ALHAJI ABDULLAHI ADAMU USMAN & ANOR V. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/11977(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of July, 2018
CA/J/40C/2018
RATIO
APPEAL: WHERE GROUND OF APPEAL REVEALS A MISUNDERSTANDING BY THE LOWER COURT
“Where a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it involves a question of law alone. Where the ground of appeal and the particulars of error reveal that the appellant is questioning the evaluation of the facts by the lower Court before the application of the law, then it is a ground of mixed law and fact. And where the ground of appeal and the particulars of error complain of only an evaluation of facts by the lower Court, it is a ground of fact alone. Abidoye Vs Alawode (2001) 6 NWLR (Pt 709) 403 and Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt 723) 114. Applying these principles to the three grounds of appeal of the Appellants, as reproduced above, it is obvious that while the first and second grounds of appeal may pass for grounds of law, the third ground of appeal is at best a ground of mixed law and facts. It is not a ground of appeal that the Appellants can raise against an interlocutory decision of the lower Court as of right; they required leave of either this Court or of the lower Court to raise it. The Appellants did not obtain any such leave of court. The third ground of appeal is thus incompetent as filed and it is hereby struck out. This leaves only the first two grounds of appeal as the viable grounds of appeal.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: PRINCIPLE OF JUDICIAL PRECEDENT
“One of the most elementary and rudimentary of the principles of judicial precedent is that it recognizes that decisions of court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case. Fawehinmi Vs Nigerian Bar Association (No 2) (1989) 2 NWLR (Pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI ABDULLAHI ADAMU USMAN
2. SOLID UNIT NIGERIA LTD – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision contained in the Ruling of the High Court of Plateau State delivered in Suit No PLD/J103C/2016 by Honorable Justice D. D. Longi on the 16th of January, 2018.
The Appellants were arraigned before the lower Court on a two count charge of conspiracy to obtain money by false pretences and for obtaining the sum of N23.431 Million by false pretences. The parties were agreed in their briefs of arguments that the Appellants were arraigned on the 9th of June, 2016. Sequel to the arraignment, Counsel to the Appellants filed a motion on notice dated the 19th of August, 2016 seeking to quash the charge and in response to which the Respondent filed a counter affidavit. On the 24th of November, 2016, the Respondent filed an application dated the 23rd of November, 2016 seeking for an order to amend the two count charge. Both applications were not taken before the matter was re-assigned to the lower Court.
The records show that the matter came up before the lower Court on the 12th of December, 2017 for the re-arraignment of the Appellants, but the Appellants were absent from Court and their Counsel undertook to ensure that they attended Court on the next adjourned date. The lower Court adjourned the matter to the 16th of January, 2018 for definite arraignment and it directed the ?Prosecuting Counsel and the Counsel to the accused to ensure that the accused be in court on the next adjourned date . On the 16th of January, 2018, the accused were again absent from Court and their Counsel apologized for their absence and he produced a medical report to explain the absence of the first Appellant and he requested that he be allowed to move the motion seeking to quash the charge in the absence of the Appellants and he cited the cases of Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195 as authorities to support his contention. Counsel to the Respondent objected to the request and prayed that the Court to order the production of the Appellants. The lower Court thereafter stated thus:
‘I have taken note of all the arguments whether to dispense with the presence of the accused in the present circumstance and to go ahead and hear the application challenging the jurisdiction of this Court. Counsel for the accused is of the opinion that since special circumstance has been shown for the absence of the accused on the ground of ill-health and since there is an application before the Court challenging the jurisdiction of the Court, this Court has inherent jurisdiction to dispense with the physical presence of the accused and proceed to hear the application challenging the jurisdiction of this Court.
Learned counsel for the prosecution however thinks otherwise. On my part, I have closely looked at the medical report shown to Court this morning. The medical report is dated 12th of January, 2018 and which states that the accused was hospitalized from 23rd May to 29th May 2017. To my understanding to this day, the accused is not in hospital. Where is the accused from 29th May, 2017 when he was discharged to 16th January, 2018’
Before I make a considered Ruling as to whether to dispense with the absence of the accused, I hereby order the accused be brought to court, in whatever manner for the Court to observe.
Accordingly I hereby order that the accused, Abdullahi Adamu Usman be brought to Court on the next adjourned date physically by his sureties. Meanwhile the case is adjourned to 5th February, 2018 for the accused to appear in Court physically by the grace of God.
The Appellants were dissatisfied with this directive of the lower Court and they caused their Counsel to file a notice of appeal dated the 17th of January, 2018 and containing three grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 30th of January, 2018 on the same day. In response, Counsel to the Respondents filed a brief of arguments dated the 28th of March, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 16th of April, 2018. Counsel to the Appellants filed a reply brief of arguments and it was dated the 11th of April, 2018 and filed on the 16th of April, 2018. At the hearing of the appeal, the Court asked Counsel to the Appellants if he obtained the leave of either the lower Court or this Court before filing the appeal and Counsel replied in the negative. The Court further inquired from Counsel to the Appellants if he did not think that he required leave to file the appeal and Counsel again replied in the negative saying that the grounds of appeal were grounds of law alone. Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments.
It is trite that an appeal may be on ground of facts alone or on ground of law alone or on ground of mixed law and facts. By the provisions of Section 241 (1) (a) and (b) of the 1999 Constitution a party can appeal to the Court of Appeal as of right only where the decision appealed against is a final decision or where the grounds of appeal involves question of law alone. In any other situation, Section 242 of the Constitution says that the party must only appeal with leave of either the High Court or the Court of Appeal. The ordinary meaning of these provisions is that where an appeal is from an interlocutory decision of the High Court and the ground of appeal is not on law alone, a party must obtain the leave of either the High Court or of the Court of Appeal for the appeal to be competent. Cooperative & Commerce Bank Nig Plc Vs Attorney General of Anambra State (1992) 3 NWLR (Pt 261) 528, Savannah Bank of Nig Plc Vs Kyontu (1998) 2 NWLR (Pt 538) 41.
The decision being appealed against by the Appellants in this matter arose from an interlocutory proceeding and the decision did not finally determine the case of the parties, the decision is thus an interlocutory decision – Omonuwa Vs Oshodin (1985) 2 NWLR (Pt 10) 924. The Appellants did not seek leave of Court before filing the appeal and the necessary question is ? whether the grounds of appeal are grounds of law alone.
The three grounds of appeal of the Appellants read thus:
Ground One
The learned trial Judge erred in law when he held that the accused persons must be brought to court ‘in whatever manner’ even when there is an application to quash the charge before the Court which same application is challenging the jurisdiction of the Court.
Particulars
a. Any proceeding/trial without jurisdiction is a nullity no matter how well conducted.
b. The presence of an accused person is not necessary once there is an application challenging the jurisdiction of the Court or any other preliminary application. See the cases of Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195.
Ground Two
The learned trial Judge erred in law when he failed to follow the Court of Appeal’s decision in the cases of Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195, thereby occasioned a miscarriage of justice.
Particulars
a. By the doctrine of judicial precedence a lower Court is bound by the decision of a Higher Court. Olokunlade Vs Ademiloyo (2013) All FWLR (Pt 658) 947.
b. The lower trial Court refused to follow and be bound by the Court of Appeal decisions in the cases of Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195.
Ground Three
The learned trial Judge erred in law when he ordered that the accused, Abdullahi Adamu Usman, be brought to Court ‘in whatever manner’ on the next adjourned date physically, despite cogent and verifiable reason before the Court for the inability of the accused person to attend Court even when there is evidence before the court that the 1st accused person who is also representing the 2nd accused person is sick and thereby occasioned a miscarriage of justice against the Appellants.
Particulars
a. It is only the living that can be prosecuted/stand trial and the Court can dispense with the presence of an accused person where a special circumstance (including ill-health) is advanced. Section 154(2) of the Criminal Procedure Code Law.
b. The Court exercise its jurisdiction judicially and judiciously based on facts before the Court and not by wielding its will without due consideration of the evidence placed before the Court.
It is important to reiterate that what is essential in determining whether a ground of appeal involves questions of law or fact or mixed law and fact, is not its cognomen or its designation. Rather it is the essence of the ground of appeal and the reality of the complaint embedded in the designation that determines what a particular ground involves. Thus, it is not what the appellant choose to designate a ground of appeal that controls, rather it is the nature of the ground of appeal read together with the particulars that characterizes the ground of appeal as one of pure law or mixed law and fact or facts alone. Ogbechie Vs Onochie (1986) 2 NWLR (Pt 23) 484 and Ojukwu Vs Kaine (2000) 15 NWLR (Pt 691) 516.
