ARTHUR KALU DEDE v. THE STATE (2012)

ARTHUR KALU DEDE v. THE STATE

(2012)LCN/5810(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2012

CA/OW/228/2011

RATIO

APPEAL: NATURE OF RAISING SUO MOTU

It therefore means that a court is not totally excluded from raising any issue suo motu. Thus the effect of raising an issue suo motu without giving the parties an opportunity to react therein will depend on the issue raised. Where the issue raised suo motu by the lower court affects the jurisdiction and competence of the court to adjudicate on the matter before it, the proceeding will be a nullity. However, where the issue raised is on a matter which is merely procedural and so does not affect the jurisdiction and competence of the court to adjudicate on the matter before it, an appellate court will be reluctant to nullify the proceeding or have same set aside. On the whole however, the course an appellate court will take will ultimately depend on whether the decision of the lower court occasioned a substantial miscarriage of justice. It also depends on the facts of the particular case under consideration. See B.O.N. V. OJEBA (1993) 4 NWLR (pt.289) pg.597 at 604;. AKPUNONU v. BEKAERT OVERSEAS LTD. (1995) 5 NWLR (pt.393) pg.42; ANATOGU v. ANATOGU (1993) 6 NWLR (pt.552) pg.42; 8 NWLR (pt.209) p9.295 and REG. TRUSTEES OF AMORC V. AWONIYI (SUPRA) at pg.177. The burden is on an Appellant to show that the error committed by the trial court occasioned a miscarriage of justice. PER HARUNA M. TSAMMANI, J.C.A.

WORDS AND PHRASES: MEANING OF AN APPEAL

It is trite law that, an appeal is a complaint against the findings and decision of a lower court. PER HARUNA M. TSAMMANI, J.C.A.

Before Their Lordships

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANIJustice of The Court of Appeal of Nigeria

Between

ARTHUR KALU DEDE v. THE STATEAppellant(s)

AND

THE STATERespondent(s)

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of K. C. Nwamkpa; J of the Abia State High Court sitting at the Ohafia Judicial Division delivered on the 6th day of May, 2011.
The brief background facts of this case is that, the Appellant and 8 (eight) others were arraigned before the High Court of Abia State sitting at Ohafia on an Information alleging the offences of murder, kidnapping, conspiracy, etc. However, by a motion on notice dated and filed the 14/4/2010, the Appellant who was the 3rd Accused person on the charge, 4th, 5th and 6th Accused persons prayed the lower court for:

AN ORDER:
Quashing all counts in the Information preferred against the Applicants on the following grounds:
(i) No prima case is disclosed against the Applicants.
(ii) The Information constitutes an abuse of the court’s process having regard to Suit No: FHC/UM/M/86/2009-EZEOGO ONWUBIKO IKPO & ORS v. THE ATTORNEY-GENERAL OF ABIA STATE & 2 ORS.
(iii) The Information is unconstitutional and prejudicial.
(iv)The Information is void for non-compliance with Statutory provisions of sections 5, 6, 7 and 8 of the Criminal Procedure (Miscellaneous Provisions) Edict 1974 (Edict No. 19 of 1974).

AND FOR SUCH FURTHER orders or orders as the court may deem fit to make in the circumstances.

To effectually hear and determine on the motion, parties filed and exchanged written Addresses and the Application was subsequently heard on the 14/5/2010, when parties adopted their written Addresses. The learned trial Judge adjourned Ruling on the Application to the 28/6/2010. However, as shown by the record, Ruling could not be delivered till the 06/5/2011, which is a period of over one year since the Application was heard. The learned trial Judge could not deliver Ruling on the Application on the said 06/5/2011, but held as follows:
“In the final analysis, the hearing and determination of this motion as well as proceedings with the Hearing of Charge No.HOH/1C/2010 are hereby stayed pending the determination of the Application of the 4th, 5th and 6th Accused/Applicants before the Federal High Court in Suit No: FHC/UM/M86/2009. Consequently, this motion and charge No:HOH/1C/2010 are hereby adjourned sine die until the determination of Suit No.: FHC/UM/M86/2009 before the Federal High Court, Umuahia.”
In essence therefore, the trial High Court did not rule on the Application before it, but proceeded to adjourn the Ruling on the Application and hearing of the substantive Charge No: HOH/1C/2010 pending before it, sine die or till the 4th, 5th and 6th Accused/Applicants’ Application then pending before the Federal High Court, Umuahai was determined. The Appellant who was the 3rd Accused/Applicant in that motion, was dissatisfied with the decision of the lower court thereon, and therefore filed this appeal.
The Notice of Appeal which was dated the 19/5/2011 and filed 20/05/2011 is based on three Grounds. They are hereunder reproduced follows:

