Anthony Alintah (M) & Ors. V. The Federal Republic of Nigeria (2008)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAH, J.C.A.,

This appeal is brought against the ruling of the Federal High Court Lagos delivered by M. L. Shuaibu, J on the 16th March 2004 refusing to hear a preliminary objection against the charges preferred against the appellants before that court until the appellants appear in court before any step could be taken including hearing of the preliminary objection.

The appellants were charged before the lower court on a four count charge of conspiracy, forgery and uttering the register of directors of Trade Afrik Ltd and Agro & Hydro Tech Ltd at Corporate Affairs Commission in Lagos Contrary to section 3(2) of the Miscellaneous Offences Act Cap. 410 Laws of the Federation of Nigeria 1990. The appellants, who have not appeared before the court, filed a notice of preliminary objection on 23rd February, 2004 challenging the jurisdiction of the court below, the locus of the complainant to prosecute the case and the competence of the charge. The appellants also raised, in their preliminary objection, the following two Issues:

I. Abuse of court process in view of the decision of the same court in suit No. FHC/L/CS/256/2001 Anthony Alintah and Anor Vs Trade Afrik Limited & Anor wherein the decision of Jega, J (as he then was) is in favour of the appellants;

2. Fair hearing under section 36 of the Constitution and contended that it would be unlawful to try any of the appellants on any of the courts in the charge.

On the 25th February 2004 the appellants’ counsel sought to move the court to hear the preliminary objection which, he contended, should first be entertained and determined before arraigning the appellants. It was further submitted for the appellants that the court couldn’t compel the attendance of the appellants in respect of the charge that has been challenged. The respondent’s counsel however insisted on the presence of all the appellants in court as a precondition to hearing the preliminary objection

In it’s ruling delivered on 16th March 2004, which is the subject of this appeal, the court below held that:

“it is mandatory that the accused must be present in court before any further step could be taken including hearing of the application for preliminary objection as to their arraignment”

The learned trial Judge, however, overruled the preliminary objection for lacking in merit and ordered the three accused/appellants to appear in court at the next adjourned date by holding thus: “Consequently the objection as to the presence of the accused persons in relation to the charges filed against them and now pending in this Court is lacking in merit and I so hold. All the three accused persons listed on the charge … (sic) … are hereby directed to appear before this Court on the next adjourned date.” (See p. 40 of the Record of Appeal)

After filing the notice of appeal on 30th March, 2004 against the order of the court below directing the physical appearance of the accused persons/appellants in court; the appellants filed another notice of appeal dated 21st June, 2004 following the ruling of the court below delivered on 7th June, 2004 refusing stay of proceedings and holding that the notice of appeal filed on 30th March, 2004 is defective and incompetent having been signed by counsel instead of the appellants themselves as required by order 4 rule 4(1) of the Court of Appeal Rules 2002.

The first appeal No. CA/L/194/2004 initiated by the notice of appeal dated and filed on 30th March 2004 and the second one No. CA/L/587/2005 commenced by notice of appeal dated 21st June 2004 were allowed by leave of this Court granted on 26th April, 2006 to be argued together. Thus, issues raised in both appeals were appraised and argued by learned counsel on both sides in the respective briefs.

Counsel on both sides raised two identical issues for determination. The following two issues raised by the respondent which summarizes those similarly raised by the appellants will, for straight-forwardness, be adopted for the determination of this appeal: –

“1. Whether the court below was right in holding that the accused/appellants physical presence in court is mandatory before the notice of preliminary objection dated 23rd day of February 2004 can be taken.

2. Whether the appeal is competent.”

The appellants’ counsel contended that the notice of preliminary objection dated 23rd February, 2004 raised jurisdictional and constitutional issues touching on the competence of the court, the competence of the charge in relation to the appellants’ right to fair hearing under section 36 of the Constitution of the Federal Republic of Nigeria 1999 and the locus of the Attorney General of the Federation to prefer and prosecute the charge in the court below. See STATE VS WILLIAMS (1978) 11 S.C. 38 at 40. The appellants’ counsel submitted that these issues must be tried and settled first. See UNION BANK OF NIGERIA PLC VS NTUK (2003) 16 N.W.L.R. (Pt. 845) 185 at 205 H, 207C, 215 G-H and 216-217 H-C. The objection raised, the appellants’ counsel further submitted, being fundamental and relating to the jurisdiction of the court and must be determined first before the court takes any step in the proceedings. See NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 135) 688 and also FAWEHINMI VS ATIORNEY GENERAL OF LAGOS STATE No 1 (1989) 3 NWLR (Pt. 112) 707 at 739 F, 726-727.

The appellants counsel also submitted that the view of the learned trial Judge that the decision in the case of FAWEHINMI VS ATTORNEY GENERAL OF LAGOS STATE NO.1 relates to obtaining leave to file charge or information and partial inadmissibility of the proof of evidence, was erroneous having regard to the affirmation of that decision in EZEZE AND ANOR VS THE STATE (2004) 14 NWLR (pt 894) 491 at 502-503 especially at p. 504 H where this court per Aderemi, JCA (as he then was) held thus: