DALEN v. C.O.P, PLATEAU STATE COMMAND
(2020)LCN/14778(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Tuesday, November 17, 2020
CA/J/510/M/2019(R)
RATIO
ORDER: WHAT AMOUNTS TO A FINAL ORDER
It is trite that where a trial Court made an order which finally disposes of the right of parties in a matter, such order is said to be a final one. See EBOKAM V EKWENNIBE AND SONS LTD (1993) 6 NWLR (Pt. 297) page 108 at 116. Therefore where the order determines the rights of the parties, and or where a decision is a final decision within the context of Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria 1999, and where such decision qualifies for application of the maxim Rex judicata, i.e. estopped the parties from litigating on the issue again, same having being finally determined by a Court of competent jurisdiction, then such decision is a final one. See A.I.B. LTD V PACKOPLAST NIG LTD (2004) 3 NWLR (Pt. 859) 129 at 140. PER ONIYANGI, J.C.A.
APPEAL: WHETHER LEAVE TO SEEK FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL IS REQUIRED AGAINST A FINAL JUDGMENT
What I am saying is that, the Applicant in this circumstance needs no order for leave to seek for extension of time within which to seek leave to appeal. The judgment he intend to appeal against been a final judgment, no leave to appeal is required by virtue of Section 241(1) of the Constitution. Therefore Section 242(1) is inapplicable to the application at hand. PER ONIYANGI, J.C.A.
JUDICIAL DISCRETION: THE CONCEPT OF JUDICIAL DISCRETION
Judicial discretion is a familiar settled concept that the question of exercise of it is governed by several factors. The factors are said not to be necessarily constant but changes with changing circumstances and time and cannot be regarded as immutable and applicable for all time. What I am saying is that every case will be treated in the context of its facts. That is, it is trite that the exercise of judicial discretion depends on the fact and circumstance of each case and that no one case can be and authority for another. That is to say that a Court is not bound by a previous decision to exercise its discretion in a particular way. If that is allowed then it will put an end to the exercise of discretion. See HARUNA V MODIBBO (2004) 16 NWLR (Pt. 900) p. 487 HALIRU V FRN (2008) ALL FWLR (Pt. 425) 1697 at 1726 – 1727.
However, I am not unmindful of the guiding principle that a judicial discretion must at all time be exercised not only judicially but also judiciously on sufficient materials. See SAFIEDOINE V C.P. (1965) 1 ALL NLR 54 at 56, IDEOZU V OCHOMA (2006) 4 NWLR (Pt. 970) 264, CELESTINE ENUMA V STATE (1997) 1 NWLR p. 115 at 116, MILTON P OHWOVORIOLE SAN V F.R.N & 3 ORS (2003) 2 NWLR 176 at 181.
If the exercise of judicial discretion is said to be a science of understanding to discern between falsity and truth, between a shadow and substance, between equity and colourable glosses and preference and not to do to their will and private affection but to be founded upon fact and circumstances presented to the Court, from which the Court will draw its conclusion governed by law, and honesty, See ANPP V R.E.C. AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 at 813, then it is my humble view that the averments in paragraph 4(h), (g), 9j) (k), (L), (m) of the affidavit in support of the application has not been materially and convincingly controverted by the Respondent. Where an averment is not controverted, they would be taken as true. See TATA V ATTORNEY GENERAL OF BAUCHI STATE & ANOR (1993) 9 NWLR (Pt. 317) 358 at 368, ADELAKUN V ORUKU (2007) 17 WRN 89 at 95, A.G. LAGOS STATE V PURIFICATION TECH. (NIG) LTD (2003) 16 NWLR (Pt. 845) 1 at 18. PER ONIYANGI, J.C.A.
JUDICIAL DISCRETION: WHETHER MISTAKE OF COUNSEL QUALIFIES AS A SPECIAL CIRCUMSTANCE WHICH THE COURT CAN GRANT ITS EXERCISE OF DISCRETION
It is trite that mistake of Counsel qualifies as a special circumstance upon which the Court can grant its exercise of discretion in circumstances of the nature of this application at hand. See AKINPELU V ADEGBORE (2008) 4-5 SC (Pt. 11) 75. PER ONIYANGI, J.C.A.
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
PIUS NDEN DALEN APPELANT(S)
And
COMMISSIONER OF POLICE PLATEAU STATE COMMAND RESPONDENT(S)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This Ruling is predicated on the application by Pius Nden Dalen which is by way of a Motion on Notice brought pursuant to Section 6(6) (b), 36 and 242(1) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) Order 6 Rule 2 and 9 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court seeking for the following orders:
(1) AN ORDER extending the time within which the Applicant can seek leave to appeal against the conviction/sentence of the lower Court delivered on the 26th day of November, 2018 in case No. PLD/L1A/12 between the Commissioner of Police Vs Pius Nden Dalen.
(2) An Order seeking leave to appeal against the said conviction/sentence of the lower Court.
(3) AN ORDER EXTENDING the time within which Applicant can appeal against the said conviction/sentence of the Lower Court.
(4) AND for such further order or Orders as this Court may deem fit to make in the circumstance.
The grounds of the application are:-
(1) The Applicant who was an accused person at the Upper Area Court Langtang and who was discharged and
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acquitted of the offence of Mischief by the said Court was, on appeal to the Lower Court, High Court No. 6 sitting in Jos, convicted and sentenced on the 26th day of November, 2018 to six months imprisonment with an option of fine of N20,000.00.
(2) The Appellant who needs leave to appeal and intends to appeal to the Court of Appeal is out of time to seek leave and to appeal against the sentence/conviction of the Lower Court.
(3) The Applicant has since prepared his proposed Notice of Appeal and is ready and willing to file upon the Court granting it prayers.
(4) The Court, pursuant to Section 6(6) (b), 36 and 242(1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) Section 14 and Order 6 Rule 2 of the Court of Appeal Rules 2016 has the powers to grant the Applicant’s application.
In support of the application, the Applicant filed an affidavit of Six (6) paragraphs and attached to it are:
(1) Certified true copy of the judgment of the High Court of Justice Plateau State, Appeal Division Jos in suit No. PLD/L1A/12 delivered on 26/11/2018 marked Exhibit D1.
(2) Jos University Teaching Hospital Jos
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Report reference No. JUTH/DGS/ADM/DIR/19/89 dated 21st February, 2019 marked Exhibit D2.
(3) Notice of Appeal marked Exhibit D3.
Further to the foregoing, he also has a Written Address dated 18th June, 2020 and filed on the 19th June, 2020. Upon service of the aforementioned processes on the Respondent, he also filed a Counter Affidavit in opposition to the Applicant’s application on 2nd July, 2020. In the same vein, the Respondent filed a Written Address on the 2nd July, 2020.
The Applicant filed a reply address to the Respondent’s Written Address on 13th July, 2020.
The fact leading to this application briefly is that the Appellant was charged before the Upper Area Court Langtang in suit Number DUACL/CR25/10 for an offence of Mischief contrary to Section 327 of the Penal Code Laws of Northern Nigeria 1963. At the conclusion of trial, the Upper Area Court Langtang on the 6th day of June, 2012 discharged and acquitted him of the said offence. An appeal was logged at the High Court No. 6 sitting in its appellate jurisdiction against the judgment of Langtang Upper Area Court. The High Court over turned the judgment of the Upper
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Area Court Langtang which discharged and acquitted the Appellant and substituted it with a verdict of guilty against the Appellant. He was convicted and sentenced to a term of Six months imprisonment with an option of fine of N20,000. 00 on the 26th day of November, 2018. The Appellant paid the fine. Against that judgment hence this application for extension of time within which to appeal against the judgment of the High Court (appellate Division) Jos Plateau State.
