Legalpedia Electronic Citation: LER [2019]SC.127/2014

Suit no: SC. 127/2014

AREAS OF LAW:
Appeal, Court, Judgment And Order, Practice And Procedure

SUMMARY OF FACTS:
The Appellant was arraigned before the High Court of Kaduna State, on a four count charge of false pretence with intent to defraud by obtaining the sum of N 250,000.00 and N750, 000.00 contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act of 2006 and punishable under Section 1(3) of the Act, making and using false document as genuine contrary to Section 364 of the Penal Code. The Appellant pleaded not guilty to the charge and the case proceeded to trial. While the Prosecution called eight(8) witnesses to testify on its behalf, the Appellant opted for a no case submission but same was overruled by the trial court. Dissatisfied with the trial court’s ruling on the “No Case Submission”, the Appellant appealed to the Court of Appeal in Kaduna Division. The Respondent raised a preliminary objection on the competence of the Appeal on the ground that the Notice of Appeal filed by the Appellant is incompetent being one that raised issues of mixed law and facts requiring leave of court by virtue of the provisions of 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999(as amended). The lower Court upheld the preliminary objection of the Respondent and held that the appeal was incompetent and proceeded to strike out same. The court also directed that the Appellant should proceed to enter his defence. Further dissatisfied by the lower court’s judgment, the Appellant has lodged the instant appeal contending that although the appeal originated as an interlocutory appeal, it is not every interlocutory appeal that requires leave of Court as Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999(as amended) provides an exception.

HELD
Appeal Dismissed
ISSUE FOR DETERMINATION
 Whether given the circumstances of this appeal the Appellants appeal is incompetent having teen filed without the leave Court
RATIONES
APPEAL – WHEN DOES AN APPEAL LIE AS OF RIGHT AND WITH THE LEAVE OF COURT?
“I’ll reproduce the relevant provisions of the Constitutions of the Federal Republic of Nigeria 1999 (as amended), thus:
“241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) 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;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court – “
“(i) where the liberty of a person or the custody of an infant is concerned.
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and (v) in such other cases as may be prescribed by any law in force in Nigeria”
“242. (1)Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court Appeal (Emphasis added)”
From the above provisions, it very clear beyond conjecture that the Constitution of the Federal Republic creates two forms of appeal- appeal as of right without leave and appeal with leave of Court. See also Harriman Vs Harriman (1987) 3 NMLR at 244”. PER S.D.BAGE, J.S.C
DECISION OF COURT – WHEN IS A DECISION OF COURT FINAL?
“The law is since settled that a decision is final if it finally disposes of all the rights of the parties in the case and gives no room to go back to the same court to ask it to decide on the same matter, See Ogolo Vs Ogolo (2006) 5 NWLR (Pt.972) at Pages 171-172..” PER S.D.BAGE, J.S.C
LEAVE OF COURT – WHETHER THE CONSTITUTIONAL REQUIREMENT OF LEAVE OF COURT CAN BE WAIVED
“Requirement of leave of Court is a procedural requirement of constitutional significance. Put differently, it is a procedural step of constitutional flavour. While I’m minded that the Court tend to overlook, in deserving situations, innocuous flaws for the purpose of doing substantial justice, Constitutional requirement of leave of Court though procedural, cannot be waived as doing otherwise will render the decision in frontal collision with the Constitution. PER S.D.BAGE, J.S.C
DECISION OF COURT – WHEN IS A DECISION FINAL?
“A decision is final if it finally disposes of the rights of the parties. If it does not finally dispose of their rights it is interlocutory. See: Alor Vs Ngene (2007) 17 NWLR (Pt.1062) 163 Q 175 -176 F-6, 177 E-F: 177 E-F and 179 – 180 H-A; Akinsanya Vs U.B.A Ltd. (1986) 4 NWLR (Pt. 35) 273.”PER K.M.O. KEKERE-EKUN, J.S.C
GROUND OF APPEAL – GUIDING PRINCIPLES IN DETERMINING WHETHER A GROUND OF APPEAL IS ONE OF LAW OR OF FACT OR OF MIXED LAW AND FACTS
“I feel fortified in that view having been guided by earlier decisions of this court on how grounds of appeal may be categorised of law or mixed law and facts or of law may be ascertained. I shall make reference to the case of BASF Nigeria Limited v Faith Enterprises Ltd (2010) 1 SCNJ 223 at 247-248 for guidance thus:-
“A ground of law arises where a ground of appeal indicates that the trial court or, an appellate court misunderstood the law or misapplied the relevant law or principles of law to the proved or admitted facts in a particular case. (Okorie v Udom (I960) SCNLR 360; Ogbechie v Onochie (NO. l) (1986) 2 NWLR (Pt.23) 484 referred).
(2). The principles guiding the court in its determination of whether a ground of appeal or otherwise is one of law or of fact or of mixed law and facts are as follows: –
a) Whether the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based such a ground is of mixed law and facts.
b) A ground which challenges the findings of fact or issue of law and mixed fact considered by a trial court is one of law and fact.
c) A question arising out of the evaluation of the evidence tendered at the trial is ground of fact.
d) A ground of appeal which arises out of misunderstanding of the law by a trial court of appellate court is a ground of law.
e) A complaint about wrongful admission of evidence is also a question of law. Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718; Ogbechie v Onachie (1986) 2 NWLR (Pt.23) 484; Anoghalu v Oraclosi (1994) 2 NWLR (Pt.324) 68 referred to)”.
– PER M.U. PETER-ODILI, J.S.C

STATUTES REFERRED TO:
Advance Fee Fraud and Other Related Offences Act of 2006
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Penal Code