USAINI UMAR v. COMMISSIONER OF POLICE, KANO STATE (2014)

USAINI UMAR v. COMMISSIONER OF POLICE, KANO STATE

(2014)LCN/7457(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of September, 2014

CA/K/181/C/2013

RATIO

STATUTORY INTERPRETATION: CARDINAL PRINCIPLE OF INTERPRETATION OF STATUTES; WHETHER EFFECT MUST BE GIVEN TO WORDS OF STATUTES THAT ARE CLEAR AND UNAMBIGUOUS

The words of these provisions are in my view clear and unambiguous as to how an appeal is to be commenced under the Criminal Procedure Code and it is a cardinal principle of interpretation of statutes that effect must be given to words clear and unambiguous thereof. See AWOLOWO V. SHAGARI (1979) 6-9 SC 73; ATTORNEY GENERAL OF THE FEDERATION V. SODE (1990) 1 NWLR (Pt. 128) 500; UGWU V. ARARUME (2007) 4 SC (Pt.1) 88. It is also the law that a statute must not be interpreted in a manner that will defeat its purpose or aim. See ANSALDO NIG. LTD. V. NPFMB (1991) 2 NWLR (Pt.174) 392. The plain words of the statute are to be adhered to and given their ordinary meaning; GANKON V. UGOCHUKWU CJEM. IND. LTD. (1993) 6 SCNJ 263; OMOIJAHE V. UMORU (1999) 8 NWLR (Pt.614) 178; OWENA BANK NIG. PLC V. NSE LTD (1997) 8 NWLR (Pt. 515) 1; AMADI V. NNPC (2000) 10 NWLR (Pt.674) 76. Another cardinal rule of interpretation of statutes that is relevant in the instant case is that the statute must be read as a whole or holistically so as to realize the intention of the maker. See AGUNDO V. GBERBO (1999) 9 NWLR (Pt.617) 71.

In BUHARI V. OBASANJO (2005) ALL FWLR (Pt.273) 1 at 144, the Supreme Court, per Ejiwumi JSC held that ” It must be borne in mind that in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted. See GARBA V. FED CIVIL SERVICE COMMISSION (1988) 1 NSCC 306; AWOLOWO V. SHAGARI (1979) 6 – 9 SC 51, (2001) FWLR (Pt.73) 53; BRONIK MOTORS V. WEMA BANK (1983) 1 SCNLR 296″. per. ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: THE COMMENCEMENT OF AN APPEAL; THE PROVISION OF THE CRIMINAL PROCEDURE CODE (CPC) ON HOW AN APPEAL IS COMMENCED AND THE TWO PROCESSES MENTIONED IN THE CODE

From the provisions of the foregoing sections of the Criminal Procedure Code (CPC), an appeal is commenced by the appellant giving before expiration of thirty days, a notice of such to the registrar of Court either in written or verbal form, and where it is verbal, the notice is to be reduced into writing by the registrar. The appellant is to file within the same period of 30 days (save where it is a sentence of canning) the memorandum setting out the grounds of his appeal. The appellant in the instant case did not give oral notice of appeal but filed a written Notice of appeal that contains the grounds of appeal.

The two processes mentioned in the above sections of the CPC are the Notice of appeal which may be verbal or written, and the memorandum of grounds of appeal.

According to the Blacks Law Dictionary 9th Edition page 1166, a notice of appeal is a document filed with a Court and served on the parties stating an intention to appeal a trial Court’s judgment and in most jurisdictions it is the act by which the appeal is perfected.

The same Blacks Law Dictionary at page 1074 defines memorandum as an informal written note or record outlining the terms of a transaction or contract, or (more relevantly) as a party’s written statement of its legal arguments presented to the Court.

It is noted that though the CPC provides for filing of Notice of Appeal and memorandum of grounds of appeal within 30 days, it is not stipulated that the filing of the two together as one process or on the same date is forbidden or will render the Notice of appeal filed with the grounds of appeal void. per. ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: GROUND OF APPEAL; THE ESSENCE OF GROUNDS OF APPEAL AND THE CONSEQUENCE OF THE FAILURE TO GIVE PARTICULARS OF ERROR(S) OF LAW IN A GROUND OF APPEAL

On the second aspect of the holding of the appellate High Court that the grounds of appeal were incompetent, it needs to be stated here that the essence of grounds of appeal is to give adequate Notice of the grouse or complaints of the appellant against the decision of the trial Court and any ground that satisfies that purpose should not be struck out. See IWUOHA V. NIPOST (2003) 8 NWLR (Pt. 822) 399. In NWANKWO V. NWANKWO (1993) 6 SCNJ 84, the Supreme Court, per Belgore JSC (as he then was) held that “The purpose of grounds of appeal is to indicate clearly the areas of complaints against the judgment appealed against and it is always in the interest of justice to allow not only for amendments of the grounds of appeal but also to allow for additional grounds to be filed if expedient. The principle is that such amendments and addition are done in good faith and the appellant has not been tardy in bringing the necessary application to effect the rights. OKOROKWO V. INSPECTOR GENERAL OF POLICE (1957) 2 FSC 129.”

On the manner of stating the particulars of error and the failure to state such particulars in a ground of appeal alleging error of law the position was well stated by Omokri JCA (of blessed memory) in NSA HOGAN NKUTE & ORS V. CHIEF EYO EDEM ITA NDEM (2009) LPELR 4632 (CA) that “The particulars of error may be embodied in the ground of appeal itself, provided the ground is framed in such a way as to leave no one in doubt of the error complained about. In ILORI V. TELLA (2006) 18 NWLR (Pt.1011) 267 at 284 – 285, FABIYI JCA, eloquently stated the current position of the law when he held that, “It is no longer the law that once a ground of appeal alleges error in law and or misdirection the passage of the judgment concerning same must be quoted”. Also in UKPONG V. COMMISSIONER FOR FINANCE (2006) 19 NWLR (Pt.1013) 187, ONNOGHEN, JSC in his usual erudity had this to say at page 211: ‘Although an appellant is required to give particulars of error(s) of law in a ground of appeal complaining of error in law it is not every failure to do so that will render the ground so couched incompetent, particularly where sufficient particulars can be gleaned from the ground of appeal in question and the respondent and the Court are left in no doubt as to the particulars on which the ground is sassed.” per. ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: OMNIBUS GROUND; WHAT IS AN AN OMNIBUS GROUND IN A CRIMINAL APPEAL

This appeal obviously is founded upon a Criminal matter and the above ground is what is called an ominous ground of appeal. I think it should be beyond argument now based on the applicable decisions of the Supreme Court and this Court that “weight of evidence” do not apply to criminal cases. Thus in a criminal appeal the omnibus ground is that the verdict is unreasonable and cannot be supported having regard to the evidence, while in a civil appeal it is that the judgment is against the weight of evidence. See ATUYEYE V. ASHAMU (1987) LPLER 638 (SC); H.R.H. ALHAJI IBRAHIM SULU-GAMBARI V. ALHAJI SAADU A.O. BUKOLA (2004) 1 NWLR (Pt.853) 122; IBETO V. AMINU (2007) 5 NWLR (Pt.1028) 446. per. ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL; SECTION 15 OF THE COURT OF APPEAL ACT 2004; WHETHER THE PROVISIONS OF SECTION 15 COURT OF APPEAL ACT DO NOT EMPOWER THE COURT OF APPEAL TO MAKE AN ORDER WHICH THE TRIAL COURT COULD NOT HAVE MADE IN RESOLVING THE DISPUTE BETWEEN THE PARTIES

For ease of reference, I reproduce Section 15 of the Court of Appeal Act 2004 as follows:

“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its finding on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in case of an appeal the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”

Among other conditions for the invocation of this section in an appeal before this Court is that the necessary materials to consider and adjudicate in the matter must be available. DAPIANLONG V. DARIYE (2007) ALL FWLR (Pt.373) 81. It has also been held that the provisions of Section 15 Court of Appeal Act do not empower the Court of Appeal to make an order which the trial Court could not have made in resolving the dispute between the parties. See OBI V. INEC (2007) ALL FWLR (Pt.378) 1116; FALEYE V. OTAPO (1995) 3 NWLR (Pt.381) 1. per. ISAIAH OLUFEMI AKEJU, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE DISCRETION OF THE TRIAL COURT NOT EXERCISED JUDICIALLY AND JUDICIOUSLY

The application of the appellant before the appellate High Court called for the exercise of that Court’s discretion, and it is the law that a Court must exercise its discretion judicially and judiciously. It is settled that where the Lower Court has failed to exercise its discretion judicially and judiciously having regard to all the circumstances of the case, an appellate Court will interfere with such exercise of discretion. See AGBAJE V. ADELEKAN (1990) 11 – 12 SC 162; OKERE V. NLEM (1992) 4 SCNJ 24; AGBOMEJI V. BAKARE (1998) 7 SCNJ 33; ANISIUBU V. EMODI (1975) 2 SC (REPRINT) 8; UNIVERSITY OF LAGOS V. AIGORO (1985) 1 SC 295. per. ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

USAINI UMAR – Appellant(s)

AND

COMMISSIONER OF POLICE, KANO STATE – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Kano State, Appellate Division delivered on 31st January, 2013 in the matter of Appeal No. K/13A/2012 lodged by the appellant here in against the decision of the Chief Magistrate Court, Kano in charge No. KA/46/CTS/2011.

The appellant had stood trial before the Magistrate Court, of Kano State on a three count charge of criminal breach of trust, cheating, and criminal misappropriation punishable under Sections 314, 322 and 309 respectively of the penal code over a sum of N31,995,455 (Thirty-One Million, Nine Hundred and Ninety-Five Thousand, Four Hundred and Fifty-Five naira) allegedly entrusted in his hands by Pryme Decision Technical Company Ltd. for the completion of 5 units of Maternity Clinics out of the 20 units to be constructed by the Company, as well as conversion of a Toyota Ray 4 car belonging to the same company to his own use.

At the conclusion of the evidence of the four witnesses called by the prosecution, the (accused) appellant made a no case submission which was overruled by the learned trial Chief Magistrate A.A. Kabara Esq. in his ruling delivered on 22/3/2012, and consequent upon which the appellant appealed to the High Court of Kano State through a Notice of Appeal dated 23/4/2012.

The appeal was heard on 17th May, 2012 in the absence of the Respondent, but upon the application of the Respondent for leave to be heard which was granted by the Court, the appellant filed an application to argue additional grounds of appeal, and for leave to amend the Notice of Appeal and reargue the amended grounds. The motion was opposed by the Respondent through a counter affidavit and contended that the grounds of appeal were incompetent and the Notice of appeal be struck out there being no ground to support it.

After hearing arguments from the parties, the learned appellate Judges of the High Court of Kano State refused the appellant’s prayers and struck out the entire appeal, holding that the grounds upon which the appeal was predicated were incompetent thereby rendering the appeal itself incompetent. Against this ruling delivered on 31st January, 2013, the appellant has appealed to this Court through the Notice of Appeal dated 21/2/2013 but filed on 22/2/2013 with three grounds of appeal including the omnibus ground that “The Ruling is against the weight of evidence placed before the Lower Court.”

In furtherance of the appeal, the Appellants’ Brief of argument settled by Hassan M. Liman, SAN and dated 26/2/2014 was filed on 27/2/2014 but deemed properly filed on 27/3/2014. Also the Respondent’s Brief of Argument was settled by Okechukwu Nwaeze Esq., and filed on 21/5/2014 but deemed properly filed on 2/6/2014 while the Reply to the Respondent’s Brief was filed on 4/6/2014.

The Appellant has raised the following as the issues for determination in this appeal.

1. Whether the contemporaneous filing of the Notice of Appeal and the Memorandum containing the grounds upon which the appeal is filed, is a breach of the provisions of Sections 280(1) and 281(1) of the Criminal Procedure Code of Kano State which renders any Appeal filed in that manner incompetent and capable of robbing a Court of jurisdiction to hear the appeal?

2. Whether the learned High Court Judges of the Appellate Division of Kano State were right to have struck off the substantive appeal on a day fixed for ruling on the application to amend the Notice of Appeal.

3. Whether in view of the weighty issues in the No case submission filed by the Appellant the learned Magistrate is not bound to determine the issue of jurisdiction raised in the No case submission filed by the Appellant.

The three issues were said to have been distilled respectively from grounds 1, 2 and 3 of the Notice of Appeal.

The issues for determination, as formulated by the Respondent also from the grounds of appeal are as follows:

1. Whether the Notice of Appeal filed by the Appellant on the 23rd day of April is incompetent in law.

2. Whether the Judges sitting in appeal lacked the vires to hear adjudge the Notice of Appeal incompetent upon an application to amend a Notice of Appeal.

3. Whether the issue of the Lower Court jurisdiction to adjudicate over the charge can be grounded upon the omnibus ground that the judgment is against the weight of evidence and if same can, whether the Lower Court did not determine same on the face of the records.

At the hearing of the appeal, Hassan M. Liman, SAN was the leading Counsel for the appellant. He adopted both the Appellant’s Brief and the Reply Brief. He placed reliance thereon to urge Court to allow the appeal and invoke Section 15 of the Court of Appeal Act to give effect to the No case submission that was the genesis of the appeal. Okechukwu Nwaeze Esq., for the respondent adopted the Respondent’s Brief and relied thereon with the Additional Authorities dated 30/6/2014 which relate to the exercise of the powers of this Court under Section 15 of the Court of Appeal Act and the conditions for adducing further evidence in this Court.

Thus the issues formulated by the parties are quite similar. I will however adopt the three issues set out by the appellant and determine the appeal upon those issues.

On the first issue which is whether the contemporaneous filing of the Notice of Appeal and the Memorandum containing the grounds upon which the appeal is filed is a breach of the provisions of Sections 280(1) and 281(1) of the Criminal Procedure Code of Kano State which renders any Appeal filed in that manner incompetent and capable of robbing a Court of jurisdiction to hear the appeal, the Senior Counsel.

Counsel contended that by Sections 280(1) and 281(1) of the Criminal Procedure Code (CPC) of Kano State an appellant has a duty to give a Notice of appeal and to file appeal which must be done within thirty days; but the Code is silent as to whether the two processes, i.e. the Notice and Memorandum must be filed separately.

It was submitted that where the provisions of a particular statute are not ambiguous, effect must be given to the ordinary plain meaning of the words of the statute without adding anything thereto or taking away anything therefrom, citing BRONIK MOTORS LTD V, WEMA BANK LTD (1983) 6 SC 158. It was also submitted that a Court should not read into any provision of the Constitution or a statute what is not expressly or impliedly provided therein; ATTORNEY GENERAL OGUN STATE V. ALHAJI A. ABERUAGBA (1985) 4 SC (Pt.1) 288. Other cases cited on interpretation of statutes include OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) SCNJ 226; ARTRA IND. NIG. LTD. V. NBCI (1998) 13 SCNJ 97; RIVERS STATE GOVERNMENT V. SPECIALIST KONSOHJ (2005) 7 WNLR (Pt. 923) 145.

It was contended by the Senior Advocate of Nigeria that the process filed by the appellant headed Notice of Appeal had given the Registrar of the Court from which the appeal was brought the intention to appeal against the decision of Hon. Kabara delivered on 22/3/2012 to the High Court upon the grounds set out in paragraph 3 therein, though not all the grounds were argued before the initial appellate High Court that had adjourned for judgment.

It was further contended that there was no basis for the finding that there was no valid appeal and such finding is therefore perverse because the Court should have first granted the prayer of the appellant in his motion paper for the Court to delete some grounds in the original Notice of Appeal.

The senior Counsel submitted that a Court called upon to grant an application to amend is required to exercise its discretion judicially and judiciously and where that Court has failed to properly exercise the discretion, appellate Court is entitled to interfere ONYESOH V. NNEBEDUM (1992) 7 NWLR (Pt.229) 315. The High Court in the instant case did not exercise its discretion properly, it was further contended.

It was submitted that an application for amendment of the originating processes is mainly for the purpose of determining the real questions in controversy between the parties; OJAH V. OGBONI (1976) 1 NWLR 95. It was contended that the learned judges were wrong to have found that there was no competent Notice of Appeal for which an amendment of the appeal could be made in so far as at least a single ground of appeal existed before the application to amend was filed.

On this issue of validity of the Notice of Appeal filed by the appellant, at the High Court, the learned Counsel for the Respondent has contended that the Notice of Appeal was incompetent as it failed to comply with the provisions of Sections 280(1), 281(1) and 282(1) of the Criminal Procedure Code (CPC).

It was the contention of the learned Counsel that from the provisions of the three sections of the CPC an appellant is required to give Notice of appeal which may be verbal or in writing, but to be reduced into writing by the Registrar where it is verbal, and to file a memorandum setting forth the grounds of his appeal. It was then contended that it was not intended by those provisions to make a Notice of appeal which maybe oral, a memorandum containing the grounds of appeal.

It was the contention of the learned Counsel that though not expressly stated by the statute, it is implied by the law that the appellant should file two separate documents. It was submitted that the cases of BRONIK MOTORS LTD V. WEMA BANK LTD. (1983) 6 SC 158, and ATTORNEY GENERAL OGUN STATE V. ALHAII A. ABERUAGBA (Supra) relied upon by the appellant on interpretation of statutes do not support the contention of the appellant but urged the Court to place reliance on ABACHA V. FRN (2014) 1 SCNJ 37; KRAUSS THOMPSON ORGANISATION V. NIPSS (2004) 9 – 12 SCM (Pt.2) 53, on the principles guiding the Court in interpretation of statutes.

It was contended that the filing of the Notice of Appeal and the Memorandum of ground of Appeal are made mandatory by the provisions of Sections 280(5) and 281(2) of the CPC where the word shall has been used and which word in the con of the CPC connotes a command and therefore mandatory; ONYEMAIZU V. OJIAKO (2010) ALL FWLR (Pt.523) 1870.

The learned Counsel argued that the appellant had argued six out of the 19 grounds he filed before the appeal was transferred to a new panel reconstituted as a result of the death of one of the judges and after the transfer to a new panel the appellant filed a motion to amend the grounds of appeal where upon the Respondent who was represented art that stage challenged the competency of the grounds as a defective Notice of Appeal could not be amended. It was submitted that a matter that has been transferred should be commenced de novo.

It was argued that the grounds of appeal filed at the High Court dealt in part with interlocutory matter decided about 9 months before the 23rd April 2012 with no order extending time or leave of the Court while many of the grounds were filed without particulars or particulars stated without grounds, also issues for determination are raised in the Notice of Appeal. Learned Counsel submitted that a ground of appeal must contain particulars in its support; DOMA V. INEC (2012) ALL FWLR (Pt.628) 815; HANIKA SAWMILL (NIG.) LTD V. HAFF (1994) 2 NWLR (Pt.326) 252. It was submitted also that where a ground alleges an error in law or a misdirection, such a ground must state a passage in the judgment where the alleged error occurred and give particulars thereof; ODUDU V. FRN 2012) ALL FWLR (Pt.650) 1348.

The learned Counsel submitted that none of the grounds of appeal complied with the requirements of law and the High Court was correct in not allowing the Appellant to amend same by adding other or fresh grounds; MOHAMMED O.S. OLATEJU V. SANNI (2010) ALL FWLR (Pt.522) 1771. The case of EXPLORATION AND PRODUCTION NIG. LTD V. JOHNSON (2011) ALL FWLR (Pt.572) 1829 was cited to submit that an incompetent Notice cannot be amended.

The motion filed by the appellant on 30/7/12 is copied at pages 248 to 251 of the record of appeal with the supporting affidavit. The appellant had sought four main orders;

1. for leave to file and argue additional grounds of appeal;

2. leave to amend the Notice of Appeal dated 21/4/2012 “and reargue the amended grounds of appeal therein by deleting the grounds and particulars described as Nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, a part of 14 entitled issues for determination froml4, 15, 16, 18, 19, the sub-head entitled issues for determination and the reliefs contained therein”;

3. leave to renumber and arrange his grounds on the Notice of appeal;

4. deeming the already filed Amended Notice of Appeal as properly filed and served the appropriate fees having been paid.

The need to file and argue additional grounds of appeal and to amend the Notice of appeal arose as a result of the leave of Court granted to the Respondent to be heard in the appeal. This was stated in paragraph 4 of the affidavit in support while paragraphs 5 and 6 show that additional grounds of appeal and proposed amended Notice of appeal were annexed as exhibits AM1 and AM2 respectively.

The counter Affidavit to the motion which was filed on 24/9/2012 is copied at pages 267 – 268 of the record of appeal. The deponent to the counter affidavit, one Shamsi Ubale Jibril, a Legal Practitioner had deposed as follows in opposition to the application;

“3.5 That the applicant/appellant has not placed before this Court relevant material that will assist it to exercise its discretion judicially and judiciously to allow it to file additional grounds of appeal and amend its Notice of appeal…”

It was further deposed in the same paragraph 3 as follows:-

“t. That the appellant’s Notice of appeal grounds 1, 2, 3, 4, 5, 6 and 7 of the Notice of appeal dated 23rd April, 2012 are complaining against the ruling of 12 July, 2012, nine months after the ruling without leave of Court extending the time within which to file same.

u. That grounds 1 to 7 of the Notice of appeal are therefore incompetent.

v. That grounds 8, 9, 10, 11, 12 and 13 of the Notice of appeal are purely academic, argumentative and speculative as they do not relate to or complain against any decision of the trial Court.

w. That grounds 8, 9, 10, 11, 12 and 13 being matters relating to evidence not before the Court but evidence adducible during the defence are therefore incompetent grounds.

x. That ground 14 of the original Notice of appeal is merely a defence of illegality which is available in a civil trial only.

y. That assuming that grounds of appeal referred to are valid, the Notice of appeal being filed by the appellant on 23rd day of April, 2012 is clearly outside the 30 days prescribed by law, the ruling on no case submission delivered on 22nd March, 2012 and the other on the 12th day of July, 2011 renders them incompetent.

z. That this being the case, there is no valid Notice of Appeal before the Court which is a condition precedent for filing additional grounds of appeal”.

The Notice of Appeal dated 23rd April, 2012 copied at pages 174 – 182 of the record of appeal contains 19 grounds of appeal, while the depositions which I had mentioned above show that the grounds directly affected by the application for amendment are grounds 1 to 13 thereof which are to be deleted as well as issues for determination in grounds 14 – 19. There is no mention of, or reference to the grounds of appeal numbered 14 – 19 as being part of the grounds sought to be amended except as to removal of “issues for determination” therein.

In the ruling of the appellate High Court it confirmed this position at page 301 of the Record of Appeal thus;

“Furthermore, the appellant is in this application, prayer No.2 seeking is seeking (sic) to amend the grounds of appeal contained in his Notice of appeal by deleting grounds Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, a part of 14 entitled issues for determination from ground 14, 15, 16, 18, 19 the sub head entitled “issues for determination and the reliefs contained therein and in the manner shown in exhibit AM2”.

The learned appellate judges considered the arguments of the two learned Counsel with regards to the validity of the appeal especially that the appellant filed only a Notice of appeal and found that the filing of only Notice of appeal could not suffice as the provision of Section 281(1) of the CPC has made it mandatory for an appellant to file a memorandum of grounds of appeal and failure to file the two processes separately amounted to non compliance.

Also after examining the Notice of Appeal and the grounds of appeal therein, the learned judges held as follows at page 303 of the record;

“Now, taking all the above into consideration even if the filing of the Notice of Appeal containing the grounds of Appeal can suffice as compliance with the provisions of the CPC as regards to the way of commencing an appeal granting order two, will leave the Notice of appeal bear (sic) with no grounds of appeal. Thus granting leave to file an additional grounds to the original grounds which were already incompetent having no particulars cannot cure the vice which had incurably infected the original grounds”.

It was in conclusion held that there was no valid appeal before the Court because when the Notice of appeal is “Fundamentally and structurally defective” there is no foundation for the appeal and the Court lacked jurisdiction to determine either the substantive appeal or any application predicated thereon.

In view of the foregoing, it has become pertinent to examine the relevant provisions of the CPC with regards to the commencement of appeals from the Magistrate Court to the High Court in Kano State.

In Section 279(1) of the Criminal Procedure Code, it is provided that:

“Appeals from a Magistrate’s Court to the High Court shall be in accordance with the High Court Law or this Criminal Procedure Code or any rules made under either of such Law”.

“280(1) An appeal in accordance with the provisions of this chapter shall be commenced by the appellant giving to the registrar of the Court from which the appeal is brought or to the registrar of the Court to which the appeal is brought Notice of such appeal, which may be verbal or in writing, and if verbal, shall be forthwith reduced to writing by the registrar and signed by the appellant, or by a legal practitioner if a legal practitioner is representing him.

5. If the appellant is in prison, he may present his notice of appeal and the memorandum of the grounds of appeal required by Section 281 to the officer in charge of the prison who shall thereupon forward such notice and memorandum to the registrar of the Court from which the appeal is brought.

281(1) An applicant in an appeal brought in accordance with the provisions of this chapter shall within thirty days, or if the appeal is against a sentence of caning within fifteen days of the day of the pronouncing of the decision appealed against file with the registrar of the Court from which the appeal is brought a memorandum setting forth the grounds of his appeal which will be signed by the appellant or the legal practitioner representing him”.

The two processes mentioned in the above sections of the CPC are the Notice of appeal which may be verbal or written, and the memorandum of grounds of appeal.

‘Although an appellant is required to give particulars of error(s) of law in a ground of appeal complaining of error in law it is not every failure to do so that will render the ground so couched incompetent, particularly where sufficient particulars can be gleaned from the ground of appeal in question and the respondent and the Court are left in no doubt as to the particulars on which the ground is sassed.”

From the foregoing, it becomes clear that the basis for the decision of the court are not in the least supportable.

I resolve this issue in favour of the appellant.

The second issue relates to the striking out of the appeal on a date fixed for ruling on the application to amend the Notice of appeal.

The appellant has submitted that a court cannot proceed with any other business than that already fixed for the day; SPARKLING BREW. LTD VS. BCCI (NIG) LTD. (2003) 3 NWLR (Pt. 806) 1; MENKITI VS. MENKITI (2000) 8 NWLR (Pt.667) 54. It was submitted that the action of the High Court was in violation of the principle of the right to fair hearing; ADIGUN VS. A.G. OYO STATE (1987) 1 NWLR (Pt. 53) 678; AKANDE VS. STATE (1988) 3 NWLR (Pt.85) 681 AND ALFA VS. ATANDA (1993) 5 NWLR (Pt.296) 729.

The respondent has argued that the learned Judges considered all the issues raised by both parties and gave their decision on same as required by law. The case of B.G. EXPLORATION AND PRODUCTION NIG. LTD. VS. MR. KEHINDE JOHNSON (2011) All FWLR (Pt.572) 1829 was cited in support.

The learned appellate Judges delivered the ruling on the motion of the appellant on 31/1/13 after hearing the parties in respect thereof. The application was struck out with the appeal earlier filed and sought to be amended. The learned Judges came to this conclusion based on their view that the Notice of appeal was incompetent. It is of course the law that the course open to the court where the Notice of appeal is incompetent is to strike out such Notice. See AMADI VS. OKOLI (1977) 3 SC 112. The incompetence of the Notice of appeal also affects the competence of the court to entertain the appeal itself. See NWEZE VS. EZE (1999) 3 NWLR (Pt.594) 410.

I have however in my consideration of issue one in the instant appeal found that the striking out of the appellant’s appeal was erroneous, and this has rendered this issue insignificant.

The appellant has by the third issue invited this Court to exercise its power under Section 15 to review the evidence before it to determine whether that evidence shows the proof of the case beyond reasonable doubt. ALAMIEYESEIGHA VS. IGONIWARI (No.1) (2007) 7 NWLR (Pt.1034) 506.

The respondent contended that ground 3 of the grounds of appeal from which this issue has been distilled cannot competently donate the issue because it is couched as a civil appeal whereas this is a criminal appeal; ODUAH VS. F.R.N. (2012) All FWLR (Pt.650) 1348. It was also argued that the particulars of the omnibus ground do not refer to jurisdiction of the trial magistrate to adjudicate over the charge; so the issue does not proceed from the ground of appeal; SHETTIMA VS. GONI (2012) All FWLR (Pt.609) 1007.

The learned counsel submitted that an appellant who intends to challenge the jurisdiction of a trial court must file a valid ground of appeal from which the issue can be raised; ANYOHA VS. CHUKWU (2008) 4 NWLR (Pt.1076) 31; GBARIGHA VS. TORUEMI (2013) 6 NWLR (Pt.1350) 289; AGBULE VS. WR & Co. Ltd. (2013) 6 NWLR (Pt.1380) 318; NWOKIDU VS. OKANU (2012) 3 NWLR (Pt.1181) 362.

It was contended per adventure that the Magistrate Court had the jurisdiction to hear the charges against the appellant.

On the exercise of power under Section 15 of Court of Appeal Act by this Court to review the no case submission made before the Magistrate Court, the learned counsel submitted that this Court can only invoke that Section where there is a clear decision of the lower Court that has necessitated a rehearing. The appellant raised the issue of illegality of the contract for the first time in the address on the no case submission but there is no evidence at the trial court to show that he acted in good faith. It was submitted that address of counsel no matter how brilliant, does not take the place of evidence; NKORO V. AZURU (2011) ALL FWLR (Pt.556) 530; OLUSANYA V. STATE (2012) ALL FWLR (Pt.656) 573.

It was submitted also that the reasoning and conclusion of the learned Magistrate are valid since he had not heard the facts that constitute the allegation raised by the appellant in the written address; OKONKWO V. CBN (2012) ALL FWLR (Pt.605) 293.

In the Reply Brief of the Appellant, the senior Counsel submitted that the purport of a no case submission is to ensure that time is not wasted by the accused person opening his defence where the prosecution has not made out a case against him; EKWUNUGO V. F.R.N. (2008) 15 NWLR (Pt.1111) 630; SUBERU V. STATE (2010) 8 NWLR (Pt.1197) 586. The senior Advocate contended that the basic elements of the offence alleged against the appellant were not proved.

Now the ground from which this issue was allegedly raised is that “the Ruling is against the weight of evidence placed before the Lower Court”.

I agree with the learned Counsel for the respondent that the couching of the appellant’s omnibus (or general) ground of appeal can only relate to a civil appeal. I am also in unison with the same Counsel that the omnibus ground of appeal cannot sustain or donate a specific point of law. See HENKEL CHEMICAL LTD. V. A.G. FERRERO & CO. (2003) 4 NWLR (Pt.810) 306.

The appellant has invited this Court to exercise its powers under Section 15 of the Court of Appeal Act, 2004 in respect of the No case submission made before the Chief Magistrate, Kano. Before going into consideration of this invitation by the appellant it is quite apposite to state that what is before this Court is an appeal against the decision of the appellate division of the High Court of Kano State in respect of the objection raised before that Court as to the validity of the appellant’s appeal. The appellate High Court’s decision was limited to that objection and did not extend to the No case submission. In other words there is no decision of the High Court before this Court on the issue of the No case submission. It is also clear that the only valid order the High Court could have made was to grant or refuse the appellant’s application upon consideration of the affidavit and counter affidavit of the parties.

For ease of reference, I reproduce Section 15 of the Court of Appeal Act 2004 as follows:

In the instant appeal, the lower appellate Court could not, and did not make any order in respect of the No case submission, and there is therefore no decision of that Court on the No case submission before this Court. Based on the foregoing I do not consider it fit and proper to invoke the provisions of Section 15 of the Court of Appeal Act, in respect of the no case submission made by the appellant at the Magistrate Court, and upon which there has not been a decision of the appellate High Court.

The appellant had sought to delete grounds and particulars of appeal described as Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13; a part of 14 titled issues for determination from ground 14; 15, 16, 18, 19 and to argue additional grounds of appeal. The implication of these prayers is that grounds 10 and 17 of the grounds of appeal remain intact while grounds 14, 15, 16, 18 and 19 are affected only with respect to the issues for determination. All these grounds having been saved from the original grounds of appeal can accommodate the additional grounds he sought to argue.

It is my view that the appellate High Court failed to judicially and judiciously exercise its discretion when it struck out the appellants’ appeal in its entirely with the application to amend. The decision of the High Court is therefore set aside.

This appeal therefore succeeds to that extent and consequently the case No. K/13A/2012 is returned to the Chief Judge of Kano State for hearing of the appellant’s appeal by the appellate division of that court based on the surviving grounds of appeal.

By the reason of the foregoing order of this Court, it has become inexpedient to determine the merit of the motion filed by the appellant on 7/2/14 for order admitting him to bail. The issue of appellant’s bail is to be considered by the High Court. The motion is consequently struck out.

UWANI M. ABBA AJI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother I.O. Akeju JCA.

I agree with the reasoning and conclusion of my learned brother that the Appellate High court failed to exercise its discretion judicially and judiciously when it struck out the Appellant’s appeal in its entirety when the application before it was application to amend the Grounds of appeal. In the circumstances therefore, this Court will interfere with such exercise of discretion. See Nwabueze vs. Nwosu (1988) LPELR 2081 (SC), UBN PLC vs. Nwanajuo (2012) LPELR 7914 (CA).

I therefore join my learned brother in allowing this appeal. I endorsed the consequential order made in the lead judgment directing the hearing of the Appellants appeal by the Appellate Division of the Kano State High Court, based on the surviving grounds of appeal.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, I. O. AKEJU, JCA.

I agree with his reasoning and conclusion therein reached.

Accordingly, the appeal succeeds and I abide by the consequential orders in the lead judgment.

Appearances

Hassan M. Liman, SANFor Appellant

AND

Okechukwu Nwaeze Esq.,For Respondent