Clement Aviomoh V. Commissioner Of Police & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)

The decision giving birth to this appeal arose on the 24th day of May 2012, when the High Court of the Federal Capital Territory gave its judgment, upholding the Ruling of the Chief Magistrate Court, Wuse Abuja.

One Femi Otedola made a direct complaint to the Chief Magistrate Court Wuse, against the appellant herein, and one other. The Magistrate ordered an investigation. The Police investigated, and arraigned the appellant on a First Information Report (FIR) for joint acts of defamation of character, injurious falsehood, printing or engraving matter known to be defamatory and sale of printed or engraved substance containing defamatory matters contrary to sections 79, 392, 393, 394 and 395 of the Penal Code Cap 53, Laws of the Federation of Nigeria 1990.

The appellant filed a Preliminary Objection on the grounds that the Chief Magistrate Court had no jurisdiction to entertain the proceedings. The Chief Magistrate Court overruled the Objection, holding that it had jurisdiction to hear and determine the case.

The appellant was dissatisfied and appealed the Ruling to the High Court of the Federal Capital Territory Abuja. The High Court in its appellate jurisdiction, upheld the Ruling of the Chief Magistrate Court. That is why the appellant has further appealed to this Court.

In keeping with our Rules, the Appellant’s Counsel settled the brief of the appellant and it was filed on the 28/1/13, but deemed filed on the 18/2/14. In it, the following three Issues were identified.

1. Whether the court below was right when it held in effect that the First Information Report (FIR) upon which the appellant was arraigned before the trial court and the entire proceedings were not unconstitutional, illegal and null and void.
2. Whether the court below was right when it failed to hold that the First Information Report (FIR), in respect of which the appellant was arraigned, is constitutional, in that the alleged offences contained therein constitute a flagrant violation and subjugation by criminal process of the constitutionally guaranteed freedom of expression and opinion of the appellant.
3. Considering the appellant’s extensive submissions to the lower court on the jurisdictional issue of the competence of the prosecution in the matter, whether the lower court was right to have failed to hear and determine the said issues canvassed before it by the appellant.

The respondent adopted the issues identified by the appellant. I shall therefore utilise the issues raised by the appellant.

ISSUE No.3

Considering the Appellant’s extensive submissions to the lower court on the jurisdictional issue of the competence of the prosecution in the matter, whether the lower court was right to have failed to hear and determine the said issues canvassed before it by the appellant.

On this issue, the appellant submitted that the issue of jurisdiction was raised before the lower court, on grounds and arguments to be found at pages 162 – 166 of the Record of appeal. Counsel argued that the lower court failed to consider and determine the issues raised, because it had determined the issues in a Ruling it gave, similar to the appellant’s issues, in another appeal – page 198 of the Record.

Counsel argued that the wholesale adoption by the lower court, of its judgment in a separate appeal in SUNDAY ESAN V. COP, which was heard separately and was not consolidated with the appellant’s appeal, in the treatment of the issues raised, is in breach of the appellant’s right to fair hearing, and has occasioned miscarriage of justice. Counsel referred to BRAWAL SHIPPING V. ONWADIKE (2000) 6 SCNJ 508 at 522 to submit that a court has the duty to consider all issues raised before it and determine them.

He argued that had the lower court considered and determined the issues raised, it would have found that the Chief Magistrate Court had no jurisdiction to entertain the matter. He urged us to invoke section 16 (Sic) of the Court of Appeal Act to determine the issues.

The learned counsel for the respondent in his response on this issue, submitted that issue three formulated by the appellant at the lower court, was whether the Chief Magistrate had jurisdiction to entertain the case. He then referred to pages 197 – 198 of the record of appeal where the court below took up the issue. Counsel submitted that a court of law has a duty to consider all issues raised before it, and make pronouncements on same.

He argued that the lower court was right in determining Issue 3 the way it did, because the said issue 3 was the same with the lone issue raised by Sunday Esan in the sister appeal of Sunday Esan vs. COP. The lone issue was extensively considered in that appeal, and it was dismissed. The court below was therefore right, he argued, when it limited itself to the issue of jurisdiction of the trial Chief Magistrate raised in issue three before the court, and not delving into the issue of the competence of the prosecution as that was not included in issue three.