Chief Olisa Metuh V. Federal Republic Of Nigeria & Anor (2018)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
The appellants in the two appeals stand trial at the Federal High Court sitting in Abuja, hereinafter referred to as the trial Court, on a seven count money laundering charge. On their arraignment, they pleaded not guilty to the charge. The respondent led eight witnesses through whom several documents were admitted in evidence to establish its case against the appellants. At the close of the respondent’s case, the appellants made a no case submission and urged the trial Court to discharge them. In a considered ruling delivered on the 9th March 2016, the trial Court dismissed appellants’ no case submission and ordered them to enter their defence.
Aggrieved by the trial Court’s dismissal of their no case submission, the appellants separately filed their notices of appeal, containing the same grounds, against the ruling on 23rd March 2016 at the Court of Appeal, Abuja Division, hereinafter referred to as the Lower Court. The appellants urged the Lower Court to determine their appeals by resolving the five issues distilled in their respective briefs. The sole issue distilled
1
by the respondent as having arisen for the determination of the appeals which the Lower Court preferred and resolved in its determination of the two appeals before it reads:-
“Whether the trial Court was right in holding that the Respondent (prosecution) had made out a prima facie case against the Appellants (Defendants) to warrant their being called upon to enter their defence.”
The respondent had earlier filed a preliminary objection against the competence of the appeals and prayed the Lower Court to determine same on the basis of its lone issue therefrom that reads:-
“Whether the notices of appeal of the appellants against the ruling of the Federal High Court, Abuja on the no case submission filed without leave of the Court is competent.”
Notwithstanding the fact of its upholding respondent’s preliminary objection, the Lower Court being the penultimate Court, all the same resolved the lone issue it preferred in the determination of the appeal in favour of the respondent and dismissed the appeals. The Court’s decision is dated 25th May 2016. The appellants have further appealed to this Court on their respective notices containing five
2
grounds each filed on the 1st day of June 2016.
At the hearing of the appeals, parties having identified their respective briefs adopted and relied on same as their arguments for and against the appeals. The three issues distilled in Appeal No.SC.457/2016 which are identical with those formulated by the appellant in Appeal No.SC.470/2016 read:-
- Whether the learned Justices of the Court of Appeal were wrong when they struck out the appeal on the ground that all the Grounds of Appeal filed by the Appellant were grounds of mixed law and fact for which prior leave of Court was required by virtue of Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Ground 1. (Underlining supplied for emphasis).
- Whether the learned Justices of the Court of Appeal were wrong when they held that the 1st Respondent established the essential elements of the offences charged and established prima facie case requiring the Appellant to enter his defence. Ground II, IV, V, and VI.
- Whether the learned Justices of the Court of Appeal were wrong when they held that the questions raised by the trial Judge were mere
3
rhetoric questions’ and did not case the burden of proof on the appellant.
Ground III.”
The three similar issues distilled by the respondent for the determination of the appeal are:-
A. Whether the learned Justices of the Court of Appeal were not correct/right in upholding the 1st Respondent’s preliminary objection and consequently striking out the appellant’s Notice of appeal together with all the arguments on the issues raised for being incompetent. Ground 1.
(Underlining supplied for emphasis).
B. Whether the learned Justices of the Court of Appeal notwithstanding the striking out of the appellant’s Notice of Appeal on grounds of incompetence and having considered the appeal on the merit, were not correct/right in upholding the ruling of the trial Court, dismissing the appellant’s no case submission and holding that the 1st Respondent had made out a prima facie case and that the appellant had a case to answer. Grounds II, IV, V and VI.
C. Whether the learned Justices of the Court of Appeal were not correct/right when their lordships held that the questions posed by the trial Court in its ruling on the no case
4
submission were merely rhetorical and not meant to shift the burden of proof to the appellant in breach of the appellant’s right to fair hearing and did not amount to a case of the trial judge descending into the arena of conflict to predetermine the case against the appellant. Ground III.
