The State V. O.O.duke & Ors (2002)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A. 

This is an appeal by the prosecution from the order, discharging the three accused persons, the respondents herein, of the criminal charges for the offences for which, they were standing trial upon the plea of no case submission by the defence following the inability of the prosecution to continue the case on the date to which it was adjourned for continuation. The con in which the discharge of the accused persons arose is as follows.

The three respondents were arraigned before Itam, J., at Calabar Judicial Division of the Cross River State High Court, for the offences of conspiracy to steal, stealing and attempt to steal contrary to sections 518(6), 390(9) and 509, respectively, of the Criminal Code, Cap. 31 of the 1983, Edition of the Laws of Cross River State. On 9/12/96, the accused pleaded not guilty to the charges. The trial began on 20/1/97 and continued until after 28/7/97, when the learned trial Judge was transferred to Ogoja Judicial Division of the State High Court. By that date, 10 witnesses had testified for the prosecution and the 11th witness was about to conclude his evidence with 2 more witnesses for the prosecution to call.

It appears from pages 128-129 of the record, that after a decision by the prosecution and the defence to begin the case de novo before another judge of Calabar Judicial Division, instead of getting an assignment order to empower Itam, J., to conclude the case Ekpe, J., became seised of the matter and on 6/4/98, took a fresh plea from the three accused persons each of whom pleaded not guilty to the charges. The trial recommenced afresh and continued and by 1/12/98, 5 witnesses had testified for the prosecution when the case was adjourned to 5/1/99 for continuation. The trial could not continue on 5/1/99 and was further adjourned to 3/2/99. On 3/2/99, the prosecution asked for a further adjournment of the case because their ‘last witnesses’ were not in court. The adjournment was granted by the learned trial Judge over a stiff opposition to the application by the learned Counsel for defence, who urged the court to order the prosecution to close their case and the case was again adjourned to 25/2/99 for continuation. On 25/2/99, a junior counsel, E. Henshaw, Esq., holding the brief of the leading counsel for the prosecution appeared and asked for an adjournment of the case; he gave no reason for the application, but pledged ‘to handle the matter on the next adjourned date’. The adjournment was fiercely opposed by learned Counsel for the defence, who in unison, urged the court to order the learned state counsel to close the case for the prosecution.

There and then, the learned trial Judge without any further ado ruled, ‘case for the prosecution is hereby closed’ and entertained final addresses by the learned Counsel, who continued their addresses on 16/3/99 and in turn, urged the court to dismiss the prosecution’s case and acquit and discharge the accused on all the three counts because the prosecution had failed to prove their case. The case was adjourned to 21/6/99 for reply by the prosecution. But on 10/5/99, the prosecution addressed the court and the case was adjourned to 27/5/99, for ruling. In her ruling, the learned trial Judge reviewed the evidence by the prosecution and concluded that ‘The prosecution had not made out a prima facie case for any of the accused persons to answer’; and acting under section 286 of the Criminal Procedure Law, discharged all the 3 accused persons on all the 3 counts of the offences charged.

This appeal is against that decision. In the notice of appeal filed on 7/7/99 and signed by one E. I. Henshaw, a senior state counsel, who described himself as ‘the Attorney General of Cross River State’ and authorised himself on behalf of the State to appeal against the decision of the trial court acting under sub-section 241(1)(a) (sic); presumably, for 243 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, and sub-section 25(2) (b) of the Court of Appeal Act, 1990′. In that capacity, ‘the appellant’ within the definition of that expression in rule 2 of Order 1 of the Court of Appeal Rules, 1981, filed 3 grounds of appeal including an omnibus ground of appeal and with leave of this court, filed later one additional ground of appeal. From the four grounds of appeal, the following two issues were formulated in the appellant’s brief of argument for determination:

“(1) Whether there was a valid and proper arraignment in accordance with the provisions of section 215 Criminal Procedure Law (CPL.) Cap. 32 Vol, ii Laws of Cross River State of Nigeria, 1983, and if not whether the trial was a nullity.

(2) Whether the appellant had a fair hearing during the trial.”

The first respondent adopted the issues formulated by the appellants while the 2nd and 3rd respondents formulated five issues each for determination. A preliminary objection to the competence of the appeal was raised and argued in the brief of argument of each respondent. Since the preliminary objection impinges on the jurisdiction of this court over the appeal, I must first examine the question as a fundamental issue.

The focus of the preliminary objection by learned Counsel for the respondents are the 1st and 2nd grounds of appeal filed with the notice of appeal on 7/7/99, which in substance are complaints against the refusal by the learned trial Judge of the appellant’s application for an adjournment of the case and her closure of the case for the prosecution immediately after the refusal of an adjournment that precluded the appellant from calling their remaining witnesses.

According to the learned Counsel, the decision to which the complaints in the two grounds relate was made on 25/2/99, before the trial was concluded on 10/5/99, at the end of address by the prosecution and are, therefore, on interlocutory matters. Being interlocutory in nature an appeal against the lapses must, by virtue of sub-section 25(2)(a) of the Court of Appeal Act, Cap. 62 of the Laws of the Federation of Nigeria, 1990, be filed within 14 days of the decision, the learned Counsel submitted adding that for an appeal to be filed outside that stipulated period the appellant must obtain leave of the trial court or this court extending the time within which an appeal can be filed as provided by sub-section 25(4) of the Act.

The learned Counsel further submitted that failure of the appellant to appeal against the decision of the learned trial Judge, which is interlocutory within the 14 days stipulated for doing so by sub-section 25(2)(a) of the Court of Appeal Act or seek leave of the court below or this court for extension of the time within which to do so as provided by sub-section 25(4) thereof rendered the two grounds of appeal incompetent and that issue 2 in the appellant’s brief of argument distilled from the incompetent grounds of appeal is, ipso facto, incompetent. The learned Counsel cited in support of his contention Odunukwe v. Ofomata (1999) 6 NWLR (Pt.607) 416, 423-424; Koku V. Koku (1999) 8 NWLR (Pt.616) 672, 681-682; Ojo v. Anibere, (1999) 11 NWLR (Pt.628) 630, 639. Looking at the matter from another angle, the learned Counsel conceded that, while it is permissible for the appellant to include the interlocutory appeal in the final appeal to avoid unnecessary waste of time by filing separate appeals in order to do that, the appellant must first seek extension of time within which to appeal in respect of the interlocutory part of the unified appeal. He submitted that failure of the appellant to seek leave of the court to extend the time within which to appeal, vitiates the two grounds of appeal and the issue distilled from the incompetent grounds founding for support on Ajore v. Lemonu (1994) 20 LRCN 357, 359; and Owena Bank Plc v. Nigerian Stock Exchange Ltd., (1997) 8 NWLR (Pt.515) 1.

The extension of the argument in the three briefs of the respondents was that, since the two original grounds of appeal by the appellant are incompetent, the additional ground of appeal filed by the appellant with leave of this court is also incompetent, because with no original ground of appeal left that could sustain the additional ground of appeal it is a question of ex nihilo nihil fit, i.e. from nothing comes. Echoing the same refrain, the learned Counsel submitted in unison that with no ground of appeal to support the first issue distilled from the additional ground of appeal, the entire appeal collapsed with no ground of appeal to sustain either the notice of appeal or the issues for determination. With that the learned counsel concluded on the preliminary objection that the appeal is incompetent and this court is without jurisdiction to entertain it supporting that proposition with the Supreme Court’s decision in Enitan v. The State (1986) 3 NWLR (pt.30) 604, 605; Baridam v. The State (1994) 1 NWLR (Pt.320) 250, 259; and Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179. The learned Counsel urged this court to dismiss the appeal.

The last arm of the preliminary objection can be quickly disposed of as one of gambit of misadventure engendered by a mindless oversight. Three grounds of appeal were filed with the notice of appeal, which each of the three learned Counsel for the respondents misread for two and on that misrepresentation of facts each counsel grafted a suave thread of sophistical argument with gusto. Learned Counsel for the appellant has put this arm of the preliminary objection to rout in their reply brief and I agree with their submission that whatever may ultimately be the finding on the competence of the 1st and 2nd original grounds of appeal, the existence of an omnibus ground as the third original ground was enough in law to sustain the validity of the appeal to which the additional ground is a valid enlargement. Equally, apposite to the argument of learned Counsel for the appellant on the vitality of the omnibus ground of appeal to sustain the validity of the appeal irrespective of the two other original grounds are the decisions in NNSC Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt.164) 526, 548; Ebay v. Irek (1990) 7 NWLR (Pt.160) 83, 91; Lucas Pharmaceutical Chemist Ltd. v. Roche (Nig.) Ltd., (1995) 1 NWLR (pt.369) 28, 37; and Yarkwa v. Shallangwa (1996) 4 NWLR (Pt.443) 489,497-498, relied upon by the learned Counsel. Thus, the last arm of the preliminary objection has fallen apart at the seam under a dim grasp of the material facts by a trio of learned Counsel for the respondents.