Commissioner Of Police, Imo State V. Engr. Dr. Raguel Aguta (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Imo State, Owerri Judicial Division, presided over by Hon. Justice C.I. Ohakwe, J. in Appeal No. HOW/6CA/2000, delivered on the 27th day of November, 2007. Therein, his Lordship struck out the appeal against the interlocutory decision of the Chief Magistrate Court, Owerri, Imo State, in charge No. OW/438C/99 on the ground that no leave was obtained before the appeal was filed.

The facts leading to this appeal are that before the Chief Magistrate’s Court, Owerri, Imo State, Respondent, as the accused person in charge No. OW/438C/99 was charged with the offences of inter alia, forgery and being in possession of property suspected to be stolen. Before the commencement of trial, Respondent filed a motion in which he prayed for the release to him of items seized from him by the police. The Appellant resisted the application. The trial Court took argument of Counsel and ruled that the items applied for had no nexus with the offences charged and ordered they be released to the Respondent.

The Appellant, who is prosecuting the said charge through a private Legal Practitioner who had been granted a fiat to so prosecute by the Attorney-General of Imo State, appealed against this decision to the High Court of Imo State.

On the 27th November 2007, the learned trial Judge delivered his Judgment. Being dissatisfied with the Judgment, the Appellant has now appealed to the Court of Appeal.

The appeal was heard on 27th September 2010 and in line with the Rules and Practice of this Court, the parties duly filed their respective Briefs of Argument. Counsel to the Appellant Mr. C.B. Nworka informed the Court that the Appellant’s brief of Argument is dated 13/11/08 and filed on 17/11/08, that he also filed the Appellant’s reply Brief which is dated 13/11/08 and filed on 17/11/08, learned Counsel to the Appellant adopted the two briefs of Argument and urged the Court to allow the appeal.

Counsel to the Respondent Mr. U.C. Osuji informed the Court that the Respondent’s brief of argument is dated 1/12/08 and filed on 18/12/08, Counsel adopted the brief and urged the Court to dismiss the appeal in its entirety. Counsel to the Respondent also informed the Court that in the Brief of Argument a Notice of Preliminary Objection was incorporated at page 3 and argued at pages 3 and 4 and urged the Court to strike out the appeal based on the Preliminary Objection.

From the four grounds of appeal the Appellant formulated three issues for determination, the Issues are stated thus:-

1. Whether the learned Appellate High Court Judge was right in the construction he placed on the provisions of section 36(1) of the High Court law Cap.61 laws of Eastern Nigeria, 1963, applicable to Imo State.
2. Whether the learned Appellate High Court Judge was right in holding that without leave of Court, there is no right of appeal from the decision of a Magistrate Court to the High Court except upon conviction.
3. Whether the learned Appellate High Court Judge was right in raising suo motu the Issue of the applicability of section 36 of the said High Court law and determining same without giving parties an opportunity to address him on same.

Learned Counsel to the Respondent adopted the Issues formulated by the Appellant.

At page 3 of the Respondent’s Brief of Argument, the Respondent incorporated a Notice of Preliminary objection. The learned Counsel to the Respondent cited the provisions of sections 241(1) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria which provides as follows:-

Section 241(1) – An appeal shall lie from decision of the Federal High Court or a State High Court to the Court of Appeal as of right in the following cases:

(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.

Section 242(1) – Subject to the provisions of section 241 of the Constitution an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or the High Court or the Court of Appeal.

That these provisions being Constitutional provisions, the Court have been enjoined in the case of NAFIU RABIU V. KANO STATE (1980) 8 – 11 SC to give it liberal interpretation, reference made to ADISA V. OYINWOLA (2000) FWLR (PT.8) 1349; AKANDE V. ALAGBE (2000) 15 NWLR (PT. 690) 353.