DANIEL v. F.R.N
(2020)LCN/14056(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 27, 2020
CA/IB/258C/2019
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Nonyerem Okoronkwo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
OTUNBA JUSTUS OLUGBENGA DANIEL APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
DEFINITION OF A NO CASE SUBMISSION
A no case submission has been explained in a plethora of decisions of the Supreme Court and duly followed by this Court. A No case submission means no more than, that, at the close of evidence by the prosecution, the evidence on the facts has not made out a prima facie case which would require the accused person to enter a defence. In other words, there is no evidence, which even if the Court believed the evidence adduced, it could convict. It has therefore been held that, in determining whether or not a prima facie case has been made out or not, the Court should consider:
(a) from the evidence adduced, whether all the essential elements of the offence charged have been made out;
(b) whether or not the evidence adduced by the prosecution has or has not been discredited in cross-examination or is manifestly unreliable that no reasonable Court or Tribunal could safely convict on it.
It therefore means that, where an essential element of the offence charged has not been established by the evidence adduced by the prosecution; or the evidence adduced by the prosecution is manifestly unreliable in that it has been discredited in cross-examination, so that no reasonable Court or Tribunal would rely on such evidence to convict, a no case submission would be made and duly upheld. See Dr. Samson Edoreh & Anor v. The State (2007) LPELR – 8773 (CA); Ajiboye & Anor v. State (1995) 8 NWLR (pt.414) 408; Frank Amah v. F.R.N. (2019) LPELR – 46347 (SC) and Aituma v. State (2007) 5 NWLR (pt.1028) 466. PER TSAMMANI, J.C.A.
DETERMINANT OF A GROUND OF APPEAL
This is because, it is not the name given to it by the Appellant that determines whether a ground of appeal is one of law alone or of fact or mixed law and fact. Rather, it is the complaint embedded therein that determines what any particular ground of appeal involves. See U.B.A. Ltd v. Stahlbau Gmgh & Co. (1989) 3 NWLR (pt.110) 374 at 377; Metal Const. (W/A) Ltd v. Migliore & Or (1990) 1 NWLR (pt.126) 299 at 315; Unilorin & Ors v. Obayan (2018) 13 NWLR (pt.1635) 72 and Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR – 41822 (SC). Thus, in Allanah & Ors v. Kpolokwu & Ors (2016) 6 NWLR (pt.1501) 1, My Lord, Sanusi, JSC said:
“… It is well settled law, that a Court when faced with the task of determining whether a ground or grounds contained in the notice of appeal is or are one of law alone or mixed law and facts, it does not really depend on the label, appellation or tag given to it/them. The Court must consider or give regard to the particulars and consider them together, so as to ascertain the category to which it/they slot or fit into.” PER TSAMMANI, J.C.A.
WHEN THE ISSUE OF JURISDICTION CAN BE RAISED IN THE COURSE OF PROCEEDINGS
Of course an issue of jurisdiction can be raised at any time in the course of the proceedings and even for the first time on appeal, counsel are always reminded to remember that jurisdiction of Courts are classified into substantive and procedural. While substantive jurisdiction cannot be waived one of a procedural origin can be waived, depending on the stage of and effect on the proceedings. Thus, procedural jurisdiction can be waived save where it touches on the root of the case. See NNPC v. Zaria & Anor (2014) LPELR – 22362; Zakirai v. Muhammad & Ors (2017) 17 NWLR (pt.1594) 181 and Emerald Engineering Services Ltd & Anor v. Intercontinental Bank Plc (2010) LPELR – 19782 (CA). PER TSAMMANI, J.C.A.
WHETHER OR NOT A NOTICE OF APPEAL WITH NO VALID GROUNDS OF APPEAL IS COMPETENT
It is not in doubt that, in law, where a notice of appeal contains no valid ground of appeal, same will be incompetent and liable to be struck out. However, a notice of appeal will still be competent and valid where it contains, at least one valid ground of appeal. See Erisi & Ors v. Idika & Ors (1987) 4 NWLR (pt.66) 503 and Okon v. INEC & 2 Ors (2015) 9 NWLR (pt.1463) 113 at 144. This is because, it is trite law that issues are formulated from a ground or combination of valid grounds of appeal. Consequently, any issue formulated from an incompetent ground of appeal cannot be sustained. Such issue is equally incompetent and must be struck out. See Chief Achike Udenwa & Anor v. Hope Uzodinma & Anor (2012) LPELR – 7953 (CA); House of Representatives & Ors v. S.P.D.C. (Nig.) & Anor (2010) 11 NWLR (pt.1205) 213; Agundo v. Gberbo & Ors (1999) 9 NWLR (pt.617) 71 andTukur v. Governor of Taraba State (1997) 6 NWLR (pt.510) 549. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Ogun State High Court of Justice; coram Mabekoje, J sitting in Abeokuta in Charge No: AB/EFCC/01/2012 delivered on the 17th day of May, 2019.
The Appellant herein was arraigned in the Court below on a 32 counts information alleging sundry offences of fraudulent conversion of some parcels of land for the benefit of himself, family members and associates; knowingly making false declaration of his assets to the EFCC; using his office to corruptly confer advantage on some of his companies and stealing various sums of money being property of the Ogun State Government. The Accused/Appellant pleaded not guilty to all the counts and the case went to trial. At the trial, the prosecution called 33 witnesses and tendered 1,067 Exhibits. At the close of the prosecution’s case, the Accused/Appellant made a no case submission. The parties filed and exchanged Written Addresses in respect of the no case submission, and in a well-considered Ruling delivered on the 17th day of May, 2019, the learned trial Judge held that the no case submission
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had been made out on counts 4, 7, 8, 9, 10, 11, 13, 17, 18, 19, 20, 21, 22, 23 and 24 of the information. The no case submission on counts 1, 2, 3, 5, 6, 12, 14, 15, 16, 25, 26, 27, 28, 29, 30, 31 and 32 was refused and dismissed. The Appellant, being miffed by the said Ruling filed this appeal.
The Notice of Appeal consisting of 16 Grounds of Appeal was dated the 30/5/2019 and filed on the 31/5/2019. In obedience to the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments was filed on the 30/9/19 but filed on the 02/10/19. Therein, two issues were raised for determination as follows:
(i). Whether learned trial Judge correctly decided on the constitutional and jurisdictional issues which were raised by the Appellant during the No case submission stage.
[Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 11 and 14].
(ii). Whether having regard to oral and documentary evidence adduced/tendered, the learned trial Judge was right or wrong in his decision that a prima facie case has been made out against the Appellant in counts 1, 2, 3, 5, 6, 12, 14, 15, 16, 25, 26, 27, 28, 29, 30, 31 and 32 as to
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justify Appellant being called upon to enter his defence.
[Grounds 10, 12, 13, 15 & 16].
The Respondent’s Brief of Arguments settled by Rotimi Jacobs, SAN, was dated and filed on the 15/10/2019. Therein two (2) issues were also raised for determination as follows:
1. Whether the learned trial Judge was not right when his Lordship held that the High Court of Ogun State had both the constitutional and jurisdictional competence to entertain the Information preferred against the Appellant. [Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, and 14].
2. Whether the lower Court was wrong in holding that the Respondent (prosecution) has made out a prima facie case against the Appellant in Counts 1, 2, 3, 5, 6, 12, 14, 15.
In response to the Respondent’s Brief of Arguments, the Appellant filed an Appellant’s Reply Brief. It was dated and filed on the 22/10/2019.
Before I proceed, I wish to note that, the Respondent filed a Notice of Preliminary Objection on the 18/10/2019. The said NOTICE OF PRELIMINARY OBJECTION reads as follows:
“TAKE NOTICE that the Respondent herein intends, at the hearing of this appeal, to
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raise and rely upon a Preliminary Objection, notice whereof is given to the Appellant, to wit:
The Appellant’s appeal being an appeal against the interlocutory decision of the High Court of Ogun State, Abeokuta requires the leave of Court and since the Appellant did not seek the leave of Court before filing his Notice of Appeal, the appeal is incompetent and should be struck out by this Honourable Court.
TAKE FURTHER NOTICE that the grounds upon which the objection is brought are:
1. The Appellant’s appeal is against the interlocutory decision of the High Court of Ogun State, Abeokuta dismissing his No case submission application.
2. The grounds of appeal and their particulars contained in the Appellant’s Notice of Appeal are questions of facts or at best mixed law and facts.
3. The Appellant ought to seek and obtain the leave of Court to appeal against the interlocutory decision of the lower Court, renders the appeal incompetent and deprives this Honourable Court the jurisdiction to entertain the Appellant’s appeal.”
The Notice of Preliminary Objection was accompanied by a Written Address of four (4)
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pages. In opposition thereto, the Respondent filed a Written Reply on the 01/11/2019. On the 30/1/2020 when this appeal was heard, both parties adopted their Written Arguments in respect of the Preliminary Objection. The Respondent urged us to uphold the Preliminary Objection and strike out the Notice of Appeal but the Appellant urged us to dismiss the objection.
Now, in arguing the Notice of Preliminary Objection, learned counsel (silk) for the Respondent cited Sections 241(1) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, to contend that, the Appellant’s appeal is against an interlocutory decision of the High Court of Ogun State, Abeokuta and being so, the Appellant was under a constitutional duty to seek the leave of the lower Court to appeal. That if leave of the lower Court is refused, then leave of this Court is desired otherwise the Notice of Appeal will be incompetent. It was thus submitted that, the provisions of Sections 241(1) and 242(1) of the 1999 Constitution (as amended)are not ambiguous; and that a perusal of the record of appeal disclose that the Appellant failed to comply with the mandatory provisions of
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Section 242 of the 1999 Constitution.
Learned Senior Counsel for the Respondent went on to submit that, the Notice of Appeal clearly shows that the grounds of appeal and their particulars reveal questions of facts or at best mixed law and facts. The cases of Akindipe v. State (2008) 15 NWLR (pt.1111) 560 and Ogolo v. Ogolo (2006) 5 NWLR (pt. 972) 163 at 171 – 172 were cited in support. Furthermore, that the appeal complains about the dismissal of the no case submission. Referring to the case of Metuh v. FRN (2018) 10 NWLR (pt.1628) 399 at 411, learned senior counsel for the Respondent went on to submit that, the appeal, in so far as it complains about the dismissal of the Appellant’s No case submission are incompetent having been filed without the leave of the lower Court, or of this Court. We were accordingly urged to uphold the Preliminary Objection and dismiss the Notice of Appeal.
Arguing in opposition to the Preliminary Objection, learned senior counsel for the Respondent/Appellant, contended that, the Appellant rightly appealed directly to this Court, without leave of the Court below or of this Court. That the Appellant exercised
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such right by virtue of Section 241 (1) (b), (c) and (d) of the 1999 Constitution (as amended). It was then argued that, issues of interpretation and application of the Constitution have been raised in this appeal; and also issues of errors in the interpretation of the Criminal Code and the Land Use Act as well as their application to the facts of this case. Furthermore, that the issues of failure by the prosecution to prove the essential ingredients of the offences charged. The cases of Odunukwe v. Ofomata (2010) 18 NWLR (pt.1225) 404 at 423 paragraphs E – G and Abubakar v. Waziri (2008) 14 NWLR (pt.1108) 507 at 533 paragraph D were then cited to submit that, a person has unqualified right of appeal to this Court against the interlocutory decision of the Court below, in any of the following circumstances:
(a) The ground of appeal involve issue(s) of law alone.
(b) The ground of appeal raises issues on the interpretation and application of the 1999 Constitution.
(c) The ground of appeal involves questions on whether Chapter IV of the Constitution dealing with fundamental right of the accused person has been or is likely to be violated.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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That, any one or more of the above can ground an appeal without the need to obtain prior leave of the lower Court or of this Court. It was thus submitted that, where there is one or more valid ground(s) of appeal, the appeal is competent and that same will not be struck out. That in any case, all the grounds of appeal in the instant appeal are grounds of law. That, they complain about errors by the trial Court in the application of law and Constitution to the established or uncontested facts of the case. That, they also complain about the unconstitutionality of some of the Counts, as well as the decision of the learned trial Judge that a prima facie case has been made out against the Appellant, where there is no iota of evidence to support any of the counts on the information.
Learned counsel for the Appellant went on to submit that, some of the grounds of appeal reveal that, in arriving at the decision that a prima facie case was established against the Appellant on some of the counts, the learned trial Judge acted without evidence and in some cases, wrongly placed the burden of proof on the Appellant; thereby violating his Constitutionally guaranteed
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right to be presumed innocent, to remain silent and not to be compelled to give evidence. That in all these instances, the ground of appeal is a ground of law. The learned counsel therefore cited the case of Abdul v. C.P.C (2014) 1 NWLR (pt.1388) 299 at 322 – 323 paragraph F – H to enumerate circumstances under which a ground of appeal may be classified as a ground of law, fact or mixed law and fact.
Learned Senior Counsel then proceeded to analyses each of the sixteen (16) Grounds of Appeal to submit that, the decision in Metuh v. FRN (supra) relied on by learned counsel for the Respondent, is inapplicable to this case. That in the Metuh case, the Supreme Court found and held that the Appellant’s grievance against the lower Court’s Ruling dismissing the No case submission was based solely on scrutiny by the learned trial Judge of the evidence adduced by the Respondent (prosecution). That, it was therefore found that the appeal raised issues of facts or at best mixed law and facts. That in the instant case, the Grounds of Appeal raise issues of interpretation and jurisdiction; and also the fact that learned trial Judge misapplied
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the Law to the facts and evidence led by the Respondent. The cases of Okafor v. Nnaife (1987) 4 NWLR (pt.64) 129 and Intergrated Realty Ltd v. Odofin (2018) 3 NWLR (pt.1606) 301 at 318 – 319 were thus cited to submit that, where the facts of a previous case are fundamentally different from the facts of a latter case, the former cannot serve as a precedent in the latter case.
Learned Counsel for the Appellant went on to submit that, where a ground of appeal alleges that a Court of law misapplied the law to undisputed facts of the case, this is a ground of law. Therefore, that the complaint of the Appellant that the learned trial Judge misapplied the law to those facts, the grounds are grounds of law and not of facts or mixed law and facts. The cases of F.B.N. Plc v. Abraham (2008) 18 NWLR (pt.1118) 172 at 189 paragraph C – F and Arjay Ltd v. A.M.S Ltd (2003) 7 NWLR (pt. 820) 577 at 600 – 601 were cited in support. The cases of Nigerian National Supply Co. Ltd v. Establishment SIMA of Vaduz (1990) 7 NWLR (pt.164) 526 at 543; NICON Ins. Corp. Plc v. Gov; Kwara State (2016) 1 NWLR (pt.1493) at 212 and Heritage Banking Co. Ltd v. N.U.C. (2017)
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5 NWLR (pt.1557) 104 at 120 were also cited to submit that, the complaint of the Appellant that the Court misconstrued and misinterpreted the law, is also an error of law, and so is the complaint of wrong interpretation/misapplication of the provisions of the 1999 Constitution.
Learned Counsel for the Appellant also submitted that, the issue placed before this Court by the Appellant has nothing to do with evaluation of evidence of the prosecution witnesses. That, it is so because, as held by the Supreme Court in Oko v. State (2017) 17 NWLR (pt.1593) 30 at 55, evaluation of evidence of witnesses is not part of the business of a trial Court at the No case submission stage. The cases of Saraki v. FRN (2018) 16 NWLR (pt.1646) 405 at 437; Ekwunugo v. FRN (2009) All FWLR (pt.450) 614 and Martins v. FRN (2018) 13 NWLR (pt.1637) 523 at 543 were also cited in support, and to further contend that Metuh’s case is therefore inapplicable to this appeal.
On a final note, learned counsel for the Appellant argued that, the Appellant’s case is that, essential ingredients of counts 1, 2, 3, 5, 6 and 12 were not proved on account of the fact that the
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prosecution did not prove revocation of existing interest in the various plots of land and allocation of these same land to subsequent allotees by the Appellant. That, an essential element of corrupt receipt of payment charged in counts 25 and 27 was not established by the evidence in view of the evidence of PW32 which support the Appellant that payments were not gratification but for sub-contracts awarded to his company by the two associated companies. That evidence of officials of Ogun State on refund, reimbursements and payments of allowances discredit prosecution’s allegation of stealing monies subject of Counts 27 – 31 of the Further Amended Information. Furthermore, that lack of oral and documentary evidence to support count 32 show that essential ingredients of stealing were not proved. We were accordingly urged to determine the competence of the Notice of Appeal in favour of the Appellant and to dismiss the Preliminary Objection.
Now, the right of appeal from the decision of the Federal High Court, High Court of a State or of the Federal Capital Territory is enshrined in Sections 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999.
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The provisions that concern us for the purpose of this Preliminary Objection are Sections 241(1)(a) – (d) and 242(1) of the Constitution. For the sake of ease of reference, I endeavor to reproduce same as follows:
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;
(b) where the grounds of appeal involve questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
Section 242(1) of the Constitution on the other hand, stipulates as follows:
“242 – (1) Subject to the provisions of Section 241 of this Constitution,
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an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal High Court or that High Court or the Court of Appeal.”
It is clear that the provisions of Sections 241(1)(a), (b), (c) and (d) and 242(1) of the Constitution have created two rights of appeal, to wit: as of right or with the leave of the High Court or the Court of Appeal. There is no difficulty where the appeal qualifies as one as of right but where it is one that requires leave, and such leave is neither sought nor obtained, it will be incompetent and liable to be struck out. The circumstances under which an appeal may be brought as of right are enumerated in Section 241(1)(a) – (f) of the Constitution. As I stated earlier, for the purposes of this appeal, we are concerned with paragraphs (a) – (d) of the said Section 241(1) of the Constitution (supra). Where an appeal does not fall within any of the categories enumerated under Section 241(1) of the Constitution, leave of the trial High Court or of the Court of Appeal must first be sought and obtained. See Oyakhire v. State (2006) LPELR – 2863 (SC);
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Chief Cyprian Chukwu & Anor v. Independent National Electoral Commission & Ors (2014) LPELR – 25015 (SC) and Ugo v. Ugo (2017) LPELR – 44809 (SC).
Now, it is not in doubt that the decision subject of this appeal, is a Ruling of the trial High Court on a no case submission. The trial Court upheld the no case submission in part and called upon the Appellant to enter his defence on seventeen (17) of the 32 counts in the Information. It is the decision of the trial Court dismissing the no case submission on the 17 counts that the Appellant has appealed to this Court. There is therefore no dispute that this appeal is not against a final decision but on an interlocutory decision of the Court below. Learned Counsel for the Appellant however insisted that, though the decision is an interlocutory one, it has raised issues that touched on grounds of law alone. That they also concern errors by the trial Court in the application of law and the Constitution to established (ascertained) or uncontested facts of the case; also on the unconstitutionality of some of the counts.
Now, before I proceed, I find it necessary to reiterate what a No case submission is
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all about. A no case submission has been explained in a plethora of decisions of the Supreme Court and duly followed by this Court. A No case submission means no more than, that, at the close of evidence by the prosecution, the evidence on the facts has not made out a prima facie case which would require the accused person to enter a defence. In other words, there is no evidence, which even if the Court believed the evidence adduced, it could convict. It has therefore been held that, in determining whether or not a prima facie case has been made out or not, the Court should consider:
(a) from the evidence adduced, whether all the essential elements of the offence charged have been made out;
(b) whether or not the evidence adduced by the prosecution has or has not been discredited in cross-examination or is manifestly unreliable that no reasonable Court or Tribunal could safely convict on it.
It therefore means that, where an essential element of the offence charged has not been established by the evidence adduced by the prosecution; or the evidence adduced by the prosecution is manifestly unreliable in that it has been discredited in
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cross-examination, so that no reasonable Court or Tribunal would rely on such evidence to convict, a no case submission would be made and duly upheld. See Dr. Samson Edoreh & Anor v. The State (2007) LPELR – 8773 (CA); Ajiboye & Anor v. State (1995) 8 NWLR (pt.414) 408; Frank Amah v. F.R.N. (2019) LPELR – 46347 (SC) and Aituma v. State (2007) 5 NWLR (pt.1028) 466.
In a no case submission therefore the Court is only called upon to take note of the evidence adduced by the prosecution and rule thereon. The Court at this stage is not expected to express any opinion on the evidence before it. In other words, the question whether or not the Court believes the evidence led by the prosecution does not arise at that stage of the proceedings because the Court cannot pronounce upon the credibility or other wise of the witnesses or the weight to be attached to the evidence adduced. See Ekwunugo v. F.R.N. (2008) 15 NWLR (pt.111) 630; Atoyebi v. FRN (2018) 5 NWLR (pt.1612) 350 and Oko v. State (2017) 17 NWLR (pt.1593) 24. Generally therefore a ground of appeal challenging the decision of a trial Court on a no case submission necessarily imports a
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disagreement with the decision of the trial Court resulting from a faulty evaluation of the evidence adduced by the prosecution against the accused and the conclusion thereon which the Appellant alleges is wrong. This is because, there is no way the trial Court can reach a conclusion whether or not a prima facie case has been established which would require the accused person to at least proffer same explanation without considering the evidence adduced by the prosecution. That is why M.D. Muhammad, JSC in the case of Metuh v. F.R.N. (2018) 10 NWLR (pt.1628) 399 at 411 paragraphs E – H as follows:
“In deciding whether or not the lower Court is right in its finding regarding the appeals, it is incumbent to examine the grounds upon which the appeals are founded. A perusal of the grounds clearly indicates that all the grounds are complaints against the trial Court’s findings of fact on the various counts in the charge the Appellants are arraigned for. Serially in its ruling… the trial Court has asked and answered the relevant questions as to whether or not the Respondent has led evidence of the facts which prima facie show that the
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Appellants have committed the offences with which they are charged to warrant their being asked to enter their defence. The queries, which these grounds of appeal are against the trial counts’ scrutiny of the evidence led by the Respondent cannot, certainly, by any stretch of imagination be said to be questioning the trial Court’s application of the law to ascertained facts. The trial Court must first assemble the facts relevant in the proof of each of the counts in the charge before deciding that proof of the Court has prima facie been attained by the Respondent. Indeed it is the disagreement as to the existence or otherwise of these facts at the end of the prosecution’s case that led to the no case submission of the Appellants, the dismissal of which informs the two appeals. In the circumstance; these facts cannot be said to be ascertained.
It is to be further noted that, contrary to what the Appellant assert, none of the grounds of appeal challenges the trial Judge’s conduct of the proceedings before him. The entire grounds revolve around the trial Court’s faulty evaluation of the evidence proffered by the Respondent
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against the Appellants and the supposedly wrong conclusion arrived at by the trial Court. I agree with the learned Respondent’s counsel that these grounds are, indeed, at best grounds of mixed law and fact for which Section 242(1) of 1999 Constitution makes acquisition of leave a condition precedent for their competence. All the grounds are manifestly not within the purview of Section 241(1)(b) to be otherwise…”
The above findings of the Supreme Court as quoted above are not ambiguous. They are specific and as clear as crystal. Clearly therefore, where a no case submission is made, there is no way the trial Court can take note or form an opinion as to whether or not a prima facie case has been established without recourse to the facts of the case. Furthermore, the moment there is a dispute between the prosecution and the defence as to whether the evidence adduced by the prosecution has made out a prima facie case, it cannot be said that the facts so adduced are not in contention or have been ascertained. The decision of the Court cannot therefore be said to be application by the trial Court of the law to facts that are ascertained. No
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doubt any ground of appeal on the decision of the trial Court will at best be ground(s) of mixed law and fact, which would require leave of the trial Court or of this Court for it to be competent by virtue of Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999.
Now, learned senior counsel for the Appellant has argued that the situation in the case of Metuh v. FRN (supra) is distinguishable from that of this case. I have carefully read the summary of the facts leading to the appeal in Metuh’s case. I have no doubt in my mind that, the facts leading to the no case submission in Metuh’s case are very similar to that in this case. The only difference is that unlike in the Metuh’s case, at the time of arguing the no case submission, learned senior counsel for the Appellant, unusually, introduced into it certain issues quite unrelated to the procedure on a no case submission. I shall return to those issues later in the course of this judgment. But in the appeal grounded purely on the no case submission, the ratio decidendi in the Metuh’s case is clearly applicable to this appeal. I am bound by the decision of the
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Supreme Court in that case, which I adopt and shall apply in the determination of this appeal.
On the strength of the decision of the Supreme Court in Metuh’s case cited above, I have meticulously reflected on the 16 Grounds of Appeal herein. Upon such consideration, I am of the view that Grounds 10, 11, 12, 13, 14, 15 and 16 of the Notice of Appeal are no doubt a complaint by the Appellant on the findings of the learned trial Judge on the facts before he came to a conclusion, which prima facie show that the Appellant committed the offences charged. It was a determination based on the evaluation of the evidence by the prosecution against the Appellant and the conclusion of the trial Court thereon.
I have also perused the complaint of the Appellant on Grounds 5, 6, 7 and 8 of the Notice of Appeal. Those grounds deal, in substance with the conclusion of the trial Court on the charge(s) alleging breach of trust. A closer look at these grounds and the particulars thereof, would reveal that, they are a challenge premised on the proof of the essential ingredients of the offence created under Section 434 of the Criminal Code Law of Ogun State. The
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findings of the trial Court thereon would no doubt demand a consideration of the facts that are needed to prove the essential ingredients of the offence created by that Section of the Law. To that end, those grounds eminently qualify as those of mixed law and facts which would require the leave of this Court to file. Thus, the fact that the Appellant cleverly couched them so as to appear to be grounds of law alone, is not helpful to their cause. This is because, it is not the name given to it by the Appellant that determines whether a ground of appeal is one of law alone or of fact or mixed law and fact. Rather, it is the complaint embedded therein that determines what any particular ground of appeal involves. See U.B.A. Ltd v. Stahlbau Gmgh & Co. (1989) 3 NWLR (pt.110) 374 at 377; Metal Const. (W/A) Ltd v. Migliore & Or (1990) 1 NWLR (pt.126) 299 at 315; Unilorin & Ors v. Obayan (2018) 13 NWLR (pt.1635) 72 and Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR – 41822 (SC). Thus, in Allanah & Ors v. Kpolokwu & Ors (2016) 6 NWLR (pt.1501) 1, My Lord, Sanusi, JSC said:
“… It is well settled law, that a
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Court when faced with the task of determining whether a ground or grounds contained in the notice of appeal is or are one of law alone or mixed law and facts, it does not really depend on the label, appellation or tag given to it/them. The Court must consider or give regard to the particulars and consider them together, so as to ascertain the category to which it/they slot or fit into.”
I am therefore of the view that grounds 5, 6, and 7 are not grounds of law alone. They are on mixed law and facts pertaining to the ingredients required to establish an offence created by Section 434 of the Criminal Code of Ogun State. Leave of the Court below or of this Court was needed before they could be competently filed.
Grounds 1 and 2 are on the finding of the learned trial Judge that, the issue of jurisdiction cannot be competently raised at the stage of a no case submission. This issue arose before the trial Court. In determining the issue, the learned trial Judge cited with reliance thereon, the case of Adigwe v. FRN (2018) LPELR – 43849 (CA), to hold that:
“In the instant case, the no case submission and the application to strike out
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some of the counts in the further Amended Information on ground of lack of jurisdiction made by the Defendant are also mutually exclusive. While the success of a no case submission is a consequential order discharging the Defendant, a decision that the Court lacks the jurisdiction to entertain the counts complained of will attract an order striking out the counts. Although the Court of Appeal found in Adigwe v. FRN (supra) that there was no actual miscarriage of justice in the failure of the Court below to consider the submission on nullity of proceedings since the issue was not covered by the prayer before the Court, but it held further that the trial Court should have considered the submission and ruled one way or the other on it. For that reason, I have decided to consider all the issues raised by the defence counsel along with the no case submission particularly since they are constitutional and jurisdictional in nature.”
As would be seen at page 2404 of the Record of Appeal, the decision of the learned trial Judge was informed by the decision of this Court in the case of Adigwe v. FRN (supra), where this Court held as follows:
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“A party seeking to quash proceedings of a Court cannot prove the remedy under a prayer for a no case submission. Both are mutually exclusive. The success of a prayer for a no case submission is a consequential order discharging the Defendant while the success of a request to quash the proceedings of a Court for being a nullity attracts the consequential order of a proper or fresh trial of the Defendant… It follows that nullity of proceedings cannot be argued with a prayer for no case submission. It requires its own substantive prayer.”
It would also be seen therefore that, the trial Court made its findings in the face of the issues of jurisdiction raised by the Appellant while making the no case submission. As rightly observed by the learned trial Judge, it is procedurally improper and untidy to raise an issue of jurisdiction while making a no case submission. To do that would merely obfuscate issues in the determination of the no case submission. No doubt the address filed in the lower Court by the Appellant on the 31/12/18 was intended to address the no case submission. However, instead of addressing the issue of no case
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submission, the learned senior counsel for the Appellant introduced the “jurisdictional” issues. Of course an issue of jurisdiction can be raised at any time in the course of the proceedings and even for the first time on appeal, counsel are always reminded to remember that jurisdiction of Courts are classified into substantive and procedural. While substantive jurisdiction cannot be waived one of a procedural origin can be waived, depending on the stage of and effect on the proceedings. Thus, procedural jurisdiction can be waived save where it touches on the root of the case. See NNPC v. Zaria & Anor (2014) LPELR – 22362; Zakirai v. Muhammad & Ors (2017) 17 NWLR (pt.1594) 181 and Emerald Engineering Services Ltd & Anor v. Intercontinental Bank Plc (2010) LPELR – 19782 (CA). I have endeavoured to point this out because, I am of the view that the issues of jurisdiction raised by the Appellant in the course of arguing the no case submission should not have been raised at that stage. This is more so, in view of the prayer made by the Appellant at the close of the no case submission.
I note however that, despite the
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observations made by the learned trial Judge, he still went on to consider and pronounce on those issues. Those issues being of law, I am of the view that they are competent by virtue of Section 241(1)(b) of the 1999 Constitution. I accordingly hold that grounds 1, 2, 3, 4, 8 and 9 are competent. It is not in doubt that, in law, where a notice of appeal contains no valid ground of appeal, same will be incompetent and liable to be struck out. However, a notice of appeal will still be competent and valid where it contains, at least one valid ground of appeal. See Erisi & Ors v. Idika & Ors (1987) 4 NWLR (pt.66) 503 and Okon v. INEC & 2 Ors (2015) 9 NWLR (pt.1463) 113 at 144. In the circumstances, I hereby hold that the Notice of Appeal herein, in as much as it contains valid or competent grounds is competent. The remedy is to strike out the incompetent grounds and to sustain the appeal on the competent grounds. In that respect, I hereby order that Grounds 5, 6, 7, 10, 11, 12, 13, 14, 15 and 16 of the Notice of Appeal be struck out for being incompetent. This appeal shall be heard and determined on Grounds 1, 2, 3, 4, 8 and 9 being competent Grounds
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that can sustain the appeal.
APPEAL
I had in the course of this judgment, identified the briefs filed by the Appellant and the Respondent. I had also reproduced the issues formulated for determination by both parties. On that note, I wish to point out that, having struck out the grounds of appeal in respect of the no case submission for being incompetent, the issue formulated from those invalid grounds, which is issue two, cannot be sustained. This is because, it is trite law that issues are formulated from a ground or combination of valid grounds of appeal. Consequently, any issue formulated from an incompetent ground of appeal cannot be sustained. Such issue is equally incompetent and must be struck out. See Chief Achike Udenwa & Anor v. Hope Uzodinma & Anor (2012) LPELR – 7953 (CA); House of Representatives & Ors v. S.P.D.C. (Nig.) & Anor (2010) 11 NWLR (pt.1205) 213; Agundo v. Gberbo & Ors (1999) 9 NWLR (pt.617) 71 andTukur v. Governor of Taraba State (1997) 6 NWLR (pt.510) 549. Thus in Chief Agbaka & 3 Ors v. Chief Amadi & Anor (1998) 11 NWLR (pt.572) 16 at 24 paragraphs E – F, Ogbuegbu, JSC clarified the
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issue as follows:
“If I understand the complaint of the Appellants correctly on issue one, they are saying that even though grounds 3 and 4 of the grounds of appeal filed by them in the Court below were struck out as incompetent: the Court should have considered the issues raised from those incompetent grounds of appeal. This is not the law. When a ground of appeal is incompetent, any issue for determination based on the incompetent ground goes to no issue and should be struck out as incompetent. An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. It automatically collapses when the ground ceases to exist.”
It therefore means that, where an issue derived from an incompetent ground is argued, such argument goes to no issue and should be discountenanced accordingly. Issue two (2) raised and argued in the Appellant’s Brief of Arguments is said to be derived from Grounds 10, 12, 13, 15 and 16 of the Notice of Appeal. Such grounds have been found to be incompetent and consequently struck out. It therefore follows that issue two (2) which was distilled from
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incompetent grounds of appeal is equally incompetent and should be discountenanced. I accordingly discountenance and strike out issue two (2).
It is also the law that, an issue for determination must derive from valid or competent ground or grounds of appeal only. Thus, where an issue is distilled from several grounds of appeal, but one or more of which is/are incompetent, the issue so raised and the arguments thereon will be rendered incompetent and liable to be struck out. In other words, were an issue for determination is formulated from a combination of competent and incompetent grounds of appeal, such issue is rendered incompetent and should be struck out. See Tiamiyu v. Olaogun (2008) 17 NWLR (pt.1115) 56; Adelakun v. Oruku (2006) 11 NWLR (pt.992) 625; Federal Housing Authority v. Odusanwo (2007) 9 NWLR (pt.1039) 360; Governor of Imo State & Anor v. Chief Aloysius Iwunze (2018) LPELR – 44005 (CA); Khalil v. Yar’adua (2003) 16 NWLR (pt.847) 446; Sehindemi v. Gov. of Lagos State (2006) 10 NWLR (pt.987) 41 and Odeh v. FRN (2008) 13 NWLR (pt.1103) 1.
In the instant case, issue one (1), is said to be distilled from Grounds 1, 2, 3,
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4, 5, 6, 7, 8, 9, 11 and 14. While issues 1, 2, 3, 4, 8 and 9 were found by me to be competent, issues 5, 6, 7, 11 and 14 are among the grounds found to be incompetent and accordingly struck out. However, the Appellant has raised and argued issue one to include grounds 5, 6, 7, 11 and 14 which are incompetent grounds. To countenance such issue as raised and argued by the Appellant will only confuse or obfuscate the issue. That issue is in law; and based on the authorities cited above, rendered invalid and the only remedy is to discountenance same. This Court cannot enter the arena of the dispute by attempting to sieve out the arguments on the competent grounds from the incompetent grounds. That is not the duty of this Court. It is therefore my view, which I hold, that issue one (1) having been distilled from a combination of competent and incompetent grounds of appeal; is totally incompetent; and liable to be struck out. Issue one (1) is also struck out.
Now, the two issues having been struck out, there is no more issue left for determination which could sustain this appeal. The ultimate result is that the appeal before us is incompent. On that note, this
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appeal is hereby struck out.
NONYEREM OKORONKWO J.C.A.: When reduced to it’s lowest abstraction, the substance of the appeal in this proceeding is whether the trial Court was right to hold that there was a case to answer by the appellant in respect of about 17 counts in the information. In Other words, the trial judge, upon a consideration Of the prosecution’s evidence held that some prima facie case was made Out necessitating some account or explanation by the appellant. It is always a consideration of facts based on the evidence led whether a case has been made Out as to bring the matter within Or without purview of Section 241 (1) Of the Constitution.
In this appeal, my lord Haruna Simon Tsammani JCA has extensively dealt with all the issues arising and also straightened the obfuscator issues wrapped or woven into an otherwise straight issue of whether or not there was a case at the close of the prosecution’s case.
I entirely agree with the judgment of my brother Tsammani JCA. I,like him, also strike out the appeal.
FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity to read in draft the lead judgment
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just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA. I agree with the reasoning and conclusion reached therein.
A careful of the two issues formulated on behalf of Appellant for the determination of this appeal reveal that they are formulated from a combination of both competent and incompetent grounds of appeal. It is trite that for an issue to be valid it must emanate from a competent ground of appeal. A valid issue must have its root in a competent ground of appeal. It follows therefore that where the ground of appeal the foundation of an issue collapses the issue formulated thereon would collapse. See UMANAH VS NDIC (2016) 14 NWLR (PT. 1533) 458; AGBAKA & ORS VS. AMADI & ANOR (1998) 11 NWLR (PT. 572) 16; EGBE VS. ALHAJI (1990) 1 NWLR (PT. 128) 546. It is further a trite position of the law that arguments in an appeal are based the issues formulated and not on the grounds of appeal. See ADEBAYO & ORS VS. SHOGO (2005) 7 NWLR (PT. 925) 467; ADEROUNMU VS OLOWU(2000) 4 NWLR (PT. 652) 253. I am in complete agreement with the reasoning and conclusion of my learned brother that Grounds 5, 6, 7, 10, 11, 12, 13, 14, 15 and 16 of
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the Notice of Appeal are incompetent. A careful perusal of the two issues formulated on behalf of the Appellants reveal they have their roots in the incompetent grounds of appeal. It follows therefore that the two issues are incompetent and all arguments canvassed thereon are also incompetent. In the light of the foregoing, the instant appeal is incompetent and should be struck out.
It is for the above and tie other elaborate reasons given in the lead judgment that I too find this appeal unmeritorious. I abide by the consequential order in the lead judgment.
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Appearances:
Prof. Taiwo Osipitan SAN and Mrs. Titilola A. SAN, with A. A. Ogunba, Deji Enisenyin, Remi Adesayo, Blessing Uduma (Miss) and Mrs. Yemi Adekoya For Appellant(s)
Adebisi Adeniyi Esq For Respondent(s)
