Chief Oyoyo Ubene V. Commissioner of Police (2004)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

This appeal is against the ruling of the Akpabuyo High Court of Cross River State (Coram: Ikpeme, J.) which struck out the appellant’s application for leave of the Honourable Court to appeal Bout of time against the appellant’s conviction in the charge No. MCA/IC/78 at the Ikot Nakanda – Akpabuyo Chief Magistrate Court.

The facts of the case are not at all in controversy. In 1978, that is, nearly 26 years ago the appellant with another, was charged with the offence of assault under section 351 of the Criminal Code Law of Cross River State, 1978 leading to the conviction and sentence of the appellant with an option of fine in the sum of N80.00. The appellant paid the fine in lieu of 3 months imprisonment; and allowed the matter to rest there.

Apparently aggrieved by the said decision, the appellant has now filed a notice of appeal containing 2 (two) grounds of appeal and without their particulars. They are as follows:

“(i) The learned appellate High Court Judge erred in law in failing to consider the circumstances of the case appealed against before refusing to grant the application sought.

The learned appellate High Court Judge erred in law in refusing leave merely because the reason for delay was not satisfactory to the court.”

The parties to the appeal have filed and exchanged their briefs of argument. In furtherance of the appeal, the appellant has distilled three issues for determination and they are as follows:

(i) Given the entire circumstances of this case, is it not rather harsh for the lower court to have refused the appellant leave to appeal out of time against his conviction?

(ii) Whether the lower court was right in refusing the leave sought by the appellant without considering the orientation of the appellant as an illiterate villager.

(iii) In considering the reason for delay in bringing up an appeal, should the court be guided by standards set in civil actions whether or not the appeal is civil or criminal?”

The respondent in its brief of argument has also raised three issues for determination in the appeal, namely:

(i) Was the lower court wrong to have refused the appellant leave to appeal out of time for more than 24 years?

(ii) Is the lower court bound to consider the orientation of an appellant/applicant before it before making or exercising its discretion?

(iii) In considering the reason for delay in bringing up an appeal should the court be guided by standards set in civil actions whether or not the appeal is civil or criminal?

The appellant has raised three issues for determination from the two grounds of appeal, one issue being in excess; meaning that one of the issues for determination is clearly not covered by any of the two grounds of appeal and so, should be struck out as baseless. See Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 270. At the oral hearing of the appeal the appellant applied to have issue two for determination and para. 4.3 of the appellant’s brief of argument dealing with the same to be struck out. The said issue two together with paragraph 4.3 of the aforesaid brief had to be struck out as incompetent on the appellant’s application. In arguing the remaining two issues the appellant firstly, has recognized that the appellant has delayed in bringing the appeal but has submitted that he should not be deprived of the right to appeal merely because of that if only to enable him remove the stigma of criminality from his record. It has been pointed out that the court’s power to interfere in matters of exercise of discretion by lower courts as here though very much there has to be exercised cautiously. See: Saffieddine v. C.O.P (1965) 1 ANLR 54. Again, it is contended that the lower court failed to consider the relevant materials placed before it such as the judgment of the trial Magistrate particularly against the background of the complaints as per the grounds of appeal. He has canvassed at some length on the appellant’s relative evidentiary burden to discharge in this case as against that of the prosecution with a higher onus to discharge, that is to say, in respect of applications of this nature. Even so, that the trial court was in grave error to have used the standard required in civil cases such as showing good and substantial reasons as well as good grounds of appeal in applications for extension of time to appeal out of time in determining the requirement in a criminal case as the instant one. The court is therefore urged to reverse the order of the lower court and grant the leave sought in order to avert the injustice from refusing the application.

On the part of the respondent, three issues for determination have also been formulated. Having abandoned issue two of the three issues for determination, it consequently abandoned paragraph 4.2 of its brief founded on it. Accordingly, they have been struck out leaving for discussion two issues for determination. It is the respondent’s case that no materials to be taken into consideration in determining the merit of the application have been laid before the court below, including, most importantly, good and substantial reasons for failing to appeal within the prescribed period of 3 months and good and arguable grounds of appeal. See FMBN v. Savannah Securities Ltd. (2000) 15 NWLR (Pt. 689) 152 and 153 and Moses and Anor. v. Ogunlade (1975) NSCC 199 where the delay of 18 months was considered by the Supreme Court as too long that could not justify any such leave by the court. On issue 3, the respondent has argued that the case of Saffieddine v. C.O.P. (supra) cited and relied upon by the appellant is no authority showing that applications of this nature as regards criminal appeals must be granted i.e. treated differently as a matter of course as there are no different guiding principles in regard to applications seeking leave in civil and criminal cases. He made the point that the appellant has in regard to that question failed to cite pertinent authorities. The court is urged to dismiss the appeal and affirm the decision of the lower court.

Taking at once all the issues for determination as raised by the parties in this case the question that has crystallized for the court is the question of the exercise of its extraordinary jurisdiction that is, in this case whether the appellant is entitled to the relief of extension of time within which to appeal against the conviction passed on 14th November, 1978, upon the materials placed before trial court, (i.e. the material to be identified in course of the judgment).

Firstly, I have to note that the appellant has defaulted in not setting out nay even mention specifically in his brief of argument the applicable law and rules of court such as section 25(2)(a) and (4) of the Court of Appeal Act, Cap. 75, Laws of the Federation, 1990 and rule 4(2) of Order 3 of the Court of Appeal Rules under which application for extension of time within which to appeal or seek leave to appeal out of time are otherwise predicated, and even so the basis of the instant application. I think I have to begin discussing this case by firstly, setting them out as follows. Section 25(2) provides thus:

“The period for giving notice of appeal or notice of application for leave to appeal are:

(a) in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. The Court of Appeal may extend the periods prescribed in sub-sections (2) and (3) of this section.”

Order 3 rule 4(1) and (2) of the Court of Appeal Rules is as follows:

“(1) The court may enlarge the time provided by these rules for the doing of anything to which these rules apply.

(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

I have to observe before coming to examining the foregoing provisions that the appellant having, as it were, allowed the 3 months allowed him as prescribed by section 25(2)(a) (supra) to appeal as of right against the final judgment and his conviction by the trial court in this case, to fritter away, has to show exceptional or special circumstances as contemplated in the foregoing provisions of rule 2 of Order 3 (supra) for the court to exercise its extraordinary jurisdiction to grant the relief sought in this application to extend time to appeal out of time against his conviction of 1978. Both under section 25(4) (supra) and rule 4(2) of Order 3 (supra) this court is given the power to extend time for failure to appeal within the prescribed period. It is entirely at the discretion of the court to grant or refuse an application as the instant one and this is subject to the surrounding circumstances as a whole. Coming to rule 4(2) (supra) itself, I have to say that its provisions have been examined in a number of decisions of the higher courts from which have been derived two clear guiding principles by way of conditions which an applicant as the appellant here has to satisfy to be entitled to such relief as is sought by the appellant herein. And, as pronounced in those decisions, an application for enlargement of time to appeal or to seek for leave to appeal has to be supported by affidavit showing the following factors which must co-exist for such application to succeed. See Ukwu v. Bunge (1997) 8NWLR (Pt. 518) 527 and they are namely:

(1) Good and substantial reasons for failure to appeal or to seek for leave to appeal within the prescribed period; and

(2) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Osinupebi v. Saibu (1982) 7 SC 104.

Again, based on well grounded judicial pronouncements, and so it is now a matter of sine qua non, to the effect that an affidavit in support of such application as here has to be exhibited to it a certified copy of the judgment or ruling appealed against or seeking leave to appeal; so also in cases in which the appeal is based on interpretation of documents, evaluation of evidence wherefore a certified copy of proceeding of the court could be inestimably crucial. See General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt. 163) 423 at 440. These and the like materials are examples of materials to be placed before a court for consideration in an application of this nature.

Having set forth the applicable law and the principles, I now discuss them in the con of the appellant’s case as has been presented in his brief of argument. In regard to providing good and substantial reasons for defaulting to appeal or seek leave to appeal within the due period, it is my view that the appellant with respect, has failed to make out a solid case. Coming to the first condition stipulated above, an applicant is required to give a convincing reason for failing to act within the prescribed period, in this instance to file his appeal within 3 months of the final judgment and conviction. It is settled that once an applicant is able to satisfy this condition the apparent length of delay, again, in this instance about 24 years becomes immaterial as a factor for court’s consideration. See: Kalu v. Igwe (1991) 3 NWLR (Pt. 178) 168 per Oguntade, JCA, (as he then was), Alagbe v. Abimbola & Ors. (1978) 2 SC 39. Going by well established precedents, courts have of late in a number of cases upheld want of means and fault or inadvertence of counsel as satisfying the aforesaid condition. See: Doherty v. Doherty (1964) 1 ANLR 299, Lamai v. Orbih (1980) 5 – 7 SC 28 and Kalu v. Igwe (supra). Thus implying that what is good and substantial reason has to depend on the facts and circumstances of each case and it is not closed. In this case, the high point of the appellant’s case as regards good and substantial reason for defaulting to appeal within the prescribed period has centred round the contention that the appellant a villager could not understand the criminal stigma such conviction had put on him, that is, in the words of the appellant that the court below did not take the appellant’s orientation into consideration. From whatever perspective one may view the foregoing reason, it certainly, with respect, will not pass as a good and substantial reason particularly against the backdrop of some further facts to the effect that the appellant was about 40 years at arraignment for the said offence of simple assault; and secondly that in his plea in allocutus he said, “I am not guilty” – yet he did nothing ever since to challenge the conviction until now.

The hopelessness of the appellant’s case in this respect is made more profound by the absence of any good and substantial reasons in the supporting affidavit explaining why he has defaulted to appeal within the prescribed period. To substantiate it, I have to refer to paragraphs 2,3,4,5,6,7,8,9,10 and 11 of the supporting affidavit and I quote them as follows:

“2. That the judgment of the court below appealed against was delivered on the 14th of December, 1978;

3. That I was convicted in the said judgment and sentenced to 3 months imprisonment or N80.00 fine;
4. That in exercise of the option opened to me I paid the N80.00 fine without bothering to appeal against the conviction as I inadvertently did not understand what a stigma a conviction constitutes on the status of a party to a criminal action;
5. That some members of my community have lately referred to the said conviction and cited same as a stiga militating against my elevation to the status of a clan headship;
6. That it is in order to remove the stigma constituted by the said conviction that I am appealing against the same;
7. That the offence leading to the conviction itself was a mere misdemeanour which ought not to have attracted a conviction and for which the presiding Magistrate apologized to me saying the conviction and sentence was more politically than legally motivated;
8. That I have been informed by my solicitor, Chief Orok Oyo of counsel and I verily believe him that the documents hereto attached are all the records of what transpired in that trial;
9. That in view of the anxiety of the members of my community to get the stigma of an ex-convict off my head it is necessary to expedite the hearing of the appeal;
10. That to expedite the aforesaid hearing of the appeal my counsel has assembled the record himself as hereto annexed and marked exhibit “A”;
11. That to further expedite the hearing of this appeal, the appellant’s grounds of appeal have been prepared, the required copies filed and deposited, and the requisite filing fees paid in the registry of this Honourable Court, annexed and marked exhibit “B” is a copy of the said appellants grounds of appeal.”

The foregoing depositions which form the core of the appellant’s case in this case, with respect, are devoid of any good and substantial reasons. Throughout the foregoing depositions, the appellant has not specifically given good reasons why he failed to appeal within the prescribed period of 3 months of his conviction save in paragraph 5 above, where he has shown that it is his elevation “lately to a clan head” vis-a-vis the aspersion cast on his character arising from the stigma of his conviction that is at the root of this application otherwise he was prepared to let sleeping dogs lie. I cannot but agree more with the court below and even so, the respondent that the materials to enable the court below to consider the first condition for the instant application as postulated above are not there. All the authorities as cited herein leave no doubt as to the crucial nature of this legal requirement. Without it the instant application is as good as a non-starter. I must add, that his counsel’s submissions however brilliant or ingenuous are no substitute for hard evidence in proof of the point to sustain the application i.e. good and substantial reasons for appealing out of time, i.e. until recently when members of his community have started to taunt him with the stigma of his conviction clearly outside the 3 months prescribed for appealing. Certainly this has not explained his failure to act within the prescribed period.

In regard to the second condition, that is to say, whether the grounds of appeal are substantial and arguable and which prima facie show good cause why the appeal should be heard. In other words, they should raise serious questions of law and fact. See: Balogun v. Balogun (1969) 1 ANLR at p. 349. I should subjoin here that there is a strong judicial opinion that the court may be favourably inclined in regard to the reason for defaulting to appeal within the prescribed period where the applicant as the appellant here has an arguable appeal and in the circumstances should not be shut out of the appeal: See In re Adewunmi (1988) 3 NWLR (Pt. 83) 483, Co-operative & Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630 also see Ukwu v. Bunge (supra) where the proposed ground had complained of lack of jurisdiction.

The appellant as per the notice of appeal exhibited to the supporting affidavit (and marked exhibit “B”) to the substantive application has premised his complaints against the said conviction on three “proposed” grounds of appeal and they are as follows:

“(a) That the judgment is against the weight of evidence;

(b) That the decision of the Magistrate Court is contrary to the rules of natural justice, equity and fair play;

(c) That the judgment is unreasonably unwarranted having regard to the evidence.”

On a dispassionate view of these grounds of appeal, one of the questions that has risen comprises namely, firstly, do these grounds raise serious questions of law and/or mixed law and fact so as to show prima facie that the court below committed any error in law or fact or has wrongly exercised its discretion. See: NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221.

On the other hand, grounds “a” and “c” of the proposed grounds of appeal represent the omnibus grounds of appeal in civil and criminal appeals respectively. This being a criminal matter ground “a” contrary to all appearances is not only redundant in criminal appeals, it is clearly inapplicable in the circumstances being in the format of general ground of appeal in civil cases; and surely it cannot be a ground that in the con of this case has raised serious questions of fact. Ground “C” as per omnibus ground in criminal appeals is on the whole an attack on the findings of fact of the trial court and in so far as it is dealing with findings of primary facts, an appellate court as this one would hesitate to interfere with such findings as more often than not it involves considering the demeanour of witnesses as against inferences drawn from accepted facts. The trial court is eminently more qualified to deal with such matter. Ground (b) no doubt suffers from obvious vagueness as it is set forth in general terms. It cannot be said to have raised a serious question of much law and fact for the court to determine. I must not be mistaken here of doing the appeal. It is my view that in an application of this nature the court should not shrink from examining the “proposed” grounds of appeal. I am satisfied that the two grounds of appeal (i.e. (b) and (c) have not raised good arguable grounds. Neither has remotely touched on any arguable points of law and fact. Again, the applicant has therefore failed on the second condition in regard to the instant application for leave of appeal out of time.

The end result of the foregoing reasoning on the two conditions which must co-exist in an application of this nature to succeed is that such leave is not granted automatically. Assuming but without conceding that the said reason is good reason, there is obvious want of good arguable grounds co-existing with it to make for a successful application to appeal or seek leave to appeal out of time.

In regard to the appellant’s issue 3, I say, with respect, that it is misconceived. The authorities do not support the appellant’s contention that leave to appeal out of time is hardly ever refused in criminal cases as opposed to civil cases except where such applications are from the prosecution. This sweeping statement of the law with respect, is not borne out by the case – Saffieddine v. C.O.P (supra) heavily relied upon by the appellant. Authorities are consistent in holding that applications be it in extension of time to appeal or seeking leave to appeal out of time in civil or criminal cases have to meet strictly the two conditions stipulated above. And so, the courts have not made any distinction between the evidentiary burden in regard to granting extension of time for leave to appeal or seek leave to appeal as between criminal and civil cases. In sum, therefore, I resolve the two issues against the appellant.

Not having seen any merit whatsoever in the appeal, it is hereby dismissed in its entirety. The ruling of the court below which has painstakingly analysed the facts and the law in this matter very satisfactorily is hereby affirmed.

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Other Citations: (2004)LCN/1664(CA)