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AKUMA v. FRN (2022)

AKUMA v. FRN

(2022)LCN/16166(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 02, 2022

CA/ABJ/CR/1024/2021(R)

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

CHUKWUEBUKA SOLOMON AKUMA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT MUST CONSIDER EVERY DOCUMENT IN ITS FILE IN DETERMINING A MATTER BEFORE IT

Let me explain also that although the Appellant’s said Motion for Stay of Proceedings was withdrawn and struck out, the Court is entitled to look at every document in its file in order to do substantial justice; particularly where ignoring such document may lead the Court to absurdity or travesty. See Order 23 Rule 11 of the Court of Appeal Rules, 2021; PDP & Ors vs. Ezeonwuka & Anor. (2017) LPELR-42563 (SC); Akpan vs. Bob & Ors. (2010) LPELR-376 (SC); Enwezor vs. Withech Industries Ltd & Ors (2008) LPELR-4193 (CA). PER GAFAI, J.C.A.

BATURE ISAH ​GAFAI, J.C.A. (Delivering the Leading Judgement): This appeal emanated from the ruling of the Federal High Court Abuja Judicial Division in Charge No. FHC/ABJ/CR/97/2020 delivered on the 22nd of November, 2020 coram Ogunbanjo, J. in which the Appellant was discharged but without a further Order for his release from prison custody. The ruling herein is however not on the appeal itself but on the Appellant’s Motion in it seeking for bail pending the determination of the appeal.

​To fully understand the context of the Motion at hand, a few words on the proceedings of the lower Court that gave rise to it may be necessary. As gleaned from the Record, the Prosecution/Respondent brought a motion on Notice on the 27th of October, 2020 in the course of the trial, seeking thereby to amend the charge by substituting same with its proposed Amended charge and for an Order deeming the proposed Amended charge annexed to the Motion and headed “AMENDED CHARGE” as properly filed and served. The Motion was granted accordingly; without objection. The amended charge containing nine counts for offences under the Terrorism (Prevention) (Amendment) Act 2013, Cybercrime (Prohibition, Prevention, etc.) Act 2015 and the Criminal Code Act was read to the Appellant. He pleaded not guilty to the charge. The trial continued; through which two more Prosecution witnesses testified and the Prosecution closed its case.

In defence of the Amended charge, the Appellant did not testify but presented his sole witness who testified in his defence as DW1; after which the Defence too closed its case.

Both learned counsels for the parties filed and exchanged their Final Written Addresses which they later adopted on the 27th of September, 2021.

The Written Address for the Appellant was segmented in two parts; namely Part A under which arguments against the competence of the Amended charge were canvassed and Part B under which arguments on the substantive trial were also canvassed.

Apparently, owing to the considered view it thereafter formed on the Appellant’s challenge, the lower Court decided, which method I entirely agree with, to deliver its ruling on same first; which it did on the 22nd of November 2021.

In its ruling, the lower Court held inter alia but more importantly thus:,

“Let me start by stating that this issue is a threshold issue and a foundation upon which all the other remaining issues stand.
I have considered this ground upon which the Defendant’s objection to the Charge sheet is founded and the prosecution’s response thereto.
The Prosecution did not deny the factual allegations made by the Defendant that after the Motion on Notice for amendment of the Charge was filed and granted by the Court, the Prosecution did not file an Amended Charge as averred in paragraph nine (9) of its Affidavit in support of its Motion on Notice.
I have considered the provisions of Section 216(1) and (2) and Section 218(2) of the ACJA 2015 which the prosecution relied upon, particularly Section 218(2) of the ACJA 2015.
The auxiliary verb used to qualify the main verb ’’endorsed” in Section 218(2) of the ACJA 2015 is “shall”. It connotes mandatoriness and does not give room to the Prosecution to do anything contrary to the provisions of Section 218(2) of the ACJA 2015 which is to the effect that “where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.”
It is trite law that where – an Act prescribes a particular method of carrying out an act, that method must be followed. There is a plethora of judicial authorities in this regard, some of which are;
1. Mobil Producing (Nig.) Unlimited v Johnson (2018) 14 NWLR (pt. 1639) 329.
2. Corporate Ideals Ins. Ltd v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (pt. 1405) 165.
3. Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242.
The Prosecution ought to have filed the Amended Charge separately after the Motion on Notice for amendment of the Charge was granted to enable the date the Order for amendment was made to be endorsed on the Amended Charge Sheet.
In view of the foregoing, I must agree with the Defence that the Defendant was arraigned on an invalid Charge as the proposed Amended Charge annexed as an Exhibit to the Affidavit in support of the Motion on Notice for amendment of the original Charge sheet is not in compliance with Section 218(2) of the ACJA 2015

