BARRISTER YUSUF DANKOFA V FEDERAL REPUBLIC OF NIGERIA (2019)

BARRISTER YUSUF DANKOFA V FEDERAL REPUBLIC OF NIGERIA

(2019) LCN/4630(SC)

In the Supreme Court of Nigeria

Thursday, January 31, 2019


Case Number: SC.127/2014

 

Final Decision- When is the decision of the court said to be final?

“The law is since settled that a decision is final if it finally disposes of all the rights of the parties in the case and gives no room to go back to the same court to ask it to decide on the same matter, See Ogolo Vs Ogolo (2006) 5 NWLR (Pt.972) at Pages 171-172.”

 

Leave of Court- Can this constitutional right be waived?

“Requirement of leave of Court is a procedural requirement of constitutional significance. Put differently, it is a procedural step of constitutional flavour. While I’m minded that the Court tend to overlook, in deserving situations, innocuous flaws for the purpose of doing substantial justice, Constitutional requirement of leave of Court though procedural, cannot be waived as doing otherwise will render the decision in frontal collision with the Constitution.

 

Ground of Appeal- Whether a ground of appeal is one of Law or Fact?

“I feel fortified in that view having been guided by earlier decisions of this court on how grounds of appeal may be categorised of law or mixed law and facts or of law may be ascertained. I shall make reference to the case of BASF Nigeria Limited v Faith Enterprises Ltd (2010) 1 SCNJ 223 at 247-248 for guidance thus:- “A ground of law arises where a ground of appeal indicates that the trial court or, an appellate court misunderstood the law or misapplied the relevant law or principles of law to the proved or admitted facts in a particular case. (Okorie v Udom (I960) SCNLR 360; Ogbechie v Onochie (NO. l) (1986) 2 NWLR (Pt.23) 484 referred). (2). The principles guiding the court in its determination of whether a ground of appeal or otherwise is one of law or of fact or of mixed law and facts are as follows: – a)Whether the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based such a ground is of mixed law and facts. b)A ground which challenges the findings of fact or issue of law and mixed fact considered by a trial court is one of law and fact. c)A question arising out of the evaluation of the evidence tendered at the trial is ground of fact. d)A ground of appeal which arises out of misunderstanding of the law by a trial court of appellate court is a ground of law. e)A complaint about wrongful admission of evidence is also a question of law. Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718; Ogbechie v Onachie (1986) 2 NWLR (Pt.23) 484; Anoghalu v Oraclosi (1994) 2 NWLR (Pt.324) 68 referred to)”.

JUSTICES:

SIDI DAUDA BAGE

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

EJEMBI EKO

 

APPELLANTS

BARRISTER YUSUF DANKOFA

 

RESPONDENTS

FEDERAL REPUBLIC OF NIGERIA

 

 

(DELIVERED BY SIDI DAUDA BAGE, JSC)
This is an appeal against the decision of the Court of Appeal sitting in Kaduna in Appeal No. CA/K/13C/2010 delivered on 13th February 2014 which struck-out the appeal on the basis of being incompetent based on the Respondent’s preliminary objection. Being dissatisfied with the ruling of the Court below, the Appellant filed this appeal vide a Notice of Appeal of three grounds dated 20th February, 2014.

SUMMARY OF FACTS:
The Appellant was arraigned before the High Court of Kaduna State on a four Count charges dealing false pretence with intent to defraud by obtaining the sum of N250,000.00, and N750,000.00 contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act of 2006 and punishable under Section 1(3) of the Act, for making false document and using false document as genuine contrary to Section 364 of the Penal Code. The Appellant pleaded not guilty to the charge. While the prosecution called eight (8) witnesses to testify on its behalf, the Appellant (as the Accused person) opted for a no case submission which was overruled by the trial Court. Being dissatisfied with the ruling on ‘No Case Submission7, the Appellant lodged an appeal at the Court of Appeal in Kaduna Division. The Respondent raised a preliminary objection on the competence of the Appeal on the ground that the Notice of Appeal filed by the Appellant dated 9th October 2009 (wrongly described as A9th October 2004′ at page 2 of the Appellant’s Brief) is incompetent being one that raised issues of mixed law and facts which by virtue of the provisions of 241(l)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) requires leave of court.
In its ruling, as contained at pages 270-288, the lower Court upheld the Preliminary Objection of the Respondent and held that the appeal was incompetent and proceeded to strike out same. The lower Court, in the lead Judgment per Abdu Aboki JCA, also directed that the Appellant should proceed to enter his defence to the Four-Count charge against him. Being dissatisfied, the Appellant decided to explore the option of further appeal to this Court.
ISSUES FOR DETERMINATION:
The Appellant formulated three issues for determination at page 2 of the Appellants Brief, thus:
“1) Whether the Court of Appeal has properly and correctly decided the issue which formed the basis of the Preliminary Objection raised by the Respondent as to the competence of the appeal by dint of the failure of the Appellant to first obtain leave of the Court on the ground that the issue raised in the grounds of appeal bother on mixed law and fact (Ground 3).
2) Whether the Court of Appeal was correct in the determination of the Appeal before it by dint of its failure to look at the provisions of Section 241(l)(b) of the amended 1999 Constitution of the Federal Republic of Nigeria vis-a-vis the admitted facts in evidence before arriving at the conclusion that leave of the Court is required before the Appellant could file his appeal against the interlocutory decision in relation to the no case submission (Ground 2).

3) Whether in view of the provisions of Section 241(l)(b) of the 1999 Constitution of the Federal Republic of Nigeria as amended the Court of Appeal, Kaduna Judicial Division, was correct in its decision that leave of the learned trial Court or the Court of Appeal is required before filing the appeal against the interlocutory decision relating to the no case submission in this matter (Ground 1).”
On its part, the Respondent formulated one issue for determination at pages 1-2 of the Respondent’s Brief, thus:
“1) Whether the Court of Appeal was right in upholding the preliminary objection of the Respondent to the Appellant’s appeal on the grounds that the Notice of Appeal filed without the leave was incompetent (Distilled from grounds one, two and three of the Notice of Appeal.”

This appeal raises only one issue which borders on whether leave was required in the circumstances of this appeal, i have taken time to carefully re-consider the three issues formulated by the Appellant and the sole issue raised by the Respondent. While the three issues raised by the Appellant appear duplicitous and overlapping, the sole issue formulated by the Respondent also needs modification. Better justification is found in the Appellant’s introductory paragraph at page 3, paragraph 4.1 of the Appellant’s Brief that the three issues (formulated by the Appellant) are interwoven and could only be conveniently argued together. For these reasons, I have modified the sole issue in this appeal, thus:
“Whether given the circumstances of this appeal the Appellants appeal is incompetent having teen filed without the leave Court.”
CONSIDERATION AND RESOLUTION OF THE ISSUES:
“Whether given the circumstances of this appeal the Appellants appeal is incompetent having been filed without the leave Court”
In his rather reticent, brief submissions on all three issues formulated, the Appellant contended that although the appeal originated as an interlocutory appeal, it is not every interlocutory appeal that requires leave of Court. On this submission, the Appellant contended further that Section 241(l)(b) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides an exception. The Appellant placed reliance on the case of ALHAJI ATIKU ABUBAKAR & 2 ORS (year) VS ALH MUSA YARADUA & 5 ORS, (2008) All FWLR (Pt.404) 1409 at 1462, Para A-C.
The Appellant argued that the fact in issue between the parties are not at all in dispute, but the application of the law to the facts and the drawing of inference there from which is an issue of law that requires no leave of court before filing an appeal. The appellant relied on the case of RABIU VS ADEBANJO (2012) All FWLR (Pt.643) 1836 at 1847.

The Appellant contended that in determining whether an appeal is a question of law, one needs to look at the question raised in the grounds of appeal to ascertain if it is a question of law which does not need the exercise of discretion of the Court; a question as to what the law true or applicable law is on a matter or issue, or a question which is committed to or answered by the authority which answers questions of law only, that is the judge and not the jury. To amplify his contention, the Appellant cited the case the of METAL CONSTRUCTION (WEST AFRICA) LIMITED VS D.A. MIGLIORE & ORS (1990) All NLR 142 at 149; J.B. OGBECHIE & ORS VS GABRIEL ONOCHIE 7 ORS (1986) 2 NWLR (Pt.23) 484 at 492-493.
In his final submission, the Appellant urged this Court to allow the appeal, set aside the order of the Court below and remit the appeal to the Court below to be decided on its merit.

In its Response, the Respondent quoted and reproduced the provisions of Section 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Respondent contended that the appeal was against an interlocutory ruling which overruled the Appellant’s no case submission at the close of prosecution. This being the case, that Respondent argued, it is interlocutory as the ruling did not dispose of the rights of the parties. The Respondent placed reliance on the case of OGOLO VS OGOLO (2006) 5 NWLR (Pt. 972) Page 171-172. The Respondent further submitted that the lower Court was right in holding that the four grounds of appeal contained in the Appellant’s Notice of Appeal are of mixed law and fact which required leave of the said Court. The Respondent quoted extensively to support its position the cases of BASF NIG LTD VS FAITH ENTERPRISES LTD (2010) 1 SCNJ 223 at 247-248 and AKINDIPE VS THE STATE (2008) 15 NWLR (Pt.1111) 560 at Page 568, Para B-C.

In its concluding submissions, the Respondent urged this Court to hold that the lower Court was right in holding that the four grounds of appeal filed by the Appellant were issues of mixed law and facts which require the leave of Court before it could be filed, and since no leave was obtained the appeal was incompetent.
In his Reply brief, the Appellant further responded to the Respondent’s paragraphs 4.4; 4.5 and 4.6 on the issue of mix law and facts. The Appellant further contented in reply that it is not all rulings on no case submission that amount to interlocutory decision, citing the case of METUH VS FRN (2018) 10 NWLR (1628), 399 at 415, Para D-F.
I have carefully considered the arguments of both the Appellant and the Respondent in this appeal. The issue in this appeal is narrow and constitutional in. nature. It is about whether or not leave of Court is required based on the provisions of the Constitution. For ease of reference and clarity, I’ll reproduce the relevant provisions of the Constitutions of the Federal Republic of Nigeria 1999 (as amended), thus:
“241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a)final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b)where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c)decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d)decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(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.”
“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 Appeal (Emphasis added).”
From the above provisions, it very clear beyond conjecture that the Constitution of the Federal Republic creates two forms of appeal- appeal as of right without leave and appeal with leave of Court. See Also HARRIMAN VS HARRIMAN (1987) 3 NMLR at 244. The law is since settled that a decision is final if it finally disposes of all the rights of the parties in the case and gives no room to go back to the same court to ask it to decide on the same matter, See OGOLO VS OGOLO (2006) 5 NWLR (Pt.972) at Pages 171-172.
The pertinent question to ask is whether as at the time the appeal was filed, the parties’ respective legal rights were finally resolved or determined by the trial Court to the extent that the parties would not be required to return to the same Court. In the circumstances of this appeal, the answer is a capital No. This
is one case in which leave is required, but was neither sought nor granted.
As framed, it should not be a difficult task to examine and conclude that the Notice of Appeal in contention is one of mixed law and facts. This is because the ruling of the trial Court on the ‘No Case Submission’ necessarily involved a critical examination of the elements of each of the four counts for which the Appellant was charged before the trial Court to ascertain if a prima facie case has been made out to require his defence to those charges. See the case of BASF NIG LTD VS FAITH ENTERPRISES LTD (Supra); OKORIE VS UDOM (1960) SCNLR 360; OGBECHIE VS ONOCHIE (No.1) (1986) 2 NWLR (Pt.23) at 484. NWADIKE VS IBEKWE (1987) 4 NWLR (Pt. 67), 718.
It is crystal clear that the Appellant required leave of Court before filing its Notice of Appeal on grounds of mixed law and facts against the interlocutory ruling of the trial Court which refused his prayers in respect of the “No Case Submission”. Not having been first sought and obtained, the appeal becomes infected. It needs to be understood that the defect in this circumstance is not merely procedural. Requirement of leave of Court is a procedural requirement of constitutional significance. Put differently, it is a procedural step of constitutional flavour. While I’m minded that the Court tend to overlook, in deserving situations, innocuous flaws for the purpose of doing substantial justice, Constitutional requirement of leave of Court though procedural, cannot be waived as doing otherwise will render the decision in frontal collision with the Constitution. This is the case here. The constitutional requirement of leave of Court has been breached. The appeal thus becomes constitutionally incompetent and liable to be struck-out.
In view of the foregoing, I resolve the sole issue formulated above in favour of the Respondent. I uphold the decision of the Court below to the extent this appeal is incompetent by virtue of the combined effect of the provisions of section 241(1) and 242(1). For the avoidance of doubts, I hold that this appeal lacks merit and is accordingly dismissed. The Appellant is again directed to enter his defence to the charges preferred against him.
I must also not fail to express our displeasure at needless dilatory tactics of the Appellant in this appeal. As a legal practitioner, the Appellant knows, or ought to know, that justice should never be allowed to be sacrificed on the altar of infamy of a lawyer lacking in the level probity expected of gentlemen of the bar. The deliberate act of hurling obstacles on the highway of justice by crucial stakeholders like legal practitioners is, to say the least, unprofessional, retrogressive and highly reprehensible. I dare say it should also form the basis of further recourse at the level of disciplinary organs of the Nigerian Bar, subject to the outcome of the retrial of the subject matter of this appeal, which the four-count charge is pending against the Appellant.

