AMAYE v. COP (2020)

AMAYE v. COP

(2020)LCN/14899(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/B/192C/2019

RATIO

APPEAL: RULES ON NATURE OF GROUNDS OF APPEAL

To be brief, the law is settled that:
1. “A ground of appeal which complains of a misunderstanding by the lower Court of the law on misapplication of the law to the facts already proved or admitted is a ground of law.”
2. “A ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact”.
3. “If the group of complains that the judgment of the trial Court is against the weight of evidence is a ground of fact”.
Per Rhodes-Vivour, JSC in Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 4 NWLR (Pt. 1533) 458 at 478 – 479. See also NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148. PER ADUMEIN, J.C.A.

APPEAL: CLASSIFICATION OF GROUNDS OF APPEAL

For the sake of emphasis, the Supreme Court has given a very comprehensive guide to the classification of grounds of appeal and how to determine the nature of a ground of appeal. In Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (supra) at 477 – 478, per Rhodes-Vivour, JSC; the Supreme Court stated as follows:

“In Ogbechie & Ors v. Onochie & Ors (supra) this Court adopted the explanation and the way to identify grounds of appeal by the authors of the Law Quarterly Review Vol. 100 of October 1984. The author said:
1. If the tribunal purports to find that particular events occurred although it is seized of no admissible evidence that the events did not in fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal, in other words, it is a question of fact.
2. If the tribunal approached the construction of a legal term art in a statute on the erroneous basis that the statutory, wording bears its ordinary meaning, it is a question of law.
3. If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
4. If the tribunal, though correctly treating a statutory word or phrase as a legal term of art, errs in elucidation of the word or phrase, it is a question of law.
5. If the tribunal errs on its conclusion (that is, in applying the law to the facts) in a case where this process require the skill of a trained lawyer, it is error of law.
6. If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunals conclusions may be one of the possible resolution, yet it may be a conclusion which the superior Court (has it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law not intervene.”
See further Ogbechie & Ors. v. Onochie & Ors. (1986) 2 NWLR (Pt. 23) 484 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718. PER ADUMEIN, J.C.A.
APPEAL: EFFECT OF AN APPEAL FILED WITHOUT LEAVE OF COURT WHERE LEAVE IS REQUIRED

It is now settled law that where leave is required for a party to appeal and no leave was first obtained, the legal consequence is that a notice of appeal so filed without leave of Court is null and void and of no effect. Any appeal premised on such a purported notice of appeal is incompetent and it is liable to be struck out. See Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 137; Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) 1093; (2007) 6 SC (Pt. 1) 35; Kashadadi v. Noma (2007) 6 SC (Pt. I) 70; Contract Resource Nig. Ltd. v. U.B.A. PLC (2011) 6 – 7 SC (Pt. II) 150; Odedo v. Oguebego (2015) 13 NWLR (Pt.1476) 229 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201. PER ADUMEIN, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

BOLA AMAYE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant and two other defendants, namely: Shola Amaye and Fome Amaye, were arraigned before the Chief Magistrate Court of Edo State, sitting at Oredo, Benin City and they were charged with the following offences:
“COUNT I
That you Fome Amaye ‘m’ with Bola Amaye ‘m’ and Shola Amaye ‘m’, on or about the 10th day of February, 2005 at No. 4, Ikeke Avenue, off Agho Street, Benin City, in the Oredo Magisterial District, did conspire among yourselves to commit felony, to wit: stealing and thereby committed an offence punishable under Section 516 of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State of Nigeria 1976 now applicable to Edo State.
COUNT II
That you Fome Amaye ‘m’ with Bola Amaye ‘m’ and Shola Amaye ‘m’, on the same date, time and place in the aforementioned Magisterial District stole a big brown envelope containing the title documents to the properties of Engr. Samuel Diden Yalaju-Amaye now dead, and thereby committed an offence punishable under

Section 390 (9) of the Criminal Code, Cap. 48. Vol. II, Laws of the defunct Bendel State of Nigeria 1976 now applicable to Edo State.
COUNT III
That you Fome Amaye ‘m’ with Bola Amaye ‘m’ and Shola Amaye ‘m’, on the same date, time and place in the aforementioned Magisterial District with intent to defraud, concealed the documents which are evidence of the title to the estate in land of Engr. Sameul Diben Yalaju-Amaye now dead, and thereby committed an offence punishable under Section 393 of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State of Nigeria 1976 now applicable to Edo State.”

The appellant and his co-defendants pleaded not guilty and the case was tried. At the close of the Prosecution’s case, the appellant made a no-case-submission. In a ruling, delivered on the 5th day of January, 2017; the learned trial Chief Magistrate (Grade I) overruled the no-case-submission and called upon the appellant to enter his defence, as a prima facie case had been made against him.

Being dissatisfied with the decision of the Chief Magistrate’s Court, the appellant appealed to the High Court of Edo State.

In a judgment, delivered on the 23rd day of January, 2019, the High Court of Edo State, holden at Benin City, per Hon. Justice U. I. Erameh, struck out the appellant’s appeal for “lacking in merit”. This appeal is against the said judgment and it is anchored on the notice of appeal filed on 12/02/2019.

Learned counsel for the appellant relied on the appellant’s brief filed on 08/11/2019 but deemed as properly filed on 05/05/2020. On the respondent’s part, a brief was filed on 12/05/2020.

RESPONDENT’S PRELIMINARY OBJECTION
The learned counsel for the respondent filed a notice of preliminary objection on 07/06/2019 and proffered arguments in the respondent’s brief filed on 12/05/2020. The respondent’s preliminary objection is “that the Honourable Court lacks jurisdiction to entertain the appeal as same is incompetent and liable to be struck out” on the following grounds:
“1. The appeal is against a final decision of the High Court of Edo State sitting its appellate jurisdiction over the decision of the Oredo Magistrate Court, Benin City, Edo State.

By the provision of Section 242 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), leave of the lower Court or this Honourable Court is required to appeal against a final decision of the High Court of Edo State sitting its appellate jurisdiction over the decision of the Oredo Magistrates Court, Benin City, Edo State.
3. The failure of the appellant to obtain the requisite leave before filing this appeal renders same incompetent and liable to be struck out for lack of jurisdiction to entertain same.”

Learned counsel for the respondent, Jonathan Ekperusi, Esq. argued that by Section 242 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), leave of Court is required to appeal against a decision of the lower Court, sitting in its appellate jurisdiction. Counsel relied on the case of Oshianie v. Erhunmwunse (1993) 2 NWLR (Pt. 283) 603 and contended that “where leave is required to file an appeal, the filing of a Notice of Appeal without obtaining the requisite leave renders the entire appeal incompetent and invalid”.

Mr. Lucky Oyibo, learned counsel for the appellant

argued in the appellant’s reply brief filed on 15/06/2020, amongst other things, that Section 242 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 17 rules 1, 2 and 6 of the Court of Appeal Rules, 2016 “are not applicable to this appeal” because “From the notice of appeal, the only ground of appeal involves a question of law and being a question of law, the appeal is of right”.

In this case, the parties are ad idem that this appeal is from a decision of the High Court of Edo State, sitting in its appellate jurisdiction.
The right to appeal to this Court, the Court of Appeal, is governed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Appeals as of right, from the High Court to the Court of Appeal, are provided for by Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus:
“241-(1) An appeal shall be 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 ground of appeal involves questions of law alone, decisions or 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;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial

cause or a decision in an admiralty action determining liability; and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
On the other hand, appeals with leave are provided for by Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which states as follows:
“242-(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave

of the Federal High Court or that High Court or the Court of Appeal.”
From the arguments of the parties, the only question for this Court to answer is whether or not the appellant’s sole “ground of appeal involves questions of law alone” as to confer him with a right to appeal under Section 241 (1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The appellant’s notice of appeal spans pages 447 to 449 of the record and its contains the following lone ground:
“The learned trial Judge erred in law in holding that the learned Chief Magistrate was right in holding that a prima facie case has been made out against the appellant and he is called upon to make his defense.
PARTICULARS OF ERROR
1. The Prosecution/respondent failed to prove the essential ingredient or elements of the offence charged.
2. The Prosecution/respondent failed to establish a prima facie case against the appellant.
3. When there was no prima facie case made out against the appellant.”
The ground of appeal reproduced above, is ex facie clear that it is not purely a ground of law.

