ICHIE BONIFACE UFOEGBUNAM & ORS v. FEDERAL REPUBLIC OF NIGERIA (2019)

ICHIE BONIFACE UFOEGBUNAM & ORS v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/12971(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/E/11C/2017

RATIO

WHAT THE COURT MUST DO WHEN IT DISCOVERS NO PRIMA FACIE CASE

The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a prima facie case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge, discharge him. In HON. YAKUBU IBRAHIM & ORS. V. COMMISSIONER OF POLICE (2010) LPELR-8984(CA), this Court held that:

“A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence charged. (b) when the evidence adduced by theprosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safely convict on it. See Ohuka v. State (NO. 2) (1988) 4 NWLR (pt 86) 36 if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged, a Court of trial must, as a matter of law, discharge him…PER ABUBAKAR SADIQ UMAR, J.C.A.

INTERPRETATION OF THE LAW: THE COURT IS BOUND TO UPHOLD THE LITERAL INTERPRETATION OF THE LAW

This Court is bound to uphold the literal interpretation of the law and give force to the intent of the law makers without more as enjoined by the Supreme Court in the case of HONOURABLE IKUFORIJI V FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43884(SC) where it was held that:

Ours, as the judex, is to interpret the law and declare what it is. In interpreting a statute, the object is to discover the intention of the legislature and bring it out. The intention of the statute is usually deduced from the language used in the statute. We cannot therefore go outside the words in the language of the statute where the words used are clear and unambiguous they must be given their ordinary plain meaning, so as to avoid reading into the provisions meanings not intended by the lawmakers. See also ISHOLA v. AJIBOYE (1994) 1 NWLR (pt. 352) 506; P. D. P. v. C. P. C & ORS (2011) LPELR- 2909 (SC). Accordingly, in its interpretative jurisdiction the Court does not, and must not interpret a statute by placing a gloss on the provisions by reading into the provisions words neither used, contemplated nor included therein. Thus, as I stated elsewhere in OBI v. OJUKWU & ANOR (2009) LPELR 8511 (CA), when the words of a statute are plain and unambiguous; the plain duty of the Court interpreting the statute, is to bring out its overriding objective.PER ABUBAKAR SADIQ UMAR, J.C.A.

APPEAL: ISSUES FOR DETERMINATION: WHERE AN ISSUE OR ARGUMENT IS NOT PREDICATED ON A GROUND OF APPEAL

Where an issue or arguments is not predicated on a ground of appeal, then it becomes an issue with no leg to stand on and such issue has no place in our legal system. It deserves to be struck out for being incompetent.

See ALHAJI KOKORO-OWO AND 6 ORS. V. LAGOS STATE GOVERNMENT AND 4 ORS (2001) 11 NWLR (PT. 723) P. 237. The Appellants? arguments on the duplicity of the charge against the Appellants are liable to be struck out and accordingly struck for having no place in this appeal and being incompetent.PER ABUBAKAR SADIQ UMAR, J.C.A.

INTERPRETATION OF STATUTES: THE USE OF THE WORD ANY IN SECTION 1 (10) OF THE MISCELLANEOUS OFFNCES ACT

There is no distinction on electric fittings or meters which are unlawfully removed or damaged under the Act to constitute the offence. The interpretation of aforementioned provision of the Act is anchored on the use of any electric fittings used for selling or generating electricity in the provision in issue. The law maker, to my mind, does not intend to limit the commission of the offence in Section 1 (10) of the Miscellaneous Offences Act to any particular or set of electric fittings. The word any connote indefinite or infinite in literal sense. There is no contrary expression in this provision to limit the application of the word ?any? as employed by the legislature in this provision.

On the interpretation of the word any in a statute, the decision of the Supreme Court in TEXACO PANAMA INC. V. SPDC NIGERIA LTD (2002) LPELR-3146(SC) is apt. The apex Court interpreted the word any oil terminal in Section 3 of the Oil Terminal Due Act as follows:

Section 3 of the OTDA clearly used the words “any oil terminal” and there is nothing in the section itself or in the whole Act intending to limit the clear meaning of the words in any sense. It is therefore the duty of this Court to give the words their ordinary, clear and plain meaning without delving into judicial legislation. I therefore hold that the words “any oil terminal” in Section 3 of the OTDA excludes any limitation and must apply to public or private, inshore or offshore oil terminal provided that the oil terminal was created or established under the provisions of the OTDA. There is therefore no need in this case to look for internal or external aid in the interpretation of the word “any” as there is no ambiguity, absurdity or injustice caused thereby.”PER ABUBAKAR SADIQ UMAR, J.C.A.

A COURT CANNOT INCLUDE IN A STATUTE WORDS THAT WERE NOT INTENDED

Also in the case of FRN V OSAHON (2006) 5 NWLR (PT. 973) 361, the Supreme Court held that:

Therefore, a Court of law is without power to import into the meaning of a word, clause or section of a statute, something that it does not say. Indeed, it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – see Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158; (1983) 1 SCNLR 296… The provisions are very clear and it is settled principle of constitutional interpretation that the provisions therein must be interpreted liberally instead of being given restrictive interpretation. It is also against the law for the Court to read into any provision of a statute or Constitution what is not expressly or by necessary implication provided or stated. It follows therefore that where constitutional provisions are clear and unambiguous as in this case, there is nothing to be interpreted, the duty of the Court being simply to give effect to what has been expressly and clearly stated by the legislature.”PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. ICHIE BONIFACE UFOEGBUNAM

2. ARINZE ONUNKWO

3. OLIVER IGBO – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Akwa delivered on 7th February 2017, Per I.B Gafai J. in Suit No: FHC/AWK/CS/29C/13.

BRIEF STATEMENT OF FACTS

The Appellants were charged with the offence of removal, tampering and meddling with electric wire fitting contrary to the provisions of Section 1 (10) of the Miscellaneous Offence Act. The amended one count charge preferred against the Appellants is set out below:

That you Ichie Boniface Ufoegbunam (m), Arinze Onunkwo m and Oliver Igbo (m) on or about the 1st day of October 2011 at Adazi-Enu within the jurisdiction of the Federal High Court Awka, unlawfully disconnected, removed, damaged, tampered and meddled with electric wire fittings and appliances from the building of one Jideofor Okongwu situate at Enugwu Adazi Village designed for supplying or selling electricity to him property of Power Holding Company of Nigeria Plc, and thereby committed an offence punishable under Section 1(10) of the Miscellaneous Offence Act Cap M17 Laws of the Federation of Nigeria 2010.

Each of the Appellants pleaded not guilty to the aforementioned charge on 07 May 2015. The Prosecution subsequently opened its case against the Appellant. The prosecution called 3 witnesses and tendered 4 exhibits in proof of the charge against the Appellants at the trial before the Court below. At the conclusion of the Prosecution?s case, a no case submission was made on behalf of the Appellants.

After hearing the submission of both counsel on the No Case Submission, the learned trial Judge delivered a Ruling on 07 February, 2017 (the Ruling) whereby the Appellants No Case submission was overruled. The Learned Trial Judge, accordingly, directed the Appellants to open their defence. The Appellants are dissatisfied with the Ruling of the Learned Trial Judge and have appealed to this Court vide a Notice of Appeal dated 10 February, 2017 and filed on 17 February 2017.

The Appellants naturally aggrieved by the said ruling appealed to this Court via their respective Notices of Appeal all dated 10th February, 2017 and filed on the 17th February, 2017.

The said Notices of Appeal contained three duplicated grounds of appeal respectively.

GROUND ONE

ERROR-IN-LAW

The learned Federal High Court Judge erred in law in over-ruling the no-case submission of the Appellant when the prosecution failed roundly to prove an essential ingredient of the offence, which is Public Ownership character element of the electrical installations subject-matter of the charge.

GROUND TWO

ERROR-IN-LAW

The learned Federal High Court Judge erred in law in holding that the Appellant has a case to answer when the PW3 Investigating Officer testified under cross-examination that community leaders who install electricity by community efforts in any community have the right to disconnect supply to a native of that community who failed, refused or neglected to pay his dues and levies.

GROUND THREE

ERROR-IN-LAW

The learned Federal High Court Judge erred in law in holding that the Appellant has a case to answer when the charge before the Hon. Court was incompetently laid and wholly unconstitutional.

The parties, in compliance with the Rules of this Honourable Court, filed and exchanged their respective Briefs of Argument.

