Prof. Kayode Carroll Oni & Anor V. Federal Republic Of Nigeria (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal is an offshoot of the ruling of the High Court of Kwara State, Ilorin, Coram Hon. Justice M. O. Adewara, in charge No.KWS/ICPC/1/07, delivered on 26/09/2007, wherein the appellants’ preliminary objection was dismissed.

The background facts leading to this appeal, as garnered from the processes filed, are simple. The appellants were the executive director and controller of finance of the National Centre for Agricultural Mechanization (NCAM), Ilorin respectively. On 04/01/2007, the office of Honourable Attorney-General of the Federation filed an ex-parte application in the lower court for leave to prefer a 38-count criminal charge against the appellants pursuant to section 185(b) of the Criminal procedure Code.

The application was moved in the lower court on 08/02/2007 and was granted. The case was then adjourned to 22/02/2007 for the arraignment of the appellants. The information was brought pursuant to section 22(5) of the corrupt practices and other Related offences Act, 2000 under the auspices of the Independent corrupt Practices and other Related offences Commission.

On that 22/02/2007, the appellants were duly arraigned before the lower court. Consequently, the appellants took their plea on each of the 38-count information and each of them pleaded not guilty to each of the counts. Thereafter, the appellants were admitted to bail and the matter was adjourned to 21/03/2007 for hearing

Subsequently, precisely on 16/04/2001, the appellants filed a notice of preliminary objection to the charge, contained on page 51 of the record, in the manner following:

“NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that the accused persons shall at the threshold of the hearing of this case contend that the charges therein are incompetent and on the footing thereof pray that the charges be quashed and their trial be terminated forthwith for want of jurisdiction on the part of the Honourable Court.

GROUNDS FOR THE OBJECTION

1. The case is fundamentally and fatally vitiated by non-compliance with a condition precedent to valid trial in a criminal case.
2. The charges against the accused persons do not disclose any offence known to law.
3. That proof of evidence attached to the charge sheet does not disclose any prima facie case that could justifiably warrant the accused persons being made to stand trial in respect of this case.
4. The charges are misconceived in law as the law(s) under which the accused persons are charged does (do) not apply to the circumstances of the accused.
5. The charges are oppressive, vexatious and constitute abuse of court process by reason of undue and indefensible multiplicity.”

The preliminary objection was, duly, heard on 23/07/2007.

On 26/09/2007, the lower court delivered a considered ruling thereon wherein it dismissed it for want of merit as shown on pages 84 – 88 of the record of the appeal. Sequel to that dismissal, the appellants, on 09/10/2007, filed a two-ground notice of appeal, encapsulated on pages 95 – 96, wherein they prayed the court for: “An order quashing the 38-count charges for being incompetent and discharging and acquitting the APPELLANTS”. Thereafter, parties filed and exchanged their briefs of argument in line with the rules of this court.

It is pertinent to put the record straight. This is a criminal appeal. Hence, it ought to bear a criminal appeal number with the letter ‘C’ as prefix or suffix to the figure ’74’ in the number. Incidentally, the court registry gave it a civil appeal number, perhaps unknowingly. Nevertheless, that does not make it a civil appeal nor does it affect its substance as a criminal appeal.

The appeal was heard on 24/09/2012. Prior to that date, 24/09/2012, the appeal came up on 28/06/2012 when the appellants’ counsel, Joseph Ochuko Tobi, Esq., represented them and the appeal was adjourned to 24/09/2012. On that day, 24/09/2012, learned counsel for the appellants was absent. As a result, this court, in keeping with the provision of order 18 Rule 9(4) of the Court of Appeal Rules, 2011, treated the appeal as having been duly argued. In that regard, learned counsel for the respondent, Dennis Idoko, Esq., adopted the respondent’s brief of argument, filed on 30/03/2012 but deemed filed on 28/06/2012, as representing his arguments against the appeal. Learned counsel urged the court to dismiss the appeal.

In the appellants’ brief of argument, they distilled two issues for determination of the appeal to wit