COMMISSIONER OF POLICE v. DR S.I. UROGHIDE
(2017)LCN/9454(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of February, 2017
CA/B/302/2013
RATIO
APPEAL: THE RIGHT OF APPEAL OF PARTIES FROM MAGISTRATE COURT
At this juncture, I have to reiterate that Section 66 of the Magistrates Court Law is in my view an attempt to frustrate the actualization of a persons right of appeal against a conviction by a Magistrate Court. A person cautioned and discharged has a conviction hanging over his head. But happily with the provisions of Section 272 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, Section 66 of the Magistrate Courts Law Cap 97 Laws of Bendel State of Nigeria 1976 is a nullity because its provisions are inconsistent with the provisions of the 1999 Constitution (as amended).
The 1999 Constitution of the Federal Republic of Nigeria (as amended) is supreme over any other law in Nigeria and any law which is inconsistent with the provisions of the said 1999 Constitution shall to that extent of its inconsistency be void.
See Section 1 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
For ease of reference, Section 272(1) & (2) of the 1999 Constitution (as amended) provides as follows:-
272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this Section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction. (underlining for emphasis)
In NIGERIA ARMY VS YAKUBU (2013) 8 NWLR Part 1355 Page 1 at 26, M.D. Mohammed JSC held among others thus:-
The Courts position remains that the right of appeal being constitutional cannot be easily whittled down by technicality procedural or interpretative means. Being the supreme law of this Nation, the Constitution overides all other laws.
He went further that Where any law stands in conflict with the clear provisions of the Constitution on which a persons right of appeal hinges, the duty of a reasonable Court or tribunal would be to interprete or apply the act in such a way as to bring it in line with the letters and intendment of the Constitution. Any law (in parenthesis) used in the above quoted decision of the Supreme Court include the Magistrates Court Law which the Learned Senior Counsel for the Appellant contended has taken away the Respondents right of appeal against his conviction, caution and discharge.
See also the case of:- DURU VS F.R.N. (2013) 6 NWLR Part 1351 Page 441 at 458. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES:
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
COMMISSIONER OF POLICE – Appellant(s)
AND
DR. S.I. UROGHIDE – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Ruling of the High Court of Justice, Edo State in Suit No: B/7CA/2012 COMMISSIONER OF POLICE VS DR. S. I. UROGHIDE delivered on the 19th day of November 2012 wherein the lower Court dismissed the application of the Appellant which prayed for an order to strike out the Respondents appeal for being incompetent and an abuse of process.
Briefly, the facts of the case are that the Respondent who is a Benin based Legal Practitioner was charged before a Benin Magistrate Court with the offences of conspiracy and publishing defamatory matter.
At the end of the trial, the Respondent was discharged and acquitted in the conspiracy charge but convicted on the charge of publishing defamatory matter. He was then cautioned and discharged in the said second count.
The Respondent then filed an appeal against the conviction and caution.
The Appellant filed an application at the lower Court praying that the appeal by the Respondent be struck out for being incompetent and an abuse of Court process on the following grounds:-
1
(1) The Appellant has no legal right of appeal against his conviction under Section 66 of the Magistrates Court Law.
(2) The appeal is incompetent and an abuse of process.
In his ruling, the learned trial Judge dismissed the application of the Appellant.
The Appellant, being dissatisfied with the Ruling of the lower Court appealed to this Court.
The Learned Counsel for the Appellant formulated a lone issue for the determination of the Appeal. The issue is set out as follows:-
Whether the Court below has jurisdiction to entertain the appeal of the Respondent having regard to the state of the law.
The Learned Counsel for the Respondent in his own case also formulated an issue for the determination of this appeal. The said issue is set out as follows:-
Whether Section 66 of the Magistrates Court Law can still stand in the face of the provision of Section 272(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) being the supreme law of the country.
At the hearing of the appeal on 16th day of November 2016, the Learned Senior Counsel for the
2
Appellant stated that the appeal is against the Ruling of the lower Court i.e Edo State High Court delivered on 19th November 2012. The Appellant filed the notice of appeal on 23/11/2012. The record of appeal was transmitted to this Court on 12/7/2013 out of time but was deemed as properly transmitted on 28/2/2014.
The Appellants brief of argument was filed on 17/7/2013 but it was amended and the Amended Appellants Brief of Argument was deemed as properly filed on 28/2/2014.
The Learned Senior Counsel for the Appellant adopted the said Appellants Amended Brief of Argument as his argument in urging that the appeal be allowed.
The Learned Counsel for the Respondent referred to the Respondents brief of argument filed on 6/8/2013. The said brief was deemed as properly filed on 16/11/2016.
He adopted the Respondents brief of argument in urging that the appeal be dismissed.
I have carefully examined the issues formulated for the determination of this appeal by counsel for the parties. I am of the view that the issues are identical but the issue formulated on behalf of the Respondent is considered relevant
3
in the determination of the appeal. I will therefore rely on the said issue.
ISSUE FOR THE DETERMINATION OF THE APPEAL
Whether Section 66 of the Magistrates Court Law can still stand in the face of the provisions of Section 272 (1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) being the Supreme Law of the country.
The Learned Senior Counsel for the Appellant submitted that the lower Court has no jurisdiction to entertain the appeal of the Respondent. This according to him is because the Respondent has no right of appeal under the law having being merely cautioned and discharged.
He went further in his submission that there is no right of appeal from a decision of a Court unless it is conferred by a statute. He relied on the case of:- ODOFIN VS AGU (1992) 2 NWLR Part 225 Page 539. He also referred to Section 66 of the Magistrate Courts Law Cap 97, Laws of Bendel State of Nigeria applicable to Edo State. And the following cases:
– OKOJIE VS INSPECTOR-GENERAL OF POLICE (1965) ALL NLR (Reprint) page 636
– ASAOLU VS C.O.P. (1981) 2 NCR Page 188.
Learned Senior Counsel for the Appellant
4
also submitted that both the Supreme Court and Court of Appeal are entitled to follow and adopt the decision of the lower Court although such decision is not binding on them. He referred to the following cases:-
– OKOLI VS THE STATE (1992) 6 NWLR Part 247 Page 381
– ABASI VS STATE (1992) 8 NWLR Part 260 Page 383 at 396 G – H
The Learned Senior Counsel for the Appellant went further in his submission that the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) dealing with the right of appeal is not applicable to this matter because that provision is related to appeal from a decision of the High Court. He contended that the appeal of the Respondent is governed solely by the provisions of the Magistrates Court Law.
He finally urged that this issue be resolved in favour of the Appellant and against the Respondent. He also urged that the appeal of the Respondent be struck out.
In his response, the Learned Counsel for the Respondent submitted that the Magistrate Courts Law is a creation of statute by virtue of Section 4(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He
5
referred to the case of NIGERIA ARMY VS YAKUBU (2013) 8 NWLR Part 1355 Page 1 at 26.
Learned Counsel for the Respondent also referred to Section 272 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and submitted that the right of appeal of the Respondent against his conviction by a Benin Magistrate Court is guaranteed. It cannot be taken away by Section 66 of the Magistrate Court Law which is an inferior legislation.
He urged that this appeal be dismissed.
The Learned Senior Counsel for the Appellant contended that the lower Court lacked the jurisdiction to entertain the appeal of the Respondent since he was merely cautioned and discharged. He relied on Section 66 of the Magistrates Courts Law Cap 97, Laws of Bendel State of Nigeria applicable to Edo State as follows:-
66. Any person aggrieved by a conviction or order by a Magistrate in a criminal case in respect of any charge to which he pleaded not guilty or he did not admit the truth may appeal to the Appeal Court from such conviction.
(a) In respect of any such conviction for an offence punishable by fine and not by
6
imprisonment other than a sentence of imprisonment imposed on default of payment of fine, where the fine imposed does not exceed the sum of ten Naira.
(b) Where the order does not relate to an amount or thing to the value of ten Naira and upwards.
At this juncture, I have to reiterate that Section 66 of the Magistrates Court Law is in my view an attempt to frustrate the actualization of a persons right of appeal against a conviction by a Magistrate Court. A person cautioned and discharged has a conviction hanging over his head. But happily with the provisions of Section 272 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, Section 66 of the Magistrate Courts Law Cap 97 Laws of Bendel State of Nigeria 1976 is a nullity because its provisions are inconsistent with the provisions of the 1999 Constitution (as amended).
The 1999 Constitution of the Federal Republic of Nigeria (as amended) is supreme over any other law in Nigeria and any law which is inconsistent with the provisions of the said 1999 Constitution shall to that extent of its inconsistency be void.
See Section 1 (3) of the 1999
7
Constitution of the Federal Republic of Nigeria (as amended).
For ease of reference, Section 272(1) & (2) of the 1999 Constitution (as amended) provides as follows:-
272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this Section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction. (underlining for emphasis)
In NIGERIA ARMY VS YAKUBU (2013) 8 NWLR Part 1355 Page 1 at 26, M.D. Mohammed JSC held among others thus:-
The Courts position remains that the right of appeal
8
being constitutional cannot be easily whittled down by technicality procedural or interpretative means. Being the supreme law of this Nation, the Constitution overides all other laws.
He went further that
Where any law stands in conflict with the clear provisions of the Constitution on which a persons right of appeal hinges, the duty of a reasonable Court or tribunal would be to interprete or apply the act in such a way as to bring it in line with the letters and intendment of the Constitution. Any law (in parenthesis) used in the above quoted decision of the Supreme Court include the Magistrates Court Law which the Learned Senior Counsel for the Appellant contended has taken away the Respondents right of appeal against his conviction, caution and discharge.
See also the case of:- DURU VS F.R.N. (2013) 6 NWLR Part 1351 Page 441 at 458.
Also, having regard to the provisions of 1999 Constitution of the Federal Republic of Nigeria 1999, the authorities
9
referred to on behalf of the Appellant are not relevant.
Consequent upon the foregoing, this sole issue is therefore resolved in favour of the Respondent and against the Appellant.
In the result, l am of the view that this appeal lacks merit and it ought to have been dismissed and the Ruling of the lower Court delivered on 19/11/2012 affirmed. But after the appeal was argued, the Learned Counsel for the Respondent forwarded a Certified True Copy of the records of proceedings of the lower Court in which Appeal No. B/7CA/2012 which is the foundation of present appeal had been struck out and that as a result this appeal ought to be struck out.
The proceedings of the lower Court for Thursday the 7th day of April 2016 is hereby set out as follows:-
IN THE HIGH COURT OF JUSTICE: EDO STATE OF NIGERIA
IN THE BENIN CRIMINAL DIVISION: HOLDEN AT BENIN CITY.
BEFORE HIS LORDSHIP HON. JUSTICE S.A. OMONUA JUDGE
ON THURSDAY THE 7TH DAY OF APRIL, 2016
BETWEEN Appeal No. B/7CA/2012
COP . COMP/RESPT
VS
Dr. Samuel Urhoghide . ACCD/APPLT
Parties absent.
Mr. S. Iredia
10
Osifo for Appellant/Applicant
Mr. N.L. Omorodion for Respondent.
Mr. Iredia Osifo: We have a M/N for extension of time to file notice of Appeal afresh. I apply to withdraw the appeal earlier filed.
Mr. Omorodion: No objection.
Order: Application to withdraw Appeal No. B/7CA/12 is granted. The said appeal is hereby struck out.
JUDGE
7/4/16
In view of the contents of the Certified True Copy of the proceedings of the lower Court for 7/4/2016 set out above, the Respondents Appeal No. B/7CA/2012 which is the foundation upon which this Appeal No. CA/B/302/2013 was built having been struck out since 7/4/2016, therefore this appeal with Number CA/B/302/2013 between:- COMMISSIONER OF POLICE VS DR. S.I. UROGHIDE is hereby struck out.
Each of the parties are to bear their respective costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the leading judgment of my learned J. O. BADA JCA. I agree with the reasoning and
11
conclusion reached therein that this appeal be struck out. I also abide by the consequential orders in the leading judgment including order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. His Lordship has elaborately dealt with the issue for determination in this appeal.
I completely agree with the reasoning and conclusions of my learned brother.
I abide by the decisions of the learned brother in the leading judgment, including all the orders made therein.
12
Appearances
CHIEF H.O. OGBODU SAN with him, N.L. OMORODION ESQ. For Appellant
AND
MR. S.O. ATOI For Respondent
