CLEMENT AVIOMOH v. COMMISSIONER OF POLICE & ANOR (2014)

CLEMENT AVIOMOH v. COMMISSIONER OF POLICE & ANOR

(2014)LCN/7166(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of May, 2014

CA/A/517C/2012

RATIO

DUTY OF COURT: EVALUATION OF EVIDENCE

The law is settled, that a court of law has the duty to consider every material aspect of a party’s case validly made, and make a pronouncement on it, otherwise the right of fair hearing would be breached. In BRAWAL SHIPPING V. ONWADIKE (SUPRA), the Supreme Court per Uwaifo JSC at page 522 held –

“…this Court demands of and admonishes the courts to pronounce as a general rule, on all issues properly placed before them for determination in order apart from the issue of fair hearing, not to risk the possibility that the only issue decided by them could be faulted on appeal. It has made this clear in its observations in several cases including Oyediran v. Arise (1970) 1 ALL NLR 313 at 317; Ojobue v. Nubia (1972) 6 SC (Reprint) 127….”

This case was followed in a number of cases that came up later. See KRAUS THOMPSON VS. UNICAL (2004) 9 NWLR (Pt. 879) 631 AND ADEBAYO V. A.G OGUN STATE (2008) 7 NWLR (pt. 1085) 201. PER ABUBAKAR DATTI YAHAYA, J.C.A.

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

CLEMENT AVIOMOH Appellant(s)

AND

1. COMMISSIONER OF POLICE
2. SUNDAY ESAN Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): The decision giving birth to this appeal arose on the 24th day of May 2012, when the High Court of the Federal Capital Territory gave its judgment, upholding the Ruling of the Chief Magistrate Court, Wuse Abuja.

One Femi Otedola made a direct complaint to the Chief Magistrate Court Wuse, against the appellant herein, and one other. The Magistrate ordered an investigation. The Police investigated, and arraigned the appellant on a First Information Report (FIR) for joint acts of defamation of character, injurious falsehood, printing or engraving matter known to be defamatory and sale of printed or engraved substance containing defamatory matters contrary to sections 79, 392, 393, 394 and 395 of the Penal Code Cap 53, Laws of the Federation of Nigeria 1990. The appellant filed a Preliminary Objection on the grounds that the Chief Magistrate Court had no jurisdiction to entertain the proceedings. The Chief Magistrate Court overruled the Objection, holding that it had jurisdiction to hear and determine the case.
The appellant was dissatisfied and appealed the Ruling to the High Court of the Federal Capital Territory Abuja. The High Court in its appellate jurisdiction, upheld the Ruling of the Chief Magistrate Court. That is why the appellant has further appealed to this Court.

In keeping with our Rules, the Appellant’s Counsel settled the brief of the appellant and it was filed on the 28/1/13, but deemed filed on the 18/2/14. In it, the following three Issues were identified.

1. Whether the court below was right when it held in effect that the First Information Report (FIR) upon which the appellant was arraigned before the trial court and the entire proceedings were not unconstitutional, illegal and null and void.

2. Whether the court below was right when it failed to hold that the First Information Report (FIR), in respect of which the appellant was arraigned, is constitutional, in that the alleged offences contained therein constitute a flagrant violation and subjugation by criminal process of the constitutionally guaranteed freedom of expression and opinion of the appellant.

3. Considering the appellant’s extensive submissions to the lower court on the jurisdictional issue of the competence of the prosecution in the matter, whether the lower court was right to have failed to hear and determine the said issues canvassed before it by the appellant.

The respondent adopted the issues identified by the appellant. I shall therefore utilise the issues raised by the appellant.

ISSUE No.3

Considering the Appellant’s extensive submissions to the lower court on the jurisdictional issue of the competence of the prosecution in the matter, whether the lower court was right to have failed to hear and determine the said issues canvassed before it by the appellant.

On this issue, the appellant submitted that the issue of jurisdiction was raised before the lower court, on grounds and arguments to be found at pages 162 – 166 of the Record of appeal. Counsel argued that the lower court failed to consider and determine the issues raised, because it had determined the issues in a Ruling it gave, similar to the appellant’s issues, in another appeal – page 198 of the Record. Counsel argued that the wholesale adoption by the lower court, of its judgment in a separate appeal in SUNDAY ESAN V. COP, which was heard separately and was not consolidated with the appellant’s appeal, in the treatment of the issues raised, is in breach of the appellant’s right to fair hearing, and has occasioned miscarriage of justice. Counsel referred to BRAWAL SHIPPING V. ONWADIKE (2000) 6 SCNJ 508 at 522 to submit that a court has the duty to consider all issues raised before it and determine them. He argued that had the lower court considered and determined the issues raised, it would have found that the Chief Magistrate Court had no jurisdiction to entertain the matter. He urged us to invoke section 16 (Sic) of the Court of Appeal Act to determine the issues.
The learned counsel for the respondent in his response on this issue, submitted that issue three formulated by the appellant at the lower court, was whether the Chief Magistrate had jurisdiction to entertain the case. He then referred to pages 197 – 198 of the record of appeal where the court below took up the issue. Counsel submitted that a court of law has a duty to consider all issues raised before it, and make pronouncements on same. He argued that the lower court was right in determining Issue 3 the way it did, because the said issue 3 was the same with the lone issue raised by Sunday Esan in the sister appeal of Sunday Esan vs. COP. The lone issue was extensively considered in that appeal, and it was dismissed. The court below was therefore right, he argued, when it limited itself to the issue of jurisdiction of the trial Chief Magistrate raised in issue three before the court, and not delving into the issue of the competence of the prosecution as that was not included in issue three. He then submitted that the court below exercised its “power and consolidated issue three as formulated by both the appellant and 2nd Respondent in their appeal and made pronouncement on same to avoid being too repetitive…..”

Counsel argued also, that the appellant has not shown what miscarriage of justice has been occasioned by not delivering a separate pronouncement on the issue. He submitted that the failure of the court below to “reproduce the same decision which was earlier given by the court on issue three in the appeal of the co-accused Sunday Esan, now 2nd respondent, did not occasion a miscarriage of justice because the appellant was not left in doubt as to the position of the court, especially as the appellant was in court and fully represented by his counsel when the judgment was delivered. He urged us to resolve the issue in favour of the respondent.

Now, the learned counsel for the respondent has argued that the court below had “consolidated issue three as formulated by both the appellant and 2nd Respondent in their appeal and made pronouncements on same to avoid being too repetitive.”

I have not seen the Notice of Appeal filed by Sunday Esan and my attention has not been drawn to it in this Record of Appeal. Only the appellant’s appeal, vide his Notice of Appeal at pages 149 – 155 is seen, in respect of his appeal to the court below, from the decision of the Chief Magistrate Court, And his brief of argument is at pages 157 – 168 of the Record. The brief of Sunday Esan is not there. Again, the judgment in respect of the Notice of Appeal at pages 149 – 155, is only in respect of one appellant, and he is the present appellant and it is in respect of appeal No. CRA/29/2011. Sunday Esan is not stated therein, as an appellant. The alleged appeal of Sunday Esan in appeal No. CRA/26/2011 is not in this Record of Appeal. There is also nothing in the Record, to show that appeals Nos. CRA/26/2011 and CRA/29/2011 have been consolidated. If they have not been consolidated, how can issue three as formulated by both the appellant and Sunday Essan (2nd respondent) in two separate appeals be consolidated? Learned counsel for the respondent has therefore not based his argument on facts before this court, in respect of consolidation.

This case was followed in a number of cases that came up later. See KRAUS THOMPSON VS. UNICAL (2004) 9 NWLR (Pt. 879) 631 AND ADEBAYO V. A.G OGUN STATE (2008) 7 NWLR (pt. 1085) 201.

In the instant appeal, the appellant at the court below on Issue 3, raised the issue of competence and jurisdiction of the Chief Magistrate Court to entertain the proceedings. The court below, in consideration of the said Issue 3, stated at pages 197 – 198 of the Record of appeal, thus –

“We must remind ourselves that this appeal emanated from the same sets of facts, trial and proceedings as that of Sunday Esan V. COP Suit No. CR/57/2011 (Appeal No. CRA/26/2011). This appellant and Sunday Esan were arraigned on the same First Information Report, the same alleged offences, were accused by the same complainant (Femi Otedola) through the same direct written complaint, arraigned before the same court of Hafsat Soso Sadiq…

While the appellant here came on 3 grounds of appeal giving rise to 3 issues for determination, Sunday Ean came on only one ground of appeal leading to only one issue for determination. The common ground of appeal, and in effect, common issue for determination is the above issue No. 3, to wit: Whether the learned Chief Magistrate has jurisdiction to entertain the case.

That issue has been treated in the appeal of Sunday Esan’s case (Supra) which Ruling we just delivered. Being the same issue, the same argument for and against, our treatment of it is therefore bound to be the same. It suffices to say that for all those reasons amply enunciated in our Ruling in the appeal of Sunday Esan V. COP (Supra), this 3rd and last issue is resolved in favour of the prosecution. The learned Chief Magistrate was right in dismissing the preliminary objection. We uphold her Ruling. She has jurisdiction to try the case…” (Underlines mine).

The court below had thus adopted its judgment in the appeal of SUNDAY ESAN V. COP CRA/26/2011 (an appeal which is separate and distinct), and applied it to the appeal of the appellant in CRA/29/2011, when it had not consolidated the two appeals. This Record of appeal does not contain the judgment in respect of Sunday Esan’s appeal. We do not therefore know the reasons and how the court below, arrived at its decision in the appellant’s appeal. The appellant does not know, from the Ruling given by the court below, why his Issue No. 3 was dismissed. He has to go to another judgment in which he is not a party to know of those reasons! This is grossly unfair, and has led to miscarriage of justice as the Issue 3 he submitted to the court below, had not been determined. Once a breach of fair hearing is established, the whole proceeding is a nullity and it will not be allowed to stand. See F.B.N PLC V. T.S.A LTD (2010) 15 NWLR (Pt. 1216) 247. In view of this, Issue No. 3 is resolved in favour of the appellant and against the respondent.

ISSUE NO. 1

Whether the court below was right when it held in effect that the FIR upon which the appellant was arraigned before the trial court and the entire Proceedings were not unconstitutional, illegal null and void.

Learned counsel for the appellant cited section 36(8) and 12 of the 1999 Constitution (as amended) and then referred to the FIR with which the appellant was being proceeded against (page 100 of the record), to submit that the appellant was taken to court for violating offences contained in the penal Code, Laws of the Federation of Nigeria 1990. He argued that with the coming into effect of the Laws of the Federation of Nigeria 2004, the Laws of the Federation of Nigeria 1990, had been repealed and had ceased to exist. So, to bring an FIR on the basis of offences in the penal Code, Laws of the Federation of Nigeria 1990, against the appellant, is to proceed against him on a non-existing written law and this is unconstitutional, he argued. It does not matter, he said, that the Penal Code Laws of the Federation of Nigeria 2004, contains provisions similar to the Penal Code, Laws of the Federation of Nigeria 1990. He urged us to hold that the attempt to charge or criminally proceed against the appellant by the trial court, under the Laws of the Federation of Nigeria 1990, is an exercise in futility, devoid of any legal effect or validity. He referred to MCFOY V. UAC (1961) 3 ALL E.R. 1169 and JAMES V. OKEREKE (2008) 13 NWLR (Pt. 1105) 544.

In his response, learned counsel for the respondent submitted that the position taken by the appellant is erroneous because the FIR he placed reliance upon at page 100 of the record, is not the relevant one, as it had been withdrawn and was struck out. A new one was substituted and it was the basis upon which the appellant was proceeded against, at the trial Chief Magistrate Court. He urged us to resolve the issue in favour of the respondent.

The said F. I. R at page 100 of the Record, is the allegation against the appellant for the offences of

“Joint Act, defamation of Character, injurious falsehood, Printing or engraving matter known to be defamatory and sale of printed or engraved substance containing defamatory matter, contrary to sections 79, 392, 393, 394 and 395 of the Penal Code, Cap 531 Laws of the Federation of Nigeria 1990.”

On the 10th of February 2011, the prosecution at the trial Chief Magistrate Court (page 23 of the record), moved an oral application, in the presence of the appellant’s counsel Mr. Mike Ezokome SAN,

“…brought pursuant to section 208 CPC to withdraw the earlier FIR filed and substitute same with the one filed today.”

Although counsel for the appellant objected, the court overruled the objection and granted the oral application (page 25 of the record). The “amended FIR” was read to the appellant who responded that “it is false.” After a 10 minutes stand down, the learned senior counsel for the appellant moved his objection and addressed the court at length. The prosecutor replied and the trial Chief Magistrate Court adjourned for Ruling. See pages 26 – 38 of the Record. On the 18th of March 2011, the trial Chief Magistrate Court delivered its Ruling (pages 142 – 148 of the record). It was this Ruling that was the subject of the appeal to the court below.
It is therefore patently obvious from the record, that the initial FIR (page 100 of the record) was not the extant F.I.R that the appellant was proceeded against, but another one, which is contained at page 39 of the Record. The offences therein, are

“Joint Act, defamation of character, injurious falsehood, printing or engaging (sic) matter known to be defamatory and sale of printed or engraved substance containing defamatory matter contrary to sections 79, 392, 393, 394, 395 of the Penal Code Law.”

No reference whatsoever, was made to laws of the Federation of Nigeria, 1990, or even 2004. This has clearly put paid to the argument of the appellant, as there is no suggestion that Penal Code per se, is not an existing written law. The argument of counsel in Issue No. 1 is clearly misconceived. The Issue is resolved in favour of the respondent and against the appellant.

ISSUE NO. 2

Whether the court below was right when it failed to hold that the FIR in respect of which the appellant was arraigned, is unconstitutional, in that the alleged offences contained therein constitute a flagrant violation and subjugation by criminal process of the constitutionally guaranteed freedom of expression and opinion of the appellant.

Learned counsel for the appellant submitted that sections 79, 392 – 395 of the Penal Code, which are the offences stated in the FIR against the appellant, are in conflict with section 39(1) of the 1999 Constitution as amended, which guarantees freedom of expression. The provisions of the penal Code are therefore a “brazen criminalization of the exercise of the rights guaranteed by the Constitution”, a criminalization, of civil conducts, which is unconstitutional, null and void. He referred to NWANKWO V. STATE (1983) 1 NCR 366. He argued further, that there is nothing in sub-section 3 of section 39 of the Constitution that diminishes the right of freedom of expression, conferred by the section. He therefore urged us to hold and declare sections 79, 392, 393, 394 and 395 of the penal Code unconstitutional and to quash the FIR in respect of the appellant.

Counsel for the respondent denied that the F.I.R in respect of which the appellant was arraigned is unconstitutional. He argued that although section 39(1) of the 1999 Constitution guarantees citizens the right to freedom of expression, limitations are provided by section 45(1) of the Constitution, and there is therefore, no conflict.

Learned counsel referred to the case of NWANKWO VS. STATE (SUPRA), cited by counsel for the appellant and submitted that it is in applicable to this appeal because that case dealt with the offence of sedition under the criminal code, whereas this appeal is in relation to the offence of criminal defamation of character under the provision of the Penal Code.
He urged us to resolve the issue in favour of the respondent.

It is correct that the freedom of expression and freedom to hold opinions, are rights accruing to Nigerian Citizens. Section 39(1) of the 1999 Constitution as amended provides: –

“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

It is also correct, as submitted by learned counsel to the appellant, that section 39(3) of the Constitution does not diminish the rights in section 39(1) of the Constitution. However, section 45(1) of the Constitution is very clear in its limitations. It states thus –

“Nothing in sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.”

What the above means, is that section 39 of the 1999 Constitution as amended, which is relevant for our purposes here, cannot operate, to invalidate any law promulgated by any legislative body, when that law is made in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.
So when section 39(1) of the Constitution entitles a person to freedom of expression and imparting ideas and information, it is not a blanket right. It must not be utilised or invoked in such a way, that it offends public safety, order, morality and health, and it must not be injurious to the rights and freedom of other persons. Once a person lives in a community, his rights stop where the rights of the other members of the community begin.
He has to behave according to the norms of that society, otherwise his conduct will be injurious to the well being and continued existence of that community. He cannot, in the guise of exercising his freedom of expression or imparting information, trample upon the rights of other persons in the society. He must not act in such a way, that he defames their character or endanger their safety, health, order or morality. The Constitution recognizes the fact that if such a person acts to the detriment of others, he can be liable in a civil action, but the issue goes beyond the right of an injured individual to act and the whole society has to be involved to protect itself. Hence, criminalising such conduct of the individual. That is why section 45(1) of the Constitution was promulgated.
The F.I.R filed against the appellant is in respect of the offences of defamation of character, injurious falsehood printing or engraving such matter. These are offences that are against public morality, health and order of the society. They, if proved, would have injured the rights and well being of the appellant in his character and reputation. They are therefore within the ambit of section 45(1) of the 1999 Constitution. So the said offences alleged against the appellant in the F.I.R, as contained in the Penal Code, are not unconstitutional, and have not constituted a flagrant violation and subjugation by criminal process, of the constitutionally guaranteed freedom of expression and opinion of the appellant.
The case of NWANKWO V. STATE (SUPRA) relied upon by the appellant is inapplicable here, because it involved offences under the Criminal Code, not the Penal Code. Here, the offences are contained in the Penal Code, and it is the Penal Code that the appellant is attacking, not the Criminal Code. Further, the offices of criminal libel and slander, in the criminal code, were never declared in NWANKWOS case, to be unconstitutional. In quoting Olatawura JCA (as he then was) at page 7 of the appellant’s brief, the learned justice was categorical, when he said the decisions to include freedom of speech in the Constitution, including the freedom to criticize.
“…should be praised, and any attempt to derogate from it except as provided by the Constitution must be praised…” (Underline mine).
So, he too recognized that there are exceptions to the exercise of the freedom of speech and criticisms and when it is the Constitution itself that makes the exception, then that is it. Section 45(1) of the 1999 Constitution has made the exception and so any law made in line with section 45(1) of the Constitution qualifies as an exception and cannot be unconstitutional.
In DPP V. CHIKE OBI (1961) 1 ALL NLR 186, referred to by the respondent, it is clear that the Supreme Court of Nigeria recognized and held that the right to criticize, should not be exercised in such a manner that public order would be affected and if that is done, then section 51 of the criminal code which is an offence of sedition, would not be unconstitutional.
The court below was therefore right when it held that the F.I.R and the offences suggested therein against the appellant, are not unconstitutional. Issue No. 2 is resolved in favour of the respondent and against the appellant.
Issues Nos. 1 and 2 have been resolved against the appellant. The appeal in respect of those Issues has therefore failed and is dismissed. However, Issue No, 3 has been resolved in favour of the appellant. It is on jurisdiction and this Court is not seised of the reasons why the court below dismissed that issue of jurisdiction. It stated that its reasons are contained in another judgment – SUNDAY ESAN V. COP, Appeal No. CRA/26/2011. It would be improper to decide the Issue without knowing the basis. It would also be improper to go and search for that other judgment, find out the reasons why the court below decided the way it did in respect of SUNDAY ESAN and then import same to this appeal and decide it. In view of this therefore, Issue No. 3, which is on jurisdiction and which has not been addressed by the court below, is remitted back to the court below, differently constituted, to decide it’ The Chief Judge of the High Court of the Federal High Court shall therefore act
accordingly.
No Order as to costs.

MOORE A.A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment of my learned brother, Abubakar Datti Yahaya, JCA, just delivered. My learned brother has, in a very comprehensive manner, considered and dealt with the issues in this appeal.
I completely agree with the reasoning and conclusion of my learned brother that having resolved the threshold issue, that is issue 3, in favour of the appellant, this appeal ought to be allowed. I also allow this appeal as being meritorious. I abide by the consequential orders in the leading judgment.

TINUADE AKOMOLAFE-WILSON, J.C.A: I read in draft the lead judgment delivered by my learned brother, Abubakar Yahaya, JCA and concur that this appeal be allowed for the comprehensive reasons and conclusions arrived therein. I abide by the consequential orders given in the lead judgment.

Appearances

Benson Igbamoh with McMillan IgboFor Appellant

AND

Simon Lough
S. G. Kekere-AkpeFor Respondent