Engr. Maxwell Adoki V. Commissioner Of Police (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

This Appellant was, along with 5 others, charged with the offences of conspiracy to commit felony, conducting themselves in a manner likely to cause the breach of public peace, and causing wilful damage to crops belonging to Joy D. Solomon, Mercy Effiong and Cecilia Effiong. The offences are punishable under Sections 516, 249(1), 81 and 451 of the Criminal Code Law 1963 of the Laws of Eastern Nigeria applicable in Rivers State. The Appellant was the 1st accused person on the charge sheet.

The trial was of the Chief Magistrate’s Court. Four witnesses testified for the prosecution and some exhibits were tendered in the course of the proceedings. At the close of the prosecution, Counsel for the Appellant, as the 1st Accused of the trial court, entered a no-case submission. The submission was overruled by the learned Chief Magistrate on 11th November, 2008. The Appellant lodged his appeal against the decision of the learned Chief Magistrate on 19th November 2008 to the High Court of Rivers State, which High Court by virtue of Section 30 of the High Court of Law of Rivers State, is empowered to hear and determine all appeals from the Magistrate courts. The said section 30 provides.

30. The court shall have appellate jurisdiction to hear and determine all appeals from the decisions of Magistrate Courts in civil and Criminal causes or matters given in the exercise of the original jurisdiction of the said Courts as well as cases stated by the Magistrates in accordance with the provisions of this Law or any other written Law.

There is no ambiguity about the appellate jurisdiction of the Rivers State High Court as conferred by the provisions of Section 30 of the High Court Law. The High Court is empowered or vested with “jurisdiction to hear and determine all appeals from the decisions of Magistrate Courts- in criminal causes or matters given in exercise of the original jurisdiction of the said courts”.

The jurisdiction conferred on the High court by Section 30 of the Rivers State High court Law to hear and determine all appeals from the Magistrate’s Court include jurisdiction to hear and determine appeals against both interlocutory and final decisions of Magistrate’s Courts.

The plain duty of a judge interpreting any provision of a statute is simply that in so doing he must not place a gloss on the provision by adding to the provision what was not added by the legislature. He does not possess the function to legislate. The observation of Aderemi, JSC in ACTION CONGRESS & ANOR v INEC (2007)12 N.W.L.R. (pt.1048) 220 is very apt. The learned jurist had stated in the judgment that by the canons of statutory interpretation a judge’s duty, which is even a command on him, is to interpret the clear and unambiguous words according to their ordinary natural and grammatical meanings. He must not add to or remove any words therefrom. It must be added that since the intention of the framers of the statute must be ascertained, it must be ascertained from the words used in the provision. It cannot be ascertained from any other source. See ATTORNEY GENERAL v. ATIKU ABUBAKAR (2007)10 N.W.L.R. (pt.1041)1 where the Supreme Court further reiterated the point that in construing a statutory provision the court is not allowed to read into any provision thereof anything not expressly contained therein or to fashion out another provision other than that provided in the statute by the appropriate Legislature. In other words, it is not the function of the Court, while interpreting provisions of a statute, to interpret it to mean what it does not mean, or not to mean what it clearly means. The duty of the Judge, always, when interpreting a statutory provision is to bring out the meaning the Legislator intended to be ascribed to it.

I had earlier reproduced section 30 of the Rivers State High Court Law. This appeal essentially complains about the decision of the Rivers State High Court (Coram: B. A. Georgewill J.) to the effect that Leave must be sought and had before the appellant could appeal against the decision of the Chief Magistrate that a prima facie case had been made against the 1st Accused/Appellant which warranted his being called upon to open his defence. The instant appeal is against that decision of the Rivers State High Court delivered on 22nd February, 2010.

The Learned Judge of the court below Suo motu raised the issue: whether the appeal against the interlocutory decision on a no-case submission was competent as no leave was sought and had before the appeal was filed. Written arguments were exchanged of the court below by the appellant’s Counsel and the prosecutor. In arriving at his decision to strike out the notice of appeal, filed by the appellant on 19th November, 2008 to his Court against the ruling of the Magistrate’s Court on a no-case submission, His Lordship, the Learned Judge of the court below, stated inter alia at p. 109 of the Record:-

4. An appeal, where the right of appeal is created by statute, may be interlocutory or final in nature.
5. Certain basic rules have evolved on the right of appeal in relation to final or interlocutory decision, namely:

a. Appeal on Final Decisions:

where a right of appeal is created by statute, on Appeal against a final decision is of right whether on grounds of law alone or grounds of facts alone or on grounds of mixed law and facts. See S. 54 of the Magistrate Court Law See also SOSAN v. HFP ENGINEERING LTD (2004)3 N.W.L.R. (PT. 861)546 at P.578.

b. Appeal on interlocutory Decision:

where the right of appeal is created by statute, on appeal against on interlocutory decision is with leave of Court if it is on grounds of facts alone or on grounds of mixed law and facts but where however the appeal is on grounds of law alone, no leave is required for an interlocutory appeal.

c. In every case in which a right of appeal is created but it is not stated to be as of right, the law is that such an appeal lies only with the leave of court. See LEKWOT v. JUDICIAL TRIBUNAL (1993)2 N.W.L.R. (pt.276)410.

Appeal from the High court to this court is the centre point of the decision of this court in LEKWOT v. JUDICIAL TRIBUNAL (supra) of page 442. On the creation of right of appeal, it was held in that case, that it is well established that no appeal lies unless a right of appeal is expressly conferred by statute, and in order to be entitled to exercise a right of appeal, the appellant must come within the provisions of the statute creating the right of appeal (MOSES V. OGULABI (1975) 4 SC 81; UGWOH V A – G, EAST CENTRAL STATE (1975)6 SC 13).