RAMONI v. OGUNYOMI (2020)

RAMONI v. OGUNYOMI

(2020)LCN/15464(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/IL/25C/2020

RATIO

WORDS AND PHRASES: NO-CASE SUBMISSION

A no-case submission means that there is no evidence, which, even if believed by the Court, could sustain a conviction. In other words, that the prosecution, at the close of its case has failed to establish a prima facie case against the accused person.See also: Ohuka V. State (No.1) (1988) 1 NWLR (Pt. 72) 539; Adeyemi V. State (1991) 6 NWLR (Pt. 195) 1; Ekwunugo V. Federal Republic of Nigeria (2008) 15 NWLR (Pt.1111) 630; COMMISSIONER OF POLICE V. AMUTA (2017) 4 NWLR (PT. 1556) 379.
The law is settled, a submission that there is no case to answer will be properly made and upheld in the following circumstances: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. See: Chyfrank Nigeria V. FRN (2019) LPELR – 46401 (SC); Ubanatu V. COP (2000) LPELR – 3280 (SC); Ibeziako V. Commissioner of Police (1963) 1 All NLR 61; (1963) NNLR 88; [1963] 1 SCNLR 99; Ajidagba and Ors V. I.G.P. (1958) 3 FSC 5; [1958] SCNLR 60; Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 406 @ 414 – 415; Daboh V. The State (1977) 5 SC 197; Tongo V. C.O.P. (supra); Ajuluchukwu V. The State (2014) 13 NWLR (Pt. 1425) 641; C.O.P. V. Amuta (2017) LPELR- 41386 (SC).

The Supreme Court in AMAH V. FRN (2019) LPELR 6347(SC) held thus:
“The purport of a no case submission is that, in law, there is no evidence on which, even if believed, the Court could convict. See: Ibeziako V. C.O.P. (1963) 1 All NLR 61; Ajidagba Vs I.G.P. (1958) 3 FSC 5; Tongo V. C.O.P. (2007) 12 NWLR (Pt. 1049) 525; Fagoriola V. FRN (2013) 17 NWLR (Pt. 1383) 322. The question whether or not the evidence is believed is immaterial and does not arise. Furthermore, the credibility of the witnesses is not in issue. It is also important to note that at the stage of a no case submission the Court is not required to express an opinion on the evidence before it. The reason is that at that stage, the trial has not been concluded. See: Adeyemi V. The State (1991) 6 NWLR (Pt. 195) 1; Agbo V. The State (2013) 11 NWLR (Pt. 1365) 377; Igabele V. The State (2006) 6 NWLR (Pt. 976) 100; Aituma V. The State (2007) 5 NWLR (Pt. 1028) 466.”
Also in Tongo V. COP (supra), Onnoghen CJN, held the view that: “It should always be borne in mind that at the stage where a no case submission is made particularly where learned counsel indicates intention not to rely on same, what is to be considered by the Court is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction, but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person as regards his conduct or otherwise”. See Ubanatu V. COP (supra).

For a No Case Submission to fail in a charge for Criminal Trespass, the prosecution must be able to give evidence which if believed will show that the accused persons (herein Appellants) unlawfully entered the land in possession of the Respondent; unlawfully remained on the land; and with the intention to commit an offence or to intimidate or annoy or insult the Respondent herein. The totality of the evidence at the trial Magistrate Court abound that the Appellants for farming purposes entered the land which the Respondent claim to be in possession as ownership fell on them by reason of Exhibit A1. This alleged fact in evidence points to an unlawful entry if believed by the Court. Also is the fact that the Appellants unlawfully remained on the land as they 4th to 7th Appellants refused to leave the land when asked to by the Respondent’s guards. Again this could annoy the Respondent. The referred facts in evidence before the learned Magistrate establish that there is evidence on the ingredients of Criminal Trespass and for which the Appellants would have some explanations to render. PER UCHECHUKWU ONYEMENAM, J.C.A.

APPEAL: WHETHER A FINDING OF A TRIAL COURT NOT APPEALED AGAINST IS DEEMED CORRECT

GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST BE DEDUCED FROM GROUNDS OF APPEAL

Principally, an issue which does not relate to any ground of appeal automatically does not flow from the decision of the Court whose decision is appealed against. The general rule is that such an issue is incompetent and bound to be struck out. See: NDULUE & ANOR V. OJIAKOR & ORS (2013) LPELR – 19889 (SC). Like pleadings, parties are bound by their grounds of appeal and are not at liberty to raise or argue issues not related to the judgment appealed against. See: Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184; Bakule V. Tanerewa (Nig.) Ltd (1995) 2 NWLR (Pt. 380) 724; Mercantile Bank Nig. Plc & Anr. V. Nwobodo (2005) LPELR – 1860 (SC). 308) 724 at 739-740.
In CHIEF KAFARU OJE & ANOR V. CHIEF GANIYU BABALOLA & ORS (1991) 4 NWLR (part 185) 267, the apex Court per Naemeka Agu, JSC held that:
“This Court of course held in so many cases that issues for determination as well as argument in the appeal should be based on the grounds of appeal duly filed. Any part of a brief or argument which does not arise directly from at least one of the grounds of appeal duly filed is incompetent and ought to be disregarded.” See also: OSINUPEBI. V. SAIBU & ORS (1982) 7 SC 104 at pages 110 and 111; WESTERN STEEL WORK & ORS. V. IRON AND STEEL WORKERS UNION OF NIGERIA & ORS. No.2 (1987)1 NWLR (PT. 49) 284 AT 304. The implication of this can only be that where any issue distilled in a party’s brief of argument does not relate or arise directly from the grounds of appeal such an issue formulated is liable to be struck out. In the instant appeal, this firm position of the law is not in controversy. PER UCHECHUKWU ONYEMENAM, J.C.A.

JURISDICTION: WHETHER A COURT CAN RAISE THE ISSUE OF JURISDICTION SUO MOTU

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Between

AYINLA RAMONI APPELANT(S)

And

CHIEF AMOS F. OGUNYOMI RESPONDENT(S)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Justice, Kwara State (Appellate session) Holden at Ilorin, delivered on 5th July, 2019, in Appeal No: KWS/11A/2018. Wherein the learned Trial Judges, Hon. Justice H. O. Ajayi, Hon. Justice T.S. Umar and Hon. Justice Mahmud Abdulgafar declined from entertaining the Appeal and in striking out the matter for being incompetent held thus:
“The simple, unambiguous interpretation of the above referred and quoted provision is to the effect that the notice of Appeal from the decision of a Magistrate Court of trial shall be made before the expiration of the 13th day after delivery or before the expiration of the 15th day after the trial Magistrate Court’s decision on invoking the sentence of canning. Evidently the time allowed for Appeal in an interlocutory decision would be within 14days of the delivery of the said ruling. Clearly this Notice of Appeal being filed within/after 21 days of the delivery of the said ruling is clearly out of the 14 days provided and allowed”.

The facts as presented at the trial Court is that the Appellant is the traditional head of Ikosin, the headquarters of Ile-Ire district in Ifelodun Local Government Area of Kwara State, while the Respondent represents the Afin Ile Village also of Ile-Ire district in the Ifelodun LGA of Kwara State. The two towns viz; Ikosin and Afin Ile-Ire are neighboring communities and have had a long drawn dispute on their boundaries dating back to before 1960.

