SYLVESTER EZE V. COMMISSIONER OF POLICE (BENUE STATE)
(2012)LCN/5802(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/J/185C/2008
RATIO
APPEAL: SITUATION WHERE AN APPEAL WILL LIE AS OF RIGHT
an appeal also lies as of right from the decision of a Federal or State High Court to this Court where the decision in a civil or criminal cause involves questions of law alone- therefore once it is clear on the face of the decision that it is final in nature an appeal shall lie as of right. See MADUABUCHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (Pt. 989) 475 at 492 B-E as per Aderemi, JCA (as he then was). PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
APPEAL: WHETHER LEAVE OF COURT IS REQUIRED WHERE AN APPEAL INVOLVES GROUNDS OF APPEAL CONTAINING QUESTIONS OF MIXED LAW AND FACTS
According to the decisions in OBIJURU V. OZIMS (1985) 2 NWLR (Pt. 6) 167 and ERISI V. IDIKA (1987) 4 NWLR (Pt. 66) 503 where an appeal involves grounds of appeal containing questions of mixed law and facts it can only be filed after leave of the lower Court or appellate Court had been duly sought and obtained. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
Before Their Lordships
MUHAMMED LADAN TSAMIYAJustice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMELJustice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
Between
SYLVESTER EZEAppellant(s)
AND
COMMISSIONER OF POLICE (BENUE STATE)Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court delivered on 16/10/2006 in Appeal No: MHC/6CA/2006, while sitting in the course of its appellate jurisdiction against the decision of the Chief Magistrate Court, Aliade in case no: CMCA/76/2004. The Appellant herein was the Accused person before the Chief Magistrate Court. He was arraigned on a one count charge of theft of money in the sum of N732,950 = contrary to S.287 of the Penal Code Law of Benue State. During the trial, he pleaded not guilty. To prove his guilt, the prosecution called and relied on the evidence of 4 witnesses.
At the close of the case for the prosecution, learned Counsel made a no case submission on behalf of the Appellant. The no case submission was overruled. In his ruling, overruling the no case submission, the learned Senior Magistrate, found that though a prima facie case of theft had not been established against the Appellant, he went further to hold that upon his review and consideration of the evidence before him a prima facie case of criminal breach of trust had been established against the Appellant. Upon this view, and while relying on some powers enabling him in that behalf under the Criminal Procedure Code Law of Benue State, the learned Magistrate proceeded to charge the Appellant with the offence of criminal breach of trust contrary to S:312 of the Penal Code Law of Benue State.
Against this decision and action of the Magistrate court, the Appellant appealed to the Benue State High Court in a notice of appeal dated 14/11/2005 but filed on 23/11/05. That appeal was predicated on 5 grounds of appeal with very copious particulars. At the hearing of that appeal, learned Counsel abandoned grounds 1-4 of the grounds of appeal and proceeded to argue ground 5 only. After hearing of the appeal, the 2 learned judges of the panel dismissed the appeal for lacking in merit.
The Appellant was dissatisfied with the order of the High Court dismissing his appeal. He appealed to this Court in a notice of appeal dated and filed on 26-10-2006. It contains 3 grounds of appeal.
To argue the appeal before this Court learned Counsel on behalf of the Appellant formulated 3 issues for determination.
They are:-
1. Whether the lower Court was right and not in breach of the principles of natural justice to wit: fair hearing: to have refused to hear Appellant’s full arguments in support of grounds 1, 2, 3 and 4 of Appellants Notice of Appeal before it when it compelled and prevailed upon Appellant’s Counsel to withdraw and/or abandon them when the Respondent did not raise any objection to their validity or competency.
2. Whether the lower Court was not in breach of the principles of natural justice. To wit: fair hearing. When it ordered that Appellant should go back to the trial Chief Magistrate Court. Aliade and continue with his trial thereat when the said trial Chief Magistrate Court had already prejudged so many issues which are prejudicial to the Appellant in its lengthy ruling on the no-case submission.
3. Whether the decision of the Lower Court to the effect that Appellant should go back to the trial Chief
Magistrate Court Aliade and continue to face trial for the offence of criminal breach of trust contrary to Section 312 of the Penal Code is right and proper having regard to the evidence adduced.
In response, learned Counsel on behalf of the Respondent, also formulated the following 3 issues. They are:-
1. Whether from the circumstances of the case the lower Court is in Breach of the principle of Natural Justice, to wit: Appellant’s right to fair hearing when Appellant voluntarily withdrew grounds 1, 2, 3, and 4 of his appeal.
2. Whether Lower Court was right in upholding the ruling of the trial Magistrate and that same is not prejudicial to the defence of the Appellant.
3. Whether the Lower Court was right in dismissing the Appellant’s appeal and in ordering the continuation of trial before the some Magistrate’s Court.
To respond to the issues argued in the Respondent’s brief of argument, learned Counsel to the Appellant filed a reply brief.
At the hearing of the appeal, learned Counsel to the Appellant Mr. C. O. Alechenu, appeared with learned Counsel Mrs. E. R. Terngu. No Counsel appeared on behalf of the Respondent. Upon a check at the Registry of this Court it was discovered that the Respondent had been duly notified of the hearing date via a hearing notice duly served on 23/03/2012. Against this background, hearing of the appeal proceeded as scheduled. Because the Respondent had duly filed a brief of argument, the appeal was deemed to have been duly argued by the Respondent upon it’s filed and served brief of argument.
Learned Counsel to the Appellant identified, adopted and relied on his briefs and urged on the Court to dismiss the notice of preliminary objection and proceed to take this appeal on its merits.
And for the appeal itself, he urged on us to allow it and set aside the order of the lower Court dismissing the Appellant’s appeal.
In arguing the preliminary objection, learned Counsel to the Respondent, referred to the provisions of sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 and explained that appeals as of right are governed by S.241. He added that appeals from the Federal or States High Courts to this Court shall not lie as of right where such Courts deliver interlocutory decisions and while exercising their appellate jurisdictions. Against this explanation, learned Counsel submitted that this appeal does not fall within the categories of appeals provided under S.241, and according to learned Counsel, this therefore makes it to be one of those appeals contemplated and envisaged by S.242 and to that extent leave was necessary for this appeal to be brought. He referred to the case of IMPRESIT BAKALORI V. ABDULAZEEZ (2003) 10 FR 246 E-H and 257-258 A – B.
While referring to S.25 of the Court of Appeal Act, learned Counsel pointed out that there is no provision for interlocutory appeals in criminal matters. Learned Counsel emphasized that the Appellant did not seek for nor obtained the leave of the lower Court or this Court before he brought this appeal as required by S.242 of the 1999 Constitution or S.25(2)(a) of the Court of Appeal Act. Against this background learned Counsel maintained and submitted that this appeal is incompetent having been brought without the requisite leave. He urged this Court to so hold and proceed to accordingly strike it out.
In his response learned Counsel to the Appellant explained that the order and judgment of the lower Court appealed against is a decision within the meaning of section 241(1)(b) of the Constitution. According to learned Counsel, all appeals within the meaning and under all the circumstances outlined in S.241 are brought as of right without the need for leave of the lower Court or this Court as contemplated and envisaged by S.242. He added that the grounds of appeal in this matter involve questions of law alone. He referred to the 2nd and 3rd grounds of appeal and remarked that they are a complaint of denial fair hearing in the course of hearing of the appeal of the lower Court. Learned Counsel further referred to S.241(1)(d) in conjunction with S.36(1) of the Constitution and maintained that the entire appeal is based on complaint of violation of the Appellant’s right to fair hearing. He added that this appeal can be brought as of right irrespective of whether the decision was final or interlocutory. He referred to the decision in ASHIRU V. AYOADE (2006) 2 FWLR (Pt. 318) 3385 at 3398 where it was held that where an appeal is based upon an alleged violation of chapter IV of the Constitution then the appeal lies as of right and no leave would be required.
In another submission, learned Counsel pointed out that sections 25(2)(a) of the Court of Appeal Act 1976 and S.242 of the Constitution do not assist the position of the Respondent because S.242(1) can only apply subject to S. 241. He urged this Court to so hold. While referring to the earlier submission of learned Counsel to the Respondent that the decision of the lower Court in this appeal is an interlocutory one, and maintained that this was on erroneous submission and urged the Court to disregard it because the said decision was final as there was nothing left before that Court to decide between the parties. They referred to the cases of UNION BANK OF NIGERIA PLC. V. BONEY MARCUS IND. LTD & 2 ORS (2005) 13 NWLR (Pt. 943) 654 at 657 and ALOR and ANOR V. NGENE & ORS (2007) 2 SC 1 at 3 and urged this Court to dismiss the notice of preliminary objection and proceed to decide this appeal on the merit.
In deciding this preliminary objection, it is necessary to consider, the peculiar circumstances of this matter against the applicable settled principles of law. However, before going into those details, I need to underscore a, remarkable feature of this matter and it is that the decision on appeal was that of a State High Court in the exercise of its appellate jurisdiction. An understanding of the nature of the essential features of the decision on appeal is also important i.e whether the decision is on interlocutory or final decision, as well as the nature and types of grounds of appeal.
I must point out that both learned Counsel in this appeal failed to assist the Court meaningfully well. I must point out my displeasure. Learned Counsel to the Respondent relied heavily on the case of IMPRESIT BAKALORI V. ABULAZEEZ (supra) this citation and reference appears to be from an obscure or non-existent Law Report. My modest effort to trace such Law Report did not yield any dividend. On his own part learned Counsel to the Appellant relied heavily on the case of ASHIRU V. AYOADE (Supra) and anchored his most crucial argument and submission on it. It is either a non-existent case or the citation that Counsel gave in both of his brief or in the list of authorities is absolutely wrong and effectively misleading. All my efforts to locate this authority using the citation provided by learned counsel in part 318 of All FWLR remained in vain. It is that bad.
Be that as it may, according to the decision in AQUA LTD V. ONDO STATE SPORTS COUNCIL, (1988) NWLR (Pt. 91) 662 S.221(1) of the 1999 Constitution, a section pari materia to the current S.242(1) of the 1999 Constitution, an appeal lies from the decision of the Federal or State High Court to this Court either with the leave of the High Court or this Court in circumstances involving interlocutory decisions on facts or mixed law and facts or final decisions in double appeals on mixed law and facts and facts alone.
The above scenario can be contrasted with the circumstances provided under s.241(1) which allows for an appeal to be brought as of right when the judgment on appeal involves a decision of the High Court sitting as a Court of first instance and making a final decision in any criminal or civil matter. Added to this, an appeal also lies as of right from the decision of a Federal or State High Court to this Court where the decision in a civil or criminal cause involves questions of law alone- therefore once it is clear on the face of the decision that it is final in nature an appeal shall lie as of right. See MADUABUCHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (Pt. 989) 475 at 492 B-E as per Aderemi, JCA (as he then was).
For proper guidance and good effect this appeal is founded on these 3 grounds (shorn of their particulars) they are:-
1. The decision of the Benue State High Court Makurdi in its appellate jurisdiction cannot be supported having regard to the evidence adduced.
2. The learned Justice of the Benue State High Court Makurdi sitting in its appellate jurisdiction erred in law when they foiled and/or refused to receive Appellant’s oral argument in support of his grounds 1, 2, 3 and 4 respectively of his grounds of appeal before them and thus compelling Appellant’s learned Counsel to withdraw same without being heard when the said grounds of appeal constitute good and competent grounds of appeal and this infringes and violates Appellant’s Constitutional right to a fair hearing as guaranteed by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 and thereby occasioning a grave miscarriage of justice. (See attached Supporting-Affidavit).
3. The learned justices of the Benue State High Court Makurdi sitting in its appellate jurisdiction erred in law when they proceeded to dismiss Appellant’s appeal and held that Appellant should go back before the Chief Magistrate Court. Aliade to face his trial when the said Chief Magistrate Court, Aliade had already prejudged vital issues and made prejudicial observations against the Appellant in its earlier ruling in the no-case submission and which tantamount to denying the Appellant a fair hearing contrary to section 36(1), (2) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 and this has occasioned a gross miscarriage of justice.
I have carefully considered the 3 grounds of appeal herein. While grounds 2 and 3 complain about alleged violation of the constitutionally guaranteed right to fair hearing, ground one complains about the judgment of the lower Court not being supported by the evidence adduced. If these 3 grounds of appeal were to be taken on their face value without more it would easily be seen that grounds 2 and 3 raise questions of law pursuant to S.241(1)(d) of the 1999 Constitution and ground one on the other hand would be seen to have raised issues of fact. Taking all the grounds together, there will no doubt appeal to be an appeal on mixed law and facts. What determines the nature of a ground of appeal and whether it is of law or fact alone or mixed law and fact is the real essence of the ground. It is not to be determined based on the whims and caprices of Counsel. Where Counsel is not sure whether a ground of appeal is that of law or mixed law and fact, it is better and prudent for him to err on the side of caution to seek and obtain the requisite leave to avoid the unpleasant consequences of such ground being found to require leave when none had been procured.
According to the decisions in OBIJURU V. OZIMS (1985) 2 NWLR (Pt. 6) 167 and ERISI V. IDIKA (1987) 4 NWLR (Pt. 66) 503 where an appeal involves grounds of appeal containing questions of mixed law and facts it can only be filed after leave of the lower Court or appellate Court had been duly sought and obtained. Against this background the arguments of learned Counsel to the Appellant that this appeal involves grounds of appeal on questions of law alone cannot be sustained or upheld.
The notice of preliminary objection challenging the competence of this appeal for having been filed without the leave of the Benue State High Court or this Court must in the circumstance be upheld and it is hereby upheld and sustained. This appeal is incompetent. It is hereby struck out.
MOHAMMED LADAN TSAMIYA, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Ali Abubakar Babandi Gumel, JCA. I agree that the preliminary objection in the circumstance of the case ought to be upheld and it is hereby upheld. I find the appeal incompetent and it is hereby struck out.
Appearances
Mr. C. O. Alechenu with Mrs. E. R. TernguFor Appellant
AND
Respondent not represented by counselFor Respondent
