In The Supreme Court of Nigeria
On Friday, the 13th day of April, 2018
Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
UKIRI EMONENA BLESSING – Appellant
FEDERAL REPUBLIC OF NIGERIA –Respondent
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Port Harcourt Division or Court below or lower Court delivered on the 13th December, 2013, remitting the case to the trial Court for hearing de novo before another Judge.The facts of the case would be briefly stated from the different sides of spectrum.
On 19th October, 2007, the Economic and Financial Crime Commission (hereinafter called “the EFCC”) received a petition at pages 79-81 of the supplementary Record of Appeal written by a Law Firm, Charles Eduzor and associates on behalf of one CHIEF SAMUEL ONOWIGHOSE (hereinafter called “the petitioner”) calling for investigation of the Appellant. The thrust of the petition is that the petitioner secured a judgment against Nigerian Agip Oil Company Ltd in consolidated suits No. PHC/755/94 and PHC/403/95 to the tone of 24,000,005.00 (twenty four million, five thousand naira) with 10% as interest until the said judgment sum is paid. When the Nigerian Agip Oil Company Ltd (Judgment debtor) refused to pay the said judgment sum, the petitioner proceeded by Garnishee proceedings against the judgment debtor and their Banker (UBA PLC) as Garnishee in suit No.PHC/421M/2004 by which he obtained Garnishee Order Nisi on 1st December, 2004 which was made absolute on 17th January, 2005 at pages 82-83 and 84 of the supplementary record of appeal respectively.
The UBA Plc (the Garnishee) also refused to pay over the said Garnishee sum to the petitioner in obedience to all the said Garnishee Order Absolute. In order to enforce the said Garnishee Order Absolute against UBA Plc (the Garnishee), the petitioner engaged the services of the appellant with express instructions at pages 92 and 93-94 of the Supplementary Record respectively that the payment of the judgment sum should be made in his (petitioner’s) name. In furtherance of this brief, the appellant instituted a Garnishee proceeding in suit No: PHC/1405/2006 against the Banker of UBA Plc (i.e. the Central Bank of Nigeria hereinafter, called “the CBN”) as Garnishee and obtained Garnishee Order Nisi and absolute at pages 95-96 and 97 of the Supplementary Record against CBN on 14th November 2006 and 19th February 2007 respectively.
At the time the judgment was executed on CBN, the judgment sum (24,000,005.00) plus the accrued interest of 10% rose to 62,128,415.00 only (Sixty two million, one hundred and twenty eight thousand, four hundred and fifteen Naira) which the CBN paid albeit a fraudulent diversion of the said sum by the appellant to his Law Firm, (E.B. Ukiri & Co) Diamond Bank account against the express instructions of the petitioner to both the CBN and appellant that the money be paid in his name and/or directly into his (the petitioner’s) First Bank Plc account which the petitioner furnished the appellant and CBN. See pages 100-101 and 93 respectively of the Supplementary Record and also against the clear and unambiguous order in the Garnishee Absolute Order that “CBN pay to the judgment creditor/Garnishor the money thereby attached” as is glaring ex-facie the Garnishee order Absolute at page 97 of the Supplementary Record. The petitioner never at anytime agreed with the appellant nor did the Garnishee order absolute direct the CBN to pay the Garnisheed sum through the appellant or his Law Firm.
Upon receipt of the petition, the EFCC immediately commenced investigation into the allegation therein, the appellant and many others were interrogated at different times and the appellant made statements under caution at pages 212-227 of the Supplementary Record of Appeal to the commission. In the course of investigation, it was discovered amongst other things that:-
(a) The said consolidated suits No.PHC/755/94 and PHC/403/95 given rise to the judgment debt and Garnishee proceedings (suits No. PHC/421M/2004) against the judgment debtor’s Bankers (i.e. UBA Plc) was prosecuted by different Lawyers other than the appellant and last before the appellant being one Charles Eduzor Esq., who took over the brief from another Lawyer one ECN lgbokwe Esq.
