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PAUL ADILI V. THE STATE(1989)

PAUL ADILI V. THE STATE

In The Supreme Court of Nigeria

On Monday, the 6th day of March, 1989

SC.181/1988

 

JUSTICES

ANDREWS OTOTU OBASEKI   Justice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAIS   Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE   Justice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGU   Justice of The Supreme Court of Nigeria

ABUBAKAR BASHIR WALI   Justice of The Supreme Court of Nigeria

Between

 

PAUL ADILI Appellant(s)

AND

THE STATE Respondent(s)

RATIO

WHETHER  OR NOT THE ATTORNEY-GENERAL OF A STATE HAS THE CONSTITUTIONAL POWER TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS AGAINST ANY PERSON

The Attorney-General of a State has constitutional power to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of an offence created by any law of the House of Assembly. [section 191(1)(a)] and he can exercise this power in person or through officers of his department [see section 191 (2)]. The Attorney-General of the Federation has similar powers – section 160(1)(a).
It is in exercise of this right that the applicant was prosecuted for the offence of murder against the Criminal Code Law of Imo State by the Attorney-General of Imo State acting through the officers of his department before the High Court. The High Court convicted the applicant but on appeal to the Court of Appeal; the applicant was acquitted of the offence and discharged. The Court of Appeal having entered a verdict of acquittal, the Attorney-General, dissatisfied with the decision, is entitled to exercise the right of appeal conferred by the Constitution. This is specifically provided for by sub-section (5) of section 213 which reads:
“Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter and in the case of criminal proceedings at the instance of the accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” (Italics mine). PER OBASEKI, J.S.C.

WHETHER OR NOT THE EXERCISE OF A RIGHT OF APPEAL IS ENTIRELY STATUTORY

It is well settled that the exercise of a right of appeal is entirely statutory – see Ikeakwu v. Nwamkpa (1967) N.M.L.R. 224. Nabham v. Nabham (1967) N.M.L.R. 192. Thus, the exercise of the right is circumscribed within the scope of the statute which grants the right, see Aroyewun v. Adebanji (1976) 11 S.C. 33. In this case, section 213(1) which provides for the right of appeal to the Supreme Courts goes on in sub-sections (2) and (3), (4), (5) to prescribe the circumstances for its exercise. It goes in sub-section (6) to provide as follows:-
“Any right of appeal to the Supreme Court from the decisions of the (Federal) Court of Appeal conferred by this section shall, subject to section 216 of this constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.” PER KARIBI-WHYTE, J.S.C.

OBASEKI, J.S.C. (Delivering the Leading Judgment): The applicant by notice of motion dated the 30th day of September, 1988 raised objection to the competence of the appeal lodged by the respondent against the decision of the Court of Appeal dated the 25th day of April, 1988 and expressly praying the court for an order:
“that the above-mentioned appeal be struck out or dismissed as being incompetent pursuant to Order 8 Rule 2(7) of the Supreme Court Rules 1985 on the grounds inter alia that
(a) being a purported appeal against an acquittal of the respondent by the Court of Appeal in a murder trial, no leave was obtained by the State, to appeal to this Honourable Court (Sections 213(2)(d) and 213(3) of the 1979 Constitution refer);
(b) in any event, the statutory period of 30 days within which to appeal in a murder case, has long expired before the purported notice and grounds of appeal was filed by the State (Sections 31(2)(b) and 31(4) of the Supreme Court Act (No. 12 of 1960) refer).”
The motion on notice was supported by affidavit evidence sworn to by Paul Adili, the applicant and a brief filed by his counsel, Chief Chimezie Ikeazor, SAN. The first five paragraphs of the affidavit appear to have set out the facts relevant to the determination of this objection. These paragraphs, paragraphs 1 to 5 read:
“1. That I am the respondent in the above-named suit;
2. That I was discharged and acquitted of murder by the Court of Appeal holden at Enugu in a judgment delivered by Hon. Justice Aloysius Iyorgyer Katsina-Alu on the 25th of April, 1988, a copy of which judgment is hereby attached and exhibited as Exhibit ‘A’;
That after the said judgment given on the 25th of April, 1988 I was served with notice and grounds of appeal by the State represented by its counsel, Anthony Agha, Esq. dated 21st day of July, 1988 and filed on the 22nd July, 1988 in the Court of Appeal Registry, Enugu, a period of 83 days after the Court of Appeal’s decision, a copy of which said notice and grounds of appeal is attached and exhibited as Exhibit ‘B’;
4. That up to date, neither myself nor my counsel in the court below “has been served with any motion or application by the State for leave to appeal to this Honourable court against my discharge and acquittal by the Court of Appeal and that in any event no leave has been granted to the State to so appeal.
5. That the said notice of appeal and brief filed by counsel for the State, Anthony Agha Esq. served on my counsel, Chief F. M. Obianyo (the brief served on 7th September, 1988) were handed to my new counsel, Chief Chimezie Ikeazor, S.A.N., on Wednesday, 28th September, 1988, whom I have consulted; and who thereupon advised me that it would be in the interest of justice to file this application.”
The State neither filed a counter-affidavit nor put in appearance by counsel at the hearing of this objection.
The issues for determination are in the main, two-fold. They are:
(1) Whether the Supreme Court can entertain this appeal when the State (appellant) has not obtained leave to appeal against the decision of the Court of Appeal which entered a verdict of acquittal of the respondent/applicant in a charge of murder.
(2) Whether the State (the appellant) can validly appeal to the Supreme Court from a decision of the Court of Appeal in a murder case, when its notice of appeal was filed well outside the 30 days statutory period, from the date of the Court of Appeal judgment.”
Put in another way, the questions for determination are:
(1) whether the State can bring an appeal against the decision of the Court of Appeal to the Supreme Court as of right when the Court of Appeal allows the appeal of a convicted person, set aside the conviction and enters a verdict of acquittal of the murder charge.
(2) If the answer to question (1) is in the negative, can the State bring to the Supreme court an appeal with leave of the Court of Appeal or the Supreme Court
(3) Has any appellant appealing against a decision of the Court of Appeal in a murder charge a right of appeal whether as of right or with leave after the lapse of 30 days from the day of the decision of the Court of Appeal
This objection has to be examined in the light of the constitutional provisions conferring a right of appeal either as of right or with leave of the court and the statutory provisions governing the exercise of that right. The Supreme Court, the Court of Appeal and the High Courts are as of today creatures of the Constitution of the Federal Republic of Nigeria, 1979. [see sections 210(1), 217(1), 238(1) and 234(1)]. The powers they exercise are the powers invested in them by the said Constitution and other statutes validly empowered to confer such jurisdictions. [see sections 212(1), 213(1), 213(2), 213(3), 219, 220(1), 221, 230(1), 230(2), 236(1) and 237(1)].
It is to be observed and worthy of note that the Supreme Court has both appellate and original jurisdictions (sections 212(1) and 213). The appellate jurisdiction conferred on the Supreme Court makes it the only court set up for the hearing and determination of appeals from the Court of Appeal. Appeals from the Federal High Court, High Court of the Federal Capital Territory, the State High Courts, Sharia Court of Appeal, Customary Court of Appeal and Code of Conduct Tribunals lie to the Court of Appeal exclusively.
In criminal matters tried before the High Courts, parties dissatisfied with the decision of the trial Judge of the High Court have a right of appeal against the decision to the Court of Appeal. The Constitution of the Federal Republic gives unqualified right in certain cases set out in section 220(1) and a qualified right that is a right with leave of the High Court or Court of Appeal in others. See section 221(1). The Constitution also makes provision specifying the parties exercising the right of appeal to the Court of Appeal and the manner of exercise.
Relevant to this ruling is the constitutional provisions in respect of the right of appeal to the Supreme Court and the parties entitled to exercise the right of appeal and the manner of exercise. In this respect, I need to refer to sub-sections (1), (2), (a), (b), (c) and (3), (5) of section 213 which read as follows:
(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal;
(2) An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases:
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution;
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this constitution has been, is being or is likely to be, contravened in relation to any person;
(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.
(3) Subject to the provisions of sub-section (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.
Where, therefore, an aggrieved party desires to appeal to the Supreme Court in cases not falling within or covered by sub-section (2) of section 213 of the Constitution, that party must seek and obtain the leave of either the Court of Appeal or the Supreme Court. The application for leave must be made to the Court of Appeal in the first instance. See section 31 (3) of the Supreme Court Act. See Order 2 rule 28(4) Supreme Court Rules 1985. If the application to the Court of Appeal is refused, then, an application may be made to the Supreme Court within the statutory period. In special circumstances, an application can be made direct to the Supreme court without first going to the Court of Appeal. Such circumstances arise where the time for filing a notice of appeal has expired and extension or enlargement of time to appeal is sought from the Supreme Court. See Order 2 Rule 28(4) Supreme Court Rules, 1985.
