DESTRA INVESTMENTS LTD.Vs FEDERAL REPUBLIC OF NIGERIA & 1 ORS (2018)

DESTRA INVESTMENTS LTD.Vs FEDERAL REPUBLIC OF NIGERIA & 1 ORS

(2018) LCN/4624(SC)

In the Supreme Court of Nigeria

Friday, January 12, 2018


Case Number: SC. 451/2017

 

JUSTICES:

    JUSTICE,

CHIMA CENTUS NWEZE     JUSTICE,

DAUDA SIDI BAGE

SUPREME COURT

KUMAI BAYANG AKAAHS

MUSA DATTIJO MUHAMMAD     JUSTICE,

EJEMBI EKO     JUSTICE,

 

APPELLANTS

1.    DESTRA INVESTMENTS LTD.

 

RESPONDENTS

1.    FEDERAL REPUBLIC OF NIGERIA2.    CHIEF OLISAMETUH

 

RATIO

Whether leave of Court is require to appeal against an interlocutory decision; effect of failure to obtain such leave
“The lower Court was right when it found that the decision of the trial Court is a discretionary one and an appeal querying an interlocutory decision on exercise of discretion must be by leave which was not sought before it was filed notwithstanding the fact that it took the point suo motu without inviting counsel to address it on the point. No miscarriage of justice has been occasioned by this action of resolving the issue suo motu. The appeal is incompetent and liable to be struck out.” Per AKA’AHS, J.S.C. (P. 8, Paras. D-F)

 

 

FAILURE TO OBTAIN LEAVE OF COURT FOR APPEAL OF AN INTERLOCUTORY DECISION

“Surely, the lower Court was right in its decision that the trial Court’s decision was a discretionary one. It has long been settled that any ground of appeal which challenges an interlocutory decision of a Court predicated on exercise of discretion is at best, a ground of mixed law and fact”

 

PRELIMINARY OBJECTION – WHETHER OBJECTION AGAINST THE HEARING OF A SUIT AND A SUBSTANTIVE MATTER CAN BE TAKEN TOGETHER

“This appeal is most unnecessary as it seeks to question the exercise of discretion by the learned trial Judge who decided to deal with the preliminary objection alongside the substantive case which charged the appellant and the 2nd respondent (who was 1st accused) with the offence of money laundering. After the no case submission was overruled, the appellant and the 2nd respondent entered their defence by calling DW1. As shown in the record the matter was adjourned for cross examination by 2nd defendant’s counsel and instead of proceeding with the cross-examination on the adjourned date, the 2nd defendant (now appellant) filed the preliminary objection challenging the Court’s jurisdiction to entertain counts 1 and 2 of the charge. I totally agree with the reply given by learned counsel for the 1st respondent to the effect that the application could not stop the Court from proceeding with the substantive trial since Section 396(2) of the Administration of Criminal Justice Act, 2015 allows for a consideration of any objection to be done at the time of delivery of judgement in the substantive case. The section provides:- “396(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgement provided that such objection shall only be considered along with the substantive issues and a ruling thereon mode at the time of delivery of judgement.” This provision allows for speedy trial of cases and is meant to obviate the difficulties often encountered by trial Judges who are most often bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible truncate trials of accused persons. Learned senior counsel argued rather forcefully that the Court below was in error when it held that a trial Judge is free to adopt any method that suited him in the determination of an application challenging the jurisdiction of the Court since the Supreme Court has laid down the principle that where the issue of jurisdiction is raised it must be decided upon first before the Court can proceed. The submission by learned senior counsel that the issue of jurisdiction is involved and so must be resolved first is not quite true. The case before the Court did not involve a dispute over breach of contract so as to bring the matter under the purview of the proviso to Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which stipulates that:- “Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in on action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

 

FULL JUDGEMENT

(Delivered bv KUMAI BAYANG AKAAHS JSC)
The appellant and 2nd respondent were arraigned before the Federal High Court sitting in Abuja in Charge No. FHC/ABJ/CR/05/2016 for the offences of Money Laundering contrary to sections 1, 15(2)(d)(6) and 17(b) of the Money Laundering (Prohibition) Act 2011 (as amended). The case proceeded to trial and the prosecution called eight witnesses who were cross-examined by the defence before closing its case. Both the appellant and the 2nd respondent made a no case submission which was dismissed by the trial court and they commenced their defence before filing the preliminary objection challenging the jurisdiction of the court to entertain counts 1 and 2 of the Charge on the ground that the counts contain, as one of their ingredients, the issue of award of contract for which the Federal High Court has no jurisdiction to receive evidence in proof thereof. After listening to the arguments of counsel the learned trial Judge decided to defer the ruling on the preliminary objection to be considered along with the substantive issue at the time of delivery of judgement. The appellant was dissatisfied with the decision and appealed against it via a notice of appeal dated the 27 day of April, 2016 which was filed on 29 day of April, 2016. The Court of Appeal, Abuja Division suo motu struck out the appeal on 10 May, 2017 without hearing the address of the parties. The lower court held that the appeal is an interlocutory decision of the trial court on exercise of discretion, the grounds of which are at best grounds of mixed law and fact for which leave to appeal before the notice is filed and since no leave was obtained before filing, the appeal is incompetent. The Court further held that if the appeal is competent, the Federal High
Court has jurisdiction over money laundering offences and there was nothing wrong in the trial court considering the preliminary objection with the substantive issues at the delivery of judgement as the law allows applications to be taken along with the substantive case.
Chief Tochukwu Onwugbufor SAN appearing for the appellant donated the following five issues for determination of the appeal viz:-
3.01 Whether the court below was right in holding that a Judge is free to adopt any method that suited him in the determination of the preliminary objection on jurisdiction including deferring the ruling on the preliminary objection on jurisdiction to be considered along with the substantive issues and that such decision to defer the ruling did not occasion any injustice to the appellant as the appellant has not shown any injury suffered by deferring the matter.
3.02 Whether the court below was right in striking out the appeal on the ground that the grounds of appeal question an interlocutory decision on the exercise of discretion of the trial court which are at best grounds of mixed law and fact which require leave and as no leave was sought and obtained, the grounds of appeal are incompetent.
3.03 Whether the appellant has not been denied its right of fair hearing, thus occasioning a miscarriage of justice, when the court below raised, suo motu, the issue of the incompetence of the grounds of appeal, decided on it and indeed struck out the appeal based on that issue without affording the parties including the appellant the opportunity to address it on that issue.
3.04 Whether the court below has not misapprehended the charge and issue before it when it held that the Federal High Court has jurisdiction to try the appellant of the offences of Money Laundering when the issue before the court below is whether the trial court has jurisdiction to receive evidence in proof of simple contract award which is an ingredient of counts 1 and 2 of the charge which the prosecution must prove to sustain the counts.
3.05 Whether the court below was right when it held that there is nothing wrong in considering the preliminary objection with the substantive issue at the delivery of judgement as the law allows applications to be taken along with the substantive case.
On receipt of the respondent’s brief he filed the appellant’s reply brief on 17 October, 2017 and it was deemed filed on 18 October, 2017, the day oral arguments of the appeal were taken.

The 1st respondent was represented by Sylvanus Tahir Esq. who formulated three issues for determination as follows:-

1. Whether the learned Justices of the Court of Appeal were not correct/right in upholding the ruling of the trial court to the effect that the Appellant’s preliminary objection to the jurisdiction of the trial court to try counts 1 and 2 of the charge is preserved and will be considered along with the substantive issues and ruling delivered at the time of delivery of the judgement and doing so did not occasion any injustice to the appellant Relates to grounds and 1 and 5.
2. Whether the learned Justices of the Court of Appeal were not at liberty to raise suo motu a point of law, to wit: the issue of the incompetence of the Appellant’s appeal, which touched on the court’s jurisdiction to determine the appeal and though, parties were not heard, same fell within the exception on the duty on court to hear parties on issues raised suo motu and in this case, it did not amount to a denial of fair hearing to either of the parties. Relates to grounds 2 and 3.
3. Whether the learned Justices of the Court of Appeal were not correct/right in holding that the trial court had the requisite jurisdiction under section 20 of the Money Laundering (Prohibition) Act, 2011 to try counts 1 and 2 of the charge, preferred against the Appellant, being offences of money laundering contrary to sections 15(2)(d) and 15(2)(b) respectively of the Money Laundering (Prohibition) Act, 2011 (as amended) in 2012. Relates to ground 4.

The 2nd respondent did not file any brief since he is standing trial along with the appellant for the offences charged.

This appeal is most unnecessary as it seeks to question the exercise of discretion by the learned trial Judge who decided to deal with the preliminary objection alongside the substantive case which charged the appellant and the 2nd respondent (who was 1st accused) with the offence of money laundering. After the no case submission was overruled, the appellant and the 2nd respondent entered their defence by calling DW1. As shown in the record the matter was adjourned for cross examination by 2nd defendant’s counsel and instead of proceeding with the cross-examination on the adjourned date, the 2nd defendant (now appellant) filed the preliminary objection challenging the Court’s jurisdiction to entertain counts 1 and 2 of the charge. I totally agree with the reply given by learned counsel for the 1st respondent to the effect that the application could not stop the court from proceeding with the substantive trial since section 396(2) of the Administration of Criminal Justice Act, 2015 allows for a consideration of any objection to be done at the time of delivery of judgement in the substantive case. The section provides:-

“396(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgement provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgement”.

This provision allows for speedy trial of cases and is meant to obviate the difficulties often encountered by trial Judges who are most often bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible truncate trials of accused persons.

Learned Senior counsel argued rather forcefully that the Court below was in error when it held that a trial Judge is free to adopt any method that suited him in the determination of an application challenging the jurisdiction of the court since the Supreme Court has laid down the principle that where the issue of jurisdiction is raised it must be decided upon first before the court can proceed. The submission by learned Senior counsel that the issue of jurisdiction is involved and so must be resolved first is not quite true. The case before the Court did not involve a dispute over breach of contract so as to bring the matter under the purview of the proviso to section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which stipulates that:-

“Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress ogolnst the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”.

The lower court was right when it found that the decision of the trial court is a discretionary one and an appeal querying an interlocutory decision on exercise of discretion must be by leave which was not sought before it was filed notwithstanding the fact that it took the point suo motu without inviting counsel to address it on the point. No miscarriage of justice has been occasioned by this action of resolving the issue suo motu. The appeal is incompetent and liable to be struck out. There is no merit in this appeal and it is accordingly dismissed.

The appeal is a storm in a tea cup. Learned senior counsel should expend his energies and knowledge of the law in ensuring the orderly development of society through strict adherence to the rule of law and where a person or company has been accused of an infraction of the law, the duty that the senior counsel owes by the privilege bestowed on him is to help the accused person/company to clear their name through due legal process and not seek to create the impression that his duty is to erect road blocks to frustrate justice from running its course.

The case is remitted to the Federal High Court sitting in Abuja for a speedy completion of the trial in the substantive case.

CHIMA CENTUS NWEZE, JSC: My Lord, Aka’ahs, JSC, obliged me with the draft of the leading judgement just delivered now. I agree with His Lordship that this appeal is, totally, devoid of merit.

Surely, the lower court was right in its decision that the trial court’s decision was a discretionary one. It has long been settled that any ground of appeal which challenges an interlocutory decision of a court predicated on exercise of discretion is, at best, a ground of mixed law and fact, FBN Plc v. Abrahim [2008] 18 NWLR (pt.1118) 172; Williams v. Mokwe [2005] 14 NWLR (pt. 945) 249.
Such a ground, no doubt, requires leave; hence, failure to obtain leave in such circumstances renders any such appeal incompetent, Nalsa and Team Associates v. NNPC[1991] 8 NWLR (pt. 212) 652; S.P.D.C (Nig) Ltd v. Katad (Nig) Ltd [2006] 1 NWLR [pt. 960] 198; Alamieyeseigha v. C.J.N [2005] 1 NWLR (pt. 900) 60. The appeal would, therefore, be liable to be struck out, Din v. A.-G. Federation [1988] 4 NWLR (pt. 87) 147; Adamu v. Ikharo [1988] 4 NWLR (pt. 89) 474; A- G. Oyo State v. Fairlakes Hotels Ltd [1988] 5 NWLR (pt 92) 1; Odekilekun v. Hassan [1997] 12 N.E.R.D.C v. Gonze (Nig.) Ltd. [2000] 9 NWLR (pt. 673) 532; UBN Plc v. Songuro [2006] 16 NWLR (pt.1006) 504; Anaechebe v. Ijeoma [2014] 14 NWLR (pt.1426) 168; Allanah and Ors v Kpolokwu and Ors (2016) LPELR -40724 (SC) 34; C-F.
It is for these, and the more detailed, reasons in the leading judgement that I, too, hold the view that this appeal is unmeritorious. I abide by the consequential orders in the leading judgement.