On the 1st issue, learned senior counsel for the appellant in appeal No. SC.457/2016 contends that the Lower Court’s finding that the entire grounds of the appeal before it are at best grounds of mixed law and fact is manifestly wrong. The appellant, it is submitted, had rested his case on the evidence led by the respondent at the trial Court in proof of all the seven counts in the charge for which the appellant was being tried. Grounds III, IV, VI of the notice of appeal, learned counsel further submits, are couched in that clear tone. The 8th ground of appeal, it is submitted, dwells on certain comments made by the trial judge which prejudge the issues in contention between the parties. Either by virtue of those grounds which question the trial Court’s wrong application of the law to ascertained facts or by virtue of appellant’s 8th ground of appeal, learned
5
senior counsel argues, the appeal by the combined operation of Sections 241 (1) and 242 (1) of the 1999 Constitution as amended, being founded on ascertained facts and/or ground of law alone, require no leave of either the trial Court or the Lower Court for its competence. Relying on Akinyemi V. Odua Investment Co. Ltd (2012) 17 NWLR (Pt.1399) 209 at 233 and CPC V. INEC (2011) 18 NWLR (Pt.1279) 493, learned senior counsel urges that the Lower Court’s wrong decision be set aside and the competent appeal determined on merit.
Replying, learned respondent’s counsel submits that since appellant’s appeal is an interlocutory one, Section 242(1) of the 1999 Constitution as amended places on him the duty of acquiring the leave of either the trial or Lower Court before filing the appeal. Not having acquired the leave and all the grounds of appeal being grounds of fact or mixed law and fact, the Lower Court, submits learned counsel, is right to have adjudged the appeal incompetent. Citing the decisions in Harriman V. Harriman (1987) 3 NWLR (pt 60) 244, Akinyemi V. Odua Investment Co. Ltd (2012) 7 NWLR (Pt.1329) 230, Ogolo V. Ogolo (2006) 5 NWLR (Pt.972) 172,
6
Sowemimo V. State (2004) 11 NWLR (Pt.885) 515 at 529 and Madukolu V. Nkemdilim (1962) 2 SCNLR 341, learned respondent’s counsel concludes that the Lower Court’s correct decision be sustained.
Now, the gemane findings of the trial Court the appellants purport to have appealed against to the Lower Court are as contained at pages 895 to 909 of the record of appeal. The rationes decidendi for the trial Court’s dismissal of appellants’ no case submission reads in part, see page 904 of the record of appeal, thus:-
The case of the prosecution has revealed several questions that it is only the 1st defendant that can provide answers…. It is my humble view that where the 1st Defendant answers these questions or even where he fails to answer the questions it will be clear if the 1st Defendant knew or reasonably ought to know or did not know that the said sum of 400 million naira transferred to the 2nd Defendants account in Diamond Bank Plc formed part of the proceeds of criminal breach of trust and corruption. In this defence, the prosecution will also have the opportunity to cross-examine the 1st defendant and the witnesses he intends
7
to call. (Underlining supplied for emphasis).
Aggrieved, the appellants proceeded to the Lower Court to challenge the ruling on eight grounds.
Concluding its ruling on respondent’s preliminary objection against the competence of the appeal, the Lower Court at page 1145 of the record held as follows:-
“A careful perusal of the grounds of appeal and their particulars contained in the notice of appeal at pages 1 to 4 of the supplementary record of appeal dated 22nd day of March, 2016 and filed on 24/3/2016 revealed that the Appellants’ grievances are not on grounds of law alone as contended by the Appellants, but of mixed law and facts………. Therefore, the Appellants contention that no ground questions the evaluation of evidence made by the trial judge or challenged the facts or evidence cannot be correct.
I have no hesitation in holding that from the facts contained in the record of appeal and by virtue of the provisions of Section 242(1) of the 1999 Constitution (as amended), the grounds of appeal as contained in the notice of appeal require the leave of either the Trial Court or this Honourable Court before filing.
For the
8
above reasons the preliminary objection is hereby upheld. The notice of this appeal is incompetent and is accordingly struck out together with all argument on the issues raise.”
Appellants’ contention under the 1st issue is that the Lower Court’s foregoing conclusion is wrong. It cannot be.
