Edun Alabi Bolaji & Anor V. The State (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The Appellants were arraigned before the High Court of Kwara State sitting at Ilorin on a four count charge of conspiracy and attempt to commit mischief by fire and culpable homicide contrary to and punishable under Sections 97, 95, and 229 of the Penal Code. When the charge was read to them, they each pleaded not guilty. Proofs of evidence had earlier been filed along with the application to prefer a charge and the charge itself before the Court. Before trial could commence, the Appellants filed an application at the trial court wherein they prayed for an order of court quashing the charge against them on the ground that no prima facie case is disclosed by the proof of evidence. In its ruling delivered on 13th November, 2007, the Court, per Adewara, J., held that a prima facie case was disclosed in the proof of evidence and thus dismissed the application. Dissatisfied, the Appellants filed this Appeal.

At the hearing of the Appeal on the 26th May, 2009, Mr. Gbadeyan, learned Counsel for the Appellants, adopted the Appellants’ brief of Argument dated 14th and filed on 15th October, 2008, as well as the Appellants’ Reply Brief dated 15th December, 2008 and deemed filed on 5th May, 2009. He relied on the Briefs for the purpose of the Appeal and urged the Court to allow the Appeal and to discharge and acquit the Appellants. The learned DPP appearing for the State, Mr. Mumini, also adopted the Respondent’s Brief of Argument dated 12th and filed on 13th November, 2008. He urged the Court to take note of the preliminary objection raised at page 3 paragraph 3.00 of the Brief. He urged the Court to sustain the objection and to dismiss the Appeal in its entirety.

Mr. Gbadeyan submits that the preliminary objection raised is lacking in foundation and is in contravention of Order 10 Rule 1 of the Rules of this Court. He contends that the Respondent merely argued the preliminary objection in the Brief without filing any such Notice before the Court. He argues that the Respondent cannot by its Brief move a motion that has not been filed. He relies on Oforkira V Maduike (2003) 1 SC (pt. 3) 74 at 80-82 per Tobi, JSC. Counsel therefore urged the Court to discountenance the preliminary objection.

In response, Mr. Mumini submits that Order 10 Rule 1 does not require that a motion be filed in order to raise a preliminary objection. He contends that by the preliminary objection raised in the Brief, the Appellant was given sufficient notice of the objection. What is required under that Order is notice to the Appellant stating the grounds of objection. Counsel submits that the Respondent’s Brief has taken sufficient care of the notice required under that Order. Besides which the issue touches on the jurisdiction of the Court to entertain the Appeal, such an issue of jurisdiction which can be raised at any stage of the proceedings. Counsel thus still urged the Court to overrule the objection and dismiss the Appeal.

It is indeed provided in the Court of Appeal Rules, 2007 the procedure by which a preliminary objection to the hearing of an Appeal may be raised. Order 10 thereof provides:

1. A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
2. No objection shall be taken to the hearing of an appeal on the ground that the amounts fixed by the Registrar of the court below under Order 8 rule 2(b) of these Rules were incorrectly assessed.
3. If the Respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.

Clearly under this Order, it is intended that whoever wishes to raise an objection to the hearing of an Appeal before this Court should file a formal Notice of Preliminary Objection in the form and manner set out in Order 10 of the Rules of this Court. There must be no dispute about that. However, where a party defaults, it is interesting that the Rules do not peremptorily shut him out. Instead, it prescribes a penalty in costs or whatever other order the Court may deem fit to make in the circumstances. Evidently, therefore, the Rule throws the issues open to the exercise of discretion by the Court.

This is not surprising in view of the fact that where a preliminary objection touches upon the competence of the action or on the jurisdiction of the court to entertain same, it would be foolhardy for any court to proceed with a suit which is deficient in that respect, as any proceedings or decision taken without jurisdiction, no matter how brilliantly or meticulously conducted, would amount to a nullity. The well-worn phrase in legal parlance is ‘you cannot place something on nothing and expect it to stand. It will simply collapse like a pack of cards.’

In this wise, I have examined the Respondent’s Brief of Argument. Rather than file a separate Notice of Preliminary Objection, he has short-circuited the process and elaborately incorporated same in his Brief. At page 3 thereof, the Respondent gives notice of the preliminary objection thus:

“Pursuant to Order 10 of the Court of Appeal Rules 2007, the appellant is hereby given notice that at the hearing of the Appeal the Respondent shall raise preliminary objections that this Honourable court lacks the prerequisite jurisdictional competence to entertain this Appeal on two main grounds to wit:-

1. That the deemed Notice of Appeal purportedly filed by the appellants herein was not signed by the Appellants but by Counsel the Appellants in violation of the provisions of Section 243 of the 1999 Constitution and ORDER 16 Rule 4(1) of the Court of Appeal Rules 2007.
2. A joint Notice of appeal was filed by the two Appellants in violation of ORDER 16 Rule 3 (1) AND (2) of the Court of Appeal Rules2007.”

By the above, the Respondent has effectively complied with the Rule of Court which requires that notice be given to the Appellant before such objection is raised.

Furthermore, since the Respondent’s Brief was filed on 13th November, 2008 and the Appeal itself was not heard until 26th May, 2009, the Appellant obviously had more than the 3 clear days notice that the Rules prescribe. Finally, the grounds of the objection are well set out in the Brief sufficient to place the Appellants on notice of the objection they were coming to meet. In substance therefore, the Respondent complied with Order 10 Rule 1 of the Rules of Court. Since it is now commonplace that the days of technical justice are forever gone in Nigerian Jurisprudence, (See INEC V Oshiomole (2009) 4 NWLR (pt. 1132) 607), the Respondent will not be shut out of being heard merely on the ground that he did not file a separate process in order to raise its preliminary objection. This is a technicality as to form which will not be allowed to prevail over substantial justice.

In addition, the objection raised by the Respondent touches on the competence of the Appeal before the Court and thus the jurisdiction of the Court to entertain same.

The law is trite that jurisdiction is the linchpin and the touchstone of the judicial process. Halsbury’s Laws of England describes it as the “authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision’: