Mr. Ugochukwu Duru Vs Federal Republic Of Nigeria (2013)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This interlocutory appeal emanates from the decision of the Lagos Division of the Court of Appeal, hereinafter referred to as the court below, striking out appellant’s appeal for incompetence. The decision being appealed against is dated 6th day of June, 2005. The brief facts of the case on which the appeal predicates are hereunder supplied.
The appellant was tried and convicted in absentia on two counts at the Lagos Zone of the Failed Banks (Recovery of Debts and Financial Malpractices) Tribunal. He was sentenced to two and three years’ imprisonment respectively on the two counts. The terms are to run concurrently.
Dissatisfied with the decision, the appellant sought leave to appeal against the tribunal’s 23rd January, 2003 decision and filed his Notice of Appeal following the time extended by the court below for him to do so.
Parties subsequently filed and exchanged their briefs of argument and the appeal was fixed for hearing. On the hearing date the court, at the prompting of both counsel observed that the appellant has remained a fugitive and proceeded, in spite of the application for adjournment by appellant’s counsel, on the further preliminary objection raised by the respondent’s counsel that appellant’s presence at his trial was mandatory, to strike out appellant’s appeal under Order 4 rule 4(1) of the Court of Appeal, 2002 Rules for incompetence. Aggrieved, the appellant has appealed against the decision to this Court.
At the hearing of the appeal, parties adopted and relied on their briefs of argument which were earlier filed and exchanged.
The two issues formulated in the appellant’s brief for the determination of his appeal read:-
(i) Was it not wrong of the lower court to strike out the appeal, as a result of the Appellant’s absence at the hearing when no law makes his presence mandatory apart from the fact that the question of the propriety of the pursuit of his appeal from outside Nigeria was foreclosed by the earlier decision of that court granting him leave to appeal in full knowledge that he was resident abroad.
(ii) Was the appellant’s right to fair hearing not flagrantly violated by the omission of the lower court to decide the application of his counsel for an adjournment but rather proceeding to hear and to uphold the respondent’s oral preliminary objection to the appeal which was made without advance Notice to Appellant’s counsel
The three issues distilled in the respondent’s brief of argument as having arisen for the determination of the appeal are:-
(I) Whether the appellant’s appeal does not amount to abuse of court process.
(II) Whether the lower court was not right in striking out the appeal for being incompetent.
(III) Whether the lower court was bound to grant the application for adjournment sought by the appellant’s counsel.
The appeal shall be determined on the basis of the two issues formulated by the appellant. They capture appellant’s complaints against the decision of the court below. Any complaint outside these and by a party other than the appellant himself is hypothetical and uncalled for. After all, a sympathiser is not entitled to weep more than the aggrieved person. See Global Trans S. A. v. Free Enter (Nig) Ltd. (2001) 5 NWLR (part 706) 426 and Okotie-Eboh V Manager (2004) 18 NWLR (part 905) 242.
Under their 1st issue, learned appellant’s counsel contends that Order 4 Rule 4(1) of the Court of Appeal rules the court below purports to have invoked in striking out appellant’s appeal is unavailing. Neither the particular rule nor any other rule of the court confers on the court the powers the court asserts it has. The words which make up the rule the court relies upon to strike out appellant’s appeal, it is submitted, being clear and unambiguous, must be assigned their ordinary literal meaning. The court’s failure to do so, argues learned counsel, renders the court’s decision perverse. The rule of court only requires the appellant to sign his Notice of Appeal which he has done. The court that has obliged the appellant extension of time to seek leave, leave and extension of time to file the appellant’s very Notice of Appeal is estopped from questioning the validity or otherwise of the Notice subsequently. Learned counsel supports his contention with the following authorities: Ebba v. Ogodo (2000) 10 NWLR (part 675) 387 and Magor & St Mellous RDC v. Newfort Corporation (1951) 2 ALL ER 839 at 849.
Further arguing the appeal, learned appellant’s counsel contends that the court’s position that appellant is obliged to be present at his trial except if the court has permitted him to be absent is not supported by the law, which the court lacks the vires to re-write. The law allows the appellant to be absent from the court once he so indicates. Having indicated that he does not require to be present at his trial which the appeal is a continuation of, learned counsel submits, the court below is wrong to insist that the appellant must necessarily be in court during the proceedings and that his absence disentitles him from prosecuting the appeal. Learned counsel urges that the issues be resolved in appellant’s favour and his appeal allowed.
Responding under their 2nd and 3rd issues, learned respondent’s counsel submits that the lower court’s proceedings of 6th June 2005 at page 109 of the record clearly shows that the appellant is neither in prison custody nor is his counsel able to say how the appellant signed his Notice of Appeal. Learned appellant’s counsel indeed told the court below that appellant is still at large. With such information coming from appellant’s counsel, the application for adjournment has therefore become evidently diversionary and inappropriate. The intendment of Order 4 Rule 4(1) of the Court of Appeal Rules under which appellant’s appeal is struck out, learned respondent counsel concedes, is very clear. He however insists that the court below is well within the meaning of the particular order and rule of court in striking out appellant’s appeal. Notice of Appeal, learned counsel further submits, is what gives the appellate court the necessary jurisdiction to hear an appeal. Any doubt or defect pertaining to the Notice goes to the root of the appeal and vitiates it. Since appellant’s Notice of Appeal has not been shown to be signed by the appellant himself, the court below is right to have struck out the appeal. The issues, learned counsel urges should be resolved against the appellant. He urges also that the appeal be dismissed.
Now, the entire proceedings including the decision of the lower court being appealed against spans pages 109 – 110 of the record of appeal and are hereunder reproduced for ease of reference.
“Njoku: The accused is not in prison custody. He is at large. I do not know how he signed the notice of appeal. I ask for an adjournment.
Ikpeme: I do not think this appeal is competent. The appellant having fled the Country before the notice of appeal was filed. I ask that this appeal be dismissed and not adjourned. I asked for N25,000.00 costs.
Njoku: The accused was tried in absentia. He should be allowed to appeal in absentia. His property was confiscated.
Court: This appeal was brought by the appellant when he is still a fugitive from the law of the country contrary to the express provisions of Order 4 Rule 4(1) of the Court of Appeal Rules 2002 which requires thus.
4-(1) every notice of appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself except under the provisions of paragraphs (5) and 6 of this rule.
The provision is not applicable to the circumstances of this case. The provision deals with accused persons who have been convicted and are in prison custody. The appellant is not in prison custody nor is he insane.
He has voluntarily chosen to stay away. In addition the appellant who is not in custody is not in court today for the hearing of the appeal and there is nothing before us granting permission to be absent from the court. Consequently the appeal, assuming it is validly brought without de (sic) could not be heard in the absence of the appellant.
The appeal being incompetent is struck out. The respondent is not entitled to costs and so we made (sic) no order as to costs.” (Underlining supplied for emphasis)
It is glaring from the foregoing that the finding of the court below that appellant’s appeal is incompetent is strictly because the appellant “is still a fugitive” and has absented himself from court without permission. The observation of counsel that the appellant has signed his Notice of appeal and the court’s further assumption that the appeal “is validly brought” must be highlighted as well. Respondent’s objection to the competence of the appeal rests squarely on the fact of the appellant’s fleeing the country before filing his Notice of Appeal. Learned counsel does not dispute the fact that appellant has signed his notice of appeal before fleeing.
It is also an integral part of the decision of the lower court that the provisions of paragraphs (5) and (6) of Order 4 do not apply to appellant’s circumstance. This aspect of the decision of the court has not been appealed against. It accordingly persists. See F.I.B. Plc v. Pegasus Trad Office (2004) 4 NWLR (part 863) 369; Govt. of Gongola State v. Tukur (1989) 4 NWLR (part 117) 592 and Martius v. Nicanner Food Co. Ltd (1988) 2 NWLR (part 74) 75.
The narrow issue this appeal raises is whether the court below is right in its decision that following his absence from court, appellant’s appeal has, pursuant to Order 4 Rule 4(1) of its rules, been rendered incompetent. It is my firm and considered view that in so ruling the court below is in manifest error.
Paragraph 4(1) of Order 4 of the Court of Appeal Rules 2002 purportedly invoked by the court below provides:-
“4(1) Every notice of appeal or Notice of application for leave to appeal or notice of application for extension of time within which such shall be given, shall be signed by the appellant himself, except under provision of paragraphs (5) and (6) of this rule” (underling supplied for emphasis).
