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
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:
“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).”
On its part, the Respondent formulated one issue for determination at pages 1-2 of the Respondent’s Brief, thus:
“1) Whether the Court of Appeal was right in upholding the preliminary objection of the Respondent to the Appellant’s appeal on the grounds that the Notice of Appeal filed without the leave was incompetent (Distilled from grounds one, two and three of the Notice of Appeal.”
This appeal raises only one issue which borders on whether leave was required in the circumstances of this appeal. I have taken time to carefully re-consider the three issues formulated by the Appellant and the sole issue raised by the Respondent. While the three issues raised by the Appellant appear duplicitous and overlapping, the sole issue formulated by the Respondent also needs modification. Better justification is found in the Appellant’s introductory paragraph at page 3, paragraph 4.1 of the Appellant’s Brief that the three issues (formulated by the Appellant) are interwoven and could only be conveniently argued together. For these reasons, I have modified the sole issue in this appeal thus:
‘Whether given the circumstances of this appeal, the Appellants appeal is incompetent having been filed without the leave of Court.”
CONSIDERATION AND RESOLUTION OF THE ISSUES:
‘Whether given the circumstances of this appeal, the Appellants appeal is incompetent having been filed without the leave of Court.”
In his rather reticent, brief submissions on all three issues formulated, the Appellant contended that although the appeal originated as an interlocutory appeal, it is not every interlocutory appeal that requires leave of Court. On this submission, the Appellant contended further that Section 241 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides an exception. The Appellant placed reliance on the case of ALHAJI ATIKU ABUBAKAR & 2 ORS VS ALH MUSA YARADUA & 5 ORS, (2008) All FWLR (Pt.404) 1409 at 1462, Para A-C.
The Appellant argued that the fact in issue between the parties are not at all in dispute, but the application of the law to the facts and the drawing of inference there from which is an issue of law that requires no leave of Court before filing an
appeal. The appellant relied on the case of RABIU VS ADEBAJO (2012) All FWLR (Pt. 643) 1836 at 1847.
The Appellant contended that in determining whether an appeal is a question of law, one needs to look at the question raised in the grounds of appeal to ascertain if it is a question of law which does not need the exercise of discretion of the Court; a question as to what the true law or applicable law is on a matter or issue, or a question which is committed to or answered by the authority which answers questions of law only, that is the judge and not the jury. To amplify his contention, the Appellant cited the case of METAL CONSTRUCTION (WEST AFRICA) LIMITED VS D.A. MIGLIORE & ORS (1990) All NLR 142 at 149; J.B. OGBECHIE & ORS VS GABRIEL ONOCHIE & 7 ORS (1986) 2 NWLR (Pt. 23) 484 at 492-493.
In his final submission, the Appellant urged this Court to allow the appeal, set aside the order of the Court below and remit the appeal to the Court below to be decided on its merit.
In its Response, the Respondent quoted and reproduced the provisions of Section 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The Respondent contended that the appeal was against an interlocutory ruling which overruled the Appellant’s no case submission at the close of prosecution. This being the case, that Respondent argued, it is interlocutory as the ruling did not dispose of the rights of the parties. The Respondent placed reliance on the case of OGOLO VS OGOLO (2006) 5 NWLR (Pt. 972) Page 171-172. The Respondent further submitted that the lower Court was right in holding that the four grounds of appeal contained in the Appellant’s Notice of Appeal are of mixed law and fact which required leave of the said Court. The Respondent quoted extensively to support its position the cases of BASF NIG LTD VS FAITH ENTERPRISES LTD (2010) 1 SCNJ 223 at 247-248 and AKINDIPE VS THE STATE (2008) 15 NWLR (Pt.1111) 560 at Page 568, Para B-C.
In its concluding submissions, the Respondent urged this Court to hold that the lower Court was right in holding that the four grounds of appeal filed by the Appellant were issues of mixed law and facts which require the leave of Court before it could be filed, and since no leave was obtained the appeal was incompetent.
In his Reply brief, the Appellant further responded to the Respondent’s paragraphs 4.4; 4.5 and 4.6 on the issue of mix law and facts. The Appellant further contented in reply that it is not all rulings on no case submission that amount to interlocutory decision, citing the case of METUH VS FRN (2018) 10 NWLR (1628), 399 at 415, Para D-F.
I have carefully considered the arguments of both the Appellant and the Respondent in this appeal. The issue in this appeal is narrow and constitutional in nature. It is about whether or not leave of Court is required based on the provisions of the Constitution. For ease of reference and clarity, I’ll reproduce the relevant provisions of the Constitutions of the Federal Republic of Nigeria 1999 (as amended), thus:
“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 questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court -”
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.”
“242. (1) Subject to the provisions of Section 241 of this
Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court Appeal (Emphasis added).”
From the above provisions, it very clear beyond conjecture that the Constitution of the Federal Republic of Nigeria creates two forms of appeal-appeal as of right without leave and appeal with leave of Court. See Also HARRIMAN VS HARRIMAN (1987) 3 NMLR at 244. The law is since settled that a decision is final if it finally disposes of all the rights of the parties in the case and gives no room to go back to the same Court to ask it to decide on the same matter, See OGOLO VS OGOLO (2006) 5 NWLR (Pt.972) at Pages 171-172.
The pertinent question to ask is whether as at the time the appeal was filed, the parties’ respective legal rights were finally resolved or determined by the trial Court to the extent that the parties would not be required to return to the same Court. In the circumstances of this appeal, the answer is a capital NO. This is one case in which leave is required, but was neither sought nor granted.
As framed, it should not be a difficult task to examine and conclude that the Notice of Appeal in contention is one of mixed law and facts. This is because the ruling of the trial Court on the ‘No Case Submission’ necessarily involved a critical examination of the elements of each of the four counts for which the Appellant was charged before the trial Court to ascertain if a prima facie case has been made out to require his defence to those charges. See the case of BASF NIG LTD VS FAITH ENTERPRISES LTD (Supra); OKORIE VS UDOM (1960) SCNLR 360; OGBECHIE VS ONOCHIE (No.1) (1986) 2 NWLR (Pt.23) at 484. NWADIKE VS IBEKWE (1987) 4 NWLR (Pt. 67), 718.
It is crystal clear that the Appellant required leave of Court before filing its Notice of Appeal on grounds of mixed law and facts against the interlocutory ruling of the trial Court which refused his prayers in respect of the ‘No Case Submission’. Not having been first sought and obtained, the appeal becomes infected. It needs to be understood that the defect in this circumstance is not merely procedural. Requirement of leave of Court is a procedural requirement of constitutional significance. Put differently, it is a procedural step of
constitutional flavour. While I’m minded that the Court tend to overlook, in deserving situations, innocuous flaws for the purpose of doing substantial justice, Constitutional requirement of leave of Court though procedural, cannot be waived as doing otherwise will render the decision in frontal collision with the Constitution. This is the case here. The constitutional requirement of leave of Court has been breached. The appeal thus becomes constitutionally incompetent and liable to be struck-out.
In view of the foregoing, I resolve the sole issue formulated above in favour of the Respondent. I uphold the decision of the Court below to the extent this appeal is incompetent by virtue of the combined effect of the provisions of Section 241(1) and 242(1). For the avoidance of doubts, I hold that this appeal lacks merit and is accordingly dismissed. The Appellant is again directed to enter his defence to the charges preferred against him.
I must also not fail to express our displeasure at needless dilatory tactics of the Appellant in this appeal. As a legal practitioner, the Appellant knows, or ought to know, that justice should never be allowed to be
sacrificed on the altar of infamy of a lawyer lacking in the level of probity expected of gentlemen of the bar. The deliberate act of hurling obstacles on the highway of justice by crucial stakeholders like legal practitioners is, to say the least, unprofessional, retrogressive and highly reprehensible. I dare say it should also form the basis of further recourse at the level of disciplinary organs of the Nigerian Bar, subject to the outcome of the retrial of the subject matter of this appeal, which the four-count charge is pending against the Appellant.
This is one situation in which this Court must rise-up to the occasion in defence of justice, which is often denied by delay, and send the right signal to potential violators like the Appellant. In view of this background, I award cost of One Million Naira Only (N1,000,000.00) against the Appellant, payable personally.