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.
[3] This Honourable Court lacks the jurisdiction to review its judgment in Appeal No. SC/119/2001.”
While arguing the Preliminary Objection in his brief of argument, the learned counsel for the respondent, Chief Orbih, stated that the Parties in Appeal No. SC.199/2001 and the present appeal are the same. In both appeals the appellant’s complaint was that the court below lacks the jurisdiction to order the appellant to be present in court at the hearing of his appeal as this court had fully and effectively determined the issue in the instant appeal in its judgment on the previous appeal No. SC.199/2001. Learned counsel submitted further that having regard to the judgment in that appeal, there is nothing new in the instant appeal for this court to decide as the court had stated emphatically that the condition that the appellant appear at the court below during the hearing of his appeal neither constituted a clog in the wheel of his right of appeal not was it made without jurisdiction. Learned counsel urged that this court should decline the invitation by the appellant to review its previous decision in appeal No. SC.199/2001. He cited the case of Adigun v. Local Government & Anor (1999) 8 NWLR (Pt.613) 30 at 37 – 80. Adigun & Ors v. Governor Osun State (1995) 3 NWLR (Pt.385) 513 at 536. Learned counsel finally submitted that the finality of the judgment of this court rests on the pillars of Section 235 of the 1999 Constitution and that we should strike out the instant appeal as being incompetent and a gross abuse of the processes of this court.
In his reply brief filed in this court on 31/10/08, the learned SAN for the appellant, submitted that while it is conceded that in the notice of appeal at page 33 of the supplementary record the issue as to the jurisdiction of the lower court to attach a condition to the leave to appeal granted to the appellant, that he should be present in court on the date of hearing of his appeal was distinctly raised, that issue was never decided by this court. After quoting some excerpts from the leading and concurring judgments of the court in appeal No.SC.199/2001, the learned SAN said that their Lordships held the view that the ruling of the lower court was misconceived as no condition was attached to the appellant’s right to file his notice of appeal following the leave granted and that this court distinguished between the filing of the notice of appeal per se and the time for the hearing of the appeal. He argued further that based on that decision, when the appellant’s appeal came up in the lower court on 31/1/07 and the lower court insisted that the appellant must comply with the order of the court to be present personally at the hearing of the appeal, the issue was brought up afresh by the lower court and the appellant was entitled to pursue this appeal to decide that issue. Since this court did not decide in the earlier appeal, one way or the other the issue of the jurisdiction of the lower court to order the appellant to be personally present at the hearing of his appeal, the appellant could challenge the order that he should be personally present at the hearing of his appeal as he was not estopped in any way by the earlier decision of this court. He urged this court to overrule the objection of the respondent.
I read the earlier judgment of this court in appeal No. SC.199/2001 which was made available to us by learned counsel for the appellant. I cannot see in that judgment where this court made a decisive pronouncement on the validity or otherwise of the order made by the court which made the presence of the appellant mandatory on the date his appeal would be heard. My understanding of the orders made in that judgment was simply that the appellant could exercise his right of appeal and he in fact did appeal to the court below. It was a misconception by the appellant to tie his right of appeal to the condition laid by the court below that he be personally present in court before his appeal could be heard. All the justices that were on the panel that heard the appeal in this court expressed same view. Thus the light of appeal was something different and the condition that appellant be personally present on the date the appeal would be heard was another different thing entirely. The former was exercised by the appellant and his appeal was entered by the court below. The appellant, however, did not comply with the latter and he appealed against it which gave rise to the instant appeal. Thus, this appeal is to determine the validity of the latter order that appellant must be present personally in the court below before his appeal could be heard. Our earlier decision in appeal No. SC.199.2001, did not in anyway decide the validity of that order. Therefore, this court has not given decision on that order. The appellant thus, has every right to approach this court for a decision on that order given by the court below. The preliminary objection of the respondent lacks merit and it is hereby overruled.
I shall now consider the lone issue upon which this appeal was predicated. I think a very convenient point in starting the consideration of this appeal is the judgment of the court below which was delivered on 25/4/2000, by Akpabio JCA (of blessed memory). The learned JCA held, inter alia.
“We have carefully considered all the arguments canvassed in this application, right from day one by learned counsel on both sides, and find that in view of the Constitutional right of appeal given to every citizen of this country, including even murderers, the appellant cannot be denied his opportunity to prove his innocence. This application therefore succeeds, but will be given on condition in view of applicant’s foreign residence:-
- Leave is hereby granted to the applicant to appeal against his conviction and sentence of 10 years imprisonment imposed on him by the Failed Banks etc Tribunal in 1998.
- Time is hereby extended by 30 days from the date hereof within which applicant should file and serve his Notice and grounds of appeal on the CONDITION that the appellant appears personally to be present in this court on the date of hearing of the appeal; so that whatever decision is arrived at will not be an exercise in futility – Equity does nothing in Vain.”
Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 confers, generally, right of appeal to the court of appeal from the decisions of the Federal High Court, a High Court of a State to be exercisable in the case of Civil Proceedings at the instance of a party thereto, or the High court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or subject to the provisions of the Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed. There are other provisions in the Constitution which donate right to appeal on a party in a dispute, who has been aggrieved by the decision of the trial court or tribunal for further appeal from an appellate court or tribunal. The instant appeal stemmed from the decision of the Failed Banks (Recovery of Debts) and Financial Malpractice in Banks Tribunal Zone 1, Enugu, which sentenced the appellant in absentia to a term of imprisonment for ten years in 1998. Being aggrieved by that decision, the appellant sought to appeal to the court below. The court below granted the appellant the reliefs as contained in part of the relief I set out earlier. It is also to be noted that the trial Tribunal was set up under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994, now contained, as an Act in Cap. F2, the Laws of the Federation of Nigeria, Vol. 6 of 2004. On matters relating to appeal by an aggrieved party, the Act, in section 21 states that a judgment of the court is subject to appeal as specified in section 5 of this Act. (NBI I cross checked section 5 to the Act and I find nothing relating to appeal process). In any event, the case was decided under Decree No. 18 of 1994 (The Decree for short). Section 5 of the Decree provided as follows:
“5(1) A person convicted or against whom a judgment is given under this Decree may, within 21 days of the conviction or judgment, appeal to the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) Decree 1984, as amended, in accordance with the provisions of that Decree.”
In 1999, the then Federal Military Government enacted Decree No. 62. Tribunals (Certain Consequential Amendments, etc), certain amendments were made wherein the Federal High Court or High court of a state, as the case may be, was conferred with jurisdiction to try offences created under enactments specified in the schedule to the Decree. Subsection (2) of section 2 provided-
“Accordingly, a tribunal established in any of the enactments specified in the schedule to this Decree is hereby dissolved.”
Sequel to that, section 5 of the erstwhile Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 was deleted.
On matters of appeal now from the decisions of the Federal or state High Court as the case may be, section 7 provided as follows:-
‘7(1) A person convicted or against whom a judgment is given under this Decree may, within 30 days of the conviction or judgment, appeal to the Court of Appeal. (2) There shall be a right of appeal from a decision of the Court of Appeal to the Supreme Court.’”
Thus, it can be seen that the provisions of the Decrees (Acts) set out above are special in nature and they deal with special cases. It cannot therefore be said that the Court of Appeal, while exercising its jurisdiction, could resort to its ordinary Rules of Court. See M.U. Gombe v. P.W. (Nig.) Ltd.& Ors. (1995) 7 SCNJ 19. I therefore fail to see the relevance of section 28 of the Court of Appeal Act, nor Order 4 Rule 14(5) of the Court of Appeal Rules, which, according to learned counsel for the respondent, could be relied upon by the court below to compel the personal and physical presence of the appellant in the Court on the date fixed for hearing his appeal. It is also clear from the enabling laws that the court below was not conferred with jurisdiction to compel the personal appearance of the appellate when his appeal is to be heard. The position of the law has been re-stated severally that jurisdiction is an all-important issue that the court cannot confer it upon itself when the enabling statute has done so. The parties, even where they consent to do so, cannot confer jurisdiction on a court where the enabling statute has not done so. See: Okolo & Anor v. U. B. A. (2004) 1 SCNJ 113. It can only be conferred by statute. See: Odua Investment Co. Ltd. v. Talabi (1997) 7 SCNJ 600. As the Constitution and other enabling statutes have donated right of appeal on a party who is aggrieved by the decision of a court of trial or tribunal or other courts or tribunals (as the case may be) which entertain appeals, without laying any condition which may hinder or inhibit the hearing of the appeal, it will be stretching the law to an unimaginable distance for the court below to lay such a condition.
A Court of law is created to settle disputes between parties who come to it for litigation whether in civil or criminal matters. It is not the aim of a court to punish a litigant before finding him liable or guilty to the claim or charge made against him. I know it may be touchy and sensational for a court to remain a toothless-bull-dog where a litigant disobeys a court order. But I must add that such court’s order has to be lawfully and competently made. Where an order is made by a court without jurisdiction that order is a nullity AB INITIO see: The Federal Government of Nigeria & Anor v. Lord Chief Udensi Ifegwu (2003) 5 SCNJ 217; Lakanmi v. Adene and Others (2003) 4 SCNJ 348; National Bank of Nigeria Ltd. v. Weide & Co. Nig. Ltd. and Ors (1996) 9 – 10 SCNJ 147.
The condition imposed by the court below compelling the appellant to be present in court on the hearing date of his appeal, is not traceable to either the Constitution or any of the statutes referred to above.
Another vital issue is that section 27 of Decree 18 of 1994 made the following provision:
“27(1) The absence from Nigeria of a debtor or of a person who has committed an offence under this Decree shall not prevent his case being heard and determined or his being tried and convicted under this Decree.
(2) An order of the Tribunal made pursuant to a hearing or trial under subsection (1) of this section shall, where expedient, be executed in the absence of the debtor or person convicted, but the commencement of a sentence of imprisonment shall be deferred until his return to Nigeria.”
Thus, the appeal could be pursued to its logical conclusion by the court below even in the absence of the appellant from this country and he can be convicted. All orders given by the court against the appellant could be executed in his absence except if it is a sentence of imprisonment which shall be deferred until his return to the country. That indeed is what the law prevailing provided. The provisions are clear enough requiring no importation of any rule or interpretation apart from the natural rule. See also the case of Adeoye v. State (1999) 4 SCNJ 136 Kotoye v. Saraki (1994) 9 NWLR (Pt. 357) 414 D – R; IBWA v. Imano Nig. Ltd. (1988) 3 NWLR (Pt.85) 633 at 651; Okunagba v. Egbe (1965) 1 All NLR 62 at 65.
SC.29/2007