Dr. Okey Ikechukwu V. Federal Republic Of Nigeria (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE J.S.C.

At the instance of one of the prosecutorial agencies of the First respondent, namely, the Independent Corrupt practices and Other Related crimes commission [throughout this judgment referred to as ICPC, for short], the High Court of the Federal Capital Territory (hereinafter referred to as the trial court) granted leave for the preferment of Charge No: FCT/HC/CR/44/2010 against the second and third respondents in this appeal and the appellant [the third accused person in the said charge].

When the accused persons [the second and third respondents and the appellant in this appeal] were arraigned before the trial court, the appellant herein (as third accused person) sought, by Notice of Preliminary Objection, an order of the trial court setting aside the said leave [granted as aforesaid] and a further order of the said court quashing both the charge and his arraignment. The objection was premised on the ground that, since the ICPC was a delegate of the prosecutorial powers of the Federal Attorney General, it could not sub-delegate such powers to a private prosecutor. He invoked the old maxim, delegatus non potest delegare.

The trial court heard and dismissed the said objection, prompting the appellant’s appeal to the Court of Appeal, Abuja Division (hereinafter, simply, referred to as “the Lower Court”. At the Lower Court, the appellant’s appeal was greeted with a Preliminary Objection. In the said objection, the first respondent in this appeal challenged the competence of his appeal. The sole ground was that the appellant failed to sign his Notice of Appeal personally. In its judgment of June 20, 2012, the Lower Court upheld the said objection and, in consequence, struck out the appellant’s appeal.

This further appeal to this court is the appellant’s expression of his grievance against the outcome of his appeal to the Lower Court. He identified two issues for our determination of his appeal thus:

1. Whether the Lower Court was right when their (sic, Their) Lordships held the appellant’s failure to personally sign the Notice of Appeal operates to rob the Court of requisite jurisdiction to entertain the appellant’s appeal
2. Whether the Lower Court’s failure/refusal/neglect to consider and make pronouncement on all the issues submitted for determination was proper in law

For the respondent, the following two issues were submitted for our consideration:

1. Whether or not the court below was right when it struck out the appellant’s Notice of Appeal before it for incompetence
2. Whether or not the failure of the Lower Court to pronounce on the issues in the main appeal before it after finding same to be incompetent occasioned any miscarriage of justice towards (sic) the appellant

The two sets of issues, though expressed in divergent phraseologies, essentially, deal with the main questions. We shall adopt the issues which the appellant formulated. After all, it is his appeal. Thus, the issues for the determination of this appeal are:

1. Whether the Lower Court was right when their (sic, Their) Lordships held the appellant’s failure to personally sign the Notice of Appeal operates to rob the Court of requisite jurisdiction to entertain the appellant’s appeal
2. Whether the Lower Courts failure/refusal/neglect to consider and make pronouncement on all the issues submitted for determination was proper in law

ARGUMENTS OF COUNSEL ON THE ISSUES

ISSUE ONE

Whether the Lower Court was right when their (sic, Their) Lordships held the appellant’s failure to personally sign the Notice of Appeal operates to rob the Court of requisite jurisdiction to entertain the appellants appeal

APPELLANT’S CONTENTION

When this appeal came up for hearing on December 12, 2014, learned counsel for the appellant, T. Oshobi, who appeared with B. B. Lawal and L. Dunkwu, adopted the appellant’s brief filed on November 23, 2012, although, deemed filed on November 14, 2013. He, equally, adopted the Reply brief filed on March 6, 2013.

The main thrust of his submissions [paragraphs 4.1.2 – 4.1.22 of the main brief, on the one hand and paragraphs 1.1-4.2.21 of the reply brief] is that non-compliance with Order 17 Rule 4 (1) of the Court of Appeal Rules, 2011 [a provision requiring an appellant, in a criminal appeal, to sign the Notice of Appeal personally] is a mere irregularity. As such, it should not have precluded the Lower Court from dealing with the main complaint in the appeal. In his view, the proviso to the above rule vested the Lower Court with discretion to overlook any incident of non-compliance. He placed reliance on the Court of Appeal decision in Alintah v. FRN (2010) 6 NWLR (Pt.1191) 508, 527-531; a decision that endorsed an earlier decision of the same Court of Appeal in Chrisdon Industries Co. Ltd v. A.I.B. Ltd (2002) 8 NWLR (Pt 768) 182. He cited Ikpasa v AG. Bendel [1981] 9 SC 7, 30-31.

He drew attention to pages 360-362 of the record where the appellant declared his intention to prosecute his appeal and page 385 of the record which evidences the appellant’s presence at the Lower Court on April 16, 2012. He contended that the above proviso was written into the Rules of the Lower Court in consonance with the prevailing shift from technicalities. He cited several authorities dealing with this shift in emphasis, [paragraph 4.1.11 of the brief]. He veered off into the court’s interpretation of the Legal Practitioner’s Act, citing Okafor v Nweke [2007] 10 NWLR (pt 1043) 521 etc. Falling short of inviting this court to overrule its decisions in Uwazurike v AG, Federation [2007] 8 NWLR (Pt.1035) 1; Adekanye v FRN [2005] 15 NWLR (Pt 949) 433, 454 -456, he canvassed the view that those cases did not consider the effect of the above proviso to the above-cited Order. Counsel expended energy on paragraphs 4.1 – 4.1. 34 of the Reply Brief in re-arguing the issues he had agitated in the main brief, In all, he urged the court to allow the appeal and set aside the judgment of the Lower Court.