ALHAJI MANU BODEJO v. MAIKUDI SUNKAMI
(2019)LCN/13805(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of October, 2019
CA/YL/146C/2017
RATIO
“The first issue for determination is whether the filing of the Appeal from the decision of the Magistrate Court to the High Court (the Court below) makes the Appeal incompetent or not? It is important to state here that an appeal from a decision of a Magistrate Court in Adamawa State to the High Court is regulated by the provisions of Criminal Procedure Code Law Cap. 39 Laws of Adamawa State (CPC) and Order 47 of the Adamawa State High Court (Civil Procedure) Rules 2013 (ASHCR). Section 279 (1) of the CPC provides:- “Appeals from a magistrate’s Court to the High Court shall be in accordance with the High Court Law or this Criminal Procedure or any rules made under either of such laws”. By virtue of Section 280 (1) of the CPC an Appeal can be commenced at the registry of the trial Court or the Appeal Court. The section provides:- “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 the legal practitioner is representing him.” The lower Court was therefore on a sound footing when it held at page 163 of the printed record that:- “I am of the view that even with the above quoted provision of the law it is beyond any argument that the Notice of Appeal filed before the registry of this honourable Court is not only valid but competent.” In other words, the notice of appeal filed at the registry of the lower Court was quite in order and competent. See on this C.B.N. V. OKOJIE (2004) 10 NWLR (PART 882) 488 Page 512 at 513. Furthermore by the provision of Order 47 Rule 17 of Adamawa State High Court (Civil Procedure) Rules an Appeal will not be declared incompetent by virtue of error or defect therein. The order provides:- “No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered into under this order for the due prosecution of the appeal for any alleged error or defect therein…..” In the instant case, the lower Court exercised its discretion by virtue of Order 47 Rule 17 of Adamawa State High Court (Civil Procedure) Rules, 2013 by allowing the filing of the notice of appeal before it; thereby waiving the filing of the notice before the trial Court.” Per BAYERO, J.C.A.
“I have carefully gone through the record of proceedings of the trial Chief Magistrate Court, Jada especially the evidence of the prosecution and defence witnesses contained at pages 8 – 13 of the Record of Appeal and observe that the Appellant before the trial Court did not make out a case of criminal trespass against the Respondent. As such there was no justification for convicting the Respondent as the lower Court held. This Court will therefore not interfere with the findings of the lower Court since it is not perverse. See OGUNTAYO V. ADELAJA & ORS. (2009) 6 – 7 S.C. (Part 11) 91 and ANEKWE V. NWEKE (2014) All FWLR (Part 739) 1154 at 1156 Paragraphs D – E.” Per BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ALHAJI MANU BODEJO Appellant(s)
AND
MAIKUDI SUNKAMI Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A.(Delivering the Leading Judgment): This is an Appeal against the Judgment of Adamawa State High Court sitting in Yola delivered on 14th March, 2017 by Waziri J in Suit number ADSE/4CA/2016. The Appellant who was the Respondent at the lower Court filed a direct complaint before the Chief Magistrate that the Respondent and one Hammanjoda Julde trespassed on his farmland cutting down some trees therein. The Chief Magistrate sentenced and convicted the Respondent for the offence of trespass. On Appeal to the High Court the conviction and sentence was set aside. Dissatisfied, the Appellant sought and was granted leave to Appeal by the lower Court on 16/06/2017. Notice of Appeal was filed on 5/07/2017. The Record of Appeal was compiled and transmitted on 10/08/2017. The original Appellant Brief was filed on 13/10/2017; with the leave of this Court obtained on 11/03/19 it was amended. The amended Appellant Brief was filed on 25/03/2019. It was deemed filed and served on 11/04/2019.
?The Respondent?s Brief was filed on 19/01/2018 deemed on 1/03/2018 was further deemed filed and served on 11/04/2019. The
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Appellant Reply Brief was filed on 2/03/2018, with the leave of this Court obtained it was filed on 25/03/2019 and deemed properly filed and served on 11/04/2019. In the amended Appellant Brief, three issues were formulated for determination:-
1. Whether Appeal No. ADSE/4CA/2016 is incompetent before the Lower Court and if yes, whether the Lower Court was in error to assume jurisdiction on the appeal ? distilled from grounds one (1) and two (2) of the Grounds of Appeal.
2. Whether the noncompliance with Section 281(1) of the Criminal Procedure Code Cap. 39 Laws of Adamawa State 1997 and Order 47 Rule 1 of Adamawa State High Court (Civil Procedure) Rules 2013 is a mere irregularity which cannot render Appeal No. ADSE/4CA/2016 incompetent ? distilled from ground three (3) of the Grounds of Appeal.
3. Whether the lower Court acted in error when it quashed the entire decision of the trial Magistrate Court Jada without regard to the fact that, the Respondent?s Co-Accused in the person of Hammanjoda Julde is not a party to Appeal No. ADSE/4CA/2016 and did not appeal against the decision of the trial Magistrate Court ? distilled
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from ground five (5) of the Grounds of Appeal.
The Appellant?s counsel abandoned ground four (4) of the Grounds of Appeal. It was therefore struck out.
On issues one and two learned counsel submitted that the non-compliance with Section 281(1) of the Criminal Procedure Code (CPC) Cap. 39 Laws of Adamawa State, 1997 and Order 47 Rule 1 of the Adamawa State High Court (Civil Procedure) Rules 2013 (ASHCR) is not a mere irregularity but renders Appeal No. ADSE/4CA/2016 incompetent and thereby rob the jurisdiction of the Lower Court to entertain the Appeal. That an appeal from Magistrate Court in Adamawa State to the Adamawa State High Court of Justice is regulated by the Criminal Procedure Code Law Cap. 39 Laws of Adamawa State (CPC) and Order 47 of the Adamawa State High Court (Civil Procedure) Rules 2013 (ASHCR). Thus, Section 279 of the Criminal Procedure Code Cap. 39 Laws of Adamawa State Provides as follows:
?An Appeal from a Magistrate Court to the High Court shall be in accordance with the High Court Laws or this Criminal Procedure Code or any Rules made under either of such laws.?
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That the implication of Section 279 CPC (Supra) is that both the Criminal Procedure Code Cap. 39 Laws of Adamawa State and the Adamawa State High Court (Civil Procedure) Rules 2013 particularly Order 47 shall regulate every proceedings in Criminal Appeal that emanate from Adamawa State Magistrate Court to Adamawa State High Court of Justice. That, it is trite that any party who wishes to appeal to the Adamawa State High Court of Justice against the decision of any Magistrate Court in Adamawa State shall within 30 days file his Notice of Appeal setting forth his Grounds of Appeal at the trial Magistrate Court and the trial magistrate Court shall subsequently, transmit the Appellant?s Notice of Appeal along with the Record of Appeal to the High Court of Justice. He referred to Section 281(1) of the Criminal Procedure Code (CPC) Cap. 39 Laws of Adamawa State 1997 which provides as follows:
?An Appellant in an appeal brought in accordance with the provisions of this Chapter shall within 30 days or, if the appeal is against a sentence of caning, within 15 days of the day of the pronouncing of the decision appealed against filed with the Registrar of the Court from which the Appeal is
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brought a Memorandum setting forth the grounds of his appeal which shall be signed by the Appellant or the Legal practitioner representing him.?
That Order 47 Rule 1 of the Adamawa State High Court (Civil Procedure) Rules 2013 (ASHCR) also makes a similar provision with Section 281(1) of CPC (Supra), Order 47 Rule 1 (Supra) provides as follows:
?Every Appeal shall be brought by Notice of Appeal which shall be filed in the Lower Court within 30 days of the decision appealed from and served on all other parties affected by the Appeal within that period.?
That, the combine effect of Section 281(1) CPC (Supra) and Order 47 Rule 1 ASHCR (Supra) makes it mandatory for an Appellant to file his Memorandum or Notice of Appeal at trial Magistrate Court. It is worthy of note that in both Section 281(1) CPC (Supra) and Order 47 Rule 1 ASHCR (Supra) an auxiliary verb ?shall? is used which makes it mandatory for every Appellant to comply with the two provisions.
?According to counsel, the issue for determination is ?Did the Respondent while filing Appeal No. ADSE/4CA/2016 comply with the provision of Section 281(1) CPC
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(Supra) and Order 47 Rule 1 ASHCR (Supra) and if not, would the consequence of such non-compliance renders Appeal No. ADSE/4CA/2016 incompetent thereby robbing the jurisdiction of the Lower Court? According to counsel, the Respondent did not comply with the provision of Section 281(1) CPC (Supra) and Order 47 Rule 1 ASHCR (Supra) at the time he filed Appeal No. ADSE/4CA/2016 and that makes the appeal incompetent and thereby robbed the jurisdiction of the Lower Court.
That the Appellant on 14th February, 2017 filed a notice of Preliminary Objection challenging the competency of Appeal number ADSE/4CA/2016 at the Lower Court as reflected at pages 115 to 128 of the Record of Appeal of the Lower Court. Exhibit ?A? attached to the Appellant?s Notice of Preliminary Objection which is at page 119 of the Record of Appeal of the Lower Court is a Letter dated 8th February, 2017 from Appellant?s Legal Practitioner addressed to Director Litigation Adamawa State High Court of Justice, Yola seeking confirmation whether Appeal No. ADSE/4CA/2016 was filed at the Registry of the trial Magistrate Court or at the Registry of the High Court of Justice,
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Yola while Exhibit ?B? at page 125 of the Record of Appeal of the Lower Court is a reply Letter dated 10th February, 2017 from the Deputy Chief Registrar Litigation address to the Appellant?s Legal Practitioner confirming that Appeal No. ADSE/4CA/2016 was filed at the Registry of the High Court of Justice, Yola instead of the trial Magistrate Court Jada.
That the combine effect of the above Exhibits ?A? and ?B? clearly reveals that the Respondent did not comply with Section 281(1) CPC (Supra) and Order 47 Rule 1 ASHCR (Supra) while filing Appeal No. ADSE/4CA/2016. He urged the court to so hold.
That, the lower court acted in error in its ruling/judgment at page 213 to 218 of the Record of Appeal when it held that the non-compliance with Section 281(1) CPC (Supra) and Order 47 Rule 1 ASHCR (Supra) is a mere irregularity and the Appellant?s Notice of Preliminary Objection is devoid of any merit. He referred to page 218 of the Record of Appeal where the lower court held as follows:
?I am left in no doubt the Notice of Appeal filed at the Registry of the High Court of Justice, Yola even though
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done in contravention of Order 47 Rule 1 is only a mere irregularity which only leads to striking out the Appeal, but alas there are saving grace as provided under Order 47 Rule 16 of the Rules of this Honourable Court and Section 280(1) of the Criminal Procedure Code couple with the decided cases by both the Appeal Court and the Apex Court earlier on referred in this ruling. It is in the light of this, I consider the Notice of Preliminary Objection of the Respondent to be devoid of any merit and same must fail. I hold that the Notice of Appeal filed before the Registry of High Court of Justice, Yola to be competent; hence this Honourable Court has the jurisdiction to hear and determine the appeal. Now to the merit of the Appeal, I have before now referred to issues formulated by the Appellant which are adopted by the Respondent as issues arising for the determination
That the lower Court failed to make an order to waive the compliance with Section 281(1) CPC and Order 47 Rule 1 (Supra) by the Respondent so that the appeal will be competent before it before proceeding to determine the appeal. Failure of the Lower Court to make an order to
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waive the compliance with Section 282(1) CPC and Order 47 Rule 1 HCCR (Supra) as the Supreme Court did in OBADIARU V. UYIGUE & ANOR (1984) SC 155 still renders the Appeal incompetent and he urge the Court to so hold.
That the Appellant?s preliminary objection relates to non-compliance with the law and the rules of Court which directly attack the Respondent?s Notice of Appeal dated 18th September, 2016 and the Respondent?s Notice of Appeal is not a process of the trial Magistrate Court that will warrant the lower Court to invoke Order 47 Rule 16 of the Adamawa State High Court (Civil Procedure) Rules 2013.
Counsel further submitted that the lower Court in its ruling/judgment at pages 217 ? 218 held that the non-compliance with Section 281(1) CPC and Order 47 Rule of Adamawa State High Court (Civil Procedure) Rules 2013 is a mere irregularity and the Appellant?s Preliminary objection is a mere technicality and he relied on the case of OJU V. ABDURRASHEED (Supra).
That it is a trite that rules of Court are meant to be obeyed because they are binding on parties and have the force of law.
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He cited IDRIS V. ABUBAKAR & 2 Ors (2011) All FWLR (Part 557) Page 733 at 736 Ratio 3 and submitted noncompliance with rules of Court as in the instant case, would deprive the Appellate Court of the Jurisdiction to entertain the appeal as enunciated by the Supreme Court in NWAIGWE V. OKERE (2008) All FWLR (Part 431) 843.
According to counsel, a Notice of Appeal is the foundation or life of every appeal and where it is defective, it affects the whole appeal thereby robbing the jurisdiction of the Appellate Court to entertain the appeal. That the non-compliance with Section 281(1) CPC and Order 47 Rule 1 ASHCR (Supra) by the Appellant which makes it mandatory for the Appellant to file his Notice and Grounds of Appeal at the trial Magistrate Court renders the whole appeal at the Lower Court incompetent.
On issue three counsel submitted that, the trial Magistrate Court Jada in his judgment at page 156 of the Record of Appeal convicted and sentenced the Respondent alongside with one Hammanjoda Julde to ten (10) month imprisonment each or pay fine of N3,000 only for the offence of Criminal trespass contrary to Section 342 of the Penal Code Law. That it is the Respondent
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only that appealed against the decision of the trial Magistrate Court Jada. The lower Court in its judgment at page 237 set aside the judgment of the trial Magistrate Court Jada without minding the fact that the Respondent?s co-accused did not appeal against the decision of the trial Magistrate Court Jada. The lower Court ought to have set aside the sentence and conviction of the Respondent only without setting the entire judgment aside. That the act of the lower Court in setting aside the entire judgment of the trial Magistrate Court Jada makes the judgment of the Lower Court perverse. He placed reliance on the case of TIPPI V.NOTANI (2011) All FWLR (part 584) at Page 2009 to 2010 Ratio 2. He urged the Court to hold that the decision of the lower Court was perverse, and allow the appeal on these grounds.
In his response, the Respondent through his counsel formulated two issues for determination thus:-
1. Whether the filing of a notice of appeal in the registry of an appellate Court makes the appeal incompetent. (Distilled from grounds 1, 2 and 3 of the grounds of appeal).
2. Whether the Judge of the lower Court was right when he set aside
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the judgment of the Chief Magistrate Court, Jada and discharged and acquitted the Respondent of the offence of criminal trespass. (Distilled from ground 5 of the grounds of appeal).
On issue one, counsel submitted that by virtue of the provision of Section 280 (1) of the Criminal Procedure Code, Cap. 39, Laws of Adamawa State, 1997, an appeal can be commenced by the Appellant in the registry of the trial Court or the registry of the appellate Court. That for the purpose of clarity, Section 280 (1) of the Criminal Procedure Code, Cap. 39 Laws of Adamawa State, 1997 provides that:
?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.?
That from the above statutory provision, it follows therefore that the Respondent?s notice of appeal
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filed before the registry of the Court below is competent and valid.
That the lower Court was on a sound legal footing in its pronouncement on the effect of Section 280 (1) of the Criminal Procedure Code in his judgment at page 163, paragraph 3 of the printed record when it held that:
?I am of the view that even with the above quoted provision of the law it is beyond any argument that the Notice of Appeal filed before the Registry of this Hon. Court is not only valid but competent.?
According to counsel, criminal appeal from a Magistrate Court to the High Court is governed by the provisions of the Criminal Procedure Code. That Section 279 (1) of the Criminal Procedure Code, Cap. 39 Laws of Adamawa State, 1997, provides 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 any of such Laws?.
That the import of the above section is that appeals are regulated by the Criminal Procedure Code or the High Court (Civil Procedure) Rules. He therefore submitted that the Appellant?s counsel argument at
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pages 7-8 of the Appellant?s Brief of Argument that the filing of the Respondent?s notice of appeal before the registry of the lower Court renders it incompetent and invalid is of no moment.
That by virtue of Order 47 Rule 17 of the Adamawa State High Court (Civil Procedure) Rules, 2013, the lower Court possesses the vires to determine on the merit a notice of appeal filed by an Appellant which is alleged to have errors or defects. Order 47 Rule 17 of the Adamawa State High Court (Civil Procedure) Rules, 2013 provides that:
?No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered into under this Order for the due prosecution of the appeal for any alleged error or defect therein; but if the error or defect appears to the Court to be such that the respondent on the appeal has been thereby deceived or misled, the Court may amend it and if it is expedient to do so, adjourn the further hearing of the appeal, the amendment and adjournment, if any, being made on such terms as the Court may think just.?
?According to counsel the effect of the above order is
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that the lower Court can overlook the alleged errors and defects in the notice of appeal and proceed to determine the appeal on the merit as the justice of the case demands, suffice that the Respondent is not deceived or misled.
That similar situation as in the instant appeal had arisen before superior Courts of record. The common string in all the cases was whether an appeal filed in the registry of the appellate Court was competent. The Courts in their determination to do substantial justice deemed such appeals filed before the registry of the appellate Courts as being proper and proceeded to determine the appeals on the merit. Counsel referred to RICHARD ONI OBADIARU V. GRACE UYIGUE & ANOR (SC. 155/1984) where the Supreme Court held thus:-
?However, in the interest of justice and in order to save time which would have been wasted by striking this appeal out merely, we decided to deem this as an application for leave to file the notice and grounds, again out of time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice to be filed in the Court below, that is at the Court
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of Appeal. By doing this, we now have a situation where the appeal is now before us. This means in practical terms that the only ground of appeal filed must necessarily succeed.?
That Uwais J.S.C. concurring with the lead judgment opined that:
?The notice of appeal in this case filed in this Court instead of the Court below contrary to Order 8 Rule 2 of the Supreme Court Rules, 1985? in the light of the foregoing, I am inclined to waive the irregularity attendant to the filing of the appeal before this Court, and allow the appeal.?
It was the submission of learned Respondent?s counsel that an appellate Court will not ordinarily interfere with the exercise of judicial discretion by a lower Court, unless it is shown that such discretion was exercised in bad faith and without due regard to the justice of the case.
That in the instant appeal, the Appellant has flagrantly failed to show that the lower Court acted in bad faith or had been swayed by irrelevant considerations in its ruling that the non-filing of the notice of appeal before the trial Court was mere irregularity. Neither did the Appellant established
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before this Court that the lower Court acted arbitrarily without regards to the justice of the case nor that he was deceived or misled by the alleged error or defect by the Respondent in filing the notice of appeal before the registry of the lower Court. Thus, the discretion exercised by the lower Court cannot be substituted by this Court. He urged this Court to so hold.
That the Appellant submitted in paragraphs 4.12-4.15 of the Appellant?s brief of argument that the learned lower Court was in error when it relied on the case of RICHARD ONI OBADIARU V. GRACE UYIGUE & ANOR (supra). He further submitted that the lower Court failed to make an order waiving the requirement that the notice of appeal must be filed in the registry of the trial Court as was done by the Supreme Court in the above cited case. Learned counsel submitted that this line of argument is misleading. That it is on record that the lower Court expressly made an order that the notice of appeal filed before the registry of the lower Court was competent. The learned Judge of the lower Court held at page 165 lines 14-17 of the printed record that:
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?I hold that the Notice of? Appeal filed before the Registry of High Court of Justice, Yola to be competent, hence this Honourable Court has the jurisdiction to hear and determine the appeal.?
On the Appellant counsel?s argument that the provisions of Order 47 Rule 16 of the Adamawa State High Court (Civil Procedure) Rules, 2013 relied upon by the lower Court only relates to amendment of the proceedings of the lower Court; learned counsel submitted that a decision of a Court cannot be reversed where it is correct but anchored on a wrong reason or law. He referred to the case of Ajayi v. Harry (2015) All FWLR (Pt. 770) 1302 at 1303-1304 paragraph F where the Court of Appeal held that:
?It is not every error in judgment that leads to a reversal of the judgment except if it is substantial and has led to a miscarriage of justice and if the said judgment is perverse?.
That the Appellant has not shown that the ruling of the lower Court has occasioned a miscarriage of justice that will warrant this Court to set aside the judgment.
?Counsel further submitted that there is a distinction between a defect in the competence of an action and a defect in
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procedure. A defect in competence of an action spells absence of jurisdiction while a defect in procedure shows an irregularity in the process of adjudication and may not be fatal to the case. He referred to the case of ODU V. FAWEHINMI (supra) at Page 1855 Paragraph B and submitted that the contention that mere filing of a notice of appeal at the registry of the lower Court robs the lower Court of jurisdiction, is tantamount to the Court and parties being enslaved by the rules of Court.
That under its inherent powers, the lower Court can hear and determine an appeal filed before the registry of the lower Court. He urged this Court to so hold and resolve this issue in favour of the Respondent.
On issue two, counsel submitted that the Respondent was arraigned before the trial Court for the offence of criminal trespass. That for the offence of criminal trespass to be established, the prosecution is required to prove the following elements against the accused person:
1. That the complainant had possession of the property in question.
2. That the accused entered into or upon the property or that he unlawfully remained there after having
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lawfully entered therein or thereto.
3. That he so entered or remained there with the intention:
(i) To commit an offence; or
To intimidate, insult or annoy the person in possession:…
That the evidence of Respondent?s witnesses (PW1 and PW2) in pages 9-12 of the record of proceedings did not disclose the aforementioned ingredients of criminal trespass. That all the witnesses before the trial Court are ad idem that the Respondent was the person in possession of the land as at the time the alleged offence was committed.
?That the accused persons own the land in dispute since we were young. That 1st accused person bought the land from PW1 while second accused inherited it from his uncle?.
That it is crystal clear from the evidence before the trial Court that the Respondent was in possession of the land. According to counsel, where the issue of title to land is before the Court it must be determined before the party in whose favour it is resolved can commence an action for criminal trespass against a person who enters the land. He referred to the case ofALI V. UGWU (2012) All FWLR (Part 619) 1076 at 1083 Paragraph D.
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That in the instant appeal, the title to the disputed land has never been resolved by any Court, neither has the Appellant been declared the owner of the land by a competent Court before instituting the case of criminal trespass at the trial Court. It follows therefore that the trial Court acted on a wrong legal footing when it convicted the Respondent for the offence of criminal trespass when the case before it was purely civil in nature as it relates to title to land.
That the lower Court agreed with the above position of law when it held in its judgment at page 176 of the record of proceedings that:
?I have critically examined the submissions of learned counsel for the parties alongside the printed record of proceedings of the trial Court and I am of the view that the case before the trial Court had to do with title to the disputed land rather than a case for criminal trespass. This fact is borne out of the evidence of PW2 as contained on pages 3-4 of the printed record of the trial Court. The evidence of DW1, DW2 and DW3 all support the assertion that issue of title to the disputed land was what ought to have preoccupied the trial Court
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even at that level, the trial Court would have been without jurisdiction to handle the issue of title to land as same is not within the purview of that Court. I am further fortified by the fact that in the judgment of the trial Court on page 17 lines 21-24 thereof. The Court of Appeal has spoken, I in this Court is bound to bow to the powerful wisdom in the two cases cited by the appellant that has to do with issue of title to land must first be resolved before laying a criminal charge of trespass.?
That the Respondent?s complaint vide his notice of appeal was against the whole decision of the trial Court. See paragraph 2 of the Respondent?s notice of appeal before the lower Court at page 3 of the record of proceedings; and the duty of an appellate Court is to decide whether the decision of the trial Court is right or wrong not necessarily the reasons for reaching the judgment.
That the holding of the lower Court in discharging and acquitting the Respondent of the offence of criminal trespass was very specific to the Respondent alone. That the Respondent vide his notice of appeal before the lower Court at page 6 of the record of
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proceedings specifically sought for:
?An order setting aside the judgment of the trial Court delivered on the 3rd day of August, 2016 as it affects the appellant, thus discharging and acquitting the Appellant.?
That in the instant case, the Appellant failed to establish that the lower Court ignored the facts or evidence before the trial Court. The Appellant has not equally shown how the lower Court misconceived the thrust of the case presented, or took irrelevant matters into account which substantially formed the basis of its decision. Besides, the Appellant did not establish that the lower Court went outside the issues canvassed by the parties and jeopardized the case on the merit. Finally, the Appellant has not established any miscarriage of justice occasioned by the judgment.
In the amended Reply Brief filed by the Appellant, it was submitted that in reply to Respondent?s argument on issue one on the Respondent?s Brief, the Respondent?s counsel had misconceived the provisions of Sections 280(1) and 281(1) of the Criminal Procedure Code, Cap. 39 Laws of Adamawa State, 1997.
?That the section relates to
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giving notice of appeal to either the lower Court or the Appellate Court while Section 281(1) of the Criminal Procedure Code Cap. 39 Laws of Adamawa State relates to the filing of the Notice of Appeal at the lower Court not the Appellate. That Section 281(1) CPC makes it mandatory for the Appellant to file his Grounds of Appeal at the Registry of the trial magistrate Court and not the Registry of the High Court of Justice, Yola. That there is clear difference between giving a Notice of Appeal and filing of Notice of Appeal or Grounds of Appeal and since the Respondent at the Lower Court choose to merged his notice of appeal and grounds of appeal together, then it becomes mandatory for the Respondent notice of appeal which contained his grounds of appeal to be filed at the trial Magistrate Court in order to comply with both Sections 280(1) and 281(1) CPC (Supra). The failure of the Respondent to comply with these provisions particularly Section 281(1) CPC and Order 47 Rule 1 of the Adamawa State High Court (Civil Procedure) Rules, 2013 renders his appeal incompetent and liable to be dismissed.
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DETERMINATION OF THE APPEAL
The first issue for determination is whether the filing of the Appeal from the decision of the Magistrate Court to the High Court (the Court below) makes the Appeal incompetent or not?
It is important to state here that an appeal from a decision of a Magistrate Court in Adamawa State to the High Court is regulated by the provisions of Criminal Procedure Code Law Cap. 39 Laws of Adamawa State (CPC) and Order 47 of the Adamawa State High Court (Civil Procedure) Rules 2013 (ASHCR). Section 279 (1) of the CPC provides:-
?Appeals from a magistrate?s Court to the High Court shall be in accordance with the High Court Law or this Criminal Procedure or any rules made under either of such laws?.
By virtue of Section 280 (1) of the CPC an Appeal can be commenced at the registry of the trial Court or the Appeal Court. The section provides:-
?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
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forthwith reduced to writing by the registrar and signed by the appellant, or by a legal practitioner if the legal practitioner is representing him.?
The lower Court was therefore on a sound footing when it held at page 163 of the printed record that:-
?I am of the view that even with the above quoted provision of the law it is beyond any argument that the Notice of Appeal filed before the registry of this honourable Court is not only valid but competent.?
In other words, the notice of appeal filed at the registry of the lower Court was quite in order and competent. See on this C.B.N. V. OKOJIE (2004) 10 NWLR (PART 882) 488 Page 512 at 513. Furthermore by the provision of Order 47 Rule 17 of Adamawa State High Court (Civil Procedure) Rules an Appeal will not be declared incompetent by virtue of error or defect therein. The order provides:-
?No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognizance entered into under this order for the due prosecution of the appeal for any alleged error or defect therein?..?
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In the instant case, the lower Court exercised its discretion by virtue of Order 47 Rule 17 of Adamawa State High Court (Civil Procedure) Rules, 2013 by allowing the filing of the notice of appeal before it; thereby waiving the filing of the notice before the trial Court. The first issue is therefore resolved against the Appellant and in favour of the Respondent.
On the second issue whether the lower Court was right when it set aside the judgment of the Chief Magistrate Court Jada and discharged and acquitted the Respondent of the offence of Criminal trespass; at page 176 of the record of appeal the lower Court held:-
?I have critically examined the submissions of learned counsel for the parties alongside the printed record of proceedings of the trial Court and I am of the view that the case before the trial Court had to do with title to the disputed land rather than a case of criminal trespass. This fact is borne out of the evidence of PW2 as contained at pages 3 ? 4 of the printed record of the trial Court. The evidence of DW1, DW2 and DW3 all support the assertion issue of title to the disputed land was what ought to have preoccupied the trial Court even at
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that level trial Court would have been without jurisdiction to handle the issue of title to land as same is not within the purview of that Court. I am further fortified by the fact that in the judgment of the trial court on page 17 lines 21 ? 24 thereof, the Court of Appeal have spoken. I in this Court is bound to bow to the powerful wisdom in the two cases cited by the appellant that has to do with issue of title to land which must first be resolved before trying a criminal charge of trespass.?
I have carefully gone through the record of proceedings of the trial Chief Magistrate Court, Jada especially the evidence of the prosecution and defence witnesses contained at pages 8 ? 13 of the Record of Appeal and observe that the Appellant before the trial Court did not make out a case of criminal trespass against the Respondent. As such there was no justification for convicting the Respondent as the lower Court held. This Court will therefore not interfere with the findings of the lower Court since it is not perverse. See OGUNTAYO V. ADELAJA & ORS. (2009) 6 ? 7 S.C. (Part 11) 91 and ANEKWE V. NWEKE (2014) All FWLR (Part 739) 1154
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at 1156 Paragraphs D – E. Furthermore, the lower Court was right when it set aside the entire judgment of the trial Court since the Respondent vide his notice of appeal before the lower Court reflected at page 6 of the record of appeal sought for:-
?An order setting aside the judgment of the trial Court delivered on the 3rd day of August, 2016 as it affects the appellant, thus discharging and acquitting the Appellant.”
The second issue is therefore resolved against the Appellant and in favour of the Respondent. On the third issue, I am of the opinion that the lower Court should not have set aside the sentence and conviction of Hammanjoda Julde by the trial Chief Magistrate. This is because he did not Appeal against his sentence and conviction. The third issue is therefore resolved in favour of the Appellant and against the Respondent. Although, the third issue is resolved in favour of the Appellant I still hold that this Appeal should be dismissed and is hereby dismissed. I affirm the Judgment of Adamawa State High Court delivered on 14th March, 2017 in Suit number ADSE/4CA/2016. Parties to bear their respective costs.
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CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA. I agree with my learned brother?s reasoning and conclusion arrived at in allowing the appeal in part having resolved the third issue in favour of the appellant while issues one and two were resolved against the appellant.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the lead judgment just delivered by my learned brother Abdullahi M. Bayero JCA.
I too resolve issue 3 in favour of the Appellant but dismiss the appeal, issues 1 and 2 having been resolved against the Appellant.
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Appearances:
Hamidu Buba, Esq.
For Appellant(s)
M. O. Otokpa, Esq.For Respondent(s)
Appearances
Hamidu Buba, Esq.For Appellant
AND
M. O. Otokpa, Esq.For Respondent
