and October 2005) at Owerri Imo State and other places in Nigeria within the jurisdiction of the Federal High Court did commit treason against the Federal Republic of Nigeria by belonging to a Militant Group called MASSOB ARMY which is undergoing training with intent to levy war in order to intimidate overawe and overthrow the President and Government of the Federal Republic of Nigeria and up thereby committed a felony contrary to and punishable under section 237 (1) of the Criminal Code Act chapter 77 Laws of the Federation of Nigeria 1990.

COUNT 3

That you Ralph Uwazurike (M) 45 years old, Chibuike Nwosu (M) 23 years old, Benedict Alakwen (M) 45 years old, Chimankpa Okorocha (M) 19 years old, Kelechi Ubabuike (M) 27 years old, Ambrose Anyaso (M) 46 years old and Augustine Ihuoma (M) all of MASSOB Headquarters, Okwe, Onu-Imo Local Government Area of Imo State on diverse dates (between January 2004 and October 2005) at Owerri Imo State and other places in Nigeria within the jurisdiction of the Federal High Court are members of unlawful society called MASSOB and you hereby committed a felony contrary to and punishable under section 64 of the Criminal Code Act chapter 77 Laws of the Federation of Nigeria 1990.

COUNT 4

That you Ralph Uwazurike (M) 45 years old, Chibuike Nwosu (M) 23 years old, Benedict Alakwen (M) 45 years old, Chimankpa Okorocha (M) 19 years old, Kelechi Ubabuike (M) 27 years old, Ambrose Anyaso (M) 46 years old and Augustine Ihuoma (M) all of MASSOB Headquarters, Okwe, Onu-Imo Local Government Area of Imo State on diverse dates (between January 2004 and October 2005) at Owerri Imo State and other places in Nigeria within the jurisdiction of the Federal High Court formed, managed and assisted in the management of an unlawful society of more than ten persons known and called MASSOB MEMBERS with the objective of:

(a) subverting or promoting the subversion of the Government of the Federal Republic of Nigeria and its officials;

(b) committing, inciting acts of violence and intimidation;

(c) interfering with, resisting, encouraging interference with or resistance to the administration of law; and

(d) disturbance of peace and order in the entire country- Nigeria contrary to section 62(2)(1) and punishable under section 63 of the Criminal Code Act chapter 77 Laws of the Federation of Nigeria 1990.

The accused persons entered not guilty pleas to the four count charge. Thereafter the learned trial judge, Nyako J heard two motions for:

1. Bail
2. Dismissal of the charges in limine and to restrain the respondent from prosecuting the accused persons on the same facts as those in the application of 1st day of November 2005.

In a considered Ruling delivered on the 27th of January 2006 the learned trial judge refused to grant the accused persons bail, and also refused to dismiss the charges against the accused persons. On restraining the respondent from prosecuting the accused persons on the same facts as those in the application of the 1st day of November, 2005 the learned trial judge said:

“…..I have not said anything about the orders made on the Fundamental Right Enforcement Procedure action, at Owerri because if the accused persons are alleging contempt then they know what to do but not to subsume that into this Criminal trial.”

Dissatisfied with the Ruling of the learned trial judge the accused persons filed an appeal. The appeal came before the Court of Appeal Abuja Division. In a judgment delivered on the 15th day of May, 2008 the Court of Appeal admitted all the accused persons to bail, but refused to dismiss the four count charge. This appeal is against the refusal of the Court of Appeal to dismiss the four count charge filed against the accused persons.

In accordance with Rules of this court briefs were filled and exchanged. Learned counsel for appellants, filed separate briefs for the seven appellants on the 19th of August 2008, and reply brief on the 18th of November 2008.

Learned counsel for the respondent filed a respondent’s brief on the 9th of October 2008.

In the brief filed on behalf of Ralph Uwazuruike two issues were formulated. They are:

1. Whether the arraignment of the appellant before the Federal High Court Abuja, despite a subsisting order of the Federal High Court Owerri to the contrary was proper in Law.
2. Whether the Court of Appeal should not have dismissed the charges against the appellant.

A Sole issue was formulated for all the other six appellants and that issue is identical with issue 2 above. Learned counsel for the respondent adopted the appellants’ issues. At the hearing of the appeal on the 31st day of January 2013 both counsel for the parties adopted their briefs.