That the Respondent by a Complaint to the Magistrate Court sitting at Igbaja, accused the Appellant and 6 others of Criminal Trespass. The Appellant denied and challenged the allegation on the grounds that inter alia that, the Appellant has no criminal liability and that the complaint borders on civil transaction of ownership of land which the Court was incompetent to hear. The Appellant’s challenge on the jurisdiction of the Court was dismissed.

Also, at the close of evidence led by the Respondent, the Appellant and the other accused persons made a submission that the Respondent had not made out a case for them to answer. The Court equally failed to uphold the No Case Submission.

Dissatisfied, the Appellant appealed to the High Court of Kwara State (Appellate Session) sitting in Ilorin. At the hearing of the matter the Respondent herein raised a jurisdictional issue to the effect that the Notice of Appeal was filed out of time. The High Court Appellate Session interpreted Section 280 (2) of the Criminal Procedure Code, agreed with the Respondent and struck out the matter for being incompetent.

Dissatisfied with the above decision of the High Court Appellate Session, the Appellant approached this Court via a Notice of Appeal dated and filed on 4th October, 2019. The Notice of Appeal was deemed properly filed and served on 7th October, 2020. After due filings and exchange of relevant processes in accordance with the Rules of this Court, the Appeal was ripe and therefore heard on 19th October, 2020. It is worthy of note that this appeal was consolidated and heard with Appeal No: CA/IL/148/2019; along with five other sister appeals; wherein the respective counsel in adopting their briefs in Appeal No: CA/IL/148/2019; adopted the brief in APPEAL NO: CA/IL/25C/2020; alongside.
Howbeit, I shall deliver the judgments separately. Mr. J. O. BARIKI holding the brief of DURODOLUWA OYEYIOLA for the Appellant argued the Appeal. He adopted and relied on the Appellant’s Brief of Argument filed on 20th February, 2020 and Appellant’s Reply Brief filed on 27th July, 2020, but deemed properly filed and served on 7th October, 2020 respectively, in urging the Court to allow the appeal. The learned counsel formulated two issues for determination from the 3 Grounds of Appeal filed by the Appellant.

The 2 issues are as follows:
1) Whether the Court below wrongly interpreted S. 280 (2) of the Criminal Procedure Code Law of Kwara State and if so, whether the Appellant’s notice of Appeal was filed within the time prescribed.
2) Whether this Court can assume jurisdiction and proceed to determine the Appeal as if it was the Court below.

Mr. A. M. MOHAMMED holding the brief of OLUGBENGA S. OGIDIOLU for the Respondent, adopted and relied on the Respondent’s Brief of Argument, filed on 13th July, 2020 but deemed properly filed and served on 7th October, 2020. The learned counsel for the Respondent also formulated 2 issues for determination, which is:
1. Whether this Honourable Court has the Jurisdcition to entertain this Appeal.
2. Whether this Honourable Court can assume jurisdiction and proceed to determine the Appeal as if it was the Court below.

I have carefully examined the respective two issues raised by the parties, the 2nd issue of both parties are the same. I have the view that the Appellant’s two issues for determination fully captures his grouse arising from the Grounds of Appeal filed and their erudite determination will answer the Appeal. I would have straight away proceeded to determine the appeal on the said two issues raised by the Appellant but for the 1st issue of the Respondent which attacks the jurisdiction of this Court to determine the appeal.

Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised therefore, the Court is bound to examine whether it is spurious or genuine ground. See: AGWU & ORS V. JULIUS BERGER (NIG) PLC 2019 LPELR – 47625 (SC). Therefore, Issue 1 of the Respondent being an issue on jurisdiction, I shall settle the same first and foremost.
“Whether this Honourable Court has the jurisdiction to entertain this Appeal.”

The learned counsel for the Respondent submitted on the general rule where a Respondent formulates an issue that does not arise from any of the grounds of appeal in the Appellant’s notice of appeal. The learned counsel cited the cases of: AMADI V. A.G. ANAMBRA (2017) 11 NWLR Part 1575 P.92 at 108 C-G; N.C.C V. MOTOPHONE LTD (2019) 14 NWLR Part 1691 P.1 at 41 B-H.

Mr. Ogidiolu of counsel also in his submission noted the exception to the general rule that parties cannot raise on appeal issues that were not raised, considered and pronounced upon by the trial Court. He cited the cases of OSUDE V. AZODO (2017) 15 NWLR Part 1588 P.293 at 319-320 G-A; BOKO V. NUNGWA (2019) 1 NWLR Part 1654 P.395 at 430 D-G.

In the Appellant’s reply brief, the Appellant in reply submitted on the distinction between arguing an issue that does not flow from any ground of appeal; and raising an issue of jurisdiction as a fresh issue before this Court. The learned counsel argued that the Respondent although has his rights to raise issues of jurisdiction for the first time before this Court, but such issue must flow from competent grounds of appeal or as a result of his Cross-Appeal or Respondent’s notice as the case may be. He cited: Order 9 Rule 3 Court of Appeal Rules, 2016.

On whether this Court has the jurisdiction to entertain this appeal, the learned counsel for both parties are ad idem that: this issue does not flow from the grounds of appeal and under the general rule, arguments relating to it ought to be discountenanced and the said issue liable to be struck out. See: AMADI V. A.G. ANAMBRA (2017) 11 NWLR (Part 1575) 92; N.C.C. V. MOTOPHONE LTD (2019) 14 NWLR (Part 1691) 1.

Generally, Jurisdiction has been upheld as the very basis on which any Court or tribunal tries a case. It is said to be the lifeline of all trials and as such any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding. However, although jurisdiction can be raised at any stage of a proceeding and even on appeal at its finality, a question of jurisdiction must be properly raised before the Court may rightly entertain it. In that wise, it can be raised at any stage of a case both at trial and on appeal by any of the parties, and it can even be raised orally. The Court can also raise it suo motu where the question involves a substantial point of law, substantive and procedural and no further evidence needs be adduced which would affect the decision. See: PDP V. OKOROCHA & ORS (2012) LPELR – 7832 (SC); ALIOKE V. OYE & ORS (2018) LPELR – 45153(SC); ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (2019) LPELR – 46528 (SC); PETROJESSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (Pt.244) page 675, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE VS OYEBI (1984) 1 SCNLR page 390.
Again on the generality of it, where jurisdiction is raised in an appellate Court as a new issue, proper application must be made to raise it as a ground of appeal. See: ALIOKE V. OYE & ORS (2018) LPELR–45153(SC); OSHATOBA V. OLUJITAN (2000) 5 NWLR (Pt.655) 159; AMADI V. NNPC (2000) 5 WRN 47; (2000) 10 NWLR (Pt.674) 76; (2000) 6 SCNJ 1; (2000) 49 LRCN 1951;(2000) 10 NWLR (Pt.674) 7. The import of the position of the law is that although jurisdiction is critically important in the adjudication of matters by the Courts and so can be raised at any time in adjudication and for the first time even at the apex Court, the said jurisdiction must be raised as required by the law and not arbitrarily.
In the instant appeal, the contention is that the Respondent who neither filed a Respondent’s Notice nor a Cross Appeal cannot raise the issue of jurisdiction which does not flow from the Appellant’s grounds of appeal in his Respondent’s brief. The law is settled that a Respondent who has not cross- appealed, cannot raise an issue outside those framed or formulated by the Appellant from the grounds of appeal filed. See: EKE V. OGBONDA (2006) LPELR- 1075 (SC); NZEKWU V. NZEKWU (1989) 2 NWLR (PT. 104) 373; KUUSU V. UDOM (1990) 1 NWLR (Pt. 127) 421. The Respondent’s contention stems on the fact that his Issue 1 being on jurisdiction can be distilled as an issue in his brief even when the issue does not relate to the grounds of appeal.
Principally, an issue which does not relate to any ground of appeal automatically does not flow from the decision of the Court whose decision is appealed against. The general rule is that such an issue is incompetent and bound to be struck out. See: NDULUE & ANOR V. OJIAKOR & ORS (2013) LPELR – 19889 (SC). Like pleadings, parties are bound by their grounds of appeal and are not at liberty to raise or argue issues not related to the judgment appealed against. See: Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184; Bakule V. Tanerewa (Nig.) Ltd (1995) 2 NWLR (Pt. 380) 724; Mercantile Bank Nig. Plc & Anr. V. Nwobodo (2005) LPELR – 1860 (SC). 308) 724 at 739-740.
In CHIEF KAFARU OJE & ANOR V. CHIEF GANIYU BABALOLA & ORS (1991) 4 NWLR (part 185) 267, the apex Court per Naemeka Agu, JSC held that:
“This Court of course held in so many cases that issues for determination as well as argument in the appeal should be based on the grounds of appeal duly filed. Any part of a brief or argument which does not arise directly from at least one of the grounds of appeal duly filed is incompetent and ought to be disregarded.” See also: OSINUPEBI. V. SAIBU & ORS (1982) 7 SC 104 at pages 110 and 111; WESTERN STEEL WORK & ORS. V. IRON AND STEEL WORKERS UNION OF NIGERIA & ORS. No.2 (1987)1 NWLR (PT. 49) 284 AT 304. The implication of this can only be that where any issue distilled in a party’s brief of argument does not relate or arise directly from the grounds of appeal such an issue formulated is liable to be struck out. In the instant appeal, this firm position of the law is not in controversy.
From the overall position of the law stated above and the facts and circumstances of this appeal, what needs to be resolved is whether a Respondent who raises a question of jurisdiction as an issue in his brief which issue does not flow from any of the grounds of appeal can be held to have properly raised a question of jurisdiction on appeal to entitle an appellate Court to entertain the same. I opine, notwithstanding the fact that jurisdiction can be raised at any stage of the proceedings and in any Court for the first time, the rules and practice of the Courts have not left it at the discretion of a party who seeks to raise an issue of jurisdiction on appeal to raise the same based on individual preference or convenience rather than by the dictate of the rules and practice of the Court. InALIOKE V. OYE & ORS (2018) LPELR 45153(SC); the Supreme Court held that where jurisdiction is raised in an appellate Court as a new issue, proper application must be made to raise it as a ground of appeal. See also: OSHATOBA V. OLUJITAN (2000) 5 NWLR (Pt.655) 159; AMADI V. NNPC (2000) 5 WRN 47; (2000) 10 NWLR (Pt.674) 76; (2000) 6 SCNJ 1; (2000) 49 LRCN 1951; (2000) 10 NWLR (Pt.674) 7. It follows in my view that if an Appellant who desires to raise jurisdiction as a fresh issue on appeal will not raise it arbitrarily but must bring an application, then a Respondent who seeks to raise jurisdiction on appeal must also come properly before the appellate Court. In the instant case the Respondent prays the Court to hold that it lacks the jurisdiction to entertain the appeal. The Respondent does not seek to vary the decision of the trial Court. Accordingly, to properly raise jurisdiction on appeal, the Respondent by Order 9 Rule 1 and Order 10 Rule 1 of the Court of Appeal Rules 2016 ought to have either filed an appeal as in Cross Appeal in this appeal or raise a preliminary Objection to the hearing of the instant appeal on the ground that this Court lacks the jurisdiction to determine the appeal upon set grounds for the application. The Respondent herein having failed to cross appeal cannot raise an issue which does not arise from the Appellant’s grounds of appeal not withstanding that it is an issue of jurisdiction. See: EKE V. OGBONDA (2006) LPELR- 1075 (SC); OGUNDARE v. OGUNLOWO (1997) 6 NWLR (Pt. 509) 360; PADAWA v. JATAU (2003) 5 NWLR (Pt. 813) 247.
The Respondent also lost the opportunity of challenging the jurisdiction of this Court when it failed to raise a Preliminary Objection in that regard. I therefore hold that the Respondent failed to properly raise the issue of jurisdiction before this Court. The Respondent’s Issue 1 and the argument thereto ought to be and are hereby discountenanced.

However, in case I am wrong, the Respondent’s argument is that by the provisions of the Kwara State Laws he referred to, that the Appellant cannot appeal against the ruling on no case submission.
By the large number of cases that have been recorded by this Court and the apex Court on no case submission, I would categorically state that ruling on a no case submission is appealable, see: AJIDABGA V IGP (1958) 3 FSC 5; IBEZIAKO V COP (1963) ALL NLR 61; ONAGORUWA V STATE (1993) 7 NWLR (pt. 303) 49; AJIBOYE V STATE (1995) 8 NWLR (pt. 414) 408; EMEDO V STATE (2002) 15 NWLR (pt. 789) 196; MOHAMMED V STATE (2007) ALL FWLR (pt. 366) 668; UBANATU V COP (2000) 1 SC 31; AITUMA V STATE (2007) ALL FWLR (pt. 381) 1798; TONGO V COP (2007) ALL FWLR (pt. 376) 636.

Howbeit, owing to the argument of the Respondent, I shall examine the right of appeal of an accused person on a ruling of no case submission in Kwara State in particular. The learned counsel cited Sections 279 (1); Section 280 (2) of the Kwara State Criminal Code Law, Cap. C23 Laws of Kwara State 2006; Section 58 (2) and (3) of the Kwara State High Court Law. Ogidiolu Esq. argued that the Appeal before the lower Court is against a decision on a no case submission and therefore not a decision after a guilty verdict or a Sentence/Judgment. That those Sections of the Law are therefore not applicable to the peculiar facts of this case and that all the judicial authorities cited by the Appellant are therefore irrelevant. The learned counsel in arguing that Section 280 (2) of the Kwara State Criminal Procedure Code Law, cap.C23, Laws of Kwara is not applicable to an appeal arising from a No Case Submission, stated that No Case Submission was made under the provision of Section 159 (1) and 191 (3) and (5) of the Criminal Procedure Code Law of Kwara State.
In further support of his argument, the learned Counsel cited Sections 279 (2), S. 280(4), S. 281 (1) of the CPC; in submitting that since there is no specific provision for interlocutory criminal appeals in the aforesaid laws or any rules made under either of those laws, it follows that there is no provision in those Statutes for interlocutory criminal appeal and therefore, the High Court of Kwara State lacked the requisite jurisdiction to entertain the appeal in the first place, as no appeal lies from a decision of a Court unless it is conferred by statute. He cited the cases of BOARDMAN V. SOKOTO N. A (1965) 1 ALL N. L. R. 214; (1965) N.M.L.R P. 329. 7:19, PDP V. UMEH (2017) 12 NWLR Part 1579 P. 272 at 310-311 G-H, TUMSAH V. FRN (2018) 17 NWLR Part 1648 P. 238 at 273 E-F.

