PRINCE ABUBAKAR AUDU v. ATTORNEY-GENERAL OF THE FEDERATION & ANOR
(2010)LCN/4151(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/A/27/C/2007
RATIO
INTERPRETATION OF STATUTES: THE INTERPRETATION OF SECTION 295(2) OF THE 1999 CONSTITUTION AS IT RELATES TO WHEN A FEDERAL HIGH COURT OR A HIGH COURT MAY REFER ANY QUESTION WHICH ARISES IN ANY PROCEEDINGS BEFORE IT, CRIMINAL OR CIVIL, WHICH IN ITS OPINION INVOLVES A SUBSTANTIAL QUESTION OF LAW, TO THE COURT OF APPEAL FOR DECISION
Since the reference by the High Court to this Court which is subject of the dispute in the issue was made pursuant to the provisions of Section 295(2) of the 1999 Constitution, it is the platform on which the issue is to be decided. The Section which was set out in the respective addresses of learned Counsel for the parties is in the following terms:- “295(2) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court and a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so request’ refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.” The above provisions are undoubtedly unambiguous and straight forward such that their purport can clearly be seen without any difficulty. The simple and ordinary language employed in the provisions shows that a High Court, Federal, State or FCT as the case may be, is provided with the constitutional judicial discretion in the first instance, to refer any question which arises in any proceedings before it, criminal or civil, which in its opinion involves a substantial question of law, to this Court for decision. Because the opinion of the High Court on whether or not the question arising in the proceedings before it, involves a substantial question of law is to be made in the course of such proceedings, it involves the exercise by that Court of a judicial discretion vested by the constitutional provisions. By the established principles of law on the exercise of a judicial discretion, such discretion must be exercised both judicially and judiciously at all times. Exercising a judicial discretion judicially imports the consideration of the interests of both sides and weighing them to arrive at a fair or just decision. A consideration of the interests of both sides can only be done when and if both sides were provided equal opportunity to present their side of the case or issues which affect them on a level playing field. Having acted judicially in the above parameters, then comes the judicious exercise of the discretion which simply means proceeding on established principles of law to be applied to the facts and circumstances of a case, showing wisdom, good sense and therefore sound reasoning and judgment. The style to be adopted in the judicial and judicious exercise of a judicial discretion cannot be dictated but generally, the record of the exercise must show that the guidelines established in judicial authorities on the exercise of a judicial discretion were adequately followed. See: EPONINI v. IHEUKO (1989) 2 NWLR (101) 46 at 60 & 61; BEREDUGO V. COLLEGE FO SCIENCE AND TECH. (1991) 4 NWLR (187( 651; UGHELLI SOUTH L.G.C. V. EDOJAKWA (2006) AFWLR (308) 1301 at 1316; CCB V. OKPALA (1997) 8 NWLR (518) 684; EVE V. COP (2008) 4 MJSC, 201. PER MOHAMMED LAWAL GARBA, J.C.A.
INTERPRETATION OF STATUTE: MEANING OF THE WORD “SHALL” AS CONTAINED IN THE PROVISIONS OF SECTION 295(2)
…the provisions of Section 295(2) above, imposed a legal duty, responsibility or obligation on a High Court to make the reference of the question which arises in any proceedings before it to this Court if any party to the proceedings so requested. The use of the word “shall” in the second instance puts it beyond viable legal argument that a command or compulsory directive was intended by the provisions and it does not admit or even envisage an option or choice in compliance therewith. In the recent case of OKOCHE v. ODOGWU (2006) 2 SCNJ 96 at 114, also reported in (2006) 6 NWLR (975) 96 at 89-90, the Supreme Court had stated that – “”shall” is used to express a command or exhortation or what is however before the duty or obligation arises, the High Court must have decided that the question which arises involves a substantial question of law. Put another way, the opinion of the High court must have been reached that the question which arises is one that involves a substantial question of law before the legal obligation to make the reference become compulsory. The opinion of the High court is a condition precedent to both the exercise of the discretion vested and the legal obligation imposed by the provisions of Section 295(2) on the High court to make the reference of the question/s to this court. Under the Section therefore, before a reference can properly be made by the High court to this court in either of the two circumstances, the following factors must be present or satisfied:- (a) that a question or questions must have arisen in the proceedings before the High Court: (b) that the question/s is/are as to the interpretation or application of the Constitution; (c) that the High Court had decided and was of the opinion that the question/s is/are one/s involving substantial question/s of law. See the cases of GAMIOBA v. ESEZI II. ATAKE v. AFEJUKU and BAMAIYI v. STATE cited supra by the learned Counsel for the Applicants/Complainants. PER MOHAMMED LAWAL GARBA, J.C.A.
