Okon Bassey Ebe Vs Commissioner Of Police (2008)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C 

The appeal is against the judgment of the Court of Appeal [Calabar Division] in appeal No. CA/C/77/2002; Okon Bassey Ebe V. Commissioner of Police delivered on the 29th of November 2004 in which the court below had allowed the appeal of the appellant [Commissioner of Police] before it, set aside the decision of the High Court (sitting as an appellate court) demanding for the revalidation of the fiat issued by the Attorney- General of Cross Rivers State and also set aside the order made by the appellate High Court striking out the appeal for failure to comply with the provisions of Order 44 Rule 10 (1) of the Cross River State High Court Civil Procedure Rules, 1987.

Briefly, the facts leading to this appeal are thus: – four persons including the appellant were charged before the Chief Magistrate’s Court, Akpap Okoyong in Odukpani Local Government Area of Cross River State on a four-count charge involving conspiracy to effect unlawful purpose e.g. forcible entry on a parcel of land which was in actual and peaceable possession of one Chief Effiong Offiong Andong, malicious damage and threat with intent to intimidate. Their trial commenced on the 12th of May 2000. As at 27th October 2000, three witnesses had given evidence for the prosecution. On the 12th of January 2001, the trial Chief Magistrate dismissed the charge for want of diligent prosecution, the prosecuting counsel was absent. Dissatisfied with the order dismissing the charge, the appellant (Commissioner of Police) before the appellate High Court appealed therefrom to the High Court, Calabar Judicial Division. On 1st August 2001 when the appeal came up for argument before the appellate High Court, an objection was raised to the appearance of one Ukweni to prosecute the appeal on behalf of the Commissioner of Police on the ground that he had no fiat. The appeal was adjourned from that date to 8th November 2001 presumably to take argument on the objection. There is no record of what transpired in the Court on the 8th of November 2001. But on 8th May 2002, the appearance of Ukweni as a prosecutor in the appeal was disallowed by the appellate High Court until evidence of issuance of fiat to him by the Attorney-General was produced.

Meanwhile, on the same date (8th May, 2002), the learned judge presiding over the High Court sitting on appeal struck out the appeal for non-appearance of the appellant. The Commissioner of Police, as the appellant, being dissatisfied with this judgment, appealed to the court below (the Court of Appeal) which after taking arguments of counsel, which, in a considered judgment delivered on the 29th of November 2004, allowed the appeal of the Commissioner of Police set aside the decision of the High Court, as an appellate court, demanding for the revalidation of the fiat issued by the Attorney-General of Cross River State so also was the order striking out the appeal was set aside. The court below finally pronounced that the appeal was still valid and should be relisted and heard by another judge as the Chief Judge of Cross River State may so assign.

It is the appeal against the said judgment of the court below that is now before us. Both parties filed their respective briefs of argument. In the appellant’s brief of argument filed on the nod of May 2006, only one issue was identified for determination by this court, and as set out in the said brief, it is as follows: –

“Whether the Court of Appeal was right in setting aside the order of the High Court striking out the appeal of the respondent for failure of the respondent to comply with Order 44 Rule 10 (1) of Cross River State High Court Civil Procedure Rules 1987”

While the respondent adopted the only issue raised up by the appellant, he modified same. The modified issue as couched in the brief of the respondent is in the following terms: –

“Whether the learned justices of the Court of Appeal were right in holding that the insistence of the High Court Judge on the personal appearance of the respondent was wrong in law and not in consonance with the relevant provisions of Order 44 Rule 10 (1) and (2); and Order 11 Rule 33 of the High Court of Cross River State (Civil Procedure) Rules, 1987”

When the appeal came to us for argument on the 1st of November 2007, Chief Ogbodu, learned counsel for the appellant referred to, adopted and relied on the appellant’s brief filed on 22nd May 2006 and he urged that the appeal be allowed. Mr. Ukweni, learned counsel for the respondent, for his part, referred to, adopted and relied on the respondent’s brief filed on 20th July 2006; he urged that the appeal be dismissed and the judgment of the court below be affirmed.

The issues raised by the appellant and respondent are materially the same. Before I start the consideration, I am of the view that I should reproduce the provisions of ORDER 44 RULE 10 (1) of the High Court Civil Procedure Rules; they are thus: –

“If on the day of hearing or at any adjournment of the case, the appellant does not appear, the appeal shall be struck out and the decision shall be affirmed unless the court thinks fit, for sufficient cause, to order otherwise.”

The above provisions of the rules of court confer some degree of discretion on the judex; in the instant case, what is conferred is a judicial discretion. This court has said that for a judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the court from which the court must draw a conclusion governed by law and nothing else. The exercise of that discretion must be honest and in the spirit of the statute, otherwise, any act so done will not find a solace in the statute and such a discretionary act must be set aside. See Unilag& Ors v. Olaniyan & Ors . (1985) 1 S.C. 295.

It therefore follows that where a judicial discretion has been exercised bona fide, uninfluenced by any irrelevant considerations and not arbitrarily or illegally, the general rule is that an appellate court, the like of this court, will not ordinarily interfere. See -Saffieddine v. Commissioner of police (1965) 1 ALL NLR 54; Solanke v. Ajibola (1968) I ALL NLR 46 and Mobil Oil v. Federal Board od Island Revenue (1977) 3 S.C. 97. Legal discretion or what is termed in Latin Maxim as “lagalis discretio” requires a court or a judge to administer justice according to prescribed rules of law. In applying the provisions of Order 44 Rule 10 (1) of the High Court Civil Procedure Rules, the judge of the High Court of Cross River State sitting on appeal on the case reasoned thus: –

“Let me on my own introduce or add to the cannon of interpretation the element of commonsense.Applying this principle to that provision, it would make no sense to expect the lawyer to be present at any or all adjournments be they for mention or even interlocutory ruling as well as the final judgment of the appeal. It seems to me that the plausible instances when both the lawyer and the appellant have to appear simultaneously are hearing or argument of the appeal: but the appellant is expected to appear in all other respects. If he fails, then the consequences of the infringement of that provision lies on his door-step personally. I hold that the cup of his absence will immutably be taken by him and will not pass to his lawyer or be shared by both of them…For non- appearance of the appellant on all adjournment dates so far before me, this appeal shall be and is hereby struck-out.”

It should be noted that the appellant before the High Court sitting on appeal is the Commissioner of Police. The court below (Court of Appeal) before whom the appeal against the judgment of the High Court came, on the Issue of non-appearance of the appellant said and I quote: –

“I therefore hold, that the insistence on the personal appearance of the Commissioner of Police, who was the appellant before the lower court was absolutely wrong because a counsel was regularly appearing for the appellant being a criminal appeal…With the cited precedents laid by the apex court, I am sure that the lower court judge, was slavish to Order 44 Rule 10 (1) supra with the intent to scuttle the appeal by striking same on the wrong basis that, the legal practitioner, had no right to announce appearance for the appellant- Commissioner of Police.

In my final analysis, I allow the appeal of the appellant. I set aside, the decision demanding for a revalidation of the fiat issued by the Attorney-General of Cross River State which is still binding and I also set aside the striking out of the appeal… I hold that the appeal is still valid and should be relisted in the court’s cause list for hearing before another judge as the Chief Judge of Cross River State, may assign.”

As I have said above, it is the appeal against the judgment of the court below the extract of which I have reproduced above that is now before us. Let me say that a judge has no discretion in his ruling on the law. But when, having made necessary findings of fact and necessary ruling ‘on law he has to choose between different causes of action, orders, penalties or even remedies, he then exercises discretion. The court below has evaluated the printed evidence and made its inferences from established facts. I cannot fault that exercise. There is no law compelling any party to appear physically in court in the circumstances of the facts of this case. All that is necessary, in the interest of good administration of justice, is that the working of a court of law is not stalled by nonappearance or even the appearance of a party to the court before it. See Kehinde v. Ogunbunmi & Ors (1968) NMLR 37 and Atake v. Afejuku (1994) 9 NWLR (pt.368) 379. As was rightly said by the court below, to expect a Commissioner of Police to be physically present in all cases affecting him in his official capacity is to look for impossibility. Argument deduced from an impossibility always avails in law. Where the law creates a duty or a charge, and the party is disabled to perform it without any default in him and has no remedy over, there the law will, in general, excuse him. I am not unmindful of the principle that impossibility of performance of an obligation which a party has expressly undertaken by contract is, in general, no excuse. But, when the obligation is one implied by law, impossibility of performance by the law affords good excuse. The maxim is impotentia excusat legem. I repeat, it is absolutely impossible for a Commissioner of Police to be physically present in court for every court case affecting his office. And, if it is remembered that the law does not compel the impossible, the judgment of the court below cannot but be upheld. It is for what I have been saying above that I hereby answer each of the only issue raised by the appellant and the respondent in their respective briefs of argument, in the affirmative.

In concluding this appeal, it is my judgment that this appeal is very much unmeritorious. It must be dismissed and I hereby dismiss it. I uphold the judgment of the court below setting aside the decision demanding for a revalidation of the fiat issued by the Attorney-General of Cross River State and also the order setting aside the striking out of the appeal. I also endorse the consequential order of the court below that the appeal is still very much valid and should be relisted in the court’s cause list for hearing before another judge as the Chief Judge of Cross River

State, may assign.

SC.141/2005