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BEFORE THEIR LORDSHIPS
MONICA BOLNA’AN DONGBAN-MENSEM, JCA
CHIMA CENTUS NWEZE, JCA
ABUBAKAR ALKALI ABBA, JCA
BATURE MANYA Appellant(s)
CRIMINAL LAW AND PROCEDURE – UNLAWFUL POSSESSION OF FIREARMS: Ingredients of the offence of unlawful possession of firearms – Proof of crime in a court without territorial jurisdiction to hear same – Nullity of conviction – Proper order
CRIMINAL LAW AND PROCEDURE – SERVICE OF WRITS:- Critical nature of service of writs – Greater significance in criminal proceedings compared to civil proceedings – Justification – Accused person entitlement to have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him except in recognised exceptions – Effect of failure thereof
CHILDREN AND WOMEN LAW:- Women and Crime/Justice Administration – Family member and criminal prosecution fallouts – Allegation that sister and mother of an accused person were the main suppliers of prohibited firearms for sale to unlicensed persons – How treated
CONSTITUTIONAL LAW – FAIR HEARING: Failure to serve processes on a party – Failure to arraign a crime suspect in a proper court with legal jurisdiction to hear the specific charge – Whether a breach of the right to fair hearing
ETHICS – LEGAL PRACTITIONER – PROSECUTION:- As officers of the court – Impugning of court records without satisfying conditions precedent for such challenge – Attitude of court thereto
PRACTICE AND PROCEDURE – ACTION – PRELIMINARY OBJECTION: Object of a preliminary objection – Procedure for filing a preliminary objection under Order 10 rule 1 of the Court of Appeal Rules
PRACTICE AND PROCEDURE – APPEAL – CHALLENGE OF CORRECTNESS OF COURT RECORD: Where a party seeks to challenge the correctness of record of court – Conditions that must be satisfied – Need to swear to an affidavit setting out the facts or part of the proceedings alleged to be wrongly stated – Whether such affidavit must be served on the Judge or Registry of the court concerned
PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION: When court can reformulate issues for determination – Conditions – Need for such reformulation of issues by the court to flow from the grounds of appeal distilled by parties and evidence before the court
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Proceedings conducted where court lacks the competence to entertain same – Whether a nullity
PRACTICE AND PROCEDURE – EVIDENCE – CONFESSION: Essence – Whether qualifies as an element of an offence – Whether a confession relieves the prosecution of the legal burden of proof for crime charged
PRACTICE AND PROCEDURE – EVIDENCE – PRESUMPTION AS TO COURT PROCEEDINGS: Whether court proceedings/certified records are presumed correct until the contrary is proved – Onus of prove – On whom lie
PRACTICE AND PROCEDURE – JURISDICTION:- Meaning and essence as the sine qua non for the existence of power to adjudicate on a matter – Whether can be raised at anytime without leave of court
PRACTICE AND PROCEDURE – SERVICE OF PROCESSES: Omission to serve processes on a party – Effect on the jurisdiction of a court – Whether renders court’s proceedings following therefrom a nullity
INTERPRETATION OF STATUTE – SECTION 4 OF THE PENAL CODE LAW: Interpretation of the provisions of section 4 of the Penal Code Law
WORDS AND PHRASES – “POSSESSION”: Definition of “possession”
WORDS AND PHRASES – CONFESSION: Definition of confession as stated in the provisions of section 28 of the Evidence Act, 2011
CHIMA CENTUS NWEZE J.C.A. (Delivering the Leading Judgment):
On July 29, 2009, at the Jalingo Division of the High Court of Taraba State, the appellant and three other accused persons were charged with the offence of illegal possession of firearms under section 5 (b) and 3 (1) of the Robbery and Firearms (Special Provisions) Act, 1990. On that day, only the pleas of three accused persons were taken. The fourth accused person was absent. Above all, only the second accused person was represented by counsel. In effect, the appellant and the first accused person were unrepresented when the court [coram: Adamu Aliyu CJ] took their plea. The court convicted them on their plea of guilty. The learned trial Chief Judge, thereafter, sentenced the appellant to ten years imprisonment without an option of fine.
Dissatisfied with the outcome of the proceedings, he appealed to this court. Six issues were formulated on his behalf for the determination of this appeal. They were framed thus:
The respondent formulated three issues which were framed in the following terms:
REFORMULATION OF THE ISSUES FOR DETERMINATION
We have, painstakingly, read the entire proceedings contained in the record. We have, also, pondered over the real grouse of the appellant as can be gleaned from the Grounds of Appeal. We are of the humble view that this is one case where this court, having properly examined the facts, should be at liberty to reformulate the issues that would resolve the main question in controversy. This is notwithstanding that the parties had formulated issues for determination, Enekwe v IMB (Nig) Ltd (2006) 19 NWLR (pt 1013) 146, 170, subject to the qualifications that the re-formulated issues must be rooted in the evidence led before the court, Musa Sha (Jnr) and Anor v Darap Kwan and Ors (2000) 5 SC 178, 189; Lebile v Registered Trustees of CSCZ and Ors (2003) 1 SC (pt 1) and must derive from the grounds of appeal, Akinlagun v Oshoboja (2006) All FWLR (pt 325) 53, 74.
Against this background, we take the humble view that issues one and two in the appellant’s brief and issues ‘A’ and ‘B’ in the respondent’s brief are sufficient to dispose of the main agitation of the appellant as contained in the Grounds of Appeal. After all, the propriety or otherwise of the sentence on the appellant [issues 4; 5 and 6 in the appellant’s brief and issue ‘C’ in the respondent’s brief] is, wholly, contingent on the question whether the lower court was right in assuming jurisdiction to try him, in the first place. So, the issues that will guide this court in the determination of this appeal are:
ARGUMENTS OF COUNSEL
Whether the High Court of Taraba State is vested with the jurisdiction to try an accused person for an offence committed wholly in Benue State
When this appeal came up for hearing on February 29, 2012, learned counsel for the appellant, adopting and relying on the appellant’s brief of argument and the reply brief, contended that jurisdiction is the blood that donates life to the exercise of any judicial power. He noted that because of its fundamental nature, the issue of jurisdiction can be raised at any time even at the apex court. Cases were cited in support of these views.
Learned counsel, further, pointed out that it is an established principle that a suspect is only triable in the place or state where the initial element, part or essential ingredient of the offence took place, Ibori v FRN (2009) All FWLR (487) 159, 192. He drew attention to the printed record where the appellant was charged with the offence of being “in possession of assorted firearms i.e machine guns, one rocket propeller, two rocket launchers, SSBG/single barrel short gun, AK 47 rifle, two grenade M36 and ammunitions without licence” on or about February 8, 2009. The record, also, showed that the firearms were recovered from the appellant at the Abinsi Riverside, Guma Local Government Area of Benue State outside the jurisdiction of the Taraba State High Court.
Attention was, equally, drawn to pages 10; 11; 12; 13; 20; 21 and 22 of the records: pages which point, conclusively, to the fact that the said firearms were recovered from the appellant at the Abinsi Riverside, Benue State. Counsel maintained that there is nothing on the record linking the appellant with the possession of firearms in Taraba State. He cited section 8 (1) of the Act (supra) as amended by the Robbery and Firearms (Special Provisions) Act [No 62] of 1999: an Act which stipulates that any offence committed under the Act shall be triable in the High Court of the State where the offence was committed, Momodu v State (2008) All FWLR 67, 102 and section 134 of the Criminal Procedure Code.
Against this background, he pointed out that the Taraba State High Court had no jurisdiction to try the appellant, for the offence was committed in Benue State outside the jurisdiction of Taraba State. Thus, the trial was a complete nullity, Onwudiwe v FRN (2006) All FWLR (pt 319), 774, 794.
Whether the arraignment of the appellant was not invalid on the ground that he was not served with the charge and proof of evidence.
On this issue, it was contended that the charge and the proof of evidence attached thereto were not served on the appellant before his arraignment on July 29, 2009. He maintained that there was nothing on the record and the file of the court indicating that the appellant was served with the charge and the proof of evidence: thereby denying him the opportunity of knowing what the prosecution witnesses were coming to say against him, Yahaya v FRN (2008) All FWLR (pt 349) 476, 489; Uket v FRN ( ) All FWLR (pt 411) 923, 937-938 and section 36 (4) of the Constitution of the Federal Republic of Nigeria. It was submitted that the omission constituted a breach of his right to fair hearing, section 36 (4) and 36 (6) (a); Uket v FRN ( ); Yahaya v FRN (supra).
It was, further, submitted that for an arraignment to be valid under section 187 Criminal Procedure Code, it must satisfy the requirement of section 36 (supra): a mandatory provision which is a fundamental rule, Odessa v FRN (2005) All FWLR (pt 282) 2010, 2029. Importantly, counsel observed that any judicial proceeding in breach of the clear provisions of the Constitution is liable to be set aside, Odessa v FRN (supra) 2032. Thus, the failure of service of the charge and proof of evidence on the appellant was a breach of the above section in that the appellant did not have the opportunity of knowing the nature and character of the evidence against him. This rendered the entire trial a nullity.
The above two issues are encapsulated in the respondents’ issue ‘A’. This was dealt with in paragraphs 3.1-4.8 [pages9-21] of the respondent’s brief.
The respondent’s main contention was that the issues of jurisdiction and invalid arraignment raised in Grounds 1, 2 and 3 of the Grounds of Appeal were never raised at the lower court and the said objections must be deemed to have been waved, citing Nasir v CSC, Kano State and Ors (2010) 2 MJSC 1, 5.
Attention was drawn to page 26, paragraphs 10 -25 of the record [proceedings of July 29, 2009] where the appellant, voluntarily, pleaded guilty; pages 20- 22 of the record for the extra judicial confession of the appellant and page 18 for the statement of one Abubakar Mohammed. It was pointed out that the appellant, by his confessional statement at the State CID Jalingo on February 13, 2009, admitted the commission of the offence of illegal possession of firearms at Jalingo. Further to this confession, the arms were recovered at the Abinsi Riverside in Benue State and brought to Taraba State, [pages13-14 of the brief].
It was further contended that during the trial at the lower court the appellant did not object to the non-compliance with or irregularity complained above. That means that he was satisfied with the method adopted by the trial court and so the argument of denial of fair hearing was unavailing, Torri v NPSN (2011) 5-7 (pt 1) MJSC 153, 157. Counsel explained that the lower court exercised its discretion to convict the appellant on his plea of guilty judicially and judiciously, Torri v NPSN (supra) 156.
The view was canvassed that the jurisdiction of the State High Court to try offences under section 272 (2) of the Constitution is not restricted to offences committed wholly within the State only. It was submitted that where an accused person who committed an offence in a State enters another State and confesses to the crime in that State, that confession would confer the State High Court to try the offence. Counsel explained that in this case the appellant bought prohibited firearms in Benue State without licence and confessed to the crime in Jalingo, Taraba State. This confession led to the recovery of the prohibited firearms. In the view of learned counsel, this admission vested the Taraba State High Court with the jurisdiction to try the appellant, citing Nyame v FRN (2010) All FWLR (pt 527) 618, 624; 627.
