The State Vs Dr. Olu Onagoruwa (1992)

LawGlobal-Hub Lead Judgment Report

S. M. A. BELGORE, J.S.C

The respondent was charged with the offence of stealing before Silva J. sitting in the High Court of Lagos. At the close of the case for the prosecution and after a no-case submission by the counsel for the accused person, learned Judge ruled the accused had a case to answer. Against this ruling the appellant filed a Notice of Appeal to the Court of Appeal and moved a motion before the same learned trial Judge for stay of further proceedings pending the determination of the appeal on the no case ruling by the Court of Appeal. This motion was dismissed and the accused by way of another motion in the Court of Appeal prayed as follows:-

“1. An Order extending the time within which to apply for leave to appeal on questions of mixed law and fact as contained in grounds 1, 2 and 4 of the grounds of appeal annexed hereto as Exhibit ‘B1’.

2. An Order granting leave to appeal on questions of mixed law and fact contained in grounds 1, 2 and 4 of the grounds of appeal annexed hereto as Exhibit ‘B1’.
3. An Order extending the time within which to appeal on questions of mixed law and fact contained in grounds 1, 2 and 4 of the grounds of appeal.
4. An Order deeming as properly filed the Notice of Appeal filed on the 25th day of June, 1990 containing the aforesaid grounds of mixed law and fact and annexed hereto as Exhibit ‘B1′.
5. An Order staying further proceedings in the lower court pending hearing and final determination of the substantive appeal in this case.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

And further Take Notice that the grounds upon which this application is brought are:

1. To bring the Appellant’s Notice of Appeal dated 25th June, 1990 which contains grounds of law and mixed law and fact in line with the 1979 Constitution, the Court of Appeal Act and mixed law and fact in line with the 1979 Constitution, the Court of Appeal Act and the Rules of this court.
2. To ensure that the success of the substantive appeal is not rendered nugatory.

Dated at Lagos this 13th day of August, 1990.”

This application anticipated that the Notice and Grounds of Appeal filed on 25th June, 1990 might be incompetent. With the present appellant’s preliminary objection to the motion quoted above, the Court of Appeal ruled as follows:

“Time extended within which to apply for leave to appeal on grounds 1, 2, and 4 as in Exhibit B1 is hereby granted. Time extended for appeal on mixed law and fact Notice of Appeal filed on 25th June, 1990 deemed’ properly filed as in Exhibit BI. INTERIM STAY IS HEREBY GRANTED PENDING THE DETERMINATION OF THE APPLICATION FORSTAY OF FURTHER PROCEEDINGS NOW FIXED FOR 27TH NOVEMBER, 1990.”

In effect the proceeding in the substantive case in the High Court was stayed pending the hearing of application for stay of further proceedings though leave was granted to appeal. The matter was adjourned to 27th November, 1990. On 12th November, 1990, the present appellant filed Notice of Preliminary Objection as follows:

“NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE THAT at the hearing of the motion of the Appellant/Applicant dated the 13th day of August, 1990 and filed on the same date in this Honourable Court the Respondent shall raise a preliminary objection to the motion and to the entire appeal on the grounds that:

1. This Honourable Court has no jurisdiction to entertain the same.
2. The entire appeal and all the steps and proceedings so far taken in it are a nullity.

IN THAT:

1. This Honourable Court in the case of Christopher Uche Versus The State CA/L/249/89 decided on the 4th day of October, 1990 held that an appeal on a no-case submission is incompetent and a nullity.
2. The present appeal being on a no-case submission must abide the decision of this Court in Christopher Uche Versus The State supra which, in any case, is binding on this Court.

Dated this 12th day of November, 1990.”

The matter could not be heard on 27th November, 1990 and was adjourned to 5th February, 1991 with the order that the interim stay of 23rd October, 1990 (earlier referred to) should continue. On 5th day of February, 1991, the proceedings that took place in the Court of Appeal may be summarised as follows: