REV. FR. SILAS NWEKE v. THE FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12133(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/E/2C/2017(R)
RATIO
COURT AND PROCEDURE: PROVISIONS OF THE CPA AND ACJA
“The above provisions of the CPA and ACJA empower the Court to permit an amendment, alteration or addition to charge at any time before judgment. See OGBOMOR V. THE STATE (1985) NWLR (PT. 2) 223, (1985) LPELR – 2286 (SC) AT 17 (D-F). ECHEAZU V. C.O.P (1974) LPELR – 994 (SC) CDR YAKUBU KUDAMBO V. NIGERIAN ARMY (2014) LEPLR – 22624 (CA). ADEJOBI & ANOR V. THE STATE (2011) LPELR – 97 (SC) AT 37 (E-G). UGURU V STATE (2002) LPELR – 3325 (SC) AT 10 (G-D) (2002) 9 NWLR (PT. 771) 90. Since the law expressly permits amendment, alteration and addition of a charge, the exercise of that right cannot be an abuse of the process of the Court.” PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
REV. FR. SILAS NWEKE Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Federal High Court sitting at Awka, delivered by Hon. Justice I. B. Gafai on 24th day of November, 2016 Suit No. FHC/AWK/75C/2010 dismissing the Appellant’s preliminary objection.
FACTS
From the history of this matter, the Appellant along with Dr. E. S. C. Obiorah (Co-Defendant as he then was) were arraigned on a 34 Count Charges with Charge No.: FHC/AWK/75C/2010, they jointly filed a preliminary objection dated 14/12/2010. On 11/11/11, the ruling was delivered on the said preliminary objection dismissing the Appellant’s preliminary objection. The Appellant along with Dr. E. S. C. Obiorah filed Appeal No: CA/E/295AC/2011 AND No: CA/E/295BC/2011 respectively. This Court entered judgment allowing the Appeal in part and dismissing the appeal in part. Consequent upon, he appealed to Supreme Court challenging the competence of the original charge. While the issues of competence of the original charge are still pending at the Supreme Court, the Respondent amended the said original charge. Learned counsel for the Appellant challenged the competence of the Amended Charge. He filed a preliminary objection against the Amended Charge on the ground that it is incompetent and contemptuous of the earlier order of the trial Court made on 04 / 05 / 2016.
On 24 /11 / 2016, the trial Judge dismissed the Appellant’s preliminary objection, hence this appeal to this honourable Court.
The Appellant dissatisfied with the Ruling of the lower Court, filed a Notice of Appeal on the 28 ? 11 ? 2016 encapsulating six (6) Grounds of Appeal ? Pages 192 ? 197 of the Record of Appeal.
The Appellant filed his brief of argument on 7th of February 2017. It was settled by Dr. E. S. C. Obiorah, Esq.
The Respondent on the other hand filed his brief of argument on the 10th of November, 2017, but same was deemed filed on 24th of May, 2018. It was settled by Habila Jonathan Esq.
The Appellant distilled three (3) Issues for Determination from the six Grounds of Appeal as follows:
1. Whether the learned trial judge was right in holding that this amended original process (i.e. the amended charge no. FHC/AWK/75c/2010, dated 11/10/2016 and filed on 13/10/2016) was competent when it is not clear which counsel signed it and when the person who allegedly signed the said amended charge did not append his stamp and seal approved by the Nigerian bar association (NBA) as required by law.
2. Whether the learned trial judge’s decision was not perverse when it failed or refused to address the serious issues of contempt of Court and abuse of Court process and yet dismissed the Appellant’s preliminary objection that was based on those issues.
3. Whether the amended charge no. FHC/AWK/75C/2010 dated 11/10/2016 and filed on 13/10/2016 constitutes an abuse of Court process in view of the fact that the original charge no. FHC/AWK/75c/2010 (dated 03/12/2010 and filed 07/12/2010), which was purportedly amended, is still pending at the Supreme Court.
The Respondent on the other hand proffered a sole issue for determination as follows:
Whether the Charge is competent before the trial Court?.
I have considered the grounds of appeal and issues formulated by counsel. I am of the view that the issues of determination are:
1. WHETHER THE AMENDED CHARGE AMOUNT TO A DISOBEDIENCE OF THE ORDER MADE BY THE COURT BELOW ON 4/5/2016 AND CONTEMPT OF THE ORDER.
2. WHETHER THE AMENDED CHARGE CONSTITUTES AN ABUSE OF THE PROCESS OF THE COURT.
3. WHETHER THE AMENDED CHARGE FILED ON 11/10/2016 WAS PROPERLY SIGNED BY A LEGAL PRACTITIONER AS REQUIRED BY LAW.
APPELLANTS ARGUMENT
ISSUE 1
Learned counsel submitted that all processes filed in Court by counsel must be signed by the counsel who discloses his name clearly below his/her signature otherwise, the process is incompetent thereby rendering the entire proceeding a nullity ab initio. He cited the case of SLB CONSORTIUM LTD. VS N. N. P. C. (2011) 9 NWLR (PT. 1252) 317, 337 – 338 r. 7. OKAFOR VS NWEKE (2007) 10 NWLR (PT. 1043) 521, SC; BUHARI VS ADEBAYO (2014) 10 NWLR (PT. 1416) 560, 585, r.8.
Learned counsel contended that it is not clear whether the purported Amended Charge was signed by ‘Anasoh Henry Onyekachi, Esq.’ or Chukwuma Eneh Kene Esq. or even a litigation clerk in the Legal prosecution Dept.? of the state. It is further contended that it is not clear whether the person who allegedly signed the said Amended Charge was ever called to the Nigerian Bar as a Legal Practitioner.
It was further contended that apart from the fact that the Amended Charge is a nullity because the person who signed it is also incompetent because the person who signed it did not affix his stamp and seal as required by law. Thus, the trial Court has no jurisdiction to entertain the same.
ISSUE 2
Learned counsel submitted that it is trite law that a Court must pronounce on all issues properly placed before it for determination and failure to pronounce on crucial issues will certainly lead to a miscarriage of justice and a breach of fair hearing. He cited the case of EGHAREVBA VS OSAGIE (2009) 18 NWLR (PT. 1173) 299 310 ? 311 r. 7 (SC). According to the learned counsel, the Appellant raised both in his Notice of Preliminary Objection and written address two crucial issues:
First: That the Amended Charge constituted an abuse of Court process in view of the fact that the original charge No: FHC/AWK/75C/2010 is still pending at the Supreme Court in Appeal No: SC. 895/2015: Rev. Fr. Silas Nweke V. F. R. N. and Criminal Appeal No: SC. 542/2016: Rev. Fr. Silas Nweke V. F. R. N. and Second: That the amendment to the Original Charge would amount to contempt of Court in view of the earlier ruling of the trial Court where the same trial Court refused to allow the Respondent to amend the original Charge already pending at the Appellate Courts for the Appellant to plead to the Amended Charge because ‘there is need to be careful to avoid throwing our judicial system into a brink of an abyss’. See Pg. 160 – 163 of the record.
ISSUE 3
Learned counsel for the Appellant stated that it is trite law that any action that constitute ‘an abuse of process’ is incompetent. He cited the case ofARUBO VS. AIYELERU (1993) 3 NWLR (pt. 280) 126, 192, r. 5 & 8. He stated that Supreme Court in the case of A. C. B. PLC. VS NWAIGWE (2011) 7 NWLR (Pt. 1246) 380, 399 r. 3, define what is then an abuse of Court process. He refer to the case of ABUBAKAR VS. B. O. & A. P. LTD. (2007) 18 NWLR (PT. 1066) 319, 377, SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156, OKAFOR VS. A-G ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659, among others. Learned counsel argued that the amendment to the original charge which is still pending at the Supreme Court constitute an abuse of Court process and contempt of Court.
RESPONDENT’S ARGUMENT
ISSUE 1
Learned counsel to the Respondent stated that the Amended Charge was filed by the Economic and Financial Crime Commission (EFCC) on 7/12/10 represented by the prosecution counsel Anasoh Henry Onyekachi and Kenechukwu Chukwuma Eneh whose seal is affixed on the Amended Charge. The Amended Charge was signed by Anasoh Henry Onyekachi. Counsel place reliance on the case of PANALPINA WORLD TRANSPORT HOLDING VS CEDDI CORPORATION LTD & ANOR (2011) LPELR ? 4827 (CA) INEC VS OSHIOMOLE (2009) 4 NWLR (PT. 1132) 607.
