COMMISSIONER OF POLICE v. GEORGE OGBU (2016)

COMMISSIONER OF POLICE v. GEORGE OGBU

(2016)LCN/8170(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of February, 2016

CA/E/9c/2014(R)

RATIO

APPEAL: DUTY OF THE COURT: THE DUTY OF THE APPELLATE COURT TO EXAMINE THOROUGHLY THE GROUNDS OF APPEAL

In determining whether a ground of appeal alleges an arm of law or fact, it has been held that the general requirement or duty of the Court is to examine thoroughly the grounds of appeal to see whether the ground reveal a misunderstanding of the lower Tribunal of the law or a misapplication by it. Of the law to the facts, already proved or admitted, in which case, it would be a question of law. If the ground requires questioning the evaluation of facts by the lower Tribunal before the application of the law, it would amount to a ground of mixed facts and law. See also Ogbechie v Onochie (1986) 2 NWLR (Pt.23) Pg. 484. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

COURT: JURISDICTION; WHETHER A COURT HAS THE RIGHT TO RAISE SUO MOTU THE QUESTION OF IT JURISDICTION TO DETERMINE ANY MATTER BROUGHT BEFORE IT

Suffice it to say, that a Court has the right to raise suo motu, the question of its jurisdiction to determine any matter brought before it. See Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) NWLR (Pt.244) Pg. 675. The Supreme Court in ACB v Losada Nig Ltd. (1995) 7 NWLR (Pt. 405) Pg. 26 had expressed the view that a trial judge or an appellate Court is within its rights in raising any issue suo motu as the interest of justice demands. However, a judge raising an issue suo motu must obey the rules of fair hearing. The parties must be given an opportunity to be heard on the point. In this case under review, this Court gave adequate opportunity for both learned counsel to be heard on the issue of jurisdiction raised. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

APPEAL: APPEAL AGAINST A NO CASE SUBMISSION; THE EFFECT OF AN APPEAL AGAINST A NO CASE SUBMISSION

It is elementary, that an appeal against a no case submission is an appeal against the decision of the learned trial Court evaluating the facts before it as adduced by the prosecution to determine if the prosecution had made out a prima facie case to warrant the Court calling on the accused to make a defence to the charge. How can that not be a call by the Appellant on the appellate Court to re-evaluate the facts and come to a contrary conclusion as to the sufficiency and nature of the evidence proffered by the prosecution See Akindipe v. The State (2008) 15 NWLR Pt. 1111 page 560. Even where as in the past the Applicant’s counsel insists that the grounds are not of fact because he has cleverly couched them in terms of law, the precedents show that the Courts have also been able to see behind the facade to know that they are grounds of facts or of mixed law and facts. The Courts have always held that it is not what the Appellant’s counsel calls a ground of appeal but what they really are that should be considered. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES:

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

COMMISSIONER OF POLICE – Appellant(s)

AND

GEORGE OGBU – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Lead Ruling): On 1/4/2008, the Appellant/Applicant was arraigned before the Nsukka Magistrate Court on a three count charge of conspiracy, forcible entry into Land and Stealing of Palm Fruit. The Appellant/Applicant pleaded not guilty and was granted bail by the Magistrate Court.

The Prosecution opened its case and called three witnesses, PW1, PW2, and PW3. The Counsel for the Appellant/Applicant relying on the provisions of Section 173 of the Criminal Procedure Law Cap 31 Laws of Enugu State, 2004 made a submission of no case to answer. On 22/2/2011, the Magistrate Court, Nsukka presided over by His Worship S.I. Eze delivered its ruling on the no case submission and refused same. The Appellant/Applicant was not satisfied with the said ruling of the Magistrate Court and on 3/3/2011 filed a Notice of Appeal seeking to set aside the said ruling of the Magistrate Court.

At the Court below, the Appellant/Applicants filed an appeal seeking the following reliefs:
1. An order setting aside the ruling of the trial Chief Magistrate made on 22nd day of February,

2011
2. An order of the High Court upholding the no case submission of the accused counsel
3. An order of Court discharging the accused from the three count charge.

On 23/7/2012, the Court below dismissed the appeal and ordered that the parties should go back to the Magistrate Court to complete the trial. Notice of Appeal was filed against that judgment in this Court on 28/8/12. The Appellant/Applicant filed a motion to transmit records out of time on 22/10/14 and also a motion for stay of proceedings on the same day.

At the last date of adjournment in this Court when the Applicant’s counsel sought to move the motions, this Court raised the issue suo motu of the competence of this appeal in view of the lack of leave first sought and obtained before the filing of the notice of appeal. Learned Applicant’s counsel Mr. Ben C. Ezugwu insisted that the appeal is competent. He argued that four grounds of appeal are all on law and not on mixed law and facts and that the appeal is competent pursuant to Section 241(1)(b) of the 1999 Constitution. He argued that only the 5th ground of appeal

may be on facts.

Counsel argued that what is before the Court are the motions and the Court cannot prematurely terminate the appeal at this stage. Mrs Kate Eyiuche replied that the grounds of appeal are of mixed law and facts for which the Applicant needs leave to appeal. While this Court suggested that there is need for leave pursuant to Section 241(1)(a) of the 1999 Constitution, learned Appellant?s counsel insisted that by Section 241(1)(b) of Constitution the Applicant was not obliged to seek leave to appeal.

Let me set out the relevant provisions of the Constitution.
Section 241(1)(a) &(b) state as follows:
(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
The implication of Section 241(1)(a)&(b) is that appeals lie as of right from decisions of a High Court sitting at

first instance OR where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. A combined reading of Section 241(1) (a)&(b) and 242(1) implies that in circumstances outside the provisions of Section 241(1) (a)&(b), appeals from the High Court must be with leave.

There is no doubt that this appeal is not a final decision as envisaged by Section 241(1) (a). The next question is whether it is one in which the grounds of appeal involves questions of law alone as contemplated by Section 241(1)(b). The argument by the Applicant’s counsel is that this is an interlocutory appeal based on grounds of law alone, therefore leave of this Court is not needed. At this point, I have to look at the five grounds of appeal as contained in the records sought to be transmitted which was filed on 13/1/2014.

In this case, the grounds of appeal are as contained at Pg.216-218 of the Records. I will set them out below:
GROUNDS OF APPEAL
(1) ERROR IN LAW
The learned High Court Judge in Law when

in the judgment delivered on the 23rd day of July, 2012, he refused to uphold the appellants, no case and submission held and stated as follows:
The approach of the learned trial Chief Magistrate cannot be rightly questioned. He approached it having in mind the Law on no case submission??.
PARTICULARS OF ERROR
(a) The prosecution witnesses did establish by evidence the essential elements of the three (3) count charges.
(b) The evidence of the prosecution witnesses were thoroughly discredited as a result of cross-examination.
(2) ERROR IN LAW
The learned High Court Judge erred in Law when in the judgment of 23/7/2012 the judge held and stated that the trial Chief Magistrate Court acted rightly on the issues placed before him.
PARTICULARS OF ERROR
(a) There was no evidence on record to show that the Appellant conspired with other

persons to commit any offence as alleged in Court No.1 of the nine (9) charge sheets.
(b) The evidence of PW1, PW2 and PW3 called by the prosecution were unreliable and contradictory and did not establish a prima facie case against Appellant as to justify his defence.
(3) MISDIRECTION IN LAW
The learned High Court misdirected himself in Law when he failed to hold that the trial Chief Magistrate did not apply correctly the principles of the Law for consideration in a no case submission, as were stated in the cases of Onagoruwa V State (1993) 7 NWLR (Pt.303) Pg. 49 and Aminu Mohammed v State (2007) 29 NSCQR Pg. 29 cited and relied on by the Appellant.

PARTICULARS OF MIDIRECTION
(a) The evidence of PW1, PW2 and PW3 called by the prosecution were manifestly unreliable that no reasonable Court could safely convict on it.
(b) There were no evidence on record establishing the essential elements of the three (3) count charge preferred

against the Appellant.
(4) ERROR IN LAW
The learned High Court Judge erred in Law in the said judgment of 23/7/2012, when he failed and/or neglected to correctly apply the principles of law for consideration in no case submission.

PARTICULARS OF ERROR
(a) The Appellant’s no case submission ought to have been upheld in that the credibility of the evidence of the prosecution witnesses PW1, PW2 and PW3 were destroyed under cross-examination.
(b) Evidence of the prosecution did not disclose a prima facie case against the Appellant.
(5) The judgment of the High Court delivered on 23/7/2012 is against the weight of evidence on record.
RELIEFS SOUGHT
(1) An order of the Court upholding the appeal
(2) An order of the Court setting aside the judgment of Nsukka High Court delivered on 23/7/2012 and the ruling of the Chief

Magistrate Court Nsukka delivered on the 22/2/2011.
(3) An order of the Court discharging the Appellant from the three (3) count charge.