ISSUE 1

Whether the arraignment of the appellant before the Federal High Court Abuja despite a subsisting order of the Federal High Court Owerri to the contrary was proper in Law.”

Learned counsel for the appellants’ (but submitting on behalf of Ralph Uwazuruike alone) Mr. F. Keyamo submitted that the arraignment of Ralph Uwazuruike before the Federal High Court Abuja, despite a subsisting order of the Federal High Court, Owerri to the contrary was a contemptuous act that should have moved the court to exercise its disciplinary jurisdiction to quash the charge/s against the appellant. Referring to the order of the Federal High Court, Owerri made on 18/1/05, he argued that the said order was a stay of any arrest of Ralph Uwazuruike contending that it was wrong for the respondent to arrest and charge him to court when the said order was subsisting. Relying on Ezegbu v. FATB 1992 1 NWLR pt.220 p.699

Alhaji A. Ibrahim v. Col. C. Emein & ors 1996 2 NWLR pt.430 p.322

He submitted that since this criminal proceeding against the appellant has its root in illegality justice demands that the proceeding be quashed and the appellant discharged.

In reply, learned counsel for the respondent, Chief (Mrs.) V.O. Awomolo argued that the order of the High Court Owerri did not prohibit the state from taking the appellant before a court of law for crimes he committed, contending that the said order cannot prohibit criminal prosecution against the appellant. Arguing further she observed that the appellant cannot continue to hide under the said ex-parte order to violate laws of the land. Reliance was placed on section 45(1) of the Constitution. Concluding her submissions she observed that the said order was not served on the respondent neither was he (respondent) put on notice of the said order. Learned counsel urged this court to sustain the decision of the Court of Appeal.

For clarity, I must explain that there are seven appellants’ all of them were accused persons before the trial Federal High Court in Abuja.

Issue 1 relates only to Ralph Uwazuruike (one of the accused persons) since he was the only one who went before an Owerri Federal High Court for the enforcement of his fundamental rights which resulted in the Court’s order of the 18th of January 2005.

Issue 2 relates to all the appellants; since all of them want the charge/s dismissed.

1. Whether the arraignment of the appellant before the Federal High Court Abuja despite a subsisting Order of the Federal High Court Owerri to the contrary was proper in Law.

Ralph Uwazuruike instituted a suit before an Owerri Federal High Court for the enforcement of his fundamental human rights, and on the 18th day of January, 2005 he obtained an order ex-parte. The respondents in the action were:

1. The Director of State Security (S.S.S.) (Imo State)
2. The Director-General, State Security Service S.S.S.
3. The Commissioner for Police, Imo State
4. The Inspector-General of Police
5. The Attorney-General of the Federation and Minister of Justice.

The court ordered as follows:

1. Leave is granted the appellant to enforce his Fundamental Rights against the 5 named respondents.
2. The leave hereby granted shall act as a stay of any arrest, threat or arrest, invasion of the applicant’s privacy or any act that would deprive the applicant of free movement in the country pending the hearing of the substantive application.
3. The applicant shall not within the pendency of this action address any press conference or grant any interview whatsoever to any person or organization until the hearing and determination of the substantive application.
4. The applicant shall within 7 days enter into bond in the sum of N100,000.00 to persecute the main application and if the applicant shall fail to diligently prosecute the case, shall forfeit the above sum to the Federal Government.
5. Return date shall be 1/2/05 and case is adjourned to 1/2/05 for hearing.

This ex-parte order was made on the 18th of January, 2005 by an Owerri Federal High Court. The argument advanced by Mr. F Keyamo is that the respondent was wrong to arraign Ralph Uwazuruike before an Abuja Federal High Court on the 8th of November 2005 on four count charge for treason etc, while the Owerri Federal High court Order of the 18th of January 2005 was still in force.

This is what the Court of Appeal had to say:

“…It is apparent that the Federal High Court, Owerri and Federal High Court, Abuja are courts of concurrent jurisdiction, therefore the contention by the counsel for the appellants’ that 1st appellant was charged to court maliciously in flagrant disrespect of an order of Federal High Court, Owerri cannot be correct because Courts that are of similar or concurrent jurisdiction are not bound to follow the decision of each other See Prof A.D. Olutola v. University of Ilorin 2005 3WRN p.22.