Respective party filed and exchanged their written address. In the Appellant’s address, the following two issues are presented for the determination of the application:
(1) Whether this Court has the power to grant the reliefs sought on the face of the application.
(2) Whether the Applicant has placed sufficient facts to warrant this Court to exercise its discretion in its favour.
In the same vein, the Respondent also submitted the following issues for determination of the application:
(a) Whether the Applicant adduced substantial reasons for their inordinate delay to appeal.
(b) Whether a delivery of judgment outside the prescribed period will nullify proceedings.
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(c) Whether an appeal is still available to a party who has served out his prison terms.
(d) Whether the impecuniosity of the Applicant can justify the exercise of discretion on his behalf to grant an extension of time.
For the purposes of determining this application, I will consider together the two issues formulated by the Applicant.
ISSUES FOR DETERMINATION
(a) Whether this Court has the power to grant the reliefs sought on the face of the application.
(b) Whether the Applicant has placed sufficient facts to warrant this Court to exercise its discretion in its favour.
In moving this application under consideration, the learned Counsel to the Applicant relied on all the averment in the affidavit in support and the argument contained in his written address. He contended that this Court has the powers to grant the reliefs sought in that the Applicant has placed sufficient facts before the Court to warrant the exercise of the Court’s discretion in favour of the Applicant. He added that, it is trite law that right to appeal are statutory and hence whether an appeal shall be as of right or with leave of Court
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are governed by Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999. He relied on the case of GARUBA & ORS V OMOKHODION & ORS (2011) LPELR – 1309 and Order 6 Rule 9 of the Court of Appeal Rules 2016. He argued further that where an appeal is not as of right and a party seeking to appeal is out of time, such party needs the trinity prayer and the Applicant must give good and substantial reasons for failure to appeal within the prescribed period and show good cause. He cited the cases of S.G.B. (NIG) LTD V L.F.I. LTD (2000) 1 NWLR (Pt. 640) 319 at 327 paras. F-G, IDRIS V AUDU (2005) 1 NWLR (Pt. 6080 612 at 627. He contended that the Applicant has deposed to facts that shows good and substantial reasons for failing to appeal within the prescribed time. He added that the Appellant had 90 days within which to appeal against the judgment of the lower Court. The judgment was delivered on the 26th November, 2018, and the appeal was filed on 18th day of April, 2019 with Number CA/J/144/CM/2019, but the Applicant withdrew the application based on the observation of the Court and same was struck out on 18th September, 2019.
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He referred to Section 122 of the Evidence Act stating that the Court can take judicial notice of its records and rulings. He relied on the case of OSAFILE & ANOR V ODI AND ANOR (1990) LPELR- 2783. He urged the Court to take judicial Notice of his application filed in April, 2019 and struck out in September, 2019 as well as the Ruling striking out the application. Further to the foregoing, he relied on paragraph 4(g)-(p) of affidavit in support of the application wherein the Applicant deposed to credible, good and substantial reasons why he could not appeal on time. The averments are backed up with annexures marked as exhibit to show that the Counsel representing the Applicant was indisposed (Mr. Vontau Danjuma) and lack of money to brief another Counsel contributed to the delay. He referred to Exhibit D2, the referral letter by Dr. Ijeho Broderick of Jos University Teaching Hospital which supports the facts. Not this alone he contended that the Applicant posited on how difficult it is for him to raise money to pay his Counsel. He submitted that all the foregoing put together are compelling reasons that goes to show why the appeal was not filed within time.
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In addition to the foregoing that the ground of appeal also shows good cause why the appeal should be heard. He referred to grounds 3, 5 and 6 of the grounds of appeal attached to the application as Exhibit D3.
He argued that the ground of appeal do not only show good cause but question the jurisdiction of Court to have resolved civil issues of title in a criminal matter which issue can only be resolved in civil matters after complying with the ways to prove title. That it is trite that when a ground of appeal challenges the jurisdiction of Court, an Appellate Court would readily exercise its discretion to consider the issue. He relied on the case of N.N.P.C. V. O.E. (NIG.) LTD (2008) 8 NWLR (Pt. 1090) 583 at 610-611 paras. F-A.
He urged the Court to resolve the two issues in the affirmative and hold that this Court has the power to grant the application and that the Applicant has furnished the Court with sufficient facts to warrant the Court’s exercise of discretion in his favour and grant the prayers as contained on the face of the motion paper.
On the part of the Respondent, it is submitted that the burden of proof on Applicants who
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seeks enlargement of time within which to appeal cannot be waived and the Applicant must satisfy two conjunctive conditions. He cited the case of CCBD V MINISTER (2019) 2 SCNJ 378 at pages 394 – 395. He urged the Court to hold that the affidavit in support of the application is of no moment and not cogent reasons were disclosed in conjunction with the grounds of appeal.
It is his further contention that an appeal is no more available to a party who had served his or her jail term. He referred to the case of AMANCHUKWU V FRN (2009) ALL FWLR (Pt. 465) 1972. He argued further that the appeal is no longer available to the Applicant having regard to the averments in the affidavit in support of the application. For the Court to exercise its discretion in favour of the Applicant, he must advance cogent reasons why time should be extended for him. Issue of lack of money to prosecute the appeal will not be acceptable. He relied on MOSES V OGUNLABI (1975) 4 SC 61.
He urged the Court to refuse the application as the Applicant has failed to adduce cogent reasons in his affidavit in support.
I have carefully read through all the processes filed in
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respect of this application. Before dealing with the consideration of the main substance of this application which in my view should only be for extension to time to appeal out of time. But in this application, the Applicant is asking for the grant of a trinity prayers i.e.
Extension of time to seek leave to appeal, leave to appeal and extension of time to appeal.
Considering the facts leading to this application which can be put briefly thus; The Applicant was arraigned before the Upper Areas Court Langtang for an offence of Mischief contrary to Section 327 of the Penal Code Law of Northern Nigeria. He was tried by the said Court and in the end discharged and acquitted. Aggrieved by the outcome, the Prosecution appealed to the High Court Langtang sitting in its appellate jurisdiction. The appeal was heard on its merit and the Court, in its considered judgment upturned the judgment of the Upper Area Court Langtang and allowed the appeal.
The Applicant was found guilty, convicted and sentenced to a term of Six months imprisonment with an option of fine of N20,000.00. Against that judgment is this application.
From the foregoing, it is clear
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and cannot be disputed that the judgment of the High Court Langtang upturning the judgment of the Upper Area Court Langtang, convicting and sentencing the Applicant is a final judgment.
It is trite that where a trial Court made an order which finally disposes of the right of parties in a matter, such order is said to be a final one. See EBOKAM V EKWENNIBE AND SONS LTD (1993) 6 NWLR (Pt. 297) page 108 at 116. Therefore where the order determines the rights of the parties, and or where a decision is a final decision within the context of Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria 1999, and where such decision qualifies for application of the maxim Rex judicata, i.e. estopped the parties from litigating on the issue again, same having being finally determined by a Court of competent jurisdiction, then such decision is a final one. See A.I.B. LTD V PACKOPLAST NIG LTD (2004) 3 NWLR (Pt. 859) 129 at 140.
For the foregoing therefore, what I am getting at is that the Applicant need not seek for leave for extension of time to appeal out of time under Section 242(1) but under Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999.
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What I am saying is that, the Applicant in this circumstance needs no order for leave to seek for extension of time within which to seek leave to appeal. The judgment he intend to appeal against been a final judgment, no leave to appeal is required by virtue of Section 241(1) of the Constitution. Therefore Section 242(1) is inapplicable to the application at hand.
In the light of the foregoing therefore, I hereby strike out Section 242(1) under which the application is brought and also prayers one and two contained in the motion paper seeking for leave to extend time and leave to appeal. This application will therefore be considered under Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 and in terms of prayer 3 contained on the motion paper for extension of time to appeal.
Having gone this far, the question that agitates the mind is whether or not the Court can exercise its discretion having regards to the facts averred in the affidavit in support of this application.
Judicial discretion is a familiar settled concept that the question of exercise of it is governed by several factors. The factors are
12
said not to be necessarily constant but changes with changing circumstances and time and cannot be regarded as immutable and applicable for all time. What I am saying is that every case will be treated in the context of its facts. That is, it is trite that the exercise of judicial discretion depends on the fact and circumstance of each case and that no one case can be and authority for another. That is to say that a Court is not bound by a previous decision to exercise its discretion in a particular way. If that is allowed then it will put an end to the exercise of discretion. See HARUNA V MODIBBO (2004) 16 NWLR (Pt. 900) p. 487 HALIRU V FRN (2008) ALL FWLR (Pt. 425) 1697 at 1726 – 1727.
However, I am not unmindful of the guiding principle that a judicial discretion must at all time be exercised not only judicially but also judiciously on sufficient materials. See SAFIEDOINE V C.P. (1965) 1 ALL NLR 54 at 56, IDEOZU V OCHOMA (2006) 4 NWLR (Pt. 970) 264, CELESTINE ENUMA V STATE (1997) 1 NWLR p. 115 at 116, MILTON P OHWOVORIOLE SAN V F.R.N & 3 ORS (2003) 2 NWLR 176 at 181.
If the exercise of judicial discretion is said to be a science of
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understanding to discern between falsity and truth, between a shadow and substance, between equity and colourable glosses and preference and not to do to their will and private affection but to be founded upon fact and circumstances presented to the Court, from which the Court will draw its conclusion governed by law, and honesty, See ANPP V R.E.C. AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 at 813, then it is my humble view that the averments in paragraph 4(h), (g), 9j) (k), (L), (m) of the affidavit in support of the application has not been materially and convincingly controverted by the Respondent. Where an averment is not controverted, they would be taken as true. See TATA V ATTORNEY GENERAL OF BAUCHI STATE & ANOR (1993) 9 NWLR (Pt. 317) 358 at 368, ADELAKUN V ORUKU (2007) 17 WRN 89 at 95, A.G. LAGOS STATE V PURIFICATION TECH. (NIG) LTD (2003) 16 NWLR (Pt. 845) 1 at 18. From the affidavit evidence of the Applicant, mistake of Counsel is very feasible. It is trite that mistake of Counsel qualifies as a special circumstance upon which the Court can grant its exercise of discretion in circumstances of the nature of this application at hand.
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See AKINPELU V ADEGBORE (2008) 4-5 SC (Pt. 11) 75.
Considering the totality of the foregoing, I have no hesitation in my mind that considering the fact of this application the Court can exercise its discretionary power in favour of the Applicant. I therefore answer the question in the affirmative. The application is therefore granted in terms of prayer 3 contained on the motion paper. The objection thereto is overruled in its entirety and dismissed.
Accordingly, Order is hereby granted to the Applicant extending the time within which to appeal against the judgment of the High Court of Justice sitting in its appellate jurisdiction in case NO. PLD/L1A/12 between COP V. PIUS NDEN DALEN delivered on 26th day of November, 2018.
Applicant to file his Notice of Appeal within 14 days from today.
TANI YUSUF HASSAN, J.C.A.: I agree with the Ruling just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA granting the applicant extension of time within which to appeal against the judgment of Plateau State High Court sitting in its appellate jurisdiction in case No. PLD/L1A/12 delivered on 26th November, 2018.
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BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead ruling of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement with his reasoning and conclusion. I also grant the application and extend time for applicant to file his notice of appeal against the judgment of the lower Court within 14 days from today.
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Appearances:
Y. DENDEN, ESQ., with him, T. R. BIANGTEN, ESQ. For Appellant(s)
N. AZI, ESQ. PSC PLATEAU STATE MOJ For Respondent(s)