(b) Before the said Charles Eduzor Esq. took over the brief from ECN Igbokwe Esq. he did an official letter dated 30/3/2006 to ECN Igbokwe Esq. in accordance to the Ethics of the Legal Practice on taking over of brief from a colleague to inquire if he has been properly debriefed by the petitioner to which he (ECN lgbokwe Esq.) responded by a letter dated 10th April, 2006 stating that the petitioner was owing him N350,000.00 as unpaid fees and N200,000.00 as loan allegedly obtained at the instance of the petitioner to execute the judgment which said claims of N200.000.000.00 alleged loan, the Petitioner denied and disputed in a letter to E.C.N Igbokwe Esq. dated 1st August 2006.
(c) It was after Charles Eduzor Esq. and not ECN Igbokwe Esq. that the appellant was briefed by the petitioner to prosecute the execution of the judgment debt plus interest on agreed fees by both parties at 20% of the judgment sum confirmed in a letter dated 29/9/2006 and further correspondence to the effect increasing the appellants legal fees from 20% to 25% subject to CONDITIONS therein.
(d) Against the express instruction of the petitioner both to the appellant and CBN and also against the express wording of
the Court judgment that the sum be paid to the Creditor/Garnishor, the judgment sum plus interest (i.e. N62, 128, 415, 00) was paid by CBN in obedient to the said Court order albeit surreptitious diversion of same by the appellant into his Law Firm Diamond bank Account which he is the sole signatory.
(e) From the said 62,128,415.00 paid by CBN into his (Appellant’s) Law Firm Diamond Bank Account, the appellant only remitted 24,000.005 (Twenty four million, five thousand naira only) to the petitioner and withheld balance 38,123,415.00 (thirty eight million, one hundred and twenty three thousand, four hundred and fifteen naira) which the appellant claimed in his letter to the petitioner dated 11th April, 2007 at page 49 of the Record of Appeal that the sum was withheld by him; in view of the dispute over the interest element, the pending appeals and motion thereof, on your entitlement to interest or otherwise on the said debt, the accrued interest would be released to you, subject to your furnishing an indemnity, guaranteed by a reputable Bank in Port Harcourt, of your irrevocable undertaking to refund the interest on the judgment debt, …. The above condition are mandatory if you require the funds to be released to you before the determination of the said appeals and motions.
This said claim by the appellant in the referred letter is contrary to his latter claims that the withheld sum represents his appellant’s and his colleagues fees.
(f) Rather as soon as the said N62,128,415.00 was paid by the CBN into the appellant’s Law Firm Diamond Bank Account on 3/4/2007, the appellant started dissipating and misappropriating same without any notice of the payment to the petitioner, by using up and trading in said judgment sum save for the sum of N24,005,000 (twenty four million, five thousand naira) the appellant managed to pay to the petitioner on the 10th day of April, 2007 (a week) after CBN paid the money to him.
While this investigation was on going, the appellant filed suit no. FHC/ABJ/CS/280/2008 against the EFCC and the petitioner at the Federal High Court, Abuja Division where the counsel to the EFCC on 13th November, 2008 during one of the proceedings told the Court that EFCC will not do anything that will affect the plaintiff as regards the facts of this case.
At the end of the investigation in 2012, the EFCC convinced that there was substance in the allegation in the petition and a prima facie case disclosed against the appellant, filed a 3 count charge of Money Laundering contrary to Section 14 (1) (a) of the Money Laundering Prohibition Act 2004 against the appellant.
The appellant was arraigned before the trial Court on the three count charge of Money Laundering and the appellant pleaded not guilty to the said three count charge on 15th October, 2012. Therefore, the appellant by a motion on notice dated 10th November, 2012 and filed on 20th November, 2012 sought from the trial Court the relief therein, pages 4-5 of the Record of Appeal. In support of the application is a 49 paragraph affidavit sworn to by the appellant himself with about 28 documentary exhibits annexed to the affidavit, pages 6-98 of the Record of Appeal refers.
