➥ CASE SUMMARY OF:
Francis v. FRN (2020) – SC.810/2014
by Branham Chima.
Nweke Chibueze Francis
Federal Republic of Nigeria
Supreme Court – SC.810/2014
➥ JUDGEMENT DELIVERED ON:
Friday, May 22, 2020
➥ THIS CASE IS AUTHORITY FOR:
⦿ ADJOURNMENT REMAINS WITHIN THE DISCRETION OF THE JUDGE
Adjournment remains within the judicial discretion of the trial Court. Like all discretions it is exercised judicially and judiciously. Exercise of discretion, as it is stated in the Lexicon Webster Dictionary, Encyclopedic Edition, Vol. 1 at page 286, discretion includes a judgment that is sound, prudent and tactful. A judgment or decision is said to be judicious if it was rendered wisely or prudently. When a trial Court or judge is called upon to act judicially, it must have some facts on which to predicate a prudent or wise decision. Mrs. Ngozi Ekwensi, learned defence Counsel, in the application for adjournment, did not consider it prudent to specify the documents the defence intended to avail the trial Court as the basis for the adjournment sought. The learned trial Court was left to speculate, and that should not be … Since adjournment lies within the discretionary powers of the Court, the applicant for adjournment has the bounden duty to produce or adduce evidential materials in support of his application for adjournment. — E. Eko, JSC.
⦿ APPLICATION WITH NO BACKING OF LAW IS AN ABUSE OF PROCESS
An application that has no backing of law would ordinarily seem or appear to be an abuse of Court’s process: R-BENKAY (NIG.) LTD. v. CADBURY (NIG.) LTD. (2012) 3 SC. (pt. 3) 169; (2012) 9 NWLR (pt. 1306) 596. — E. Eko, JSC.
⦿ ALLOCUTUS IS FOR THE CONVICT TO PLEAD
“Allocutus”, as defined in Earl Jowitt: The Dictionary of English Law, is what the convict has to say why the Court should not proceed to sentence him. That is, what the convict shows “why the sentence should not be passed”. The convict, not the defence Counsel pleads his allocutus. In other words, it is for the convict himself to show cause why the prescribed sentence for the offence he was convicted of be not passed or imposed on him. — E. Eko, JSC.
⦿ THE EXERCISE OF DISCRETION IS BASED ON FACTS
In ADIGWE v. FRN (2015) 18 NWLR (pt. 1490) 105 this Court reiterated the point that “the exercise of discretion is not based on mere judgment of the person doing so but upon facts on circumstances necessary for the proper exercise of that discretion”. See also OYEGUN v. NZERIBE (2010) 41 NSCQR 127 at 147. — E. Eko, JSC.
⦿ PURPOSE OF ALLOCUTUS
By dint of Section 11(b) of the NDLEA Act, 2004 a term of life imprisonment is the maximum sentence the convict, of the offence the Appellant was charged with, should expect. The complaint of the Appellant that the trial Court did not properly exercise its discretion in the imposition on him of the sentence of “imprison for life” is not supported by any empirical fact. The opportunity for plea of allocutus offers the Appellant the occasion to show cause why the sentence prescribed by Section 11(b) of NDLEA Act should not be passed or imposed on him. He failed to testify to utilise the opportunity. — E. Eko, JSC.
⦿ STATEMENT FROM THE BAR HAS NO FORCE OF LEGAL EVIDENCE
He failed to testify to utilise the opportunity. Rather, it was his Counsel who made bare statement from the Bar. That bare statement from the Bar has no force of legal evidence: ONU OBEKPA v. C.O.P. (1980) 1 NCR 113; NIGER CONST. LTD. v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 at 792. — E. Eko, JSC.
⦿ APPLICATION FOR EXTENSION OF TIME MUST BE BACKED UP BY GOOD AND SUBSTANTIAL REASONS
By the provisions of Order 2 Rule 31 of the Supreme Court Rules both facts in the affidavit, i.e. good and substantial reasons for failure to appeal within the prescribed period; and grounds of appeal which prima facie show good cause why the appeal should be heard must co-exist for the application to succeed. An application for extension of time to appeal would succeed no matter how long after it is brought provided there are good and substantial reasons for the delay. Once a genuine ground on jurisdiction is the reason for the appeal, good and substantial reasons for the delay are no longer necessary. — O. Rhodes-Vivour, JSC.
⦿ A COMPETENT NOTICE OF APPEAL
A competent notice of appeal is like having the right key for a particular door. The notice of appeal is the key to the door to this Court. Without the right key, any effort to gain entrance through the door is an exercise in futility. It is void and therefore a nullity. In the immortal words of Lord Denning, MR in McFoy vs UAC (1961) 3 ALL ER 169 @ 172: “If an act is void, then it is in law, a nullity. It is not only bad but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” See also: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Skenconsult Vs Ukey (1981) 1 SC 6. — K.M.O. Kekere-Ekun, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
⦿ FOR THE APPELLANT
Philip Ndubuisi, Esq.
⦿ FOR THE RESPONDENT
Mohammed S. Diri, Esq., Director Legal Services (Federal Ministry of Justice).
➥ CASE FACT/HISTORY
The charge was part of the Proofs of Evidence served on the Appellant before his arraignment before the Federal High Court, Lagos, on 5th November, 2009. The Appellant was represented by a Counsel of his choice. On the said date, upon the charge read and explained to him, the Appellant pleaded Not Guilty and both the prosecuting and defending Counsel requested that hearing be adjourned to 7th December, 2009, to commence.
The trial Court (O.C. Abang, J) obliged. At the resumed sitting, on 7th December, 2009, the Appellant, in the presence of his Counsel, Mrs. Ngozi Ekwensi, changed his Not Guilty plea to the plea of Guilty after the charge was again read and explained to him.
Upon the documents/items admitted in evidence without objection, the prosecuting Counsel prayed the trial Court to summarily convict the Appellant as charged. He was accordingly, “convicted as charged”. At this juncture, Mrs. Ngozi Ekwensi, defence Counsel, sought adjournment to enable her “tender some materials in Court in support of my plea for leniency”. She stated that “This application is based on compassionate ground since there is no provision in the Criminal Procedure Act in support”. The Prosecuting Counsel, conceding the adjournment, announced that he had “no objection”. The trial Court, without hesitation, refused the application and then invited the Appellant to “present his allocutus and thereafter sentence will be passed.”
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL STRUCK OUT]
I. Whether this notice of appeal is competent? [Raised suo moto]
A. THE APPEAL IS BROUGHT OUT OF TIME THUS INCOMPETENT
[‘The Appellant’s Notice of Appeal was filed on 10th September, 2014 – more than one year from 21st June, 2013. I have no evidence on Record that the Appellant obtained an order to bring this appeal out of time. Section 27(2)(b) of the Supreme Court Act, 2004 prescribes a period of “thirty days from the date of the decision appealed against” as the period within which an appeal in a criminal matter may be brought. This appeal is prima facie incompetent, having been brought out of time. Once a matter is not properly constituted the Court lacks jurisdiction to entertain it: MADUKOLU v. NKEMDILIM (1962) ALL NLR 587; ALAFIA & ORS. v. GBODE VENTURES NIG. LTD (2016) LPELR – 26066 (SC). My Lords, this point is touching on the competence of the appeal and the jurisdiction of the Court to entertain. It is a substantial point of law that can be raised and dealt with suo motu: ODIASE v. AGHO (1972) 3 SC 73; DICKSON OGUNSEINDE VIRYA FARMS LTD. v. SOCIETE GENERAL BANK LTD & ORS. (2018) LPELR – 43710 (SC); SODIPO v. LEMMINKAINEN OY. & ANOR. (1985) LPELR – 3088 (SC); BEIVAR FINANCE CO. LTD. v. HAROLD COLE (1909) 2 ALL E.R. 904 at 908; PHILIPS v. COPPING (1938) 1 KB 15. The incompetence of the Notice of Appeal warrants an order striking out the appeal. I so order.’]
B. LEAVE OF COURT WAS NOT SOUGHT TO BRING GROUNDS DEALING ON FACTS
[‘No leave was first sought and obtained for the Appellant to bring forth grounds 1, 3 and 4 in the Notice of Appeal. The grounds require leave by virtue of Section 233(2) & (3) of the 1999 Constitution, as amended. Ground 1, raising issue of wrong exercise of discretion, is predicated on mixed law and facts. So also Ground 3 of the grounds of appeal. Ground 4, complaining that the decision of the Court of Appeal was unwarranted, unreasonable and cannot be supported having regard to the evidence, is an omnibus ground raising issue of pure facts. Grounds 1, 3 & 4 are therefore incompetent.’]
‘If the appeal were competent my verdict would have been one dismissing it in its entirety. The appeal, not competent, shall be, and is hereby struck out.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)