Against this background, counsel faulted the position of the appellant’s counsel that the Taraba High Court had no jurisdiction to try the offence. He explained that the said extra- judicial confession constituted an element of the offence. Thus, the recovery and entry of the said firearms into Taraba conferred the State High Court with jurisdiction to try the appellant. It was conceded that the Robbery and Firearms has no provision that corresponds with section 4 (a) and (b) of the Penal Code: provisions dealing with situations where the initial and concluding elements of the offence take place in two different States. To that extent, there would appear to be a lacuna in the Act. Counsel took the view that this lacuna can be filled by a mutual conflation of section 4 (a) (supra) with section 272 (2) of the Constitution, citing Nyame v FRN (supra) 627.
It was further submitted that in the event of any conflict between section 272 (2) (supra) and any other law, that constitutional provision would prevail, NUEE v BPE (2010) 2-3 MJSC 52. The point was reiterated that the entry of the firearms from Abinsi in Benue State to Jalingo vested the Jalingo High Court with jurisdiction, Nyame v FRN (supra) 624-627. Counsel disclaimed the applicability of Onwudiwe v FRN (supra) to the present appeal.
On the issue of improper arraignment, attention was drawn to the record of proceedings and that the appellant did not raise any objection to his arraignment. He voluntarily pleaded guilty and was convicted, Torri v NPSN (supra) 157. The old maxim: omnia praesumuntur was invoked in validation of the proceedings, Okeke v State (2003) FWLR (pt159) 1381; Olabode v State (2007) All FWLR (pt 289) 1301; section 151, Evidence Act and Torri v NPSN (supra) 157. The lower court had the discretion to convict the appellant under section 161 (2) of the Criminal Procedure Code having proceeded against him under the procedure for trial at the High Court enunciated in section 187 (1) and (2) of the CPC.
Counsel maintained that the issue of jurisdiction and arraignment were fresh issues. Since no leave was obtained they are incompetent. Decided authorities were cited in support of this proposition. Accordingly, Grounds 1, 2 and 3 should be struck out. It was, equally, observed that the issues were not tied to any ground of appeal, Akpan v State (1994) 9 NWLR (pt 368) 347, 356.
APPELLANT’S REPLY TO ARGUMENTS ON THE ABOVE ISSUES
First, it was observed that there are only two permissible modes of challenging the competence of an appeal, namely, by a separate notice and by notice in the respondent’s brief, Magit v UNAM (2006) All FWLR (pt 298) 1313, 1328. In this appeal, the respondent neither filed a Notice of Preliminary Objection nor was any formal Notice of Objection incorporated in the brief of argument, citing Order 10 Rule 1 of the Court of Appeal Rules, 2011.
Next, it was submitted that the issue of jurisdiction can be raised at any time, even on appeal without leave, Obiakor v State (2002) FWLR (pt 113) 229, 309; Gaji v Paye (2003) FWLR (pt 163) 1, 13; Omokhafe v MILAD, Edo State (2004) 20 NSCQR 354, 366 and a host of other cases. In effect, the issues of jurisdiction in grounds 1, 2 and 3 are valid notwithstanding that they are being raised for the first time on appeal. It was, equally, contended that the issue of non service of the charges and proof of evidence relate to jurisdiction, ANCEL v CCB Plc (2004) All FWLR (pt 209) 1039, 1036.
On whether the alleged confession of the appellant at the Police Headquarters in Jalingo constituted an element of the offence charged as argued, counsel observed that there is no evidence on record that the firearms were taken to Jalingo or that the appellant was arrested in Taraba State. Above all, the confession of the appellant does not constitute an ingredient of the offence.
It was explained that territorial jurisdiction is not conferred on a court of a State just because the State Police Command investigated the said offence. What determines the venue of trial is where the initial element or omission occurred or where the person who does the initial act or omission outside the State enters the State, afterwards, citing Njovens v State (1973) NNLR 76, 80. What is more, whether any of those circumstances exists can only be gathered from the proof of evidence and nowhere else, Nyame v State (supra). In this case, the respondent did not state which part of the initial act of unlawful possession was committed in Taraba State or which initial part occurred in Taraba State.
RESOLUTION OF THE ARGUMENTS
From the tenor of the respondent’s issue ‘A’, it is evident that the appellant’s issues one and two are subsumed thereunder. In effect, in resolving the arguments of counsel what we are called upon to do is to return answers to the issues one and two in the appellant’s brief and issue ‘A’ in the respondent’s brief. This would mean that we are, at once, embarking on the resolution of the reformulated issues one; two and three (supra) here. For clarity of presentation, however, we shall compartmentalize them under issues one; two and three, as reformulated above, first, the reformulated issue one:
Whether the High Court of Taraba State is vested with the jurisdiction to try an accused person for an offence committed wholly in Benue State
It is common ground between the parties that the appellant was charged with the offence of being in unlawful possession of certain firearms. Both the appellant and the State are unanimous on the fact that the appellant was found in unlawful possession of the said firearms in a place called Abinsi in Benue State, [see, paragraph 3.3, page 15 of the respondent’s brief; page 4 of the appellant’s brief of argument].