He therefore submitted that neither the lower Court, nor this Court has the jurisdiction to entertain this appeal, same having emanated from a decision overruling a no case submission. He argued that since there is no statutory provision for appeal against a decision on a No Case submission that the Notice of Appeal is incompetent and which incompetence robs the Court of its jurisdiction to entertain it. He cited the cases of BOKO V. NUNGWA (2019) 1 NWLR Part 1654 P. 395 at 430 E-F; 449 E, PROSAFE PRODUCTION SERVICES LTD V. OSBIR (2018) NWLR Part 1660 P. 86 at 113 E-F.
The learned counsel urged this Court to settle this issue in favour of the Respondent.

In reply to argument of the Respondent in respect of Section 280 (2) of the Criminal Procedure Code Law of Kwara State; the learned counsel for the Appellant submitted that, the use of the word “OR” separates the two sentences. That this becomes even more evident when the provision of S. 58 of the Kwara State High Court Law is considered. That it separates the sentences in S. 280 (2) CPC in two distinct subsections (2) and (3) and the purport of this negates the Respondents contention that the mention of sentence of caning indicates that earlier part of the section relates to sentences.

Mr. Oyeyiola, the learned Counsel for the Appellant submitted on the guiding principle in interpretation of Statutes. He cited: FRN V. YA’U MOHAMMED (2014) AELR 3169 (SC); OBI V. INEC (2007) 1 NWLR (pt. 1046).
He urged the Court to resolve in favour of the Appellant.

Let me start by stating that Section 191 of the Criminal Procedure Code Law, Laws of Kwara State relates to trials at the High Court and so does not apply to proceedings at the Magistrate Court nor to proceedings of the High Court in its appellate jurisdiction. Section 159 CPC (supra) made reference to Section 235 CPC (supra). The said Section 159 CPC (supra) which relates to summary trial refers to the discharge of an accused where a Court has suo moto examined the accused after the evidence of the prosecution as per Section 235 CPC (supra) and found, no case against the accused has been made out which if not rebutted would warrant his conviction. On its own, Section 235 CPC (supra) relates to when the Court examines an accused after the witnesses of the prosecution have been examined but before the accused is called upon to enter his defence to make clear to the accused the particular points in the case of the prosecution which he has to meet in his defence. Section 159 CPC (supra) therefore does not relate to a case where an accused made a No Case Submission after the close of the case of the Prosecution.
Section 279 (2) CPC (supra), apparently provides for appeals from Magistrate Court to High Court in cases where there is acquittal or discharge. This section, I must remark, has not in any way limited appeals from the Magistrate Court to the High Court only to cases where there is an acquittal and or discharge as the learned counsel for the Respondent argued. I am of this firm view owing to the provision of the 1999 Constitution of the Federal Republic of Nigeria as amended, which by Section 272 (2), did not limit the High Court appellate or supervisory jurisdiction to cases where the Magistrate Court had entered its verdict of guilty or not guilty but to all criminal decisions arising from all criminal proceedings from the Magistrate Court. This is the path both this Court and the Supreme Court have towed in their consideration of appeals from the Magistrate Court to the High Court. This accounts for the legion of authorities both this Court and the Apex Court have given in respect of appeals arising from interlocutory criminal appeals emanating from the Magistrate Court to the High Court. On Section 280 (2) CPC (supra), for now, suffice it for me to say that the referred section is not restrictive of the appeal for which it provides for. This is also the case with Section 58 High Court Law of Kwara State, the section is not in any way suggestive that it excludes any form of appeal. Also Section 282 (2) CPC (supra), by sub paragraphs (f) and (g); accommodates appeals on decisions other than appeal on final criminal decisions of the Magistrate Court. Flowing from the position of the law, the use of the word decision therein, covers a ruling on no case submission which is the decision appealed from Magistrate Court to the Appellate High Court in the instant appeal.
Conclusively, is Section 240 of the 1999 Constitution of the Federal Republic of Nigeria as (amended); which provides thus:
Section 240 “Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.”
I hold that by the provision of Section 240 of the 1999 Constitution of Nigeria (as amended), this Court has the Jurisdiction to hear and determine this appeal from the appellate high Court having held that the said lower Court had jurisdiction to hear and determine the appeal brought before it against the decision of the trial Magistrate Court.
In all therefore, I do not agree with the Respondent’s counsel that the High Court and this Court in particular does not have the jurisdiction to hear and determine this appeal because it is an appeal against the decision of a magistrate Court on a no case submission. In other words, I hold that by the Criminal Procedure Code law, Laws of Kwara State, appeal lies on interlocutory decision of the Magistrate Court to the High Court and in particular a Magistrate’s Court ruling on a No Case Submission in Kwara State is subject of appeal to the High Court in its appellate jurisdiction. Accordingly, this Court has the jurisdiction to hear and determine the instant appeal which emanated from the Magistrate Court’s ruling on a No Case Submission.

The issue of jurisdiction is therefore resolved against the Respondent and in favour of the Appellant.
I will now proceed to the issues raised by the Appellant arising from the grounds of appeal.

SUBMISSIONS ON ISSUE 1
Whether the Court below wrongly interpreted S. 280 (2) of the Criminal Procedure Code Law, Laws of Kwara State and if so, whether the Appellant’s notice of Appeal was filed within the time prescribed.
In the Appellant’s brief of argument settled by Mr. Duroduluwa E. Oyeyiola, it was observed that the issue questions the correctness or otherwise of the High Court of Appellate Session’s decision that the Appellant’s Notice of Appeal from the Magistrate Court was filed out of time and therefore incompetent.
The Appellant noted the undisputed facts as to the date: the Magistrate Court ruled on the no case submission; the Appellant filed a Notice of Appeal against the said ruling; the Appellant filed an Amended Notice of Appeal; and the relevant law that stipulates the time for filing an Appeal from the Magistrate Court to the High Court as Section 280 (2) of the Criminal Procedure Code Law, Laws of Kwara State.

The learned counsel for the Appellant submitted that the Notice of Appeal was undoubtedly filed 21 days after the ruling of the trial Court. He argued that appeals regardless at which level enjoy statutory flavor being governed by specific laws. He cited the case of ADIGUN & ORS V. ATTORNEY GENERAL OF OYO STATE (1987) 2 NWLR PT. 56 197 at 230. For the instant appeal, the Appellant’s counsel submitted that the relevant law is the Criminal Procedure Code Law, Laws of Kwara State and particularly Section 280(2); which stipulates the time limit for filing appeals from the Magistrate Court to the High Court of Kwara State.

