OKOLI v. STATE

CITATION: (2018) LPELR-44670(CA)

In the Court of AppealIn the Enugu Judicial Division

Holden at Enugu

ON FRIDAY, 25TH MAY, 2018Suit No: CA/E/24C/2017

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealTOM SHAIBU YAKUBU Justice, Court of AppealJOSEPH TINE TUR Justice, Court of Appeal

BetweenJOSEPH OKOLI - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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ELR-44

670(

CA)

1. CRIMINAL LAW AND PROCEDURE - RIGHT(S) OF AN ACCUSED PERSON: Right of an accused person to be tried timeously; whether an accused person who contributed to the delay in his trial cancomplain of same on appeal"Unarguably, it is generally expected that an accused person who is facing/undergoing a criminal prosecution, is tried timeously so that he knows his fate in respect of the charge(s) preferred againsthim. For, as long as the charge(s) are hanging on his head, it cannot be said that he is totally free in the exercise of his fundamental rights to freedom of movement. Such an accused person, naturally issubjected to an emotional stress and a resonating feeling of uncertainties regarding his fate and for as long as the trial lingers on, the charges against the accused person, hangs as the sword ofDamocles over his head. That is why it is axiomatic that a speedy trial is preferable at all times, to a long and delayed trial, for, as it is said, justice delayed is justice denied. And that is where thefundamental rights of the accused person comes into play and focus.Therefore, in the conduct of both civil and criminal proceedings in our Courts, the hallowed principles of natural justice and fundamental rights donated to individuals in our Constitution must be strictlyobserved. The nature and importance of fundamental rights was re-echoed and reiterated by the apex Court in Ransome-Kuti v. Attorney General of the Federation & Ors (1985) LPELR - 2940 (SC) at pp.33 - 34, inter alia:"What is the nature of fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilisedexistence and what has been done by our constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in council 1960 up to the presentConstitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in theConstitution so that the rights could be "immutable" to the extent of the "non-immutability" of the Constitution itself. It is not in all countries that the Fundamental Rights guaranteed to the citizen arewritten into the Constitution. For instance, in England, where there is no written constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding,there are fundamental rights. The guarantee against inhuman treatment, as specified in Section 19 of the 1963 Constitution, would, for instance, appear to be the same as some of the fundamentalrights guaranteed in England, contained in the Magna Carter 1215 - Articles 19 and 40 which provide - "no freeman may be taken or imprisoned, or disused of his freehold or liabilities in free customs orbe outlawed or exiled or in any way molested nor judged or condemned except by lawful judgment or in accordance with the law of the land and the crown or its ministers may not imprison or coerce thesubject in an arbitrary manner". In the United States, the Eighth Amendment to the United States Constitution provides - "Excessive bail shall not be required, nor excessive fines imposed, nor cruel andunusual punishment inflicted." -per Eso, J. S. C.Therefore, the entrenchment of fundamental rights and the mode of enforcing its breach in the Nigerian Constitution over the years since our independence, undoubtedly underscores its importance andthe need to zealously protect the sanctity and inviolability of human life. Accordingly, the Courts do not usually shirk their judicial responsibility in ensuring that the human rights of the individual is notcompromised and on no account should such rights be swept under the carpet or taken away by any person or government under any guise, without justification.It is gratifying that it is in recognition of the importance of the quick and timeous dispensation of criminal justice that the framers of the 1999 Constitution of the Federal Republic of Nigeria, (asamended), had promulgated in Section 36(4) of the same to the effect, inter alia, that:"Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a Court or tribunal."Now, the word "reasonable" as defined by the learned authors of Black's Law Dictionary, Eight Edition, at page 1293, connotes what is:"1. Fair, proper, or mode under the circumstances."The phrase "reasonable time" appears to be relative vis-a-vis the facts and circumstances of each case. For, the Supreme Court, in determining the factors that delay the conclusion of a case within areasonable time had this to say, in Ezeala Nnajiofor & Ors v. Linus Ukonu & Ors (1985) LPELR - 2056 (SC) at pages 17 - 18, ?that:"It is not therefore possible to lay down a fixed rule as to what "reasonable time" is in the trial of every case. Some cases are by their nature short or lengthy by reason of the number of witnesses to becalled or the length of the testimonies of the witnesses. Others involve witnesses who do not live in the country or within the Court's jurisdiction. Documents to be put in evidence may be in the custodyof a third party and may not as such be readily available for production at the trial. The health of a vital witness or even the trial judge may fail. All these and many more are factors which canreasonably delay the conclusion of a trial. Surely, such delay cannot be taken to be unreasonable. I am strengthened in this view by the observation of my learned brother Eso, J.S.C., in the leadjudgment in Ariori & Ors v. Elemo & Ors. where he said at p. 58: "And so the right to speedy trial is necessarily relative. It depends on each circumstance." - Per Uwais, J. S. C. (as he then was).And more recently the Supreme Court, in Alhaji Sani Abubakar Danladi v. Barr. Nasiru Audu Dangiri & Ors (2014) LPELR - 24020 (SC) at page 44, reiterated that:"In my view, the phrase "within reasonable time" implies that the time for the determination of the matter should not be too short or too long, depending on the nature and facts of the case." - PerNgwuta J.S.C.Following the decisions of the apex Court in Nnajiofor v. Ukonu (supra) and Danladi v. Dangiri (supra), in order to determine the reasonableness or otherwise of the length of time involved in the trial ofthe appellant herein, it is imperative to who consider the facts and circumstances of the instant matter.The appellant's application at the Court below, which led to this appeal was made pursuant to Sections 6(6) B and 36(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)and under the inherent jurisdiction of the Honourable Court, and prayed for the following reliefs, namely:1. AN ORDER of this Honourable Court quashing and/or dismissing all the charges brought against the Accused Persons/Applicants under Charge No. AG/26C/1997.2. AN ORDER of this Honourable Court quashing all the charges preferred against the Accused Persons/Applicants in Charge No. AG/26C/1997 and discharging them of the said charges before this Court.3. AND FOR SUCH FURTHER or other Orders as the Honourable Court may deem fit to make in the circumstances.TAKE FURTHER NOTICE THAT the grounds upon which this application is brought in addition to those contained in the accompanying Affidavit are as stated hereunder.1. The Accused Person/Applicants were arraigned before this Court on 30th June, 1997 under the instant Charge No. AG/26C/1997 wherein they were charged with various offences.2. The Accused Persons/Applicants under the said Charge No. AG/26C/1997 were arraigned on six (6) counts of the offences of malicious damage, rioting, stealing and riotous demolition of property in1997 and have been standing trial for the alleged offences since the said 1997.3. Since the arraignment of the Applicants on 30th June 1997, trial has not in fact commenced in the matter as the trial has always suffered unnecessary adjournments and incessant transfer of theJudges handling the matter.4. It is a constitutional requirement as enshrined in Section 36 of the 1999 Constitution (as amended) that a person accused of a criminal offence must be tried within reasonable time.5. More than eighteen (18) years has lapsed since the Accused Persons/Applicants were charged with the said offences and trial of the same has not commenced.6. The Accused Person/Applicants have all spent more than double of seven (7) years being the maximum sentence any of them would have spent in prison if convicted of the offences, waiting to betried for the alleged offences.7. The intendment of Section 36 of the 1999 Constitution (as amended) is to unconditionally ensure that an Accused Person who is arraigned for an alleged commission of an offence is tried speedily andfairly.8. The Accused Persons/Applicants are constitutionally entitled to fair hearing and a fair trial within a reasonable time in accordance with the Constitution.9. The failure to conduct the trial of the Accused Persons, for the past 18 years amount to oppression injustice and/or fairness inter alia in that:(a) The delay has the effect of prejudicing the Accused Persons in the preparation or conduct of their defence;(b) The Accused Persons have been deprived of the protection offered by Section 36(5) of the Constitution which guarantees a fair hearing within a responsible time;(c) The Accused Persons cannot in the circumstances receive a fair trial;10. It is contrary to the public interest in the integrity of the Criminal Justice System that any trial should now take place after 18 years.11. The continued prosecution of this matter or the continuation of any proceedings with regard thereto in the premise constitutes an abuse of the Court's process.12. The prosecution is not interested in the trial of the matter as it only preferred the charges so as to harass, oppress, persecute and intimidate the Applicants and this constitutes an abuse of processof Court and should be dismissed.13. The failure to conduct the trial of the Accused Persons/Applicants within a reasonable time as required by law is a fundamental breach of their constitutional right to fair hearing thereby renders thecontinued trial of the charges a nullity."?There is an affidavit of 16 paragraphs filed in support of the application and also a written address by applicants' counsel in support of the application. The respondent filed a Counter-Affidavit of 55paragraphs in opposition to the application. Several documentary exhibits were attached to it and also a written address by respondent's counsel was filed contemporaneously with the counter-affidavit.Thereafter, the applicant/appellant filed a Further Affidavit of 49 paragraphs, and also a written reply by the applicant's counsel.The learned trial judge in his decision, came to the conclusion that the applicant/applicant's right to fair hearing was not breached by the long delay of his trial, because according to the learned trialjudge, the appellant contributed to the delay of the prosecution of the case against him.I have painstakingly perused the affidavit evidence and the documentary exhibits filed in support of the application by the appellant and those filed in opposition to it by the respondent.It is very clear to me that both parties contributed to the delay in the prosecution of the appellant. For example, where some of the appellant's co-accused persons were absent from Court for one reasonor the other, the trial certainly could not have proceeded in their absence. And this was even compounded by the absence from Court by appellant's counsel on 20th September, 1999; 9th February,2001; 13th July, 2004 and 17th March, 2005 etc, as indicated at pages 69, 75, 84 and 88 of the record of appeal. For the respondent, the trial suffered adjournments at her instance on 20th January,2003; 8th November, 2004; 17th March, 2005 and 6th November, 2006; etc as shown at pages 81, 85, 87 and 95 of the record of appeal. Instructively, because of the demise of some of the accusedpersons being tried along with the appellant, the information upon which they were all arraigned for prosecution, had to be amended two times in order to weed off the deceased accused persons. Thisresulted to the 2nd Amended Information which was filed against the remaining accused persons/defendants on 14th March, 2016, as shown at pages 125 to 129 of the record of appeal.?Instructively too, is a fact that from the available record as reflected in the record of appeal at pages 221 to 245, the learned trial judge came in to handle this matter only on 4th May, 2015. Thedefendants were not in Court on that day. And on the 15th June, 2015 when the matter next came up, it was reported that the 5th, 6th and 9th defendants on the 1st Amended Information had diedwhilst the 11th defendant was absent, hence the case was adjourned to 30th September, 2015. There is no record of what happened on 30th September, 2015. However, the record of appeal at page224 shows that the Court sat again on 19th January, 2016 but since the parties were absent from Court, the case was then adjourned to 10th March, 2016, which was the day that the pleas of thedefendants were taken in respect of the 1st Amended Information. On the 10th May, 2016, the record shows that there was a report that the 7th defendant was dead. Nevertheless, on the said 10thMay, 2016, the pleas of the defendants were taken in respect of the 2nd Amended Information. On the same 10th May, 2016, the defendants' counsel moved his application filed on the same day for thecharges against the defendants to be quashed. The ruling on it was adjourned to 21st July, 2016. All the defendants were re-admitted to bail on the same 10th May, 2016.The Court did not sit on 21st July, 2016. However, from the record at pages 232 - 234, it is evident that the ruling earlier scheduled for delivery on 21st July, 2016 was not delivered. It is evident that onthe 6th February, 2017, the learned counsel to the parties, re-adopted their written addresses in support of the motion on notice filed on 9th March, 2016, to the effect that the charges against thedefendants, be quashed or dismissed and thereupon the ruling was eventually delivered by the learned trial judge on same 6th Feb., 2017.My Lords, a very salient factor which cannot be over looked or underrated which contributed to the delay in the prosecution of this matter is that of the long period of almost seven years of the non-sitting of the Court from 11th July, 2006 till 30th May, 2013 as deposed to at paragraph 36 of the respondent's counter affidavit, to the effect that there was virtually only one judge in Aguata JudicialDivision sitting in court 1 thereof. Furthermore, is the notorious fact of the Junior Staff Union of Nigeria in the Judiciary (JUSUN) strike action in Anambra State which lasted from 15th September, 2015 to15th January, 2016 - a period of four months, that the Court below did not sit.Flowing from the above chronicled facts, it is as clear as crystals, that the delay in the prosecution of the appellant, is not only at the instance of the respondent, but also at the instance of the appellant.Therefore, he cannot heap all the blame for the delay in his trial on the respondent and expect to take benefit from the allegation, in which, he too, has clear complicity. In Alabi v. Doherty (2005) LPELR- 6145 (ca), where there was a long delay in the determination of the case, and both parties therein and the Court itself had complicity in events which led to the delay, this Court had this to say:"An examination of the record of appeal readily reveals that the decision of the lower Court had evolved after a prolonged delay. It is scandalous to say the least that such a matter had taken almosttwelve years to be determined. This is a justice service delivery, at the Court of trial, in a society where the average life expectancy has been put at fifty years. Neither party to the litigation nor theCourt that resolved the conflict between these parties had come through clean in the disgraceful shortcoming. The defendant and by extension the appellant/party interested, was as if not more guiltythan either the respondents or the Court as to the delay the matter had suffered before it was determined. Where a matter had not been determined within a reasonable time as required by Section 36of the Constitution, and the delay is equally attributable to the commission or omission of the party complaining, public policy would disentitle such a complaint from succeeding in his complaints. It doesnot truly lie in the mouth of such a culprit or any person who draws title through him to say that a delay perpetrated by him or in conjunction with other litigants or even with the complicity of the Courtshould form the basis of overturning a decision arrived at inspite of any delay. It would be most inequitable given the peculiar circumstances of the instant case to allow appellants to reap from atardiness that had resulted predominantly from their own deliberate lapses. See Kaiyaoja v. Egunla (1974) 12 SC 55; Ajibade v. Pedro (1992) 5 NWLR (pt.214) 257." - Per M. D. Muhammad, J. C. A. (asthen was) at pages 22 - 23. I am afraid, I cannot say anything any less in agreeing with the opinion of his Lordship, Muhammad, J.C.A (as he then was) in Alabi v. Doherty; in my opinion on the instantmatter. Therefore, I am of the considered and firm opinion that since the appellant also had complicity in the long delay in his prosecution at the Court below, he cannot equitably take benefit of hiscounsel's tardiness and also the non-attendance in Court by some of his co-defendants, to insist that because of the long delay in his trial, the charges against him must be quashed or dismissed. It is atruism that he who comes to equity must come with clean hands. Nevertheless, I do not think that the facts and circumstances in Mohammed v. The State (2015) 10 NWLR (pt. 1468) 496 at 511 - 512,are apposite to the instant matter."Per YAKUBU, J.C.A. (Pp. 6-22, Paras. E-D) - read in context

