Joe Uwagba V. Federal Republic Of Nigeria (2009)

LAWGLOBAL HUB Lead Judgment Report

I.T. MOHAMMAD, J.S.C

The appellant was the General Manager of Prime Merchant Bank. He along with two others, were charged before the Enugu Zone of the Failed Banks Tribunal, with the offences of conspiracy to steal and stealing various sums of money amounting to about N878,000,000.00 (Eight Hundred and Seventy Eight Million Naira). He was also charged with failure to take reasonable steps to secure compliance by Prime Merchant Bank Ltd. with requirement of the Banks and others Financial Institutions Decree (Act) No. 25 of 1999.

The appellant was away abroad at the time he was charged before the Tribunal and remained away throughout his trial and conviction. According to the learned counsel for the appellant, the appellant became aware of the judgment against him on 20/10/1999. He took no steps to comply with the terms of the judgment.

While still abroad, the appellant instructed his counsel to file an application for extension of time to file his appeal. A preliminary objection was raised against the application on the ground that the applicant was a contemnor who should not be heard. The preliminary objection was over ruled by the court below on 30/4/2000. Application for extension of time to appeal was subsequently heard and granted by the court below with a condition that the appellant should be in court on the date of hearing the appeal. Dissatisfied with that aspect of the ruling (i.e. presence of the appellant in court on the date of hearing the appeal by the court below), the appellant appealed first to this court in SC. 199/2001. The appeal was dismissed by this court on the 4th day of July, 2002.

After the dismissal of Appeal No. SC. 199/2001, by this court, the parties (who were the same as in the present appeal), went back to the court below to settle briefs of argument. On the day fixed by the court below for the hearing of the appeal, the appellant failed to appear in court. This prompted the respondent’s counsel to remind the court below of its previous order to the effect that the appellant must appear personally before it at the hearing of his appeal. The court below insisted that its earlier order that the appellant be present in court on the hearing date be complied with. Being dissatisfied with that order the appellant appealed again to this court.

Briefs were filed and exchanged by the parties in this appeal with the appellant filing a reply brief. In his brief of argument the learned senior counsel for the appellant. Chief Olujinmi (SAN) asked the following sole question:

“Whether the lower court has jurisdiction to make the presence of the appellant in court a condition for the hearing of his appeal”

Learned counsel for the respondent raised a Preliminary Objection. The grounds of the objection and arguments in respect of the objection were embedded in the respondent’s brief of argument. (I shall come back to the Preliminary Objection in due course). Learned counsel for the respondent formulated an issue in the event he is overruled on his Preliminary Objection. The issue he formulated for the determination of the appeal reads as follows:

“Whether the court below had the Jurisdiction to impose a condition that the appellant should be present during the hearing of his appeal.”

“TAKE NOTICE that the Respondent/Appellant shall at the hearing of this Appeal raise the following preliminary objection to wit:

This Appeal is incompetent and ought to be struck out for want of jurisdiction on the part of this Honourable Court to entertain it.

GROUNDS OF OBJECTION

[1] The issue for determination in this interlocutory appeal had earlier been fully and effectively dealt with by this Honourable Court in its judgment, in a previous interlocutory appeal No. SC/119/2001 between JOE UWAGBA V. FEDERAL REPUBLIC OF NIGERIA.

[2] The parties in Appeal No. SC/119/2001 are the same with the parties in this suit.