*Strikes Down Motion Signed With Prefix “f”, Rules: “Once It Cannot Be Said Who Signed A Process, It Is Incurably Bad”
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The Court of Appeal sitting in Lagos has held that a preliminary objection founded on the jurisdiction of a trial court, including one alleging abuse of court process, must be heard and determined before arraignment in a criminal trial, and that the defendant need not be physically present while it is argued.
Delivering the lead judgment on Friday, 6 February 2026 in Victor Ukutt, Esq. v Federal Republic of Nigeria & 3 Ors, Appeal No. CA/LAG/CR/936/2025, reported as (2026) LPELR-83342(CA), Honourable Justice Frederick Oziakpono Oho, JCA, held that deferring such an objection to a stage after arraignment is unconstitutional and a breach of the right to fair hearing.
He sat with Honourable Justices Olasumbo Olanrewaju Goodluck and Abdul-Azeez Waziri, who both concurred. The appeal was allowed and the ruling of the Federal High Court, Lagos, set aside.
How The Matter Arose
The appellant, together with the second to fourth respondents, was charged with conspiracy, conversion, obtaining money by false pretence, forgery, failure to conduct due diligence, and retention of proceeds of criminal conduct.
The dispute has its origin in a Joint Venture Agreement entered into on 7 July 2006 between the nominal complainant, Mr. James Onyemenam, and the third respondent, by which the complainant became a director and shareholder of Woobs Resources Limited.
In 2006 the company was granted a concession to design, finance, construct and operate a modern market, the Nigerian Army Shopping Complex at the Lagos-Ikeja cantonment, for a term of 24 years, after which it would be handed over to the Nigerian Army. The company was created as a special purpose vehicle to protect the interests of both parties, and the complainant signed the concession agreement on its behalf as project manager and director.
By a board resolution of 3 July 2006 the complainant and the third respondent were made co-signatories to the company’s accounts, the complainant as signature A and the third respondent as signature B. Resolutions passed the same day joined the Joint Venture Agreement to the company’s memorandum and articles, and replaced the third respondent’s sister on the board with the complainant.
On 21 October 2011, the appellant and the third respondent were alleged to have conspired to forge a board resolution which was used to change the account mandate at the second respondent bank and remove the complainant as a co-signatory.
The complainant informed the bank that he remained the majority shareholder and chief executive, advised it not to change the mandate, and published a caveat emptor notice in a national newspaper on 16 February 2016. The bank nonetheless changed the mandate, removing him as a signatory and, it is alleged, opening the way for the funds in the company’s accounts to be converted.
The complainant applied to the Federal High Court, Lagos, to enforce a final arbitral award. The court declined to set aside the award or to grant a stay of execution, and an appeal against that decision was dismissed. He petitioned the Economic and Financial Crimes Commission, and subsequently the Inspector-General of Police and the Deputy Inspector-General. According to the record, the third respondent and his family left Nigeria after the commission began its investigation and are now based in the United States.
The trial court ordered the appellant and the second to fourth respondents to appear on the next adjourned date for arraignment, directing that after the charge had been read, and before plea was taken, the defendants might then move their objection to the charge. The appellant appealed.
The Unsigned Motion
The first issue was whether a motion on notice filed by the prosecution was competent, the motion paper having been signed with the prefix “f” before the name of counsel.
The court held that the position is settled. Sections 2(1) and 24 of the Legal Practitioners Act prohibit the signing of court processes by persons not licensed to practise law in Nigeria, and a process signed by such a person is fundamentally defective and robs the court of jurisdiction, citing Okafor v Nweke, SLB Consortium Ltd v NNPC and later authorities.
“The prefix ‘f’ is universally known to mean ‘for’ or ‘on behalf of’. In the instant Court process, it is clear that someone other than M. B. Abubakar signed the Court process and there were no indications of who signed for the said M. B. Abubakar,” the court held.
It applied the Supreme Court’s statement in SLB Consortium that “once it cannot be said who signed a process, it is incurably bad,” and held that the affixing of the Nigerian Bar Association seal did not cure the defect, since there was still no indication of who had signed.
Abuse Of Process Is A Jurisdictional Question
On the second issue, the court first established the character of the objection.
It described abuse of process as a proceeding “wanting in bona fides and frivolous, vexatious or oppressive,” involving “some bias, malice, some deliberateness and some desire to misuse or pervert the course of justice,” and noted that the categories are not closed, with multiplicity of actions between the same parties on the same issue being one manifestation.
Relying on Dingyadi & Anor v INEC & Ors, Saleh & Ors v Mattawale & Ors and Usman v Baba, the court held that “all issues of abuse of Court process are jurisdictional issues,” and that once satisfied that a proceeding before it is an abuse, a court has the power and indeed the duty to dismiss it.
It added that the burden lies on the party alleging abuse to establish it beyond doubt on the affidavit and processes before the court.
Subsisting Orders Must Be Obeyed
Applying that to the facts, the court found that the amended information had been instituted in the face of valid and subsisting judgments and orders of the Federal High Court, the Court of Appeal and the Supreme Court, and alongside pending suits and appeals concerning the ownership of shares in, and the funds of, Woobs Resources Limited.
Referring to orders made in an earlier Federal High Court suit and affirmed on appeal, the court held that they remain “effective and binding” on the prosecution, which was a party to them.
“The options available to the 1st Respondent are either to await the determination of that suit or to lodge an appeal with a view to having the order vacated or set aside; but certainly not to institute the present criminal Amended Information in obvious defiance of the said order merely because it was made in a civil suit. It ought not to be so. An order of Court remains an order, sacrosanct as it were, whether made in a civil or criminal case.”
The court held that the institution of the information in those circumstances “cannot but constitute an improper use of the judicial process to unduly interfere with, if not undermine, the efficient and effective administration of justice,” and that the competence of the information was therefore impaired by a feature preventing the trial court from exercising its jurisdiction, within the principle in Madukolu v Nkemdilim.
It further noted the pendency of proceedings before the Federal High Court, Abuja, seeking to restrain the police and the Attorney-General of the Federation from investigating and prosecuting in respect of the company’s finances, the same exercise being handled by the Economic and Financial Crimes Commission.
The Reach Of Sections 221 And 396(2)
Turning to the provisions relied upon by the trial court, the Court of Appeal held that they do not bar a jurisdictional inquiry before arraignment.
“The settled position of the law is that the clear provisions of Sections 221 and 396(2) of the Administration of Criminal Justice Act, 2015, though well intended, do not in any way hinder the lower Court from investigating and considering the issue as to whether or not it has jurisdiction to entertain the Amended Information pending before it before arraignment,” the court held.
“Where there are fundamental issues that affect the jurisdiction of the lower Court raised in the objection, it behoves on the lower Court to first decide whether it has jurisdiction or not before embarking on its proceedings. Strictly speaking therefore, deferring the objection raised against the Amended Information which is predicated on jurisdictional issues to the stage of after arraignment is unconstitutional and a clear breach of the Appellant’s right of fair hearing.”
In the concurring judgment the point was put in similar terms: “Sections 221 and 396(2) of the Administration of Criminal Justice Act, 2015 is not an amorphous provision. It is only restricted to objections as to the defect in the charge or information. Where the objection is as to jurisdiction, as in the instant case, it must be resolved at the earliest opportunity. An objection hinged on jurisdiction should not be deferred; it must be resolved expeditiously whenever it is raised.”
The court relied on Nanle v Federal Republic of Nigeria, in which it had held that by the interpretation rule, where a specific thing is mentioned another is excluded, so that while section 396(2) requires a court to defer a decision on an objection to the charge until the end of the substantive case, an objection to jurisdiction in some other way must be decided at the earliest stage.
It also cited Shema v FRN, where a ruling deferred to judgment under the same provisions was set aside because the objection fell outside their contemplation, and Kanu v FRN, where the court held that “once the question of jurisdiction is raised, it must be resolved before any further step is taken in the proceedings.”
“To do otherwise and wait until arraignment in this case would result in a breach of the Appellant’s right to fair hearing, by putting him through a trial that might be entirely unjustified,” the court said.
State v Amos And State v Boniface Distinguished
The court held that the authority on which the trial court relied had been misapplied.
“The lower Court, relying on the case of State v Amos, that the Appellants should present themselves for arraignment and at the time of arraignment or plea before the Appellants can raise objection, was obviously quoted out of context,” it said.
It explained that State v Amos was decided on the old Criminal Procedure Code of Northern Nigeria applicable in Adamawa State, which allowed objection at the time of arraignment, whereas “under the Administration of Criminal Justice Act, 2015, it allows objection relating to jurisdiction to be taken before arraignment and plea.”
The court added that even under the repealed Code there was no stipulation as to when a defendant might file and argue an application challenging jurisdiction, and that State v Boniface and State v Amos were sister matters decided under that repealed Code rather than under the Act.
Presence Of The Defendant Not Required
On what the court described as the crux of the appeal, namely whether the personal attendance of the defendants at the hearing of the preliminary objection was necessary, the court held that it was not.
It relied on Fawehinmi v Attorney General of Lagos State (No. 1), in which it held that the presence of the accused is not necessary at the hearing of an objection to the jurisdiction of the trial court.
“There is thus a significant demarcation between the hearing of a preliminary objection to a charge before plea is taken to the charge, and proceedings from the time plea of a Defendant is taken to the charge and thenceforward to the delivery of judgment in a criminal case,” the court held.
“In the latter case, a Defendant must be physically present in Court unless, for supervening reasons, he is excused by the Court from personal attendance in Court, while in the former case, dealing with the hearing of preliminary objection to the charge, a Defendant need not be physically present in Court at the hearing of the Preliminary Objection to the charge, which can be moved by his Counsel in his absence.”
It cited Moradayo v FRN in support.
The Duty To Terminate Incompetent Proceedings
Citing Uzoho & Ors v National Council on Privatisation & Anor, the court restated that where on the face of the proceedings a court is incompetent, it should take note of its own incompetence and decline jurisdiction even where the question has not been raised by the parties, since otherwise the incompetence “will always remain an indelible blemish and stain the garments of the proceedings.”
“Hence, the earlier it is raised, the better, in order to prevent a waste of judicial time, resources and undue physical and mental exertion,” the court said, adding that it would be injudicious to embark on arraignment and a full trial “only for the trial Court to make a u-turn, upon the realisation that it ought not to have engaged in criminal proceedings in the first place.”
In his concurring judgment, Honourable Justice Waziri said the court below “was not properly guided to have failed, refused and/or neglected to comply with the doctrine of stare decisis to have declined jurisdiction,” and observed that lower courts are admonished by the apex court and by the Court of Appeal “not to have the gluttony of assuming jurisdiction when there is none.”
The appeal was allowed and the ruling of the Federal High Court set aside.
Appearances
Dr. A. I. Layonu, SAN, appeared with Chief Nelson O. Imoh, Mr. F. O. Akpuogwu and Mr. U. K. Williams for the appellant.
Mr. M. B. Abubakar, Director of Public Prosecutions of the Federation, appeared with Mrs. E. T. C. Emezina, Assistant Chief State Counsel, for the first respondent. Mr. Ayodele Akintunde, SAN, appeared for the second respondent, and Mr. Femi Falana, SAN, with Miss Modupe Omo Ekpadi, for the third and fourth respondents.
This decision draws a line through one of the most contested areas of criminal practice since the Administration of Criminal Justice Act came into force, and defence practitioners will read it as a significant recovery of ground.
Section 396(2) was enacted to stop a familiar abuse. Before 2015, defendants routinely filed objections to charges and then appealed every ruling on them, so that trials of serious offences stalled for years without a single witness being called. The provision answered that by requiring an objection to a charge to be taken after plea, with the ruling delivered at the time of judgment. The difficulty is that the provision has since been read by some trial courts as covering every species of objection, including objections that have nothing to do with the contents of the charge.
The court’s answer is a construction point of the plainest kind. Sections 221 and 396(2) speak to objections to a defect in the charge or information. Where the complaint is not that the charge is badly drawn but that the court has no power to try the matter at all, the provisions are not engaged, and the ordinary rule applies: jurisdiction is the foundation of adjudication, and a court must satisfy itself that it has jurisdiction before taking any further step. The concurring description of the sections as not amorphous, and restricted to defects in the charge, is the sentence practitioners will cite.
The characterisation of abuse of process as jurisdictional is what carries the objection across that line here, and it matters because abuse of process is an increasingly common complaint in a system where the same commercial dispute may generate arbitration, civil suits, appeals and a criminal information simultaneously. The court’s treatment of that pattern is pointed: a prosecution that proceeds in the teeth of subsisting orders, on the footing that those orders were made in civil proceedings, misunderstands what an order of court is. The remedy for a party bound by an inconvenient order is an appeal or an application to set it aside, not the institution of a criminal charge.
The ruling on presence is the most immediately practical part of the judgment and resolves a real difficulty. The trial court’s order, that the defendants must appear for arraignment and could argue their objection only after the charge had been read, presented a defendant with a choice between submitting to a process he says is a nullity and being treated as absconding. The distinction the court draws, between proceedings before plea, which counsel may conduct alone, and proceedings from plea to judgment, at which the defendant must be present unless excused, restores a workable position and follows a line of authority running back to Fawehinmi. Its significance is not confined to this case; it will be relied upon by every defendant challenging jurisdiction on grounds of extraordinary rendition, territorial competence, immunity or abuse, and by those unable or unwilling to surrender while a threshold question remains undecided.
Two cautions belong alongside the celebration this decision will attract in defence circles. The first is that the judgment does not reopen the door to objections to the charge itself, which remain governed by section 396(2), and a practitioner who dresses a complaint about the drafting of a count as a jurisdictional objection should expect little sympathy. The second is that the distinction between the two will now be litigated, and trial courts will have to decide, at the threshold, whether an objection is truly jurisdictional or merely presented as such. That is a modest burden compared with the alternative the court identified, which is a full trial conducted by a court that had no business conducting it.
Finally, the ruling on the motion signed with the prefix “f” is a reminder that has nothing to do with the substantive point and everything to do with daily practice. A process signed by an unidentifiable person is incurably bad, the Bar Association seal does not cure it, and the rule applies to the prosecution as it applies to everyone else.
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