Chief Jonas Agu & Anor V. Commissioner Of Police (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal. It is against the ruling of the High Court of Enugu State delivered on 14/09/2010 by Hon. Justice C. Nwobodo wherein His Lordship refused the Appellants application for stay of further proceedings and extension of time to appeal against the decision of the Magistrate Court. The facts that led to this appeal are as follows:The Appellants, Chief Jonas Agu and Donatus Anike and two other persons were arraigned before the Chief Magistrate Court in Charge No: MNE/109c/2006.

The four persons were arraigned for offences of conspiracy and malicious damage to farmland. At the end of the case for the Prosecution, all the Accused Persons through their counsel made a no case submission. The trial Magistrate overruled the no case submission and called on the Accused persons to enter their defence.

Dissatisfied with the ruling of the learned trial Magistrate, the Appellants filed an application for extension of time within which to appeal against the ruling of the Trial Magistrate and also prayed for stay of further proceedings in the

1 charge before the Magistrates Court at the High Court of Enugu State. The Appellants had filed the motion out of time due to an Industrial Action (Strike) embarked on by the Enugu State Judiciary, which started 5 days after the Magistrate Court delivered its judgment and lasted for 85 days. The learned High Court judge refused to grant an order for extension of time or stay of further proceedings and refused the application.

Dissatisfied with the ruling of the Court below, the Appellants appealed to this Court by a Notice of Appeal filed on 28/09/10. Appellants brief was filed on 9/5/11, was deemed filed on 10/3/15 and was taken as argued pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011. Respondents brief was filed on 22/1/14 and deemed filed on 10/3/15, and Appellants Reply Brief filed on 12/3/14, it was deemed filed on 10/3/15.

At the hearing of the appeal, appellants counsel was absent in Court, Appellants brief filed on 9/5/11 and Reply brief filed on 12/3/14 both were deemed filed on 10/3/15 and will be considered pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011.

In the Appellants? brief

2 settled by Anthony I. Ani Esq, four issues were identified for determination as follows:

1. Was the learned judge of the Court below right in refusing the application for extension of time to appeal having found as fact that the Appellants showed good and substantial reasons for the failure to appeal within the prescribed period and that the various grounds of Appeal proposed by the Appellants, on the surface (Prima facie) show good cause why the appeal should be heard? (Arising from Ground 1)
2. Was the learned Judge of the Court below right in considering the merits of the Appellants? proposed appeal at the stage of application for extension of time to appeal? (Arising from Ground 2)
3. Whether the learned judge of the Court below was right in refusing the Appellants? application on the ground that any interlocutory appeal at the point in time will unnecessarily prolong/ delay the determination of the charge at the lower Court. (Arising from Ground 3)
4. Whether the issues which arise for determination in the interlocutory ruling could be subsumed and determined with appeal against the final judgment of the trial Chief Magistrate, as held by the

3learned judge of the Court below? (Arising from Ground 4).

In the Respondents brief settled by Chief S. I. Obidinanwa Esq. the issue of lack of jurisdiction of the Court below to take the application of the Appellants was raised, and Respondents counsel addressed issues raised by Appellants counsel, no new issues were identified for determination.

It is my humble view that this appeal can be considered on the determination of the question whether the learned trial judge was right in the circumstances of this case to have refused the application of extension of time to appeal and stay of further proceedings.

At Pg. 3-5 and Paragraphs 4.1.1-4.1.8 of the Respondents brief, a preliminary objection even though not formally or specifically so called was argued by the Respondent. I will determine the issue as a preliminary objection. The argument is that since the Appellants were out of time to appeal to the High Court against the ruling delivered on 28/10/09 by the Chief Magistrate, in Charge No MNE/109c/2006, they should have made a Trinity application to the High Court and having not done the prayers were incompetent and the lower Court

4 ab initio had no jurisdiction to determine the motion. There is no valid appeal before the lower Court and a fortiori, no appeal before this Court. Learned Respondents counsel submitted that the motion at the trial Court should have contained the following prayers called the Trinity prayers. Namely: