Rev. Fr. Silas C. Nweke V. The Federal Republic of Nigeria (2016) LLJR-CA
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MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
This is an appeal from the ruling of the Federal High Court, Awka Judicial Division delivered in suit No. FHC/AWK/75C/2010 on 11th November, 2011. The appellant a Reverend Father was arraigned with another Reverend Father, Rev. Dr. Obiorah before the Federal High Court on a 13 count charge of conspiracy to obtain money by false pretence with intent to defraud various persons named in the charge and defrauding those persons by falsely representing themselves as distributors of Ibeto and Dangote Cement presenting the Holy Family Group of Companies which they knew to be false and obtaining various sums of money from those persons. They were charged under Section 1 (1) (b) and (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. The charges were read to the appellant and his co-accused but they refused to enter a plea. The case was adjourned for hearing but before the adjourned date, the appellant and his co accused filed a notice of preliminary objection challenging the jurisdiction of the Court on the following grounds:
1. ?The respondent has no competence
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and authority to institute the proceedings;
2. The arrests and detentions of the applicants upon which this proceeding is predicted is unconstitutional, illegal and unlawful;
3. This charge is brought in bad faith and is a malicious criminalization of the applicants in order for the respondent?s EFCC to collect private debts from the applicants in favour of the complainants;
4. The Court lacks subject matter jurisdiction to hear this matter which is malicious conversion of a private debt collection exercise into criminal offences;
5. The arrests, detentions, undertakings and bail bonds and arraignment notices founding this proceedings, the instant charge and entire proceedings, were commenced and continued in contempt of the orders of Courts of competent jurisdiction, in suit No. A/MISC.155/2008, suit No. A/MISC.53/2009 and suit No. FHC/AWK/157/2009;
6. The present proceedings, including the charge filed herein, constitutes an abuse of Court process;
7. The Court lacks personal jurisdiction over the person of the applicants.
8. The respondent has no probable or reasonable cause to bring this charge against any of the
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applicants.
9. The entire proceedings being instituted herein are incompetent.
10. The institution and continuation of the proceedings are unconstitutional, null and void.?
Written addresses were filed and exchanged. The Court found that the objection had no merit and dismissed the objection. Dissatisfied with the ruling, the appellant herein has appealed to this Court on 12 grounds of appeal by an amended notice of appeal filed on 28/2/13. The grounds of appeal are as follows:
GROUND ONE (1) – ERROR IN LAW:
?The learned trial judge erred in law by assuming jurisdiction to try the offences in this charge when the said offences are not within the jurisdiction of the Federal High Court.
GROUND TWO (2) ? ERROR IN LAW:
The learned trial Judge erred in law in proceeding to enter ruling/decision against the appellant on November 11, 2011 when the appellant was not notified of the proceedings culminating into the said ruling/decision and when no hearing notice was issued and/or served on the appellant and thereby denied the appellant his right to a fair hearing.
GROUND THREE (3) ? ERROR IN LAW:
The
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learned trial Judge erred in law in allowing the respondent?s counsel to move the appellant?s own preliminary objection challenging the charge against the appellant, instead of permitting the appellant to move and argue his preliminary objection by himself or through his counsel, and thereby denied the appellant his right to a fair hearing.
GROUND FOUR (4) ? ERROR IN LAW:
The learned trial Judge erred in law in holding that the charge against the appellant was competent when the said charge is ultra vires the powers of the Economic and Financial Crimes Commission (EFCC) which was only authorized to prosecute ?economic and financial crimes? as defined by Sections 1 (2) (c) and 46 of the Economic and Financial Crimes Commission (Establishment, etc.) Act, 2004, as amended.