PROCEEDING: DEFINITION OF THE WORD “PROCEEDING”
In the case of FARDOUN v. MBC INT’L BANK LTD. (2006) ALL FWLR (2971) 130 at 1163, this Court had defined proceedings as follows:- “The word ‘proceeding’ has been defined as meaning the regular and orderly progression of u lawsuit, including all acts and events between the time of commencement and the entry of judgment. The word is usually used to express the business done in courts. In its general sense, proceeding includes all the steps taken in the prosecution or defence of a case, cause or matter including pleadings and entry or delivery of judgment. ” The exact words used in Section 295(2) of the Constitution are “arises in any proceedings” which in simple language mean raised or comes up or which calls for decision in the course or during the conduct of proceedings. For the purposes of the provisions, the question on the interpretation or application of the constitution must have been raised in the course of the proceedings either by the court or any of the parties before a reference to this court can properly be made. If it so arises in the course of the proceedings, the record of such proceedings should show at what stage of the proceedings the question arose and the steps taken by the parties and the Court in making the reference. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
PRINCE ABUBAKAR AUDU Appellant(s)
AND
1. ATTORNEY-GENERAL OF THE FEDERATION
2. ECONOMIC & FINANCIAL CRIME COMMISSION Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The application filed on 13/3/07 was by the Complainants in Charge NO. KG/EFCC/1/2006 preferred against the Respondent/ Accused person before the High Court of Kogi State, In the course of the proceedings in the charge, the Kogi State High Court based on an ex-parte application by the Respondent/Accused person, referred certain questions pursuant to Section 295(2) of the 1999 Constitution to this Court for decision. It is that reference that was given the No.CA/A27C/07 in this Court and in respect of which the aforementioned application was filed seeking the following:-
“1. AN ORDER striking out the questions referred to this Honourable Court for determination pursuant to Section 295(2) of the 1999 Constitution by Hon. Justice M. A. Medupin of the Kogi State High Court in Charge No.KG/EFCC/1/2006.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application was brought as set out therein, are as follows:-
“a. The reference to this Honourable Court by the Lower Court constitutes an abuse of Court process.
b. The Attorney-General of Kogi State and Honoarable Attorney-General of the Federation having exercised their rights under Section 174 and 211 of the 1999 Constitution and Section 253 of the Criminal Procedure Code to discontinue and withdraw charge No. KG/EFCC/1/2006 tltere is no more life issue to be determined by this Court.
c. The reference k academic, speculative and gold digging.
d This Honourable Court lacks the jurisdiction to entertain the reference.
e. The reference was made in breach of the applicants’ right to fair hearing.
f. The proper parties are not before the Court with regards to the reference.”
An affidavit of 20 paragraphs in support, sworn to by Adebisi Adeniyi, a Legal Practitioner in the Law Firm of the learned Counsel for the Applicants was filed along with the application. Certified copies of the following documents were annexed to the affidavit in support:-
(a) A letter of authority dated 3/11/06 from the Hon. Attorney-General of Kogi State for the Honourable Attorney-General of the Federation and the 2nd Applicant herein, to prosecute the Respondent Accused person for offences under the Penal Code, applicable in Kogi State and any appeals arising therefrom. It was marked as Exhibit “AA1” and referred to in paragraph 9 of the affidavit in support.
