Category: Law

In the Court of Appeal
Port Harcourt Judicial Division
Holden at Port Harcourt
On Thursday, 17 June 2021

Before Their Lordships:

Oludotun A. Adefope-Okojie, Jca
Yargata Byenchit Nimpar, Jca
Mohammed Baba Idris, Jca

Between

Edward Alex Hart

And

Inspector-General of Police

(Lead judgment delivered by Honourable Justice Yargata Byenchit Nimpar, JCA)

The Appellant was arraigned before the Federal High Court, Port Harcourt Court, on a six-count charge of conspiracy, forgery; and obtaining money under false  pretense, in that between January and December 2006, the Appellant conspired with others (now at large), to obtain money under false pretense, by collecting the sum of N25,356,000.00 (Twenty Five Million, Three Hundred and Fifty Six Thousand Naira) from commercial motorcycle operators (Okada), by holding out himself as the accredited revenue collector by the Rivers State Board of Internal Revenue; amongst other offences.

He was alleged to have committed an offence contrary to, and punishable under Section 2 (a and b) of the Miscellaneous Offence Act, Cap. M17, Laws of Federation of Nigeria, 2006.

The trial Court found the Appellant guilty and convicted him of the offences and sentenced him to 7 years imprisonment on each of the count, to run concurrently.

?Dissatisfied, the Appellant lodged an appeal to the Court of Appeal.

Issue for determination:

Whether failure of the trial Judge to include questions asked during Examination-in-Chief, Cross-Examination and Re-examination in the Record of Proceedings is a breach of Section 36(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Appellant’s right to fair hearing/trial, and if so, is the entire proceeding before the Court is a nullity?

Counsel’s Argument:

The Appellant answered this issue in the affirmative and argued that the Courts have a duty to record proceedings which is regarded as a right towards fair hearing as enshrined in Section 36(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It was the submission of the Appellant that the trial Judge failed to record all the questions asked during examination-in-chief and cross-examination during proceedings, the trial Judge only recorded answers to the questions asked, this the Appellant challenged by an affidavit filed on 24 August 2020.

The Appellant also submitted that the trial Judge omitted significant answers given by PW2 at Pages 279 -280 and 355 of the Record of Appeal.

The Appellant relied on Anyanwu v. State (2002) LPLER-517(SC), and Oxford Advanced Learner’s Dictionary, 7th Edition Page 1364 to define the word “Scrupulously”, which means careful about paying attention to every detail and careful to be honest and do what is right.

He said it is clear that the trial Judge did not scrupulously keep record of the proceedings. Relying on Candide-Johnson v. Edigin (1990) LPELR-20108(CA), the Appellant submits that the failure of the trial Judge to include questions asked during examination-in-chief and cross- examination in the Record of Proceedings is a breach of Section 36 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Appellant’s fair hearing and as such the entire proceeding before the Court is a nullity.

The Appellant urged the Court to resolve this issue in his favour.

Decision of the Court and reason:

The court reiterated that the complaint of the Appellant is that what he took down in the course of the proceedings at the trial Court is not in the Record of Appeal.

Does the Court work with Counsel Record or notes or what the Court below has in its record, which was duly transmitted by the Registrar of the Court? Their lordships relied on Yamo Nig Ltd v. Access Bank (2017) where the court had cause to say thusly: “Now, from the grounds supporting the application reproduced earlier, it is clear that the Applicants are challenging the Record of Proceedings. Parties are free to contend at one time or the other that the Record of Proceedings is not a true reflection of what actually transpired in Court.

“This is usually referred to as a challenge to the Record of Proceedings and at that point, the party who raises such objection is duty bound to prove his contentions. It must however be noted that there exists in law, a presumption of regularity in favour of the Certified Record of Proceedings transmitted to this Court by the parties.

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“Any party challenging such Record of Proceedings is duty bound to prove such allegations. In other words, it is the sole duty of the party contending that the Record of Proceedings is not a fair record of what happened at the lower Court to formally impeach same.’’

The Court was therefore reluctant to use the additional records which are simply the notes of Counsel as record in determining this appeal when the Record of Appeal has not been impeached according to law. And furthermore, the judgment cannot be a nullity on the basis of a record which has not been impugned and which is presumed correct and duly certified.

Outrightly, the Appellant left out a significant step necessary in the process of challenging a Record of Appeal which is to serve the Court below.

It was observed that the Appellant proceeded to compile and file Additional Record from his notes and not from the Registrar of the Court below. Even in doing so, he emphasised on the recording of questions asked as witnesses were taken.