GROUND FIVE (5) ? ERROR IN LAW:
The learned trial Judge erred in law in failing or refusing to dismiss this Charge No. FHC/AWK/75C/2010 as an abuse of Court process and a violation of the appellant?s constitutional rights, when the said charge was instituted on 07/12/2010 by the respondent (through Economic and Financial Crimes
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Commission (EFCC)) against the appellant during the pendency of Charge No. MAW/1C/2009, Commissioner of Police v. Rev. Fr. Silas Nweke, instituted on 06/01/2009 by the same respondent (through the Commissioner of Police) against the same appellant on the same subject matter and concerning the same incident.
GROUND SIX (6) ERROR IN LAW:
The learned trial Judge erred in law in failing or refusing to dismiss Charge No. FHC/AWK/75C/2010 as an abuse of Court process and contemptuous of the Court, when the said charge was instituted in violation of the order of the Court entered on 10/06/2009 in suit No. FHC/AWK/CS/157/2009 staying all ?relations between the parties pending the hearing of the motion on notice? and was instituted in contempt of various pending fundamental rights proceedings against the respondent?s Economic and Financial Crimes Commission (EFCC).
GROUND SEVEN (7) ERROR IN LAW:
The learned trial Judge erred in law in failing or refusing to quash the charge against the appellant which was filed for a vindictive purpose and in violation of the appellant?s constitutional right to be represented by a legal
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practitioner of his choice.
GROUND EIGHT (8) ? ERROR IN LAW:
The learned trial Judge erred in law by failing or refusing to quash the charge against the appellant when there is no showing of a prima facie case to be tried against the appellant.
GROUND NINE (9) ? ERROR IN LAW:
The learned trial Judge erred in law by failing to or refusing to dismiss Charge No. FHC/AWK/CS/75C/2010 which was based on illegal arrests and detentions of the appellants, which arrests and detentions were done in violation of the orders of Courts of competent jurisdiction and the appellant?s Fundamental Right to personal liberty.
GROUND TEN (10) ? ERROR IN LAW:
The learned trial Judge erred in law by failing or refusing to dismiss this charge as incompetent as the charge was instituted by Economic and Financial Crimes Commission (EFCC) in order to force the appellant to pay some personal debts he allegedly owed to some of the complainants or petitioners.
GROUND ELEVEN (11) ? ERROR IN LAW:
The learned trial Judge erred in law by refusing to quash the charge against the appellant when the said charge was filed in
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violation of the appellant?s fundamental rights to personal liberty and fair hearing as enshrined in Section 36 (6) of the Constitution of the Federal Republic of Nigeria, (as amended), including his right to be represented by a legal practitioner of his own choice.
GROUND TWELVE (12) ? ERROR IN EVALUATION OF FACT:
The decision is unreasonable and cannot be supported having regard to the evidence.
The appellant?s brief of argument was filed on 28/2/2013. The amended respondent?s brief of argument was filed on 11/11/2015. The reply brief of the appellant was filed on 1/2/16. The appellant?s counsel formulated six issues for determination. The issues are:
I. Whether the learned trial Judge was right holding that the Federal High Court has jurisdiction to try this charge simply because EFCC is a Federal Agency, when the offences charged deal solely with simple private contracts of individual citizen of Anambra State among themselves. (Ground 1)
II. Whether the ruling/decision of the Federal High Court dismissing the appellant?s preliminary objection to the charge is a nullity for infringing on the
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appellant?s right to fair hearing, when the said ruling/decision was given in the absence of the appellant and when no hearing notice was served on him. (Ground 2)
III. Whether the learned trial Judge infringed on the appellant?s fundamental right when he refused to allow him or his counsel in Court to move his preliminary objection but instead permitted the opposing counsel for EFCC (respondent) to move the appellant?s own application and argue it without his consent by adopting the appellant?s written address. (Ground 3)
IV. Whether the learned trial Judge was right when he held that the Charge was competent, while the offences charged do not fall within ?Economic and Financial Crimes?. (Ground 4)
V. Whether the learned trial Judge was right in failing to dismiss this charge which was an abuse of Court process and contemptuous of the Courts. (Ground 5)
VI. Whether the learned trial Judge was right in failing to dismiss this charge which was based on illegal arrest and amounted to a violation of the appellant?s Constitutional rights. (Ground 9, 10 & 11)
The respondent?s counsel
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formulated the following two issues for determination:
a. ?Whether the charge is competent before the Court.
b. Whether the appellant?s right of fair hearing was in any way breached.?
The two issues formulated by the respondent?s counsel succinctly captured the issues which call for determination in this appeal. Before I proceed to the consideration of the two issues, I have to deal with the preliminary objection of the respondent incorporated and argued in his brief of argument. The main ground of objection is that this appeal is on grounds of mixed law and fact in respect of an interlocutory appeal and the appellant ought to have sought and obtained leave to appeal. He relied on AKINDIPE V. STATE (2008) 15 NWLR (PT. 1111) 560 AT 568 (B ? C), GARRUBA V. OMOKHODION & ORS. (2011) 7 SCM AT 111 (A-C).
In response, the appellant?s counsel submitted that an appeal on ground of jurisdiction is a ground of law. He further submitted that an appeal which involves the interpretation of the Constitution and whether a person?s fundamental right has been breached are questions of law and an appeal is as of
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right by virtue of Section 241 (1) (b),(c) and (d) of the 1999 Constitution (as amended)
RESOLUTION:
The right of appeal from the High Court to the Court of Appeal is a constitutional right created by Section 241 of the 1999 Constitution (as amended). The Constitution creates two rights of appeal which are: (1) the right of an aggrieved party to appeal as of right and (2) the right of appeal with leave of Court. Where the decision being appealed against falls within the cases enumerated under Section 241 (1) of the Constitution, an aggrieved party is entitled to appeal as of right. Where the decision of the High Court does not fit into any of the cases under Section 241 of the Constitution, an appeal shall lie from the decisions of the High Court to the Court of Appeal with the leave of the High Court or the Court of Appeal.
The grouse of the appellant herein centers on the jurisdiction of the lower Court and denial of fair hearing. By virtue of Section 241 (1) (b) and (d) of the Constitution, an appeal shall lie as of right where the ground of appeal involves questions of law alone in any civil or criminal proceedings and whether any of the
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provisions of Chapter IV of the Constitution has been, is been or is likely to be contravened in relation to any person. See SARAKI V. KOTOYE (1992) NWLR (PT. 264) 156, NALSA & TEAM ASS. V. N. P. C (1991) 8 NWLR (PT. 212) 652. In ARAGBIJI of IRAGBIJI & ANOR. V. OLABODE OYEWINLE & ORS. (2013) LPELR (SC), the Supreme Court held that jurisdiction of a Court is a question of law. The provision of Section 241 (1) is very clear and unambiguous. Since jurisdiction is a question of law, an appeal from a decision of the High Court on jurisdiction such as the one on appeal here lies as of right. The Constitution is also very clear on issues bothering on the fundamental rights of a citizen guaranteed by the Constitution. An aggrieved party has a right to appeal without the leave of the Court where the issue on appeal involves question or allegation of breach of fundamental right such as denial of fair hearing in a proceeding before the Court. It is clear from the foregoing that whether the grounds of appeal in this case involves question of law alone or of mixed law and facts the appellant herein does not need the leave of Court to appeal and it is immaterial
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whether the appeal is in respect of interlocutory or final judgment. For the fore going reasons, the objection fails and it is hereby dismissed.
MAIN APPEAL
Issue 1 in the main appeal is essentially about the jurisdiction of the Federal High Court to try the appellant on the criminal charges filed against him before the Court. The appellant?s counsel submitted that the offences for which the appellant is charged are in respect of a simple contract and that there is nothing in Section 251 (1) of the Constitution that allows the Federal High Court to exercise jurisdiction over simple private contracts between individuals. He referred to ONUORAH V. K. R. P. C (2005) 6 NWLR (PT. 921) 393 AT 404 (5), NOSPETCO OIL & GAS LTD. V. OLORUNNIMBE (2012) 10 NWLR (PT. 1240) 314 AT 329 (5), AMADI V. F.R.N. (2008) 18 NWLR (PT. 1119) 259 AT 276 (7), GEORGE V. F.R.N. (2011) 10 NWLR (PT. 1254) 1 AT 62-63 (4).
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In response, the respondent?s counsel submitted that Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 vests the jurisdiction to try the offences under that Act in the Federal High Court , the High Court of Federal
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Capital Territory and the High Court of the State.
In his reply, the appellants counsel submitted that Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 did not extend the scope of the jurisdiction of the Federal High Court as conferred by Section 251 (1) of the Constitution. It only states that the Federal High Court can try Advance Fee Fraud Offences but those offences must relate to or arise from causes and matters over which the Federal High Court has jurisdiction under Section 251 (1) of 1999 Constitution. He referred to AMIWERO VS. A. G. FED. (2015) 15 NWLR (PT. 1482) 353, 381 (3).
RESOLUTION:
The opening paragraph of Section 251 (1) of the 1999 Constitution (as amended) upon which the appellant?s counsel predicated his argument provides thus:
?Notwithstanding anything to the contrary contained in this Constitution and in addition such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause and matters-? (The underlining is mine)
?The Advance
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Fee Fraud and other Related Offences Act, 2006 is an Act of the National Assembly. Section 14 of that Act confers the jurisdiction to try offences and impose penalties under the Act on the Federal High Court, the High Court of the Federal Capital Territory and the High Court of the State. The provisions of Section 251 (1) of the 1999 Constitution (as amended) and Section 14 of the Advance Fee Fraud and Other Related Offences Act, 2006 must be read together and when that is done, it is clear that the Federal High Court has the jurisdiction to try any offences under the Act. There is no ambiguity whatsoever in the provisions of Section 14 of The Advance Fee Fraud and Other Related Offences Act, 2006 and Section 251 (1) of the 1999 Constitution (as amended) to warrant any winding or meandering argument. The contention of the appellant?s counsel that the Federal High Court has no jurisdiction to try him for the offences for which he is charged must fail.
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The appellant?s counsel argued that fraud and other crimes enumerated in Section 46 of the Economic and Financial Crimes Commission (Establishment, etc) Act, 2006 (the Act) must concern or relate
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to ?the economic activities of Government and its administration? for EFCC to have the power to prosecute them. He referred to FAWEHINMI V. I.G.P. (2002) 7 NWLR (PT. 767) 606 AT 683 (A ? F). He argued further that EFCC has no business investigating offences which deals with the activities of private individuals and has nothing to do with the ?economic activities of government and its administration. The appellant?s counsel also argued that the offences for which he has been charged are not ?economic and financial crimes as defined in Section 1 (2) of the Advance Fee Fraud and Other Related Offences Act, 2006. It is also his contention that if an offence committed relates to only economic activities of private individual or citizens, then such an offence falls within the general powers of the police to investigate and prosecute.
In response, the respondent?s counsel submitted that it is not the law that the offences under the Advance Fee Fraud and Other Fraud Related Act, 2006 for which the appellant is charged can only be committed against the government or its agencies. It is submitted that the
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offences for which the appellant is standing trial are offences for which EFCC is statutorily empowered to investigate and prosecute. Once it is established that a person has committed any of the offences specified under the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, EFCC has a duty to prosecute such a person in a Court of law. He referred to IBORI V. F. R. N. (2009) 3 NWLR (PT. 1128) 283 AT 321, 325 ? 326.
RESOLUTION
The Economic and Financial Crimes Commission was established by the Economic and Financial Crimes Commission (Establishment etc,) Act, 2004. The functions and powers of the Commission are stated in Sections 6 and 7 of the Act. Those Sections of the Act read:
6. The Commission shall be responsible for-
(a) ?The enforcement and the administration of the provisions of this Act.
(b) The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instrument, computer credit card fraud, futures market fraud, contract scam, etc.;
(c) The co-ordination and enforcement
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of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
(d) The adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime offences or the properties the value of which corresponds to such proceeds;
(e) The adoption of measures to eradicate the commission and financial crimes;
(f) The adoption of measures which include co-ordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
(g) The facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes;
(h) The examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or group involved;
(i) The determination of the financial loss and such other losses by government, private individuals or organizations;
(j) Collaborating with government
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bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning.
(i) The identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;
(ii) The movement of proceeds or properties derived from the commission of economic and financial and other related crimes;
(iii) The exchange of personnel or other experts;
(iv) The establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
(v) Maintaining data, statistics, records and report on persons, organization, proceeds, properties, documents or other items or assets involved in economic and financial crimes;
(vi) Undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effect of economic and financial crimes and advising government on appropriate intervention measures for combating same;
(k) Dealing with matters connected with extradition, depot and mutual legal or other assistance between
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Nigeria and any country involving economic and financial crimes;
7: 1. The Commission has power to;
a. Cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes;
b. Cause investigations to be conducted into the properties of any person it it appears to the Commission that the person?s lifestyle and extent of the properties are not justified by his source of income.
2. In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-coordinating agency for the enforcement of the provisions of.
a. The Money Laundering Act, 2004; 2003 NO. 7, 1995 No. 13.
b. The Advance Fee Fraud and Other Related Offences Act. 1995.
c. The Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Act, as amended;
d. The Banks and Other Financial Institutions Act. 1991. As amended;
e. The Miscellaneous Offences Act; and
f. Any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.
?Section 12
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(1) of the Act creates 5 units for the effective conduct of the functions of Commission and assigned different functions to each unit. The Legal and Prosecution Unit is one of the units.
By virtue of Section 13 (2) of the Act, the Legal and Prosecution Unit is charged with the responsibility for:
(a) Prosecuting offenders under the Act;
(b) Supporting the General Assets Investigating Unit by providing the Unit with Legal advice and assistance whenever it is required;
(c) Conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under the Act;
(d) Performing such other legal duties as the commission may refer to it, from time to time.
The law is settled that in order to discover the real intention of the law maker in enacting a statute, all the relevant sections to the issue in controversy or better still the entire provisions of the statute must be read together. See MOBIL OIL (NIG.) PLC V. IAL 36 INC. (2000) 6 NWLR (PT. 659) 146 AT 168. Where the Supreme Court emphasized a community reading of the provisions of a statute as follows:
?It is an elementary principle and
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fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative in the construction of a section to read together all the sections and paragraphs. This is because the sub-sections or sub-paragraphs may be and are necessarily complimentary to and explains the meaning and scope of the main section of or sub-sections in the same Act.?
A community reading of the provisions of Sections 1, 6, 7 and 13 of the Act clearly confirms that the EFCC has the power to cause investigation to be conducted as to whether any person has committed any offence under the Act or any other law relating to economic and financial crimes including the Criminal Code or Penal Code. The Commission not only has the power to investigate whether any person has committed an offence under any law relating to economic and financial crimes but it also has the power of enforcement
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of such law by virtue of Section 7 (2) of the Act. Section 13 (2) (a) of the Act empowers the Commission to prosecute the offenders under the Act. However, that section is not to be construed in isolation from the other sections. It must be read together with Sections 6 (1) (a) and 7 (f) which empowers the Commission to conduct an investigation as to whether any person has committed an offence relating to economic and financial crimes. Thus the Commission has the power of investigation, enforcement and prosecution of an offence relating to economic and financial crimes under any law, including Criminal Code and Penal Code. That was the position of this Court in AHMED VS. F. R. N. (2009) 13 NWLR (PT. 1159) 536 (CA).
?Section 6 (b) (i) of the Act empowers the Commission to investigate all financial crimes including advance fee fraud and to determine the extent of financial loss and such other loss by government, private individuals or organizations. The law is settled that where the words used in a statute are very clear and unambiguous, the words must be given their ordinary and plain meaning and nothing which is not contained in the statute should be
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imported or read into it. There is nothing in Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 under which the appellant is charged which suggests even remotely that the offences enumerated there under must relate to or be restricted to the economic activities of government and its administration. Section 1 of that Act reads:
1. ?Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
a. Obtains from any other person, in Nigeria or in any other country for himself or any other person; or
b. Induces any other person in Nigeria or in any other Country, to deliver to any person; or
c. Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
2. A person who by false pretence, and with the intent to defraud, induces any other person in Nigeria or in any other Country to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit
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has been or will be paid for commits an offences under this Act.
3. A person who commits an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.”
The word ?Notwithstanding? used in the opening paragraph of Section 1 of the Advance Fee Fraud and Other Related Offences Act has been interpreted in a plethora of authorities as excluding any impending effect of any order provision of the statute or other subordinate legislation. See ADEBAYO & ORS. VS. P. D. P. & ORS (2013) LPELR ? 20342 (SC), NDIC V. OKEM (2004) 10 NWLR (PT. 880) 107. The appellant having been charged for obtaining money with intent to defraud under Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 which the Commission is empowered to investigate and prosecute, the contention of the appellant?s counsel that the offences must relate to the economic activities of government and its administration and not activities of private individuals must fail.
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The appellant?s counsel also contended
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that the Commission is meddling in a private civil contract between two individual persons and trying to collect the debt owed individual persons. I have perused the charges before the lower Court. It is obvious that the matter has gone beyond the realm of a simple contractual relationship between two persons particularly with the allegations of issuance of a dud cheque when he knew that there was no sufficient fund in the account. That and several other allegations of obtaining money with intent to defraud are pure criminal allegations for which the Commission is empowered to investigate and prosecute the appellant.
The appellant?s counsel contended that the instant charge is an abuse of Court process because it was instituted during the pendency of charge No. MAW/1C/2009, C.O.P VS. REV. FR. SILAS NWEKE before the magistrate Court dealing with the same offence, same subject matter and parties. He referred to AHMED VS. F. R. N (2009) 13 NWLR (PT. 1159) 536 (5).
In response, the respondent?s counsel submitted that the charge referred to at the magistrate Court is quite different from the present one being contested, in that while in the
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magistrate Court, there is only one accused person, the present one at the Federal High Court has two accused persons facing thirteen count charge instead of the two counts at the magistrate Court. Moreover, the Magistrate Court does not have jurisdiction to try Offences of Obtaining by false Pretence and Criminal Conspiracy under Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006.
RESOLUTION:
Abuse of Court process in a criminal proceeding was explained by the Supreme Court in AMAEFULE VS. STATE (1988) 2 NWLR (PT. 75) 156 AT 177(B-F):
?Abuse of process of Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. There is nothing on record to suggest that the Attorney General of Imo State in preferring the Information, the subject matter of this appeal, acted from improper motives or was wanting in bona fides. No. It cannot be argued that the information is frivolous and vexatious. But is it not ?oppressive? if not in fact at least in law
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to deprive the appellants their right of election by filing the information not in accordance with Section 18 (e) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 which should have properly terminated charge No HOW/57C/85 and with it the election of the appellants to be tried summarily? The answer to the above question will surely depend on whether abuse of process has in any event to contain the absence of bona fides as its fundamental element. On very careful consideration, I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fides: it has to be improper use of perversion of process after it has been issued. The term abuse has an element of malice on it. It thus has to be malicious perversion of a regularly issued process Civil or Criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby.? See also AHMED V. F.R.N. (SUPRA).
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The elements of malice, want of bona fide, frivolity, vexation and oppression are completely absent in this case. I say so because a careful perusal of
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the two count charge before the Magistrate Court and the 13 count charge before the Federal High Court clearly show that the allegations in the charge before the Federal High Court is that the appellant obtained various sums of money under false pretences from various persons on diverse dates. The charge in the Magistrate Court is in respect of the sum of N990,000.00 allegedly obtained from Patrick Uyanwune in September, 2008 and N830, 000.00 allegedly obtained from Chinedu Ajuluchukwu on 1st August, 2008. The offences contained in the charge before the Magistrate Court are not duplicated in the charge before the Federal High Court. Apart from Patrick Uyanwune and Chinedu Ajuluchukwu from whom various sums of money were allegedly obtained on diverse dates, the appellant is also alleged to have obtained various sums of money on diverse dates by false pretences from Franca Uyanwune, Ifeoma Ajuluchukwu and Francis Okoye and then he is alleged to have issued a bank cheque for N1,200,000.00 (One Million Two Hundred Thousand Naira) when he knew that he had insufficient money in his account. Since the offences in the charge before the Magistrate Court were alleged to
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have been committed on different dates from those alleged offences before the Federal High Court, stricto senso, the charge before the Federal High Court cannot and does not amount to abuse of process of Court. However, it is desirable to have all the charges before one Court and that should be the Court that has the jurisdiction to try all the offences for which the appellant is being charged.
The appellant?s counsel also contended that the charge is contemptuous of the Court because the appellant had obtained Court orders in suit nos. A/MISC/.155/08 from the High Court of Anambra State on 4th December, 2008 and from the Federal High Court, Awka Judicial Division in FHC/AWK/CS/157/2009, REV. SILAS NWEKE VS. PATRICK UYANWUNE & ORS, on 10th June, 2009 that the leave granted to the appellant to apply for the enforcement of his fundamental rights guaranteed under Sections 34, 35 and 46 of the 1999 Constitution of the Federal Republic of Nigeria shall operate as a stay of all actions or matters relating to or connected with the complaint until the determination of the substantive application or the motion on notice.
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The law is trite that no
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Court has the power to prevent the police or other law enforcement agencies charged with investigation and prosecution of offenders from performing their constitutional and statutory duties. No one who is suspected of having committed a criminal offence would be allowed to use the judicial process to shield himself from investigation and eventual prosecution. See IGP AND ANOR. VS. UBA & ORS. (2014) LPELR – 23968 (CA). His Lordship, M.I.Onochie j. of the High Court of Anambra State obviously had this in his mind when he made the order of 4th December, 2008 in A/MISC/.155/08 subject to the right of EFCC to arraign the appellant for trial before any competent Court. For the foregoing reasons, issue 1 resolved against the appellant.
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Issue 2 is whether the appellant?s right of fair hearing was in any way breached. The complaint of the appellant is that he was not notified of the proceedings of 11/11/2011 when the ruling on appeal here was read and therefore he was denied his right to fair hearing. The preliminary objection of the appellant and his co-accused was argued on 18/3/11 and ruling was fixed for 20/5/11. What happened on 20/5/11 is not on
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record. According to both parties, the Court did not sit that day. That is where the parties parted ways. According to the appellant, the clerk of the Court informed him that he would be notified of the date of the ruling when it is ready. The matter was then adjourned sine die. According to the respondent?s counsel parties took the 11/11/11 date off record by consensus. The appellant and his counsel were absent on 11/11/11 but the Court went ahead and read its ruling.
RESOLUTION :
The respondent?s counsel unequivocally agreed that his own narration of what happened on 20/5/11 is not borne out by the record. The law is settled that an appellate Court is bound by the record of proceedings of the lower Court. Unless it is successfully impugned or challenged, the record of proceedings is the only authentic source that an appellate Court must look at to determine what happened at the lower Court.
In the instant appeal, the appellant, his co-accused and appellant?s counsel were all absent in Court on 11/11/11 when the ruling was read. Their absence ought to have put the Court on an enquiry as to whether the appellant and/or his counsel
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had notice that the case was coming up in Court that day especially when that date was far beyond the date originally fixed for the ruling by the Court. The ruling was delivered almost six months after the date originally fixed for it. There is no indication on the record that hearing notice was served on the appellant, his co accused or their counsel. In the absence of proof of service of hearing notice, it is impossible to come to the conclusion that the appellant and/or his counsel knew that the ruling would be delivered on 11/11/11. When an interruption or disruption occurs in the dates fixed for hearing or where a case is adjourned or moved to a date before or beyond a date that the parties have notice of, service of hearing notice is a condition precedent for the continuation or resumption of proceedings on the new adjourned date. See A. G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436. Failure to notify the appellant or his counsel of the new date fixed for ruling after the disruption amount to an infraction of his right to fair hearing more so in criminal proceedings such as the one on appeal where the presence of the accused throughout his trial
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is statutory and mandatory. By virtue of Section 210 of the Criminal Procedure Act (CPA), every accused person shall, subject to the provisions of Section 100 and of Subsections (1) and (2) of Section 223 of the Act, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. In STATE VS. LAWAL (2013) 7 NWLR (PT. 1354) PAGE 565 AT 585 the Supreme Court stated that ?trial means the whole of the proceedings including the judgment and sentence. The Court held as follows at page 586 (D ? E):
It has to be stressed that it is an essential principle of our Criminal Law and Practice in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused and for such purpose trial means the whole of the proceedings including the judgment and sentence. The only exception is where the violent tendencies of an accused person may necessitate the keeping him out of Court in the interest of public safety for peaceful conduct of trial.?
Section 100 of
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CPA provides that:
(1) ?Whenever a magistrate issues a Summons in respect of any offence to which there is annexed a penalty not exceeding one hundred naira N100 or imprisonment not exceeding six months or both such penalty and imprisonment, the magistrate may, on the application of the accused and if he sees reason to do so and shall, on such application when the offence with which the accused is accused is charged is punishable only by a penalty not exceeding one hundred naira (N100), dispense with the personal attendance of the accused provided that the accused pleads guilty in writing or appears and so pleads by a legal practitioner.
(2) The magistrate trying any case in which the accused has been dispensed with may, in his discretion, at any subsequent stage of the proceedings, direct the personal attendance of the accused and, if necessary, enforce such attendance by means of the issue of a warrant to apprehend the accused and bring him before the Court.
Section 223 (1) and (2) of CPA provides that:
(1) ?When a judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect
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that the accused is of unsound mind and consequently incapable of making his defence the judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.
(2) Such investigation may be held in the absence of the accused person if the Court is satisfied that owing to the state of the accused mind it would be in the interests of the safety of the accused or of other persons or in the interests of public decency that he should be absent, and the Court may receive as evidence a certificate in writing signed by a medical officer to that effect that such accused person is in his opinion of unsound mind and incapable of making his defence or is a proper person to be detained for observation in an asylum or the Court may, if it may fit, take oral evidence from a medical officer on the state of mind of such accused person.?
None of the above situations exists here. The absence of the appellant in Court was not by choice. He was denied the right to be present contrary to the provisions of Section 223 (1) and (2) of CPA. In my view the proceedings of 11th November, 2011 including the ruling read
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in the absence of the appellant without service of hearing notice on him/or his counsel is a nullity. Accordingly issue 2 is resolved in favour of the appellant. The ruling of the Federal High Court, Awka Judicial Division delivered in suit No. FHC/AWK/75C/2010 on 11th November, 2011 is hereby set aside. The case shall be remitted to the lower Court for trial de novo before another judge.
Other Citations: (2016)LCN/8710(CA)
