➥ CASE SUMMARY OF:
Chief Olisa Metuh V. Federal Republic of Nigeria & Anor. (9 Feb 2018, SC.457/2016(CONSOLIDATED))
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Leave for appeal on mixed law and fact.
➥ CASE FACT/HISTORY
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 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 grounds each filed on the 1st day of June 2016.
➥ ISSUE(S)
I. 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)?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT GROUND WAS OF MIXED LAW AND FACT, AND THUS LEAVE WAS REQUIRED
‘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 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 is, therefore, unassailable. I so hold.’]
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.
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✓ DECISION:
‘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.’
➥ FURTHER DICTA:
⦿ WHERE LEAVE IS REQUIRED TO APPEAL, AND LEAVE IS NOT SOUGHT, APPEAL IS INCOMPETENT
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 and Ors v. Ebele and Anor (2005) LPELR-1490 (SC). — M.D. Muhammad JSC.
⦿ WHERE LEAVE OF APPEAL IS REQUIRED AND NOT GOTTEN, IT GOES TO JURISDICTION
Leave to appeal, where required, is a condition precedent to the exercise of jurisdiction by the appellate Court. Failure to obtain such leave is fatal. It renders the appeal incompetent and robs the Court of jurisdiction to hear it. See: Abdul v. C.P.C. and Ors. (2014) 1 NWLR (Pt.1388) 299; U.B.N. Plc v. Sogunro and Ors. (2006) LPELR-3393 (SC) @ 12-13 D-A; (2006) 16 NWLR (Pt.106) 504: Metal Construction (West Africa) Ltd. v. Migliore (1990) 1 NWIR (Pt.126) 299. — Kekere-Ekun JSC.
⦿ WHERE LEAVE IS REQUIRED, IT IS WHAT GIVES THE COURT JURISDICTION
It has long been settled that leave of Court, where it is required, is a condition precedent to the exercise of the right of appeal. Accordingly, failure to obtain leave, where it is required, renders any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court, Nalsa and Team Associates v. N.N.P.C. [1991] 8 NWLR (Pt.212) 652; Nyambi v. Osadim [1997] 2 NWLR (Pt.485) 1; Olanrewaju v. Ogunleye [1997] 2 NWLR (Pt.485) 12; Organs and Ors v. NLNG Ltd (2013) LPELR – 20942 (SC) 26; E -G. As this Court held in Odofin v. Agu [1992] 3 NWLR (Pt.229) 350: Where leave of Court is necessary before an appeal can be validly filed, the leave must be applied for and obtained and the Notice of Appeal filed within the statutory period, Owoniboys Technical Services Ltd. v. John Holt Ltd. [1991] 6 NWLR (Pt.199) 550, 557-558; Amudipe v. Arijodi [1978] 2 LRN 128; Atanda v. Olanrewaju [1988] 4 NWLR (pt. 89) 394; Lamar v. Orbih [1980] 5-7 SC 28. In effect, failure to obtain leave of Court, where necessary to file a particular ground of appeal, upon which an issue is raised for resolution of the case, could render both such grounds of appeal, and the issue so formulated therefrom, incompetent, Ajibade v. Pedro [1992] 5 NWLR (Pt.241) 257, 262; Arowolo v. Adimula [1991] 8 NWLR (Pt.212) 753; Metal Construction Co. v. Migliore [1990] 1 NWLR (Pt.126) 299. This must be so for where an appeal can only be lodged with the leave of the Court, it is the leave that confers jurisdiction on the Court. It is, thus, very vital and fundamental that leave must be obtained before an appeal is filed. Thus, any appeal filed without leave is incompetent as no jurisdiction can be conferred on the Court, Shaka v. Salisu [1996] 2 NWLR (Pt.428) 28; Mosuro and Anor v. Akinyele 13 WACA 112-113; Yakubu v. The Governor of Kogi State and Ors [1995] 3 NWLR (Pt.383) 367; Russel v. Russel [1987] 2 NWLR (Pt.57) 437. The explanation is simply: a Court of competent jurisdiction has no jurisdiction to hear an incompetent appeal, Kashadadi v. Noma (2007) LPELR – 1673 (SC) 9; E-F; Garuba and Ors v. Omokhodion and Ors (2011) LPELR -1309 (SC) 47; D -E. — C.C. Nweze JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