Where a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it involves a question of law alone. Where the ground of appeal and the particulars of error reveal that the appellant is questioning the evaluation of the facts by the lower Court before the application of the law, then it is a ground of mixed law and fact. And where the ground of appeal and the particulars of error complain of only an evaluation of facts by the lower Court, it is a ground of fact alone. Abidoye Vs Alawode (2001) 6 NWLR (Pt 709) 403 and Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt 723) 114.
Applying these principles to the three grounds of appeal of the Appellants, as reproduced above, it is obvious that while the first and second grounds of appeal may pass for grounds of law, the third ground of appeal is at best a ground of mixed law and facts. It is not a ground of appeal that the Appellants can raise against an interlocutory decision of the lower Court as of right; they required leave of either this Court or of the lower Court to raise it. The Appellants did not obtain any such leave of court. The third ground of appeal is thus incompetent as filed and it is hereby struck out. This leaves only the first two grounds of appeal as the viable grounds of appeal.
Counsel to the Appellants formulated three issues for determination in this appeal; an issue for determination from each ground of appeal. With the striking out of the third ground of appeal for being incompetent, the third issue for determination formulated from the ground of appeal is equally incompetent and it is hereby struck out along with all the arguments canvassed in support thereof by both the Counsel to the Appellants and the Counsel to the Respondent. The other two issues for determination read thus:
i. Whether the learned trial Judge is right in law when he refused to hear the Appellants’ application dated the 19th of August, 2016 to quash the charges against the accused persons which application is challenging the jurisdiction of the court owing to the circumstances of this case.
ii. Whether the refusal of the learned trial Judge to follow the Court of Appeal decisions in Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195 does not negate the principle of judicial precedent and occasioned a miscarriage of justice on the Appellants.
In arguing the first issue for determination, Counsel stated that the trial Court was in error when it failed to determine the issue of jurisdiction raised in the motion dated the 19th of August, 2016 and that its holding that the accused person be brought in whatever manner before the Court could determine whether or not to dispense with his presence is an abruption of the law which occasioned a miscarriage of justice. Counsel stated that the law was clear that the presence of an accused person is not required when there is an application to quash the charge or challenging the jurisdiction of the Court and he referred to the cases of Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195.
Counsel stated that on the strength of the decisions the presence of an accused person can be dispensed with for the purpose of taking the application challenging the jurisdiction of the Court or any other preliminary application, particularly as there was evidence before the lower Court that the accused person was ill.
Counsel stated that it is elementary that jurisdiction is the live wire of any proceeding and without it such proceeding will be a waste of scarce judicial time and that a Court can only assume jurisdiction where the parties, subject matter and processes are competent before it and he referred to the cases of Ede Vs CBN (2015) All FWLR (Pt 769) 1127 and Godwill & Trust Invests. Ltd Vs Witt & Bush Ltd (2011) All FWLR (Pt 576) 536. Counsel stated that it means that when the issue of jurisdiction is raised the Court will suspend all proceedings and deal with it timeously. Counsel urged the Court to resolve the first issue for determination in favour of the Appellants.
On the second issue for determination, Counsel again referred to and quoted from the decisions of this Court in Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195 and he stated that the lower Court did not determine the question whether the presence of an accused person can be dispensed with because there is an application before the Court challenging the jurisdiction of the Court and seeking to quash the charge. Counsel stated that the decisions referred to did not make the medical condition of an accused person a determining factor of whether his presence can be dispensed with when taking an application challenging the jurisdiction of the Court. Counsel stated that the lower Court was bound to follow the decisions of this Court in those cases and that if it had done so, it would have come to a different decision and he referred to the case of Olokunlade Vs Ademiloyo (2013) All FWLR (Pt 658) 969. Counsel stated that the principle of stare decisis is a well cherished principle of law that create orderliness and adds beauty to law and it is meant to avoid confusion and he referred to the case of PHCN Plc Vs Offoelo (2013) All FWLR (Pt 664) 25.
Counsel urged the Court to hold that the refusal of the lower Court to follow the decisions of this Court occasioned a miscarriage of justice to the Appellants and the society at large.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same and set aside the decision contained in the Ruling of the lower Court.
On his part, Counsel to the Respondent formulated one issue for determination and this is – whether in the circumstances of this case, the lower Court was not right to order that the Appellants be produced on the next adjourned date.
In arguing the issue for determination, Counsel to the Respondent launched into the issue of whether it is the motion to amend the two count charge that should be heard first or the motion to quash the original charge and as to why hearing the motion to amend would require the presence of the Appellants and render the motion to quash the original charge irrelevant. It is trite that for arguments contained in a brief of arguments to be competent and useful, they must be based on the issue for determination under which they are argued and must arise from the judgment or Ruling appealed against. Onowhosa Vs Odiuzou (1999) 1 NWLR (Pt 586) 173 and Adebayo Vs Shogo (2005) 7 NWLR (Pt 925) 467. The arguments of Counsel to the Respondent on which motion between the motion to amend the charge and the motion to quash the charge are not related to and do not arise from the Ruling appealed against. They are irrelevant and are hereby discountenanced.
Counsel stated that the reliance placed by Counsel to the Appellants in this appeal on the decision of this Court in Alintah Vs FRN supra was completely misplaced and that it showed that Counsel did not read the entire judgment as the decision in the case was the exact opposite of what Counsel canvassed in the brief of arguments. Counsel reproduced the concluding part of the lead judgment in the case and the contributory judgment of one of the Justices in the matter and stated that the judgment upheld the position of the lower Court in that case that the accused person must be present in Court before the application to quash a charge is taken. Counsel urged the Court to discountenance the arguments of Counsel to the Appellants on the Appellants’ first issue for determination.
On the Appellants’ second issue for determination, Counsel stated that it is settled law that a case is only authority for what it decided and nothing more and he referred to the cases of Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179 and Udo Vs State (2016) LPELR 40721(SC). Counsel stated that the cases of Alintah Vs FRN (2008) All FWLR (Pt 436) 2009 and Ezeze Vs The State (2005) All FWLR (Pt 255) 1195 upon which the Appellants predicated their appeal were unavailing to the case of the Appellants as the facts and circumstances in the cases were different from that which confronted the lower Court in the instant case.
Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the decision in the Ruling of the lower Court.
This Court must say from the onset that this appeal is one of the most misguided appeals, and perhaps one of the most irresponsible use and abuse of the appellate Court process, that this Court has seen in a long while. Counsel to the Appellants predicated the appeal on a conjured up, non-existent, scenario, manipulated and misrepresented decided decisions of this Court to support the non-existent scenario and then presented same to this Court to resolve.
The entire appeal is centered round the refusal of the lower Court to dispense with the appearance of the Appellants at the hearing of the application of the Appellants seeking to quash the charge brought against them. In other words, Counsel asserted that the lower Court refused to hear the application without the necessity of the Appellants being present in Court at such a hearing. This was something that never happened in the lower Court.
It is trite that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the basis what took place before the lower Court and was pronounced upon by that Court. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1 and Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145. As narrated in the earlier part of this judgment, the Appellants were arraigned on the 9th of June, 2016 and they subsequently filed a motion on notice dated the 19th of August, 2016 seeking to quash the charge and on the 24th of November, 2016, the Respondent filed an application to amend the two count charge. Both applications were not taken before the matter was re-assigned to the lower Court.
The matter came up before the lower Court on the 12th of December, 2017 and the records show that it was fixed for the re-arraignment of the Appellants. The Appellants were absent from Court and their Counsel did not inform the lower Court that the first Appellant was ill and he undertook to ensure that the Appellants attended Court on the next adjourned date. Counsel to the Appellants did not point the attention of the lower Court to the pending motion to quash the charge and did not request for it to be set down for hearing. The lower Court adjourned the matter to the 16th of January, 2018 for definite arraignment and it directed the Counsel to the Appellants and the Counsel to the Respondent to ensure that the Appellants were in court on the next adjourned date for arraignment. On the 16th of January, 2018, the Appellants were absent from Court and their Counsel apologized for their absence and he produced a medical report to explain the absence of the first Appellant. It was at this point that Counsel to the Appellants pointed the attention of the lower Court to the motion to quash the charge and he requested the lower Court to hear same in the absence of the Appellants.
The lower Court noted the request but wanted an explanation for the absence of the Appellants from Court on that day. The lower Court looked at the medical report produced to explain the absence of the first Appellant and saw that it was dated the 12th of January, 2018, but that its contents were to the effect that the first Appellant was admitted between the 23rd and 29th of May, 2017 and that no explanation was offered for the absence of the first Appellant from the 29th of May, 2017 when he was discharged from the hospital to the 16th of January, 2018, the day the matter came up for the second time in its Court. The lower Court then ruled that before going into the issue of the motion to quash the charge and dispensing with the appearance of the Appellants, the first Appellant should be produced in Court for it to observe his medical condition and it adjourned the matter to the 5th of February, 2018. This is all that took place in the record of proceedings contained in the record of appeal.
Where and when, then, did the lower Court refuse to dispense with the presence of the Appellants at the hearing of the application to quash charge? Where and when did the lower Court refuse to hear the application to quash the charge without the necessity of the presence of the Appellant? At no time was the application to quash the charge fixed for hearing. The matter was fixed for re-arraignment and definite arraignment respectively on two occasions it came up before the lower Court and the fixtures were with the consent of and to the knowledge of Counsel to the Appellants. And when the Counsel to the Appellant requested for the hearing of the application to quash the charge and to dispense with the presence of the Appellants, the lower Court did not refuse to do so. It demanded, and rightly so, for an explanation for absence of the Appellants from Court on the date fixed for definite arraignment and when it saw that explanation offered by the medical report presented was inadequate, it directed that the first Appellant be brought to Court for it to observe his medical condition to see if indeed he was not well enough to attend Court on the date fixed for arraignment. The lower Court cannot be faulted for any of the steps it took.
Going further, Counsel to the Appellants quoted, with panache, the cases ofEzeze Vs State (2004) 14 NWLR (Pt 894) 491 and Alintah Vs Federal Republic of Nigeria (2010) 6 NWLR (Pt 1191) 508 as supporting his stance that an application to quash a charge can be heard in the absence of the Appellants. Counsel berated the lower Court severely for not kowtowing to those decisions and stated that the attitude of the lower Court bastardized the concept of judicial precedent and amounted to a miscarriage of justice not only to the Appellants but to the society at large. Counsel, however, forgot to state that in the case of Ezeze Vs State supra, the matter was fixed for the hearing of the motion to quash the charge on the relevant date, and not for the arraignment of the accused defendant in the case, and that as such the facts and circumstances in that case were the same or similar to those in this case.
One of the most elementary and rudimentary of the principles of judicial precedent is that it recognizes that decisions of court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case. Fawehinmi Vs Nigerian Bar Association (No 2) (1989) 2 NWLR (Pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523.
The doctrine of judicial precedent postulates that what is binding on a lower Court in the decision of a higher Court is the principle or principles decided and not the rules and that if the facts and circumstances which framed the principle decided are similar to or same with the facts and circumstances of the case before the lower Court, the lower Court has no choice but to follow the principle decided. Where, however, the facts and circumstances in both cases are not similar or the same, the inferior court is not bound by the principle decided in the case before the higher court. Elebute Vs Faleke (1995) 2 NWLR (Pt 375) 82, 7Up Bottling Co. Ltd Vs Abiola & Sons Ltd (1995) 3 NWLR (Pt 383) 257. The doctrine says that it is improper to try and force the ratio of a case on facts to which it cannot be assimilated; the ratio of any case should not be pulled by the hair of the head and made to apply to cases where the surrounding circumstances are different. Mortune Vs Balonwu (2000) 5 NWLR (Pt 655) 87. This point was emphasized by the Supreme Court in its decision inEmeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55 where Rhodes-Vivour, JSC stated at page 96 thus:
”Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow courts to apply the ratio of a case across the board and with little regard to the facts of the case before them.”
Worse still is the reliance placed on the case of Alintah Vs Federal Republic of Nigeria supra by Counsel to the Appellants; Counsel completely misrepresented the decision of the Court in the case and he quoted portions of it out of con. The facts of this case were somewhat similar to those of the instant case. In that case the appellant, who had not appeared in Court, filed a notice of preliminary objection challenging the jurisdiction of the trial Court, the locus standi of the Attorney General of the Federation to prosecute the charge and the competence of the charge. On the 25th of February, 2004, the appellant’s counsel sought to move the court to hear the preliminary objection which he contended should first be entertained before arraignment of the appellant. The appellant did not appear in Court on that date. The appellant’s counsel further contended that the Court could not compel his attendance.
The respondent’s counsel, however, insisted on the presence of the appellant in Court as a precondition to hearing the preliminary objection. The trial Court, in its ruling, upheld the contention of the respondent’s counsel and held that it was mandatory for the appellant to be present in court before any further step could be taken including the hearing of the preliminary objection. The trial court ordered the physical appearance of the appellant on the next adjourned date. The appellant filed a notice of appeal challenging the ruling of the court ordering his physical appearance. This Court in a unanimous decision upheld the ruling of the trial Court.
