PETER AKUDIGWE V. THE STATE (2013)

PETER AKUDIGWE V. THE STATE

(2013)LCN/6243(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2013

CA/E/313/2007

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

PETER AKUDIGWE Appellant(s)

AND

THE STATE Respondent(s)

RATIO

NOTICE OF APPEAL AS AN INITIATING PROCESS

It is trite law that a Notice of Appeal is an initiating process to any competent appeal in the same way a writ of summons is to a suit. A defective notice of appeal cannot therefore serve to put the appeal on ground. In the absence of competent notice of appeal, there cannot be an appeal laying any complaint against either judgment or ruling of the lower court. PER ABDUL-KADIR, J.C.A.

CONDITION FOR A CRIMINAL APPEAL TO BE COMPETENT BEFORE THE COURT OF APPEAL

DEFINITION OF A NOTICE OF APPEAL

The notice of appeal is the foundation and substratum of every appeal. Any defect will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. Once a notice of appeal is defective and therefore incompetent, there would be nothing left for the court to consider. It is the notice of appeal which gives the court jurisdiction to hear an appeal. Any defect in the notice goes to the root of the appeal and robs the court of the jurisdiction to hear the appeal.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice A.A. Nwobodo of the Enugu State High Court delivered on 15th day of May, 2007 on which he dismissed the Appellant’s Motion on Notice.
The circumstances that gave rise to the instant matter are briefly summarized hereunder –
A Summary Trial charge vide charge No. E/65C/2004 dated 17/12/2004 was drafted against the Appellant by the Ministry of Justice, Enugu (acting through its legal officer – R.E. Udeichi Esq.). The Appellant was charged under Section 1(3) of Advance Fee Fraud and other related offences Decree No. 15 of 1995 as amended by Decree 62 of 1999. The Appellant through his counsel – Chuka Obele Chuka Esq. on 18/5/2005 filed a motion dated 17/5/2005 for an order of court quashing Charge No. E/65C/2004 preferred against the Accused/Appellant for want of competence and jurisdiction.
The Accused/Appellant’s motion was supported by 27 paragraph affidavit with several annexures, Exhibits A – M. See pages 5 – 41 of the record. The complainant Chief Edy Onyekwelu filed a 27 paragraph Counter Affidavit dated 10th June, 2005 against the Appellant’s Motion under reference. See pages 42 44 of the record. A witness to the Appellant in the name of Dave Icheoku deposed to an affidavit dated 22nd July, 2005 in support of the Appellant’s motion under reference. The affidavit had 2 annexures: Exhibits D1 – 2. See pages 45 – 48 of the record. The Appellant filed a 12 paragraph Further Affidavit dated 22nd July, 2005 in support of his motion under consideration. The further affidavit had several annexures as Exhibits N – T. See pages 49 – 61 of the record, The Appellant’s motion filed on 18/5/2005 was formerly taken on 23/01/2007. The State Counsel replied on 5/3/2007 while the Appellant’s Counsel replied on points of law on the same date. See pages 66 – 74 of the record for proceedings of the lower court. A ruling was delivered on the matter on 15/5/2007 wherein the trial judge dismissed the Appellant’s application. See pages 75 – 82 of the record.
The Appellant being dissatisfied with the decision of the lower court filed a Notice of Appeal dated 25/5/2007 and filed on the same date containing four Grounds of Appeal. See pages 83 to 87 of the record.
The appeal was heard on the 4th day of March 2013, learned counsel for the Appellant Mr. C.A. Obodozie informed the court that the Appellant’s Amended Brief of Argument is dated the 23rd of November 2009 and filed on 25th November 2009. That they filed a Reply Brief dated 30/4/09, Counsel applied to withdraw the Reply Brief, the Reply Brief having been withdrawn was struck out. Learned Counsel to the Appellant adopted his Brief of Argument and urged the court to allow the appeal.
Learned Counsel to the Respondent Mrs. C.N. Malu informed the court that the Respondent’s Brief of Argument is dated 17th March 2010 and filed on 19th March 2010, Counsel adopted the brief and urged the court to dismiss the appeal.
In his Amended Appellant’s Brief of Argument, Learned Senior Counsel for the Appellant formulated three Issues for determination of this Appeal. The Appellant’s Issues are herein reproduced for ease of reference.
(a) Whether Summary Trial can take place in Enugu High Court under Section 4 of Tribunals (Certain Consequential Amendments etc.) Decree No. 62 of 1999.
(b) Whether Summary Trial of an accused person in a State High Court offends Section 36(6)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria.
(c) Whether Summary Trial can take place in Enugu High Court under Section 4 of Tribunal (certain consequential Amendments etc) Decree No. 62 of 1999.
The Respondent’s Counsel in her Amended Respondent’s Brief formulated three Issues for determination of the instant appeal. The Respondent’s Issues read thus:
(a) Whether Summary Trial can take place in Enugu High Court under Section 4 of Tribunals (Certain Consequential Amendments etc) Decree No. 13 of 1995 as amended Decree No. 62 of 1999.
(b) Whether Summary Trial of an accused person in Enugu High Court offends Section 36 (6) (a) and (b) of 1999 Constitution of the Federal Republic of Nigeria?
(c) Whether it is right in law that Summary Trial for Advanced Fee Fraud can take place in Enugu High Court under the Criminal Procedure Law of Enugu State?
ARGUMENT OF PARTIES
APPELLANT’S ISSUE NO. 1
Learned Senior Counsel for the Appellant contends that none of the Sections of Advanced Fee Fraud Decree No. 13 of 1995 makes any provision for Summary Trial. He states that the issue of Summary Trial was introduced by Section 4 of the Tribunals (certain Consequential Amendments etc) Decree No. 62 of 1999. He reproduced the Section of the Decree under reference as follows:
“All Criminal proceedings brought before the court relating to a matter for which the court has jurisdiction under this Decree shall be tried summarily in accordance with Section 33 of the Federal High Court Act and rules of procedure made under that Act or under the equivalent Section of the relevant High Court Law of the state concerned and rules of procedure made under that law.”
The Learned Senior Counsel for the Appellant further emphasized that Cap. 92 of the Laws of Enugu State 2004 did not provide any Section dealing with summary trial in a criminal case. He argues that Summary Trial cannot be used in the Enugu State High Court under Section 4 of the Tribunals (Certain Consequential Amendments etc) Decree No, 62 of 1999.
It is his opinion that once there is a lacuna in the said Section, the High Court should simply hold that it has no powers under the said provision to hold summary trial in an Advanced Fee Fraud case.
Referring to the comment of the trial Judge at page 79 of the record that the Chief Judge of a state pursuant to Section 274 of 1999 Constitution has power to make rules regulating the practice and procedure of State High Court in exercise of civil and criminal jurisdictions subject to the provisions of any law made by the House of Assembly of a state, the learned Senior Counsel pointed out that the trial judge did not say that the Chief Judge made rules for summary trials. He stated that the invocation of Section 14 of the State High Court Law by the trial judge from where he landed on criminal procedure law of Enugu State was a summersault. He contends that Section 4 of Decree No. 62 of 1999 is a Federal Act that has covered the field. He states that Section 12 of Decree No 62 of 1999 only confers jurisdiction on the State High Courts to try offences under the Decree, not Section 14 of the State High Court Law. He added that Section 4 of Decree No. 62 of 1999 clearly and distinctly set out that summary trial shall be under the equivalent section of the relevant High Court Law or rules of procedure made under the law. He concluded that as the High Court Law has no section dealing with summary trial, the appeal should be allowed on this issue and strike out the charge.
APPELLANTS ISSUE NO. 2
Learned Senior Counsel for the Appellant reproduced Section 36(6)(a) and (b) of the 1999 Constitution as follows:
“Every person who is charged with a criminal offence shall be entitled to
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence,
(b) Be given adequate time and facilities for the preparation of his defences”
On the above stated premise, the learned Senior Counsel contends that a one count charge of summary trial based on Section 4 of the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999 does not have all the details which will help the court to make up its mind on whether a case of advanced fee fraud has been made out and as such, the accused person is deprived of the protection given to him by the constitution which is aimed at prevention of surprises. He added that it is a cardinal principle of Section 36 of the constitution to guarge against such arbitrariness which the very fertile mind of weak people can always plant and nurture.
The learned counsel demonstrates that the instant case is simply contract and from the various affidavits, the sum of N2.8 million was advanced and paid out to various contractors who acknowledged receipt of same. He pointed out that the Traditional Ruler of the parties at pages 25 to 26 of the record resolved the dispute. He further stressed that in application of Decree No. 62 of 1999, proof of Evidence have always been provided in the High Court since the coming into force of the 1999 Constitution. He cites the case of Anajemba V. Federal Government of Nigeria, (2003) 13 NWLR (Part 890) 267 at page 277 paragraphs c – d where the Court of Appeal stated as follows:
“Reliance is placed on Bamaiyi V. The State (2001) 8 NWLR (Part) 270. It is contended that the proof of evidence shows that the Appellant is linked with the offences for which she is charged. Reference is made inter alia to pages 185 – 195, 199 – 200, 272 – 256 and 453 – 4… of the record of proceedings.” He also cited the case of Nwude V. Federal Government of Nigeria (2004) 17 NWLR (Part 902) 306 at page 318 paragraphs F – H, Ukatu v. Commissioner of Police (2001) 6 NWLR (Part 710) 765 at 773 paragraph E – H.”
The Learner Senior Counsel for the Appellant re-emphasized that for a case of Advanced Fee Fraud to be sustained, there must be a scam. He argued that the instant case is devoid of a scam, hence it is a case of simple contract which was executed between the complainant and the Appellant. He defined a scam as a clever but dishonest plan aimed solely at getting money. He further cited the cases of Ede V. Federal Republic of Nigeria (2001) 1 NWLR (Part 695) 502 Odua V. Federal Republic of Nigeria (2002) 5 NWLR (Part 761) 615 in aid. He further contended that the trial Judge admitted at Page 81 lines 19 to 25 that there is no doubt that a summary charge does not have proof of evidence attached to it while he went ahead to conclude that summary trial in the High Court is not inconsistent with or in breach of the provisions of Section 36(6) (a) and (b) of the 1999 Constitution. He maintains that it is glaring from the ruling of the trial court that a summary charge in a High Court for Advanced Fee Fraud case is unconstitutional as it offends section 36 (6) (a) and (b) of 1999 Constitution, He urges the court to declare that Section 4 of the Tribunals (Certain Amendments etc) Decree No. 62 of 1999 unconstitutional and to strike out the one count charge which is the subject matter of this appeal as the Appellant has been on police bail.
APPELLANT’S ISSUE NO. 3
The Learned Senior Counsel for the Appellant pointed out that this issue is distilled from ground four of the Grounds of Appeal at page 86 of the record. He made reference to his earlier argument in Issue No. 1 already discussed where he posited that Section 4 of Decree No. 62 of 1999 states that criminal proceedings shall be tried summarily –
“under the equivalent section of the relevant High Court Law of the state concerned and rules of procedure made under the law”.
In the light of the above the learned Senior Counsel submitted that the Enugu State High Court Law has no section dealing with Summary Trial in a criminal case. He re-emphasized that the lacuna in Section 4 of the Decree 62 of 1999 rubs the High Court, Enugu of the jurisdiction to adjudicate any criminal proceeding on summary trial. He prays the court to resolve the answer to issue No. 3 in the negative while urging that the appeal be allowed, the Ruling of the learned trial Judge delivered on 15th May 2007 be set aside and charge No. E/65C/2004 struck out on the ground that Summary Charge in a State High Court is unconstitutional.

RESPONDENT’S ISSUE NO. 1
The Learned State Counsel emphasized that the Appellant was charged summarily under Section 1 (3) of Advanced Fee Fraud and other Related Offences Decree No. 13 of 1995 as amended by Decrees 62 of 1999. She added that Section 12 (1) of Decree 13 of 1999 rested the jurisdiction to try offences under the Decree on a Tribunal constituted under the Special Tribunal (Miscellaneous Offences) Decree as amended.
She recited Section 4 (1) of Decree 62 of 1999 as follows:
“The Federal High Court or the High Courts of a state as the case may be, shall have jurisdiction to try offences created under enactment specified in the schedule to this Decree”.
The State Counsel recited the Powers of the Attorney-General of a state pursuant to the provisions of Section 272 (1) of 1999 Constitution.
She reproduced Section 4 of Decree 62 of 1999 as follows:
“All criminal proceedings brought before the court relating to a matter for which the court has jurisdiction under the Decree shall be triable summarily in accordance with Section 33 of the Federal High Court Act and rules of procedure made under the Act or under the equivalent High Court Law of the state concerned and rules of procedure made under that Law”
The learned State Counsel refers to Section 164 of the Criminal Procedure Law of Enugu State of Nigeria, 2004 which provides inter alia.
“The provisions of this chapter shall apply to offences triable summarily that is to say –
(a) to all trials in the High Court other than on information, and
(b) to trials in the State High Court in respect of offences for which it is provided that trial can be held in the High Court otherwise the n on information and for which no special procedure is provided.
(c) For all offences declared by any written law to be triable summarily”
The State Counsel emphasized that the offence of Advanced Fee Fraud did not fall within any of the categories listed in Section 240 of the Criminal Procedure Law of Enugu State, adding that the filing of proof of evidence in the charge against the Appellant is statutorily barred. She stated that none of the cases cited by the Appellant’s Counsel either voided Sections 240 of the Criminal Procedure Law of Enugu State or interpreted the section. She argues that there is no lacuna in either Sections 164 and 240 stated above under reference. Finally the State Counsel contends that Enugu State High Court has sections 164 and 240 dealing with summary trial. She urged the Court to dismiss the Appeal on the issue.
RESPONDENT’S ISSUE NO. 2
The learned State Counsel contends that Advanced Fee Fraud and other Related Decree is a special legislation designed to curb the excesses of degrading proportion that are afflicting our self esteem and National Psyche. She states that Decree 63 of 1999 pursuant to Section 315 (1) (a) and (b) of 1999 Constitution, the offence of Advanced Fee Fraud and other Related Offences Decree of 1995 is an existing law. She refers to S. 1 (3) of 1999 Constitution and cited the cases of Ekwunugo V. F.R.N. (2001) 6 NWLR (Part 708) at P. 701 pp at P.191 where the Court of Appeal held thus:
“That the Advanced Fee Fraud Decree is not inconsistent with the Constitution”.
The Respondent’s Counsel further contends that going by pages 1 – 3 of the record, the Appellant was duly informed of the offence he is being charged and that enough time/opportunity was given to him to defend himself. She refers to the case of EHUWA V. ONDO, STATE, INEC (2007) 1 MJSC at P, 90 pp. at P. 106 paragraphs D – F.
The State Counsel contained that the case at hand is purely that of Advanced Fee Fraud. She states that there is evidence of the Appellant receiving various sums of money from the complainant. The Appellant disbursed the said sums of money to various people who failed to execute the contract. She further stated that even though the Traditional Ruler of the parties resolved the dispute at pages 25 to 26 of the record, the Appellant failed to take the people he gave the money to Court because they were partners in crime. She pointed out that in the cases of ANAJEMBA, NWUDE and UKATU as cited by the Appellant’s Counsel, the respective issues canvassed therein was bail of the Appellants. She states that Emmanuel Chunemelu V. COP (supra) was a murder charge which by virtue of S. 164 of the Criminal Code required information and Proof of Evidence.
The learned State Counsel demonstrates that the case of the Appellant is a clear scam. She cites the case of ONWUDIWE V. FRN (2006) 10 NWLR Pt. 988 at P. 383 PP at pages 431 – 31 paragraphs G – G where the Court of Appeal held that:
“In order to succeed in a charge of obtaining by false pretences, the prosecution must prove
(a) that there is pretence,
(b) that the pretence emanated from the accused person.
(c) That it was false
(d) That the named person know (sic) of its falsity or did not believe in its truth;
(e) That there was an intention to defraud;
(f) That the thing is capable of being stolen;
(g) That the accused person induced the owner to transfer his whole interest in the property.
The Learned State Counsel contended that going by the circumstances of the instant case, it is clear by the conduct of the Appellant that he (the Appellant) had an intentional perversion of truth for the purpose of inducing the complainant to part with his money. She refers to the case of ALAKE V. STATE (1991) NWLR (Pt 205) at P. 566 pp at P.597 on the meaning of “pretence”. She urges the Court of Appeal to hold that Section 4 of Decree No. 62 is not in conflict with Section 36 (6) (a) and (b) of the 1999 Constitution being a law promulgated by an Act of the National Assembly. She also urged this court to hold that the charge against the Appellant is a clear case of Advance Fee Fraud because it involves scam.

