COMMISSIONER OF POLICE, IMO STATE v. ENGR. DR. RAGUEL AGUTA (2010)

COMMISSIONER OF POLICE, IMO STATE v. ENGR. DR. RAGUEL AGUTA

(2010)LCN/4155(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of December, 2010

CA/PH/564/2008

RATIO

STATUTORY INTERPRETATION : INTERPRETATION OF THE PROVISIONS OF SECTION 241 (1) (B) AND (C) OF THE 1999 CONSTITUTION AS IT RELATES TO WHEN APPEAL SHALL LIE FROM DECISIONS OF THE FEDERAL HIGH COURT OR A HIGH COURT OF A STATE TO THE COURT OF APPEAL AS OF RIGHT

Now Section 241(1)(b)and (c) of the 1999 Constitution states:- 241(1):- An appeal shall lie from decisions of the Federal High Court or a High Court of a State to the Court of Appeal as of right in the following cases: (b) – where the ground of appeal involves question of law alone, decision 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. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.

RIGHT OF APPEAL: WHETHER THE RIGHT TO APPEAL FROM THE DECISION OF THE MAGISTRATE COURT TO THE HIGH COURT IS AUTOMATIC IN ALL CIRCUMSTANCES

LEAVE TO APPEAL: WHETHER LEAVE TO APPEAL MUST BE OBTAINED BEFORE FILJNG APPEALS IN RESPECT OF INTERLOCUTORY DECISIONS WHICH DOES NOT FINALLY DISPOSE OF THE MATTER

It is settled law that in all tier of Courts where there is right of appeal, appeals in respect of Interlocutory decisions which does not finally dispose of the matter, leave must be obtained before the appeal is filed. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.

LEAVE TO APPEAL: CIRCUMSTANCES WHERE FAILURE TO OBTAIN LEAVE OF THECOURT BEFORE FILING AN APPEAL WILL RENDER THE APPEAL INCOMPETENT

JUSTICES:

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

COMMISSIONER OF POLICE, IMO STATE – Appellant(s)

AND

ENGR. DR. RAGUEL AGUTA – Respondent(s)

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Imo State, Owerri Judicial Division, presided over by Hon. Justice C.I. Ohakwe, J. in Appeal No. HOW/6CA/2000, delivered on the 27th day of November, 2007. Therein, his Lordship struck out the appeal against the interlocutory decision of the Chief Magistrate Court, Owerri, Imo State, in charge No. OW/438C/99 on the ground that no leave was obtained before the appeal was filed.
The facts leading to this appeal are that before the Chief Magistrate’s Court, Owerri, Imo State, Respondent, as the accused person in charge No. OW/438C/99 was charged with the offences of inter alia, forgery and being in possession of property suspected to be stolen. Before the commencement of trial, Respondent filed a motion in which he prayed for the release to him of items seized from him by the police. The Appellant resisted the application. The trial Court took argument of Counsel and ruled that the items applied for had no nexus with the offences charged and ordered they be released to the Respondent.
The Appellant, who is prosecuting the said charge through a private Legal Practitioner who had been granted a fiat to so prosecute by the Attorney-General of Imo State, appealed against this decision to the High Court of Imo State.
On the 27th November 2007, the learned trial Judge delivered his Judgment. Being dissatisfied with the Judgment, the Appellant has now appealed to the Court of Appeal.
The appeal was heard on 27th September 2010 and in line with the Rules and Practice of this Court, the parties duly filed their respective Briefs of Argument. Counsel to the Appellant Mr. C.B. Nworka informed the Court that the Appellant’s brief of Argument is dated 13/11/08 and filed on 17/11/08, that he also filed the Appellant’s reply Brief which is dated 13/11/08 and filed on 17/11/08, learned Counsel to the Appellant adopted the two briefs of Argument and urged the Court to allow the appeal.
Counsel to the Respondent Mr. U.C. Osuji informed the Court that the Respondent’s brief of argument is dated 1/12/08 and filed on 18/12/08, Counsel adopted the brief and urged the Court to dismiss the appeal in its entirety. Counsel to the Respondent also informed the Court that in the Brief of Argument a Notice of Preliminary Objection was incorporated at page 3 and argued at pages 3 and 4 and urged the Court to strike out the appeal based on the Preliminary Objection.
From the four grounds of appeal the Appellant formulated three issues for determination, the Issues are stated thus:-
1. Whether the learned Appellate High Court Judge was right in the construction he placed on the provisions of section 36(1) of the High Court law Cap.61 laws of Eastern Nigeria, 1963, applicable to Imo State.
2. Whether the learned Appellate High Court Judge was right in holding that without leave of Court, there is no right of appeal from the decision of a Magistrate Court to the High Court except upon conviction.
3. Whether the learned Appellate High Court Judge was right in raising suo motu the Issue of the applicability of section 36 of the said High Court law and determining same without giving parties an opportunity to address him on same.
Learned Counsel to the Respondent adopted the Issues formulated by the Appellant.
At page 3 of the Respondent’s Brief of Argument, the Respondent incorporated a Notice of Preliminary objection. The learned Counsel to the Respondent cited the provisions of sections 241(1) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria which provides as follows:-
Section 241(1) – An appeal shall lie from decision of the Federal High Court or a State 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 a High Court sitting at first instance.
Section 242(1) – Subject to the provisions of section 241 of the Constitution an appeal shall lie from the decision 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.
That these provisions being Constitutional provisions, the Court have been enjoined in the case of NAFIU RABIU V. KANO STATE (1980) 8 – 11 SC to give it liberal interpretation, reference made to ADISA V. OYINWOLA (2000) FWLR (PT.8) 1349; AKANDE V. ALAGBE (2000) 15 NWLR (PT. 690) 353.
Further, learned Counsel for the Respondent referred to AMMANI V. TAMBUWAL (2006) ALL FWLR (PT. 332) 1556 where the Court of Appeal held thus:-
“In this Appeal this matter was an appeal from the High Court in its appellate Jurisdiction and not sitting at first instance so leave of this Court or the High Court was required before a competent and valid appeal can be lodged in this Court under section 241(1) of the Constitution and where the leave is not obtained then the appeal is incompetent.”
Counsel for the Respondent argues that the Appellant was duly bound and it was mandatory for him to have obtained the leave of the High Court or the Court of Appeal as the High Court sat in its appellate Jurisdiction and having not complied with section 241(1) and 242(1) of the 1999 Constitution, this appeal is grossly incompetent and ought to be struck out reference made to IKENI V. EFAMO (1997) 4 NWLR (PT.499)318; SALAMI V. OSENI (2003)FWLR (PT.136) 917 AT 924 paragraphs C – D . Learned Counsel urged us to strike out this appeal.
In his reply brief, learned Counsel for the Appellant submits that the four grounds of Appeal in this appeal are contained at pages 38 – 41 of the Record of Appeal. Ground 1, complains of the construction placed by the learned Appellate High Court Judge on the High Court law applicable in Imo State. Grounds 2 and 3 complain of the decision of the lower Court which ignored the provisions and application of Sections 6(6) (b) and 272(1) and (2) of the 1999 Constitution. Ground 4 complained of the lower Court raising and determining an issue sou motu without affording Parties an opportunity to be heard on same, learned Counsel for the Appellant argues that these are grounds of pure law that no Scintilla of fact is called into question at all in any of them. That by the provisions of section 241(1)(b) and (c) of the 1999 Constitution, Appellant required no leave to appeal on these grounds.
Learned Counsel for the Appellant contends that “Any Civil or Criminal Proceedings” as used in those six paragraphs means exactly that – whether the lower Court is exercising original, appellate or supervisory Jurisdiction, once the grounds of appeal involve questions of law alone or involves the interpretation or application of the Constitution, appeal is of right. That no Court has the Jurisdiction to read into those provisions any other qualification, distinction or exception they have not expressed, reference made to MBONU V. NWOJI (1991) 7 NWLR (PT.206) 737 at 750; AGF V. SEDE (1990) 1 NWLR (PT.128) 500 AT 541 AND 545; AGWUWA V. AGF. 195 85 SCNJ 66 AT 81.
I have carefully considered the Notice of Preliminary Objection incorporated in the brief of argument filed by the Respondent, I have also considered the submissions of learned Counsel to parties with regard to the Notice of Preliminary Objection. I have looked at the four Grounds of Appeal in this appeal as contained at pages 38 – 41 of the Record of Appeal. Ground 1, complains of the construction placed by the learned Appellate High Court Judge on the High Court law applicable in Imo State, Grounds 2 and 3 complain of the decision of the lower Court which ignored the provisions and application of section 6(6)(b) and 272(1) and (2) of the 1999 Constitution. Ground 4 complained of the lower court raising and determining an issue suo motu without affording Parties an opportunity to be heard on same. Without any hesitation these are grounds of pure law and no scintilla of fact is called into question at all in any of them.
Now Section 241(1)(b)and (c) of the 1999 Constitution states:-
241(1):- An appeal shall lie from decisions of the Federal High Court or a High Court of a State to the Court of Appeal as of right in the following cases:
(b) – where the ground of appeal involves question of law alone, decision 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. As stated earlier, the four grounds of appeal are grounds of pure law. Accordingly by the provisions of Section 241(1)(b) and (c) of the 1999 Constitution, the Appellant require to leave to appeal on these grounds, therefore the Notice of Preliminary Objection fails and it is hereby dismissed.
ISSUE NO. 1
Whether the learned Appellate High Court Judge was right on the Construction he placed on the provisions of section 36(1) of the High Court law Cap. 61 laws of Eastern Nigeria, 1963 applicable in Imo State.
Learned Counsel for the Appellant submits that the law is very settled that the duty of a Court in interpreting a statute is to first give the words used in the statute their ordinary literary meaning. A Court of law is not permitted to read into a statute what it did not provide nor read out of it what it did indeed provide, reference made to MBONU V. NWOTI (1991) 7 NWLR (PT.206) 737 AT 750; KOTOYE V. SARAKI (1994) 7 – 8 SCNJ (PT.3) 524 AT 545. That the Supreme Court has also declared that a Court of law is concerned with the law as it is and not with law as it ought to be, and that it is not the business of the Court to ascribe any other but the plain, clear and unambiguous and ordinary meaning of the very words used in the statute to make the statute conform with what the Court wants that law to provide, reference made to AGF V. SODE (1990) 1 NWLR (PT.128) 500 AT 541; AGWUWA V. AGF (1995) 5 SCNJ 66 AT 81.
Counsel for the Appellant argues that section 36 of the High Court law, Cap. 61, laws of Eastern Nigeria 1963, applicable in Imo State did not create any right of Appeal from Magistrate of High Court. That section did not provide for the procedure to be followed in exercising any right of appeal. Counsel further contends that in very plain, unambiguous and simple language, that section only made provisions as to what power the High Court can exercise if an appeal is against conviction. Subsection (1); or against sentence – Subsection (2) that in the same light, section 37 of the same law made provisions as to what powers the Court can exercise if an appeal is against acquittal or dismissal. Counsel to the Appellant contends that the section did not, whether expressly, impliedly, remotely or howsoever suggest that an appeal that is not against sentence of conviction cannot be brought or should only be brought with leave of Court. Counsel for the Appellant argues that the Appellate Judge imported in that enactment what it did not provide. That is a distortion of the plain meaning of that provisions and such distortion is what the Supreme Court deprecated in OLATUNDE V. O.A.U. 1998 4 SCNJ 59 AT 75. Counsel for the Appellant urged us to resolve Issue No. 1 in favour of the Appellant.
In his reply to the submissions on Issue No. 1, learned Counsel to the Respondent submits that the learned appellate High Court Judge was right the construction he placed on the provisions of section 36(1) of the High Court law Cap. 61, laws of Eastern Nigeria 1963. That Section 32 of the High Court law Cap. 61 laws of Eastern Nigeria 1963 conferred on the High Court Appellate Jurisdiction to hear and determine all appeal from the decisions of Magistrate Courts in civil and criminal causes and matters. Section 34 of the same High Court law gave the High Court directives on what to do with civil appeal and items (a) to (d) therein show that the section deals with only areas of final decisions of the Magistrate Court. That they applied to section 36 of the High Court law which is the section the Judge applied in support of his Judgment. That section (a) to (f) when read together shows that it relates to final decisions of a Magistrate Court and no more.
Further Counsel to the Respondent argues that the total effect of Section 34 and 36(1) of the High Court law is that appeals as of right in civil and criminal matters can only be made to the High Court in the Final decision of the Magistrate Court. That in support of section 36(1) and 37 of the High Court law is section 57 (1) of the Magistrate Court law, Cap 82 laws of Eastern Nigeria applicable to Imo State which provide thus:
“For the purposes of paragraphs (g) of Subsection (1) of Section 53 of the Constitution of Eastern Nigeria, an appeal lies as of right to High Court by a person sentenced by a Magistrate Court in a Criminal Proceedings.”
That Section 53(1) (g) of the Constitution of Eastern Nigeria Cap 25 laws of Eastern Nigeria provides thus:-
“Appeal shall lie from the decision of a subordinate Court to the High Court of the region as of right or if it is provided by any law in force in the region that an appeal as of right shall lie from that subordinate Court to another subordinate Court, and appeal shall thereafter lie to the High Court as of right in the following cases:-
(g) such cases as may be prescribed by any law in force in the region.”
That Section 53(1)(g) merely recognized any law that made provision for appeal as of right to the High Court or otherwise such other cases as may be prescribed by any law includes section 57(1) of the Magistrates Court law Cap 82 laws of Eastern Nigeria.
Learned Counsel for the Respondent contends that though the Constitution of Eastern Nigeria is no longer in force but its repeal did not affect laws merely recognized by it like the Magistrate Court law under reference. Counsel for the Respondent submits that the combined effect of section 36(1) of the High Court law and section 57(1) of the Magistrate Court law is to the effect that appeals lie as of right from the decision of a Magistrate Court to the High Court only in cases of conviction or sentence by a Magistrate Court in any Criminal Proceedings. That the natural effect of these sections is that in any other cases such as interlocutory appeals, appeal must lie with the leave of either the Magistrate Court or the High Court as the case may be.
Learned Counsel for the Respondent urged us to hold that the construction placed on the provisions of section 36(1) of the High Court law Cap 61 laws of Eastern Nigeria applicable in Imo State was right, proper, in accord with law and justice of the case.
In the instant appeal, the learned Appellate Court Judge considered and constructed section 36(1) of the High Court law Cap 61 laws of Eastern Nigeria also applicable in Imo State. In his Judgment at pages 36 to 37 of the printed record of proceeding, the learned Appellate Judge stated thus:-
“The ruling of the learned Chief Magistrate made on 5th day of October, 1999 which gave rise to this appeal is Interlocutory. The Order made in that ruling did not put an end the substantive criminal charge as all the rights and not just an Issue have not been determined.”
In effect the Criminal charge before the Chief Magistrate has not been determined as there has not been any conviction or acquittal of the accused person before the instant appeal was brought to this Court. The power of High Court to entertain appeals from the Magistrate Court in Criminal Matters is governed by 36(1) of the High Court law Cap 61 laws of Eastern Nigeria also applicable in Imo State. Section 36(1) of the said law provides as follows:-
“On an appeal from conviction in a Magistrate’s Court the Court may:
(a) maintain the conviction and dismiss the appeal or
(b) allow the appeal and set aside the conviction —.”
The effect of section 36(1) of the said High Court law is that there is no right of appeal to the High Court in any other Circumstance. To appeal in any other Circumstances, leave to appeal must be obtained before filing an appeal. In this case, it has not been shown that the Appellant obtained the leave of Court before bringing this appeal.
Further more, this appeal does make it possible for this Court to exercise any of its statutory powers granted to it under section 36 of the High Court law Cap 61 laws of Eastern Nigeria also applicable in Imo State. The Court is not competent to entertain this appeal which comes before it improperly as there is a feature in this case which prevents the Court from exercising its Jurisdiction, see MADUKOLU V. NKEMDILIM (1962) . This appeal being not properly before the Court is hereby struck out. The Chief Magistrate, Owerri is directed to proceed to try the accused person in charge No. OW/438C/99 Commissioner of Police v. Engineer Raguel Aguta.”

The powers of the High Court regarding appeals from Magistrate Courts are governed by the provisions of sections 36(1) and 37 of High Court law Cap 61 laws of Eastern Nigeria also applicable in Imo State. From the wordings of the two sections of the law, the right to appeal is not automatic in all circumstances, the right of appeal is limited upon conviction in Magistrate Court or upon acquittal or dismissal. Further by the provisions of Section 57(1) of the Magistrate Courts law Cap 82 laws of Eastern Nigeria applicable in Imo State, an appeal lies as of right to the High Court by a person sentenced by a Magistrate’s Court in a criminal proceedings.
The combined effect of sections 36(1) and 37 of the High Court law Cap 61 laws of Eastern Nigeria applicable in Imo State and section 57(1) of the Magistrates Courts law Cap 82 laws of Eastern Nigeria applicable in Imo State is that there is no automatic right of appeal to the High Court in any other circumstances. To appeal in any such other circumstances, leave to appeal must be obtained before filing an appeal.
Again it is glaring that an appeal which is outside the Circumstances stated in the provisions of section 36(1) and 37 of the High Court law Cap 61 laws of Eastern Nigeria also applicable in Imo State does not make it possible for the High Court to exercise any of its statutory power under the aforementioned Sections of the High Court law cap 61 laws of Eastern Nigeria applicable in Imo State. Section 36(1) and Section 37 of the High Court law Cap. 61 laws of Eastern Nigeria, 1963, applicable in Imo State and section 57(1) of the Magistrates Courts law of Eastern Nigeria applicable in Imo State has stated clearly the Circumstances in which an appeal lies as of right from Magistrate Court to the High Court and the learned Appellate High Court Judge was right on the construction he placed on the provisions of section 36(1) of the High Court law Cap d61 laws of Eastern Nigeria, 1963 applicable in Imo State, accordingly Issue No. 1 resolved against the Appellant in favour of the Respondent.
ISSUE NO. 11.
Whether the learned Appellate High Court Judge was right in holding that without leave of Court there is no right of appeal from the decision of a Magistrate Court to the High Court in a criminal matter except upon conviction.
Learned Counsel for the Appellant submits that the Imo State High Court, just like that of every other State in Nigeria was established by the 1999 Constitution and the law clearly specified the Jurisdiction that Court can exercise. Section 272(1) of the 1999 Constitution gave unlimited Jurisdiction to the State High Court in all civil and criminal matters and by Subsection (2) thereof, that Jurisdiction extends to appeals that come to that Court. That from the part of the Court, there is no lack of statutory Jurisdiction in the Court to entertain appeals properly brought before it by a party to a matter in a Magistrate Court of the particular State.
Learned Counsel for the Appellant argues that the High Court law applicable in Imo State is High Court law, Cap 61, laws of Eastern Nigeria, 1963, that the law in its Section 32, made provisions for the appellate Jurisdiction of the High Court of Imo State in civil and criminal matters from the Magistrate Courts in the State. That the provision did not delimit or designate the type of appeals the Court can entertain and therefore it should not. That the law that provide for the right of appeal was the Magistrates Courts law, Cap 82 laws of Eastern Nigeria 1963. That is Section 57(1) of the said law and the provision simply says that an appeal lies in criminal cases at the instance of the person sentenced by a Magistrate. That there is no word in that provision that suggests that same is exclusive. Counsel for the Appellant contends that section 57(1) of the Magistrates Courts law, Cap 82 laws of Eastern Nigeria, 1963 was enacted “for the purposes of Section 53(1)(g) of the Eastern Nigeria Constitution 1963.” That the entire Sub-sections (1) and (2) of Section 53 of the Eastern Nigeria Constitution, Cap 25 laws of Eastern Nigeria, 1963 were deleted by the Constitution (Suspension and Modification) Decree No. 1 of 1966, but left intact Subsection (3) and (4) of that Section. That the effect of the repeal of those Subsections is that it totally wipes out of operation, the provisions of Section 57(1) of the said Magistrates’ Courts law which has lost its basis for existence. Counsel for the Appellant argues that same therefore no longer determines the right of appeal exercisable in a criminal matter from the decision of Magistrate’s Court to a High Court in Imo State. That Sub-section (3) of Section 53 of the Constitution of Eastern Nigeria, 1963 which was preserved by Decree No. 1 of 1966 provides for Criminal Appeals, learned Counsel submits that what was left of Section 53 of the Constitution of Eastern Nigeria 1963, preserved without any qualification whatsoever the right of appeal at the instance of such other person or authority as may be prescribed by any law in force in the Region. That Section 49 of that law, which Section 53(3) (a) was made subject to provide for the power of the Attorney-General to institute undertake, take over and contribute OR discontinue Criminal Prosecution. That is what happened in this case where the Attorney-General of Imo State took over the prosecution of charge No. OW/438C/99 through the FIAT he give to the Appellant’s Counsel herein. Learned Counsel for the Appellant submits that what was left of the Eastern Nigeria Constitution after its whittling down by the Military Decrees is an existing law under Section 315 of the 1999 Constitution . Further, Counsel for appellant contends the power of the Appellant to exercise his right of appeal as constitutionally provided cannot be subjected to first obtaining leave of Court when there is no provision of any law to that effect. Counsel urged us to resolve this Issue in favour of the Appellant.
In reply to the submissions on Issue No. II, learned Counsel to the Respondent submits that the Section 32, 34 and 36 of the High Court law Cap 61, laws of Eastern Nigeria applicable in Imo State and Section 57(1) of Magistrates Court law Cap 82 laws of Eastern Nigeria also applicable in Imo State did not take away the Jurisdiction of the High Court rather they reinstate the Appellate Jurisdiction of the High Court over the decisions of the Lower Court. That the Sections only stated how appeals should be filed, those that will be filed as of right and those not mentioned will then be filed with leave. That Section 211 of the 1999 Constitution did not give the Attorney-General the power to contravene the provision of the law and that where the Attorney-General on behalf of the State is a party to any case, he is required by law to comply with the provisions of any statute including the High Court law and the Magistrate Courts law. He is enjoined to obtain leave to appeal where it is required like any other party in a Criminal Proceedings. Further, Counsel to the Respondent contends that there is nowhere in the world where appeals in all cases whether Interlocutory or Final are as of right, that Application for leave of Court will enable the Court know whether there is substance in the appeal or not or whether it is done to delay or frustrate the substantive case. Reference made to IDAHOSA V. AGUPUGO (2006) All FWLR (PT.295) 721 AT 727; JACOB V. A.G. AKWA IBOM STATE (2002) 7 NWLR (PT.765) 18. Counsel to the Respondent urged us to resolve this Issue against the Appellant in favour of the Respondent.
ISSUE NO. II is on whether the learned Appellate High Court Judge was right in holding that without leave of Court, there is no right of appeal from the decision of a Magistrate Court to the High Court except upon conviction.
From the onset it would not be out of place to state that the right to appeal is constitutionally guaranteed in all decisions of Courts where there is room to appeal to the next Court but the right to appeal is not at large it is regulated by the Constitution and the relevant statutes but where the decision is not Final the right to appeal is not automatic in all tiers of Courts.
In the instant appeal what is involved is the ruling of the learned Chief Magistrate made on the 5th day of October, 1999 which gave rise to the Interlocutory appeal before the High Court . The Order of the learned Chief Magistrate being Interlocutory in a criminal trial before the Court.
Criminal Appeals from Magistrate Courts to the High Court are regulated by the provisions of Sections 36(1) and 37 of the High Court law Cap 61 laws of Eastern Nigeria applicable in Imo State.
Section 36(1) of the said law provides as follows:-
“On an appeal from conviction in a magistrate Court the Court may:-
(a) Maintain the conviction and dismiss the appeal.
(b) allow the appeal and set aside the conviction—-
Section 37 of the said law also provides as follows:
On an appeal against an acquittal or dismissal the High Court –
(a) May affirm the decision of the trial Court and dismiss the appeal or
(b) may remit the case together with the judgment of the High Court on the case to the trial Court for determination whether or not by way of re-hearing with such directions as the High Court may think necessary, and (c ) shall make any amendment or any consequential or incidental Order that appears just and proper.”
It is clear from the provisions of Sections 36(1) and 37 of the High Court law Cap 61, laws of Eastern Nigeria applicable in Imo State the right of appeal from decisions of Magistrate courts where there is no conviction or acquittal or dismissal is not at large. By the provisions of this law Appeal from Magistrate Courts to the High Court lie as of right only when there is conviction, acquittal or dismissal. In all other circumstances, leave to appeal must be obtained before filing an appeal.
It is settled law that in all tier of Courts where there is right of appeal, appeals in respect of Interlocutory decisions which does not finally dispose of the matter, leave must be obtained before the appeal is filed.

In the instant appeal the Appellant sought to appeal against an Interlocutory Ruling of the Magistrate Court which does not involve conviction, acquittal or dismissal of the charge before the Magistrate Court, before the appeal is filed leave must be obtained and failure to do that renders the appeal incompetent, therefore the learned Appellate High Court Judge was right in holding that without leave of Court there is no right of appeal from the decision of a Magistrate Court to the High Court in a criminal matter except upon conviction. Issue No. II is resolved against the Appellant in favour of the Respondent.
At this stage I must say a word or two at the conduct of the Appellant who is a prosecutor in a criminal charge against the Respondent, looking at a whole, this appeal to say the least is needless. This is a case where the trial Chief Magistrate release items of property not shown to be connected with the commission of the alleged offence charged against the Respondent. Instead of the prosecutor to concentrate on the prosecution of the substantive criminal charge against the Respondent he has wasted so much valuable time prosecuting a needless appeal that was improperly or incompetently filed, the charge was filed in 1999 and eleven years after it is still hanging at the expense of the appeal, this conduct of the prosecutor is highly despicable and ought to be checked to bring sanity in timously prosecuting criminal cases.
ISSUE NO. III –
Whether the learned Appellate High Court Judge was right in raising suo motu the issue of the applicability of section 36 of the High Court law and determining same without giving parties an opportunity to address him on same.
Learned Counsel for the Appellant submits that the learned High Court Judge was wrong to have raised and decided suo motu and without hearing parties, the Issue of the High Court law requiring leave before an appeal not against conviction can be filed in the High Court against the decision of a Magistrate reference to OJE V. BABALOLA (1991) 8 5 SCNJ 110 AT 121; STATE V. ONAGRUWA (1992) 2 SCNJ (PT.1) 1 AT 22; SALU V. AGEIBON (1994) 6 SCNJ Ipt.2) 223 at 239; KATTO V. CBN (1991) 12 SCNJ. 1 AT 18; ONUAGULUCHI V. NDU (2001) 3 SCNJ 110 AT 119- 120.
In reply to submissions on Issue No. III, learned Counsel to the Respondent submits that during his argument before the Appellate High Court Judge, he argued that the appeal was incompetent as no leave was obtained before the interlocutory appeal was filed, this can be seen at page 28 lines 21 to 27 of the printed record. That the Appellant Counsel filed a reply to this submission at pages 31 to 32 of the record. Counsel for the Respondent contends that having argued whether leave was necessary before an interlocutory appeal would be filed or not the lower Court was right in resolving the Issue to lay hands on any law in the matter and Section 36 of the High Court law was handy in resolving the issue. That the Appellate Court did not raise a new Issue which was not conversed by the parties and the applicability of section 36 of the High Court law was not an Issue before the Court below. All the lower Court did was to rely on section 36 of the High Court law to resolve it. Counsel urged us to resolve Issue No. III against the Appellant in favour of the Respondents.
With regard to Issue No. III, it is on record that Counsel to the Respondent at page 28 of the record of proceedings submitted that the appeal was incompetent for failure of the prosecution to obtain leave before the interlocutory appeal was filed. The Appellant filed a reply to this submission and this is at pages 31 to 32 of the record.
The learned Appellate High Court Judge in resolving whether in the interlocutory appeal before him leave was required availed himself to the provisions of section 36 of High Court law Cap 61 laws of Eastern Nigeria applicable in Imo State to resolve whether leave was mandatory in the interlocutory appeal before him. To my mind it does not conform with reason that before a Judge can apply a law to resolve a given situation before him, he has to invite Counsel to parties to address of its applicability. The learned Appellate Court Judge was perfectly right in applying Section 36 of the High Court law and determining same without giving Parties an opportunity to address him on same, accordingly Issue No. III is resolve against the Appellant in favour of the Respondent.
In the final analysis, this appeal is completely devoid of merit and should be dismissed. I accordingly dismiss the appeal.
I make no Order as to cost.

MOJEED A. OWOADE, J.C.A.: I had a preview of the judgment just delivered by my learned brother JEGA ABDUL-KADIR, J.C.A. I agree with the reasoning and conclusion. I also with the consequential orders.

Appearances

Mr. C.B. Nworka For Appellant

AND

Mr. U.C. Osuji For Respondent