This Amended Charge sheet was not initiated by due process of law and upon fulfillment of the condition precedent to the exercise of this Court’s jurisdiction provided in Section 218(2) of the ACJA 2015 which robs the Court of jurisdiction to determine this matter and I so hold.
Consequently, this matter is hereby struck out as there is no valid Amended Charge before the Court.
However, it is important that the Court must state that the Order of this Court striking out this matter does not in any way howsoever presuppose that the Court has given protection to the Defendant from future criminal investigation or prosecution with respect to the allegations in the proposed Amended Charge annexed to the Affidavit in support of the said Motion on Notice for amendment of the Charge or in any regard whatsoever.
Be that as it may, I cannot end this judgment without noting that this matter was not prosecuted diligently, which gave rise to the preliminary issues of competence and jurisdiction raised by the Defendants.
I therefore refer this matter to the Attorney General of the Federation for his consideration and necessary action.

The Deputy Chief Registrar of the Court is hereby ordered to make a Certified True Copy of this file and forward to the Attorney General of the Federation.”

See pages 56, 232, 352-359 of the Record of Appeal. The Appellant’s four Grounds of Appeal found at pages 360-364 of the Record were conceived from two perspectives; namely the failure or refusal by the trial Court to order the release of the Appellant from custody after it struck out the charge in its ruling and secondly the failure of the trial Court to proceed also to consider the substantive issues in the trial.

It is hoped that this short prelude will accord a better appreciation of the Appellant’s present motion for bail filed on the 3rd of February, 2022.

​Four Grounds are listed on the Motion as the basis for seeking the bail of the Appellant; which altogether appear to have been more elaborately contained in the 22 paragraph Affidavit in support of the Motion; the more relevant portions of which are:
“5) That in the Appellant’s Final Address at the lower Court, the Appellant/Applicant’s Counsel raised several objection on the competence of the charge and further submitted that the prosecution failed to prove the charge.
6) That the trial Court in consideration of the objections raised, rightly agreed with the Appellant’s Counsel that the charge was incompetent and consequently struck out the charge. A copy of the ruling/judgment is attached as Exhibit “SA2”.
7) That by virtue of the Order of the trial Court, there is no more pending charge against the Appellant/Applicant in the Court below.
8) That while the trial Court struck out the charge, the Court failed to discharge and release the Appellant from custody.
9) That the Charge upon which the Appellant was detained and tried is no longer there or subsisting.
10) That the Appellant is a citizen of the Federal Republic of Nigeria and his personal liberty is guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and the Appellant’s right to personal liberty is infringed upon by his continued detention.
11) That the Appellant/Applicant was dissatisfied with the Orders of the trial Court’s refusal to discharge him and determine all issues placed before the Court and has appealed against the judgment/ruling of Hon. Justice F.O.G Ogubanjo of the Federal High Court of Nigeria, Abuja Division delivered on 22/11/21. A copy of the Notice of Appeal is herein attached and marked as Exhibit ”SA3”.
12) That the Appellant has complied with all the conditions of Appeal and has compiled and transmitted record of Appeal to the Registry of this Court and Appeal entered as appeal No. CA/ABJ/CR/1024/2021 on 20/12/21 and Appellant’s Brief of Argument has been filed and served on 21/12/21.
13) That the Appellant has no intention to delay the hearing of this appeal if bail is granted and is ready to appear in Court any day the appeal will be heard.
14) That the absence of a valid charge against the Defendant is a special circumstance for this Honourable Court to consider and grant the Appellant bail pending the hearing of this appeal.
15) That the Appellant/Applicant was not convicted, sentenced by trial Court. That the presumption of innocence is in favour of the Applicant.
16) That none of the conditions upon which a citizen of Nigeria can be deprived of his personal liberty applies to the Appellant/Applicant.
17) That the continuous detention of the Appellant/Applicant in prison custody when there is no pending charge against him is a violation of the Appellant’s fundamental right to personal liberty.
18) That the Appellant is under illegal detention and it is only the order of this Honourable Court that can release him.
19) That the Appellant undertakes to appear in Court any time this appeal is fixed and shall fulfill any condition this Honourable Court might give as condition for his release on bail.”

