AGU & ANOR v COMMISSIONER OF POLICE

AGU & ANOR v COMMISSIONER OF POLICE


IN THE COURT OF APPEAL
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU

ON THURSDAY, 21ST JANUARY, 2016


Appeal No: CA/E/109/2011
CITATION:

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

EMMANUEL AKOMAYE AGIM, JCA


BETWEEN

CHIEF JONAS AGU
DONATUS ANIKE

(APPELLANT)

AND

COMMISSIONER OF POLICE

(RESPONDENT)


PRONOUNCEMENTS


A. JURISDICTION
1. Issue of Jurisdiction – Nature of jurisdiction and effect of a defect in the competence of the court

Importance of the issue of jurisdiction; Effect where there is a defect in the competence of the Court

“It is trite that the issue of jurisdiction is so basic and fundamental to any effective adjudication in our jurisprudence that any defect in the competence of the Court is fatal, and the proceedings are a nullity however well conducted and decided.”Per OGUNWUMIJU, JCA read in context

B. PRACTICE AND PROCEDURE

2. Issue of Jurisdiction – Stage at which the question of jurisdiction may be raised

At what stage can an objection to the jurisdiction of a Court to entertain a suit be raised; When an appeal Court will exercise its discretion to consider the issue of jurisdiction

“An objection on jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal. See Madukolum v Nkemdilim (1962) 2 SCNL; Chiedozie v Dayo Omosowan & Ors (1998)12 LPELR-64 5(CA).When the question of jurisdiction of a Court to entertain a matter is raised or challenged and it is the subject matter of an appeal, an appeal Court will readily exercise its discretion to consider the issue.” Per OGUNWUMIJU, JCA read in context

3. Stay of Proceedings – Importance of stay of proceedings and attitude of courts to it

Attitude of Court to application for stay of proceedings

“The grant of a stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation to its logical conclusion on the basis of the substantive merit of his case. Therefore the general practice of the Courts is that a stay of proceedings should not be granted, unless the proceedings in the interest of justice ought not to be allowed to continue. See Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) page 436 at 437.”Per OGUNWUMIJU, JCA read in context

4. Stay of Proceedings – Reason for granting an order of stay of proceedings

Purpose of granting an order of stay of proceedings

“It may also be further emphasized that the main purpose of granting an order for stay of further proceedings pending an appeal is to preserve the subject matter, the res of the litigation. See United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) 195 at 221 – 212; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77. The primary duty of all Courts, both Courts of trial and appellate in dealing with application for stay, is to preserve the res, the subject matter of litigation so that at the end of the exercise of the determination of an appeal, whatever decision is reached or arrived at is not rendered nugatory. It therefore follows that this Court being an appellate Court also has a duty to resist any act which will tend to render nugatory any order it might give at the determination of an appeal. See International Agricultural Industries Ltd. v. Chika Bros (1990) NWLR (Pt. 124) 70 and Biocon Agro Chemicals (Nig.) Ltd. & Ors: v. Kudu Holdings (Nig.) Ltd. & Anor. (1996) 3 NWLR (Pt. 437) 373 at 381.”Per OGUNWUMIJU, JCA read in context

5. Stay of Proceedings – Duty of the court where an interlocutory order does not finally dispose of the case

Duty of a judge in granting an order of stay of proceedings

“Where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an aggrieved party. This is so because such an order could be made the subject of appeal. It is the duty of every Court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an end to the proceeding in the trial Court, prudence dictates that a stay of proceedings be granted. See Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) page 224 at 235; Arojoye v. U.B.A (1986) 2 NWLR (Pt. 20) page 101 at 112. In granting an order for stay of proceedings, the Court should be guided primarily by the necessity to be fair to both parties. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) page 129 at 137. A stay of proceedings can only be granted by the Court when there is no other option open to it. See Carribbean Trading & Fidelity Corporation v. NNPC. (1991) 6 NWLR (Pt. 197) page 35. See NNPC v Odidere Enterprises Nig Ltd (2007) LPELR-8173(CA).”Per OGUNWUMIJU, JCA read in context

6. Stay of Proceedings – Factors considered by the courts in determining an application for stay of proceedings

Considerations of Court in determining an application for stay of proceedings

“Some of the considerations on which Courts determines any application for stay of proceedings during appeal are that the burden is on the applicant to show that if the appeal should succeed, the success would not be in vain. Also that in the peculiar circumstances of the case, a refusal of stay of proceedings would be unjust and inequitable. See Okafor v. Nnaife (1987)4 NWLR (Pt.64) 129; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264 and Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 188. Another consideration of significance in dealing with any application for stay of proceedings is where the notice and grounds of appeal raise substantial issues as to the jurisdiction of the Court below. This may constitute special or exceptional circumstance justifying the grant of the application. See Martins v. Nicannar (1988) 2 NWLR (Pt . 74) 75 .” Per OGUNWUMIJU, JCA read in context

7. Stay of Proceedings – Duty of party seeking for order of stay of proceedings to provide all relevant materials

Duty of party seeking for order of stay of proceedings

“…The duty of placing all the relevant materials before the Court is on the party seeking the indulgence of the Court. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 153.26 Emir of Kano v Agundi (2006) 2 NWLR (Pt. 965) 572; (2005) LPELR-7503 (CA).”Per OGUNWUMIJU, JCA read in context

8. Stay of Proceedings –

General principle governing the exercise of Courts discretion in applications for stay of proceedings

“There is no doubt and it is well settled that the general principle governing the exercise of discretion in applications to stay proceedings is to rely on the circumstances surrounding the litigation by the parties. See Akilu v. Fawehinmi (No.2) (1989) NWLR Pt. 102 Pg.122.”Per OGUNWUMIJU, JCA read in context

C. APPEAL
9. Decision of Court –

Statutory definition of a decision for the purposes of an appeal

“…S. 58(2) of the above law also defines a decision for purposes of an appeal to mean…any determination of a Magistrate and includes (without prejudice to the generality of the foregoing), a judgment, decree, order, conviction, sentence or recommendation.” Per OGUNWUMIJU, JCA read in context

10. Appeals from a Magistrate Court –

Whether appeals lie as of right in criminal matters from the Magistrate Court to the High Court

“It is clear that appeals against the decisions of a Magistrate Court in criminal proceedings lie as of right to the High Court. Such appeal being as of right, any such appeal would not require the leave of the high Court or the Magistrate Court as a condition precedent to its exercise.” Per OGUNWUMIJU, JCA read in context

11. Appeal from Magistrate Court –

Whether an application for extension of time within which to appeal from a Magistrate Court to a High Court must contain the trinity prayers

“By extension, an application for extension of time within which to appeal, need not contain the trinity prayers, two of which are: extension of time within which to apply for leave; and leave to appeal.” Per OGUNWUMIJU, JCA read in context

12. Leave to Appeal – Requirements where the Appellant seeks leave to appeal and is out of time

Procedure where leave to appeal to the Court of Appeal or Supreme Court is required and applicant is out of time

“The authorities cited by the Respondents counsel interpreted the Constitutional right of appeal in respect of appeals to the Court of Appeal and the Supreme Court where the Constitution stipulates that in certain circumstances, leave to appeal is required. It is in such circumstances where leave to appeal is required and the applicant is out of time to seek the leave to appeal and thus requires leave to appeal, extension of time to appeal etc. See Incar Nigeria PLC v Bolex (1997) 10 NWLR (Pt. 526) Pg. 530 at Pg 538, the Supreme Court held as follows on this issue: Where leave to appeal is required and the appellant is out of time, an appellant seeking to appeal out of time requires three substantive prayers namely:a. Enlargement of time within which to seek leave to appeal:b. Leave to appeal; andc. Extension of time within which to appeal.Similarly in Nwora v Nwabueze (2011) 5 NWLR (Pt 1271) Pg. 498, 499, the Supreme Court held that:Where leave to appeal and file against a decision is required, and time to seek leave to appeal and file notice of appeal has expired, it is imperative that a tripod application be filed; that is, a prayer for:a. Extension of time to seek leave to appeal.b. Leave to appeal; and c. Extension of time to appeal.”Per OGUNWUMIJU, JCA read in context

13. Application for Extension of Time to Appeal – Requirements to be shown by an applicant in an application for extension of time to appeal

Requirements in an application for extension of time to appeal

“The settled position of the law is that in an application for extension of time to appeal, the applicant to succeed must show by affidavit evidence the following:1. Good and substantial reasons for failure to appeal within the prescribed period. 2. Grounds of appeal which prima facie show good cause why the appeal should be heard.See Min, PMR v EL Nig Ltd (2010) 12 NWLR (Pt. 1208) Pg. 261; Yesufu v Cooperative Bank (1989) NWLR Pt. 110 Pg. 483; Iroegbu v Okwordu (1990) NWLR Pt. 159 Pg. 643; EFP Co Ltd v NDIC (2007) 9 NWLR Pt. 1039 Pg. 216; Federal Housing v Kalejaiye (2 1 ) 19 NWLR Pt. 1226 Pg. 147.” Per OGUNWUMIJU, JCA read in context

14. Grounds of Appeal – Meaning and nature of a ground of appeal showing good cause

Nature of a ground of appeal showing good cause

“In Obikoya V. Wema Bank Ltd (1989) 1 NWLR Pt.96 P.157 @178, the Supreme Court explained the extent to which the grounds of appeal should satisfy the Court. The Apex Court stated that a ground of appeal showing good cause is a ground which raises substantial issues of fact and law for the consideration of the Court. It is not required that the Applicant must show that the appeal will succeed if leave is granted.Having satisfied the requirement that an applicant must show good and substantial grounds, he must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard. What is required to be shown here is not that the appeal is likely to succeed. In other words, all that is required of an Applicant in this respect is to show that the proposed grounds of appeal disclose an arguable issue. The fact that the appeal may succeed or not is immaterial at this stage. In F.C.M.B. PLC. v. N.I.M.R (2009) 16 NWLR (Pt.1168) 468 at 521 the position was succinctly put as follows:”Grounds of appeal provide the mirror through which the Court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for hearing of the appeal not that the appeal will succeed. All the Court should be concerned with is the strength of the grounds of appeal and not the success. “Per OGUNWUMIJU, JCA read in context

15. Ruling on an Interlocutory Matter –

Duty of Court to avoid deciding on a substantive appeal in an interlocutory application

“That being so, the only duty of the Court is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. The Court should therefore avoid considering or deciding on the success of the grounds of appeal, for to do so would amount to deciding the substantive appeal in an interlocutory application. See N.N.P.C v. O.E (NIG) LTD (2008) 8 NWLR (Pt. 1090) Pg. 583; MICRO-LION INT’L (NIG) LTD v. GADZAMA (supra) at Pg. 501; SAVANNAH BANK (NIG) PLC v. C.B.N(supra) at Pg. 39; E.F. CO. LTD v. N.D.I.C (2007) 9 NWLR (Pt. 1 39) Pg. 216 and MAJEKODUNMI v. CHRISTLIEB PLC (supra) at Pg. 129.; Iwuagu v Okoroafor & Ors (2012)-20829 (CA).”Per OGUNWUMIJU, JCA read in context

D. COURT
16. Discretion of Court – Guideline for the exercise of judicial discretion

How discretion of Court must be exercised

“It is well settled that all judicial discretions must be exercised according to the common sense and justice in the matter. Where there is any miscarriage of justice in the exercise of such discretion, it is within the powers and competence of an appellate Court to interfere and have that exercise of discretion reviewed. See Abiodun Odusote v. Olaitan Odusote (1971) 1 All NLR 219 at 222. See OLATUNBOSUN V TEXACO NIGERIA PLC (2012) LPELR-7805 (SC).”Per OGUNWUMIJU, JCA read in context

17. Discretion of Court – Principles guiding the exercise of the discretion of the court

Guidelines for the exercise of discretion of Court

“In exercising its discretion a Court is not bound to follow a particular way of exercising the discretion adopted in previous decisions of the same or other superior Courts. It is however, to be guided by the peculiarities of each case and the settled principles of law that the discretion be exercised both judicially and judiciously. Acting judicially imports the consideration of the interest of both sides and weighing them in order to arrive at a fair and just decision. See Gabari v Ilori (2002) 14 NWLR (786) 78.”Per OGUNWUMIJU, JCA read in context

E. WORDS AND PHRASES
18. Recondite Point of Law – Definition of the phrase “recondite point of law”

Meaning of the phrase “recondite point of law”

“A recondite point of law, is one that is not settled. It has been defined as obscure, little known, difficult to understand, profound, abstract, arcane, esoteric, intricate, complicated etc. See Ajomale v Yaudat & Anor (1991) 5 NWLR Pt . 191 Pg . 266 . “Per OGUNWUMIJU, JCA read in context


LEAD JUDGMENT DELIVERED BY OGUNWUMIJU, JCA


This is an interlocutory appeal. It is against the ruling of the High Court of Enugu State delivered on 14/09/2010 by Hon. Justice C. Nwobodo wherein His Lordship refused the Appellants’ application for stay of further proceedings and extension of time to appeal against the decision of the Magistrate Court. The facts that led to this appeal are as follows:The Appellants, Chief Jonas Agu and Donatus Anike and two other persons were arraigned before the Chief Magistrate Court in Charge No: MNE/109c/2006. The four persons were arraigned for offences of conspiracy and malicious damage to farmland. At the end of the case for the Prosecution, all the Accused Persons through their counsel made a “no case” submission. The trial Magistrate overruled the “no case” submission and called on the Accused persons to enter their defence. Dissatisfied with the ruling of the learned trial Magistrate, the Appellants filed an application for extension of time within which to appeal against the ruling of the Trial Magistrate and also prayed for stay of further proceedings in the charge before the Magistrates’ Court at the High Court of Enugu State. The Appellants had filed the motion out of time due to an Industrial Action (Strike) embarked on by the Enugu State Judiciary, which started 5 days after the Magistrate Court delivered its judgment and lasted for 85 days. The learned High Court judge refused to grant an order for extension of time or stay of further proceedings and refused the application.

Dissatisfied with the ruling of the Court below, the Appellants appealed to this Court by a Notice of Appeal filed on 28/09/10. Appellants’ brief was filed on 9/5/11, was deemed filed on 10/3/15 and was taken as argued pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011. Respondent’s brief was filed on 22/1/14 and deemed filed on 10/3/15, and Appellants’ Reply Brief filed on 12/3/14, it was deemed filed on 1 /3/15.

At the hearing of the appeal, appellants’ counsel was absent in Court, Appellants’ brief filed on 9/5/11 and Reply brief filed on 12/3/14 both were deemed filed on 10/3/15 and will be considered pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011.

In the Appellants’ brief settled by Anthony I. Ani Esq, four issues were identified for determination as follows:

1. Was the learned judge of the Court below right in refusing the application for extension of time to appeal having found as fact that the Appellants showed good and substantial reasons for the failure to appeal within the prescribed period and that the various grounds of Appeal proposed by the Appellants, on the surface (Prima facie) show good cause why the appeal should be heard? (Arising from Ground 1)

2. Was the learned Judge of the Court below right in considering the merits of the Appellants’ proposed appeal at the stage of application for extension of time to appeal? (Arising from Ground 2)

3. Whether the learned judge of the Court below was right in refusing the Appellants’ application on the ground that any interlocutory appeal at the point in time will unnecessarily prolong/ delay the determination of the charge at the lower Court. (Arising from Ground 3)

4. Whether the issues which arise for determination in the interlocutory ruling could be subsumed and determined with appeal against the final judgment of the trial Chief Magistrate, as held by the learned judge of the Court below? (Arising from Ground 4).

In the Respondents brief settled by Chief S. I. Obidinanwa Esq. the issue of lack of jurisdiction of the Court below to take the application of the Appellants was raised, and Respondents counsel addressed issues raised by Appellants counsel, no new issues were identified for determination.

It is my humble view that this appeal can be considered on the determination of the question whether the learned trial judge was right in the circumstances of this case to have refused the application of extension of time to appeal and stay of further proceedings.

At Pg. 3-5 and Paragraphs 4.1.1-4.1.8 of the Respondentâs brief, a preliminary objection even though not formally or specifically so called was argued by the Respondent. I will determine the issue as a preliminary objection. The argument is that since the Appellants were out of time to appeal to the High Court against the ruling delivered on 28/10/09 by the Chief Magistrate, in Charge No MNE/109c/2006, they should have made a Trinity application to the High Court and having not done the prayers were incompetent and the lower Court ab initio had no jurisdiction to determine the motion. There is no valid appeal before the lower Court and a fortiori, no appeal before this Court. Learned Respondents counsel submitted that the motion at the trial Court should have contained the following prayers called the Trinity prayers. Namely:
1. Extension of time within which to apply for leave to appeal

2. Leave to appeal

3. Extension of time to appeal.

Counsel cited Ude Ubaka & Sons v C.C. Ezekwem (2000) 10 NWLR (Pt. 676) Pg. 600 at 608 at 609; Bolex v Incar (1993) 7 SCNJ 194 at 199; Ikeme v Anakwe (2000) 8 NWLR (Pt.669) Pg. 454 at 496; Odofin v Agu (1992) 3 NWLR (Pt. 229) Pg. 350.

Counsel argued that the issue of jurisdiction can be raised for the first time on appeal. Counsel cited Owie v Ighiwi (2005) 125 LRCN 503 at 533-534 Ogundipe v Akinloye (2000) 10 NWLR (Pt. 775) Pg. 312 at 339; UBT v Odofin (2001) 8 NWLR (Pt. 715) Pg. 296 at 302.

In response, the Appellants counsel in the Reply brief argued that leave was not first sought and obtained by the Respondent to raise this fresh issue for the first time on appeal and this Court should ignore same. Counsel cited Dweye v Iyomahan (1983) 8 SC 76; University of Ibadan v Adetoro (2000) 9 NWLR Pt.673 Pg. 631; Oshotoba v Oluitan (2000) 5 NWLR Pt. 655 Pg.159.

Learned counsel also submitted that the provisions of the Magistrates Courts Laws of Enugu State does not require leave to appeal to the High Court in respect of criminal appeal which is as of right to the High Court. Counsel argued that the provisions are clear and unambiguous. He cited Abubakar v Nasamu (No.2) (2012) 17 NWLR (Pt. 1330) Pg. 523 SC and Fidelity Bank PLC v Monye (2012) 10 NWLR (PT. 1307) Pg. SC.

Appellants counsel submitted that the reason for the failure of Appellants to appeal within time were shown in the supporting affidavit of the Appellants deposed to by the 1st Appellant in paragraph 2,3,4,5 and 6 on page 3 of the Record.

Counsel submitted further that the requirements to be satisfied by an applicant in an application for extension of time are:

a. Good and substantial reasons for failure to appeal within the prescribed period, and

b. The grounds of appeal show prima facie, good cause why the appeal should be heard. He cited Isiaka & 5 ors v Ogundimu & Ors (2006) 3 NWLR (Pt. 997) 401. Counsel submitted that the learned judge on page 53 of the Record found that Appellants had shown good and substantial reasons for the failure to appeal within the prescribed period and that the proposed grounds of appeal of the Appellants on their surface would seem to show good cause why the appeal is to be heard.

Appellants counsel submitted that in view of these findings that Appellants had met the necessary requirements, the learned judge should have granted the application. Counsel submitted further that the learned judge of the High Court erred in law when he refused to grant the application as he is bound by the doctrine of stare decisis and judicial precedent.

Counsel submitted further that the judge was in error to have considered the merits of the Appellants proposed grounds of appeal at the stage of considering the Appellants application for extension of time to appeal.

Counsel submitted that a Court of law should not exhaust the substance of a suit or appeal at interlocutory stage, and should be limited to the orders sought on the face of the motion. The Court therefore should not make orders that would have the effect of deciding the main or substantive suit/appeal at an interlocutory application stage. Counsel cited N.U.A Awka v Nweke (2008) 1 NWLR (Pt. 1069) 504; Akpo v Hakeem Habeeb (1992) 6 NWLR (Pt. 247) 266; Oguehi v Gov. Imo State (1995) 9 NWLR (Pt. 417) 53.

Appellants counsel further submitted that the High Court refused the Appellants application on the ground that any interlocutory appeal at the point in time will unnecessarily delay the determination of the charge at the lower Court and this is not one of the factors the Court should have considered in an application for extension of time to appeal. Counsel submitted that the Appellants had satisfied both requirements laid down by the Courts. Counsel submitted further that there is no evidence to support that the interlocutory appeal will prolong the determination of the charge at the lower Court.

Counsel argued that it is fundamental that the Appellants should not be made to go through the mill of trial even when the prosecution has made no case for him to respond to, since that would amount to the Appellants proving their innocence. He cited Mumuni & Ors v State (1975) All NLR P. 295 at 318.

Counsel submitted that the learned judge of the High Court was in grave error by refusing the application of the Appellants on the ground that it will unnecessarily prolong the determination of the charge at the lower Court.

In their Reply brief, Appellants counsel contended that the failure of the Appellants to file an appeal earlier was due solely to the industrial action embarked on by the judiciary staff of the Court.

Counsel contended that the issues of extension of time and stay of further proceedings in charge no MNE/109c/2006 are not issues which can be subsumed into the appeal in the final judgment of the trial Court and determined together.

Counsel submitted that an appeal against the final judgment of the trial Court will arise upon the conviction of the Appellants in the event that they are found guilty in any count of the charge, a situation which the successful prosecution of Appellants appeal against the ruling on the no case submission will obviate.

Counsel submitted further that it is inconceivable for an application for stay of proceedings to be taken with an appeal against the final judgment against which the stay is targeted.

Counsel submitted that the issues in the interlocutory appeal cannot be subsumed and determined with the final judgment.

Respondents counsel in opposition argued that the ruling of the Court below is in tandem with the law. Counsel argued that the grant or refusal of an application for extension of time within which to appeal is a matter of discretion and the exercise of discretion by a Court must be carried out judicially and judiciously after parties had placed materials before the Court to activate its discretion and that the Court can suo moto make reference to the case file or documents before it He cited Ani v State (2002) 1 NWLR (Pt. 74) 217 at 232; Odo v COP (2002) NWLR (Pt. 874) 46 at 64; Oforgu v Allanah (2000) 2 NWLR (Pt. 644) 243 at 251; Fumudoh v Aboro (1991) 9 NWLR (Pt. 214) 201 at 220.

Counsel submitted that learned judge considered the two conditions as stated by the Appellants while exercising her discretion and it is clear that while the judge found that the Appellants had shown good and substantial reasons for the failure to appeal within the prescribed period, the judge did not believe they had shown good causes why the appeal should be heard on the proposed notice and grounds of appeal.

Counsel submitted that the Court below explained that the proposed grounds of appeal are on well-known matters within the province of the trial Chief Magistrate and the trial Magistrate Court should exercise its discretion on such matters. He cited Oforgu v Allanah (Supra); Mohammed v COP (1999) 12 NWLR (Pt. 630) 331; UBN (Nig) PLC v Ndace (1998) 3 NWLR (Pt. 54) 331; Okafor v Bendel Newspapers Corporation (1991) 7 NWLR (Pt. 206) 651; Ibodo v Enerofia (1980) 5-7 SC 42; Ahmed v Trade Bank (1996) 3 NWLR (Pt. 437) 445 at 451.

Respondents Counsel argued that the Appellants counsels contention that the Court determined the appeal at the stage of application for leave is not true. Counsel submitted that it was necessary for the Court to consider the grounds of appeal in the course of exercising its discretion and that does not amount to determining the appeal.

Learned Respondent s counsel also argued that interlocutory appeals have the tendency to unnecessarily delay the determination of the substantive suit. He cited ACB Ltd v Awogboro (1996) 3 NWLR (Pt. 437) 383 at 393. Counsel submitted further that although unnecessary delay of the substantive suit may not be a consideration in the grant or refusal of an application within which to extend time to appeal, the interest of justice, for all parties before the Court is one of the things to consider by a Court and that is what the High Court did in this case.

Respondent’s counsel argued that the issues in the interlocutory appeal against a no case submission by the Appellants is whether the Appellants have a case to answer or not, and whatever errors perceived by the Appellants could be subsumed in the ruling of the trial Magistrate Court with an appeal against the decision of the trial Court to the High Court in the event the Court finds the Appellants guilty.

RESOLUTION

It is trite that the issue of jurisdiction is so basic and fundamental to any effective adjudication in our jurisprudence that any defect in the competence of the Court is fatal, and the proceedings are a nullity however well conducted and decided.

An objection on jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal. See Madukolum v Nkemdilim (19 2) 2 SCNL; Chiedozie v Dayo Omosowan & Ors (1998) LPELR-6415(CA).

When the question of jurisdiction of a Court to entertain a matter is raised or challenged and it is the subject matter of an appeal, an appeal Court will readily exercise its discretion to consider the issue.

S. 57 of the Magistrates Court Law of Enugu State Cap 112, Vol. 5 Laws of Enugu State provides as follows:

Appeal lies as of right to the High Court by a person aggrieved by any decision of a Magistrate in a criminal proceeding.

S. 58(2) of the above law also defines a decision for purposes of an appeal to mean

…any determination of a Magistrate and includes (without prejudice to the generality of the foregoing), a judgment, decree, order, conviction, sentence or recommendation.

It is clear that appeals against the decisions of a Magistrate Court in criminal proceedings lie as of right to the High Court. Such appeal being as of right, any such appeal would not require the leave of the high Court or the Magistrate Court as a condition precedent to its exercise.

By extension, an application for extension of time within which to appeal, need not contain the trinity prayers, two of which are: extension of time within which to apply for leave; and leave to appeal.

The authorities cited by the Respondents counsel interpreted the Constitutional right of appeal in respect of appeals to the Court of Appeal and the Supreme Court where the Constitution stipulates that in certain circumstances, leave to appeal is required. It is in such circumstances where leave to appeal is required and the applicant is out of time to seek the leave to appeal and thus requires leave to appeal, extension of time to appeal etc. See Incar Nigeria PLC v Bolex (1997) 10 NWLR (Pt. 526) Pg. 530 at Pg 538, the Supreme Court held as follows on this issue: Where leave to appeal is required and the appellant is out of time, an appellant seeking to appeal out of time requires three substantive prayers namely:

a. Enlargement of time within which to seek leave to appeal:

b. Leave to appeal; and

c. Extension of time within which to appeal.

Similarly in Nwora v Nwabueze (2011) 15 NWLR (Pt 1271) Pg. 498, 499, the Supreme Court held that:

Where leave to appeal and file against a decision is required, and time to seek leave to appeal and file notice of appeal has expired, it is imperative that a tripod application be filed; that is, a prayer for:

a. Extension of time to seek leave to appeal.

b. Leave to appeal; and

c. Extension of time to appeal.

As I said earlier, there is no leave required by the law for an Appellant to appeal from the decision of the Magistrates Court to the High Court in Enugu State. That objection by the Respondent is misconceived and hereby dismissed.

At the Court below, the Appellants had filed a motion praying for extension of time to appeal against the decision of the trial Magistrate Court overruling a no case submission and also a prayer for stay of further proceedings pending the hearing and determination of the appeal against the overruling of the no case submission. At the lower Court, the learned trial judge held as follows on Pg. 53 of the Record:

€œThe proposed Notice and Grounds of Appeal must prima facie show good cause why the appeal should be heard. Haven not delivered the ruling on the no case submission; this Court desired to have a look at the ruling of the lower Court on the no case submission in order to better appreciate the substantiality of the grounds of appeal proposed. It was annexed as Exhibit AA in the 15

Applicants further affidavit.

A consideration of the various grounds of Appeal proposed on their surface would seem to show good cause why the appeal is to be heard. However after a more careful consideration with the ruling of the Learned Chief Magistrate at the background; I do not, with respects, consider the grounds good enough to ground this application. The grounds of appeal are on matters which are not recondite. Essentially grounds 3 and 4 of the proposed grounds deal with matters of amendment of Charges which are properly covered by the Criminal Procedure Law. Grounds 1 and 2 deal with the Learned Magistrates assessment of the prosecution evidence at the point of the no case submission as he is wont to do. Generally in respect of the matters raised in the proposed grounds of Appeal I am particularly certain that they are matters essentially within the province of trial Chief Magistrate and any interlocutory appeals at this point in time will unnecessarily prolong/delay the determination of the Criminal Charge in the lower Court. I am of the opinion that the interest of justice, which includes a determination of the case as soon as possible will be better served by the Chief Magistrates Court continuing with the trial and entering final judgment in the matter. The issues of this interlocutory ruling could be sub-sumed into the appeal in the final judgment of that trial Court.

The settled position of the law is that in an application for extension of time to appeal, the applicant to succeed must show by affidavit evidence the following:

1. Good and substantial reasons for failure to appeal within the prescribed period

2. Grounds of appeal which prima facie show good cause why the appeal should be heard.See Min, PMR v EL Nig Ltd (2010) 12 NWLR (Pt. 12 8) Pg. 261; Yesufu v Cooperative Bank (1989) NWLR Pt. 110 Pg. 483; Iroegbu v Okwordu (1990) NWLR Pt. 159 Pg. 643; EFP Co Ltd v NDIC (2007) 9 NWLR Pt. 1039 Pg. 216; Federal Housing v Kalejaiye (2010) 19 NWLR Pt. 1226 Pg. 147.

It is well settled that all judicial discretions must be exercised according to the common sense and justice in the matter. Where there is any miscarriage of justice in the exercise of such discretion, it is within the powers and competence of an appellate Court to interfere and have that exercise of discretion reviewed. See Abiodun Odusote v. Olaitan Odusote (1971) 1 All NLR 219 at 222. See OLATUNBOSUN V TEXACO NIGERIA PLC (2012) LPELR-7805 (SC).

