EZE v. STATE
(2022)LCN/16346(CA)
In The Supreme Court
On Friday, June 03, 2022
SC.864/2020
Before Our Lordships:
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
MABEL EZE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
POSITION OF LAW ON PRELIMINARY OBJECTION
This Court has countlessly stated that a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See:
Odunukwe v. Ofomata (2010) LPELR 2250 SC
Ndigwe v. Nwude (1999) 11 NWLR pt.626 p.314, NEPA v. Ango (2001) 15 NWLR pt.737 p.627. ABDU ABOKI, J.S.C.
POSITION OF LAW ON PRELIMINARY OBJECTION
Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See:
Muhammed v. Military Administrator Plateau State (2001) 16 NWLR pt.740 p.524;
NDIC v. Oranu (2001) 18 NWLR pt.744 p.183. ABDU ABOKI, J.S.C.
POSITION OF LAW ON PRELIMINARY OBJECTION
It follows therefore that the essence of a preliminary objection is to terminate an appeal in limine. Any objection to a ground or some grounds of appeal, not the entire appeal, is by way of motion on notice which could be argued in the brief, vide Okereke v. James (2012) 16 NWLR (Pt. 1326) 339 at 348-349. ABDU ABOKI, J.S.C.
POSITION OF LAW ON PRELIMINARY OBJECTION
The purpose of a preliminary objection is to smack off the hearing of an appeal in limine. It is only raised where the Respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Grounds of preliminary objection raised cannot, necessarily, be disposed of without ascertaining the facts in the case. A complaint about the competency of a Ground of Appeal is, therefore, not a matter for preliminary objection. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW ON PRELIMINARY OBJECTION
Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some Grounds of Appeal, the best procedure is by way of motion on notice. The rationale is that the success of the objection would not terminate the hearing of the appeal, Odunukwe v. Ofomata (2010) 18 NWLR (pt. 1225) 404, 423, paras C-F; Oladokun v. Olawoyin 2017) All FWLR (pt. 872) 1441; Jim-Jaja v. COP„ Rivers State (2013) 6 NWLR (pt. 1350) 225; L.M Ericsson (Nig,) Ltd v. Aqua Oil Nig, Ltd, (2011) LPELR- 8807 (SC); Ahaneku v. Ekeruo (2002) 1 NWLR (pt. 748) 301; Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228, The improper filing of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issues. This Court considers that this improper practice should stop. CHIMA CENTUS NWEZE, J.S.C.
POSITION OF LAW ON PRELIMINARY OBJECTION
A preliminary objection is not a suitable method of challenging the competence of a Ground of Appeal, which when upheld, cannot terminate the appeal. A motion on notice, filed complaining about a few grounds, would suffice, Adeleke v. INEC (2020) 11 NWLR (pt. 1734) 17; Auto Import and Export v. Adebayo (2002) 18 NWLR (pt. 799) 554. CHIMA CENTUS NWEZE, J.S.C.
ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Awka Division, (hereafter called the “Court below”), delivered on the 9th of July, 2020.
The Appellant was arraigned before V. N. Agbata, J., of the Idemili Division of the Anambra State High Court on a two count charge as follows:
COUNT (1) STATEMENT OF OFFENCE
Act intended to cause grievous harm, contrary to Section 288(g) of the Criminal Code Law of Anambra State, Chapter 36, Revised Laws of Anambra State of Nigeria, 1991.
PARTICULARS OF OFFENCE
Mabel Eze, on or about the 21/10/2014 at Our Plaza, located at Afor Nkpor, within the jurisdiction of this Court, with intent to do grievous harm, did unlawfully throw at Christian Eze, corrosive chemical substance to wit — Acid; which act grievously harmed Christian Eze.
COUNT (2) STATEMENT OF OFFENCE
Murder, contrary to Section 274(1) of the Criminal Code Law of Anambra State, Chapter 36, Revised Laws of Anambra State of Nigeria, 1991.
PARTICULARS OF OFFENCE
Mabel Eze, on or about the 21/10/2014 at Our Plaza, located at Afor Nkpor, within the jurisdiction of this Court, unlawfully killed Christian Eze.
The story of the Respondent, as Prosecution, is that the Appellant, Mabel Eze threw raw acid at her husband Christian Eze which eventually was said to have led to his death. According to the Respondent, the Appellant stated that she thought the deceased intended to elope with his secret lover, having converted her Eight Hundred Thousand Naira to personal use, after he told her (the Appellant) that he (the deceased) needed the money to start business. The Appellant upon sighting the deceased with his bag, decided to pour the raw acid on the deceased, which eventually caused his death.
The Appellant pleaded not guilty to the charges, and the matter proceeded to trial. In proof of its case, the Respondent called a sole witness, PW1, a Police Officer attached to the Police Headquarters, Awka. As stated by the PW1, when a complaint of an acid attack on the deceased Christian Eze, was lodged in the Police Station, he was detailed to investigate same. He went to the scene of the incident where he saw the deceased lying on the floor, with blood all over his body. He assisted in conveying the deceased to the hospital. He stated that he obtained the statement of the deceased at the hospital. The next day, the Appellant went to the Police Station. She volunteered her statement, which was admitted in evidence without objection, as Exhibit P4, wherein she admitted that she poured acid on the deceased.
In her defence, the Appellant testified as DW1 and called no other witness. She denied having thrown acid on the deceased and also denied having killed him. According to her, she lived together with the deceased, during which period she had three children for the deceased. She stated that she gave the deceased about N1.4 Million Naira for the purchase of a mini bus, and when he could not render an account of the whereabouts of the bus, they quarreled. She pushed the deceased and then ran away. She denied her statement to the Police.
At the end of the trial, the trial Court discharged and acquitted the Appellant of all the charges.
The Respondent was aggrieved by the judgment of the Trial Court, and appealed to the Court below. At the Court below, the Respondent (as Appellant), distilled three issues for determination as follows:
1. Whether the lower Court’s decision discharging and acquitting the Respondent on the grounds of the fact that the Appellant did not tender the autopsy report at the trial did not violate and amount to the wrongful interpretation of Section 55 (1) of the Evidence Act 2011.
2. Whether the refusal/negligence failure of the lower Court to consider the Appellant’s count 1 at the lower Court did not amount to denial of fair hearing and has not occasioned a miscarriage of justice to the Appellant.
3. Whether the Court of Appeal could invoke its powers under Section 15 of the Court of Appeal Act L. F. N. 2004 to rectify the error and consequently send/remit the case back to the High Court of Anambra State of Nigeria sitting in Ogidi for trial de novo (retrial) before another Judge.
The Appellant (as Respondent at the Court below) formulated two issues for determination thus:
1. Whether the trial Court erred by holding that the Prosecution did not prove that the death of the victim was traceable to the act of the defendant.
2. Whether there was a breach of the Appellant’s right to fair hearing by the non- determination of count one of the charge as to render the entire trial a nullity.
Learned Counsel for the Appellant (Respondent at the Court below), raised a preliminary objection on the grounds that Ground 3 of the Grounds of Appeal being an omnibus ground cannot sustain the issue of law raised in issue No 3. That issue 3 does not arise from Ground 3 of the Grounds of Appeal. That since Ground three (3) was argued with the other issues it rendered the whole argument of the Appellant incompetent.
The Court below in its judgment dismissed the Preliminary Objection, and held inter alia:
“It is trite that an Appellate Court can suo motu consider a substantial point of law arising from the Record of Appeal, even though such may not have been included in the Grounds of appeal. Once a ground of Appeal complained of arises from a decision appealed against, if the other party is not misled by it, it will not vitiate the appeal. The reasons contained in the said Preliminary objection not being enough to vitiate this appeal, the said Preliminary objection is hereby overruled”
The Appellant, thoroughly dissatisfied with this decision, appealed to this Court, via a Notice of Appeal filed on the 7th of August, 2020, containing a sole ground of appeal.
In line with the Rules and Practice of this Court, parties filed and exchanged their Briefs of Argument, which they adopted and relied on, as their arguments in support of their respective stance, when the appeal came up for hearing, on the 10th of March, 2022.
In the Appellant’s Brief of Argument filed on the 24th of November, 2020, and settled by G.B. Obi, Esq; a sole issue was distilled for determination, to wit:
“Whether the Court of Appeal was right to have overruled the Preliminary Objection on the ground that the complaint in the Preliminary Objection did not vitiate the appeal?”
This solitary issue was adopted by the Respondent, in the Respondent’s Brief, filed on the 1st of February, 2021, and settled by J.O. Onwujekwe, Esq.
In arguing the appeal, it is submitted on behalf of the Appellant that the reasons given by the Court below for overruling the Preliminary Objection, are untenable and the Court below committed a grave error of law, by discountenancing the Preliminary Objection.
Learned Counsel for the Appellant contended that the germane issue raised in the Preliminary Objection was the propriety or otherwise of arguing an incompetent issue for determination together/jointly with proper issues for determination.
He stated the settled principle of law that an omnibus ground of law is to question the propriety or otherwise of the decision appealed against, based on the evidence adduced, and opined that an omnibus ground of appeal cannot be used to raise an issue of law. He called in aid of his assertions, these cases:
Nwokidu v. Nkanu (2010) 3 NWLR (Pt. 1181) 362;
F.M.H. v. C.S.A Ltd (2009) 9 NWLR (Pt. 1145) 193;
Nsirim v. Amadi (2016) 6 NWLR (Pt. 1504) 42
Learned Counsel for the Appellant argued that Issue three, raised for determination by the Respondent at the Court below, did not arise from Ground Three of the Notice of Appeal, being an omnibus ground of appeal, and was therefore incompetent. He opined that an incompetent issue or ground cannot be argued together with other issues, as that would render all the issues incompetent. He maintained that the Court below was in error to have glossed over this fundamental issue and proceeded to hear the appeal, adding that the Court below ought to hold upheld the Preliminary Objection, and struck out the appeal. He placed reliance on the following cases:
Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38;
APGA V. Ohakim (2009) 4 NWLR (Pt. 1130) 116;
Visafone Comm. Ltd v. M.C.S.N. Ltd/GTE (2013) 5 NWLR (Pt. 1347) 250.
In the light of the foregoing, this Court is urged to resolve this Issue in favour of the Appellant, allow the appeal and set aside the judgment of the Court below.
In its response, it is submitted for the Respondent that the Court below was right to have overruled the Preliminary Objection on the ground that the complaint in the Preliminary Objection did not vitiate the appeal.
Learned Counsel for the Respondent contended that a Notice of Preliminary Objection should only be filed against the hearing of an appeal, and not against one or more grounds of appeal, which are not capable of disturbing the hearing of the appeal, and Court below was right to so hold.
Relying on General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596, Learned Respondent’s Counsel submitted that the purpose of a Preliminary Objection is to truncate the hearing of an appeal, in limine. He argued that where the objection will not fully dispose of the appeal, a preliminary objection is not the proper approach, adding that the Appellant’s mode of ventilating the Notice of Preliminary Objection, offended the provisions of Order 10 Rule 1 of the Court of Appeal Rules, 2016.
Learned Counsel for the Respondent argued that a party seeking for the invocation of the Court’s jurisdiction must satisfy all the pre-conditions laid down by the law, failure of which will be prejudicial to that party. Reliance was placed on the case of Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 218.
This Court is urged to resolve this issue against the Appellant, dismiss the appeal and affirm the judgment of the Court below.
This Court has countlessly stated that a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See:
Odunukwe v. Ofomata (2010) LPELR 2250 SC
Ndigwe v. Nwude (1999) 11 NWLR pt.626 p.314, NEPA v. Ango (2001) 15 NWLR pt.737 p.627.
Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See:
Muhammed v. Military Administrator Plateau State (2001) 16 NWLR pt.740 p.524;
NDIC v. Oranu (2001) 18 NWLR pt.744 p.183.
It follows therefore that the essence of a preliminary objection is to terminate an appeal in limine. Any objection to a ground or some grounds of appeal, not the entire appeal, is by way of motion on notice which could be argued in the brief, vide Okereke v. James (2012) 16 NWLR (Pt. 1326) 339 at 348-349.
In the present appeal, the Appellant’s contention is that the Court below was in error to have overruled the Preliminary Objection on the ground that the complaint in the Preliminary Objection did not vitiate the appeal. According to the Appellant, since Issue three was culled from the omnibus ground of appeal, it is incompetent and the Court below was in error to have proceeded with the hearing of the said incompetent appeal. The omnibus ground states thus:
“The Judgment/Decision is unreasonable, unwarranted and cannot be supported, having regard to the evidence.”
Whereas Issue three reads:
“Whether the Court of Appeal could invoke its powers under Section 15 of the Court of Appeal Act L. F. N. 2004 to rectify the error and consequently send/remit the case back to the High Court of Anambra State of Nigeria sitting in Ogidi for trial de novo (retrial) before another Judge.”
The law is settled, and as rightly stated by learned counsel for the Appellant, that the Court has no jurisdiction to re-open or entertain any issue or argument based on Grounds of Appeal or issues already struck out. The striking out of an issue or ground of appeal, puts an end to its existence. This is the import of the decision of this Court in Ikpeazu v. Otti (2016) LPLER 40055 SC; (2016) 8 NWLR (Pt. 1513) 38; cited by the Appellant herein. In that case, the grouse of the Appellant was that Issue 11 having been struck out should not have been treated together with Issues 2, 3, 5, 6, 7, 8, 10 and 17 by the Court below. This Court held that that the Court below has no jurisdiction to re-open or entertain any issue or argument based on Grounds of Appeal or issues already struck out. The striking out of the issue 11, puts an end to its existence.
With due deference to learned Counsel for the Appellant, the case of Ikpeazu v. Otti (supra) is not on all fours with the instant appeal. The reason is simple. Issue three under contention in the present appeal, was not struck out by the Court below. It was a live issue and the Court below was well within its rights, to consider a live issue before it.
Even if the third issue is incompetent and struck out, (which is not conceded,) the other two grounds of appeal were valid and competent to sustain the appeal, which was the stance of the Court below, when it held inter alia:
“…I have already reproduced part of the judgment of the trial Court, where the learned trial Judge made a finding of fact that the Respondent poured raw acid on the deceased. Having made the said finding of fact one then wonders what informed the sudden somersault to justify the verdict of acquittal on the Respondent and completely shut his eyes or looked the other way in respect of Count One i.e. act intended to cause grievous harm. In a Murder charge, where the cause of death is obvious, medical evidence (Autopsy report) ceases to be of any practical or legal necessity. Once the prosecution has established cause of death of the deceased and provided proof that the death was as a result of the unlawful and intentional act of the accused; medical report/evidence ceases to be a sine qua non to the conviction of the accused person … It is therefore clear that the failure by the trial Court to consider Count One of the charge is an infringement on the fundamental rights of the Appellant, it constitutes a miscarriage of justice and the entire trial at the Court below has become a nullity. This Court should in a situation like this intervene, distort, reverse and interfere. In the premise, the three issues are resolved against the Respondent and in favour of the Appellant. There is merit in this appeal and it is hereby allowed…”
From the above reproduced excerpt of the judgment of the Court below, it is evident that the fulcrum upon which the verdict rested, was the lack of fair hearing meted out to the Respondent herein by the trial Court, the consequence of which constituted a miscarriage of justice, and rendered the entire trial a nullity, as rightly held by the Court below.
The effect of all I have said is that the Court below was on firm ground, when it overruled the Preliminary Objection on the ground that the complaint in the Preliminary Objection did not vitiate the appeal.
This Issue is resolved against the Appellant.
In the final analysis, I adjudge this appeal to be devoid of merit and it is accordingly dismissed. The judgment of the Court of Appeal, Awka Division, delivered on the 9th of July, 2020, which remitted this case back to the Chief Judge of Anambra State to be assigned to another Judge of the High Court of Anambra State other than V. N. Agbata, J.; and for the case to be given accelerated hearing; is hereby affirmed.
Appeal dismissed.
CHIMA CENTUS NWEZE, J.S.C.: I have had the privilege of reading the leading judgment of my Lord, Aboki, JSC. I agree with the reasons and conclusion.
Before considering the substantive issues in this appeal, I wish, at the outset, to address, just like my learned brother had done in the leading judgment, an issue of paramount importance affecting Court’s practice and procedure in this country, namely, the treatment to be accorded to preliminary objections.
The purpose of a preliminary objection is to smack off the hearing of an appeal in limine. It is only raised where the Respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Grounds of preliminary objection raised cannot, necessarily, be disposed of without ascertaining the facts in the case. A complaint about the competency of a Ground of Appeal is, therefore, not a matter for preliminary objection.
Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some Grounds of Appeal, the best procedure is by way of motion on notice. The rationale is that the success of the objection would not terminate the hearing of the appeal, Odunukwe v. Ofomata (2010) 18 NWLR (pt. 1225) 404, 423, paras C-F; Oladokun v. Olawoyin 2017) All FWLR (pt. 872) 1441; Jim-Jaja v. COP„ Rivers State (2013) 6 NWLR (pt. 1350) 225; L.M Ericsson (Nig,) Ltd v. Aqua Oil Nig, Ltd, (2011) LPELR- 8807 (SC); Ahaneku v. Ekeruo (2002) 1 NWLR (pt. 748) 301; Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228, The improper filing of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issues. This Court considers that this improper practice should stop.
A preliminary objection is not a suitable method of challenging the competence of a Ground of Appeal, which when upheld, cannot terminate the appeal. A motion on notice, filed complaining about a few grounds, would suffice, Adeleke v. INEC (2020) 11 NWLR (pt. 1734) 17; Auto Import and Export v. Adebayo (2002) 18 NWLR (pt. 799) 554.
In the instant case, the Appellant challenged the competence of the Respondent’s appeal at the lower Court on the omnibus ground and issue three culled therefrom, and came by way of preliminary objection. I am of the opinion that this procedure was inappropriate and the lower Court, rightly, overruled the preliminary objection.
It is for these, and the more elaborate reasons in the leading judgment, that I too, shall enter an order dismissing the instant appeal.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Aboki, JSC, and without any hesitation, I adopt his reasoning and conclusion, which represents my views, and I also hold that this appeal totally lacks merit.
In the circumstances, I also dismiss this appeal and affirm the judgment of the Court of Appeal delivered on 9/7/2020, and the Orders made therein.
Appeal dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading the draft of the lead judgment just delivered by my learned brother ABDU ABOKI, JSC. I agree with His Lordship’s reasoning and conclusion that this appeal is devoid of merit and should be dismissed.
This is an appeal against the judgment of the Court of Appeal, Awka Division Coram C. E. Nwosu-lheme (JCA), R. N. Pemu (JCA) and B. G. Sanga (JCA), delivered on Thursday 9th July, 2020 allowed the appeal and ordered that the case be sent back to the High Court of Anambra State for retrial by another Judge. The facts that led to this appeal are as follows:
The Appellant was charged at the trial Court on an Information containing a two count charge of act intended to cause grievous harm contrary to Section 288 (9) of the Criminal Code of Anambra State, Chapter 36, Revised Laws of Anambra State of Nigeria, 1991 and Murder contrary to Section 274 (1) of the Criminal Code Law of Anambra State, Chapter 36, Revised Laws of Anambra State of Nigeria, 1991.
The Respondent (Prosecution at the trial Court) called a sole witness while the Appellant (Defendant) was called as the only witness to give her defence.
PW1 was Sergeant Benjamin Micheal, he gave evidence as follows: that he is a Police Officer attached to the Police State Headquarters, Awka. As at the date of the incidence which gave rise to this charge, he was attached to the Ogidi Division of the Nigerian Police Force. A complaint of an acid attack on a young man, later identified as Christian Eze, was lodged in the Police Station, and he was detailed to investigate same. He went to the scene of the incidence alongside his team, where he saw the victim lying helplessly on the floor, with blood all over his body and one Egbe Matthew, co-tenant of the victim was seen sprinkling water on the victim to resuscitate him. That he equally assisted in conveying the victim to the hospital and obtained the statement of the victim there in the hospital. That the Defendant came to the Police Station the following day and admitted having poured acid on the victim, who was her husband and she equally volunteered her statement to the Police
The bowl of the acid was tendered and admitted as Exhibit P1.
The clothes of the victim were also tendered and admitted as Exhibit P2.
The photographs and negatives of the photographs taken at the hospital of the deceased were tendered and admitted as Exhibit P3.
The Police investigation report together with the statement of the victim were also. tendered and admitted as Exhibit P4.
DW1, Mabel Eze, in her testimony denied having thrown acid on the deceased and also denied that she killed him. According to her, she lived together with the deceased, during which she spent sundry sums of money on him. She also had children for the deceased. Particularly, she gave the deceased the sum of N1,400,000.00 for the purchase of a mini bus and when he could not account for the where-about of the bus, she reported the matter to the police and demanded that he pay her all the money she had given him. On the date of the incident, she was in the market, when the deceased packed his belongings to leave, she rushed back and confronted him. They had a fight, she pushed him and then he ran away. She went again to the police station to report the issue, when she was apprehended and informed that she poured something on him which wounded him. She also denied her confessional statement to the police as not being voluntary.
The trial Court resolved that the Prosecution failed to prove all the ingredients of the offences charged against the Appellant beyond reasonable doubt.
The trial Court held that the Appellant was not guilty of the offence and accordingly discharged and acquitted the Appellant.
