KELVIN AGBO v. FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6570(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of December, 2013
CA/PH/329/2012
JUSTICES:
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
KELVIN AGBO – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THE RECORD OF APPEAL
I must add straight away that the parties and the court are bound by the record of appeal duly certified by the registrar of the court below. See OGLI OKO MEMORIAL FARMS LTD v. N.A.C.B (2008) 34.2 NSCQR 1057 at 1074A. And so, where the record of appeal is not formally impeached, it is not open to the appellate court to speculate that other things happened at the court below which were not recorded correctly in the record of proceedings. See OGLI MEMORIAL FARMS LTD v. NACB (supra) at 1074 D – F; THE STATE v. AIBANGBEE (1988) 3 NWLR (pt. 84) 548; PANALPINA v. WARIBOKO (1975) 2 SC 29; OGIDI v. THE STATE (2005) 5 NWLR [Pt. 918] 286 at 309. PER EKO, J.C.A.
WHETHER OR NOT A NOTICE OF APPEAL FILED BEFORE THE DECISION BEING CHALLENGED WAS DELIVERED IS AN ABUSE OF COURT PROCESS
The settled principle of law is that a notice of appeal filed before the decision being challenged was delivered is an abuse of the process of the court, and it is incompetent. See MAGIT v. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR [Pt. 959] 238; AJUWA v. SPDC (NIG) LTD (2008) 10 NWLR [Pt. 1094] 64 at 94. PER EKO, J.C.A.
THE DISTINCTION BETWEEN APPEALS AGAINST INTERLOCUTORY AND FINAL DECISIONS IN CRIMINAL MATTERS
The distinction between appeals against interlocutory and final decisions, in criminal matters or causes, is only as regards whether the ground of appeal is based on law alone, which requires no leave and the appeal is of right; and whether the ground is based either on facts alone, or mixed law and facts, which under Sections 241 and 242 of the 1999 Constitution requires leave as a pre-condition. Section 24(1) (2) (b) of the Court of Appeal Act, 2004 makes no distinction between interlocutory and final appeals as regards the stipulation of the periods for giving notice of appeal. It simply provides that “in an appeal in a criminal cause or matter” the notice of appeal shall be filed “within 90 days from the date of the decision appealed against”. PER EKO, J.C.A.
WHETHER OR NOT ANY NOTICE OF APPEAL FILED WITHOUT LEAVE OF COURT IS NULL AND VOID
It is trite that where leave to appeal is a condition precedent for the exercise of right of appeal and the necessary condition precedent has not been fulfilled, there is no appeal. The uncompromising principle of law is that any notice of appeal filed only on facts or on mixed law and facts without leave of court, where leave is necessary, is null and void, and of no effect. See OLOWOSOKE v. OKE (1972) 11 SC 1; NALSA & TEAM ASSOCIATES v. NNPC (1991) 8 NWLR [pt. 212] 652. PER EKO, J.C.A.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The appellant was charged for theft. After the prosecution had called three witnesses and closed their case, the Appellant, through his counsel, made a no-case submission, which the learned trial Judge (C. I. Uriri, J) overruled on 8th August, 2012. Aggrieved by the decision dismissing his no-case submission the appellant filed the notice of appeal at pages 198 – 202 of the Record of Appeal.
There is something unique about this notice of appeal. The appellant settled the notice of appeal himself at page 201 of the Record. He dated it 23rd July, 2012. The endorsement at page 202 of the Record suggests that the notice of appeal was filed on 4th July, 2012 vide receipt no 0444733. The ruling was signed on 8th August, 2012 (at page 197 of the Record) by the trial Judge. I must add straight away that the parties and the court are bound by the record of appeal duly certified by the registrar of the court below. See OGLI OKO MEMORIAL FARMS LTD v. N.A.C.B (2008) 34.2 NSCQR 1057 at 1074A. And so, where the record of appeal is not formally impeached, it is not open to the appellate court to speculate that other things happened at the court below which were not recorded correctly in the record of proceedings. See OGLI MEMORIAL FARMS LTD v. NACB (supra) at 1074 D – F; THE STATE v. AIBANGBEE (1988) 3 NWLR (pt. 84) 548; PANALPINA v. WARIBOKO (1975) 2 SC 29; OGIDI v. THE STATE (2005) 5 NWLR [Pt. 918] 286 at 309. On presumption regularity it is safe to presume that this record of appeal is authentic and correct in its contents.
Clearly, the notice of appeal at pages 198 – 202 of the Record was filed before the decision complained of and in anticipation of the said decision. The settled principle of law is that a notice of appeal filed before the decision being challenged was delivered is an abuse of the process of the court, and it is incompetent. See MAGIT v. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR [Pt. 959] 238; AJUWA v. SPDC (NIG) LTD (2008) 10 NWLR [Pt. 1094] 64 at 94.
Since the decision complained of was signed by the trial Judge on 8th August, 2012 (see page 197 of the Record), and the notice of appeal was settled by the appellant on 23rd July, 2012 and was filed on 4th July, 2012; the notice of appeal is an abuse of process and is incompetent, having been filed in anticipation of the ruling or decision complained of.
