JOSHUA DADA ABIODUN & ORS. v. ATTORNEY GENERAL OF THE FEDERATION
(2007)LCN/2457(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of July, 2007
CA/IL/67/2006
RATIO
EVIDENCE – COUNTER AFFIDAVIT: THE EFFECT OF A COUNTER AFFIDAVIT TO AN ORIGINATING SUMMONS CONTAINING PARAGRAPHS IN CONTRAVENTION OF SECTION 87 OF THE EVIDENCE ACY OR EXTRANEOUS MATTERS AND OR LEGAL ARUMENTS OR CONCLUSION
“Where the counter-affidavit to originating summons contains paragraphs contrary to S.87 of the Evidence Act or extraneous matters and/or legal arguments or conclusions such paragraphs are liable to be struck out.”PER HELEN MORONKEJI OGUNWUMIJUJ.C.A.
PRACTICE AND PROCEDURE – COMPETENCE OF A SUIT: WHAT IS THE PROPER PROCEDURE FOR CHALLENGING THE COMPETENCE OF A SUIT
“Where a party wants to challenge the competence of the suit, the proper procedure is to file a motion of preliminary objection stating the grounds of objection.” PER HELEN MORONKEJI OGUNWUMIJUJ.C.A.
EVIDENCE – AFFIDAVIT EVIDENCE: WHAT MUST AN AFFIDAVIT NOT CONTAIN
“…it is the law that an affidavit shall not contain any extraneous matter by way of objection, prayer, legal argument or conclusion. See Section 87 of the Evidence Act.”PER JUMMAI HANNATU SANKEY, J.C.A.
INTERNATIONAL LAW – INTERNATIONAL TREATY: WHETHER WHERE THERE EXIST A CONFLICT BETWEEN A STATUTE AND THE PROVISIONS OF THE AFRICAN CHARTER WHICH PROVISIONS WILL PREVAIL
“The final issue to be considered is whether by virtue of the ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Tribunal Decree, 1984 and Section 2 of the Public Officers Protection Act, 1990, the lower Court lacked jurisdiction. It has since been settled that where there is a conflict between a statute and the provisions of the African Charter, which is a statute with international flavour, its provisions will prevail over those of the other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation. See Abacha v. Fawehinmi (2000) FWLR (Pt.4) 545-546. Article 7 of the African Charter on Human and People’s Rights (Rectification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria, 1990, relevant to this suit stipulates thus: “1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.” PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
Between
1. JOSHUA DADA ABIODUN
2. JACOB ABIODUN AJIBOYE
3. OLAIYA OLADIMEJI ISHOLA
4. KUSAMOTU OYEBIMPE POPOOLA
5. SUNDAY OGUNKUNLE
6. JIMOH OLADEJO BELLO
7. YAHAYA BANDARA SALAMI
8. SUNDAY OLABISI ABOGUNRIN
9. MUHAMMED ALABI WAHAB
10. SULEIMAN OKANLAWON IBRAHIM
11. ROTIMI OLADIPO
12. IBRAHIM DARE SAADU – Appellant(s)
AND
ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Appellants, as Plaintiffs at the Federal High Court, sued the Respondent, Attorney General Federation and two others claiming certain reliefs, During the course of proceedings at the lower Court, the names of the 2nd and 3rd Defendants were struck out on the application of the Appellants/Plaintiffs’ Counsel, Therefore, by the Amended Originating Summons at page 185 of the record, the Appellants claim thus from the sole Defendant:
1. A DECLARATION that the Judgment of the Miscellaneous Offences Tribunal in MOT/ ABJ/2/97 between the Federal Republic of Nigeria v Alhaji Sulaiman Arowosaiye and 15 Others delivered on Wednesday, 27th day of May, 1998 is null and void, illegal, unconstitutional and of no effect whatsoever being an untraceable and lost Judgment as caused by the agencies of the Defendant, in violation of Section 33 (7) of the 1979 Constitution and under the Advanced Fee Fraud and other Related Offences Decree No.13 of 1995.
2. A DECLARATION that the Plaintiffs constitutional right to fair hearing under the 1979 Republican Constitution and Advanced Fee Frauds Related Offences Decree No. 13 of 1995 was violently breached through the denial of Plaintiffs’ right of appeal against the Judgment of the Miscellaneous Offences Tribunal in MOT/ABJ/2/97 delivered on Wednesday, 27th May, 1998.
3. N5,000,000.00 each as compensation for wrongful detention of the Plaintiffs in the Nigerian Prisons, Ilorin for three years or thereabout without confirmation of such ‘Judgment’ by the then Head of the Federal Military Government of Nigeria.
The Defendant was duly served and he defended the suit. As the matter was commenced by way of Originating Summons, the parties before the lower Court joined issues by filing their various affidavits and counter affidavits as they deemed necessary, after which learned Counsel on either side filed their written addresses and adopted same. At the end of the day, the learned trial Judge found as follows at page 235 of the record:
“In the light of the foregoing, it is my decision that this action lacks merit, it is dismissed accordingly.”
Totally dissatisfied with this decision, the Appellants promptly filed an Appeal to this Court. The Grounds of Appeal, without their particulars, are set out hereunder:
1. The learned trial Judge erred in law when he did not rule on the Plaintiffs/Appellants’ objection to the competency of an issue of law, that is, preliminary objection raised in the Defendant/Respondent’s counter affidavit.
2. The learned trial Judge erred in law when he considered the submission and documents filed by the 2nd and 3rd Defendants in his Judgment after he had struck out their names.
3. The learned trial Judge erred in law when he held as follows:
“I would also hold that there was no diligent search for the record of proceedings and the judgment. The Kwara State which later had its name struck out from this suit had a copy of the judgment exhibited as Exhibit MOJ 1. I therefore agree with the assertion of the defendant that there was no diligent search for the Records and copy of the judgment.”
(i) The learned trial judge erred in law when he raised suo motu issue of conflict or contradiction in Plaintiffs’ supporting affidavit as regards the filing or otherwise of a notice of appeal.
(ii) The learned trial Judge erred in law by misconstruing the purport of Section 33 (7) of the 1979 Constitution when he held thus:
“This provision does not say that the court would be chasing the accused with the copies of the judgment, it is for the accused or his representative that would make a demand before the provision could be invoked. In this matter, there was no demand until a year after the Plaintiffs were released from detention. The Plaintiffs I therefore hold are therefore guilty of laches and delay.”
4. The learned trial Judge erred in law when he held that the Court would not have jurisdiction in respect of this matter by virtue of the ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Decree 1984.
5. The learned trial judge erred in law when he held that the cause of action is statute barred contrary to Section 2 (a) of the Public Officers Protection Act 1990, which according to him stipulates:
“That no proceeding shall lie against a public officer like the Attorney General of the Federation if it is commenced more than 3 months after the occurrence of the event challenged.”
6. The learned trial judge did not resolve the issue of lack of fair hearing placed before him in the parties’ written addresses.
The facts leading to this Appeal briefly are that the Appellants, prior to their arrest and trial in 1996, were civil servants in the Kwara State Ministry of Finance. They were arrested on 29th May, 1996 for the offence of the fraudulent conversion of the Federal Government grant of some Kwara State pensioners. They were subsequently arraigned before the Miscellaneous Offences Tribunal, Abuja Zone sitting in Ilorin. From their arrest and for the duration of their trial which lasted 14 months, the Appellants remained in prison custody. At the close of the trial, the Tribunal delivered its verdict on the 27th May, 1998, wherein it convicted the Appellants. Sentence was passed on the 28th May, 1998. All the Appellants, except two of them, were sentenced to three years mandatory term of imprisonment, while the other two were sentenced to two years imprisonment also without an option of fine. It is alleged that throughout the Appellants’ period of incarceration in prison, there were not allowed to have copies of the judgment and the record of proceedings of the Tribunal. Equally, no copies were made available to their Counsel by the Tribunal’s Registry. Nevertheless, the 11th Appellant succeeded in filing a Notice of Appeal with the help of his Counsel, Buhari Oguntoye & Co., on the 10th June, 1998. The Appellants’ Solicitors wrote several letters to the Kwara State Ministry of justice and the D.P.P. Federal Ministry of justice in a bid to obtain a copy of the judgment, to no avail. To date, the position is that the judgment of the Tribunal has proved inaccessible to the Appellants. The Appellants’ assertion at the lower Court that the judgment was lost was never controverted, Nevertheless, the Court accepted the 2nd and 3rd Defendants’ assertion that the Plaintiffs slept over their rights, as guaranteed under the Constitution, to receive copies of the Record of proceedings and the judgment of the Court. The Appellants therefore distilled five (5) issues for the determination of this Court from the Grounds of Appeal set out above. They are:
Whether the loss or inaccessibility of both Military Tribunal’s judgment and its Record of Proceedings was/is in contravention of Section 33 (7) and constitutionally guaranteed fair hearing under Section 33 (1) of the 1979 Constitution (Section 36 1999 Constitution); and if so, whether such violation or denial renders the entire trial and Appellants’ conviction unconstitutional, null and void, and of no effect ‘whatsoever. (Grounds 5, 6, & 9 of the Notice of Appeal).
(ii) Whether the Defendant/Respondent could competently raise a Preliminary objection to the competency of the action through a paragraph in its further and better affidavit; and whether the lower Court rightly discountenanced the Plaintiffs’ objection to such procedure. (Ground 1).
(iii) Whether the learned trial judge competently raised suo motu, the issue of conflict in the Plaintiffs’ affidavit evidence, which he resolved, on its own’ and made his findings the basis of his judgment without allowing counsel in the case the right of address. (Ground 4).
(iv) Whether the learned trial judge was right to have used in his judgment a document filed by a subsequently struck out 2nd and 3rd defendants, as one of the basic considerations for dismissing the Plaintiffs’ suit. (Grounds 2 and 3).
(v) Whether the lower court lacked jurisdiction by virtue of ouster clause in Section 11 of the special Tribunal (Miscellaneous Offences) Decree, 1984 and Section 2 of the Public Officers Protection Act, 1990. (Grounds 7 & 8).
This Appeal was called up for hearing on the 16th May, 2007. Mr. Gbadeyan appeared for the Appellants while there was no appearance for the Respondent. The Court Registrar informed the Court that the Respondent had been served a hearing Notice since the 18th April, 2007.
