EZENNIA EMMANUEL IFEANYI OKWUSOGU v. COMMISSIONER OF POLICE
(2013)LCN/6569(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of December, 2013
CA/B/204C/2012
RATIO
WHETHER A RULING ON A NO CASE SUBMISSION IS APPEALABLE
A ruling on a no case submission is a decision within the hearing of Section 277 (1) of 1979 Constitution that can be appealed against notwithstanding the fact that the accused has not exercised the option to either enter his defence or rest his case on the prosecution. Thus, the decision in Nwosu v. State (1990) 7 NWLR (Pt. 162) 322 was reached per incurium and does not represent the law.
See NJOKU v. COP (1999) 10 NWLR (Pt. 622) 192 @ 198 paragraphs B – D per Akaahs, J.C.A. (as he then was). See also OWONIKOKO v. STATE (1990) 7 NWLR (Pt. 244) 713. ODIDO v. STATE (1994) 3 NWLR (Pt. 333) 50. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
EZENNIA EMMANUEL IFEANYI OKWUSOGU Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the leading Judgment): This is an appeal against the Ruling of the High Court of Justice, Delta State, Asaba Judicial Division, which was delivered on March 12, 2010 by K. O. Okpu, J.
BACKGROUND FACTS
On August 8, 2008, the Appellant was arraigned on a five count charge of conspiracy to commit an offence to wit – conduct likely to cause a breach of the peace, et al, contrary to Sections 517, 249 (d), 86(2), of Criminal Code Laws of the Defunct Bendel State applicable to Delta State.
At the close of the prosecution case, the defence counsel made a no-case submission. On February 13, 2009, the learned trial Chief Magistrate delivered a considered Ruling to the conclusive effect, thus:
I have listened and studied the evidence of the prosecution, I have also considered the submission of learned defence counsel in its entirety…
In my own thinking, the exhibits in this case especially exhibits A, B, C, D, K, J and H disclosed a criminal cause of action which needs to be defended. I am fully convinced that the prosecution has made out a prima facie case and hearing the defence of the accused person will guide the court in making a just Judgment. Therefore, I call upon the accused to enter his defence.
This is my Ruling.
…
NNAMDI ONYEKWE ESQ.
SNR MAGISTRATE GD 1.
See pages 33 – 36 of the Record of Appeal Dissatisfied with the Ruling in question, the Appellant appealed to the High Court of Delta State, Asaba Judicial Division.
In response to the said appeal filed in the court below, the
Appellant filed a preliminary objection challenging the competence of the appeal on the following grounds:
(1) That by virtue of Section 66 of the Magistrates’ Court Law Cap 97 Laws of the defunct Bendel State the Appellant has no right of appeal as he has not been convicted.
(2) A ruling on a no case submission is not a conviction against the Applicant for which he would have a right of appeal. See page 71 of the Record.
The learned counsel filed in the court below their respective written addresses, and thereafter addressed the court thereon. In a considered Ruling, delivered on March 12, 2010, the lower court came to the conclusion, thus:
The appeal in this case is in respect of a no case submission, which was overruled by the Magistrate. The accused person has not been convicted. In the circumstance, the accused person has no right of appeal under Section 66 of the Magistrate’s Court Law. The objection is upheld. In the result, the appeal ought to be and is hereby dismissed.
I have quoted copiously from the Judgment of my learned brother because in my view the issues raised in the preliminary objection were well considered by my learned brother. I am persuaded by the reasoning therein.
Consequently, the objection of the Complainant/Respondent/Applicant is upheld and this appeal is hereby dismissed.
HON. JUSTICE K. O. OKPU
JUDGE
12th March, 2010
Once more, having been dissatisfied with the said decision of the court below, the Appellant filed the instant appeal, which is predicated upon six grounds of appeal.