The respondent’s main ground for supporting the Chief Judge of Taraba State’s assumption of jurisdiction over an offence committed in Benue State was articulated in the brief of argument. For their bearing on this point, we shall reproduce the said arguments. In paragraph 3.3, page 15 of the respondent’s brief, the learned Director of Public Prosecutions contended that:
… the jurisdiction of the State High Court in trying criminal offences under section 272 (2) of the Constitution of the Federal Republic of Nigeria 1999 is not restricted to offences committed wholly in the State only, where the accused person who committed a crime in a State enters another State and confesses to the crime in that State (sic) would confer the State High Court with the jurisdiction to try the offence as in the case where the appellant bought prohibited firearms in Benue State without licence and confessed to the crime in Jalingo, Taraba State leading to the recovery of the prohibited firearms mentioned in his extra-judicial statement to the police which were confessional and the admission of the confession of the offence charged, the Taraba State High Court would have jurisdiction.
[italics supplied for emphasis]
The learned DPP cited Nyame v FRN (2010) All FWLR (pt 527) 618, 624 and 627 as authority for this proposition.
In response, learned counsel for the appellant [page 6 of the reply brief] argued that what determines the venue of trial of a suspect is where the initial element or omission constituting the offence occurs or where the person who does the initial act or omission outside the State enters the State, afterwards, citing Njovens v State (1973) NNLR 76, 80; reported also in (1973) NSCC 257. He, further, submitted that whether any of these circumstances exists can only be gathered from the proof of evidence and nowhere else, Nyame v FRN (supra).
With respect to the learned DPP, the elevation of the confession of a crime to an initial or other element of a crime is a sure pointer to a misreading of the principle so eloquently enunciated in the Njovens’ case: a case which Adekeye JSC reviewed, most admirably, in the more recent case of Nyame v FRN (supra). The DPP’s novel proposition will be re-stated here for emphasis. On pages 16- 17 of his brief of argument, he canvassed the position that:
It is therefore not in doubt that the contention of the appellant that because the offence upon (sic) which he was charged with i.e, illegal possession of firearms… was committed in Benue State, the Taraba State High Court has no jurisdiction to try him holds no water in so far as the disclosure of the commission of the offence took place at the Police Command, Jalingo, Taraba State vide the extra-judicial statement of the appellant attached to the proofs of evidence in the court of trial. Thus some of the elements of the commission of the offence i.e. the extra-judicial confessional statements leading to the recovery of the said prohibited firearms took place in Taraba State, the said firearms were recovered and brought into Taraba State and by their entry irrespective of the mode of entry conferred jurisdiction on the Taraba State High Court to try the appellant
[italics supplied for emphasis]
My Lords, the principle in the Njovens’ case, inter alia, turned on the interpretation of section 4 of the Penal Code Law. The provision reads thus:
4(1) whereby the provisions of any law of Northern Nigeria the doing of any act or the making of any omission is made an offence those provisions shall apply to every person who is in Northern Nigeria at the time of his doing the act or making the omission.
(2) Where any such offence comprises several elements and any acts, omissions or events occur which, if they occurred in Northern Nigeria would be elements of the offence, occur elsewhere than in Northern Nigeria then –
(a) if the act or omission, which in the case of an offence committed wholly in Northern Nigeria would be the initial element of the offence, occurs in Northern Nigeria, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence occurred in Northern Nigeria; and
(b) If that act or omission occurs elsewhere than in Northern Nigeria, and the person who does that act or makes that omission afterward enters Northern Nigeria, he is by such entry guilty of an offence of the same kind, and is liable to same punishment, as if that act or omission had occurred in Northern Nigeria and he had been in Northern Nigeria when it occurred.
(3) Notwithstanding the provisions of subsection (2) it shall be a defence to the charge in any such case to prove that the person accused did not intend that the act or omission should have effect in Northern Nigeria.
(4) The provisions of subsection (2) do not extend to a case in which the only material event that occurs in Northern Nigeria is the death of a person whose death is caused by an act or omission at a place outside, and at a time when that person was outside, Northern Nigeria:”
Explaining the import of the above section, Coker JSC, who read the leading judgment in Njovens’ case first confessed that: “[a]dmittedly section 4(2) of the Penal Code Law is not easy to construe”.
That notwithstanding, in his characteristic adroit style, His Lordship proceeded to deconstruct the inelegantly- worded provision in this lucid and felicitous style. Listen to this:
The section is concerned with an offence that comprises of (sic) several elements and identifies these elements with ‘acts, omissions or events’. It is clear therefore that the ‘element’ in the section is more widely conceived and is not and should not be limited to either an actus reus or the mens rea in conventional criminal jurisprudence. The ‘initial element’ to which reference is made in the section is the initial act or omission concerned and for the purpose of applying section 4(2) it is necessary to look for that `initial element’. If (a) that ‘initial act or omission’ occurs in the State even though the other ‘elements’ do not, the person who does that ‘initial act or omission’ is punishable by the State under the Penal Code; on the other hand, if (b) that ‘initial act or omission’ occurs outside the State, the other or others occurring within the State and the person who does that ‘initial act or omission’ afterwards enters the State, he is by such entry triable by the State under the Penal Code.
The erudite jurist, further, elaborated on the nuances of the section thus:
Section 4(2)(b) of the Penal Code Law which deals with cases in which the ‘initial element’ occurs outside the State, does require that the person who does that act or omission should ‘afterwards enter’ the State before being triable or punishable under the Penal Code.
