Paul Adili V. The State (1989) LLJR-SC

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.

(2) If the answer to question (1) is in the negative, can the State bring to the Supreme court an appeal with leave of the Court of Appeal or the Supreme Court

(3) Has any appellant appealing against a decision of the Court of Appeal in a murder charge a right of appeal whether as of right or with leave after the lapse of 30 days from the day of the decision of the Court of Appeal

This objection has to be examined in the light of the constitutional provisions conferring a right of appeal either as of right or with leave of the court and the statutory provisions governing the exercise of that right. The Supreme Court, the Court of Appeal and the High Courts are as of today creatures of the Constitution of the Federal Republic of Nigeria, 1979. [see sections 210(1), 217(1), 238(1) and 234(1)]. The powers they exercise are the powers invested in them by the said Constitution and other statutes validly empowered to confer such jurisdictions. [see sections 212(1), 213(1), 213(2), 213(3), 219, 220(1), 221, 230(1), 230(2), 236(1) and 237(1)].

It is to be observed and worthy of note that the Supreme Court has both appellate and original jurisdictions (sections 212(1) and 213). The appellate jurisdiction conferred on the Supreme Court makes it the only court set up for the hearing and determination of appeals from the Court of Appeal. Appeals from the Federal High Court, High Court of the Federal Capital Territory, the State High Courts, Sharia Court of Appeal, Customary Court of Appeal and Code of Conduct Tribunals lie to the Court of Appeal exclusively.

In criminal matters tried before the High Courts, parties dissatisfied with the decision of the trial Judge of the High Court have a right of appeal against the decision to the Court of Appeal. The Constitution of the Federal Republic gives unqualified right in certain cases set out in section 220(1) and a qualified right that is a right with leave of the High Court or Court of Appeal in others. See section 221(1). The Constitution also makes provision specifying the parties exercising the right of appeal to the Court of Appeal and the manner of exercise.

Relevant to this ruling is the constitutional provisions in respect of the right of appeal to the Supreme Court and the parties entitled to exercise the right of appeal and the manner of exercise. In this respect, I need to refer to sub-sections (1), (2), (a), (b), (c) and (3), (5) of section 213 which read as follows:

(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal;

(2) An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases:

(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;

(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution;

(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this constitution has been, is being or is likely to be, contravened in relation to any person;

(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.

(3) Subject to the provisions of sub-section (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.

Where, therefore, an aggrieved party desires to appeal to the Supreme Court in cases not falling within or covered by sub-section (2) of section 213 of the Constitution, that party must seek and obtain the leave of either the Court of Appeal or the Supreme Court. The application for leave must be made to the Court of Appeal in the first instance. See section 31 (3) of the Supreme Court Act. See Order 2 rule 28(4) Supreme Court Rules 1985. If the application to the Court of Appeal is refused, then, an application may be made to the Supreme Court within the statutory period. In special circumstances, an application can be made direct to the Supreme court without first going to the Court of Appeal. Such circumstances arise where the time for filing a notice of appeal has expired and extension or enlargement of time to appeal is sought from the Supreme Court. See Order 2 Rule 28(4) Supreme Court Rules, 1985.

The Attorney-General of a State has constitutional power to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of an offence created by any law of the House of Assembly. [section 191(1)(a)] and he can exercise this power in person or through officers of his department [see section 191 (2)]. The Attorney-General of the Federation has similar powers – section 160(1)(a).

It is in exercise of this right that the applicant was prosecuted for the offence of murder against the Criminal Code Law of Imo State by the Attorney-General of Imo State acting through the officers of his department before the High Court. The High Court convicted the applicant but on appeal to the Court of Appeal; the applicant was acquitted of the offence and discharged. The Court of Appeal having entered a verdict of acquittal, the Attorney-General, dissatisfied with the decision, is entitled to exercise the right of appeal conferred by the Constitution. This is specifically provided for by sub-section (5) of section 213 which reads:

“Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter and in the case of criminal proceedings at the instance of the accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” (Italics mine).

Since the applicant has been acquitted of the murder charge, the Attorney-General can appeal against the decisions as of right only on ground of law alone under section 213(2)(a). See Stephen Oteki v. Attorney-General of Bendel State (1986) 2 N.W.L.R. (Pt.24) 648 at 656. He cannot appeal as of right on grounds which involve questions of fact or questions of mixed law and fact. The constitution does not give him the right to do so. If the conviction had been affirmed and the accused sentenced to death, the accused person would have had the right to appeal as of right on grounds involving questions of law, questions of mixed law and fact or questions of fact. See section 213(2)(d). I have examined the grounds of appeal filed by the respondent (represented by the Attorney-General) and found that they all involve questions of mixed law and fact or fact alone. The case is therefore not one in which an appeal lies as of right to the Court of Appeal. It does not come within the class of cases set out in section 213(2)(a) to (f) of the Constitution.

Learned Counsel for the applicant, Chief Ikeazor, S.A. N., quite justifiably submitted before this court both in his brief and orally that the respondent needs leave before he can exercise the right of appeal to appeal on the grounds set out. It is not because the case does not come within section

213(2)(d) alone that the Attorney-General cannot appeal without leave. It is also because the case does not come within section 213(2)(a).

Learned Counsel cited the case of The State v. Aibangbee and Anor.(1988) 3 N.W.L.R. (Part 84) 548 in support of his submission. He particularly had to draw attention to the dictum of Eso, J.S.C. at p. 558 to the effect that:

“An application for leave to appeal had to be and accordingly made by the State in regard to their appeal against acquittal.”

The State in that case took all precautions to make its appeal a competent appeal.

It is necessary for all appellants to comply with the provisions of the Constitution when appealing otherwise they will sooner or later realise that their appeal lacks the competence to invoke the jurisdiction of the court to hear and determine it. Equally fatal to this appeal is the second ground of objection. The second major submission of the applicant’s counsel is that this court cannot exercise its jurisdiction to hear the appeal as the notice of appeal was filed outside the statutory period of 30 days from the date of the judgment of the Court of Appeal. He cited in support section 31(1) and (2) of the Supreme Court Act, Order 2 Rule 30 of the Supreme Court Rules 1985 and the cases of Idiang v. The State (1981) 6-7 S.C. 95; Onuoha v. C.O.P. (1959) 4 F.S.C.23; Asuquo Etim v. The State (1982) 10 S.C. 20 at 21; Okodon v. The State (1981) 9 S.C.1. This objection is also very well founded.

The right of appeal conferred by the Constitution can only be exercised in accordance with the provisions of the Act of National Assembly which in this case, is the Supreme Court Act 1960, the Judicial etc., Offices and Appeals by Prosecutors Act 1963 and subject therefore the Rules of Supreme Court made by the Chief Justice of Nigeria. See section 213(6) and section 216 of the Constitution of the Federal Republic of Nigeria, 1979. The relevant section of the Supreme Court Act is section 31(1) and (2)(b), the provisions of which read:

“(1) where a person desires to appeal to the Supreme Court, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the Rules of Court within the period prescribed by sub-section (2) of this section that is applicable to the case.

(2) the periods prescribed for giving of notice of appeal or notice of application for leave to appeal are:

(a) [not applicable]

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.”

The uncontradicted affidavit evidence shows that the decision of the Court of Appeal was delivered on the 25th day of April, 1988 while the notice of appeal was filed on the 22nd day of July, 1988. The number of days which elapsed before the respondent filed his notice of appeal is far in excess of 30 days. It is 88 days. The notice of appeal was not filed with the leave of the court and it was filed out of time. It therefore is not a proper notice of appeal to initiate appeal proceedings. It is a nullity. There is a long line of authorities on this point.

The earliest case I wish to refer to is the case of The Queen v. Akpan John Nda (1957) 2 F.S.C. 29; (1957) S.C.N.L.R. 346. It was an appeal by the accused person. The issue before the Supreme Court in that case is whether the Supreme Court has the power to extend time in which to appeal against conviction involving a sentence of death. The judgment of the Court was delivered by De Lestang, FJ. It is short and the relevant portion of it reads:

“The prisoner was on the 17th day of July, 1957convicted of murder in the High Court of the Eastern Region of Nigeria, the Calabar Judicial Division, and was sentenced to death. On the 30th September, 1957, he filed an application for leave to appeal against his conviction. The application was however out of time because section 14(1) of the Federal Supreme Court Ordinance Cap 229 provides that a convicted person desirous of appealing must give notice of appeal or notice of application for leave to appeal within 15days of the date of the sentence. That being so, the prisoner on the 9th October, 1957 filed an application for extension of time within which to appeal. Unfortunately, this court has no power to extend time in the case of a conviction involving sentence of death. See section 14(2) id. Both applications must therefore be refused.”

This was before the Supreme Court Act 1960was passed. The restriction on time of filing murder appeals was also evident. The next case is:

Berepegha Frubide v. The State(1969) 1 All N.L.R.255. The judgment of the Supreme Court delivered by Lewis, J.S.C. is short and reads:

“As this is a murder appeal in which the accused was convicted by Obaseki, J. on 25th February, 1969 in the High Court, Warri, in charge W.22067 but only signed his motion of appeal on 1st April, 1969 and filed it on 15th April, 1969, the appeal is not within 30 days required by section 31 of the Supreme Court Act and under section 31(4) we have in a murder case no power to extend that time.”

That expresses the legal position as it is at present in respect of appeals by accused persons.

The next case is Egbo Ojojo v. The State (1970) 1 All N.L.R. 33. This appeal was also struck out as the notice of appeal was filed out of time. It was signed by the accused after the time prescribed by the Supreme Court Act had expired.

I now come to this decade and refer to the case of Neeyode Peba v. The State (1980) 8-11 S.C. 76. It was a murder appeal from the Court of Appeal. The appeal to the Court of Appeal from the High Court was found to have been filed out of time so that the whole proceedings before the Court of Appeal was held a nullity and consequently the appeal to the Supreme Court a nullity. Since then, there has been strings of cases decided by this Court where murder appeals filed outside the 30 days or signed by the prisoner outside the 30 days have been struck out as incompetent.

It is only recently the court took a good second look at the section and came to the conclusion that a convicted murder accused is not a free person and once he has signed his notice of appeal in the presence of prison welfare officers and handed the papers to the prison officials for filing, the date of signature will be taken as the date for determining the validity of the notice. In this regard, I refer to the cases of Monday Enweliku v. The State (1970) 1 All N.L.R. 55; Amusa Adio & Ors. v. The State (1986) 2 N.W.L.R. (Pt.24) 581; Anamaba Ohuka & Ors. v. The State (1988) 1 N.W.L.R. (Pt.72) 539 and Hakido Kpema v. The State(1986) 1 N.W.L.R. (Pt.17) 396. All the cases in which the objection has been upheld so far are cases involving sentence of death.

Learned Counsel for the applicant cited the dictum in Chief D. T. Akinbiyi v. Adegoke Adetabu (1956) 1 F.S.C. 45 at 46; (1956) SCNLR 109 at 111 which reads:

“No appeal lies in any case unless it is conferred by statute and it is a well settled principle that before you can appeal against an acquittal, the words must be clear, express and free from ambiguity.”

I agree with the dictum as all rights of appeal to all courts in the country are statutory.

He went on to submit that section 213(2)(d) which gives a right of appeal in cases where a sentence of death is imposed does not cover situations where there is an acquittal.

I agree that sub-section (2)(d) of section 213 covers situation where there is a conviction and sentence of death and not where there is an acquittal. The 1979 Constitution is however not silent on the issue of acquittal. Since acquittal or a verdict of acquittal is a decision in any criminal proceedings, it comes within the class of cases referred to in sub-section (2)(a) of section 213 of the 1979 Constitution in respect of which an appeal lies as of right to the Supreme Court on ground of appeal involving questions of law alone. It is also my view that with the leave of the Court of Appeal or the Supreme Court, an appeal lies against a verdict of acquittal to the Supreme Court on grounds involving questions of mixed law and fact or facts alone. The provisions of Part IV of the Supreme Court Act 1960 has been modified by the judicial etc. Offices and Appeals by Prosecutors Act 1963 with respect to appeals by a prosecutor. This Act prescribes 7 days in which to appeal. A prosecutor appealing cannot file his notice of appeal outside the statutory period of 7 days. He must do so within the 7 days of the date of the decision of the Court of Appeal. See Amudipe v. Arijodi (1978) 9-10 S.C.27. See section 4(3) of the Judicial etc. Offices and Appeals by Prosecutors Act 1963 No. 10 of 1963.

During the hearing of this appeal, learned Counsel for the applicant, Chief Ikeazor, omitted inadvertently, to draw the Court’s attention to this very important statute – Act No. 10 of 1963 titled ‘Judicial etc. Offices and Appeals by Prosecutors Act 1963’. Section 4 of the Act is very relevant to the point under consideration in that it makes provisions for the powers exercisable by the Supreme Court in criminal appeals to that court by any person or authority other than the accused person, and in sub-section (3) prescribes time within which notice of appeal or notice of application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves, or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide.

Moreover, the sub-section (3) expressly stipulates that the period shall “be seven days from the date of the decision in question and the Supreme Court shall not have power to extend that period.”

Thus, while the Supreme Court Act 1960prescribes a period of 30 days from the date of the decision in which an accused person may exercise his right of appeal, the judicial etc. Offices and Appeals by Prosecutors Act prescribes 7 days in which the person or authority prosecuting may exercise his right of appeal. In either case, the Supreme Court is deprived of the power to extend time. Turning to the instant appeal, the notice of appeal was filed 88 days after the date of the decision of the Court of Appeal. The notice of appeal filed on behalf of the State by the Attorney-General of Imo State is far out of time and this court has no power or jurisdiction to entertain the appeal. The right of appeal not having been exercised within the 7 days prescribed by the judicial etc. Offices and Appeals by Prosecutors Act 1963 lapsed and has been lost for ever under the Constitution. Sub-sections (3) and (4) of section 4 of the Act No.10 of 1963 read:

“(3) The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be SEVEN days from the date of the decision in question and the Supreme Court shall not have power to extend that period. (Italics mine).

(4) Where an accused is the respondent to an appeal brought by virtue of the provisions mentioned in sub-section (1) of this section, then-

(a) Part VI of the said Act of 1960 (i.e. the Supreme Court Act 1960) (which contains supplementary procedural provisions as respects appeals) sh3.JJ with the necessary modifications and subject to the last foregoing sub-section and paragraphs (b) and (c) below, apply in relation to the respondent as it applies to the appellant;

(b) the respondent shall be entitled if he so desires and the court may if it thinks fit require him, to be present on the hearing of the appeal and when any sentence is passed in consequence of the appeal; and

(c) without prejudice to the operation of sub-section (4) of section 34 of that Act (which authorises representation in writing in the absence of counsel) as modified by virtue of paragraph (a) above in relation to the respondent, that subsection shall not apply in relation to the appellant.

Part VI of the Supreme Court Act 1960 deals with time for appealing, legal assistance to appellant. Supplemental powers of the Court, right of the appellant to be present, admission of appellant to bail and date of sentence and procedure with respect to frivolous appeals on question of law.

The earlier cases of capital offences are concluded the better so that all authorities can play their roles with quick despatch.

The objection is well founded and I uphold it on the two grounds set out in the motion paper. The purported appeal is incompetent and cannot be entertained.

It is accordingly struck out.

SC.181/1988