CASE SUMMARY OF:
OKON BASSEY EBE v. COMMISSIONER OF POLICE (2008) - SC
Okon Bassey Ebe
Commissioner of Police
(2008) 1 S.C. (Pt II) 222;
(2008)33 NSCQR Pt I 110;
LEAD JUDGEMENT DELIVERED BY:
P. O. ADEREMI, J.S.C;
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Chief Ogbodu.
* FOR THE RESPONDENT
- Mr. Ukweni.
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FACT (as relating to the issues)
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.
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?
ARGUMENTS OF PARTIES
* FOR THE APPELLANT
The Learned trial Judge Judge did not insist on the personal appearance of the Commissioner of Police. What the Learned trial Judge did was to go by the provision of the Rules of Court which are meant to be obeyed that the Appellant must be present in Court otherwise the appeal must be struck out if no explanation is given for the absence of the appellant (sic) The rule did not say that if you are a commissioner of Police you should be absence (sic) from the court. No matter what you are or the position you are holding, once you are an appellant in Court you must appear in Court when the appeal comes up for hearing or the appeal will be struck out if no explanation is given to convince the Court of your absence. Rules of Court are meant to be obeyed in order to prevent judicial tyranny and the omnipotence of individual Judges.
*FOR THE RESPONDENT
HOLDING & RATIO DECIDENDI
1. The Supreme Court upheld the lower court's judgement.
i. 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.
ORDER 44 RULE 10 (1) of the High Court Civil Procedure Rules: "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."
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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. - O. ADEREMI, J.S.C. Bassey v. COP (2008)
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. - O. ADEREMI, J.S.C. Bassey v. COP (2008)
I will however like to add, by way of emphasis, that it was totally erroneous for the trial Judge to have cancelled or declared the fiat granted to the Counsel in the case as having expired. I believe that once a fiat is granted to a Counsel to prosecute or defend a case, the validity of the fiat would continue throughout the duration of the case for which the fiat was granted. - Akintan, J.S.C. Bassey v. COP (2008)
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. - O. ADEREMI, J.S.C. Bassey v. COP (2008)
The court ought to take judicial notice of the fact that it was possible for the Commissioner of Police to be involved in many court cases at the same time. It would therefore be impossible for him to be physically present in all the courts at the same time and at the same time be able to carry on his duties as Commissioner of Police apart from the prosecution of cases instituted in his official capacity. - Akintan, J.S.C. Bassey v. COP (2008)
I will add that the Constitution of the Federal Republic of Nigeria which is the supreme law entitles every person to a fair trial which includes the personal appearance or appearance through a legal practitioner of a person's choice. A person here, I think, includes both the natural and artificial. To tie down a trial to personal appearance of a party whether in criminal or civil matters, when the constitution and other statutes allow for representation, will in my view, grind the progress of a trial to a halt. - MUHAMMAD, J.S.C. Bassey v. COP (2008)
The end of this brief.
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