(b) Nolle Prosequi in case No. KG/EFCC/1/2006 dated 8/2/2007 from the Honourable Attorney-General Kogi State addressed to the Registrar, High Court 5, Lokoja. It was marked as Exhibit “AA2)” and referred to in paragraph 11 of the affidavit in support.
(c) Nolle Prosequi in case No. KG/EFCC/1/2006 dated 8/2/2007 from the Honourable Attorney-General of the Federation, addressed to the Registrar, High Court 5, Lokoja. It was marked as Exhibit “AA3” and referred to in paragraph 15 of the affidavit in support of the application.
A 12 paragraph Counter-affidavit sworn to by Friday Omu, a Clerk in the chambers of the learned Counsel for the Respondent/Accused person, was filed on the 11/4/07 to oppose the application. Pursuant to the order of the Court, learned Counsel for the parties to the application filed written addresses on two issues identified by the Court as follows:-
“1. Whether the reference made pursuant to an ex-parte application dated 25th January, 2007 by Hon. Justice M. A. Medupin in Charge No. KG/EFCC/1/2006 is proper and does not violate the tight of the Complainants/Applicants to fair hearing.
2. Whether the application for referral and the entire charge can subsist where a nolle prosequi has been entered by the Attorney-General of the Federation und the Attorney-General of Kogi State in Charge No. KG/EFCC/1/2006.”
The Applicant/Complainant’s address settled by Mr. Rotimi Jacobs, Esq. was filed on the 18/5/07 while the Respondent/Accused person’s written address settled by Abdullahi Haruna, Esq. was filed on 14/4/2010 and deemed filed on the 4/5/10.
On the 2/11/10 when the application came up for hearing in Court, Mr. Rotimi Jacobs, learned Counsel who appeared for the Applicants/Complainants adopted the written address filed on 18/5/07 as the submission in support of the application and urged us to strike out the questions referred to the Court for being an abuse of process since there was no longer any live issue to be determined because the charge to which the reference relates, has been discontinued by both the Honourable Attorney-General of Kogi State and Honourable Attorney-General of the Federation pursuant to the provisions of Sections 174 and 211 of the 1999 Constitution respectively.
Since the issues in the application were identified by the Court, I would review and determine it on the submissions made by learned Counsel in their respective written address.
Issue One:
For the Applicants/Complainants, after the facts of the ex-parte application for reference before the High Court were set out, it was submitted that Section 295(2) of the 1999 Constitution allows the Court to make reference to this Court on application by either of the parties or suo motu. It was however argued that before reference can be made in either of the two instances, the High Court must be satisfied that:-
(i) the question involves the interpretation or application of the Constitution;
(ii) the question must arise in the proceedings in connection with an issue before the Court making the reference;
(iii) the matter for reference must involve a substantial question of law. The Court must determine the substantiality of the question.
The cases of GAMIOBA v. ESEZI II (1961) 2 SCNLR 237 and BAMAIYI v. ATTORNEY-GENERAL OF THE FEDERATION (2001) 12 NWLR (727) 408 among others were cited on the position.
Further, that the consideration of the above principles and findings of the Court as to the satisfaction of the requirements to qualify as a decision under Section 318 of the 1999 Constitution that may affect the right of the parties in criminal proceedings and so by the provisions of Section 36 of the Constitution, the parties must be heard before the decision to make reference could be made or taken. It was pointed out that Section 295(2) of the Constitution and the Criminal Procedure Code did not provide the procedure a party must adopt in the application for references and that what has been guiding lower Courts in making reference is Order 2 of the Court of Appeal Rules, 2002. That from a community reading of Order 2, Rules 1, 3 and,4, the parties to be affected by reference must be heard before such reference was made. Learned Counsel said the case of FEDERAL REPUBLIC OF NIGERIA v. IFEGWU (2003) 15 NWLR (642) 113 heavily relied on by the Respondent/Accused person is no authority that the application for reference can be made ex-parte because the application in the case was by a motion on notice as clearly stated at page 172 of the report. He insisted that the Applicants/complainants are saying that their right to fair hearing has been breached by the High court when it made the reference ex-parte without affording them a hearing.