2. CRIMINAL LAW AND PROCEDURE - INFORMATION: Position of the law where an application is brought to quash an information"It is settled law that in application placed before a Court in a criminal trial as in the instant case, there are certain factors which the applicant must allege, indicating some deficiencies in the charges(s)against him; may necessitate the Court quashing such charge(s). In Chief Lere Adebayo v. The State (2012) LPELR - 9464 (CA) at page 21 thereof, his Lordship, Kekere-Ekun, JCA (as he then was) statedthat the "essence of an application to quash charges in an information, is that the information is inherently defective for one reason or the other or that the proofs of evidence do not establish a primafacie case against the appellant sufficient to warrant his being called upon to provide some explanation." Further see: David Effiom v. The State (2014) LPELR - 22646 (CA); Agboola v. Federal Republic ofNigeria (2014) LPELR - 22932 (CA); Mrs. Gbonjubola Balogun v. Federal Republic of Nigeria (2015) LPELR - 24744 (CA) and Abai v. The State (2016) LPELR - 40127 (CA).In the instant matter, none of the grounds upon which the application to quash the information containing the charges against the appellant, was anchored on any defect in any of the charges on theinformation. Therefore, the dismissal or quashing of the information could not have been considered on that ground."Per YAKUBU, J.C.A. (Pp. 22-23, Paras. E-F) - read in context

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3. JUDGMENT AND ORDER - JUDGMENT OF COURT: Proper tag to be given to determinations of the Supreme Court and the Court of Appeal"I shall render my opinion in conformity with provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows"2942) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice, who delivers awritten opinion:Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by anyother Justice whether or not he was present at the hearing".Determination of disputes or controversies by Justices of the Court of Appeal or the Supreme Court as the case may be are either an "opinion" or a "decision" as provided in Section 294(2) of theConstitution. Though the word "opinion" is not defined, a "decision" is defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered in the following manner:'318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires:-"Decision" means, in the relation to a Court. any determination of that Court and includes judgment decree, order, conviction, sentence or recommendation."Besides, the right of appeal in Criminal or Civil Proceedings has to be against decisions of the Courts that determined the dispute or controversy under Section 294(1) of the Constitution. The provisionprovides as follows:"294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to thecause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof."Section 294(1) of the Constitution comes into play in "Every Court" that is "...established under this Constitution," etc. The Court of Appeal exercises original jurisdiction under Section 239(1)-(2) of theConstitution as follows"(1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have original jurisdiction to hear and determine any question as towhether:.a. any person had been validly elected to the office of President or Vice-President under this Constitution, orb. the term of office of the President or Vice President has ceased, orc. the office of President or Vice President has become vacant.(2) In the hearing and determination of an election petition under Paragraph (a) of Subsection (1) of this Section, the Court of Appeal shall be duly constituted if it consists of at least three Justice of theCourt of Appeal."But the appellate jurisdiction of the Court of Appeal is under Sections 240 to 247 of the Constitution of the Federal Republic of Nigeria 1999 as altered to wit;"240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal HighCourt, the National Industrial Court, the High Court of the Federation Capital Territory Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory Abuja, Sharia Court of Appeal ofState. Customary Court of Appeal of a State and from decisions of a Court Martial or other tribunals as may be prescribed by an Act of the National Assembly.241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-a. final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;b. where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings:C. decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;d. decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or Is likely to be contravened in relation to anyperson;e. decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;f. decisions made or given by the Federal High Court or a High Court:i) where the liberty of a person or the custody of an infant is concerned,ii) where an injunction or the appointment of a receiver is granted or refused,iii) in the case of a decision determine the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, andv) in such other cases as may be prescribed by any law in force in Nigeria.(2) Nothing in this Section shall confer any right of appeal:-a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action,b) from an order absolute for the dissolution of nullity or marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has notappealed from that decree nisi, andc) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the panics or as to costs only.242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall Iie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal HighCourt or that High Court or the Court of Appeal.(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appealhas been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal Is of the opinion that the interests of justicedo not require an oral hearing of the application.243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other personhaving an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon theAttorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may beprescribed;b) exercised accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court of Appeal.(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates tomatters upon which the National Industrial Court has jurisdiction.(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.(4) Without prejudice to the provisions of Section 254C (5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall befinal.244(1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamicpersonal law which the Sharia Court of Appeal is competent to decide.(2) Any right of appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal conferred by this Section shall be:-a. exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or the Court of Appeal, at the instance of any other person having an interest in the matter, andb. exercised in accordance with an Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.245(1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question ofCustomary law and such other matters as may be proscribed by an Act of the National Assembly.(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this Section shall be:-a. exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the Instance of any other person having an interest In the matter;b. exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.246(1) An appeal to the Court of Appeal shall lie, as of right from:-a. decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;b. decisions of the National and State Houses of Assembly Election Tribunals: andc. decisions of the Governorship Election Tribunals on any question as to whether:-i. any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution,ii. any person has been validly elected to the office of a Governor or Deputy Governor, oriii. the term of office of any person has ceased or the seat of any such person has become vacant.(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or tribunal established by the National Assembly.(3) The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.247(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of theCourt of Appeal and in the case of appeals from:a. a Sharia Court of Appeal, If it consists of not less than three Justices of the Court of Appeal learned In Islamic personal law; andb. a Customary Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Customary law."The Court of Appeal hears evidence and relies on addresses from the parties or their learned counsel in order to determine the dispute or controversy when exercising original jurisdiction over personsand causes or matters expressly mentioned or provided in the Constitution. The Justice have to render an opinion or a decision in compliance with the provisions of Section 294(1) of the Constitution. Butrarely does the Court of Appeal hear evidence and relies on addresses of counsel or the parties to determine a dispute or a controversy. I have read the proceedings, the argument of learned Counseland the decisions cited in the briefs. I have also considered the reasoning of my learned colleague on the bench who has rendered a decision to dismiss this appeal. I shall refer to the provisions ofSection 294(3) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows:"(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members."I adopt the opinion of my learned colleague that there is no merit in this appeal."Per TUR, J.C.A. (Pp. 25-36, Paras. B-C) - read in context

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TOM SHAIBU YAKUBU, J.C.A.: This appeal is sequel to

the ruling of the Anambra State High Court of Justice,

holden at Aguata-Ekwulobia, delivered on 6th February,

2017.