Upon the transmission of the Record of Appeal, the learned counsel filed their respective briefs of argument. Most particularly, the Appellant’s brief was filed on 24/9/12. The Respondent’s brief was filed on 22/9/12, but deemed properly filed on 17/4/13. On 18/11/13, when the appeal last came up for hearing, both learned counsel adopted their respective briefs of argument. Thus, resulting in reserving Judgment for delivery.
At page 4 of the brief thereof, the Appellant has formulated an apparently double barrel hypothetical issue for determination, viz:
Whether an accused person has a right of appeal to the High Court against an order of a magistrate calling upon him to enter his defence, following a refusal of a no case submission made by him, in Delta State of Nigeria and if yes, whether the learned appellate High Court, was correct in law, when it dismissed the appeal?
The Appellant’s submission on the said issue is contained at pages 4 – 12 of the brief thereof. Copiously alluding to the vexed Ruling of the court below, at pages 86 – 87, line 18 – 18 of the Record of Appeal, the Appellant submitted, inter alia, that the view expressed therein by the lower court was wrong in law. The reason being that appeals emanating from criminal trials, which are not specifically covered by Sections 66 – 69 of the Magistrate’s Court Law (Supra), would find coverage under Sections 64 and 65 of the said Magistrate’s Court Law.
That, any interpretation other than that will do great harm and injustice to the interests of the parties. Further submitted, that holding that the order used in Section 66 MCL is an order following a conviction, the lower court has read into the said section what is not contained therein. That, the attitude of courts in the interpretation of statutes is to construe the statute, strictly and narrowly against the acquiring authority, but sympathetically, in favour of the citizen whose right is being deprived. See TYONZUGHUL v. A.G. BENUE STATE (2005) 5 NWLR (Pt. 918) 226 @ 248 paragraphs A – C.
It was postulated, that the lower court has lost sight of the provisions of Sections 272 (1) and (2) 318 (1) of the 1999 Constitution, as amended, and Section 22 of the High Court Law CAP 113 Laws of Delta State of Nigeria, dealing with right of appeal from Magistrate’s Court to the High Court. That, the provisions of Sections 272(1) and 318(1) of the 1999 Constitution, and Section 22 of the High Court Law (Supra) have conferred on the Appellant the right to appeal to the lower court from the decision of the Magistrate’s Court.
The court is urged to so hold. Thus, the appeal was properly filed by the Appellant in the court below, which had the jurisdiction to hear same on its merit. But the lower court chose to dismiss the appeal based on a misconception of justice.
Conclusively, the court is urged to allow the appeal and relist same for hearing before another Judge.
On the other hand, the Respondent has equally raised only one issue for determination at page 2 of the said brief thereof to wit:
Whether the learned Appellate Judge was right in law when he upheld the preliminary objection of the Respondent, to the effect that the Appellant has no right of appeal to the High Court against the ruling of the trial Magistrate.
In view of the express provisions of Section 66 Magistrate Court Law Cap. 97 Laws of Bendel State, applicable to Delta State.
Without much ado, it was submitted that the lower court was right in law when it upheld the preliminary objection of the Respondent, to the effect that by the express provision of Section 66 of the Magistrate’s Court Law CAP. 97 Laws of Bendel State, applicable in Delta State, the Appellant has no right of appeal against the said ruling on a no case submission in question. That, appeals are not matters of common right, but of special provision as contained in statutes. See BOARDMAN v. SOKOTO NA (1965) All NLR 222.
Further submitted, that although Section 64 MCL CAP. 97, Laws of the defunct Bendel State, applicable to Delta State and Section 22 High Court Law Delta State deal with appeals generally, Section 66 is a special provision – on criminal appeals. Thus, it’s trite law, that where there are general and special provisions, the special provision takes precedent. See UDEH v. FRN (2001) FWLR (Pt. 61) 1731 @ 1739; E.M.B. v. OLLOH (2002) 97 LRCN 875 @ 883.