To learned Counsel, the trial Judge must record every question and answer given. The notes or recording of a Judge could be a summary of what transpired and not necessarily a word for word recording of the proceeding, the Court so held.

The case of Udo v. State (2006) LPELR-3298 (SC), was relied upon, where the Apex Court in considering a similar complaint held: “A Judge is not enjoined to record every little detail of what transpires in a proceeding, whether criminal or civil.

“The important thing is to record all those salient and relevant proceedings that are necessary to lead to a just determination of a case. The crucial requirement is substantial justice in the real sense of it, so much so that no miscarriage of justice is occasioned.

“I agree that in a criminal case such as this, where the life of a human being is in jeopardy and at stake, a Judge cannot be too careful in his adjudication or compliance with the provisions of the law, but wasting time on procedure that does not lead to miscarriage of justice is not advocated.”

This issue was resolved against the Appellant.

Representation:

Clifford N. Chuku – for the Appellant

A.A. Ewas – for the Respondent

Reported in (2021) Modern Weekly Law Reports (MWLR) pt 40, p 1681-1783. Modern Weekly Law Reports (MWLR is a publication of Doyen Law Publishers Limited.

A High Court of the Federal Capital Territory (FCT) has faulted the manner Magistrate  M. A. Sadeeq handled the case involving a lawyer and ex-staff of Afe Babalola’s law firm in Abuja, Mrs. Bridget Emengo

The High Court of the FCT, in a judgment on an appeal by  Mrs. Emengo, held that the lower court erred in refusing to strike out the charge against appellant after holding that his court lacked jurisdiction to hear the case.

Mrs. Emengo’s appeal was against a November 11, 2021 ruling by  Magistrate Sadeeq of the  Magistrate Court of the FCT in Wuse Zone 6, who held that his court lacked the jurisdiction to try Mrs. Emengo for the offences of conspiracy, perjury and defamation contained in a charge brought against her by the police.

The police had filed the charge against her shortly after she sued her ex-employer and some principal officers of the firm before the National Industrial Court to challenge the manner she was relieved of her employment.

Based on the charge, the police arrested Mrs. Emengo,  detained her for days and later arraigned  before Magistrate Sadeeq.

She pleaded not guilty to the charge, applied for bail and and challenged the court’s jurisdiction to entertain the charge against her via a notice of preliminary objection.

She claimed among others, that her arrest and arraignment before the magistrate court was intended by the defendants in her suit before the Industrial Court to prevent her from prosecuting the case.

Mrs. Emengo argued that the police’s decision to charge her with defamation based on the averments supporting her suit before the Industrial Court was not supported by any known law.

On November 11, 2021, Magistrate Sadeeq, rather than determine the merit or otherwise of the objection by Mrs. Ebengo, declined jurisdiction to entertain the charge, but decided to transfer it to the court’s registry for reassignment, a decision the defendant appealed against before the High Court of the FCT.

In its judgment on Mrs. Emengo’s appeal, a two-member panel of the High Court of the FCT, held that Magistrate Sadeeq was wrong to have on his own raised and determined the issue of his court’s jurisdiction without hearing from parties in the case.

Justice A. I. Akobi, in the lead judgment, held that Magistrate Sadeeq was equally in error to have transfered the charge to the court’s registry for reassignment having found that his court lacked the jurisdiction to try the defendant/appellant for the offence charged.

Justice Akobi, who was supported by Justice A. Y. Shafa, said: “l agree in its entirety with the submission of the appellant, which is the law, that a citizen of this country can only be tried, convicted and sentenced for an offence created and known to law.

“Thus, no citizen ought to be subjected to trial, conviction and sentence for any alleged offence not created by law.

“What a judge or magistrate should do when such situation present itself, is to strike out the charge or First Information Report (FIR) as the case may be for offending section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria as amended.

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“I, therefore, hold that the appellant or any other citizen of Nigeria cannot be intimidated by way of criminal allegation for exercising his tight to access the court.

“In the instance case, the lower court approbate and reprobate by admitted having jurisdiction to hear the FIR and then turned round to decline jurisdiction and sent the case file for re-assignment to court with jurisdiction.”

On the appellant’s contention that Magistrate Sadeeq was wrong to raise the issue of jurisdiction suo motu (on his own), Justice Akobi held that  the position of the law was that jurisdiction, being a threshold issue, could be raised at any stage of proceedings.

He added: “Bearing in mind the right of the parties to fair hearing provided for in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria, a court may raise the issue of jurisdiction suo motu, but must give the parties an opportunity to be heard in respect thereof.

“Failure to call on the patties to be heard on the issue suo motu raised by the court as in this case is a breach of fair hearing guaranteed under section 36(1)} of the Constitution.

“In the light of the above, I hereby hold that the lower court err in law when it raise the issue of jurisdiction suo motu, proceeded to make an order based on it, without giving the parties an opportunity to be heard. That is a breach to their fundamental right to fair hearing.”

On the appellant’s contention  that the magistrate erred in referring the charge for reassignment, Justice Akobi held there was no known law that permits a magistrate court to refer a case, in respect of which it lacked jurisdiction, for reassignment.

Justice Akobi said: ” The only exception that may arise, in my own view, is where a statute, creating the court, allows for the court to transfer a matter it has no jurisdiction to another court with jurisdiction.

“In this case, I am not aware and unable to lay my hands on any statutory or judicial authority permitting the lower court to transfer a case before it which he declines jurisdiction to hear to the registry for reassignment to a court of competent jurisdiction and I am not refered to any authority to justify the action of the lower court.

“What the lower court (magistrate court) would have done, after declining jurisdiction to hear the FIR, was to strike out the FIR to afford the prosecution another opportunity of coming before a court with competent jurisdiction to try the case.

“The law is that once a court declines jurisdiction to entertain a suit or matter in both criminal and civil matter, the only step it can take in that circumstance is to make an order striking out the suit.

“Any other order or pronouncement made by the court, after declaring that it lacks jurisdiction to entertain a suit, will be null and void and of no effect.

“In the light of the above, this appeal succeeds and I make the following orders:

• An order setting aside the ruling of the lower court dated the 11th day of November 2021 on which it assumed jurisdiction over the FIR without proper examination of the proof of evidence.

• An order setting aside the ruling of the lower court dated the 11th  day of November 2021 wherein it suo motu declined jurisdiction to entertain the offence of perjury in the FIR without first hearing from the parties.

• An order setting aside the order of the lower court sending the case file to the registry after declining jurisdiction to be assigned to a court of competent jurisdiction.

• This case is hereby sent back to be heard by another magistrate.”

A Lagos High Court sitting at Badore, Ajah, Lagos has adjourned further hearing in a land tussle between a real estate company, A4 Realty Ltd and Access Bank Plc till December 14.

The court had, on November 13, discharged an interim order restraining the defendants from disturbing the plaintiff’s possession rights pending the determination of the main suit.

Justice Ganiyu Safari ordered all parties to maintain the status quo pending the determination of the suit.

The Nigeria Police Force, the Inspector-General of Police, the Economic and Financial Crimes Commission (EFCC), Trebesak Nigeria Ltd and the divisional police officer (DPO) of Ilasan Police Station are the other defendants.

At the last hearing, the court had granted an application by counsel for A4 Realty Ltd, Mr Gbenga Ajala, who applied to join Trebesak, which allegedly previously bought the land from Access Bank, and the DPO, Shem Olorunfemi, a superintendent of police over his alleged partisan involvement in the dispute.

The land in contention is at Plot 1, Block XXE, Ojomu Chieftaincy Layout, Ajiran, Eti Osa Local Government Area, measuring approximately 5000 square meters.

The plaintiff alleged that the bank sold the land to it for N500 million sometime in 2021 and executed a valid deed of assignment and other titles.

But, Access Bank claimed that it sold the land to the plaintiff in error as it had sold it to Trebesak Nigeria in June 2018.

In a nine-paragraph affidavit deposed to by Mrs Opelusi Olubukola, the company secretary of the claimant stated: “Since the payment of the purchase price of the land known and being at Plot 1, Block XXE, Ojomu Chieftaincy Layout, Ajiran, Eti Osa Local Government Area of Lagos State by the claimant to the first respondent, the first respondent has been taking some discrete steps to interfere with the constitutional right of the plaintiff over the property.

“Sometime in August 2023, I was in the property on an inspection tour with some investors who are partnering with the applicant to develop the property and some group of men approached us claiming to be from the first respondent.

“The said men who refused to identify themselves claimed they came to inspect the land with a view to selling it to another buyer.”

Olubukola further averred that she briefed the claimant’s Managing Director, who also confirmed that he had noticed a similar discreet move.

Her fear was confirmed on October 3 when she visited the land in the company of prospective investors and saw uniformed men suspected to be policemen on patrol on the land.

She averred further: “The applicant strongly suspects the first respondent’s act of gazumping must have resulted in the recent threat to take over the property of the applicant located at Plot 1, Block XXE, Ojomu Chieftaincy Layout, Ajiran, Eti Osa Local Government Area of Lagos State.

“Based on these threats, the applicant approached the court to enforce its fundamental human rights to own property pursuant to the Fundamental Human Rights(Enforcement Procedure) rules 2009, the Constitution of the Federal Republic of Nigeria, 1999(as amended), and the African Charter of Human and Peoples Rights (Ratification and Enforcement Act) cap A9 Laws of the Federation of Nigeria.”

But the bank countered the claimant’s claim, contesting that the sale of the land was in error, having sold to Trebesak Nigeria Ltd long before the sale to the claimant.

In a 24-paragraph affidavit deposed to by Felix Elugbadebo, a staff of the first respondent, Access Bank countered the pleadings of the claimant as “false and do not represent the facts of the case”.

The bank staff averred thus: “I know for a fact that the land measuring about 5,000 square meters situate at Plot 1, Block XXE. Ojomu chieftaincy family layout. Ajiran, Eti-Osa LGA, Lagos State does not belong to the applicant as same had been sold to Trebesak having purchased the subject from the first respondent as far back as June 2018; I know for a fact that the subject property was sold to the applicant per incuriam.”

He stated further: “Sometime in 2009, a first respondent’s customer, Primewaterview Limited, approached the first respondent for a credit facility to finance the purchase and acquisition of 10 hectares of land at Maiyegun Beach from Westcom Technologies and Energy Services Limited, as well as the completion of the residential development situate at Plots 1 & 2 of Block XXE within Ojomu Chieftaincy Family Layout. Ajiran, Eti-Osa, Local Government Area of Lagos State;

“The first respondent, on the strength of the request, granted a time loan facility in the sum of N4.5billion and a term loan facility in the sum of N3 billion.

“The time loan facility as well as the term loan facility availed to Primewaterview Limited, secured with the following:

“i. Legal Mortgage over 10 hectares of land at Maiyegun Waterfront, along Lekki Epe Expressway. Eti-Osa Local Government Area of Lagos State;

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“ii. Legal Mortgage over property situate at Plots 1 & 2 of Block XXE within Ojomu Chieftaincy Family Layout, Ajiran, Eti- Osa Local Government Area of Lagos State; and

“iii. Personal Guarantee of Mr. Tunji Ogunwusi, CEO of Primewaterview Limited.

“d) The Deeds of Legal Mortgage over Plot 1 and Plot 2. Block XXE within Ojomu Chieftaincy Family Layout, Ajiran, Eti-Osa Local Government Area of State was registered at the Lagos State Lands Registry, Alausa, Ikeja, Lagos as No. 99 at Page 99 in Vol. 2027 and No. 100 at Page 100 in Vol. 2027 respectively.

“However, at a point, Primewaterview Ltd could not defray the loan facilities it took from the bank and therefore offered to sell the land to a third party.

“Primewaterview Limited, upon realising it could not defray its indebtedness to the first respondent, thereafter informed the first respondent of its intention to dispose of the mortgaged properties in a third party known as Vestril Limited with whom Primewaterview Limited was desirous of entering into a Joint Development Agreement;

“Pursuant to this, the first respondent exercised its power of sale and sold the mortgaged properties to Vestril Limited for the sum of N5.9 billion which was paid into the account of Primewaterview Limited to liquidate the debt;

“However, sometime in 2017, Vestril Limited informed the first respondent of its intention to withdraw from the sale due to the difficulty it faced in taking possession of the mortgaged properties because of Primewaterview Limited’s refusal to grant it vacant possession of the mortgaged properties;

“The first respondent was constrained in the circumstance to reverse the sale to Vestril Limited and to look further in search of a new buyer.

“Consequently, a new buyer was found, and the mortgaged properties were sold to another purchaser, Trebesak for the sum of N5.86 billion.

“The proceeds realised from the sale of the mortgaged properties to Trebesak was applied in making the refund to the account of Vestril Limited.”

The deponent said despite the transfer of sale, Primewaterview could not execute a transfer to Trebesak, which led to litigation before a Lagos High Court.

The judgment was in favour of Trebesak and court bailiffs executed the judgment and handed over the land to Trebesak.

The company, according to the averment, had been in possession since 2018.

The deponent acknowledged that the bank received N500 million from the applicant for the same property.

“The first respondent admits that the sum of N500,000,000.00 was originally paid to it by the applicant under the erroneous impression that the subject property was available for sale, whereas, in fact, the title and possession in the subject property resided (and still resides) in Trebesak.”

Based on the orders of status quo issued by the court, Access Bank, Trebesak and the public are not permitted to exercise any right over the property or otherwise deal in it.