Learned counsel refer to the case of SLB CONSORTIUM LTD. VS NNPC (Supra) cited by the Appellant’s counsel and contended that the facts presented in the instant case is not in all fours with the facts stated in the case cited and relied upon by the Appellant’s counsel.
On the Appellant’s counsel contention that the Amended Charge constitute an abuse of Court’s process in view of the fact that the original charge No: FHC/AWK/75C/2010 is pending at the Supreme Court; Respondent counsel replied that the instant amended Charge is proper and competent. He cited the case of NOSIRU ATTAH VS THE STATE (1993) 7 NWLR (PT. 305); Section 216 and 217 of Administration of Criminal Justice Act 2015.
On the issue of contempt of order of the trial Court, learned counsel argued that such an order granting a stay of proceeding amounts to a nullity. It is void. He cited the case ofMAMMAH & ANOR VS HAFO (2016) LPELR 40653 (SC) where the Supreme Court pronounced on the issue of void order as well as the case of MACFOY VS U. A. C. (1961) 3 WCR 405 at 1409, to buttress his point.
RESOLUTION
ISSUE 1
The learned counsel for the Appellant contended that the amended charge was in contempt of the order of the Court made on 4/5/16. Generally, a party who is in disobedience of an order of Court cannot be heard on any application seeking an exercise of a Court’s discretion in its favour. However, there are exceptions to the general rule. See OBIAGELI V. F. C. E. ZARIA & ORS (2014) LPELR 24010 (CA) AT 52 – 54 (D – A) where this Court held as follows:
Whether regular or irregular, competent or incompetent, a decision, order or judgment of a competent Court of law in respect of what it is constitutionally empowered to do, is valid, subsists and binds the parties affected by it until set aside by the Court itself or an appeal by a higher Court, that is the effect of the presumption of regularity enshrined in Evidence Act. The law is also that, any party who disobeyed such decision, order or judgment is guilty of contempt of the Court and any act/acts done in violation and or disobedience of the said decision, order or judgment is invalid and ineffective in law. However, in case of an order of injunction as in the instant case, if the contemnor falls within the exception to the rule as set out in the case of: FIRST AFRICAN ATLANTIC TRUST BANK LTD V. EZEGBU (1992) 9 NWLR (PT. 264) p. 132 AND MOBIL OIL (NIG) LTD. V. ASSAN (1995) 8 NWLR (PT. 412) P. 129; as follows: A contemnor can apply to the Court for the purpose of:
a. Purging his contempt.
b. Where he is seeking leave to appeal against the order of which he is held in contempt.
c. He can be heard in support of a submission that. Having regard to the true meaning and intendment of the order which he is said to have disobeyed his actions did not constitute a breach of it. Having regard to all the circumstances, he ought not to be treated as being in contempt and
d. Where the contemnor is seeking to defend himself when same application is made against him. With respect to the learned trial judge I do not agree but wonder how would the case of the Respondents be manipulated to fall within the above exceptions? I even tried but quickly caution myself and drew back in order not to fall into or be consumed by the train of injustice against the Appellant. Because I could vividly recall when this Court held in ACCESS BANK PLC VS U. L. O. CONSULT LTD (2009) 12 NWLR (PT. 1156) 534 that; the issue of contempt has to do with justice itself being flouted rather than the individual Court or Judge, who is attempting to administer it.
The respondent’s case falls within exception C. The respondent can be heard in support of a submission that, having regard to the state of the law guiding the Court on stay of proceedings in criminal matters and the entire facts and circumstances of this case the amended charge does not constitute contempt of the order made on 4/5/16.