Allegedly, in arriving at the conclusion that “the accused should enter his defense” the lower court distinguished the instant case from the earlier cases of superior courts cited by Appellant’s counsel. Those cases are different from the facts of the present case. And that the provision of Section 272 of the 1999 Constitution is inapplicable to appeals emanating from Magistrate’s court of Delta State. It was finally contended, that the lower court was right in law, when it upheld the Respondent’s objection because (i) Section 66 of the Magistrate’s Court Law (supra) is a special provision, which takes precedent over other general provisions; (ii) the Judgment of the lower court is a judicial interpretation of Section 66 (Supra); and (iii) that the lower court was also right in law when it held that the cases of NJOKU v. COP (1999) 10 NWLR (Pt. 66) 192 and ONAGORUWA v. STATE (1992) 5 NWLR (Pt. 244) 713, were inapplicable to the present case.
Accordingly, the Respondent’s learned counsel has urged on the court to affirm the finding of the lower court.
I would want to appreciate that the sole issue raised in the Respondent’s brief is more articulative and concise than that of the Appellant, which is rather hypothetical. Thus, I hereby adopt the Respondent’s issue for the determination of the appeal. In any event, the issues raised in the said respective briefs are not at all mutually exclusive.
As alluded to above, the fundamental issue arising from the grounds of appeal raises the question of whether the lower court was right in law, when it upheld the preliminary objection of the Respondent, to the effect that the Appellant has no right of appeal to the High Court against the ruling of the trial Magistrate’s Court, in view of the express provisions of Section 66 of the Magistrate’s Court Law CAP. 97 Laws of Bendel State, applicable to Edo State.
I have copiously alluded, hereinabove, to the finding of the lower court in the said ruling at pages 88 – 89 of the Record, to the conclusive effect, thus –
“Consequently, the objection of the complainant/Respondent/Applicant is upheld and this appeal is hereby dismissed.”
Invariably, the term no case submission denotes a submission, to the effect that an accused person has no case to answer. That’s there’s no evidence on which even if believable by the trial court, it could not convict thereupon. In other words, certain very essential ingredients of the offence for which the accused person stands trial (charged) have not been proved by the prosecution; and that no credible evidence was adduced by the prosecution to prove such essential ingredients of the offence. Thus, as aptly held by the Apex Court –
The question whether or not the court believes the evidence led does not arise at the stage of the proceedings. The credibility of the witnesses also does not arise at that stage. This is because the trial of the case was at that stage not yet concluded. This is therefore the reason why the court should not concern itself with the credibility of witnesses or the weight to be attached to the evidence, even if are accomplices.
See EKWUNUGO v. FRN (2008) 15 NWLR (Pt. 111) 630 @ 638 paragraphs E – H; 641 paragraphs G – H; & 642 A, per Akintan, JSC. See also AJIBOYE v. STATE (1995) 8 NWLR (Pt. 414) 408; R. v. COKER 20 NLR 62; R. v. EKANEM (1950) 13 WACA 108; BELLO v. STATE (1967) NMLR 1; AJIDAGBA v. IGA (1958) SCNLR 60.
Characteristically, a submission of no case (to answer) could only be properly made, and upheld, in either of the following two circumstances:
(a) When there has been no evidence (at all) to prove an essential ingredient (element) in the alleged offence; and/or
(b) When the evidence adduced by the prosecution has been so utterly discredited, as a result of cross examination, or is so obviously (manifestly) unreliable that no reasonable tribunable could safely convict thereupon.
Thus, following from the above postulation, it’s rather obvious that what has to be considered at the stage of a no-case submission is not whether the evidence against the accused is adequate to justify conviction, but has indeed made out a prima facie case requiring at least some explanation from the accused person himself. See EKWUNUGU v. FRN (Supra) @ 639 paragraphs A – F.
In the instant case, the finding of the lower court was to the effect that the appeal thereto was in respect of a no-case submission which was overruled by the trial Magistrate. And that since the Appellant was not convicted he has no right to appeal to the lower court.
