Chief Olabode George & Ors. V The Federal Republic Of Nigeria (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A: (Delivering the Leading Ruling)

The motion on notice and subject of this ruling is dated and filed 12th March, 2010 and same which is on behalf of all the appellants as applicants herein, wherein they are seeking a lone relief with prayer 2 having been withdrawn by the learned senior counsel Mr. O. Ayanlaja SAN who, lead a hosts of both his senior colleagues and other counsel on behalf of all the applicants.

The said relief two was accordingly struck out. The subsisting relief one is however seeking for:

‘An order for leave to argue in the appeals herein issues of law and lack of jurisdiction as raised in the Amended Notice of Appeal, those issues not having been taken before the court below’.

In support of the application is an affidavit of fifteen paragraphs deposed to by one Adeleke Adetona, a legal practitioner in the Chambers of Ayanlaja, Adesanya & Co. of counsel to the 1st appellant/applicant herein.

Submitting on behalf of all the applicants, the learned senior counsel Mr. Ayanlaja relied on all the paragraphs of the affidavit in support of the application and particular reference was made to paragraph 5 wherein he re-iterated that the notice of appeal of the appellants are all reproduced in volume 5 of the records of the appeal.

That the said notices have been amended by virtue of the order of this court on the 18th March, 2010. The learned senior counsel submitted that the issue of jurisdiction of the Federal Attorney General as to whether he can prosecute the appellants under the Criminal Code of Lagos State has been raised, which same was not earlier raised at the court below. That although by nature, an issue of jurisdiction can be raised at any stage of the proceedings, the senior counsel conceded the necessity merely out of abundance of caution and thus the filing of this application. That grounds 17 and 26 of the grounds of appeal question the powers of the Attorney-General of the Federation in prosecuting the accused persons for alleged offences under the Criminal Code of Lagos State, where such offences do not fall under the Federal Laws.

That section 174 of the Constitution of the Federal Republic of Nigeria 1999, empowers the Federal Attorney General to prosecute offences created by an Act of the National Assembly and not those created by the State Assembly, for example the Criminal Code of Lagos State. The learned senior counsel potently re-iterated that the issue was not taken before the court below. That, the same goes for grounds 11, 12, 13, 17 and 26 of the grounds of appeal wherein they are all additional grounds which were not treated in the court below and hence forming the pivotal focus of this application. The senior counsel urged in favour of granting the application therefore.

The learned senior counsel Mr. J. B. Daudu representing the 4th appellant informed the court that the said application does not affect his client since his notice of appeal as well as the brief of argument were both filed within time. He did not as a matter of principle however oppose the application.

In response to the submission advanced on behalf of the applicants, the learned counsel Mr. Festus Keyamo representing the respondent opposed the application and in respect of which a counter affidavit containing 5 paragraphs and filed on the 20th April, 2010 was relied thereon. Particular emphasis was placed on paragraphs 3(c), (d), and (e) by the said counsel who further argued that the fresh issues will require the production of evidence which was not adduced at the court below. Furthermore that the nature of Ground 17 of the grounds of appeal seeks to question the powers of the Attorney-General, which learned counsel submitted is a matter of fact relating to whether or not the Attorney General did obtain the fiat in the exercise of the powers as he did. That the appropriate time to have raised this issue should have been at the lower court when the charge was read to the accused persons and before their pleas were taken. This, learned counsel submitted, would have afforded the Respondent the opportunity to have produced the fiat on the spot. Counsel to buttress his submission cited the case of H.R. Ltd v. F. Investment Ltd. (2007) 5 NWLR (Pt.1027) 326 at 342-343. Further reference was also made to section 167 of the criminal Procedure Act which provides that an objection of this nature ought to be raised immediately the charge is read and before the please taken. In other words, that question as to who signs a charge ought to be raised timeously. Learned counsel urged that ground 17 of the proposed additional grounds of appeal which in the case of the 5th appellant is ground 16 should be refused.

In further submission on points of law, the learned senior counsel Mr. Ayanlaja emphasized that the duty lies upon the prosecution/respondent and not defence/appellant to have attached the fiat empowering the Attorney-General. That the provision of the Criminal Code cannot override that of the Constitution. Counsel in the final analysis urged that the application be granted as prayed.

The only issue raised in this application is whether leave can be granted for an order in favour of the identical amended notices of appeal for all the appellants/applicants incorporating new and additional grounds of appeal filed by each of the appellants herein for purpose of arguing issues of law/jurisdiction which same was not argued before the lower court.

The determination of the said relief, would require the reproduction of certain paragraphs of both the affidavit in support as well as the counter affidavit of the respondent. In other words, the facts stated on paragraphs 5, 8, 9, 10, 11 and 12 as well as paragraphs 3 sub-paragraphs (c), (d) and (e) of the two affidavits under reference respectively are relevant and state as follows:…….

“5. That the said Notice of Appeal of the Appellants are reproduced in Vol.5 of the record in the following order namely the 1st Appellant pages 1737-1743, 2nd Appellant pages 1803-1809, 3rd Appellant pages 1751-1757, 4th Appellant pages 1758-1764, 5th Appellant pages 1765-1771, 6th Appellant pages 1772-1778 respectively wherein the grounds of appeal are the same in respect of the complaints of the Appellants against the judgment of the court below …….