Legalpedia Citation: (2023-05) Legalpedia 65307 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Thu May 18, 2023

Suit Number: CA/ABJ/CR/923/2021

CORAM

Ita George Mbaba JCA

Saidu Tanko Hussaini JCA

Sybil Onyeji Nwaka Gbagi JCA

PARTIES

COMMISSIONER OF POLICE

APPELLANTS

SHAMSHUDEEN SALISU

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

At the trial Court, the Respondent (accused) was accused of stabbing one Abba Suleiman Mohammed ‘M’ on the chest with a knife, which resulted to his death knowing fully well that death was the probable consequence of his action and thereby committed an offence contrary to Section 220 and punishable under Section 221 of the Penal Code Law. This was said to have happened in Garki Village Ungwan Hausa, Abuja, during the fracas between Garki and Kaduna boys, at a joint where they were smoking Indian Hemp.

The Respondent, on arraignment, had pleaded NOT GUILTY to the charge, and after hearing the prosecution and the Defence Counsel, who made a no case submission, and upon considering the submission/addresses of Counsel, the trial judge upheld the no case submission and discharged and acquitted the Respondent.

The prosecutors were dissatisfied with the decision of the trial court and hence this appeal.

HELD

Appeal dismissed

ISSUES

Ø Preliminary Objection?

RATIONES DECIDENDI

APPEAL – MAXIMUM PERIOD FOR PROSECUTORS TO FILE APPEAL IN CRIMINAL CASES INVOLVING MURDERS ETC

The two Counsel on both sides have made quite some interesting submissions on the applicability (or otherwise) of Section 4(3) of the Judicial etc. Officers and Appeals by Prosecutors Act, 1963 to this Appeal, with regards to the 7 days maximum period for a prosecutor to file appeal in criminal cases involving murders etc. While the Counsel on both sides admit the existence of this regulatory Act, Appellant’s Counsel argued that the provision only relates to criminal Appeals to the Federal Supreme Court, not to the Court of Appeal, that by the provisions of the Court of Appeal Act, appeals, whether Civil or Criminal, have to be filed within 90 days, from the date of the decision of the High Court, appealed against.

The provisions of Section 4(3) of the Judicial etc, Officers and Appeals by Prosecutors Act of 1963 states:

“The period within which notice of appeal or an application for leave to appeal to the Federal 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 Federal Supreme Court shall not have power to extend that period.”

Appellant’s Counsel has been fixated on the phrase “appeal to the Federal Supreme Court”, to distinguish the provision from this Court (Court of Appeal) to the effect that the provision only applied to the Federal Supreme Court (which he said now refers to the Supreme Court), not to the Court of Appeal; that the express mention of a thing by statute, implies exclusion of others (Opia Vs INEC (2014) 7 NWLR (Pt.1407) 431 at 464).

Appellant’s Counsel appeared to be very economical with the truth, when he went through memory lane, to show that the Federal Supreme Court, named in the 1963 Act, to which appeals lied, is now the Supreme Court of Nigeria as per the 1999 Constitution of the Federal Republic of Nigeria.

Appellant’s Counsel failed to show that the Court of Appeal, as it is today, was not in the contemplation of the 1963 Act, this Court being a product of the 1976 Act, which created the Federal Court of Appeal (now Court of Appeal) as the penultimate Court in Nigeria (And this is well captured in the 1999 CFRN, as amended. See also the Court of Appeal Act, 2004. It was earlier provided for in the defunct 1979 Constitution of FRN).

Of course, prior to the establishment of the Court of Appeal, in 1976, the Federal Supreme Court served as Appellate Court and received appeals from the High Courts. That information is elaborately stated in the brief history of the Court of Appeal of Nigeria, as shown in the 2023/2024 diary of the Court of Appeal (introductory pages) to the effect that:

“The Court of Appeal is the Penultimate Court in the hierarchy of all Courts in Nigeria. Prior to its establishment, there had been a system of direct Appeals from the High Courts to the Federal Supreme Court, which in 1963, had become the Nation’s Apex Court, following the abolition of appeals to the Judicial Committee of the Privy Council. In the bid to ensure that justice was better delivered, the need became apparent for the establishment of an intermediary Court between the High Courts and the Supreme Court of Nigeria, the apex Court. In 1967, this led the Government of the Western State to establish a Court known as the Western Nigeria Court of Appeal…

However, the increased pressure upon the Federal Supreme Court at this time led to renewed discourse on the need for intermediate national Court to lighten the load of the Apex Court. In response thereto, a special taskforce on the Judiciary was inaugurated by the Udoji Commission in 1974, with the recommendation that the existing Supreme Court be reconstituted as the National Court of Appeal. The Constitution Drafting Committee, inaugurated in 1975, eventually made recommendations, through its sub-committee on the Judicial system for the establishment of a Federal Court of Appeal.”

The Court of Appeal was formally established by the Court of Appeal Decree in 1976 (a military Decree), which has since been amended into the Court of Appeal Act, 2004.

The learned Counsel for the Appellant had, therefore displayed a grave ignorance, when he argued that the Federal Supreme Court then, meant the Supreme Court of Nigeria, as it is today, exclusively. Of course, the Federal Supreme Court then, actually represented the Court of Appeal of today, to which appeals from the High Courts lied.

The Judicial etc, Officers and Appeals by Prosecutors Act 1963, therefore, applied to appeals from the High Courts to this Court, and that 1963 legislation has since remained part of the laws governing the filing of Appeals from the High Courts to this Court (Court of Appeal) on Criminal causes by the Prosecution. See the case of State Vs Omoyele (2016) LPELR – 40842 (SC), where it was held:

“Now, this instant case, being one in which the respondent was acquitted of the murder charge, the State, which is the prosecutor, has right to appeal against such acquittal within seven days only by virtue of the provisions of Section 4 of the Judicial, etc Office and Appeals by Prosecutors Act, No.10 of 1963 the Act Subsection (3) of Section 4 of the Act provides that a prosecutor, such as the appellant in this appeal, has only seven days within which to give its notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The Act even went further to provide that the seven days period shall not be extended. That is the law as it is now, period. This appeal was therefore filed out of time and as such the late filing renders it incompetent. This Court therefore lacks jurisdiction and competence to hear and determine the appeal. See STATE v. ADILI (supra), QUEEN v. NDA (1957) 2 FSC 29 (1957) SC NLR 346, FROBIDE v. STATE (1969) 1 ALL NLR 255; OKODON v. STATE (1981) 9 SC 1, OJOJO v. THE STATE (1970) 1 ALL NLR 33.” Per SANUSI, JSC (Pp. 27-28, para B)

See also the State Vs Terver Kapine & Anor (2019) LPELR – 49511 (SC), where it was held:

“Undoubtedly, the right of appeal in criminal cases to this Court can only be exercised in accordance with the provisions of Acts of the National Assembly and the Rules of the Court made by the Chief Justice of Nigeria pursuant to Section 236 of the 1999 Constitution (as amended). Statutes relevant to the appeal at hand, being in a criminal case, are the Supreme Court Act and the Judicial etc.