MUSA DATTIJO MUHAMMAD. JSC: I have read in draft the lead judgment of my learned brother KUMAI BAYANG AKAAHS JSC just delivered and completely agree with the reasoning and conclusion therein that the appeal is very very unnecessary. I imbibe all the reasons advanced in the lead judgment as mine in dismissing the appeal. I also abide by the consequential orders that emanate from the dismissal.

SIDI DAUDA BAGE. JSC: I have had the benefit of reading in draft the lead Judgment of my learned brother Kumai Bayang Akaahs, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. There is no merit in this appeal and it’s accordingly dismissed.
I abide by all the orders contained in the lead Judgment.

EJEMBI EKO, JSC: The trial court, in exercise of its undoubted discretion, had decided to deal with the preliminary objection. In the final Judgment the Preliminary objection was brought by the appellant herein
through its counsel, Chief Tochukwu Onwugbufor, SAN, after the trial court had dismissed its no case submission. The defence had commenced before the notice of preliminary objection, challenging the jurisdiction, was raised. The trial court, in its wisdom, thought it wiser and more expeditious that the points raised in the preliminary objection should be considered in the final judgment. It took into consideration the point in the proceedings at which the preliminary was raised. Purporting to be irked by the trial court’s exercise of discretion to defer ruling on the preliminary objection, the appellant lodged his appeal against the interlocutory decision on an issue that is purely discretionary. The appellant did not seek leave to lodge this interlocutory appeal to the lower court.

The lower court upheld the contention of the prosecutor, the respondent thereat, that the appellant needed to have first sought and obtained leave before filing the interlocutory appeal challenging the exercise by the trial court of its discretion to defer ruling on the apparently mischievous application designed merely to slow the pace of the trial. The lower court had correctly ruled that the interlocutory appeal was incompetent and struck it out. On the merits, the lower court further held that there was nothing wrong in the trial court considering the preliminary objection with the substantive issues in the trial in the final judgment of the trial court. This further appeal, completely unnecessary and frivolous, is a gross abuse of court’s process in view of the unambiguous provisions of Section 396(2) of the Administration of Criminal Justice Act, 2015. The learned Senior counsel for the appellant should have been more circumspect in not only associating himself with the appeal in the first place but pursuing it further to the apex court.
For the records, Section 396(2) of ACJA, 2015 provides –
After the plea has been taken, the defendant may raise any objection to the validity of the charge or the Information at any time before judgment provided that any such objection shall only be considered along with the substantive issues and ruling thereon made at the delivery of judgment.

The proviso to Section 396(2) ACJA offers statutory backing justifying the stance of the trial court. In my firm view, the trial court and Court of Appeal were right. The misconception of the appellant’s counsel in this appeal is conspicuous. The course embarked upon by the appellant does not seem intended to further the course of justice, particularly speedy trial that Section 396(2) ACJA and Section 36(1) of the Constitution are all about.

My learned brother, K.B. AKAAHS, JSC, had availed me the draft of the lead Judgment in this appeal. I hereby adopt it, including the orders made therein. The appeal is frivolous and it is hereby dismissed in its entirety. The case, as ordered in the lead judgment, is remitted to the trial court for continuation and conclusion, and shall be given accelerated hearing.

COUNSELS

Chief Tochukwu Onwugbufor, SAN, with Ogochukwu Onwugbufor, Esq., for the Appellant
Sylvanus Tahir, Esq,, with Ben Uhi, Esq; Richard Dauda, Esq; Funke Durojaiye, Esq; and Aisha Ibrahim, Esq., for the 1st Respondent Emeka Etiaba, SAN, with Joy Etiaba, Esq., for the 2nd Respondent

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