Barrister Yusuf Dankofa V Federal Republic Of Nigeria (2019)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the decision of the Court of Appeal sitting in Kaduna in Appeal No. CA/K/13C/2010 delivered on 13th February 2014 which struck-out the appeal on the basis of being incompetent based on the Respondent’s preliminary objection. Being dissatisfied with the ruling of the Court below, the Appellant filed this appeal vide a Notice of Appeal of three grounds dated 20th February, 2014.

SUMMARY OF FACTS:

The Appellant was arraigned before the High Court of Kaduna State on a four Count charge dealing false pretence with intent to defraud by obtaining the sum of N250,000.00, and N750,000.00 contrary to Section 1 (1)(a) of the Advance Fee Fraud and Other Related Offences Act of 2006 and punishable under Section 1 (3) of the Act, for making false document and using false document as genuine contrary to Section 364 of the Penal Code. The Appellant pleaded not guilty to the charge. While the prosecution called eight (8) witnesses to testify on its behalf, the Appellant (as the Accused person) opted for a no case submission which was

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overruled by the trial Court. Being dissatisfied with the ruling on ‘No Case Submission’, the Appellant lodged an appeal at the Court of Appeal, Kaduna Division. The Respondent raised a preliminary objection on the competence of the Appeal on the ground that the Notice of Appeal filed by the Appellant dated 9th October 2009 (wrongly described as’9th October 2004, at page 2 of the Appellant’s Brief) is incompetent being one that raised issues of mixed law and facts which by virtue of the provisions of 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) requires leave of Court.

In its ruling, as contained at pages 270-288, the lower Court upheld the Preliminary Objection of the Respondent and held that the appeal was incompetent and proceeded to strike out same. The lower Court, in the lead Judgment per Abdu Aboki JCA, also directed that the Appellant should proceed to enter his defence to the four-Count charge against him. Being dissatisfied, the Appellant decided to explore the option of further appeal to this Court.

ISSUES FOR DETERMINATION

The Appellant formulated three issues for determination at page 2 of the Appellant’s Brief, thus:

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“1) Whether the Court of Appeal has properly and correctly decided the issue which formed the basis of the Preliminary Objection raised by the Respondent as to the competence of the appeal by dint of the failure of the Appellant to first obtain leave of the Court on the ground that the issue raised in the grounds of appeal bother on mixed law and fact (Ground 3).

2) Whether the Court of Appeal was correct in the determination of the Appeal before it by dint of its failure to look at the provisions of Section 241 (1) (b) of the amended 1999 Constitution of the Federal Republic of Nigeria vis–vis the admitted facts in evidence before arriving at the conclusion that leave of the Court is required before the Appellant could file his appeal against the interlocutory decision in relation to the no case submission (Ground 2).

3) Whether in view of the provisions of Section 241 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria as amended the Court of Appeal, Kaduna Judicial Division, was correct in its decision that leave of the learned trial Court or the Court of Appeal is required before filing the appeal against the interlocutory decision relating to the no case submission in this matter (Ground 1).”

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