It is on these facts and the short Written Address filed together with the Motion that the Appellant is seeking for bail pending the determination of the appeal. It should be noted that the facts in the supporting Affidavit are the same with the background facts in the appeal.
​At the hearing of this Motion on the 2nd of June 2022, the learned senior counsel for the Appellant; Chief Solomon U. Akuma SAN, in order to fast track the hearing and determination of the Motion, withdrew his Motion on notice filed on the 17th of February, 2022 by which the Appellant was to seek for an Order staying further proceedings in charge No. FCT/ABJ/CR/97/2020 (FRN vs. Chukwuebulu Solomon Akuma) currently pending before the lower Court. The motion was struck out accordingly.
Now, let me say with due respect to the learned senior counsel for the Appellant that this Court cannot afford to be incautious or hasty in view of the new information on the face of the said motion for stay showing clearly that the same charge earlier struck out by the lower Court in its ruling (supra) is yet again the subject of further proceedings by the lower Court. The point well noted here by this Court is that the same charge that formed the foundation of this appeal is presently being litigated upon further by the parties before the same Court; whether by way of relistment or howsoever is immaterial. The bottom line is that the trial is yet to be completed; again rightly or wrongly is not the issue for now. While this Motion is predicated on a final decision/judgment on the trial, the Appellant’s Motion for stay of proceedings on the other hand shows the pendency of an uncompleted trial over the same charge. The principles and circumstances for bail in both situations differ. Upon which of the two situations will this Court grant the Appellant bail? The circumstances surrounding the Motion make it unsafe to proceed to consider it under either of the two situations.

Let me explain also that although the Appellant’s said Motion for Stay of Proceedings was withdrawn and struck out, the Court is entitled to look at every document in its file in order to do substantial justice; particularly where ignoring such document may lead the Court to absurdity or travesty. See Order 23 Rule 11 of the Court of Appeal Rules, 2021; PDP & Ors vs. Ezeonwuka & Anor. (2017) LPELR-42563 (SC); Akpan vs. Bob & Ors. (2010) LPELR-376 (SC); Enwezor vs. Withech Industries Ltd & Ors (2008) LPELR-4193 (CA).

The Appellant’s Motion for bail cannot be definitively and safely granted in the circumstance. It is accordingly dismissed.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, a draft copy of the lead ruling just delivered by my noble lord Isah Bature Gafai, JCA.

​I have taken time to read the processes filed by the Appellant/Applicant seeking his bail pending the hearing and determination of the substantive appeal now pending before us against the ruling of the lower Court.
I have also taken time to read and digest the reasoning in the lead ruling and I am satisfied that it has covered the field. Thus, leaving nothing more for me to add to it.
It is obvious that the relief sought in this application under consideration, that is bail pending appeal, and the relief sought in the main appeal, a discharge of the Appellant are inextricably interwoven so much so that a grant of one could readily dispose of the other.
It is therefore, also my view, as already expressed and demonstrated in the lead ruling, that a grant of this application at this stage of considering this interlocutory application with the potential of making pronouncements on the substantive appeal yet to be heard, will amount to prejudging the merit or otherwise of the substantive appeal in which issues have not even been joined by the parties.
It is therefore better that a consideration of these inextricably interwoven issues are considered and resolved once and for all in the substantive appeal than prejudging them at this stage. It is truly premature to do so.
​It is therefore for the reasons so adroitly marshalled out in the lead ruling that I too hold, that this application is premature and ought to be dismissed. Consequently, I too hereby dismiss this application. I shall abide by the consequential orders made in the lead ruling.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the ruling of my learned brother ISAH BATURE GAFAI, JCA just delivered. I am entirely in agreement with the reasoning and conclusion reached in striking out appeal.

Appearances:

CHIEF SOLOMON AKUMA, SAN, with him, EMMANUEK UKAEGBU, EMMANUEL AKUMA For Appellant(s)

…For Respondent(s)