CHIEF NKEREUWEM UDOFIA AKPAN v. FEDERAL REPUBLIC OF NIGERIA (2011)

CHIEF NKEREUWEM UDOFIA AKPAN v. FEDERAL REPUBLIC OF NIGERIA

(2011)LCN/4678(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of July, 2011

CA/A/132/2010

RATIO

ISSUES FOR DETERMINATION: WHETHER THE ISSUES FOR DETERMINATION FORMULATED IN A BRIEF MUST BE BASED ON THE GROUNDS OF APPEAL FILED BY THE PARTIES

The general rule is that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. Once the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. See Amadi vs. NNPC (2000) 6 SC (Pt.1) 66 at 72. Ibator vs. Barakuro (2001) 9 NWLR (Pt.1040) 475 Nasiru vs. State (1999) 2 NWLR (Pt.589) 87 It is also trite law that a respondent who wishes to formulate issues different from the issues distilled by the appellant must relate same to the grounds of appeal filed by the appellant. See Momodu vs. Momoh (1991) 1 NWLR (Pt.169) 608 SC Ossai vs. WAKWAN (2006) 4 NWLR (Pt.969) 208 SC. Osazuwa vs. Isibar (2004) FWLR (Pt.194) Page 387. Therefore it is when a respondent has filed a respondents notice of intention that he can formulate issues not dependent on appellant’s ground of appeal. See Williams vs. Daily Times (1990) 1 NWLR (Pt 124) 1. PER REGINA OBIAGELI NWODO, J.C.A.

CROSS APPEAL: WHEN IS IT NECESSARY FOR THE RESPONDENT TO CROSS APPEAL

Equally imperative for emphasis is the trite law that a respondent wanting to raise fresh issues for determination not flowing from the appellant notice of appeal must cross-appeal. See COP vs. Omanukwue (1999)2 NWLR (Pt.590) 190. PER REGINA OBIAGELI NWODO, J.C.A.

POWER OF COURT: WHETHER THE COURT CAN REFRAME THE ISSUES POSTULATED BY PARTIES IN AN APPEAL

It is settled law that where issues postulated by parties on appeal are inappropriate the court can reframe the issues to do substantial justice. PER REGINA OBIAGELI NWODO, J.C.A.

CHARGE: CIRCUMSTANCE UNDER WHICH A CHARGE WILL BE QUASHED

Where the offence for which an accused is charged is not disclosed by the statement of the witnesses or proof of evidence or where there is nothing linking accused to the charge, the charge will be quashed. See Ikomi vs. State (1986) 3 NWLR (Pt.28) 314 Aituma vs. State (20006) 10 NWLR (Pt.989) 452 CA Igabele vs. State (2004) 15 NWLR (Pt.896) 314 CA. PER REGINA OBIAGELI NWODO, J.C.A.

INTERLOCUTORY APPLICATION: WHEN AN APPLICATION THAT IS INTERLOCUTORY IN NATURE SEEKING SPECIFIC RELIEFS WILL BE GRANTED

An application that is interlocutory in nature seeking specific reliefs will be granted once the prayers are established in lines with the rules or law to the satisfaction of the court. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

