Ralph Uwazurike & Ors V. Attorney-general Of The Federation (2007)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Abuja Division (hereinafter called “the court below”) delivered on 7th July, 2006, sustaining the preliminary objection raised by the respondent challenging the competency of the appeal before it and consequently, striking out the said appeal. Dissatisfied with the said decision, the appellants have appealed to this court on seven (7) grounds of appeal. The parties have filed and exchanged their respective briefs. The appellants in the brief filed on their behalf have formulated three (3) issues for determination, namely:

“(a) Whether Order 4 rules 3(1)(2) and 4(1) of the Court of Appeal Rules are applicable to a notice of appeal that did not arise out of a conviction (Ground 1 & 3)

(b) Whether the striking out of the notice of appeal was proper in law (Ground 4)

(c) Whether the failure of the Court of Appeal to pronounce on other issues raised and argued in the appeal before it was proper (Ground 2).”

On its part, the respondent formulated two (2) issues for determination namely:

“3. 1.0 Whether the provisions Order 4 rules 4(1) (sic) of the Court of Appeal Rules was properly interpreted and applied by the Court of Appeal.

3.2.0 Whether the Court of Appeal was obliged to pronounce on other issue/grounds from the incompetent notice of appeal.”It is stated that issue No.1 relates to grounds 1,3 and 4 while issues 2 relates to ground 2.

I will pause here to state briefly the facts of this case leading to this appeal. The appellants were arraigned before the Federal High Court, Abuja on a four (4) count charge, to wit:

“1. Treason against the President of the Federal Republic of Nigeria, contrary to section 37(2) of the Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria 1990, and punishable under section 37 of the Criminal Code Act;

2. Felony contrary to and punishable under section 37(1) of the Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria, 1990.
3. Felony contrary to and punishable under section 64 of the Criminal Code Act, Chapter 77, Laws of Nigeria, 1990.
4. Offences contrary to section 62(2) and punishable under section 63 of the Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria, 1990”.

The appellants ex debito justitiae, filed respectively a different application for bail and in the alternative, an order of court transferring the applicants to prison custody from their present place of abode. The appellants also filed an application dated 9th January, 2006, praying for:

“(a) An order of court dismissing the charges against the accused/applicants before this Honourable Court in limine.

An order of court granting relief above restraining the respondent from prosecuting or purporting to prosecute the accused/applicants on the same facts as contained in the application for remand dated 1st November, 2005 and filed in this proceeding.”

After hearing arguments of the learned counsel for the parties, the learned trial Judge, Nyako, J., in a considered ruling dated 27th January, 2006, refused the applications except that he granted the prayer for the appellants being remanded in prison custody. His Lordship also directed the prosecution to file proof of evidence in court. It is noted by me that in their appeal to the court below the appellants through their learned counsel, filed a joint notice of appeal dated 31st January, 2006 – i.e. signed by Chief Ahamba (SAN) himself / personally. Although the appellants filed their brief of argument on all the grounds of appeal, the respondent filed a notice of preliminary objection challenging the competence of the said notice of appeal. Arguments in respect of the objection, were incorporated in the respondent’s brief. Arguments were heard by the court below on 21st June, 2006 and in a considered judgment on 7th July, 2006, it sustained the objection and struck out the appeal.