The Appellants? Joint Brief of Argument dated 16th March, 2017 and filed on 21st March, 2017 was settled by B.S NWANKWO (SAN). The Learned Senior Counsel to the Appellants formulated two (2) issues for the determination of this Appeal in the Appellants? Brief of Argument to wit:

1. Whether the learned trial Federal Judge was right in law when he held that the Appellants had a case to answer?

2. Whether the learned trial Federal Judge was right in law in calling on the Appellants to enter their defence when the charge is void and unconstitutional.

The Respondents Brief of Argument which is dated 16th March, 2017 and filed on the 4th of July, 2017 was settled by EBELE CHIAKWA ESQ. Counsel to the Respondent on the other hand distilled the following issues for determination:

1. Whether the trial Judge was right to have held that the Appellant has a case to answer

2. Whether the trial Court was right in holding that the Appellant should enter their defence?

On the 07 February, 2019 when this appeal s hewaard, B.S NWANKWO (SAN), of Counsel to the Appellants identified and adopted the Appellant’s brief of argument filed on the 21st March, 2017 and

prayed the Court that the appeal be allowed. The brief of argument of the Respondent was equally adopted by EBELE CHIAKWA ESQ and urged this Honourable Court to dismiss the appeal.

APPELLANTS? ISSUE 1

The learned Senior Advocate submitted on issue one that the Respondent failed to prove the essential elements of the offence preferred against the Appellants particularly the unlawful disconnection of the Complainant?s electricity. The Counsel to the Appellant relied on the provisions of Section 303 (3) of the Administration of Criminal Justice Act 2015 where the circumstances in which the Court will consider an application for no case submission is stipulated.

He further argued that the Appellants acted within the confines of their powers as the community leaders of Enugwu-Adazi community when they disconnected the electricity supply to the Complainant?s House. The Appellants contended that the disconnection of the electricity supply to the Complainant?s House was lawful because the said Complainant failed to pay the community electricity project levies.

The Appellants? Counsel referred the Court to the Complainant?s extra-judicial admission to the police that his (Complainant) mother refused to pay the electricity project levies hence the disconnection of their electricity.

He submitted that in the light of justification of the Appellants? actions by the Prosecution particularly the clear evidence of PW3- the Investigative Police Officers (IPO), it was improper and a breach of the Appellants? presumption of innocence for the trial Court to have held that the issue of the legality of the Appellants? action is to be determined based on the Appellants? evidence in defence to the charge. The learned senior counsel to the Appellants contended that at the close of the Prosecution?s case, the prosecution failed to prove an essential element of the offence charged to wit: unlawful disconnection of the Complainant?s electricity.

The Appellant submitted in conclusion that the Ruling of the Learned Trial Judge is a clear departure from the germane issue in an application for a No Case Submission which is whether the Appellants has a case to answer at the lower Court.

The Senior Counsel to the Appellants submitted that the Learned Trial Judge ought to uphold the Appellants? No Case Submission on the additional ground that the charge against the Appellants is void for duplicity as it indicts the Appellants for Unlawful Disconnection, Removal, Tampering and Meddling with electric wire fittings in one count. He placed reliance on the provisions of Section 209 of the Administration of Criminal Justice Act 2015. On the whole, he urged this Honourable Court to resolve this issue in favour of the Appellants.

APPELLANTS? ISSUE 2

I must observe as a set out that the above pronouncement already resolve this appeal and this issue has been fairly settled in the determination of some of the arguments under issue one. I shall nonetheless review the arguments of the parties and make a specific resolution in this part of the judgment on the live issue in the interest of fair hearing to both parties.

The learned counsel to the Appellants submitted that the evidence adduced by the Prosecution established that the electric wires, fittings and appliances disconnected were the property of Barrister Jideofor Okongwu and not the Power Holding Company of Nigeria;

hence the essential ingredient of public ownership of wires required by the Miscellaneous Offences Act was not established.

Counsel contended that the wires in issue belonged to a private individual and the prosecution of the charge should be at the behest of the said individual and not the Attorney General of the Federation. The prosecution of this suit against the Appellants by the Attorney General is unconstitutional, null and void. The learned SAN relied on the provisions of Section 174(1) of the 1999 Constitution (as amended) and the cases of ANYEBE V THE STATE (1986) 1 SC 78. He submitted that the Attorney General of the Federation lacks the constitutional prosecutorial powers over offences against private property. Counsel finally urged this Court to resolve the second issue in favour of the Appellants.

RESPONDENT?S ISSUE 1

The learned Counsel to the Respondent on this issue relied on the provision of Section 1(10) Miscellaneous Offence Act, 2010 and argued that this provision is not applicable to a mere fictitious entity such as the Enugwu-Adazi community. He further submitted that the Appellants disconnected the power supply but

not the Enugu Adazi Community (a non-juristic person). The Counsel to the prosecution contended that the essential element of the offence charged against the Appellants has been proved in accordance with the provisions of Section 303(3) (a) (c) of the Administration of Criminal Justice Act, 2015.

The Counsel to the Respondent further submitted that pursuant to the provisions of Section 8(4) Part II of National Electricity Power Authority Act 1972, all electric wires, fittings and apparatus on a consumers premises form the undertaking of the Electricity Authority; it is only the authority that was vested with control over such wires. Consequently, the meddling or tampering with the wires of the complainant by the Appellants/the community is illegal and unlawful.

In response to the argument of the Appellants counsel?s submission that the learned trial Judge erred in law when it held that the question of the legality of the Appellants? action could only be determined at the conclusion of defence by the Appellants does not represent the law. He submitted that the decision of the Trial Judge does not offend the provisions of Section 36(5) of the Constitution.

He referred this Honourable Court to the decision of the Supreme Court in the case of EMEKA EKWUNUGO V FRN SC 110/2006.

The Counsel to the Respondent contended that there is evidence before the Court that an electric wire was removed; this singular act of removal constitutes a vital element of the offence for which the Appellants are standing trial. He finally submitted that the charge is not void in the light of the combined provisions of Section 208, 213, 214 and 215 of the Administration of Criminal Justice Act. On the whole, counsel urged this Court to resolve this issue in favour of the Respondents.

RESPONDENT?S ISSUE 2

On this issue, the learned counsel to the Respondent submitted that the provisions of Section 1(10) of the Miscellaneous Offences Act 2010 does not envisage or contemplate the ownership of the electrical appliances for the offence to be committed; hence it is immaterial whether the wire in issue was owned by an individual or not.

Counsel argued that the provisions of Section 8(4) Part II of the National Electricity Power Authority Act vests electric wires for connection of electricity as the

undertaking of the authority; and the provisions of Section 1(10) of the Miscellaneous Offences Act makes no distinction as to whether the wires disconnected in commission of the offence must as a matter of necessity belong to a government agency or a private individual.

The Counsel submitted that the case of ANYEBE V THE STATE (SUPRA) cited by the Appellant is inapplicable to the facts of this case on the ground that it is the office of the Attorney General of the Federation that has power to prosecute on behalf of the Federal Republic of Nigeria. Learned counsel to the Respondent urged this Court to resolve this issue in favour of the Respondents and against the Appellants.

RESOLUTION

I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered.

It is glaring from the two sets of issues above that learned counsel for the parties appear to be ad idem on the issues for determination in this appeal.

In the light of this, I shall accordingly adopt the issues formulated by the Counsel to the Appellants in the determination of this appeal,

I consider the issue stated below as being apt and germane for the determination of the instant appeal:

1. Whether the learned trial Federal Judge was right in law when he held that the Appellants had a case to answer?

2. Whether the learned trial Federal Judge was right in law in calling on the Appellants to enter their defence when the charge is void and unconstitutional?

RESOLUTION OF ISSUE ONE

prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safely convict on it. See Ohuka v. State (NO. 2) (1988) 4 NWLR (pt 86) 36 if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged, a Court of trial must, as a matter of law, discharge him…?

The judicial exposition on no case submission is further buttressed by the provisions of Section 303 (3) of the Administration of Criminal Justice Act 2015 relied upon by the learned Counsel to the Appellants which provides that:

?In considering the application of the Defendant under Section 303, the Court shall in the exercise of its discretion, having regard to whether

a. An essential element of the offence has been proved;

b. There is evidence linking the Defendant with the commission of the offence with which he is charged;

c. The evidence so far led is such that no reasonable Court or Tribunal would convict on it; and

d. Any other ground on which the Court may find that a prima facie case has not been made out against the Defendant for him to be called upon to answer.”

The singular question that arises from the foregoing is whether an essential element of the offence was established by the Respondent in this case or better still; whether a prima facie case has been made against the Appellants to warrant them to enter defence to the charge before the Court below. The Appellants were charged with the offence of tampering with electric fittings under Section 1(10) of the Miscellaneous Offences Act. Section 1(10) of the Miscellaneous Offences Act (?the Act?) provides that:

“Any person, who unlawfully disconnects, removes, damages, tampers, meddles with or in any way whatsoever interferes with any electric fittings, meters or other appliances used for generating, transforming, converting, conveyancing, supplying or selling electricity shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 21 years.”

The provision of the law is clear and unequivocal on the essential elements that constitute the offence of tampering with electric fittings.

?Ours, as the judex, is to interpret the law and declare what it is. In interpreting a statute, the object is to discover the intention of the legislature and bring it out. The intention of the statute is usually deduced from the language used in the statute. We cannot therefore go outside the words in the language of the statute?where the words used are clear and unambiguous they must be given their ordinary plain meaning, so as to avoid reading into the provisions meanings not intended by the lawmakers. See also ISHOLA v. AJIBOYE (1994) 1 NWLR (pt. 352) 506; P. D. P. v. C. P. C & ORS (2011) LPELR- 2909 (SC). Accordingly, in its interpretative jurisdiction the Court does not, and must not interpret a statute by placing a gloss on the provisions by reading into the provisions words neither used, contemplated nor included therein. Thus, as I stated elsewhere in OBI v. OJUKWU & ANOR (2009) LPELR 8511 (CA), when the words

of a statute are plain and unambiguous; the plain duty of the Court interpreting the statute, is to bring out its overriding objective.?

Applying the literal rule of interpretation to the provisions of Section 1(10) of the Act, the ingredients of the offence of tampering with electric fittings can be succinctly extrapolated as follows:

1. There must be a disconnection, removal, meddling, tampering or interference with electric fittings or appliances used for generating, supplying or selling electricity

2. The disconnection of electric fittings must have been unlawful.

In trying to ascertain whether or not, a prima facie case had been made against the Appellants to warrant the entering of their defence or otherwise, it is important to take a judicial sojourn into the evidence led by the prosecution witness and the documents tendered during trial. The prosecution led evidence through PW1, PW2 and PW3 and tendered some documents in establishing the allegations against the Appellants in the course of the trial. PW1 testified at page 153 of the records that:

.No, NEPA never told me that our electricity connection is illegal. Yes, I saw the 2nd and 3rd accused disconnecting electricity

Pw2 corroborating the testimony of PW1, testified at page 158 and 160 of the records that:

I still went back and paid for reconnection fees again and they restored it. The same 3 accused came back once more and vandalized the wires again Yes, when the light was reconnected on account of my petition, it was the NEPA staff that did it and it was the same accused who thereafter came and vandalized it. They were arrested and charged to Magistrate Court Nnewi in Charge No: 41C/14. Later the NEPA (now) EEDC came back and reconnected it.?

It is clear from the foregoing testimonies of PW1 and PW2 that while the lawful authority vested with the powers to distribute and deal with electricity connected the electricity supply of PW1 and PW2, the electricity supply was disconnected by the Appellants. An holistic review of the facts disclosed by the evidence of the PW.1 and PW.2, and the Investigative Police Officer (PW3) viz-a-viz the charges proffered against the Appellants, I am of the firm view that a prima facie case has been

disclosed by the prosecution’s evidence at the trial Court to warrant the Appellants being called upon to offer their defence. There are prima facie evidence before the trial Court that the electricity supply fittings of the Complaints were disconnected and the disconnection were placed on the Appellants. There is no evidence, at the stage of the proceedings before the Court below, that the Appellants are not the persons that disconnected the electricity wires or that the persons that disconnected the wires had the authority to carry out the disconnection. I shall say no more on the evidence before the Court in view of the stage of the proceedings before the Court below. The evidence before the Court below, to my mind, constitutes a prima facie case.

What is a prima facie case in relation to an application for a No Case Submission? This Honourable Court answers this question in the case of ADUKU V FRN (2009) 4 NCC 350:

?What is meant by Prima Facie case? It only means that there is a ground for proceedings … but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or

not….. and the evidence discloses a prima facie case when it is such that un-contradicted and if believed it will be sufficient to prove the case against the accused.”

