Usaini Umar V. Commissioner Of Police, Kano State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the High Court of Kano State, Appellate Division delivered on 31st January, 2013 in the matter of Appeal No. K/13A/2012 lodged by the appellant here in against the decision of the Chief Magistrate Court, Kano in charge No. KA/46/CTS/2011.

The appellant had stood trial before the Magistrate Court, of Kano State on a three count charge of criminal breach of trust, cheating, and criminal misappropriation punishable under Sections 314, 322 and 309 respectively of the penal code over a sum of N31,995,455 (Thirty-One Million, Nine Hundred and Ninety-Five Thousand, Four Hundred and Fifty-Five naira) allegedly entrusted in his hands by Pryme Decision Technical Company Ltd. for the completion of 5 units of Maternity Clinics out of the 20 units to be constructed by the Company, as well as conversion of a Toyota Ray 4 car belonging to the same company to his own use.

At the conclusion of the evidence of the four witnesses called by the prosecution, the (accused) appellant made a no case submission which was overruled by the learned trial Chief Magistrate A.A. Kabara Esq. in his ruling delivered on 22/3/2012, and consequent upon which the appellant appealed to the High Court of Kano State through a Notice of Appeal dated 23/4/2012.

The appeal was heard on 17th May, 2012 in the absence of the Respondent, but upon the application of the Respondent for leave to be heard which was granted by the Court, the appellant filed an application to argue additional grounds of appeal, and for leave to amend the Notice of Appeal and reargue the amended grounds.

The motion was opposed by the Respondent through a counter affidavit and contended that the grounds of appeal were incompetent and the Notice of appeal be struck out there being no ground to support it.

After hearing arguments from the parties, the learned appellate Judges of the High Court of Kano State refused the appellant’s prayers and struck out the entire appeal, holding that the grounds upon which the appeal was predicated were incompetent thereby rendering the appeal itself incompetent.

Against this ruling delivered on 31st January, 2013, the appellant has appealed to this Court through the Notice of Appeal dated 21/2/2013 but filed on 22/2/2013 with three grounds of appeal including the omnibus ground that “The Ruling is against the weight of evidence placed before the Lower Court.”

In furtherance of the appeal, the Appellants’ Brief of argument settled by Hassan M. Liman, SAN and dated 26/2/2014 was filed on 27/2/2014 but deemed properly filed on 27/3/2014. Also the Respondent’s Brief of Argument was settled by Okechukwu Nwaeze Esq., and filed on 21/5/2014 but deemed properly filed on 2/6/2014 while the Reply to the Respondent’s Brief was filed on 4/6/2014.

The Appellant has raised the following as the issues for determination in this appeal.

1. Whether the contemporaneous filing of the Notice of Appeal and the Memorandum containing the grounds upon which the appeal is filed, is a breach of the provisions of Sections 280(1) and 281(1) of the Criminal Procedure Code of Kano State which renders any Appeal filed in that manner incompetent and capable of robbing a Court of jurisdiction to hear the appeal?
2. Whether the learned High Court Judges of the Appellate Division of Kano State were right to have struck off the substantive appeal on a day fixed for ruling on the application to amend the Notice of Appeal.
3. Whether in view of the weighty issues in the No case submission filed by the Appellant the learned Magistrate is not bound to determine the issue of jurisdiction raised in the No case submission filed by the Appellant.

The three issues were said to have been distilled respectively from grounds 1, 2 and 3 of the Notice of Appeal.

The issues for determination, as formulated by the Respondent also from the grounds of appeal are as follows:

1. Whether the Notice of Appeal filed by the Appellant on the 23rd day of April is incompetent in law.
2. Whether the Judges sitting in appeal lacked the vires to hear adjudge the Notice of Appeal incompetent upon an application to amend a Notice of Appeal.
3. Whether the issue of the Lower Court jurisdiction to adjudicate over the charge can be grounded upon the omnibus ground that the judgment is against the weight of evidence and if same can, whether the Lower Court did not determine same on the face of the records.

At the hearing of the appeal, Hassan M. Liman, SAN was the leading Counsel for the appellant. He adopted both the Appellant’s Brief and the Reply Brief. He placed reliance thereon to urge Court to allow the appeal and invoke Section 15 of the Court of Appeal Act to give effect to the No case submission that was the genesis of the appeal. Okechukwu Nwaeze Esq., for the respondent adopted the Respondent’s Brief and relied thereon with the Additional Authorities dated 30/6/2014 which relate to the exercise of the powers of this Court under Section 15 of the Court of Appeal Act and the conditions for adducing further evidence in this Court.

Thus the issues formulated by the parties are quite similar. I will however adopt the three issues set out by the appellant and determine the appeal upon those issues.