Mr. Ugochukwu Duru Vs Federal Republic Of Nigeria (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This interlocutory appeal emanates from the decision of the Lagos Division of the Court of Appeal, hereinafter referred to as the court below, striking out appellant’s appeal for incompetence. The decision being appealed against is dated 6th day of June, 2005. The brief facts of the case on which the appeal predicates are hereunder supplied.

The appellant was tried and convicted in absentia on two counts at the Lagos Zone of the Failed Banks (Recovery of Debts and Financial Malpractices) Tribunal. He was sentenced to two and three years’ imprisonment respectively on the two counts. The terms are to run concurrently.

Dissatisfied with the decision, the appellant sought leave to appeal against the tribunal’s 23rd January, 2003 decision and filed his Notice of Appeal following the time extended by the court below for him to do so.

Parties subsequently filed and exchanged their briefs of argument and the appeal was fixed for hearing. On the hearing date the court, at the prompting of both counsel observed that the appellant has remained a fugitive and proceeded, in spite of the application for adjournment by appellant’s counsel, on the further preliminary objection raised by the respondent’s counsel that appellant’s presence at his trial was mandatory, to strike out appellant’s appeal under Order 4 rule 4(1) of the Court of Appeal, 2002 Rules for incompetence. Aggrieved, the appellant has appealed against the decision to this Court.

At the hearing of the appeal, parties adopted and relied on their briefs of argument which were earlier filed and exchanged.

The two issues formulated in the appellant’s brief for the determination of his appeal read:-

(i) Was it not wrong of the lower court to strike out the appeal, as a result of the Appellant’s absence at the hearing when no law makes his presence mandatory apart from the fact that the question of the propriety of the pursuit of his appeal from outside Nigeria was foreclosed by the earlier decision of that court granting him leave to appeal in full knowledge that he was resident abroad.

(ii) Was the appellant’s right to fair hearing not flagrantly violated by the omission of the lower court to decide the application of his counsel for an adjournment but rather proceeding to hear and to uphold the respondent’s oral preliminary objection to the appeal which was made without advance Notice to Appellant’s counsel

The three issues distilled in the respondent’s brief of argument as having arisen for the determination of the appeal are:-

(I) Whether the appellant’s appeal does not amount to abuse of court process.

(II) Whether the lower court was not right in striking out the appeal for being incompetent.

(III) Whether the lower court was bound to grant the application for adjournment sought by the appellant’s counsel.

The appeal shall be determined on the basis of the two issues formulated by the appellant. They capture appellant’s complaints against the decision of the court below. Any complaint outside these and by a party other than the appellant himself is hypothetical and uncalled for. After all, a sympathiser is not entitled to weep more than the aggrieved person. See Global Trans S. A. v. Free Enter (Nig) Ltd. (2001) 5 NWLR (part 706) 426 and Okotie-Eboh V Manager (2004) 18 NWLR (part 905) 242.