Okpa Ndifon v. The Commissioner Of Police (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ABDU ABOKI, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Calabar Division, delivered on the 26th of March, 2013.

The appellant, and two others, were charged before the trial Chief Magistrate Court, on two counts charge, bordering on breach of peace. The counts read as follows:

Count I

That you, Adoga Mbeh, Okpa Ndifon, Ngboki Okim Ngboki, and others now at large, on the 4th day of January, 2008 at Mankono Village, Ikom, in the Ikom Magisterial District, did conspire amongst yourselves, to effect an unlawful purpose, to wit: Forcible Entry and thereby committed an offence punishable, under section 518(6) of the Criminal Code, CAP 31, Vol. 2 Laws of Cross River State of Nigeria, 1983.

Count II

That you, Adoga Mbeh, Okpa Ndifon, Ngboki Okim Ngboki, and others now at large, on the same date and place, in the Magisterial District aforesaid, did, in a manner likely to cause a breach of the peace, forcefully entered into a land which is in actual and peaceable possession of one Tiku Enighe, by chasing away the occupants of the land and tied fresh palm fronds on it and thereby committed an offence punishable under section 81 of the Criminal Code, CAP 31, Vol. II, Laws of Cross River State of Nigeria, 1983.

After their respective pleas of “Not guilty” to the two counts charge, the case proceeded to trial during which the prosecution called four witnesses to prove the case against them. At the close of the Prosecution’s case, learned counsel for the appellants made a No Case Submission which was overruled by the learned Chief Magistrate.

Not satisfied with the ruling by the Magistrate Court, the counsel for the appellants appealed to the High Court of Cross River State sitting at Ikom, in its appellate jurisdiction. At the end of the hearing, the appellate High Court dismissed the appeal and ordered that the case file be remitted back to the Chief Magistrate Court for continuation of hearing.

Still aggrieved, the appellant appealed to the court below, via a notice of appeal filed on the 13th of April, 2011.

At the court below, the respondent filed a notice of preliminary objection. The respondent’s objection is that the court below lacked the jurisdiction to hear and determine the appeal in the following terms:

1. The notice of appeal of the appellants contained at pages 87 – 88 particularly at page 88 of the records of appeal is grossly and incurably incompetent same having been signed by counsel and not the appellant(s).

2 The notice of appeal above is a Joint notice by the three appellants rather than separate and individual notices of appeal.

After hearing the arguments of the respondent, on the preliminary objection, (the appellant absent and unrepresented, and no reasons were given), the court below struck out the appeal.

The appellant is peeved by the decision of the court below and appealed to this court, via an amended notice of appeal, filed on the 6th of November, 2019, but deemed filed on the 24th February, 2022; containing Three (3) grounds.