It is clear that in the consideration of the grounds stated above, the appellate Court must consider the evaluation of the facts by the trial Court in order to arrive at any conclusion to refuse or allow the reliefs in the notice of appeal.

Learned Appellant/Applicant’s counsel admitted that four grounds are on law while the 5th ground is on facts. Learned Appellant/Applicant’s counsel does not seem to realize that what this means is that the grounds are of mixed law and facts. There are a plethora of authorities on the point that where the appeal is of mixed law and facts, leave to appeal must be sought and obtained from the High Court or Court of Appeal. Where this has not been done, the appellate Court lacks the jurisdiction to entertain the appeal. See Onifade v Olayiwola (1990) 7 NWLR (Pt.161) Pg. 130; FBN PLC v TSA. Industries (2010) 15 NWLR (Pt.1216) Pg.247; Nwadike & Ors v Ibekwe & Ors (1987) NSCC Vol. 18 (Pt.11) Pg.1220 and Ononuju v A.G. Anambra State

(2009) 10 NWLR (Pt.1148) Pg.182.

At the hearing of the application, the Applicant’s counsel insisted that this Court has no business at this time to enquire as to the competence of the appeal and that we were circumscribed by the motions brought before us which we were to determine as we did not have the right at that point to ?prematurely terminate the appeal?.

Suffice it to say, that a Court has the right to raise suo motu, the question of its jurisdiction to determine any matter brought before it. See

Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) NWLR (Pt.244) Pg. 675. The Supreme Court in ACB v Losada Nig Ltd. (1995) 7 NWLR (Pt. 405) Pg. 26 had expressed the view that a trial judge or an appellate Court is within its rights in raising any issue suo motu as the interest of justice demands. However, a judge raising an issue suo motu must obey the rules of fair hearing. The parties must be given an opportunity to be heard on the point. In this case under review, this Court gave adequate opportunity for both learned counsel to be heard on the issue of jurisdiction raised.

It is important to explain obiter that the Court of Appeal is not a rubber stamp Court. The Constitution does not envisage that the doors of this Court must be flung open for all comers. Hence the provisions for leave to appeal. Prayers for leave to appeal are not supposed to be automatically granted as of course. If that were so, it would make nonsense of the provisions of the Constitution seeking to ensure a screening process for appeals to the Appellate Courts. For example, Section 233(4) in relation to the Supreme Court provides as follows:
233 (4)

The Supreme Court may dispose of any application for leave to appeal from any decision of the Court of Appeal in respect of any civil or criminal proceedings in the record of the proceedings if the Supreme Court is of opinion that the interests of justice do not require an oral hearing of the application.

This is in pari materia with similar provisions of the Constitution guiding Appellate powers of the Court of Appeal in Section 242(2) which states as follows:
242 (2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.

From the above, it is clear that where the Court of Appeal is the 2nd Court to which the case has come on appeal, making it the 3rd Court that has entertained the same matter, the Court of Appeal may refuse to list

the motion for leave to appeal and refuse the motion in chambers without hearing oral or written arguments from the parties. Only the records of proceedings may be considered. That shows the wide powers conferred on the Court of Appeal by the Constitution to regulate the type and number of appeals that it hears or entertains. Leave to appeal against the concurrent finding of fact of the Magistrate Court and High Court to the Court of Appeal can be refused in chambers without entertaining oral arguments.

grounds are not of fact because he has cleverly couched them in terms of law, the precedents show that the Courts have also been able to see behind the facade to know that they are grounds of facts or of mixed law and facts. The Courts have always held that it is not what the Appellant’s counsel calls a ground of appeal but what they really are that should be considered.

Having looked at the grounds of appeal, I am of the view that the Applicant needs to first seek leave to appeal as they are all grounds of mixed law and facts.

In the circumstances, the notice of appeal is incompetent and is hereby struck out. All processes in the file there being no valid appeal to initiate them are also struck out. Appeal number to be struck out of the cause list.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the draft of the ruling rendered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA., and I am in complete agreement with the reasoning contained therein which culminated in the appeal being dismissed. I, too dismiss, the appeal.

I hold that the notice of appeal is incompetent and it is accordingly, struck

out.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with reasoning, conclusions and orders therein.

Appearances

Ben. C. Ezugwu For Appellant

AND

Kate Eyiuche Mrs for Respondent prosecuting with the A.G.’s fiat For Respondent