Furthermore on this issue the parties in the case before the trial court at Abuja are not the same with that of the case filed at the Owerri Federal High Court.

I also agree with the submission of learned counsel for the respondent that the order granted by the Federal High Court Owerri was an ex-parte order for the applicant i.e. the 1st appellant in this court to enforce his Fundamental Human Rights, it was not an order directed to the proceedings before same court sitting in Abuja. And apart from the above, there was no evidence of service of the court processes on the Attorney-General of the Federation.

Consequently, it is my view that the trial Judge was right not to have given credence to the Order of the Federal High Court, Owerri as the Order given by that Court was not binding on her.

In view of the foregoing, this issue is resolved against the appellants’……”

The well laid down position of the Law is that anyone who is served with, or becomes aware of a valid Order of court should ensure that he obeys it in full. Failure to obey a valid Court order may amount to willful breach of it which could lead to contempt proceedings with serious consequences. See Mobil Oil Nig. Ltd. v. Assan 1995 8 NWLR pt. 412 p. 129My lords, the Order made on 18/1/05 was an Order directed to proceedings before the Owerri Federal High Court and not to proceedings before the Abuja Federal High Court or proceedings that may subsequently arise before other Courts for breaches of the Law by Ralph Uwazuruike. The Order of the Owerri Federal High Court made on 18/1/05 was made ex-prate, i.e. without notice to the respondents. The Order was to be served on the respondent in time for an interpartes hearing fixed for 1/2/05. The onus is on learned counsel for the appellant to satisfy this Court that the said order was indeed served on the respondent. The Record of Appeal and the brief of learned counsel for the appellant were unable to discharge that onus. The respondent is in the circumstances not bound by an Order that was not served on him. The order did not bind him. The reasoning being that an order is not binding if made on a person who has not been served with it. In the absence of service it is clear that the ex-parte Order was obtained solely in the belief of counsel that it was enough to stall a criminal trial against the appellant. This sadly has not been the case and can never be the case.

Ezegbu v. FATB 1992 1 NWLR pt.220 p.699 and Alhaji A. Ibrahim v. Col. Emein & ors 1996 2 NWLR pt 430 p.322, relied on by learned counsel for the appellant in support of the position of the law that Orders of a court must be obeyed are irrelevant as in the two cases there was service of the order on the adverse party, while in this case there was no service on the respondent of the Owerri Federal High Court Order made 18/1/05. In the absence of service of the order the respondent is not expected to obey it. An Order not served on a respondent loses its potency and the respondent is not bound by it. The arraignment of the appellant before an Abuja Federal High Court was in accordance with the Law and both courts below were correct in their findings.

There is only one Federal High Court in Nigeria, but there are several Divisions of that court spread all over Nigeria. The decision of a Division of the court does not bind the other or another Division of the court. They are decisions of courts of co-ordinate jurisdiction. The Federal High Court Owerri and the Federal High Court Abuja are courts of concurrent jurisdiction. The Orders of an Owerri Federal High Court made on the 18th of January 2005 restraining the named respondents from arresting Ralph Uwazuruike relates to the proceeding before the Owerri Federal High Court which were ongoing at the time the Orders were made ex-prate. The orders are in no way related, nor do they affect or stop a subsequent arraignment of Ralph Uwazuruike for treason etc.

2. Whether the Court of Appeal should not have dismissed the charges against the appellant.

Learned counsel for the appellant observed that since there was no proof of evidence accompanying the charge the procedure by which the appellant was charged was improper. Relying on Abacha v. State 2002 5 NWLR pt.761 p.638

He submitted that in the absence of proof of evidence accompanying the charges’ against the appellants all the charges’ ought to be dismissed.

In reply learned counsel for the respondent observed that the appellants were arraigned to face a summary trial which does not require proof of evidence and not a trial on information which requires proof of evidence. Relying on section 33(2) of the Federal High Court Act, Section 251(2) of the Constitution, he argued that Abacha v. State supra is not applicable, contending that the courts below were right not to dismiss the charges. He urged on this Court to dismiss the appeal.