For the definition of the term ‘decision’, the learned counsel cited the case of EMORDI V. IGEKE (2011) 9 NWLR 41. He argued that the term covers not only final judgment but also interlocutory rulings. He submitted that Section 280 (2) CPC (supra) did not distinguish between interlocutory decision and final decision contrary to the submissions of the learned counsel for the Respondent. Mr. Oyeyiola further submitted that, the only distinction in Section 280 (2) CPC (supra) is between a decision and a sentence of caning and that the ruling appealed against was not one involving a sentence of caning.

The learned counsel submitted that a notice of appeal brought after 21 days is well within the time to file such notice and he urged this Court to so hold and resolve the issue in favour of the Appellant.
The Respondent did not submit on this issue directly but part of his arguments in his 1st issue answered this issue relatively.

RESOLUTION OF ISSUE 1
A good start point will be the reproduction of Section 280 (2) of the Criminal Procedure Code law, Laws of Kwara State which states thus: S. 280
(2) “The Notice of Appeal shall be given in every case before the expiration of the thirtieth day or, where the Appeal is against a sentence of caning, before the expiration of the fifteenth day after the day on which the Court has made the decision appealed against”.
The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning unless to do so would lead to absurdity or injustice. See: PROFESSOR JERRY GANA, CON V. SOCIAL DEMOCRATIC PARTY & ORS (2019) LPELR 47153 (SC). The Fundamental principle of interpretation of statutes where the words used are clear and unambiguous, is that, the plain and ordinary meaning are used. See:MAMONU & ANOR V. DIKAT & ORS (2019) LPELR-46560(SC); ABEGUNDE V. THE ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC); FRN V. YA’U MOHAMMED (2014) AELR 3169 (SC), OBI V. INEC (2007) 1 NWLR (pt. 1046).
Upon a careful examination of the provision of Section 280 (2) CPC (supra), it is my firm view that the words in the statute are clear and unambiguous; as such should be given their natural and plain meaning in its interpretation. See: MAMONU & ANOR v. DIKAT & ORS (Supra); ABEGUNDE V. THE ONDO STATE HOUSE OF ASSEMBLY & ORS (supra). In applying Section 280 (2) CPC (supra); therefore, in the determination of this issue I shall accord words in the referred section their ordinary meaning.
This issue challenges the appellate high Court’s interpretation of Section 280 (2) thus:
“The simple, unambiguous interpretation of the above referred and quoted provision is to the effect that the notice of Appeal from the decision of a Magistrate Court of trial shall be made before the expiration of the 13th day after delivery or before the expiration of the 15th day after the trial Magistrate Court’s decision on invoking the sentence of canning. Evidently the time allowed for Appeal in an interlocutory decision would be within 14 days of the delivery of the said ruling. Clearly this Notice of Appeal being filed within/after 21 days of the delivery of the said ruling is clearly out of the 14 days provided and allowed”.
The question is whether the above interpretation the lower Court gave Section 280 (2) CPC (supra) is its natural and plain meaning as required by law.
The Cambridge dictionary meaning of thirtieth is 30th written as a word. I have carefully studied the provision of Section 280 (2) CPC (supra) above and I hold that thirtieth day as mention in the above statute means 30th day in word and not thirteenth (13th) day as interpreted by the lower Court. I hold further that the simple and unambiguous interpretation of the above Section 280 (2) CPC (supra) is that Notice of Appeal shall be given in every case before the expiration of the thirtieth (30th) day or, where the appeal is against a sentence of caning, before the expiration of the fifteenth (15th) day after the day on which the Court has made the decision appealed against. See MAMONU & ANOR v. DIKAT & ORS (2019) (supra).
On the argument that Section 280 (2) CPC (supra) is exclusive of interlocutory appeals like this appeal against the ruling of the Magistrate Court on a No Case Submission, I agree with the learned counsel for the Appellant’s submission that, the use of the word “OR” in Section 280 (2) CPC (supra), separates the two sentences. It means, whereas: in ‘EVERY APPEAL’ from the Magistrate Court to the High Court, the appeal shall be before the expiration of the 30th day; while in appeal against a sentence of canning, the appeal shall be before the expiration of the 15th day, after the day on which the Court has made the decision appealed against. The word “every” before the word “appeal” in Section 280 (2) CPC (supra) refers to a whole, entire, total class of appeal. It connotes “all” appeals without an exception. So the argument of the Respondent that it excludes interlocutory appeals is devoid of the meaning of the word “every”. With the word “every” an exception can only be created by a conjunctive word used to link alternatives. This is where the word “or” comes to play. So the alternative of every appeal that must be before the 30th day from the day of the decision of the Magistrate Court, is the appeal against a sentence of canning and no more. Section 280 (2) CPC (supra), does not in any way suggest that interlocutory appeals can only be filed before the expiration of the 15th day as alluded by the Respondent’s counsel and upheld by the appellate High Court.
The statutes referred to by the Respondent in support of his argument are rather supportive of the interpretation I have given to Section 280 (2) CPC (supra). This becomes even more evident when the provision of S. 58 of the Kwara State High Court Law is considered. SECTION 58 OF THE HIGH COURT LAWS OF KWARA STATE provides thus:
“(2) Subject to the provisions of subsection (3), a notice of Appeal under subsection (1) shall be given in every case before the expiration of the thirtieth day after the day on which the Court has made the decision appealed against.
(3) A Notice of Appeal under subsection (1) in respect of a sentence on caning shall be given in every case before the expiration of the fifteenth day after the day on which the Court has made the decision appealed against”.
The referred section makes it abundantly clear that apart from appeal against sentence on canning every other appeal be it final or interlocutory shall be before the 30th day after the day on which the Magistrate Court has made the decision appealed against. I therefore hold that the Appellant having filed his Notice of Appeal 21 days after the ruling, the Appellant’s notice of Appeal was filed within the time prescribed and the Court below wrongly interpreted S. 280 (2) of the Criminal Procedure Code law, Laws of Kwara State which wrong interpretation swayed its mind to arrive at a wrong conclusion.
I resolve issue 1 in favour of the Appellant.

SUBMISSIONS ON ISSUE 2
Whether this Court can assume jurisdiction and proceed to determine the Appeal as if it was the Court below.
In arguing issue 2, the learned counsel for the Appellant submitted that since the Court below failed to determine the appeal on its merits, he is inviting this Court to step into its shoes and determine the appeal on its merits. This will save parties the time it would otherwise have spent going back to the Court below to hear and determine the appeal against the trial Court’s ruling on a No Case Submission in the event that issue 1 in the Appellant’s brief succeeds. He placed reliance on Section 23 of the Court of Appeal Act, 2004.

The learned Counsel submitted that the Appellant will suffer undue hardship if compelled to return to the Court below to argue this appeal based on the misapprehension of the purport of Section 280 (2) CPC by the Court below.