Determination of whether or not a party has committed contempt of Court or is in disobedience of Court order is largely subjective. It is an issue which depends on the facts and circumstances of a particular case. First, the respondent has not been adjudged a contemnor. Secondly, in the eyes of the law the order upon which the, appellant’s objection is predicated does not exist. This is because the appellant herein has been charged with an offence of obtaining money by false pretence and with intent to defraud from several persons named in the charge. He was charged under Section 1 of the Advance Fee and Other Fraud Related Offences Act. He is being prosecuted by the Economic and Financial Crimes Commission established, by Economic And Financial Crimes Commission (Establishment) Act. Section 40 of the Act provides that:
”Subject to the provisions of the constitution of the Federal Republic of Nigeria 1999/ an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court”
Section 306 of the Administration of Criminal Justice Act (ACJA) also provides that:
“An application for stay of proceedings in respect or a criminal matter before the Court shall not be entertained”
It is a cardinal principle of interpretation that where the words used in a statute are clear and unambiguous the duty of the Court is to give those words their simple grammatical and natural meaning. By the use of clear and unambiguous words, the intention of the lawmaker would be clearly manifested. See IKEDIGWE v. F.R.N. (2010) LPELR – 4295 (CA) AT 25 – 27 (G-A). JOLASUN V. BAMGBOYE (2010) LPELR – 1624 (SC) AT 36 (D-F), (2010) 18 NWLR (PT. 1225) 285 (SC). It is clear from the wordings of Section 40 of EFCC ACT and Section 306 of ACJA that the intention of the law maker is to abrogate or remove the jurisdiction of the trial Court to entertain application for stay of proceedings pending an appeal against interlocutory rulings. The purpose of Section 40 of EFCC ACT can be gleaned from its marginal which stated “Appeals against interlocutory ruling etc.”
Though marginal notes are not part of a section of a statue but it serves as a useful and helpful guide in discovering the intention of the lawmakers. See OSUN STATE COMMISSION & ANOR V. A.C. & ORS (2010) LPELR – 2818 (SC) AT SS (B-C), IDEHEN V. IDEHEN (1991) 6 NWLR (PT. 198) 382 (1991) LPELR – 1416 (SC) AT 55 (F-G). By the clear words of Section 40 of EFCC Act and Section 40 of EFCC ACT and Section 306 AJCA, the lower Court had no jurisdiction to entertain an application for a stay of proceedings not to talk of making an order staying the proceedings before it pending the determination of the interlocutory appeals before this Court and the Supreme Court. The law is trite that an order made without jurisdiction is null and void. It is of no effect. A Court without jurisdiction cannot make a valid order. See SOLUDO V. OSIGBO & ORS (2009) LPELR – 8279 (SC) AT 3 (C).
Since the lower Court lacked the jurisdiction to entertain an application for stay of proceedings in the criminal matter before it, the order made by the Court on 4/5/2 16 is invalid, null and void. The law treats an order made without jurisdiction as one that was never made at all. See F.R.I.N V. GOLD (2007) 11 NWLR (PT. 1044) 1 (2007) LPELR -1287 (SC) AT 17 (E-G). The effect in this case is that as at 13/10/2016 when the respondent filed the amended charge dated 11/10/2016, there was no other for stay of proceedings which could have prevented the lower Court from entertaining the amendment. In F.R.N. V. UWAGBA (2009) 15 NWLR (PT. 1163) 91 S.C., (2009) LPELR – 3443 (SC) AT 16 (C-G). The Supreme Court considered the issue of whether a Court order must be obeyed. The Court held as follows:
“I know it may be touchy and sensational for a Court to remain a toothless-bull-dog where a litigant disobeys a Court order. But I must add that such Court’s order has to be lawfully and competently made. Where an order is made by a Court without jurisdiction that order is a nullity ABINITIO”
It is settled that a Court has the inherent jurisdiction to set aside its own decision which ‘is a nullity either on the application of a party or suo motu. See DINGYADI V. INEC (2010) LPELR – 952 (SC) AT 35 (D-E). Setting aside a null order by the same Court that made the order does not amount to the Court sitting on appeal over its own order. See CHEVRON NIG LTD V. WARRI NORTH LGC (2002) LPELR – 5435 (CA) AT 23 – 24 (F-A). The instant case, the lower Court having considered the argument of counsel to both parties held as follows at pages 183 – 186:
”For the sake of clarity let me remind parties in this case, more particularly the Accused that the Original charge in this case was filed way back in 2011; running through three different judges in this Court so far without any appreciable progress, stack at the arraignment stage ever since. I should not be misunderstood here to be, belittling or under emphasizing the right of a party to appeal on interlocutory grounds. The real issue to be growled in the con of this Court shall stay proceedings once and whenever an accused in a trial chooses to appeal against the jurisdiction of the Court to try him on what he claims to be an imperfect charge. This has been the pattern and the norm previously until the coming into force of the in ACJA in 2015 with its clear provisions in Section 306 wherein it provides that:
“An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained.”
It is to be noted importantly here that this provision is not in my humble understanding meant to undermine or disrespect the process or proceedings of the appellate Court in connection with the case on trial. Furthermore, Section 40 of the EFCC Act 2004 provides also that:
“Subject to the provisions of the constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the commission before the High Court shall not be entertained until judgment is delivered by the High Court.”
My humble understanding of these provisions is that while the right of an accused to lodge and pursue an appeal against any decision of the trial Court at any stage is not curtailed the exercise of such right shall not however be or deemed to be an automatic mark of stay of proceedings; except where there is an order by the appellant Court to stop the proceedings. I am not persuaded that the proceedings in this case on the amended charge shall be stayed in the manner sought by the accused/objector in the preliminary objection.”
The pronouncement effectively overruled or set aside the order made on 4/5/2016. Having set aside its void or null order, the coast was clear for the Court to entertain the amended charge and the Court rightly proceeded to entertain the amended charge. See N.H.D.S LTD V. RASHAQ & ANOR (1977) LPELR – 2019 (SC) AT 28 (B-C). BELLO v. THE DIOCESAN SYNOD OF LAGOS & ORS (1973) LPELR – 768 (Se) 45 (F).
Considering the history and jurisprudence of criminal trials in this nation, there was nothing in the order made by the lower Court to preclude the respondent from filing an amended charge. The contention that the amended charge is in contempt of Court is totally misconceived. Issue 1 is resolved against the appellant.
ISSUE 2
RESOLUTION
It is the contention of the learned appellant’s counsel that the amended charge is an abuse of the process of Court in that the respondent had amended the original charge severally and the appellant’s appeals on the competence and jurisdiction to entertain the original charge are still pending before the Supreme Court. Sections 162 and 163 of the Criminal Procedure Act Provides that:
162. When any person is arraigned for trial on an imperfect or erroneous Charge, the Court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.
163. Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.
Similarly Sections 216 and 217 of the ACJA provide that: 216.
1. A Court may permit an alteration or addition to a charge or framing of a new charge at any time before judgment is pronounced.
2. An alteration or addition of a new charge shall be read and explained to the defendant and his plea to the amended or new charge shall be taken.
3. Where a defendant is arraigned for trial on an imperfect or erroneous charge, the Court may permit or direct the framing of a new charge, or an addition to, or the alteration of the original charge.
4. Where any defendant is committed for trial without a charge or with an imperfect or erroneous charge, the Court may frame a charge or add or alter the charge as the case may be having regard to the provisions of this Act.
217.
(1) Where a new charge is framed or alteration made to a charge under the provisions of Section 216 of this Act, the Court shall call on the defendant to plead to the new or altered charge as if he has been arraigned for the first time.
(2) The Court stall proceed with the trial as if the new or altered charge r lad been the original charge.
The above provisions of the CPA and ACJA empower the Court to permit an amendment, alteration or addition to charge at any time before judgment. See OGBOMOR V. THE STATE (1985) NWLR (PT. 2) 223, (1985) LPELR – 2286 (SC) AT 17 (D-F). ECHEAZU V. C.O.P (1974) LPELR – 994 (SC) CDR YAKUBU KUDAMBO V. NIGERIAN ARMY (2014) LEPLR – 22624 (CA). ADEJOBI & ANOR V. THE STATE (2011) LPELR – 97 (SC) AT 37 (E-G). UGURU V STATE (2002) LPELR – 3325 (SC) AT 10 (G-D) (2002) 9 NWLR (PT. 771) 90. Since the law expressly permits amendment, alteration and addition of a charge, the exercise of that right cannot be an abuse of the process of the Court.
In PML (NIG) LTD V. F.R.N. (2018) 7 NWLR (PT. 1619) 448 AT 491- 492 (E-8), (2017) LPELR- 43480 AT 61 (A-F) The Supreme Court stated what amounts to abuse of Court process as follows:
”Whenever it is alleged that a matter filed in Court is an abuse of Court process, it centers on an improper use of judicial process by a party in litigation aimed at or targeting an interference with due administration of justice. Some of the features of abuse of Court process would certainly include the following, though not exhaustive. These include:
(1) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action.
(2) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(3) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent’s notice.
(4) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action is prima facie vexatious and an abuse of Court Process.”
The Court also held that the term abuse of process has an element of malice in it and that it has to be a malicious perversion of a regularly issued process civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. The proceeding or the step taken in the proceeding must be lacking in bona fide. In the instant case, there is nothing before this Court to show that the amendment to the charge was done with malice or that the action of the prosecution was done mala fide.
There is no limit to the number of times a charge can be amended before judgment. However it is most desirable that the prosecution gets a good grasp of its case and frame the correct charge before the commencement of trial so as to give the defendant adequate opportunity to prepare his defence. It is not in the best interest of justice to keep on amending the charge severally even before trial is commenced.
For the forgoing reasons, Issue 2 is resolved in favour of the respondent and against the appellant.
Issue 3
RESOLUTION:
It is settled by a plethora of authorities that any Court process prepared by a legal practitioner should be properly signed by the legal practitioner as follows:
(1) The signature of the legal practitioner who issued or signed the process.
(2) The name of the legal practitioner who signed the process.
(3) The party that the legal practitioner represents.
(4) The name and address of the legal firm of the practitioner.
(5) Where more than one legal practitioners are listed on the process the name of the particular legal practitioner who signed the process must be indicated.
The signature of the Legal Practitioner who issued or signed the process.
See S.L.B CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) 317. DANIEL V. INEC & ORS (2015) LPELR – 24566 (SC) AT 42 -43 (F-A). In the Instant case, the amended charge under contention is on pages 5 – 23 of the record of appeal. There is a signature on page 23. Under the signature two names are stated. The names are ANASOH HENRY ONYEFCHI and CHUKWUMAH – ENEH KENE. They are listed as prosecuting counsel. There is no indication of who among two names the signature belong to. The Nigerian Bar Association’s Stamp bears the name of IKECHUKWU W. CHUKWUMA – ENEH. The lower Court on the issue of whether the amended charge is competent held as follows at page 183 of the record:
“I have no reason to doubt firstly that this amended charge was prepared and filed by Anasoh Henry Onyekachi for the Prosecution. I think with due respects, it is inconceivable to allude as the learned counsel for the Accused/Objector does that the amended charge may have as well been prepared and filed by “Legal & Prosecution Department Economic and Financial Crimes Commission, Enugu.
Thirdly, I have not heard nor read any fact or submission to the effect that the amended charge is misleading, confusing or liable to cause same in the mind and understanding of the Accused.”
The learned trial judge did not state how he came to the conclusion that the amended charge was signed by Anasoh Henry Onyekachi. The Respondent’s counsel stated in the brief of argument that the process was signed by Anasoh Henry Onyekachi. He then referred us to pages 23 and 59 of the record first the statement of the Respondent’s counsel amount to giving evidence in an address. The law is trite that an address no matter how brilliant does not take the place of evidence which, must be adduced during trial. Secondly, it is not the duty of this Court to compare signatures in the record book in order to determine which particular legal practitioner signed a process. The process must, speak clearly for itself as to who signed it. Where a process fails to speak to who signed it and the Court has to embark on a voyage of discovery, then that process cannot be regarded as properly signed. See EWUKOYA & ANOR V. TAJUDEEN BUARIS & ORS (2016) LPELR – 40492 (CA) AT 9 -12 (D-B). Thirdly, even if it is true that Anasoh Henry Onyekachi signed the process and that he is a Legal Practitioner, his seal or stamp was not affixed on the process as required by Rule 10(1) of the 2007 Rules of Professional Conduct for Legal Practitioners. Without his seal or stamp the document is deemed not to have been properly signed. See ADEWALE & ANOR V. ADEOLA & ORS (2015) LPELR – 25972 (CA) AT 16 – 27 (D-A). The result is that the amended charge dated 11/10/2016 and filed on 13/10/2016 is incompetent. It is hereby struck out.
In conclusion, issue 3 having been resolved in favour of the appellant, the appeal succeeds.
The amended charge filed on 13/10/2016 is struck out for being incompetent not having been properly signed by the legal practitioner who prepared and filed it.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother, ABUBAKAR SAOIQ UMAR, JCA allowing this appeal. I have nothing useful to add the lead judgment.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree
Appearances:
Dr. E. S. C. Obiorah, Esq.For Appellant(s)
Habila Jonathan, Esq.For Respondent(s)