This fact was confirmed by the Court from the proof of service dated 18th April, 2007 and an affidavit of service sworn to by the bailiff of court on the 14th May, 2007. Having therefore satisfied itself that the Respondent was fully aware of the date, the Court allowed the Appellant to proceed to argue the Appeal.
Mr. Gbadeyan informed the Court that in view of the order of the Court made on 15th March, 2007 granting leave to hear the Appeal based on the Appellants’ Brief alone, and with no further step taken by the Respondent till date, he was adopting the Appellants’ Brief of Argument filed on 17th November, 2006 and served on the Respondent on 22nd November, 2006. He urged the Court to allow the Appeal by granting all the reliefs of the Appellants as Plaintiffs in the Originating Summons filed at the lower Court.
It is worthy of note that the Respondent neither filed a Brief of Argument in response to the Appellants’ Brief of Argument, (having been duly served same), nor did he appear in person or through Counsel on his behalf to contest the Appeal. The Appeal is therefore completely one sided and uncontested. I shall therefore consider the issues formulated by the Appellants serially.
Issue One:
Whether the loss or inaccessibility of both the Military (sic) Tribunal’s Judgment and its Record of Proceedings was/is in contravention of Section 33 (7) and constitutionally guaranteed fair hearing under Section 33 (1) of the 1979 Constitution, (Section 36 1999 Constitution) and if so, whether such violation or denial renders the entire trial and Appellants’ conviction null and void and of no effect whatsoever.
In the Appellants’ Brief of Argument, learned Counsel for the Appellants, Mr. Gbadeyan, submitted that the following were deducible from the available affidavit evidence before the lower Court:
(a) The Appellants were tried and convicted for the commission of a criminal offence, to wit: obtaining money by false pretences by knowingly defrauding the Federal Republic of Nigeria to the tune of N72, 000,000.00 contrary to Section 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Decree, 1995.
(b) The Appellants were tried and convicted by the Miscellaneous Offences Tribunal at 1I0rin. The Tribunal’s Judgment was delivered on 27th day of May, 1998 and, as a result, the Appellants were sentenced to various terms of imprisonment on 28th May, 1998.
(c) The Record of Proceedings, was not mandatory kept in contravention of the constitutional provision to that effect and after a fruitless search for it, the logical conclusion to draw is that it is lost.
(d) After the delivery of the said judgment, nobody had access to it in contravention of Section 33(7) of the 1979 Constitution.
Learned Counsel submitted that the following circumstances justify the assertion by the Appellants that the judgment and the record of proceedings were indeed lost:
(i) On pages 206 to 209 of the Record is a Notice of Appeal dated 10th June, 1998 and the receipt evidencing its filing. On page 207 it was shown that the Notice of Appeal was filed 14 days after judgment was delivered without the judgment being made available: The convict in paragraph No. 5 of the said Notice on page 207 wrote thus:
“More grounds of appeal will be filed on receipt of the judgment of the lower Tribunal and the Record of Proceeding.”
The said Appellant, Rotimi Oladipo, (now the 11th Plaintiff/Appellant), was at the time in prison, so it meant that his Counsel tried in vain to secure the judgment, and as a result, prepared the Notice from what he heard in Court during the Judgment delivery.
(ii) The Acting DPP Ministry of Justice, while reacting to the Plaintiff/Appellant’s demand for the judgment on 14th September, 1999, more than a year after the delivery of the judgement, had this to say:
“We regret to inform you that all effort by the Ministry to get a copy of the judgment proved abortive as we were informed that the copy of the judgment is not ready.
See page 199 of the Record,
On 24th May, 2000, vide Exhibit 1, the Hon. Attorney General for Kwara State also indicated in his letter to the Plaintiffs/Appellants’ Counsel thus:
“2. We want to bring it to your knowledge that up till this moment we are unable to get both the copy of the record of proceedings and the judgment. All efforts have not yielded any positive result.
3. However, we shall intensify our effort and we are assuring you that we shall not hesitate to forward same to your office as soon as it is available,”
The Federal D.P.P. showed his helpless situation on this issue of accessing the Record of Proceedings and the judgment in his letter dated 3rd April, 2000 to the Plaintiffs/Appellants’ Counsel. The letter is Exhibit G on page 201 of the Record,
(iii) The same Attorney General and Commissioner for justice, Kwara State, by his letter of 1st July, 1998 to another Kwara State Commissioner in the Ministry of Finance had this to say:
“I am directed to forward herewith a photocopy of the summary judgment (enrolled order) which is now available in our office as requested…
2. I am also to add that the detailed judgment shall be forwarded to you as soon as it is available.”
Learned Counsel submitted that it therefore follows that, as at 3rd June, 1998 and/or 1st July, 1998, even the functionaries of the Kwara State Government could not obtain or access a copy of the judgment.
Learned Counsel further submitted that by the combined effect of paragraphs 18-20 of the affidavit in support, of the Originating Summons, the Plaintiff showed that the judgment of the Tribunal was not obtainable or accessible by them or even by Counsel’s chambers, He also referred to pages 155-157 of the Record for the Defendant’s Counter affidavit. He submitted that the Defendant/Respondent never said that the Record and the judgment were in their possession, and therefore, not lost. Learned Counsel submitted that contrary to the finding of the lower Court at page…that: I have held that there was no demand for the Record in this matter’; there were numerous demands for the judgment and the Records by the Plaintiffs as shown in the exhibits attached to the Plaintiffs’ affidavit at the lower Court, which demands were discountenanced by the Defendants/Respondent. It is the contention of learned Counsel that the effect or consequence of an un-kept, untraceable or lost Record of Proceeding and judgment in a criminal matter under Section 33 (7) of the 1979 Constitution is grave and it is such that will fundamentally affect and afflict the validity and efficacy of such Judgment. It is a violation of Section 33 (7) of the 1979 Constitution, which is in pari materia with Section 36 (7) of the 1999 Constitution of the Federal Republic of Nigeria.
On the right of an accused person or his agent to a copy of a judgment in a criminal proceeding in relation to Section 36 (7) of thee 1999 Constitution, he relied on the case of Ogidi v. State (2005) 1 SC(Pt.1) 98 at 119. On the necessity of keeping a Record of Proceedings under Section 33 (7) of the 1979 Constitution, he relied on the case of Anyanwu v. State (2002) 6 SC (Pt. II) 173. He drew an analogy from the finding of the Supreme Court in Ogidi v. State (Supra) with the instant case, and submitted that, if, as was held in the Ogidi case, an inaccurate recording of what transpired in Court, in contravention of a constitutional provision or its dictates, could occasion a miscarriage of justice capable of vitiating the proceedings and the judgment emanating there from, then how much more in this situation where the records are inaccessible or lost. He submitted that there is no logical reasoning that will save an un-kept, untraceable and, by extension, a lost Record of Proceedings and judgment in a criminal matter from being vitiated and, as a result, adjudged ineffective, null, void and invalid.
On the ‘lost’ judgment and its effect on the Constitutionally guaranteed right to fair hearing under Section 33 (1) of the 1979 Constitution, (now Section 36 of ‘the 1999 Constitution), learned Counsel referred to the finding of the Supreme Court in the case of Ogundoyin v. Adeyemi (2007) JSC (Pt. II) 98 at 108 per Onu, JSC where it pronounced extensively on the issues of fair hearing under the Constitution and the Common law doctrine of natural justice. Therein, the Supreme Court referred inter alia to its pronouncement in the case of Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 488 which stated thus:
“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether justice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an Appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside.”
Learned counsel submitted that the Appellants herein were convicted and sentenced to terms of imprisonment which they all served. The Advance Fee Fraud and Other Related Offences Decree, 1995 provided for appeals against the Tribunal’s Judgment in Section 15 thereof as follows:
“15. (1) A person convicted -of an offence under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) Decree, 1984, as amended, in accordance with the provisions of that Decree.
(2) The decision of the Special Appeal Tribunal shall be final and where there is no appeal, the decision of the Tribunal shall be final.”
Learned Counsel therefore submitted that there is an extant appeal provision to be exploited by the Appellants herein where they are dissatisfied with the Tribunal’s Judgment. He referred to the Further and Better Affidavit at pages 204-209 of the Record, paragraphs 4-6 thereof to buttress his submission that, whereas the 11th Appellant filed a Notice of Appeal 12-14 days after the Judgment was delivered, the other Plaintiffs/Convicts who also wished to appeal were told to wait for the reconstitution of the Special Appeal Tribunal Registry by the Federal Government, which has not happened to date. He contended that, since these paragraphs were not controverted, they are deemed admitted. Learned Counsel submitted that, while the Special Appeal Tribunal did not hear and determine the appeal till date, the regular Courts, starting with the Court of Appeal, and possibly the Supreme Court, could not hear the appeal because of the loss of the Tribunal’s Judgment and Record of Proceedings.
On the legal effect and consequence of a lost Judgment by the Court Registry, learned Counsel referred to the pronouncement of the Apex Court on this in the case of Engineering Enterprises of Niger Contractor Company of Nigeria V. AG Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 400. Learned Counsel therefore submitted that the loss of both the Miscellaneous Tribunal’s Judgment and the Record of Proceedings, which made the prosecution of an appeal impossible, amounts to a denial of the Appellants’ constitutionally guaranteed right to a fair hearing. In this same decision, the Supreme Court invalidated the lost Judgment and, in turn, ordered for a re-trial so as to have a Judgment that would resolve the dispute one way Or the other. Learned Counsel however hastened to submit that in the instant case, being a criminal matter, this would amount to double jeopardy against the Appellants. For this, he relied on the cases of Chief of Air Staff v. Iyen (200S) 1SC (Pt. II) 121, Eyorokoma v. State (1979) 6-9 SC 3 at 9 and Adeoye v. State (1999) 4 SC (Pt. II) 67. He submitted that circumstances abound that would render it oppressive to put the Appellants on trial for a second time running and such will occasion a greater miscarriage of justice on them. He therefore urged the Court to resolve this issue in favour of the Appellants.
I am of the view that a proper consideration of this Appeal requires that the following matters be addressed head-on:
(a) Was there evidence before the lower Court sufficient to justify the assertion that the judgment and Record of Proceedings of the Miscellaneous Offences Tribunal were lost, inaccessible or untraceable?