I see page 204 of the Record. That is the settlement of Record of Appeal. Paragraph 1 thereof suggests that the Ruling, the subject of the appeal, was delivered on 8th June 2012. That seems to be corroborated by the 5th line of page 192 of the same record. Let me, for the moment, agree that the ruling was infact delivered on 8th June, 2012. From thence to the 4th day of July, 2012 when the notice of appeal was filed is 26 days. The decision on the no-case submission is an interlocutory decision as it does not finally decide or determine the rights of the parties thereto.
The distinction between appeals against interlocutory and final decisions, in criminal matters or causes, is only as regards whether the ground of appeal is based on law alone, which requires no leave and the appeal is of right; and whether the ground is based either on facts alone, or mixed law and facts, which under Sections 241 and 242 of the 1999 Constitution requires leave as a pre-condition.
Section 24(1) (2) (b) of the Court of Appeal Act, 2004 makes no distinction between interlocutory and final appeals as regards the stipulation of the periods for giving notice of appeal. It simply provides that “in an appeal in a criminal cause or matter” the notice of appeal shall be filed “within 90 days from the date of the decision appealed against”.
But it appears that the date, 8th August, 2012 appended to the Ruling under the signature of Hon. Justice C. I. Uriri, Judge was appended in error. The last line of the Ruling says: “Finally the matter adjourned to 25/7/2012 for defence”. If the date: 8th August, 2012 as appended to the signature of the learned trial Judge was done in error, and the correct date is 8th June, 2012 then that will affect my earlier posture that the appeal was an abuse of process, the notice of it having been filed prematurely or in anticipation. This however does not affect the interlocutory character of the appeal.
It appears from the notice of appeal that grounds 1, 2 and 3 are on mixed law and facts. Ground 4 of the grounds of appeal is completely on facts. The four (4) grounds of appeal shorn of their particulars are herein below reproduced as follows:
Ground 1
Error in law
The learned trial Judge erred in law and came to a wrong decision when it overruled the Appellant’s No case submission when there was no evidence proving the legal elements of the offence of stealing.
Ground 2
Error in law
The learned trial Judge erred in law and came to a wrong decision when it overruled the Appellant’s No case submission when the evidence adduced by the prosecution had been discredited as a result of cross examination in respect of which no reasonable tribunal might rely on and convict
Ground 3
Error in law
The learned trial Judge erred in law and occasioned a miscarriage of justice in holding thus “I mean to say that the no case is overruled and the accused person is therefore called upon to open his defence”.
Ground 4
The ruling of learned trial Judge is unwarranted and cannot be supported having regard to the evidence before the trial court.
It is trite that where leave to appeal is a condition precedent for the exercise of right of appeal and the necessary condition precedent has not been fulfilled, there is no appeal. The uncompromising principle of law is that any notice of appeal filed only on facts or on mixed law and facts without leave of court, where leave is necessary, is null and void, and of no effect. See OLOWOSOKE v. OKE (1972) 11 SC 1; NALSA & TEAM ASSOCIATES v. NNPC (1991) 8 NWLR [pt. 212] 652.
The four grounds of appeal in the instant notice of appeal require leave as a pre-condition. Since no leave was sought and obtained before they were filed the four grounds are all incompetent, and are accordingly hereby struck out.
At the hearing of this appeal Mr. Anosike, appellant’s counsel, was asked if the Appellant’s Brief filed on 24th October, 2012 was competent. The brief was filed 55 days after the Record of Appeal was transmitted on 30th August, 2012. Counsel concedes that they had 45 days after the Record of Appeal to file their brief. Order 18 Rules 1 and 2 of the Court of Appeal Rules, 2011 are very clear on this. They provide:
18.1 This order shall apply to all appeals coming from any Court or tribunal from which appeal lies to this Court.
2 The Appellant shall within forty-five days of the receipt of the Record of Appeal from the court below file in the court a written brief, being a succinct statement of his argument in the appeal.
The Appellant’s Brief filed on 24th October, 2012, 55 days after the transmission of the Record of Appeal, was filed in flagrant disregard of Order 18 Rule 2 of the Court of Appeal Rules, 2011. It is incompetent, and it is hereby struck out. Since the Appellant has no brief known to law, the natural consequence of this is an order dismissing the appeal under Order 18 Rule 10. I make this order in alternative in view of my earlier stance that the appeal is incompetent and that attracts an order striking it out under Order 6 Rule 6 of the Court of Appeal Rules, 2011. This appeal being incompetent is hereby struck out. This order shall forthwith be served on the Registrar of court below and the Respondent.
MODUPE FASANMI J.C.A.: I have read before now the lead judgment just delivered by my learned brother EJEMBI EKO J.C.A.
I agree with the reasons given therein and the conclusion arrived at. The Appellant’s brief was filed out of the time prescribed by law under Order 18 rule 2 of the Court of Appeal Rules 2011. It is incompetent and accordingly struck out. Consequently the appeal is incompetent and accordingly struck out. I abide by the consequential orders contained therein.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the Judgment just delivered by my learned brother Justice Ejembi Eko, JCA. I am in complete agreement with his reasoning and conclusion that this appeal is incompetent.
I also strike out the appeal for being incompetent and I abide by the consequential order in the lead judgment.
Appearances
P. N. Anosike For Appellant
AND
For Respondent