The respondent filed a 68 paragraph counter affidavit sworn to by one Bukie Augustine, one of the members of the team that investigated the petition giving rise to the charge, pages 1-78 of the Supplementary Record and annexed to the said counter affidavit are several documentary exhibits marked EFCC1-538, pages 79-286 of the Supplementary Record. The motion on notice was heard on 7th March, 2013 and Ruling reserved for 30th May, 2013. Before the adjourned date (30th May, 2013) for the Ruling, precisely on 16th April, 2013, the respondent realizing that proof of evidence was inadvertently omitted to be filed along with the charge when the charge was filed on 27th September, 2012, filed proof of Evidence with documents annexed thereof which are the same with Exhibits EFCC1-EFCC 52B attached to the respondents counter affidavit in opposition to the appellant’s motion to quash which was served on the appellant. A copy of the Endorsement and return copy of the proof of evidence is at pages 287-292 of the Supplementary Record. The Ruling was however, not delivered on 30th May, 2013 until 13th December, 2013. The trial judge dismissed the application of the applicant now the appellant, refused the request to quash the three count charge. Aggrieved by the decision, the appellant appealed to the Court of Appeal (hereinafter called “the Court below”).
At the Court below, on 31st January, 2014 the appellant filed a motion on notice for the appeal to be set down for hearing and determination on the appellant’s brief alone.
The respondent filed two motions on notice on 5/2/2014 and 9/5/2014 on pages 494-523 and 524-585 of the Additional Record of Appeal challenging the competence of the appeal and jurisdiction of the Court. On 7/4/2014, the appellant filed counter
affidavits on pages 393-400 and 401-406 of the Record of Appeal to both motions to which the respondent filed a further Affidavit on pages 407-409 of the Record of Appeal in reply to the appellant’s counter affidavit. On 14/5/2014, the respondent withdrew the two motions filed on 5/2/2014 and 9/5/2014 and the appellant also withdrew his motions filed on 31/01/2014.
Because the appellant omitted and failed to include in the Record of Appeal complied and transmitted to the Court below some vital documents necessary for the hearing, the respondent had to transmit additional Record on 3/6/2014 and the respondent’s brief. On 3/6/2014 it filed motion for extension of time to transmit Additional and filed respondent’s brief of argument on pages 444-449 of the Record of Appeal. On 4/6/2014, the appellant filed Reply Brief to the respondent’s brief on pages 450-454 of the Record of Appeal where he adequately responded to the Preliminary Objection argued by the Respondent in the Respondent’s brief. On 5/6/2014, the Court below granted the respondent’s motion for extension of time and the appellant’s prayer to deem his Reply Brief as properly filed and served. Both parties thereafter adopted their respective briefs and judgment was then delivered on 9th July 2014.
In a judgment delivered on 9th July, 2014 on pages 458- 487 of the Record of Appeal, the Court below struck out 7 of the 14 grounds of Appeal and also struck out 11 of the 12 issues formulated by the appellant but still upheld the appeal of the appellant on the only survived single issue and remitted the case to the trial Court to be heard afresh before another judge of the Federal High Court Port Harcourt Division. Aggrieved by the decision, the appellant has now appealed to this Court.
The hearing took place on the 17th day of January, 2018 at which date, Eko Ejembi Eko Esq. of counsel for the appellant adopted his brief of argument settled by the appellant himself who raised two issues for determination, viz:-
(i) Were the learned Justices of the Court of Appeal right in considering and upholding the respondent’s Preliminary Objection which had been withdrawn and struck out by the Court of Appeal?
(ii) Were the learned justices of the Court of Appeal right in remitting the case to the trial Court for hearing without considering and determining the merits or otherwise of the appellant’s motion to quash/dismiss charge No: FHC/PH/247C/2012, thereby violated the appellants right to fair hearing.
Learned counsel for the respondent adopted its brief of argument filed on 30/10/2015 and in it distilled two issues for determination which are as follows:-
(i) Whether in the absence of a formal filing of a separate Preliminary Objection by the respondent in the Court below, the learned Justices of the Court of Appeal were right in considering the Preliminary Objection argued in the Respondent’s brief of argument to which the appellant adequately responded by filing Reply Brief.
(ii) Whether the learned Justices of the Court of Appeal were bound to consider on the merit the appeal having considered and declined jurisdiction.
For ease of reference, I shall utilize the issues as crafted by the appellant and together.
ISSUES 1 & 2
These ask the question whether the Court of Appeal was right in considering and upholding the respondent’s preliminary objection which had been withdrawn and struck out earlier by the same Court. Also if the Court below was right in remitting the case to the trial Court without determining the merits or otherwise the appellants application to quash or dismiss the charge which violated the appellant’s right to fair hearing.
Canvassing the stance of the appellant, learned counsel contended that on 14/5/2014 respondent’s counsel voluntarily withdrew the two motions filed on 5/2/2014 and 9/5/2014 which were then struck out. That it was the same motion of 5/2/2014 struck out that respondent argued in their brief as a Preliminary Objection and so the issue argued by respondent was not a live issue. That the respondent did not comply with the procedure for raising a preliminary objection in the Court of Appeal and so the Court below ought to have discountenanced that objection. That a preliminary objection can only be valid and competent when it challenges the entire appeal and not against one or more grounds of appeal as was done by the respondent and upheld by the Court below. He relied on prince Emeka & Ors v Lawson (2000) 10 NWLR (pt. 722) 723
at 735-736; Order 10 Rule 3 of the Court of Appeal Rules, 2011; Adejumo & Ors v Olawaiye (2014) 12 NWLR (pt.1421) 252 at 279; Jev & Anor v lyortyom & Ors (2014) 14 NWLR (1428) 575 at 618-619.
Learned counsel for the appellant submitted that having allowed the appeal and set aside the decision of the trial Court, the Court of Appeal ought to have invoked their general powers under the Court of Appeal Act to determine the appellant’s motion and prayers Nos. (ii) and (iii) in the appellants Notice of Appeal especially when the consideration/determination of the application did not involve the taking of oral or further evidence. That the Court below was wrong to have ignored the appellant’s motion to quash/dismiss Charge No. FHC/PH/247C/2012. FRN v E. B. Ukiri Emonena Blessing.
It was further contended that the lower Court’s failure to determine the appellant’s motion on Notice to quash/dismiss the charge and/or reliefs (ii) and (iii) sought by the appellant has violated the appellant’s right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that is fatal to that part of the decision of the Court of Appeal. That the failure to quash/dismiss the charge before remitting the “case” for accelerated hearing is a violation of the appellant’s right to fair hearing. See Alhaji lbrahim-Ohida & Ors v Mil. Adm. Kogi State & Ors (2000) 12 NWLR (Pt.680) 24 at 43; Foods & Commodities Ltd v Aremu (1990) 2 NWLR (Pt.134) 554 at 564.
For the respondent, learned counsel stated that the contention of the appellant that he was arraigned without due process or any investigation or proof of evidence is misleading and not supported by any fact. That byOrder 10 Rule 1 of the Court of Appeal Rules, 2011 a respondent intending to rely on a preliminary objection to the hearing of an appeal is required to file and serve such objection on the appellant at least three clear days before the hearing of the appeal. That the provision is not mandatory as it gives the Court latitude on whether to entertain the objection or not. He cited Majekodunmi v WAPCO Ltd (1992) 1 NWLR (Pt.264) 574; Maigoro v Garba(1999) 10 NWLR (Pt. 624) 555 at 570-571.
That though the respondent withdrew the preliminary Objection filed on 5/2/2014, that was not a bar to having the Preliminary Objection arguments in the respondent’s brief to which the appellant reacted with the Reply Brief on 4th of June, 2014 and so it is not correct to posit that the Court below should have discountenanced the arguments in the Brief of the respondent. He cited Agbaka v Amadi (1998) 11 NWLR (Pt.572) 16 at 25.
It was contended for the respondent that at least what occurred was a procedural irregularity which would not vitiate the proceedings. He referred to Odua Investment Co. Ltd. v Talabi (1997) 10 NWLR (Pt.116) 387 at 405; Odock v State (2007) 7 NWLR (Pt.1033) 369 at 386.
That the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011 could apply to any preliminary objection challenging the hearing of an appeal whether in whole or in part. He cited Ajide v Kelani (1985) 3 NWLR (Pt.12) 248 at 250.