At its best, it is a ground of admixture of facts and, upon proper ascertainment of the facts, may require the application of the relevant law. To be brief, the law is settled that:
1. “A ground of appeal which complains of a misunderstanding by the lower Court of the law on misapplication of the law to the facts already proved or admitted is a ground of law.”
2. “A ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact”.
3. “If the group of complains that the judgment of the trial Court is against the weight of evidence is a ground of fact”.
Per Rhodes-Vivour, JSC in Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 4 NWLR (Pt. 1533) 458 at 478 – 479. See also NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148.
The appellant’s complaint, as can be gleaned from his only ground of appeal and the particulars thereto, is that the lower Court was wrong to have confirmed the finding of the trial Court that prima facie evidence had been adduced by the Prosecution against the appellant warranting him to

make his defence. This complaint is purely of fact. Now the three particulars to the substantive complaint, which particulars are that the respondent failed to prove the essential elements or ingredients of the offences with which the appellant had been charged and/or that no prima facie case was made against the appellant, require some assessment of the evidence adduced by the respondent with a view to ascertaining whether the legal elements or ingredients had been ex facie established, make it a ground relating to mixed facts and law.
The appellant’s ground of appeal does not relate to an improper understanding of the law by the Court below or a wrong application of the law by the lower Court to already admitted, established or proven facts. It is obviously not a ground of law.
For the sake of emphasis, the Supreme Court has given a very comprehensive guide to the classification of grounds of appeal and how to determine the nature of a ground of appeal. In Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (supra) at 477 – 478, per Rhodes-Vivour, JSC; the Supreme Court stated as follows:

require the skill of a trained lawyer, it is error of law.
6. If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunals conclusions may be one of the possible resolution, yet it may be a conclusion which the superior Court (has it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law not intervene.”
See further Ogbechie & Ors. v. Onochie & Ors. (1986) 2 NWLR (Pt. 23) 484 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
In view of the fact that this appeal is from a decision of the High Court of Edo State, sitting in its appellate jurisdiction and not in its original jurisdiction, and that the only ground of appeal does not involve questions of

law alone, the appellant could only have appealed to this Court under Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which requires him to have first obtained leave of the lower Court or this Court.
It is now settled law that where leave is required for a party to appeal and no leave was first obtained, the legal consequence is that a notice of appeal so filed without leave of Court is null and void and of no effect. Any appeal premised on such a purported notice of appeal is incompetent and it is liable to be struck out. See Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 137; Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) 1093; (2007) 6 SC (Pt. 1) 35; Kashadadi v. Noma (2007) 6 SC (Pt. I) 70; Contract Resource Nig. Ltd. v. U.B.A. PLC (2011) 6 – 7 SC (Pt. II) 150; Odedo v. Oguebego (2015) 13 NWLR (Pt.1476) 229 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201.

The conclusion of the matter is that the respondent’s preliminary objection is very meritorious and I uphold it.

Consequently, this appeal is hereby struck out for being grossly incompetent.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. just delivered. I am in complete agreement with adroit reasoning leading to the inescapable conclusions reached therein. I therefore, adopt the same as mine and I have nothing more to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in its draft, the lead judgment just delivered by my learned brother, M.A.A. Adumein, J.C.A. in which he found the appeal as incompetent and was struck out.
I agree with the reasoning that informed the decision because, leave was required to be obtained but was not obtained which consequently makes the appeal incompetent and was struck out.

I agree with the decision that the appeal be struck out.

Appearances:

Lucky Oyibo, Esq. For Appellant(s)

Jonathan Ekperusi, Esq. For Respondent(s)