My lords, learned counsel are one, and correctly so, that Sections 241 (1) and 242 (1) of the 1999 Constitution as amended having created two rights of appeal, an appeal against the decision of the trial Court to the Lower Court may be either as of right or with leave of either of the two Courts below. See Nafiu Rabiu V. State (1981) 2 NCLR 392 and Harriman V. Harriman (1987) 3 NWLR (Pt 60) 244.
Counsel are also right in their submissions that where a party requires leave to appeal and leave is not sought and obtained, the appeal being incompetent cannot be proceeded upon, by the Court of Appeal. See Nigeria National Supply Co. Ltd V. Establishment Sima of Vaduz (1990) LPELR-2004 (SC) and Ikweki & Ors V. Ebele & Anor (2005) LPELR-1490 (SC).
It is also a common ground to counsel that in the case at hand the appellants did not obtain leave before
9
filing their appeals against the trial Court’s dismissal of their no case submission.
Both sides further agree that proceedings at the trial Court not having been concluded, the ruling being appealed against is not a final decision but an interlocutory one.
Counsel only disagree on the necessity of obtaining leave by the appellants and the effect of their failure to do so on the competence of their appeals.
Whereas the appellants insist that their appeals though interlocutory, being however against ascertained facts, it is on grounds of law alone and do not require leave of either the trial Court or the Lower Court for their competence. The appeals, it is asserted, are provided for squarely under Section 241 (1) (b) of the 1999 Constitution as amended.
Not surprisingly, learned respondent’s counsel disagrees and persists that the totality of the grounds the appellants founded their appeals upon being at best grounds of mixed law and fact, appellant’s failure to obtain leave of either of the two Courts below is fatal to their cause. Learned respondent’s counsel maintains that the Lower Court is right in its finding that by virtue of
10
Section 242 (1) of the 1999 Constitution as amended the interlocutory appeals on question of mixed law and fact without leave having first been obtained are incompetent.
In deciding whether or not the Lower Court is right in its finding regarding the appeals, it is incumbent to examine the grounds upon which the appeals are founded. A perusal of the grounds clearly indicates that all the grounds are complaints against the trial Court’s findings of fact on the various counts in the charge the appellants are arraigned for. Serially in its ruling, see pages 895-910 of the record of appeal, the trial Court has asked and answered the relevant questions as to whether or not the respondent has led evidence of the facts which prima-facie show that the appellants have committed the offences with which they are charged to warrant their being asked to enter their defence. The queries, which these grounds of appeal are against the trial Court’s scrutiny of the evidence led by the respondent cannot, certainly, by any stretch of imagination be said to be questioning the trial Courts application of the law to ascertained facts. The Lower Court must first assemble
11
the facts relevant in the proof of each of the counts in the charge before deciding that proof of the count has prima facie been attained by the respondent. Indeed it is the disagreement as to the existence or otherwise of these facts at the end of the prosecution’s case that led to the no case submission of the appellants the dismissal of which informs the two appeals. In the circumstance, these facts cannot be said to have been ascertained.
It is to be further noted that contrary to what appellants assert none of the grounds of appeal challenges the trial judge’s conduct of the proceedings before him. The entire grounds revolve around the trial Court’s faulty evaluation of the evidence proffered by the respondent against the appellants and the supposedly wrong conclusion arrived at by the trial Court. I agree with learned respondent’s counsel that these grounds are, indeed, at best grounds of mixed law and fact for which Section 242 (1) of 1999 Constitution makes acquisition of leave a condition precedent for their competence. All the grounds are manifestly not within the purview of Section 241 (1) (b) to be otherwise. The Lower Court’s similar finding
12
is, therefore, unassailable. I so hold.
By Section 233 (2) of the 1999 Constitution as amended, appeals from the Court of Appeal to this Court lie only against the “decisions” of that Court. Such decisions evolve from the Court of Appeal’s lawful exercise of jurisdiction over appeals from Courts below it. Where the Court of Appeal lacked the necessary jurisdiction, in the first place, to hear and determine the appeal before it such as in the instant case, no decision of the Court would arise against which a competent appeal shall lie to this Court. It is for these reasons that I strike out the incompetent appeals and affirm the judgment of the Lower Court.
SC.457/2016(CONSOLIDATED)
