AMAYE v. COP
(2020)LCN/14898(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/B/192CA/2019
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
SHOLA AMAYE APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
RATIO
APPEAL: RULES ON NATURE OF GROUNDS OF APPEAL
To be brief, the law is settled that:
1. “A ground of appeal which complains of a misunderstanding by the lower Court of the law on misapplication of the law to the facts already proved or admitted is a ground of law.”
2. “A ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact”.
3. “If the group of complains that the judgment of the trial Court is against the weight of evidence is a ground of fact”.
Per Rhodes-Vivour, JSC in Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 4 NWLR (Pt. 1533) 458 at 478 – 479. See also NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148. PER ADUMEIN, J.C.A.
APPEAL: CLASSIFICATION OF GROUNDS OF APPEAL
For the sake of emphasis, the Supreme Court has given a very comprehensive guide to the classification of grounds of appeal and how to determine the nature of a ground of appeal. In Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (supra) at 477 – 478, per Rhodes-Vivour, JSC; the Supreme Court stated as follows:
“In Ogbechie & Ors v. Onochie & Ors (supra) this Court adopted the explanation and the way to identify grounds of appeal by the authors of the Law Quarterly Review Vol. 100 of October 1984. The author said:
1. If the tribunal purports to find that particular events occurred although it is seized of no admissible evidence that the events did not in fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal, in other words, it is a question of fact.
2. If the tribunal approached the construction of a legal term art in a statute on the erroneous basis that the statutory, wording bears its ordinary meaning, it is a question of law.
3. If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
4. If the tribunal, though correctly treating a statutory word or phrase as a legal term of art, errs in elucidation of the word or phrase, it is a question of law.
5. If the tribunal errs on its conclusion (that is, in applying the law to the facts) in a case where this process require the skill of a trained lawyer, it is error of law.
6. If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunals conclusions may be one of the possible resolution, yet it may be a conclusion which the superior Court (has it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law not intervene.”
See further Ogbechie & Ors. v. Onochie & Ors. (1986) 2 NWLR (Pt. 23) 484 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718. PER ADUMEIN, J.C.A.
APPEAL: EFFECT OF AN APPEAL FILED WITHOUT LEAVE OF COURT WHERE LEAVE IS REQUIRED
It is now settled law that where leave is required for a party to appeal and no leave was first obtained, the legal consequence is that a notice of appeal so filed without leave of Court is null and void and of no effect. Any appeal premised on such a purported notice of appeal is incompetent and it is liable to be struck out. See Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 137; Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) 1093; (2007) 6 SC (Pt. 1) 35; Kashadadi v. Noma (2007) 6 SC (Pt. I) 70; Contract Resource Nig. Ltd. v. U.B.A. PLC (2011) 6 – 7 SC (Pt. II) 150; Odedo v. Oguebego (2015) 13 NWLR (Pt.1476) 229 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant and two other defendants, namely: Bola Amaye and Fome Amaye, were arraigned before the Chief Magistrate Court of Edo State, sitting at Oredo, Benin City and they were charged with the following offences:
“COUNT I
That you Fome Amaye ‘m’ with Bola Amaye ‘m’ and Shola Amaye ‘m’, on or about the 10th day of February, 2005 at No. 4, Ikeke Avenue, off Agho Street, Benin City, in the Oredo Magisterial District, did conspire among yourselves to commit felony, to wit: stealing and thereby committed an offence punishable under Section 516 of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State of Nigeria 1976 now applicable to Edo State.
COUNT II
That you Fome Amaye ‘m’ with Bola Amaye ‘m’ and Shola Amaye ‘m’, on the same date, time and place in the aforementioned Magisterial District stole a big brown envelope containing the title documents to the properties of Engr. Samuel Diden Yalaju-Amaye now dead, and thereby committed an offence punishable under
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Section 390 (9) of the Criminal Code, Cap. 48. Vol. II, Laws of the defunct Bendel State of Nigeria, 1976 now applicable to Edo State.
COUNT III
That you Fome Amaye ‘m’ with Bola Amaye ‘m’ and Shola Amaye ‘m’, on the same date, time and place in the aforementioned Magisterial District with intent to defraud, concealed the documents which are evidence of the title to the estate in land of Engr. Sameul Diben Yalaju-Amaye now dead, and thereby committed an offence punishable under Section 393 of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State of Nigeria 1976 now applicable to Edo State.”
The appellant and his co-defendants pleaded not guilty and the case was tried. At the close of the prosecution’s case, the appellant made a no-case-submission. In a ruling, delivered on the 5th day of January, 2017; the learned trial Chief Magistrate (Grade I) overruled the no-case-submission and called upon the appellant to enter his defence, as a prima facie case had been made against him.
Being dissatisfied with the decision of the Chief Magistrate’s Court, the appellant appealed to the
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High Court of Edo State. In a judgment, delivered on the 23rd day of January, 2019, the High Court of Edo State, holden at Benin City, per Hon. Justice U. I. Erameh, struck out the appellant’s appeal for “lacking in merit”. This appeal is against the said judgment and it is anchored on the notice of appeal filed on 08/02/2019.
Counsel for the appellant and the respondent filed and exchanged briefs.
RESPONDENT’S PRELIMINARY OBJECTION
The learned counsel for the respondent filed a notice of preliminary objection on 11/02/2020 and proffered arguments in the respondent’s brief filed on 11/02/2020. The respondent’s preliminary objection is “that the Honourable Court lacks jurisdiction to entertain the appeal as same is incompetent and liable to be struck out” on the following grounds:
“1. The appeal is against a final decision of the High Court of Edo State sitting its appellate jurisdiction over the decision of the Oredo Magistrate Court, Benin City, Edo State.
2. By the provision of Section 242 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
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leave of the lower Court or this Honourable Court is required to appeal against a final decision of the High Court of Edo State sitting its appellate jurisdiction over the decision of the Oredo Magistrates Court, Benin City, Edo State.
3. The failure of the appellant to obtain the requisite leave before filing this appeal renders same incompetent and liable to be struck out for lack of jurisdiction to entertain same.”
Learned counsel for the respondent, Jonathan Ekperusi, Esq. argued that by Section 242 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), leave of Court is required to appeal against a decision of the lower Court, sitting in its appellate jurisdiction. Counsel relied on the case of Oshianie v. Erhunmwunse (1993) 2 NWLR (Pt. 283) 603 and contended that “where leave is required to file an appeal, the filing of a Notice of Appeal without obtaining the requisite leave renders the entire appeal incompetent and invalid”.
Mr. Sanchez Agumor, learned counsel for the appellant argued in the appellant’s reply brief filed on 11/02/2020, amongst other things, that
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Section 242 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 17 rules 1, 2 and 6 of the Court of Appeal Rules, 2016 “are not applicable to this appeal” because “the appeal, “raises questions of law for the determination of this Honourable Court and nothing less” and “no leave is required before it can be brought”.
In this case, the parties are ad idem that this appeal is from a decision of the High Court of Edo State, sitting in its appellate jurisdiction.
The right to appeal to this Court, the Court of Appeal, is governed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Appeals as of right, from the High Court to the Court of Appeal, are provided for by Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus:
“241-(1) An appeal shall be from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court
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sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions or any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) 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;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action
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determining liability; and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
On the other hand, appeals with leave are provided for by Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which states as follows:
“242-(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High
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Court or the Court of Appeal.”
From the arguments of the parties, the only question for this Court to answer is whether or not the appellant’s grounds of appeal involve questions of law alone as to confer him with a right to appeal under Section 241 (1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The appellant’s notice of appeal spans pages 395 to 396 of the record and its contains the following four grounds:
“GROUND ONE
The learned High Court Judge erred in law when he held that from the records of appeal, the appellant has a case to answer.
PARTICULARS OF ERROR
1. The learned High Court Judge failed to point out the part of the record relied upon.
2. There is nothing in the records to show that the appellant has a case to answer at the Magistrate Court.
3. The decision of the learned High Court Judge is based on the facts supplied by the respondent’s counsel in his brief which facts were not part of the evidence before the Magistrate Court.
GROUND TWO
The learned High Court Judge erred in law when he held that the Prosecution has made out a prima
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facie case against the appellant to warrant an answer from him.
PARTICULARS OF ERROR
1. The decision is tantamount to asking the appellant to prove his innocence.
(2) The report made in 2005 upon which the charge was filed did not reveal any offence against the appellant.
(3) There is no shred of evidence linking the appellant to the alleged crime.
(4) The rightful owner of the alleged missing documents who is in a better position to testify in respect of the alleged offence died in October 2005.
(5) the case made out by the Prosecution was manifestly unreliable.
(6) The case of the Prosecution was completely discredited on cross-examination.
(7) The decision of the High Court is based on assumption.
GROUND THREE
The learned High Court Judge erred in law when he awarded N50,000 (Fifty Thousand Naira) cost in favour of the respondent.
PARTICULARS OF ERROR
1. The respondent did not ask for cost in the whole of the proceedings.
(2) The cost awarded is arbitrary.
(3) The appellant exercised his constitutional right of appeal and the cost is punitive.
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GROUND FOUR
The decision of the learned High Court Judge is against the weight of evidence.”
The grounds of appeal reproduced above, are ex facie clear that they are not purely grounds of law. At best, they are grounds of mixture of facts and law. To be brief, the law is settled that:
1. “A ground of appeal which complains of a misunderstanding by the lower Court of the law on misapplication of the law to the facts already proved or admitted is a ground of law.”
2. “A ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact”.
3. “If the group of complains that the judgment of the trial Court is against the weight of evidence is a ground of fact”.
Per Rhodes-Vivour, JSC in Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 4 NWLR (Pt. 1533) 458 at 478 – 479. See also NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148.
The appellant’s complaints, as can be gleaned from his four grounds of appeal and the particulars thereto, are that the lower Court was wrong to have confirmed the finding of
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the trial Court that prima facie evidence had been adduced by the prosecution against the appellant warranting him to make his defence. The complaints that: the lower Court failed to point out the part of the record relied upon; there is nothing on record to show that the appellant has a case to answer; the decision of the Court is based on facts supplied by the respondent’s counsel; the case made out by the Prosecution was manifestly unreliable; and the decision is against the weight of evidence, are purely of facts or of mixed facts and law.
The appellant’s grounds of appeal do not relate to improper understanding of the law by the lower Court or a wrong application of the law by the lower Court to already admitted, established or proven facts. They are obviously not grounds of law.
For the sake of emphasis, the Supreme Court has given a very comprehensive guide to the classification of grounds of appeal and how to determine the nature of a ground of appeal. In Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (supra) at 477 – 478, per Rhodes-Vivour, JSC; the Supreme Court stated as
11
follows:
“In Ogbechie & Ors v. Onochie & Ors (supra), this Court adopted the explanation and the way to identify grounds of appeal by the authors of the Law Quarterly Review Vol. 100 of October 1984. The author said:
1. If the tribunal purports to find that particular events occurred although it is seized of no admissible evidence that the events did not in fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal, in other words, it is a question of fact.
2. If the tribunal approached the construction of a legal term art in a statute on the erroneous basis that the statutory, wording bears its ordinary meaning, it is a question of law.
3. If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
4. If the tribunal, though correctly treating a statutory word or phrase as a legal term of art, errs in elucidation of the word or phrase, it is a question of law.
5. If the tribunal errs on its conclusion (that is, in
12
applying the law to the facts) in a case where this process require the skill of a trained lawyer, it is error of law.
6. If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunals conclusions may be one of the possible resolution, yet it may be a conclusion which the superior Court (has it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law not intervene.”
See further Ogbechie & Ors. v. Onochie & Ors. (1986) 2 NWLR (Pt. 23) 484 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
In view of the fact that this appeal is from a decision of the High Court of Edo State, sitting in its appellate jurisdiction and not in its original
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jurisdiction, and the four grounds of appeal do not involve questions of law alone, the appellant could only have appealed to this Court under Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which requires him to have first obtained leave of the lower Court or this Court.
It is now settled law that where leave is required for a party to appeal and no leave was obtained, the legal consequence is that a notice of appeal so filed without leave of Court is null and void and of no effect. Any appeal premised on such a purported notice of appeal is incompetent and it is liable to be struck out. See Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 137; Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) 1093; (2007) 6 SC (Pt. 1) 35; Kashadadi v. Noma (2007) 6 SC (Pt. I) 70; Contract Resource Nig. Ltd. v. U.B.A. PLC (2011) 6 – 7 SC (Pt. II) 150; Odedo v. Oguebego (2015) 13 NWLR (Pt.1476) 229 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201.
The conclusion of the matter is that the respondent’s preliminary
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objection is very meritorious and I uphold it.
Consequently, this appeal is hereby struck out for being grossly incompetent.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment Of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. just delivered. I am in complete agreement with the adroit reasoning leading to the inescapable conclusions reached therein. I therefore. adopt the same as mine and I have nothing more to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the lead judgment that the appeal is incompetent and it should be struck out.
Appeal is struck out.
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Appearances:
E. F. Agumor, Esq. For Appellant(s)
Jonathan Ekperusi, Esq. For Respondent(s)