Placing reliance on the authoritative work on the Penal Code: Man Gledhil, The Penal Codes of Northern Nigeria and the Sudan page 775, on the meaning and effect of section 4 (2) (supra), His Lordship opined that:
Section 4(2) of the Penal Code Law does not deal with venue but with guilt and it would be doing violence to its purpose and import to construe it with an eye on excluding rather than asserting the applicability of the Penal Code. The principles embodied in this section are well known and are universally recognized, see R. v. Ellis (1899) 1 Q. B. 230; also The Mg v. Oliphant (1905) 2 K. B. 67.
Simply put, the said section 4 (2) is concerned with an offence that consists of several elements. In Nyame v State (supra), pages 45-46, Adekeye JSC, who read the leading judgment of the apex court, approvingly restated the above interpretation of the said section.
Interestingly, Adekeye JSC in the said case [page 46] laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon:
Whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offences charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried. Now as shown above, the learned DPP, would seem to rank an accused person’s confession equipollently with “an element of the offence”. At page 17, he contended that “some of the elements of the commission of the offence i.e. the extra-judicial confessional statements leading to the recovery of the said prohibited firearms took place in Taraba,” [page 17 of the brief].
Employing the guideline enunciated by Adekeye JSC at page 46 of Nyame (supra), we shall proceed to resolve the issue by identifying the offence charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offence occurred in the particular place [Taraba State] where the accused person was tried.
To start with, the offence in question is “illegal possession of assorted firearms under section 5 (b) and 3 (1) of the Robbery and Firearms Special Provisions) Act 1990”, [see, page 1 of the respondent’s brief of argument]. Section 3 (1) (supra) came up for interpretation in the recent case of State v Oladotun (2011) All FWLR (pt 586) 399, 412. Mukhtar JSC endorsed the submission that the ingredients of the offence of unlawful possession of firearms are:
(a) That the accused was found in possession of firearms;
(b) That the firearms was within the meaning of the Act;
(c) That the accused person has no licence to possess the firearms.
The eminent law Lord defined possession to mean “something you have with you at a particular time”, see, State v Oladotun (supra) 422.
On its part, the Evidence Act, 2011 defines a confession in section 28 [formerly, section 27 of the repealed Act] as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
One irrefutable proposition emerges from the statutory definitions of the substantive offence of unlawful possession and the word “confession” in the adjectival Evidence Act. It comes to this: while possession is a constitutive aspect of the offence of unlawful possession, a confession, as an admission or acknowledgment of the prohibited conduct, is always subsequent to the consummation of the constitutive ingredients or elements of an offence. Its effect is to relieve the prosecution of the legal burden of proof, Adeniji v State (2001) 13 NWLR (pt 730) 375; Hassan v State (2001) 15 NWLR (pt 735) 184; Okeke v State (2003) 15 NWLR (pt 842) 25; Nwachuchukwu v State (2002) 12 NWLR (pt 782) 543; Torri v NPSN (2011) 13 NWLR (Pt 1264) 365, 380-381. In effect, a confession does not qualify as an “element of an offence” as, tendentiously, canvassed by the learned DPP.
In answer, therefore, to the submission of the learned DPP, we take the humble view that a “confession” is not a constitutive ingredient or element of the offence of unlawful possession. Above all, the Njovens principle does not apply to the facts of this case. Worse still, the learned DPP’s submission is a complete distortion of the said principle! A look at pages 10; 11; 12; 13; 20; 21 and 22 of the record inter alia would reveal that the appellant and the prosecution’s witnesses, whose statements were reproduced on the above pages, were all agreed that the said firearms were recovered in a place called Abinsi Riverside in Benue State. For example, on page 22 of the record, the appellant, in his additional statement, stated thus:
I humbly wish to make an additional statement as follows: that the two arms, i.e AK 47 Riffle Gun and the single Barrel short gun including One Hundred and Eighty-Three rounds and AK 47 live ammunitions and forty-eight cartridges were recovered in my house at Abinsi Riverside
Indeed, as the learned DPP maintained at page 13 of the brief of argument: “the second accused person, sister and mother are the main suppliers of prohibited firearms for sale to unlicensed persons including the appellant by their agent, Sarki Azetu at Abinsi, Benue State”
We, therefore, entirely, agree with the learned counsel for the appellant that Benue State, and not Taraba State, was the appropriate venue for the trial of the appellant, Momodu v State (2008) All FWLR 62, 102. The net effect is that Adamu Aliyu CJ, wrongly, assumed jurisdiction in Taraba State in trying an offence which, wholly, took place at the Abinsi Riverside, Benue State. The offence was committed when, without licence, the appellant bought the said firearms at the Abinsi Riverside in Benue State and retained them in his possession. We now move to the twin issues of:
Whether the arraignment of the appellant was not invalid on the ground that he was not served with the charge and proof of evidence
Whether Grounds 1, 2 and 3 of the Grounds of Appeal alleging want of jurisdiction and invalid arraignment of the appellant are fresh issues which can only be raised with the leave of court
Relying on the case of ANCEL v CCB Plc (2004) All FWLR (pt 209) 1039, 1036, the appellant contended that the issue of non-service of the charges and proof of evidence relates to the question of jurisdiction.
Counsel maintained that the charge and the proof of evidence attached thereto were not served on the appellant before his arraignment on July 29, 2009. He insisted that there was nothing on the record and the file of the court indicating that the appellant was served with the charge and the proof of evidence. The appellant was thus denied the opportunity of knowing what the prosecution’s was all about, Yahaya v FRN (2008) All FWLR (pt 349) 476, 489; Uket v FRN ( ) All FWLR (pt 411) 923, 937-938 and section 36 (4) of the Constitution of the Federal Republic of Nigeria. It was submitted that the omission constitutes a breach of his right to fair hearing, section 36 (4) and 36 (6) (a); Uket v FRN ( ); Yahaya v FRN (supra).