Officers and Appeals by Prosecutors Act No.10 of 1963. The constitutional right of a prosecutor, such as the appellant herein, to appeal derives from the provision of Section 4 of the Judicial Etc. Offices and Appeals by Prosecutors Act, No. 10 of 1963 in respect of which this Court in ADILI V. STATE (supra) held at pages 329 – 330 inter-alia as follows:- “The right of a prosecutor, such as the appellant, to appeal derives from the provisions of Section 4 of Judicial Etc. Offices and Appeals by Prosecutors Act No. 10 of 1963. By the provision of Sub-section (3) of that Section, a prosecutor has only seven days to give his notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. It is also expressly provided that that period shall not be extended. It is for the legislator to amend the law. It is for us to apply the law, as it is.” (Underlining mine for emphasis). In restating the foregoing position and distinguishing other situations that are not caught up by the Judicial etc. Offices and Appeals by Prosecutors Act No. 10 of 1963, the Court per my learned brother, Amiru Sanusi in STATE V. OMOYELE (supra) at page 371 of the law report opined thus: “I have read Tawakalitu’s case and did not see anywhere this Court considered Adili’s case at all. In fact, the facts in Tawakalitu’s case which relates to examination malpractices are distinguishable from those in Adili’s case and even in Tawakalitu’s case, the offence of examination malpractices attracts a fine not exceeding N50,000 or three years jail term while Adili’s case involves murder or manslaughter. It is applicable regarding period within which to appeal is Section 27(2) Supreme Court Act, Cap. 515, Laws of the Federation of Nigeria, 2004, while the applicable law in Adili’s case is the Judicial, etc offices and appeals by Prosecutors Act No. 10 of 1963 in view of the nature of the offence and conviction. We should not lose sight of the fact, that the Judicial, etc Offices and appeal by Prosecutors Act No. 10, is a special legislation promulgated to limit and narrow the scope of application such as cases involving sentence of death or verdict of guilty of manslaughter such as the situation in this instant appeal.” (Underlining mine for emphasis).

In the case at hand, it is clear that the offences the respondent was charged and convicted for and in respect of which acquittal by the lower Court the instant appeal is being pursued, does not involve murder or manslaughter.”​

Thus, the Judicial etc Officers and Appeals by Prosecutors Act, 1963, is still very much in vogue and applicable in cases which involve or could involve sentence of death or a verdict of guilty for manslaughter or culpable homicide, whereof the Appellant, being the Prosecutor or any authority (other than the accused person), who seeks to appeal against the decision of the High Court, must do so within 7 days, from the date of delivery of the judgment. And there is no room for any application for extension of time to file such appeal. See the case of State Vs Omoyele (supra). – Per I. G. Mbaba, JCA

NOTICE OF APPEAL – WHEN NOTICE OF APPEAL WOULD BE DEEMED TO HAVE BEEN SERVED

But on the allegation that the Notice of Appeal was not served on the Respondent and that there is nothing to show that the respondent was aware of this appeal, I believe the Respondent did not intend to be taken seriously, as the Respondent has already filed his brief to contest the appeal, as well as this preliminary objection. There is no doubt that the Respondent’s brief is founded on the Appellant’s brief and on the Records of Appeal in this case. The notice of this appeal is reproduced on pages 273 to 277 of the Records of Appeal. I do not think the Respondent could have filed his brief, without being aware of or served with the Records of Appeal, and with the Appellant’s brief and so Respondent must have been aware of this appeal, the law permits the Court to assume that a Respondent has been communicated with processes about the pendency of the appeal, in such circumstances. See the case of Emerald Energy Res. Ltd Vs Signet Advisors Ltd (2021) 8 NWLR (Pt.1779) 579, where it was held:

“there is a game changer in the proviso to Order 2(1)(a) that excuses personal service in some instances. By the proviso, this Court will not insist on personal service and indeed the Respondent cannot insist on personal service if “the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent.” In a situation such as this, where there was no personal service of the notice of appeal, the Court will not decline jurisdiction or the Court will not allow any objection to the hearing of the appeal on that ground once the Court is satisfied that the notice of appeal has been communicated to the Respondent.”

There cannot therefore be valid objection to service of Notice of Appeal, where the objector has been communicated with the process and he has taken steps to defend the Appeal by filing his brief of arguments. – Per I. G. Mbaba, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code Law
3. Judicial etc. Officers And Appeals by Prosecutors Act, No. 10 of 1963
4. Court of Appeal Rules 2021
5. Court of Appeal Act, 2004
6. 1979 Constitution of the Federal Republic of Nigeria
7. Supreme Court Act, Cap. 515, Laws of the Federation of Nigeria, 2004

OTHER CITATIONS