Learned counsel for the respondent submitted that an appellant in the Court below must succeed on the strength or merit of the grounds of appeal canvassed in the appeal and not on the absence of a respondent’s brief to answer to those issues. He cited Ajonye v Nwachukwu (2011) LPELR 3677 (CA).
He submitted that the Court below considered the merits of the appeal on the surviving ground of appeal hence it was able to reach the conclusion and decision to remit it for retrial. That the lower Court upon deciding that it lacked jurisdiction over the incompetent grounds of appeal and issues distilled therefrom was done with the case and it was unnecessary to consider other issues in the appeal. He relied on F. C. D. A. v Sule (1994) 3 NWLR (Pt.332) 256 at 282; Ikechukwu v FRN (2015) 3 MJSC (Pt. 1) 123 at 144-145.
Briefly the stance of the appellant is that the Court below was not right in upholding the Preliminary Objection of the respondent which had been voluntarily withdrawn and struck out by the same Court on the 14/5/2014. That the striking out of the eleven issues which had been crafted for determination was wrong and caused a miscarriage of justice. That the Court below ought to have considered the motion for the quashing of the charge against the appellant and this leads to the violation of the appellant’s right to fair hearing.
Taking a contrary position, the respondent contends that the Court below struck out only seven of the fourteen grounds of appeal and set down the surviving seven grounds of appeal for consideration and determination. That lower Court in doing so also took into consideration the issues as distilled by the appellant from all the grounds including the dead and surviving grounds of appeal and held that only one of the issues, that is issue 10 framed from ground twelve of the grounds of appeal for determination are afflicted by the viruses of proliferation and defilement and therefore struck them out accordingly.
Consequently the appeal was then considered and determined on that only surviving issue 10.
The Court below stated in that regard thus:-
“The only issue left and salvageable from the mass rubble here is issue ten which is the only issue that is valid for consideration in this appeal from the issues framed by the appellant with this concurrence of the parties, I shall now set down this issue ten framed by the appellant for consideration in this appeal. The issue read………”
Also in the grouse of the appellant is that he was arraigned without due process or any investigation or proof of evidence which contention is not borne out of the record.
The appellant was charged to the trial Court at the conclusion of investigation into the allegations in the petition and a prima facie case disclosed against him with proof of evidence filed. In investigating the said allegations against the appellant in the petition, several persons amongst whom is the petitioner, one Oko Obike, the appellant himself were interviewed and/or interrogated and extra-judicial statements obtained from them by the EFCC. Several documents were also received from persons, bodies, Banks and/or Agencies some of which are attached to the respondent’s counter affidavit filed at the trial Court in opposition to the appellant’s motion to quash now at pages 79-286 of the Supplementary Record. The extra-judicial statements made under caution by Oko Obike and the appellant to the EFCC in the cause of the investigation are in pages 197-198 and 210-226 of the Supplementary Record respectively. And at the trial Court, the respondent also filed proof of evidence in respect of the charge and same was served on the appellant and the documents constituting the proof of evidence are the same with Exhibits EFCC 1-EFCC52B attached to the counter affidavit filed by the respondent in opposition to the appellant’s motion to quash at the trial Court.
A copy of the Endorsement and Return copy of the said proof of evidence on which one Emeka Njoku Esq. of E. B. Ukiri & Co, a law firm of the appellant acknowledged receipt of the said proof of evidence is at pages 2878-292 of the Supplementary Record. Though, inadvertently the heading of the list of exhibit in the proof of evidence is erroneously captioned “in the High Court of Bayelsa State”, all the forty-eight (48) documents listed therein which includes the extrajudicial statement of the appellant, are the same with those attached to the counter affidavit in serial number 1 of the index to the Supplementary Record and are in respect of the petition and charge filed against the appellant. This inadvertent error in the proof of evidence is not fatal as the appellant is not misled by it as all the documents listed therein are in respect of the petition against him and the error can be rectified by the prosecution by way of an amendment of the proof of evidence or charge which can be done at any time before judgment.
See Section 163 of the Criminal Code Act.
