FULANI v. FRN
(2022)LCN/16701(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, July 04, 2022
CA/KN/248/C/2021
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ADO ABUBAKAR S. FULANI APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON APPEAL FROM THE FEDERAL HIGH COURT OR HIGH COURT TO THE COURT OF APPEAL
The Section 241(2)(C) of the 1999 Constitution, as amended states:
241 (1): “An appeal shall lie 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 sitting at first instance;
(b) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings
(c)
(d)
(e)
(f)
(2) Nothing in this section shall confer any right of Appeal –
(a) from a decision of the Federal 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.” (Underlining mine)
By Section 14(1) of the Court of Appeal Act, 2004:
“Where in the exercise by a High Court of a State or as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex-parte or by consent of the parties, or relating only to costs.”
The Section 241(2)(c), reproduced above, does not appear to discriminate between criminal or civil proceedings, where it requires prior leave of the High Court or the Court of Appeal, to appeal against “a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.” PER MBABA, J.C.A.
WHETHER OR NOT A PLEA OF GUILTY BY A DEFENDANT OR ACCUSED PERSON TERMINATES THE CONTROVERSY AND CHALLENGES THE CHARGE
A plea of guilty by a defendant or accused person, once it is established that it was done with full and clear understanding of the charge, terminates every controversy and challenge to the charge, and marks a voluntary submission of the defendant (accused) to the law, and is a kind of self conviction, as the accused surrenders to the Court, to be dealt with, according to law. By it, the defendant or accused person, simply, closes every door of defence against himself, and evinces readiness to accept and take the punishment which the offence attracts. That, in my view, is consent judgment.
See Balogun Vs FRN (2021) LPELR-53185 SC, where it was held:
“The law is settled that if an accused person pleads guilty to an offence with which he is charged, the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he had pleaded guilty, the Court shall convict him of that offence and pass sentence against him, unless there appear sufficient cause to the contrary. See Daniel v. F.R.N (2015) 13 NWLR (pt. 1475) 119; Kolo v. COP (2017) 9 NWLR (pt. 1569) 118. PER MBABA, J.C.A.
THE DEFINITION OF ABUSE OF COURT PROCESS
Abuse of Court’s process means that the process of the Court has been used wrongly and improperly. It is also an abuse of Court’s process when the process (and this includes a Notice of Appeal) taken out, has no backing or support of any law, as in the instant case: R-BENKAY NIG. LTD v. CADBURY NIG. LTD (2012) LPELR 7820 (SC). The lower Court, upon due diligence, should have suo motu invoked Section 241(2)(c) of the Constitution and terminated the appeal in limine on grounds of its incompetence and the Court lacking jurisdiction to entertain it. This Court has times without number, restated that any decision reached without jurisdiction or in excess of jurisdiction would be abortive, null and void: ONYEMA & ORS v. OPUTA & ORS (1987) 2 NSCC 900; (1987) 3 NWLR (pt. 60) 259; ATTORNEY-GENERAL OF LAGOS STATE v. DOSUNMU (1989) 3 NWLR (pt. 111) 552; PETER NEMI & ORS v. THE STATE (1994) 9 NWLR (pt. 366)1; EFFIOM v. STATE (1995) LPELR – 1026 (SC).” Per EKO, JSC (Pp. 29-31, paras. B-C). PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal on 14/9/2021 against the judgment of Kano State High Court in Charge No. K/EFCC/38/21, delivered on 30/8/2021, by Hon. Justice Sanusi Ado Ma’aji, whereof the learned trial judge convicted Appellant for offence of obtaining money by false pretenses and sentenced him to 7 years imprisonment, upon the Defendant pleading guilty to the charge.
Appellant, as Defendant, was charged to Court, as follows, sometime on 24/8/2021:
“That you ADO ABUBAKAR S. FULANI, sometimes in January 2021 at Kano within the jurisdiction of this Honourable Court, with intent to defraud, did obtain the sum of ₦330,000.00 (Three Hundred and Thirty Thousand Naira, Only) from Muhammed Balanti Adam, which money you caused to be paid into your First City Monument Bank Account Number 6491929010, under the false pretense that you will secure an offer of appointment for him with the Nigerian Customs Services, which pretense you knew to be false and you thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.”
When Appellant was arraigned on 27/8/2021, he was not represented by Counsel and the matter was adjourned to 30/8/2021, for the arraignment and plea. Appellant was in Court on 30/8/2021, but still unrepresented by Counsel. The charge was read to him by the Registrar of the Court, who interpreted the charge from English Language to Hausa Language to him and Appellant appeared to understand the same, and pleaded GUILTY to the charge. The prosecuting Counsel urged the Court to sentence the Appellant, and said that there was no previous record of conviction against him. The trial Court did, as follows:
“The defendant is hereby convicted and sentenced to 7 years imprisonment and the convict is hereby ordered to pay the sum of ₦330,000.00 to the nominal complainant.” (See page 171 of the Records)
That is the decision Appellant appealed against being dissatisfied, as per the Notice of Appeal on pages 196 to 199 of the Records of Appeal, disclosing five grounds of appeal.
Appellant filed Brief of Arguments on 28/1/2022 and donated three (3) issues for the determination of the appeal, as follows:
1) Whether the trial Court acted in compliance with Section 349 of the Kano State ACJL 2019 in summarily trying, convicting and sentencing the Appellant? (Ground 4)
2) Whether the failure of the trial Court to avail the Appellant with a competent interpreter on the proceedings on the 27th August 2021, is not fatal to the conviction of and sentence of the Appellant? (Ground 3)
3) Whether the trial Court acted in compliance with the law in summarily trying, convicting and sentencing the Appellant? (Ground 2)
Appellant did not distill any issue(s) from grounds 1 and 5 of the appeal and they are hereby deemed abandoned, and struck out. The law is trite that a ground of appeal from which no issue is distilled for determination of the appeal, is deemed abandoned and has to be struck out. See the case of C.O.P Cross River State & Ors Vs Effiong & Ors (2022) LPELR-57200 (CA), Oke Vs Sule & Anor (2018) LPELR-46658 CA; and Wassah & Ors Vs Kara & ORS (2014) LPELR-24212 (SC), where it was held:
“Six issues were originally distilled by the appellants. However, at the hearing of the appeal, issues five and six were abandoned and are accordingly struck out including the grounds of appeal they were distilled from. This is so because any ground of appeal which no issue for determination is distilled from, is liable to be struck out.” Per OKORO, JSC.
The Respondent had filed a preliminary objection on 18/2/2022 against the hearing of this appeal, saying the same is an abuse of the Court process, and that this Court lacks the jurisdiction to hear it, as the Appeal is against a consent judgment and Appellant did not obtain leave of Court to appeal against it, as stipulated in Section 241(2)(c) of the 1999 Constitution, as amended.
The Respondent also filed Respondent’s brief on 18/2/2022, wherein the Counsel argued the preliminary objection on pages 3 -12. For the main appeal, Respondent’s Counsel, donated a single issue for determination, namely:
“Whether the trial Court was right in summarily convicting and sentencing the Appellant after his plea of guilty to the charged (sic) preferred against him?”
Appellant filed a Reply Brief, in reaction to the preliminary objection, on 30/3/2022.
At the hearing of the appeal, on 30/5/2022, the Respondent’s Counsel argued the preliminary objection and urged us to strike out or dismiss the appeal. Appellant’s Counsel replied and urged us to allow the appeal.
PRELIMINARY OBJECTION
The Respondent had contended that the Notice of Appeal, filed on 14/9/2021, was an abuse of the Court process; that this Court lacks the requisite jurisdiction to entertain it, as the same was filed against a consent judgment of the trial Court, which by the provisions of Section 241 (2)(c) of the 1999 Constitution, such appeal can only lie with the leave of the trial Court which gave the judgment, or of this Court of Appeal.
Salihu Sani Esq., Counsel for Respondent, argued that Appellant never sought/obtain any leave of Court to appeal against the said consent judgment and so the Notice of Appeal amounted to abuse of the Court process, being a misuse of the process of Court for a purpose that is malafide and aimed at annoying or disturbing the opposite party. He relied on the case of Oyeyemi & Ors Vs Owoeye (2017) LPELR-41903 (SC); Ntuka Vs NPA (2007) 13 NWLR (Pt 1051) 392; AG of Lagos State VS A.G. of the Federation & Ors (2014) LPELR-22701 (SC) (among other cases).
Counsel asserted the provision of Section 241(2)(c) of the Constitution of Federal Republic of Nigeria 1999, as amended, and the provision of Section 14 of the Court of Appeal Act on the need to seek and obtain the leave of Court to appeal against a consent judgment. Counsel relied on the case of NIWA Vs SPDC Nig. Ltd (2007) 1 NWLR (Pt 1015) 326-327. He submitted that this Court therefore has no jurisdiction to entertain the appeal, as it did not proceed from due process of the law upon fulfillment of conditions precedent to the exercise of jurisdiction. He relied on Madukolu & Ors Vs Nkemdilim (1962) 2 SCNLR 341; Lawani Vs Oladokun (2003) 2 NWLR (Pt 804) 271 at 283; and the case of Adamu & Anor Vs FRN (2019) LPELR-48775 (SC) 1 where the Supreme Court upheld the decision of this Court, that appeal against consent judgment, without prior leave of Court to appeal, was incompetent, and so an abuse of the Court process, by dint of Section 241 (2)(c) of the 1999 Constitution.
Replying, Appellant’s Counsel, Abba Hikima, Esq., said the preliminary objection was misconceived. He said that the concept of consent judgment does not apply to criminal proceedings. He relied on the case of Star Paper Mill Ltd & Anor VS Bashiru Adetunji & Ors (2009) LPELR 3113 (SC) on the meaning of consent judgment – that:
“Consent judgment is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court… intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the Court.”
Counsel said that Appellant was summarily convicted after pleading guilty to the charge; that there was nothing to suggest any agreement by the parties, or any settlement, as envisaged in RASC Ltd Vs Akib (2006) 13 NWLR (Pt 997) 333 and The Vessel M. T. Sea Tiger & Anor Vs Accord Ship Management (HK) Ltd & Ors (2020) LPELR-49498 (CA), which held:
“To have a valid consent judgment, the parties must be ad idem, as to the agreement, and the terms of settlement must be filed in Court. It is the order of Court, based upon the terms of settlement, that is the consent judgment.”
Counsel cited the case of Nwude Vs FRN & Ors (2015) LPELR-25858 CA to say that consent judgment is not applicable in criminal trial:
“That in criminal, case accused has a right to plead guilty or not guilty, when the accused pleads guilty, it will not be taken as a consent judgment simpliciter. It only means that the accused, after due consultation with his legal team, has decided to throw in the towel. It reduces the time frame for the trial. There is no longer need to call witnesses to prove the charge against the accused.
Consent judgment is strictly envisaged in civil matters, where the Defendants have no defence to the claims of the claimant.”
Counsel also relied on Nwuka Vs FRN & Ors (supra) and said that the case of Adamu & Anor Vs FRN (2019) LPELR-48775 (SC) was not applicable to this case.
RESOLUTION OF THE PRELIMINARY OBJECTION
The issues raised by Respondent for the determination of the preliminary objection, were:
1) Whether the Notice of Appeal, dated 14th September, 2021 is an abuse of Court process and therefore incompetent?
2) Whether this Honourable Court lacks the requisite jurisdiction to entertain the said Notice of Appeal.
The gravamen of Respondent’s argument of the preliminary objection was/is, that the plea of guilt by Appellant amounted to a consent judgment, and so for him to appeal against the decision, founded on his plea of guilty, he needed to comply with the provisions of Section 241(2)(C) of the 1999 Constitution and Section 14 of the Court of Appeal Act, which stipulate that appeal against consent judgment must be by leave of the lower Court or of the appellate Court.
Appellant’s Counsel in reply had argued, strongly, that a plea of guilty by an accused person is not a consent judgment, simpliciter; that the concept of consent judgment is not applicable in criminal trials.
Is a plea of guilty by an accused person an admission of the offence, and does the judgment founded on that admission of guilt amount to a consent judgment, requiring leave of Court to appeal? I think that is the relevant issue to be to resolved by this Court.