Counsel pointed that every arraignment under section 187 Criminal Procedure Code must satisfy the requirement of section 36 (supra): a mandatory provision which is a fundamental rule, Odessa v FRN (2005) All FWLR (pt 282) 2010, 2029. Importantly, counsel observed that any judicial proceeding in breach of the clear provisions of the Constitution is liable to be set aside, Odessa v FRN (supra) 2032.
For the respondent, it was contended that the appellant did not object to the non-compliance with or irregularity complained above. That is to say, that he was satisfied with the method adopted by the trial court and so the argument of denial of fair hearing is unavailing, Torri v NPSN (2011) 5-7 (pt 1) MJSC 153, 157. The learned DPP noted that a perusal of the record of proceedings would show that the lower court complied with the mandatory requirements of section 187 (1) and (2) of the CPC.
RESOLUTION OF THE ARGUMENTS
With due respect, the learned DPP’s submission that the appellant did not object to the non-service of the charge and proof of evidence is a total negation of a fundamental legal principle in our accusatorial jurisprudence.
This principle, simply, stated comes to this: service of processes on a party is so fundamental that its absence may affect the jurisdiction of the court and render a court’s proceedings a nullity. A perusal of all binding authorities on this point would show that failure to serve a party the relevant processes in proceedings is a fundamental omission which will render the proceedings and any judgment predicated on it a nullity, Sken Consult (Nig) Ltd v Ukey (1981) 1SC 6; Mark v Eke (1997) 11 NWLR (pt 529) 501; UBA Plc v Ajileye (1999) 13 NWLR (pt 633) 116; Umuwali Trans Nig Ltd v O. A. Trans (Nig) Ltd (1998) 6 NWLR (PT 555) 684; also, per Mukhtar JSC in Olorunyolemi v Akhagbe (2010) 8 NWLR (pt 1195)48, 60. This is even more so in a criminal trial where an accused person is entitled to have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him except in recognised exceptions, Durwode v State (2001) 7 WRN 50.
Contrary to the submission of the DPP that the appellant’s argument of denial of fair hearing is unavailing, we hold that the correct position is as Onnoghen JSC held in Olorunyolemi v Akhagbe (supra) at 62 that lack of service of the processes on a party constitutes a fundamental defect in the proceedings as it is a breach of the right to fair hearing of the party who was not served, see, also, Yahaya v FRN (2008) All FWLR (pt 349) 476, 489. In further response to the issue on non-service of the proof of evidence, the learned DPP, also, invoked section 151 (1) of the Evidence Act [then applicable to the proceedings] and the Latin maxim omnia praesumuntur in support of his contention that all things are presumed to have been legitimately done until the contrary is proved.
There can be no doubt that the said maxim is well known and has, always been applied where the circumstances warrant its invocation and application, see, for example, Okeke v State (2003) FWLR (pt 159) 1381; Olabode v State (2007) All FWLR (pt 287) 1301 and, indeed, section 151 of the Evidence Act [then applicable to the proceedings] [now, section 168 (1) of the 2011 Evidence Act]. However, we regret to say that unlike Ali Baba’s open sesame or magical command for unlocking all doors or the Vedic mantra, the maxim is not applicable in this instance where the question relates to non-service of charge and proof of evidence. Indeed, there is authority for the proposition that it is a misconception to invoke the maxim or section 151 (supra) in the context of this question. It was as if Mukhtar JSC had the learned DPP’s contention in mind when His Lordship held in Olorunyolemi v Akhagbe (supra) at page 80 that:
At any rate, there is no evidence that the appellants were served with any of the controversial processes of court, and to say that the provision of section 151 (1) of the Evidence Act (supra) can be invoked is a misconception. The fact that a party was in court on the day a matter is slated to come up is not necessarily a confirmation that the party was actually served … There must be actual proof of service on the necessary parties i.e. the evidence of receipt vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service
[italics supplied for emphasis], see, also, Habib Nigeria Bank Ltd v Wahab Opomulero and Ors (2000) 15 NWLR (pt 690) 315.
Like the learned counsel for the appellant, we have plumbed the records compiled for this appeal and we regret to announce the futility of our efforts as we could not pinpoint any such evidence of receipt of the charge and proof of evidence by the appellant or his counsel or an affidavit of service of the said processes. The fact that the appellant, who was not represented by counsel, did not raise that legal point of the competence of the court to put him through the rigours of trial when he had not been served with the charge and proof of evidence should not preclude him from doing so now on appeal. As Pats-Acholonu JSC held in Elugbe v Omokhafe (2004) 18 NWLR (pt 905) 319 at 336:
[It is] one of our cardinal principles of jurisprudence that where a party either due to some carelessness or oversight overlooked a legal point bordering on the competence of a court at the earliest moment or opportunity, he should not be stopped or barred from raising that point at a later date…after he might have discovered the mistake. Jurisdiction being a fundamental gateway to an assumption of power can be raised at any time as the practice is not immutable. It is a sine qua non for the existence of power to adjudicate on a matter
See, also, Alao v C. O. P. (1987) 4 NWLR (pt 64) 199; State v Onagoruwa (1992) 2 NWLR (Pt 221) 33; Ifegwu v FRN (2003) 15 NWLR (Pt 842) 113. We, therefore, agree with the submission of the counsel for the appellant that the issue of service is jurisdictional and constitutional and is not capable of being waived.