The appellant was arraigned at the Court below on 30th

June, 1997 vide the Charge No. AG/26C/1997 along with 16

others, on a six count charge of conspiracy, malicious

damage, rioting, stealing, forceful entry and riotous

demolition of property. The appellant pleaded not guilty to

the said charges, upon his arraignment on 30th June, 1997.

The trial of the appellant commenced on 8th November,

1999 and the respondent fielded her first witness (PW1).

Thereafter, for one reason or the other, the trial became

stalled. The proceedings were then before Ezeani, J., who

admitted the appellant as his co-defendants, to bail.

On 9th March, 2016, the appellant filed a motion on notice

wherein, he sought an order to the effect that the charges

preferred against him, be quashed/dismissed, which would

lead to his discharge from the said charges against him.

There was a written address filed in support thereof. The

respondent resisted the application and filed a counter-

1

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affidavit against it with a written address by the

respondent’s counsel. Thereafter, the appellant filed a

Further Affidavit and a Reply on Points of Law.

The learned trial judge, Mbonu-Nwenyi, J., in his ruling

delivered on 6th February, 2017, dismissed the appellant’s

application, as lacking in merits.

The appellant, not unnaturally, was distraught with the

ruling aforementioned, hence he headed to this Court,

armed with a notice of appeal, which was filed on 20th

February, 2017. An amended notice of appeal was filed by

appellant on 18th April, 2017.

In order to activate the prosecution of the appeal, the

appellant’s brief of argument, was filed on 18th April, 2017.

In opposition, to the appeal, the respondent’s brief of

argument, was filed on 21st November, 2017.

Chima Okereke, who settled the appellant’s brief, identified

five issues therein, for the determination of the appeal, to

wit:

i. Whether the failure and/or refusal of the lower

Court to consider the totality of pleadings before it

especially the Appellant’s Further Affidavit and Reply

on Points of Law filed on 13th May 2016 in support of

his

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application to quash and/or dismiss the charges does

not constitute a gross breach of the Appellant’s right

to fair hearing. (Distilled from Grounds 2 & 4 of the

Amended Notice of Appeal).

ii. Whether the lower Court was right when it failed

and/or refused to be guided by its record and held

that the delay in hearing the charges for over

eighteen (18) years was due to the absence of the

Appellant and his counsel. (Distilled from Ground 6 of

the Amended Notice of Appeal).

iii. Whether the lower Court was right when it held

that the fundamental right of the Appellant to fair

hearing within a reasonable time as guaranteed by

Section 36(4) of the Constitution of the FRN 1999 (as

amended) has not been breached by the delay in

hearing the charge. (Distilled from Grounds 3 & 5 of

the Amended Notice of Appeal).

iv. Whether the delay in hearing the charge for over

eighteen years does not constitute an abuse of Court

process. (Distilled from Ground 7 of the Amended

Notice of Appeal).

v. Whether the learned trial judge rightly dismissed

the Appellant’s application to quash and/or dismiss

the charge. (Distilled from Ground 1 of the Amended

Notice of Appeal).

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In the respondent’s brief of argument, settled by Dr. Edwin

S. C. Obiorah, he nominated a sole issue therein, for the

determination of the appeal, namely:

Whether the learned trial Judge was right in

dismissing the Appellant’s motion to quash the

Information in Charge No. AG/26C/1997.

Having perused the record of appeal, the ruling of the

learned trial judge and the grounds of appeal against it, vis-

a-vis the issues nominated by learned counsel for the

parties, I think that appellant’s issues iii and v will suffice

to determine this appeal. That is:

Whether the lower Court, was right when it held that

the fundamental right of the Appellant to fair hearing

within a reasonable time as guaranteed by Section

36(4) of the Constitution of the FRN 1999 (as

amended) has not been breached by the delay in

hearing the charge.

Whether the learned trial judge rightly dismissed the

Appellant’s application to quash and/or dismiss the

charges against him.

I shall consider and determine the two issues together.

A resumé of the appellant’s contentions on the two issues

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above mentioned, are that by virtue of Section 36(4) of the

1999 Constitution of the Federal Republic of Nigeria (as

amended), the appellant was expected to have been tried

with a reasonable time. Learned appellant’s counsel

contended that the delay in the trial of the appellant, for

over eighteen (18) years is unconstitutional and against

public interest. And that the said delay in the trial of the

appellant, cannot be said to be a trial within a reasonable

time, as constitutionally guaranteed to the appellant. He

insisted that an undue delay in the trial of a criminal

charge as in the instant case, is tantamount to a breach of

the appellant’s constitutional right to fair hearing.

Therefore, according to learned appellant’s counsel, the

learned trial judge ought to have quashed and/or dismissed

the charges against the appellant.

On the part of the respondent, it was submitted that under

Section 36(4) of the 1999 Constitution (as amended), where

an accused person is not tried within three (3) months, he

should be released on bail. Learned respondent’s counsel

furthermore, submitted that in the circumstances of the

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instant matter, where according to him, the delay in the

trial of the appellant, was caused by him, the requirement

that he should be tried within a reasonable time, will not

avail him. He insisted that if the appellant perceived and

believes that his fundamental rights have been infringed

and breached, he ought to have approached the Court with

an application for the enforcement of his fundamental

rights. Learned respondent’s counsel referred to some

paragraphs of the respondent’s counter-affidavit against

the appellant’s application, to the effect that the appellant

was absent from Court on several occasions which led to

the delay in the trial of the case. Therefore, he submitted

that the appellant cannot be allowed to take benefit of his

own default. Learned respondent’s counsel insisted that the

learned trial judge was right in refusing the appellant’s

application, to quash the charges against him.

Resolution:

Unarguably, it is generally expected that an accused person

who is facing/undergoing a criminal prosecution, is tried

timeously so that he knows his fate in respect of the

charge(s) preferred against him. For, as long as the

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charge(s) are hanging on his head, it cannot be said that he

is totally free in the exercise of his fundamental rights to

freedom of movement. Such an accused person, naturally is

subjected to an emotional stress and a resonating feeling of

uncertainties regarding his fate and for as long as the trial

lingers on, the charges against the accused person, hangs

as the sword of Damocles over his head. That is why it is

axiomatic that a speedy trial is preferable at all times, to a

long and delayed trial, for, as it is said, justice delayed is

justice denied. And that is where the fundamental rights of

the accused person comes into play and focus.

Therefore, in the conduct of both civil and criminal

proceedings in our Courts, the hallowed principles of

natural justice and fundamental rights donated to

individuals in our Constitution must be strictly observed.

The nature and importance of fundamental rights was re-

echoed and reiterated by the apex Court in Ransome-Kuti

v. Attorney General of the Federation & Ors (1985)

LPELR – 2940 (SC) at pp. 33 – 34, inter alia:

“What is the nature of fundamental right? It is a

right

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which stands above the ordinary laws of the land and

which in fact is antecedent to the political society

itself. It is a primary condition to a civilised existence

and what has been done by our constitution, since

independence, starting with the Independence

Constitution, that is, the Nigeria (Constitution) Order

in council 1960 up to the present Constitution, that

is, the Constitution of the Federal Republic of

Nigeria, 1979 (the latter does not in fact apply to this

case: it is the 1963 Constitution that applies) is to

have these rights enshrined in the Constitution so

that the rights could be “immutable” to the extent of

the “non-immutability” of the Constitution itself. It is

not in all countries that the Fundamental Rights

guaranteed to the citizen are written into the

Constitution. For instance, in England, where there is

no written constitution, it stands to reason that a

written code of fundamental rights could not be

expected. But notwithstanding, there are fundamental

rights. The guarantee against inhuman treatment, as

specified in Section 19 of the 1963 Constitution,

would, for instance, appear to be the

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same as some of the fundamental rights guaranteed

in England, contained in the Magna Carter 1215 –

Articles 19 and 40 which provide – “no freeman may

be taken or imprisoned, or disused of his freehold or

liabilities in free customs or be outlawed or exiled or

in any way molested nor judged or condemned except

by lawful judgment or in accordance with the law of

the land and the crown or its ministers may not

imprison or coerce the subject in an arbitrary

manner”. In the United States, the Eighth

Amendment to the United States Constitution

provides – “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishment inflicted.” -per Eso, J. S. C.

Therefore, the entrenchment of fundamental rights and the

mode of enforcing its breach in the Nigerian Constitution

over the years since our independence, undoubtedly

underscores its importance and the need to zealously

protect the sanctity and inviolability of human life.

Accordingly, the Courts do not usually shirk their judicial

responsibility in ensuring that the human rights of the

individual is not compromised and on no account should

such rights be swept under the

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carpet or taken away by any person or government under

any guise, without justification.

It is gratifying that it is in recognition of the importance of

the quick and timeous dispensation of criminal justice that

the framers of the 1999 Constitution of the Federal

Republic of Nigeria, (as amended), had promulgated in

Section 36(4) of the same to the effect, inter alia, that:

“Whenever any person is charged with a criminal

offence, he shall, unless the charge is withdrawn be

entitled to a fair hearing in public within a reasonable

time by a Court or tribunal.”

Now, the word “reasonable” as defined by the learned

authors of Black’s Law Dictionary, Eight Edition, at page

1293, connotes what is:

“1. Fair, proper, or mode under the circumstances.”

The phrase “reasonable time” appears to be relative vis-a-

vis the facts and circumstances of each case. For, the

Supreme Court, in determining the factors that delay the

conclusion of a case within a reasonable time had this to

say, in Ezeala Nnajiofor & Ors v. Linus Ukonu & Ors

(1985) LPELR – 2056 (SC) at pages 17 – 18, that:

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“It is not therefore possible to lay down a fixed rule as

to what “reasonable time” is in the trial of every case.

Some cases are by their nature short or lengthy by

reason of the number of witnesses to be called or the

length of the testimonies of the witnesses. Others

involve witnesses who do not live in the country or

within the Court’s jurisdiction. Documents to be put

in evidence may be in the custody of a third party and

may not as such be readily available for production at

the trial. The health of a vital witness or even the trial

judge may fail. All these and many more are factors

which can reasonably delay the conclusion of a trial.

Surely , such delay cannot be taken to be

unreasonable. I am strengthened in this view by the

observation of my learned brother Eso, J.S.C., in the

lead judgment in Ariori & Ors v. Elemo & Ors. where

he said at p. 58: “And so the right to speedy trial is

necessar i ly re lat ive . I t depends on each

circumstance.” – Per Uwais, J. S. C. (as he then was).

And more recently the Supreme Court, in Alhaji Sani

Abubakar Danladi v. Barr. Nasiru Audu Dangiri & Ors

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(2014) LPELR – 24020 (SC) at page 44, reiterated that:

“In my view, the phrase “within reasonable time”

implies that the time for the determination of the

matter should not be too short or too long, depending

on the nature and facts of the case.” – Per Ngwuta

J.S.C.

Following the decisions of the apex Court in Nnajiofor v.

Ukonu (supra) and Danladi v. Dangiri (supra), in order

to determine the reasonableness or otherwise of the length

of time involved in the trial of the appellant herein, it is

imperative to who consider the facts and circumstances of

the instant matter.

The appellant’s application at the Court below, which led to

this appeal was made pursuant to Sections 6(6) B and 36(1)

and (4) of the Constitution of the Federal Republic of

Nigeria, 1999 (as amended) and under the inherent

jurisdiction of the Honourable Court, and prayed for the

following reliefs, namely:

1. AN ORDER of this Honourable Court quashing and/or

dismissing all the charges brought against the Accused

Persons/Applicants under Charge No. AG/26C/1997.

2. AN ORDER of this Honourable Court quashing all the

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charges preferred against the Accused Persons/Applicants

in Charge No. AG/26C/1997 and discharging them of the

said charges before this Court.

3. AND FOR SUCH FURTHER or other Orders as the

Honourable Court may deem f it to make in the

circumstances.

TAKE FURTHER NOTICE THAT the grounds upon which

this application is brought in addition to those contained in

the accompanying Affidavit are as stated hereunder.

1. The Accused Person/Applicants were arraigned before

this Court on 30th June, 1997 under the instant Charge No.

AG/26C/1997 wherein they were charged with various

offences.

2. The Accused Persons/Applicants under the said Charge

No. AG/26C/1997 were arraigned on six (6) counts of the

offences of malicious damage, rioting, stealing and riotous

demolition of property in 1997 and have been standing trial

for the alleged offences since the said 1997.

3. Since the arraignment of the Applicants on 30th June

1997, trial has not in fact commenced in the matter as the

trial has always suffered unnecessary adjournments and

incessant transfer of the Judges handling the matter.

4. It is a constitutional requirement as enshrined in

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Section 36 of the 1999 Constitution (as amended) that a

person accused of a criminal offence must be tried within

reasonable time.

5. More than eighteen (18) years has lapsed since the

Accused Persons/Applicants were charged with the said

offences and trial of the same has not commenced.

6. The Accused Person/Applicants have all spent more than

double of seven (7) years being the maximum sentence any

of them would have spent in prison if convicted of the

offences, waiting to be tried for the alleged offences.

7. The intendment of Section 36 of the 1999 Constitution

(as amended) is to unconditionally ensure that an Accused

Person who is arraigned for an alleged commission of an

offence is tried speedily and fairly.

8. The Accused Persons/Applicants are constitutionally

entitled to fair hearing and a fair trial within a reasonable

time in accordance with the Constitution.

9. The failure to conduct the trial of the Accused Persons,

for the past 18 years amount to oppression injustice and/or

fairness inter alia in that:

(a) The delay has the effect of prejudicing the Accused

Persons in the preparation or conduct of their defence;

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(b) The Accused Persons have been deprived of the

protection offered by Section 36(5) of the Constitution

which guarantees a fair hearing within a responsible time;

(c) The Accused Persons cannot in the circumstances

receive a fair trial;

10. It is contrary to the public interest in the integrity of

the Criminal Justice System that any trial should now take

place after 18 years.

11. The continued prosecution of this matter or the

continuation of any proceedings with regard thereto in the

premise constitutes an abuse of the Court’s process.

12. The prosecution is not interested in the trial of the

matter as it only preferred the charges so as to harass,

oppress, persecute and intimidate the Applicants and this

constitutes an abuse of process of Court and should be

dismissed.

13. The failure to conduct the trial of the Accused

Persons/Applicants within a reasonable time as required by

law is a fundamental breach of their constitutional right to

fair hearing thereby renders the continued trial of the

charges a nullity.”

There is an affidavit of 16 paragraphs filed in support of the

application and also a written address by

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applicants’ counsel in support of the application. The

respondent filed a Counter-Affidavit of 55 paragraphs in

opposition to the application. Several documentary exhibits

were attached to it and also a written address by

respondent’s counsel was filed contemporaneously with the

counter-affidavit. Thereafter, the applicant/appellant filed a

Further Affidavit of 49 paragraphs, and also a written reply

by the applicant’s counsel.

The learned trial judge in his decision, came to the

conclusion that the applicant/applicant’s right to fair

hearing was not breached by the long delay of his trial,

because according to the learned trial judge, the appellant

contributed to the delay of the prosecution of the case

against him.

I have painstakingly perused the affidavit evidence and the

documentary exhibits filed in support of the application by

the appellant and those filed in opposition to it by the

respondent.

It is very clear to me that both parties contributed to the

delay in the prosecution of the appellant. For example,

where some of the appellant’s co-accused persons were

absent from Court for one reason or the other,

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the trial certainly could not have proceeded in their

absence. And this was even compounded by the absence

from Court by appellant’s counsel on 20th September,

1999; 9th February, 2001; 13th July, 2004 and 17th March,

2005 etc, as indicated at pages 69, 75, 84 and 88 of the

record of appeal. For the respondent, the trial suffered

adjournments at her instance on 20th January, 2003; 8th

November, 2004; 17th March, 2005 and 6th November,

2006; etc as shown at pages 81, 85, 87 and 95 of the record

of appeal. Instructively, because of the demise of some of

the accused persons being tried along with the appellant,

the information upon which they were all arraigned for

prosecution, had to be amended two times in order to weed

off the deceased accused persons. This resulted to the 2nd

Amended Information which was filed against the

remaining accused persons/defendants on 14th March,

2016, as shown at pages 125 to 129 of the record of appeal.

Instructively too, is a fact that from the available record as

reflected in the record of appeal at pages 221 to 245, the

learned trial judge came in to handle this matter only on

4th May, 2015.

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The defendants were not in Court on that day. And on the

15th June, 2015 when the matter next came up, it was

reported that the 5th, 6th and 9th defendants on the 1st

Amended Information had died whilst the 11th defendant

was absent, hence the case was adjourned to 30th

September, 2015. There is no record of what happened on

30th September, 2015. However, the record of appeal at

page 224 shows that the Court sat again on 19th January,

2016 but since the parties were absent from Court, the

case was then adjourned to 10th March, 2016, which was

the day that the pleas of the defendants were taken in

respect of the 1st Amended Information. On the 10th May,

2016, the record shows that there was a report that the 7th

defendant was dead. Nevertheless, on the said 10th May,

2016, the pleas of the defendants were taken in respect of

the 2nd Amended Information. On the same 10th May,

2016, the defendants’ counsel moved his application filed

on the same day for the charges against the defendants to

be quashed. The ruling on it was adjourned to 21st July,

2016. All the defendants were re-admitted to bail on the

same 10th May, 2016.

The Court did not sit on 21st July, 2016. However, from the

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record at pages 232 – 234, it is evident that the ruling

earlier scheduled for delivery on 21st July, 2016 was not

delivered. It is evident that on the 6th February, 2017, the

learned counsel to the parties, re-adopted their written

addresses in support of the motion on notice filed on 9th

March, 2016, to the effect that the charges against the

defendants, be quashed or dismissed and thereupon the

ruling was eventually delivered by the learned trial judge

on same 6th Feb., 2017.

My Lords, a very salient factor which cannot be over looked

or underrated which contributed to the delay in the

prosecution of this matter is that of the long period of

almost seven years of the non-sitting of the Court from 11th

July, 2006 till 30th May, 2013 as deposed to at paragraph

36 of the respondent’s counter affidavit, to the effect that

there was virtually only one judge in Aguata Judicial

Division sitting in court 1 thereof. Furthermore, is the

notorious fact of the Junior Staff Union of Nigeria in the

Judiciary (JUSUN) strike action in Anambra State which

lasted from 15th September, 2015 to 15th January, 2016 –

a period of four months, that

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the Court below did not sit.

Flowing from the above chronicled facts, it is as clear as

crystals, that the delay in the prosecution of the appellant,

is not only at the instance of the respondent, but also at the

instance of the appellant. Therefore, he cannot heap all the

blame for the delay in his trial on the respondent and

expect to take benefit from the allegation, in which, he too,

has clear complicity. In Alabi v. Doherty (2005) LPELR –

6145 (ca), where there was a long delay in the

determination of the case, and both parties therein and the

Court itself had complicity in events which led to the delay,

this Court had this to say:

“An examination of the record of appeal readily

reveals that the decision of the lower Court had

evolved after a prolonged delay. It is scandalous to

say the least that such a matter had taken almost

twelve years to be determined. This is a justice

service delivery, at the Court of trial, in a society

where the average life expectancy has been put at

fifty years. Neither party to the litigation nor the

Court that resolved the conflict between these parties

had come

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through clean in the disgraceful shortcoming. The

defendant and by extension the appellant/party

interested, was as if not more guilty than either the

respondents or the Court as to the delay the matter

had suffered before it was determined. Where a

matter had not been determined within a reasonable

time as required by Section 36 of the Constitution,

and the delay is equally attributable to the

commission or omission of the party complaining,

public policy would disentitle such a complaint from

succeeding in his complaints. It does not truly lie in

the mouth of such a culprit or any person who draws

title through him to say that a delay perpetrated by

him or in conjunction with other litigants or even

with the complicity of the Court should form the basis

of overturning a decision arrived at inspite of any

delay. It would be most inequitable given the peculiar

circumstances of the instant case to allow appellants

to reap from a tardiness that had resulted

predominantly from their own deliberate lapses. See

Kaiyaoja v. Egunla (1974) 12 SC 55; Ajibade v. Pedro

(1992) 5 NWLR (pt.241) 257.” – Per M. D. Muhammad,

J. C. A. (as then was) at pages 22 – 23.

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I am afraid, I cannot say anything any less in agreeing with

the opinion of his Lordship, Muhammad, J.C.A (as he then

was) in Alabi v. Doherty; in my opinion on the instant

matter. Therefore, I am of the considered and firm opinion

that since the appellant also had complicity in the long

delay in his prosecution at the Court below, he cannot

equitably take benefit of his counsel’s tardiness and also

the non-attendance in Court by some of his co-defendants,

to insist that because of the long delay in his trial, the

charges against him must be quashed or dismissed. It is a

truism that he who comes to equity must come with clean

hands. Nevertheless, I do not think that the facts and

circumstances in Mohammed v. The State (2015) 10

NWLR (pt. 1468) 496 at 511 – 512, are apposite to the

instant matter.