CHIEF NKEREUWEM UDOFIA AKPAN Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice of the Federal Capital Territory (hereafter referred to as FCT) at Gudu – Abuja on the 14th of December, 2009 in which the learned trial judge quashed the charges and proof of evidence preferred against the appellant by the Economic and Financial Crimes Commission (EFCC).
In brief the facts that lead to the present appeal are as follows:
On the 22nd of June, 2009 the trial court granted leave to the prosecuting counsel pursuant to an ex parte application to prefer a charge against the appellant and one Chioma Harriet Unaji. The appellant and Chioma Unaji were charged and arraigned before the court below. Plea was taken, the appellant pleaded not guilty likewise the other accused person. The appellant during trial filed an application dated 17th July, 2009 and filed on 23/07/2009 praying for (a) an order quashing the charges and proof of evidence against the 2nd accused person, an order compelling the EFCC to tender an unreserved apology to him for the wrongful arrest and detention and an order that the apology be published in the full page of three (3) newspapers.
The learned trial judge in a considered judgment delivered on 14/12/2009 held:
“Having found that there is nothing in the proof of evidence linking the 2nd accused with the alleged offence accordingly the charges against the 2nd accused person are hereby quashed.”
The appellant dissatisfied with part of the decision of the court below filed a notice of appeal on 28/11/2009 containing three (3) grounds of appeal.
In line with the practice and procedure of this court the appellant and learned counsel for respondent filed and exchanged briefs of argument. At the hearing of the appeal on 6th of June, 2011, the appellant appeared in person and adopted a brief settled by him filed on 19/04/2010 and a reply brief filed on 21/01/2011. The learned counsel for the respondent Sir Stephen Odiase adopted the respondents brief deemed filed on 17/01/2011
The appellant in his brief distilled three issues for determination. He did not tie the issues to the three grounds of appeal. The issues read thus:
“(a) Whether the learned trial judge was right when he failed to consider and or rule on the prayers for an award of public apology and compensatory damages and thus denied appellants a fair hearing and due recompense on those issues?
(b) Whether the learned trial judge was right when he failed to consider and rule on the twin issues of tendering of public apology and incidental payment of damages to the appellant for wrongful arrest and detention despite issues joined thereon and arguments canvassed on the issues?
(c) Whether the learned trial judge was right when he failed to make the Order directing the respondents to tender an apology to, and compensate, the appellant once the attest and detention of the appellant was found to be an ex facie illegality?” The respondent formulated 2 issues for determination, without connecting each issue to any of the grounds. They read thus:
“1. Whether the lower court was bound to grant all the prayers, reliefs prayed by the Appellant as contained or covered by his Application to quash.
2. Whether the lower court was right to have quashed or stopped the prosecution of Appellant in view of the Proof of Evidence and therefore, stop the respondent from performing her statutory duties.”
The grounds of the appeal from wherein the above issues were formulated have been set out hereunder without the particulars:
GROUND ONE: ERROR IN LAW
“The learned trial judge erred in law when he failed to consider and or rule on the prayers for an award of public apology and compensatory damages and thus denied appellants a fair hearing and due recompense on those issues.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he failed to consider and rule on the twin issues of tendering of public apology and incidental payment of damages to the accused/appellant for wrongful arrest and detention.
GROUND THREE: ERROR IN LAW
The learned trial Judge erred in law when he failed to make the Order directing the respondents to tender on apology to, and compensate, the appellant once the arrest and detention of the appellant was found to be an ex facie illegality.”
A glossary perusal of the above reproduced three grounds of appeal clearly shows that the complaints of the appellant revolve on one main point, the failure of the learned trial judge to consider and rule on the prayers for public apology and compensation.
Let me first look at the issues as formulated by the respective parties for determination. It is the contention of the appellant that the issues formulated by the respondent as issue 2 is “off key”. What I can deduce from his submission on issues formulated by respondent is that it is not connected to the grounds of appeal.
I have critically read the grounds of appeal and the issues distilled in the respondents brief. With the greatest respect to the learned counsel for the respondent, he has exhibited a gross misconception of the contents of the grounds of appeal filed by the appellant and the purport of distilling an issue for determination from the grounds by a respondent to an appeal. The general rule is that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. Once the issues are not related to any ground of appeal, then they become irrelevant and go to no issue.
See Amadi vs. NNPC (2000) 6 SC (Pt.1) 66 at 72.
Ibator vs. Barakuro (2001) 9 NWLR (Pt.1040) 475
Nasiru vs. State (1999) 2 NWLR (Pt.589) 87
It is also trite law that a respondent who wishes to formulate issues different from the issues distilled by the appellant must relate same to the grounds of appeal filed by the appellant.
See Momodu vs. Momoh (1991) 1 NWLR (Pt.169) 608 SC
Ossai vs. WAKWAN (2006) 4 NWLR (Pt.969) 208 SC.
Osazuwa vs. Isibar (2004) FWLR (Pt.194) Page 387.
Therefore it is when a respondent has filed a respondents notice of intention that he can formulate issues not dependent on appellant’s ground of appeal.
See Williams vs. Daily Times (1990) 1 NWLR (Pt 124) 1
Equally imperative for emphasis is the trite law that a respondent wanting to raise fresh issues for determination not flowing from the appellant notice of appeal must cross-appeal.
See COP vs. Omanukwue (1999)2 NWLR (Pt.590) 190 Looking at the 2 Issues formulated by the respondents counsel, I agree with the appellant that Issue 2 did not arise from the appellants ground of appeal. Every issue for determination must arise from the ground of appeal, that is the elementary rule in appellate proceedings.
Issue one is related to the ground of appeal because the complaint is that some of the reliefs sought in the trial court were not granted. In the absence of any respondents’ notice or cross appeal, it is my firm view that issue 2 is incompetent and ought to be struck out. I therefore strike out Issue 2. Consequently the arguments advanced in support of same are discountenanced.
See NEPA vs. Savage (2001) 9 NWLR (Pt.717) Page 230
Having struck out the respondent’s Issue 2, I will now look at the Issues formulated by the appellant and Issue one of the respondent. The appellant did not tie the issues to any ground of appeal as earlier noted. This approach is most inappropriate in brief writing. The essence of connecting the issues to the grounds is to ensure that there is no ground of appeal left abandoned and also for clarity of purpose that the issues emanated from the grounds thus averting speculation.
Nevertheless, because there is no rule of court that prescribed that Issues must be tied to the grounds in briefs of parties, the attitude of the courts appears to be one of liberality, the court is not to apply strict adherence to the practice but to ensure the issues are related to or arises from the grounds of appeal. Thus not penalizing the appellant for failure to connect grounds to issues in the interest of justice. I must note that the practice of specifying the grounds from which an issue is distilled from should not be ignored rather be encouraged and in my humble view sanctioned bearing in mind that speculation is not allowed in our legal system.
Having x-rayed the notice of appeal I find that the three Issues in the instance appeal arose from the grounds of appeal. The three issues are related and basically revolve on the same point. It is settled law that where issues postulated by parties on appeal are inappropriate the court can reframe the issues to do substantial justice.
The appellant’s 3 issues are related and the complaints basically encompasses one question which is whether the learned trial judge was right when he failed to consider and determine the issues canvassed and prayed for public apology and compensatory damages against the respondent.
Consequently I will rephrase the three issues to read thus whether the learned trial judge was wrong to have failed to consider or rule on the issues submitted for determination in relation to the prayers for public apology and compensatory damages. Where issues distilled for determination are inadequate having regards to the grounds of appeal filed, the court can attempt to identify the appropriate issues as long as the issue rephrased or reframed did not raise any new issue not contemplated by the grounds of appeal and not canvassed.
It is the contention of the appellant that section 56(1), 66(a) – (b) of the 1999 constitution, empowers the court to hear and determine all issues as presented by the parties. He submits that the learned trial judge had a duty to do substantial justice by considering the prayers for public apology and compensatory damages.
He cited Adebanjo vs. Brown (1990) 3 NWLR (Pt.141) Page 681.
The appellant argued that the learned trial judge having heard arguments from both sides and issues having been joined, the learned trial judge ought to have ruled on the point one way or the other. It is the further contention of the appellant that the trial judge having found the proof of evidence upon which he was arrested was frivolous and abuse of process had a duty to order for compensation and public apology in accordance with the provision.
It is the further contention of the appellant that he is entitled to apology and compensation pursuant to the provisions of section 35 (6) of the 1999 constitution which supersedes any rule of court. It is his submission that payment of compensation and tendering of public apology to a person wrongfully arrested and detained is a mandatory constitutional requirement and not a discretionary remedy of the courts.
Appellant submits that justice must not only be said to have been done but must be seen to have been manifestly carried out. He referred to the “reasonable man” test. He cited several cases.
The learned counsel for the respondent had argued his incompetent Issue 2 that was struck out with Issue one. The duty of the court is not to siphon the arguments in support of Issue one from the submissions in support of issue 2 struck out. The resultant effect of Issue 2 that was struck out is that the entirety of the supporting argument is discountenanced. Consequently argument in support of Issue one is affected. This is one of the hazards of arguing Issues together for determination. The unfortunate scenario is that the Respondent filed and relied on a brief of argument which in the final analysis is of no value as the Respondent has not responded to the appeal. The court is still enjoined to consider the merit of the appeal.
The appellant was charged along with another accused at the High Court. He filed an application praying for four reliefs earlier reproduced in this judgment. The appellant in that application set out the following grounds in support of the application. They read thus:
“a) The charge and proof of evidence do not disclose any prima facie case and or evidence against the 2nd accused person herein to warrant his trial for the offence of criminal misappropriation.
b) The charge is vexatious, malicious, egocentric, frivolous and a flagrant abuse of legal process by the prosecution.
c) The discretion of this honourable Court in granting the leave to prefer the charge against the 2nd accused was granted per in curiam (in error) and thus should be set aside.”
The appellant in his written address in support of the application distilled three issues for determination by the court. These issues in the applicants written address at pages 84 of the record of appeal reads thus:
“1. Whether there is a prima facie case made out against the 2nd accused person.
2. Whether the charges and proof of evidence amounts to an abuse of process.
3. Whether the discretion of this Honourable court in granting the leave to prefer the charge was validly exercised judiciously and judicially in the circumstances.”
The above issues were canvassed and submitted to the court below for determination. The learned trial judge in a well considered ruling on the issues held as follows: In respect of issue one and two, the learned trial judge held:
“In the instant case I have gone through the statement of witnesses or proof of evidence and I could not see any link between the charge before the court and the 2nd accused person. The Mobile Policemen who were said to have accompanied the 2nd accused to the premises of Access Bank in their statement they all said they were waiting for the 2nd accused outside the bank premises when they were arrested by EFCC Mobile Police while the statement of other witnesses disclosed that the 2nd accused went to the bank to secure the release to the 1st accused. There is nothing to link the 2nd accused with the alleged criminal misappropriation or theft of visa card or money.”
On Issue 3 which submission was on the discretion of the court below in granting leave to the prosecution to prefer a charge, the learned trial judge held:
“At the stage of granting leave to prefer a charge, the application is made x-parte. The court hears only one side i.e. the prosecution. But after hearing both sides upon on application seeking for an order to quash the charge(s) the Judge is in a better position to reassess the proof of evidence before him and leave earlier granted and sustain the leave or set it aside and quash the charges(s). The CPC provides a person accused of an indictable offence the right to have the charge(s) quashed where the offence alleged is not disclosed by the statement of the witnesses or proof of evidence or where there is nothing linking the accused person with the charge(s) or where the charge is an abuse of process of the court. See Ikomi v. State (1986) 3 NWLR (Pt.28) 314. Abacha v. State (2000) 7 SC (Pt.1) and Ohwovoriole v. FRIY (2003) 1 SC (Pt.1)1.
Having found that there is nothing in the proof of evidence linking the 2nd accused with the alleged offence. Accordingly the charges against the 2nd accused are hereby quashed-”
A careful perusal of the ruling of the court reproduced above shows clearly that the court below determined all issues submitted for consideration by the appellant. Where the offence for which an accused is charged is not disclosed by the statement of the witnesses or proof of evidence or where there is nothing linking accused to the charge, the charge will be quashed.
See Ikomi vs. State (1986) 3 NWLR (Pt.28) 314
Aituma vs. State (20006) 10 NWLR (Pt.989) 452 CA
Igabele vs. State (2004) 15 NWLR (Pt.896) 314 CA
In the instance appeal the learned trial judge considered the discretionary power of the trial court to grant permission to prefer a charge against the appellant and the issue of whether the offence in the charge is linked to the appellant.
The absence of the use of same words or phrase canvassed in the written addresses submitted in the court below in the judgment does not mean that the court below did not come to a decision on the three issues distilled and canvassed for determination. Therefore, the trial judge discharged his duty in compliance to the general rule that a court has a duty to pronounce on all material issues raised and submitted before it for determination.
See Olowolaeba & Ors vs. Bakare & Ors (1998) 3 NWLR (Pt.543) 528
The State vs. Ajie (2000) 7 SC (Pt.1) SC 24
Adabanjo vs. Brown (1990) 3 NWLR (Pt.141) Page 681
The trite law is that a trial court must make a finding on the legally admissible evidence adduced before it after full dispassionate consideration given to all issues canvassed before it. Once this is observed by the court the issue of fair hearing cannot arise.
The appellant’s complaint therefore is on an issue not submitted to the trial court for determination. It is on a point that cannot be described as new because it is founded on the reliefs sought before the trial court but was not canvassed. The appellant was the applicant that phrased the issues he wanted the court to determine which will lead to the grant of his reliefs. An application that is interlocutory in nature seeking specific reliefs will be granted once the prayers are established in lines with the rules or law to the satisfaction of the court. In the instance situation the appellant distilled issues for determination there was no issue submitted on entitlement to an apology or damages in a criminal matter.
The question is whether the trial judge erred in law when he failed to order for public apology and damages as prayed by appellant, and whether the failure occasioned miscarriage of justice and denial of fair hearing. I have held that the issue on apology was not submitted to the court below for determination but was a relief sought as a consequential order and the trial court did not make any order on that point. It is the failure to pronounce on this consequential order that is the crux of this appeal.
