Kelvin Agbo V. Federal Republic Of Nigeria (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appellant was charged for theft. After the prosecution had called three witnesses and closed their case, the Appellant, through his counsel, made a no-case submission, which the learned trial Judge (C. I. Uriri, J) overruled on 8th August, 2012. Aggrieved by the decision dismissing his no-case submission the appellant filed the notice of appeal at pages 198 – 202 of the Record of Appeal.

There is something unique about this notice of appeal. The appellant settled the notice of appeal himself at page 201 of the Record. He dated it 23rd July, 2012. The endorsement at page 202 of the Record suggests that the notice of appeal was filed on 4th July, 2012 vide receipt no 0444733. The ruling was signed on 8th August, 2012 (at page 197 of the Record) by the trial Judge. I must add straight away that the parties and the court are bound by the record of appeal duly certified by the registrar of the court below.

See OGLI OKO MEMORIAL FARMS LTD v. N.A.C.B (2008) 34.2 NSCQR 1057 at 1074A. And so, where the record of appeal is not formally impeached, it is not open to the appellate court to speculate that other things happened at the court below which were not recorded correctly in the record of proceedings.

See OGLI MEMORIAL FARMS LTD v. NACB (supra) at 1074 D – F; THE STATE v. AIBANGBEE (1988) 3 NWLR (pt. 84) 548; PANALPINA v. WARIBOKO (1975) 2 SC 29; OGIDI v. THE STATE (2005) 5 NWLR [Pt. 918] 286 at 309. On presumption regularity it is safe to presume that this record of appeal is authentic and correct in its contents.

Clearly, the notice of appeal at pages 198 – 202 of the Record was filed before the decision complained of and in anticipation of the said decision. The settled principle of law is that a notice of appeal filed before the decision being challenged was delivered is an abuse of the process of the court, and it is incompetent. See MAGIT v. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR [Pt. 959] 238; AJUWA v. SPDC (NIG) LTD (2008) 10 NWLR [Pt. 1094] 64 at 94.

Since the decision complained of was signed by the trial Judge on 8th August, 2012 (see page 197 of the Record), and the notice of appeal was settled by the appellant on 23rd July, 2012 and was filed on 4th July, 2012; the notice of appeal is an abuse of process and is incompetent, having been filed in anticipation of the ruling or decision complained of.

I see page 204 of the Record. That is the settlement of Record of Appeal. Paragraph 1 thereof suggests that the Ruling, the subject of the appeal, was delivered on 8th June 2012. That seems to be corroborated by the 5th line of page 192 of the same record. Let me, for the moment, agree that the ruling was infact delivered on 8th June, 2012. From thence to the 4th day of July, 2012 when the notice of appeal was filed is 26 days. The decision on the no-case submission is an interlocutory decision as it does not finally decide or determine the rights of the parties thereto.

The distinction between appeals against interlocutory and final decisions, in criminal matters or causes, is only as regards whether the ground of appeal is based on law alone, which requires no leave and the appeal is of right; and whether the ground is based either on facts alone, or mixed law and facts, which under Sections 241 and 242 of the 1999 Constitution requires leave as a pre-condition.

Section 24(1) (2) (b) of the Court of Appeal Act, 2004 makes no distinction between interlocutory and final appeals as regards the stipulation of the periods for giving notice of appeal. It simply provides that “in an appeal in a criminal cause or matter” the notice of appeal shall be filed “within 90 days from the date of the decision appealed against”.

But it appears that the date, 8th August, 2012 appended to the Ruling under the signature of Hon. Justice C. I. Uriri, Judge was appended in error. The last line of the Ruling says: “Finally the matter adjourned to 25/7/2012 for defence”. If the date: 8th August, 2012 as appended to the signature of the learned trial Judge was done in error, and the correct date is 8th June, 2012 then that will affect my earlier posture that the appeal was an abuse of process, the notice of it having been filed prematurely or in anticipation. This however does not affect the interlocutory character of the appeal.

It appears from the notice of appeal that grounds 1, 2 and 3 are on mixed law and facts. Ground 4 of the grounds of appeal is completely on facts. The four (4) grounds of appeal shorn of their particulars are herein below reproduced as follows:

Ground 1

Error in law