The provisions of Section 64 of the Magistrate’s Court Law CAP MI Laws of Delta State, 2006 are very much pertinent to the determination of this appeal. The said provisions of Section 64 of the Magistrate’s Court Law (supra) are to the effect, thus –
64. Right of appeal from decisions and Judgments of Magistrates subject to any express provisions to the contrary in any other written law and to the provisions of this law any person aggrieved by a decision of Judgment of a Magistrate may appeal therefrom to the Appeal Court.
Again, it’s provided in Section 66 of the said Magistrate’s Court Law that –
66. Right of appeal in criminal cases by a person who pleaded not guilty. Any person aggrieved by a conviction for order by a Magistrate in a criminal case in respect of any charge to which he pleaded not guilty or of which he did not admit the truth may appeal to the Appeal Court from such conviction.
Instructively, by the term “in Appeal Court”, as expressly couched in both Sections 64 & 66 of the Magistrate’s Court Law (supra), denotes no other court than the High Court of Delta State i.e. the lower court itself. See Section 2 of the Magistrate’s Court Law (supra).
In the same vein, the term “decision” denotes a judicial determination consequent upon the consideration of the facts and relevant laws, most especially a Ruling, Order or Judgment pronounced by a court when considering or disposing of a case, or matter.
Thus, the term “appeal decision”, invariably denotes –
A decree or order that is sufficiently final to receive appellate review (such as an order granting summary Judgment), or an interlocutory decree or order that is immediately appealable, usu. by statute (such as an order denying immunity to a police officer in a civil rights suit). – Also termed reviewable issue.
See BLACK LAW DICTIONARY, 9th Edition, 2009 @ 467.
Now, the question of whether a ruling on a no-case submission is an appealable decision has long been settled in a plethora of authoritative decisions of both this court and Supreme Court.
In one of such decisions, this court was recorded to have aptly held, inter alia, that –
A ruling on a no case submission is a decision within the hearing of Section 277 (1) of 1979 Constitution that can be appealed against notwithstanding the fact that the accused has not exercised the option to either enter his defence or rest his case on the prosecution. Thus, the decision in Nwosu v. State (1990) 7 NWLR (Pt. 162) 322 was reached per incurium and does not represent the law.
See NJOKU v. COP (1999) 10 NWLR (Pt. 622) 192 @ 198 paragraphs B – D per Akaahs, J.C.A. (as he then was). See also OWONIKOKO v. STATE (1990) 7 NWLR (Pt. 244) 713. ODIDO v. STATE (1994) 3 NWLR (Pt. 333) 50.
Arguably, by the cherishingly indomitable doctrine of stare decisis, the court is bound by the previous decisions thereof. However, where a decision is so obviously reached per incuriam, the Court of Appeal is not expected to be so blindly bound by it. Thus, as alluded to above, the decision in NWOSU v. THE STATE (supra) was that a ruling on no case submission was not appealable. Undoubtedly, as alluded to above, that decision was reached per incurium. As such, this court is not expected by, any stretch of imagination, to be bound by that decision. See NJOKU v. COP (supra) @ 198 paragraphs C – D; ODIDO v. STATE (1994) 3 NWLR (Pt. 333) 504, ONAGORUWA v. STATE (1992) 5 NWLR (Pt. 244) 713 wherein this court held, inter alia, thus –
Therefore the only important issue here is whether this court is prepared to depart from its previous decision in Nwosu v. The State (supra). This decision is by rule of justice binding on this court unless overruled by the Supreme Court or this court in a proper case decides to overrule itself. Per Kalgo, J.C.A. (as he then was) @ 733 paragraphs D – E.
