Joshua Dada Abiodun & Ors. V. Attorney General of the Federation (2007)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The Appellants, as Plaintiffs at the Federal High Court, sued the Respondent, Attorney General Federation and two others claiming certain reliefs, During the course of proceedings at the lower Court, the names of the 2nd and 3rd Defendants were struck out on the application of the Appellants/Plaintiffs’ Counsel, Therefore, by the Amended Originating Summons at page 185 of the record, the Appellants claim thus from the sole Defendant:

1. A DECLARATION that the Judgment of the Miscellaneous Offences Tribunal in MOT/ ABJ/2/97 between the Federal Republic of Nigeria v Alhaji Sulaiman Arowosaiye and 15 Others delivered on Wednesday, 27th day of May, 1998 is null and void, illegal, unconstitutional and of no effect whatsoever being an untraceable and lost Judgment as caused by the agencies of the Defendant, in violation of Section 33 (7) of the 1979 Constitution and under the Advanced Fee Fraud and other Related Offences Decree No.13 of 1995.
2. A DECLARATION that the Plaintiffs constitutional right to fair hearing under the 1979 Republican Constitution and Advanced Fee Frauds Related Offences Decree No. 13 of 1995 was violently breached through the denial of Plaintiffs’ right of appeal against the Judgment of the Miscellaneous Offences Tribunal in MOT/ABJ/2/97 delivered on Wednesday, 27th May, 1998.
3. N5,000,000.00 each as compensation for wrongful detention of the Plaintiffs in the Nigerian Prisons, Ilorin for three years or thereabout without confirmation of such ‘Judgment’ by the then Head of the Federal Military Government of Nigeria.

The Defendant was duly served and he defended the suit. As the matter was commenced by way of Originating Summons, the parties before the lower Court joined issues by filing their various affidavits and counter affidavits as they deemed necessary, after which learned Counsel on either side filed their written addresses and adopted same. At the end of the day, the learned trial Judge found as follows at page 235 of the record:

“In the light of the foregoing, it is my decision that this action lacks merit, it is dismissed accordingly.”

Totally dissatisfied with this decision, the Appellants promptly filed an Appeal to this Court. The Grounds of Appeal, without their particulars, are set out hereunder:

1. The learned trial Judge erred in law when he did not rule on the Plaintiffs/Appellants’ objection to the competency of an issue of law, that is, preliminary objection raised in the Defendant/Respondent’s counter affidavit.
2. The learned trial Judge erred in law when he considered the submission and documents filed by the 2nd and 3rd Defendants in his Judgment after he had struck out their names.
3. The learned trial Judge erred in law when he held as follows:

“I would also hold that there was no diligent search for the record of proceedings and the judgment. The Kwara State which later had its name struck out from this suit had a copy of the judgment exhibited as Exhibit MOJ 1. I therefore agree with the assertion of the defendant that there was no diligent search for the Records and copy of the judgment.”

(i) The learned trial judge erred in law when he raised suo motu issue of conflict or contradiction in Plaintiffs’ supporting affidavit as regards the filing or otherwise of a notice of appeal.

(ii) The learned trial Judge erred in law by misconstruing the purport of Section 33 (7) of the 1979 Constitution when he held thus:

“This provision does not say that the court would be chasing the accused with the copies of the judgment, it is for the accused or his representative that would make a demand before the provision could be invoked. In this matter, there was no demand until a year after the Plaintiffs were released from detention. The Plaintiffs I therefore hold are therefore guilty of laches and delay.”

4. The learned trial Judge erred in law when he held that the Court would not have jurisdiction in respect of this matter by virtue of the ouster clause in Section 11 of the Special Tribunal (Miscellaneous Offences) Decree 1984.
5. The learned trial judge erred in law when he held that the cause of action is statute barred contrary to Section 2 (a) of the Public Officers Protection Act 1990, which according to him stipulates:

“That no proceeding shall lie against a public officer like the Attorney General of the Federation if it is commenced more than 3 months after the occurrence of the event challenged.”

6. The learned trial judge did not resolve the issue of lack of fair hearing placed before him in the parties’ written addresses.

The facts leading to this Appeal briefly are that the Appellants, prior to their arrest and trial in 1996, were civil servants in the Kwara State Ministry of Finance. They were arrested on 29th May, 1996 for the offence of the fraudulent conversion of the Federal Government grant of some Kwara State pensioners. They were subsequently arraigned before the Miscellaneous Offences Tribunal, Abuja Zone sitting in Ilorin. From their arrest and for the duration of their trial which lasted 14 months, the Appellants remained in prison custody. At the close of the trial, the Tribunal delivered its verdict on the 27th May, 1998, wherein it convicted the Appellants. Sentence was passed on the 28th May, 1998. All the Appellants, except two of them, were sentenced to three years mandatory term of imprisonment, while the other two were sentenced to two years imprisonment also without an option of fine. It is alleged that throughout the Appellants’ period of incarceration in prison, there were not allowed to have copies of the judgment and the record of proceedings of the Tribunal. Equally, no copies were made available to their Counsel by the Tribunal’s Registry. Nevertheless, the 11th Appellant succeeded in filing a Notice of Appeal with the help of his Counsel, Buhari Oguntoye & Co., on the 10th June, 1998. The Appellants’ Solicitors wrote several letters to the Kwara State Ministry of justice and the D.P.P. Federal Ministry of justice in a bid to obtain a copy of the judgment, to no avail. To date, the position is that the judgment of the Tribunal has proved inaccessible to the Appellants. The Appellants’ assertion at the lower Court that the judgment was lost was never controverted, Nevertheless, the Court accepted the 2nd and 3rd Defendants’ assertion that the Plaintiffs slept over their rights, as guaranteed under the Constitution, to receive copies of the Record of proceedings and the judgment of the Court. The Appellants therefore distilled five (5) issues for the determination of this Court from the Grounds of Appeal set out above. They are:

Whether the loss or inaccessibility of both Military Tribunal’s judgment and its Record of Proceedings was/is in contravention of Section 33 (7) and constitutionally guaranteed fair hearing under Section 33 (1) of the 1979 Constitution (Section 36 1999 Constitution); and if so, whether such violation or denial renders the entire trial and Appellants’ conviction unconstitutional, null and void, and of no effect ‘whatsoever. (Grounds 5, 6, & 9 of the Notice of Appeal).

(ii) Whether the Defendant/Respondent could competently raise a Preliminary objection to the competency of the action through a paragraph in its further and better affidavit; and whether the lower Court rightly discountenanced the Plaintiffs’ objection to such procedure. (Ground 1).

(iii) Whether the learned trial judge competently raised suo motu, the issue of conflict in the Plaintiffs’ affidavit evidence, which he resolved, on its own’ and made his findings the basis of his judgment without allowing counsel in the case the right of address. (Ground 4).