In any event, the above is not the end of this matter. It is

settled law that in application placed before a Court in a

criminal trial as in the instant case, there are certain

factors which the applicant must allege, indicating some

deficiencies in the charges(s) against him; may necessitate

the Court quashing such charge(s).

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In Chief Lere Adebayo v. The State (2012) LPELR –

9464 (CA) at page 21 thereof, his Lordship, Kekere-Ekun,

JCA (as he then was) stated that the “essence of an

application to quash charges in an information, is that the

information is inherently defective for one reason or the

other or that the proofs of evidence do not establish a

prima facie case against the appellant sufficient to warrant

his being called upon to provide some explanation.”

Further see: David Effiom v. The State (2014) LPELR –

22646 (CA); Agboola v. Federal Republic of Nigeria

(2014) LPELR – 22932 (CA); Mrs. Gbonjubola Balogun

v. Federal Republic of Nigeria (2015) LPELR – 24744

(CA) and Abai v. The State (2016) LPELR – 40127

(CA).

In the instant matter, none of the grounds upon which the

application to quash the information containing the charges

against the appellant, was anchored on any defect in any of

the charges on the information. Therefore, the dismissal or

quashing of the information could not have been

considered on that ground. In the end, on all fronts, I am of

the considered and firm opinion that the two issues

discussed and analysed in this appeal must be resolved

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against the appellant. They are each resolved in favour of

the respondent against the appellant.

It is hoped that the learned trial judge, will keep faith with

his decision at page 245 of the record of appeal, that:

“The Court is prepared to adjourn the hearing of this

matter from day to day until is determined.”

That is how it should and must be.

Having resolved both issues in the appeal against the

appellant, I am satisfied that the appeal merits a dismissal.

It is accordingly dismissed.

The ruling of C. N. Mbonu-Nwenyi J., in re-charge No.

AG/26C/1997 delivered on 6th February, 2017 is hereby

affirmed.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have

read the judgement just delivered by my Learned brother

TOM SHAIBU YAKUBU JCA. I am in complete agreement

with his lordship’s reasoning and conclusion that this

appeal should be dismissed as lacking in merit. In the

circumstances, the ruling of the Hon. Justice C.N. Mbonu-

Nwenyi delivered in Charge No. AG/26c/1997 on 6/2/17 is

hereby affirmed.

Appeal Dismissed.

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JOSEPH TINE TUR, J.C.A.: I had the privilege of reading

an advance copy of the decision of my Lord. Tom Shaibu

Yakubu, JCA and I also affirm the decision of the learned

trial Judge. C.N. Mbonu-Nwanyi, J., which he rendered on

6th February. 2017 in addition to the observations I intend

to make in the appeal.

I shall render my opinion in conformity with provisions of

Section 294(2) of the Constitution of the Federal Republic

of Nigeria 1999 as altered which provides as follows

“2942) Each Justice of the Supreme Court or of the

Court of Appeal shall express and deliver his opinion

in writing, or may state in writing that he adopts the

opinion of any other Justice, who delivers a written

opinion:

Provided that it shall not be necessary for all the

Justices who heard a cause or matter to be present

when judgment is to be delivered and the opinion of a

Justice may be pronounced or read by any other

Justice whether or not he was present at the hearing”.

Determination of disputes or controversies by Justices of

the

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Court of Appeal or the Supreme Court as the case may be

are either an “opinion” or a “decision” as provided in

Section 294(2) of the Constitution. Though the word

“opinion” is not defined, a “decision” is defined in Section

318(1) of the Constitution of the Federal Republic of

Nigeria 1999 as altered in the following manner:

‘318(1) In this Constitution, unless it is otherwise

expressly provided or the context otherwise requires:-

“Decision” means, in the relation to a Court. any

determination of that Court and includes judgment

decree , o rder , conv i c t i on , s en tence o r

recommendation."

Besides, the right of appeal in Criminal or Civil Proceedings

has to be against decisions of the Courts that determined

the dispute or controversy under Section 294(1) of the

Constitution. The provision provides as follows:

“294(1) Every Court established under this

Constitution shall deliver its decision in writing not

later than ninety days after the conclusion of

evidence and final addresses and furnish all parties to

the cause or matter determined with duly

authenticated copies of the

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decision within seven days of the delivery thereof."

Section 294(1) of the Constitution comes into play in “Every

Court” that is “...established under this Constitution,” etc.

The Court of Appeal exercises original jurisdiction under

Section 239(1)-(2) of the Constitution as follows

“(1) Subject to the provisions of this Constitution, the

Court of Appeal shall, to the exclusion of any other

Court of law in Nigeria, have original jurisdiction to

hear and determine any question as to whether:.

a. any person had been validly elected to the office of

President or Vice-President under this Constitution,

or

b. the term of office of the President or Vice President

has ceased, or

c. the office of President or Vice President has

become vacant.

(2) In the hearing and determination of an election

petition under Paragraph (a) of Subsection (1) of this

Section, the Court of Appeal shall be duly constituted

if it consists of at least three Justice of the Court of

Appeal.”

But the appellate jurisdiction of the Court of Appeal is

under Sections 240 to 247 of the Constitution of the

Federal Republic of Nigeria 1999 as altered to wit;

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"240. Subject to the provisions of this Constitution,

the Court of Appeal shall have jurisdiction to the

exclusion of any other Court of law in Nigeria, to hear

and determine appeals from the Federal High Court,

the National Industrial Court, the High Court of the

Federation Capital Territory Abuja, High Court of a

State, Sharia Court of Appeal of the Federal Capital

Territory Abuja, Sharia Court of Appeal of State.

Customary Court of Appeal of a State and from

decisions of a Court Martial or other tribunals as may

be prescribed by an Act of the National Assembly.

241(1) An appeal shall lie from decisions of the

Federal High Court or a High Court to the Court of

Appeal as of right in the following cases:-

a. final decisions in any civil or criminal proceedings

before the Federal High Court or a High Court sitting

at first instance;

b. where the ground of appeal involves questions of

law alone, decision in any civil or criminal

proceedings:

C. decisions in any civil or criminal proceedings on

questions as to the interpretation or application of

this Constitution;

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d. decisions in any civil or criminal proceedings on

questions as to whether any of the provisions of

Chapter IV of this Constitution has been, is being or

Is likely to be contravened in relation to any person;

e. decisions in any criminal proceedings in which the

Federal High Court or a High Court has imposed a

sentence of death;

f. decisions made or given by the Federal High Court

or a High Court:

i) where the liberty of a person or the custody of an

infant is concerned,

ii) where an injunction or the appointment of a

receiver is granted or refused,

iii) in the case of a decision determine the case of a

creditor or the liability of a contributory or other

officer under any enactment relating to companies in

respect of misfeasance or otherwise,

iv) in the case of a decree nisi in a matrimonial cause

or a decision in an admiralty action determining

liability, and

v) in such other cases as may be prescribed by any

law in force in Nigeria.

(2) Nothing in this Section shall confer any right of

appeal:-

a) from a decision of the Federal High Court or any

High Court granting unconditional leave to defend an

action,

b) from an order absolute for the

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dissolution of nullity or marriage in favour of any

party who, having had time and opportunity to appeal

from the decree nisi on which the order was founded,

has not appealed from that decree nisi, and

c) without the leave of the Federal High Court or a

High Court or of the Court of Appeal, from a decision

of the Federal High Court or High Court made with

the consent of the panics or as to costs only.

242(1) Subject to the provisions of Section 241 of this

Constitution, an appeal shall Iie from decisions of the

Federal High Court or a High Court to the Court of

Appeal with the leave of the Federal High Court or

that High Court or the Court of Appeal.

(2) The Court of Appeal may dispose of any

application for leave to appeal from any decision of

the Federal High Court or a High Court in respect of

any civil or criminal proceedings in which an appeal

has been brought to the Federal High Court or a High

Court from any other Court after consideration of the

record of the proceedings, if the Court of Appeal is of

the opinion that the interests of justice do not require

an oral hearing of the application.

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243(1) Any right of appeal to the Court of Appeal

from the decisions of the Federal High Court or a

High Court conferred by this Constitution shall be:

a) exercisable in the case of civil proceedings at the

instance of a party thereto, or with the leave of the

Federal High Court or the High Court or the Court of

Appeal at the instance of any other person having an

interest in the matter, and in the case of criminal

proceedings at the instance of an accused person or,

subject to the provisions of this Constitution and any

powers conferred upon the Attorney-General of the

Federation or the Attorney-General of a State to take

over and continue or to discontinue such proceedings,

at the instance of such other authorities or persons as

may be prescribed;

b) exercised accordance with any Act of the National

Assembly and rules of Court for the time being in

force regulating the power, practice and procedure of

the Court of Appeal.

(2) An appeal shall lie from the decision of the

National Industrial Court as of right to the Court of

Appeal on questions of fundamental rights as

contained in Chapter IV of this Constitution as it

relates to matters upon which the National Industrial

Court has jurisdiction.

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(3) An appeal shall only lie from the decision of the

National Industrial Court to the Court of Appeal as

may be prescribed by an Act of the National

Assembly;

Provided that where an Act or Law prescribes that an

appeal shall lie from the decisions of the National

Industrial Court to the Court of Appeal, such appeal

shall be with the leave of the Court of Appeal.

(4) Without prejudice to the provisions of Section

254C (5) of this Act, the decision of the Court of

Appeal in respect of any appeal arising from any civil

jurisdiction of the National Industrial Court shall be

final.

244(1) An appeal shall lie from decisions of a Sharia

Court of Appeal to the Court of Appeal as of right in

any civil proceedings before the Sharia Court of

Appeal with respect to any question of Islamic

personal law which the Sharia Court of Appeal is

competent to decide.

(2) Any right of appeal to the Court of Appeal from

the decisions of a Sharia Court of Appeal conferred by

this Section shall be:-

a. exercisable at the instance of a party thereto or,

with the leave of the Sharia Court of Appeal or the

Court of

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Appeal, at the instance of any other person having an

interest in the matter, and

b. exercised in accordance with an Act of the National

Assembly and rules of Court for the time being in

force regulating the powers, practice and procedure

of the Court of Appeal.

245(1) An appeal shall lie from decisions of a

Customary Court of Appeal to the Court of Appeal as

of right in any civil proceedings before the Customary

Court of Appeal with respect to any question of

Customary law and such other matters as may be

proscribed by an Act of the National Assembly.

(2) Any right of appeal to the Court of Appeal from

the decisions of a Customary Court of Appeal

conferred by this Section shall be:-

a. exercisable at the instance of a party thereto or,

with the leave of the Customary Court of Appeal or of

the Court of Appeal, at the Instance of any other

person having an interest In the matter;

b. exercised in accordance with any Act of the

National Assembly and rules of Court for the time

being in force regulating the powers, practice and

procedure of the Court of Appeal.

246(1) An appeal to the Court of Appeal shall lie, as

of right from:-

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a. decisions of the Code of Conduct Tribunal

established in the Fifth Schedule to this Constitution;

b. decisions of the National and State Houses of

Assembly Election Tribunals: and

c. decisions of the Governorship Election Tribunals on

any question as to whether:-

i. any person has been validly elected as a member of

the National Assembly or of a House of Assembly of a

State under this Constitution,

ii. any person has been validly elected to the office of

a Governor or Deputy Governor, or

iii. the term of office of any person has ceased or the

seat of any such person has become vacant.

(2) The National Assembly may confer jurisdiction

upon the Court of Appeal to hear and determine

appeals from any decision of any other Court of law or

tribunal established by the National Assembly.

(3) The decisions of the Court of Appeal in respect of

appeals arising from the National and State Houses of

Assembly election petitions shall be final.

247(1) For the purpose of exercising any jurisdiction

conferred upon it by this Constitution or any other

law, the Court of Appeal shall be duly constituted if it

consists of not less than three Justices

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of the Court of Appeal and in the case of appeals

from:

a. a Sharia Court of Appeal, If it consists of not less

than three Justices of the Court of Appeal learned In

Islamic personal law; and

b. a Customary Court of Appeal, if it consists of not

less than three Justices of the Court of Appeal learned

in Customary law."

The Court of Appeal hears evidence and relies on addresses

from the parties or their learned counsel in order to

determine the dispute or controversy when exercising

original jurisdiction over persons and causes or matters

expressly mentioned or provided in the Constitution. The

Justice have to render an opinion or a decision in

compliance with the provisions of Section 294(1) of the

Constitution. But rarely does the Court of Appeal hear

evidence and relies on addresses of counsel or the parties

to determine a dispute or a controversy.

I have read the proceedings, the argument of learned

Counsel and the decisions cited in the briefs. I have also

considered the reasoning of my learned colleague on the

bench who has rendered a decision to dismiss this appeal. I

shall refer to the provisions of

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Section 294(3) of the Constitution of the Federal Republic

of Nigeria 1999 as altered which provides as follows:

“(3) A decision of a Court consisting of more than one

Judge shall be determined by the opinion of the

majority of its members."

I adopt the opinion of my learned colleague that there is no

merit in this appeal.

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Appearances:

Chima Okereke, Esq. For Appellant(s)

Miss E. I. Chukwuka For Respondent(s)

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