Instructively, three conditions were given by the Supreme Court under which a court can overrule its previous decision. See WILLIAMS v. DAILY TIMES (1990) 1 NWLR (Pt. 124) 1, wherein the Apex Court held, inter alia, thus:
A strong case of error and injustice is required to be made before a court can fake such a deliberate step. The case of Paul Och v. Osafile (1985) 1 NSCC 14, (1985) 1 SC. 38; (1985) 1 NWLR (Pt. 1) 17 SC. emphasized this. The case of Bucknor-Maclean v. Inlaks Motors (1980) 8 – 11 SC. 1 (1980) NSCC 232 emphasized this. It must be established those previous decisions were erroneous and vehicles of injustice … It must also be shown that the earlier decisions were a beehive of injustice. Per Obaseki, JSC @ 37.
Undoubtedly, the right to appeal from the decision of the Magistrate’s Court to the lower court is fundamentally a constitutional right. As emphatically reiterated by this court –
No one should be denied such right subject of course to the constitutional provisions relating thereto. An appeal is a creature of statute and should be deduced, presumed or implied, but any statute granting such right should be as far as possible be construed liberally. Per Kalgo, J.C.A. (as he then was) @ 733 paragraphs G – H.
Hence, I have no hesitation whatsoever in appreciating the fact that, the vexed ruling of the court below in question, to the effect that the decision of the trial Magistrate’s Court is not appealable, has amounted to a strong case of error, a vehicle, and beehive of injustice, thus liable to be set aside by this court. And I also hold.
By virtue of the provisions of Section 6 (2) of the 1999 Constitution (supra), judicial powers of a state shall be vested in the courts duly established, subject as provided by the said constitution.
In the same vein, the lower court is duly vested with jurisdiction under Section 272(1) of the 1999 Constitution, thus:
272 (1) Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or 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.
The lower court is equally vested with an appellate and/or supervisory jurisdiction under Section 272 (2) of the said Constitution, thus –
272 (2) The reference to civil or 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.
Arguably, the trial Magistrate’s court comes within the purview of the provisions of Section 6 (4) (a) and 5 (k) of the 1999 Constitution (supra) as an inferior court of record
“with subordinate jurisdiction to that of a High Court.”
Thus, flowing from the above far-reaching postulations, it’s rather obvious, that the finding of the lower court, to the effect that the decision on the no case submission in question does not enure the Appellant is with respect, highly misconceived. And I so hold.
In the circumstance, the answer to the sole issue is most inevitably in the negative, and it is hereby resolved in favour of the Appellant.
Hence, having resolved the sole issue in favour of the Appellant, there is no gainsaying the fact that the appeal is meritorious, and it’s allowed by me. The ruling of the High Court of Delta State, Asaba Judicial Division, which was delivered by K. O. Okpu, J. on March 12, 2010, is hereby set aside.
Consequently, the said appeal be, and is hereby, remitted to the Chief Judge, Delta State for reassignment to another Judge for hearing de novo.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. His lordship has dealt extensively with the sole issue upon which the appeal has been determined and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add.
Accordingly, I too, resolve the sole Issue in the appeal in favour of the Appellant and thereby find the appeal to be meritorious and allow the same. Consequently, the ruling of the lower court delivered on 12/3/2010, appealed against, is hereby set aside and I abide by the consequential order made in the lead Judgment.
TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment of this court, prepared and just delivered by my learned brother IBRAHIM M. M. SAULAWA, JCA., was kindly made available to me, before today. I perused it and I am in complete agreement with his Lordship’s reasoning and conclusion, to the effect that the appeal be allowed.
I, too allow the appeal. The ruling of K. O. Okpu, J., which was delivered on 12th March, 2010 is set aside, accordingly.
I abide by the consequential order contained in the lead judgment remitting the case No. A/5CA/2009 to the Hon. Chief Judge of Delta State for a reassignment to another judge of the State for hearing, de novo.
Appearances
ANAMMAH OBIORA with the brief of CHIDI OBIEZEFor Appellant
AND
O. F. ENEMO DDPP DELTA STATE with O. OKPOKPORFor Respondent