There is no doubt that for an application for an enlargement of time within which an Appellant may appeal to succeed, all the Applicants are required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking the steps to apply for the enlargement of time. See Chief T.O.S. Benson v. Nigeria Agip Oil Co . (1982) 5 S.C. 1. In this respect, whatever decision a Court arrives at in such application, entirely depends on the exercise of its discretion, taking into consideration the general principles of law governing the exercise of discretionary powers by the Court and guided by the consideration of doing justice to all the parties to the dispute. The Court below in this case was satisfied that the Applicant/Appellant gave satisfactory reasons for the delay in applying for extension of time to appeal. The matter does not end there quite simply as the Appellant seems to think.

The second point relates to whether the grounds of appeal are arguable, not frivolous and are on recondite points of law with reasonable prospects of influencing the mind of the judge in his favour. See Iroegbu v Okwordu (Supra).

A recondite point of law, is one that is not settled. It has been defined as obscure, little known, difficult to understand, profound, abstract, arcane, esoteric, intricate, complicated etc. See Ajomale v Yaudat & Anor (1991) 5 NWLR Pt. 191 Pg. 266.

I have hitherto set out above the opinion of the learned trial judge on this issue.

In Obikoya V. Wema Bank Ltd (1989) 1 NWLR Pt.96 P.157 @178, the Supreme Court explained the extent to which the grounds of appeal should satisfy the Court. The Apex Court stated that a ground of appeal showing good cause is a ground which raises substantial issues of fact and law for the consideration of the Court. It is not required that the Applicant must show that the appeal will succeed if leave is granted.

Having satisfied the requirement that an applicant must show good and substantial grounds, he must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard. What is required to be shown here is not that the appeal is likely to succeed. In other words, all that is required of an Applicant in this respect is to show that the proposed grounds of appeal disclose an arguable issue. The fact that the appeal may succeed or not is immaterial at this stage. In F.C.M.B. PLC. v. N.I.M.R (2009) 16 NWLR (Pt.1168) 468 at 521 the position was succinctly put as follows:

“Grounds of appeal provide the mirror through which the Court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for hearing of the appeal not that the appeal will succeed. All the Court should be concerned with is the strength of the grounds of appeal and not the success.”

That being so, the only duty of the Court is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. The Court should therefore avoid considering or deciding on the success of the grounds of appeal, for to do so would amount to deciding the substantive appeal in an interlocutory application. See N.N.P.C v. O.E (NIG) LTD (2008) 8 NWLR (Pt. 1090) g. 583; MICRO-LION INT’L (NIG) LTD v. GADZAMA (supra) at Pg. 501; SAVANNAH BANK (NIG) PLC v. C.B.N (supra) at Pg. 39; E.F. CO. LTD v. N.D.I.C (2007) 9 NWLR (Pt. 1039) Pg. 216 and MAJEKODUNMI v. CHRISTLIEB PLC (supra) at Pg. 129.; Iwuagu v Okoroafor & Ors (2012)-20829 (CA).

It is my considered view that the Applicants have shown good and substantial reasons for his failure to appeal within the period prescribed but has not shown good cause why the appeal should be heard on the grounds of appeal. I agree with the Respondents counsel that the two requirements must co-exist. See IKENTA BEST LTD. V. A.G. RIVERS ST TE [2008] 33 NSCQ 1073. The parameters for the exercise of this discretionary powers must be interpreted conjunctively, and not disjunctively.

To decide whether Appellants had shown good cause why the appeal should be heard, it is necessary to look at the grounds of appeal, which the Court below did.

I have looked at the proposed grounds of appeal annexed to the affidavit in support of the application at the trial Court. There are no recondite points of law to be argued. In spite of the challenge to the reasoning of the Court below in relation to the complaint of deciding the substantive issue, I am convinced that the primary ratio of the learned lower Court is that there is no favourable recondite point of law to influence the mind of an appellate judge to justify the hearing of the interlocutory appeal. I cannot close my eyes to the sound reasons given by the Court below. There is nowhere that an attempt was made to decide the merit of the appeal. In any event, it is my believe that in interlocutory appeals of this nature and particularly in criminal appeals, the likelihood of the success of the appeal should be a paramount factor since a frivolous appeal would have little chance of success. Therefore on the one hand we cannot say a frivolous ground is unacceptable and in the same breath say that the Court should not at this stage be concerned with the likelihood of success of the appeal. It is about time for the Courts to move from that position particularly in relation to interlocutory appeals where leave of Court must first be sought and obtained. I would also re-echo the opinion of Supreme Court in EFP Co. Ltd v NDIC (Supra) where the Court held that an important principle which should guide an appellate Court when called upon to review, by way of appeal, the discretion exercised by the lower Court in granting or refusing to grant an application of this nature is that the attitude of the appellate Court to the exercise of discretion by the lower Courts is not dissimilar to that adopted over the issue of findings of fact. Thus, unless the exercise of discretion by a Court of first instance or by a lower Court is manifestly wrong, arbitrary, reckless or injudicious, an appellate Court would not interfere merely because faced with similar circumstances, it would have reacted differently. See also Williams v Mokwe (2005) 14 NWLR Pt. 945 Pg. 249 at 269. For the above reasons I cannot see my way to disagreeing with the reasons given by the learned lower Court for refusing the application for extension of time to appeal.

The second leg of the prayer is for stay of proceedings pending appeal. The grant of a stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation to its logical conclusion on the basis of the substantive merit of his case. Therefore the general practice of the Courts is that a stay of proceedings should not be granted, unless the proceedings in the interest of justice ought not to be allowed to continue. See Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) page 436 at 437.

Where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an aggrieved party. This is so because such an order could be made the subject of appeal. It is the duty of every Court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an end to the proceeding in the trial Court, prudence dictates that a stay of proceedings be granted. See Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) page 224 at 235; Arojoye v. U.B.A . (1986) 2 NWLR (Pt. 20) page 101 at 112. In granting an order for stay of proceedings, the Court should be guided primarily by the necessity to be fair to both parties. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) page 129 at 137. A stay of proceedings can only be granted by the Court when there is no other option open to it. See Carribbean Trading & Fidelity Corporation v. NNPC (1991) 6 NWLR (Pt. 197) page 35. See NNPC v Odidere Enterprises Nig Ltd (2007) LPELR-8173(CA).

It may also be further emphasized that the main purpose of granting an order for stay of further proceedings pending an appeal is to preserve the subject matter, the res of the litigation. See United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) 195 at 221 – 212; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77. The primary duty of all Courts, both Courts of trial and appellate in dealing with application for stay, is to preserve the res, the subject matter of litigation so that at the end of the exercise of the determination of an appeal, whatever decision is reached or arrived at is not rendered nugatory. It therefore follows that this Court being an appellate Court also has a duty to resist any act which will tend to render nugatory any order it might give at the determination of an appeal. See International Agricultural Industries Ltd. v. Chika Bros (1990) 1 NWLR (Pt. 124) 70 and Biocon Agro Chemicals (Nig.) Ltd. & Ors: v. Kudu Holdings (Nig.) Ltd. & Anor. (1996) 3 NWLR (Pt. 437) 373 at 381.

Some of the considerations on which Courts determines any application for stay of proceedings during appeal are that the burden is on the applicant to show that if the appeal should succeed, the success would not be in vain. Also that in the peculiar circumstances of the case, a refusal of stay of proceedings would be unjust and inequitable. See Okafor v. Nnaife (1987)4 NWLR (Pt.64) 129; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264 and Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 188.

Another consideration of significance in dealing with any application for stay of proceedings is where the notice and grounds of appeal raise substantial issues as to the jurisdiction of the Court below. This may constitute special or exceptional circumstance justifying the grant of the application. See Martins v. Nicannar (1988) 2 NWLR (Pt. 74) 75.

Having set out the guiding principles and conditions for the grant of an application for stay of proceedings as in the present application, reference to the materials relied upon by the appellants/applicants in respect of their application is not only desirable but absolutely necessary. The duty of placing all the relevant materials before the Court is on the party seeking the indulgence of the Court. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 153. Emir of Kano v Agundi (2006) 2 NWLR (Pt. 965) 572; (2005) LPELR-7503 (CA).

In exercising its discretion a Court is not bound to follow a particular way of exercising the discretion adopted in previous decisions of the same or other superior Courts. It is however, to be guided by the peculiarities of each case and the settled principles of law that the discretion be exercised both judicially and judiciously. Acting judicially imports the consideration of the interest of both sides and weighing them in order to arrive at a fair and just decision. See Gabari v Ilori (2002) 14 NWLR (786) 78.

There is no doubt and it is well settled that the general principle governing the exercise of discretion in applications to stay proceedings is to rely on the circumstances surrounding the litigation by the parties. See Akilu v. Fawehinmi (No.2) (1989) NWLR Pt. 102 Pg.122.

Let us now consider the circumstances of this interlocutory appeal. The trial Magistrate Court had overruled a no case submission. The Appellants were to make a defence to the charge. They could in my view have made a defence and if the ultimate verdict were unfavourable have appealed against that decision.

That is the current conventional wisdom in order to avoid the wheels of justice being clogged by chaff while the grain to be ground is rotting away unattended to. The criminal charge is already pending for 10 years having travelled three levels of the Court system. It is not a good testimonial of our criminal justice system or the duty of the defence counsel to promote a speedy and just trial for his clients. I am in complete agreement with the Court below in its exercise of discretion in refusing to grant a stay of proceedings. Justice is a three way street- leading to justice to society, justice to the Applicant and justice to the Respondent. In the circumstances, the appeal is without merit. The ruling of Hon. Justice C.I. Nwobodo in suit No E/440m/2010 is hereby affirmed. Appeal Dismissed. The case is remitted back to the trial Magistrate Court for continuation of hearing.

OREDOLA, JCA

I was privileged to have had a preview of the lead judgment just delivered by my learned brother, Justice Helen Moronkeji Ogunwumiju, JCA I agree with the reasoning contained therein coupled with the conclusion arrived thereat, to the decisive effect that the appeal is devoid of merit. As such, the ruling of the Lower Court should be affirmed. I also dismiss the appeal and affirm the ruling of the learned trial judge in respect thereof.

AGIM, JCA

I had a preview of the judgment delivered by my Learned Brother, Helen Moronkeji Ogunwumiju, JCA. I must remark that the restatements of law therein are very useful and important for administration of criminal law and justice. I agree with the very erudite views, the reasoning, conclusions and orders therein.