RESPONDENTS ISSUE NO. 3
Learned State Counsel emphasizes that Sections 164 and 240 of the Criminal Procedure Law of Enugu State, 2004 created provisions for Summary Trial in Enugu State. She states that the Criminal Procedure Law of Enugu State is a section of the High Court Laws of Enugu State and could be founded (sic) in Volume 11 Cap.30, Laws of Enugu State of Nigeria, 2004. The State Counsel resounds that Sections 164 and 240 of the Criminal Procedure Laws provides for Summary Trial in Enugu State High Court. She cites the cases of UGWU V. ARARUME (2007) M.J.S.C. at P.1 pp at pages 83 – 84, ASSOCIATED DISCOUNT HOUSE LIMITED AND AMALGAMATED TRUSTEES LIMITED (2007) 10 M.J.S.C – AT P. 49 particularly at P.88 paragraph 9, ADESAYO V. ADEWOLE (2006) 10 M.J.S.C at page 1 particularly at page 18 in aid. She urges the Court of Appeal to hold that summary trial of a case of Advanced Fee Fraud can take place in Enugu State High Court under the Criminal Procedure Law of Enugu State. Finally the Learned State Counsel urges the Court to uphold the ruling of the lower court of 15th May, 2007 and order the commencement of Summary Trial against the Appellant in the Enugu High Court.
Before deciding on the merit of this appeal, I noticed that the Notice of Appeal being a criminal appeal was signed by Chief Okwuchukwu Ugolo, SAN counsel for the Accused Person/Applicant/Appellant. The Notice of Appeal was not signed by the Appellant himself Peter Akudigwe the accused standing trial before the lower court. It is therefore imperative to determine the competence of the Notice of Appeal which is the initiating process in this appeal.
An appeal is competent before the Appellate Court when it is proper from the root and the root I refer to is the Notice of Appeal in compliance with the Provisions of the rules of the court. It is trite law that a Notice of Appeal is an initiating process to any competent appeal in the same way a writ of summons is to a suit.

A defective notice of appeal cannot therefore serve to put the appeal on ground. In the absence of competent notice of appeal, there cannot be an appeal laying any complaint against either judgment or ruling of the lower court.

For a criminal appeal to be competent before this court, the notice of appeal must be in strict compliance with the Provisions of Order 17 Rule 4(1) of this court.
Order 17 Rules 4 (1) of Court of Appeal Rules, 2011 provides:
“Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself, except under the provision of Sub-rules (5) and (6) of this Rule”.
Sub-rule (5):
“Where on the trial of a person entitled to appeal, it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the action was done or the omission made by him or that at the time of the trial, he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the Appellant himself may be given and signed by his legal representative.
Sub – rule (6):
“In the case of a body corporate where any notice or other document is required to be signed by the Appellant himself, it shall be sufficient compliance therewith if such notice or other document assigned by the secretary, clerk, manager or legal representative of such body corporate.”
The Notice of Appeal in the instant case is found at pages 83 to 87 of the record of appeal as duly transmitted to this court from the High Court Registry, Enugu. A close observation upon the perusal through the said Notice of Appeal reveals that the Appellant in the name of Peter Akudigwe did not sign the notice of appeal rather it was conspicuously signed by his counsel in the name of Chief Okwuchukwu Ugolo, SAN.
The notice of appeal is the foundation and substratum of every appeal. Any defect will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. Once a notice of appeal is defective and therefore incompetent, there would be nothing left for the court to consider. It is the notice of appeal which gives the court jurisdiction to hear an appeal. Any defect in the notice goes to the root of the appeal and robs the court of the jurisdiction to hear the appeal.

The Supreme Court in Uwazurike V. A.G. FEDERATION (2007) 8 NWLR (Pt. 1935) 1 stated thus:
“By virtue of Order 4 rule 4(1) of the Court of Appeal Rules, every notice of appeal in a criminal matter must be signed by the appellant himself and no other (including counsel) and where they are more than one, individually and not jointly. The provision is mandatory. The filing of a joint notice of appeal or one notice of appeal signed by all the appellants is grossly defective and therefore renders an appeal incompetent. It is the same if the notice of appeal is signed by counsel on behalf of the appellant, as was done in the instant case. (State v. Jammal (1996) 9 NWLR (Pt. 473) 384; Adekanye v. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 949) 433 referred to) (Pp. 13-14, paras, H-B; 15, paras, C-H).”
I have carefully studied sub-rules (5) and (6) of Order 17 Rule 4 of our rules as herein above reproduced. I could not find where to hang the Appellant’s net to save the sinking boat.
In the light of the foregoing, I will have no available option than to invoke Order 6 Rule 6 of Court of Appeal Rules 2007 which empowers this Court to strike out the appeal in a situation like this. This appeal from all intents and purposes is incompetent and it is hereby accordingly struck out.

ISAIAH OLUFEMI AKEJU, J.C.A: I had the privilege of reading the judgment of my learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA before it was delivered. I agree with the reasoning therein and the conclusion that the appeal is incompetent. The appeal is consequently struck out by me.

EMMANUEL AKOMAYE AGIM, J.C.A: I had read a copy of the judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR, JCA. I agree with the reasoning and conclusions therein. I also hold that this appeal is incompetent and also strike out this appeal.

Appearances

Mr. C.A. ObodozieFor Appellant

AND

Mrs. C.N. MaluFor Respondent