ENGR. MAXWELL ADOKI V. COMMISSIONER OF POLICE
(2013)LCN/5914(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/PH/328/2010
RATIO
“The plain duty of a judge interpreting any provision of a statute is simply that in so doing he must not place a gloss on the provision by adding to the provision what was not added by the legislature. He does not possess the function to legislate. The observation of Aderemi, JSC in ACTION CONGRESS & ANOR v INEC (2007)12 N.W.L.R. (pt.1048) 220 is very apt. The learned jurist had stated in the judgment that by the canons of statutory interpretation a judge’s duty, which is even a command on him, is to interpret the clear and unambiguous words according to their ordinary natural and grammatical meanings. He must not add to or remove any words therefrom. It must be added that since the intention of the framers of the statute must be ascertained, it must be ascertained from the words used in the provision. It cannot be ascertained from any other source. See ATTORNEY GENERAL v. ATIKU ABUBAKAR (2007)10 N.W.L.R. (pt.1041)1 where the Supreme Court further reiterated the point that in construing a statutory provision the court is not allowed to read into any provision thereof anything not expressly contained therein or to fashion out another provision other than that provided in the statute by the appropriate Legislature. In other words, it is not the function of the Court, while interpreting provisions of a statute, to interpret it to mean what it does not mean, or not to mean what it clearly means. The duty of the Judge, always, when interpreting a statutory provision is to bring out the meaning the Legislator intended to be ascribed to it.” Per EKO, J.C.A.
“Appeals include complaints against interlocutory and final decisions. In my view if the statute that confers the right of appeal does not say which right shall be exercised as of right and which shall be by leave then both rights are exercised as of right. In any case, “all appeals” in Section 30 Rivers State High Court Law include interlocutory appeals against decisions of Magistrate court to the High court. This provision does not impose any condition precedent or restriction on the exercise of the right of appeal by an aggrieved. It therefore amounts to judicial legislation to interpose such condition precedent to the exercise of the right conferred by section 30 of the High Court Law of Rivers State.” Per EKO, J.C.A.
JUSTICES:
EJEMBI EKO Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
ENGR. MAXWELL ADOKI – Appellant(s)
AND
COMMISSIONER OF POLICE – Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This Appellant was, along with 5 others, charged with the offences of conspiracy to commit felony, conducting themselves in a manner likely to cause the breach of public peace, and causing wilful damage to crops belonging to Joy D. Solomon, Mercy Effiong and Cecilia Effiong. The offences are punishable under Sections 516, 249(1), 81 and 451 of the Criminal Code Law 1963 of the Laws of Eastern Nigeria applicable in Rivers State. The Appellant was the 1st accused person on the charge sheet.
The trial was of the Chief Magistrate’s Court. Four witnesses testified for the prosecution and some exhibits were tendered in the course of the proceedings. At the close of the prosecution, Counsel for the Appellant, as the 1st Accused of the trial court, entered a no-case submission. The submission was overruled by the learned Chief Magistrate on 11th November, 2008. The Appellant lodged his appeal against the decision of the learned Chief Magistrate on 19th November 2008 to the High Court of Rivers State, which High Court by virtue of Section 30 of the High Court of Law of Rivers State, is empowered to hear and determine all appeals from the Magistrate courts. The said section 30 provides.
30. The court shall have appellate jurisdiction to hear and determine all appeals from the decisions of Magistrate Courts in civil and Criminal causes or matters given in the exercise of the original jurisdiction of the said Courts as well as cases stated by the Magistrates in accordance with the provisions of this Law or any other written Law.
There is no ambiguity about the appellate jurisdiction of the Rivers State High Court as conferred by the provisions of Section 30 of the High Court Law. The High Court is empowered or vested with “jurisdiction to hear and determine all appeals from the decisions of Magistrate Courts- in criminal causes or matters given in exercise of the original jurisdiction of the said courts”.
The jurisdiction conferred on the High court by Section 30 of the Rivers State High court Law to hear and determine all appeals from the Magistrate’s Court include jurisdiction to hear and determine appeals against both interlocutory and final decisions of Magistrate’s Courts.
The plain duty of a judge interpreting any provision of a statute is simply that in so doing he must not place a gloss on the provision by adding to the provision what was not added by the legislature. He does not possess the function to legislate. The observation of Aderemi, JSC in ACTION CONGRESS & ANOR v INEC (2007)12 N.W.L.R. (pt.1048) 220 is very apt. The learned jurist had stated in the judgment that by the canons of statutory interpretation a judge’s duty, which is even a command on him, is to interpret the clear and unambiguous words according to their ordinary natural and grammatical meanings. He must not add to or remove any words therefrom. It must be added that since the intention of the framers of the statute must be ascertained, it must be ascertained from the words used in the provision. It cannot be ascertained from any other source. See ATTORNEY GENERAL v. ATIKU ABUBAKAR (2007)10 N.W.L.R. (pt.1041)1 where the Supreme Court further reiterated the point that in construing a statutory provision the court is not allowed to read into any provision thereof anything not expressly contained therein or to fashion out another provision other than that provided in the statute by the appropriate Legislature. In other words, it is not the function of the Court, while interpreting provisions of a statute, to interpret it to mean what it does not mean, or not to mean what it clearly means. The duty of the Judge, always, when interpreting a statutory provision is to bring out the meaning the Legislator intended to be ascribed to it.
I had earlier reproduced section 30 of the Rivers State High Court Law. This appeal essentially complains about the decision of the Rivers State High Court (Coram: B. A. Georgewill J.) to the effect that Leave must be sought and had before the appellant could appeal against the decision of the Chief Magistrate that a prima facie case had been made against the 1st Accused/Appellant which warranted his being called upon to open his defence. The instant appeal is against that decision of the Rivers State High Court delivered on 22nd February, 2010.
The Learned Judge of the court below Suo motu raised the issue: whether the appeal against the interlocutory decision on a no-case submission was competent as no leave was sought and had before the appeal was filed. Written arguments were exchanged of the court below by the appellant’s Counsel and the prosecutor. In arriving at his decision to strike out the notice of appeal, filed by the appellant on 19th November, 2008 to his Court against the ruling of the Magistrate’s Court on a no-case submission, His Lordship, the Learned Judge of the court below, stated inter alia at p. 109 of the Record:-
4. An appeal, where the right of appeal is created by statute, may be interlocutory or final in nature.
5. Certain basic rules have evolved on the right of appeal in relation to final or interlocutory decision, namely:
a. Appeal on Final Decisions:
where a right of appeal is created by statute, on Appeal against a final decision is of right whether on grounds of law alone or grounds of facts alone or on grounds of mixed law and facts. See S. 54 of the Magistrate Court Law See also SOSAN v. HFP ENGINEERING LTD (2004)3 N.W.L.R. (PT. 861)546 at P.578.
b. Appeal on interlocutory Decision:
where the right of appeal is created by statute, on appeal against on interlocutory decision is with leave of Court if it is on grounds of facts alone or on grounds of mixed law and facts but where however the appeal is on grounds of law alone, no leave is required for an interlocutory appeal.
c. In every case in which a right of appeal is created but it is not stated to be as of right, the law is that such an appeal lies only with the leave of court. See LEKWOT v. JUDICIAL TRIBUNAL (1993)2 N.W.L.R. (pt.276)410.
Appeal from the High court to this court is the centre point of the decision of this court in LEKWOT v. JUDICIAL TRIBUNAL (supra) of page 442. On the creation of right of appeal, it was held in that case, that it is well established that no appeal lies unless a right of appeal is expressly conferred by statute, and in order to be entitled to exercise a right of appeal, the appellant must come within the provisions of the statute creating the right of appeal (MOSES V. OGULABI (1975) 4 SC 81; UGWOH V A – G, EAST CENTRAL STATE (1975)6 SC 13).
Accordingly, it is only from within the enabling statute, and from no other source, that the court can ascertain whether there are pre-conditions to the exercise of the right of appeal conferred by the enabling statute. In enacting section 30 of the Rivers state High court law the Legislature did not intend such pre-condition for the exercise of the right of appeal against the decisions of the Magistrate to the High court.
In the instant appeal, the appellant did not seek Leave, and no leave was granted to him, to appeal against the decision on his no-case submission. The decision is clearly interlocutory.
Going by Section 30 of the Rivers State High Court Law there is no such requirement that for interlocutory appeals, leave to appeal must be first sought and had before an appeal could lie against an interlocutory decision of a Magistrate Court to the High court of Rivers State. Reading such a condition precedent into Section 30 (supra) would, in my view, be placing a gloss on the provision. And that is not permitted, as earlier pointed out.
The court below also relied on section 272 of the Constitution of the Federal Republic of Nigeria, 1999 to arrive at the conclusion that leave, first sought and had, is a pre-condition for filing on valid interlocutory appeal to the High Court from a decision of a Magistrate Court. For emphasis and proper appreciation Section 272 of the Constitution is herein below reproduced:
272-(1) Subject to the provision of section 251 and other provisions of this constitution, the High Court of a State shall have jurisdiction to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. Â
(2) The reference to – criminal proceedings in this Section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
The appeal filed by the Appellant against the ruling of the Chief Magistrate Court to the High Court of Rivers State was a step towards “the exercise of its appellate or supervisory jurisdiction” by the said High Court pursuant to or under Section 30 of the High Court Law of Rivers State.
Section 272 of the constitution, as Mr. Igbikiberesima of Counsel to the appellant has submitted correctly, imposes no obligation on an appellant who seeks to appeal against an interlocutory decision of the Magistrate Court to the High court to first seek and obtain Leave of court before doing so. Section 272 of the Constitution, like Section 30 of the Rivers State High Court Law, draws no distinction between an appeal against a final decision and an appeal against interlocutory decision. That obligation or burden, as a condition precedent, is entirely the function of the Legislature to impose. The Learned Judge of the court below was, in my firm view, clearly in error when he unwittingly dabbled into the functions of the Legislature. “All appeals” in Section 30 of the Rivers State High court Law mean both interlocutory and final appeals. The provision makes no distinction between appeals against final and interlocutory decisions of the magistrate court. It equally imposes no condition precedent for exercising the right of appeal it confers. Section 272, particularly sub-section (2) thereof, can not be read in isolation of section 30 of the High court Law of Rivers State that vests on the High Court jurisdiction to hear and determine all appeals in criminal matters from Magistrate courts.
The court below held, purporting that that is the ratio decidendi in LEKWOT V. JUDICIAL TRIBUNAL  (1993)2 N.W.L.R. (pt. 276)410, that in every case where a right of appeal is created, but it is not stated  to be as of right, that the law is that such appeal lies only with leave of court. I do not think that this is the correct exposition of the law. The principle, well settled, in the construction of statutory provisions, is: where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expression unuis est exclusion alterius rule; meaning, the express mention of one thing in a statutory provision automatically excludes any other thing which otherwise would have been included by implication. This principle has been applied by the Supreme Court in several landmark decisions including BUHARI V. YUSUF (2003) 14 NWLR (PT.8541) 446; OGBUNYIYA V. OKUDO (1976) 6-9 SC 32; UDOH V. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (PT.304) 139; A.G. ABIA STATE & ORS V. A.G. FEDERATION (2005) 12 NWLR (PT.940)452 ETC.
Appeals include complaints against interlocutory and final decisions. In my view if the statute that confers the right of appeal does not say which right shall be exercised as of right and which shall be by leave then both rights are exercised as of right.
In any case, “all appeals” in Section 30 Rivers State High Court Law include interlocutory appeals against decisions of Magistrate court to the High court. This provision does not impose any condition precedent or restriction on the exercise of the right of appeal by an aggrieved. It therefore amounts to judicial legislation to interpose such condition precedent to the exercise of the right conferred by section 30 of the High Court Law of Rivers State.There is merit in this appeal. It is accordingly allowed by me. The decision appealed in the suit no. PHC/987/2009 delivered on 22nd February, 2010 is hereby set aside. The case is remitted to the chief
Judge of Rivers State to be assigned to another Judge for hearing de novo. For avoidance of any doubt the appellant’s appeal to the High Court is a valid appeal, and it should be heard on its merits.
CHIOMA E. NWOSU-IHEME (PH.D) J.C.A.: I am in total consonance with the reasoning and conclusion reached in the lead judgment just delivered by my learned brother, EJEMBI EKO, JCA, to the effect that there is merit in this appeal.
The judgment of the lower court delivered on the 22nd of February, 2010 is hereby set aside.
The appeal to the High court from the chief Magistrate’s court is a valid appeal and therefore should be heard on its merits.
This case is remitted to the Chief Judge of Rivers State to be assigned to another Judge for hearing and determination.
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STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned Brother Eko, JCA. I am in complete agreement with him that this appeal is meritorious.
The Appellant lodged his appeal against the decision of the learned Chief Magistrate on 19th November 2008 to the High Court of Rivers state which Court has jurisdiction to hear and determine all appeals from the Magistrate Courts in Rivers state by virtue of section 30 of the High court Law of Rivers State. The Learned trial Judge, decided that leave must be sought and had before the Appellant could appeal against the decision of the chief Magistrate on a no case submission.
It is well settled in law that a right to appeal against the decision of an inferior Tribunal is one created by law or statute. An appeal is not a matter of common right but of a special provision. See the cases of Aroyewun v. Adebanji (1976) 11 SC (Reprint) 21; Aburime v. Commissioner of Police (1978) All NLR 257; and Garaki v. Kotoye (1992) NWLR (Pt.264) 156. Consequently, it is obvious and certain that no one can sabotage, annul or dwindle the right already given by the law to a litigant. In the case of Minister P.M.R. v. EL (Nig) Ltd (2010) 12 NWLR (Pt.1208) 261, it was held by the Supreme Court that:
“The 1999 Constitution guarantees every citizen of this Country an access to court to air his grief and a right of appeal thereafter where necessary. The right of appeal must be exercised within the precept of the law. Oredoyin v. Arowolo (1989) 4 NWLR (pt.114) page 172, Ngige v. Obi (2006) 14 NWLR (Pt.999) page 1. Oputa JSC in the case of Obikoye v. Wema Bank Ltd (1989) NWLR (Pt.96) 157 said a right to appeal is a very important constitutional right and its exercise ought not to be unduly fettered. In the instant case, the learned trial judge introduced the issue of leave to appeal which had no foundation in section 30 of the High Court of Rivers state Law. What that amounts to with all respect, is not only making the Appellant bear the burden he was not expected to bear under the law but sabotaging the right of the Appellant to appeal against the decision of the Chief Magistrate.
This is not allowed under our laws. As a result of this and the fuller reasons given by my learned brother Eko, JCA in his detailed judgment, I allow this appeal and abide by the orders made in the lead judgment.
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Appearances
J. H. Igbikiberesima EsqFor Appellant
AND
For Respondent
