ALHASSAN AUWALU v. FEDERAL REPUBLIC OF NIGERIA(2017)

ALHASSAN AUWALU v. FEDERAL REPUBLIC OF NIGERIA

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.448/2016

RATIO

WHETHER WHERE THERE IS A CONFLICT BETWEEN THE SUBSTANTIVE RULES OF COURT AND THE PRACTICE DIRECTION, THE PROVISIONS OF THE PRACTICE DIRECTION WILL OVERRIDE THE PROVISIONS OF THE RULES OF THE COURT

Now, looking at the provisions of the Court of Appeal Rules 2013 particularly Order 18 Rule 4(1), it is clearly provided thus:- Order 18 4(1) The Respondent shall also within thirty days of service of the brief for the appellant on him, file the respondent’s brief which shall be duly endorsed with an address or addresses for service” It is instructive to note that Rule 1 of Order 18 categorically stated that the Order (i.e. Order 18 of the Rules) shall apply to all appeals coming from any Court or from which an appeal lies to this Court (i.e. the lower Court herein). Apparently, the provisions of Order 9(b) of the Practice Direction 2013 which prescribed 10 days period within which a respondent should serve his brief of argument from the date he received the appellant’s brief of argument, is in conflict with the provisions of Order 18 Rule 4(1) of Court of Appeal Rules. The correct proposition of the law is that the provisions of the Practice Direction cannot override the provisions of the substantive rules of Court from which the authority to promulgate the Practice Direction was derived. PER AMIRU SANUSI, J.S.C.

WHETHER AN APPELLATE COURT CAN DETERMINE AN APPEAL BASED ON THE ISSUES FORMULATED BY A RESPONDENT IN THE APPEAL

I have closely followed the argument raised on this point by the learned counsel for the appellant. His grouse is whether the lower Court was correct in adopting the issues for determination raised in the respondent’s brief of argument filed before it for the determination of the appeal filed before it. Here, I must reiterate that although an appellate Court should be wary of raising or introducing new issues for determination in an appeal before it, however, where the issues raised by the parties before it, appear to it to be inappropriate or inadequate having regard to the grounds of appeal, the appellate Court may, after having referred to the circumstances of the case, identify the relevant issues. In doing so however, it must be extra ordinary careful and cautious so as not to go outside the grounds of appeal filed or issues not canvassed by the parties in their respective briefs of argument. Although generally speaking, an appellate Court will rely on the issues for determination formulated by an appellant in determining his appeal, however, it is my, view, that failure by an appellate Court to be so bound or guided by issues formulated by the parties, does not amount to any injustice or denial of fair hearing especially, in a situation, where the appellate Court regards the issues so formulated by the parties as inappropriate having regard to the grounds of appeal filed. See PETERSIDE v FUBARA (2012) 12 SC (Pt VI) 40; UNITY BANK PLC & ANOR vs BOUARI (2008) 2 – 3SC (Pt 11) 1; ASALU vs DAKAN (2006) 5 SC (pt III) 120. In this instant appeal therefore, I hold the view that the lower Court is entitled to determine the appeal based on the respondent’s proposed issues as none of those issues appeared to have been outside the precinct of the grounds of appeal or were inappropriate to those grounds of appeal. PER AMIRU SANUSI, J.S.C.

WHEN DOES A CRIMINAL TRIAL OF AN ACCUSED PERSON START

It is my considered view that before an accused person is tried, a charge must be framed against him (See Section 185 (B) of Criminal Procedure Code. A trial of an accused person starts when he is arraigned in Court, charge read and explained to him in the language he understands and when his plea is taken. See KAJUBO v THE STATE (1988)3 SC 109; MRS E.A LUFADEJU Vs EVANGELIST BAYO JOHNSON (2007) LPELR SC 43; PER AMIRU SANUSI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

ALHASSAN AUWALU Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment):This is an appeal against the judgment of the Court of Appeal, Abuja division (herein after referred to as “the lower Court”) delivered on 19th of May, 2016 which affirmed the Ruling of the High Court of Federal Capital Territory, Abuja (the trial Court) delivered by M.B. Idris J. on 20th April, 2015.

The facts which gave rise to this appeal are summarised hereunder. On 12th March, 2015, the appellant and one other accused person were arraigned before the trial High Court by the respondent/prosecution on five count charge filed on 13th February, 2015, of course, after the latter obtained leave from the trial Court. The five count charges were contrary to Section 25 (1) (a) and Section 26 (1) (c) of the Corrupt Practices and Other Related Offences Act 2000. Both the appellant and his co-accused pleaded not guilty to the charges when same were read to them and the trial Court thereafter admitted them to bail.

Then on the 16th March, 2015, the appellant filed a motion before the trial Court, praying it to quash the instant charge on three grounds listed below:-

(1) That the charge was incompetent, unconstitutional and void as same violated the provisions of Section 36(6) and (12) of the Constitution of the Federal Republic of Nigeria 1999, as amended, Section 201 of the Criminal Procedure Code and had amounted to grave abuse of process of the Court.
(2) That the charge framed against the accused/appellant was groundless, vexatious and frivolous as it disclosed no prima facie case against the appellant; and
(3) That the said charge Exhibit A was filed before the trial Court granted leave to the prosecution/respondent to so frame it and same was therefore defective and void, as such the proceedings held on 9/3/2015 and the accused appellants purported arraignment on 10/3/2015 on Exhibit A (the charge) are null and void ab intio.

On 10th March 2015, the motion was heard by the trial Court and was adjourned to 20th April, 2015 for ruling. On 20/4/2015, the trial Court delivered its considered ruling dismissing the application and adjourned the matter for continuation of the proceeding in the matter. Miffed by the Ruling of the trial Court, the appellant promptly appealed to the lower Court. The lower

Court after hearing the appeal, dismissed same, vide its judgment delivered on 19/3/2015.

Piqued by the judgment of the lower Court, the appellant has now appealed to this Court. The appellant initially filed two notices of appeal dated 24/5/2015 and 22/6/2016. He later chose to abandon the notice of appeal he filed on 24/5/2015 and relied on the notice of appeal he filed on 22nd June 2016 as his extant notice of appeal. That extant notice of appeal contains twelve grounds of appeal including the omnibus ground of appeal.

In keeping with the rules and practice obtained in this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument dated 1st July 2016 which was settled by Josiah Daniel Ebune Esq was filed on the same 1st July 2016. Out of the twelve grounds of appeal, the appellant proposed four issues for the determination of the appeal which are set out below:-
(A) Whether the Court below was right in failing to resolve the issue of the competence of in (sic) in the respondent’s brief of Argument that was early (sic) filed outside the 10days statutory period prescribed by Order 9(b) of the Court

of Appeal Practice Direction of 2013, without any extended time to do so raised by the appellant and its Brief of argument (Ground 3 of the notice of appeal)
(B) Whether the learned Justices of the Court of Appeal were not in error in entirely adopting the issues for determination as framed by the Respondent in resolving the Appellants appeal when those issues were vague, abstract and without reference to the relevant facts touching the real questions in contoversies upon which the Notice of Appeal was anchored and whether the error has not occasioned a miscarriage of justice. (Grounds 1, 5, 11 and 12 of the Notice of Appeal). (C) whether the learned Justices of the Court of Appeal were right in affirming the trial Court (sic) on the repealed Corrupt Practices and Other Related Offences Act, Cap C 31, Laws of the Federation of Nigeria 2004 which does not provide for the offences as that under which the Appellant is standing charged, on the ground that its previous decisions upholding the constitutionality of the 2000 Act, have not been overruled by the Supreme Court and whether in all the circumstances, the decision has not prejudiced the

Appellant (Ground 5, 8, 9 and 10 of the Notice of Appeal).
(D) Whether the Court below (sic) was fair and not in error in the manner it approached and resolved the Appellant’s complaint on the abuse of Court proceedings arising from the mode and manner the Respondent commenced this instant proceedings at the trial Court having regard to the totality of the uncontradicted evidence on the record in that direction (Grounds 2, 4, 6, 7 and 8 of the Notice of Appeal.)

The respondent on its part, filed its own Brief of Argument on 17/7/2016 wherein it also raised four issues for the determination of the appeal as follows:-
(i) Whether the Court below is duty bound to resolve an issue which was not canvassed in a matter before it.
(ii) Whether the Justices of the Court of Appeal are duty bound to rely on the issues formulated by parties to an appeal.
(iii) Whether the Corrupt Practices and Other Related Offences Act 2000 has been repealed by Corrupt Practices and Other Related Offence Act 2003.
(iv) Whether the Court below was right when it affirmed the mode of commencement of the criminal trial by the trial Court.

RESOLUTION OF ISSUES FOR DETERMINATION
ISSUE NO.1
On this issue, the learned counsel for the appellant submitted that the lower Court was wrong to have entertained the respondent’s brief of argument, which according to him, was filed outside the 10 days period prescribed by Order 9(b) of Practice Direction.

He argued that whenever there is a requirement of law to exercise a certain power, such statutory power must be exercised within the limit or period prescribed by the statute. He stated that practice Direction did not even, make provisions for extension of time for the respondent to file his brief outside the prescribed period. He argued that by allowing the respondent to adopt his brief of argument which was filed outside the period of ten days prescribed by the Practice Direction Order 9(b), his constitutional right of fair hearing was breached.

Then, learned counsel for the respondent while Responding to the appellant’s submissions on this issue, submitted that the appellant had never raised and argued the issue of the competence of the respondent’s brief of argument, even though he had earlier said he was going

to argue that issue. On the issue of Practice Direction raised by the appellant, the learned respondent’s counsel argued that Practice Direction provisions do not override the provisions of the Court’s substantive rules.

Now, looking at the provisions of the Court of Appeal Rules 2013 particularly Order 18 Rule 4(1), it is clearly provided thus:-
Order 18
4(1) The Respondent shall also within thirty days of service of the brief for the appellant on him, file the respondent’s brief which shall be duly endorsed with an address or addresses for service
It is instructive to note that Rule 1 of Order 18 categorically stated that the Order (i.e. Order 18 of the Rules) shall apply to all appeals coming from any Court or from which an appeal lies to this Court (i.e. the lower Court herein). Apparently, the provisions of Order 9(b) of the Practice Direction 2013which prescribed 10days period within which a respondent should serve his brief of argument from the date he received the appellants brief of argument, is in conflict with the provisions of Order 18 Rule 4(1) of Court of Appeal Rules. The correct

proposition of the law is that the provisions of the Practice Direction cannot override the provisions of the substantive rules of Court from which the authority to promulgate the Practice Direction was derived.

The important thing to note however, is that the attempt made by the learned counsel for the appellant to challenge the competence of the respondent’s brief of argument is of no moment, as it was not canvassed anywhere. Similarly, the lower Court was never and was nowhere called upon to make any pronouncement on it. Hence it was never raised in the judgment of the lower Court now being appealed against. See OSHODI v EYIFUNMI (2000) 7 SC P.145. Without much ado therefore, this first issue deserves to be and is accordingly resolved against the appellant.

ISSUE NO.2
This issue deals with whether the lower Court was wrong to have adopted the issue for determination proposed by the respondent in treating the appeal even when according to the appellant, those issues were vague and abstract without touching on the real question in controversy. Further, the learned counsel for the appellant submitted that the

respondent’s issues failed to capture the relevant facts and questions in controversy. He argued also, that the issue did not relate to or touch on the grounds of appeal. See OLOWOSAGO VS ADEBANJO (1988)4 NWLR (Pt 88) 275.

Learned appellant’s counsel further submitted that the entire argument of the respondent failed to provide any answer to the crux of the appellant’s complaint on the validity or otherwise of the existing Act, Cap C31 2004 of the Laws of the Federation of Nigeria and that in spite of the foregoing, the lower Court adopted the respondent’s issues for determination without modifying them in determining the appeal.

He added that all the issues raised by the respondent which were adopted by the lower Court, did not arise from the grounds of appeal because none of them was premised on what the trial Court decided upon as captured by the appellant’s notice of appeal. See UDENGWU VS UZUEGBU (2003) 13 NWLR (Pt. 836)136.

Responding to the above appellant’s learned counsel’s argument on this issue, the respondent’s counsel submitted that issues for determination raised by the appellant are not sacrosanct, hence the

Court is not obliged to adopt issues set down for determination by the appellant. He argued that a Court is entitled to formulate, frame or reframe its issues in order to give it precision and clarity if it appears to it, that the issues so framed by a party or parties are not well framed.

parties in their respective briefs of argument.
Although generally speaking, an appellate Court will rely on the issues for determination formulated by an appellant in determining his appeal, however, it is my, view, that failure by an appellate Court to be so bound or guided by issues formulated by the parties, does not amount to any injustice or denial of fair hearing especially, in a situation, where the appellate Court regards the issues so formulated by the parties as inappropriate having regard to the grounds of appeal filed. See PETERSIDE v FUBARA (2012) 12 SC (Pt VI) 40; UNITY BANK PLC & ANOR vs BOUARI (2008) 2 – 3c (Pt 11)1;ASALU vs DAKAN (2006) 5 SC (pt III) 120. In this instant appeal therefore, I hold the view that the lower Court is entitled to determine the appeal based on the respondent’s proposed issues as none of those issues appeared to have been outside the precinct of the grounds of appeal or were inappropriate to those grounds of appeal.
This issue is therefore hereby resolved against the appellant.

ISSUE NO.3
This issue queries whether the Court below was right when it affirmed the trial Court’s

finding on the alleged repealed Corrupt Practices and Other Related Offences Act of 2000 and void the Act of 2004 which did not provide for the offences under which the appellant was charged.

It was the contention of the learned counsel for the appellant that the appellant ought not to have been tried for the offences which were not contained in that statute. He argued that the Corrupt Practices and Other Related Offences Act, Cap C 31 Laws of the Federation of Nigeria 2004, has expressly repealed the Act of 2000 under which the appellant was charged. He added that the Respondent and the two lower Court’s avoided or refused to address the status of the 2004 Act placed before them for interpretation vis a vis, the repealed Act. He referred to the lower Court’s judgment at page 443 of the record.

In further submission, the learned appellant’s counsel argued that the reasons given by the Court below for dismissing this leg of the appellant’s appeal before it were wrong because the 2004 Act is an existing Act that had not been made subject to any legislation in the circumstance and by Section 55 of the 2004 Act, the question whether the

Court below or the Supreme Court had invalidated the 2000 Act did not even arise. Learned appellant’s counsel then submitted that an amendment of a law or statute is the function of the legislature and the Court can not fill a gap which comes to light by altering the words of a statute to make it read in the way they think. He cited the case of OKUMAGBA Vs EGBE (1965) ALL NLR 62 at 65. He contended that the respondent and the two Court below merely relied on and based their decisions on the transaction or charge framed before coming into operation of 2004 Act which said Act, was never subject of contention. He finally argued that the failure of the Court below to resolve the constitutionality of 2004 Act had breached his right to fair hearing under Section 36 of the 1999 Constitution as amended. He urged that this issue be resolved in his favour.

In his reply, the learned counsel for the respondent in his brief of argument, gave extensive history of the two Acts of 2000 and 2004.

The learned counsel to the respondent pointed out that the National Assembly in an attempt to gag the ICPC which they were not comfortable with

hurriedly and without due process purportedly passed into law the Corrupt Practices and Other Related Offences Act of 2003 and in a letter dated March 17th 2003, with Ref.No.NASS/CAN/115/VOL.4/257 sent the bill to the then President for assent.

In a swift reaction, certain members of the National Assembly challenged the constitutionality of the said 2003 Act in suit No.FHC/ABJ/93/2003. Hon. Bala Kaoje & 4 Ors v N.A. & 13 Ors. Despite the order to maintain a status quo made by Hon. Justice Egbo-Egbo and the letter written to the National Assembly by the then President on the subject matter stating his inability to assent to bill because of pending suit before the Court, yet the National Assembly went ahead to pass the bill into an Act on the 8th May, 2003.

And in a well considered judgment, the Court declared the 2003 Act illegal and unconstitutional and consequently the Act of 2000 which came into effect on the 13th June, 2000 was sanctioned by the Supreme Court in AG ONDO STATE V AG FEDERATION in a judgment dated 7/6/2002 and where it was held that the 2000 Act shall be in force until amended or voided by a valid law made

through due process of law by the National Assembly. He stated further that the Abuja Division of the Court of Appeal reiterated the validity of the 2000 Act in another suit where Peter-Odili JCA (as she then was) held as below:-
Now the bone of contention in this issue is whether or not the Corrupt Practices and Other Related Offences Act 2000 has been repealed The answer to this poser is so simple and straight forward and it is that the Corrupt Practices and Other Related Offences Act 2000 is solidly in existence, it is yet to be repealed.

He therefore submitted that the position of the appellant is a misconception that the Act of 2000 is not in existence. He then urged this Court to hold that that Act of 2000 is valid and subsisting.

It seems to me that the grouse of the appellant’s learned counsel is that the trial Court was wrong in trying the appellant under the 2000 Act which according to him, is non-existent in view the much later Act of 2004 promulgated by the National Assembly. To the appellant’s learned counsel, the 2004 Act did not make provisions of offences on which the appellant stood tried on and

therefore he was tried, on an offence in which no known or existent law made provisions on. I agree with the learned counsel for the appellant that the case of AG. Ondo State vs AG of the Federation & Ors (supra) is not relevant to the instant situation.
That case dealt with the constitutionality of the 2000 Act and the case was even decided before the alleged promulgation of 2004 Act. All that the appellant is saying here is that with the promulgation of the 2004 Act, the 2000 Act became otiose and remain repealed.
Now coming to the controversy on the validity and continue existence of the 2000 Act and of the controversy on the validity of the 2004 Act given supra and submission of the learned respondent’s counsel on whether that Act was validly promulgated which the appellant’s counsel did not controvert in his Reply Brief, if such controversy is something to go by, one will be hesitant in holding that the purported 2004 Act had repealed the 2000 Act.
I am not aware of any case where this Court dealt with the validity of 2000 Act however, I must therefore rely on the unreported case decided by the Court of Appeal, namely FRN

v WABARA (2014) 2 ICPCLR where the issue in controversy was dealt with, in which the Court of Appeal per Mary Odili JCA (as she then was) held thus:-
The appellants counsel not being able to convince one to depart from the finding of the learned trial judge, I go along with that finding without hesitation and also held that the 2000 Act is the valid law and the charge under it cannot be impugned on a point of invalidity of the law of arraignment
It should be noted that both cases cited above were decided after the alleged purported promulgation of the controversial 2004 Act.
In the light of what I started supra, I tend to align myself with the finding of the lower Court that the 2000 Act was a valid and applicable law under which the appellant should be and was rightly charged. This issue is therefore also resolved against the appellant.

ISSUE NO.4
This issue pertains to the way and manner the respondent/prosecution commenced the instant case at the trial Court. It is the contention of the learned counsel for the appellant to prefer the charge was not done in accordance with the

laid down procedure. See ABACHA vs STATE (2002) 11 NWLR (PT.779) 437. The learned counsel complained that the respondent/prosecution did not comply with Section 185 (a) of the CPC and Rule 3 (2) (a) of CPC by filing a charge, serving it on the accused/appellant and arguing the Exparte Application for leave to prefer the charge against the appellant, while he was in dock standing. He cited the case of EFCC vs EKEOCHA (2008) 14 NWLR (Pt.1106)161, 177 778. Learned counsel argued that the non-compliance with Section 185 of CPC by the respondent/prosecution is a fundamental defect which can not be cured and the Court below was wrong to have regarded it as mere irregularity.

Responding, the learned, counsel for the respondent submitted that filing and service of the charge on the appellant and service of the charge on the appellant before leave was sought and obtained are constitutionally permitted if the accused is promptly informed in detail of the nature of the offence and that what the prosecution did was to pre-inform the appellant of the offence which he was charged with to enable him to adequately prepare for his trial.

It was

also submitted on behalf of the respondent that the presence of the appellant in Court before leave was sought and obtained, was allowed by practice Direction adopted by the Court and could not therefore be made a ground of appeal.
He denied that the accused persons were docked when leave was being sought and obtained.

The learned counsel for the respondent on the other hand emphasised that filing and service of the charge on the appellant before leave was sought and granted is constitutionally permitted and is also constitutionally guaranteed provided the accused is informed promptly in detail of the nature of the offence. He insisted that all that the prosecution did was simply to pre-inform the appellant of the offences for which he was charged with to enable him to adequately prepare for his trial.

He argued further, that the presence of the appellant in Court before the leave was sought and granted was approved by the Practice Direction adopted by the Court and cannot therefore be invoked by the appellant as a ground of appeal. He pointed out that the accused persons were never docked when the leave was sought

and granted as they sat in the open Court like any other person and were merely asked to stand up for Court to acknowledge their presence in Court in compliance with Practice Direction of the High Court of the FCT which says “at the time of the prosecution seeking leave to prefer criminal charge, the accused must be present in Court” (See the Practice Direction of 2014 duly signed by Hon Justice Bukar 3(a) (b) & (c).) He argued that the appellant has not shown anywhere in the record, where he was docked before leave to prefer criminal charge was sought and obtained and that filing of charge before seeking leave does not offend the provisions of Section 185 (b) of CPC, but is simply a pre-requisite for seeking leave as prescribed by the said Act. He submitted further, that trial in criminal cases commences when the accused person is docked and the charge read over to him in the open Court and the trial Court it takes his plea. He cited the case ofMRS E.A. LUFADEJU VS EVANGELIST BAYO JOHNSON (2007) LPELR-1795 (SC) where per Onnoghen JSC (as he then was) had this to say;-
Trial in a criminal matter is said to commence with the arraignment which

in turn consist of charging the accused or reading over the charge to the accused and taking his plea”.

He argued that there is no procedural defect on the face of the charge. He urged this Court to resolve this last issue in favour of the respondent and to allow the appeal.

The crux of the complaint by the appellant’s borders on the filing of the charge by the respondent before leave was sought and obtained. His other complaints are the service of the charge and the alleged putting them (accused persons) in the dock (which was even denied by the respondent). It is noted by me, that on page 95 of the record it is shown that the accused/appellant himself admitted that on 12/9/2015, the prosecution moved its Exparte motion for leave to prepare charge against them, shortly before they were arraigned before the Court.
It is my considered view that before an accused person is tried, a charge must be framed against him (See Section 185 (B) of Criminal Procedure Code. A trial of an accused person starts when he is arraigned in Court, charge read and explained to him in the language he understands and when his plea is taken. See

KAJUBO v THE STATE (1988) 3 SC 109; MRS E.A LUFADEJU Vs EVANGELIST BAYO JOHNSON(2007) LPELR-1795 SC 43; In the instant case, it is clear from the record of appeal, that the accused persons including the appellant were in the Court when the respondent moved its Exparte motion to seek leave to frame the charge against them with which they were promptly served their pleas were not taken at that stage, as it was premature to do so. I therefore do not agree with the appellant’s counsel submission when he stated that that amounted to breach of the appellant’s right to fair hearing. Had it been that they were arraigned before the trial Court and their pleas taken before leave was sought and obtained then it may be said to be a breach of his constitution right procedurally. In any case, it is my candid opinion, what had happened in this instant case when the application for leave was sought and obtained was moved in the presence of the appellant in Court is trial. The appellant also did not show in which way he was prejudiced by that act of the prosecution or how miscarriage of justice was occasioned to him. The appellant’s complaint is therefore lacking in substance and

is of no moment. This issue is as well resolved against the appellant. Therefore all the four issues are hereby resolved against the appellant.

In the result, this appeal is adjudged to be unmeritorious and it deserves to be and is hereby accordingly dismissed. The judgment of the lower Court which had earlier affirmed the Ruling of the trial High Court, is hereby also further affirmed.
Appeal is dismissed accordingly.

OLABODE RHODES-VIVOUR, J.S.C.:I have had the advantage of reading in draft the leading judgment of my learned brother Sanusi, JSC. I agree with his lordship that there is no merit in the appeal and it should be dismissed. I would comment on issue 2, It reads:
Whether the learned Justices of the Court of Appeal were not in error in entirely adopting the issues for determination as framed by the Respondents in resolving the Appellant’s appeal when those issues were vague, abstract and without reference to the relevant facts touching the real questions in controversy upon which the Notice of Appeal was anchored and whether the error has not

occasioned a miscarriage of justice.”

The appeal in the Court of Appeal was heard on the issues formulated by the respondent. It has been long settled since appeals were heard on briefs that judges of Appeal Courts have discretion to adopt issues formulated by appellant or the respondent, or reformulate them.
This is geared towards serving the interest of justice and bringing to the fore the real grievance in an appeal. Issues are also reformulated by judges for clarity and to do away with prolixity, thereby enabling the Appeal Court properly determine the appeal. See Abiola & Sons Bottling Co. Ltd v 7up Bottling Co. Ltd (2012) 7SC (Pt.ii) p.83;Okere v State (2016) LPELR 26057;Unity Bank & Anor v E. Bouari (2008) 2-3 SC (Pt.ii) p.1;P.S.H.S.M.B & Anor v Goshwe (2012) 12 SC (Pt.vii) p.90
I have examined the issues formulated by the respondent in the Court of Appeal and adopted by that Court for the hearing of the appeal, and I am satisfied that the issues are better framed than those of the appellant, and clearly serve the interest of justice as they are concise and not contrary to Order 6 Rules 3

and4 of the Court of Appeal Rules.
The burden lies on learned counsel for the appellant to show how adopting the issues formulated by the respondent has led to miscarriage of justice. This he has failed to show and so his complaint is finally put to rest.

For this, and the detailed reasons given in the leading judgment I, too dismiss the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Amiru Sanusi JSC with the judgment that has just been delivered and in the reasoning from which the decision arose. In this support I shall record some remarks.

This appeal arose from the judgment of the Court of Appeal or Court below or lower Court, Abuja Division delivered on the 19th day of May, 2016 which dismissed the appellant’s appeal and upheld the ruling of the trial Court per M.B. Idris J of the FCT High Court, Abuja on the 20th April, 2015.

The background facts of this appeal are well set out in the lead judgment that I shall not repeat them except when it becomes necessary to make reference thereof.

On the 11th day of October, 2017 date of hearing, learned

counsel for the appellant, Josiah Daniel-Ebune Esq. adopted the appellant’s brief of argument filed on 1/7/16 and the reply brief filed on 20/7/16. In the brief of argument were raised four issues for determination which are thus:
1. Whether the Court below was right in failing to resolve the issue of the competence of the Respondent’s Brief of Argument that was clearly filed outside the 10 days statutory period prescribed by Order 9(b) of the Court of Appeal Practice Direction, 2013, without any extended time to do so raised by the appellant in its Brief of Argument (Ground 3 of the Notice of Appeal.)
2. Whether the learned Justices of the Court of Appeal were not in error in entirely adopting the issues for determination as framed by the respondent in resolving the appellant’s appeal when those issues were vague, abstract and without reference to the relevant facts touching the real questions in controversy upon which the Notice of Appeal was anchored and whether the error has not occasioned a miscarriage of justice (Grounds 1, 5, 11 and 12 of the Notice of Appeal).
3. Whether the learned justices of the Court of Appeal were right in

affirming the trial Court on the repealed Corrupt Practices and Other Related Offences Act, 2000 avoiding the extant Corrupt Practices and Other Related Offences Act, Cap C31, Laws of the Federation of Nigeria, 2004 which does not provide for the offences as that under which the appellant is standing charged, on the ground that its previous decisions upholding the Constitutionality of the 2000 Act have not been overruled by the Supreme Court, and whether in all the circumstances the decision has not prejudiced the appellant (Grounds 8, 9, and 10 of the Notice of Appeal).
4. Whether the Court below was fair and not in error in the manner it approached and resolved the appellant’s complaint on the abuse of criminal proceedings arising from the mode and manner the respondent commenced this instant proceedings at the trial Court having regard to the totality of the uncontradicted evidence on the record in that direction (Grounds 2, 4, 6, 7 and 8 of the Notice of Appeal)

For the respondent, Osuobeni Ekoi Akponiminisingha Esq, Deputy Superintendent Legal of the ICPC adopted its brief of argument filed on the 13/7/16. He crafted four issues for

determination so simply and easy to use that I am persuaded to utilise them as drafted in the determination of this appeal. They are thus:
1. Whether the Court below is duty bound to resolve an issue which was not canvassed in a matter before it.
2. Whether the Justices of the Court of Appeal are duty bound to rely on the issues formulated for determination by parties to an appeal.
3. Whether the Corrupt Practices and Other Related Offences Act No.5, 2000 has been repealed by Corrupt Practices and Other Related Offences Act, 2003 Cap C.31 LFN 2004
4. Whether the Court below was right when it affirmed the mode of commencement of the criminal trial by the trial Court.
ISSUES 1 AND 2
1. Whether the Court below is duty bound to resolve an issue which was not canvassed in a matter before it.
2. Whether the Justices of the Court of Appeal are duty bound to rely on the issues formulated for determination by parties to an appeal.

Learned counsel for the appellant contended that a challenge to the jurisdiction of the Court could be based on a averment that the period allowed by the Court to entertain a process has expired.

That a Court is bound by the Rules of Court except where there is an alternative approach, the Court cannot circumvent the strict application of the rules, for Rules of Court are made to be obeyed. Therefore where a Court process should be brought within a stipulated time period and it is filed out of the time, the process would be incompetent unless time is extended by the Court on an express application to do so by the party in default. That a Court is not competent to entertain an incompetent Court process and so by virtue of Order 9(b) and (f) (ii) the Court of Appeal Practice Directions, 2013 the respondents brief was incompetent having been filed out of time. He cited NIPOL Ltd v. Bioku Investment & Pro. Co Ltd (1992) 3 NWLR (Pt.232) 727 at 730; Okeke v Obi-Okoye (1994) 8 NWLR (Pt.364) 610.

He stated on for the appellant that where the exercise of power is statutory such power can only be exercised within the limits prescribed by the statute and go the respondents brief filed outside the 10 days granted by the Practice Direction, 2013 the ensuing incompetence deprived the Court of its jurisdiction to accord recognition to

the respondent’s brief and no provision was made for a remedy. That the Court below erred in not considering the issue when it was raised and so rendered the proceedings without adherence to fair hearing and so the matter should be resolved in favour of the appellant.
He cited Sanusi v Ayoola (1992) 9 NWLR (Pt. 265) 275; Akinnuli v Ayo-Odugbesan (1992) 8 NWLR (pt. 258) 172 at 189; Omoregie v Emovon (1982) 13 NSCC 145 at 146.

Learned counsel for the appellant contended that the Court below erred when it adopted all the issues formulated by the respondent to resolve the appeal when those issues as formulated and promptly attacked as incompetent in the appellant’s brief did not capture the relevant facts and questions in controversy as carefully delineated in the appellant’s Notice of Appeal and respondent had not filed a cross-appeal. He cited Azatse v Zegeor (1994) 5 NWLR (Pt.342) 76 at 83; Buraimoh v Bamgbose (1989) 3 NWLR (Pt.109) 322 at 361; Okwudili v. Obiekwe (1989) 1 NWLR (Pt. 99) 566.

Learned counsel for the respondent, contended that a Court is not bound by law to resolve an issue where its attention is not drawn to it and so

the appellant cannot now bring up the alleged infraction. He cited Jev & Anor. v Iyortyom & Ors. (2012) LPELR-9291.

It was argued for the appellant that the Practice Direction of the Court of Appeal cannot be construed as a statute or Rules of Court. That the Court of Appeal Rules provides for 30 day period for the respondent to file its brief upon service of the appellants brief on him. He cited Order 18 Rule 4, Court of Appeal Rules, 2011. That the Court cannot assist the appellant to argue his brief where he fails to present a point he intends to raise at the hearing of the appeal. He referred to Akinbami v Oando Plc & Ors (2013) LPELR – 21843 p.21.

That the Court is not obligated to adopt the issues set down for determination by the appellant. Also that the Court is at liberty to adopt either of the issues formulated by a party where the issues are arising from grounds of appeal and the Court is entitled to reformulate issues as it seems fit. He cited Unity Bank v. Bouari (2008) 7 NWLR (Pt.1086) 383; Dada v Dosunmu (2006) 9 SCNJ 71.

The long and short of the grouse of the appellant is that the Court below

should have discountenanced the brief of the respondent which was filed outside the 10 days prescribed by the Practice Direction. The respondent tackled that posture by stating that the appellant had not raised the issue at the hearing of the appeal at the Court below and so it is too late in the day now to raise it. Also that the Court below was not obligated to assist the appellant argue his brief.
This matter of the incompetence of the respondent’s brief at the Court below having not cropped up and taking cognisance of the fact that the Court of Appeal Rules precisely Order 18 Rules 4provides for 30 days period for the respondent to file its brief and so with the superior standing of the Rules of Court to a Practice Direction, the matter of incompetence based on the limited 10 days period of the Practice Direction would take a second step below the Rules of Court especially in this case where the perceived irregularity was not raised by the appellant at the right time, See Jev & Anor. v Iyortyom & Ors. (2012) LPELR-9291, (CA); Akinbami v Oando Plc & Ors(2013) LPELR – 21843 (CA).

The appellant also would want the Court to accept

that the Court below erred in not utilizing for the determination of the appeal before it, the issues as crafted by the appellant. That angle put forward by the appellant does not in my humble view represent the law as a Court is not obligated to adopt the issues set down for determination by an appellant as a Court is free to adopt the issues as crafted by either of the parties so long as the issues arise from the grounds of appeal. Again to be said is that a Court is at liberty to reformulate issue or issues from that of any of the parties in order to give it precision and clarity, the condition being that the issue so identified by the Court flow from the grounds of appeal as the Court has to do that which is convenient within the bounds of the law in getting at the answer to the question or questions raised and in so doing, deliver justice. See Unity Bank v Bouari (2008) 7 NWLR (Pt.1086) 383 at 401;Dada v Dosunmu(2006) 9 SCNJ 71.

It is clear from the foregoing that the appellant has not effectively impugned the proceedings at the Court below and has not shown that the lower Court used an incompetent process that is the respondent’s brief in that

Court to consider the case and reach a decision. The issues 1 & 2 are resolved against the appellant.

ISSUE 3 & 4
Whether the Corrupt Practices and Other Related Offences Act No.5, 2000 has been repealed by Corrupt Practices and Other Related Offences Act, 2003 Cap C.3.1 LFN 2004
Whether the Court below was right when it affirmed the mode of commencement of the criminal trial by the trial Court.

Learned counsel for the appellant contended that with the mix up as to the exact legislation under which appellant was charged whether Section the 2004 or 2000 and so his right to fair hearing was compromised. That the two Courts below utilizing the extinct 2000 Act erred seriously and the issue should be resolved in favour of the appellant. He cited Okumagba v. Egbe (1965) ALL NLR 62 at 65; Ovunwo v Dieli (1990) 5 NWLR (Pt.149) 126 at 134 – 135.

In response, learned counsel submitted that the 2003 Act is not in existence at all and that the Act of 2000 is valid and subsisting and so the appellant was validly tried thereby. He cited A. G. Ondo State v A. G. Fed. (2002) 9 NWLR (Pt. 772) 222; FRN v WABARA (2014) ICPCLR 1; Ayuba

Bitrus Bakkat v FRN (2014) ICPCLR 2 at 455.

The leg in the issues herein is the challenge of the appellant that the Corrupt Practices and Other Related Offences Act, 2000 which has dovetailed into the 2004 Act is not the extant law but rather it is the 2003 Act and so the charge which appellant faced was under a no longer existent law should be quashed. When this was raised in the Court below that Court emphatically dispatched the argument by stating as follows:
This issue is straight forward, and requires no rigmarole; this Court earlier held in Ayuba Bitrus Bakkat v FRN (2014) ICPCLR 2 page 455 that:
Now the bone of contention in this issue is whether or not the Corrupt Practices and Other Offences Act, 2000 has been repealed The answer to this poser is so very simply and straight forward and it is that the Corrupt Practices and Other Related Offences Act 2000 is solidly in existence, it is yet to be repealed.. ”It is equally important to bear in mind that this decision was delivered on the 3rd of December, 2013; again this Court also held on the 23rd of February 2015 in the unreported case of Temple Nwankwoala

(DSP) v FRNCA/B/106C/12 Per Barka JSC. It is my candid view therefore that the 2000 Act solidly stands, and the appellant was duly and rightly tried under the 2000 Act, which was the law in force. There does not appear to be any decision of the Supreme Court invalidating the 2000 Act or setting aside any of these decisions referred to here. It would be foolhardy therefore for anyone to assume, least of all this Court, that the 2000 Act is not in force or invalidated, far from it.
The trial Court was therefore correct in the circumstances to hold that the 2000 Act was not repealed in the absence of any decision of the Court of Appeal or Supreme Court setting aside those decisions; accordingly this issue too is resolved in favour of the 1st respondent, against the appellant.
It is necessary to go back in time as to the year 2000 when the Corrupt Practices and Other Related Offences Act was promulgated into law and Section 6 thereof provides as follows:
It shall be the duty of the commission-
(a) Where reasonable grounds exist for suspecting that any person has conspired to commit or has attempted to commit or

has committed an offence under this Act or any other law prohibiting corruption, to receive and investigate any report of the conspiracy to commit, attempt to commit or the commission of such offence and, in appropriate cases, to prosecute the offenders;
(b) To examine the practices, systems and procedures of public bodies and where in the opinion of the commission, such practices systems or procedures aid or facilitate fraud or corruption, to direct and supervise or review of them;
(c) To instruct, advise and assist any officer, agency or parastatals on ways by which fraud or corruption may be eliminated or minimized by such officer, agency or parastatal;
(d) To advise heads of public bodies of any changes in practices, systems or procedures compatible with the effective discharge of the duties of the public bodies as the commission thinks fit to reduce the likelihood or incidence of bribery, corruption and related offences;
(e) To educate the public on and against bribery, corruption and related offences; and
(f) To enlist and foster public support in combating corruption

Section 27(3) of the ICPC Act 2000 stipulates thus:

Where an officer of the commission has reasons to suspect the commission of an offence under this Act following a report made under Sub-section (1) or information otherwise received by him, he shall cause investigation to be made and for such purpose may exercise all the powers of investigation provided for under this Act or any other law.
Indeed an attempt was made in 2003 to pass into law Corrupt Practices and Other Related Offences Act 2003. The National Assembly passed the bill and the then President declined his assent. In a challenge as to its validity, the Federal High Court, Abuja Per Egbo-Egbo J. declared the bill unconstitutional and illegal and went on to declare it null and void and had the said Act struck down and further reiterated the validity of the Corrupt Practices and Other Related Offences Act 2000. That judgment was in the case of Hon. Bala Kaoje & 4 Ors v The National Assembly of the Federal Republic of Nigeria & 13 Ors in suit No. FHC/ABJ/CS/93/2003 delivered on 21st may, 2003.
That position of the Federal High Court has remained the extant situation and followed by the Court of Appeal in

FRN v Wabara (2014) 2 ICPCLR 1; Ayuba Bitrus Bakkat v FRN (2014) 2 ICPCLR 2 page 455 (CA).
It is clear that the appellant was charged within the valid, extant law, the 2000 Act.

On the matter of the timing of the leave sought and obtained by the trial Court, the appellant certainly is taking the Court into the realm of the academic and technical rules as the substantiality of compliance with the rules were met. The appellant as accused person had not been docked or charged before the leave was sought for and obtained from the trial Court. All that happened earlier was as respondent stated that the appellant was made aware of the coming event so he could be prepared and then the leave was sought and having been obtained the charge was initiated with the arraignment.
To refresh the memory, trial of a criminal case commences when the accused is docked and the charge read over to him in open Court and he takes his plea. SeeMrs. E. A. Lufadeju v Evangelist Bayo Johnson (2007) LPELR 43 per W.S.N. Onnoghen JSC (as he then was); Asakitikpi v State (1993) 5 NWLR (Pt.296) 641; Effiom v State(1995) 1 NWLR (Pt. 373) 507 at 582 – 583; MFA v Inongha

(2014) 57 NSQR 24 – 25.

In the main, the issues here raised are resolved against the appellant as they have no leg on which a finding in favour of the appellant can stand.

From the foregoing and the better articulated lead judgment I too see no merit in this appeal. I dismiss the appeal as I abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother Sanusi, JSC and I agree that the appeal herein has no merit and ought to be dismissed.

The facts and back ground of this appeal are well spelt out in the lead judgment of my learned brother. I will not repeat same.

For the purpose of re-stating the view held by my brother on the lead judgment, I will seek to contribute based on the four issues formulated by the learned respondent’s counsel, which have been reproduced in the lead judgment.

ISSUE ONE
Whether the Court below was duty bound to resolve an issue which was not canvassed in a matter before it
The pertinent question to ask is:- was the issue brought before the lower Court by the appellant I seek to

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say that the appellant in his reply brief at paragraph 1.1 said he was going to raise the issue of the competency of the Respondents brief, which he never did when the appeal came up for argument on April, 14. There was nowhere also that the lower Court alluded to the question of competence. It is well settled that an appeal must be based on issue canvassed before the Court and no more.

The law is again as decided in several authorities that there is no duty on the Court to assist an appellant or any party at all to present his case before the Court to the detriment of the other party.

The practice direction cannot also be construed as superior to either statutes or rules of Court.

As rightly submitted by the Respondent’s counsel therefore, the said issue should, without more, be resolved against the appellant.

ISSUE TWO
Whether the justices of the lower Court are duty bound to rely on the issues formulated for determination by parties to an appeal.

Long lines of authorities are settled that a Court is not bound but is at liberty to adopt either of the parties issues as formulated or proceed to formulate its own

for determination, provided however that the issues are arising from the grounds of appeal. The issue could be those by either of the parties also.
Furthermore, a Court is not also under a regimental duty to take all issues canvassed by the parties in the appeal. An appellate Court is at liberty to reformulate issues different from that formulated by parties/counsel in order to give it precision and clarity if it appears that the issues formulated by parties are not well framed.
The said issue two is also resolved against the appellant.

ISSUE THREE.
Whether the Corrupt Practices and Other Related offences Act No.5, 2000 has been repealed by Corrupt Practices and Other Related Offences Act 2003 Cap C.31 LFN 2004.

It is pertinent to state that one of the principal aims of Corrupt Practices and Other Related Offences Act 2000 was to check official corruption and abuse of office by political and public office holders.
Under the said Act, the Independent Corrupt Practices and Other Related Offences Commission was established and its function clearly set out in Section 6. All move to repeal the Act did not yield positive;

hence the 2003 Act contemplated by the appellant is not in existence but rather the 2000 Act, which is extant.
The issue like the other two issues supra are resolved also against the appellant

ISSUE FOUR
Whether the Court of Appeal was right when it affirmed the mode of commencement of the criminal trial by the trial Court.

I wish to say quickly that the filing and serving of the charge on the appellant before leave was sought and granted is constitutionally permitted. The appellant is also guaranteed constitutionally to be informed promptly in detail of the nature of the offence against him. See Section 36(6)(a)(b) of 1999 Constitution as Amended.
What the prosecution did in the case at hand was to pre-inform the appellant of the offences for which he is charged to Court in order to enable him prepare adequately for his trial. The timely service of the charge on the appellant made his counsel to file an application for his bail before his arraignment.
I seek to restate further that by filing of a charge before seeking leave of Court to prefer criminal charge against the appellant did not in any way offend the

provisions of Section 185(B) of CPC Act which states
thus:
No person shall be tried by the High Court unless-
b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court.
Again, the pertinent question to pose at this juncture is; was there any procedural defect on the face of the charge It is intriguing that the appellant did not challenge/arrest this procedure which was adopted by the trial Court at the time the trial began, but took his plea, and he proceeded to make an application for his bail through his counsel.
The appellant, as rightly submitted by the respondent’s learned counsel, did not show any evidence of denial of fair hearing meted out to him by the Court. The argument by his learned counsel, is purely academic.
This Court cannot interfere with the findings of facts made by the two lower Courts in the absence of any cogent reason to do so.

The said issue is resolved also against the appellant and the concurrent findings are held as sacrosanct and also affirmed by me.

With my few words of contribution above, and

while relying on the comprehensive judgment of my learned brother Sanusi JSC. I hereby endorse the lead judgment as mine. I do not find any merit in this appeal. Same is dismissed also by me.

SIDI DAUDA BAGE, J.S.C.:I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me. Judgment of the Court of Appeal Abuja Division is hereby affirmed.

Appearances:

Josiah Daniel-Ebune with him, Yakubu Idris and Charity Akiri For Appellant(s)

Osuobeni E. Akponimisigha with him, Amba Blessing
For Respondent(s)

Appearances

Josiah Daniel-Ebune with him, Yakubu Idris and Charity Akiri For Appellant

AND

Osuobeni E. Akponimisigha with him, Amba Blessing For Respondent