This Court opined that by Section 167 of the Criminal Procedure Act, any objection to a charge for any formal defect on the face thereof shall be taken after the charge has been read over to the accused and not later. This Court noted that this provision of the law shows without any ambiguity the stage of the proceedings during arraignment when an objection to a charge on ground of any defect therein will be raised and that is as soon as the charge has been read to an accused person and before he pleads to it. This Court stated that Section 167 of the Criminal Procedure Act therefore requires the appellant to appear in court for arraignment during which he can as a matter of right ex-debitio justiciae raise the preliminary objection on jurisdiction, the competence of the charge or locus standi of the Attorney General to prosecute the case. This Court dismissed the appeal of the appellant.
The question is – how does the decision of this Court in Alintah Vs Federal Republic of Nigeria supra support the contention of Counsel to Appellants’ The decision rather damns his contention. One of the worst sins that a Counsel can commit is to manipulate, to misrepresent and to lie against the decision of a Court. It is unethical conduct and a condemnable act ? Ogudo Vs The State (2011) 18 NWLR (Pt 1278) 1, Dariye Vs Federal Republic of Nigeria (2015) 10 NWLR (Pt 1467) 323. It is obvious that Counsel intended thereby to mislead both the lower Court and this Court. In Momodu Vs Momoh (1991) 2 LRCN 437, the Supreme Court held that ‘It is a very serious matter and indeed sad for counsel whose bounden and inescapable duty is to assist the Court to appear to be intent in misleading the Court. This attitude of counsel which is unethical and reprehensible calls for condemnation by the Court in no uncertain terms.’
Counsel, with respect, displayed throughout his approach in this appeal that he has an appalling and dismal understanding of his responsibility as an advocate in Court. In Rondel Vs Worsley (1967) 1 QB 443, Lord Denning, MR, at page 501 explained the duty thus:
”As an advocate (the barrister) is a minister of justice equally with the judge. He has a monopoly of audience in the higher courts. No one save he can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick or choose his clients. He is bound to accept a brief of any man who comes before the courts. No matter how great a rascal the man may be.”
He must accept the brief and do all he honourably can on behalf of his client. I say ‘all he honourably can’ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth.
He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court.
The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline
This statement on the duty of a legal practitioner was reiterated by this Court in Okonji Vs Onwusanya (2012) LPELR 9286(CA) per Shoremi, JCA thus:
”A legal practitioner is minister in the temple of justice. His first duty therefore is to act in the interest and promotion of justice. This is what sustains his profession and makes it honorable. A counsel must not knowingly mislead the court against the course of justice. This may lead to punishment by judicial process as a crime.”
Counsel to the Appellants twisted the facts of case and misrepresented decided case law authorities to suit his purpose and completely abdicated his responsibility to the cause of truth and justice in his conduct of this appeal. This Court will hesitate in reporting the Counsel to the appropriate disciplinary organ of his professional body at this time. It is hoped that Counsel will adjust his actions to accord with the expected ethics of the Bar.
In conclusion, this Court finds that the appeal is downright frivolous, vexatious and totally lacking in merit. The appeal is hereby dismissed. The decision contained in the Ruling of the High Court of Plateau State delivered in Suit No PLD/J103C/2016 by Honorable Justice D. D. Longi on the 16th of January, 2018 is affirmed. The case file is remitted to the lower Court for continuation of proceedings in the matter. These shall be the orders of the Court.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the lead judgment of my learned HABEEB ADEWALE OLUMUYIWA ABIRU, JCA just delivered. I agree with his lordship that this appeal lacks merit. It is hereby dismissed for the same reasons adduced in the lead judgment.
I affirm the decision contained in the ruling of the High court of Plateau state delivered on 16th January, 2018 by D. D. Longi, J. in Suit No. PLD/J103d/2016. I also order that the case file be remitted to the trial court for continuation of proceeding in the matter.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity and privilege to read in draft the lead Judgment delivered by my learned brother, HABEEB A. O. ABIRU, JCA.
I also agree entirely with the reasoning and conclusion reached and I abide by the orders made therein.
I make no order as to costs.
Appearances:
Gyang Zi with him, Y. L. Ayuba, H. A. Dongo & N. I. WilliamsFor Appellant(s)
Benjamin Manji, Legal Officer with EFCCFor Respondent(s)