Section 251(2) of the 1999 Constitution as altered by the first, second and third Alterations Act, 2010 states that:

“The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.”

While section 33(2) of the Federal High Court Act states that:

“Notwithstanding the generality of subsection (1) of this section all criminal cases or matters before the Court shall be tried summarily.”

The combined reading of section 251(2) of the Constitution and section 33(2) of the Federal High Court Act is that jurisdiction is conferred on the Federal High Court by the Constitution to try treason, treasonable felony and allied offences, and these offences shall be tried summarily. Section 277 of the Criminal Procedure Act provides for summary trials. Summary trials are short and fast. Cases tried summarily, are disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of the evidence the prosecution would rely on. Put in another way it is not all the evidence relied on by the prosecution that is made available to the accused person before trial. On the other hand trials can also be on information. Section 334 of the Criminal Procedure Act provides for trial on information. An information is a comprehensive document which guide the court, the prosecution and the accused person, during trial.

It contains the following:

(a) the charge, statement of offence and particulars of the offence;

(b) the statement of the witnesses for the prosecution;

(c) statement of the accused person;

(d) list of exhibits; and

(e) all relevant documents etc that the prosecution intends to rely on at trial.

Now, can it be said that the four count charge is improper because there is no proof of evidence accompanying the charge/s.

The learned trial judge remarked that:

“…but I believe without compromising the fundamental requirement that an accused needs to know the evidence against him so as to prepare his defence…What the prosecution has filed is titled summary of Overt Act. It goes ahead to itemize the acts alleged against the accused persons and the times and places……it has given the accused person all they need to know to prepare their defence. If they need more all they need do is apply to the court to order the prosecution to provide more facts or be more explicit……”

The learned trial judge then proceeded to direct the prosecution to file proof of evidence. The Court of Appeal agreed with the learned trial judge. The reasoning of that Court was that in the spirit of the Constitution a man charged with treason which is an offence punishable with death must know the details of the offence beforehand and given adequate time to prepare his defence. I am in complete agreement with both courts below. I must say straightway that Abacha v. State (supra) is not relevant. That case was tried in a state High Court where trials are conducted on information. This suit was filed in the Federal High Court by virtue of the provisions of section 33(1) and (2) of the Federal High Court Act where offences such as treason, treasonable felony are tried summarily. In the circumstances the four count charge is not improper because in summary trials proof of evidence do not accompany the charge.

Where the accused person is not satisfied with the information attached to the charge in a summary trial he is expected to apply to the court. To order the prosecution to provide more facts to the accused person is entirely in the courts discretion. See Gaji v. State 1974-1975 9 NSCC p.294

The learned trial judge found that what was attached to the charge/s was enough for the accused persons to prepare for their defence. Notwithstanding this finding the learned trial judge proceeded to order that the prosecution (respondent) files a proof of evidence. This was done.

What then may I ask is the need for this appeal

It is the case of the appellants that the charge/s against them are improper because there was no proof of evidence accompanying the charge. The learned trial judge ordered proof of evidence filed. With the filing of the proof of evidence there was no longer the need to have the charge/s dismissed since the non filing of proofs of evidence was the reason for seeking dismissal of the charge/s. In a summary trial accused persons are entitled to know the nature of the charge and not the nature of the evidence. The appellants were charged for treason before a Federal High Court and by virtue of section 33(1) and (2) of the Federal High Court Act they are to be tried summarily. Though the appellants are not entitled to know the nature of evidence against them, the learned trial judge, ordered the nature of evidence (information) served on the appellants and this was done before the appellants’ filed their appeals in the Court of Appeal. This appeal to my mind is unnecessary and clearly a waste of precious judicial time since all the information imaginable that the appellants’ would need for their defence has been available to them before they appealed to the Court of Appeal.

Courts are set up for the sole purpose to do substantial justice between the parties. Substantial justice entails justice to the court, the accused person and the public.The argument that the charge/s should be dismissed because it was not accompanied by proof of evidence is a mere technicality designed to defeat the course of justice. In the light of the fact that the proof of evidence has been filed and is available to the appellants’, trial should proceed with dispatch.

The result is that the two issues urged in this appeal on behalf of the appellants’ fail, and the appeal must fail as there is no merit. This appeal is dismissed.

---

SC.207/2008