Assigning the literal and ordinary meaning of the words which make the foregoing, an appellant is only required to personally sign his Notice of Appeal without more. Learned appellant’s counsel, see page 109 of the record as reproduced above, drew the attention of the court below to the fact that the notice has been so signed. The court itself proceeded on the “assumption” that the appellant has signed the notice as required by the relevant rules. The rule does not require that appellant must sign his notice at a particular location. Learned respondent’s counsel has not and could not have, on the evidence on record, contended that the appellant did not sign the Notice of Appeal. His contention remains that the Notice of appeal was filed after the appellant had fled. Notices of appeal are filed after they have been signed. If however it is learned respondent counsel’s objection that the signature on the appellant’s notice of appeal is not that of the appellant, it remains respondent’s burden to prove what he asserts. See Osawaru v. Ezeiruka (1978) NSCC (Vol. 1) 390 and Apataku & Ors. v. Alabi (1989) NSCC (Vol. 16 part 1) 294. All that Order 4 Rule 4(1) of the rules the court below invoked to arrive at its decision requires is for the notice to be signed by the appellant. Evidence clearly abounds on the record regarding compliance with the requirement. The particular rule of court does not require the presence of the appellant at the hearing of his appeal. The lower court’s ruling to the contrary derogates from and frustrates appellant’s right of appeal.
In Sagay v. Sajere (2000) 6 NWLR (part 661) 360 at 364 and 365, this Court has held that for courts to reach correct and just decisions, it is incumbent on them not only to properly ascertain the facts in contention but to deftly apply the law relevant to the issue in controversy to the ascertained facts. In the instant case, the court below stands in breach of this very rewarding principle. Both counsel are rightly one that whenever the words that make-up a statute, be the statute substantive or adjectival, the intendment of the law giver and the meaning of the statute is necessarily deciphered by assigning the clear and unambiguous words which make up the statute their ordinary literal meaning. I further agree with learned appellant’s counsel that the duty of the court of law is limited to interpreting the law within the con of its constitutive words. It is not within the province of the court to seek the meaning of the statute outside the clear words the legislators employed. A court does not rewrite the law. See N.D.I.C. v. Okem Enterprises Ltd. (2004) 10 NWLR (part 880) 107; Adigun v. AG Oyo State (1987) 1 NWLR (part 53) 678; Ojokolobo v. Alamu (1987) 3 NWLR (part 61) 377 SC and Tasha v. UBN Plc (2002) 3 NWLR (part 753) 99.
It must always be remembered too, that the essence of the rules of court, here put in place pursuant to S. 243 (1) (b) of the very 1999 Constitution that confers on the appellant his right of appeal, is to effectuate the right as conferred. The courts by virtue of both the Constitution and the rules are, therefore, under duty not only to facilitate but to do everything possible to enhance the right of appeal. Being a very important constitutional right, its exercise ought not be unduly fettered. The right must neither be derogated from nor frustrated. See Ohaka v. State (1988) 1 NWLR (part 72) 539, Tukur v. Govt of Gongola State (1988) 1 NWLR (part 68) 41 Obikoya v. Wema Bank Ltd. & Anor. (1989) (part 1) 1 NSCC 113.
In conclusion, it must be observed that the lower court’s decision which seeks to frustrate appellant’s right of appeal because of his being absent when the appeal was to be heard is all the more difficult to comprehend in the face of the further fact that the trial and conviction of the appellant were conducted in his absence. Decisions such as this which constitute miscarriage of justice, being perverse, are necessarily interfered with on appeal. See Emenimaya v. Okarji (1987) 3 NWLR (part 59) 6 and Adigun v. AG Oyo State (No.2) (1987) 2 NWLR (part 56) 197.
I resolve appellant’s first issue in his favour. The consideration of his 2nd issue will not add any value to my decision in respect of the appeal. I find merit in the appeal and do hereby allow it. The lower court’s decision striking out appellant’s appeal is hereby set-aside. The appeal is remitted to the court below for same to be heard and determined expeditiously by justices other than those who heard and determined the matter earlier.
SC.256/2006