Furthermore, that if they had been heard, the High Court would have discovered that the questions referred did not arise from the proceedings since by Exhibit “AA1”, the requisite authority to prosecute the Respondent/Accused Person was duly granted in accordance with the law. OWOH v. R. (1962) NSCC: ANYEBE v. STATE (1986) 1 NSCC 37 at 38-40; A.G. KADUNA STATE v. HASSAN (1988) 2 NWLR (8) 483 and EMELOGU v. STATE (1988) 1 NSCC 869 were relied on the submission and it was contended that it is clear from Section 295(2) of the Constitution that before reference is made, the question/s must have arisen in the course of the matter and not ones which may prove unnecessary to decide since the Court would not decide academic issues or questions. Reliance was placed on BAMAIYI v. ATTORNEY-GENERAL OF THE FEDERATION (2000) 6 NWLR (601) 421 at 426; OBAYOGE v. OYOWE (1994) 5 NWLR 340 637, inter alia for the submission. Once again, the case of FEDERAL REPUBLIC OF NIGERIA v. IFEGWU (supra) was said by learned Counsel to be inapplicable here because the Applicants/Complaints were not heard and it led to a miscarriage of justice. Finally, that the reference violated the Applicants/Complaints right to fair hearing and was improper since justice is not only for the accused person but also to be done to the prosecution and the public as stated in JOSIAH v. STATE (1985) 1 NWLR (1) 125 at 141. ‘We were urged to reverse the decision.
For the Respondent/Accused person, learned Counsel relying on the statement of Ayoola, JSC at page 201, B.F. of the report of the FEDERAL REPUBLIC OF NIGERIA v. IFEGWU case (supra) submitted that it is quite relevant and applicable to the determination of the Issue One since the Applicants/Complainants have alleged that they were not heard before the reference was made ex-parte by the High Court. According to learned Counsel, the procedure for making the application for reference is inherent in Section 295(2) of the Constitution and was set out in the FEDERAL REPUBLIC OF NIGERIA v. IFEGWU case by Tobi JSC. That Order 2, Rules 1, 2, 3 and 4 of the Court of Appeal Rules, 2002 (now Order 5 Rules 1, 2, 3 and 4 of the Court of Appeal Rules, (2007) have to be interpreted in line with the guidelines in that case and that they applied to an order of reference already made, but did not make reference to the format of making an application for reference. It was the further submission of learned counsel that the Supreme court had disposed with finality, the issue of making a reference without hearing the other parry in the case of FEDERAL REPUBLIC OF NTGERIA v. IFEGWU and that the case had decided the following principles:-
“a. where a question is referred to a superior court for determination, at that stage, same does not amount to u determination of a civil right and obligation of any of the parties within the contemplation of Section 36(1) of the CFRN 1999.
b. That being the case, where an order for reference is made without a party being heard, that in itself does not vitiate or adversely affect the proceedings.
c. Were an application for reference is made by any of the parties to the suit, it is no longer a matter of discretion but that of an obligation for the Judge to make the order of reference.
d. No miscarriage of justice can be said to have occurred where the substantial question of law concerning the application of the Constitution raised for determination via reference, had arisen in the proceedings.”
It was the case of the learned Counsel for the Respondent/Accused that in the instant application, the facts set out below are unassailable:-
“1. A question, involving substantial issues of law pertaining to the application of the CFRN 1999 was referred to the Court of Appeal for determination.
2. The application for reference was made ex-parte by the Respondent herein.
3, Flowing from 1 and 2 above and having regard to the principles laid down in FRN vs. IFEGWU (supra) the trial court was under an “obligation” to make un order of reference upon the application of the Respondent.
