Achinike G. Wiluam-wobodo V. Chief (Mrs) Eunice A. Igwe & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

The Rivers State High Court [after now lower court] in a ruling delivered on 29/7/2004 in charge NO.PHC/8c/2004, struck out a complaint made by the Appellant on the grounds that it was statute barred and bad for duplicity. The Appellant as a private person, had on the 29/3/2004 instituted the complaint pursuant to sections 59 and 77[1][b] of the Criminal Procedure Act, Cap 77, LFN, 1990 against the Respondents for the offences of procurement and uttering false documents, forgery and conspiracy contrary to sections 473, 467 and 516 respectively of the Criminal Code Act. In reaction to the complaint, the Respondents caused a motion on notice to be filed on 17/5/2005 in which the jurisdiction of the lower court to entertain the complaint as well the competence of the complaint were challenged on separate grounds. Written addresses on the said motion were filed and adopted by learned counsel for the parties on the 16/7/2004. In addition, the lower court took address from the Director Public Prosecution,[DPP], Rivers State Ministry of Justice on its invitation, in the motion after which the aforementioned ruling was delivered. This appeal resulted from the dissatisfaction by the Appellant with the said ruling. The Notice of Appeal containing four [4] grounds was dated and filed on the 21/9/2004 and it is at pages 45 – 47 of the record of the appeal compiled by the Appellant and deemed on 20/6/2006 by the court in an order for departure from the Rules of the court.

As required by the Rules of court, briefs of argument were filed by learned counsel for the parties. The Appellants’ brief was filed along with an application for enlargement of time to file same on the 18/9/2006 and deemed filed on 17/10/2006 when that application was granted. The Respondents’ brief was filed on 2/3/2007 but deemed filed on the 19/6/2008 when time was enlarged for the filing. An Appellants’ Reply brief filed on 10/3/2008 was deemed filed on the 17/2/2009 when the appeal was heard by the court. The briefs were adopted by learned counsel for the parties at the hearing arid each of them urged us to uphold his position for the reasons set out in the briefs.

From the four [4] grounds of appeal, four [4] issues were formulated for the Appellant at paragraphs 3.1.1 to 3.1.4 on pages 1A- 2 of the Appellant’s brief. They are

3.1.1 whether the trial Judge having suo motu raised the issue of limitation period within which the complainant as a private person ”could institute the complaint she was right to have relied on the issue so raised to strike out the complaint without calling on the parties or their counsel to address her on the issue and whether that procedure occasioned any miscarriage’ of justice against the Appellant.

3.1.2 Whether the limitation period within which a private person should institute a complaint as provided for in Section 63 of the Criminal Procedure Act; Cap 77, Laws of the Federation of Nigeria (or Section 63 of the Criminal Procedure Law, Cap 38 Laws of Rivers State of Nigeria) includes extends to non summary conviction offence.

3.1.3 Whether the inclusion of more than one count or charge in the complaint; which is a docuent by which the Respondents were charged, without first obtaining the leave of court makes the complaint bad for duplicity as to warrant the trial court to strike out the complaint

3.1.4 Whether the amicus curiae invited by the court to address on specified and distinct issue can on his own violation exceed beyond the issue and to raise other fresh fundamental, extraneous, or substantial issuers) and if he so does whether the court has jurisdiction to hear, determine or rely upon such issuers)raise by the amicus curiae.

For the Respondent, issues 2 and 3 above were adopted and two more issues were formulated as No.1 and 4.

Though both learned counsel did not indicate in their respective briefs from which of the grounds each of the issues formulated were derived as required by diligent practice, the issues formulated by the learned counsel for the Appellant are preferable for being more precise and apt. I intend to determine the appeal on the said issues.

On issue No.1, after conceding that the lower court had the inherent discretionary jurisdiction to raise issues suo motu particularly on questions of law, learned counsel for the Appellant submitted that the discretion has to be exercised judicially and judiciously. Specifically, that where a court raises an issue suo motu, it ought under the law to call on the parties to address it on the issue before taking a decision thereon. He pointed out that the issue of the limitation period within which the Appellant should file a complaint was raised and decided by lower court suo motu in its ruling on the motion of the Respondents and none of the parties was afforded the opportunities to address the court before’ the ruling. It was contended by learned counsel that the lower court failed in its duty to maintain fairness and justice when it relied on the said issue raised suo -motu to strike out the complaint of the Appellant without affording him an opportunity of hearing on it. He said that though it is not in all cases that failure to hear parties will vitiate proceedings, where however the lower court based its decision mainly on the said issue which in this case has resulted in a miscarriage of justice, this court ought to allow the appeal and set aside the decision of the lower court. REGISTERED TRUSTEES OF AMORC V. AWONIYI [1994] 7 NWLR [355] 154 @ 177 was relied on for the submission. In addition, it was argued that the decision by the lower court that the Appellants’ complaint was statute barred in view of the provisions of section 63 of the Criminal Procedure Law [CPL] hereafter] has led to a miscarriage of justice and a misdirection, relying on NDIWE v. OKOCHA [1992] 7 NWLR [252] 129 @ 139, SAUDE v. ABDULLAHI [1989] 4 NWLR [116] 387 @ 408.

According to learned counsel, the issue raised by the lower court is fundamental, substantial and goes to the competence of the Appellants’ complaint and the parties should have been invited to address it before the lower court delivered the ruling, relying on it to strike out the complaint. The failure to do so, he submitted amounted to denial of the Appellant’s right to fair hearing because it had conferred an advantage to the Respondents to the detriment of the Appellant. Furthermore, that a failure of justice means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word, a judicial procedure at all. Reliance was placed on the cases of EFFFIOM v. STATE [1995] 1 NWLR [373] 507 @ 617, OKONKWO v. UDO [1997] 9 NWLR [507] 20 inter alia and we were urged to hold that on this ground, the appeal succeeds.

For the learned counsel for Respondents the issue of limitation period emanated from the argument of the parties and was not raised suo motu by the lower court. It was submitted by him that the Appellants’ counsel had in his written address relied heavily on sections 59 and 77 [b] [iv), in part 8 and 33 of the Criminal Procedure Act [CPA after now] to the effect that toe appellant can bring a complaint. He said that section 63 of the CPA which is the limitation period for the said complaint is part of the CPA which in interpretation, should be considered since the rule of interpretation is that all sections of the law will be read together. That it will be wrong for the Appellant to rely on some sections of the CPA in isolation and invite the court to close its eyes to section 63.

In the alternat ive, it was argued that the issue raised by the lower court suo motu was within the ambit of the law because it was on jurisdiction. That once its apparent that a court may not have jurisdiction over a matter, either the parties or the court suo motu can raise it so as to save time and costs and also avoid futile proceedings. The cases of NWUDE v. CHAIRMAN EFCC [2005] 36 WRN 141 @ 165 and NOSIE v. CBN [2002] 7 NWLR [766] 295 were cited and we were urged to hold that this appeal is of such circumstances in which the lower court could raise such issue suo motu without inviting parties to address on it because it was ancillary to the main issue. Several other cases were cited on the principles that the issue of jurisdiction can be raised at any stage and that when a matter is statute barred, the only duty opened to a court is to dismiss same. They include EJIOFOWOMI v. OKONKOW [1982] 11 SC 74 and EGBE v. ADEFARASIN [1987] 1 NWLR [47] 1 @ 21 respectively.