Now, as the appellant, rightly, contended, issue “A” in the respondent’s brief and paragraphs 3.6 [page 19]; 4. 7 (sic 3.7), page 20]; 4.3 [page 24]; 5.3, page 32]; 6.0 (e) and (h), pages 36 and 37 of the said brief] which purport to challenge the competence of certain grounds of appeal and issues raised thereon is, totally, misconceived. We endorse the appellant’s submission that the argument represents a complete misunderstanding of the law. In the first place, the above submission overlooks the fact that the decision culminating in this appeal was a final decision of Adamu Aliyu CJ (sitting at the Jalingo Division of the High Court of Taraba State]. Thus, there was a determination of that court within the meaning of section 318 (1) of the Constitution: a final decision of that court that convicted and sentenced the appellant. Surely, the appellant’ s counsel, rightly, contended that an appeal shall lie as of right in respect of any such decision by virtue of section 241 (1) (a) of the Constitution, I. O. Smith, The Constitution of the Federal Republic of Nigeria Annotated (Second Edition) (Lagos: Ecowatch Publications Ltd, 1999) 267, citing Rabiu v State (1981) 2 NCLR 293. That section provides that:
241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance…
[italics for emphasis]
What is more, by Order 10 Rule 1 of the Rules of this court, any respondent who intends to challenge an appeal shall do so by filing a Notice of Preliminary Objection. The said Order provides that: “A respondent intending to rely upon a preliminary objection to the hearing of an appeal, shall give the appellant three clear days notice thereof before the hearing, setting the grounds of the objection”, Kaydee Ventures Ltd v Hon Minister, F. C. T. (2010) All FWLR (pt 519) 1079, 1094.
However, the respondent, in practice, is often permitted the indulgence of incorporating the said objection in the brief of argument. There is, however, a snag here: at the hearing of the appeal, he must seek and obtain leave to move the preliminary objection before the adoption of briefs of argument, if not the objection would be deemed to have been abandoned, Umar v White Gold Ginnery Nigeria Ltd (2007) All FWLR (Pt (pt 358) 1096; also, reported in (2007) 7 NWLR (pt pt 1032) 117; Arewa Texties Plc v Abdullahi and Bros Musawa Ltd (1986) 6 NWLR (pt 554) 508; Ajide v Kelani (1985) 3 NWLR (pt 12) 248.
The explanation for this is simple: the object of a preliminary objection is to truncate the proceedings in limine since it impugns the competence of the court to entertain the appeal. It is, only logical, therefore, that when the court is confronted with such a challenge to its competence, it must dispose of that question before broaching any issue in the substantive appeal, Umar v White Gold Ginnery Nigeria Ltd (2007); Tiza v Begha (2005) All FWLR (pt 272) 200; also, reported in (2005) 15 NWLR (pt 949) 616). In this appeal, the learned DPP did not file a Notice of Preliminary Objection as contemplated by Order 10 (supra), Kaydee Ventures Ltd v Hon Minister, F. C. T. (supra). He, in the alternative, did not incorporate the notice in the respondent’s brief. Rather, as the counsel for the appellant pointed out, [page 2 of the appellant’s reply brief] “the respondent’s sundry objections are tucked away in arguments under the various issues he formulated for determination,” [the objections appear in paragraphs 3.6 [page 19]; 4. 7 (sic 3.7), page 20]; 4.3 [page 24]; 5.3, page 32]; 6.0 (e) and (h), pages 36 and 37 of the said brief] which purport to challenge the competence of certain grounds of appeal and issues raised thereon].
Quite apart from the above shortcomings, the respondent elided any reference to these sundry objections before the adoption of the briefs of arguments, that is, before the hearing of the appeal. We shall, therefore, accept the appellant’s invitation to discountenance the said objections, Adelakun v Ecu-Line (2006) All FWLR (pt 321) 1213; Jaiyeola v Abioye (2003) 4 NWLR (pt 810) 397; Odu v Agbor-Hemeson (2003) 2 NWLR (pt 804) 355; UBA v ACB (2005) 12 NWLR (pt 939) 232; Goji v Ewete (2001) 15 NWLR (pt 737) 273; NEPA v Ango (2001) 15 NWLR (pt 737) 627; Onyemeh Egbuchulam (1996) 5 NWLR Pt 448) 255; Kotoye v Saraki (1991) 8 NWLR (pt 211) 638 etc.
Whether the appellant who was convicted on his voluntary plea of guilty suffered any miscarriage of justice.
The respondent devoted paragraphs 4.1 – 4.7, pages 21 -28 of the brief in elucidating their contention that there was no miscarriage of justice on the appellant since he pleaded guilty voluntarily. Many cases were cited in support of the arguments advanced on this issue.
The short reply to this argument is that since the learned Chief Judge, wrongly, assumed jurisdiction to try an offence that, on the face of the relevant processes, was committed, wholly, in Benue State, His Lordship laboured in vain as he embarked on a sham proceeding which, for all intents and purposes, was a travesty of our accusatorial justice system. There can be no miscarriage of justice that could more grievous than a court without jurisdiction trying and convicting an accused person. After all, it is settled on the authorities that a proceeding conducted where the court lacks the competence can only result to a nullity, Nigerian Army v A. Kano (2010) All FWLR (pt 532) 1805, 1808; State v Onagoruwa (supra); Okafor v A. G., Anambra State (1991) 6 NWLR (pt 200) 659; Alao v C.O. P. (supra). In such a situation, where upon the admitted facts, the accused person could not have been tried and convicted for want of jurisdiction, the accused person is entitled to complain on appeal notwithstanding his voluntary plea of guilty, Essien Akpan Essien v King (1956) VIII WACA 6, approvingly adopting the rule which the English Court of Criminal Appeal laid down in Rex v. Forde (1923) (1); see, also, O. A. Onadeko, The Nigerian Criminal Trial Procedure (Lagos: Lannon Nig Ltd, 1998) 231. This is quite apart from his constitutional right to appeal as of right against a final decision of a High Court that convicted and sentenced him, section 241 (1) (a) of the Constitution. We cannot conclude this judgment without addressing the awkward approach which the learned DPP adopted in his purported attempt at challenging the record of proceedings. At pages 7-8 of his brief, he observed thus:
The respondent wish (sic) to draw the attention of the Honourable Court to the record of proceedings compiled by the appellant and served on us … The said record of proceedings as per the proof of evidence are (sic) not a true reflection of the extra-judicial statement of the appellant and other co-accused in the court below. For instance pages 18-19 is (sic) only part of the cautional (sic) statement of Abubakar Mohammed the principal accused. The first page and beginning of his statement was (sic) deliberately omitted in the compilation of the records. Secondly, the cautional (sic) statement of the appellant to the Police at page 20 the main statement is not a full text of the statement, the concluding part of the statement is deliberately omitted by the appellant. This is evident by the fact that the proofs of evidence filed did not contain typed cautional (sic) statements but the handwritten statement of the appellant to the Police. Thirdly, vital words used by the appellant in his cautional (sic) statement were omitted…
With respect, the learned DPP should know better: that the integrity and sanctity of court proceedings, including judgments and rulings, are presumed until the contrary is proved, Odiase v Agho (1972) 1 All NLR (pt 1) 170; Fororunsho v Adeyemi (1975) 1 NMLR 128; Balogun v Adejobi (1995) 2 NWLR (pt 376) 131.
It is this principle that dictated the rule that the court and parties are bound by the records as certified: certified records which are presumed correct unless the contrary is proved, Gonze (Nig) Ltd v NERDC (2005) 13 NWLR (pt 943) 643, 646.
A party who intends to impugn or challenge the correctness of the records, therefore, must swear to an affidavit setting out the facts or part of the proceedings as wrongly stated in the record. Such affidavit must be served on the Judge or Registry of the court concerned, Ehikoya v C.O.P. (1992) 4NWLR (pt 233) 57; Sommer v F.H.A. (1992) 1 NWLR (pt 219) 548; Texaco Panama Inc v SPDC nig Ltd (2002) 5 NWLR (pt 759) 209; Gonze (Nig) Ltd v NERDC (supra) 646.
The learned DPP opted for an option unknown to law in his attempt to impeach the records as certified and transmitted for this appeal. Little wonder then why the appellant decided not “to join issues with the respondent on this unfortunate allegation, made on the pages of a brief of argument”, [page 7 of the reply brief].
In all, we endorse the submission of the appellant’s counsel that this appeal is meritorious. On page 19 of the appellant’s brief, this court was urged to set aside the conviction and sentence of the appellant. From all we have said, thus far, that is the only logical thing to do. We, hereby, allow the appeal and set aside the judgment of Aliyu CJ. Appeal allowed and the conviction and sentence of the appellant are, hereby, set aside. We order that the case file should be forwarded to the relevant authorities in Benue State for their necessary action.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.:
I agree with the lead Ruling prepared by my learned brother Nweze JCA and I adopt same as mine
The fundamental nature of jurisdiction has always stood out like a sore thump, in the case of the Governor of Kwara State & 2 Ors. v. Jerome Oladele Dada (2011) 14 NWLR Pt.1267 pg. 384 at 403, my lord Justice JSC held that:
“Jurisdiction of a Court in the process of adjudication is very fundamental. It should be determined at the earliest opportunity. If a Court has no jurisdiction to hear and determine a case, its proceedings remain a nullity ab initio no matter how well conducted and decided. A defect incompetence is not only intrinsic but also extrinsic to the entire process of adjudication. (Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 66; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508)”.
His Lordship however, cautioned that every Superior Court of record must be guided by the principle to guard it jealously.
In the instant appeal, the learned Hon. trial Chief Judge, should have seen clearly that territorially, his lordship was totally out of jurisdiction inspite of the plea of guilt of the Appellant. The Appellant should, in fact, have not been asked to take a plea since he was not properly arraigned in accordance with the law – he was in the wrong judicial Jurisdictional territory.
The dictum of Coker cited and relied upon referred to the elements, those things which constitute the offence, not a confession after the offence has been committed (This point is well taken in the lead Ruling, I need not belabour the issue).
This appeal succeeds to the extent that the decision of the trial Court is hereby set aside being a nullity.
It is hereby ordered that the Ministry of Justice Taraba State, Jalingo shall, in, conjunction with the Police and under the authority the High Court of Taraba State transfer the case me to the Ministry of Justice Benue State, Makurdi for the trial of the accused person on the merit.
ABUBAKAR ALKALI ABBA, J.C.A.:
I agree with the lead Judgment of my learned brother Hon. Justice C. C. Nweze. I also allow this appeal and set aside the Judgment of the lower court. I also order that this case file be remitted to Benue State Ministry of Justice for necessary action.