IN THE MAGISTRATE COURT OF RIVERS STATE OF NIGERIA IN THE PORT HARCOURT MAGISTERIAL DISTRICT HOLDEN AT PORT HARCOURT
BEFORE CHIEF MAGISTRATE BLESSINGS VIC-JUMBO ESQ SITTING AT CHIEF MAGISTRATE COURT 12 PORT HARCOURT
SUIT NO. PMC/1015/CS/2021
MACOBARB INT’L LTD & ANOR V. NLNG & 2 ORS
RULING ON PRELIMINARY OBJECTION
The Complainants brought a Written Complaint on oath against the Defendants pursuant to Sections 88, 89 & 90 R/S ACJL. Same was filed on the 10/08/2021. Then on 08/09/2021 when the matter came up for Mention this court in line with Section 89 (5) R/S ACJL referred the Complaint to the State Criminal Investigation Department (SCID) PH for investigation and gave the Police 21 days to investigate and report back to court its findings. On the next sitting being 04/10/2021 one Police Inspector U. Obasi representing the Officer-in-charge of Legal of the SCID PH informed the court that they are in receipt of the Order of this court directing the investigation of the Complaint but that they need more time. Time was extended as the earlier 21 days had elapsed. This case was further adjourned to the 04/10/2021. By the 15/11/2021 the Police was still not in court to give its report. On the 25/11/2021 when the matter again came up for Mention the Police was still not in court and no report sent to the court despite the fact that in keeping with the Order of this court the counsel for the complainants had sent a written notification of the date to the Police. Counsel therefore relying on S.124 R/S ACJL applied that summons be Issued and served on defendants to appear before this court. That application was granted in line with S.122(1)(b) ACJL. After the summons was issued, on the next date being 09/12/2021 the defendants through legal representation appeared in court with a preliminary objection already filed on the 08/12/2021. That preliminary objection is the subject of this Ruling.
The objection prayed as follows:
A. An order quashing the Complaint and Summons Number PMC/1015/CS/2021- Macobarb International Ltd & Anor V. Nigeria LNG Ltd & 2 ORS in its entirety for being a nullity and for lack of jurisdiction of this Honourable court.
B. An order discharging the Defendants/Applicants.
C. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the objection stands are that the court lacks jurisdiction to entertain the complaint and issue the summons for reasons that the complaint has not disclosed any probable cause of action, there is noncompliance with condition precedent as in SS 122(1) and 89(5) ACJL and that the Complaint borders on breach of contractual obligations which is civil in nature therefore not a basis for criminal charge.
The Applicants/Objectors in their written Address in support of their objection raised a lone Issue for determination to wit: “Whether this Honourable court ought to quash Summons No PMC/1015/CS/2021-Macobarb Int’l Ltd & Anor V. Nigeria LNG Ltd & 2 ORS for lack of jurisdiction?”. Several grounds were fronted and arguments advanced in support of their prayers. Particularly at paragraphs 4.4 & 4.12 of the Applicants’ address they identified the main fabric of their objection as — failure to comply with condition precedent as in S.89(5)R/S ACJL. Secondly, that the Particulars of offence does not prima facie disclose the commission of any crime by the Applicants. Plethora of authorities were cited in aid of their arguments.
In countering the Objection the Complainants/Respondents did on the 15/12/2021 file a
Counter -Affidavit of 13 Paragraphs and also a written Address wherein two (2) issues for determination were identified and contended to wit:
1. Whether actions founded on the same transaction may constitute criminal element giving rise to criminal trial and civil element giving rise to civil trial at the same time and whether both the criminal proceedings and civil proceedings founded on the same transaction can validly proceed simultaneously In different or even In the same court.
2. Whether it is not the prosecution or complainant’s Particulars of the offence
Accompanying the summons that determine whether there is prima facie criminal element founded in the summons.
The Complainants’/Respondents’ counsel also relied on several case law authorities to buttress his arguments on the issues raised. Paragraph 5 of the Respondents Address is in answer to the Applicants’ Address.
The applicant filed their reply on points of law on 20/12/2021 in response to the complaints counter affidavit and filed a further affidavit of 13 Paragraphs.
I have perused all the Processes filed with regards to this Application. I also take cognizance of the records of Court. In view of all these, the only issue that I consider for determination is that submitted by the Applicants but even that is with modifications. Put aptly the issue that calls for determination is: “Whether on the strength of the material facts before this Court the Application of the Defendants/Applicants has merit”
In deciding this Application I am mindful of the fact that this is a Preliminary Objection, therefore I warn myself not to fall into the temptation of delving into the substance of the Complaint before me.
The premise of this application as seen from the grounds of the Application is that the Court failed to comply with the condition precedent set out at S.89 (5) R/S ACJL. I am bound by my records and can validly take judicial notice of the course of proceedings of this court vide S. 122 (2)(m) EVIDENCE ACT. In line with S. 89(5) R/S ACJL this court indeed made an order on 08/09/2021 referring the Complaint before the court to the Police for investigation. After the referral of the Complaint to the Police to investigate same, on the 25/11/2021 the court was moved by the joint readings of S. 122 (1) and 124 to issue a summons against the defendants. This is also in tandem with the provision of S.110 (1) (b) R/S ACJL.
On the strength of the foregoing it is without any equivocation that the plank of the Objection on the basis that there was lack of compliance with due process of law is misconceived as the records of court speak for Itself that the court acted In cognizance of S. 89(5) ACJL in referring the Complaint to the Police and also acted within the law in issuing summons against the defendants thereafter.
As it pertains to whether prima facie there is any disclosure of criminality in the complaint before the court, I hold that it is premature and will be prejudicial to take any in-dept analysis. However, the complaint has been referred to the police to do its investigation after this court had on 08/09/2021 been addressed on the nature of the complaint. By the complaint, the offence alleged is brought under section 419 CRIMINAL CODE LAW and the caveat in paragraph 3 of that section is noteworthy. The case of EGUBE v. FRN (2020) 11 NWLR (Pt. 1734) 103 @ 128 para D-G, 129 E; FRN v. MAMU (2020) 15 NWLR (Pt. 1747) 303 are also instructive.
Consequent upon the foregoing I hold that there is no merit whatsoever in the application to quash the complaint and summons issued even as there is no foundation on which to hinge the discharge of the Applicants/Defendants. Accordingly the sole issue raised by the Applicants is resolved against them. The Respondents’ issue one is premature and not of moment to this Application.
On the whole, the Preliminary Objection is over-ruled with cost of N5, 000.00 in favour of the Complainants. I make no further orders.
This is my Ruling.
Case is adjourned to the 24th February, 2022 for Further Mention.
DATED THIS MONDAY THE 7TH DAY OF FEBRUARY, 2022.
Blessings Vic-Jumbo, Esq.