Again to be noted is that the appellant took exception to the absence of a formal and separate Preliminary Objection by the respondent in the Court below and that the Court of Appeal Justices ought not to have considered the Preliminary Objection brought in and argued in the respondent’s brief of argument to which the appellant had responded by a Reply brief properly filed. The position of the appellant on that score is not supported by the relevant rules of Court particularly Order 10 Rule 1 of the Court of Appeal Rules 2011 which provided for such an objection coming to the notice of the appellant at least three clear days before the hearing of the appeal. It has not stipulated that such notification not
being formally filed as preliminary Objection cannot be entertained.
This is so as Order 10 Rule 1 of the Court of Appeal Rules 2011 is not mandatory as it gives the Court latitude on whether to entertain the objection or not and especially since the matter relating to the jurisdiction of the Court can be placed before Court formally or informally, jurisdiction being a thresh-hold matter and the lifeblood of any suit and the attitude or policy stance of Court is that however the Court is to be sure it has jurisdiction, whatever the route of arrival of the concern is allowed. See Order 10 Rule 3 of the Court of Appeal Rules 2011; Majekodunmi v WAPCO Ltd (1992) 1 NWLR (Pt.264) 574; Ante v University of Calabar 2001 3 NWLR (Pt.700) 239 at 251. Though the cases were decided on the prevailing rule of Court of 1981 being Order 3 Rule 15 (3) Court of Appeal Rules 1981 being impari materia with the current Order 10 Rule 3 of the Court of Appeal Rules 2011 are applicable to the case in hand. Therefore incorporating the arguments on the objection in the respondent’s brief of argument settled the issue of whether or not the appellant was put on notice and not ambushed. The situation is all the more clear that there was no surprise and nothing hidden and appellant well aware with more than the three day notice prescribed and prepared for the attack when he filed the Reply Brief in response to the Objection. The matter was settled thereby. I place reliance on Maigoro v Garba (1999) 10 NWLR (Pt.624) 555 at 570-571; Agbaka v Amadi (1998) 11 NWLR (Pt.572) 16 at 25.
The situation was not changed on account of the respondent withdrawing and having the Preliminary Objection formally filed and which was subsequently struck out, since the Preliminary Objection argued in the Brief of Argument of the respondent remained extant and moved when the respondent adopted and relied on that objection’s arguments and the arguments in the brief of argument.
Another way of putting across what I am labouring to say is that the non-compliance with the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011 in view of Rule 3 of the said Order 10 and this because the non – compliance is not fatal being a mere irregularity and could be waived by the other side and clearly from the record the appellant waived it. The focal point in whether or not the Preliminary Objection could be considered is if the other side was notified or not. Since in this instance the appellant was well in the picture and had gone along to respond on it settled the controversy of compliance with the Rule of Court. Also necessary to place on record is the fact that assuming the manner of presenting the preliminary objection was procedurally wrong, the appellant by not confronting it at the material time slept on his right and the proceedings went on uninterrupted with the alleged irregularity till the end, he cannot now come up with the complaint at this stage. See Odua Investment Co. Ltd v Talabi (1997) 10 NWLR (Pt.523) 1 at 22; Saude v Abdullahi (1989) 4 NWLR (Pt.116) 387 at 405.
It is to be noted that by the provision of Order 10 Rule 1 of the Court of Appeal Rules, 2011 any preliminary objection could be used to terminate an appeal in part or in its entirety. That has been also provided by Order 2 Rule 9 of the Supreme Court Rules 1985 impari materia with Order 10 Rule 1 of Court of Appeal utilised in the case of Ajide v Kelani (1985) 3 NWLR (Pt.123) 248 at 250; Odock v State (2007) 7 NWLR (Pt.1033) 369 at 386.
I shall restate excerpts of the judgment of the Court of Appeal per Adah JCA thus:-
“so far, my Lords, of the fourteen grounds of this appeal, seven grounds which are grounds 1, 4, 7, 9, 12 and 13 are grounds of law. These seven grounds do not require leave to give them life in this appeal. They already have life by virtue of Section 241 of the Constitution so they are competent and confer jurisdiction on this Court to look into them. There are however seven other grounds remaining which are grounds 2, 3, 5, 6, 10, 11 and 14. These are grounds of mixed law and facts and grounds of facts. These seven grounds do require leave of this Court or the trial Court to have life……. So those seven grounds which are grounds 2, 3, 5, 6, 10, 11, and 14 are incompetent grounds and this Court has no jurisdiction to entertain them. It is now a case of “seven alive and “seven dead” or 50/50.”
For further clarity, the Court below had stated:-
“In the instant case, grounds 2, 3, 5, 6, 10,11 and 14 being grounds of facts are incompetent because the appellant did not secure leave to appeal on facts in this interlocutory appeal…. By the combined operation of Section 241 and 242 of the 1999 Constitution an appellant in an interlocutory decision of the High Court must obtain leave to appeal on grounds of facts and mixed law and facts. Consequently, grounds 2, 3, 5, 6, 10, 11 and 14 of the instant appeal being grounds of mixed law and facts, and of facts are incompetent grounds. These are hereby struck out. Any issue raised covering these grounds would also be incompetent and would be struck out. However, grounds 1, 4, 7, 8, 9, 12 and 13 are grounds of law and are competent. From
the content of these grounds, they can sustain this appeal.
……. The grounds that are competent and can sustain this appeal as I earlier found are hereby set down for consideration. The merit of this appeal will therefore now be considered on these seven grounds.”
As I had earlier stated in this judgment that lower Court at the end considered the only surviving issue 10 after striking out the other issues as incompetent and being afflicted in various ways by the defilement in the grounds of appeal.
The appellant had sought that the Court of Appeal after setting aside the decision of the trial Court and ordering a remitting of the case to the trial Court for rehearing before another judge ought to have gone on to attend to and pronounce on all the issues raised in the appellant’s motion on notice to quash/dismiss the charge before remitting the case and that this was a violation of the appellant’s right to fair hearing. The position of the appellant is not sustainable since the Court of Appeal had declined jurisdiction over the incompetent grounds of appeal and the issues distilled from those grounds and so it was unnecessary to descend into other issues in the appeal. I place reliance on F.C.D.A. v Sule (1994) 3 NWLR (Pt.332) 256 at 282; Ikechukwu v FRN (2015) 3 MJSC (Pt.1) 123 at 144-145.
In conclusion and from the foregoing, I see no basis for interfering with what the Court of Appeal did and find no merit in this appeal which I dismiss as I affirm the judgment and orders of the Court below.
OLABODE RHODES-VIVOUR, J.S.C.: I read a draft copy of the leading judgment delivered by my learned brother, Peter-Odili JSC. I agree that the Court of Appeal was correct. The appeal is accordingly dismissed.
The judgment of the Court of Appeal is affirmed.
AMIRU SANUSI, J.S.C.: I read in draft form the lead Judgment prepared by my learned brother Mary Peter-Odili JSC just delivered. His lordship has ably addressed all the salient issues raised by learned counsel in this appeal.
I am in entire agreement with the reasoning and the conclusion she arrived at that this appeal lacks merit and therefore deserves to be dismissed.
In his argument, the appellant’s learned counsel frowns at the lower Court’s resolve to remit the case to the trial Court for rehearing by another Judge. His view is that the lower Court should have determined all the issues in the motion he filed seeking the quashing of or dismissal of the charge before remitting it to the trial Court.
To my mind, the irony of that request by the appellant’s counsel is that the Court would be pre-emptive of what may come up from the rehearing of the case by the trial Court. If the lower Court accedes to his request it will render the remittance order for rehearing nugatory as the lower Court would have pronounced its stance even before the result of final determination of the case by the new trial Judge after the latter gives Judgment one way or the other. In my view, the lower Court was right in refusing to accede to that request of the learned appellants counsel in that regard.
In the result, for these few comments and the fuller and more detailed reasoning in the leading Judgment, I also adjudge this appeal unmeritorious. It is accordingly dismissed by me. I too affirm the Judgment and consequential order made by the Court below. Appeal dismissed.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment delivered by my learned brother, PETER-ODILI, JSC, and I agree with him that the Appeal lacks merit and should be dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Mary Ukaego Peter-Odili, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.
EKO EJEMBI EKO –For Appellant
A. I AROGHA with him, Ifeanyi Agwu, legal Officer of EFCC – For Respondent