(b) If the answer to (a) above is in the affirmative, what is the effect of a lost/inaccessible/untraceable judgment and Record of Proceedings on the Appellants’ right of appeal in these criminal proceedings?
(c) What is the effect of the lost judgment on the Appellants’ right to a fair hearing guaranteed under Section 33 of the 1979 Constitution?
(d) What order should an appellate Court make when faced with a situation where the Appellants’ right of appeal is denied them due to the inaccessibility of the judgment of the Court convicting them and the record of proceedings in that regard?
I believe the logical starting point must be Section 33 (7) of the 1979 Constitution applicable to this case. It provides thus:
“When any person is tried for a criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorised by him in that behalf shall be entitled to obtain copies of the Judgment in the case within seven days of the conclusion of the case.”
(Underlining mine for emphasis).
In the interpretation of a statute, the elementary rule of construction is that once the words used are clear and unambiguous, the plain and ordinary and grammatical meaning of the words used is ascribed to them. This ordinary meaning must be adhered to wherever it makes sense. There is no need to seek extraneous aid in interpreting the Section as it has become utterly unnecessary for the Court to go beyond their plain import. See Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1; Dominic Onourah Ifezue v. Livinus Mbadugha and Anor. (1984) 1 SCNLR 79: (1984) 5 SC 79: A-G Bendel State V. A-G Federation (1982) 3 N.C.L.R. 1: Udeh v. Federal Republic of Nigeria (2001) FWLR 1734. It is a canon of statutory interpretation, (which includes the Constitution), that Courts have no jurisdiction to interpret the clear and unambiguous words beyond their clear and unambiguous meaning or place onerous weight or burden on the otherwise clear and unambiguous provision; a burden that the provision cannot carry. See A-G Lagos State V. A-G Federation (2004)18 NWLR (904). In my view therefore, the words of Section 33 (7) of the 1979 Constitution are clear, precise and unambiguous. Nevertheless, for proper meaning and effect, the provision has to be read as a complete package, giving each part of it equal prominence. I have looked up the definitions of certain key words in this constitutional provision which will assist in arriving at the true and literal interpretation of the law. The New English Dictionary and Thesaurus, New Edition (2006) defines the word “Obtain” thus: “To get, to acquire, to gain.” For better elucidation, the word “Acquire” is also defined as: ”To gain by one’s own efforts; to obtain.” In addition, the word “Within” is defined as: “Inside not exceeding; not beyond. “The next word to be considered is the word, “shall”. The question that should be asked and answered is, whether by the use of the word, “shall” in Section 33 (7) of the Constitution, the makers of the Constitution intended that the provision so enacted was intended to be a “command” or a mere directive. In order to answer this question, it may be profitable to refer back to the dictionary, in this case, the New Webster’s Dictionary of the English Language, wherein it is defined thus: “used to express futurity or promise, intention or command,” In Black’s Law Dictionary (Sixth Edition), it is stated as follows:
“Shall –
As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and its ordinary signification, the term “shall is a word of command, and one which has always or which must be given a compulsory meaning, as denoting obligation. The word in ordinary usage means “must” and is inconsistent with the concept of discretion.”
From the above references, there can be no doubt that when the word “shall” is used in the context of a statute or even in ordinary parlance, it means a command to do or not to do a particular act. There is no question of the exercise of discretion to do or not to do the envisaged act. Therefore, by the use of the word “shall” in the context of Section 33 (7) of the Constitution, it seems to me that the clear intention of the makers of the Constitution is that the Courts are commanded by the Constitution to keep a faithful record of the proceedings of their Courts and thereafter to give, on demand (request), copies of the Judgments to litigants at a time commencing from no longer than seven (7) days after the delivery of such Judgments.
From these definitions, it ‘is therefore beyond question that what the law stipulates is that a Court/Tribunal trying an accused person for a criminal offence must of necessity, (as the word “shall” is used in its directory and obligatory sense here), maintain a Record of the proceedings of the trial. At the close of the trial, such an accused person who requests for it, is entitled to be given a copy of the Judgment of that Court/Tribunal inside of Seven days, in other words, not exceeding or not beyond seven days from the date of the delivery of the Judgment of the Court. From the wordings of this Section, this is a mandatory provision which is obligatory upon any such a Court or Tribunal. It is not optional. It cannot be over-emphasized that is the bounden duty of the Court/Tribunal to maintain a record of the proceedings of any trial before it. It is also the right of an accused person before it to be given, on demand, a copy of the Judgment of the Court/Tribunal within seven days of the conclusion of the case, This is a right guaranteed by the 1979 Constitution for every citizen of this country. Therefore nothing and no one must be allowed to derogate from it.
One of the reasons why it becomes imperative for a person tried for a criminal offence to be entitled to the record of the Court at the conclusion of the trial is just so that he can exercise his right to appeal to a higher Court against that decision if he so wishes, Again, the 1979 Constitution provides for appeals from Courts as well as from Tribunals. Since it is a Tribunal that tried the Appellants in this case, the applicable provision is Section 225 thereof and it provides:
“225. (1) An appeal shall as of right lie from decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution to the Federal Court of Appeal.
(2) The National Assembly may confer jurisdiction upon the Federal Court of Appeal to hear and determine appeals from any decision of any other Court of law or Tribunal established by the National Assembly.”
Straightaway, from these provisions of the Constitution, I hold that any court or tribunal or person acting on their behalf who stands in the way of an accused person obtaining the record of proceedings of that court or tribunal has infringed upon the constitutionally guaranteed right of such an accused person in contravention of the express provision of the Constitution, Thereafter, the law will take its course in line with the legal maxim, “ubijus ubi remedium. “In furtherance of this, it is worthy of note that Section 15 of the Advance Fee Fraud and other Fraud Related Offences Decree, 1995 also made provision for appeals from the decisions of the Miscellaneous Offences Tribunals in these terms:
“15 (1) A person convicted of an offence under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) Decree 1984, as amended, in accordance with the provisions of that Decree.”
Now to apply the law to the facts of this Appeal, the Appellants were all civil servants in the employment of the Kwara State Government working in different capacities in the State Ministry of Finance. Sometime in 1996, they were arrested on an allegation of having committed an offence. They were subsequently arraigned before the Miscellaneous Offences Tribunal, Abuja Zone sitting in Ilorin and were charged for the offence of obtaining money by false pretences by knowingly defrauding the Federal Republic of Nigeria to the tune of N72,000,000.00, which offence was committed in consequence of their abetment contrary to Section 8 (a) and punishable under Section 1 (3) of the Advance Fee Fraud and other Fraud related Offences Decree, 1995. The Appellants were tried and convicted by the Tribunal on the 27th May, 1998, and they served their prison sentences as spelt out earlier in the body of this Judgment. On the 10th June, 1998, the 11th Appellant, Rotimi Oladipo, filed a Notice of Appeal against the decision of the Tribunal. He indicated in paragraph 5 of his Notice at page 207 of the record as follows:
“More grounds of appeal will be filed on receipt of the judgment of the lower tribunal and the record of proceedings.”
The Appellants also stated in their affidavit at the lower Court that their own intentions to appeal were stultified by the failure to obtain the Judgment of the Court and the record of proceedings. (See paragraph 20 at page 190 of the record). The Appellants through their Counsel made spirited attempts to obtain a copy of the judgment and the record of proceedings to no avail. The judgment and the record of proceedings of the tribunal have been untraceable and inaccessible till date.
From the depositions in the Appellants affidavit at the lower Court, it is quite apparent that the Appellants exerted a lot of energy in their bid to obtain the record for the purpose of filing an appeal, all to no avail. The Respondent’s answer to this in his counter affidavit at the lower court is as set out in paragraphs 3 (f) (g) (h) (i) at page 156 of the record. The depositions from both affidavits may or may not serve to be of assistance in getting to the bottom of this tangled mess and help in unravelling the mystery of the missing Judgment and record. What however emerges from all these depositions is that shortly after the trial, conviction and sentence of the Appellants, the Miscellaneous Offences Tribunal was dissolved. With its dissolution the Tribunal Registry also wound up its activities and returned whence it came, apparently to the Presidency. The question that therefore begs for an answer is: What happened to the Appellants’ constitutional right of appeal? Do they lose it because of some administrative rearrangement, or, as the lower Court held, because some of them were tardy in filing their Notices of Appeal by reason of their incarceration?
The learned trial Judge who was called upon to determine this issue agreed with the AG Kwara State, (whose name was struck out from the suit at that Court), that there was no diligent search of the record of proceedings and the Judgment. He held thus at page 234 of the record:
“I would also hold that there was no diligent search for the record of proceedings and the judgment. The Kwara State which later had its names struck out from this suit had a copy of the judgment exhibited as Exh MOJ1. I therefore agree with the assertion of the Defendant that there was no diligent search for records and copy of judgment.
Section 33 (7) of the 1979 Constitution relied upon by the Plaintiffs is of little value to them. The section provides that in a criminal trial, the accused is entitled to obtain copies of the judgment within 7 days of the conclusion of the case. This provision does not say that the court would be chasing the accused with copies of the judgment, it is for the accused or his representative that would make a demand before the provision could be invoked. In this matter, there was no demand until a year after, after the plaintiffs were released from detention. The plaintiffs I, therefore hold are guilty of laches and delay.”
Now, even though the Defendant at the lower Court has denied that a diligent search was embarked upon by the Appellants and has refused to give them any credit for their efforts, even when he was also approached for help in the search, I am of the firm view that none of the depositions of the Appellants concerning the efforts they put in to see that they obtain the Judgment of the Court and the record of proceedings were controverted. The letters to the DPP Kwara State, AG Kwara State and to the DPP Federal Ministry of Justice all speak for themselves. The Appellants did try to gain by their own efforts and by all the ingenuity at their command the said documents. No more was expected of them. They did not rest on their oars but were very proactive in trying to actualize their right of appeal. However, all they got for their efforts was that the very people who arrested and prosecuted them at the lower Court were passing the buck between them. Could this have been the intention of the Constitution when it provided in Section 33 (7) that the accused shall “obtain” a copy of the Judgment and the record of proceedings? Could this scenario have been anticipated by the makers of the Constitution? I think not. I am of the firm opinion that, like the Pharisees did in the days of the New Testament in the Bible, the lower Court has tried to place a heavier burden on the Appellants than the Constitution intended to place on them. It is quite apparent from the affidavit evidence at the lower Court that it was very soon after the conviction and sentence of the Appellants that the Tribunal was dissolved. I draw this conclusion from the fact that even the 11th Appellant who was able to file his Notice of Appeal 14 days after their sentence via his counsel was unable to get the record of proceedings in order to file further grounds as indicated in his Notice of Appeal. Since then, the Appellants were not privy to wherever it was that the Judgment of the Court and the record of proceedings were moved to outside of the Tribunal. It is not for the Appellants to embark on a search far and wide, high and low for what they have been guaranteed a right to. What section 33 (7) anticipates is that the Appellants would apply to the Tribunal Registry and possibly pay whatever fees are officially prescribed to collect a copy of the judgment of the Court and the record of proceedings. Where a Tribunal is dissolved and its Registry similarly dissolves into thin air, should the Appellants be made to suffer the brunt of discontinuation of public policies to their detriment and in total contravention of the express provision of the Constitution? I again answer this question in the negative. With or without the existence of a Special Military Tribunal (as provided in the Decree) to entertain the Appeal of the Appellants, the Constitution guarantees the Appellants’ right of Appeal from the Tribunal to the Court of Appeal and on to the Supreme Court, should the need arise. Where this right is stultified or even snuffed out, (as in this case in which there is no Judgment and record of proceedings to place before the Appellate Courts to test the decision of the Tribunal), I believe a travesty of justice has taken place. The Judgment of the Tribunal, from which there can be no appeal, cannot be allowed to stand, for indeed it is a cardinal principle of justice that it is better for ten guilty men to escape justice than for one innocent man to suffer! In our system of justice, where the right of appeal is taken away, as has effectively been done in this case, there is no fair hearing. The right of the Appellants to receive a fair hearing from the Courts has been abridged. The Appellants have already suffered by serving two and three years in prison respectively. Nevertheless, their names, at the very least, can be salvaged from the disgrace they have suffered as a result.
A calm examination of the record of proceedings before the lower Court reveals that it is common ground that the Appellants, formerly civil servants with the Kwara State Government working with the Ministry of Finance and the Secretary to the State Government’s Office were arrested on 29th November, 2006, arraigned and charged before the Miscellaneous Offences Tribunal on the 4th March, 1997 and convicted and sentenced by the Tribunal on the 27th and 28th May, 1998 respectively. The charges they faced are as contained in Exhibit A annexed to the Appellants’ affidavit at pages 192-194 of the record. Where the parties part ways is what happened thereafter with regard to the Judgment of the Tribunal and the record of proceedings of the Tribunal. In order to fully appreciate the full import of the evidence marshalled before the lower Court, I believe it is better to set out the relevant depositions in the affidavit of the Appellants in that regard:
“18. That throughout our stay in prison, we have (sic) not allowed to have a copy of the judgment of the Tribunal and no copy was made available to our lawyers by the Tribunal’s Registry.
20. That when we came out to (sic) prison after we were made to serve the sentence without affording us any right of appeal, we kept asking for a copy of the Record of Proceeding and the judgment and none was made available to us.
21. Further to paragraph 20 above, we briefed our solicitors, Deji Gbadeyan & Co, to file an appeal on our behalf but he could not do that without the record of proceeding and especially, the judgment of the Tribunal.
22. That on the 6th day of September, 1999, the legal firm of Deji Gbadeyan & Co. wrote a letter to the Attorney General of Kwara State, requesting for the judgment. A copy of the said letter of 6th day of September, 1999 is hereby attached and marked as Exhibit ‘D’.
23. Further to the proceeding paragraph, the Kwara State Ministry of Justice replied on 14th September, 1999 that they did not have a copy of the judgment. A copy of the said letter is hereby attached and marked as Exhibit ‘E’.
24. That on 8th March, 2000, the chambers of Deji Gbadeyan equally wrote to the D.P.P. Federal Ministry of justice for the certified true copy of the said judgment. A copy of the said letter is herewith attached and marked as Exhibit T.
25. Further to the proceeding paragraph, a reply was made on 3rd April, 2000. The copy of the said letter is herewith attached and marked as Exhibit ‘G’.
26. That another letter was written to D.P.P Ministry of justice, Ilorin as directed by Federal Ministry of Justice. A copy of the said letter written on 15th May, 2000 is herewith attached and marked as Exhibit ‘H’,
27. That finally on 24th March, 2000 the Ministry of Justice caused a reply to be made to Exhibit ‘H’ in the said letter of 24th May, 2000 they promised to make the Record of proceeding and the judgment available if they succeed in getting them, A copy of the said letter is herewith attached and marked as Exhibit ‘I’.
28, That for the past six months we have not heard anything from the custodians of the Record and the judgment.
29. That they have stultified our right of appeal in this matter.”
In direct response to this, this is what the Respondent said in their counter affidavit at page 156 of the record:
“3. (f) That the plaintiffs started making efforts to obtain the record of proceedings after they had served their prison sentences.
(g) That when the plaintiffs wrote to the Federal Ministry of justice they were requested to furnish further information that will assist the Ministry in determining what further steps to take in obtaining the judgment.
(h) That since then the Federal Ministry of justice had neither heard from the plaintiffs nor the Kwara State Ministry of Justice.
(i) That this action is premature as the plaintiffs have not tendered the record of proceedings showing the gravamen of their case.”
A portion of the letter of the Appellants’ Counsel to the Attorney General Kwara State dated 6th September, 1999, (Exhibit D) reads:
“We are Counsel to the 6th and 9th convicts, namely, J. D. ABIODUN and SUNDAY OGUNKUNLE respectively. We have their instruction to write you this letter with despatch.
Ever since the judgment of the Tribunal headed by His Lordship Hon. Justice Belgore was delivered, it has proved impossible, due to administrative bottleneck, for my clients, amongst others, to lay their hands on the copy of the judgment.
It is noteworthy that the case under reference was prosecuted by your Ministry here in Ilorin.
Be that as it may, kindly assist us by making available to us a certified true copy of the judgment delivered on 27th May, 1998. It is urgently needed so as to still pursue vigorously further steps in the matter.
Kindly do this for us in the interest of justice.”
In his response written by the Acting D.P.P. Kwara State Ministry of Justice, the Attorney General responded thus in the Exhibit ‘E’:
“We regret to inform you that all effort by the Ministry to get a copy of the judgment proved abortive as we were informed that a copy of the judgment is not yet ready.
However, we undertake to make further effort and wish to assure you that a copy of the said judgment would (sic) made available as soon as we can lay our hand on same.”
This letter was dated 14th September, 1999. What this clearly says and means is that, whereas the Appellants were convicted on the 27th May, 1998, the Judgment of the Tribunal so convicting them was not ready for the purpose of collection by the Appellants sixteen months after same was delivered. More on that later.
The Appellants on their own part did not give up so easily. On the 8th March, 2000, after the disconcerting silence from the AG Kwara State, they again instructed their Solicitor to write this time to the D.P.P. Federal Ministry of Justice, Abuja. The relevant portion of the letter, Exhibit ‘F’ reads:
“In a judgment delivered on the 27th May, 1998 by a Tribunal headed by His Lordship, Hon. Justice Belgore, our clients were unjustifiably sentenced to 3 years imprisonment, which they have unjustifiably served.
Unfortunately, the certified true copy of the said judgment have (sic) not been made available to the affected persons up till this moment.
We wrote to the Attorney General of Kwara State but they could not be of help tracing the judgment. Our letter and their reply are hereby attached for your perusal.
The certified true copy of the said judgment is urgently needed for urgent steps we have been briefed to take in this matter. Please oblige us soonest.
Once more kindly use your good office to assist in this matter, in the interest of justice.”
In response to this fervent appeal for assistance towards enabling the Appellants to explore further areas with relation to the Judgment of the Tribunal, the D.P.P. wrote a terse reply in these words in a letter dated 3rd April, 2000:
“It is to be observed that the Hon. Attorney General of Kwara State in his letter promised to assist you in obtaining the said Judgment. Have you contacted him since his letter of 14th September, 1999. You have not told the Director Public Prosecutions of the Federation (DPPF) what further effort you made since the 14th September, 1999. A detailed information on the efforts you have made will assist this Ministry in determining what steps to take in obtaining the judgment.”
Undeterred, the Appellants did not give up. Two other letters followed this. By a letter dated 15th May, 2000, their Solicitor again wrote the D.P.P. Kwara State, in compliance with the instruction of the D.P.P.F. in Exhibit G. He wrote inter alia:
“3. May we know if the copies of the said judgment in this matter and record of proceeding can be made available to us. If yes, kindly indicate by your letter, when we shall come for them. Please do this soonest.”
In the final correspondence in this regard, the Attorney General of Kwara State himself writing through an officer of the State Ministry of Justice, responded to the heart rending pleas of the Appellants in this way in a letter dated 24th May, 2000:
“2. We want to bring it to your knowledge that up till this moment we are unable to get both the copy of the record of proceeding and the judgment. All effort made has not yielded any positive result as we were informed that the special Tribunal that decided the matter has been dissolved.
3. However, we shall intensify our effort and we are assuring you that we shall not hesitate to forward same to your office as soon as it is available.”
What is clear from all the above is that, upon discovering that the Tribunal had been dissolved, the Appellants, being at a loss to know where to look, floundered around hoping to find help from the agents of Government who prosecuted them before this Tribunal in the first place. Of course, as it turned out, this was a mistake, because they were either not ready to assist in accessing the judgment and the records, or they were equally genuinely at a loss of the whereabouts of same, Whatever it was, they were absolutely of no help to the seeking Appellants in their quest for justice. The most charitable description of this buck-passing by the Kwara State Ministry of justice and the Federal Ministry of justice is that it is a classic case of bureaucracy at its best or what may be described as motion without movement. Consequently, it is patently obvious that the option exercised by the Appellants of filing this suit at the Federal High Court is borne out of their utter frustration in failing to get the judgment and the Record of proceedings of the Tribunal.
From this volley of correspondences, one thing that stands out clearly and which we must not lose sight of is that, two whole years after their conviction and sentence by the Tribunal, the Appellants were unable to obtain the judgment of the Tribunal convicting them and the record of proceedings in that regard. This certainly is in flagrant disregard and violation of Section 33 (7) of the 1979 Constitution, which provides that such should be made available to the parties within 7 days!