GROUND ONE
The learned trial Judge erred in law when rather than determining the objections raised by the 3rd Accused/Applicant to the counts in the information he held as follows:
“The hearing and determination of this motion, as well as proceedings with the hearing of Charge No: HOH/1C/2010 is hereby stayed pending the determination of the application of the 4th, 5th and 6th Accused/Applicants before the Federal High Court in Suit No: FHC/UM/M86/2009.”‘

PARTICULARS OF ERROR
(i) The court had a duty to rule on the objections raised by the Appellant.
(ii) The court abdicated its duty by refusing to rule on the application before it on which it had received argument.
(iii) The court suo-motu raised the issue of staying proceeding the determination of the Application filed by the 4th, 5th, and 6th Applicants before the Federal High Court and determined it without hearing from the Appellant or any other party.
(iv) The Appellant is not a party to the Application at the Federal High Court and the basis of his objection has nothing to do with the proceedings there.
(v) The decision of the court is in the circumstances perverse and has occasioned a miscarriage of justice.

GROUND TWO
The learned trial judge erred in law when he refused to quash the counts in the Information.

PARTICULARS OF ERROR
(i) There was no prima facie case disclosed against the Appellant in the information before the court.
(ii) The information is unconstitutional, pre-judicial and void for non-compliance with the statutory provisions of Sections 5, 6, 7 and 8 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974.
(iii) The court breached its judicial function by refusing to quash the counts in the Information thereby occasioning a miscarriage of justice.

GROUND THREE
The ruling of the learning trial judge is a nullity having been delivered in gross violation of the provisions of 294 (a)(sic) of the 1999 Constitution.

PARTICULARS OF ERROR
(i) The application was heard on the 4th day of May, 2010.
(ii) The ruling of the court was delivered on 6th day of May, 2011 a period of more than 12 months.
(iii) Because of the passage of time, the court lost sight of the fact that the Appellant was not a party to the case at the Federal High Court which oversight has caused a miscarriage of justice.
(iv) In spite of the unpardonable and unexplained delay (12 months), the court caused a grave miscarriage of justice by refusing to rule on the merits of the objection but chose to suo-motu stay proceedings pending the determination of the matter at the Federal High Court which the Appellant was not a party to.
The judgment is against the weight of evidence.
As required by the Rules of this Court the parties filed and exchanged. Briefs of Argument. The Appellant’s brief was dated the 22/8/2011 and filed the 29/8/2011. The Respondent’s brief of Argument was dated the 10/11/2011 and deemed filed the 14/3/2012.
From the three (3) Grounds of Appeal, the Appellant nominated three(3) issues for determination as follows:
i) Whether the learned trial judge was right to have suo motu stayed proceedings in respect of the motion to quash the information on which it had taken argument. (Ground 1).
ii) Whether the court below was right not to have quashed the information (Ground 2).
iii) Whether the judgment of the lower court is a nullity. (Ground 3).
Similarly, the Respondent formulated three issues for determination in page 1 of the Respondent’s Brief of Argument. They are:
1) Whether the court below was right not to have quashed the counts in the Information as it affected the Appellant.
2) Whether the trial judge has really delivered the final Ruling in this case by staying proceedings suo motu to warrant the Ruling to be a nullity.
3) Whether the learned trial judge was right to have suo motu stayed the proceedings in respect of the motion to quash the counts in the information as it affected the Appellant.
Having studied the issues as formulated by the parties, it is my view that this appeal can be properly determined on the issues as formulated by the Appellant. In that respect, I proceed to the resolution of the issues with issue (i) as nominated by the Appellant.
The argument of learned Senior Counsel for the Appellant are contained in pages 2 – 6 of the Appellant’s Brief of Argument. Therein, learned senior counsel for the Appellant quoted from the Ruling of the learned trial Judge at pages 352-353 of the record to submit that there is no basis for the course taken by the learned trial Judge. That by the decisions in ONYEKWULUJE v. ANUMASHAUN (1996) 2 NWLR (Pt.439) pg.637; ANI v. NNA (1996) 4 NWLR (Pt.440) pg.101 and BRAWAL SHIPPING CO. (NIG.) LTD v. F. I. ONWADIKE (2000) 6 S.C. (Pt.11) pg.133, the law is settled on the issue. Learned senior counsel then submitted that the trial court breached its duty to rule on the legal objections raised by the Appellant, which objections the court had received detailed argumentation and the breach amounted to an unfair hearing. That the reason taken by the trial court for the course it took are of no moment, because in the first place, the Appellant was not a party to the case at the Federal High Court and so his right to a determination of his objection could not be tied to the matter before the Federal High Court. That worse is that, the court suo-motu raised the issue of stay of proceedings pending the suit before the Federal High Court and determined it on his own without hearing from any of the parties. He then cited the case of REGISTERED TRUSTEES OF AMORC v. AWONIYI (1994) 7 NWLR (Pt.355) pg.157, to submit that, the action of the trial court led to a miscarriage of justice.
Learned senior counsel for the Appellant further contended that, the learned trial Judge’s action in abandoning the arguments made by the parties, and suo motu raising the issue of stay of proceedings, and proceeding to resolve same to the detriment of the Appellant without hearing from him was perverse and therefore a travesty of justice. That it is more damning considering that it took the learned trial Judge a period of one year to come up with its unfounded decision, while the court was aware that the Appellant was in prison custody, and was ordered to be returned to prison without determining whether there was any basis for bringing him to court in the first place. That the Appellant was to remain in prison custody to await the determination of the matter at the Federal High Court, which did not concern him in any way while his legal objections to the Information leading to his detention remained unattended to. He then submitted that his act is unjust and condemnable.
Learned Chief State Counsel for the Respondent contended that, a court of competent jurisdiction is not totally inhibited from raising issues suo motu. That it can raise any issue suo motu, if it is in the interest of justice to do so. It was then submitted that a trial Judge can raise any issue suo motu and resolve it without giving an opportunity to the parties to react to the issue by way of address where the issue raised will determine the fortunes of the case one way or the other. The mere fact that an issue is raised suo motu by the court and resolved without hearing the parties does not necessary vitiate the proceedings. He cited a plethora of cases including EWHRUDJE v. WARRI L.G.C. & ANOR (2005) 7 NWLR (pt.924) pg.334; CARRIBEAN TRADING & FIDELITY CORP. V. NNPC (1992) 7 NWLR (Pt.252) PG.161; OGUNBIYI V. ISHOLA (1996) 6 NWLR (Pt.452) pg.12; STIRLING CIVIL ENG. (NIG.) LTD. v. YAHAYA (2005) 11 NWLR (pt.935) pg.181, etc, in support. It was then submitted that in the instant case, the trial court was right to have stayed the proceedings suo motu. That there has been no miscarriage of justice.

The law is that if in interest of justice, a technical point is raised suo motu by a trial court, the proper course to take is to invite all counsel to the suit to address the court on the point so raised suo motu before a decision is reached on that point. It means therefore that, where a court finds it compelling to adopt a course other than that urged on it by the parties, the rules of natural justice, and ultimately, the right to fair hearing enshrined in our Constitution require that the parties, especially the party to be affected or likely to be affected by the issue or issues raised suo motu, should be given an opportunity to react one way or the other before a decision is reached. See REG. TRUSTEES OF AMORC v. AWONIYI (1994) 7 NWLR (Pt.355) pg.154; OJO-OSAGIE v. ADUNNI (1994) 6 NWLR (Pt.349) PG.131; IMAH v. IKOGBE (1993) 9 NWLR (Pt.316) pg. 159; AJUWON v. AKANNI (1993) 9 NWLR (Pt.316) pg.182 and GOMWALK v. OKWOSA (1999) 1 NWLR (Pt.586) Pg.255. See also R.T.E.A.N. v. N.U.R.T.W. (1992) 2 NWLR (Pt.224) pg.381; ABBAS v. SOLOMON (2001) 15 NWLR (Pt.735) pg.144 and OJE v. BABALOLA (1991) 4 NWLR (Pt.185) pg.267. It is pertinent to point out that the issue raised suo motu must be an issue that is evident on the record, as a court is not allowed to raise any issue outside of or that is irrelevant to the facts before it.
It therefore means that a court is not totally excluded from raising any issue suo motu. Thus the effect of raising an issue suo motu without giving the parties an opportunity to react therein will depend on the issue raised. Where the issue raised suo motu by the lower court affects the jurisdiction and competence of the court to adjudicate on the matter before it, the proceeding will be a nullity. However, where the issue raised is on a matter which is merely procedural and so does not affect the jurisdiction and competence of the court to adjudicate on the matter before it, an appellate court will be reluctant to nullify the proceeding or have same set aside. On the whole however, the course an appellate court will take will ultimately depend on whether the decision of the lower court occasioned a substantial miscarriage of justice. It also depends on the facts of the particular case under consideration. See B.O.N. V. OJEBA (1993) 4 NWLR (pt.289) pg.597 at 604;. AKPUNONU v. BEKAERT OVERSEAS LTD. (1995) 5 NWLR (pt.393) pg.42; ANATOGU v. ANATOGU (1993) 6 NWLR (pt.552) pg.42; 8 NWLR (pt.209) p9.295 and REG. TRUSTEES OF AMORC V. AWONIYI (SUPRA) at pg.177. The burden is on an Appellant to show that the error committed by the trial court occasioned a miscarriage of justice.

In the instant case, it is clearly borne out of the record of appeal that the issue of stay of proceedings was never raised by any of the parties. This fact is not in dispute. It is also not in dispute that the learned trial judge raised the issue suo motu, and proceeded to adjourn the case sine die. That was when the Appellant was in prison custody, and had moved the court to quash the charge or Information alleging murder and kidnapping against him, for not disclosing any prima facie case against him. Indeed, by order of the trial court, the parties had filed and exchanged Written Addresses, which were adopted as their arguments before the court, and the matter or motion adjourned for Ruling. However, for reasons not disclosed either in the proceedings of the trial court or the record of appeal, the motion which had been argued on the 14/5/2010, was not considered till the 06/5/2011, a period of one year. The record does not reveal that there was any other proceeding in the matter within that period. Rather than Ruling on the matter or motion, the learned trial Judge held as follows:
“In the final analysis, the hearing and determination of this motion, as well as proceeding with the Hearing of Charge No: HOH/1C/2010 are hereby stayed pending the determination of the Application of the 4th, 5th and 6th Accused/Applicants before the Federal High Court in Suit No.: FHC/UM/M86/2009. Consequently, this motion and Charge No: HOH/1C/2010 are hereby adjourned sine die until the determination of Suit No: FHC/UM/M86/2009 before the Federal High Court, Umuahia.
This Ruling and the order herein made should also mutatis mutandis apply to charge No: HOH/2C/2010 in respect of the 3rd, 4th, 5th and 6th Accused persons.”
With that decision, the learned trial Judge ordered that the Appellant and other accused persons be returned and kept in prison custody, albeit sine die. That order was made, even when the Appellant had by the Application dated and filed the 14/4/2010, challenged the competence or legality of the charge upon which he was ordered to be remanded. As I stated earlier, that Application had been duly argued and adjourned for Ruling. Of course, if the learned trial Judge found a compelling reason for adopting the course he took, he was well within his powers, but the reasons must be justified from the facts at his disposal.
The reasons given by the learned trial Judge for the action he took are as contained at pages 352-354 of the record of appeal (pages 4-6 of the Ruling). For sake of clarity I take the pains to reproduce same below:
“After a critical consideration of the issues raised in the Addresses/Submissions of counsel on both sides I am of the view that the proper cause (sic) of action for this court to take in the peculiar circumstances of this case is to Stay Proceedings on this motion, and the substantive charge pending the determination of the Application of the 4th, 5th and 6th Accused persons/Applicants before the Federal High Court, Umuahia in which they also prayed the court to quash the charges brought against them before the Magistrate Court which are the same charges that culminated to the filing of the Information against them before this court. The reasons for deciding to adopt this approach are:
i). Although the Federal High Court is not superior to this court and its decision not binding on this court, yet it would be legally untenable if that court at the end comes to the conclusion that there are grounds for it to quash the charges when this court commenced hearing in respect of the charges.
ii). In the same vein, it would be legally absurd if this court hears the Application now and perhaps agrees with the prayers brought by the Accused/Applicants, but at the conclusion of the Application at the Federal High Court, that court tows a different line and rejects the prayers sought. It therefore seems to me that hearing and determination of this Application will tantamount to embarking on a collision course against the Federal High Court. That in my view is the reason the learned senior advocate canvassed that this information as filed constitutes an abuse of court process.”
It is clear from the portion of the decision of the trial court reproduces above, that the learned trial judge completely misunderstood the import of the Application before the Federal High Court, vis-avis the Application before him. The Application before the Federal high Court in suit NO.: FHC/UM/M86/2010, was an Application for the Enforcement of Fundamental Rights filed by the 4th, 5th and 6th Accused persons who were also Applicants in the motion on Notice seeking to quash all the counts in the Information against them. The Application before the Federal High Court. The reliefs sought by the said 4th, 5th and 6th Accused/Applicants in the Application for the Enforcement of their Fundamental Rights are as follows:
i). A declaration that the arrangement (sic) of the Applicants on 25th September, 2009 before the
Magistrate Court No. 3 Umuahia presided over by O. K. Onuma Esq. without reasonable grounds and their subsequent detention in prison custody ever since amounts to a flagrant violation of Articles 6, 7(1) (b) and (d) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and the Applicants Fundamental Right guaranteed by sections 35(1) and 36(1) (4) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, being baseless, malicious, vindictive and a conspiracy to undo the Applicants.
ii). An order quashing the illegal and unconstitutional detention of the Applicants since 25th September, 2009.
iii). An order for the immediate release of the Applicants.
iv). Such further order that the court may deem expedient to make in the circumstances.”

If the reliefs sought in the Application as reproduced above, and the Grounds upon which the reliefs are sought are critically analyzed, it would be clear that the Application before the Federal High Court did not per se seek for the quashing of “charge” before the Magistrate Court against the 4th, 5th and 6th Accused/Appellants. What it sought in the Application was that their detention before the Magistrate Court be declared unconstitutional and for same to be quashed. The Application therefore sought for the enforcement of the Applicants’ Fundamental Rights to personal liberty. I cannot therefore see how that Application could have anything to do with the Information against the Appellant before the lower court or indeed the Application to have the counts on the said Information quashed. In any case, the Appellant was not a party to the Application before the Federal High Court. In that respect, I am of the view, and do hold that the course taken by the learned trial Judge was based on a wrong or faulty premise. The Appellant was never invited to be heard on the issue raised suo motu by the trial court. He was entitled to be heard on his application challenging the legality of the charge against him, and upon which he was ordered to be remanded in prison custody sine die! This has certainly occasioned a miscarriage of justice to him. I therefore resolve this issue in favour of the Appellant.

The second (2nd) issue in this appeal is whether the court below was right not to have quashed the Information filed against the Appellant. The Arguments of the Appellant are as contained in pages 6-12 of the Appellant’s Brief of Argument. The sum total of the Appellant’s submission on this issue is that the court below erred grievously in not quashing the counts in the Information against the Appellant.
It would be seen that I did not summarize the submissions of learned counsel for the Appellant on this issue. It is deliberate. This is because, learned counsel for the Respondent had at pages 22-23 of the Respondent’s Brief of Argument drawn our attention to the fact that by staying the Application seeking to quash the charges against the Appellant means that the learned trial judge has not given his final decision on the Application. That this fact is agreed to by the learned senior counsel for the Appellant when he submitted that the Appellant’s objections to the counts in the Information remained unattended to by the trial court. He cited the holding of the trial court at pages 354 lines 11-17 of the record of appeal, to submit that the trial court knew that the final decision on the Appellant’s Application has not been given. That this court cannot grant the application and quash the counts in HOH/1C/2010 based on the points the application and quash the counts in HOH/1C/2010 based on the points raised in this appeal, because this court is an appellant court and not a court of first instance. He then submitted that:
“The Court of Appeal will lack the jurisdiction to hear the matter at its first instance since this is not one of the matters Court of Appeal will hear at her first instance, but on appellate position. The objection, affidavit, address, counter-affidavit, Respondent’s address were not made before the Court of Appeal, but before the lower court.”
Upon the above quoted submission, learned counsel for the Respondent urged us to order the lower court to determine the application one way or the other, as it affects the Appellant, moreso, as the Appellant is not a party to the matter pending at the Federal High Court. For this submission, he cited the cases of KRAUS THOMPSON ORGANIZATION LTD. v. UNICAL (2004) 9 NWLR (Pt.879) pg.631 and AYISA v. AKANJI (1995) 7 NWLR (Pt.406) pg.129.
I am in complete agreement with the submissions of learned Chief State Counsel for the Respondent. It is trite law that, an appeal is a complaint against the findings and decision of a lower court. Accordingly, where a trial court has not pronounced on an issue before it, this court as an appellate court will not have the jurisdiction to hear an appeal arising therefrom. In other words, since the lower court did pronounce on the Application before it, it means that there is no such decision upon which this court can adjudicate upon as an appellate court. In the same vein, the nullity of the judgment will not arise, as there is no judgment or Ruling which this court can nullify or rather pronounce on its validity. The proper course to take, in my view is to remit the matter to the lower court for its determination of the Application dated and filed the 24/4/2010, wherein the Appellant seeks to quash the counts on the Information proferred against him.

It would be seen from my findings that this appeal has succeeded in part, to the extent that, the lower court was wrong to have suo motu stayed the proceedings in respect of the motion to quash the information on which it had taken argument and adjourned for ruling. I accordingly, remit the matter to the lower court for the determination of the Application dated and filed the 24/4/2010.

UWANI MUSA ABBA AJI, J.C.A.: I had the opportunity of reading in advance the judgment of my Learned brother H. M. Tsammani, JCA just delivered.
I agree with the reasoning and conclusion of my Learned brother that the appeal succeeds to the extent only that the Lower Court was wrong to have suo motu stayed the proceedings in respect of the motion to quash the information on which it had taken argument and adjourned for ruling.
I also remit the matter to the Lower Court for the determination of the matters dated and filed on the 24/4/2010.

MOJEED A. OWOADE, J.C.A.: I had the privilege pf reading in draft the judgment delivered by my learned brother HARUNA M. TSAMMANI, J.C.A.
I agree with the reasoning and conclusion. I also abide with the consequential orders.

Appearances

O. A. Obianwu, SAN for the Appellant (C. C. Ibeziako; Esq. and F. C. Ohiajuru; Esq. with him).For Appellant

AND

H. I. Madu; Esq. (Chief State Counsel, Mins. of Justice, Abia State)For Respondent