The Attorney-General of a State has constitutional power to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of an offence created by any law of the House of Assembly. [section 191(1)(a)] and he can exercise this power in person or through officers of his department [see section 191 (2)]. The Attorney-General of the Federation has similar powers – section 160(1)(a).
It is in exercise of this right that the applicant was prosecuted for the offence of murder against the Criminal Code Law of Imo State by the Attorney-General of Imo State acting through the officers of his department before the High Court. The High Court convicted the applicant but on appeal to the Court of Appeal; the applicant was acquitted of the offence and discharged. The Court of Appeal having entered a verdict of acquittal, the Attorney-General, dissatisfied with the decision, is entitled to exercise the right of appeal conferred by the Constitution. This is specifically provided for by sub-section (5) of section 213 which reads:
“Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter and in the case of criminal proceedings at the instance of the accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” (Italics mine).
Since the applicant has been acquitted of the murder charge, the Attorney-General can appeal against the decisions as of right only on ground of law alone under section 213(2)(a). See Stephen Oteki v. Attorney-General of Bendel State (1986) 2 N.W.L.R. (Pt.24) 648 at 656. He cannot appeal as of right on grounds which involve questions of fact or questions of mixed law and fact. The constitution does not give him the right to do so. If the conviction had been affirmed and the accused sentenced to death, the accused person would have had the right to appeal as of right on grounds involving questions of law, questions of mixed law and fact or questions of fact. See section 213(2)(d). I have examined the grounds of appeal filed by the respondent (represented by the Attorney-General) and found that they all involve questions of mixed law and fact or fact alone. The case is therefore not one in which an appeal lies as of right to the Court of Appeal. It does not come within the class of cases set out in section 213(2)(a) to (f) of the Constitution.
Learned Counsel for the applicant, Chief Ikeazor, S.A. N., quite justifiably submitted before this court both in his brief and orally that the respondent needs leave before he can exercise the right of appeal to appeal on the grounds set out. It is not because the case does not come within section
213(2)(d) alone that the Attorney-General cannot appeal without leave. It is also because the case does not come within section 213(2)(a).
Learned Counsel cited the case of The State v. Aibangbee and Anor.(1988) 3 N.W.L.R. (Part 84) 548 in support of his submission. He particularly had to draw attention to the dictum of Eso, J.S.C. at p. 558 to the effect that:
“An application for leave to appeal had to be and accordingly made by the State in regard to their appeal against acquittal.”
The State in that case took all precautions to make its appeal a competent appeal.
It is necessary for all appellants to comply with the provisions of the Constitution when appealing otherwise they will sooner or later realise that their appeal lacks the competence to invoke the jurisdiction of the court to hear and determine it. Equally fatal to this appeal is the second ground of objection. The second major submission of the applicant’s counsel is that this court cannot exercise its jurisdiction to hear the appeal as the notice of appeal was filed outside the statutory period of 30 days from the date of the judgment of the Court of Appeal. He cited in support section 31(1) and (2) of the Supreme Court Act, Order 2 Rule 30 of the Supreme Court Rules 1985 and the cases of Idiang v. The State (1981) 6-7 S.C. 95; Onuoha v. C.O.P. (1959) 4 F.S.C.23; Asuquo Etim v. The State (1982) 10 S.C. 20 at 21; Okodon v. The State (1981) 9 S.C.1. This objection is also very well founded.
The right of appeal conferred by the Constitution can only be exercised in accordance with the provisions of the Act of National Assembly which in this case, is the Supreme Court Act 1960, the Judicial etc., Offices and Appeals by Prosecutors Act 1963 and subject therefore the Rules of Supreme Court made by the Chief Justice of Nigeria. See section 213(6) and section 216 of the Constitution of the Federal Republic of Nigeria, 1979. The relevant section of the Supreme Court Act is section 31(1) and (2)(b), the provisions of which read:
“(1) where a person desires to appeal to the Supreme Court, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the Rules of Court within the period prescribed by sub-section  (2) of this section that is applicable to the case.
(2) the periods prescribed for giving of notice of appeal or notice of application for leave to appeal are:
(a) [not applicable]
(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.”
The uncontradicted affidavit evidence shows that the decision of the Court of Appeal was delivered on the 25th day of April, 1988 while the notice of appeal was filed on the 22nd day of July, 1988. The number of days which elapsed before the respondent filed his notice of appeal is far in excess of 30 days. It is 88 days. The notice of appeal was not filed with the leave of the court and it was filed out of time. It therefore is not a proper notice of appeal to initiate appeal proceedings. It is a nullity. There is a long line of authorities on this point.
The earliest case I wish to refer to is the case of The Queen v. Akpan John Nda (1957) 2 F.S.C. 29; (1957) S.C.N.L.R. 346. It was an appeal by the accused person. The issue before the Supreme Court in that case is whether the Supreme Court has the power to extend time in which to appeal against conviction involving a sentence of death. The judgment of the Court was delivered by De Lestang, FJ. It is short and the relevant portion of it reads:
“The prisoner was on the 17th day of July, 1957convicted of murder in the High Court of the Eastern Region of Nigeria, the Calabar Judicial Division, and was sentenced to death. On the 30th September, 1957, he filed an application for leave to appeal against his conviction. The application was however out of time because section 14(1) of the Federal Supreme Court Ordinance Cap 229 provides that a convicted person desirous of appealing must give notice of appeal or notice of application for leave to appeal within 15days of the date of the sentence. That being so, the prisoner on the 9th October, 1957 filed an application for extension of time within which to appeal. Unfortunately, this court has no power to extend time in the case of a conviction involving sentence of death. See section 14(2) id. Both applications must therefore be refused.”
This was before the Supreme Court Act 1960was passed. The restriction on time of filing murder appeals was also evident. The next case is:
Berepegha Frubide v. The State(1969) 1 All N.L.R.255. The judgment of the Supreme Court delivered by Lewis, J.S.C. is short and reads:
“As this is a murder appeal in which the accused was convicted by Obaseki, J. on 25th February, 1969 in the High Court, Warri, in charge W.22067 but only signed his motion of appeal on 1st April, 1969 and filed it on 15th April, 1969, the appeal is not within 30 days required by section 31 of the Supreme Court Act and under section 31(4) we have in a murder case no power to extend that time.”
That expresses the legal position as it is at present in respect of appeals by accused persons.
The next case is Egbo Ojojo v. The State (1970) 1 All N.L.R. 33. This appeal was also struck out as the notice of appeal was filed out of time. It was signed by the accused after the time prescribed by the Supreme Court Act had expired.
I now come to this decade and refer to the case of Neeyode Peba v. The State (1980) 8-11 S.C. 76. It was a murder appeal from the Court of Appeal. The appeal to the Court of Appeal from the High Court was found to have been filed out of time so that the whole proceedings before the Court of Appeal was held a nullity and consequently the appeal to the Supreme Court a nullity. Since then, there has been strings of cases decided by this Court where murder appeals filed outside the 30 days or signed by the prisoner outside the 30 days have been struck out as incompetent. It is only recently the court took a good second look at the section and came to the conclusion that a convicted murder accused is not a free person and once he has signed his notice of appeal in the presence of prison welfare officers and handed the papers to the prison officials for filing, the date of signature will be taken as the date for determining the validity of the notice. In this regard, I refer to the cases of Monday Enweliku v. The State (1970) 1 All N.L.R. 55; Amusa Adio & Ors. v. The State (1986) 2 N.W.L.R. (Pt.24) 581; Anamaba Ohuka & Ors. v. The State (1988) 1 N.W.L.R. (Pt.72) 539 and Hakido Kpema v. The State(1986) 1 N.W.L.R. (Pt.17) 396. All the cases in which the objection has been upheld so far are cases involving sentence of death.
Learned Counsel for the applicant cited the dictum in Chief D. T. Akinbiyi v. Adegoke Adetabu (1956) 1 F.S.C. 45 at 46; (1956) SCNLR 109 at 111 which reads:
“No appeal lies in any case unless it is conferred by statute and it is a well settled principle that before you can appeal against an acquittal, the words must be clear, express and free from ambiguity.”
I agree with the dictum as all rights of appeal to all courts in the country are statutory.
He went on to submit that section 213(2)(d) which gives a right of appeal in cases where a sentence of death is imposed does not cover situations where there is an acquittal.
I agree that sub-section (2)(d) of section 213 covers situation where there is a conviction and sentence of death and not where there is an acquittal. The 1979 Constitution is however not silent on the issue of acquittal. Since acquittal or a verdict of acquittal is a decision in any criminal proceedings, it comes within the class of cases referred to in sub-section (2)(a) of section 213 of the 1979 Constitution in respect of which an appeal lies as of right to the Supreme Court on ground of appeal involving questions of law alone. It is also my view that with the leave of the Court of Appeal or the Supreme Court, an appeal lies against a verdict of acquittal to the Supreme Court on grounds involving questions of mixed law and fact or facts alone. The provisions of Part IV of the Supreme Court Act 1960 has been modified by the judicial etc. Offices and Appeals by Prosecutors Act 1963 with respect to appeals by a prosecutor. This Act prescribes 7 days in which to appeal. A prosecutor appealing cannot file his notice of appeal outside the statutory period of 7 days. He must do so within the 7 days of the date of the decision of the Court of Appeal. See Amudipe v. Arijodi (1978) 9-10 S.C.27. See section 4(3) of the Judicial etc. Offices and Appeals by Prosecutors Act 1963 No. 10 of 1963.
During the hearing of this appeal, learned Counsel for the applicant, Chief Ikeazor, omitted inadvertently, to draw the Court’s attention to this very important statute – Act No. 10 of 1963 titled ‘Judicial etc. Offices and Appeals by Prosecutors Act 1963’. Section 4 of the Act is very relevant to the  point under consideration in that it makes provisions for the powers exercisable by the Supreme Court in criminal appeals to that court by any person or authority other than the accused person, and in sub-section (3) prescribes time within which notice of appeal or notice of application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves, or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide.
Moreover, the sub-section (3) expressly stipulates that the period shall “be seven days from the date of the decision in question and the Supreme Court shall not have power to extend that period.”
Thus, while the Supreme Court Act 1960prescribes a period of 30 days from the date of the decision in which an accused person may exercise his right of appeal, the judicial etc. Offices and Appeals by Prosecutors Act prescribes 7 days in which the person or authority prosecuting may exercise his right of appeal. In either case, the Supreme Court is deprived of the power to extend time. Turning to the instant appeal, the notice of appeal was filed 88 days after the date of the decision of the Court of Appeal. The notice of appeal filed on behalf of the State by the Attorney-General of Imo State is far out of time and this court has no power or jurisdiction to entertain the appeal. The right of appeal not having been exercised within the 7 days prescribed by the judicial etc. Offices and Appeals by Prosecutors Act 1963 lapsed and has been lost for ever under the Constitution. Sub-sections (3) and (4) of section 4 of the Act No.10 of 1963 read:
“(3) The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be SEVEN days from the date of the decision in question and the Supreme Court shall not have power to extend that period. (Italics mine).
(4) Where an accused is the respondent to an appeal brought by virtue of the provisions mentioned in sub-section (1) of this section, then-
(a) Part VI of the said Act of 1960 (i.e. the Supreme Court Act 1960) (which contains supplementary procedural provisions as respects appeals) sh3.JJ with the necessary modifications and subject to the last foregoing sub-section and paragraphs (b) and (c) below, apply in relation to the respondent as it applies to the appellant;
(b) the respondent shall be entitled if he so desires and the court may if it thinks fit require him, to be present on the hearing of the appeal and when any sentence is passed in consequence of the appeal; and
(c) without prejudice to the operation of sub-section (4) of section 34 of that Act (which authorises representation in writing in the absence of counsel) as modified by virtue of paragraph (a) above in relation to the respondent, that subsection shall not apply in relation to the appellant.
Part VI of the Supreme Court Act 1960 deals with time for appealing, legal assistance to appellant. Supplemental powers of the Court, right of the appellant to be present, admission of appellant to bail and date of sentence and procedure with respect to frivolous appeals on question of law.
The earlier cases of capital offences are concluded the better so that all authorities can play their roles with quick despatch.
The objection is well founded and I uphold it on the two grounds set out in the motion paper. The purported appeal is incompetent and cannot be entertained.
It is accordingly struck out.

UWAIS, J.S.C.: I have had a preview of the ruling read by my learned brother, Obaseki, J.S.C. and I entirely agree with it. By virtue of the provisions of section 213(2) of the Constitution of the Federal Republic of Nigeria, 1979and the provisions of the Judicial etc., Office and Appeals by Prosecutors Act, 1963, No. 10 of 1963, there is no doubt that a prosecutor can appeal to this court against a verdict of acquittal. If the ground or grounds of appeal fall under any or a combination of the provisions of section 213 sub-section (2) of the 1979 Constitution, the right to appeal is automatic and no leave of any court to appeal is necessary. But if the ground or grounds of appeal do not come within the provisions of section 213 sub-section (2) then it becomes inevitable for the prosecutor to obtain leave under sub-section (3) of section 213 of the 1979 Constitution.
In the present case, all the seven grounds of appeal filed by the appellant involved either questions of mixed law and fact or fact alone. The grounds do not come within any of the provisions of section 213 sub-section (2). The appellant can, therefore, only appeal to this Court with either the leave of the Court of Appeal or this Court as laid down by Section 213 subsection (3) of the Constitution. No leave was accordingly obtained and the appeal thereby becomes incompetent and ought to be struck-out.
Apart from this, the decision of the Court of Appeal was delivered on the 25th day of February, 1988.The notice of appeal which is dated the 21st day of July, 1988 was filed on the 22nd July, 1988. That is 88 days after the judgment of the Court of Appeal was given. By section 31 sub-section (2)(b) of the Supreme Court Act, 1960 the time prescribed for filing notice of appeal to this Court in a criminal case is 30 days from the date of the decision the appellant wished to appeal against. However, this provision appears to be abridged to 7 days in respect of cases which involve or could involve sentences of death or conviction of manslaughter or culpable homicide not punishable with death – see Alhaji R. O. Gaji v. The State, (1975) N.N.L.R. 98 at p.103; or (1975) 1 All N.L.R. (Part 1) 266 at p.273 The sub-section reads –
“4(3) The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be seven days from the date of the decision in question, and the Supreme Court shall not have power to extend that period.”
The provisions of the Judicial etc. Offices and Appeals by Prosecutors Act, 1963 (No. 10 of 1963) as amended by the Constitution (Transitional Provisions) Act, 1963 (No. 21 of 1963) and Schedule 1 to the Adaptation of Laws (Miscellaneous Provisions) Order, 1965 (L.N.139 of 1965) being an “existing law” under section 274 of the 1979 Constitution, have to be read with modification. Hence, the application of the Act to appeals from the Court of Appeal to this Court.
It follows from the provisions of Section 4 subsection (3) of the 1963 Act that the appeal filed by the appellant in this case after 88 days had passed from the date of the decision of the Court of Appeal is incompetent even if it were on any of the grounds which satisfies the provisions of section 213 subsection (2) of the Constitution, and no extension of time could be granted because the offence with which the respondent was charged – murder, involves a sentence of death. Secondly, the time prescribed by the 1963Act for application for leave to appeal under section 213 (3) of the 1979 Constitution, is 7 days and that too cannot be extended by virtue of the provisions of section 4(3) of the 1963 Act.
Consequently, this appeal cannot be competent from whatever angle one looks at it. The prescribed period for the appellant to take whatever step is necessary to make the appeal competent has since expired. The preliminary objection raised by the respondent in his application on notice, therefore, succeeds in its entirely. I too would therefore strike-out the appeal for being incompetent and it is hereby struck-out.

KARIBI-WHYTE, J.S.C.: I have read the ruling of my learned brother, Obaseki, J.S.C. in this appeal. I agree that this preliminary objection has considerable merit and ought to be sustained. I only wish to make some contribution in respect of the issue of the right of the prosecutor to appeal against acquittal.
On the 25th April, 1988, the Court of Appeal, Enugu Division, allowed the appeal and set aside the conviction of Respondent by Aneke J, of the High Court of Anambra State holden at Nnewi, for the offence of murder contrary to section 319 of the Criminal Code Cap. 30, Vol. II Laws of Eastern Nigeria 1963. Respondent was acquitted and discharged of the offence by the Court of Appeal. On the 22nd July, 1988, the prosecutor filed notice of appeal against the decision of the Court of Appeal.
By motion dated 30th September, 1988, supported with an affidavit sworn to by the Respondent, Paul Adili on the 28th September, 1988, Respondent cause by way of a motion on notice to the appellant before this court, praying that the appeal be struck out or dismissed as being incompetent pursuant to Ord. 8 rule 2(7) of the Supreme Court Rules 1985. The grounds relied upon are that:
“(a) being a purported appeal against an acquittal of the respondent by the Court of Appeal, in a murder trial, no leave was obtained by the State, to appeal to this Honourable Court (sections 213(2)(d) and 213(3) of the Constitution 1979 refers).
(b) in any event, the statutory period of 30 days within which to appeal in a murder case, has long expired before the purported Notice and Grounds of Appeal was filed by the State (sections 31 (2)(b) and 31(4) of the Supreme Court Act (No. 12 of 1960) refers).”
Paragraphs 2, 3, 4 of the supporting affidavit, aver facts relied upon by the Respondent.
“That I was discharged and acquitted of murder by the Court of Appeal holden at Enugu in a judgment delivered by Hon. Justice Aloysius lyorgyer-Katsina-Alu J.C.A. on the 25th of April, 1988, a copy of which judgment is hereby attached and exhibited as Exhibit ‘A’.
That after the said judgment was given on the 25th of April, 1988, I was served with Notice and Grounds of Appeal by the State, represented by its Counsel, Anthony Agha, Esq., dated 21st day of July, 1988, and filed on the 22nd July, 1988 in the Court of Appeal Registry, Enugu, a period of 88 days after the Court of Appeal’s decision, a copy of which said Notice and Grounds of Appeal is attached and exhibited as Exhibit ‘B’.
That up to date neither myself nor my counsel in the court below has been served with any Motion or Application by the State for leave to appeal to this Honourable Court against my discharge and acquittal by the Court of Appeal, and that in any event no leave has been granted to the State to so appeal.”
There is no affidavit by the appellant in contradiction. The facts averred therefore remain unchallenged.
Also attached to the application are the judgments of the Court of Appeal, the Notice and Grounds of Appeal filed and the brief of argument in support of the application. Appellant did not file any brief of argument and was not represented during the hearing of the motion, though there was a report of service on them of the motion, and of the hearing date.
In the brief of argument filed by Chief Chimezie Ikeazor S.A.N, on behalf of the Respondent/Applicant, the following two issues were raised for determination. They are;
“(a) Whether the Supreme Court can entertain this appeal, when the State (Appellant) had not obtained, leave to appeal against the decision of the court which entered a verdict of acquittal of the Respondent/Applicant in a charge of murder.
(b) Whether the State (the applicant) (sic) can validly appeal to the Supreme Court from a decision of the Court of Appeal in a murder case, when its Notice of Appeal was filed on a date well outside the 30 days statutory period, from the date of the Court of Appeal judgment.”
The two issues raised above concern the right of an appellant to exercise his right of appeal. They concern the competence of the appellant to bring the appeal at all, the time for doing so having expired and in fact even if the appeal was brought within time, Applicant (sic) had not sought and obtained the leave of the court to bring it. There is no doubt that the issue of whether leave ought to be sought and obtained was predicated upon there being any competence to bring the application. Stricto sensu, a determination that appellant was precluded from bringing the application is sufficient ground upon which to dispose of the appeal. The question whether leave is necessary or not therefore becomes unnecessary. The facts relevant and necessary for a determination of this preliminary objection are as stated in the uncontradicted averments in the affidavit of the Respondent, Paul Adili, already reproduced in this ruling. At the risk of being criticised for tedious repetition, I should for clarity merely point out that the facts relied upon for the second reason why the appeal should be struck out is that the judgment of the Court of Appeal was delivered on the 25th April, 1988, whereas the Notice of Appeal of the Appellant was filed on the 22nd July, 1988, this is a period of more than 30 days from the delivery of the judgment.
Section 31(1) of the Supreme Court Act, 1960 which prescribes time for appealing goes further specifically in sub-section (2) of that section to provide as follows:-
“(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are
(a) …..applicable to civil cases and not relevant.
(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.”
Chief Ikeazor, S.A.N., learned Senior Counsel has submitted in his brief of argument and orally before us, that on the facts of this case, this provision is conclusive as to the incompetence of the appeal which was filed 88 days after delivery of judgment in the Court of Appeal. Counsel cited and relied on Idiang v. State (1981) 6-7 S.C. 95 and the provisions of section 31(1)(2) of the Supreme Court Act, 1960 reproduced above. He also cited Order 2 r. 30 RSC 1985 and Onuoha v. C.O.P. (1959) 4 F.S.C. 23 as authorities for his submission. It was further submitted that since he defect is not even curable by the court extending the time, it is irredeemable. For this submission, Counsel relied on section 31(4) of the Supreme Court Act, 1960 and the cases of Etim v. The State(1982) 10 S.C. 20, at p.21 and Okodon v. State (1981) 9 S.C. 1. I entirely agree with each of these submissions.
It is well settled that the exercise of a right of appeal is entirely statutory – see Ikeakwu v. Nwamkpa (1967) N.M.L.R. 224. Nabham v. Nabham (1967) N.M.L.R. 192. Thus, the exercise of the right is circumscribed within the scope of the statute which grants the right, see Aroyewun v. Adebanji (1976) 11 S.C. 33. In this case, section 213(1) which provides for the right of appeal to the Supreme Courts goes on in sub-sections (2) and (3), (4), (5) to prescribe the circumstances for its exercise. It goes in sub-section (6) to provide as follows:-
“Any right of appeal to the Supreme Court from the decisions of the (Federal) Court of Appeal conferred by this section shall, subject to section 216 of this constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
Section 216 empowers the Chief Justice of Nigeria to make rules for regulating the practice and procedure of the Supreme Court, but such rules are to be subject to the provisions of any Act of the National Assembly. By section 277 of the Constitution 1979, the Supreme Court Act, 1960became an existing Federal Law at the time of the coming into force of the Constitution 1979 and is therefore an Act of the National Assembly. Accordingly, the right of appeal provided under section 213(1) will be exercised in accordance and in compliance with it, and the rules of court for the time being in force regulating practice and procedure of the Supreme Court.
The provisions of section 31(2)(b) as to the time for filing a notice of appeal in a criminal case is quite clear and unambiguous. It is “thirty days from the date of the decision appealed against.” Thus, a notice of appeal filed outside the period so prescribed is a contravention of the unambiguous statutory requirements and accordingly a nullity. See Amudipe v. Arijodi (1978) 9-10 S.C. 27. This has been the consistent view of this court in Frubide v. The Estate(1969) 1 All N.L.R. 255; Ojojo v. The State(1970) 1 All N.L.R.33; Etim v. State (1982) 10 S.C.20; Peba v. The State (1980) 8-11 S.C. 76 Queen v. Nda (1957) 2 F.S.C. 29; (1957) SCNLR 346 and several other decisions where it was obvious that appellant did not even deliver the notice of appeal to the Prison Authorities within the period of 30 days prescribed under S.31(2)(b) of the Supreme Court Act 1960. In such latter circumstances, this court has deemed the notice of appeal so handed over to the Prison Authorities to have been validly given even though it was not received in the registry of the court till after 30 days of the delivery of judgment. This has been the attitude of this court foreshadowed in Ojojo v. The State (supra) by Lewis J.S.C., but actually decided in Enweliku v. The Stare (1970) 1 All N.L.R.55 State v. Akpan Ekpewib (1982) 6 S.C. 1; Kpema v. The State (1986) 1 N.W.L.R. (Pt.17) 396 Adio & Ors. v. The State (1986) 2 N.W.L.R. (Pt.24) 581; Ohuka & Ors v. The State (1988) 1 N.W.L.R. (Pt.72) 539.
This benevolent and purposive construction of the provisions of section 31(1)(2)(b) became necessary because sub-section(4) of section 31, excluded the jurisdiction of the court in convictions involving sentence of death in the exercise of the power to extend the period to appeal prescribed in sub-section 2 of section 31. All the cases cited above are cases of convictions involving sentence of death. Considering the ipsissima verba of subsection 4 of section 31, it is arguable whether the exclusion of the exercise of jurisdiction should be confined to appeals as this case is not against conviction. The section provides as follows:-
“(4) The Supreme Court may extend the periods prescribed in sub-section (2) except in the case of a conviction involving sentence of death.” I think the application of the maxim expressio unius est exclusio alterius would appear to suggest, and reasonably too, that the sub-section did not contemplate the exclusion of acquittals for offences involving sentence of death. It is however pertinent to observe that the expressio being convictions for the sentence of death the alterius is an acquittal which is permitted. But it is necessary to point out that in 1960 when this provision was enacted the prosecutor had no constitutional right of appeal, and the question of his exercising a right of appeal on acquittal as I have suggested here would not have been contemplated. See section 119(2)(e)(f)(6). Section 110 (2)(e)(f) provides that:
“(2) An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases-
x x x x x x x x x
(e) decisions in any civil or criminal proceedings in which any person has been sentenced to death by the High Court or in which the High Court has affirmed a sentence of death imposed by some other court; and
(f) such other cases as may be prescribed by any law in force in the territory.
But this was cured by section 4(1)(5) of the Judicial etc, Offices and Appeals by Prosecutors Act No.10 of 1963 as amended by LN 139 of 1965 which came into force on 20th May, 1963 and provides, as follows:
“Where an appeal to the Supreme Court from a decision of the High Court of a territory sitting at first instance is brought in any criminal proceedings by any person or authority (other than an accused person) in pursuance of the provisions of section one hundred and ten of the Constitution of the Federation and of any relevant law of the territory, the Supreme Court shall as it considers just, either-…”
“(5) deals with the question of leave to appeal.
This provision of right of appeal to the prosecutor was re-enforced by the provisions of section 110(2)(f) of the Constitution 1960, re-enacted in section 117(2)(f) in the 1963Constitution. On the 1st October, 1963, section 117(2)(e)(f) of the Constitution No. 20 of 1963 came into force and reproduced the provisions of section 110(2)(e)(f) of the 1960 Constitution. Under this Constitutional provision, the Regions made specific provisions enabling prosecutors appeal against acquittals. See section 50(1), (2)(a) and (3), High Court of Lagos Act, sections 35A, 40, High Court Law of Eastern Region; and section 50(3) Customary Courts (No.2) Edict 1966, section 19A High Court Law of Western Region, applicable in Mid-western Region, section 69, Magistrates Courts Law, S.49, Customary Courts Law. See also section 284(2) of the Criminal Procedure Code. This general position was preserved in the Constitution (Amendment)(No.2) Decree No. 42 of 1976 which amended section 117(1) of the Constitution 1963, No. 20, by interposing the (Federal) Court of Appeal between the High Courts and the Supreme Court but still retained (e) of section 117 (2), (b) as (c), and removed the general right of appeal on the court sitting at first instance. It left the right of appeal as of right for the benefit of the appellant.
“(c) decisions in any criminal proceedings in which the Federal Court of Appeal has affirmed a sentence of death imposed by some other court or tribunals.
x x x x x x x x x
(e) such other cases as may be prescribed by any enactment. See Yekini Onigbeden v. Ishola Balogun (1975) 1 All N.L.R. 233 at 241, Kiren v. Paschal and Ludwig Incorporated (1978) 11& 12 S.C.77, C.O.P. v. B Aburime (1978) 11 & 12 S.C. 145 Eke v. M.N.D. C. (1968) 1 All N.L.R. 329 Ogbe v. East Central State (1972) 6 S.C.1 Mabinuori v. Ogunloye (1970) 1 All N.L. R. 17. Thus, the right of appeal by a prosecutor which was not envisaged and not provided for in the words of the constitutional provision was introduced through the enabling constitutional provisions of “such other cases as may be prescribed by any enactment.” The right of appeal in the 1979 constitution has put the issue beyond controversy, whether it is the accused or the prosecutor who, on conviction or acquittal is to exercise a right of appeal. See Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130 at 146. For instance, sections 213(2). 220(1)(a)(b) provide for right of appeal to the Supreme Court in sub-section (2) relating to exercise of a right of appeal as of right inter alia, provides –
Section 220(1)(a) provides:
“Final decisions in any civil or criminal proceedings before the High Court sitting at first instance.”
See also s.220 (1)(e) of the Constitution 1979 as to the High Court. The appeal before us is a criminal proceeding from the High Court sitting at first instance.
The operative word here is the decision in any civil or criminal proceedings. Like the 1963 Constitution and the Decree No.42 of 1976, sub-section (2)(f) of section 213, and s.220(1)(g)(v) of the Constitution 1979, a right of appeal may be provided in such other cases as may be prescribed by any law in force in any State, as stated in s.213 (2)(f) , or as may be prescribed by any law in force in Nigeria, – s.220 (1)(g)(v).
The question is whether the two expressions mean the same thing The expression in any State, cannot be construed to include the law of a state other than the one in which jurisdiction is exercised. Similarly, any law in force in Nigeria cannot be construed to mean to relate to provisions of general application throughout the country. The exercise of right of appeal is determined by the legislative jurisdiction in which the right is exercised. The expression can therefore be construed meaningfully to refer to the laws of a state or the National Assembly in force and applicable. The exercise of jurisdiction except otherwise stated being strictly territorial.
There has been no general or specific repeal of the provisions of existing laws cited above with regard to the right of appeal exercisable by a prosecutor. However, an examination of section 222(a) of the Constitution 1979 would appear to suggest otherwise notwithstanding s.220(1)(g)(v). It provides in part as follows:-
“…and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;…”
The disjunctive or, in this part of the section suggests a separation of the exercise of the right of appeal by the accused from the Attorney-General in the exercise of his general powers to continue or discontinue a prosecution. Besides, this exercise of this right is subject to the provisions of this Constitution which enables such other cases of the exercise of a right of appeal as may be prescribed by any law. Thus, the section provides for right of appeal to the accused on whom sentence of death has been imposed, it also enables a prosecutor in favour of whom a right of appeal has been created by any law to exercise such right. Thus, the Attorney-General can exercise the right of appeal as provided under the constitution or such other law which is in force.
Since such law derives its force from the Constitution, its provisions must be consistent with the conditions for the exercise of the right of appeal as prescribed in the Constitution 1979, – See Eke Y. M.N.D.C. (supra); C.O.P. v. Aburime (supra).
As every person exercising a right of appeal, the Respondent in this application who is the Attorney-General of Anambra State can appeal as of right on questions of law alone – see s.213(2)(a) of the Constitution 1979 and Oteki v. A.-G. Bendel State (1986) 2 N.W.L.R. (pt.24) 648 at p. 656.
Chief Ikeazor, S.A.N., has submitted that all the grounds of appeal relied upon involve questions of mixed law and fact, and accordingly, appellant requires leave of court before he can validly exercise his right of appeal. There is considerable force in this submission. The right to exercise a right of appeal conferred by the Constitution or any statute is predicated upon satisfying the pre-conditions for the exercise of the right. I have examined the proposed grounds of appeal, and they appear to me unquestionably to consist of either grounds of mixed law and facts, or of facts alone. These are not grounds on which appellant can appeal to this court without seeking leave-see S. 213(3) Constitution 1979, see Ojemen v. Momodu II (1983) 1 SCNLR 188. Since most of the grounds of appeal fall within s.213(2)(a)-(f) of the Constitution, 1979 the appeal can only be brought after satisfying S.213(3), which requires leave of the court below or of this court. This appeal is not like State v. Albangbee (1988) 3 N.W.L.R. (Pt.84) 548 where appellant satisfied the necessary pre-conditions to make the appeal competent. The Attorney-General having not sought leave, there is infact no appeal before this court.
The preliminary objection succeeds on both grounds. The purported appeal is incompetent and is accordingly hereby struck out.

NNAEMEKA-AGU, J.S.C.: This ruling is in respect of an appeal by the State against the acquittal of the respondent by the Court of Appeal sitting in Enugu.
Before Aneke, J., the respondent was convicted of the offence of murder and sentenced to death for the murder of Isaac Adili. My learned brother, Obaseki, J.S.C., has already set out the facts of this case, and I do not intend to repeat them here. It is enough to state those facts relevant to the preliminary objection which has been taken by the respondent’s counsel.
The Court of Appeal, Enugu Division, delivered its judgment on the 25th of April, 1988. The notice of appeal filed by the state was dated 21st July, 1988, and was filed in the Court of Appeal, Enugu on the 22ndof July, 1988. No leave to appeal or extension of time was applied for or obtained.
The learned Senior Advocate for the respondent, Chief Ikeazor, S.A.N., has filed a preliminary objection to the appeal: thus-
“MOTION ON NOTICE
1. SECTION 213(2)(d) AND 213(3) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1979.
2. SECTIONS 31(2)(4) AND. 31(4) OF THE-SUPREME COURT (NO.12 OF 1960).
3. ORDER 2 RULE 29 OF THE SUPREME COURT RULES 1985.
4. ORDER 8 RULE 2(7) OF THE SUPREME COURT RULES, 1985.
TAKE NOTICE that this Honourable Court shall he moved on ……. day of……. 1988 at the hour of 9 o’clock in the forenoon or so soon thereafter as the Counsel on behalf of the above-named Respondent! Applicant can he heard praying this Honourable Court for an order that the above-mentioned appeal be struck out or dismissed as being incompetent pursuant to Order 8 Rule 2(7) of the Supreme Court Rules 1985, on the grounds, inter alia, that:
(a) being a purported appeal against an acquittal of the respondent by the Court of Appeal, in a murder trial, no leave was obtained by the State, to appeal to this Honourable Court (Sections 213(2)(d) and 213(3) of the 1979 Constitution refer).
(b) in any event, the statutory period of 30 days within which to appeal in a murder case, has long expired before the purported Notice and Grounds of Appeal was filed by the State (Sections 31(2)(b) and 31(4) of the Supreme Court Act (No. 1200960) refer.”
On the date fixed for the hearing of the preliminary objection in this court, the appellant, though served, was absent. However, because of the novelty of one of the issues raised, we had to reserve ruling till today.
The second ground of the objection could be disposed of rather briefly. Under section 31(2)(b) of the Supreme Court Act No. 12 of 1960, an intending appellant has thirty days from the date of the decision appealed against within which to appeal.
It is expressly provided in sub-section (4) thus:
“The Supreme Court may extend the period prescribed in sub-section (2) except in the case of a conviction involving sentence of death”
As the present case was one of acquittal on a charge of murder, it follows that it is not caught by sub-section (4). But this is not the end of the problem. The right of a prosecutor, such as the appellant, to appeal derives from the provisions of section 4 of Judicial, etc., Office and Appeals by Prosecutors Acts, No.10 of 1963. By the provision of sub-section (3) of the section, a prosecutor has only seven days to give his notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. It is also expressly provided that that period shall not be extended. It is for the legislator to amend the law. It is for us to apply the law, as it is. As, in this case, the appeal was filed more than seven days, in fact eighty-eight days after the decision appealed against, it follows that the appeal is incompetent. So, this court lacks jurisdiction to hear the appeal. See:
Queen v. Nda (1957) 2 F.S.C. 29; (1957) SCNLR 346
Frubide v. The State (969) 1 All N.L.R. 255
Ojojo v. The State (1970) 1 All N.L.R. 33. and
Okodon v. The State (1981) 9 S.C. 1
On this ground alone, I would have struck out the purported appeal. But this is not all.
The first ground of the objection raises a point of considerable importance. In a nutshell, Chief Ikeazor has argued that a prosecutor has no right of appeal as of right because the right of appeal as of right conferred by section 213(2)(d) of the 1979 Constitution does not apply to a prosecutor, after an acquittal by the Court of Appeal.
I must observe that the learned counsel for the respondent concentrated his argument on section 213(2)(d) and section 213(3) of the Constitution. It does appear to me that if he was right to have so limited the provisions of the Constitution that need to be considered, then he was probably right. This is because section 213(2)(d) of the Constitution gives a right of appeal to this court from a decision of the Court of Appeal in the case of-
“(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court;”
This provision dearly does not include cases like this in which the Court of Appeal has quashed a sentence of death imposed by the High Court or any other court. It is limited to where such a sentence has been confirmed.
But, in my view, the provision in section 213(2)(d) is not the only provision that needs to be considered. The provision in section 213(2)(a) is also relevant. It provides as follows:
“(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right the following cases –
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;-
There can be no doubt that the subject of this appeal is a decision in a criminal proceeding before the Court of Appeal. The only outstanding question will be whether the grounds of appeal contain at least one ground of law. Looking at the grounds of appeal at page 241 to 255, it is noted that grounds 1, 4, 5 and 6 were stated to be ground of law. Looking closely at them, it appears to me that they are all grounds of mixed law and fact or fact. This court has stated in a number of cases that christening a ground of fact or of mixed law and fact as a ground of law does not ipso facto convert such a ground into a ground of law. See Ogbechie & Ors. v. Onochie & Ors. (1986) 2 N.W.L.R. (Pt.23) 484; Nwadike & Ors. v. Ibekwe & Ors. (1987) 4 N.W.L.R. (Pt.67) 718. A prudent counsel will always apply for leave when in doubt. In Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 this court construed the provisions in section 220(1)(a) and (b) of the Constitution with respect to appeals to the Court of Appeal and came to the conclusion that they have given a general right of appeal to an intending appellant. See the judgments of Udoma, J.S.C., at page 156 and of Idigbe, J.S.C., at pages 206-208 of the Report. These provisions are somewhat similar to those in section 213(2)(a). I believe that a similar general right of appeal has been conferred by section 213(2)(a) of the Constitution for intending appellants to appeal to this court. As it is so, it would be wrong to just base my decision on the provision of section 213(2)(d) as has been urged on us by the learned Counsel for the respondent. But the general right of appeal conferred to all intending appellants, including prosecutors, by section 213(2)(a) of the Constitution is exercisable only by an appellant on grounds of law alone.
In view, therefore, of the conclusions I have reached on both grounds of the objection, I uphold the objection. For grounds of fact or mixed law and fact such as in this case, he needs leave. None has been obtained in this case. So, as all the grounds of appeal filed in this case are grounds of fact or mixed law and fact and no leave was obtained, the appeal is incompetent on both grounds.
For the above reasons and the fuller reasons contained in the lead judgment of my learned brother, Obaseki, J.S.C, I also hereby strike out the appeal.

WALI, J.S.C.: I have had the privilege of reading in advance the Ruling of my learned brother, Obaseki, J.S.C. in which he exhaustively dealt with all the issues raised and canvassed and I entirely agree with him on both the reasoning and the conclusions. I do not wish to add anything.
The purported appeal is incompetent and is accordingly struck out
Preliminary objection upheld
Appeal Struck Out.

 

Appearances

Chief C Ikeazor, S.A.N. (with him, O. Akpudo)For Appellant

 

AND

Appellant/Respondent not represented.For Respondent