COURT OF APPEAL: PO On Criminal Matter Must Be Heard And Determined First

The court of Appeal of Nigeria, Kaduna Division has held that Preliminary Objection touching on jurisdiction in criminal matter must be heard and determined first by court before proceeding with the substantive matter. The decision was made in Ibrahim Shehu Shema V FRN appeal no. CA/K/432/C/2018 on the 5^th day of February, 2019.

Background Facts

The appellant was arraigned before the Federal High Court Katsina on 26 count charges bordering on money laundering. He pleaded not guilty to all the charges. He thereafter caused a motion on notice to be filed on the 8^th day of April, 2018 wherein he prayed for the quashing of all the charges on the ground of abuse of court processes and non-disclosure of prima facie case among others. The parties adopted their written addresses and advanced arguments in respect of their stand points. The learned trial judge after hearing the parties did not rule on the application, rather he deferred the ruling and stated that the said ruling shall be delivered together with the final judgment.

The Appellant was thoroughly dissatisfied with the decision of the lower court and therefore appealed to the Court of Appeal.

Issues for determination

The appellant’s brief of argument was settled by J. B. Daudu, SAN whereas that of the Respondent was settled by S. T. Ologunorisa, SAN

The Court of appeal adopted the two issues framed by the Respondent viz:

One

“Having regard to sections 396(2) and 221 of the Administration of Criminal Justice Act, whether the trial court was not right when it deferred its rulling on the appellant’s application filed on the 18^th day of April, 2018 challenging the validity of the charges”

two

“Having regard to the circumstances of this case, whether sections 396(2) and 221 of the Administration of Criminal Justice Act, 2015 violate the provisions of sections 6 and 36 of the 1999 Constitution of the federal Republic of Nigeria (as amended)”

Legal arguments on issues

Learned senior counsel for the appellant, submitted that the application of the appellant at the lower court centred on jurisdictional issues and therefore the lower court was bound by law to consider and rule on it promptly. He relied on Commissioner for Wporks, Benue State V. Devcom Ltd (1988)3 NWLR (PT. 83) 407 at 419. The Learned senior counsel for the appellant reproduced the provisions of section 396(2) and 221 of the ACJA and contended that the categories of objections in which the ruling of the lower court could be deferred were those that dwelt on the validity of the charge sheet (that is, imperfect or erroneous charge) but the appellant’s application was predicated on abuse of court process and no-disclosure of prima facie case.  Thus, the ACJA does not apply in the instant case and the court was bound to consider and rule on the appellant’s application in order to protect the appellant from the injustice of being made to go through the hurdles and or ordeal of an incompetent trial.

In reply, the learned senior counsel for the respondent submitted, that the essence of ACJA is to “ensure among others, speedy trial and quick disposal of criminal cases in the interest of both the suspect and the society”. He relied on FRN V LAWAN (2018) LPELR-43973 (CA). Thus, the provisions of the ACJA be interpreted as a whole to get the intendment of the Act. In addition, he argued that the purpose of the ACJA is to prevent unnecessary delays in criminal trials so the Act should not be interpreted to render the legislation a futility.

The learned senior counsel for the respondent further argued that section 221 of the ACJA is short and straight forward that could not have intended to limit the types of objections to charges that could be entertained or taken during proceedings. He called in aid AUSTIN V FRN (2018) LPELR-44552 (CA) and DETSRA INVESTMENT LTD V FRN (2018) LPELR-43883 (SC). He argued that sections 221 and 396(2) were put in place to prevent the earlier trend of accused persons who tend to file frivolous interlocutory applications and in the process stifling and or stultifying the progress of the trial. Thus he urged the court to resolve the issue in favour of the respondent.

In reply, the learned counsel for the appellant argued that the right to fair trial of an accused person and the need for court to avoid abuse of court process cannot be sacrificed on the altar of speedy disposal of criminal trials. Appellants contention was that sections 396(2) and 221 of ACJA cannot override the provision of section 6 of the constitution.

THE DECISION OF THE COURT

The court began by reproducing the provisions of the ACJA as follows:

Section 221 of ACJA.

“Objections shall not be taken or entertained during proceeding or trial on the ground of an imperfect or erroneous charge.“

Section 396(2) of ACJA

“After plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgement provided that such objection shall only be to the information or a charge has been read, it shall only be considered along with the substantive issues and a ruling thereon be made at the time of the delivery of the judgment”

The court held that the provisions above are clear and unambiguous and they indicate the nature of objections channeled against a charge or information against an accused person, and not those founded on other grounds such as jurisdiction.

The Court held that ruling on PO that touches on jurisdiction cannot be deferred until judgment. It added that sections 221 and 396(2) of the Administration of Criminal Justice Act which make provision for objections to be considered along with substantive matter and ruling be made thereon at the time of delivery of judgment do not apply to objections that relate to court’s jurisdiction. It held:

“looking at the issue at hand from another angle, the question that comes to mind is that: if the objection raised by an accused person/defendant (as the case may be) was that he had earlier on been tried on the same subject matter and was acquitted/convicted by a court of competent jurisdiction, would it still be justifiable and indeed constitutional for the learned trial judge to put the accused person to mill and rigour of a whole burdensome, lengthy, and often tedious and expensive process of trial; at the end of the day to then rule that the whole trial is unconstitutional, improper and/or abuse of power/court process? Certainly, the accused person in that regard and under such dispensation, would have suffered the wrong he intends to prevent before his constitutional right would have been duly considered. Thus, I do also agree with the learned senior counsel for the appellant, that deferring the ruling on the objection raised against a criminal proceedings which are predicated on constitutional ground(s) and other jurisdictional issues; (as done in this case) to the stage of conclusion of the trial and or time of delivery of judgment, is unconstitutional and breach of the appellant’s breach of fair hearing”

Having resolved issue one in favour of the appellant, issue two was rendered academic. The appeal succeeded and the decision of the lower court deferring his ruling was set aside.