And such order of reference does not amount to a determination of a civil right and obligation upon which an allegation of lack of fair hearing may be founded.”
He then argued that the questions referred by the High Court to the Court arose from the proceedings before it in that they relate to the counts in the charge as well as the provisions of Sections 315(1) and 286 of the 1999 Constitution. Further that the questions referred to the Court are on substantial issues of law concerning the application of the relevant sections of the Constitution and since the reference was made under 529(2) on the authority of FEDERAL REPUBLIC OF NIGERIA v. IFEGWU (supra), the High Court was under an obligation to make the reference even though the application for the reference was made ex-parte. We were urged to so hold and answer the Issue One in the affirmative.
I would pause here to determine the Issue before a consideration of the submissions by the learned Counsel on Issue Two. Since the reference by the High Court to this Court which is subject of the dispute in the issue was made pursuant to the provisions of Section 295(2) of the 1999 Constitution, it is the platform on which the issue is to be decided.
The Section which was set out in the respective addresses of learned Counsel for the parties is in the following terms:-
“295(2) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court and a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so request’ refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.”
The above provisions are undoubtedly unambiguous and straight forward such that their purport can clearly be seen without any difficulty. The simple and ordinary language employed in the provisions shows that a High Court, Federal, State or FCT as the case may be, is provided with the constitutional judicial discretion in the first instance, to refer any question which arises in any proceedings before it, criminal or civil, which in its opinion involves a substantial question of law, to this Court for decision. Because the opinion of the High Court on whether or not the question arising in the proceedings before it, involves a substantial question of law is to be made in the course of such proceedings, it involves the exercise by that Court of a judicial discretion vested by the constitutional provisions. By the established principles of law on the exercise of a judicial discretion, such discretion must be exercised both judicially and judiciously at all times. Exercising a judicial discretion judicially imports the consideration of the interests of both sides and weighing them to arrive at a fair or just decision. A consideration of the interests of both sides can only be done when and if both sides were provided equal opportunity to present their side of the case or issues which affect them on a level playing field.
Having acted judicially in the above parameters, then comes the judicious exercise of the discretion which simply means proceeding on established principles of law to be applied to the facts and circumstances of a case, showing wisdom, good sense and therefore sound reasoning and judgment.
The style to be adopted in the judicial and judicious exercise of a judicial discretion cannot be dictated but generally, the record of the exercise must show that the guidelines established in judicial authorities on the exercise of a judicial discretion were adequately followed. See: EPONINI v. IHEUKO (1989) 2 NWLR (101) 46 at 60 & 61;
BEREDUGO V. COLLEGE FO SCIENCE AND TECH. (1991) 4 NWLR (187( 651;
UGHELLI SOUTH L.G.C. V. EDOJAKWA (2006) AFWLR (308) 1301 at 1316;
CCB V. OKPALA (1997) 8 NWLR (518) 684; EVE V. COP (2008) 4 MJSC, 201.
In the second instance, the provisions of Section 295(2) above, imposed a legal duty, responsibility or obligation on a High Court to make the reference of the question which arises in any proceedings before it to this Court if any party to the proceedings so requested. The use of the word “shall” in the second instance puts it beyond viable legal argument that a command or compulsory directive was intended by the provisions and it does not admit or even envisage an option or choice in compliance therewith. In the recent case of OKOCHE v. ODOGWU (2006) 2 SCNJ 96 at 114, also reported in (2006) 6 NWLR (975) 96 at 89-90, the Supreme Court had stated that –
“”shall” is used to express a command or exhortation or what is however before the duty or obligation arises, the High Court must have decided that the question which arises involves a substantial question of law. Put another way, the opinion of the High court must have been reached that the question which arises is one that involves a substantial question of law before the legal obligation to make the reference become compulsory. The opinion of the High court is a condition precedent to both the exercise of the discretion vested and the legal obligation imposed by the provisions of Section 295(2) on the High court to make the reference of the question/s to this court. Under the Section therefore, before a reference can properly be made by the High court to this court in either of the two circumstances, the following factors must be present or satisfied:-
(a) that a question or questions must have arisen in the proceedings before the High Court:
(b) that the question/s is/are as to the interpretation or application of the Constitution;
(c) that the High Court had decided and was of the opinion that the question/s is/are one/s involving substantial question/s of law.
