Commissioner Of Police V. Nwadiru Agholor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

The Respondent was one of five accused persons arraigned for trial before the Magistrates Court of Delta State, sitting at Agbor. The arraignment was on a two count charge of conspiracy and forcible entry contrary to Sections 517 and 81 of the Criminal Code. The trial at the Magistrates Court was protracted. lt lasted for about nine years.

In the course of the trial at the Magistrates Court, three of the accused persons died. Only the Respondent and one other were alive to stand trial to the end. At the conclusion of the trial, the learned trial Chief Magistrate in a judgment delivered on 19th August, 1995 convicted the accused persons on Court II of the charge being the count of forcible entry. They were discharged on the count of conspiracy.

The accused persons were dissatisfied with the judgment of the trial Chief Magistrate. They appealed against the judgment to the High Court. The appeal was filed within time. The Appellant herein, which was the Respondent in the said appeal, filed a preliminary objection challenging the competence of the said appeal. In a Ruling delivered on 16th June, 2009, the High Court of Delta State upheld the preliminary objection and struck out the Notice of Appeal.

Subsequently, the Respondent herein applied to the High Court of Delta State in Suit No. HCY/29CM/2009 for leave to appeal and extension of time to appeal against the aforesaid judgment of the Magistrates Court, Agbor, Delta State. The said application was duly granted by the lower court on 20th July, 2010. The Appellant was dissatisfied with the decision of the lower court granting the application.

It consequently filed an appeal against the said decision. The Ruling of the lower court is at pages 30 – 34 of the Records and the Notice of Appeal is at pages 35 – 36 of the Records of Appeal. Upon the compilation and transmission of the Records of Appeal by the lower court on 11th February 2011, Briefs of Argument were filed and exchanged by the parties.

The Appellant’s Brief of Argument which is dated 27th January, 2012 was filed on 30th January, 2012 pursuant to the order of the court made on 25th January, 2012. The Respondent’s Brief of Argument is dated 12th October, 2012, filed on 16th October, 2012 and deemed as properly filed on 3rd February, 2014.

At the hearing of the appeal, A.C. Oluiji, Esq., learned counsel for the Appellant adopted the submissions in the Appellant’s Brief of Argument and he urged the court to allow the appeal. In the same vein, E. U. Nkwor, Esq., of counsel who appeared for the Respondent adopted the submissions in the Respondent’s Brief of Argument which was settled by Sir J.O. Ojobu, and he urged the court to dismiss the appeal.

Two issues were distilled as arising for determination in the Appellant’s Brief of Argument namely:

1. Whether the affidavit in support of the Respondent’s application for extension of time to appeal was competent in law (Distilled from ground one).
2. Whether the lower court properly exercised its discretion in granting the Respondent’s application for extension of time to appeal out of time when the affidavit in support of the said application was bereft of materials to sway the court in exercising the discretion sought in his favour (Distilled from ground two).

The Respondent equally formulated two issues for determination in his Brief of Argument as follows:

1. Whether the issue of Oath in the affidavit goes to the substance of the case?
2. Whether the Court of Appeal can disturb the exercise of the discretion of the court?

The issues for determination as distilled by the parties, though differently worded are in their true purport and essence in respect of the same issues arising from the two grounds of appeal. The issues as distilled by the Appellant is however more apposite and I adopt the said issues for the determination of this appeal.

ISSUE NUMBER ONE

Whether the affidavit in support of the Respondent’s application for extension of time to appeal was competent in law.

The Appellant’s contention is that the affidavit in support of the Respondent’s application before the lower court did not comply with the provisions of Section 13 and Schedule 1 of the Oaths Act in the sense that the affidavit did not include the deposition that it was deposed to by virtue of the provisions of the Oaths Act. It was submitted that where both the National Assembly and a State enact a law on the same subject matter, the law enacted by the National Assembly will take precedence over that of the State. The cases of OSENI vs. DAUDU (1994) 4 NWLR (PT.339) 390 ratio 12 and A-G OGUN STATE vs. A-G FEDERATION (1982) 1 – 2 S.C. 13 were cited in support. Relying on the case of N.N.B PLC vs. I.B.W. ENT. (NIG) LTD (1998) 6 NWLR (PT 554) 448 ratios 6, 7 and 8, the Appellant argued that the non-compliance with Section 13 and Schedule 1 of the Oaths Act rendered the Respondent’s affidavit incompetent and the motion to which the affidavit was attached consequently had no valid supporting affidavit and thereby became incompetent.