I bear in mind that at the stage of a no-case submission, the Court is not called upon to express any opinion on the evidence before it or determine the credibility of the Prosecution witnesses as to their probative value. The Court is only required to sieve through the evidence of the prosecution to determine if same links the accused person to the commission of the crime in issue. See HONOURABLE IKUFORIJI V FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43884(SC).

The learned trial Judge at page 181 of the records, threaded with caution by acting within the confines of the guiding principles of a no case submission when he held that:

The evidences (sic) of both PW 1 and 2 readily come to mind here. They both strongly point to the accused person as the ones who disconnected the electric wire in issue. To me, this seems to be a prima facie proof requiring a rebuttal; no matter how nominal from the accused.”

I agree with the reasoning of the learned trial Judge that the Appellants have some explanations to make in their defence to the charge before him. The reliance of the learned Counsel to the Appellants on the testimony of PW3 and PW2?s statement to the Police (Exhibit 3) as justification for the disconnection of the electricity supply of PW1 and PW2 does not preclude the Court from directing the Appellants to enter defence to the charge against them. Whatever justification and or explanation the Appellants intend to rely on must come from the defence. The Appellants cannot in one breath urge the Court to hold that there is no prima facie case against them and on the other hand urge the Court to hold that there are justifications before the Court to the offence. This in my opinion is an inconsistency which weakens the Appellants? position.

I must comment on whether the decision of the Court below infringes on the Appellants? right to presumption of innocence guaranteed by Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) notwithstanding the above conclusion. The Senior Counsel to the Appellants pointed out that the Appellants actually

disconnected the electricity supply to the PW1 and PW2 but lawfully as the community leaders of Enugwu-Adazi community for the reason that the complainant failed to pay the Community Electricity Project levies. The Charge before the Court Below is that the Appellant disconnected the electricity supply unlawfully. The Respondent consequently placed evidence before the Court which on prima facie case pointed that the Appellants disconnected the electricity supply.

It is incumbent on the Appellants, on the state of the evidence before the Court below, therefore to show that the facts stated are known defence to the charge against them and the only way this can be achieved is by proper defence by the Appellants. I therefore hold that the pronouncement of the learned trial Judge that the legality of the Appellants? conduct is to be resolved by the evidence of the Appellant does not amount to a breach of Section 36(5) of the 1999 Constitution.

This is an interlocutory appeal. It is not permissible in law at this stage that any comments be made on the merits of the substantive case that is yet to be heard. In prcis, I see no reason to deviate from the

decision of the learned trial Judge as a prima facie case was really made out by the Respondent against the Appellants. I affirm the decision of the ruling of the trial Judge overruling the no case submission.

The above resolution would not preclude me from commenting on the arguments of Learned Senior Counsel to the Appellants that the charge before the Court below ought to be declared void for duplicity. The argument is a clear deviation from the grounds of appeal. This issue does not arise from any of the grounds of appeal or particulars of appeal in the Notice of Appeal filed by the Appellants.

There are a plethora of authorities on the essence of issues raised for determinations or argument canvassed in parties? briefs of argument. Issues and arguments are meant to flow from the grounds of appeal in the notice of appeal, and where they do not so flow, they become incompetent and liable to be struck out by the Court. Where an issue or arguments is not predicated on a ground of appeal, then it becomes an issue with no leg to stand on and such issue has no place in our legal system. It deserves to be struck out for being incompetent.

In any event, the position of the Appellant that the charge is void for duplicity is not correct. I must state briefly, for the record and holistic determination of all issues/arguments canvassed in this Appeal, that the provisions of Section 203(1) of the Administration of Criminal Justice Act clearly accommodates the manner in which the charge against the Appellants was drafted. Section 203 (1) of the ACJA provides as follows:

?Where a law constituting an offence states the offence to be the omission to do any one of different acts in the alternative, or the doing or the omission to do any act in any one of the different capacities, or with any one of the different intentions, or states any part of the offence in the alternative, the act, omission, capacity or intention, or the matter stated in the alternative in the law, may be stated in the alternative in the charge. ?

The aforementioned provision of the law allows an offence and its alternatives to be included in a single charge. The Appellants herein were charged under Section 1(10) of the Miscellaneous Offences Act which expressly mentioned acts in the alternative or disjunctively. I do not see the grouse of the Appellants with the charge against them in the proceeding before the Court below. Assuming the charge against the Appellants were indeed duplicitous (which it is not) as submitted by the learned Counsel to the Appellants, the Appellants have not shown they have suffered any miscarriage of justice or breach of their right to fair hearing for this Honourable Court to render the charge defective as required by the law.

I am of the firm view that the Appellants are well aware of the specific charge against them, this is deductible from the submission canvassed that they acted in their capacity as community leaders in disconnecting the electricity supply of the complainant (See page 3 of the Appellants? Brief of Argument). Having submitted a justification for the acts of the Appellant, it is ludicrous, to my mind, for the

Appellants? counsel to turnaround and argue that the charge is duplicitous.

This amounts to approbating and reprobating. Indeed, the Appellants are aware of the specific offence upon which they were charged; this Court will therefore not interfere or render the charge void on the ground of duplicity. See the cases of STATE V GWONTO (1983) 3 SC P. 62 AND DANLAMI V THE STATE (2014) LPELR-24084(CA). In the case of AWALU YAHAYA V. THE STATE (2014) LPELR-24083(CA), this Court held that:

“…it is well settled that a Court of Appeal will not interfere on an issue of duplicity if it is clear from the records of proceedings that the accused knew what charge he was to face, was neither embarrassed nor prejudiced and there is no miscarriage of justice.”

I therefore resolve the issue one against the Appellants and hold that the trial Court was right to hold that the Appellants have a case to answer in respect of the charge against them before the Court.

RESOLUTION OF ISSUE TWO

The pith of the Appellants? grievance on this issue is that the wires allegedly disconnected by the Appellants is a private property; and does not fall under

the purview of the provisions of Section 1(10) of the Miscellaneous Offences Act 2010; hence the prosecution of the charge by the Attorney General of the Federation is unconstitutional.

I disagree with the submission of the learned SAN on this issue. The Counsel to the Respondent has rightly submitted that the law upon which the Appellants were charged to Court, makes no distinction on whether the offence is completed where the electric wires in issue belongs to a public authority. For further clarity on this issue, I hereunder reproduce the provisions of Section 1(10) Miscellaneous Offences Act 2010 as follows:

?Any person, who unlawfully disconnects, removes, damages, tampers, meddles with or in any way whatsoever interferes with any electric fittings, meters or other appliances used for generating, transforming, converting, conveyancing, supplying or selling electricity shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 21 years.?

There is no ambiguity in the provisions of Section 1(10) of the Miscellaneous Offences Act to warrant the rigmarole, or any circumlocution in this appeal.

There is no distinction on electric fittings or meters which are unlawfully removed or damaged under the Act to constitute the offence. The interpretation of aforementioned provision of the Act is anchored on the use of any electric fittings used for selling or generating electricity in the provision in issue. The law maker, to my mind, does not intend to limit the commission of the offence in Section 1 (10) of the Miscellaneous Offences Act to any particular or set of electric fittings. The word ?any? connote indefinite or infinite in literal sense. There is no contrary expression in this provision to limit the application of the word ?any? as employed by the legislature in this provision.

On the interpretation of the word ?any? in a statute, the decision of the Supreme Court in TEXACO PANAMA INC. V. SPDC NIGERIA LTD (2002) LPELR-3146(SC) is apt. The apex Court interpreted the word ?any oil terminal? in Section 3 of the Oil Terminal Due Act as follows:

?Section 3 of the OTDA clearly used the words “any oil terminal” and there is nothing in the section itself or in the whole Act intending to limit

the clear meaning of the words in any sense. It is therefore the duty of this Court to give the words their ordinary, clear and plain meaning without delving into judicial legislation. I therefore hold that the words “any oil terminal” in Section 3 of the OTDA excludes any limitation and must apply to public or private, inshore or offshore oil terminal provided that the oil terminal was created or established under the provisions of the OTDA. There is therefore no need in this case to look for internal or external aid in the interpretation of the word “any” as there is no ambiguity, absurdity or injustice caused thereby.”

The learned SAN has in my view, read and interpreted the provisions of Section 1(10) of the Miscellaneous Offences Act with a gloss thereon against all known or acclaimed canons of interpretation. The attempt by the learned counsel to the Appellants to impute public ownership of the disconnected wires as one of the ingredients of the offence when same is not expressly or clearly contemplated by the law creating the offence amounts to a wide goose chase for something that is not missing.

The appellate Courts have in a legion of authorities restated the trite principle of law that statutory enactments are to be interpreted as they are without further embellishments. See the dictum of Eko JSC in the case of EHINDERO V FRN & ANOR (2018) 5 NWLR (PT. 1612) 301 AT 320 C – E who stated thus:

?It has become necessary now for me to recall the statement made by this Court, in Unipetrol v. ESB.I.R. (2006) All FWLR (Pt.317) 413 at 423; (2001) 10 NWLR (Pt. 720)167, on what we should always bear in mind when we are called upon to interpret a provision of statute. That is that the words of a statute are to be given their ordinary meaning, and that the cardinal principle of law on interpretation is that a Court, when interpreting a provision of a statute, must give the words and the language used their simple and ordinary meaning. It is not permissible, therefore, to go outside the words of the provision to introduce extraneous matters that may lead to circumventing or given the provision an entirely different meaning from what the lawmaker intended it to be. In other words, nothing must be added to, and nothing must be taken from the statute.

By this, we shall not interpret the provision to mean what it does not mean, or to interpret it not to mean what it means in actuality

Also in the case of FRN V OSAHON (2006) 5 NWLR (PT. 973) 361, the Supreme Court held that:

is nothing to be interpreted, the duty of the Court being simply to give effect to what has been expressly and clearly stated by the legislature.”

Consequent upon the foregoing decisions of the apex Court, I hold that it is not the function of the Court to import words into the statute which is antithetical to the intent and meaning of a statutory enactment. The attempt by the Appellants to impute or add extraneous clause to the provision of the law must fail as a matter of course. It is my firm view that if it was the intention of the legislature to include ?public ownership of the electric fittings or appliances? as one of the elements of the offence, appropriate words or expression would have been explicitly employed. The absence of such description in the law unequivocally obviates the need to enlarge the provision beyond the construct of the literal expression in the provisions. The provisions of Section 1 (10) of the Miscellaneous Offences Act is clear and I accordingly restrict myself to the literal interpretation of the provision. I must therefore reject and I hereby discountenance the interpretation urged upon this Honourable Court by the learned SAN.

Having adopted the literal rule of interpretation to the provisions of Section 1(10) of the Miscellaneous Offences Act, the only question outstanding is whether the Attorney General of the Federation is the right authority to file the charge against the Appellants. The provisions of Section 174(1) of the 1999 Constitution of Nigeria relied upon by the learned Counsel to the Appellants is equally clear on the powers of the Attorney General of the Government of the Federation. Section 174(1) of the 1999 Constitution provides inter alia that:

174(1) The Attorney General of the Federation shall have power:

(a) To institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court-martial, in respect of any offence created by or under any Act of the National Assembly.

The foregoing provision of the Constitution vests the Attorney General of the Federation with the requisite authority to prosecute offences created by any Act, one of which is the Miscellaneous Offences Act. I therefore hold that the charge and prosecution of same against the Appellants is constitutional.

This issue is resolved against the Appellants and in favour of the Respondent.

In the final result, I find no merit in this appeal. This appeal fails and is hereby dismissed. The Ruling of the Federal High Court, Akwa delivered on 7th February 2017 in Suit No: FHC/AWK/CS/29C/13 overruling the no case submission of the Appellants is hereby upheld. I affirm the finding of the trial Court that the Appellants have a case to answer in respect of charge proffered against them. It is hereby ordered that the Appellant shall enter their defence to the charges against them.

IGNATIUS IGWE AGUBE, J.C.A.: Having perused the draft of the Judgment prepared and delivered by my Learned Brother ABUBAKAR SADIQ UMAR, JCA, I am in agreement with the reasoning contained therein which culminated in the Appeal being dismissed.

This Appeal fails and is hereby dismissed. The Ruling of the Federal High Court Awka delivered on 7th February, 2017 in Suit NO. FHC/AWK/CS/29C/13 overruling the no case submission of the Appellant is hereby upheld. It is hereby ordered that the Appellant shall enter their defence to the charges against them.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.

Appearances:

O. C. Nwankwo, Esq. with him, B. C. Eze Orachi, Esq.For Appellant(s)

For Respondent(s)

Appearances

O. C. Nwankwo, Esq. with him, B. C. Eze Orachi, Esq.For Appellant

AND

For Respondent