See the cases of GAMIOBA v. ESEZI II. ATAKE v. AFEJUKU and BAMAIYI v. STATE cited supra by the learned Counsel for the Applicants/Complainants. It may be recalled that the primary complaint of the Applicants/Complainants was that the question referred by the High Court to this Court did not arise in the proceedings and that in deciding to make the reference ex-parte, their right to fair hearing was breached. I would determine the first limb of the complaint, that is that the questions referred to this court on the 26/1/07 did not arise in the proceedings in the charge before the High Court.
From the initial record of the reference transmitted to this court on 6/2/07, which do not have pagination or are not paged, all that are contained therein are copies of documents as follows:-
(1) Statement of the reference and the questions referred to this Court, signed by the Judge and dated the 31/10/07.
(2) Application for leave to prefer a charge under Section 185(b) of the Criminal Procedure Code dated 30/11/06 signed by M.S. Hassan, Assistant Chief State Counsel for the Honourable Attorney-General of the Federation which was accompanied by a verifying affidavit and 80 Count charge along with list of witnesses all signed by the said M.S. Hassan.
(3) Motion Ex-parte dated the 25/1/07 and filed on 2/2/07 for inter alia, an order of the High Court for reference of the questions set out in the Schedule ‘A’ thereto, to this Court. The motion was signed by Mamman Mike Osuman, SAN and supported by an 8 paragraph affidavit, and lastly,
(4) Enrolled Order of the High Court making the reference of the questions in the ex-parte Motion, to this Court dated the 26/1/07.
The above represent the entire record of the reference made by the High Court on 26/7/07 to this Court.
With ease, it can be observed that the documents listed above are the initiating processes of the criminal proceedings before the High Court and the ex-parte application upon which that Court made the reference under Section 295(2) of the Constitution.
The question that agitates itself here is, did the questions referred by the High Court on the 26/1/07 arise in the proceedings before that Court for them to have been properly referred to this Court under the Constitutional provisions? Before attempting to answer the question, it is expedient to refer to the definition of what proceedings are. In the case of FARDOUN v. MBC INT’L BANK LTD. (2006) ALL FWLR (2971) 130 at 1163, this Court had defined proceedings as follows:-
“The word ‘proceeding’ has been defined as meaning the regular and orderly progression of u lawsuit, including all acts and events between the time of commencement and the entry of judgment. The word is usually used to express the business done in courts. In its general sense, proceeding includes all the steps taken in the prosecution or defence of a case, cause or matter including pleadings and entry or delivery of judgment. ”
The exact words used in Section 295(2) of the Constitution are “arises in any proceedings” which in simple language mean raised or comes up or which calls for decision in the course or during the conduct of proceedings. For the purposes of the provisions, the question on the interpretation or application of the constitution must have been raised in the course of the proceedings either by the court or any of the parties before a reference to this court can properly be made. If it so arises in the course of the proceedings, the record of such proceedings should show at what stage of the proceedings the question arose and the steps taken by the parties and the Court in making the reference.
As demonstrated from the record of the reference by the High Court here, there is no record that any proceedings of the High Court had been conducted in the charge apart from the filing of the charge and the motion ex-parte for the reference. I find no other record of proceedings in the course of which the questions referred to this court arose before the High court, the reaction of the parties and the decision of that Court to make the reference. Perhaps I should point out that “crises in any proceedings” do not mean or even contemplate the formulation of questions by parties and asking the High Court by way of an application ex-parte that they be referred to this Court even before the trial in the charge effectively started. The course of the trial or proceedings during which or in the course of which such questions could properly arise for the purpose of Section 295(2) had not even commenced and so the questions formulated and submitted to the High Court vide an ex-parte application did not and cannot seriously be said to have arisen in the proceedings in respect of the charge before that Court. See: OBAYOGIE v. OYOWE (1994) 5 NWLR (346) 637 and GAMBIOBA v. EZE (supra), In the case of BELLO v. A.G. LAGOS STATE (2000 ALL FWR (324) 1954 at 1981, paragraphs D-E it was held that:
“All the questions proffered for reference therefore were questions formulated and brought to Court by the Applicants, in the absence of any processes filed by the Defendants. The measure taken in my humble opinion is pre-emptive, premuture and without conclusive deduction. As rightly submitted by the learned Respondents’ Counsel, the questions sought for referral have not arisen in the course of proceedings before the lower Court.”
As far as the reference made on the 26/1/07 by the High Court was concerned, the question stated therein did not arise in the course of the proceedings but ones which were formulated and submitted to that court by the learned Senior Advocate, ex-parte for reference and which with “eyes off the ball”, the High Court obliged him. For that reason I am in agreement with Mr. Jacobs, learned Counsel for the Applicants/Complainants that the questions referred by the High Court on 26/7/01 did not arise in the proceedings in charge preferred against the Accused/Respondent for the purposes of Section 295(2) of the Constitution.
It may be remembered that I had earlier stated that before a reference can properly be made by a High Court under the said provisions to this Court, the question/s to be referred must have arisen in the course of the proceeding. Where such question/s did not arise in the proceedings, as in the present case, any reference would not or cannot be proper, but purported under Section 295(2) for failure to fulfil a condition that is precedent to such reference.
In the result, I answer the 1st limb of the complaint in the negative that the reference made ex-parte on the 26/1/07 by the High court in Charge KG/EFCC/1/2006 was not proper reference under Section 295(2) of the 1999 Constitution.
With the resolution of the 1st limb of the Applicants/Complainants grievance against the reference, the 2nd limb has been overtaken by that decision and it has been rendered unnecessary. Since I have found that the reference was not proper, then the question whether or not the Applicants/complainants right to fair hearing was breached is neither here nor there for being merely academic in the issue.
In fact my resolution of the above issue has subsumed the Issue 2 which has the improper reference as its central focus and so the duty to consider it is abated. See:
BALOGUN v. LABIRAN (1988) 3 NWLR (80) 66 at 80; COOKEY v. FOMBO (2005) 5 SC (II) 102 at 111:
UZUDA v. EBIGAH (2009) 15 NWLR (1163) 1 at 22.
On a closer look, Issue 2 did not appear to me to have been distilled from the reference, the record of which is the relevant material for the determination of this application and relief sought therein by the Applicants/Complainants. The issue talks about the application for referral and the charge before the High Court. Whether or not nolle prosequi was entered in the charge was not apart of any of the questions referred to this Court by the High Court which form the basis of the present application. That question is in the circumstances, not relevant to the determination of the Applicants’ application. I should say no more on it.
In the final result, because the questions referred by the High Court on the 26/1/07 did not arise in the course of the proceedings in the Charge No. KG/EFCC/1/2006 before that Court, the reference was not proper under Section 295(2) of the Constitution and the order therefore is hereby set aside. Consequently, the application succeeds and is granted in terms of prayer I on the face of the motion paper. The questions referred to this Court are struck out. There shall be no order on costs.
JIMI OLUKAYODE BADA, J.C.A.: I agree.
REGINA OBIAGELI NWODO, J.C.A.: I have been privileged to read in draft the Judgment of my learned brother GARBA, J.C.A. just delivered. I agree with the reasoning contained therein and the conclusion arrived thereat. I abide by the Order on cost.
Appearances
Abdullahi Haruna, with OjebiyiFor Appellant
AND
Rotimi JacobsFor Respondent
