Prince Kenneth Emeakayi V. Commissioner of Police (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A. 

By a motion on notice dated 18-9-2003 and filed in this court on 29-9-2003, the applicant in a preliminary objection sought for an order-

“Striking out the notice and grounds of appeal dated the 8th day of September, 2003 and filed by the respondent at the Onitsha High Court Registry on the same date and also the motion on notice No. CA/E/127M/2003 dated the 9th day of September, 2003 filed in this court pursuant to the said notice of appeal on the ground that the appeal and the motion are incompetent and the court has no jurisdiction to entertain them.”

The motion was supported by an 11 paragraph affidavit deposed to by one Ikenna Obidiegwu one of the applicant’s counsel at the court below. Paragraphs 1 to 10 of this affidavit which are relevant to the present application are as follows:

“1. That I am one of the counsel solicitor for the applicant in the High Court in motion No. 0/205M/2003 and swear to this affidavit with the consent and authority of the leading counsel Tochukwu Onwugbufor, SAN and the applicant/accused.

2. That the counsel have received a copy of the notice and grounds of appeal filed at the Onitsha High Court Registry on the 8th day of September, 2003 together with a motion on notice No. CA/E/127M/2003 dated the 9th day of September, 2003 filed by the appellant/applicant/respondent challenging the order of adjournment made by the Onitsha High Court on 8/9/2003 and asking for stay of proceedings.
3. That the appeal and motion on notice concern or relate to the application for bail in motion No. 0/205M/03 filed at the Onitsha High Court by the applicant who informed me and I verily believe that he has been detained in Onitsha prison since the 6th day of May, 2003 and has since not been arraigned before a court of competent jurisdiction for trial on information which forced the applicant to continue to languish in prison up till now.
4. That during the hearing of the bail application Mr. F.A. Andi tendered a fiat issued by the Hon. Attorney General of Anambra State authorising him to undertake the prosecution of the bail application on behalf of the state. The said fiat is attached herewith as exhibit A.
5. That the fiat only authorizes Mr. Andi of counsel to prosecute the bail application No. 0/205M/2003 in the High Court and no more. It did not authorise him to enter or proceed on appeal to the Court of Appeal in respect of any ruling or decision on the bail application by the High Court. So, I was informed by the leading counsel Tochukwu Onwugbufor, SAN and I verily believe.
6. That I was informed by the said leading counsel and I verily believe that Mr. Andi of counsel needs a fresh fiat from the Attorney-General authorising him to file an appeal in respect of any ruling on the bail application before he can competently commence an appeal and having not obtained such fiat the present appeal and motion or stay of proceedings filed pursuant to the appeal are incompetent.
7. That up till now the Attorney-General has not filed any information charging the accused to court for any offence which has occasioned a great injustice by ensuring the continued incarceration of the applicant in prison up till now.
8. That the bail application concerns the freedom and liberty of the accused individual who has not been charged of any offence before a court of competent jurisdiction.
9. That the appeal and the motion on notice are mere delay tactics intended to ensure the endless detention of the applicant in prison, which delay started right from the Onitsha High Court where the prosecutor filed a motion accusing the Judge of bias and telling the Judge in his face in the open court that he the Judge collected a bribe of N20,000,000.00 (Twenty Million Naira).
10. That it is expedient in the interest of justice that the matter is determined expeditiously as the fundamental right of the applicant is affected.”

A further affidavit in support of the application was filed on 23-10-2003 and paragraphs 4-7 of this further affidavit which are relevant read –

“(4) That this appeal is an interlocutory appeal touching on the exercise of discretion of the trial court to grant an adjournment.

(5) That my principal counsel Tochukwu Onwugbufor, SAN informs me and I really believe that an appeal on exercise of the court’s discretion is an appeal on mixed law and fact which requires the leave of court before the appeal can be sustained.

(6) That the applicant did not obtain the leave of this court or of the High Court before filing the appeal.

(7) That the appeal is not bona fide as it is intended to cause delay to the hearing of the application for bail now pending at the High Court Onitsha and to harass the respondent.

In opposing the motion on preliminary objection, a counter affidavit deposed on behalf of the respondent on 28-10-2003 averred the following relevant paragraphs 1 – 13:

“1. That I am the elder brother of the assassinated Barnabas Igwe, Esq. who was butchered to death with his wife and unborn child by the accused/respondent/applicant and his gang of murderers and as such I am conversant with the facts of this case.

2. I have the consent of the state and the prosecuting counsel to depose to the affidavit.
3. That I have read the affidavit of urgency sworn on the 29th September, 2003, and the affidavit in support of motion on notice dated 18th day of September, 2003.
4. That paragraphs 5, 6, 7, 8, 9 and 10 of the affidavit in support of the motion on notice are false.
5. That F.A. Andi, Esq. of counsel for the prosecution informed me and I verily believed him that paragraphs 7, 8 and 9 are completely irrelevant to the application brought by the applicant.
6. That the application for bail is not before the Honourable Court of Appeal.
7. That F.A. Andi of Counsel for the prosecution did not at anytime accuse the presiding Judge Hon. Justice Peter C. N. Umeadi of taking N20m bribe.
8. That F.A. Andi, Esq. of counsel for the prosecution informs me and I verily believe him that facts stated in paragraph 9 of the affidavit in support of the motion on notice and paragraph 5 of affidavit of urgency are subjects of criminal proceedings at the High Court of Anambra State holding at Onitsha.
9. That F.A. Andi, Esq. also informs me and I verily believe him that the appeal being referred to is an interlocutory appeal in motion No. 0/205M/2003.
10. Hereto annexed as exhibit A is a copy of the application for authority to prosecute suit No. 0/205M/2003.
11. That the authority to prosecute given to F A. Andi, Esq. did not limit the scope of his powers with regards to motion No. 0/205M/2003 so F.A. Andi, Esq. informs me and I verily believe him.
12. That F.A. Andi, Esq. informs me and I verily believe that the interlocutory appeal is part of the prosecution of motion No. 0/205M/2003.
13. That without motion No. 0/205M/2003 the appeal complained of cannot exist so F.A. Andi, Esq. advised me and I verily believed him.”

Moving the motion on preliminary objection on 29-10-2003, learned senior counsel for the applicant, Mr. Onwubufor relied on the affidavit in support of the motion and the fiat issued to Mr. F.A. Andi, learned counsel to the respondent to defend the respondent application for bail at the court below as exhibit A to the affidavit.

Also relied upon in support of the application was the further affidavit filed in respect to the counter-affidavit. It was argued that as the interlocutory appeal was predicated on exercise of discretion by the court below in application for adjournment, the grounds of appeal are of mixed law and fact which required leave of the court below or this court before filing. That as no leave was sought and obtained by the respondent before filing the notice and grounds of appeal; the appeal is incompetent and must be struck -out. Several cases relied upon include Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5 at 16 and Attorney-General Anambra v. Onitsha North Local Government (2001) 9 NWLR (Pt. 717) 105.