In arguing issue two, the learned Counsel for the Respondent noted that the provisions of Section 15 of the Court of Appeal Act have been interpreted by the Apex Court in a number of cases, he cited the cases of OBI V INEC (2007) 1 NWLR part 1046 P. 465; AMAECHI V. INEC (2008) 5 NWLR part 1080 P. 227; INAKOJU V. ADELEKE (2007) 7 NWLR Part Part 1025 P. 423; AGBAKOBA V. INEC (2008) 18 NWLR Part 1119 P. 489; EZEIGWE V. EZEIGWE (2010) 4 NWLR part 1183 P. 159, A.G KWARA STATE V. LAWAL (2018) 3 NWLR part 1606 P. 266 at 294 C-E.

Mr. Ogidiolu the learned Counsel for the Respondent submitted that on the diacritical circumstance of the instant case wherein the lower Court lacks jurisdiction to entertain the Appeal, this is not an appropriate situation for the exercise of the general powers of this Court, as it is settled that where, as in this case, the appeal is incompetent, this Court cannot exercise its powers under Section 15 of the Court of Appeal Act. He cited METUH V. F.R.N (2017) 11 NWLR part 1575 P. 157 at 178 C-D.

Mr. Ogidiolu of counsel urged the Court to decline Appellant’s invitation to exercise the Court’s general power under Section 15 of the Court of Appeal Act and to resolve this issue in favour of the Respondent.

In reply to the Arguments of the Respondent on Issue 2, the learned Counsel for the Appellant stated that the provisions of the Court of Appeal Act confer legal power on this Court to make an Order which the Court below could have made in the interest of justice. He cited the cases of DAPIANLONG & ORS V. DARIYE (2007) 8 NWLR (pt. 1036) 239; OBI V. INEC (2007) 1 NWLR (PT. 1046) 465.

RESOLUTION OF ISSUE 2.
The Apex Court Per Onnoghen, CJN (as he then was) in NSIRIM V. AMADI (2016) LPELR – 26053 (SC) defined jurisdiction “as the legal capacity of a Court to hear and determine judicial proceedings. It is a power to adjudicate concerning the subject matter controversy. “
Jurisdiction is also defined by the learned authors of Halsbury Laws of England 4th Edition in paragraph 715 at page 323 as follows:
“By jurisdiction is meant that authority which a Court has to decide matters that are litigated before it or to take Cognizance of matters presented in a formal way for its decision.” See: ITAYE & ORS V. EKAIDERE & ORS (1978) LPELR – 1558 (SC). See also: THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED & ORS V. CHIEF ISAAC OSARO AGBARA & ORS (2015) LPELR-25987(SC).
By this issue 2, the Court is called upon to determine whether it has the legal capacity to hear and determine or the power to adjudicate concerning the subject matter controversy at the appellate High Court which is whether the trial Magistrate Court was right to overrule the Appellant’s No Case Submission. The main and relevant statutes referred to by the parties are Sections 15 and 23 of the Court of Appeal Act, 2004.
Section 23 of the Court of Appeal Act, 2004 provides that: “On the hearing of an appeal under this part of this Act, the Court of Appeal may exercise any power that could have been exercised by the Court below or may order the case to be re-tried by a Court of competent jurisdiction”.
The Supreme Court in EZEIGWE V. NWAWULU & ORS. (2010) LPELR-1201(SC); interpreted Section 15 of the Court of Appeal Act thus:
“Section 15 of the Court of Appeal Act, 2004 provides as follows:- “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.”
In interpreting the above provision, the Apex Court has, in the case of Obi V. INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489; stated that for the provision to apply the following conditions must exist, to wit:
(a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
(b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
(c) that all necessary materials must be available to the Court for consideration;
(d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and,
(e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest. See also the cases of UMAR v. COP, KANO STATE (2014) LPELR-24012(CA).
Distinctively, the provisions of Sections 15 & 23 of the Court of Appeal Act 2004, grant this Court general jurisdiction over the whole proceedings of a lower Court as if the proceedings had been instituted in the Court of Appeal as Court of first instance. Sections 15 and 23 of the Court of Appeal Act 2004, gave the Court of Appeal wide discretionary powers to perform such judicial functions which the Court below is authorised to perform but which it has not performed. It is a discretionary power which invocation depends on the peculiar facts and circumstances of each case. And that being so, no one exercise of the Court’s discretion under the provision is a binding precedent for any subsequent exercise of discretion. It is the peculiar facts and circumstances of the case that determines the propriety or otherwise of its invocation. See: DAPIANLONG & ORS V. DARIYE & ORS (2007) LPELR – 928 (SC). The referred power of this Court under Section 15 of the Court of Appeal Act, 2004 can only be exercised subject to certain conditions stated in EZEIGWE V. NWAWULU & ORS. (Supra). The question therefore is whether, the conditions have been met in the instant case to energize the powers of this Court as per the provisions of Section 15 of the Court of Appeal Act, 2004.
The claim of the Appellant at the trial Court is a No Case Submission as seen at page 6 of the records. The high Court in its appellate session has the legal power to adjudicate the No case submission as was resolved earlier in this appeal. The real issue raised by the Appellant at the lower Court which is whether the trial Magistrate Court was right to have overruled the No Case Submission of the Appellant can be distilled from ground two of the Appellant’s grounds of appeal. In the determination of a No Case Submission the question whether or not the evidence is believed is immaterial and does not arise; the credibility of the witnesses is not in issue; the Court is not required to express an opinion on the evidence before it for the reason that at that stage, the trial has not been concluded; See:Adeyemi V. The State (1991) 6 NWLR (Pt. 195) 1; Agbo V. The State (2013) 11 NWLR (Pt. 1365) 377; Igabele V. The State (2006) 6 NWLR (Pt. 976) 100; Aituma V. The State (2007) 5 NWLR (Pt. 1028) 466. Therefore, the nature of a No Case Submission makes all necessary materials for the consideration of the appeal available to this Court, and coupled with the fact that the parties had filed their written addresses on the No Case Submission. Then being a criminal matter which has judicial sense of urgency as a citizen’s innocence is at stake, there is need for expeditious disposal of the issue of No case Submission so that the main criminal case could be heard. Finally, since all materials necessary for this Court to consider the No case Submission is available, remitting this case to be reassigned and tried by other Judges will cause great undue judicial delay in the hearing and determination of the criminal charge as a whole and will clearly cause undue hardship on the Appellant. I therefore hold that owing to the facts and circumstances of the appeal at the lower high Court, this Court can assume jurisdiction and proceed to determine the appeal before the Appellate High Court of Kwara State as if it was the Court below. I answer Issue 2 in the positive.
Issue 2 is resolved in favour of the Appellant.

The appeal is adjudged meritorious, the same is allowed. I set aside the decision of the High Court of Kwara state sitting in its appellate session delivered on 5th July, 2019; in Appeal No: KWS/11A/2019.

Accordingly, I invoke Sections 15 and 23 of the Court of Appeal Act, 2004, to hear and determine the No Case Submission appeal filed in the Appellate Session of the High Court of Kwara State filed on 27th July, 2018, that the said lower Court failed to hear and determine.

The Respondent at the Magistrate Court made a direct criminal complaint of Criminal Trespass against all the Appellants via complaint dated 9th May, 2017. They alleged that the 4th, 5th, 6th, and 7th Appellants were farming on their land on the authority of the 1st, 2nd, and 3rd Appellants and refused to stop farming on the said land except on the instruction of the 1st, 2nd, and 3rd Appellants who claimed ownership of the land on behalf of the Ikosin Village.

The Respondent on a belief that the land belongs to Afin Ile-Ire village, on behalf of Afin Ile-Ire instituted criminal action against the Appellants.

The Appellants formulated two issues for determination emanating from the 3 grounds of the Amended Notice of Appeal. The 2 issues are:
1. Whether or not EXHIBIT A1 was legally admissible and if the answer is in the negative, whether the lower Court did not err when it relied on it to hold that the Respondent had made out a prima facie case against the Appellants.
2. Whether or not the Respondent made out a prima facie case against the Appellants.

In arguing issue 1 above, the learned counsel for the Appellants therein submitted that for a document to be admissible in law, it must be pleaded, relevant and admissible. He cited the case of MRS HANSINE N. DONLI V. MALLAM MAGAJI ABDULLAHI & ORS (2014) AELR (CA). Mr. Oyeyiola submitted that the Evidence Act, 2011 specifically provided for the kind of secondary evidence that may be tendered in each instance. That in this case where what was sought to be tendered is a Judgment from a recognized authority, what was required is a certified true copy. He cited: Section 90 (c) Evidence Act, 2011 and stated that the certified true copy must comply with Section 104 Evidence Act.

The learned counsel submitted that EXHIBIT A1 is not legally admissible and ought not to have been admitted or if admitted ought to be devoid of any weight. He cited the cases of ALHAJI SAFIANU AMINU & ORS V. ISIAKA HASSAN & ORS (2014) AELR 2613 (SC) p.51 para G-C; OSENI V. DAWODU (1994) 4 NWLR (PT. 339) 390 at 404.

The learned counsel urged the Court to resolve this issue in favour of the Appellants and strike out EXHIBIT A1 as being legally inadmissible.

On Issue 2 thus:
Whether or not the Respondent made out a prima facie case against the Appellants.
The learned counsel for the Appellants stated that he contended at the trial Court that no case had been made out against them and that it would be contrary to Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); for them to enter a defence.

The learned counsel stated that the Respondent did not lead any evidence in furtherance of the ingredients that make up the offence of Criminal Trespass and as such, there is no case for them to answer. He further stated that the offence which the Appellants were charged is Criminal Trespass, contrary to Section 348 of the Penal Code Law, Laws of Kwara State, which is the punishment Section. That the offence itself is defined in Section 342 of the Penal Code Law, Laws of Kwara State.

In arguing what the ingredients of the offence of Criminal Trespass are, the learned counsel cited the case of ATAGUBA V. COP (2011) LPELR-3845 (CA). He submitted that for a prima facie case to be established, the Respondent must lead evidence in respect of all the ingredients of Criminal Trespass to cause the Court to require an explanation from the Appellants.

Mr. Oyeyiola analyzed the evidence of the Respondent’s witnesses and submitted that the case of the Respondent had nothing to do with Criminal Trespass, but civil claim of ownership and trespass to land. He argued that none of the witnesses of the Respondent mentioned that either the 1st, 2nd, or 3rd Appellants were or entered the land, that they merely stated that the 4th, 5th, 6th and 7th Appellants informed them that the 1st, 2nd, and 3rd Appellants put them on the land, which amounts to hearsay evidence and not admissible.

It was further argued by the learned Appellants’ counsel that there must be an actual entry by the person interested. That constructive entry by servant acting on the order of his master is not an entry within the meaning of the Section 342 Penal Code Law, Laws of Kwara State. That the servant and not the master in such a case would be liable for the entry. He cited the NOTES ON THE PENAL CODE LAW (4TH EDITION) (1987) ANNOTED BY S.S. RICHARDSON A. O.,C.B.E.,M.A. (OXON), HON. LL.D (A.B.U).

He urged the Court to resolve the issue in favour of the Appellants.

By the Respondent’s written address dated 13th May, 2019 two issues were formulated by the Respondent for determination thus:
1. Whether from the peculiar circumstance of this Appeal, the Appellants can validly challenge the admissibility of Exhibit A1.
2. Whether or not the Respondent made out a prima facie case against the Appellants.

In arguing issue 1, the learned counsel for the Respondent stated that issue 1 formulated by both parties is premised majorly on the admissibility of Exhibit A1, based on the lower Court’s ruling dated 30th November, 2017. He urged the Court to note that, there is no appeal against that ruling and that the records of the trial Court is binding on this Court and the parties herein. He cited the case of ODU V. JARIGBE (2017) 4 NWLR part 1556 p. 445 at 462 C-D.

The learned counsel urged the Court to refuse the Appellant’s attempt to challenge the admissibility of EXHIBIT A1 without the filing of Notice of Appeal. He urged the Court to discountenance all the arguments advanced by the Appellants in their issue 1, he further urged the Court to answer his issue 1 in the negative.

In arguing issue 2, the learned counsel submitted that there is un-contradicted evidence that the 1st, 2nd, and 3rd Appellants knew clearly that the land does not belong to them, but yet went ahead to enter therein and encouraged the 4th, 5th, 6th, and 7th Appellants to do same and remain there even after being asked to vacate. The learned counsel for the Respondent submitted that the ingredients of the offence under Section 342 of the Penal Code Law, Laws of Kwara State were met and satisfied. He further submitted that the evidence led before the trial Court by the Respondent has sufficiently linked all the accused persons to the allegations contained in the complaint, thus making it imperative to call upon the Appellants to defend themselves.

On what amounts to a prima facie case, learned counsel relied on the case of EHINDERO V. FRN (2018) 5 NWLR part 1612 P.301 at 325 H-326 A, per Eko, JSC. On whether prima facie case is the same as proof beyond reasonable doubt, the learned counsel relied on the cases of ONAGORUWA V. STATE (1993) 7 NWLR (pt. 303) 49 at 82-83; ATOYEBI V. F.R.N (2018) 5 NWLR part 1612 P. 350 at 363 E.

Mr. Ogidiolu argued that with the evidence led so far, going by the minimum standard prescribed by the apex Court in the above case, a prima facie case has been made out against all the Appellants requiring them to be called upon to enter their defence. He urged the Court to so hold.

In the Appellants’ Reply to the Respondent’s Written Address dated 16th May, 2019. In response to issue one, Mr. Oyeyiola the learned counsel, stated that the Supreme Court has consistently set down the law as far as admissibility of evidence is concerned, that when a document is admitted it does not mean it constitutes evidence, particularly when it suffers from a legal defect as in the case of EXHIBIT A1.

The learned counsel in reply stated that, their argument is not against the fact of the admission of Exhibit A1 but against its evidential status and consideration in reaching a decision that the Respondent had made out a prima facie case. He cited: OMEGA BANK NIGERIA PLC V. O. B. C. LTD (2005) 1 SC 150; KALE V. COKER (1982) 12 SC 252; ETIM V. EKPE (1983) 1 SCNLR 120.

In response to issue 2, the learned counsel argued that contrary to the argument in paragraph 5:01, that ownership does not confer possession. That possession is a matter of fact which must be proved by evidence. He cited:ONWUKA V. EDIALA (1989) 1 NWLR (pt. 96) 182 at 187. He further stated that the Respondent led no evidence that he was in possession of the land in dispute.
The learned counsel urged this Court to allow the Appeal.

On the first issue, the Appellant’s counsel contended that EXHIBIT A1 is not legally admissible and ought not to have been admitted or if admitted ought to be devoid of any weight. The Respondent on his own argued that the ruling of the trial Court which admitted Exhibit A1 in evidence was not appealed against.

The law is trite that a conclusion or finding not appealed against is deemed correct until the contrary is shown. See: Biariko & Ors. V. Edeh-Ogwuile & Ors. (2001) LPELR – 779 (SC); Odiase v. Agho & Ors (1972) 1 All NLR (Pt.1) 170 at 176; Melifonwu v. Egbuji (1982) 9 S.C 145 at 165.
On that note, a party will not be heard on appeal on a particular finding or order of a lower Court against which he has not appealed. See DURBAR HOTEL PLC V ITYOUGH & ORS (2016) LPELR 42560 (SC); IJALE V LEVENTIS (1959) 4 F. S. C. 108.
I note that the Appellants did not challenge or appeal against the ruling of the trial Magistrate Court made on 30th November, 2017 admitting Exhibit A1 in evidence. The effect in law, is that the said ruling stands or subsists until set aside. See the cases of Skye Bank &Anor V. Akinpelu (2010) LPELR- 3073 (SC); Okuoja v. Ishola (1982) 7 S.C 314; (1987) 7 S.C. 147 (Reprint); Ejowhomu v. Chief Edok-EterMandilas Ltd. (1986) 9 S.C. 41 @ 47; Adejumo & 2 Ors. V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Iseru v. Catholic Bishop of Warri Diocese (1997) 4 SCNJ; 102 @ 115; Dr. Alakija & 2 Ors. v. Alhaji Abdulai (1998) 6 NWLR (Pt. 552) 1 @ 24; Leventis Technical v. Petrojessica Enterprises Ltd. (1999) 4 SCNJ 121 @ 127 (1999) 4 S.C. (Pt. 1) 66; Dabo v. Alhaji Abdulahi (2005) 7 NWLR (Pt. 923) 181; (2005) 2 SCNJ 76 @ 95; (2005) 2 S.C. (Pt. 1) 75 @ 91.
I hold that the ruling of the trial Magistrate Court on Exhibit A1, having not been appealed against is deemed accepted and remains binding on the parties.

On the evidential status of Exhibit A1 and its consideration in reaching a decision that the Respondent had made out a prima facie case; in a ruling of a no case submission, no weight is attached to evidence at that stage. The trial Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail. See:Daboh V. The State (1977) ALL NLR 146; Israel V. The State (2019) LPELR-46884 (CA). The consideration and the weight to be attached to Exhibit A1 at the stage of the No case submission ruling at the trial Court does not arise. I therefore hold that the lower Court rightly relied on Exhibit A1 to arrive at its decision to overrule the No Case Submission.
Issue 1 is resolved in favour of the Respondent.

On issue 2, whether or not the Respondent made out a prima facie case against the Appellants.

The Appellants were charged for Criminal Trespass, punishable under Section 348 of the Penal Code law, Laws of Kwara State. The said code defined Criminal Trespass in Section 342 thus:
“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy such person or with intent to commit an offence, is said to commit Criminal Trespass.”
Under Section 342 of the Penal Code Law, Laws of Kwara State, the ingredients which must be proved by the prosecution in order to obtain conviction are:
(a) (i) Unlawful entry into or upon a property in the possession of another;
(ii) Unlawfully remaining there
(b) An intention
(i) To commit an offence; or
(ii) To intimidate, insult or annoy the person in possession of the property.
In a book “Notes on the Penal Code”, 4th Edition, in which was annotated by Prof. S. S. Richarson, one time the Director of Institute of Administration, Ahmadu Bello University Zaria, the learned author on page 266 of the book along listing the ingredients of Criminal Trespass opined that the existence of bona fide claim of right ordinarily excludes the presumption of criminal intent but a person may attempt to enforce his right in a wrong way, e.g. by using unnecessary force or intending to wrongfully restrain the person in possession. He went further to define the word “ANNOY” to mean annoyance which would reasonably affect an ordinary person not what would specifically and exclusively annoy a particular individual.

In evidence at the trial Court, it is clear that the Appellants and Respondent had previous land dispute which was settled by the then Emir and the document of settlement was certified at the Sharia Court. In evidence is the fact that River Imu stands as boundary at the east while River Olodo bounds the parties west ward. The Respondents also gave evidence that the Appellants left their own part of the land and entered into their land to farm. That the 4th to 7th Appellants who were hired by the 1st to 3rd Respondents were let into the farm by them. That the 4th to 7th Respondents refused to leave the land when approached by the guards of the Respondent insisting they could only leave the land on the instruction of the 1st to 3rd Appellants.

The fact stated above in a nutshell is the evidence upon which the Appellants urged the trial Court to hold that they had no case to answer, which the trial Court overruled.

In my view therefore, the trial Magistrate Court was right in calling upon the Appellants to enter their defence owing to the evidence so far adduced. I agree with the trial Court’s stance in overruling the No Case Submission made by the Appellants since the trial Court at that stage was not legally bound to evaluate the evidence before it, as doing so would have been preemptive.

Accordingly, I hold that the Appellants have some questions to answer at the trial Court and therefore the No Case Submission was rightly overruled. See: Ubanatu V. COP (supra).
I resolve issue 2 in favour of the Respondent.
Having resolved the two issues in favour of the Respondent, the appeal therefore is bereft of merit, the same fails and is hereby dismissed.

In All:
I set aside the decision of the Appellate Session of the High Court of Kwara State, delivered on 5th July, 2019, in Appeal No: KWS/11A/2018; declaring the appeal before it incompetent.
I uphold the decision of the trial Magistrate Court overruling the Appellants’ No Case Submission.
I make Order remitting the case file to the Hon. Chief Judge of Kwara State, to be sent back to the trial Magistrate Court for continuation of hearing.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of a preview of the judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I agree with the reasoning and conclusion contained therein.

I also dismiss the appeal for being benefit of merit.

I remit this case to the Hon. Chief Judge of Kwara State for onward transmission to the trial Magistrate Court for continuation of hearing.

IBRAHIM SHATA BDLIYA, J.C.A.: This is an appeal against the judgment of the High Court of Justice, Kwara State, (Appellate Session), holden at Ilorin, delivered on the 5th of July, 2019, in suit No: Kws/11A/2018. I had the privilege of reading in advance the leading judgment of my Lord, UCHECHUKWU ONYEMENAM, JCA. I am in full agreement with my Lord’s reasoning and conclusion that the appeal in devoid of merit. I have nothing useful to contribute to the erudite judgment, other than to adopt my Lord’s reasoning and conclusion arrived at, (with profound gratitude) as mine, and resultantly, to dismiss the appeal. I also agree with the orders made in the lead judgment.

Appearances:

J. O. BARIKI holding the brief of DURODOLUWA OYEYIOLA For Appellant(s)

A. M. MOHAMMED holding the brief of OLUGBENGA S. OGIDIOLU For Respondent(s)