The government of Anambra State appealed. The Appellant at the Court of Appeal (now Respondent) raised the following issues for determination, thus:
1) Whether the trial Court decision discharging and acquitting the Respondent on the grounds of the fact that the Appellant did not tender the autopsy report at trial did not violate and amount to the wrongful interpretation of Section 55 (1) of the Evidence Act 2011.
2) Whether the refusal/negligence failure of the lower Court to consider the Appellant’s count 1 at the trial Court did not amount to denial of fair hearing and has not occasioned a miscarriage of justice to the Appellants.
3) Whether the Court of Appeal could invoke its powers under Section 15 of the Court of Appeal Act, L.F.N. 2004 to rectify the error and consequently send/remit the case back to the High Court of Anambra State of Nigeria sitting at Ogidi for trial de novo (retrial) before another Judge.
The Respondent at the Court below (now Appellant) raised the following issues for determination, thus:
1) Whether the trial Court erred by holding that the prosecution did not prove that the death of the victim was traceable to the act of the defendant.
2) Whether there was a breach of the Appellants right to fair hearing by the non-determination of count one of the charge as to render the entire trial a nullity.
The Respondent also raised a preliminary objection on the competence of the appeal on the following grounds:
1) Issue 3 of the Issues formulated by the Appellant distilled from Ground 3 of the Grounds of Appeal is incompetent as Ground 3 of the Grounds of Appeal being an omnibus ground cannot sustain the issue of law raised in Issue 3.
2) Issue 3 of the Issues for the Determination in the appeal does not arise from ground 3 of the Grounds of Appeal.
3) Issue 3 of the Issues for the Determination in the appeal, an incompetent issue was argued with all other issues thus rendering the whole argument of the Appellant in the Appellant’s Brief of Argument incompetent.
In the resolving the preliminary objection raised by the Respondent’s Counsel at the Court of the Appeal, the Court below held that an Appellate Court can suo motu consider a substantial point of law arising from the Record of Appeal, even though such may not have been included in the Grounds of appeal so long as parties were heard on it. Once a ground of appeal complained of arises from the decision appealed against, if the other party is not misled by it, it will not vitiate the appeal. The Court held that the point raised by the said preliminary objection not being enough to vitiate the appeal, the said preliminary objection was overruled.
In resolving the issues formulated by the Appellant and the Respondent, the Court below adopted the issues formulated by the Appellant.
In resolving issue one, the Court below held that the failure of the trial Court to consider count one of the charge occasioned a gross miscarriage of justice and amounted to denial of fair hearing. The Court below thereby labeled the judgment of the learned trial Judge as being perverse.
The Court below resolved all three issues against the Respondent and in favour of the Appellant. The appeal was allowed on its merit.
The Court below set aside the judgment of the trial Court and ordered that the case be remitted back to the Chief Judge of Anambra State to be assigned to another Judge of the High Court of Anambra State other than V. N. Agbata, J. for re-trial.
The Court below also revoked the bail granted to the Respondent by the trial Court and ordered that the Respondent be remanded in prison custody.
In this Court, the Appellant (Respondent at the Court below) identified a sole issue for determination in this appeal, thus:
Whether the Court of Appeal was right to have overruled the preliminary objection on the ground that the complaint in the preliminary objection did not vitiate the appeal.
The Respondent (Appellant at the Court below) relied and adopted the lone issue for determination formulated by the Appellant.
It is settled that preliminary objections are raised to the competence of an appeal when it would determine the appeal one way or the other without recourse to determining the merit of the appeal. The preliminary objection where it is upheld may lead to the dismissal or strike out of the appeal.
Where a complaint is merely against a ground of appeal and other grounds can be sustained, the proper thing is to file a motion to strike out the supposedly incompetent ground of appeal. The Appellant’s counsel did not appeal on the merits of the decision at the Court below but chose to pick a minor technical issue long settled by this Court. It is a disservice to the Appellant moreso as the Appellant may still be in prison custody. This appeal against the orders of the Court of Appeal is completely devoid of merit and is dismissed. I abide by all the orders in the lead judgment.
Appeal dismissed.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, ABDU ABOKI, JSC. I completely agree with the reasoning, conclusions, decisions therein.
Appearances:
G.B. OBI, ESQ For Appellant(s)
J.O. ONWUJEKWE, ESQ For Respondent(s)