This is one situation in which this Court must rise-up to the occasion in defence of justice, which is often denied by delay, and send the right signal to potential violators like the Appellant. In view of this background, I award cost of One Million Naira Only (N1,000,000.00) against the Appellant, payable personally.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: I have had the benefit of reading in draft the judgment of my learned brother, SIDI DAUDA BAGE, JSC just delivered. I agree entirely with the reasoning and conclusion therein.
A decision is final if it finally disposes of the rights of the parties. If it does not finally dispose of their rights it is interlocutory. See: Alor Vs Naene (2007) 17 NWLR (Pt.1062) 163 @ 175 -176 F-6, 177 E-F: 177 E-F and 179 – 180 H-A; Akinsanya Vs U.B.A Ltd. (1986) 4 NWLR (Pt. 35) 273. In the instant case, the appellant’s no case submission was unsuccessful. He was ordered to return to the trial court and open his defence. His rights had not been finally determined. The decision was therefore interlocutory. The grounds of appeal are of mixed law and facts. They therefore do not fall within the purview of Section 241 (1) (a) or (b) of the 1999 Constitution. By the provisions of Section 242 (1) of the
Constitution, the appellant required the leave of this court or the court below to file this appeal. Having not so obtained leave, the appeal is incompetent and liable to be struck out.

I fully concur with my learned brother, SIDI DAUDA BAGE, JSC that this appeal is incompetent and vexatious. I endorse the order for costs to be paid personally by the appellant as contained in the lead judgment.

AMIRU SANUSI, JSC: I read before now the Judgment delivered by my learned brother Sidi Dauda Bage JSC in this appeal.
The issues canvassed have been adequately address by my noble lord. I have nothing useful to add except to register my concurrence with the reason given in the Judgment for dismissing the appeal. The conclusion arrived at is also agreeable to me and I endorse the order on costs as well.
EJEMBI EKO, JSC: The Appellant’s appeal No. CA/K/13C/2010 was struck out for being incompetent on the ground inter alia that the grounds of appeal raising issues of fact or mixed law and fact mandatorily require leave first sought and obtained before the said grounds of appeal could be filed. It was an appeal against the ruling of the trial Court overruling a no-case submission, and consequently calling upon the Appellant, as the accused person, to enter upon his defence. It was not a final decision of the trial High Court sitting as a Court of first instance, within the context of Section 241(l)(a) of the Constitution. The grounds of appeal were also not grounds involving questions of law alone contemplated by Section 241(l)(b) of the Constitution, as amended.
The appeal No. CA/K/13C/2010 not coming within umbrage of Section 241(l)(a) – (b), or any of the paragraphs of Subsection (1) of Section 241 of the Constitution, falls within Section 242(1) of the said Constitution which requires leave to be first sought and granted before the Appellant herein may exercise his right of appeal.
Having read in draft the judgment just delivered by my learned brother, SIDI DAUDA BAGE, JSC I agree entirely that this appeal be and is hereby dismissed. The appeal is not only unmeritorious, it is also frivolous and vexatious: the ulterior purpose of which is merely a dilatory strategy to delay the trial proceedings. I also strongly deprecate the abuse of judicial process, that is the hallmark of this appeal.
MARY UKAEGO PETER-ODILI, JSC: I agree with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to register my support in the reasoning’s from which the decision came about, I shall make some remarks.
This is an appeal against the decision of the Court of Appeal or Lower court of Court below holden at Kaduna, Coram: Dalhatu Adamu, Abdu Aboki and Ita G. Mbaba JJCA, delivered on the 13th day of February, 2014 striking out the appeal on the basis of incompetence. For the record the appeal emanated from the Ruling on a No Case submission before J. S. Abiriyi J. who overruled the said submission.
FACTS BRIEFLY STATED:
The appellant was arraigned before the High Court of Justice of Kaduna State on a Four Count Charge dealing with false pretence with intent to defraud by obtaining the sum of N250,000.00 and N750,000.00 contrary to Section 1 (1) (a) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act, making a false document and using as genuine a forged document contrary to Section 364 of the Penal Code. The said counts are neatly spelt out at pages 271-272 of the record. The appellant pleaded not guilty to the charge thereby putting the burden of proof beyond reasonable doubt the essential elements of each cunt of the charge on the prosecution.
The prosecution in all called eight witnesses to testify on its behalf in its attempt to prove the essential elements of the crimes imputed. On the 7th day of July, 2009, PW8, one Muazu Abdullah! testified in this matter. Thereafter the prosecution closed its case. See page 200 of the record. The learned counsel for the appellant addressed the trial court on the no case submission on behalf of the appellant. On the 29th day of September, 2009 the learned trial court overruled the no case submission.
Aggrieved, the appellant appealed to the Court below which struck out the appeal for incompetence hence the recourse to the Apex Court for redress.
On the 15th day of November, 2018 date of hearing, learned counsel for the appellant adopted the brief of argument filed on 25/4/2014 in which were distilled three issues for determination viz:-
1. Whether the Court of Appeal has properly and correctly decided the issue which formed the basis of the preliminary objection raised by the respondent as to the competence of the appeal by dint of the failure of the appellant to first obtain leave of the court on the ground that the issues raised in the grounds of appeal bother on mixed law and fact? (Ground 3).
2.Whether the Court of Appeal was correct in the determination of the appeal before it by dint of its failure to look at the provisions of Section 241 (1) (b) of the amended 1999 Constitution of the Federal Republic of Nigeria vis-a-vis the admitted facts in evidence before arriving at the conclusion that leave of the court is required before the appellant could file his appeal against the interlocutory decision in relation to the no case submission? (Ground 2).
3.Whether in view of the provisions of Section 241 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended the Court of Appeal, Kaduna Judicial Division, was correct in its decision that leave of the learned trial court or the Court of Appeal is required before filing the appeal against the interlocutory decision relating to the no case submission in this matter? (Ground 1).
Learned counsel for appellant also adopted the reply brief filed on 6/11/18 and deemed filed on 15/11/18.
Chile Okoroma Esq. of counsel for the respondent adopted its brief of argument filed on 2/5/2014 wherein was formulated a single issue which is thus; –
Whether the Court of Appeal was right in upholding the preliminary objection of the respondent to the appellant’s appeal on the grounds that the Notice of Appeal filed without the leave of court was incompetent. (Distilled from grounds one, two and three of the Notice of Appeal).
The sole issue of the respondent is sufficient for use in the determination of this appeal and I shall use it.
SOLE ISSUE:
This asks the question whether the Court of Appeal was right to have upheld the preliminary objection of the respondent to the appellant’s appeal on the ground that the appeal being filed without leave of court was incompetent.
Learned counsel for the appellant submitted that it is not every interlocutory decision of the High Court that requires leave of the court as Section 241 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides an exception such as applies in this case which the decision had to do with a question. He cited Rabiu v Adebanjo (2012) All FWLR (Pt.643) 1836 at 1847; Ogbechie & Ors v Onochie & Ors (1986) 2 NWLR (Pt.23) 484 at 492-493 etc.
In response, learned counsel for the respondent contended that the fours grounds of appeal were grounds of mixed law and facts upon which the appeal before the Court below was based and so the need for leave of either the High Court or Court of Appeal before the appeal could be filed. He cited Ogolo v Ogolo (2006) 5 NWLR (Pt.972) 171-172; BASF Nig. Ltd v Faith Enterprises Ltd (2010) 1 SCNJ 223 at 247-248; Akindipe v The State (2008) 15 NWLR (Pt.1111) 560 at 568.

In summary, the stand of the appellant is that the question submitted to the Court below for adjudication was not treated and answered by the said Court. That the questions raised in the grounds of appeal in this matter are questions of law alone and the appellant did not need to seek leave of the court before appealing against the interlocutory decision of the court and so the appeal should be allowed and the order of the Court below set aside and the appeal remitted to the Lower court for a decision on its merit.
The contrary stance of the respondent is that the appeal has to do with the Court of Appeal overruling the no case submission at the trial court which raise issues of mixed law and facts and necessitating leave of the High Court or Court of Appeal before the appeal at the Court below could be said to be properly filed.
For clarity the issue submitted to the court below for adjudication as per the preliminary objection filed by the respondent against the competence of the appeal is as follows: –
“Whether the notice of appeal of the appellant against the ruling of the High Court of Justice of Kaduna State, Kaduna on the no case submission filed without leave of the court is competent?”
In answering the above issue, the Court below stated thus:
“The instant appeal is not a final decision of the High Court but an interlocutory decision and a perusal of the ruling of the trial court shows that the appellant submission on the no case submission was overruled and he was expected to enter his defence before the same court. It follows therefore that leave of court is required to file the notice of appeal since it is not the final decision of the Court”.
Therefore, the legislation that is at the base of the question before court are provided for under Section 241 (1) and 242 (1) of the Constitution of Nigeria 1999 as amended and I shall quote hereunder, thus: –
Section 242 (1) provides as follows:
“An appeal shall lay from the Federal High Court or a High Court to the Court of Appeal as of right in the following cases”

(a)Final decision in any civil or criminal proceedings before the Federal High Court or the high Court sitting at first instance;
(b)Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c)Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution;
(d)Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter iv of this constitution has been, is being or is likely to be contravened in relation to any person;
(e)Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death”. Section 242 (1) provides as follows:

“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or the High Court or the Court of Appeal”.
I shall restate the salient part of Notice of Appeal at the Court below for ease of reference thus: –
GROUND ONE;
1. That the learned trial judge erred in law in calling on the appellant to enter his defence in this case when it is clear from the evidence adduced in this case that all the essential elements of each of the four count charge have not been established by the prosecution and the calling of the appellant to enter a defence amounts to a breach of the presumption of innocence of the appellant as enshrined under Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999.

PARTICULARS OF ERROR:
i. Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 provides for the presumption of innocence of the appellate in this matter.
ii.All the essential elements of each of the offence in each of the count have been carefully spelt out in the written addresses of both counsel in this case and adopted before the trial court.
iii.The non-consideration of these essential elements of each of the offence charged along with the evidence adduced by the prosecution by the learned trial judge to see whether or not a prima facie case has been disclosed before calling on the appellant to enter his defence in his ruling had occasioned a miscarriage of justice.
GROUND TWO:
The learned trial judge failed to consider the essential elements of each of the offence charged vis-a-vis the
evidence on record so as to arrive at his decision as to whether or not the appellant has a case to answer.
PARTICULARS OF ERROR:
I. Both the prosecution and the accused in their respective written address in the no case submission carefully itemized the essential elements of each count in the charge.
II.The learned trial judge did not consider or analyse these ingredients along with the evidence of the witnesses called by the prosecution.
III.The non-consideration of the (ii) above by the learned trial judge before calling on the accused to enter his defence has occasioned a miscarriage of justice.
GROUND THREE:
That the learned trial judge erred in law in that he overruled the no case submission of the appellant and called on him to enter his defence when a prima facie case has not been made out against him by the prosecution.
PARTICULARS OF ERROR:
i.The essential elements under Section 1 (1) (a) of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006, were not proved by the prosecution whose duty it was to do so.
ii.The evidence by all the prosecution witnesses in this case did not disclose a prima facie case against the appellant.
iii.That the calling on the appellant to enter his defence in this case amounts to calling on him to prove his innocence thereby reversing the burden of proof.
GROUND FOUR:
The learned trial judge erred in law to have called upon the appellant to enter his defence to counts 3 and 4 of the amended charge in this case when the essential elements of the offence of forgery and using as genuine a forge document were not established before the court by the prosecution.
PARTICULARS OF ERROR:
i. Prima facie case was not disclosed in respect of these two counts in view of the evidence adduced by the prosecution.
ii.The maker of the disputed document was never disclosed by the evidence adduced by the prosecution who has the duty to do so.
iii.The appellant’s signature and writing were never set for forensic analysis and report.
iv.The non-upholding of the appellants no case submission has thereby occasioned a miscarriage of justice in this matter.
I have no difficulty agreeing with learned counsel for the respondent that the four grounds of appeal are grounds of mixed law and facts and so the required leave of either the said High Court from which the decision on the No case submission arose or that of the Court of Appeal before which the appeal was filed cannot be dispersed with. The reason for the need of the leave is simple as the decision was an interlocutory one which did not dispose of the rights of the parties with finality. See Ogolo v Ogolo (2006) 5 NWLR (Pt.972) 171.
Therefore, the decision of the Court of Appeal when faced with the Preliminary Objection challenging the competence of appeal before it cannot be faulted.
The Court below had held thus: –
“Appellant’s first issue on correctness of the lower court’s decision on the no case submission entered by counsel on appellant’s behalf has a seemingly insurmountable problem. The ruling in respect of the submission was an interlocutory one having preceded the final decision instantly being appealed against. The ground of appeal on such a decision required the leave of either the lower court or this court before same would be validly and entertained by this court. An examination of the record of appeal shows clearly that appellant had not, prior to filing the ground of appeal where from appellant’s first issue for determination was distilled obtained the leave of either this court or the lower court. The grounds of appeal as well as the issue distilled from the grounds of appeal are incompetent and unarguable. The two are hereby struck out”.
I feel fortified in that view having been guided by earlier decisions of this court on how grounds of appeal may be categorised of law or mixed law and facts or of law may be ascertained. I shall make reference to the case of BASF Nigeria Limited v Faith Enterprises Ltd (2010) 1 SCNJ 223 at 247-248 for guidance thus: –
“A ground of law arises where a ground of appeal indicates that the trial court or, an appellate court misunderstood the law or misapplied the relevant law or principles of law to the proved or admitted facts in a particular case. (Okorie v Udom (I960) SCNLR 360; Ogbechie v Onochie (NO.1) (1986) 2 NWLR (Pt.23) 484 referred).

(2). The principles guiding the court in its determination of whether a ground of appeal or otherwise is one of law or of fact or of mixed law and facts are as follows: –
a)Whether the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based such a ground is of mixed law and facts.
b)A ground which challenges the findings of fact or issue of law and mixed fact considered by a trial court is one of law and fact.
c)A question arising out of the evaluation of the evidence tendered at the trial is ground of fact.
d)A ground of appeal which arises out of misunderstanding of the law by a trial court of appellate court is a ground of law.
e)A complaint about wrongful admission of evidence is also a question of law. Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718; Ogbechie v Onachie (1986) 2 NWLR (Pt.23) 484; Anoghalu v Oraclosi (1994) 2 NWLR (Pt.324) 68 referred to)”.
From what is before court, it is evident that the challenge to the correctness of the trial court’s decision on the no case submission made by the appellants was really a complaint on the evaluation of the facts before the application of the law by the trial court and so the four grounds of appeal are issues of mixed law and facts since there is no way the Court of Appeal could determine the appeal without the consideration of the facts in the evidence adduced by the prosecution. Therein calls into play the conditions embedded in the provisions of Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and since there is no by-passing the required leave, the failure of the appellant to seek and obtain it, has rendered incompetent the appeal it sought to initiate at the Court below. I am emboldened in this view by judicial decisions in circumstances similar to the current-one such as the case of Akindipe v The State (2008) 15 NWLR (Pt.1111) 560 at 568.

Finally, there is no faulting what the Court below did faced with an incompetent appeal and so in line with the well-articulated lead judgment I see no merit in this appeal which I dismiss as I abide by the consequential orders as made.
Appeal Dismissed.

COUNSELS

C.A. EKHASEMOMHE for Appellant/Applicant and with him is S. A. Akanni.|CHILE OKOROMA for Respondent and with him are: D. Ademu-Eteh and Sabina Dabak.|

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