The issue of fair hearing may arise when a party submits an issue for determination before the court and the court fails to pronounce on it.
In Samba Pet Ltd & Another vs. UBA Plc. & 3 Others (2010) 5-7 SC (Pt.11) 22. The Supreme Court per Muhammed JSC held:
“It is thus, a statutory responsibility of all courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity.”
Miscarriage of justice will also arise if what is done is not justice according to law. Where the act or conduct is a departure from the rules which spreads all through judicial process such as to make what has happened not a judicial procedure allowed at all.
See: Total (Nigeria) Limited & Anor vs. Wilfred Nwako & Anor (1978) 5 SC 1 Page 14 SC 1 at Page 14
Section 35(1) (6) of the constitution provides that a person unlawfully arrested or detained shall be entitled to compensation and public apology.
This provision cannot be read in isolation of section 46(1) of the constitution which stipulates that any person who has alleged infringement of his right or who wishes to invoke any of the provisions under chapter IV of the constitution 1999 should seek relief in a high court as set out in the same constitution.
Section 46(1) of the constitution stipulates as follows:
“1. Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in the State for redress.
2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
The above reproduced provision is clear and unequivocal. It sets out the procedure for a person who feels his right under section 36(1) has been enfringed and he is entitled to an order under 36(1)(6).The appellant in his relief in the court below sought an order to quash the criminal charge against him as the main prayer and an order on apology and compensation as consequential.
The criminal charge against him was quashed by the court below. That ended the duty of the court in line with the provisions under the criminal procedure law. The trial Judge did not take the totality of evidence to consider whether the arrest was unlawful when he quashed the charges. At the point of the application to quash the charge the primary duty of the court was to determine looking at the proof of evidence and offence for which appellant was charged if there was anything linking the appellant with the offence charged. At that stage the prosecution had not called witnesses in support of the charge. The only evidence was proof of evidence and charge. The court could not have determined issue of lawfulness on the merit.
The learned trial judge did not find that the appellant was unlawfully arrested and determined. Furthermore, the relief sought by the appellant for apology and compensation can only be validly considered when channeled in a Civil Court after the arrest and detention have been adjudged unlawful by a competent court.
A party who claims apology and compensation under section 35(6) of the 1999 constitution must seek redress through the medium specifically provided for under section 46(1) of the 1999 constitution. Where a party decides to claim a relief through a wrong procedure the court lacks the competence to entertain that relief. The appellant having invoked the provisions of the constitution must follow the procedure to present the relief thereof as prescribed in section 46 of the 1999 constitution.
The learned trial judge had no jurisdiction to determine the question in the absence of any issue submitted for determination on that point. Furthermore, the court’s failure to pronounce on the reliefs sought in relation to compensation and apology cannot be faulted and that failure did not occasion a miscarriage of justice nor amount to denial of fair hearing. A decision to discountenance a relief not argued or not properly raised in a criminal trial cannot amount to a miscarriage of justice.
In Ovesun vs. Nzeribe (2010) 5 – 7 SC (Pt.11) 44. The SC per Fabiyi, JSC said:
“A party who failed to comply with the dictates of the applicable rule of court as herein, should not create a straw upon which to cling such was not good enough. It was to no avail after all.”
In the final analysis I find that the trial court did not find or determine the point on whether the appellant was unlawfully arrested and detained. The nature of the relief sought under section 35(1)(6) of the constitution is conditional. The court will first pronounce on the fact that there was an arrest and detention of the appellant and that it was unlawful before appellant can claim the relief for public apology and compensation.
The learned trial judge did not err in law when he made no order on payment of compensation and tendering of public apology to the appellant. The three issues formulated and submitted for determination by the appellant in his written address were duly considered and determined by the trial court. The failure to determine of any point not submitted or canvassed by parties will not amount to miscarriage of justice. To enjoy the provisions on fair hearing, under the 1999 constitution the relief has to be properly presented.
In the final analysis the sole issue rephrased is resolved against the appellant and the three grounds in the Notice of Appeal are dismissed. The appeal is devoid of merit and is hereby dismissed.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother REGINA OBIAGELI NWODO, J.C.A. had proficiently considered and resolved the issues that call for decision in this appeal in the lead judgment, a draft of which I had read before today.
I agree with the views stated and the conclusion that the appeal is wanting in merit and so fails. It is dismissed by me too.

PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Nwodo JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The Appellant’s application sought for three reliefs, namely:-
(a) An order quashing the charges and proofs of evidence against the 2nd accused,
(b) An order compelling the EFCC to tender an unreserved apology to him for wrongful arrest and detention and
(c) An order that the apology be published in the full page of three Newspapers.
Written addresses were ordered. In the written address filed by the Appellant, the following issues were submitted for determination of the application thus:-
1. Whether there is a prima facie case made out against the 2nd accused person.
2. Whether the charges and proof of evidence amounts to an abuse of process,
3. Whether the discretion of this Honourable Court is granting the leave to prefer the charge was validly exercised judiciously and judicially in the circumstances.
In an application where issues have been distilled and submitted, the Court’s decision must be based on those issues submitted for determination of the application.
Any claim that is not covered by the issues so formulated is deemed abandoned.
Finally the relief of apology is not within the realm of criminal cases, since the law allows law enforcement agents to apprehend and interrogate any person that is suspected of committing a criminal offence.
To ask law enforcement agents to apologize for any wrong arrest and interrogation in the manner the Appellant wants the Respondents to do in the instant case, will subject them to perpetual apologist, which in turn will affect their performance.
For the reasons I have stated herein and the more detailed reasoning in the lead judgment, I too find no merit in this appeal which I dismiss accordingly.
I endorse the order on cost made therein.