From all the above pieces of affidavit and documentary evidence before the lower Court, I find that there was ample evidence that following the dissolution of the Miscellaneous Offences Tribunal Abuja Zone sitting in Ilorin, the judgment of the Tribunal and the record of its proceedings could not be traced or accessed by the Appellants and even for that matter, by the D.P.P Kwara State and D.P.P.F. Federal Ministry of justice, Abuja who prosecuted the Appellants before the Tribunal. It can safely be described as being lost since no-one seems able to say where it is located.
Having answered the first question in the affirmative, what then is the effect of a lost/untraceable judgment and record of proceedings of a lower Court/Tribunal on a party wishing to appeal?
In the case of Ogidi v. State, (2005) 5 NWLR (Pt. 918) 286, the full panel of the Supreme Court in an oblique reference to the issue at stake in this Court held that it is proper that an accused person or his agent be entitled to copies of the judgment as it is a right for an Appellant.
Again in the case of System Metal Industries Ltd v. Ehizo (2003) 7 NWLR (Pt. 820) 460, where part of the proceedings of the lower Court were missing from the record, this court in allowing the appeal held thus per Nzeako, JCA at pages 476-477
“What this Court found out when it tried to discover the missing part of the notes has been outlined in my learned brother’s judgment. Suffice it to conclude, that part of the records has not been found, though traced up to the trial Court in Bauchi. The loss or missing of or removal from the records of the part of the judge’s notes left a positive impression that something had been done amiss at the court below in the course of or after the proceedings, to obliterate the proceedings or the records thereof, and to undermine the course of justice before this court.
For my part, that something and the culprit, I am unable to identify. The issues which they relate to cannot be justly resolved without them. This type of thing is indeed a threat to justice which must not be allowed to happen again. This is one reason why I fully support the final order made by my learned brother, Mukhtar, JCA.”
Having allowed the appeal, this Court sent back the case for retrial.
Yet again, in the case of Okochi v. Animkwoi (2003) 18 NWLR (Pt.851) ” where at the hearing of the appeal in the Court of Appeal, the Appellants’ survey plan tendered at the trial Court was not available for the use of the Court and yet the Court made a finding thereon, the Supreme Court held that where all diligent efforts to procure the missing part of the record fails, the court should take the most painful decision of ordering a retrial in the matter if the missing portion is material to the appeal.
Finally, in the case of Engineering Enterprise Contractor Co. of Nig. V. AG Kaduna State (1987) 1 N.S.C.C. 601; 1987) 2 NWLR (Pt.57) 381, the Appellant sued the Respondent over a piece of land. The matter was heard by the trial High Court and the claim was dismissed. The Appellant filed a notice of appeal and paid the requisite fees. The judgment was lost in the High Court and so the record of Appeal could not be produced for the purpose of the appeal. The matter was heard de novo and again the Appellant’s claim was dismissed. The Supreme Court, sitting as a full panel, invalidated the judgment and instead ordered a retrial. Aniagolu, JSC stated inter alia thus at page 615 of the report:
“It leaves a sour taste in the mouth, that a judge, having delivered his judgment would not allow that judgment to be critically analysed by the Appeal Court, by causing the judgment (whether by mistake or accident) to disappear. Imagination would run riot in the mind of fair-minded-right thinking-citizens as to the justice of the case.”
Oputa, JSC in his judgment in the same case at page 628 of the same report put it this way:
“Section 220 (1) (a) of the 1979 Constitution gave the appellants an Unqualified right of appeal against any final decision of the High Court sitting as a court of first instance…It is the glory happiness and pride of our various Constitutions, that to prevent any injustice no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved, he has another court to which he can resort for relief. For this purpose the law furnishes him with the right of appeal as of right. Can this Court as the country’s last and final court allow this excellent guarantee of justice be thwarted by the act of a judge misplacing or throwing away his judgment? I sincerely hope not, otherwise we open a floodgate that will ultimately swallow up all our ideals of justice by and through the intervention of the Appellate Court…We have to keep the doors of our appellate courts open if we are to preserve our rights and freedoms.”
Finally, Belgore, JSC, (as he then was), also had strong words to offer at page 632 of the report thus:
“The function of Courts is to do justice between parties by settling their disputes. Anything short of this defeats the spirit of the law and the Constitution. Every wrong not the fault of a party must not be visited on the innocent party and where agents of the State are at fault, the innocent victim must be atoned. Nasiru Bello v. Attorney General of Oyo State (1986)5 NWLR 828. The loss of the judgment was certainly due to negligence of the High Court of Kaduna State and not that of the Appellant. The Appellant was to all intent and purposes all along ready and willing to prosecute his appeal against the judgment but it was kept out of his reach by its loss. If the judgment cannot be found, it is in the interest of justice to have a situation whereby it will be possible to finally decide on the dispute between the parties, The only manner to do this in the present circumstance is to have a judgment .by ordering trial de novo which will lead to one.”
From all the above cited authorities, it becomes clear that in situations where the judgment of a Court has been said to be lost and the record of proceedings or part thereof missing, the Courts have always leaned towards setting aside the lost/missing judgment and, depending on the circumstances of the case, ordering a retrial. It is however worth noting that in all these cases considered, they have all been trials of a civil nature, not criminal. What therefore should be the proper order to make where, as in this case, it is a criminal trial, the judgment of the Tribunal and the record of proceedings cannot be traced, while the Appellants have served their complete terms in prison. Should they be made to go through the rigours of trial again? I agree with learned Counsel for the Appellants that to make an order of retrial will not serve the interest of justice in the peculiar circumstances of this case. It will amount to double jeopardy, the Appellants having been convicted, sentenced and served out their full terms in the Ilorin Prison without the benefit of recourse to appeal the decision. By virtue of Section 33 (9) of the 1979 Constitution, no person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and was either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court. In other words, the provision of that section restates the Common law rule against double jeopardy in criminal cases, generally referred to as the plea of autrefois acquit or autrefois convict, which is also provided in Section 244 of the Criminal Procedure Code applicable to Kwara State, By the constitutional provision and the common law rule, the State is barred from instituting criminal proceedings against its citizens ad infinitum. See Chief of Air Staff  v. Iyen (2005) 6 NWLR(Pt. 922) 496; State v. Chukwura (1964) NMLR 64. In the circumstances of this case, it would be both oppressive and unconstitutional to put the Appellants on trial a second time, I do so find.
Issue Two.
Whether the Defendant/Respondent could competently raise a Preliminary objection to the competency of the action through a paragraph in its further and better affidavit; and whether the lower Court rightly discountenanced the Plaintiffs’ objection to such procedure.
On this issue, it is the law that an affidavit shall not contain any extraneous matter by way of objection, prayer, legal argument or conclusion. See Section 87 of the Evidence Act. The Respondent, as Defendant at the lower Court, presumed to raise a Preliminary objection to the competency of the suit in paragraph 5 of his further and better affidavit as follows:
“5. That the 1st Defendant by way of Preliminary (sic) shall argue that this suit should be dismissed in its entirety by this Honourable Court because of the following,’
(a) The jurisdiction of this honourable court is ousted by law.
(b) The Plaintiffs instituted this action outside the time stipulated by law.
(c) The mode by which the Plaintiff (sic) instituted this action is wrong,”
No mention of this Preliminary objection was made on the face of his motion paper. Instead, it was introduced like bolt out of the blue in the further affidavit, The Respondent argued his objection elaborately in his written address at the lower Court and the Appellant responded in his Reply address. For reasons best known to him, the learned trial Judge completely ignored the submissions of the Appellants on this and wholly upheld the Respondent’s Preliminary Objection, I am in agreement with learned Counsel for the Appellants that what the Respondent purported to do in his affidavit is untenable in law, and should have been struck out without much ado by the learned trial Judge. Issues of law are not meant to be canvassed in an affidavit. It is an anathema, Neither can a person unlettered in the law, such as the deponent in the affidavit, (who is stated to be a litigation clerk in the Department of Civil Litigation of the Federal Ministry of Justice, Abuja), presume to depose to ‘law’ in an affidavit, Even were such to be allowed in an affidavit which is the custodian of facts, such law cannot proceed from his mouth. I therefore strike out paragraph 5 of the further and better affidavit of the Respondent. This therefore also takes care of the two points of law raised therein that the suit is statute barred and that it was commenced wrongly via the Originating Summons procedure.
Issue Three.”
Whether the learned Trial judge competently raised suo motu the issue of conflict in the plaintiffs’ affidavit evidence which he resolved on his own and made his findings the basis of his judgment without affording counsel in the case the right of address.
Without wasting time, hasten to say here that this is misconception of the proceedings before the lower Court. The issue of the conflict in the Plaintiffs’ affidavit was raised in the address of the Counsel to the Respondent. The only problem here is that with all due respect to the learned trial Judge he seemed not to have a full grasp of the affidavit evidence before him. For the Plaintiffs’ affidavit revealed quite clearly that whereas only the 11th Appellant succeeded in filing a Notice of appeal, the other Plaintiffs made moves to do so but were unable due to the fact that the Tribunal had been dissolved and the Registry too had apparently followed suit. Consequently, the lower court fell into error when it found that there was conflict in the Plaintiffs’ affidavit. This issue is however resolved in favour of the Respondent.
Issue Four.
Whether the learned trial judge was right to have used in his judgment a document filed by subsequently struck out 2nd and 3rd Defendants as one of the basic considerations for dismissing the Plaintiffs’ suit.
In respect of the issue of the use to which the learned trial judge put the affidavit of the 2nd and 3rd Defendants even after they had been struck out as parties before the Court, it goes without saying that a Court is entitled to look at all documents in the file of the case before it in arriving at its decision in order to arrive at a just decision. The law is settled that a court will be right in law to refer to the documents contained in the case file, which are not made part of the application under consideration if such documents will lead toward doing justice in between the parties before it. See Fumodoh v. Aboro (1991) 9 NWLR (Pt.214) 210; Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt.502) 630; Wellington v. Registered Trustees of the Ijebu-Ode Goodwill Society (2000) 3 NWLR (pt.647) 130. The document used by the learned trial judge extracted from the said counter affidavit of the 2nd and 3rd Defendants is the Exhibit Moji, an enrolled order of the Tribunal, This document, which the learned trial judge termed, ‘the judgment of the Tribunal’, on a closer examination is nothing but a one page summary in the nature of the order of the Tribunal. It is certainly not the elusive judgment of the tribunal which, to date, no-one, neither the Plaintiff nor all the Defendants at the lower Court, have been able to see. This is certainly not a Judgment which sets out the full reasoning behind the Judge’s decision, from which an aggrieved litigant can sift through and prepare his appeal. The use to which the learned trial Judge put the said document is what gives cause for concern, but certainly not the fact that he referred to the document at all. He had every right to have looked at all the documents in the file to arrive at a just decision. It is the weight ascribed to such a document that is questionable. I therefore answer issue four in the affirmative also in favour of the Respondent.
Issue Five.
Whether the lower Court lacked jurisdiction by virtue of the ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Decree, 1984 and Section 2 of the Public Officers Protection Act; 1990.
The final issue to be considered is whether by virtue of the ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Tribunal Decree, 1984 and Section 2 of the Public Officers Protection Act, 1990, the lower Court lacked jurisdiction. It has since been settled that where there is a conflict between a statute and the provisions of the African Charter, which is a statute with international flavour, its provisions will prevail over those of the other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation. See Abacha v. Fawehinmi (2000) FWLR (Pt.4) 545-546. Article 7 of the African Charter on Human and People’s Rights (Rectification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria, 1990, relevant to this suit stipulates thus:
“1. Every individual shall have the right to have his cause heard.
This comprises:
(a) the right to an appeal to competent national organs against acts of violating fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.”
I therefore agree with learned Counsel that the Appellants’ right of appeal against the judgment of the Tribunal is extant and is no way abrogated by any real or imagined ouster clause. Indeed, the days of submitting helplessly and surrendering wordlessly to draconian laws fashioned for inhabitants of a barracks are happily behind us. Democracy has dawned in Nigeria and the rule of law prevails where citizens’ right are respected and laws are obeyed. The suit of the Appellants is therefore not caught by the said ouster clause, and I do so find.
Finally on the issue of the Appellants’ action being caught by the provisions of the Public Officers’ Protection Act, 1990, the law is trite that where the injury complained of is a continuing one, time does not begin to run until the cessation of the event leading to the cause of action. In the instant case, the lost/ missing/untraceable judgment is still not available or accessible. The injury arising from this loss is still a continuing one. At the time this suit was filed on 4th January, 2001, the demand letters by the Appellants for the judgment and the record of proceedings of the Tribunal had still not yielded any positive answer. The Notice of Appeal filed by the 11th Appellant still subsists and no progress can be made in that line without the Judgment and the record. Besides which the Supreme Court has held that the Public Officers Protection Act does not apply to bar a relief sought in connection with an error committed in a purely judicial capacity, as in this case. Where the remedy sought is to enforce a constitutional right contravened by a court acting judicially, the time within to seek that remedy is not subject to the time limit prescribed by the Public Officers’ Protection Act. See Federal Republic of Nigeria v. Ifegwu (2003) 5 S.C. This issue is again resolved against the Respondent.
All said and done, the failure of the Respondent to respond to this Appeal speaks volumes. Whatever the reason, the fact remains that the Appellants, who were tried and convicted at their behest, have been denied their right to test the decision of the lower Tribunal by appealing to a higher court. Thereby, effectively denying them their inalienable rights to a fair hearing before the courts of our land. It is no wonder that the respondent although duly served with all the processes of this Appeal, decided not to contest same.
In the light of all my findings above, it is my considered view that the learned trial judge was in error when he dismissed the claim of the Appellants. The prayer of the Appellants however, asking the Court to declare the judgment of the lower court a nullity, is improper. When on appeal, the decision of a lower Court is declared a nullity it implies that the Court was incompetent when it heard the case. A trial may be declared a nullity on the following grounds:
(a) Where the very foundation of the trial, that is, the charge or information is null and void;
(b) Where the trial Court has no jurisdiction to try the offence;
(c) Where there is a serious blunder or error by the Judge in the course of the trial.
See Chief of Airstaff v. Iyen (Supra); Jiddun v. Abuna (2000) FWLR (Pt.24) 1405.
In the instant case, since the case does not fall into any of these categories, the only order to make is one allowing the appeal for the reasons already stated in the body of this Judgment. Consequently, I allow the Appeal. I hereby invoke the powers of this Court under Section 16 of the Court of Appeal Act to grant the prayers in the Appellants’ claim at the Court below in the following terms:
1. It is hereby DECLARED that the Judgment of the Miscellaneous Offences Tribunal in suit No. MOT/ABJ/2/97 between the Federal Republic of Nigeria v. Alhaji Suleiman Arowosaiye and 15 others delivered on Wednesday 27th day of May, 1998 is unconstitutional and of no effect whatsoever being an untraceable and lost judgment in violation of Section 33 (7) of the 1979 Constitution and under the Advanced Fee Fraud and other related Offences Decree No. 13 of 1995.
2. It is hereby DECLARED that the Appellants’ constitutional right to fair hearing under the 1979 Constitution and Advanced Fee Fraud and Other Related Offences Decree No 13 of 1995 was violently breached’ through the denial of the Appellants’ right of Appeal against the Judgment of the Miscellaneous Offences Tribunal in suit No. MOT/ABJ/2/97 delivered on Wednesday 27th day of May, 1998.
3. The sum of N5,000,000.00 (Five Million Naira) each as compensation for wrongful detention of the appellants in the Federal Prisons, Ilorin for three years or thereabout without confirmation of such ‘Judgment’ by the then Head of the Federal Military Government of Nigeria is awarded to the Appellants.
TIJJANI ABDULLAHI J.C.A.: I agree.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading in draft form the erudite and comprehensive judgment just delivered by my learned sister JUMMAI HANNATU SANKEY, JCA. I am in complete agreement with her reasoning and conclusions. She has ably and comprehensively addressed all the issues in controversy. I will add few words.
The Appellants, as Civil Servants in the Kwara State Ministry of Finance, were arrested on 29th May, 1996 for fraudulent conversion of Federal Government grant for some Kwara State pensioners. The Appellants were later arraigned on 4th of March, 1997 before a Miscellaneous Offences Tribunal headed by Belgore J. (as he then was). Until their arraignment, and throughout the fourteen months of trial by the Miscellaneous Tribunal, the Appellants were kept in prison custody.
On May 27, 1998 the Miscellaneous Offences Tribunal delivered its judgment and convicted the Appellants while on 28 May, 1998, the tribunal sentenced each of them to three years imprisonment except two who were sentenced to two years term of imprisonment. The Appellants served their term.
Throughout the Appellants’ sojourn in prison they were not allowed to have copies of the judgment and the Record of proceedings of the Tribunal; and no such copies were made available to their counsel by the Tribunal’s Registry. The foregoing notwithstanding, the 11th Appellant filed a Notice of Appeal with the help of his counsel, Buhari Oguntoye & Co, on 3rd June, 1998. Their solicitors wrote several letters to the Kwara State Ministry of Justice and D.P.P. Federal Ministry of Justice, so as to obtain a copy of the judgment but all was to no avail. The judgment and record of proceedings of the Tribunal has been untraceable and inaccessible till date. The Appellants’ assertion, at the lower court, that the Record and the judgment were lost was nowhere controverted; but the Respondent’s assertion which received the lower court’s affirmation is that the Appellants slept over their rights to the Record and the judgment under the Constitution. Hence, he dismissed the Appellants’ case as unmeritorious.
This is an appeal against the judgment of the Federal High Court sitting at Ilorin delivered by P. F. Olayiwola, J. on 29/7/2004. The Appellants had filed at the lower court an originating summons claiming the following reliefs –
“1. A DECLARATION that the judgment of the Miscellaneous Offences Tribunal in MOT/ABJ/2/97 between the Federal Republic of Nigeria vs. Alhaji Sulaiman Arowosaiye & 15 others is null and void, illegal, unconstitutional and of no effect whatsoever, being an unconfirmed decision by Head of the Federal Military Government of Nigeria and also, an affront to Section 33 (7) of 1979 Republican Constitution.
2. AN ORDER for reinstatement of the Plaintiffs to their status quo ante bellum, that is, prior to their trial, in the Civil Service of Kwara State and to pay all their unpaid salaries, emoluments, remuneration and allowances from the 29th day of November, 1996 when they were al/ arrested till date of judgment in this court.
3. N5,000.000.00 each as compensation for wrongful detention of the Plaintiffs in the Nigerian Prisons, Ilorin for three years or thereabout without confirmation of such Judgment’ by the then Head of the Federal Military Government of Nigeria.
AND also for the determination of the following questions:
1. Whether an untraceable record of proceedings and judgment of the Miscellaneous Offences Tribunal, not made available to the Plaintiffs contrary to Section 33(7) of the 1979 Constitution, is valid and efficacious for the purpose of depriving them all their rights under the Government of Kwara State.
2. Whether the Plaintiffs’ constitutional right to fair hearing was and still breached; moreso, that the Plaintiffs’ right of appeal was manacled by the Defendant’s conduct.
3. Whether upon questions 1 and 2 above, the Plaintiffs are entitled, inter alia, to compensation and public apology.
4. Where a decision or judgment of Tribunal is mandatorily subject to ratification by a supervening authority or body, whether such judgment, like the one at hand, is not inchoate and thereby unexecutable without such ratification.”
The trial court dismissed their case in its entirety and the Appellants appealed to this court. On 16/5/2007 the appeal was ripe for hearing by this court. The Respondent had been served with process on 18/4/2007. This court had earlier made an order on 15/3/2007 that the appeal be heard on the Appellants’ brief alone following the proved failure of the Respondent to file any answer to the appeal. The Respondent being apparently unable and unwilling to defend the appeal, the appeal was heard on 16/5/2007.
The Appellants’ counsel in his brief identified five issues for determination. They are stated below:
“(i) Whether the loss or inaccessibility of both Military Tribunal’s judgment and its Record of Proceedings was/is in contravention of Section 33(7) and constitutionally guaranteed fair hearing under Section 3391) of the 1979 Constitution (Section 36 1999 Constitution); and if so, whether such violation or denial renders the entire trial and Appellants’ conviction unconstitutional, null and void, and of no effect whatsoever (Grounds 5, 6 & 9 of the Notice of Appeal).
(ii) Whether the Defendant/Respondent could competently raise a preliminary objection to the competency of the action through a paragraph in its further and better affidavit; and whether the lower court rightly discountenanced the Plaintiffs’ objection to such procedure? (Ground 1).
(iii) Whether the learned trial judge competently raised suo motu, the issue of conflict in Plaintiffs’ affidavit evidence, which he resolved, on its own, and made his findings the basis of his judgment without affording counsel, in the case, the right of address. (Ground 4)
(iv) Whether the learned trial judge was right to have used in his judgment, a document filed by a subsequently struck-out 2nd and 3rd Defendants, as one of the basic considerations for dismissing the Plaintiffs’ suit. (Grounds 2 & 3)
(v) Whether the lower court lacked jurisdiction by virtue of ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Decree 1984 and Section 2 of Public Officers Protection Act, 1990. (Grounds 7 & 8)”
The 1st issue for determination is whether the inability of the Appellants to secure the Military Tribunal’s judgment and record of proceedings contravenes S.33(7) of the 1979 Constitution applicable to this cause of action render the entire trial and the Appellants’ conviction unconstitutional, null and void and of no effect whatsoever. Learned Appellants’ counsel argued that even though one of the Appellants – the 11th Appellant filed a notice of appeal on 3/6/98 none of the Appellants could pursue an appeal because there were no records or judgment of the Tribunal.
Appellants’ counsel argued that based on the affidavit evidence adduced at the trial court the Appellants were tried for commission of a criminal offence, tried and convicted by the Miscellaneous Offences Tribunal at Ilorin and judgment was delivered on 27/5/98 and they were sentenced on 28/5/98. He argued that the record of proceedings was not mandatorily kept in contravention of constitutional provision and after fruitless search for it the presumption is that it was lost. After delivery of the judgment nobody had access to it contrary to S.33(7) of the 1979 Constitution. He argued that contrary to the finding of the trial judge there were numerous demands for the judgment and the Records which were discountenanced by the Respondents.
The lower court held as follows on page 234 of the Record –
“Section 33 (7) of the 1979 Constitution relied upon by the Plaintiffs is of little value to them. The section provides that in a criminal trial, the accused is entitled to obtain copies of the judgment within 7 days of the conclusion of the case. This provision does not say that the court would be chasing the accused with copies of the judgment, it is for the accused or his representative that would make a demand before the provision can be invoked. In this matter, there was no demand until a year after, after the Plaintiffs were released from detention. The Plaintiffs, I therefore hold are guilty of laches and delay.”
Learned Appellants’ counsel argued that the consequence of an unkept, untraceable or lost record and judgment in a constitutional matter under S.33 (7) of the 1979 Constitution is so grave and such that it will fundamentally affect and afflict the validity and efficacy of such judgment. He cited Ogidi v. The State (2005) 1 SC Pg. 1 Pg. 98 at 119; Anyanwu v. The State (2002) 6 SC Pt.1) Pg. 173. He argued that relying on Ogidi v. The State where it is shown that an inaccurate recording of what transpired in court in contravention of a constitutional provision could occasion miscarriage of justice, then by extension, lost record of proceedings and judgment in a criminal matter should result in the judgment being adjudged ineffective null and void.
He argued that the doctrine of fair hearing under common law and under S.33 (1) of the 1979 Constitution was ignored by the Respondent. He argued that the Advance Fee Fraud and other Fraud related Offences Decree 1995 had provision for appeal against the Tribunal’s judgment provided by S.15 of the said Decree. He argued further that the Appellants sought to exploit the extant appeal provision in the Decree. The further and better affidavit on page 204-209 of the Record show in paragraphs 4, 5 & 6 thereof that there was no establishment of a Special Appeal Tribunal Registry to take the appeals of the Appellants even though the 11th Appellant filed a notice of appeal within time. He submitted that the loss of both the Military Tribunal’s judgment and Record of Proceedings which made prosecution of appeals impossible, amounts to a denial of the Appellants’ constitutionally guaranteed right to fair hearing. He cited Ogundoyin v. Adeyemi (2001) 7 SC Pt. 1) Pg. 88 at 108. He urged this court to follow the position of the Supreme Court in Engineering Enterprises of Niger Contractor Co. of Nig. v. Att. Gen. Kaduna (1987) 2 NWLR Pt. 57 Pg. 381 at 400. In that case, the Supreme Court invalidated the lost judgment and in turn ordered a retrial so as to have a judgment that would resolve the dispute one way or the other. Learned Appellants’ counsel however submitted that this court should not order a retrial in the criminal matter as the interest of justice will not be served by such an order. The Appellants would face double jeopardy moreso as they had been convicted, sentenced and served their full term without the Respondent allowing them to challenge their conviction. It would be oppressive to put them through a second trial. He cited Chief of Air Staff v. Iyen (2005) 1 SC Pt. II Pg. 121; Eyorokomo v. The State (1979) 6.9 SC 3; Adeoye v. The State (1999) 4 SC Pt. II Pg. 67.
The learned trial judge as set out earlier in this judgment based his finding on this issue on the fact that the Appellants did not immediately after their conviction request for or obtain a copy of the judgment of the Tribunal. He adjudged them guilty of delay or laches by his finding that “I have held that there was no demand for the Record in this matter” at page 166 of the Record. This is a very unfortunate case indeed which happened during the military interregnum.
The issue at stake here is whether or not there is such a breach of the provisions of S.33(7) of the 1979 Constitution to affect the validity of the proceedings and judgment of the trial court and cause it to be set aside and/or declared a nullity. S.33(7) of the 1979 Constitution state thus-
“when any person is tried for criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorized by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.”
The Appellants were tried for commission of a criminal offence and were consequently convicted and sentenced to terms of imprisonment. The argument of the 2nd & 3rd Respondents which was accepted by the learned trial judge on this issue was that the Appellants failed and neglected to timeously request for a copy of the proceedings and judgment either within the constitutional 7 days or within 21 days provided by the Decree but made their requests months after their sentence was pronounced and by which time the tribunal had been disbanded. The Appellants further compounded the problem by demanding the proceedings and judgment from the 2nd & 3rd Respondents instead of demanding same from the Tribunal or the Presidency. The argument of the 2nd & 3rd Respondents at the lower court was that they too were parties in the suit and not custodians, thus the Appellants requests were not directed to the appropriate authority.
Let us examine once again the peculiar circumstances of this case. NOBODY has laid eyes on the records of proceedings and the reasons for the judgment of the court since 27th day of May, 1998 when it was delivered till date. All the Respondents have been able to come up with is an enrolled judgment of the court comprising one page. Let me say that from the affidavit evidence both the Appellants and the Respondents tried in vain to secure a copy of the record of proceedings and the full judgment of the court to no avail. Thus the blame shifting. We live in a complex society where the trauma and stigma of conviction of a criminal offence can only best be imagined not experienced. The personnel of the Kwara State government including its High Court judge were used during the period of the operation of the Miscellaneous Offences Tribunal. The State Ministry of Justice supplied the legal officers who prosecuted the Accused persons – now Appellants. Would it be too much for the Appellants to think that at least these officers would know the whereabouts of the proceedings and judgment the latter of which at least should be in the custody of the office of the 3rd Respondent? Let me set out a few of the correspondence that passed between the parties. The Ag. DPP Ministry of Justice, while reacting to Plaintiffs/Appellants’ demand for the judgment on 14th September, 1999 more than a year after the delivery of the judgment, had this to say:
“We regret to inform you that all effort by the Ministry to get a copy of the judgment proved abortive as we were informed that the copy of the judgment is not ready ” (underlining mine)
(see page 199 of the Record)
On 24th May, 2000 vide Exhibit I, the Hon. Attorney General for Kwara State also indicated, in his letter to Plaintiffs/Appellants’ counsel, thus:
“2. We want to bring it to your knowledge that up till this moment we are unable to get both the copy of the record of proceedings and the judgment. All efforts have not yielded any positive result.
3. However, we shall intensify our effort and we are assuring you that we shall not hesitate to forward same to your office as soon as it is available”
There is no gainsaying the fact that the Appellants started requesting for the record of proceedings at the next available opportunity open to them, what of the 11th Appellant who filed notice of appeal within time, The argument of the Respondents at the lower court was that if only the Appellants had asked for the records timeously they might have been able to get it. However, my own understanding of the provisions of S.33 (7) of the 1979 Constitution is that it sets a time within which the court should start to make the judgment available. The judgment is to be available within 7 days ad infinitum, any party who needs the judgment for any purpose may request for and obtain it even after 100 years. Such important documents are sacrosanct. They affect the rights, duties and liabilities of persons hence the guarantee of their accessibility by the Constitution. It is even more important in respect of criminal proceedings when the right of the convict to appeal is in issue, let us even concede that they did not request for it timeously until they were able to do so after their release from prison custody. It is not acceptable to say the Appellants did not ask for it before the tribunal was disbanded and thus it is their fault that they cannot have it even now. That reasoning cannot be accepted by any right thinking person. The fact remains these documents are yet nowhere to be found. Even though S.15 (1) of the Advance Fee Fraud Decree under which the Appellants was charged stipulated that they could appeal to a special appeal tribunal within 21 days, the Federal Government did not set up the special appeal tribunal.
In this case, by the time the Appellants left prison custody and gave their legal counsel instructions to file notice of appeal, the Tribunal registry was said to have been disbanded with all the documents sent to the presidency in Abuja. They had no Tribunal Registry to file the notice of appeal or to ask for the records, Even if the Special Appeal Tribunal which was said to be final had been disbanded, the Appellants should have had recourse to the High Court or the Court of Appeal. We must remember that even though time to appeal had lapsed by the time they left prison custody, the rules of court still had room for them to ask for and be granted extension of lime to do so for good reasons. See S.25(4) of the Court of Appeal Act, Or, 4 r.5, r.6 & r,7 of the Court of Appeal Rules gives them this guarantee. Or.4 r.7 (1) & (2) of the Court of Appeal Rules states as follows –
“7.(1) When-
(a) the Registrar of the court below has received a notice of appeal or a notice of application to the court for leave to appeal or for extension of time within which such notice shall be given; or
(b) the court below has granted leave to appeal, the Registrar of the court below shall prepare the record of appeal in the manner hereinafter prescribed and forward to the Registrar either seven copies thereof together with, where stencils were used for the production of the record, copies of such stencils duly and carefully preserved, or twenty copies of the record. He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the court below together with the originals of any recognizances entered into or any other documents filed in connection with the appeal or application.
(2) Subject to the provisions of rule 9 of this Order, the Registrar of the court below shall forward to the Appellant and to the Director of Public Prosecutions of the State from which the appeal emanated a copy of the record. Provided that if the Appellant is not in custody a copy of the record shall only be supplied to him on request.
The argument of the 2nd and 3rd Respondents is that there was no special appeal tribunal and that the Appellants should have appealed to the Court of Appeal. But one of them 15th Appellant – Oladipo Rotimi – 11th Convict did file a notice of appeal at the then existing registry of the lower court. Then the provisions of Or.4 r.7 (1) & (2) of the Court of Appeal Rules stated above should have been implemented. In that event at least one of the convicts or his counsel would have been served promptly with the proceedings and the judgment. By Or. 4 r.7 (1) & (2) it is quite clear that as soon as a convict files notice of appeal, he has performed his duty. Thus by the S.220 of the 1979 Constitution; at least the 11th Convict had the right to prosecute his appeal in the Court of Appeal and he had the right to have his appeal determined on the merits by this court. By inadvertence, carelessness or negligence through its judicial arm, the Federal Government in conjunction with the Kwara State Government deprived the Appellants of their constitutional right under S.220 and 33 (7) of the 1979 Constitution and their mandatory constitutional right by causing the loss of the proceedings and judgment resulting in the inability of the Appellants to prosecute their appeal and the Court of Appeal to determine their appeal on the merits. This is both constitutionally and legally wrong. See Bello v. Att. Gen. Oyo State (1986) 5 NWLR Pg. 828; Chief Akinmolarinde v. Yeyebinu (1975) NMLR 45; Ajala v. Nig. Gen. Motors FCA/L/58/81; Eng. Ent. Contractor v. A.G. Kaduna (1987) 1 NSCC Pg. 601. At Pg. 606 of Engineering Contractors, Bello CJN delivering the lead judgment of the full court held inter alia that-
“In the exercise of its judicial powers a court of law should adhere to constitutionally. It should not condone the commission by a State of constitutional wrong nor should it be an accessory after the fact to the commission of unconstitutionality.
“In the above cases the court set aside the judgment of the court because no appeal could be filed because of the disappearance of the judgment. To me, the setting up of these tribunals outside the provisions of the 1979 Constitution, their failure to set up the machinery for appeal from the judgments of the tribunal, the deliberate carelessness with the records of proceedings and judgment of a court which curtailed the liberty of several citizens including seizure of their landed property can amount to nothing but a deliberate and concerted efforts to unjustifiably manacle, deny and muzzle the constitutional rights of the Appellants. Their right to fair hearing had been extensively compromised. In my view it would be particularly oppressive to order another trial before the regular courts after almost ten years. See Chief of Air Staff v. Iyen (2005) supra where the Supreme Court held per Ejiwunmi JSC quoting with approval the dicta of Lord Diplock in Dennis v. Reid (1979) 2 WLR Pg. 221 at 226 as follows –
“…the consideration that any criminal trial is to some extent an ordeal for the Defendant, which the Defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution, lapse of time may tend to operate to its disadvantage rather than to that of the Defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.”
The proper thing also in the circumstances of this case is to set aside the judgment of the Miscellaneous Tribunal delivered on 27/5/98. The conviction and sentences of the Appellants is hereby quashed. The 1st issue is resolved in favour of the Appellants.
On issue two, whether the 2nd & 3rd Respondents could validly raise a preliminary objection to the suit by way of a paragraph in their counter-affidavit. In the procedure by way of originating summons, the affidavit in support of the claim and the counter affidavit form the pleadings of the parties. Where a party wants to challenge the competence of the suit, the proper procedure is to file a motion of preliminary objection stating the grounds of objection. Where the counter-affidavit to originating summons contains paragraphs contrary to S.87 of the Evidence Act or extraneous matters and/or legal arguments or conclusions such paragraphs are liable to be struck out. The second issue is resolved in favour of the Appellants.
The third issue is whether the learned trial judge was right to have raised suo motu the issue of conflict in affidavit evidence and basing his judgment on it without giving the Appellants opportunity to be heard. The learned trial judge did not in my view raise the issue suo motu. It was part of the address of the Respondents’ counsel. The fact remains that the learned trial judge misconceived the facts because only one of the convicts had filed notice of appeal, not all of them. Be that as it may, the issue that the learned trial judge raised it suo motu does not arise. That issue is resolved in favour of the respondents.
Issue No.4 is whether the learned trial judge was right to have used in his judgment a document filed by the 2nd and 3rd Respondents whose names were struck out as one of the basic considerations for dismissing the Plaintiffs’ suit. First of all, the judge has a right to look at all the documents and process filed so long as it would assist him in the proper adjudication of the issues before him. See Joshua B. Fumudoh & Anr. v. Dominic E. Aboro & Anr. (1991) 9 NWLR Pt. 214 Pg. 210; Agbaisi v. Ebikorefe (1997) 4 NWLR Pt. 502 pg. 630; Wellington v. Registered Trustee (2000) 3 NWLR Pt. 647 Pg. 130 at 138. The important thing is the weight and understanding attached to such documents. There is no gainsaying the fact that Exh. MOJ B1 cannot be described as an appealable judgment. It is merely the enrolled order of the court and not the full judgment giving reasons. The learned trial judge was of the view that since the Attorney-General of Kwara State could get hold of the enrolled order of judgment, it was the lack of diligence of the Appellants that prevented them from having equal success. Apart from the fact that what the Appellants needed was a full judgment giving reasons not a one page document, the document was passed from the State Ministry of Justice to the State Ministry of Finance. Be that as it may, the answer to the 3rd issue is that the learned trial judge can utilize all process duly filed before him in the court’s file though he placed undue weight on the availability of Exh. MOJ B1 to arrive at his conclusion.
The 5th issue is whether the lower court lacked jurisdiction by virtue of ouster clause in S.11 of the Special Tribunal Miscellaneous Offences Decree 1984 and S.2 of the Public Officers Protection Act 1990. S.11 of the Miscellaneous Offences Decree states as follows –
“8. (i) No civil proceeding shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to this Act and if any such proceedings are instituted before, on or after the commencement of this Act the proceedings shall abate, be discharged and made void.
(ii) The question whether any provision of Chapter IV of the Constitution of the Federal Republic of Nigeria has been is being or would be contravened by anything done or proposed to be done in pursuance of this Act shall not be inquired into in any court of law and, accordingly, no provision of that constitution shall apply in respect of any such question. ‘
The Supreme Court in the case of Abacha v. Gani Fawehinmi (2000) FWLR Pt. 4 at Pg. 545 – 546 construed and interpreted the above provision in light of African Charter on Human and People’s Rights (Rectification and Enforcement Act Cap. 10, Laws of the Federation of Nigeria 1990 pursuant to Section 1. Articles 5 and 7 of the Charter states as follows –
“Article 5 – Every individual shall have the right to the respect of the dignity inherently in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Article 7 – Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal competent national organs against acts of violating fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.”
In my view the mandated legal status of the Appellants have been compromised by the Miscellaneous Offences Decree. The right of appeal of the Appellants was still extant. Those Military Tribunals were inferior tribunals and they could not act in excess of their jurisdiction to deprive a convict the right of appeal. See Onyeanusi v. Misc. Offences Tribunal (2002) 12 NWLR Pt. 781 Pg. 227; Animistic Ltd. v. Foreign Commission (1969) 2 WLR Pg. 123.
On whether the action has been caught by the provisions of the Public Officers Protection Act, my own humble view is that we must first determine when the cause of action arose. Did it arise in 1999 or 2000 when the all Appellants were released after serving their prison term? Since limitation does not run against them when they are in custody. On the other hand was it a continuing injury being kept alive and which had not ceased until the action was filed because of the continuing loss of the records and judgment of the tribunal? If we say the cause of action arose three months after the Appellants left prison – that is 1999 and 2000, then the cause of action had abated. However if we hold the view that it was a continuing grievance, then the Appellants are not caught by limitation. I hold that the injury of the disappearance of the proceedings and judgment in issue is still continuing. They have not been found till date. Time cannot start to run against them. In FRN v. Ifegwu (2003) 15 NWLR Pt. 842 Pg. 113 the Supreme Court held that an error committed in a judicial capacity could not be protected as it was not subject to time limit. In that case the Respondent had been convicted on two counts and sentenced to terms of imprisonment and fines on both counts. He appealed to the Special Appeal Tribunal wherein the sentences were reduced. The failed Banks Decree had made the decision of the Special Appeal Tribunal final. The Respondent filed an action under the fundamental human rights provision that he was tried convicted and sentenced for acts which were not a crime at the time he did them. The Supreme Court upheld the nature of Fundamental Human rights under the Constitution and the need for the courts to protect them from abuse. The court also held that estoppel cannot be raised as a defence to an issue of lack of jurisdiction and abuse of Fundamental Human Rights. In this case at hand, we cannot say that the error was an executive error but an error committed by all cadre of worshippers in the temple of justice. This is a case in which it was an unconstitutional deprivation of the rights of the individual by an act of the judiciary and the executive. The judiciary cannot escape where in its official capacity certain things are done to compromise the rights of individuals. Even though the facts in this case cannot be wholly laid at the door of the judiciary but at the doors of the executive Federal Government and its various agents in their nebulous interference in judicial apartus. In FRN v. Ifegwu supra the Supreme Court held –
“… It would be argument carried too far to say that the Public Officers Protection Act applied to bar a relief sought in connection with an error committed in purely judicial capacity. It does not. The remedy sought is to enforce a constitutional light contravened by a court acting Judicially. The time within which to seek that remedy is not subject to the time limit prescribed by the Public Officers Protection Act. There is no reason why it should. If it did, it would likely conflict with court rules.”
I cannot but agree with the above conclusion and to hold that the action by the appellants is not statute barred. The proceedings and judgment of the lower court is hereby set aside. I abide by all the orders of this court as contained in the lead judgment.
Appeal is allowed.
Appeal allowed.
Appearances
T.O.S. Gbadeyan Esq. with Tola Lawai Esq. (Miiss) and G. G. Adebiyi Esq. For Appellant
AND For Respondent