The Section 241(2)(C) of the 1999 Constitution, as amended states:
241 (1): “An appeal shall lie 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 sitting at first instance;
(b) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings
(c)
(d)
(e)
(f)
(2) Nothing in this section shall confer any right of Appeal –
(a) from a decision of the Federal 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.” (Underlining mine)
By Section 14(1) of the Court of Appeal Act, 2004:
“Where in the exercise by a High Court of a State or as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex-parte or by consent of the parties, or relating only to costs.”
The Section 241(2)(c), reproduced above, does not appear to discriminate between criminal or civil proceedings, where it requires prior leave of the High Court or the Court of Appeal, to appeal against “a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Appellant’s Counsel had made a heavy weather of the meaning of consent judgment, that it does not apply to criminal trial, that in criminal proceedings a plea of guilty by an accused person; (and a judgment thereon), does not translate to judgment on the consent of the parties.
Interesting as the argument of Appellant sounded, I think a plea of guilty by an accused person amounts to admission of the offence and of guilt, agreeing with the prosecution, that he committed the offence, and taking responsibility for the consequences of the charge/offence. And, by so doing, the accused person saves the prosecution and the Court, the tedious and rigorous trouble of proving the charge by calling evidence from witnesses, and the consequent waste of time.
A plea of guilty by a defendant or accused person, once it is established that it was done with full and clear understanding of the charge, terminates every controversy and challenge to the charge, and marks a voluntary submission of the defendant (accused) to the law, and is a kind of self conviction, as the accused surrenders to the Court, to be dealt with, according to law. By it, the defendant or accused person, simply, closes every door of defence against himself, and evinces readiness to accept and take the punishment which the offence attracts. That, in my view, is consent judgment.
See Balogun Vs FRN (2021) LPELR-53185 SC, where it was held:
“The law is settled that if an accused person pleads guilty to an offence with which he is charged, the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he had pleaded guilty, the Court shall convict him of that offence and pass sentence against him, unless there appear sufficient cause to the contrary. See Daniel v. F.R.N (2015) 13 NWLR (pt. 1475) 119; Kolo v. COP (2017) 9 NWLR (pt. 1569) 118. In the instant case, the accused person was arrested for dealing in 200 grammes of Marijuana. He made extra-judicial statement in Yoruba admitting to the commission of the offence. The said statement was interpreted into English language and both were admitted as Exhibits PD2A and PD2B, upon his subsequent arraignment in Court on 12/3/2015, the following was recorded as proceedings of the Court: – O. Kalu appears for the prosecution – Accused person in Court but not represented. – Kalu: One count charge dated 25/09/14 read and explained to the accused person in order for him to take his plea. – Court: Charge read. – Accused person: I understand the charge and I plead “guilty.” – Kalu: In view of accused person’s plea, I ask for a date for summary review of accused person’s charge and also for his remand in prison custody. Date for return date. – Court: Adjourned to 14/4/15 for hearing.
All orders prayed for by prosecutor granted.” After the review of evidence and consequent summary conviction by the learned trial judge, the accused person entered allocutus in the following words before sentencing. “l will not do it again. I did conductor work at Agege, the person I did conductor work for introduced me to Bintin.” It was after the allocutus that the Appellant was sentenced to 15 years imprisonment with hard labour. The requirement is that the charge must be read over to the accused and explained to him in the language he understands and to the satisfaction of the Court before being called upon to make his plea.”
In the case of Adamu & Anor Vs FRN (2019) LPELR-48775 (SC), the Supreme Court considered a similar situation of plea of guilty by the defendant and held:
“Learned counsel for the appellants had made much of the quickness with which the proceedings were started and concluded. Since learned counsel for the respondent was absent at the hearing and no brief settled for the respondent, I have had to go to the record so that what transpired would be properly brought to light and not beclouded by a one sided version. The learned counsel for the appellants as borne out of the record admitted that the appellants each pleaded guilty to the charge after it was read out and they each appeared to understand. The record showed the charge was read and explained to the appellants as accused persons by the registrar of Court, Miss Doyin, in English language which they understood before they both pleaded guilty. It is elementary that when a plea of guilty takes place with full understanding then that cuts off delay and there is no provision in our law for the Court upon such a plea in full compliance with Section 215 Criminal Procedure Act to further ask the accused to go and prepare a defence. Also to be said is that upon the charge being read in the language the accused understands such as in this case, English and it was explained to them and they appeared to understand, then fair hearing has been met. In this regard, there is no time frame. That the appellants had no legal representation does not translate to denial of fair hearing since it was their choice to engage counsel or not in keeping with Section 36 (4) (c) of the 1999 Constitution. Indeed, just as the lower Court found, the true test of fair hearing is the impression of a reasonable person who was present in Court at the trial, or from the record of what transpired, whether from his observation justice was done in the case. I rely on Okafor v A. G. Anambra State (1991) 6 NWLR (Pt.200) 659 at 678; Baba v N.C.A.T.C. (1991) 5 NWLR (Pt.912) 388 at 430; Mohammed v Kano N. A. (1968) 1 All NLR 424. As a matter of fact, learned counsel for the appellants is advancing submissions well outside the realm of a guilty plea of an accused person not within the relevant statutory provisions for which I would recast some sections of the Criminal Procedure Act. 218: “If the accused pleads guilty to any offence with which he is charged, the Court shall record his plea as neatly as possible in the words used by him and if satisfied that he intended to admit the thrust of all the essentials of the offence of which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary”. “285 (1): At the commencement of the hearing, the Court shall state or cause to be stated to the defendant the substance of the complaint and shall ask him whether he is guilty or not guilty. (2): If the defendant says he is guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why the sentence should not be passed, the Court shall proceed to sentence”. The learned trial judge fully complied with the relevant laws guiding a criminal proceeding such as the one under discourse where with full understanding of the charge the accused persons had pleaded guilty and thereby shortening the proceedings which then took the semblance of a summary trial as provided by the sections of the CPA stated above. The added measure of the confessional statements which were admitted without objection would not have the prosecution going through the rigours of proving the offence beyond reasonable doubt as the prevailing circumstances have removed that burden of proof from the prosecution and made it of a light weight. Therefore, the appellants’ counsel asking for proof beyond reasonable doubt of the prosecution is wishful thinking such as asking for the moon as there is no statutory provision for it in the circumstance on ground.
The position of a plea of guilty particularly when it is not in a capital offence together with a confessional statement is that the onus of proof ordinarily placed on the prosecution in a criminal trial is lifted and the Court is at liberty to proceed to convict on that plea.”
For a Defendant (Accused person) to turn round to appeal against his conviction, after pleading guilty to the offence, appears strange, in my view, and I think, that is the type of situation the Appellant (convict) would actually be required to seek the leave of the trial Court, or of the appellate Court, to file such appeal, so that he can explain and convince the Court, with reason(s), as to the relevance of such appeal. I do not think the Convict can simply file an appeal, as of right, in the circumstances, having admitted the offence and surrendered to the law, and to the consequences of his unlawful act.
In the case of Kpoobari Vs FRN (2013) LPELR-21166 (CA), my Lord, Nwosu-Iheme, JCA held:
”An appeal against a conviction on a plea of guilty can only be entertained, if it appears (i) that the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it, or (ii) that upon the admitted facts, he could not in law have been convicted of the offence, charged. See R. VS. FORDE (1923) ALL ER. 477 at 479.”
Of course, such grounds stated in Kpoobari Vs FRN (Supra) can only be established at the point of application for leave to appeal, wherein the applicant seeks to convince the Court, as to the reason(s) for leave to appeal. In my opinion, Appellant did not seek the leave of Court of Appeal and so this Court has no jurisdiction to entertain the appeal. See the case of Allanah & Ors Vs Kpolokwu & Ors (2016) LPELR-40724 (SC), and the case of Okolonwamu & Anor Vs Okolonwamu & Ors (2019) LPELR-46942 (SC), where it was held:
“Where an appeal can only be heard after leave has been sought and obtained by the appellants, the Court would have no jurisdiction to hear the appeal if the condition precedent is not first of all obtained. Such an appeal is incompetent and should be struck out. See Abubakar v Dankwambo (2015) 18 NWLR (Pt.1491) p.213. All the eight grounds of appeal raise questions of fact. The appellants failed to obtain leave. In the absence of leave, a condition, precedent was not fulfilled before the appeal was filed. Consequently, in the absence of leave, this Court has no jurisdiction to hear the appeal.” Per RHODES-VIVOUR, JSC
See also the case of Ibrahim Adamu & Anor Vs FRN (2019) LPELR-48775 (SC) which was on appeal against a decision entered on plea of guilty and which the Appellant failed to seek/obtain leave of Court to appeal. The Supreme Court held:
“The appellants, on their pleading for forgiveness and mercy, emphasizing that they committed the alleged offence, were each “convicted as charged (under) Section 274 (2) of the Administration of Criminal Justice Act, 2015″. They were each, sentenced to 15 years imprisonment. It appears from page 19 of the Record that they appealed their convictions as of right to the Court of Appeal, notwithstanding that it was apparently a consent judgment. Section 241 (2)(c) of the 1999 Constitution, as amended, has expressly prohibited this type of Appeal to the Court of Appeal in the following provisions- 241. (2) Nothing in this Section shall confer any right of appeal – (c) without 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. The appellants’ appeal to the Court of Appeal was, in the first place, incompetent and an abuse of the Court’s process by dint of Section 241 (2)(c) of the Constitution. The judgment of the Court of Appeal, delivered on 31st May, 2017, from which the appellants purportedly further appealed to this Court was similarly incompetent, ultra vires and a nullity. This appeal is a further abuse of the Court’s process. Abuse of Court’s process means that the process of the Court has been used wrongly and improperly. It is also an abuse of Court’s process when the process (and this includes a Notice of Appeal) taken out, has no backing or support of any law, as in the instant case: R-BENKAY NIG. LTD v. CADBURY NIG. LTD (2012) LPELR 7820 (SC). The lower Court, upon due diligence, should have suo motu invoked Section 241(2)(c) of the Constitution and terminated the appeal in limine on grounds of its incompetence and the Court lacking jurisdiction to entertain it. This Court has times without number, restated that any decision reached without jurisdiction or in excess of jurisdiction would be abortive, null and void: ONYEMA & ORS v. OPUTA & ORS (1987) 2 NSCC 900; (1987) 3 NWLR (pt. 60) 259; ATTORNEY-GENERAL OF LAGOS STATE v. DOSUNMU (1989) 3 NWLR (pt. 111) 552; PETER NEMI & ORS v. THE STATE (1994) 9 NWLR (pt. 366)1; EFFIOM v. STATE (1995) LPELR – 1026 (SC).” Per EKO, JSC (Pp. 29-31, paras. B-C)
The above decision of the Supreme Court in Adamu Vs FRN (supra) appears to have settled every lingering controversy, that a plea of guilty by an accused person, makes the conviction entered by the Court, a consent judgment, and that it amounts to abuse of the Court process to appeal against such decision, as of right, without seeking and obtaining the leave of the trial Court or of the appeal Court, to do so.
I therefore see merit in the preliminary objection, raised by the Respondent and uphold it. For failing to seek and obtained leave to appeal against the decision of the trial Court, which was a consent judgment, Appellant erred and the appeal is incompetent, and an abuse of the Court process. It is hereby struck out as this Court lacks jurisdiction to entertain it.
BOLOUKUROMO MOSES UGO, J.C.A.: It was said in IBRAHIM ADAMU & ANOR VS F.R.N. (2019) LPELR – 48775 (SC) P29 – 31 that a conviction following a plea of guilty by an accused person to a charge laid against him by the prosecution is a judgment by consent of parties within the meaning of Section 241(2) (c) of the 1999 constitution of the Federal Republic of Nigeria and so only appealable to this Court with the leave of either the High Court or this Court first obtained. That leave having not been obtained in this case even when appellant was convicted on his own plea, it follows that the jurisdiction of this Court has not been properly invoked. I therefore agree with my learned brother ITA MBABA, J.C.A., that his appeal is incompetent and should be struck out. I accordingly strike it out, too.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the issues considered and resolved by his Lordship. I have nothing more to add. I abide by the conclusions reached therein.
Appearances:
A. A. HIKIMA ESQ (who settled the Brief) WITH HIM ZAINAB
KATIU (MISS) (who adopted the Brief/Process) For Appellant(s)
SALIHU SANI, ESQ (who settled the Brief) WITH HIM Z.
MOHAMMAD, ESQ (who adopted the Brief/Process) For Respondent(s)
