Paul Adili V. The State (1989)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

The applicant by notice of motion dated the 30th day of September, 1988 raised objection to the competence of the appeal lodged by the respondent against the decision of the Court of Appeal dated the 25th day of April, 1988 and expressly praying the court for an order:

“that the above-mentioned appeal be struck out or dismissed as being incompetent pursuant to Order 8 Rule 2(7) of the Supreme Court Rules 1985 on the grounds inter alia that

(a) being a purported appeal against an acquittal of the respondent by the Court of Appeal in a murder trial, no leave was obtained by the State, to appeal to this Honourable Court (Sections 213(2)(d) and 213(3) of the 1979 Constitution refer);

(b) in any event, the statutory period of 30 days within which to appeal in a murder case, has long expired before the purported notice and grounds of appeal was filed by the State (Sections 31(2)(b) and 31(4) of the Supreme Court Act (No. 12 of 1960) refer).”

The motion on notice was supported by affidavit evidence sworn to by Paul Adili, the applicant and a brief filed by his counsel, Chief Chimezie Ikeazor, SAN. The first five paragraphs of the affidavit appear to have set out the facts relevant to the determination of this objection. These paragraphs, paragraphs 1 to 5 read:

“1. That I am the respondent in the above-named suit;

2. That I was discharged and acquitted of murder by the Court of Appeal holden at Enugu in a judgment delivered by Hon. Justice Aloysius Iyorgyer Katsina-Alu on the 25th of April, 1988, a copy of which judgment is hereby attached and exhibited as Exhibit ‘A’;

That after the said judgment given on the 25th of April, 1988 I was served with notice and grounds of appeal by the State represented by its counsel, Anthony Agha, Esq. dated 21st day of July, 1988 and filed on the 22nd July, 1988 in the Court of Appeal Registry, Enugu, a period of 83 days after the Court of Appeal’s decision, a copy of which said notice and grounds of appeal is attached and exhibited as Exhibit ‘B’;

4. That up to date, neither myself nor my counsel in the court below “has been served with any motion or application by the State for leave to appeal to this Honourable court against my discharge and acquittal by the Court of Appeal and that in any event no leave has been granted to the State to so appeal.
5. That the said notice of appeal and brief filed by counsel for the State, Anthony Agha Esq. served on my counsel, Chief F. M. Obianyo (the brief served on 7th September, 1988) were handed to my new counsel, Chief Chimezie Ikeazor, S.A.N., on Wednesday, 28th September, 1988, whom I have consulted; and who thereupon advised me that it would be in the interest of justice to file this application.”

The State neither filed a counter-affidavit nor put in appearance by counsel at the hearing of this objection.

The issues for determination are in the main, two-fold. They are:

(1) Whether the Supreme Court can entertain this appeal when the State (appellant) has not obtained leave to appeal against the decision of the Court of Appeal which entered a verdict of acquittal of the respondent/applicant in a charge of murder.

(2) Whether the State (the appellant) can validly appeal to the Supreme Court from a decision of the Court of Appeal in a murder case, when its notice of appeal was filed well outside the 30 days statutory period, from the date of the Court of Appeal judgment.”

Put in another way, the questions for determination are:

(1) whether the State can bring an appeal against the decision of the Court of Appeal to the Supreme Court as of right when the Court of Appeal allows the appeal of a convicted person, set aside the conviction and enters a verdict of acquittal of the murder charge.